Common use of Delay of delivery Clause in Contracts

Delay of delivery. It is anticipated that delivery of possession of the Premises shall occur no later than April 12, 2019 (the “Initial Outside Date”) in order to enable Tenant to commence construction of the Tenant Improvements. The date the Premises are delivered to Tenant is herein referred to as the “Delivery Date”. Should the Delivery Date not occur by the Initial Outside Date, then and in such event, provided the cause of such delay was due to matters within Landlord’s control and not by reason of any act or omission of Tenant (including, without limitation any failure to provide Landlord with required information or respond within the requisite time period to Landlord) or any agent, employee or contractor of Tenant (collective a “Tenant Caused Delay”), and further provided that had the Delivery Date occurred by the Initial Outside Date Tenant would have been able to commence performance of the Tenant Work, then and in such event as Tenant’s sole and exclusive remedy arising therefrom, the Rent Commencement Date under this Lease shall be postponed by 2-days for each day of delay of the Delivery Date from and after the Initial Outside Date. Tenant will execute the Commencement Date Certificate attached to this Lease as Exhibit “D” within five (5) days of Landlord’s request therefor. Failure to execute said Commencement Date Certificate shall not affect the commencement or expiration of the Lease Term or the commencement of Rent. Notwithstanding any provision herein to the contrary, as its sole and exclusive remedy arising therefrom, if by September 30, 2018 (the “Required Approval Date”) the Landlord fails to obtain any required site plan amendment necessary to gain approvals for the exterior building envelope and facade and if necessary, the first floor garage renovations or additional garage space (the “Requisite Approval”) then Tenant shall have the right to terminate this Lease by written notice to Landlord, which written notice shall be given by Tenant, if at all, not later than the thirtieth (30th) day following the Required Approval Date and which notice shall be effective in the absence of Landlord obtaining the Requisite Approval within thirty (30) business days following receipt of such written notice. Notwithstanding anything contained hereinabove to the contrary, on or before the Required Approval Date, Landlord must show Tenant that 300 parking spaces available to “tenant for its use has been approved by the City of Gaithersburg. In addition, in the event that the Delivery Date has not occurred on or prior to July 31st, 2019 (the “Final Outside Date”), for reasons other than any delay caused by Tenant or any agent, employee or contractor of Tenant, or by reason of an event of force majeure (recognizing that for purposes hereof a delay in issuance of a permit or any other material government approval shall not constitute an event of force majeure) then and in such event, Tenant shall be entitled to terminate this Lease by written notice to Landlord within thirty (30) days following such Final Outside Date; provided; however that such termination shall not be effective in the event Tenant in cooperation with Landlord is able prior to the Final Outside Date to obtain an extension of the current expiration date of 4/2020 on Tenant’s existing Lease in which event the Final Outside Date shall be extended for the period of the extension. Any costs, including but not limited to any increased rent as rent is defined therein, as a result of the extension over and above the remedy in Section 2.02 shall be paid by Landlord.

Delay of delivery. It is anticipated Landlord acknowledges that delivery of possession of the Premises shall occur no later than April 12, 2019 (the “Initial Outside Date”) in order Tenant intends to enable Tenant to commence start construction of the Tenant Improvements. The date the Premises are delivered to Tenant is herein referred to as the “Delivery Date”. Should Tenant’s Work on the Delivery Date not occur by the Initial Outside Date, then and in such event, provided the cause of such delay was due intends to matters within Landlord’s control and not by reason of any act or omission of Tenant (including, without limitation any failure to provide Landlord with required information or respond within the requisite time period to Landlord) or any agent, employee or contractor of Tenant (collective a “Tenant Caused Delay”), and further provided that had the Delivery Date occurred by the Initial Outside Date Tenant would have been able to commence performance of the Tenant Work, then and in such event as Tenant’s sole and exclusive remedy arising therefrom, the Rent Commencement Date under this Lease shall be postponed by 2-days for each day of delay of the Delivery Date from and after the Initial Outside Date. Tenant will execute the Commencement Date Certificate attached to this Lease as Exhibit “D” within five (5) days of Landlord’s request therefor. Failure to execute said Commencement Date Certificate shall not affect the commencement or expiration of the Lease Term or the commencement of Rent. Notwithstanding any provision herein to the contrary, as its sole and exclusive remedy arising therefrom, if by September 30, 2018 (the “Required Approval Date”) the Landlord fails to obtain any required site plan amendment necessary to gain approvals for the exterior building envelope and facade and if necessary, the first floor garage renovations or additional garage space (the “Requisite Approval”) then Tenant shall have the right to terminate this Lease by written notice to Landlord, which written notice shall be given by Tenant, if at all, not later than the thirtieth (30th) day following the Required Approval Date and which notice shall be effective in the absence of Landlord obtaining the Requisite Approval within thirty (30) business days following receipt of such written notice. Notwithstanding anything contained hereinabove to the contrary, Premises ready for operation on or before the Required Approval Commencement Date, and that delays in completion of Landlord’s Work beyond those the deadlines for completion established on Exhibit D will cause Tenant to suffer certain losses which are difficult to quantify including, by way of illustration and not of limitation, lost profits, construction delay costs and employee wages. If Landlord must show has not completed the Landlord’s Work prior to the deadlines for completion established on Exhibit D, Landlord shall nevertheless allow Tenant early entry to commence the Tenant’s Work. If Tenant is not able to commence the Tenant’s Work due to Landlord’s delays (regardless of the fact that 300 parking spaces available Tenant may have elected to “tenant for its use has been approved enter the Premises to perform Tenant’s work prior to Landlord’s Work being completed, but excepting any delays caused solely by the City willful misconduct of Gaithersburg. In additionTenant), then Tenant shall give written notice to Landlord of such delay and if Landlord does not cure such delay within fifteen (15) days after Landlord’s receipt of written notice, as compensation in the event that the Delivery Date has not occurred on or prior to July 31st, 2019 (the “Final Outside Date”), for reasons other than any delay caused by Tenant or any agent, employee or contractor form of Tenant, or by reason of an event of force majeure (recognizing that for purposes hereof a delay in issuance of a permit or any other material government approval shall not constitute an event of force majeure) then and in such eventliquidated damages, Tenant shall be entitled to terminate this Lease by written notice to Landlord within thirty one (301) day of free Base Rent and Additional Rent for every two (2) days following such Final Outside Date; provided; however that such termination shall not be effective in of delay accruing from the event Tenant in cooperation with Landlord is able prior applicable deadline for completion established on Exhibit D to the Final Outside Date to obtain an extension actual date of completion of the current expiration date applicable portion of 4/2020 Landlord’s Work. Landlord and Tenant agree that the foregoing free rent determination is a liquidated damages remedy to compensate Tenant based on Landlord and Tenant’s existing Lease in which event the Final Outside Date shall be extended for the period best estimate of the extension. Any costsdaily damages, including but not limited to any increased rent as rent is defined therein, lost sales and business opportunity that Tenant will incur as a result of Landlord’s failure to deliver the extension over Premises timely, and above the remedy in Section 2.02 shall such amount is not to be paid by Landlorddeemed a penalty.