INCLUDING, WITHOUT LIMITATION, THE COST
OF ELECTRICAL POWER AND OTHER UTILITIES USED IN CONNECTION WITH THE CONSTRUCTION
OF THE TENANT IMPROVEMENTS, THE COST OF PREPARING THE TI DESIGN DRAWINGS AND THE
TI CONSTRUCTION DRAWINGS, ALL COSTS SET FORTH IN THE BUDGET, INCLUDING
LANDLORD'S ADMINISTRATIVE RENT, LANDLORD'S OUT-OF-POCKET EXPENSES, COSTS
RESULTING FROM TENANT DELAYS AND THE COST OF CHANGES (COLLECTIVELY, "TI COSTS"),
PROVIDED, HOWEVER, THAT TENANT SHALL NOT BE ENTITLED TO UTILIZE ANY MORE THAN 5%
OF THE TI ALLOWANCE FOR ARCHITECTURAL, CONSULTING AND ENGINEERING COSTS.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, THE TI FUND SHALL NOT
BE USED TO PURCHASE ANY FURNITURE, PERSONAL PROPERTY OR OTHER NON-BUILDING
SYSTEM MATERIALS OR EQUIPMENT, INCLUDING, BUT NOT LIMITED TO, TENANT'S VOICE OR
DATA CABLING, NON-DUCTED BIOLOGICAL SAFETY CABINETS AND OTHER SCIENTIFIC
EQUIPMENT NOT INCORPORATED INTO THE TENANT IMPROVEMENTS.
(D)
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, IT BEING AGREED THAT LANDLORD WILL ENTER INTO A SO-CALLED
"OPEN BOOK" CONSTRUCTION CONTRACT FOR THE TENANT IMPROVEMENTS WITH THE RICHMOND
GROUP OR SUCH OTHER CONTRACTOR REASONABLY APPROVED BY LANDLORD AND TENANT. IF AT
ANY TIME THE REMAINING TI COSTS UNDER THE BUDGET EXCEED THE REMAINING UNEXPENDED
TI ALLOWANCE, TENANT SHALL DEPOSIT WITH LANDLORD, AS A CONDITION PRECEDENT TO
LANDLORD'S OBLIGATION TO COMPLETE THE TENANT IMPROVEMENTS, 100% OF THE THEN
CURRENT TI COST IN EXCESS OF THE REMAINING TI ALLOWANCE ("EXCESS TI COSTS"). IF
TENANT FAILS TO DEPOSIT ANY EXCESS TI COSTS WITH LANDLORD, 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 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 TI COSTS AND THE COST OF MINOR VARIATIONS
IN EXCESS OF THE TI ALLOWANCE. IF UPON SUBSTANTIAL COMPLETION OF THE TENANT
IMPROVEMENTS AND THE PAYMENT OF ALL SUMS DUE IN CONNECTION THEREWITH THERE
REMAINS ANY UNDISBURSED PORTION OF THE TI FUND, TENANT SHALL BE ENTITLED TO SUCH
UNDISBURSED TI FUND SOLELY TO THE EXTENT OF ANY EXCESS TI COSTS DEPOSIT TENANT
HAS ACTUALLY MADE WITH LANDLORD.
6.
TENANT ACCESS.
(A)
TENANT'S ACCESS RIGHTS. LANDLORD HEREBY AGREES TO PERMIT TENANT
ACCESS, AT TENANT'S SOLE RISK AND EXPENSE, TO THE BUILDING (I) SUBJECT TO
LANDLORD'S PRIOR WRITTEN CONSENT, PRIOR TO THE COMMENCEMENT DATE TO PERFORM ANY
WORK ("TENANT'S WORK") REQUIRED BY TENANT OTHER THAN LANDLORD'S WORK, PROVIDED
THAT SUCH TENANT'S WORK IS COORDINATED WITH THE TI ARCHITECT AND THE GENERAL
CONTRACTOR, AND COMPLIES WITH THE LEASE