Tenant Delay Except as otherwise provided in the Lease, Delivery of the Premises shall occur when Landlord’s Work has been Substantially Completed, except to the extent that completion of Landlord’s Work shall have been actually delayed by any one or more of the following causes (“Tenant Delay”):
(i) Tenant’s Representative was not available to give or receive any Communication or to take any other action required to be taken by Tenant hereunder within a reasonable period of time (not to exceed 2 business days) after written request from Landlord;
(ii) Tenant’s request for changes to the Building Shell, whether or not such changes are actually performed;
(iii) The construction of any changes to the Building Shell requested by Tenant and agreed upon by Landlord;
(iv) Tenant’s request for Change Requests (as defined in Section 4(a) below) whether or not any such Change Requests are actually performed;
(v) Construction of any Change Requests;
(vi) Tenant’s request for materials, finishes or installations requiring unusually long lead times (provided Landlord will request that the General Contractor inform Tenant of any long lead time items and identify substitutes for such items as soon as reasonably possible);
(vii) Tenant’s delay in reviewing, revising or approving plans and specifications beyond the periods set forth herein;
(viii) Tenant’s delay in providing any information that is reasonably required to come from Tenant which is critical to the normal progression of the Project within a reasonable period of time after request. Tenant shall provide such information as soon as reasonably possible, but in no event longer than one week after receipt of any request for such information from Landlord;
(ix) Tenant’s delay in making payments to Landlord for Excess TI Costs (as defined in Section 5(d) below) for more than 10 business days after such Excess TI Costs are required to be paid to Landlord; or
(x) Any other act or omission by Tenant or any Tenant Party (as defined in the Lease), or persons employed by any of such persons that continues for more than 1 business day after Landlord’s notice thereof to Tenant. If Delivery is delayed for any of the foregoing reasons, then Landlord shall cause the TI Architect to certify the date on which the Tenant Improvements would have been Substantially Completed but for such Tenant Delay and such certified date shall be deemed to be the Commencement Date for purposes of Tenant’s obligation to pay Base Rent, Operating Expenses, Excess TI Costs and TI Rent; however, Tenant will not have any obligation to pay any amounts to third parties pursuant to the Lease (and will not occupy the Premises) until the date upon which the Premises is Delivered to Tenant with the Landlord’s Work Substantially Complete. Upon request, Landlord shall advise Tenant of any materials, finishes or installations which are required as part of any Change Request that will result in unusually long lead times.
Tenant Delays A "Tenant Delay” shall be defined as any delay in the design, permitting or performance of the Base Building Work to the extent that such delay is actually caused by any act or, where there is a duty to act under this Lease, any failure to act by Tenant or Tenant's contractors, architects, engineers, or anyone else engaged by or on behalf of Tenant in connection with the construction of the Tenant Improvement Work as set forth in this Article III (including, without limitation, any delays resulting from the Approved Tenant Finishes under Section 3.l(C) above) and disclosed to Tenant as hereinafter provided. Notwithstanding the foregoing, in no event shall any delays in the completion of the Base Building Work caused by Tenant’s use of non-union labor constitute a Tenant Delay hereunder. Notwithstanding the foregoing, no event shall be deemed a Tenant Delay unless and until Landlord has given Tenant written notice (the "Tenant Delay Notice") advising Tenant: (x) that a Tenant Delay is occurring and setting forth Landlord's good faith estimate as to the likely length of such Tenant Delay; (y) of the basis on which Landlord has determined that a Tenant Delay is occurring; and (z) the actions which Landlord believes that Tenant must take to eliminate such Tenant Delay. No event shall be deemed to be a Tenant Delay unless and until Tenant has failed to rectify the situation causing the Tenant Delay within forty-eight (48) hours after Tenant's receipt of the Tenant Delay Notice (which for the purposes of determining receipt may be delivered by hand to Tenant's Construction Representative, with copies to follow to Tenant at the notice address set forth in Section 1.2 of this Lease within five (5) days thereafter); provided, however, that if Tenant shall fail to eliminate the delay within the aforesaid 48-hour period, then the 48-hour cure period shall be included in the period of time charged to Tenant pursuant to such Tenant Delay Notice (it being understood and agreed that if Tenant shall in fact eliminate the Tenant Delay within the 48-hour cure period, no Tenant Delay shall be deemed to have occurred for the purposes of this Article III). In addition, any delay to the extent caused by (i) Landlord Delay or (ii) subject to the limitations of subsection (D) below, Tenant's Force Majeure (as defined in said subsection (D)) shall not constitute Tenant Delay. Tenant covenants that no Tenant Delay shall delay commencement of the Term or the obligation to pay Annual Fixed Rent or Additional Rent. The Delivery Dates and/or the date of substantial completion of the Base Building Work, as applicable, shall be deemed to have occurred as of the date when such Delivery Dates and/or date of substantial completion of the Base Building Work, as applicable, would have occurred but for any Tenant Delays, as determined by Landlord in the exercise of its good faith business judgment (it being understood and agreed that the foregoing shall not be construed so as to relieve Landlord of its obligation to actually complete the Base Building Work, notwithstanding the fact that substantial completion may have been deemed to have occurred prior to actual completion as the result of Tenant Delays).
Landlord Work Landlord shall, at Landlord’s sole cost and expense, concurrently with Tenant’s construction of the Tenant Improvements, remove the existing demising wall and construct a Building standard demising wall at the Expansion Premises, which shall include studs, acoustical insulation and dry wall ready for finish on the Tenant side only and any necessary penetrations, fire dampers and sound traps (collectively, the “Demising Wall”), which Demising Wall shall be adjacent to the Expansion Premises as set forth on Exhibit A to this Amendment (collectively, the “Landlord Work”). Tenant may not change or alter the Landlord Work. Landlord shall use commercially reasonable efforts to Substantially Complete the Landlord Work no later than forty-five (45) days after the Expansion Delivery Date. In addition, Landlord shall, at Landlord’s sole cost and expense, to the extent required in order to allow Tenant to obtain a certificate of occupancy, or its legal equivalent, for the Expansion Premises for general office use assuming a normal and customary office occupancy density, cause the Landlord Work and the Building Common Areas (including the Base Building restrooms on the seventh (7th) floor of the Building), to comply with applicable building codes and other governmental laws, ordinances and regulations related to handicap access, which were enacted and enforced as of the date of this Amendment. Because Landlord shall be constructing the Landlord Work concurrently with Tenant’s construction of the Tenant Improvements, there will be a certain “overlap” period pursuant to which both Landlord’s representatives, employees, vendors and contractors and Tenant’s representatives, employees, vendors and contractors may be present and performing work in a portion of the Premises. During any such “overlap” period(s) when both parties and/or their respective employees, vendors, contractors or consultants are concurrently performing work in, or accessing, any portion of the Premises, neither party shall unreasonably interfere with or delay the work of the other party and/or its contractors or consultants, and both parties shall mutually coordinate and cooperate with each other, and shall cause their respective employees, vendors, contractors, and consultants to work in harmony with and to mutually coordinate and cooperate with the other’s employees, vendors, contractors and consultants, respectively, to minimize any interference or delay by either party with respect to the other party’s work. In addition, Landlord shall, and shall cause the other Landlord Parties to, use commercially reasonable efforts to minimize any interference with Tenant’s operations in the Existing Premises. Landlord shall have no obligation to move any furniture or other personal property of Tenant in the performance of Landlord Work. Tenant hereby agrees that the construction of the Landlord Work shall in no way constitute a constructive eviction of Tenant nor entitle Tenant to any abatement of rent. Except as otherwise expressly provided in the Lease (including this Tenant Work Letter), Landlord shall have no responsibility or for any reason be liable to Tenant for any direct or indirect injury to or interference with Tenant’s business arising from the Landlord Work, nor shall Tenant be entitled to any compensation or damages from Landlord for loss of the use of the whole or any part of the Premises or of Tenant’s personal property or improvements resulting from the Landlord Work or Landlord’s actions in connection with the Landlord Work, or for any inconvenience or annoyance occasioned by the Landlord Work or Landlord’s actions in connection with the Landlord Work.
Landlord Default If Landlord shall default in the performance or observance of any of its covenants or obligations set forth in this Agreement or any obligation of Landlord, if any, under any agreement affecting the Leased Property, the performance of which is not Tenant’s obligation pursuant to this Agreement, and any such default shall continue for a period of thirty (30) days after Notice thereof from Tenant to Landlord and any applicable Facility Mortgagee, or such additional period as may be reasonably required to correct the same, Tenant may declare the occurrence of a “Landlord Default” by a second Notice to Landlord and to such Facility Mortgagee. Thereafter, Tenant may forthwith cure the same and, subject to the provisions of the following paragraph, invoice Landlord for costs and expenses (including reasonable attorneys’ fees and court costs) incurred by Tenant in curing the same, together with interest thereon (to the extent permitted by law) from the date Landlord receives Tenant’s invoice until paid, at the Overdue Rate. Tenant shall have no right to terminate this Agreement for any default by Landlord hereunder and no right, for any such default, to offset or counterclaim against any Rent or other charges due hereunder. If Landlord shall in good faith dispute the occurrence of any Landlord Default and Landlord, before the expiration of the applicable cure period, shall give Notice thereof to Tenant, setting forth, in reasonable detail, the basis therefor, no Landlord Default shall be deemed to have occurred and Landlord shall have no obligation with respect thereto until final adverse determination thereof. If Tenant and Landlord shall fail, in good faith, to resolve any such dispute within ten (10) days after Landlord’s Notice of dispute, either may submit the matter for resolution in accordance with Article 22.
Landlord’s Work Prior to the execution of the Lease, Landlord and Tenant have approved the detailed description of base, shell and core work for the Phase I Premises and Phase II Premises attached hereto as Exhibit B-1 (the “Base, Shell and Core Description”). Based upon and in conformity with the Base Shell and Core Description, Landlord shall cause its architect and engineers, at Landlord’s sole cost and expense, to prepare and deliver to Tenant, for Tenant’s approval, detailed specifications and engineered working drawings in CAD format, which shall include, without limitation, ADA path of travel, restroom locations and counts, exit lighting plans for the Phase I Work (the “Base Building Working Drawings”) by no later than June 1, 2019. Within seven (7) days after Tenant’s and Landlord’s receipt of the Base Building Working Drawings, Tenant and Landlord shall approve or disapprove the same, which approval shall not be unreasonably withheld; provided, however, that Tenant may only disapprove the Base Building Working Drawings to the extent such Base Building Working Drawings are inconsistent with the Base, Shell and Core Description and only if Tenant delivers notice thereof to Landlord within such seven (7) day period. If any specific changes proposed by Tenant to rectify any inconsistencies with the Base, Shell and Core Description are timely and properly proposed by Tenant, Landlord shall cause its architect and engineers to revise the Base Building Working Drawings to incorporate such revisions and submit the same for Tenant’s approval in accordance with the foregoing provisions, and the parties shall follow the foregoing procedures for approving the Base Building Working Drawings until the same are finally approved by Landlord and Tenant. Upon Landlord’s and Tenant’s approval of the Base Building Working Drawings, the same shall be referred to as the “Approved Working Drawings for Landlord’s Phase I Work”. Based upon and in conformity with the Base, Shell and Core Description, Landlord shall cause its architect and engineers, at Landlord’s sole cost and expense, to prepare and deliver to Tenant, for Tenant’s approval, detailed specifications and engineered working drawings in CAD format, which shall include, without limitation, ADA path of travel, restroom locations and counts, exit lighting plans for the Phase II Work (the “Phase II Base Building Working Drawings”) by no later than October 1, 2019. Within seven (7) days after Tenant’s and Landlord’s receipt of the Phase II Base Building Working Drawings, Tenant and Landlord shall approve or disapprove the same, which approval shall not be unreasonably withheld; provided, however, that Tenant may only disapprove the Phase II Base Building Working Drawings to the extent such Phase II Base Building Working Drawings are inconsistent with the Base, Shell and Core Description and only if Tenant delivers notice thereof to Landlord within such seven (7) day period. If any specific changes proposed by Tenant to rectify any inconsistencies with the Base, Shell and Core Description are timely and properly proposed by Tenant, Landlord shall cause its architect and engineers to revise the Phase II Base Building Working Drawings to incorporate such revisions and submit the same for Tenant’s approval in accordance with the foregoing provisions, and the parties shall follow the foregoing procedures for approving the Phase II Base Building Working Drawings until the same are finally approved by Landlord and Tenant. Upon Landlord’s and Tenant’s approval of the Phase II Base Building Working Drawings, the same shall be referred to as the “Approved Working Drawings for Landlord’s Phase II Work”. The improvements shown on the Approved Working Drawings for Landlord’s Phase I Work and the Approved Working Drawings for Landlord’s Phase II Work are hereby collectively referred to as “Landlord’s Work”. The Approved Working Drawings for Landlord’s Phase I Work and the Approved Working Drawings for Landlord’s Phase II Work are sometimes collectively referred to herein as the “Approved Working Drawings for Landlord’s Work”.
Landlord’s Default Subject to Landlord's right to dispute its obligation in accordance with Section 5.1.5(b), if Landlord shall default in the performance or observance of any of its covenants or obligations set forth in this Agreement, and any such default shall continue for a period of ten (10) days after Notice thereof with respect to monetary defaults, and thirty (30) days after Notice thereof with respect to non-monetary defaults, from Tenant to Landlord and, subject to Section 19.3, any applicable Facility Mortgagee, or such additional period as may be reasonably required to correct such non-monetary defaults, Tenant may declare the occurrence of a "Landlord Default" under this Agreement by giving Notice of such declaration to Landlord and to such Facility Mortgagee. Thereafter, Tenant may (but shall have no obligation to) cure the same and, subject to the provisions of the following paragraph, invoice Landlord for costs and expenses (including reasonable attorneys' fees, paralegals' fees and court costs) incurred by Tenant in curing the same. If any such costs and expenses have not been reimbursed to Tenant as of the fifth (5th) day after the Landlord receives Tenant's Notice therefor, Landlord shall pay to Tenant, a late charge computed at the Overdue Rate on the amount of such reimbursement from the expiration of the applicable cure period to the date of payment thereof. Except as otherwise expressly provided herein to the contrary, Tenant shall have no right to terminate this Agreement for any default by Landlord hereunder or under the Other Leases and no right, for any such default, to offset or counterclaim against any Rent or other charges due hereunder. If Landlord shall in good faith dispute the occurrence of any Landlord Default and Landlord, before the expiration of the applicable cure period, shall give Notice thereof to Tenant, setting forth, in reasonable detail, the basis therefor, no Landlord Default shall be deemed to have occurred and Landlord shall have no obligation with respect thereto until final adverse determination thereof; provided, however, that in the event of any such adverse determination, Landlord shall pay to Tenant interest on any disputed funds at the Disbursement Rate, from the date demand for such funds was made by Tenant until the date of final adverse determination and, thereafter, at the Overdue Rate until paid. During the term of the Operating Agreement, Landlord shall indemnify and hold Tenant harmless against all claims, costs and expenses (including reasonable attorneys' fees and paralegals' fees) arising from a Landlord Default under the terms and conditions of this Agreement which shall cause an Event of Default under Section 16.01 of the Operating Agreement or a breach by Landlord of its obligations under the Owner Agreement or the Pooling Agreement. The provisions of this Section 14.2 shall survive the termination, expiration or cancellation of this Agreement for a period of five (5) years.
Force Majeure Delays In any case where either party hereto is required to do any act (other than the payment of money), delays caused by or resulting from Acts of God or Nature, war, civil commotion, fire, flood or other casualty, labor difficulties, shortages of labor or materials or equipment, government regulations, delay by government or regulatory agencies with respect to approval or permit process, unusually severe weather, or other causes beyond such party’s reasonable control the time during which act shall be completed, shall be deemed to be extended by the period of such delay, whether such time be designated by a fixed date, a fixed time or “a reasonable time.”
Rent Abatement Except for the negligence or willful act of Tenant or its agents, employees, contractors or invitees, if all or any part of the Premises are rendered untenantable by fire or other casualty and this Lease is not terminated, Monthly Base Rent and Rent Adjustments shall xxxxx for that part of the Premises which is untenantable on a per diem basis from the date of the casualty until Landlord has Substantially Completed the repair and restoration work in the Premises which it is required to perform, provided, that as a result of such casualty, Tenant does not occupy the portion of the Premises which is untenantable during such period.
Landlord Repairs Landlord shall maintain, at its expense, the structural soundness of the roof, foundations, and exterior walls of the Site and all common areas within the Site in good repair, reasonable wear and tear and damages caused by Tenant, its agents and contractors excluded; provided, however, that Landlord’s costs of maintenance and repair of the common areas may be included within Site Operating Costs as provided and subject to the limitations thereon set forth in Section 9 above; and provided, further, that Landlord shall also make all such repairs and restorations which may be required as a result of any patent or latent defects in Landlord’s Work pursuant to Landlord’s warranty set forth in Section 6 of Exhibit “B”. The term “walls” as used in this Section shall not include windows, glass or plate glass, doors or overhead doors, special store fronts, dock bumpers, dock plates or levelers, or office entries. Tenant shall promptly give Landlord written notice of any repair required by Landlord pursuant to this Section, after which Landlord shall have a reasonable opportunity to repair; provided, however, that Landlord shall in any event have commenced and diligently pursue all such repairs to completion within thirty (30) days after receipt of Tenant’s written notice therefor; provided, further, that if such repairs are not capable of being completed within said 30-day period, then Landlord shall have such additional period of time as may be reasonably necessary to complete such repairs so long as Landlord commences such repairs within said thirty (30) day period and diligently pursues such repairs to completion. If the repairs required to be made by Landlord materially and adversely affect Tenant’s use of the Premises for its Permitted Use and Tenant’s notice clearly and conspicuously labels the repair a “Critical Repair” and summarizes the requirements of this Section, Landlord shall commence and diligently pursue such repairs to completion within five (5) business days after receipt of the foregoing written notice from Tenant and, if Landlord fails to commence and diligently pursue such repairs within said five (5) business day period, Tenant shall have the right to elect to perform such repairs on behalf of Landlord, the actual, reasonable costs of which shall be reimbursed by Landlord to Tenant within thirty (30) days after Landlord’s receipt of a written invoice or statement therefor from Tenant and, if such costs and expenses are not so reimbursed to Tenant within said 30-day period, Tenant shall have the right to offset the same, together with interest at a per-annum rate equal to the Prime Rate plus ten percent (10%), from the next and subsequent installments of Base Rent payable under this Lease until the foregoing amount is fully offset.
Landlord Improvements (a) On the Commencement Date, Landlord will deliver the Leased Premises to Tenant in a broom clean condition, and, along with the lighting, electrical (excluding the UPS system and the diesel generator), mechanical and plumbing fixtures, plumbing systems, dock doors and HVAC servicing the Leased Premises, hot water, doors and plate-glass, will be delivered to Tenant in good condition and repair, as defined in Section 5.05 above.
(b) After receipt of the Letter of Credit and any required building permit, Landlord will commence and diligently pursue to completion, the construction of the improvements to the Leased Premises (the “Landlord Improvements”), in accordance with plans and specifications as shown in Exhibit B, subject to approval by local regulatory authorities (the “Plans”), which Plans are made a part of this Lease by reference. Any changes or modifications to the Plans must be made and accepted by written change order or agreement signed by Landlord and Tenant and will constitute an amendment to this Lease. Any Landlord Improvements made by Landlord are the property of Landlord and must be surrendered to Landlord upon the termination of this Lease without credit to Tenant. Upon completion of any Landlord Improvements and issuance of a final certificate of occupancy (to be applied for by Landlord’s general contractor) and certification from Landlord’s general contractor certifying to Tenant that all Landlord Improvements have been completed in accordance with the Plans (the “General Contractor’s Certificate”), thereafter Landlord shall provide and Tenant shall acknowledge receipt and acceptance of “as-built plans” of all work done in accordance with this Section 6.01.
(c) Landlord shall furnish an allowance of up to $172,800.00 (One hundred seventy-two thousand, eight hundred dollars) (“Landlord Improvement Allowance”) to be credited against the cost of the construction of the Landlord Improvements. If the actual cost of construction of the Landlord Improvements is less than the Landlord Improvement Allowance (“Allowance Overage”), Tenant shall have no right or claim to such difference; provided however, that if there is an Allowance Overage, Landlord, upon submission of supporting documentation by Tenant, will reimburse Tenant for any third party costs of low voltage wiring and laboratory benches for the Leased Premises, but such reimbursement shall not exceed the lesser of the Allowance Overage or 69,120.00 (Sixty-nine thousand, one hundred twenty & xx/100 dollars). If the actual cost of construction of the Landlord Improvements exceeds the Landlord Improvement Allowance, Tenant shall pay such excess cost to Landlord within ten (10) business days after receipt of supporting documentation and the General Contractor’s Certificate,.
(d) Notwithstanding anything contained in Section 6.01 (c) above, within 30 days after the issuance of the General Contractor’s Certificate, Landlord will determine the sum of (i) the actual cost of the Landlord Improvements, plus (ii) if any, the actual costs submitted by Tenant towards the Contingent Allowance, and the product of the calculation shall be rounded to the next $1,000.00 (One Thousand Dollars). If the resultant amount is less than the Landlord Improvement Allowance, Landlord shall reduce the monthly Base Rent by $20.25 (“Base Rent Reduction Factor”) for each whole $1,000.00 (One Thousand Dollars) of such amount effective January 1, 2012. If it is determined that the monthly Base Rent is to be reduced and if Tenant has already paid Base Rent in a pre-reduction amount, Landlord shall give Tenant credit for any such excess payment, and reduction in monthly Base Rent shall be memorialized in an amendment to this Lease. In the event that the monthly Base Rent is reduced in accordance with this Section 6.01(d), there shall be no reduction in the Security Deposit Amount or in the requirements set forth for the Letter of Credit. The following example illustrates the intentions of the parties hereto as to computation of any reduction of the monthly Base Rent: Assumptions:
1. Actual cost of the Landlord Improvements: $100,000.00
2. Actual cost of qualifying costs for Contingent Allowance: $50,500.00 Total cost of Landlord Improvements and Contingent Allowance Costs: ($100,000.00 + $50,500.00) = $150,500.00 Determination of reduction in monthly Base Rent: Total Landlord Improvement Allowance $ 172,800.00 Less total cost of Landlord Improvements and contingent costs 150,500.00 $ 22300.00 Rounded to next $1,000.00 (One Thousand Dollars) $ 23,000.00 Divided by $1,000.00 (One Thousand Dollars) 1,000.00 Base Rent Reduction Factor 20.25 Reduction in monthly Base Rent $ 465.75
(e) In addition to the Landlord Improvements, Landlord, at Landlord’s sole cost and expense, shall have the following additional work performed on the Leased Premises prior to delivery of possession to Tenant, such work to be coordinated with the construction of the Landlord Improvements:
(i) Replace all stained, damaged or missing ceiling tiles,
(ii) Paint all walls in the Leased Premises, the color to be designated by Tenant,
(iii) Replace all vinyl floor tiles in the open laboratory area as shown in Exhibit C,
(iv) Shampoo all carpets in the office areas and hallways and
(v) Any existing water supply or drainage pipes in the open lab area that are not initially utilized by Tenant shall be capped and made reasonably flush with the floor, but such capping shall allow for those pipes to be tapped by Tenant for future use.
(vi) Re-caulk all perimeter flashing; install new pads under all gas line blocking; repair any loose or open curb or wall flashing; repack all pitch pans; repair any open joints on gravel guard; repair any loose scupper flashing; clean, prime and install EPDM peel and stick tape to all roof side tilt wall joints; clean all debris from around drains and entire roof; install Xxxxxx 97 asbestos free aluminum coating to entire roof surface
(vii) Repair any existing alligator or pothole areas.
