Common use of Limitation on Tenant’s Liability Clause in Contracts

Limitation on Tenant’s Liability. (a) Notwithstanding anything to the contrary contained in the Lease (including this Work Letter), during the Construction Period (as defined below), Tenant’s liability to Landlord under the Lease (including the Work Letter) for Rental Payments shall at no time exceed 89.9% of Landlord’s Project Costs incurred as of the date of Landlord’s claim for such amount owed by Tenant (the “89.9% Threshold”) as reasonably determined by the Landlord; provided that such 89.9% Threshold will be calculated by taking into consideration whether at any point during the Construction Period, the sum of the Rental Payments could exceed the 89.9% Threshold, with the Rental Payments calculated to include (i) the accreted value of any Rental Payments previously made by Tenant plus (ii) the present value of the maximum amount of Rental Payments that Tenant could be required to pay as of that point in time (whether or not construction is completed). With respect to clause (ii) in the preceding sentence, for the avoidance of any doubt, any amounts previously deferred shall not be deemed currently payable for purposes of the calculation. Any Rental Payments owed by Tenant to Landlord in excess of such 89.9% Threshold (the “Excess Amounts”) shall not be payable during the Construction Period, and will instead be amortized on a straight line basis over the Base Term of the Lease (commencing after the date of Delivery of the Premises to Tenant with Landlord’s Work Substantially Complete) with interest at 8% per annum as Additional Rent, and such amortized Excess Amounts will be payable by Tenant monthly at the same time and place as Base Rent commencing with the first payment of Base Rent after the Construction Period. For purposes of calculating the 89.9% Threshold, the Rental Payments owed by Tenant to Landlord at the time of the applicable calculation shall be discounted to their then present value using 9% which represents Tenant’s incremental borrowing rate on the date hereof, applied on a monthly basis. All remedies of Landlord which arise under the Lease and this Work Letter during the Construction Period will be subject to this Section 7 (including remedies in the event the Lease is terminated during the Construction Period), excepting only amounts due from Tenant to Landlord by reason of fraud, willful misconduct, bankruptcy or illegal acts by Tenant. (b) As used in this Section 7,

Limitation on Tenant’s Liability. (a) Notwithstanding anything to the contrary contained in the Lease (including this Work Letter), Tenant shall not be required to pay for Construction Period Costs (as defined below) during the Construction Period (as defined below). Any Construction Period Costs paid by Landlord or which Tenant is responsible for during the Construction Period shall be reimbursed or paid by Tenant to Landlord with interest at 8% per annum as a one-time additional Rent payment within 30 days after Landlord’s delivery to Tenant of an invoice therefor; provided, however, that in no event shall Landlord deliver such invoice to Tenant prior to the expiration of the Construction Period. (b) Notwithstanding anything to the contrary contained in the Lease (including this Work Letter), during the Construction Period (as defined below), Tenant’s liability to Landlord under the Lease (including the Work Letter) for Rental Payments (as defined below) shall at no time exceed 89.9% of Landlord’s Project Costs (as defined below) incurred as of the date of Landlord’s claim for such amount owed by Tenant (the “89.9% Threshold”) as reasonably determined by the Landlord; provided that such 89.9% Threshold will be calculated by taking into consideration whether at any point during the Construction Period, the sum of the Rental Payments could exceed the 89.9% Threshold, with the Rental Payments calculated to include (i) the accreted value of any Rental Payments previously made by Tenant plus (ii) the present value of the maximum amount of Rental Payments that Tenant could be required to pay as of that point in time (whether or not construction is completed). With respect to clause (ii) in the preceding sentence, for the avoidance of any doubt, any amounts previously deferred shall not be deemed currently payable for purposes of the calculation. Any Rental Payments owed by Tenant to Landlord in excess of such 89.9% Threshold (the “Excess Amounts”) shall not be payable during the Construction Period, and will instead be amortized on a straight line basis over the Base Term of the Lease (commencing after the date of Delivery of the Premises to Tenant with Landlord’s Work Substantially Complete) with interest at 8% per annum as Additional Rent, and such amortized Excess Amounts will be payable by Tenant monthly at the same time and place as Base Rent commencing with the first payment of Base Rent after the Construction Period. For purposes of calculating the 89.9% Threshold, the Rental Payments owed by Tenant to Landlord at the time of the applicable calculation shall be discounted to their then present value using 9% which represents Tenant’s incremental borrowing rate on the date hereof, applied on a monthly basis. All remedies of Landlord which arise under the Lease and this Work Letter during the Construction Period will be subject to this Section 7 (including remedies in the event the Lease is terminated during the Construction Period), excepting only amounts due from Tenant to Landlord by reason of fraud, willful misconduct, bankruptcy or illegal acts by Tenant. (bc) As used in this Section 7,