IF YOU BUILD IT TO SUIT THESE ISSUES

IF YOU BUILD IT [TO SUIT] THESE ISSUES WILL COME: CHALLENGING ISSUES IN BUILD-TO-SUIT LEASE TRANSACTIONS Session Leader - Michael Rothpletz, Esq. Panelists - Loretta Kelly, Esq. and Martin Dowd, Esq.

Pre-Construction Phase Issues • The teams • Who are the players and roles? • Many players conducting an orchestra • Professionals, consultants, contractors, lender

Building Design and Approvals • Building Design Process and Responsibilities • Plans and Specifications • Preparation and timing • Tenant Input • Governmental Approvals • Analysis of Required Approvals • Variances • Timing

Lease Contingencies • Pre-construction versus construction phase rights • Contingencies, including acquisition, financing and approval contingencies • Approvals (including utilities and incentives); • Outside date for commencing construction

Change Orders Cost and Time Landlord Concerns Changes to Base Building Changes to Tenant Improvements • Procedure • Funding/Securing Additional Costs • •

Definition of Substantial Completion • A crucial milestone requiring precise definition in each transaction. • Term of art or objective set of facts? • Who determines? • Punchlist compilation and completion.

Remedies for Delay • Tenant delay and excusable delay • termination right • rent abatement for late delivery • self-help and offset rights • costs and other damages

Construction Contract • Risk Shifting • Plans • timing and remedies consistent with lease. • Excusable delay no broader than lease. • Warranties; assignment rights; bonding • Warranties

Project Funding • Landlord Equity • Construction Financing • Lender/Tenant relationship • SNDA • Tenant Estoppel • Financial Statements