Common use of Delayed Occupancy Clause in Contracts

Delayed Occupancy. If Landlord fails to tender possession of the Premises to Tenant according to Paragraph 2 above on or before the Scheduled Commencement Date, Landlord will not be in default or liable in damages to Tenant, nor will the obligations of Tenant be affected, provided, however, that: (a) The Commencement Date will be extended automatically by one day for each day of the period after the Scheduled Commencement Date to the day on which Landlord tenders possession of the Premises to Tenant in accordance with Paragraph 2 above, less any portion of that period attributable to Tenant's delay as more particularly described in Paragraph 15, and (b) if Landlord does not tender possession of the Premises to Tenant in accordance with Paragraph 2 above on or before June 1, 2001 (as extended by any period of delay caused by Tenant's delay as described in Paragraph 15 below), Tenant will have the right to terminate the Lease by delivering written notice of termination to Landlord not more than 30 days after such tender deadline date. Upon a termination of this Lease under this subparagraph (b), each party will, upon the other's request, execute and deliver an agreement in recordable form containing, a release and surrender of all right, title and interest in and to the Lease; neither Landlord nor Tenant will have any further obligations to each other, including, without limitation, any obligations to pay for work previously performed in the Premises; all improvements to the Premises will become and remain the property of Landlord, and Landlord will refund to Tenant any sums paid to Landlord by Tenant in connection with the Lease, including,, without limitation, any payments to Landlord of construction costs for the Premises. Such postponement of the commencement of the Term and such termination and refund right will be in full settlement of all claims that Tenant might otherwise have against Landlord by reason of Landlord's failure to substantially complete its obligations under this Work Letter by the Scheduled Commencement Date.

Delayed Occupancy. If (i) Landlord fails shall use reasonable diligence to tender possession of the Premises to Tenant according to Paragraph 2 above substantially complete any Landlord's Work on or before the Scheduled Commencement DateDate specified in the Basic Lease Provisions. However, Landlord will this Lease shall not be in default void or liable in damages voidable, nor shall Landlord or its agents or contractors have any liability to Tenant, nor will by reason of Landlord's failure co substantially complete Landlord's Work by the obligations of Tenant be affected, provided, however, that: (a) The Commencement Date will be extended automatically by one day for each day of the period after the Scheduled Commencement Date to the day on which Landlord tenders possession of the Premises to Tenant in accordance with Paragraph 2 above, less any portion of that period attributable to Tenant's delay as more particularly described in Paragraph 15, and (b) if Landlord does not tender possession of the Premises to Tenant in accordance with Paragraph 2 above on or before June 1, 2001 (as extended by any period of delay caused by Tenant's delay as described in Paragraph 15 below), Tenant will have the right to terminate the Lease by delivering written notice of termination to Landlord not more than 30 days after such tender deadline date. Upon a termination of this Lease under this subparagraph (b), each party will, upon the other's request, execute and deliver an agreement in recordable form containing, a release and surrender of all right, title and interest in and to the Lease; neither Landlord nor Tenant will have any further obligations to each other, including, without limitation, any obligations to pay for work previously performed specified in the Premises; all improvements to the Premises will become and remain the property of LandlordBasic Lease Provisions, and Landlord will refund to Tenant any sums paid to Landlord by Tenant in connection with the Lease, including,, without limitation, any payments to Landlord of construction costs for the Premises. Such postponement of the commencement of the Term and such termination and refund right will be in full settlement of all claims that Tenant might otherwise have against Landlord or by reason of Landlord's failure to substantially complete deliver possession of the Premises due to any other cause beyond Landlord's reasonable control, and postponement of Tenant's rental obligation prior to delivery of possession of the Premises shall be Tenant's exclusive remedy and in sole satisfaction or all claims Tenant might otherwise have by reason of Landlord's failure to deliver the Premises by the Commencement Date specified in the Basic Lease Provisions. (ii) Time is of the essence in connection with the delivery to Landlord of each and every drawing, plan, specification, schedule or other item required to be given by Tenant to Landlord or to be approved by Tenant pursuant to the schedule in and provisions of the Scope of Work. Accordingly, notwithstanding any contrary provision of this Lease, if Landlord is delayed in the Substantial Completion of Landlords Work as a result of (a) Tenant's failure to approve plans, specifications, changes, cost estimates and other items within the time limits specified therefor in the Work Letter, or (b) any change by Tenant in said plans, specifications, or other items after the expiration of such time limits, or (c) any default by Tenant relating to its obligations hereunder or under this the Scope of Work, then, in any or all such instances and without limitation as to any other right or remedy available to Landlord. Landlord may under clause (c) of Paragraph 3.2 determine in its sole reasonable discretion that the actual Commencement Date is the date that Substantial Completion of Landlord's Work Letter by the Scheduled Commencement Datewould have occurred but for such delay.

Delayed Occupancy. If (a) If, due to Force Majeure, Landlord fails to tender possession of the Premises to Tenant according to Paragraph 2 above on or before the Scheduled Commencement Date, Landlord will not be in default or liable in damages to Tenant, nor will the obligations of Tenant be affected, provided, however, that: (a) The that the Commencement Date will be extended automatically by one day for each day of the period after the Scheduled Commencement Date to the day on which Landlord tenders possession of the Premises to Tenant in accordance with Paragraph 2 above, less any portion of that period attributable to Tenant's delay Delays as more particularly described in Paragraph 15Exhibit B. Both Landlord and Tenant agree to cooperate with each other in good faith to meet the dates of performance specified on the Construction Schedule attached hereto as Exhibit B-2. The failure to meet the task dates specified in the Construction Schedule as a result of either party's inability to perform, andcooperate or provide information or approvals necessary shall also be considered either a Tenant Delay or Landlord Delay (both as more particularly described in Exhibit B attached hereto), as applicable. If, for any reason, the date of Substantial Completion of the Tenant Leasehold Improvements (as more particularly described in Exhibit B attached hereto) occurs after the Scheduled Commencement Date and the aggregate number of days of delay beyond the Scheduled Commencement Date exceed the aggregate number of days attributable to Tenant Delay and Force Majeure, Landlord shall reimburse Tenant for such delay as follows: (i) If the Commencement Date is delayed during the period beginning September 1, 2001 through September 30, 2001, then: (A) Landlord agrees to pay to Tenant on September 1, 2001, the amount by which (x) any holdover rent and additional rent resulting from Tenant's continued occupancy pursuant to its lease ("Existing Lease") at Lenox Towers, 3390 ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ("▇xisting Space") for the month of September, 2001 exceeds (y) the fixed rent and additional rent payable for Tenant's Existing Lease of the Existing Space for the month of August, 2001. (B) Landlord shall be responsible for (1) any consequential and indirect damages [which Tenant is obligated to pay to the landlord of its Existing Space] and any defense costs incurred by Tenant in defending any action brought by the landlord under its Existing Lease resulting from Tenant's failure to vacate the Existing Space upon the expiration date of its Existing Lease, and (2) any fixed rent, additional rent and relocation costs, if any, for September, 2001 resulting from Tenant's occupancy of space other than the Existing Space ("Relocation Space") as a result of an actual or threatened dispossessory action that are in excess of the fixed rent and additional rent payable under Tenant's Existing Lease for August, 2001, and (3) fixed rent and additional rent payable under Tenant's Existing Lease for up to eighteen (18) days following the Commencement Date to the extent not paid pursuant to clause (A) above. Tenant hereby agrees to mitigate its damages resulting from any such delay. In addition to the foregoing, if Tenant is required to occupy space other than the Existing Space as a result of an actual or threatened dispossessory action, Tenant shall notify Landlord and Landlord shall reasonably control the terms and conditions under which Tenant selects, negotiates, and moves to any such alternative space. (ii) If the Commencement Date is delayed after September 30, 2001, then: (A) On October 1, 2001 and on the first (1st) day of each calendar month thereafter until the Commencement Date occurs, Landlord shall pay to Tenant the sum of Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00), not as a penalty, but as liquidated damages for any costs incurred by Tenant as a result of such delayed delivery of the Premises after September 30, 2001 (it being agreed that Tenant's actual damages would be difficult or impossible to ascertain and that such sum or sums constitute a reasonable pre-estimate of such damages). For example, if the Commencement Date is delayed until November 10, 2001, such liquidated damages would be $500,000 of which $250,000 would be payable on October 1, 2001 and $250,000 would be payable on November 1, 2001. (B) In addition to the liquidated damages described in (A) above, Landlord shall also be responsible for consequential and indirect damages resulting from Tenant's failure to vacate the Existing Space upon its Existing Lease expiration date due to Landlord's failure to deliver the Premises to Tenant on or prior to October 1, 2001 [which Tenant is obligated to pay the landlord of its Existing Space and any reasonable defense costs incurred by Tenant in defending any action brought by the landlord under its Existing Lease resulting from Tenant's failure to vacate the Existing Space upon the expiration date of its Existing Lease]. (b) if If Landlord does not tender possession of the full Premises to Tenant in accordance with Paragraph 2 above on or before June 1, 2001 the date six (as extended by 6) months after the Scheduled Commencement Date (plus any period of delay caused by Force Majeure and/or Tenant's delay Delays as described in Paragraph 15 belowExhibit B), Tenant will have the right to terminate the Lease by delivering written notice of termination to Landlord not more than 30 days after such tender deadline date. Upon a termination of this Lease under this subparagraph (b), each party will, upon the other's request, execute and deliver an agreement in recordable form containing, a release and surrender of all right, title and interest in and to the Lease; neither Landlord nor Tenant will have any further obligations to each other, including, without limitation, any obligations to pay for work previously performed in the Premises; all improvements to the Premises will become and remain the property of Landlord, and Landlord will refund to Tenant any sums paid to Landlord by Tenant in connection with the Lease, including,, without limitation, any payments to Landlord of construction costs for the Premises. Such postponement of the commencement of the Term and such termination and refund right will be in full settlement of all claims that Tenant might otherwise have against Landlord by reason of Landlord's failure to substantially complete its obligations under this Work Letter by the Scheduled Commencement Date.

Delayed Occupancy. If In the event that Landlord fails is prevented from completing the alterations and improvements described in Exhibit "B" due to tender the failure of the prior tenant to surrender possession of the Premises premise to the Landlord, work stoppages, labor controversies, accidents or other causes beyond the reasonable control of Landlord, Landlord shall not be liable to Tenant according to Paragraph 2 above on or before the Scheduled Commencement Date, Landlord will not be in default or liable in for damages to Tenantby reason thereof, nor will the obligations of shall Tenant be affectedrelieved from any obligation under this Lease, providedbut the rental shall be abated based on the above schedule (a pro-rated monthly installment shall be calculated on a PER DIEM BASIS) until the said alterations and improvements are completed. In such event, however, that: (a) The Commencement Date will be extended automatically by one day for each day of the period after the Scheduled Commencement Date to the day on which Landlord tenders possession of the Premises to Tenant in accordance with Paragraph 2 above, less any portion of that period attributable to Tenant's delay as more particularly described in Paragraph 15, and (b) if Landlord does not tender possession of the Premises to Tenant in accordance with Paragraph 2 above on or before June 1, 2001 (as extended by any period of delay caused by Tenant's delay as described in Paragraph 15 below), Tenant will have the right to terminate the Lease by delivering written notice of termination to Landlord not more than 30 days after such tender deadline date. Upon a termination term of this Lease under shall automatically be extended so as to include the full number of months provided for by this subparagraph Lease. IN THE EVENT THAT LANDLORD FAILS ON OR BEFORE FEBRUARY 15,1997 TO DELIVER THE PREMISES WITH ALL OF THE ALTERATIONS AND IMPROVEMENTS SUBSTANTIALLY COMPLETED (bEXCEPT FOR PUNCH LIST ITEMS), each party willAND PROVIDED TENANT HAS DELIVERED TO LANDLORD THREE (3) COPIES OF THE EXECUTED LEASE ALONG WITH FINAL APPROVAL OF THE FLOOR PLAN BY NOVEMBER 25. 1996, upon the other's requestCONFIRMATION ON ALL ELECTRICAL, execute and deliver an agreement in recordable form containingPLUMBING, a release and surrender of all rightPIPING FOR AIR LINE, title and interest in and to the Lease; neither Landlord nor Tenant will have any further obligations to each otherFLOOR FINISHES, includingABOVE STANDARD HVAC AND EXHAUST SYSTEM REQUIREMENTS, without limitationTOGETHER WITH ALL MATERIAL SAFETY DATA SHEETS FOR CHEMICALS USED OR STORED, any obligations to pay for work previously performed in the Premises; all improvements to the Premises will become and remain the property of LandlordAND WAREHOUSE RACKING LAYOUT (IF ANY) BY NOVEMBER 27. 1996. LANDLORD SHALL PAY TO TENANT'S CURRENT LANDLORD ANY HOLDOVER COSTS WHICH MAY BE INCURRED BY TENANT AS A RESULT OF THE DELAYED OCCUPANCY BEGINNING FEBRUARY 16.1997 UNTIL SUCH TIME AS PREMISES IS AVAILABLE FOR OCCUPANCY UNLESS DELAY WAS CAUSED BY TENANT, and Landlord will refund to Tenant any sums paid to Landlord by Tenant in connection with the LeaseTHE VILLAGE OF V▇▇▇▇▇ HILLS, including,, without limitation, any payments to Landlord of construction costs for the PremisesOR OTHER CONDITIONS WHICH WERE BEYOND THE CONTROL OF LANDLORD. Such postponement of the commencement of the Term and such termination and refund right will be in full settlement of all claims that Tenant might otherwise have against Landlord by reason of Landlord's failure to substantially complete its obligations under this Work Letter by the Scheduled Commencement DateSUCH PAYMENT OF HOLDOVER COSTS SHALL NOT EXCEED ONE THOUSAND ($1,000.00) DOLLARS PER DAY.

Delayed Occupancy. If (i) Landlord fails shall use reasonable diligence to tender possession of the Premises to Tenant according to Paragraph 2 above substantially complete any Landlord's Work on or before the Scheduled Commencement DateDate specified in the Basic Lease Provisions. However, Landlord will this Lease shall not be in default void or liable in damages voidable, nor shall Landlord or its agents or contractors have any liability to Tenant, nor will the obligations of Tenant be affected, provided, however, that: (a) The Commencement Date will be extended automatically by one day for each day of the period after the Scheduled Commencement Date to the day on which Landlord tenders possession of the Premises to Tenant in accordance with Paragraph 2 above, less any portion of that period attributable to Tenant's delay as more particularly described in Paragraph 15, and (b) if Landlord does not tender possession of the Premises to Tenant in accordance with Paragraph 2 above on or before June 1, 2001 (as extended by any period of delay caused by Tenant's delay as described in Paragraph 15 below), Tenant will have the right to terminate the Lease by delivering written notice of termination to Landlord not more than 30 days after such tender deadline date. Upon a termination of this Lease under this subparagraph (b), each party will, upon the other's request, execute and deliver an agreement in recordable form containing, a release and surrender of all right, title and interest in and to the Lease; neither Landlord nor Tenant will have any further obligations to each other, including, without limitation, any obligations to pay for work previously performed in the Premises; all improvements to the Premises will become and remain the property of Landlord, and Landlord will refund to Tenant any sums paid to Landlord by Tenant in connection with the Lease, including,, without limitation, any payments to Landlord of construction costs for the Premises. Such postponement of the commencement of the Term and such termination and refund right will be in full settlement of all claims that Tenant might otherwise have against Landlord by reason of Landlord's failure to substantially complete Landlord's Work by the Commencement Date specified in the Basic Lease Provisions, or by reason of Landlord's failure to deliver possession of the Premises due to any other cause beyond Landlord's reasonable control, and postponement of Tenant's rental obligation prior to delivery of possession of the Premises shall be Tenant's exclusive remedy and in sole satisfaction of all claims Tenant might otherwise have been reason of Landlord's failure to deliver the Premises by the Commencement Date specified in the Basic Lease Provisions. (ii) Time is of the essence in connection with the delivery to Landlord of each and every drawing, plan, specification, schedule or other item required to be given by Tenant to Landlord or to be approved by Tenant pursuant to the schedule in and provisions of the scope of Work. Accordingly, notwithstanding any contrary provision of this Lease, if Landlord is delayed in the Substantial Completion of Landlord's Work as a result of (a) Tenant's failure to approve plans, specifications, changes, cost estimates and other items within the time limits specified therefor in the Work Letter, or (b) any change by Tenant in said plans, specifications, or other items after the expiration of such time limits, or (c) any default by Tenant relating to its obligations hereunder or under this the Scope of Work, then, in any or all such instances and without limitation as to any other right or remedy available to Landlord. Landlord may under clause (c) of Paragraph 3.2 determine in its sole reasonable discretion that the actual Commencement Date is the date that Substantial Completion of Landlord's Work Letter by the Scheduled Commencement Datewould have occurred but for such delay.

Delayed Occupancy. If Landlord fails 2.5.1 Notwithstanding anything to tender possession of the Premises to contrary herein, if the "Tenant according to Paragraph 2 above Improvements" (as defined in Exhibit B) are not substantially complete on or before the Scheduled Lease Commencement Date, Landlord will the Lease shall not be in default void or liable in damages to Tenantvoidable, nor will shall Landlord be liable to Tenant for any loss or damage resulting therefrom except as otherwise provided herein: In such event (i) the obligations Lease Commencement Date shall be the first business day after the Tenant Improvements are substantially complete in accordance with the provisions of Tenant be affectedExhibit B and the Final Plans, providedas certified by Landlord's contractor, however, that: (aii) The Rent Commencement Date will shall be extended automatically by delayed one day for each day of delay in delivery, and (iii) Landlord shall be responsible for all of Tenant's "Holdover Costs" (defined below). Landlord shall reimburse Tenant for such Holdover Costs within thirty (30) days after receipt of a demand therefor from Tenant, such demand to be accompanied by reasonable backup documentation substantiating the amount requested by Tenant. As used herein, the term "Holdover Costs" means the total amount of base rental paid by Tenant at its current location (15041 Bake Parkway, Suite A, Irvine, California 92618), as adjusted upwards by any holdover penalties, during the period after the Scheduled Commencement Date to commencing on June 1, 2002 and continuing until the day on which Landlord tenders possession of substantially completes the Tenant Improvements (adjusted for any partial months during such period), including without limitation any fines, penalties or interest charges resulting solely from Tenant's continued occupancy at such current location (as opposed to those costs resulting from Tenant's failure to timely pay rent and other charges due under its current lease at such location) but excluding (i) any additional rent or other amounts paid by Tenant for common area maintenance charges, real estate taxes and assessments and/or insurance premiums (whether under a "triple net" or "gross" lease structure or otherwise), (ii) utility charges, and (iii) charges for items which Tenant would have been obligated to pay Landlord hereunder had Landlord Substantially Completed the Premises by the Lease Commencement Date. In the event, however, that Tenant is not able to holdover in its current premises, then "Holdover Costs" shall include the total amount of base rental paid by Tenant in accordance with Paragraph 2 at any temporary office location, plus moving expenses and all associated costs of relocation, but excluding items (i), (ii) and (iii) above, only to the extent such charges are the same or less any portion of that period attributable to than such charges were at Tenant's delay as more particularly described current premises. Landlord shall pay the difference between the actual additional rent charges in Paragraph 15any temporary office location and Tenant's additional rent charges in its current location. Notwithstanding the foregoing, and (b) if Landlord in the event the Lease Commencement Date does not tender possession of the Premises occur prior to July 31, 2002, then Tenant in accordance with Paragraph 2 above on or before June 1, 2001 (as extended by any period of delay caused by Tenant's delay as described in Paragraph 15 below), Tenant will shall have the right to terminate the this Lease by delivering upon ten (10) days written notice of termination to Landlord not more than 30 days after such tender deadline date. Upon a termination of this Lease under this subparagraph (b), each party will, upon the other's request, execute and deliver an agreement in recordable form containing, a release and surrender of all right, title and interest in and to the Lease; neither Landlord nor Tenant will have any further obligations to each other, including, without limitation, any obligations to pay for work previously performed in the Premises; all improvements to the Premises will become and remain the property of Landlord, and Landlord will refund to Tenant any sums paid to Landlord by Tenant in connection with the Lease, including,, without limitation, any payments to Landlord of construction costs for the Premises. Such postponement of the commencement of the Term and such termination and refund right will be in full settlement of all claims that Tenant might otherwise have against Landlord by reason of Landlord's failure to substantially complete its obligations under this Work Letter by the Scheduled Commencement Date.

Delayed Occupancy. If Landlord fails to tender possession of the Premises to Tenant according to Paragraph 2 above on or before the Scheduled Commencement DateDate (as it may be extended for “Force Majeure Delays,” as defined in Paragraph 14 below), Landlord will not be in default or liable in damages to Tenant, nor will the obligations of Tenant be affected, provided, however, that: : (a) The the Commencement Date will be extended automatically by one day for each day of the period after the Scheduled Commencement Date to the day on which Landlord tenders possession of the Premises to Tenant in accordance with according to Paragraph 2 above, less any portion of that period attributable to Tenant's delay ’s delays as more particularly described in Paragraph 15, and 15 below; and (b) if the Commencement Date (as it may be adjusted because of Tenant’s delays) has not occurred on or before the date that is: (i) 45 days after the Scheduled Commencement Date, then Tenant will receive one day of abated Base Rent for each day that elapses after the 45-day period until the Commencement Date occurs, which abatement shall apply to Base Rent payments first coming due after the Commencement Date; and (ii) 120 days after the Scheduled Commencement Date, then at any time within 10 business days after such date (but before Landlord does not tender has tendered possession of the Premises to Tenant in accordance with as provided under Paragraph 2 above on or before June 1, 2001 (as extended by any period of delay caused by Tenant's delay as described in Paragraph 15 below2), Tenant will have the right to give Landlord notice of Tenant’s intent to terminate the Lease by delivering written notice (“Tenant’s Termination Notice”), and if Landlord has not tendered possession of termination to Landlord not more than the Premises on or before the date that is 30 days after such tender deadline datethe date Landlord receives Tenant’s Termination Notice, the Lease will automatically terminate at the close of business on the 30th day after the date Landlord receives Tenant’s Termination Notice. Upon a termination of this Lease under this subparagraph (b)Paragraph 4(b) above, each party will, upon the other's ’s request, execute and deliver an agreement in recordable form containing, containing a release and surrender of all right, title and interest in and to the Lease; neither Landlord nor Tenant will have any further obligations to each other, including, without limitation, any obligations to pay for work previously performed in other under the PremisesLease; all improvements to the Premises will become and remain the property of Landlord, ; and Landlord will refund to Tenant any all sums paid to Landlord by Tenant in connection with the Lease, including,, without limitation, any payments to Landlord of construction costs for the Premises. Such postponement The extension of the commencement of the Term Commencement Date and such termination and refund right will be in full settlement of all claims that Tenant might otherwise have against Landlord by reason of Landlord's failure to substantially complete its obligations under this Work Letter by the Scheduled Commencement Date.Tenant’s

Delayed Occupancy. If Landlord fails to tender cannot deliver possession of the Demised Premises to Tenant according to Paragraph 2 above on or before by the Scheduled Lease Commencement Date, Landlord will the Lease shall not be void or voidable, nor shall Landlord be liable to Tenant for any loss or damage resulting therefrom; in default or liable that event the term of this Lease shall be amended to commence on the date when Landlord can deliver possession, and all corresponding dates of the Lease shall be adjusted accordingly in damages conjunction with paragraph 1 (g) above. If as a result of such postponement, the term would begin on other than the first day of a month, the commencement date shall be the first day of that month; however, the Tenant shall pay rent pro-rated for such partial month's occupancy in conjunction with paragraph 4. above. Anything to the contrary notwithstanding, in the event that Landlord has not delivered possession of the Demised Premises prior to May 15, 1997, Landlord agrees to make available to Tenant, nor will under the obligations same terms and conditions set forth herein, thirteen thousand (13,000) square feet of Tenant be affected, provided, however, that: (a) The Commencement Date will be extended automatically warehouse space within the Port 95-3 building which is owned by one day for each day an affiliate of Landlord. Upon the commencement of the period after the Scheduled Commencement Date to the day on which Landlord tenders possession Lease Term, all of the Premises to Tenant in accordance with Paragraph 2 above, less any portion of that period attributable to Tenant's delay as more particularly described in Paragraph 15, and (b) if Landlord does not tender possession of the Premises to Tenant in accordance with Paragraph 2 above on or before June 1, 2001 (as extended by any period of delay caused by Tenant's delay as described in Paragraph 15 below), Tenant will have the right to terminate the Lease by delivering written notice of termination to Landlord not more than 30 days after such tender deadline date. Upon a termination of this Lease under this subparagraph (b), each party will, upon the other's request, execute and deliver an agreement in recordable form containing, a release and surrender of all right, title and interest rights in and to the Lease; neither Landlord nor Tenant will have any further obligations to each other, including, without limitation, any obligations to pay for work previously performed premises in the Premises; all improvements Port 95-3 building shall terminate. In the event that Landlord has not obtained a Certificate of Occupancy for the warehouse portion of the Demised Premises with ninety (90) days from the date of this Lease, (the "Anticipated Delivery Date") Landlord shall give the Tenant a credit against Rent equal to $85.93 for every day beyond the Anticipated Delivery Date until a Certificate of Occupancy for the warehouse portion of the Demised Premises has been obtained. In the event that Landlord has not obtained a Certificate of Occupancy for the warehouse portion of the Demised Premises prior to one hundred eighty (180) days from the date of this Lease (the "Termination Date"), Tenant shall have the option of either (i) terminating the Lease or (ii) extending the Termination Date for an additional forty five (45) days. Tenant shall notify Landlord in writing of its decision within five (5) business days of the Termination Date. If Tenant fails to notify Landlord of its decision within five (5) days of the Termination Date, then Landlord shall have the option of terminating the Lease or extending the Termination Date. Landlord will obtain a Certificate of Occupancy for the office portion of the Demised Premises and will deliver occupancy of said portion to the Premises will become and remain the property of Landlord, and Landlord will refund to Tenant any sums paid to Landlord by Tenant in connection with the Lease, including,, without limitation, any payments to Landlord of construction costs for the Premises. Such postponement of the within thirty (30) days after commencement of the Lease Term and such termination and refund right will be in full settlement of all claims that Tenant might otherwise have against Landlord by reason of Landlord's failure to substantially complete its obligations under this Work Letter (the "Office Completion Date"). In the event the office portion is not completed by the Scheduled Commencement Office Completion Date, Tenant shall be entitled to a credit against Rent of $25.00 for every day beyond the Office Completion Date until delivery of possession of the office portion to the Tenant.

Delayed Occupancy. If (i) Landlord fails shall use reasonable diligence to tender possession of the Premises to Tenant according to Paragraph 2 above substantially complete any Landlord's Work on or before the Scheduled Commencement DateDate specified in the Basic Lease Provisions. However, Landlord will this Lease shall not be in default void or liable in damages voidable, nor shall Landlord or its agents or contractors have any liability to Tenant, nor will the obligations of Tenant be affected, provided, however, that: (a) The Commencement Date will be extended automatically by one day for each day of the period after the Scheduled Commencement Date to the day on which Landlord tenders possession of the Premises to Tenant in accordance with Paragraph 2 above, less any portion of that period attributable to Tenant's delay as more particularly described in Paragraph 15, and (b) if Landlord does not tender possession of the Premises to Tenant in accordance with Paragraph 2 above on or before June 1, 2001 (as extended by any period of delay caused by Tenant's delay as described in Paragraph 15 below), Tenant will have the right to terminate the Lease by delivering written notice of termination to Landlord not more than 30 days after such tender deadline date. Upon a termination of this Lease under this subparagraph (b), each party will, upon the other's request, execute and deliver an agreement in recordable form containing, a release and surrender of all right, title and interest in and to the Lease; neither Landlord nor Tenant will have any further obligations to each other, including, without limitation, any obligations to pay for work previously performed in the Premises; all improvements to the Premises will become and remain the property of Landlord, and Landlord will refund to Tenant any sums paid to Landlord by Tenant in connection with the Lease, including,, without limitation, any payments to Landlord of construction costs for the Premises. Such postponement of the commencement of the Term and such termination and refund right will be in full settlement of all claims that Tenant might otherwise have against Landlord by reason of Landlord's failure to substantially complete Landlord's Work by the Commencement Date specified in the Basic Lease Provisions, or by reason of Landlord's failure to deliver possession of the Premises due to any other cause beyond Landlord's reasonable control, and postponement of Tenant's rental obligation prior to delivery of possession of the Premises shall be Tenant's exclusive remedy and in sole satisfaction of all claims Tenant might otherwise have by reason of Landlord's failure to deliver the Premises by the Commencement Date specified in the Basic Lease Provisions. (ii) Time is of the essence in connection with the delivery to Landlord of each and every drawing, plan, specification, schedule or other item required to be given by Tenant to Landlord or to be approved by Tenant pursuant to the schedule in and provisions of the Scope of Work. Accordingly, notwithstanding any contrary provision of this Lease, if Landlord is delayed in the Substantial Completion of Landlord's Work as a result of (a) Tenant's failure to approve plans, specifications, changes, cost estimates and other items within the time limits specified therefor in the Work Letter, or (b) any change by Tenant in said plans, specifications. or other items after the expiration of such time limits, or (c) any default by Tenant relating to its obligations hereunder or under this the Scope of Work, then, in any or all such instances and without limitation as to any other right or remedy available to Landlord, Landlord may under clause (c) of Paragraph 3.2 determine in its sole reasonable discretion that the actual Commencement Date is the date that Substantial Completion of Landlord's Work Letter by the Scheduled Commencement Datewould have occurred but for such delay.

Delayed Occupancy. If Landlord fails to tender possession of the Premises to Tenant according to Paragraph 2 above on or before the Scheduled Commencement Date, Landlord will not be in default or liable in damages to Tenant, nor will the obligations of Tenant be affected, provided, however, that: (a) The the Commencement Date will be extended automatically by one day for each day of the period after the Scheduled Commencement Date to the day on which Landlord tenders possession of the Premises to Tenant in accordance with according to Paragraph 2 above, less any portion of that period attributable to Tenant's delay delays as more particularly described in Paragraph 15, 14 below; and (b) if Landlord does not tender possession of the Premises to Tenant in accordance with according to Paragraph 2 above on or before June 1, 2001 the date 60 days after the Scheduled Commencement Date (as extended by plus any period of delay caused by Tenant's delay delays as described in Paragraph 15 14 below), Tenant will have the right to terminate the Lease by delivering written notice of termination to Landlord not more than 30 days after such tender deadline date. Upon a termination of this Lease under this subparagraph (b)Paragraph 4(b) above, each party will, upon the other's request, execute and deliver an agreement in recordable form containing, containing a release and surrender of all right, title and interest in and to the Lease; neither Landlord nor Tenant will have any further obligations to each other, including, without limitation, any obligations to pay for work previously performed in the Premises; all improvements to the Premises will become and remain the property of Landlord, ; and Landlord will refund to Tenant any sums paid to Landlord by Tenant in connection with the Lease, including,, without limitation, any payments to Landlord of construction costs for the Premises. Such postponement of the commencement of the Term and such termination and refund right will be in full settlement of all claims that Tenant might otherwise have against Landlord by reason of Landlord's failure to substantially complete its obligations under this Work Letter by the Scheduled Commencement Date.

Delayed Occupancy. If If, due to the holdover of a prior occupant or other reason beyond Landlord's control, Landlord fails to tender possession of the Premises to Tenant according to Paragraph 2 above on or before the Scheduled Commencement Date, Landlord will not be in default or liable in damages to Tenant, nor will the obligations of Tenant be affected, provided, however, that: (a) The the Commencement Date will be extended automatically by one day for each day of the period after the Scheduled Commencement Date to the day on which Landlord tenders possession of the Premises to Tenant in accordance with Paragraph 2 above, less any portion of that period attributable to Tenant's delay Delays as more particularly described in Paragraph 15, exhibit B; and (b) if Landlord does not tender possession of the full Premises to Tenant in accordance with Paragraph 2 above on or before June 1, 2001 the date 6 months after the Scheduled Commencement Date (as extended by plus any period of delay caused by Force Majeure and/or Tenant's delay Delays as described in Paragraph 15 belowExhibit B), Tenant will have the right to terminate the Lease by delivering written notice of the termination to Landlord not more than 30 days after such tender deadline date. Upon a termination of this Lease under this subparagraph Section 3.3 (b)) above, each party will, upon the other's request, execute and deliver an agreement in recordable form containing, containing a release and surrender of all right, title and interest in and to the Lease; neither Landlord nor Tenant will have any further obligations to each other, including, without limitation, any obligations to pay for work previously performed in the Premises; all improvements to the Premises will become and remain the property of Landlord, and Landlord will refund to Tenant any sums paid to Landlord by Tenant in connection with the Lease, including,, without limitation, any payments to Landlord of construction costs for the Premises. Such postponement of the commencement of the Term and such termination and refund right will be in full settlement of all claims that Tenant might otherwise have against Landlord by reason of Landlord's failure to substantially complete its obligations under this Work Letter tender the Premises by the Scheduled Commencement Date.

Delayed Occupancy. If (a) Landlord fails to tender possession of the Premises to Tenant according to Paragraph 2 above shall Substantially Complete any Landlord's Work on or before the Scheduled Commencement Date, Landlord will not be Date specified in default or liable in damages to Tenant, nor will the obligations of Tenant be affectedBasic Lease Provisions, provided, however, that: (a) The that the Commencement Date will for purposes of Landlord's obligation with respect to Landlord's Work shall be extended automatically by one (1) day for each day (i) that the Lease is not fully executed by August 22, 1994, (ii) that Tenant causes a delay in Landlord's Work, and (iii) that an event of the period after the Scheduled Commencement Date to the day on which force majeure delays Landlord's Work. However, this Lease shall not be void or voidable, nor shall Landlord tenders possession of the Premises to Tenant in accordance with Paragraph 2 above, less or its agents or contractors have any portion of that period attributable liability to Tenant's delay as more particularly described in Paragraph 15, and (b) if Landlord does not tender possession of the Premises to Tenant in accordance with Paragraph 2 above on or before June 1, 2001 (as extended by any period of delay caused by Tenant's delay as described in Paragraph 15 below), Tenant will have the right to terminate the Lease by delivering written notice of termination to Landlord not more than 30 days after such tender deadline date. Upon a termination of this Lease under this subparagraph (b), each party will, upon the other's request, execute and deliver an agreement in recordable form containing, a release and surrender of all right, title and interest in and to the Lease; neither Landlord nor Tenant will have any further obligations to each other, including, without limitation, any obligations to pay for work previously performed in the Premises; all improvements to the Premises will become and remain the property of Landlord, and Landlord will refund to Tenant any sums paid to Landlord by Tenant in connection with the Lease, including,, without limitation, any payments to Landlord of construction costs for the Premises. Such postponement of the commencement of the Term and such termination and refund right will be in full settlement of all claims that Tenant might otherwise have against Landlord by reason of Landlord's failure to substantially complete Landlord's Work by the Commencement Date specified in the Basic Lease Provisions, or by reason of Landlord's failure to deliver possession of the Premises due to any other cause beyond Landlord's reasonable control, arid postponement of Tenant's rental obligation prior to delivery of possession of the Premises shall be Tenant's exclusive remedy and in sole satisfaction of all claims Tenant might otherwise have by reason of Landlord's failure to deliver the Premises by the Commencement Date specified in the Basic Lease Provisions. Notwithstanding the foregoing, if the Premises are not Substantially Completed on or before the termination date under the Existing Lease (as defined in Section 22) or the date Tenant's right to occupy a portion of its existing space on the ninth floor of the Building under a certain sublease with Preferred Health Network ("Sublease") expires, provided such delay in Landlord's Work has not been caused by Tenant and the termination of the Existing Lease or the Sublease, as the case may be, does not result from Tenant's default, Tenant shall have the right to continue to occupy its entire existing space on the ninth floor of the Building on the same terms and conditions as the Existing Lease. (b) Time is of the essence in connection with the delivery to Landlord of each and every drawing, plan, specification, schedule or other item required to be given by Tenant to Landlord or to be approved by Tenant pursuant to the schedule in and provisions of the Scope of Work. Accordingly, notwithstanding any contrary provision of this Lease, if Landlord is delayed in the Substantial Completion of Landlord's Work as a result of (i) Tenant's failure to approve plans, specifications, changes, cost estimates and other items within the time limits specified therefor in the Scope of Work, or (ii) any change by Tenant in said plans, specifications, or other items after the expiration of such time limits, or ;iii) any default by Tenant relating to its obligations hereunder or under this the Scope of Work, then, in any or all such instances and without limitation as to any other right or remedy available to Landlord, Landlord may under clause (c) of Paragraph 3.2 determine in its sole reasonable discretion that the actual Commencement Date is the date that Substantial Completion of Landlord's Work Letter by the Scheduled Commencement Datewould have occurred but for such delay.