Common use of Delivery of Additional Premises Clause in Contracts

Delivery of Additional Premises. Landlord shall deliver the 11th Floor Premises and the 10th Floor Premises to Tenant with Landlord’s Work (as defined on attached Exhibit C) completed, but otherwise in their as-is condition (“Delivery Condition”). The delivery of a particular Additional Premises Floor to Tenant in Delivery Condition is referred to hereinafter as “Delivery” as to that floor. (For avoidance of doubt, the completion of any Additional Landlord Work being performed by Landlord on an Additional Premises Floor pursuant to attached Exhibit E is not required for Delivery of the Additional Premises Floor to have occurred.) The parties presently estimate that Landlord will deliver the 11th Floor Premises to Tenant in Delivery Condition on or about November 1, 2012 (the “11th Floor Target Delivery Date”), and that Landlord will deliver the 10th Floor Premises to Tenant in Delivery Condition on or about December 1, 2012 (the “10th Floor Target Delivery Date”)(the 11th Floor Target Delivery Date and the 10th Floor Target Delivery Date are sometimes referred to individually as a “Target Delivery Date”). In the event of any delay in Delivery of an Additional Premises Floor resulting from Force Majeure (as defined below), Landlord shall promptly deliver notice to Tenant specifying the nature of the delay in question, and a good faith estimate of the anticipated length of the delay resulting therefrom (provided that Landlord will not be liable for any inaccuracy in the estimated delay contained in any such notice) and will thereafter promptly update Tenant in writing if and to the extent that Landlord’s good faith determination of the anticipated length of such Force Majeure delay changes in any material way. If (x) Landlord does not achieve Delivery as to a particular Additional Premises Floor on or before the date one (1) month following the Target Delivery Date applicable to such Additional Premises Floor (such date being referred to as the “Outside Delivery Date for Additional Premises Rent Abatement” for such Additional Premises Floor, as such date may have been extended pursuant to the extension provisions in the penultimate grammatical paragraph of this Paragraph 2.a.) and (y) the Tenant Improvements (as defined in Paragraph 2.c. below) on the applicable Additional Premises Floor are not Substantially Completed (as defined in Paragraph 2.c. below) on or before the date (“Tenant’s Target Completion Date”) that is the later of (i) May 1, 2013, or (ii) the scheduled completion date for the subject Additional Premises Floor in the Construction Schedule (as defined in Paragraph 0.x.xx. below), due to Landlord’s failure to achieve Delivery of the subject Additional Premises Floor on or before the Outside Delivery Date for Additional Premises Rent Abatement for such Additional Premises Floor, then, for each day after the applicable Tenant’s Target Completion Date that the subject Tenant Improvements are not Substantially Completed due to the fact that Delivery did not occur on or before the subject Outside Delivery Date for Rent Abatement (as the same may have been extended pursuant to the extension provisions below), Tenant shall receive one day of abatement of Monthly Rent for that Additional Premises Floor, which abatement shall commence on the Rent Commencement Date (as defined in Paragraph 3 below). Notwithstanding the above, the aforementioned rent abatement is conditioned upon the Tenant Improvements for the subject Additional Premises Floor consisting of improvements that could reasonably have been completed, using diligent and commercially reasonable efforts (but, as described below, not work on an overtime or “after-hours” basis) within a four (4) month construction period if Tenant’s Contractor used good faith and commercially reasonable and diligent efforts to Substantially Complete the Tenant Improvements on the Additional Premises Floor within such period. Further, if the Tenant Improvements for an Additional Premises Floor are not Substantially Completed on or before Tenant’s Target Completion Date due in part to delays caused by (i) Tenant not having commenced the Tenant Improvements promptly following Delivery, (ii) changes made to Tenant’s plans after commencement of construction which delay the construction process originally provided for in the Construction Schedule, (iii) the inclusion in the Tenant Improvements of “long lead” materials (such as fabrics, paneling, carpeting or other items that are not readily available within industry standard lead times (e.g., custom made items that require time to procure beyond that customarily required for standard items, or items that are currently out of stock and will require extra time to back order) and for which suitable substitutes exist) and/or (iv) any other delays caused by Tenant, Tenant’s Contractor, subcontractors, vendors, architects, consultants or other agents in commencing or completing the Tenant Improvements (each a “ Tenant Caused Substantial Completion Delay”), then the rental abatement shall not apply to the extent the delay in Substantial Completion of the subject Tenant Improvements beyond Tenant’s Target Completion Date for such Tenant Improvements was caused by such Tenant Caused Substantial Completion Delay. For purposes of clause (iv) in the immediately preceding sentence, so long as Tenant’s Contractor meets or exceeds the milestone dates described in the Construction Schedule (as defined in Paragraph 0.x.xx. below), no delay in the completion of the Tenant Improvements on the part of Tenant’s Contractor shall be deemed to have occurred. Tenant shall not be required to use overtime labor in order to Substantially Complete the Tenant Improvements by Tenant’s Target Completion Date if the failure to Substantially Complete the Tenant Improvements by such date will result from Landlord’s failure to achieve Delivery by the Outside Delivery Date for Additional Premises Rent Abatement, as opposed to resulting from a Tenant Caused Substantial Completion Delay(s). However, if Landlord is responsible for the delay in accordance with the foregoing provisions, and if Landlord agrees (at Landlord’s sole option) to pay the increase in Tenant’s construction costs that will result from use of overtime labor so that Tenant is able to Substantially Complete the Tenant Improvements on the subject Additional Premises Floor on or before Tenant’s Target Completion Date, then Tenant shall, if reasonably feasible, employ overtime labor, provided that Landlord makes the funds for the increased construction costs (which will include, without limitation, the “overtime” portion of wages to laborers, as well as other costs (if any) necessarily and reasonably incurred as a result of the modification of the Construction Schedule, such as increased costs to expedite material deliveries, etc.) available for timely disbursement (in accordance with an industry-standard payment cycle) during the course of construction. Upon the request of Landlord or Landlord’s Contractor from time to time during Tenant’s construction of the Tenant Improvements, Tenant shall advise Landlord of Tenant’s progress in Substantially Completing the Tenant Improvements and whether overtime labor would be required in order for Tenant to Substantially Complete the Tenant Improvements on or before Tenant’s Target Completion Date, so that Landlord can determine whether Landlord elects to pay for the overtime costs in order to enable Tenant to Substantially Complete the Tenant Improvements on or before Tenant’s Target Completion Date. In addition to the foregoing, if Landlord fails to achieve Delivery of any Additional Premises Floor on or before the date (the “Outside Delivery Date for Termination”) that is three (3) months following the Target Delivery Date for the subject Additional Premises Floor (which Target Delivery Date is set forth in the second sentence of the first grammatical paragraph of this Paragraph 2.a.), then Tenant may notify Landlord in writing within ten (10) Business Days following the Outside Delivery Date for Termination (but in any event prior to Delivery) that Tenant elects to terminate Tenant’s lease of the subject Additional Premises Floor and, if Delivery of the subject Additional Premises Floor does not occur within thirty (30) days following Landlord’s receipt of such termination notice, then Tenant’s lease of the subject Additional Premises Floor shall terminate. However, if Delivery of the applicable Additional Premises Floor occurs prior to the end of such 30-day period, then Tenant’s lease of the Additional Premises Floor shall continue in effect. If Tenant is entitled to terminate Tenant’s lease of an Additional Premises Floor pursuant to the foregoing, but does not exercise such termination right, Tenant shall still be entitled to the rent abatement as to that Additional Premises Floor pursuant to the provisions above. In the event Tenant’s lease of a particular Additional Premises Floor is terminated pursuant to this grammatical paragraph, then the Letter of Credit (which was increased pursuant to Paragraph 5 below to a total of $6,004,180.00) shall be reduced by an amount equal to Eight Hundred Fifty Two Thousand Five Hundred Ninety Dollars ($852,590.00) on account of the deletion of that Additional Premises Floor from the Lease. For avoidance of doubt, if both Additional Premises Floors are deleted from the Lease pursuant to this grammatical paragraph, the Letter of Credit would be reduced by a total of One Million Seven Hundred Five Thousand One Hundred Eighty Dollars ($1,705,180.00) so that the amount of the Letter of Credit would be Four Million Two Hundred Ninety Nine Thousand Dollars ($4,299,000.00). The Outside Delivery Date for Additional Premises Rent Abatement and the Outside Delivery Date for Termination, as to each Additional Premises Floor, will be extended by the length of any delays in Delivery that result from strikes, lockout, labor disputes, shortages of material or labor, fire or other casualty, acts of God or any other cause beyond the commercially reasonable control of Landlord (“Force Majeure”) and/or delays resulting from the act or failure to act of Tenant or Tenant’s Contractor (a “Tenant Delay of Landlord’s Work”); provided, however, that (x) extension of the Outside Delivery Date for Termination on account of Force Majeure shall not exceed a total of ninety (90) days and (y) delays incurred by Landlord in obtaining permits required for Landlord’s Work shall not constitute Force Majeure delays. As provided in attached Exhibit E, delays in Delivery of an Additional Premises Floor caused by Tenant’s request for, or the performance of, Additional Landlord Work constitute Tenant Delays of Landlord’s Work. Notwithstanding the foregoing, in the event any act or omission of Tenant, in Landlord’s reasonable determination, constitutes a Tenant Delay of Landlord’s Work, Landlord will, promptly after determining that the act or omission will create a Tenant Delay of Landlord’s Work, deliver notice to Tenant specifying the action or omission in question, and if Tenant cures such action or omission within five (5) Business Days following receipt of such notice, no Tenant Delay of Landlord’s Work shall be deemed to have occurred. Notwithstanding the foregoing, if Tenant fails to deliver to Landlord, on or before July 1, 2012 (as required by Paragraph 2 of attached Exhibit C) a conceptual plan designating which improvements on an Additional Premises Floor shall not be demolished by Landlord, Tenant shall be deemed to have waived its right to deliver such notice as to that Additional Premises Floor and Landlord shall continue with the demolition of all of the then existing improvements on the subject Additional Premises Floor in accordance with Paragraph 2 of Exhibit C and no Tenant Delay of Landlord’s Work shall result therefrom. Notwithstanding anything to the contrary above, Landlord will use reasonable efforts, without additional cost to Landlord unless Tenant agrees in writing to reimburse Landlord for such costs, to mitigate the effects of any Tenant Delay of Landlord’s Work. If and to the extent the Landlord reasonably incurs a net increased cost (taking into account any cost saving Tenant might have facilitated by its actions) in the performance of Landlord’s Work as a direct result of any Tenant Delay of Landlord’s Work (as reasonably evidenced by Landlord, with supporting documentation), Tenant will be responsible for such reasonable increased costs and Landlord’s Allowance (as defined in Paragraph 2e. below) will be decreased by the amount of such reasonable increased cost and, if the net increased cost of Landlord’s Work exceeds Landlord’s Allowance, then Tenant shall pay to Landlord a penalty equal to such excess, which penalty shall be paid not later than ten (10) Business Days following the later of (i) the Rent Commencement Date (or, if the Lease is terminated prior to the Rent Commencement Date due to an Event of Default, the date of Lease termination) and (ii) the date Landlord delivers a written invoice to Tenant for such excess with supporting invoices evidencing such excess cost. The rent abatement and termination rights provided for above in this Paragraph 2.a. shall be Tenant’s sole remedy in the event of Landlord’s failure to achieve Delivery of any Additional Premises Floor by the by the required dates.

Delivery of Additional Premises. Landlord shall deliver the 11th Floor Premises and the 10th Floor Premises to Tenant with Landlord’s Work (as defined on attached Exhibit C) completed, but otherwise in their as-is condition (“Delivery Condition”). The delivery of a particular Additional Premises Floor to Tenant in Delivery Condition is referred to hereinafter as “Delivery” as to that floor. (For avoidance of doubt, the completion of any Additional Landlord Work being performed by Landlord on an Additional Premises Floor pursuant to attached Exhibit E is not required for Delivery tender possession of the Additional Premises Floor to have occurred.) The parties presently estimate that Landlord will deliver the 11th Floor Premises to Tenant in Delivery Condition on or about November 1, 2012 (the “11th Floor Target Delivery Date”), and that Landlord will deliver the 10th Floor Premises to Tenant in Delivery Condition on or about December 1, 2012 (the “10th Floor Target Delivery Date”)(the 11th Floor Target Delivery Date and the 10th Floor Target Delivery Date are sometimes referred to individually as a “Target Delivery Date”). In the event of any delay in Delivery of an Additional Premises Floor resulting from Force Majeure (as defined below), Landlord shall promptly deliver notice to Tenant specifying the nature of the delay in questiondate the work to be performed by Landlord to repair the sewer pipes, lines and a good faith estimate of the anticipated length of the delay resulting therefrom (provided that Landlord will not be liable for any inaccuracy in the estimated delay contained in any such notice) and will thereafter promptly update Tenant in writing if and related facilities within or adjacent to the extent that Landlord’s good faith determination of the anticipated length of such Force Majeure delay changes in any material way. If (x) Landlord does not achieve Delivery as to a particular Additional Premises Floor on or before the date one (1) month following the Target Delivery Date applicable to such Additional Premises Floor (such date being referred to as the “Outside Delivery Date for Additional Premises Rent Abatement” for such Additional Premises Floor, as such date may have been extended pursuant to the extension provisions in the penultimate grammatical paragraph of this Paragraph 2.a.) and (y) the Tenant Improvements (as defined in Paragraph 2.c. below) on the applicable Additional Premises Floor are not Substantially Completed (as defined in Paragraph 2.c. below) on or before the date (“Tenant’s Target Completion Date”) that is the later of (i) May 1, 2013, or (ii) the scheduled completion date for the subject Additional Premises Floor in the Construction Schedule (as defined in Paragraph 0.x.xx. below), due to Landlord’s failure to achieve Delivery of the subject Additional Premises Floor on or before the Outside Delivery Date for Additional Premises Rent Abatement for such Additional Premises Floor, then, for each day after the applicable Tenant’s Target Completion Date that the subject Tenant Improvements are not Substantially Completed due to the fact that Delivery did not occur on or before the subject Outside Delivery Date for Rent Abatement (as the same may have been extended pursuant to the extension provisions below), Tenant shall receive one day of abatement of Monthly Rent for that Additional Premises Floor, which abatement shall commence on the Rent Commencement Date (as defined in Paragraph 3 below). Notwithstanding the above, the aforementioned rent abatement is conditioned upon the Tenant Improvements for the subject Additional Premises Floor consisting of improvements that could reasonably have been completed, using diligent and commercially reasonable efforts (but, as described below, not work on an overtime or “after-hours” basis) within a four (4) month construction period if Tenant’s Contractor used good faith and commercially reasonable and diligent efforts to Substantially Complete the Tenant Improvements on the Additional Premises Floor within such period. Further, if the Tenant Improvements for an Additional Premises Floor are not Substantially Completed on or before Tenant’s Target Completion Date due in part to delays caused by (i) Tenant not having commenced the Tenant Improvements promptly following Delivery, (ii) changes made to Tenant’s plans after commencement of construction which delay the construction process originally provided for in the Construction Schedule, (iii) the inclusion in the Tenant Improvements of “long lead” materials (such as fabricswork being the “Sewer Work”) is completed, paneling, carpeting or other items that are not readily available within industry standard lead times (e.g., custom made items that require time such Sewer Work to procure beyond that customarily required for standard items, or items that are currently out of stock and will require extra time to back order) and for which suitable substitutes exist) and/or (iv) any other delays caused by Tenant, Tenant’s Contractor, subcontractors, vendors, architects, consultants or other agents in commencing or completing the Tenant Improvements (each a “ Tenant Caused Substantial Completion Delay”), then the rental abatement shall not apply to the extent the delay in Substantial Completion of the subject Tenant Improvements beyond Tenant’s Target Completion Date for such Tenant Improvements was caused by such Tenant Caused Substantial Completion Delay. For purposes of clause (iv) in the immediately preceding sentence, so long as Tenant’s Contractor meets or exceeds the milestone dates described in the Construction Schedule (as defined in Paragraph 0.x.xx. below), no delay in the completion of the Tenant Improvements on the part of Tenant’s Contractor shall be deemed to have occurred. Tenant shall not be required to use overtime labor in order to Substantially Complete the Tenant Improvements by Tenant’s Target Completion Date if the failure to Substantially Complete the Tenant Improvements by such date will result from Landlord’s failure to achieve Delivery by the Outside Delivery Date for Additional Premises Rent Abatement, as opposed to resulting from a Tenant Caused Substantial Completion Delay(s). However, if Landlord is responsible for the delay in accordance with the foregoing provisions, and if Landlord agrees (at Landlord’s sole optioncost and expense. As of the Amendment Effective Date, Landlord represents that the Sewer Work is substantially complete but for repairs to (or replacement of) to pay the increase in a few feet of cracked pipe, that Tenant may not use depending on Tenant’s construction costs plumbing plans for the Additional Premises. If Tenant’s plumbing plans for the Additional Premises reflect an abandonment of the portion of such pipes that will result from are cracked, no further Sewer Work shall be required. If, however, Tenant’s plumbing plans for Additional Premises reflect the use of overtime labor so that Tenant is able to Substantially Complete the Tenant Improvements on the subject Additional Premises Floor on some or before Tenant’s Target Completion Date, then Tenant shall, if reasonably feasible, employ overtime labor, provided that Landlord makes the funds for the increased construction costs (which will include, without limitationall of such cracked pipes, the “overtime” portion of wages to laborers, as well as other costs (if any) necessarily and reasonably incurred as a result of the modification of the Construction Schedule, such as increased costs to expedite material deliveries, etc.) available for timely disbursement (in accordance with an industry-standard payment cycle) during the course of construction. Upon the request of Landlord or remaining Sewer Work shall be completed at Landlord’s Contractor from time to time during Tenant’s construction of the Tenant Improvements, Tenant shall advise Landlord of Tenant’s progress in Substantially Completing the Tenant Improvements sole cost and whether overtime labor would be required in order for Tenant to Substantially Complete the Tenant Improvements on or before Tenant’s Target Completion Date, so that Landlord can determine whether Landlord elects to pay for the overtime costs in order to enable Tenant to Substantially Complete the Tenant Improvements on or before Tenant’s Target Completion Date. In addition to the foregoing, if Landlord fails to achieve Delivery of any Additional Premises Floor on or before the date (the “Outside Delivery Date for Termination”) that is three (3) months following the Target Delivery Date for the subject Additional Premises Floor (which Target Delivery Date is set forth in the second sentence of the first grammatical paragraph of this Paragraph 2.a.), then Tenant may notify Landlord in writing expense within ten (10) Business Days days following the Outside Delivery Date for Termination (but in any event prior to Delivery) that Tenant elects to terminate approval by Landlord of Tenant’s lease of the subject Additional Premises Floor and, if Delivery of the subject Additional Premises Floor does not occur within thirty (30) days following Landlord’s receipt of such termination notice, then Tenant’s lease of the subject Additional Premises Floor shall terminate. However, if Delivery of the applicable Additional Premises Floor occurs prior to the end of such 30-day period, then Tenant’s lease of plumbing plans for the Additional Premises Floor shall continue in effect. If Tenant is entitled to terminate Tenant’s lease of an Additional Premises Floor pursuant to the foregoing, but does not exercise such termination right, Tenant shall still be entitled to the rent abatement as to that Additional Premises Floor pursuant to the provisions above. In the event Tenant’s lease of a particular Additional Premises Floor is terminated pursuant to this grammatical paragraph, then the Letter of Credit (which was increased pursuant to Paragraph 5 below to a total of $6,004,180.00) shall be reduced by an amount equal to Eight Hundred Fifty Two Thousand Five Hundred Ninety Dollars ($852,590.00) on account of the deletion of that Additional Premises Floor from the Lease. For avoidance of doubt, if both Additional Premises Floors are deleted from the Lease pursuant to this grammatical paragraph, the Letter of Credit would be reduced by a total of One Million Seven Hundred Five Thousand One Hundred Eighty Dollars ($1,705,180.00) so that the amount of the Letter of Credit would be Four Million Two Hundred Ninety Nine Thousand Dollars ($4,299,000.00). The Outside Delivery Date for Additional Premises Rent Abatement and the Outside Delivery Date for Termination, as to each Additional Premises Floor, will be extended by the length of any delays in Delivery that result from strikes, lockout, labor disputes, shortages of material or labor, fire or other casualty, acts of God or any other cause beyond the commercially reasonable control of Landlord (“Force Majeure”) and/or delays resulting from the act or failure to act of Tenant or Tenant’s Contractor (a “Tenant Delay of Landlord’s Work”)Premises; provided, however, that (x) extension if Landlord’s completion of such remaining Sewer Work causes a delay in Tenant’s commencement of the Outside Delivery Additional Tenant Improvements (and Tenant has obtained all necessary building permits for the Additional Tenant Improvements), the Additional Premises Rent Commencement Date shall be extended day-for-day until such remaining Sewer Work is completed. Tenant shall utilize such early access to ready the Additional Premises for Termination on account of Force Majeure business. Such early access shall not exceed a total modify the Additional Premises Rent Commencement Date. No representations, inducements, understanding or anything of ninety (90) days and (y) delays incurred any nature whatsoever, made, stated or represented by Landlord in obtaining permits required or anyone acting for or on Landlord’s behalf, either orally or in writing, have induced Tenant to enter into this Amendment, and Tenant acknowledges, represents and warrants that Tenant has entered into this Amendment under and by virtue of Tenant’s own independent investigation. Except for the Sewer Work and Landlord’s representations and warranties in this Amendment, Tenant hereby shall accept the Additional Premises in its current “as is” and “where is” condition without warranty of any kind, express or implied, including, without limitation, any warranty as to title, physical condition or the presence or absence of Hazardous Materials. Subject to Landlord’s obligation to complete the Sewer Work at its sole cost and expense, if the Additional Premises are not constitute Force Majeure delaysin all respects entirely suitable for the use or uses to which the Additional Premises or any part thereof will be put, then it is the sole responsibility and obligation of Tenant to take such action as may be necessary to place the Additional Premises in a condition entirely suitable for such use or uses. As provided The work to be performed and improvements made by Tenant at the Additional Premises (which may include fencing and security measures reasonably acceptable to Landlord and Tenant) shall substantially conform to the conceptual plans attached as Exhibit “C-1” to this Amendment (the “Additional Tenant Improvements”) and shall be performed in accordance with the terms of the Lease. The Additional Premises will be delivered to Tenant in a gray-shell condition described in attached Exhibit E“C-2” to this Amendment. IN CONNECTION WITH THE ABOVE, delays in Delivery of an Additional Premises Floor caused by Tenant’s request forTENANT HEREBY ACKNOWLEDGES AND REPRESENTS TO LANDLORD, or the performance ofAND THE GROUND LESSOR THAT TENANT HAS HAD AMPLE OPPORTUNITY TO INSPECT AND EVALUATE THE ADDITIONAL PREMISES AND THE FEASIBILITY OF THE USES AND ACTIVITIES TENANT IS ENTITLED TO CONDUCT THEREON; THAT TENANT IS EXPERIENCED; THAT TENANT WILL RELY ENTIRELY ON TENANT’S EXPERIENCE, Additional Landlord Work constitute Tenant Delays of Landlord’s Work. Notwithstanding the foregoing, in the event any act or omission of Tenant, in Landlord’s reasonable determination, constitutes a Tenant Delay of Landlord’s Work, Landlord will, promptly after determining that the act or omission will create a Tenant Delay of Landlord’s Work, deliver notice to Tenant specifying the action or omission in question, and if Tenant cures such action or omission within five EXPERTISE AND ITS OWN INSPECTION OF THE ADDITIONAL PREMISES IN ITS CURRENT STATE IN PROCEEDING WITH THIS AMENDMENT SUBJECT TO LANDLORD’S OBLIGATION TO COMPLETE THE SEWER WORK AND LANDLORD’S EXPRESS REPRESENTATIONS AND WARRANTIES IN THIS AMENDMENT); TENANT ACCEPTS THE ADDITIONAL PREMISES IN ITS PRESENT CONDITION (5) Business Days following receipt of such notice, no Tenant Delay of Landlord’s Work shall be deemed to have occurred. Notwithstanding the foregoing, if Tenant fails to deliver to Landlord, on or before July 1, 2012 (as required by Paragraph 2 of attached Exhibit C) a conceptual plan designating which improvements on an Additional Premises Floor shall not be demolished by Landlord, Tenant shall be deemed to have waived its right to deliver such notice as to that Additional Premises Floor and Landlord shall continue with the demolition of all of the then existing improvements on the subject Additional Premises Floor in accordance with Paragraph 2 of Exhibit C and no Tenant Delay of Landlord’s Work shall result therefrom. Notwithstanding anything to the contrary above, Landlord will use reasonable efforts, without additional cost to Landlord unless Tenant agrees in writing to reimburse Landlord for such costs, to mitigate the effects of any Tenant Delay of Landlord’s Work. If and to the extent the Landlord reasonably incurs a net increased cost (taking into account any cost saving Tenant might have facilitated by its actions) in the performance of Landlord’s Work as a direct result of any Tenant Delay of Landlord’s Work (as reasonably evidenced by Landlord, with supporting documentationSUBJECT TO LANDLORD’S OBLIGATION TO COMPLETE THE SEWER WORK AND LANDLORD’S EXPRESS REPRESENTATIONS AND WARRANTIES IN THIS AMENDMENT), Tenant will be responsible for such reasonable increased costs and Landlord’s Allowance (as defined in Paragraph 2e. below) will be decreased by the amount of such reasonable increased cost andAND THAT, if the net increased cost of Landlord’s Work exceeds Landlord’s AllowanceTO THE EXTENT THAT TENANT’S OWN EXPERIENCE WITH RESPECT TO ANY OF THE FOREGOING IS INSUFFICIENT TO ENABLE TENANT TO REACH AND FORM A CONCLUSION, then Tenant shall pay to Landlord a penalty equal to such excess, which penalty shall be paid not later than ten (10) Business Days following the later of (i) the Rent Commencement Date (or, if the Lease is terminated prior to the Rent Commencement Date due to an Event of Default, the date of Lease termination) and (ii) the date Landlord delivers a written invoice to Tenant for such excess with supporting invoices evidencing such excess cost. The rent abatement and termination rights provided for above in this Paragraph 2.a. shall be Tenant’s sole remedy in the event of Landlord’s failure to achieve Delivery of any Additional Premises Floor by the by the required datesTENANT HAS ENGAGED THE SERVICES OF PERSONS QUALIFIED TO ADVISE TENANT WITH RESPECT TO SUCH MATTERS.

Delivery of Additional Premises. Landlord shall deliver the 11th Floor Premises and the 10th Floor Additional Premises to Tenant with immediately upon mutual execution of this Amendment. On or before March 15, 2014, Landlord shall replace any missing or damaged ceiling tiles and replace any baseboards (as needed) within the Additional Premises and shall cause the carpet in the Additional Premises to be professionally cleaned (collectively, “Landlord’s Work (as defined on attached Exhibit C) completed, but otherwise in their asPre-is condition (“Delivery ConditionObligations”). The delivery of a particular Additional Premises Floor to Tenant in Delivery Condition is referred to hereinafter as “Delivery” as to that floor. (For avoidance of doubt, the completion of any Additional Landlord Work being performed by Landlord on an Additional Premises Floor pursuant to attached Exhibit E is not required for Delivery of shall accept the Additional Premises Floor in their “AS IS” condition except that the HVAC system shall be in good working condition. Subject to Landlord’s obligation to perform Landlord’s Pre-Delivery Obligations, Landlord shall have occurred.) The parties presently estimate that Landlord will deliver no obligation to make or pay for any renovations, alterations, additions or improvements to prepare the 11th Floor Additional Premises to Tenant in Delivery Condition on for Tenant’s occupancy. Any renovations, alterations, additions or about November 1, 2012 improvements (the “11th Floor Target Delivery DateAlterations”), and that Landlord will deliver the 10th Floor Premises to ) desired by Tenant in Delivery Condition on or about December 1the Additional Premises shall be constructed by Tenant at Tenant’s sole cost and expense in a good and workmanlike manner and in accordance with the procedures and requirements of the Lease, 2012 including Article 5 thereof. Tenant shall submit to Landlord for Landlord’s prior reasonable written approval detailed plans and specifications showing the Alterations Tenant desires to make including a detailed space and furniture plan (the “10th Floor Target Delivery Date”)(the 11th Floor Target Delivery Date and the 10th Floor Target Delivery Date are sometimes referred to individually as a “Target Delivery DateSpace Plan”). In the event of any delay in Delivery of an Additional Premises Floor resulting from Force Majeure (as defined below), Landlord shall promptly deliver notice to Tenant specifying the nature of the delay in question, and a good faith estimate of the anticipated length of the delay resulting therefrom (provided that Landlord will not be liable for any inaccuracy in the estimated delay contained in any such notice) and will thereafter promptly update Tenant in writing if and to the extent that Landlord’s good faith determination of the anticipated length of such Force Majeure delay changes in any material way. If (x) Landlord does not achieve Delivery as to a particular Additional Premises Floor on or before the date one (1) month following the Target Delivery Date applicable to such Additional Premises Floor (such date being referred to as the “Outside Delivery Date for Additional Premises Rent Abatement” for such Additional Premises Floor, as such date may have been extended pursuant to the extension provisions in the penultimate grammatical paragraph of this Paragraph 2.a.) and (y) the Tenant Improvements (as defined in Paragraph 2.c. below) on the applicable Additional Premises Floor are not Substantially Completed (as defined in Paragraph 2.c. below) on or before the date (“Tenant’s Target Completion Date”) that right to make the Alterations is the later of further conditioned upon: (i) May 1, 2013, or Tenant’s acquiring all necessary permits required by all applicable governmental authorities based on the final plans and specifications approved by Landlord in writing; (ii) the scheduled completion date for the subject Additional Premises Floor in the Construction Schedule (as defined in Paragraph 0.x.xx. below), due Tenant furnishing copies of such permits to Landlord’s failure to achieve Delivery of the subject Additional Premises Floor on or before the Outside Delivery Date for Additional Premises Rent Abatement for such Additional Premises Floor, then, for each day after the applicable Tenant’s Target Completion Date that the subject Tenant Improvements are not Substantially Completed due to the fact that Delivery did not occur on or before the subject Outside Delivery Date for Rent Abatement (as the same may have been extended pursuant to the extension provisions below), Tenant shall receive one day of abatement of Monthly Rent for that Additional Premises Floor, which abatement shall commence on the Rent Commencement Date (as defined in Paragraph 3 below). Notwithstanding the above, the aforementioned rent abatement is conditioned upon the Tenant Improvements for the subject Additional Premises Floor consisting of improvements that could reasonably have been completed, using diligent ; and commercially reasonable efforts (but, as described below, not work on an overtime or “after-hours” basis) within a four (4) month construction period if Tenant’s Contractor used good faith and commercially reasonable and diligent efforts to Substantially Complete the Tenant Improvements on the Additional Premises Floor within such period. Further, if the Tenant Improvements for an Additional Premises Floor are not Substantially Completed on or before Tenant’s Target Completion Date due in part to delays caused by (i) Tenant not having commenced the Tenant Improvements promptly following Delivery, (ii) changes made to Tenant’s plans after commencement of construction which delay the construction process originally provided for in the Construction Schedule, (iii) the inclusion compliance by Tenant with all conditions of said permits in the Tenant Improvements of “long lead” materials (such as fabrics, paneling, carpeting or other items that are not readily available within industry standard lead times (e.g., custom made items that require time to procure beyond that customarily required for standard items, or items that are currently out of stock a prompt and will require extra time to back order) and for which suitable substitutes exist) and/or (iv) any other delays caused by Tenant, Tenant’s Contractor, subcontractors, vendors, architects, consultants or other agents in commencing or completing the Tenant Improvements (each a “ Tenant Caused Substantial Completion Delay”), then the rental abatement shall not apply to the extent the delay in Substantial Completion of the subject Tenant Improvements beyond Tenant’s Target Completion Date for such Tenant Improvements was caused by such Tenant Caused Substantial Completion Delay. For purposes of clause (iv) in the immediately preceding sentence, so long as Tenant’s Contractor meets or exceeds the milestone dates described in the Construction Schedule (as defined in Paragraph 0.x.xx. below), no delay in the completion of the Tenant Improvements on the part of Tenant’s Contractor shall be deemed to have occurred. Tenant shall not be required to use overtime labor in order to Substantially Complete the Tenant Improvements by Tenant’s Target Completion Date if the failure to Substantially Complete the Tenant Improvements by such date will result from Landlord’s failure to achieve Delivery by the Outside Delivery Date for Additional Premises Rent Abatement, as opposed to resulting from a Tenant Caused Substantial Completion Delay(s). However, if Landlord is responsible for the delay in accordance with the foregoing provisions, and if Landlord agrees (at Landlord’s sole option) to pay the increase in Tenant’s construction costs that will result from use of overtime labor so that Tenant is able to Substantially Complete the Tenant Improvements on the subject Additional Premises Floor on or before Tenant’s Target Completion Date, then Tenant shall, if reasonably feasible, employ overtime labor, provided that Landlord makes the funds for the increased construction costs (which will include, without limitation, the “overtime” portion of wages to laborers, as well as other costs (if any) necessarily and reasonably incurred as a result of the modification of the Construction Schedule, such as increased costs to expedite material deliveries, etcexpeditious manner.) available for timely disbursement (in accordance with an industry-standard payment cycle) during the course of construction. Upon the request of Landlord or Landlord’s Contractor from time to time during Tenant’s construction of the Tenant Improvements, Tenant shall advise Landlord of Tenant’s progress in Substantially Completing the Tenant Improvements and whether overtime labor would be required in order for Tenant to Substantially Complete the Tenant Improvements on or before Tenant’s Target Completion Date, so that Landlord can determine whether Landlord elects to pay for the overtime costs in order to enable Tenant to Substantially Complete the Tenant Improvements on or before Tenant’s Target Completion Date. In addition to the foregoing, if Landlord fails to achieve Delivery of any Additional Premises Floor on or before the date (the “Outside Delivery Date for Termination”) that is three (3) months following the Target Delivery Date for the subject Additional Premises Floor (which Target Delivery Date is set forth in the second sentence of the first grammatical paragraph of this Paragraph 2.a.), then Tenant may notify Landlord in writing within ten (10) Business Days following the Outside Delivery Date for Termination (but in any event prior to Delivery) that Tenant elects to terminate Tenant’s lease of the subject Additional Premises Floor and, if Delivery of the subject Additional Premises Floor does not occur within thirty (30) days following Landlord’s receipt of such termination notice, then Tenant’s lease of the subject Additional Premises Floor shall terminate. However, if Delivery of the applicable Additional Premises Floor occurs prior to the end of such 30-day period, then Tenant’s lease of the Additional Premises Floor shall continue in effect. If Tenant is entitled to terminate Tenant’s lease of an Additional Premises Floor pursuant to the foregoing, but does not exercise such termination right, Tenant shall still be entitled to the rent abatement as to that Additional Premises Floor pursuant to the provisions above. In the event Tenant’s lease of a particular Additional Premises Floor is terminated pursuant to this grammatical paragraph, then the Letter of Credit (which was increased pursuant to Paragraph 5 below to a total of $6,004,180.00) shall be reduced by an amount equal to Eight Hundred Fifty Two Thousand Five Hundred Ninety Dollars ($852,590.00) on account of the deletion of that Additional Premises Floor from the Lease. For avoidance of doubt, if both Additional Premises Floors are deleted from the Lease pursuant to this grammatical paragraph, the Letter of Credit would be reduced by a total of One Million Seven Hundred Five Thousand One Hundred Eighty Dollars ($1,705,180.00) so that the amount of the Letter of Credit would be Four Million Two Hundred Ninety Nine Thousand Dollars ($4,299,000.00). The Outside Delivery Date for Additional Premises Rent Abatement and the Outside Delivery Date for Termination, as to each Additional Premises Floor, will be extended by the length of any delays in Delivery that result from strikes, lockout, labor disputes, shortages of material or labor, fire or other casualty, acts of God or any other cause beyond the commercially reasonable control of Landlord (“Force Majeure”) and/or delays resulting from the act or failure to act of Tenant or Tenant’s Contractor (a “Tenant Delay of Landlord’s Work”); provided, however, that (x) extension of the Outside Delivery Date for Termination on account of Force Majeure shall not exceed a total of ninety (90) days and (y) delays incurred by Landlord in obtaining permits required for Landlord’s Work shall not constitute Force Majeure delays. As provided in attached Exhibit E, delays in Delivery of an Additional Premises Floor caused by Tenant’s request for, or the performance of, Additional Landlord Work constitute Tenant Delays of Landlord’s Work. Notwithstanding the foregoing, in the event any act or omission of Tenant, in Landlord’s reasonable determination, constitutes a Tenant Delay of Landlord’s Work, Landlord will, promptly after determining that the act or omission will create a Tenant Delay of Landlord’s Work, deliver notice to Tenant specifying the action or omission in question, and if Tenant cures such action or omission within five (5) Business Days following receipt of such notice, no Tenant Delay of Landlord’s Work shall be deemed to have occurred. Notwithstanding the foregoing, if Tenant fails to deliver to Landlord, on or before July 1, 2012 (as required by Paragraph 2 of attached Exhibit C) a conceptual plan designating which improvements on an Additional Premises Floor shall not be demolished by Landlord, Tenant shall be deemed to have waived its right to deliver such notice as to that Additional Premises Floor and Landlord shall continue with the demolition of all of the then existing improvements on the subject Additional Premises Floor in accordance with Paragraph 2 of Exhibit C and no Tenant Delay of Landlord’s Work shall result therefrom. Notwithstanding anything to the contrary above, Landlord will use reasonable efforts, without additional cost to Landlord unless Tenant agrees in writing to reimburse Landlord for such costs, to mitigate the effects of any Tenant Delay of Landlord’s Work. If and to the extent the Landlord reasonably incurs a net increased cost (taking into account any cost saving Tenant might have facilitated by its actions) in the performance of Landlord’s Work as a direct result of any Tenant Delay of Landlord’s Work (as reasonably evidenced by Landlord, with supporting documentation), Tenant will be responsible for such reasonable increased costs and Landlord’s Allowance (as defined in Paragraph 2e. below) will be decreased by the amount of such reasonable increased cost and, if the net increased cost of Landlord’s Work exceeds Landlord’s Allowance, then Tenant shall pay to Landlord a penalty equal to such excess, which penalty shall be paid not later than ten (10) Business Days following the later of (i) the Rent Commencement Date (or, if the Lease is terminated prior to the Rent Commencement Date due to an Event of Default, the date of Lease termination) and (ii) the date Landlord delivers a written invoice to Tenant for such excess with supporting invoices evidencing such excess cost. The rent abatement and termination rights provided for above in this Paragraph 2.a. shall be Tenant’s sole remedy in the event of Landlord’s failure to achieve Delivery of any Additional Premises Floor by the by the required dates.