Session Leader - Michael Rothpletz, Esq. 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