Common use of Excess Costs Clause in Contracts

Excess Costs. As of the date of this Amendment, the parties anticipate that the Total Construction Costs will exceed the amount of the Construction Allowance. During the course of construction, once the cost of constructing the Work has exceeded the amount of the Construction Allowance plus the Pre-Paid Amount, Landlord shall provide written notice thereof to Tenant. Following Landlord’s delivery of such notice to Tenant, Tenant shall be obligated to pay for all xxxxxxxx from Landlord for the cost of the Work in excess of the Construction Allowance and the Pre-Paid Amount (collectively, the “Above-Allowance Amounts”). The payment of the Above-Allowance Amounts shall be accomplished by increasing Tenant’s share of monthly disbursements provided in Section 9 above. Under no circumstances shall Landlord be required to pay for the Above-Allowance Amounts. Following Substantial Completion of the Work, if the amount of the Total Construction Costs exceeds the sum of (i) the Construction Allowance, (ii) the Pre-Paid Amount, and (iii) the Above-Allowance Amounts, then Tenant shall be responsible for such excess costs (collectively, the “Excess Costs”). Under no circumstances (except if to correct deficiencies in the Work which are brought to Landlord’s attention within the Warranty Period) shall Landlord be required to pay for any Excess Costs. Landlord will invoice Tenant for such Excess Costs; such invoice shall include adequate supporting documentation for the Excess Costs. Tenant shall pay Landlord the amount of the Excess Costs within twenty (20) days of receipt of such invoice, provided that Tenant approves the amount of the Excess Costs, such approval not to be unreasonably withheld, conditioned or delayed.

Excess Costs. As of In the date of this Amendmentevent any Replacement, Repair, or Restoration item exceeds the approved cost set forth on either the Required Replacement Schedule for Replacements, the parties anticipate that Maximum Repair Cost for Repairs, or the Total Construction Costs will exceed initial cost approved by Lender for Restoration, as applicable, Borrower may submit a disbursement request to reimburse Borrower for such excess cost. The disbursement request must be in writing and include an explanation for such request. Lender shall make disbursements from the applicable Reserve/Escrow Account, if: the excess cost is commercially reasonable; the amount of funds in the Construction Allowance. During applicable Reserve/Escrow Account is sufficient to pay such excess costs and the course of construction, once the then-current estimated cost of constructing completing all remaining Required Replacements, Restoration, or Required Repairs (at the Work Maximum Repair Cost), as applicable, and any other Borrower Requested Replacements, Borrower Requested Repairs, Additional Lender Replacements, or Additional Lender Repairs that have been previously approved by Lender; and all conditions for disbursement from the applicable Reserve/Escrow Account or the Repairs Escrow Account have been satisfied. Final Disbursements. Upon completion and satisfaction of all conditions for disbursements for any Repairs and Restoration, and further provided no Event of Default has exceeded occurred and is continuing, Lender shall disburse to Borrower any amounts then remaining in the amount Repairs Escrow Account or the Restoration Reserve Account, as applicable. Upon payment in full of the Construction Allowance plus the Pre-Paid Amount, Landlord shall provide written notice thereof to Tenant. Following Landlord’s delivery of such notice to Tenant, Tenant shall be obligated to pay for all xxxxxxxx from Landlord for the cost Indebtedness and release by Xxxxxx of the Work in excess lien of the Construction Allowance Security Instrument, Lender shall disburse to Borrower any and all amounts then remaining in the Pre-Paid Amount Reserve/Escrow Accounts (collectively, the “Above-Allowance Amounts”if not previously released). The payment Approvals of Contracts; Assignment of Claims. Lender retains the Above-Allowance Amounts shall be accomplished by increasing Tenantright to approve all contracts or work orders with materialmen, mechanics, suppliers, subcontractors, contractors, or other parties providing labor or materials in connection with the Replacements, Repairs, or Restoration. Notwithstanding Borrower’s share assignment (in the Security Instrument) of monthly disbursements its rights and claims against all Persons supplying labor or materials in connection with the Replacements, Repairs, or Restoration, Lender will not pursue any such right or claim unless an Event of Default has occurred and is continuing or as otherwise provided in Section 9 above. Under no circumstances shall Landlord be required to pay for the Above-Allowance Amounts. Following Substantial Completion of the Work, if the amount of the Total Construction Costs exceeds the sum of (i) the Construction Allowance, (ii) the Pre-Paid Amount, and (iii) the Above-Allowance Amounts, then Tenant shall be responsible for such excess costs (collectively, the “Excess Costs”14.03(c). Under no circumstances (except if to correct deficiencies in the Work which are brought to Landlord’s attention within the Warranty Period) shall Landlord be required to pay for any Excess Costs. Landlord will invoice Tenant for such Excess Costs; such invoice shall include adequate supporting documentation for the Excess Costs. Tenant shall pay Landlord the amount of the Excess Costs within twenty (20) days of receipt of such invoice, provided that Tenant approves the amount of the Excess Costs, such approval not to be unreasonably withheld, conditioned or delayed.

Excess Costs. As of In the date of this Amendmentevent any Replacement, Repair, or Restoration item exceeds the approved cost set forth on either the Required Replacement Schedule for Replacements, the parties anticipate that Maximum Repair Cost for Repairs, or the Total Construction Costs will exceed initial cost approved by Lender for Restoration, as applicable, Borrower may submit a disbursement request to reimburse Borrower for such excess cost. The disbursement request must be in writing and include an explanation for such request. Lender shall make disbursements from the applicable Reserve/Escrow Account, if: the excess cost is commercially reasonable; the amount of funds in the Construction Allowance. During applicable Reserve/Escrow Account is sufficient to pay such excess costs and the course of construction, once the then-current estimated cost of constructing completing all remaining Required Replacements, Restoration, or Required Repairs (at the Work Maximum Repair Cost), as applicable, and any other Borrower Requested Replacements, Borrower Requested Repairs, Additional Lender Replacements, or Additional Lender Repairs that have been previously approved by Lender; and all conditions for disbursement from the applicable Reserve/Escrow Account or the Repairs Escrow Account have been satisfied. Final Disbursements. Upon completion and satisfaction of all conditions for disbursements for any Repairs and Restoration, and further provided no Event of Default has exceeded occurred and is continuing, Lender shall disburse to Borrower any amounts then remaining in the amount Repairs Escrow Account or the Restoration Reserve Account, as applicable. Upon payment in full of the Construction Allowance plus the Pre-Paid Amount, Landlord shall provide written notice thereof to Tenant. Following Landlord’s delivery of such notice to Tenant, Tenant shall be obligated to pay for all xxxxxxxx from Landlord for the cost Indebtedness and release by Lender of the Work in excess lien of the Construction Allowance Security Instrument, Lender shall disburse to Borrower any and all amounts then remaining in the Pre-Paid Amount Reserve/Escrow Accounts (collectively, the “Above-Allowance Amounts”if not previously released). The payment Approvals of Contracts; Assignment of Claims. Lender retains the Above-Allowance Amounts shall be accomplished by increasing Tenantright to approve all contracts or work orders with materialmen, mechanics, suppliers, subcontractors, contractors, or other parties providing labor or materials in connection with the Replacements, Repairs, or Restoration. Notwithstanding Borrower’s share assignment (in the Security Instrument) of monthly disbursements its rights and claims against all Persons supplying labor or materials in connection with the Replacements, Repairs, or Restoration, Lender will not pursue any such right or claim unless an Event of Default has occurred and is continuing or as otherwise provided in Section 9 above. Under no circumstances shall Landlord be required to pay for the Above-Allowance Amounts. Following Substantial Completion of the Work, if the amount of the Total Construction Costs exceeds the sum of (i) the Construction Allowance, (ii) the Pre-Paid Amount, and (iii) the Above-Allowance Amounts, then Tenant shall be responsible for such excess costs (collectively, the “Excess Costs”14.03(c). Under no circumstances (except if to correct deficiencies in the Work which are brought to Landlord’s attention within the Warranty Period) shall Landlord be required to pay for any Excess Costs. Landlord will invoice Tenant for such Excess Costs; such invoice shall include adequate supporting documentation for the Excess Costs. Tenant shall pay Landlord the amount of the Excess Costs within twenty (20) days of receipt of such invoice, provided that Tenant approves the amount of the Excess Costs, such approval not to be unreasonably withheld, conditioned or delayed.

Excess Costs. As Except as set forth in this Exhibit D, the entire cost of performing the Tenant Improvements (including preparation of the date Space Plans and Working Drawings (other than the initial “test fit” Space Plan for the Initial Premises and the First Expansion Premises (and one revision thereof each), respectively), architectural/engineering costs as to any changes requested by Tenant, and the final “as-built” plan of this Amendmentthe Tenant Improvements, costs of construction labor and materials, cleaning, related taxes and insurance costs, licenses, permits, certifications, surveys and other approvals required by Applicable Law, all of which costs are herein collectively called the “Total Construction Costs”) in excess of the Construction Allowance (hereinafter defined) shall be paid by Tenant (the “Excess Costs”). Upon selection of the approved bids for the Contractor and subcontractors upon Landlord’s submission to Tenant of a fully executed copy of the General Contractor, Tenant shall promptly (a) execute a work order agreement prepared by Landlord based upon the Approved Plans which itemizes the Total Construction Costs, the parties anticipate that Final Budget and the Excess Costs. Tenant shall pay to Landlord the Excess Costs for the initial Premises monthly during the performance of the Tenant Improvements within ten (10) days of receipt of contractor on a pari passu basis with Landlord based on the same percentage of the Total Construction Costs will exceed paid by Landlord for such month (i.e., if, in the first month, Landlord pays 25% of the Total Construction Costs, then Tenant shall pay 25% of the total Excess Costs that month). Tenant shall pay the Excess Costs for the First Expansion Premises in like manner. Billing for Excess Costs shall take into account (1) the amount of any advance payment made by Tenant, and (2) the amount of the Construction Allowance. During In the course event of construction, once default of payment of such Excess Costs following notice and the cost expiration of constructing the Work has exceeded the amount of the Construction Allowance plus the Pre-Paid Amountany applicable cure period, Landlord (in addition to all other remedies) shall provide written notice thereof to Tenanthave the same rights as for an Event of Default under this Lease. Following Landlord’s delivery of such notice to Tenant, Tenant Landlord shall be obligated to pay for all xxxxxxxx from Landlord for the cost of the Work in excess of the Construction Allowance and the Pre-Paid Amount (collectively, the “Above-Allowance Amounts”). The payment of the Above-Allowance Amounts shall be accomplished by increasing Tenant’s share of monthly disbursements provided in Section 9 above. Under no circumstances shall Landlord not be required to pay for proceed with the Above-Allowance Amounts. Following Substantial Completion of Tenant Improvements unless and until Tenant has returned the Work, if the amount of the Total Construction Costs exceeds the sum of (i) the Construction Allowance, (ii) the Pre-Paid Amount, and (iii) the Above-Allowance Amounts, then Tenant shall be responsible for such excess costs (collectively, the “Excess Costs”). Under no circumstances (except if to correct deficiencies in the Work which are brought to Landlord’s attention within the Warranty Period) shall Landlord be required to pay for any Excess Costs. Landlord will invoice Tenant for such Excess Costs; such invoice shall include adequate supporting documentation for the Excess Costs. Tenant shall pay Landlord the amount of the Excess Costs within twenty (20) days of receipt of such invoice, provided that Tenant approves the amount of the Excess Costs, such approval not to be unreasonably withheld, conditioned or delayedwork order agreement.

Excess Costs. As of In the date of this Amendmentevent any Replacement or Repair exceeds the approved cost set forth on the Required Replacement Schedule for Replacements, or the parties anticipate that Maximum Repair Cost for Repairs, as applicable, or any Restoration item exceeds the Total Construction Costs will exceed initial cost approved by Lender for Restoration, Borrower (or Master Lessee, as directed by Borrower) may submit a disbursement request to reimburse Borrower (or Master Lessee, as directed by Borrower) for such excess cost. The disbursement request must be in writing and include an explanation for such request. Lender shall make disbursements from the applicable Reserve/Escrow Account, if: the excess cost is commercially reasonable; the amount of funds in the Construction Allowance. During applicable Reserve/Escrow Account, is sufficient to pay such excess costs and the course of construction, once the then-current estimated cost of constructing completing all remaining Required Replacements, Restoration, or Required Repairs (at the Work Maximum Repair Cost), as applicable, and any other Borrower Requested Replacements, Borrower Requested Repairs, Additional Lender Replacements, or Additional Lender Repairs that have been previously approved by Lender; and all conditions for disbursement from the applicable Reserve/Escrow Account have been satisfied. Final Disbursements. Upon completion and satisfaction of all conditions for disbursements for any Repairs and Restoration, and further provided no Event of Default has exceeded occurred and is continuing, Lender shall disburse to Borrower (or Master Lessee, as directed by Borrower) any amounts then remaining in the amount Repairs Escrow Account or the Restoration Reserve Account, as applicable. Upon payment in full of the Construction Allowance plus the Pre-Paid Amount, Landlord shall provide written notice thereof to Tenant. Following Landlord’s delivery of such notice to Tenant, Tenant shall be obligated to pay for all xxxxxxxx from Landlord for the cost Indebtedness and release by Lender of the Work in excess lien of the Construction Allowance Security Instrument, Lender shall disburse to Borrower any and all amounts then remaining in the Pre-Paid Amount Reserve/Escrow Accounts (collectively, the “Above-Allowance Amounts”if not previously released). The payment Borrower hereby appoints Master Lessee as attorney in fact with authorization to, pursuant to the terms hereof, make disbursement requests and receive disbursements under any Reserve/Escrow Account. Borrower agrees to indemnify and hold Lender harmless from and against all losses, costs, liabilities, or damages (including reasonable attorneys’ fees) arising out of Lender’s acceptance of disbursement requests and/or disbursements made pursuant thereto. This accommodation shall not relieve Borrower of any obligations, conditions or requirements set forth in the Above-Allowance Amounts shall be accomplished by increasing TenantLoan Documents related to such disbursements. Approvals of Contracts; Assignment of Claims. Lender retains the right to approve all contracts or work orders with materialmen, mechanics, suppliers, subcontractors, contractors, or other parties providing labor or materials in connection with the Replacements, Repairs, or Restoration. Notwithstanding Borrower’s share assignment in the Security Instrument (or Master Lessee’s assignment pursuant to the Master Lease Documents) of monthly disbursements its rights and claims against all Persons supplying labor or materials in connection with the Replacements, Repairs, or Restoration, Lender will not pursue any such right or claim unless an Event of Default has occurred and is continuing or as otherwise provided in Section 9 above. Under no circumstances shall Landlord be required to pay for the Above-Allowance Amounts. Following Substantial Completion of the Work, if the amount of the Total Construction Costs exceeds the sum of (i) the Construction Allowance, (ii) the Pre-Paid Amount, and (iii) the Above-Allowance Amounts, then Tenant shall be responsible for such excess costs (collectively, the “Excess Costs”14.03(c). Under no circumstances (except if to correct deficiencies in the Work which are brought to Landlord’s attention within the Warranty Period) shall Landlord be required to pay for any Excess Costs. Landlord will invoice Tenant for such Excess Costs; such invoice shall include adequate supporting documentation for the Excess Costs. Tenant shall pay Landlord the amount of the Excess Costs within twenty (20) days of receipt of such invoice, provided that Tenant approves the amount of the Excess Costs, such approval not to be unreasonably withheld, conditioned or delayed.

Excess Costs. As of In the date of this Amendmentevent any Replacement, Repair, or Restoration item exceeds the approved cost set forth on either the Required Replacement Schedule for Replacements, the parties anticipate that Maximum Repair Cost for Repairs, or the Total Construction Costs will exceed initial cost approved by Lender for Restoration, as applicable, Borrower may submit a disbursement request to reimburse Borrower for such excess cost. The disbursement request must be in writing and include an explanation for such request. Lender shall make disbursements from the applicable Reserve/Escrow Account, if: the excess cost is commercially reasonable; the amount of funds in the Construction Allowance. During applicable Reserve/Escrow Account is sufficient to pay such excess costs and the course of construction, once the then-current estimated cost of constructing completing all remaining Required Replacements, Restoration, or Required Repairs (at the Work Maximum Repair Cost), as applicable, and any other Borrower Requested Replacements, Borrower Requested Repairs, Additional Lender Replacements, or Additional Lender Repairs that have been previously approved by Lender; and all conditions for disbursement from the applicable Reserve/Escrow Account or the Repairs Escrow Account have been satisfied. Final Disbursements. Upon completion and satisfaction of all conditions for disbursements for any Repairs and Restoration, and further provided no Event of Default has exceeded occurred and is continuing, Lender shall disburse to Borrower any amounts then remaining in the amount Repairs Escrow Account or the Restoration Reserve Account, as applicable. Upon payment in full of the Construction Allowance plus the Pre-Paid Amount, Landlord shall provide written notice thereof to Tenant. Following Landlord’s delivery of such notice to Tenant, Tenant shall be obligated to pay for all xxxxxxxx from Landlord for the cost Indebtedness and release by Lender of the Work in excess lien of the Construction Allowance Security Instrument, Lender shall disburse to Borrower any and all amounts then remaining in the Pre-Paid Amount Reserve/Escrow Accounts (collectively, the “Above-Allowance Amounts”if not previously released). The payment Approvals of Contracts; Assignment of Claims. Lender retains the Above-Allowance Amounts shall be accomplished by increasing Tenantright to approve all contracts or work orders with materialmen, mechanics, suppliers, subcontractors, contractors, or other parties providing labor or materials in connection with the Replacements, Repairs, or Restoration. Notwithstanding Borrower’s share or Affiliated Property Operator’s assignment in the Security Instrument or any other Loan Document (or Unaffiliated Master Lessee’s assignment pursuant to the Operating Lease SNDA) of monthly disbursements its rights and claims against all Persons supplying labor or materials in connection with the Replacements, Repairs, or Restoration, Lender will not pursue any such right or claim unless an Event of Default has occurred and is continuing or as otherwise provided in Section 9 above. Under no circumstances shall Landlord be required to pay for the Above-Allowance Amounts. Following Substantial Completion of the Work, if the amount of the Total Construction Costs exceeds the sum of (i) the Construction Allowance, (ii) the Pre-Paid Amount, and (iii) the Above-Allowance Amounts, then Tenant shall be responsible for such excess costs (collectively, the “Excess Costs”14.3(ddddddd). Under no circumstances (except if to correct deficiencies in the Work which are brought to Landlord’s attention within the Warranty Period) shall Landlord be required to pay for any Excess Costs. Landlord will invoice Tenant for such Excess Costs; such invoice shall include adequate supporting documentation for the Excess Costs. Tenant shall pay Landlord the amount of the Excess Costs within twenty (20) days of receipt of such invoice, provided that Tenant approves the amount of the Excess Costs, such approval not to be unreasonably withheld, conditioned or delayed.

Excess Costs. As Within ten business days of Tenant’s submission of the date of this Amendment, the parties anticipate that the Total Construction Costs will exceed the amount of the Construction Allowance. During the course of construction, once the cost of constructing the Work has exceeded the amount of the Construction Allowance plus the Pre-Paid AmountFinal Plans, Landlord shall provide Tenant with a written notice thereof to Tenant. Following Landlord’s delivery summary (the “Excess Cost Summary”) of such notice to Tenant, Tenant shall be obligated to pay for all xxxxxxxx from Landlord for the cost of the Work Landlord’s Work, based on the Final Plans, that is in excess of the Construction Tenant Improvement Allowance and (defined in the Pre-Paid Amount Lease) (collectively, the “Above-Allowance Amounts”). The payment of the Above-Allowance Amounts shall be accomplished by increasing Tenant’s share of monthly disbursements provided in Section 9 above. Under no circumstances shall Landlord be required to pay for the Above-Allowance Amounts. Following Substantial Completion of the Work, if the amount of the Total Construction Costs exceeds the sum of (i) the Construction Allowance, (ii) the Pre-Paid Amount, and (iii) the Above-Allowance Amounts, then Tenant shall be responsible for such excess costs (collectively, the “Excess Costs”). Under no circumstances The Excess Cost Summary (except if to correct deficiencies in the Work which are brought to Landlord’s attention within the Warranty Periodand any revisions thereto) shall Landlord be required to pay for any Excess Costs. Landlord will invoice Tenant for include such Excess Costs; such invoice shall include adequate reasonable supporting documentation for the Excess Costs. as Tenant shall pay Landlord reasonably require to confirm the amount accuracy of the calculation of the Excess Costs and compliance with the terms of this Work Letter. Landlord shall cause the General Contractor to obtain competitive bids for Landlord’s Work from at least three subcontractors for each trade and category of work shown on the Final Plans. Tenant shall have the right to specify one subcontractor reasonably acceptable to Landlord to participate in such competitive bidding for each such trade or category. Landlord shall not require Tenant to specify unionized subcontractors. Landlord shall cause the General Contractor to accept the lowest bid submitted for each such trade or category unless such bid fails to conform to the Final Plans, the lowest bidder is not fully qualified too perform the work, does not have sufficient resources to perform the work in a timely manner or is not bondable on commercially reasonable terms or the Landlord or the General Contractor otherwise reasonably objects. If Tenant is not satisfied with any such bid, Tenant shall have the option to revise the Final Plans, to submit the Final Plans for Landlord’s approval according to this Paragraph 5(b), and to have such revised Final Plans submitted to any affected subcontractor for a revised bid. Tenant agrees to advise Landlord in writing of any disapproval of the Excess Cost Summary, and the reasons therefor within twenty (20) five business days of receipt of such invoice, provided that thereof. If Tenant approves the amount fails to timely deliver to Landlord Tenant’s written disapproval of the Excess Cost Summary, the Excess Cost Summary shall be deemed approved by Tenant. If the revised Excess Cost Summary is timely disapproved by Tenant pursuant to this paragraph, Tenant shall provide to Landlord a written explanation of the reason(s) for such disapproval concurrently with its disapproval, and the Excess Cost Summary, as appropriate, shall be promptly revised and resubmitted to Tenant for approval. If Tenant fails to provide a written explanation as and when required by this paragraph, the Excess Cost Summary shall be deemed approved by Tenant. Tenant agrees to approve in writing the revised Excess Cost Summary within five business days of its receipt thereof. If Tenant fails to timely deliver to Landlord written approval of the Excess Cost Summary, the Excess Cost Summary shall be deemed approved by Tenant. In calculating the cost of Landlord’s Work for the purpose of determining the Excess Costs (“Landlord’s Construction Costs”), such approval not costs shall include only (x) the total of all bids from subcontractors accepted by the General Contractor in accordance with this Paragraph 5(a) (the “Hard Costs”), (y) a charge for the General Contractor’s general conditions and fee equal to 7% of Hard Costs (which charge shall be unreasonably withheld10% with respect to any net increase in the Hard Costs resulting from a change described in Paragraph 6(b) below; provided, conditioned however, there shall be no charge with respect to the first $50,000 worth of change orders) and (z) an additional sum of up to $800,000 for overtime charges approved by Landlord and Tenant, acting reasonably and in good faith, as necessary to accomplish Substantial Completion on or delayedbefore the Scheduled Term Commencement Date.

Excess Costs. As of the date of this Amendment, the parties anticipate that the Total Construction Costs will exceed the amount of the Construction Allowance. During the course of construction, once the cost of constructing the Work has exceeded the amount of the Construction Allowance plus the Pre-Paid Amount, Landlord shall provide written notice thereof to Tenant. Following Landlord’s delivery of such notice to Tenant, Tenant shall be obligated to pay for all xxxxxxxx from Landlord for the cost of the Work in excess of the Construction Allowance and the Pre-Paid Amount (collectively, the “Above-Allowance Amounts”). The payment of the Above-Allowance Amounts shall be accomplished by increasing Tenant’s share of monthly disbursements provided in Section 9 11 above. Under no circumstances shall Landlord be required to pay for the Above-Allowance Amounts. Following Substantial Completion of the Work, if the amount of the Total Construction Costs exceeds the sum of (i) the Construction Allowance, (ii) the Pre-Paid Amount, and (iii) the Above-Allowance Amounts, then Tenant shall be responsible for such excess costs (collectively, the “Excess Costs”). Under no circumstances (except if to correct deficiencies in the Work which are brought to Landlord’s attention within the Warranty Period) shall Landlord be required to pay for any Excess Costs. Landlord will invoice Tenant for such Excess Costs; such invoice shall include adequate supporting documentation for the Excess Costs. Tenant shall pay Landlord the amount of the Excess Costs within twenty (20) days of receipt of such invoice, provided that Tenant approves the amount of the Excess Costs, such approval not to be unreasonably withheld, conditioned or delayed.