Common use of Excess TI Costs Clause in Contracts

Excess TI Costs. Landlord shall have no obligation to bear any portion of the cost of any of the Tenant Improvements except to the extent of the TI Allowance and Landlord’s Construction Limitation Contribution. If at any time and from time-to-time, the remaining TI Costs under the Budget (other than costs for Outside Hours Tenant Improvements) exceed the remaining unexpended Tenant Improvement Allowance and the Initially Elected Additional Allowance (“Excess TI Costs”), monthly disbursements of the TI Allowance shall be made on a “pari passu” basis in the proportion that the remaining Tenant Improvement Allowance and the Initially Elected Additional Allowance bear to the outstanding TI Costs under the Budget, and Tenant shall fund the balance of each such monthly draw. At Tenant’s option, Tenant shall pay for such monthly balance out of pocket, or Tenant may request that such monthly balance be funded from all or a portion of that portion of the Additional Tenant Improvement Allowance over and above the Initially Elected Additional Allowance. For purposes of any litigation instituted with regard to such amounts, those amounts required to be paid by Tenant will be deemed Rent under the Lease. The TI Allowance and Excess TI Costs are herein referred to as the “TI Fund.” Notwithstanding anything to the contrary set forth in this Section 5(d), Tenant shall be fully and solely liable for the TI Costs (other than costs for Outside Hours Tenant Improvements) and the cost of Minor Variations in excess of the Tenant Improvement Allowance and the Initially Elected Additional Allowance. On a monthly basis as construction of the Tenant Improvements progresses, as a component of the monthly Tenant reimbursement submission to Landlord, Tenant shall cause the Design Build Contractor to prepare (and deliver a copy to Landlord) a detailed progress report (i) identifying any Outside Hours Tenant Improvements constructed during the immediately preceding calendar month, which shall be broken down to show each subcontractors hourly manpower billing, TRG billing and any other component cost building of premium costs, (ii) reflecting the amount of the Outside Hours Cost Estimate actually expended toward Outside Hours Costs incurred during the immediately preceding calendar month, (iii) reflecting the total amount of the Outside Hours Cost Estimate expended for Outside Hours Tenant Improvements from the commencement of construction through the end of the immediately preceding calendar month, and (iv) reflecting, in the Design Building Contractor’s good faith reasonable opinion the (A) Outside Hours Tenant Improvements anticipated to be constructed during the following calendar month, (B) the total remaining Outside Hours Tenant Improvements anticipated to be constructed through the Substantial Completion of the Tenant Improvements, (C) the estimated Outside Hours Costs for remaining Outside Hours Tenant Improvements anticipated during the following calendar month, (D) the total estimated Outside Hours Costs for remaining Outside Hours Tenant Improvements anticipated through the Substantial Completion of the Tenant Improvements, and (E) remaining balance or existing shortfall in the Outside Hours Cost Estimate. If the Design Build Contractor’s report reflects either an existing shortfall in the amount of the Outside Hours Cost Estimate or an estimated shortfall in the remaining Outside Hours Tenant Improvements, then, along with its report, Design Build Contractor shall deliver an amended Budget to Landlord equitably adjusting the total amount of the Outside Hours Cost Estimate to include the remaining estimated Outside Hours Costs based on the anticipated remaining Outside Hours Tenant Improvements. Landlord shall not unreasonably withhold, condition or delay its approval of any such amendment to the Budget.

Excess TI Costs. Landlord shall have no obligation to bear any portion of the cost of any of the Tenant Improvements except to the extent of the TI Premises Allowance. Landlord shall be responsible for the cost of the Base Building Work in excess of the Base Building Allowance and Landlord’s Construction Limitation Contributionexcept to the extent that such excess costs are the result of or in connection with Tenant Delays, Changes or Change Requests. If at any time and from time-to-time, (i) the remaining TI Costs for the Base Building Work under the Budget (other than costs for Outside Hours Tenant Improvements) exceed the remaining unexpended Base Building Allowance as a result of or in connection with Tenant Delays, Changes or Change Requests (collectively, “Excess Base Building Costs”), and/or (ii) the remaining TI Costs for the Tenant Improvements under the Budget exceed the remaining unexpended Premises Allowance including without limitation, as a result of or in connection with Tenant Delays, Changes or Change Requests (collectively, “Excess Tenant Improvement Allowance and Costs”), Tenant shall deposit with Landlord, as a condition precedent to Landlord’s obligation to complete Landlord’s Work, 25% of the Initially Elected Additional Allowance then current Excess Base Building Costs and/or Excess Tenant Improvement Costs (collectively, “Excess TI Costs”), monthly disbursements . Tenant shall pay to Landlord the remaining balance of the Excess TI Allowance shall be made Costs on a “pari passu” pro rata basis in as such costs are incurred within 10 days after receipt of an invoice therefor based on (x) with respect to Excess Tenant Improvement Costs, the proportion percentage that the remaining Tenant Improvement Premises Allowance and the Initially Elected Additional Allowance bear bears to the outstanding Budget for the Tenant Improvements (as the same may be amended from time to time), and/or (y) with respect to Excess Base Building Costs, the percentage that the remaining Base Building Allowance plus any TI Costs under for the Budget, and Tenant shall fund Base Building Work for which Landlord is responsible bears to the balance Budget for the Base Building Work (as the same may be amended from time to time). If any Excess TI Costs have not been paid to Landlord upon the Substantial Completion of each such monthly draw. At TenantLandlord’s optionWork, Tenant shall pay for such monthly balance out Excess TI Costs to Landlord within 10 days after receipt of pocketan invoice therefor. If Tenant fails to deposit any Excess TI Costs with Landlord, or Tenant may request that such monthly balance be funded from Landlord shall have all or a portion of that portion of the Additional Tenant Improvement Allowance over rights and above remedies set forth in the Initially Elected Additional AllowanceLease for nonpayment of Rent (including, but not limited to, the right to interest at the Default Rate and the right to assess a late charge). For purposes of any litigation instituted with regard to such amounts, those amounts required to be paid by Tenant will be deemed Rent under the Lease. The TI Allowance and Excess TI Costs are herein referred to as the “TI Fund.” Funds deposited by Tenant shall be the first disbursed to pay TI Costs. Notwithstanding anything to the contrary set forth in this Section 5(d), Tenant shall be fully and solely liable for the TI Costs (other than costs for Outside Hours Tenant Improvements) and the cost of Minor Variations in excess of the Tenant Improvement Allowance and the Initially Elected Additional TI Allowance. On a monthly basis as construction If upon completion of the Tenant Improvements progresses, as a component and the payment of all sums due in connection therewith there remains any undisbursed portion of the monthly Tenant reimbursement submission to LandlordTI Fund, Tenant shall cause be entitled to such undisbursed TI Fund solely to the Design Build Contractor to prepare (and deliver a copy to Landlord) a detailed progress report (i) identifying any Outside Hours Tenant Improvements constructed during the immediately preceding calendar month, which shall be broken down to show each subcontractors hourly manpower billing, TRG billing and any other component cost building of premium costs, (ii) reflecting the amount of the Outside Hours Cost Estimate actually expended toward Outside Hours Costs incurred during the immediately preceding calendar month, (iii) reflecting the total amount of the Outside Hours Cost Estimate expended for Outside Hours Tenant Improvements from the commencement of construction through the end of the immediately preceding calendar month, and (iv) reflecting, in the Design Building Contractor’s good faith reasonable opinion the (A) Outside Hours Tenant Improvements anticipated to be constructed during the following calendar month, (B) the total remaining Outside Hours Tenant Improvements anticipated to be constructed through the Substantial Completion of the Tenant Improvements, (C) the estimated Outside Hours Costs for remaining Outside Hours Tenant Improvements anticipated during the following calendar month, (D) the total estimated Outside Hours Costs for remaining Outside Hours Tenant Improvements anticipated through the Substantial Completion of the Tenant Improvements, and (E) remaining balance or existing shortfall in the Outside Hours Cost Estimate. If the Design Build Contractor’s report reflects either an existing shortfall in the amount of the Outside Hours Cost Estimate or an estimated shortfall in the remaining Outside Hours Tenant Improvements, then, along with its report, Design Build Contractor shall deliver an amended Budget to Landlord equitably adjusting the total amount of the Outside Hours Cost Estimate to include the remaining estimated Outside Hours Costs based on the anticipated remaining Outside Hours Tenant Improvements. Landlord shall not unreasonably withhold, condition or delay its approval extent of any such amendment to the BudgetExcess TI Costs deposit Tenant has actually made with Landlord.

Excess TI Costs. It is understood and agreed that Landlord shall have is under no obligation to bear any portion of the cost of any of the Tenant Improvements Improvements, or Tenant's Share of the costs of the Central Plant, except to the extent of the TI Allowance and Landlord’s Construction Limitation ContributionAllowance. If at any time and from time-to-time, the remaining aggregate TI Costs under the Budget (other than costs for Outside Hours Tenant Improvements) exceed the remaining unexpended Tenant Improvement Allowance and the Initially Elected Additional aggregate TI Allowance (“"Excess TI Costs”"), monthly disbursements Tenant shall deposit with Landlord, as a condition precedent to Landlord's obligation to complete the Tenant Improvements, one-quarter of the difference, in cash (the "Excess TI Allowance shall be made on a “pari passu” basis in the proportion that the remaining Tenant Improvement Allowance and the Initially Elected Additional Allowance bear Deposit"), prior to the outstanding TI Costs under commencement of construction of the BudgetTenant Improvements, and to be held by Landlord until Tenant shall fund has funded the balance of each any such Excess TI Costs as provided herein. Each month, in connection with the monthly draw. At Tenant’s optiondraws to pay for the Tenant Improvements, Tenant shall pay for a pro rata portion of such monthly balance out draw equal to the amount of pocketsuch monthly draw, multiplied by a fraction, the numerator of which is the Excess TI Costs and the denominator of which is the TI Fund. When all of the Excess Costs other than the Excess TI Deposit have been directly funded by Tenant, Landlord shall disburse the Excess TI Deposit in payment for Tenant Improvements. If Tenant fails to deposit, or is late in depositing, the Excess TI Deposit with Landlord or if Tenant may request that such fails to pay each monthly balance be funded from all or a portion draw within 10 business days of that portion receipt of the Additional Tenant Improvement Allowance over contractor's monthly draw as approved for payment by Landlord, Landlord shall have all of the rights and above remedies set forth in the Initially Elected Additional Allowance. For Lease for nonpayment of Rent (including, but not limited to, the right to interest at the Default Rate and the right to assess a late charge), and for purposes of any litigation instituted with regard to such amounts, those amounts required to be paid by Tenant the same will be deemed Rent under the Leaseconsidered Rent. The TI Allowance and Such Excess TI Costs are Costs, together with the TI Allowance, is herein referred to as the “"TI Fund.” ". Funds so deposited by Tenant shall be, at Landlord's option, the last thereafter disbursed to pay TI Costs. Notwithstanding anything to the contrary set forth in this Section 5(d)5.4, Tenant shall be fully and solely liable for the TI Costs (other than costs for Outside Hours Tenant Improvements) and the cost of Minor Variations in excess of the Tenant Improvement Allowance and the Initially Elected Additional TI Allowance. On a monthly basis as construction of the Tenant Improvements progresses, as a component of the monthly Tenant reimbursement submission to Landlord, Tenant shall cause the Design Build Contractor to prepare (and deliver a copy to Landlord) a detailed progress report (i) identifying any Outside Hours Tenant Improvements constructed during the immediately preceding calendar month, which shall be broken down to show each subcontractors hourly manpower billing, TRG billing and any other component cost building of premium costs, (ii) reflecting the amount of the Outside Hours Cost Estimate actually expended toward Outside Hours Costs incurred during the immediately preceding calendar month, (iii) reflecting the total amount of the Outside Hours Cost Estimate expended for Outside Hours Tenant Improvements from the commencement of construction through the end of the immediately preceding calendar month, and (iv) reflecting, in the Design Building Contractor’s good faith reasonable opinion the (A) Outside Hours Tenant Improvements anticipated to be constructed during the following calendar month, (B) the total remaining Outside Hours Tenant Improvements anticipated to be constructed through the If upon Substantial Completion of the Tenant ImprovementsImprovements and the payment of all sums due in connection therewith there remains any undisbursed TI Allowance, (C) Tenant shall be entitled to such undisbursed TI Allowance solely to the estimated Outside Hours Costs for remaining Outside Hours Tenant Improvements anticipated during the following calendar month, (D) the total estimated Outside Hours Costs for remaining Outside Hours Tenant Improvements anticipated through the Substantial Completion of the Tenant Improvements, and (E) remaining balance or existing shortfall in the Outside Hours Cost Estimate. If the Design Build Contractor’s report reflects either an existing shortfall in the amount of the Outside Hours Cost Estimate or an estimated shortfall in the remaining Outside Hours Tenant Improvements, then, along with its report, Design Build Contractor shall deliver an amended Budget to Landlord equitably adjusting the total amount of the Outside Hours Cost Estimate to include the remaining estimated Outside Hours Costs based on the anticipated remaining Outside Hours Tenant Improvements. Landlord shall not unreasonably withhold, condition or delay its approval extent of any such amendment to the BudgetExcess TI Deposit Tenant has actually made with Landlord.

Excess TI Costs. Landlord shall have no obligation to bear any portion of the cost of any of the Base Building Improvements except to the extent of the Base Building Improvements Allowance and any Additional Allowance elected to be used by Tenant for the Base Building Improvements, or any portion of the cost of the Tenant Improvements except to the extent of the TI Allowance and any Additional Allowance elected to be used by Tenant for the Tenant Improvements. As used in this Work Letter, “Landlord’s Construction Limitation ContributionPortion” shall equal the amount of the TI Allowance and any portion of the Additional Allowance elected to be used by Tenant for the Tenant Improvements. For purposes of this Work Letter, “Landlord’s Proportionate Share” shall mean a fraction, the numerator of which shall be the Landlord’s Portion and the denominator of which shall be the anticipated TI Costs for the Tenant Improvements. If at any time TI Costs for the Tenant Improvements under the TI Budget exceed the TI Allowance and from time-to-timeany portion of the Additional Allowance elected to be used by Tenant for the Tenant Improvements, the remaining difference shall be referred to herein as “Tenant’s Portion.” For the purposes of this Work Letter, “Tenant’s Proportionate Share” shall mean a fraction, the numerator of which is Tenant’s Portion and the denominator of which is the anticipated TI Costs under for the Budget (other than costs for Outside Hours Tenant Improvements. Upon written notice to Tenant, which notice shall include reasonable evidence of the costs and expenses on which Landlord’s calculation is based. Landlord may equitably adjust Landlord’s Proportionate Share and Tenant’s Proportionate Share from time to time based on changes in the reasonably anticipated TI Costs for the Tenant Improvements. After the end of each calendar month beginning with the month in which TI Costs for the Tenant Improvements are first incurred, (i) exceed Landlord shall reasonably determine the remaining unexpended TI Costs for the Tenant Improvement Allowance and Improvements incurred for the Initially Elected Additional Allowance prior calendar month (collectively, the “Excess TI Total Monthly Costs”), monthly disbursements (ii) Landlord shall provide written notice to Tenant which shall include reasonable evidence of the TI Allowance shall be made costs and expenses on a “pari passu” basis in the proportion that the remaining Tenant Improvement Allowance and the Initially Elected Additional Allowance bear to the outstanding TI Costs under the Budgetwhich Landlord’s calculation is based, and (iii) Tenant shall fund the balance of each such monthly draw. At reimburse Landlord within 30 days after Landlord’s written request for Tenant’s optionProportionate Share of Total Monthly Costs. The TI Allowance, Tenant shall pay for such monthly balance out of pocket, or Tenant may request that such monthly balance be funded from all or a portion of that any portion of the Additional Allowance elected to be used by Tenant Improvement Allowance over for the Tenant Improvements and above Tenant’s Portion are herein referred to together as the Initially Elected Additional Allowance“TI Fund.” If Tenant fails to deposit any of Tenant’s Proportionate Share with Landlord within said 30 day period, Landlord shall have all of the rights and remedies set forth in the Lease for nonpayment of Rent (including, but not limited to, the right to interest at the Default Rate and the right to assess a late charge). For purposes of any litigation instituted with regard to such amounts, those amounts required to be paid by Tenant will be deemed Rent under the Lease. The TI Allowance and Excess TI Costs are herein referred to as the “TI Fund.” Notwithstanding anything to the contrary set forth in this Section 5(d)paragraph, Tenant shall be fully and solely liable for the TI Costs (other than costs for Outside Hours the Tenant Improvements) Improvements and the cost costs of Minor Variations to the Tenant Improvements in excess of the Tenant Improvement TI Allowance and the Initially Elected Additional Allowance. On a monthly basis as construction any portion of the Tenant Improvements progresses, as a component of the monthly Tenant reimbursement submission to Landlord, Tenant shall cause the Design Build Contractor to prepare (and deliver a copy to Landlord) a detailed progress report (i) identifying any Outside Hours Tenant Improvements constructed during the immediately preceding calendar month, which shall be broken down to show each subcontractors hourly manpower billing, TRG billing and any other component cost building of premium costs, (ii) reflecting the amount of the Outside Hours Cost Estimate actually expended toward Outside Hours Costs incurred during the immediately preceding calendar month, (iii) reflecting the total amount of the Outside Hours Cost Estimate expended for Outside Hours Tenant Improvements from the commencement of construction through the end of the immediately preceding calendar month, and (iv) reflecting, in the Design Building Contractor’s good faith reasonable opinion the (A) Outside Hours Tenant Improvements anticipated Additional Allowance elected to be constructed during the following calendar month, (B) the total remaining Outside Hours used by Tenant Improvements anticipated to be constructed through the Substantial Completion of for the Tenant Improvements, (C) the estimated Outside Hours Costs for remaining Outside Hours Tenant Improvements anticipated during the following calendar month, (D) the total estimated Outside Hours Costs for remaining Outside Hours Tenant Improvements anticipated through the Substantial Completion of the Tenant Improvements, and (E) remaining balance or existing shortfall in the Outside Hours Cost Estimate. If the Design Build Contractor’s report reflects either an existing shortfall in the amount of the Outside Hours Cost Estimate or an estimated shortfall in the remaining Outside Hours Tenant Improvements, then, along with its report, Design Build Contractor shall deliver an amended Budget to Landlord equitably adjusting the total amount of the Outside Hours Cost Estimate to include the remaining estimated Outside Hours Costs based on the anticipated remaining Outside Hours Tenant Improvements. Landlord shall not unreasonably withhold, condition or delay its approval of any such amendment to the Budget.

Excess TI Costs. It is understood and agreed that Landlord shall have is under no obligation to bear any portion of the cost of any of the Tenant Improvements except to the extent of the TI Allowance and Landlord’s Construction Limitation ContributionAllowance. If at any time and from time-to-time, the remaining TI Costs under the Budget (other than costs for Outside Hours Tenant Improvements) exceed the remaining unexpended TI Allowance, Tenant Improvement Allowance and shall deposit with Landlord, as a condition precedent to Landlord’s obligation to fund the Initially Elected Additional unexpended TI Allowance, 100% of the then current TI Cost in excess of the remaining TI Allowance (“Excess TI Costs”). Landlord shall deposit the Excess TI Costs into an interest bearing account with interest accruing for the benefit of Tenant. If Tenant fails to deposit, monthly disbursements or is late in depositing, any Excess TI Costs amount with Landlord, Landlord shall have all of the TI Allowance shall be made on a “pari passu” basis rights and remedies set forth in the proportion that Lease for nonpayment of Rent (including, but not limited to, the remaining Tenant Improvement Allowance right to interest at the Default Rate and the Initially Elected Additional Allowance bear right to the outstanding TI Costs under the Budgetassess a late charge), and Tenant shall fund the balance of each such monthly draw. At Tenant’s option, Tenant shall pay for such monthly balance out of pocket, or Tenant may request that such monthly balance be funded from all or a portion of that portion of the Additional Tenant Improvement Allowance over and above the Initially Elected Additional Allowance. For purposes of any litigation instituted with regard to such amounts, those amounts required to be paid by Tenant the same will be deemed Rent under the Leaseconsidered Rent. The TI Allowance and Such deposit of Excess TI Costs are Costs, together with the remaining TI Allowance, is herein referred to as the “TI Fund.” ”. Funds so deposited by Tenant shall be the first thereafter disbursed to pay TI Costs. Notwithstanding anything to the contrary set forth in this Section 5(d), Tenant shall be fully and solely liable for the TI Costs (other than costs for Outside Hours Tenant Improvements) and the cost of Minor Variations in excess of the Tenant Improvement Allowance and the Initially Elected Additional TI Allowance. On a monthly basis as construction of the Tenant Improvements progresses, as a component of the monthly Tenant reimbursement submission to Landlord, Tenant shall cause the Design Build Contractor to prepare (and deliver a copy to Landlord) a detailed progress report (i) identifying any Outside Hours Tenant Improvements constructed during the immediately preceding calendar month, which shall be broken down to show each subcontractors hourly manpower billing, TRG billing and any other component cost building of premium costs, (ii) reflecting the amount of the Outside Hours Cost Estimate actually expended toward Outside Hours Costs incurred during the immediately preceding calendar month, (iii) reflecting the total amount of the Outside Hours Cost Estimate expended for Outside Hours Tenant Improvements from the commencement of construction through the end of the immediately preceding calendar month, and (iv) reflecting, in the Design Building Contractor’s good faith reasonable opinion the (A) Outside Hours Tenant Improvements anticipated to be constructed during the following calendar month, (B) the total remaining Outside Hours Tenant Improvements anticipated to be constructed through the If upon Substantial Completion of the Tenant ImprovementsImprovements and the payment of all sums due in connection therewith there remains any undisbursed TI Fund, (C) Tenant shall be entitled to such undisbursed TI Fund to the estimated Outside Hours extent of any Excess TI Costs deposit Tenant has actually made with Landlord and Tenant shall have the right, for remaining Outside Hours Tenant Improvements anticipated during up to 12 months after the following calendar monthCommencement Date, (D) to use the total estimated Outside Hours Costs for remaining Outside Hours Tenant Improvements anticipated through the Substantial Completion balance of the Tenant Improvements, TI Fund used for Alterations which are approved by Landlord and (E) remaining balance or existing shortfall in the Outside Hours Cost Estimate. If the Design Build Contractor’s report reflects either an existing shortfall in the amount comply with Section 12 of the Outside Hours Cost Estimate or an estimated shortfall in the remaining Outside Hours Lease. Thereafter, Tenant Improvements, then, along with its report, Design Build Contractor shall deliver an amended Budget have no right to Landlord equitably adjusting the total amount any undisbursed portion of the Outside Hours Cost Estimate to include the remaining estimated Outside Hours Costs based on the anticipated remaining Outside Hours Tenant Improvements. Landlord shall not unreasonably withhold, condition or delay its approval of any such amendment to the BudgetTI Fund.

Excess TI Costs. Landlord All Tenant Improvements shall have no obligation be performed by Landlord’s contractor, at ▇▇▇▇▇▇’s sole cost and expense (subject to bear Landlord’s obligations with respect to any portion of the TI Allowance) and in substantial accordance with the Approved Plans (as defined below), this Amendment and this Work Letter. To the extent that the total projected cost of any of the Tenant Improvements except to (as set forth in the extent of Approved Budget) exceeds the TI Allowance and Landlord’s Construction Limitation Contribution. If at any time and from time-to-time(such excess, the remaining TI Costs under the Budget (other than costs for Outside Hours Tenant Improvements) exceed the remaining unexpended Tenant Improvement Allowance and the Initially Elected Additional Allowance (“Excess TI Costs”), monthly disbursements Tenant shall advance to Landlord any Excess TI Costs within ten (10) days after approval of the Approved Budget, but in any case before Landlord commences the Tenant Improvements. If Landlord is delayed in commencing the Tenant Improvements solely due to Tenant’s failure to timely pay the Excess TI Allowance Costs to Landlord, Landlord shall be made entitled to a day-for-day extension to achieve Substantial Completion of the Tenant Improvements for the period of such delay. If the actual Excess TI Costs are less than the Excess TI Costs paid by Tenant to Landlord, Landlord shall return such excess to Tenant after Landlord has completed the final accounting for the Tenant Improvements. If the cost of the Tenant Improvements (as projected by Landlord) is expected to exceed the Approved Budget, then Landlord shall notify Tenant and Tenant and Landlord shall thereafter meet and confer in good faith to reach agreement on a “pari passu” basis the amount of such excess and thereafter Tenant shall deposit any additional Excess TI Costs with Landlord in the proportion same way that Tenant deposited the remaining initial Excess TI Costs. If Tenant Improvement Allowance fails to pay, or is late in paying, any sum due to Landlord under this Work Letter, then Landlord shall have all of the rights and remedies set forth in Section 31 of the Original Lease for nonpayment of Rent (including the right to interest and the Initially Elected Additional Allowance bear right to the outstanding TI Costs under the Budgetassess a late charge), and Tenant shall fund the balance of each such monthly draw. At Tenant’s option, Tenant shall pay for such monthly balance out of pocket, or Tenant may request that such monthly balance be funded from all or a portion of that portion of the Additional Tenant Improvement Allowance over and above the Initially Elected Additional Allowance. For purposes of any litigation instituted with regard to such amounts, those amounts required to be paid by Tenant will be deemed Rent under the Lease. The TI Allowance and Excess TI Costs are herein referred to as the “TI Fund.” Notwithstanding anything to the contrary set forth in this Section 5(d), Tenant same shall be fully considered Rent. All material and solely liable for the TI Costs (other than costs for Outside Hours Tenant Improvements) and the cost of Minor Variations in excess of the Tenant Improvement Allowance and the Initially Elected Additional Allowance. On a monthly basis equipment furnished by Landlord or its contractors as construction of the Tenant Improvements progresses, as a component of shall be new or “like new,” and the monthly Tenant reimbursement submission to Landlord, Tenant shall cause the Design Build Contractor to prepare (and deliver a copy to Landlord) a detailed progress report (i) identifying any Outside Hours Tenant Improvements constructed during the immediately preceding calendar month, which shall be broken down to show each subcontractors hourly manpower billingperformed in a first-class, TRG billing workmanlike manner and any other component cost building of premium costs, (ii) reflecting the amount of the Outside Hours Cost Estimate actually expended toward Outside Hours Costs incurred during the immediately preceding calendar month, (iii) reflecting the total amount of the Outside Hours Cost Estimate expended for Outside Hours Tenant Improvements from the commencement of construction through the end of the immediately preceding calendar month, and (iv) reflecting, in the Design Building Contractor’s good faith reasonable opinion the (A) Outside Hours Tenant Improvements anticipated to be constructed during the following calendar month, (B) the total remaining Outside Hours Tenant Improvements anticipated to be constructed through the Substantial Completion of the Tenant Improvements, (C) the estimated Outside Hours Costs for remaining Outside Hours Tenant Improvements anticipated during the following calendar month, (D) the total estimated Outside Hours Costs for remaining Outside Hours Tenant Improvements anticipated through the Substantial Completion of the Tenant Improvements, and (E) remaining balance or existing shortfall in the Outside Hours Cost Estimate. If the Design Build Contractor’s report reflects either an existing shortfall in the amount of the Outside Hours Cost Estimate or an estimated shortfall in the remaining Outside Hours Tenant Improvements, then, along accordance with its report, Design Build Contractor shall deliver an amended Budget to Landlord equitably adjusting the total amount of the Outside Hours Cost Estimate to include the remaining estimated Outside Hours Costs based on the anticipated remaining Outside Hours Tenant Improvements. Landlord shall not unreasonably withhold, condition or delay its approval of any such amendment to the BudgetApplicable Laws.

Excess TI Costs. Landlord shall have no obligation to bear any portion of the cost of any of the Tenant Improvements except to the extent of the TI Allowance and the Space Planning Allowance or where such costs are expressly excluded or made Landlord’s Construction Limitation Contributionobligation pursuant to the terms of this Work Letter. If at any time and from time-to-time, the remaining TI Costs under the Budget (other than costs for Outside Hours Tenant Improvements) exceed the remaining unexpended TI Allowance, Tenant Improvement Allowance and shall be responsible for 100% of the Initially Elected Additional Allowance (“Excess TI Costs”), monthly disbursements Costs in excess of the TI Allowance ("Excess TI Costs") as set forth below. In connection with each of Landlord’s payments to the general contractor or others for the Tenant Improvements, Tenant ActiveUS 179671324v.10 shall be made on promptly (but in no event later than 10 business days after requisition from Landlord) pay Landlord for the portion of such payment attributable to Excess TI Costs, being the amount of such payment multiplied by a “pari passu” basis in fraction, the proportion that numerator of which is the remaining Tenant Improvement Allowance total Excess TI Costs and the Initially Elected Additional Allowance bear to denominator of which is the outstanding total TI Costs under the Budget, Costs. Landlord and Tenant shall fund reasonably cooperate in the balance weekly construction meetings in an effort to identify amounts of each Excess TI Costs due and coming due such monthly drawthat Tenant will be able to budget for its payments in accordance with the immediately preceding sentence accordingly. At Tenant’s optionIf Tenant fails to timely pay Landlord any installment of Excess TI Costs, Tenant Landlord shall pay for such monthly balance out of pocket, or Tenant may request that such monthly balance be funded from have all or a portion of that portion of the Additional Tenant Improvement Allowance over rights and above remedies set forth in the Initially Elected Additional AllowanceLease for nonpayment of Rent (including, but not limited to, the right to interest at the Default Rate and the right to assess a late charge). For purposes of any litigation instituted with regard to such amounts, those amounts required to be paid by Tenant will be deemed Rent under the Lease. The TI Allowance and Excess TI Costs are herein referred to as the “"TI Fund.” " Notwithstanding anything to the contrary set forth in this Section 5(d), Tenant shall be fully and solely liable for the TI Costs (other than costs for Outside Hours Tenant Improvements) and the cost of Minor Variations in excess of the TI Allowance (except to the extent such costs are expressly excluded or made Landlord’s obligation pursuant to the terms of this Work Letter). Landlord shall provide Tenant Improvement Allowance and the Initially Elected Additional Allowance. On with a monthly basis as construction final financial accounting of the Tenant Improvements progresses, as a component of the monthly Tenant reimbursement submission to TI Costs and Excess TI Costs within 60 days after Landlord, Tenant shall cause the Design Build Contractor to prepare (and deliver a copy to Landlord) a detailed progress report (i) identifying any Outside Hours Tenant Improvements constructed during the immediately preceding calendar month, which shall be broken down to show each subcontractors hourly manpower billing, TRG billing and any other component cost building of premium costs, (ii) reflecting the amount of the Outside Hours Cost Estimate actually expended toward Outside Hours Costs incurred during the immediately preceding calendar month, (iii) reflecting the total amount of the Outside Hours Cost Estimate expended for Outside Hours Tenant Improvements from the commencement of construction through the end of the immediately preceding calendar month, and (iv) reflecting, in the Design Building Contractor’s good faith reasonable opinion the (A) Outside Hours Tenant Improvements anticipated to be constructed during the following calendar month, (B) the total remaining Outside Hours Tenant Improvements anticipated to be constructed through the Substantial Completion completion of the Tenant Improvements, together with reasonable back-up for the same. If such accounting reveals that Tenant underpaid Landlord for Excess TI Costs, Tenant shall promptly (Cbut no later than 30 days after receipt of such accounting) pay Landlord an additional amount necessary to ensure that Tenant paid for 100% of Excess TI Costs. If such accounting reveals that Tenant overpaid Landlord for Excess TI Costs, Landlord shall promptly (but no later than 30 days after Tenant receives such accounting) reimburse Tenant the estimated Outside Hours Costs amount necessary to ensure that Tenant paid for remaining Outside Hours 100% of Excess TI Costs. At Tenant’s sole cost and expense, upon Tenant’s written request within 30 days of Landlord’s delivery of the final financial accounting, Landlord shall exercise its right to conduct an audit under the GMP contract for the Tenant Improvements anticipated during the following calendar month, (D) the total estimated Outside Hours Costs for remaining Outside Hours Tenant Improvements anticipated through the Substantial Completion of the Tenant Improvementswhich right Landlord acknowledges shall be included in such contract), and (E) remaining balance or existing shortfall in the Outside Hours Cost Estimate. If the Design Build Contractor’s report reflects either an existing shortfall in the amount third-party auditor and scope of the Outside Hours Cost Estimate or an estimated shortfall in the remaining Outside Hours Tenant Improvements, then, along with its report, Design Build Contractor shall deliver an amended Budget to such audit will be reasonably agreed upon by Landlord equitably adjusting the total amount of the Outside Hours Cost Estimate to include the remaining estimated Outside Hours Costs based on the anticipated remaining Outside Hours Tenant Improvements. Landlord shall not unreasonably withhold, condition or delay its approval of any such amendment to the Budgetand Tenant.