Exclusions from Operating Expenses Notwithstanding any term or condition set forth in this Exhibit or the provisions of the Master Lease or Sublease to the contrary, Operating Expenses shall not include any of the following:
(a) Any ground lease rental.
(b) Costs incurred by Landlord with respect to goods and services (including utilities sold and supplied to tenants and occupants of the Building) to the extent that Landlord is entitled to direct reimbursement for such costs other than through the operating expense pass-through provisions of such tenants’ leases or which Landlord provides selectively to one or more, but not all, tenants without reimbursement.
(c) Costs incurred by Landlord for the repair of damage to the Building and/or the Land to the extent that Landlord is reimbursed by insurance or condemnation proceeds or by tenants, warrantors or other third parties.
(d) Costs, including permit, license and inspection costs, incurred with respect to the installation of tenant improvements made for any tenants in the Building or incurred in renovating or otherwise improving, decorating, painting or redecorating vacant space for tenants or other occupants of the Building.
(e) Salaries and bonuses of officers, executives and employees of Landlord not employed exclusively at the Building or who are above the level of Building Manager.
(f) Depreciation and amortization of any type except on materials, tools and supplies purchased by Landlord to enable Landlord to supply services Landlord might otherwise contract for with a third party, all as determined in accordance with generally accepted accounting practices, consistently applied, and when depreciation or amortization is permitted or required, the item shall be amortized over its useful life.
(g) Attorneys’ fees and other costs and expenses incurred in connection with negotiations or disputes with present or prospective tenants or other occupants of the Building (including costs incurred due to violations by tenants of the terms and conditions of their leases).
(h) Costs of a capital nature, including, without limitation, capital improvements, capital replacements, capital repairs, capital equipment and capital tools, and any improvements or alterations incurred to comply with any applicable Legal Requirements as set forth in Article 5 of the Master Lease all as determined in accordance with generally accepted accounting practices, consistently applied.
(i) Brokerage commissions, finders’ fees, attorneys’ fees and other costs incurred by Landlord in leasing or attempting to lease space in the Building.
(j) Expenses in connection with services or other benefits, which are not offered to Tenant, or for which Tenant is charged for directly but which are provided to another tenant or occupant of the Building.
(k) Costs incurred by Landlord due to the violation by Landlord of the terms and conditions of any lease of space in the Building.
(l) Any cost representing an amount paid to any person, firm, corporation or other entity related to or affiliated with Landlord, which amount is in excess of the amount which would have reasonably been paid in the absence of such relationship for comparable work or services involving the Building or comparable buildings in the general vicinity of the Building.
(m) Interest, points, and fees on debt or amortization on any mortgage or mortgages encumbering the Building and/or the Land.
(n) Landlord’s general corporate overhead.
(o) Subject to the provision set forth in subparagraph (h) above, rental payments incurred in leasing air conditioning systems, elevators or other equipment ordinarily considered to be of a capital nature, except equipment not affixed to the Building which is used in providing janitorial, parking lot maintenance, window washing or similar services.
(p) Advertising and promotional expenditures and, except for the Building directory and interior signs identifying retail use tenants and signage for various equipment room and common areas, costs of signs in or on the Building and/or the Land identifying the owner or any tenant of the Building.
(q) Costs of overtime or other extraordinary expense to Landlord in performing work which Landlord is obligated to perform under any leases which reasonably could have been avoided through the exercise of ordinary diligence.
(r) Taxes and assessments attributable to the tenant improvements of tenants or occupants of the Building which are assessed at a valuation higher than the valuation at which Building standard tenant improvements are assessed to the extent that such taxes or assessments for excess valuation are directly billed to and collected from such tenant or occupants.
(s) Penalties and interest incurred as a result of Landlord’s negligence or inability or unwillingness to make tax payments when due including tax penalties and interest, so long as such penalties or interest do not result from Tenant’s breach of this Sublease or Tenant’s failure to make timely payment of any sum due under this Sublease.
(t) Any charge or expense to the extent that it is materially in excess of that charged by landlords for similar buildings in the general vicinity of the Premises.
(u) Costs due to violation of law.
(v) The amount of any deductible with respect to Sublandlord’s insurance, the costs of self insurance or any risk which Landlord has elected to self insure against and premiums for any insurance not carried as of the commencement of the Master Lease or Sublease, but subsequently obtained by Master Landlord or Sublandlord.
(w) Any increase of, or reassessment in, real estate taxes and assessments resulting from a sale, transfer or other change in ownership of the Building and/or the Land during the lease term or from any major alterations, improvements, modifications or renovations to the Building and/or the Land or from the addition of additional land area to the project or from Landlord’s failure to secure a property tax reduction to the extent such a reduction was obtained for purposes of establishing the base year or expense stop tax component.
(x) Income, profit, franchise, rent, sales, gift, estate, succession, inheritance, foreign ownership, foreign control, transfer, capital levy, and/or personal property taxes payable by Landlord.
(y) Costs of correcting defects in construction or equipment or in replacing defective equipment.
(z) Any and all costs of Landlord in complying with its obligations under Article 5(b) (entitled “Compliance with Law”) of this Lease.
(aa) Any and all costs of Landlord in complying with its obligations under Article 26 (entitled “Environmental Matters”) of this Sublease including, but not limited to, the costs and expenses of clean up, remediation, environmental surveys/assessments, compliance with Environmental Laws (as hereinafter defined), consulting fees, treatment and monitoring charges, transportation expenses and disposal fees, etc.
(bb) Any and all costs of Landlord for repairs resulting from damage, destruction or condemnation covered by other provisions of this Sublease.
(cc) Any and all costs incurred by Landlord in connection with the transfer or disposition of Landlord’s interest in the Property.
(dd) Any and all costs incurred by Landlord in the operation of any specialty operations or facilities at the Building such as any health or exercise club, broadcast facility, rooftop antenna facility, helicopter pad, concierge or any luncheon or other restaurant, club, concession or facility.
(ee) If Tenant’s responsibility for Operating Expenses is based upon a “base year” or “expense stop”, any new item or category of expense not included in the base year or expense stop shall not be included in Operating Expenses.
(ff) Parking area maintenance, operating costs and real estate taxes for any such parking areas to the extent such costs are offset by parking area revenues.
(gg) Initial cost and replacement costs of any permanent landscaping, water features, fountains, artwork, sculptures and other decorative treatments. (hh) Contributions to Operating Expense Reserves.
(ii) Any other cost or expense which, under generally accepted accounting principles consistently applied, would not be considered to be an operating expense of the Building or any comparable building.
Limit on Operating Expenses The Advisor hereby agrees to limit the Fund’s current Operating Expenses to an annual rate, expressed as a percentage of the Fund’s average daily net assets for the month, to the amounts listed in Appendix A (the “Annual Limit”). In the event that the current Operating Expenses of the Fund, as accrued each month, exceed its Annual Limit, the Advisor will pay to the Fund, on a monthly basis, the excess expense within the first ten days of the month following the month in which such Operating Expenses were incurred (each payment, a “Fund Reimbursement Payment”).
Funding Losses Upon demand of any Lender (with a copy to the Administrative Agent) from time to time, the Company shall promptly compensate such Lender for and hold such Lender harmless from any loss, cost or expense incurred by it as a result of:
(a) any continuation, conversion, payment or prepayment of any Eurocurrency Rate Loan on a day other than the last day of the Interest Period for such Loan (whether voluntary, mandatory, automatic, by reason of acceleration, or otherwise);
(b) any failure by a Borrower (for a reason other than the failure of such Lender to make a Loan) to prepay, borrow, continue or convert any Eurocurrency Rate Loan on the date or in the amount notified by such Borrower;
(c) any failure by any Borrower to make payment of any Loan or drawing under any Letter of Credit (or interest due thereon) denominated in an Alternative Currency on its scheduled due date or any payment thereof in a different currency; or
(d) any assignment of a Eurocurrency Rate Loan on a day other than the last day of the Interest Period therefor as a result of a request by the Company pursuant to Section 11.15; including any foreign exchange losses and any loss or expense arising from the liquidation or reemployment of funds obtained by it to maintain such Loan or from fees payable to terminate the deposits from which such funds were obtained for the performance of any foreign exchange contracts, in each case, excluding loss of any anticipated profits; provided that the Company shall have no obligation to pay to any Lender any of the foregoing amounts incurred in connection with such Lender being a Defaulting Lender. For purposes of calculating amounts payable by the Company to the Lenders under this Section 3.05, each Lender shall be deemed to have funded each Eurocurrency Rate Loan made by it at the Eurocurrency Base Rate used in determining the Eurocurrency Rate for such Loan by a matching deposit or other borrowing in the London interbank eurodollar market for a comparable amount and for a comparable period, whether or not such Eurocurrency Rate Loan was in fact so funded.
Net Losses After giving effect to the special allocations set forth in Section 6.1(d), Net Losses for each taxable period and all items of income, gain, loss and deduction taken into account in computing Net Losses for such taxable period shall be allocated as follows:
(i) First, 2% to the General Partner, and 98% to the Unitholders, Pro Rata, until the aggregate Net Losses allocated pursuant to this Section 6.1(b)(i) for the current taxable year and all previous taxable years is equal to the aggregate Net Income allocated to such Partners pursuant to Section 6.1(a)(iii) for all previous taxable years, provided that the Net Losses shall not be allocated pursuant to this Section 6.1(b)(i) to the extent that such allocation would cause any Unitholder to have a deficit balance in its Adjusted Capital Account at the end of such taxable year (or increase any existing deficit balance in its Adjusted Capital Account);
(ii) Second, 2% to the General Partner, and 98% to the Unitholders, Pro Rata; provided, that Net Losses shall not be allocated pursuant to this Section 6.1(b)(ii) to the extent that such allocation would cause any Unitholder to have a deficit balance in its Adjusted Capital Account at the end of such taxable year (or increase any existing deficit balance in its Adjusted Capital Account);
(iii) Third, the balance, if any, 100% to the General Partner.
Operating Expense Limit The Fund’s maximum operating expense limits (each an “Operating Expense Limit”) in any year shall be that percentage of the average daily net assets of the Fund as set forth on Schedule A attached hereto and incorporated by this reference.
Allowance for Loan and Lease Losses Within 10 days of this Agreement, the Bank shall eliminate from its books, by charge-off or collection, all assets or portions of assets classified “loss” in the Report of Examination that have not been previously collected in full or charged off. Thereafter the Bank shall, within 30 days from the receipt of any federal or state report of examination, charge off all assets classified “loss” unless otherwise approved in writing by the Reserve Bank.
Operating Expense Payments Landlord shall deliver to Tenant a written estimate of Operating Expenses for each calendar year during the Term (the “Annual Estimate”), which may be revised by Landlord from time to time during such calendar year. During each month of the Term, on the same date that Base Rent is due, Tenant shall pay Landlord an amount equal to 1/12th of Tenant’s Share of the Annual Estimate. Payments for any fractional calendar month shall be prorated.
Net Operating Income For any Real Estate and for a given period, an amount equal to the sum of (a) the rents, common area reimbursements, and service and other income for such Real Estate for such period received in the ordinary course of business from tenants or licensees in occupancy paying rent (excluding pre-paid rents and revenues and security deposits except to the extent applied in satisfaction of tenants’ or licensees’ obligations for rent and any non-recurring fees, charges or amounts including, without limitation, set-up fees and termination fees) minus (b) all expenses paid or accrued and related to the ownership, operation or maintenance of such Real Estate for such period, including, but not limited to, taxes, assessments and the like, insurance, utilities, payroll costs, maintenance, repair and landscaping expenses, marketing expenses, and general and administrative expenses (including an appropriate allocation for legal, accounting, advertising, marketing and other expenses incurred in connection with such Real Estate, but specifically excluding general overhead expenses of REIT and its Subsidiaries, any property management fees and non recurring charges), minus (c) the greater of (i) actual property management expenses of such Real Estate, or (ii) an amount equal to three percent (3.0%) of the gross revenues from such Real Estate excluding straight line leveling adjustments required under GAAP and amortization of intangibles pursuant to FAS 141R, minus (d) all rents, common area reimbursements and other income for such Real Estate received from tenants or licensees in default of payment or other material obligations under their lease, or with respect to leases as to which the tenant or licensee or any guarantor thereunder is subject to any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution, liquidation or similar debtor relief proceeding.
Allocation of Profit or Loss All Profit or Loss shall be allocated to the Member.
Variances From Operating Budget Furnish Agent, concurrently with the delivery of the financial statements referred to in Section 9.7 and each monthly report, a written report summarizing all material variances from budgets submitted by Borrowers pursuant to Section 9.12 and a discussion and analysis by management with respect to such variances.
