RENTAL CHARGES Total charges as set out in the Rental Agreement are not final. The Customer will pay any shortfall in charges to maui and the Customer will receive a refund for any overcharges made by maui. Wherever possible, any amendment to charges will be notified to the customer at conclusion of rental, and the customer agrees to payment of any such charges at that time.
Additional Rent Notwithstanding the provisions of the Original Lease, this Amended and Restated Lease Agreement is structured as a “triple net” lease. Accordingly, the provisions for Additional Rent based on Operating Expenses and Taxes are rewritten as follows. LESSEE shall also pay to LESSOR, as Additional Rent under the Lease, the following amounts based on LESSEE’S allocable percentage (which is 8.3441%, the ‘‘Allocable Percentage”): A. Operating Expenses: LESSEE shall be responsible for payment of Additional Rent attributable to the Operating Expenses for the Building and site, based on LESSEE’S Allocable Percentage. Operating Expenses, as set forth in Exhibit B hereto, are the unaudited actuals for calendar year 2006 (and will be subject to change based on actual costs and expenses incurred for each of the categorized Exhibit B costs and expenses in 2007 and each subsequent year during the Extended Term). “Operating Expenses” shall not include the following: the costs of LESSEE’S improvements and services for which LESSEE or any tenant specifically and directly reimburses LESSOR, or pays third persons at LESSOR’S directions; income or franchise taxes of the LESSOR; the costs incurred in any rehabilitation, reconstruction or other work occasioned by any insured casualty (i.e. as to which LESSOR is required to carry insurance hereunder), or by the exercise of the right of eminent domain (except to the extent of any so-called “deductible” amount under policies of insurance or any costs actually incurred for which any insurance company does not reimburse or compensate LESSOR or Owner); depreciation of the Building; general corporate overhead of the LESSOR entity; legal expenses incurred in any direct dispute with any particular tenant (other than those incurred which are of benefit to or protect the rights of other tenants in the Building, generally); costs of renovations to other tenants’ spaces; costs of capital improvements; brokerage and advertising costs in seeking new tenants; and penalties incurred due to LESSOR’S willful violation of any direct violation of any government order.
Base Rent Purchaser will receive a credit at Closing for the prorated amount of all base or fixed rent payable pursuant to the Leases and all Additional Rents (collectively, “Rent”) previously paid to, or collected by, Seller and attributable to any period following the Closing Date. Rents are “Delinquent” when they were due prior to the Closing Date, and payment thereof has not been made on or before the Closing Date. Delinquent Rent shall not be prorated at Closing. All Rent collected by Purchaser or Seller from each tenant from and after Closing will be applied as follows: (i) first, to Delinquent Rent owed for the month in which the Closing Date occurs (the “Closing Month”), (ii) second, to any accrued Rents owing to Purchaser, and (iii) third, to Delinquent Rents owing to Seller for the period prior to Closing. Any Rent collected by Purchaser and due Seller will be promptly remitted to Seller. Any Rent collected by Seller and due Purchaser shall be promptly remitted to Purchaser. Purchaser shall use reasonable efforts to collect Delinquent Rents owed to Seller in the ordinary course of its business; provided, however, that Seller hereby retains the right to pursue any tenant under the Leases for any Rent and other sums due Seller for period attributable to Seller’s ownership of the Property; and provided further, however, Seller (i) shall be required to notify Purchaser in writing of Seller’s intention to commence or pursue any legal proceedings; and (ii) shall not be permitted to commence or pursue any legal proceedings against any tenant seeking eviction of such tenant or the termination of the underlying Lease. “Additional Rents” shall mean any and all amounts due from tenants for operating expenses, common area maintenance charges, taxes, shared utility charges, management fees, insurance costs, other comparable expenses and pass-through charges and any other tenant charges. The provisions of this Section 14.5 shall survive the Closing and the delivery of any conveyance documentation.