Common use of Delayed Occupancy Clause in Contracts

Delayed Occupancy. If Landlord fails to tender possession of the Premises to Tenant according to Paragraph 2 above on or before the Scheduled Commencement Date (as it may be extended for “Force Majeure Delays,” as defined in Paragraph 14 below), Landlord will not be in default or liable in damages to Tenant, nor will the obligations of Tenant be affected, provided, however, that: (a) the Commencement Date will be extended automatically by one day for each day of the period after the Scheduled Commencement Date to the day on which Landlord tenders possession of the Premises to Tenant according to Paragraph 2 above, less any portion of that period attributable to Tenant’s delays as more particularly described in Paragraph 15 below; and (b) if the Commencement Date (as it may be adjusted because of Tenant’s delays) has not occurred on or before the date that is: (i) 45 days after the Scheduled Commencement Date, then Tenant will receive one day of abated Base Rent for each day that elapses after the 45-day period until the Commencement Date occurs, which abatement shall apply to Base Rent payments first coming due after the Commencement Date; and (ii) 120 days after the Scheduled Commencement Date, then at any time within 10 business days after such date (but before Landlord has tendered possession of the Premises as provided under Paragraph 2), Tenant will have the right to give Landlord notice of Tenant’s intent to terminate the Lease (“Tenant’s Termination Notice”), and if Landlord has not tendered possession of the Premises on or before the date that is 30 days after the date Landlord receives Tenant’s Termination Notice, the Lease will automatically terminate at the close of business on the 30th day after the date Landlord receives Tenant’s Termination Notice. Upon a termination under Paragraph 4(b) above, each party will, upon the other’s request, execute and deliver an agreement in recordable form containing a release and surrender of all right, title and interest in and to the Lease; neither Landlord nor Tenant will have any further obligations to each other under the Lease; all improvements to the Premises will become and remain the property of Landlord; and Landlord will refund to Tenant all sums paid to Landlord by Tenant in connection with the Lease, including, without limitation, any payments to Landlord of construction costs for the Premises. The extension of the Commencement Date and Tenant’s

Delayed Occupancy. If Landlord fails to tender possession of the Premises to Tenant according to Paragraph 2 above on or before the Scheduled Commencement Date (as it may be extended for “Force Majeure Delays,” as defined in Paragraph 14 below)Date, Landlord will not be in default or liable in damages to Tenant, nor will the obligations of Tenant be affected, provided, however, that: : (a) the Commencement Date will be extended automatically by one day for each day of the period after the Scheduled Commencement Date to the day on which Landlord tenders possession of the Premises to Tenant according to Paragraph 2 above, less any portion of that period attributable to Tenant’s 's delays as more particularly described in Paragraph 15 14 below; and and (b) if Landlord does not tender possession of the Commencement Date (as it may be adjusted because of Tenant’s delays) has not occurred Premises to Tenant according to Paragraph 2 above on or before the date that is: (i) 45 60 days after the Scheduled Commencement Date, then Tenant will receive one day Date (plus any period of abated Base Rent for each day that elapses after the 45-day period until the Commencement Date occurs, which abatement shall apply to Base Rent payments first coming due after the Commencement Date; and (ii) 120 days after the Scheduled Commencement Date, then at any time within 10 business days after such date (but before Landlord has tendered possession of the Premises delay caused by Tenant's delays as provided under described in Paragraph 214 below), Tenant will have the right to give Landlord notice of Tenant’s intent to terminate the Lease (“Tenant’s Termination Notice”), and if by delivering written notice of termination to Landlord has not tendered possession of the Premises on or before the date that is more than 30 days after the date Landlord receives Tenant’s Termination Notice, the Lease will automatically terminate at the close of business on the 30th day after the date Landlord receives Tenant’s Termination Noticesuch tender deadline date. Upon a termination under Paragraph 4(b) above, each party will, upon the other’s 's request, execute and deliver an agreement in recordable form containing a release and surrender of all right, title and interest in and to the Lease; neither Landlord nor Tenant will have any further obligations to each other under other, including, without limitation, any obligations to pay for work previously performed in the LeasePremises; all improvements to the Premises will become and remain the property of Landlord; and Landlord will refund to Tenant all any sums paid to Landlord by Tenant in connection with the Lease, including, without limitation, any payments to Landlord of construction costs for the Premises. The extension Such postponement of the commencement of the Term and such termination and refund right will be in full settlement of all claims that Tenant might otherwise have against Landlord by reason of Landlord's failure to substantially complete its obligations under this Work Letter by the Scheduled Commencement Date and Tenant’sDate.

Delayed Occupancy. If If, due to the holdover of a prior occupant or other reason beyond Landlord's control, Landlord fails to tender possession of the Premises to Tenant according to Paragraph 2 above on or before the Scheduled Commencement Date (as it may be extended for “Force Majeure Delays,” as defined in Paragraph 14 below)Date, Landlord will not be in default or liable in damages to Tenant, nor will the obligations of Tenant be affected, provided, however, that: : (a) the Commencement Date will be extended automatically by one day for each day of the period after the Scheduled Commencement Date to the day on which Landlord tenders possession of the Premises to Tenant according to Paragraph 2 above, less any portion of that period attributable to Tenant’s delays 's Delays as more particularly described in Paragraph 15 belowexhibit B; and and (b) if Landlord does not tender possession of the Commencement Date (as it may be adjusted because of Tenant’s delays) has not occurred full Premises to Tenant on or before the date that is: (i) 45 days 6 months after the Scheduled Commencement Date, then Tenant will receive one day Date (plus any period of abated Base Rent for each day that elapses after the 45-day period until the Commencement Date occurs, which abatement shall apply to Base Rent payments first coming due after the Commencement Date; and (ii) 120 days after the Scheduled Commencement Date, then at any time within 10 business days after such date (but before Landlord has tendered possession of the Premises delay caused by Force Majeure and/or Tenant's Delays as provided under Paragraph 2described in Exhibit B), Tenant will have the right to give Landlord notice of Tenant’s intent to terminate the Lease (“Tenant’s Termination Notice”), and if Landlord has not tendered possession by delivering written notice of the Premises on or before the date that is termination to Landlord not more than 30 days after the date Landlord receives Tenant’s Termination Notice, the Lease will automatically terminate at the close of business on the 30th day after the date Landlord receives Tenant’s Termination Noticesuch tender deadline date. Upon a termination under Paragraph 4(bSection 3.3 (b) above, each party will, upon the other’s 's request, execute and deliver an agreement in recordable form containing a release and surrender of all right, title and interest in and to the Lease; neither Landlord nor Tenant will have any further obligations to each other under the Lease; all improvements to the Premises will become and remain the property of Landlordother; and Landlord will refund to Tenant all any sums paid to Landlord by Tenant in connection with the Lease, including, without limitation, any payments to Landlord of construction costs for the Premises. The extension Such postponement of the commencement of the Term and such termination and refund right will be in full settlement of all claims that Tenant might otherwise have against Landlord by reason of Landlord's failure to tender the Premises by the Scheduled Commencement Date and Tenant’sDate.

Delayed Occupancy. If In the event that Landlord fails is prevented from completing the alterations and improvements described in Exhibit "B" due to tender the failure of the prior tenant to surrender possession of the Premises premise to the Landlord, work stoppages, labor controversies, accidents or other causes beyond the reasonable control of Landlord, Landlord shall not be liable to Tenant according to Paragraph 2 for damages by reason thereof, nor shall Tenant be relieved from any obligation under this Lease, but the rental shall be abated based on the above schedule (a pro-rated monthly installment shall be calculated on or before a PER DIEM BASIS) until the Scheduled Commencement Date (as it may said alterations and improvements are completed. In such event, the term of this Lease shall automatically be extended so as to include the full number of months provided for “Force Majeure Delays,” as defined in Paragraph 14 belowby this Lease. IN THE EVENT THAT LANDLORD FAILS ON OR BEFORE FEBRUARY 15,1997 TO DELIVER THE PREMISES WITH ALL OF THE ALTERATIONS AND IMPROVEMENTS SUBSTANTIALLY COMPLETED (EXCEPT FOR PUNCH LIST ITEMS), Landlord will not be in default or liable in damages to TenantAND PROVIDED TENANT HAS DELIVERED TO LANDLORD THREE (3) COPIES OF THE EXECUTED LEASE ALONG WITH FINAL APPROVAL OF THE FLOOR PLAN BY NOVEMBER 25. 1996, nor will the obligations of Tenant be affectedCONFIRMATION ON ALL ELECTRICAL, providedPLUMBING, howeverPIPING FOR AIR LINE, that: FLOOR FINISHES, ABOVE STANDARD HVAC AND EXHAUST SYSTEM REQUIREMENTS, TOGETHER WITH ALL MATERIAL SAFETY DATA SHEETS FOR CHEMICALS USED OR STORED, AND WAREHOUSE RACKING LAYOUT (aIF ANY) the Commencement Date will be extended automatically by one day for each day of the period after the Scheduled Commencement Date to the day on which Landlord tenders possession of the Premises to Tenant according to Paragraph 2 aboveBY NOVEMBER 27. 1996. LANDLORD SHALL PAY TO TENANT'S CURRENT LANDLORD ANY HOLDOVER COSTS WHICH MAY BE INCURRED BY TENANT AS A RESULT OF THE DELAYED OCCUPANCY BEGINNING FEBRUARY 16.1997 UNTIL SUCH TIME AS PREMISES IS AVAILABLE FOR OCCUPANCY UNLESS DELAY WAS CAUSED BY TENANT, less any portion of that period attributable to Tenant’s delays as more particularly described in Paragraph 15 below; and THE VILLAGE OF VXXXXX HILLS, OR OTHER CONDITIONS WHICH WERE BEYOND THE CONTROL OF LANDLORD. SUCH PAYMENT OF HOLDOVER COSTS SHALL NOT EXCEED ONE THOUSAND (b$1,000.00) if the Commencement Date (as it may be adjusted because of Tenant’s delays) has not occurred on or before the date that is: (i) 45 days after the Scheduled Commencement Date, then Tenant will receive one day of abated Base Rent for each day that elapses after the 45-day period until the Commencement Date occurs, which abatement shall apply to Base Rent payments first coming due after the Commencement Date; and (ii) 120 days after the Scheduled Commencement Date, then at any time within 10 business days after such date (but before Landlord has tendered possession of the Premises as provided under Paragraph 2), Tenant will have the right to give Landlord notice of Tenant’s intent to terminate the Lease (“Tenant’s Termination Notice”), and if Landlord has not tendered possession of the Premises on or before the date that is 30 days after the date Landlord receives Tenant’s Termination Notice, the Lease will automatically terminate at the close of business on the 30th day after the date Landlord receives Tenant’s Termination Notice. Upon a termination under Paragraph 4(b) above, each party will, upon the other’s request, execute and deliver an agreement in recordable form containing a release and surrender of all right, title and interest in and to the Lease; neither Landlord nor Tenant will have any further obligations to each other under the Lease; all improvements to the Premises will become and remain the property of Landlord; and Landlord will refund to Tenant all sums paid to Landlord by Tenant in connection with the Lease, including, without limitation, any payments to Landlord of construction costs for the Premises. The extension of the Commencement Date and Tenant’sDOLLARS PER DAY.

Delayed Occupancy. If Landlord fails to tender possession of the Premises to Tenant according to Paragraph 2 above on or before the Scheduled Commencement Date (as it may be extended for “Force Majeure Delays,” as defined in Paragraph 14 below)Date, Landlord will not be in default or liable in damages to Tenant, nor will the obligations of Tenant be affected, provided, however, that: : (a) the The Commencement Date will be extended automatically by one day for each day of the period after the Scheduled Commencement Date to the day on which Landlord tenders possession of the Premises to Tenant according to in accordance with Paragraph 2 above, less any portion of that period attributable to Tenant’s delays 's delay as more particularly described in Paragraph 15 below; and 15, and (b) if the Commencement Date (as it may be adjusted because of Tenant’s delays) has Landlord does not occurred on or before the date that is: (i) 45 days after the Scheduled Commencement Date, then Tenant will receive one day of abated Base Rent for each day that elapses after the 45-day period until the Commencement Date occurs, which abatement shall apply to Base Rent payments first coming due after the Commencement Date; and (ii) 120 days after the Scheduled Commencement Date, then at any time within 10 business days after such date (but before Landlord has tendered tender possession of the Premises to Tenant in accordance with Paragraph 2 above on or before June 1, 2001 (as provided under extended by any period of delay caused by Tenant's delay as described in Paragraph 215 below), Tenant will have the right to give Landlord notice of Tenant’s intent to terminate the Lease (“Tenant’s Termination Notice”), and if by delivering written notice of termination to Landlord has not tendered possession of the Premises on or before the date that is more than 30 days after the date Landlord receives Tenant’s Termination Notice, the Lease will automatically terminate at the close of business on the 30th day after the date Landlord receives Tenant’s Termination Noticesuch tender deadline date. Upon a termination of this Lease under Paragraph 4(b) abovethis subparagraph (b), each party will, upon the other’s 's request, execute and deliver an agreement in recordable form containing containing, a release and surrender of all right, title and interest in and to the Lease; neither Landlord nor Tenant will have any further obligations to each other under other, including, without limitation, any obligations to pay for work previously performed in the LeasePremises; all improvements to the Premises will become and remain the property of Landlord; , and Landlord will refund to Tenant all any sums paid to Landlord by Tenant in connection with the Lease, including,, without limitation, any payments to Landlord of construction costs for the Premises. The extension Such postponement of the commencement of the Term and such termination and refund right will be in full settlement of all claims that Tenant might otherwise have against Landlord by reason of Landlord's failure to substantially complete its obligations under this Work Letter by the Scheduled Commencement Date and Tenant’sDate.

Delayed Occupancy. If (i) Landlord fails shall use reasonable diligence to tender substantially complete any Landlord's Work on or before the Commencement Date specified in the Basic Lease Provisions. However, this Lease shall not be void or voidable, nor shall Landlord or its agents or contractors have any liability to Tenant, by reason of Landlord's failure to substantially complete Landlord's Work by the Commencement Date specified in the Basic Lease Provisions, or by reason of Landlord's failure to deliver possession of the Premises due to Tenant according any other cause beyond Landlord's reasonable control, and postponement of Tenant's rental obligation prior to Paragraph 2 above on or before the Scheduled Commencement Date (as it may be extended for “Force Majeure Delays,” as defined in Paragraph 14 below), Landlord will not be in default or liable in damages to Tenant, nor will the obligations delivery of Tenant be affected, provided, however, that: (a) the Commencement Date will be extended automatically by one day for each day of the period after the Scheduled Commencement Date to the day on which Landlord tenders possession of the Premises shall be Tenant's exclusive remedy and in sole satisfaction of all claims Tenant might otherwise have been reason of Landlord's failure to Tenant according to Paragraph 2 above, less any portion of that period attributable to Tenant’s delays as more particularly described in Paragraph 15 below; and (b) if deliver the Premises by the Commencement Date (as it may be adjusted because of Tenant’s delays) has not occurred on or before specified in the date that is: (i) 45 days after the Scheduled Commencement Date, then Tenant will receive one day of abated Base Rent for each day that elapses after the 45-day period until the Commencement Date occurs, which abatement shall apply to Base Rent payments first coming due after the Commencement Date; and Basic Lease Provisions. (ii) 120 days after the Scheduled Commencement Date, then at any time within 10 business days after such date (but before Landlord has tendered possession Time is of the Premises as provided under Paragraph 2), Tenant will have the right to give Landlord notice of Tenant’s intent to terminate the Lease (“Tenant’s Termination Notice”), and if Landlord has not tendered possession of the Premises on or before the date that is 30 days after the date Landlord receives Tenant’s Termination Notice, the Lease will automatically terminate at the close of business on the 30th day after the date Landlord receives Tenant’s Termination Notice. Upon a termination under Paragraph 4(b) above, each party will, upon the other’s request, execute and deliver an agreement in recordable form containing a release and surrender of all right, title and interest in and to the Lease; neither Landlord nor Tenant will have any further obligations to each other under the Lease; all improvements to the Premises will become and remain the property of Landlord; and Landlord will refund to Tenant all sums paid to Landlord by Tenant essence in connection with the Lease, including, without limitation, any payments delivery to Landlord of construction costs for each and every drawing, plan, specification, schedule or other item required to be given by Tenant to Landlord or to be approved by Tenant pursuant to the Premises. The extension schedule in and provisions of the scope of Work. Accordingly, notwithstanding any contrary provision of this Lease, if Landlord is delayed in the Substantial Completion of Landlord's Work as a result of (a) Tenant's failure to approve plans, specifications, changes, cost estimates and other items within the time limits specified therefor in the Work Letter, or (b) any change by Tenant in said plans, specifications, or other items after the expiration of such time limits, or (c) any default by Tenant relating to its obligations hereunder or under the Scope of Work, then, in any or all such instances and without limitation as to any other right or remedy available to Landlord. Landlord may under clause (c) of Paragraph 3.2 determine in its sole reasonable discretion that the actual Commencement Date and Tenant’sis the date that Substantial Completion of Landlord's Work would have occurred but for such delay.

Delayed Occupancy. If Landlord fails 2.5.1 Notwithstanding anything to tender possession of the Premises to contrary herein, if the "Tenant according to Paragraph 2 above Improvements" (as defined in Exhibit B) are not substantially complete on or before the Scheduled Lease Commencement Date, the Lease shall not be void or voidable, nor shall Landlord be liable to Tenant for any loss or damage resulting therefrom except as otherwise provided herein: In such event (i) the Lease Commencement Date shall be the first business day after the Tenant Improvements are substantially complete in accordance with the provisions of Exhibit B and the Final Plans, as certified by Landlord's contractor, (as it may be extended for “Force Majeure Delays,” as defined in Paragraph 14 below), Landlord will not be in default or liable in damages to Tenant, nor will the obligations of Tenant be affected, provided, however, that: (aii) the The Rent Commencement Date will shall be extended automatically by delayed one day for each day of delay in delivery, and (iii) Landlord shall be responsible for all of Tenant's "Holdover Costs" (defined below). Landlord shall reimburse Tenant for such Holdover Costs within thirty (30) days after receipt of a demand therefor from Tenant, such demand to be accompanied by reasonable backup documentation substantiating the amount requested by Tenant. As used herein, the term "Holdover Costs" means the total amount of base rental paid by Tenant at its current location (15041 Bake Parkway, Suite A, Irvine, California 92618), as adjusted upwards by any holdover penalties, during the period after the Scheduled Commencement Date to commencing on June 1, 2002 and continuing until the day on which Landlord tenders possession of substantially completes the Premises to Tenant according to Paragraph 2 aboveImprovements (adjusted for any partial months during such period), less including without limitation any portion of that period attributable to fines, penalties or interest charges resulting solely from Tenant’s delays as more particularly described in Paragraph 15 below; and (b) if the Commencement Date 's continued occupancy at such current location (as it may be adjusted because of opposed to those costs resulting from Tenant’s delays's failure to timely pay rent and other charges due under its current lease at such location) has not occurred on or before the date that is: but excluding (i) 45 days after any additional rent or other amounts paid by Tenant for common area maintenance charges, real estate taxes and assessments and/or insurance premiums (whether under a "triple net" or "gross" lease structure or otherwise), (ii) utility charges, and (iii) charges for items which Tenant would have been obligated to pay Landlord hereunder had Landlord Substantially Completed the Scheduled Premises by the Lease Commencement Date. In the event, however, that Tenant is not able to holdover in its current premises, then "Holdover Costs" shall include the total amount of base rental paid by Tenant at any temporary office location, plus moving expenses and all associated costs of relocation, but excluding items (i), (ii) and (iii) above, only to the extent such charges are the same or less than such charges were at Tenant's current premises. Landlord shall pay the difference between the actual additional rent charges in any temporary office location and Tenant's additional rent charges in its current location. Notwithstanding the foregoing, in the event the Lease Commencement Date does not occur prior to July 31, 2002, then Tenant will receive one day of abated Base Rent for each day that elapses after the 45-day period until the Commencement Date occurs, which abatement shall apply to Base Rent payments first coming due after the Commencement Date; and (ii) 120 days after the Scheduled Commencement Date, then at any time within 10 business days after such date (but before Landlord has tendered possession of the Premises as provided under Paragraph 2), Tenant will have the right to give Landlord terminate this Lease upon ten (10) days written notice of Tenant’s intent to terminate the Lease (“Tenant’s Termination Notice”), and if Landlord has not tendered possession of the Premises on or before the date that is 30 days after the date Landlord receives Tenant’s Termination Notice, the Lease will automatically terminate at the close of business on the 30th day after the date Landlord receives Tenant’s Termination Notice. Upon a termination under Paragraph 4(b) above, each party will, upon the other’s request, execute and deliver an agreement in recordable form containing a release and surrender of all right, title and interest in and to the Lease; neither Landlord nor Tenant will have any further obligations to each other under the Lease; all improvements to the Premises will become and remain the property of Landlord; and Landlord will refund to Tenant all sums paid to Landlord by Tenant in connection with the Lease, including, without limitation, any payments to Landlord of construction costs for the Premises. The extension of the Commencement Date and Tenant’s.

Delayed Occupancy. If (i) Landlord fails shall use reasonable diligence to tender substantially complete any Landlord's Work on or before the Commencement Date specified in the Basic Lease Provisions. However, this Lease shall not be void or voidable, nor shall Landlord or its agents or contractors have any liability to Tenant, by reason of Landlord's failure co substantially complete Landlord's Work by the Commencement Date specified in the Basic Lease Provisions, or by reason of Landlord's failure to deliver possession of the Premises due to Tenant according any other cause beyond Landlord's reasonable control, and postponement of Tenant's rental obligation prior to Paragraph 2 above on or before the Scheduled Commencement Date (as it may be extended for “Force Majeure Delays,” as defined in Paragraph 14 below), Landlord will not be in default or liable in damages to Tenant, nor will the obligations delivery of Tenant be affected, provided, however, that: (a) the Commencement Date will be extended automatically by one day for each day of the period after the Scheduled Commencement Date to the day on which Landlord tenders possession of the Premises shall be Tenant's exclusive remedy and in sole satisfaction or all claims Tenant might otherwise have by reason of Landlord's failure to Tenant according to Paragraph 2 above, less any portion of that period attributable to Tenant’s delays as more particularly described in Paragraph 15 below; and (b) if deliver the Premises by the Commencement Date (as it may be adjusted because of Tenant’s delays) has not occurred on or before specified in the date that is: (i) 45 days after the Scheduled Commencement Date, then Tenant will receive one day of abated Base Rent for each day that elapses after the 45-day period until the Commencement Date occurs, which abatement shall apply to Base Rent payments first coming due after the Commencement Date; and Basic Lease Provisions. (ii) 120 days after the Scheduled Commencement Date, then at any time within 10 business days after such date (but before Landlord has tendered possession Time is of the Premises as provided under Paragraph 2), Tenant will have the right to give Landlord notice of Tenant’s intent to terminate the Lease (“Tenant’s Termination Notice”), and if Landlord has not tendered possession of the Premises on or before the date that is 30 days after the date Landlord receives Tenant’s Termination Notice, the Lease will automatically terminate at the close of business on the 30th day after the date Landlord receives Tenant’s Termination Notice. Upon a termination under Paragraph 4(b) above, each party will, upon the other’s request, execute and deliver an agreement in recordable form containing a release and surrender of all right, title and interest in and to the Lease; neither Landlord nor Tenant will have any further obligations to each other under the Lease; all improvements to the Premises will become and remain the property of Landlord; and Landlord will refund to Tenant all sums paid to Landlord by Tenant essence in connection with the Lease, including, without limitation, any payments delivery to Landlord of construction costs for each and every drawing, plan, specification, schedule or other item required to be given by Tenant to Landlord or to be approved by Tenant pursuant to the Premises. The extension schedule in and provisions of the Scope of Work. Accordingly, notwithstanding any contrary provision of this Lease, if Landlord is delayed in the Substantial Completion of Landlords Work as a result of (a) Tenant's failure to approve plans, specifications, changes, cost estimates and other items within the time limits specified therefor in the Work Letter, or (b) any change by Tenant in said plans, specifications, or other items after the expiration of such time limits, or (c) any default by Tenant relating to its obligations hereunder or under the Scope of Work, then, in any or all such instances and without limitation as to any other right or remedy available to Landlord. Landlord may under clause (c) of Paragraph 3.2 determine in its sole reasonable discretion that the actual Commencement Date and Tenant’sis the date that Substantial Completion of Landlord's Work would have occurred but for such delay.

Delayed Occupancy. If (i) Landlord fails shall use reasonable diligence to tender substantially complete any Landlord's Work on or before the Commencement Date specified in the Basic Lease Provisions. However, this Lease shall not be void or voidable, nor shall Landlord or its agents or contractors have any liability to Tenant, by reason of Landlord's failure to substantially complete Landlord's Work by the Commencement Date specified in the Basic Lease Provisions, or by reason of Landlord's failure to deliver possession of the Premises due to Tenant according any other cause beyond Landlord's reasonable control, and postponement of Tenant's rental obligation prior to Paragraph 2 above on or before the Scheduled Commencement Date (as it may be extended for “Force Majeure Delays,” as defined in Paragraph 14 below), Landlord will not be in default or liable in damages to Tenant, nor will the obligations delivery of Tenant be affected, provided, however, that: (a) the Commencement Date will be extended automatically by one day for each day of the period after the Scheduled Commencement Date to the day on which Landlord tenders possession of the Premises shall be Tenant's exclusive remedy and in sole satisfaction of all claims Tenant might otherwise have by reason of Landlord's failure to Tenant according to Paragraph 2 above, less any portion of that period attributable to Tenant’s delays as more particularly described in Paragraph 15 below; and (b) if deliver the Premises by the Commencement Date (as it may be adjusted because of Tenant’s delays) has not occurred on or before specified in the date that is: (i) 45 days after the Scheduled Commencement Date, then Tenant will receive one day of abated Base Rent for each day that elapses after the 45-day period until the Commencement Date occurs, which abatement shall apply to Base Rent payments first coming due after the Commencement Date; and Basic Lease Provisions. (ii) 120 days after the Scheduled Commencement Date, then at any time within 10 business days after such date (but before Landlord has tendered possession Time is of the Premises as provided under Paragraph 2), Tenant will have the right to give Landlord notice of Tenant’s intent to terminate the Lease (“Tenant’s Termination Notice”), and if Landlord has not tendered possession of the Premises on or before the date that is 30 days after the date Landlord receives Tenant’s Termination Notice, the Lease will automatically terminate at the close of business on the 30th day after the date Landlord receives Tenant’s Termination Notice. Upon a termination under Paragraph 4(b) above, each party will, upon the other’s request, execute and deliver an agreement in recordable form containing a release and surrender of all right, title and interest in and to the Lease; neither Landlord nor Tenant will have any further obligations to each other under the Lease; all improvements to the Premises will become and remain the property of Landlord; and Landlord will refund to Tenant all sums paid to Landlord by Tenant essence in connection with the Lease, including, without limitation, any payments delivery to Landlord of construction costs for each and every drawing, plan, specification, schedule or other item required to be given by Tenant to Landlord or to be approved by Tenant pursuant to the Premises. The extension schedule in and provisions of the Scope of Work. Accordingly, notwithstanding any contrary provision of this Lease, if Landlord is delayed in the Substantial Completion of Landlord's Work as a result of (a) Tenant's failure to approve plans, specifications, changes, cost estimates and other items within the time limits specified therefor in the Work Letter, or (b) any change by Tenant in said plans, specifications. or other items after the expiration of such time limits, or (c) any default by Tenant relating to its obligations hereunder or under the Scope of Work, then, in any or all such instances and without limitation as to any other right or remedy available to Landlord, Landlord may under clause (c) of Paragraph 3.2 determine in its sole reasonable discretion that the actual Commencement Date and Tenant’sis the date that Substantial Completion of Landlord's Work would have occurred but for such delay.

Delayed Occupancy. If (a) Landlord fails to tender possession of the Premises to Tenant according to Paragraph 2 above shall Substantially Complete any Landlord's Work on or before the Scheduled Commencement Date (as it may be extended for “Force Majeure Delays,” as defined specified in Paragraph 14 below), Landlord will not be in default or liable in damages to Tenant, nor will the obligations of Tenant be affectedBasic Lease Provisions, provided, however, that: (a) that the Commencement Date will for purposes of Landlord's obligation with respect to Landlord's Work shall be extended automatically by one (1) day for each day (i) that the Lease is not fully executed by August 22, 1994, (ii) that Tenant causes a delay in Landlord's Work, and (iii) that an event of force majeure delays Landlord's Work. However, this Lease shall not be void or voidable, nor shall Landlord or its agents or contractors have any liability to Tenant, by reason of Landlord's failure to substantially complete Landlord's Work by the period after the Scheduled Commencement Date specified in the Basic Lease Provisions, or by reason of Landlord's failure to the day on which Landlord tenders deliver possession of the Premises due to any other cause beyond Landlord's reasonable control, arid postponement of Tenant's rental obligation prior to delivery of possession of the Premises shall be Tenant's exclusive remedy and in sole satisfaction of all claims Tenant according might otherwise have by reason of Landlord's failure to Paragraph 2 above, less any portion of that period attributable to Tenant’s delays as more particularly described in Paragraph 15 below; and (b) if deliver the Premises by the Commencement Date (as it may be adjusted because of Tenant’s delays) has specified in the Basic Lease Provisions. Notwithstanding the foregoing, if the Premises are not occurred Substantially Completed on or before the termination date that is: under the Existing Lease (ias defined in Section 22) 45 days after or the Scheduled Commencement Date, then Tenant will receive one day date Tenant's right to occupy a portion of abated Base Rent for each day that elapses after its existing space on the 45-day period until the Commencement Date occurs, which abatement shall apply to Base Rent payments first coming due after the Commencement Date; and (ii) 120 days after the Scheduled Commencement Date, then at any time within 10 business days after such date (but before Landlord has tendered possession ninth floor of the Premises Building under a certain sublease with Preferred Health Network ("Sublease") expires, provided such delay in Landlord's Work has not been caused by Tenant and the termination of the Existing Lease or the Sublease, as provided under Paragraph 2)the case may be, does not result from Tenant's default, Tenant will shall have the right to give Landlord notice of Tenant’s intent continue to terminate occupy its entire existing space on the Lease (“Tenant’s Termination Notice”), and if Landlord has not tendered possession ninth floor of the Premises on or before the date that is 30 days after the date Landlord receives Tenant’s Termination Notice, the Lease will automatically terminate at the close of business Building on the 30th day after same terms and conditions as the date Landlord receives Tenant’s Termination Notice. Upon a termination under Paragraph 4(bExisting Lease. (b) above, each party will, upon Time is of the other’s request, execute and deliver an agreement in recordable form containing a release and surrender of all right, title and interest in and to the Lease; neither Landlord nor Tenant will have any further obligations to each other under the Lease; all improvements to the Premises will become and remain the property of Landlord; and Landlord will refund to Tenant all sums paid to Landlord by Tenant essence in connection with the Lease, including, without limitation, any payments delivery to Landlord of construction costs for each and every drawing, plan, specification, schedule or other item required to be given by Tenant to Landlord or to be approved by Tenant pursuant to the Premises. The extension schedule in and provisions of the Scope of Work. Accordingly, notwithstanding any contrary provision of this Lease, if Landlord is delayed in the Substantial Completion of Landlord's Work as a result of (i) Tenant's failure to approve plans, specifications, changes, cost estimates and other items within the time limits specified therefor in the Scope of Work, or (ii) any change by Tenant in said plans, specifications, or other items after the expiration of such time limits, or ;iii) any default by Tenant relating to its obligations hereunder or under the Scope of Work, then, in any or all such instances and without limitation as to any other right or remedy available to Landlord, Landlord may under clause (c) of Paragraph 3.2 determine in its sole reasonable discretion that the actual Commencement Date and Tenant’sis the date that Substantial Completion of Landlord's Work would have occurred but for such delay.

Delayed Occupancy. If Landlord fails to tender cannot deliver possession of the Demised Premises to Tenant according by the Lease Commencement Date, the Lease shall not be void or voidable, nor shall Landlord be liable to Paragraph 2 above Tenant for any loss or damage resulting therefrom; in that event the term of this Lease shall be amended to commence on or before the Scheduled Commencement Date date when Landlord can deliver possession, and all corresponding dates of the Lease shall be adjusted accordingly in conjunction with paragraph 1 (g) above. If as it may a result of such postponement, the term would begin on other than the first day of a month, the commencement date shall be extended the first day of that month; however, the Tenant shall pay rent pro-rated for “Force Majeure Delays,” as defined such partial month's occupancy in Paragraph 14 below)conjunction with paragraph 4. above. Anything to the contrary notwithstanding, in the event that Landlord has not delivered possession of the Demised Premises prior to May 15, 1997, Landlord will not be in default or liable in damages agrees to make available to Tenant, nor will under the obligations same terms and conditions set forth herein, thirteen thousand (13,000) square feet of Tenant be affected, provided, however, that: (a) warehouse space within the Commencement Date will be extended automatically Port 95-3 building which is owned by one day for each day an affiliate of Landlord. Upon the commencement of the period after the Scheduled Commencement Date to the day on which Landlord tenders possession of the Premises to Tenant according to Paragraph 2 aboveLease Term, less any portion of that period attributable to Tenant’s delays as more particularly described in Paragraph 15 below; and (b) if the Commencement Date (as it may be adjusted because all of Tenant’s delays) has not occurred on or before the date that is: (i) 45 days after the Scheduled Commencement Date, then Tenant will receive one day of abated Base Rent for each day that elapses after the 45-day period until the Commencement Date occurs, which abatement shall apply to Base Rent payments first coming due after the Commencement Date; and (ii) 120 days after the Scheduled Commencement Date, then at any time within 10 business days after such date (but before Landlord has tendered possession of the Premises as provided under Paragraph 2), Tenant will have the right to give Landlord notice of Tenant’s intent to terminate the Lease (“Tenant’s Termination Notice”), and if Landlord has not tendered possession of the Premises on or before the date that is 30 days after the date Landlord receives Tenant’s Termination Notice, the Lease will automatically terminate at the close of business on the 30th day after the date Landlord receives Tenant’s Termination Notice. Upon a termination under Paragraph 4(b) above, each party will, upon the other’s request, execute and deliver an agreement in recordable form containing a release and surrender of all right, title and interest 's rights in and to the premises in the Port 95-3 building shall terminate. In the event that Landlord has not obtained a Certificate of Occupancy for the warehouse portion of the Demised Premises with ninety (90) days from the date of this Lease; neither , (the "Anticipated Delivery Date") Landlord nor shall give the Tenant a credit against Rent equal to $85.93 for every day beyond the Anticipated Delivery Date until a Certificate of Occupancy for the warehouse portion of the Demised Premises has been obtained. In the event that Landlord has not obtained a Certificate of Occupancy for the warehouse portion of the Demised Premises prior to one hundred eighty (180) days from the date of this Lease (the "Termination Date"), Tenant shall have the option of either (i) terminating the Lease or (ii) extending the Termination Date for an additional forty five (45) days. Tenant shall notify Landlord in writing of its decision within five (5) business days of the Termination Date. If Tenant fails to notify Landlord of its decision within five (5) days of the Termination Date, then Landlord shall have the option of terminating the Lease or extending the Termination Date. Landlord will have any further obligations to each other under obtain a Certificate of Occupancy for the Lease; all improvements office portion of the Demised Premises and will deliver occupancy of said portion to the Premises will become and remain the property of Landlord; and Landlord will refund to Tenant all sums paid to Landlord by Tenant in connection with the Lease, including, without limitation, any payments to Landlord of construction costs for the Premises. The extension within thirty (30) days after commencement of the Commencement Lease Term (the "Office Completion Date"). In the event the office portion is not completed by the Office Completion Date, Tenant shall be entitled to a credit against Rent of $25.00 for every day beyond the Office Completion Date and until delivery of possession of the office portion to the Tenant’s.