Common use of Excess Rent Clause in Contracts

Excess Rent. If Landlord approves an assignment or subletting as herein provided, Tenant shall pay to Landlord, as Additional Rent, fifty percent (50%) of the Transfer Profits (as hereinafter defined), as evidenced by written records satisfactory to Landlord. As used herein, "Transfer Profits" means the difference, if any, between (1) the Base Rent plus Additional Rent allocable to that part of the Premises affected by such assignment or sublease pursuant to the provisions of this Lease, and (2) the rent and any additional rent payable by the assignee or sublessee to Tenant, less actual leasing commissions and reasonable attorneys' fees, if any, incurred by Tenant in connection with such assignment or sublease, and actual tenant improvement costs paid by Tenant in improving the Premises for the applicable assignee or subtenant up to an aggregate of five dollars ($5.00) per square foot of space subject to the assignment or sublease transaction. The assignment or sublease agreement, as the case may be, after approval by Landlord, shall not be amended without Landlord's prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed, shall contain an express assumption by the assignee or subtenant of Tenant's obligations under this Lease and shall contain a provision directing the assignee or subtenant to pay the rent and other sums due thereunder directly to Landlord upon receiving written notice from Landlord that Tenant is in default under this Lease with respect to. the payment of Rent. In the event that, notwithstanding the giving of such notice, Tenant collects any rent or other sums from the assignee or subtenant, then Tenant shall hold such sums in trust for the benefit of Landlord and shall immediately forward the same to Landlord. Landlord's collection of such rent and other sums shall not constitute an acceptance by Landlord of attornment by such assignee or subtenant. A consent to one assignment, subletting, occupation or use shall not be deemed to be a consent to any other or subsequent assignment, subletting, occupation or use, and consent to any assignment or subletting shall in no way relieve Tenant of any liability under this Lease. Any assignment or subletting without Landlord's consent shall be void, and shall, at the option of Landlord, constitute a Default under this Lease.

Excess Rent. If Landlord approves an assignment Tenant, having first obtained Landlord's consent to any sublease or subletting as herein providedassignment, or if Tenant or a trustee in bankruptcy for Tenant pursuant to the United States Bankruptcy Code, shall assign this Lease or sublet the Premises, or any part thereof, at a rental or for other consideration in excess of the Rent or prorata portion thereof due and payable by Tenant under this Lease, then Tenant shall pay to LandlordLandlord as additional rent fifty percent (50%) of any such excess rent or other monetary consideration immediately upon receipt under any such assignment or, as Additional Rentin the case of a sublease, (x) on the first day of each month during the term of any sublease fifty percent (50%) of the excess of all rent and other, consideration due from the subtenant for such month over the Rent then payable to Landlord pursuant to the provisions of this Lease for said month (or if only a portion of the Premises is being sublet, fifty percent (50%) of the Transfer Profits (as hereinafter defined), as evidenced by written records satisfactory to Landlord. As used herein, "Transfer Profits" means excess of all rent and other consideration due from the difference, if any, between (1) subtenant for such month over the Base Rent plus Additional Rent allocable to that part portion of the Premises affected by such assignment or sublease Rent then payable to Landlord pursuant to the provisions of this Lease, Lease for said month which is allocable on a square footage basis to the space sublet) and (2y) the rent and immediately upon receipt thereof, fifty percent (50%) of any additional rent payable by the assignee or sublessee to Tenant, less actual leasing commissions and reasonable attorneys' fees, if any, incurred other consideration realized by Tenant in connection with from such assignment or subleasesubletting; it being agreed, and actual tenant improvement costs paid by Tenant in improving the Premises for the applicable assignee or subtenant up to an aggregate of five dollars ($5.00) per square foot of space subject to the assignment or sublease transaction. The assignment or sublease agreementhowever, as the case may be, after approval by Landlord, that Landlord shall not be amended without Landlord's prior written consent, which consent responsible for any deficiency if Tenant shall not be unreasonably withheld, conditioned or delayed, shall contain an express assumption by the assignee or subtenant of Tenant's obligations under assign this Lease and shall contain or sublet the Premises or any part thereof at a provision directing the assignee or subtenant to pay the rent and other sums due thereunder directly to Landlord upon receiving written notice from Landlord rental less than that Tenant is in default under this Lease with respect to. the payment of Rent. In the event that, notwithstanding the giving of such notice, Tenant collects any rent or other sums from the assignee or subtenant, then Tenant shall hold such sums in trust provided for the benefit of Landlord and shall immediately forward the same to Landlord. Landlord's collection of such rent and other sums shall not constitute an acceptance by Landlord of attornment by such assignee or subtenant. A consent to one assignment, subletting, occupation or use shall not be deemed to be a consent to any other or subsequent assignment, subletting, occupation or use, and consent to any assignment or subletting shall in no way relieve Tenant of any liability under this Lease. Any assignment or subletting without Landlord's consent shall be void, and shall, at the option of Landlord, constitute a Default under this Leaseherein.

Excess Rent. If Landlord approves an shall give its consent to any assignment of the Lease, any sublease or other Transfer or if Tenant shall enter into any other assignment or subletting as herein providedsublease permitted hereunder, Tenant shall in consideration therefor, pay to Landlord, as Additional Rentadditional rent: (a) in the case of an assignment, an amount equal to fifty percent (50%) of all sums and other considerations paid to Tenant by the assignee for or by reason of such assignment (including, but not limited to, sums paid for the sale of Tenant’s fixtures, leasehold improvements, equipment, furniture, furnishings or other personal property, less, in the case of a sale thereof, the then fair market value thereof) less all expenses reasonably and actually incurred by Tenant on account of legal fees, brokerage commissions and advertising costs and improvement costs in connection with such assignment, provided that Tenant shall submit to Landlord a receipt evidencing the payment of such expenses (or other proof of payment as Landlord shall require, which costs shall be amortized on a straight-line basis over the balance of the Term of the Lease then remaining); and (b) in the case of a sublease or other Transfer, any rents, fifty percent (50%) of additional charges or other consideration payable under the sublease or other Transfer Profits (as hereinafter defined), as evidenced on a per square foot basis to Tenant by written records satisfactory to Landlord. As used herein, "Transfer Profits" means the difference, if any, between (1) the Base Rent plus Additional Rent allocable to that part subtenant which is in excess of the Premises affected Rent and additional rent accruing during the term of the sublease in respect of the subleased space (at the rate per square foot payable by such assignment or sublease Tenant hereunder) pursuant to the provisions terms hereof (including, but not limited to, sums paid for the sale or rental of this LeaseTenant’s fixtures, and (2) leasehold improvements, equipment, furniture or other personal property, less, in the rent and any additional rent payable by case of the assignee or sublessee to Tenantsale thereof, the then fair market value thereof), less actual leasing commissions all expenses reasonably and reasonable attorneys' fees, if any, actually incurred by Tenant on account of legal fees, brokerage commissions and advertising costs and improvement costs in connection with such assignment or sublease, and actual tenant improvement costs paid by provided that Tenant in improving the Premises for the applicable assignee or subtenant up to an aggregate of five dollars ($5.00) per square foot of space subject to the assignment or sublease transaction. The assignment or sublease agreement, as the case may be, after approval by Landlord, shall not be amended without Landlord's prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed, shall contain an express assumption by the assignee or subtenant of Tenant's obligations under this Lease and shall contain a provision directing the assignee or subtenant to pay the rent and other sums due thereunder directly submit to Landlord upon receiving written notice from Landlord that Tenant is in default under this Lease with respect to. a receipt evidencing the payment of Rent. In the event that, notwithstanding the giving of such notice, Tenant collects any rent expenses (or other proof of payment as Landlord shall require, which costs shall be amortized on a straight-line basis over the balance of the Term of the Lease then remaining). The sums from the assignee or subtenant, then Tenant shall hold such sums in trust for the benefit of Landlord and shall immediately forward the same to Landlord. Landlord's collection of such rent and other sums shall not constitute an acceptance by Landlord of attornment by such assignee or subtenant. A consent to one assignment, subletting, occupation or use shall not be deemed to be a consent to any other or subsequent assignment, subletting, occupation or use, and consent to any assignment or subletting shall in no way relieve Tenant of any liability payable under this Lease. Any assignment or subletting without Landlord's consent Section 13.7 shall be void, paid to Landlord as and shall, at when payable by the option of Landlord, constitute a Default under this Leasesubtenant to Tenant.”

Excess Rent. If the Landlord approves consents in writing to an assignment or subletting sublease as herein providedcontemplated herein, the Tenant may complete such assignment or sublease subject to one hundred percent (100%) of all “Excess Rent”, as hereinafter defined, derived from such assignment or sublease shall be payable to the Landlord. The Excess Rent shall be deemed to be and shall be paid by the Tenant to the Landlord as Rent. The Tenant shall pay the Excess Rent to Landlord, the Landlord immediately as Additional Rent, fifty percent (50%) of and when such Excess Rent is received by the Transfer Profits (as hereinafter defined), as evidenced by written records satisfactory to LandlordTenant. As used herein, "Transfer Profits" “Excess Rent” means the difference, if any, between (1) amount by which the Base Rent plus Additional Rent allocable total money and other economic consideration to that part of the Premises affected by such assignment or sublease pursuant to the provisions of this Lease, and (2) the rent and any additional rent payable be paid by the assignee or sublessee subtenant as a result of an assignment or sublease, whether denominated as rent or otherwise, exceeds, in the aggregate, the total amount of Base Rent and Additional Rent which the Tenant is obligated to pay to the Landlord under this Lease, pro-rated for the portion of the Premises being assigned or sublet subject to such assignment or sublease, reasonable costs for additional improvements installed in the portion of the Premises subject to such assignment or sublease, at the Tenant’s sole cost and expense, less actual for the specific assignee or subtenant in question, reasonable leasing costs (such as brokers’ commissions and reasonable attorneys' fees, if any, incurred the fees payable to the Landlord under Section 13.1(b)) paid by the Tenant in connection with such assignment or sublease, and actual tenant improvement costs paid by the amount of Base Rent and Additional Rent the Tenant in improving the Premises for the applicable assignee or subtenant up to an aggregate of five dollars ($5.00) per square foot of space subject to the assignment or sublease transaction. The assignment or sublease agreement, as the case may be, after approval by Landlord, shall not be amended without Landlord's prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed, shall contain an express assumption by the assignee or subtenant of Tenant's obligations under this Lease and shall contain a provision directing the assignee or subtenant is obligated to pay the rent and other sums due thereunder directly to Landlord upon receiving written notice from Landlord that Tenant is in default under this Lease with respect to. the payment of Rent. In the event that, notwithstanding the giving of such notice, Tenant collects any rent or other sums from the assignee or subtenant, then Tenant shall hold such sums in trust for the benefit of Landlord and shall immediately forward the same to Landlord. Landlord's collection of such rent and other sums shall not constitute an acceptance by Landlord of attornment by such assignee or subtenant. A consent to one assignment, subletting, occupation or use shall not be deemed to be a consent to any other or subsequent assignment, subletting, occupation or use, and consent to any assignment or subletting shall in no way relieve Tenant of any liability under this Lease. Any , prorated for the portion of the Premises being assigned or sublet, that is not occupied or used by the Tenant until the date of such assignment or subletting without Landlord's consent sublease. In determining the amounts to be deducted from Excess Rent in each monthly payment period in respect of the Tenant’s costs of assigning or subleasing, such costs shall be void, and shall, at amortized without interest over the option Term (in the case of Landlord, constitute an assignment) or term of the sublease (in the case of a Default under this Leasesublease) on a straight line basis.

Excess Rent. If In the event Landlord approves shall consent to a sublease or an assignment or subletting as herein providedassignment, Tenant shall pay to Landlord, as Additional Rent, fifty percent (50%) of all net proceeds (including the Transfer Profits (as hereinafter defined), as evidenced fair market value of all non-cash consideration) collected or received by written records satisfactory to Landlord. As used herein, "Transfer Profits" means the difference, if any, between (1) Tenant from a subtenant or assignee which are in excess of the Base Rent plus and Additional Rent allocable due and payable with respect to that part of the Premises affected by such assignment or sublease subject space pursuant to Article IV for the provisions of this Lease, and (2) the rent and any additional rent payable time period encompassed by the assignee sublease or sublessee to Tenantassignment term, less actual after first deducting reasonable leasing commissions paid by Tenant with respect to such sublease or assignment. With respect to an assignment, Tenant shall make such payment on the effective date of such assignment. With respect to a sublease, Tenant shall make such payment on a monthly basis on the first day of each calendar month after Tenant receives such amount from the subtenant. Landlord expressly acknowledges and reasonable attorneys' fees, if any, incurred agrees that it shall not be entitled to consideration received by Tenant in connection with such an assignment of this Lease or an sublease of the Premises to an Affiliate. Section 11.05 Information to be Provided Tenant’s written request to Landlord for consent to an assignment or subleasesubletting or other form of transfer shall be accompanied by (a) the name and legal composition of the proposed transferee; (b) the nature of the proposed transferee’s business to be carried on in the Premises; (c) the material terms and provisions of the proposed transfer agreement (including, without limitation, a description of the portion of the Premises to be transferred, and actual tenant improvement costs paid by the effective date of the proposed transfer); (d) a copy of all executed and/or proposed documentation pertaining to the proposed transfer; and (e) such financial and other reasonable information as Landlord may promptly request concerning the proposed transferee. 36 Section 11.06 Landlord’s Recapture Rights (a) Landlord’s Recapture Rights Notwithstanding any other provision of this Article 11, if Tenant desires to assign, sublease or otherwise transfer to any person or entity (other than an Affiliate) any interest in improving this Lease or the entire Premises or any part thereof, then Tenant shall deliver to Landlord a written request for consent, together with all of the information specified in Section 11.05 above. If such transfer (together with all other assignments, subleases or transfers then in effect) would affect seventy five percent (75%) of the Rentable Area of the Premises for in the applicable assignee or subtenant up aggregate (such total affected portion of the Rentable Area of the Premises being referred to an aggregate of five dollars ($5.00) per square foot of space subject to the assignment or sublease transaction. The assignment or sublease agreement, herein as the case may be“Recapture Space”) for more than fifty percent (50%) of the remainder of the Lease Term, after approval by Landlordthen Landlord shall have the option to recapture all, shall but not be amended without Landlord's prior written consentless than all, of the Recapture Space, which consent option shall not be unreasonably withheld, conditioned or delayed, shall contain an express assumption exercisable only by the assignee or subtenant giving written notice to Tenant (“Recapture Notice”) within ten (10) days after Landlord’s receipt of Tenant's obligations under this Lease and ’s request for consent. A timely Recapture Notice shall contain a provision directing the assignee or subtenant to pay the rent and other sums due thereunder directly to Landlord upon receiving written notice from Landlord that Tenant is in default under terminate this Lease with respect toto the Recapture Space effective as of the date specified in Tenant’s request for consent as the effective date of the proposed transfer. Landlord’s recapture rights shall be subject to the rights of any assignee, subtenant or other transferee of Tenant, as set forth in any assignment, sublease or other transfer agreement to which Landlord previously has consented, but subject to the terms and conditions set forth in Landlord’s consent thereto; any such assignment, sublease or other transfer agreement shall be assigned to Landlord as of the effective date of Landlord’s recapture. (b) Consequences of Recapture If Landlord recaptures less than the entire Premises pursuant to Section 11.06(a) above, then the Rent reserved herein shall be prorated on the basis the of the Rentable Area of the portion of the Premises retained by Tenant in proportion to the Rentable Area contained in the Premises. This Lease, as so amended, shall continue thereafter in full force and effect. Either party may require written confirmation of the amendments to this Lease necessitated by Landlord’s recapture of the Recapture Space. If Landlord recaptures the Recapture Space, then Landlord, at Landlord’s sole expense, shall promptly (but in all events prior to Landlord tendering possession of the Recapture Space to a third party) construct, paint, and furnish any partitions required to segregate the Recapture Space from the remaining Premises retained by Tenant, as well as arrange for separate provision of utilities and services (including, at Landlord’s option, installation of separate meters if and to the extent the premises are served by separately metered utilities) (collectively, the “Demising Improvements”). Landlord agrees that the Demising Improvements shall be completed pursuant to plans and specifications reasonably acceptable to Tenant and that Landlord shall use commercially reasonable efforts to minimize any interference with Tenant’s use and enjoyment of the Premises during the construction of any Demising Improvements. 37 ARTICLE XII DEFAULTS; REMEDIES Section 12.01 Defaults The occurrence of any one or more of the following events shall constitute a material default and breach of this Lease by Tenant: (a) The vacation or abandonment of all or a substantial portion of the Premises by Tenant, or the commission of waste at the Premises, or the making of an assignment, subletting or other transfer in violation of Article XI; provided however, abandonment and/or vacation shall be considered to not occur if the Premises are maintained and occupied to the extent necessary to maintain the insurance on each and every portion of the Premises; (b) The failure by Tenant to make any payment of RentBase Rent as and when due, if such failure continues for a period of five (5) business days after written notice thereof from Landlord to Tenant. In the event thatthat Landlord serves Tenant with a Notice to Pay Rent or Quit in the form required by applicable law, notwithstanding such Notice shall constitute the giving notice required by this paragraph, provided that the cure period stated in such Notice shall be five (5) business days rather than the statutory three (3) days; (c) The failure by Tenant to make any payment of any other sum owing under this Lease as and when due, if such noticefailure continues for a period of five (5) business days after written notice thereof from Landlord to Tenant. In the event that Landlord serves Tenant with a Notice to Pay Rent or Quit in the form required by applicable law, such Notice shall constitute the notice required by this paragraph, provided that the cure period stated in such Notice shall be five (5) business days rather than the statutory three (3) days; (d) Tenant’s failure to provide (i) any supplemental letter of credit as required by Section 2.04(c) or (ii) any instrument or assurance as required by Section 7.05 or (iii) estoppel certificate as required by Section 15.01 or (iv) any document subordinating this Lease to a Lender’s deed of trust as required by Section 17.13, if any such failure continues for ten (10) business days after written notice of the failure. In the event Landlord serves Tenant collects with a Notice to Perform Covenant or Quit in the form required by applicable law, such Notice shall constitute the notice required by this paragraph, provided that the cure period stated in such Notice shall be ten (10) business days rather than the statutory three (3) days; (e) The failure by Tenant to observe or perform any rent of the covenants, conditions or provisions of this Lease to be observed or performed by Tenant, other sums than described in paragraphs (a), (b), (c) or (d) of this Section 12.01, if such failure continues for a period of thirty (30) days after written notice thereof from Landlord to Tenant; provided, however, that if the assignee or subtenantnature of Tenant’s default is such that more than thirty (30) days are reasonably required for its cure, then Tenant shall hold such sums in trust for the benefit of Landlord and shall immediately forward the same to Landlord. Landlord's collection of such rent and other sums shall not constitute an acceptance by Landlord of attornment by such assignee or subtenant. A consent to one assignment, subletting, occupation or use shall not be deemed to be in default if Tenant commences such cure within said thirty (30) day period and thereafter diligently prosecutes such cure to completion. In the event Landlord serves Tenant with a consent Notice to any other Perform Covenant or subsequent assignmentQuit in the form required by applicable law, sublettingsuch Notice shall constitute the notice required by 38 this paragraph, occupation or use, and consent to any assignment or subletting provided that the cure period stated in such Notice shall in no way relieve be thirty (30) days rather than the statutory three (3) days; (f) (i) The making by Tenant of any liability general arrangement or assignment for the benefit of creditors; (ii) the filing by Tenant of a voluntary petition in bankruptcy under Title 11 U.S.C. or the filing of an involuntary petition against Tenant which remains uncontested for a period of sixty (60) days; (iii) the appointment of a trustee or receiver to take possession of substantially all of Tenant’s assets located at the Premises or of Tenant’s interest in this Lease; or (iv) the attachment, execution or other judicial seizure of substantially all of Tenant’s assets located at the Premises or of Tenant’s interest in this Lease, provided, however, in the event that any provisions of this Section 12.01(e) is contrary to any applicable law, such provision shall be of no force or effect; and (g) The discovery by Landlord that any financial statement given to Landlord by Tenant, or any future guarantor of Tenant’s obligations hereunder, was materially false. Section 12.02 Remedies In the event of any such material default and breach by Tenant, Landlord may at any time thereafter, and without limiting Landlord in the exercise of any right or remedy which Landlord may have by reason of such default and breach: (a) Terminate Tenant’s right to possession of the Premises by any lawful means, in which case this Lease shall terminate and Tenant shall immediately surrender possession of the Premises to Landlord. In such event Landlord shall be entitled to recover from Tenant all damages incurred by Landlord by reason of Tenant’s default including, but not limited to, (i) the cost of recovering possession of the Premises including reasonable attorney’s fees related thereto; (ii) the worth at the time of the award of any unpaid Rent that had been earned at the time of the termination, to be computed by allowing interest at the Agreed Rate but in no case greater than the maximum amount of interest permitted by law, (iii) the worth at the time at the time of the award of the amount by which the unpaid Rent that would have been earned between the time of the termination and the time of the award exceeds the amount of unpaid Rent that Tenant proves could reasonably have been avoided, to be computed by allowing interest at the Agreed Rate but in no case greater than the maximum amount of interest permitted by law, (iv) the worth at the time of the award of the amount by which the unpaid Rent for the balance of the Lease Term after the time of the award exceeds the amount of unpaid Rent that Tenant proves could reasonably have been avoided, to be computed by discounting that amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of the award plus one percent (1%), (v) any other amount necessary to compensate Landlord for all the detriment proximately caused by Tenant’s failure to perform obligations under this Lease, including, but not limited to, reasonable brokerage commissions and advertising expenses, expenses of remodeling the Premises for a new tenant (whether for the same or a different use), and any market-rate concessions made to obtain a new tenant, and (vi) any other amounts, in addition to or in lieu of those listed above, that may be permitted by applicable law. (b) Maintain Tenant’s right to possession as provided in Civil Code Section 1951.4 (Landlord may continue lease in effect after Tenant’s breach and abandonment 39 and recover rent as it becomes due, if Tenant has the right to sublet or assign, subject only to reasonable limitations), in which case this Lease shall continue in effect whether or not Tenant shall have abandoned the Premises. In such event Landlord shall be entitled to enforce all of Landlord’s rights and remedies under this Lease, including the right to recover the Rent as it becomes due hereunder. (c) Pursue any other remedy now or hereafter available to Landlord under the laws or judicial decisions of the state of California. Section 12.03 Default by Landlord Landlord shall not be in default under this Lease unless Landlord fails to perform obligations required of Landlord within thirty (30) days after receipt of written notice from Tenant to Landlord and to the holder of any first mortgage or deed of trust covering the Premises whose name and address shall have theretofore been furnished to Tenant in writing, specifying that Landlord has failed to perform such obligation; provided, however, that if the nature of Landlord’s obligation is such that more than thirty (30) days are reasonably required for performance then Landlord shall not be in default if Landlord commences performance within such thirty (30) day period and thereafter diligently prosecutes the same to completion. In the event Landlord does not commence performance of any maintenance or repair required of Landlord hereunder within the thirty (30) day period provided herein, and in the event that such maintenance or repair relates to improvements which are wholly within the Premises (not including any Building core systems or equipment), Tenant may perform such maintenance or repair, and Tenant shall be entitled to prompt reimbursement by Landlord of Tenant’s reasonable costs and expenses in taking such action, together with interest thereon at the Agreed Rate. Tenant waives any right to terminate this Lease or to vacate the Premises on Landlord’s default under this Lease. Any assignment Tenant’s sole remedy on Landlord’s default is an action for damages or subletting without Landlord's consent shall be void, and shall, at the option of Landlord, constitute a Default under this Lease.injunctive or declaratory relief. Section 12.04

Excess Rent. If Landlord approves an In the event of any proposed assignment of this Lease or subletting (in whole or in part) of the Demised Premises or grant of any concession or license within the Demised Premises or allowance of any other nature of occupancy rights within the Demised Premises (any such assignment or subletting as herein providedor grant of a license or concession or other occupancy rights being subject to the provisions of this Article), then notwithstanding that the prior express written permission of Landlord to any of the aforesaid transactions may have been obtained, if the rent due and payable by a sublessee under any such permitted sublease (or a combination of the rent payable under such sublease plus any bonus or other consideration therefor or incident thereto), such previously mentioned amounts payable to be determined on a per square foot basis, exceeds the hereinabove provided Minimum Rent payable under this Lease (determined on a per square foot basis) or if with respect to a permitted assignment, permitted license or other transfer by Tenant permitted by Landlord, the consideration (determined on a per square foot basis) payable to Tenant by the assignee, licensee or other transferee exceeds the Minimum Rent payable under this Lease (determined on a per square foot basis), then Tenant shall be bound and obligated to pay to LandlordLandlord all such excess rental and other excess consideration within ten (10) days following receipt thereof by Tenant from such sublessee, assignee, licensee or other transferee, as Additional Rentthe case might be. In addition to the foregoing, fifty percent in the event of any proposed assignment of this Lease or subletting (50%in whole or in part) of the Transfer Profits Demised Premises or grant of any concession or license within the Demised Premises or allowance of any other nature of occupancy rights within the Demised Premises (as hereinafter defined), as evidenced by written records satisfactory to Landlord. As used herein, "Transfer Profits" means the difference, if any, between (1) the Base Rent plus Additional Rent allocable to that part of the Premises affected by any such assignment or sublease subletting or grant of a license or concession or other occupancy rights being subject to the provisions of this Article), then Tenant acknowledges that in addition to any other rights of Landlord set forth in this Lease or at law, as a condition to Landlord’s granting such consent (if Landlord does, in fact, consent to any such proposed assignment, subletting, grant concession or other occupancy rights, it being acknowledged by Tenant that Landlord is under no obligation to so consent), Landlord may require an increase in the Minimum Rent payable hereunder (on an annual basis for each year during the term hereof remaining after Landlord grants such consent) equal to the sum of (i) the annual Minimum Rent payable pursuant to the provisions of this Lease, and Lease for the remainder of the term of this Lease plus (2ii) the rent and any additional rent amount of Percentage Rent payable by Tenant pursuant to the assignee or sublessee to Tenant, less actual leasing commissions and reasonable attorneys' fees, if any, incurred by Tenant in connection with such assignment or sublease, and actual tenant improvement costs paid by Tenant in improving the Premises terms of this Lease for the applicable assignee immediately preceding Lease Year (or subtenant up to an aggregate of five dollars ($5.00) per square foot of space subject if no such Percentage Rent was payable pursuant to the assignment or sublease transaction. The assignment or sublease agreement, as the case may be, after approval by Landlord, shall not be amended without Landlord's prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed, shall contain an express assumption by the assignee or subtenant terms of Tenant's obligations under this Lease and shall contain a provision directing the assignee or subtenant to pay the rent and other sums due thereunder directly to Landlord upon receiving written notice from Landlord that Tenant is in default under this for such immediately preceding Lease with respect to. the payment of Rent. In the event that, notwithstanding the giving of such notice, Tenant collects any rent or other sums from the assignee or subtenantYear, then Tenant shall hold such sums in trust the amount of Percentage Rent payable for the benefit of Landlord and shall immediately forward the same to Landlord. Landlord's collection of last Lease Year for which such rent and other sums shall not constitute an acceptance by Landlord of attornment by such assignee or subtenant. A consent to one assignment, subletting, occupation or use shall not be deemed to be a consent to any other or subsequent assignment, subletting, occupation or use, and consent to any assignment or subletting shall in no way relieve Tenant of any liability under this Lease. Any assignment or subletting without Landlord's consent shall be void, and shall, at the option of Landlord, constitute a Default under this LeasePercentage Rent was so payable).

Excess Rent. If Landlord approves an assignment or subletting as herein providedNotwithstanding anything to the contrary contained in Section 15 of this Lease, Tenant shall pay to Landlordhereby assigns, as Additional Rent, transfers and conveys fifty percent (50%) of the Transfer any Profits (as hereinafter defined), as evidenced by written records satisfactory to Landlord. As used herein, "Transfer Profits" means ) derived from the difference, if any, between (1) the Base Rent plus Additional Rent allocable to that part of the Premises affected by such assignment or sublease pursuant to the provisions of this Leasesublease, and Tenant shall hold such amounts in trust for Landlord and pay them to Landlord within ten (210) days after receipt. “Profits” shall mean the rent and any additional rent payable by gross revenue derived from the assignee or sublessee during the sublease term or during the assignment, with respect to Tenantthe space covered by the sublease or the assignment (“Transferred Space”), less actual leasing commissions and reasonable attorneys' fees, if any, incurred less: (a) the gross revenue paid to Landlord by Tenant during the period of the sublease or during the assignment with respect to the Transferred Space; (b) the gross revenue as to the Transferred Space paid to Landlord by Tenant for all days the Transferred Space was vacated from the date that Tenant first vacated the Transferred Space until the date the assignee or sublessee was to pay Rent; (c) any improvement allowance or other economic concession (planning allowance, moving expenses, etc.), paid by Tenant to sublessee or assignee; (d) brokers’ commissions; (e) attorneys’ fees; (f) lease takeover payments; (g) costs of advertising the space for sublease or assignment; (h) unamortized cost of initial and subsequent improvements to the Premises by Tenant; and (i) any other costs actually paid in connection with such assigning or subletting the Transferred Space or in negotiating or effectuating the assignment or sublease; provided, however, under no circumstance shall Landlord be paid any Profits until Tenant has recovered all the items set forth in subparts (a) through (i) for such Transferred Space, it being understood that if in any year the gross revenues, less the deductions set forth in subparts(a) through (i) above (the “Net Revenues), are less than any and actual tenant improvement all costs actually paid by Tenant in improving assigning or subletting the Premises for affected space (collectively “Transaction Costs”), the applicable assignee or subtenant up to an aggregate amount of five dollars ($5.00) per square foot of space subject excess Transaction Costs shall be carried over to the assignment or sublease transaction. The assignment or sublease agreement, as next year and then deducted from Net Revenues with the case may be, after approval by Landlord, shall not be amended without Landlord's prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed, shall contain an express assumption by the assignee or subtenant of Tenant's obligations under this Lease and shall contain procedure repeated until a provision directing the assignee or subtenant to pay the rent and other sums due thereunder directly to Landlord upon receiving written notice from Landlord that Tenant Profit is in default under this Lease with respect to. the payment of Rent. In the event that, notwithstanding the giving of such notice, Tenant collects any rent or other sums from the assignee or subtenant, then Tenant shall hold such sums in trust for the benefit of Landlord and shall immediately forward the same to Landlord. Landlord's collection of such rent and other sums shall not constitute an acceptance by Landlord of attornment by such assignee or subtenant. A consent to one assignment, subletting, occupation or use shall not be deemed to be a consent to any other or subsequent assignment, subletting, occupation or use, and consent to any assignment or subletting shall in no way relieve Tenant of any liability under this Lease. Any assignment or subletting without Landlord's consent shall be void, and shall, at the option of Landlord, constitute a Default under this Leaseachieved.

Excess Rent. If Landlord approves For any Assignment or Sublease, except an assignment Assignment or subletting as herein provided, Tenant shall pay Sublease pursuant to Landlord, as Additional RentSection 14.7, fifty percent (50%) of the Transfer Profits (Excess Rent received by Tenant shall be paid to Landlord as hereinafter defined), as evidenced and when received by written records satisfactory to LandlordTenant. As used herein, "Transfer Profits" “Excess Rent” means the differencegross revenue received from the Transferee during the Sublease term or with respect to the Assignment, less (a) the gross revenue paid to Landlord by Tenant during the period of the Sublease term or concurrently with or after the Assignment; (b) any tenant improvement allowance or other economic concession (planning allowance, moving expenses, etc.) that is reasonably documented and paid by Tenant to the Transferee, and the cost of tenant improvements made by Tenant for the Transferees in the subleased space; (c) customary and reasonable external brokers’ commissions to the extent paid and documented; (d) reasonable attorneys’ fees; (e) the actual cost of demising the subleased space, if any, between applicable; (1f) the Base Rent plus Additional Rent allocable unamortized cost of the Tenant Improvement Work calculated on a straight line basis over forty-eight (48) months, in excess of the Tenant Improvement Allowance (or, in the case of a Sublease, the amount thereof proportionate to that part the term of the sublease and proportionate share of the Premises affected by subject to such assignment or sublease pursuant to the provisions of this Lease, Sublease); and (2g) reasonable costs of advertising the rent and space for Sublease or Assignment (collectively, “Transfer Costs”). Tenant shall not have to pay to Landlord any additional rent payable by Excess Rent until Tenant has recovered all of its Transfer Costs. In addition, notwithstanding the assignee or sublessee foregoing, Tenant shall not be obligated to Tenant, less actual leasing commissions and reasonable attorneys' fees, if any, incurred by Tenant in connection with such assignment or sublease, and actual tenant improvement costs paid by Tenant in improving the Premises pay any Excess Rent to Landlord for the applicable assignee or subtenant any Sublease(s) of up to an aggregate of five dollars fifty ($5.0050%) per square foot of space subject to the assignment or sublease transaction. The assignment or sublease agreement, as Premises during the case may be, after approval by Landlord, shall not be amended without Landlord's prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed, shall contain an express assumption by first two (2) years of the assignee or subtenant of Tenant's obligations under this Lease and shall contain a provision directing the assignee or subtenant to pay the rent and other sums due thereunder directly to Landlord upon receiving written notice from Landlord that Tenant is in default under this Lease with respect to. the payment of Rent. In the event that, notwithstanding the giving of such notice, Tenant collects any rent or other sums from the assignee or subtenant, then Tenant shall hold such sums in trust for the benefit of Landlord and shall immediately forward the same to Landlord. Landlord's collection of such rent and other sums shall not constitute an acceptance by Landlord of attornment by such assignee or subtenant. A consent to one assignment, subletting, occupation or use shall not be deemed to be a consent to any other or subsequent assignment, subletting, occupation or use, and consent to any assignment or subletting shall in no way relieve Tenant of any liability under this Lease. Any assignment or subletting without Landlord's consent shall be void, and shall, at the option of Landlord, constitute a Default under this LeaseTerm.

Excess Rent. If Landlord approves an assignment or subletting as herein provided, Tenant shall pay to Landlord, as Additional Rent, fifty percent (50%) of the Transfer Profits (as hereinafter defined), as evidenced by written records satisfactory to Landlord. As used herein, "Transfer Profits" means the difference, if any, between (1) the Base Rent plus Additional Rent allocable to that part of the Premises affected by such assignment or sublease pursuant to the provisions of this Lease, and (2) the rent and any additional rent payable by the assignee or sublessee to Tenant, less actual leasing commissions and reasonable attorneys' fees, if any, incurred by Tenant in connection with such assignment or sublease, and actual tenant improvement costs paid by Tenant in improving the Premises for the applicable assignee or subtenant up to an aggregate of five dollars ($5.00) per square foot of space subject to the assignment or sublease transaction. The assignment or sublease agreement, as the case may be, after approval by Landlord, shall not be amended without Landlord's prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed, shall contain an express assumption by the assignee or subtenant of Tenant's obligations under this Lease and shall contain a provision directing the assignee or subtenant to pay the rent and other sums due thereunder directly to Landlord upon receiving written notice from Landlord that Tenant is in default under this Lease with respect to. to the payment of Rent. In the event that, notwithstanding the giving of such notice, Tenant collects any rent or other sums from the assignee or subtenant, then Tenant shall hold such sums in trust for the benefit of Landlord and shall immediately forward the same to Landlord. Landlord's collection of such rent and other sums shall not constitute an acceptance by Landlord of attornment by such assignee or subtenant. A consent to one assignment, subletting, occupation or use shall not be deemed to be a consent to any other or subsequent assignment, subletting, occupation or use, and consent to any assignment or subletting shall in no way relieve Tenant of any liability under this Lease. Any assignment or subletting without Landlord's consent shall be void, and shall, at the option of Landlord, constitute a Default under this Lease.

Excess Rent. If Landlord approves an consents to any assignment or subletting as herein providedof this Lease, Tenant shall agrees to pay to Landlord, as Additional Rentadditional rent, fifty percent (50%) of all sums and other consideration payable to and for the Transfer Profits (as hereinafter defined)benefit of Tenant by the assignee on account of the assignment, as evidenced by written records satisfactory to Landlord. As used herein, "Transfer Profits" means the difference, if any, between (1) the Base Rent plus Additional Rent allocable to that part of the Premises affected by and when such assignment or sublease pursuant to the provisions of this Lease, sums and (2) the rent other consideration are due and any additional rent payable by the assignee to or sublessee for the benefit of Tenant (or, if Landlord so requires, and without any release of Tenant’s liability for the same, Tenant agrees to Tenantinstruct the assignee to pay such sums and other consideration directly to Landlord). If for any sublease, less actual leasing Tenant receives rent or other consideration, either initially or over the term of the sublease, in excess of the rent fairly allocable to the portion of the Premises which is subleased based on square footage, Tenant agrees to pay to Landlord as additional rent fifty percent (50%) of the excess of each such payment of rent or other consideration received by Tenant promptly after its receipt. In calculating excess rent or other consideration which may be payable to Landlord under this Subparagraph, Tenant will be entitled to recapture, on an amortized basis over the term of the sublease or assignment, any commercially reasonably third party brokerage commissions and reasonable attorneys' fees, if any, incurred legal fees paid by Tenant in connection with such the subletting or assignment or sublease, and actual tenant any improvement costs allowance paid by Tenant in improving to the Premises for subtenant or assignee (collectively the applicable assignee “Assignment or subtenant up Subletting Costs”), provided that, as a condition to an aggregate Tenant recapturing the Assignment or Subletting Costs, Tenant shall provide to Landlord, within ninety (90) days of five dollars ($5.00) per square foot Landlord’s execution of space subject Landlord’s consent to the assignment or sublease transactionsubletting, a detailed accounting of the Assignment or Subletting Costs and supporting documents, such as receipts and construction invoices. The assignment To effect the foregoing, Tenant shall deduct from the monthly amounts received by Tenant from the subtenant or sublease agreement, assignee as rent or consideration (i) the case may be, after approval Monthly Base Rent payable by Landlord, shall not be amended without Landlord's prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed, shall contain an express assumption by the assignee or subtenant of Tenant's obligations under this Lease and shall contain a provision directing the assignee or subtenant to pay the rent and other sums due thereunder directly Tenant to Landlord upon receiving written notice from Landlord that Tenant is in default under this Lease with respect to. the payment of Rent. In the event that, notwithstanding the giving of such notice, Tenant collects any rent or other sums from the assignee or subtenant, then Tenant shall hold such sums in trust for the benefit subject space and (ii) the incremental amount, on an amortized basis, of Landlord the Assignment or Subletting Costs, and fifty (50%) of the then remaining sum shall immediately forward the same be paid promptly to Landlord. Landlord's collection of such rent and other sums shall not constitute an acceptance by Landlord of attornment by such assignee or subtenant. A consent to one assignment, subletting, occupation or use shall not be deemed to be a consent to any other or subsequent assignment, subletting, occupation or use, and consent to any assignment or subletting shall in no way relieve Tenant of any liability under this Lease. Any assignment or subletting without Landlord's consent shall be void, and shall, at the option of Landlord, constitute a Default under this Lease.

Excess Rent. If Landlord approves an assignment or subletting as herein provided, Tenant shall pay to LandlordLandlord on the first day of each month during the term of any sublease or assignment, as Additional Rent, fifty forty percent (5040%) of the Transfer Profits amount ("Excess Rent") by which the sum of all rent and other consideration (direct or indirect) received from the subtenant or assignee for such month exceeds: (a) that portion of the Monthly Base Rent and Rent Adjustments due under this Lease for said month which is allocable to the space sublet or assigned; and (b) the following costs and expenses for the subletting or assignment of such space allocable to said month: (i) brokerage commissions and attorneys' fees and expenses; (ii) advertising for subtenants or assignees; (iii) the actual costs paid in making any improvements or substitutions in the Premises required by any sublease or assignment; (iv) costs of any inducements or concessions given to subtenant or assignee, such as hereinafter definedmoving costs; (v) costs of unamortized Tenant Alterations paid for by Tenant as of the date that the assignment or sublease commences; and (vi) any other reasonable out-of-pocket costs of Tenant in obtaining a subtenant or assignee. All such costs will be amortized (inclusive of interest at a rate no higher than 10% per annum) on a monthly basis over the term of the sublease or assignment pursuant to sound accounting principles. Tenant shall have the right to sell any of its trade fixtures, furniture and equipment to a subtenant or assignee pursuant to a separate agreement and Landlord shall not be entitled to any of the proceeds of such sale. With respect to Recapture Space which is also Excess Rent Sharing Space, Landlord shall pay Tenant on the first day of each month during that portion of the term of any lease or leases of such space (excluding any options to extend the term of such lease(s)) which fall(s) within the Term of this Lease, sixty percent (60%) of the Excess Rent received by Landlord from the tenant under any such lease. If at the time Landlord Recaptures any space pursuant to Section 10.2, the remainder obtained by subtracting (i) the sum of the aggregate rentable square footage of the Premises which is subject to a sublease or has been assigned (without Recapture), as evidenced by written records satisfactory plus the aggregate rentable square footage of the then existing Excess Rent Sharing Space (excluding the Recapture Space in question), from (ii) the lesser of 25% of the Premises (including assigned portions) or 50,000 rentable square feet, is a positive number, then that positive number of rentable square feet of such Recapture Space (up to Landlord. As used herein, such entire Recapture Space) will be deemed to be "Transfer ProfitsExcess Rent Sharing Space." means the differenceFor example, if anyTenant has previously sublet a total of 40,000 rentable square feet to various subtenants, between and now wants to sublease an additional 25,000 rentable square feet, but Landlord exercises its right to Recapture the entire 25,000 rentable square feet, then 10,000 of the 25,000 rentable square feet of such Recapture Space would be Excess Rent Sharing Space. However, for purposes hereof, Excess Rent will be calculated for such a space on a proportionate basis taking into account all rentals and expenses, etc. described above for the entire 25,000 rentable square feet. So Tenant would receive sixty percent (160%) of forty percent (40%), or twenty-four percent (24%), of the Base aggregate Excess Rent plus Additional for the entire 25,000 rentable square feet. The Recapture by Landlord of any Excess Rent allocable Sharing Space which Tenant had proposed to that sublease shall only be for a period of time equal to the term of the proposed sublease (regardless of whether or not Landlord actually leases the Recapture Space to the proposed subtenant) and such space shall again become part of the Premises affected by such assignment or sublease pursuant to the provisions of this Lease, (and (2Excess Rent Sharing Space) the rent and any additional rent payable by the assignee or sublessee to Tenant, less actual leasing commissions and reasonable attorneys' fees, if any, incurred by Tenant in connection with such assignment or sublease, and actual tenant improvement costs paid by Tenant in improving the Premises for the applicable assignee or subtenant up to an aggregate of five dollars ($5.00) per square foot of space subject to the assignment or sublease transaction. The assignment or sublease agreement, as the case may be, after approval by Landlord, shall not be amended without Landlord's prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed, shall contain an express assumption by the assignee or subtenant of Tenant's obligations under this Lease and shall contain a provision directing the assignee or subtenant to pay the rent and other sums due thereunder directly to Landlord upon receiving written notice from Landlord that Tenant is in default under this Lease with respect to. the payment of Rent. In the event that, notwithstanding the giving expiration of such notice, Tenant collects any rent or other sums from the assignee or subtenant, then Tenant shall hold such sums in trust for the benefit of Landlord and shall immediately forward the same to Landlord. Landlord's collection of such rent and other sums shall not constitute an acceptance by Landlord of attornment by such assignee or subtenant. A consent to one assignment, subletting, occupation or use shall not be deemed to be a consent to any other or subsequent assignment, subletting, occupation or use, and consent to any assignment or subletting shall in no way relieve Tenant of any liability under this Lease. Any assignment or subletting without Landlord's consent shall be void, and shall, at the option of Landlord, constitute a Default under this Leasetime period.

Excess Rent. If Landlord approves an Tenant shall assign this Lease or sublet the Premises ----------- (other than to a Portfolio Occupant or in connection with any other assignment or subletting as herein providedsublease for which Landlord's consent is not needed), or any part thereof, at a rental or for other consideration in excess of the Rent or pro rata portion thereof due and payable by Tenant under this Lease (after netting out Tenant's cost of such transaction), then Tenant shall pay to LandlordLandlord as additional Rent 50% of any such excess rent or other monetary consideration immediately upon receipt under any such assignment or, as Additional Rent, fifty percent in the case of a sublease (50%) of the Transfer Profits (as hereinafter defined), as evidenced by written records satisfactory other than to Landlord. As used herein, "Transfer Profits" means the difference, if any, between (1) the Base Rent plus Additional Rent allocable to that part of the Premises affected by such a Portfolio Occupant or in connection with any other assignment or sublease for which Landlord's consent is not needed), (x) on the first day of each month during the term of any sublease 50% of the excess of all rent and other consideration due from the subtenant for such month over the Rent then payable to Landlord pursuant to the provisions of this LeaseLease for said month (or if only a portion of -the Premises is being sublet, 50% of the excess of all rent and other consideration due from the subtenant for such month over the portion of the Rent then payable to Landlord pursuant to the provisions of this Lease for said month which is allocable on a square footage basis to the space sublet) and (2y) the rent and immediately upon receipt thereof, 50% of any additional rent payable by the assignee or sublessee to Tenant, less actual leasing commissions and reasonable attorneys' fees, if any, incurred other consideration realized by Tenant in connection with from such assignment subletting; it being agreed, however, that Landlord shall not be responsible for any deficiency if Tenant shall assign this Lease or sublease, and actual tenant improvement costs sublet the Premises or any part thereof at a rental less than that provided for herein. It is agreed that rental paid by Tenant in improving the Premises for the applicable an INITIAL HERE: Landlord: Tenant: DK RP --------- -------- assignee or subtenant up to which is an aggregate affiliate of five dollars ($5.00) per square foot Tenant which is a "bookkeeping entry" only without the actual exchange of space subject to the assignment or sublease transaction. The assignment or sublease agreement, as the case may be, after approval by Landlord, shall funds is not be amended without Landlord's prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed, shall contain an express assumption by the assignee or subtenant of Tenant's obligations under this Lease and shall contain a provision directing the assignee or subtenant to pay the rent and other sums due thereunder directly to Landlord upon receiving written notice from Landlord that Tenant is in default under this Lease with respect to. the payment of Rent. In the event that, notwithstanding the giving of such notice, Tenant collects any rent or other sums from the assignee or subtenant, then Tenant shall hold such sums in trust deemed rental for the benefit purpose of Landlord and shall immediately forward the same to Landlord. Landlord's collection of such rent and other sums shall not constitute an acceptance by Landlord of attornment by such assignee or subtenant. A consent to one assignment, subletting, occupation or use shall not be deemed to be a consent to any other or subsequent assignment, subletting, occupation or use, and consent to any assignment or subletting shall in no way relieve Tenant of any liability under this Lease. Any assignment or subletting without Landlord's consent shall be void, and shall, at the option of Landlord, constitute a Default under this LeaseSection 10.3.