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.
Appears in 4 contracts
Samples: Sublease Agreement, Sublease Agreement, Sublease Agreement (First Advantage Corp)
Exclusions from Operating Expenses. Notwithstanding any term or condition set forth in this Exhibit or the provisions of section 5.1.4. above, the Master Lease following are specifically excluded from “Operating Expenses”: costs of work, including painting and decorating and tenant change work, which Landlord performs for any tenant or Sublease in any tenant’s space in the Building other than work of a kind and scope which Landlord would be obligated to the contraryfurnish to all tenants; cost of repairs or other work occasioned by fire, 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) windstorm or other insured casualty to the extent that Landlord is entitled to direct reimbursement of insurance proceeds received or by the exercise of eminent domain or any expenditures 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 tenantsfrom any source; leasing commissions, warrantors or advertising expenses, and other third parties.
(d) Costs, including permit, license and inspection costs, cost incurred with respect to the installation of tenant improvements made for any tenants in leasing space in the Building or incurred in renovating or otherwise improvingincluding but not limited to attorneys’ fees, decorating, painting or redecorating vacant space for tenants or other occupants of the Building.
(e) Salaries costs 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 disbursements and other costs and expenses incurred in connection with negotiations or disputes with present tenants, other occupants, or prospective tenants or occupants except to the extent incurred in connection with the negotiation and entering into of a sublease or lease assignment at the request of Tenant; Landlord’s cost of electricity and other occupants services that are sold to tenants and for which Landlord is reimbursed by tenants as an additional charge or rental over and above the basic rent payable under the lease with such tenants; costs of repairs or rebuilding necessitated by condemnation; costs incurred by Landlord for structural repairs, alterations or improvements to the Building or Parking Structure (if any), considered capital improvements or replacements under generally accepted accounting principles, except where such capital improvement or replacement results in a net reduction in Operating Expenses after the cost of the Building (including improvement or replacement is amortized and charged to Tenant over the useful life of the improvement or replacement; Depreciation and amortization except as expressly provided above; 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 or any tenant of the terms and conditions of any lease lease; any interest on borrowed money or debt amortization; Landlord’s general overhead except as it directly relates to the operation and management of space in the Building.
(l) Any cost representing an amount ; all items and services for which Tenant reimburses Landlord or pays a third persons; any costs, fines or penalties incurred due to violations by Landlord of any governmental rule or authority; wages, salaries, or other compensation paid to any personexecutive employees above the grade of building superintendent/manager; costs for sculpture, firm, corporation painting or other entity related to or affiliated with Landlord, which amount is objects of art; costs incurred in excess the operation of the amount which would have reasonably been paid in parking facilities and Parking Structure (if any) for uses not associated with the absence use of such relationship for comparable work or services involving the Building by tenants of the Building and their invitees (e.g. after hours usage of parking facilities and Parking Structure by attendees of sporting or comparable buildings in the general vicinity other special events, unrelated to any tenant’s occupancy of the Building.
(m) Interest, points, and fees on debt or amortization on any mortgage or mortgages encumbering unless the Building and/or net income from 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 parking facilities and/or Parking Structure is obligated to perform under any leases which reasonably could have been avoided through the exercise of ordinary diligence.
(r) Taxes offset against Operating Expenses; 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 to remedy any defects in the Property.
(dd) Any design of or materials used in, or the defective installation of the structural steel framing, roof, foundation and all costs incurred by Landlord in the operation underground utility lines forming a part 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 servicing the Building or any comparable buildingthe real property.
Appears in 3 contracts
Samples: Lease Agreement (Fatpipe Inc/Ut), Lease Agreement (Fatpipe Inc/Ut), Lease Agreement (Fatpipe Inc/Ut)
Exclusions from Operating Expenses. Notwithstanding any term or condition set forth in this Exhibit or the provisions of the Master Lease or Sublease anything to the contrarycontrary herein, Operating Expenses shall not include any of the following:
8.5.1. Costs of repairs and replacements that are Landlord’s responsibility under Paragraph 7.2.1 above;
8.5.2. Costs of correction of the Building foundation and/or correction of deficiencies in structural elements of the Building;
8.5.3. Costs of restoring the Premises, Building, or Park following a casualty or condemnation, except for commercially reasonable deductibles in the event of a casualty;
8.5.4. Costs of repairs and replacements that are paid by proceeds of insurance or of a warranty, and costs reimbursed to Landlord by any third party, including insurers, warranty providers, or other tenants of the Building or Park (a) Any ground lease rental.
(b) Costs incurred other than pursuant to payment by Landlord with respect to goods and services (including utilities sold and supplied to tenants and occupants of the Building) their proportionate share of Operating Expenses), or that are paid to the extent that Landlord is entitled to direct reimbursement for such costs other than through the operating expense pass-through provisions by Tenant separately from Operating Expenses;
8.5.5. Costs 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 Alterations to the Building and/or the Land or Park attributable solely to the extent a specific tenant other than Tenant;
8.5.6. Costs of providing services to tenants other than Tenant 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 are not provided 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 appliedTenant, and when depreciation costs of constructing 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 operating amenities that are not available for Tenant’s use (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 interior or alterations incurred to comply with any applicable Legal Requirements as set forth in Article 5 exterior areas that are not part 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 a tenant’s space in the Building.
(j) Expenses in connection with services or other benefits, but which are not offered to available for Tenant, ’s use);
8.5.7. Any interest or for which Tenant is charged for directly but which are provided to another tenant payments on any mortgages or occupant deeds of the Building.
(k) Costs incurred by Landlord due to the violation by Landlord of the terms and conditions of trust or rental on any lease of space in the Building.
(l) Any cost representing an amount paid to any person, firm, corporation ground 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, pointsunderlying lease, 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 penalties 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 charges incurred as a result of Landlord’s negligence late payment under such mortgages, deeds of trust or inability or unwillingness to make tax payments when due including tax penalties and interestground leases;
8.5.8. Legal fees, 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 insuranceleasing commissions, the costs of self insurance or any risk which Landlord has elected to self insure against art and premiums for any insurance not carried as of the commencement of the Master Lease or Subleasesculptures, but subsequently obtained by Master Landlord or Sublandlord.
(w) Any increase ofadvertising, 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 marketing 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 such costs incurred by Landlord in connection with the transfer development, marketing, advertising, 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 leasing of the Building or Park, including but not limited to expenses associated with maintaining a leasing office;
8.5.9. Any allowances or credits provided to any comparable buildingtenant for rent, construction or renovation (including design and permitting) of tenant improvements, moving or similar purposes, and the costs of any construction or renovation (including design and permitting) of tenant improvements performed by Landlord for any tenant;
8.5.10. Legal costs in connection with lease negotiations or the enforcement of leases, including but not limited to costs or expenses incurred as a result of disputes or negotiations with other tenants or occupants of the Park, including but not limited to attorneys’ fees, any costs or expenses incurred in negotiating, amending, administering or terminating leases, any brokerage commissions, or construction or planning expenses;
8.5.11. Reserves for any expenditures that would be incurred subsequent to the current calendar year;
8.5.12. Costs or expenses of providing or performing improvements, work, renovations, decorating, painting, or repairs to or within any portion of the premises of any other tenants or occupants of the Building or Park or to portions of the Building or Park that are not available for Tenant’s use (for example, a Common Area used exclusively by one or more tenants not including Tenant);
8.5.13. Costs of electricity or other utilities used by any tenant (other than Tenant) of the Building or Park in excess of standard use amounts;
8.5.14. Utility and air conditioning or heating costs or other expenses which are separately billed to specific tenants;
8.5.15. Any cost that, if charged as a part of Operating Expenses, would result in duplication of any other amount paid by Tenant or that would result in Landlord collecting the same amount twice;
8.5.16. Penalties, fines, late fees, interest or similar charges incurred due to violations by Landlord or any tenant (other than Tenant) of the Park of any laws, rules, regulations, or ordinances applicable to the Park;
8.5.17. Fines, interest and penalties incurred due to the late payment of Taxes;
8.5.18. Overhead and profit paid to subsidiaries or affiliates of Landlord for services on or to the Park and/or Premises, to the extent only that the costs of such services exceed competitive costs for such services were they not rendered by a subsidiary or affiliate;
8.5.19. Landlord’s general overhead costs and administrative expenses;
8.5.20. The cost of any environmental remediation of the Park or the Building, including without limitation any costs incurred to test, survey, cleanup, contain, xxxxx, remove, or otherwise remedy hazardous wastes or asbestos-containing materials from the Park;
8.5.21. Management or administrative costs in excess of three percent (3%) of Base Rent and Operating Expenses;
8.5.22. Costs incurred in connection with the sale, financing or refinancing of the Building or Park; or
8.5.23. Costs to pave or re-stripe the parking areas of the Park more than one time per calendar year.
Appears in 2 contracts
Samples: Lease (AbSci Corp), Lease (AbSci Corp)
Exclusions from Operating Expenses. Notwithstanding (1) any term costs of managing the property other than a management fee;
(2) wages, salaries, taxes, workers compensation insurance premiums or condition set forth in this Exhibit fringe benefits paid to employees of Landlord or affiliates of Landlord above the provisions grade of asset manager or, where such employees at the Master Lease grade of asset manager or Sublease below devote time to properties other than the Property, the portion not allocable to the contrary, Operating Expenses shall not include any of the following:Property;
(a3) Any ground lease rental.
(b) Costs incurred by Landlord with respect to goods and services (including utilities sold and supplied to tenants and occupants costs of the Building) repairs 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 actually reimbursed by insurance, 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 resulting from eminent domain takings to the extent that Landlord is reimbursed covered by insurance the award;
(4) any costs which have been previously included in Taxes or condemnation proceeds Operating Expenses (whether under the same or by tenantsa different category);
(5) financing and refinancing costs in respect of any financing of the Property, warrantors including debt service, amortization, points and commissions in connection therewith;
(6) rent or other third parties.charges payable under any ground or underlying lease;
(d7) 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 repositioning, selling 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 syndicating Landlord’s interest in the Property.;
(dd8) advertising and promotional expenditures, contributions or gifts;
(9) Any brokerage fees or commissions;
(10) legal fees incurred in connection with Landlord’s preparation, negotiation and all costs incurred enforcement of leases with other tenants; and any other professional fees for matters not relating to the normal administration and operation of the Property, or relating to matters which are excluded from Operating Expenses for the Property;
(11) interest or penalties for any delinquent payments by Landlord unless and to the extent resulting from Tenant’s failure to pay, when and as due, Tenant’s Proportionate Share of the Taxes and Operating Expenses (in the operation which case Tenant shall be responsible for 100% of any specialty operations such interest 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.penalties);
(ee12) If Tenant’s responsibility the cost of making leasehold improvements and decorations to any leasable space to prepare the same for Operating Expenses is based upon occupancy by a “base year” tenant thereof, or “expense stop”, any new item thereafter for the benefit of a particular tenant or category of expense not included in the base year or expense stop shall not be included in Operating Expenses.tenants;
(ff13) Parking area maintenance, operating costs and real estate taxes services performed for or provided to any such parking areas tenant to the extent such costs services are offset by parking area revenues.exclusive to such tenant;
(gg14) Initial cost and replacement costs any expenditures on account of any permanent landscaping, water features, fountains, artwork, sculptures and other decorative treatments. (hh) Contributions to Operating Expense Reserves.Landlord’s acquisition of air or similar development rights;
(ii15) Any other the cost of capital improvements that do not constitute Ordinary Capital Improvements unless Tenant shall request or expense which, under generally accepted accounting principles consistently applied, would not be considered to be an operating expense approve any such improvement;
(16) Landlord’s depreciation of the Building or other improvements or amortization of personal property or equipment;
(17) Interest, principal, points, fees, amortization and other costs associated with any debt and rent payable under any lease to which this Lease is subject, and all costs and expenses associated with any such debt or lease and any ground lease rent, irrespective of whether this Lease is subject or subordinate thereto;
(18) Rent for any office space occupied by Building management personnel to the extent the size or rental rate for of such office space exceeds the size or fair market rental of office space occupied by management personnel of comparable building“biotech” and/or “life science” commercial properties located in the greater Boston/Cambridge/Waltham area where the Building is located; and
(19) Costs associated with the operation of the business of the entity which constitutes Landlord as the same are distinguished from costs of the operation of the Building, including accounting and legal matters, costs of defending any lawsuits with any mortgagee (except as the actions of Tenant may be in issue), costs of selling, syndicating, financing, mortgaging or hypothecating any of Landlord’s interests in the Building, and costs incurred in connection with any disputes between Landlord and other tenants of the Building which arise from a lease default or breach by such tenants.
Appears in 2 contracts
Samples: Lease Agreement (Histogenics Corp), Lease Agreement (Histogenics Corp)
Exclusions from Operating Expenses. Notwithstanding any term or condition anything contained in the definition of Operating Expenses as set forth in Subsection 4.1(b) of this Exhibit or the provisions of the Master Lease or Sublease to the contraryLease, Operating Expenses shall not include any of the following:
(ai) Any ground lease rental.
(b) Costs incurred by Landlord with respect The costs of repairs to goods and services (including utilities sold and supplied to tenants and occupants of the Building) , if and to the extent that Landlord is entitled to direct reimbursement for any such costs other than through is actually reimbursed by the operating expense pass-through provisions of such tenants’ leases insurance carried by Landlord or which Landlord provides selectively otherwise, or subject to one or more, but not all, tenants without reimbursementaward under any eminent domain proceeding; [***] = CONFIDENTIAL INFORMATION HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THIS OMITTED INFORMATION.
(cii) 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 Depreciation, amortization and interest payments, except as specifically permitted herein 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 supplies and supplies vendor-type equipment purchased by Landlord to enable Landlord to supply services Landlord might otherwise contract for with a third party where such depreciation, amortization and interest payments would otherwise have been included in the charge for such third party’s services. In such a circumstance, the inclusion of all as depreciation, amortization and interest payments shall be determined in accordance with pursuant to generally accepted accounting practicesprinciples, consistently applied, and when amortized over the reasonably anticipated useful life of the capital item for which such amortization, depreciation or amortization is permitted or required, the item shall be amortized over its useful life.interest allocation was calculated;
(giii) AttorneysMarketing costs, including leasing commissions, attorneys’ fees incurred in connection with the negotiation and preparation of letters, deal memos, letters of intent, leases subleases and/or assignments, space planning costs, and other costs and expenses incurred in connection with lease, sublease and/or assignment negotiations or disputes and transactions 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).Building;
(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.
(jiv) Expenses in connection with for services or other benefits, which are not offered to Tenant, Tenant or for which Tenant is charged for directly but which directly, whether or not such services or other benefits are provided to another tenant or occupant of the Building.;
(kv) Costs incurred by Landlord due to Landlord’s or any tenant of the violation by Landlord Building’s violation, other than Tenant, of the terms and conditions of any lease of space or rental agreement 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.
(mvi) Interest, pointsprincipal, points and fees on debt debts or amortization on any mortgage or mortgages or any other debt instrument encumbering the Building and/or or the Land.land thereunder;
(nvii) Costs associated with operating the entity which constitutes Landlord’s , as the same are distinguished from the costs of operation of the Building, including, without limitation, reserves, general corporate overhead.
(o) Subject to the provision set forth in subparagraph (h) aboveoverhead and administrative expense, 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 partnership accounting and promotional expenditures and, except for the Building directory and interior signs identifying retail use tenants and signage for various equipment room and common areaslegal matters, costs of defending any lawsuits with any mortgagee (except as the actions of Tenant may be in issue), costs of selling, syndicating, financing, mortgaging or hypothecating any of Landlord’s interest in the Building, costs (including attorneys’ fees and costs of settlement judgments and payments in lieu thereof) arising from claims, disputes or potential disputes in connection with potential or actual claims, litigation or arbitration pertaining to Landlord’s ownership of the Building;
(viii) Leasing advertising and promotional expenditures, and costs of leasing signs in or on the Building and/or the Land identifying the owner or any tenant of the Building., or other tenants signs;
(qix) Electric, gas or other power costs for which (and only to the extent) Landlord has been directly reimbursed by another tenant or occupant of the Building, or for which any tenant directly contracts with the local public service company;
(x) Costs, including attorneys’ fees and settlement judgments and/or payments in lieu thereof, arising from actual or potential claims, disputes, litigation or arbitration pertaining to Landlord and/or the Building;
(xi) Costs incurred with respect to the installation of overtime Tenant’s or other extraordinary expense to Landlord occupant’s improvements or incurred 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 renovating or otherwise improving, decorating, painting or redecorating vacant space for Tenant or other 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.Building;
(sxii) Penalties Tax penalties and interest incurred as a result of Landlord’s negligence negligent 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 willful failure to make timely payments and/or to file any income tax or informational return(s) when due, unless such non-payment is due to Tenant’s nonpayment of any sum due under this Subleaserent; [***] = CONFIDENTIAL INFORMATION HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THIS OMITTED INFORMATION.
(txiii) Any charge charitable 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.political contributions;
(uxiv) The purchase or rental price of any sculpture, paintings or other object of art (except for costs associated with any common area fountains), whether or not installed in, on or upon the Building;
(xv) Costs due to violation of law.
(v) The amount of any deductible with respect to Sublandlord’s insurance, the costs of self repairs which would have been covered by casualty insurance or any risk which Landlord has elected to self insure against and premiums but 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 maintain casualty insurance to cover the replacement value of the Building as required by this Lease;
(xvi) Capital expenditures, including, without limitation, costs of capital repairs, replacements or improvements, except for the Permitted CapEx (but only to the extent such a reduction was obtained for purposes of establishing the base year amortized portion, as set forth in (b) above) expressly permitted to be included in Operating Expenses under the terms of subsections (b)(i) or expense stop tax component.(b)(ii) above;
(xxvii) Income, profit, franchise, rent, sales, gift, estate, succession, inheritance, foreign ownership, foreign control, transfer, capital levy, and/or personal property taxes payable by Landlord.The assessment or billing of operating expenses that results in Landlord being reimbursed more than one hundred percent (100%) of the total expenses for the calendar year in question;
(yxviii) 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 original construction of the Building or disposition in connection with any major structural change in the Building, such as adding or deleting entire floors;
(xix) The wages and benefits of any employee who does not devote substantially all of his or her employed time to the Building unless such wages and benefits are prorated to reflect time spent on operating and managing the Building vis-à-vis time spent on matters unrelated to operating and managing the Building; provided, that in no event shall Operating Expenses include wages and/or benefits attributable to personnel above the level of Building manager or Building engineer;
(xx) Any amount paid by Landlord or to the parent organization or a subsidiary or affiliate of Landlord for supplies, work and/or services, to the extent the same exceeds the costs of such supplies, work and/or services rendered by qualified, first-class unaffiliated third parties on a competitive basis;
(xxi) Any compensation paid to clerks, attendants or other persons in commercial concessions operated by Landlord;
(xxii) Any management fee in excess of five percent (5%) of the total Rent for the Building or any fees or reimbursements payable to Landlord and/or its affiliates which exceed the amount which would normally be paid to comparable unaffiliated third party vendors at the Comparable Buildings (as defined below);
(xxiii) Rent for any office space occupied by Landlord’s interest management personnel to the extent the size or rental rate of of comparable first-class high-rise office buildings in Woodland Hills, California (“Comparable Buildings”), with adjustment where appropriate for the Propertysize of the applicable building;
(xxiv) Costs arising from the negligence or willful misconduct of Landlord or its agents, employees, affiliates, managers, members, contractors or representatives, or the material breach of this Lease by Landlord;
(xxv) All excess profits taxes, franchise taxes, gift taxes, capital stock taxes, inheritance and succession taxes, estate taxes, federal and state income taxes, and other taxes and assessments to the extent applicable to Landlord’s general or net income (as opposed to rents, receipts or income attributable to operations at the Building), or any taxes to the extent paid by Xxxxxx directly to the taxing authority; [***] = CONFIDENTIAL INFORMATION HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THIS OMITTED INFORMATION.
(ddxxvi) Any Ground rental;
(xxvii) Costs Incurred to comply with applicable laws, or to otherwise remove or remediate, with respect to Hazardous Materials (as defined in Section 20.20 below); or
(xxviii) All assessments and all costs incurred premiums which are not specifically charged to Tenant because of what Tenant has done, which can be paid by Landlord in installments if commercially reasonable, shall be paid by Landlord in the operation maximum number of any specialty operations installments permitted by law (or facilities at the Building such permitted without penalty or added cost or premium) and shall be included 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 in which the assessment or expense stop shall not be included in Operating Expensespremium installment is actually paid.
(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.
Appears in 2 contracts
Samples: Office Lease (Blackline, Inc.), Office Lease (Blackline, Inc.)
Exclusions from Operating Expenses. Notwithstanding any term or condition anything contained in the definition of Operating Expenses as set forth in Subsection 4.1(b) of this Exhibit or the provisions of the Master Lease or Sublease to the contraryLease, Operating Expenses shall not include any of the following:
(a) Any ground lease rental.
(b) Costs incurred by Landlord with respect i. The costs of repairs to goods and services (including utilities sold and supplied to tenants and occupants of the Building) , if and to the extent that Landlord is entitled to direct reimbursement for any such costs other than through is actually reimbursed by 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 insurance carried by Landlord for the repair of damage or subject to the Building and/or the Land to the extent that Landlord is reimbursed by insurance award under any eminent domain proceeding;
ii. Depreciation, amortization and interest payments, except as specifically permitted herein 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 supplies and supplies vendor-type equipment purchased by Landlord to enable Landlord to supply services Landlord might otherwise contract for with a third party where such depreciation, amortization and interest payments would otherwise have been included in the charge for such third party’s services. In such a circumstance, the inclusion of all as depreciation, amortization and interest payments shall be determined in accordance with pursuant to generally accepted accounting practicesprinciples, consistently applied, and when amortized over the reasonably anticipated useful life of the capital item for which such amortization, depreciation or amortization is permitted or requiredinterest allocation was calculated;
iii. Marketing costs, the item shall be amortized over its useful life.
(g) Attorneysincluding leasing commissions, attorneys’ fees incurred in connection with the negotiation and preparation of letters, deal memos, letters of intent, leases subleases and/or assignments, space planning costs, and other costs and expenses incurred in connection with lease, sublease and/or assignment negotiations or disputes and transactions 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).Building;
(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) iv. Expenses in connection with for services or other benefits, which are not offered to Tenant, Tenant or for which Tenant is charged for directly but which directly, whether or not such services or other benefits are provided to another tenant or occupant of the Building.;
(k) v. Costs incurred by Landlord due to Landlord’s or any tenant of the violation by Landlord Building’s violation, other than Tenant, of the terms and conditions of any lease of space or rental agreement 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) vi. Interest, pointsprincipal, points and fees on debt debts or amortization on any mortgage or mortgages or any other debt instrument encumbering the Building and/or or the Land.land thereunder;
(n) vii. Costs associated with operating the entity which constitutes Landlord’s general corporate overhead.
(o) Subject to , as the provision set forth in subparagraph (h) abovesame are distinguished from the costs of operation of the Building, 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 including partnership accounting and promotional expenditures and, except for the Building directory and interior signs identifying retail use tenants and signage for various equipment room and common areaslegal matters, costs of defending any lawsuits with any mortgagee (except as the actions of Tenant may be in issue), costs of selling, syndicating, financing, mortgaging or hypothecating any of Landlord’s interest in the Building, costs (including attorneys’ fees and costs of settlement judgments and payments in lieu thereof) arising from claims, disputes or potential disputes in connection with potential or actual claims, litigation or arbitration pertaining to Landlord’s ownership of the Building;
viii. Leasing advertising and promotional expenditures, and costs of leasing 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 tenants signs;
ix. Electric, gas or other power costs for which (and only to the extent) Landlord has been directly reimbursed by another tenant or occupant of the Building, or for which any tenant directly contracts with the local public service company;
x. Costs, including attorneys’ fees and settlement judgments and/or payments in lieu thereof, arising from actual or potential claims, disputes, litigation or arbitration pertaining to Landlord in performing work which Landlord is obligated to perform under any leases which reasonably could have been avoided through and/or the exercise of ordinary diligence.Building;
(r) Taxes and assessments attributable xi. Costs incurred with respect to the tenant installation of Tenant’s or other occupant’s improvements of tenants or incurred in renovating or otherwise improving, decorating, painting or redecorating vacant space for Tenant or other 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.Building;
(s) Penalties xii. Tax penalties and interest incurred as a result of Landlord’s negligence negligent 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 willful failure to make timely payments and/or to file any income tax or informational return(s) when due, unless such non-payment is due to Tenant’s nonpayment of rent;
xiii. Any charitable or political contributions;
xiv. The purchase or rental price of any sum due under this Sublease.
sculpture, paintings or other object of art (t) Any charge except for costs associated with any common area fountains), whether 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 installed in, real estate taxes and assessments resulting from a sale, transfer on or other change in ownership upon the Building;
xv. Costs 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 repairs which would have been covered by casualty insurance but for Landlord’s failure to secure a property tax reduction maintain casualty insurance to cover 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 value of the Building as required by this Lease;
xvi. Capital expenditures not otherwise permitted hereunder; and
xvii. The assessment or any comparable buildingbilling of operating expenses that results in Landlord being reimbursed more than one hundred percent (100%) of the total expenses for the calendar year in question.
Appears in 2 contracts
Samples: Office Lease (Ritter Pharmaceuticals Inc), Office Lease (BioSig Technologies, Inc.)
Exclusions from Operating Expenses. Notwithstanding any term or condition set forth in this Exhibit or the provisions of the Master Lease or Sublease anything to the contrarycontrary herein, Operating Expenses shall not include any the following: (i) roof replacement; (II) correction of the following:
Building foundation; (aiii) Any ground lease rental.
(b) Costs incurred by Landlord with respect to goods and services (including utilities sold and supplied to tenants and occupants correction of deficiencies in structural elements of the Building; (iv) to the extent that Landlord is entitled to direct reimbursement for such costs other than through the operating expense pass-through provisions cost of such tenants’ leases any work 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 service performed 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.
Park; (kv) Costs any cost to the extent Landlord Is reimbursed therefor out of insurance proceeds or would have been reimbursed if Landlord had carried the Insurance required of Landlord under this Lease; (vi) costs of repairs, alterations or replacements caused by the exercise of rights of eminent domain; (vii) any expense for which Landlord is compensated by proceeds of indemnities or warranties (it being understood that Landlord shall use commercially reasonable efforts to obtain any reimbursements to which It is entitled thereunder); (viii) general overhead and administrative expenses of Landlord relating to maintaining Landlord’s existence and functioning either as a corporation, partnership or other entity; (Ix) costs, penalties or fines incurred due to the violation by the Landlord of any Applicable Laws; (x) any costs incurred to clean up, contain, xxxxx, remove, remediate or otherwise remedy Hazardous Substances in or around the Premises or the Park which exist in violation of Applicable Laws prior to the Effective Date of this Lease; (xi) any capitalized costs incurred by Landlord In order to bring the Park, Building and Premises into compliance with the requirements of any Applicable Laws, provided that such non-compliance exists as of the Effective Date of this Lease, to the extent such non-compliance is not triggered by Tenant’s Permitted Use, the Tenant Improvements or any future alterations, additions or improvements made by Tenant to the Premises; (xii) any amount paid by Landlord or to the parent organization or a subsidiary or affiliate of the Landlord for supplies and/or services to the Premises to the extent the same exceeds the amount which would generally be expected to be incurred had such supplies and/or services been furnished or rendered by comparably qualified, first-class unafffliated third parties; (xiii) the wages and benefits and other compensation of any employee who does not devote substantially all of his or her employed time to the Premises unless such wages and benefits are prorated to reflect time spent on operating and managing the Premises; provided that in no event shall Operating Expenses for purposes of this Lease Include wages and/or benefits attributable to Premises management personnel or officers above the level of the portfolio manager or equivalent; (xiv) costs incurred by Landlord due to the violation by Landlord of the terms and conditions Landlord, its employees, agents or contractors or any other tenant of any lease of space in the Building.
Applicable Laws; and/or (lxv) Any cost representing an amount paid to any personcosts, firmfines, corporation penalties 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 Interest to the extent that such taxes or assessments for excess valuation are directly billed to and collected resulting from such tenant or occupants.
(s) Penalties and interest incurred as a result of Landlord’s the gross 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 wlllful misconduct 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 SublandlordIts agents, contractors or employees.
(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.
Appears in 2 contracts
Samples: Lease Agreement (Evotec SE), Lease Agreement (Evotec AG)
Exclusions from Operating Expenses. Notwithstanding any term or condition set forth (a) Anything in this Exhibit or the provisions definition of Operating Expenses in the Master Lease or Sublease to the contrarycontrary notwithstanding, Operating Expenses shall not include any of the following, except to the extent specifically permitted by a specific exception to the following:
(ai) Any payments under a ground lease rentalor master lease relating to the Project.
(bii) Costs incurred by Landlord with respect to goods and services of a capital nature (including utilities sold amortization and supplied interest payments and depreciation of any type), including but not limited to tenants acquisition, construction or installation costs of capital improvements, equipment, rentals for items which if purchased, rather than rented, would constitute a capital improvement or equipment, replacements, alterations and occupants additions of a capital nature, even if such costs were incurred in connection with matters which are reasonably intended to reduce Operating Expenses for the Building) Building or the Project or were required by any governmental authority having jurisdiction under any governmental law or regulation, provided, however, to the extent that Landlord is any capital improvement actually avoids a maintenance or repair cost, then in any applicable Expense Year, Lessor shall be entitled to direct reimbursement for pass through such capital costs other than through to the operating expense pass-through provisions of extent such tenants’ leases or which Landlord provides selectively to one or moremaintenance and/or repair costs are avoided, but not all, tenants without reimbursementas estimated by Lessor in its good faith judgment.
(ciii) Costs incurred by Landlord for the repair [INTENTIONALLY OMITTED]
(iv) [INTENTIONALLY OMITTED]
(v) The cost of damage to the Building and/or the Land to the extent that Landlord is reimbursed any item reimbursable by insurance or condemnation proceeds or which would be reimbursable from insurance required to be maintained by tenants, warrantors or other third partiesLessor under the Lease.
(dvi) Costs, including permit, license and inspection costs, incurred with respect to the installation of tenant tenants’ or other occupants’ improvements made for any tenants or other occupants in the Building Project or incurred in renovating or otherwise remodeling, improving, decorating, painting or redecorating vacant space for tenants or other occupants of the BuildingProject.
(evii) Salaries Depreciation, amortization and bonuses of officers, executives and employees of Landlord not employed exclusively at the Building or who are above the level of Building Managerinterest.
(fviii) Depreciation Marketing and amortization of any type except on materialspromotional costs, tools and supplies purchased by Landlord including but not limited to enable Landlord to supply services Landlord might otherwise contract for with a third partyleasing commissions, all as determined in accordance with generally accepted accounting practices, consistently appliedreal estate brokerage commissions, and when depreciation or amortization is permitted or required, the item shall be amortized over its useful life.
(g) Attorneysattorneys’ fees in connection with the negotiation and preparation of deal memos, letters of intent, leases, subleases and/or assignments, space planning costs, and other costs and expenses incurred in connection with lease, sublease and/or assignment negotiations or disputes and transactions 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)Project.
(hix) Costs of a capital natureservices, includingutilities, 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, benefits which are not offered to Tenant, Lessee or for which Tenant Lessee is charged for directly but which are provided to another tenant or occupant of the Building.Project, including, but not limited to, costs in excess of the costs of operating the Building Systems and the costs of maintaining exclusive use Common Areas for other tenants
(kx) Costs incurred by Landlord Lessor due to the any violation by Landlord of the terms and conditions of any lease of space in the BuildingProject or any occupancy agreement with respect to the Project.
(lxi) Any cost representing an amount Costs and the overhead and profit increment paid to Lessor, to affiliates or partners of Lessor, partners or affiliates of such partners, or affiliates of Lessor for goods and/or services in the Project to the extent the same exceeds the costs or the overhead and profit increment, as the case may be, of such goods and/or services rendered by unaffiliated third parties on a competitive basis in Class A Buildings in the vicinity of the Project.
(xii) Interest, principal, attorneys’ fees, costs of environmental investigations or reports, title insurance, points, fees and other lender costs and closing costs on any personmortgage or mortgages or any other debt instrument encumbering the Project or any part thereof or on any unsecured debt.
(xiii) [INTENTIONALLY OMITTED]
(xiv) Salaries of officers, firm, corporation executives or other entity related to employees of Lessor, any affiliate of Lessor, or affiliated with Landlordpartners or affiliates of such partners or affiliates, which amount is other than any personnel engaged exclusively in excess the management, operation, maintenance and repair of the amount which would have reasonably been paid Project (but not leasing or marketing) and working in the absence Building management office, whose salaries are not typically included in the management fee being paid and included in Operating Expenses; and provided further such individuals whose salaries would otherwise be included in Operating Expenses hold a position which is generally considered to be higher in rank than the position of such relationship for comparable work or services involving the manager of the Building or comparable buildings in the general vicinity chief engineer of the Building.
(mxv) Interest, points, All items and fees on debt services for which Lessee or amortization on any mortgage other tenant in the Project is required to reimburse Lessor (other than through Lessee’s Share or mortgages encumbering the Building and/or the Landany other tenant’s share of Operating Expenses or their equivalent).
(nxvi) Landlord’s general corporate overheadAdvertising and promotional expenditures, including but not limited to tenant newsletters or Building promotional efforts, events or parties for existing or future occupants and the costs of signs (other than the Building directory) in or on the Project identifying the owner of the Building or other tenants’ signs and any costs related to the celebration or acknowledgement of holidays (including but not limited to Christmas trees).
(oxvii) Subject to Electric power or other utility costs or costs for services for which any tenant directly contracts with the provision set forth local public service company (but which costs shall be included in subparagraph Operating Expenses only for the purposes of “grossing up” Operating Expenses).
(hxviii) aboveFor any time during which Lessor charges Lessee for parking (including validations for visitor parking), rental payments all direct and indirect costs incurred in leasing air conditioning systemsconnection with the ownership, elevators or other equipment ordinarily considered to be operation, management, maintenance, repair, replacement and restoration of the parking areas of the Project, including any off-site parking areas used by tenants of the Project (the “Parking Facility”), including, but not limited to, costs of a capital nature, except equipment not affixed maintenance, cleaning, insurance, utility, janitorial, security, parking equipment, ticket supplies, signage, claims insurance, resurfacing and restriping costs, business taxes, management fees and costs, structural maintenance and the wages, salaries, employees benefits and taxes for personnel working in connection with any such Parking Facility shall be offset against current revenues derived from or attributable to the Building which is used in providing janitorial, parking lot maintenance, window washing or similar servicesParking Facility.
(pxix) 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.[INTENTIONALLY OMITTED]
(qxx) Costs of overtime Costs, penalties, fines, 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 awards and interest incurred as a result of LandlordLessor’s negligence in Lessor’s operation of the Project, violations of law, negligence or inability or unwillingness to make payments and/or to file any income tax, other tax payments or informational returns 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 Subleasedue.
(txxi) Any charge Costs which are covered by and reimbursable under any contractor, manufacturer or expense to supplier warranty (provided, however, any such costs which are avoided during the extent that it is materially in excess Base Year by virtue of that charged by landlords for similar buildings any such warranty shall be included in the general vicinity of the PremisesBase Year).
(uxxii) Costs due to violation arising from the gross negligence of lawor willful misconduct of, Lessor or its agents, or of any other tenant, or any vendors, contractors, or providers of materials or services selected, hired or engaged by Lessor or its agents.
(vxxiii) The amount Costs arising from the presence or removal of Hazardous Materials (other than Hazardous Materials introduced into the Project by Lessee) located in the Project, including, without limitation, any costs incurred pursuant to the requirements of any deductible governmental laws, ordinances, regulations or orders relating to health, safety or environmental conditions, including but not limited to regulations concerning asbestos, soil and ground water conditions or contamination regarding hazardous materials or substances.
(xxiv) Costs arising from Lessor’s charitable or political contributions.
(xxv) [INTENTIONALLY OMITTED]
(xxvi) Costs for sculpture, paintings or other objects of art or the insuring, repair or maintenance thereof
(xxvii) Costs (including in connection therewith all attorneys’ fees and costs of settlement, judgments and payments in lieu thereof) arising from claims, disputes or potential disputes in connection with respect potential or actual claims, litigation or arbitrations pertaining to Sublandlord’s insuranceLessor and/or the Project.
(xxviii) Costs, including but not limited to attorneys’ fees associated with the operation of the business of the partnership or entity which constitutes Lessor as the same are distinguished from the costs of self insurance operation of the Building, including partnership accounting and legal matters, costs of defending any lawsuits with any mortgagee, costs of selling, syndicating, financing, mortgaging or hypothecating any of Lessor’s interest in the Project or any risk which Landlord has elected to self insure against part thereof, costs of any disputes between Lessor and premiums for any insurance not carried as its employees, disputes of the commencement of the Master Lease Lessor with Project management or Subleasepersonnel, but subsequently obtained by Master Landlord or Sublandlordoutside fees paid in connection with disputes with other tenants.
(wxxix) Any increase of, Costs incurred in removing and storing the property of former tenants or reassessment in, real estate taxes and assessments resulting from a sale, transfer or other change in ownership occupants 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 componentProject.
(xxxx) Income, profit, franchise, rent, sales, gift, estate, succession, inheritance, foreign ownership, foreign control, transfer, capital levy, and/or personal property taxes payable by Landlord.[INTENTIONALLY OMITTED]
(yxxxi) Costs The cost of correcting defects in the design, construction or equipment equipping of the Project or in replacing defective the Project equipment.
(zxxxii) The cost of any work or service performed for any tenant of the Project (other than Lessee) to a materially greater extent or in a materially more favorable manner than that offered to Lessee.
(xxxiii) Premiums for insurance to the extent Lessor is reimbursed therefor other than through reimbursement of Operating Expenses by lessees.
(xxxiv) The cost of furnishing and installing non-Building standard replacement bulbs and ballasts in tenant spaces (determined by Lessor at the time such services are offered on a non-discriminatory basis).
(xxxv) Any and all costs of Landlord in complying with its obligations under Article 5(b) (entitled “Compliance with Law”) operating, maintaining, cleaning, managing, securing or otherwise providing services to the Project or any part thereof at a quality level which materially exceeds that typically being provided by the Class A Buildings at the time, unless such higher quality level is expressly required by the terms of this Lease.
(aaxxxvi) Any and all costs Reserves of Landlord in complying with its obligations under Article 26 (entitled “Environmental Matters”) of this Sublease includingany kind, including but not limited toto replacement reserves, and reserves for bad debts or lost rent or any similar charge not involving the costs and expenses payment 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, etcmoney to third parties.
(bbxxxvii) Any and all costs Costs incurred by Lessor in connection with rooftop communications equipment of Landlord for repairs resulting from damageLessor or other persons, destruction tenants or condemnation covered by other provisions of this Subleaseoccupants on the Project.
(ccxxxviii) Costs relating to any management office for the Project, including rent.
(xxxix) Payment of any management fee, whether paid to Lessor or an outside managing agent, in excess of an amount equal to three percent (3.00%) of the actual amount of gross revenues for the Building.
(xl) Any and all costs expressly excluded from Operating Expenses or Real Property Taxes elsewhere in the Lease or included as Real Property Taxes.
(xli) Costs for services normally provided by a property manager where Operating Expenses already include a management fee.
(xlii) Costs incurred by Landlord in connection with the transfer original construction of the Project or disposition of Landlord’s interest any addition to the Project or in connection with .any renovation, alteration or major change in the PropertyProject, including but not limited to the addition or deletion of floors.
(ddxliii) Any and all costs incurred by Landlord in the operation of any specialty operations costs, fees, dues, contributions or facilities at the Building such as any health similar expenses for industry associations or exercise club, broadcast facility, rooftop antenna facility, helicopter pad, concierge or any luncheon or other restaurant, club, concession or facilitysimilar organizations.
(eexliv) If TenantAny costs associated with the purchase, rental or installation of furniture, carpeting, fixtures or equipment for any management, security, engineering, or other offices associated with the Project and Common Areas or for Lessor’s responsibility offices or for Operating Expenses is based upon a “base year” the Common Areas of the Project.
(xlv) Any compensation paid to clerks, attendants or “expense stop”, any new item or category of expense not included other persons in commercial concessions operated by Lessor in the base year Project.
(xlvi) Costs arising from earthquake insurance, unless the cost of such coverage is included within the Base Year.
(xlvii) The entertainment expenses and travel expenses of Lessor, its employees, agents, partners and affiliates.
(xlviii) Costs incurred by Lessor due to the violation by Lessor of the terms and conditions of any contract or agreement relating to the Project or any part thereof, including any “Project Documents” as that term is defined below.
(xlix) Costs of traffic studies, environmental impact reports, transportation system management plans and reports, and traffic mitigation measures or due to studies or reports relating to obligations or the terms of the Project Documents.
(l) All assessments and special assessments due to deed restrictions, Project Documents and/or owners associations which accrue against the Project.
(li) Any improvement installed or work performed or any other cost or expense stop shall not be incurred by Lessor in order to comply with the requirements for obtaining or renewal of a certificate of occupancy for the Project or any space therein.
(lii) Any fees, bond costs or assessments levied by any governmental entity having the authority to impose such fees, bond costs or assessments (unless an appropriate amount of such fees, bond costs or assessments are also added to the Base Year with respect to an Operating Expense or Tax Expense).
(liii) Any costs or expenses relating to any provisions of any development agreements, owner’s participation agreement, covenants, conditions, restrictions, conditional use permits, easements or other instruments encumbering the Project or any part thereof or other agreement relating to the development, entitlement, construction or financing of the Project (collectively, the “Project Documents”), including any initial payments or costs or ongoing payments or costs made in connection with any child-care facilities, traffic demand management programs, transportation impact mitigation fees, water and sewage conservation, recycling, housing replacement and linkage fees, special assessment districts, infrastructure and transportation assessments, art programs, or parking requirements and programs unless included in Operating within the definition of Tax Expenses and included within the Base year attributable to Tax Expenses.
(ffliv) Parking area maintenanceAny costs or expenses incurred in obtaining any land use entitlements including without limitation the costs of preparing any environmental impact report or complying with the California Environmental Quality Act, operating as amended, or any general or specific plan governing development of the Project for the Entitlements or otherwise.
(lv) [INTENTIONALLY OMITTED]
(lvi) Any costs and real estate taxes for any such parking areas recovered by Lessor to the extent such costs are offset by parking area revenuescost recovery allows Lessor to recover more than 100% of Operating Expenses or Real Property Taxes for any calendar year from tenants of the Project.
(gglvii) Initial cost and replacement [INTENTIONALLY OMITTED]
(b) Any costs for which Lessor has been reimbursed or receives a credit, refund or discount, provided if Lessor receives the same in connection with any costs or expenditures previously included in Operating Expenses for a calendar year, Lessor shall immediately credit against Additional Rent next due from Lessee the amount of any permanent landscapingoverpayment for such previous calendar year (provided, water featureshowever, fountainsif such reimbursement or credit is received by Lessor after the expiration or earlier termination of the Term, artwork, sculptures and other decorative treatments. Lessor shall pay such reimbursement or credit due to Lessee in cash within sixty (hh60) Contributions to Operating Expense Reservesdays following receipt thereof by Lessor).
(iic) Any other cost or expense whichIn the event that, under generally accepted accounting principles consistently appliedsubsequent to the Base Year, would not be considered to be an operating expense Lessor adds services materially in excess of the Building services during the Base Year or any comparable buildingincurs a new category of expense, Lessor shall increase the Operating Expenses and, as appropriate, the Real Property Tax by an amount which would have been incurred had such services been offered or such expenses incurred during the Base Year.
Appears in 2 contracts
Samples: Office Building Lease (Xencor Inc), Office Building Lease (Xencor Inc)
Exclusions from Operating Expenses. Notwithstanding any term or condition set forth anything in this Exhibit or the provisions definition of Operating Expenses in the Master Lease or Sublease to the contrary, Operating Expenses shall not include any of the following, except to the extent specifically permitted by a specific exception to the following:
(ai) Any ground lease rental.;
(bii) 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 Any capital cost other than through the operating expense pass-through provisions cost of such tenants’ leases or capital improvements that are expressly permitted under Section 7.2.1(v) and Section 7.2.3(iv) (which Landlord provides selectively to one or more, but not all, tenants costs shall be amortized and limited as provided in Section 7.2.1(v) and Section 7.2.3(iv) and shall be without reimbursement.duplication of any payments of Tenant otherwise provided herein);
(ciii) Rentals for items which if purchased, rather than rented, would constitute a capital cost which is specifically excluded under clause;
(iv) 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.Project;
(dv) Costs, including permit, license and inspection costs, incurred with respect to the installation of tenant or other occupants’ improvements made for any tenants in the Building Project or incurred in renovating or otherwise improving, decorating, painting or redecorating vacant space for tenants or other occupants of the Building.Project or any other cost or expense which exclusively benefits another tenant in the Project;
(evi) Salaries Depreciation, amortization and bonuses of officersinterest payments, executives except for amortization and employees of Landlord not employed exclusively at the Building or who interest in connection with capital costs that are above the level of Building Manager.
(f) Depreciation expressly stated to be permissible Operating Expense hereunder and amortization of any type except on materials, tools tools, supplies and supplies vendor-type equipment purchased by Landlord to enable Landlord to supply services Landlord might otherwise contract for with a third party, all as determined where such depreciation, amortization and interest payments would otherwise have been included 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.charge for such third party’s services;
(gvii) AttorneysMarketing costs, leasing commissions, attorneys’ fees in connection with the negotiation and preparation of letters, deal memos, letters of intent, leases, subleases or assignments, space planning costs, and other costs and expenses incurred in connection with lease, sublease or assignment negotiations or disputes and transactions 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).Project;
(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.
(kviii) Costs incurred by Landlord due to the violation by Landlord or any other tenant of the terms and conditions of any lease of space in the Building.Project;
(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.
(mix) Interest, pointsprincipal, points and fees on debt debts or amortization on any mortgage or mortgages or any other debt instrument encumbering the Building and/or or the Land.Project;
(nx) Any compensation paid to clerks, attendants or other persons in commercial concessions operated by 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.
(pxi) 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 or Project identifying the owner or any tenant of the Building.Building or Project or other tenants’ signs;
(qxii) Costs arising from Landlord’s charitable or political contributions;
(xiii) Costs for sculpture, paintings or other objects of art;
(xiv) Costs associated with the operation of the business of the entity which constitutes Landlord as the same are distinguished from the costs of operation of the Project, including accounting and legal matters, costs of defending any lawsuits with any mortgagee (except as the actions of Tenant may be in issue), costs of selling, syndicating, financing, mortgaging or hypothecating any of Landlord’s interest in the Project, costs of any disputes between Landlord and its employees (if any) not engaged in Project operation, disputes of Landlord with Project management, or outside fees paid in connection with disputes with other tenants;
(xv) Landlord’s general corporate overhead and general and administrative expenses
(xvi) Costs of overtime any “tap fees” or any sewer or water connection fees for the benefit of any particular tenant in the Project;
(xvii) Any expenses incurred by Landlord for use of any portions of the Project to accommodate events including, but not limited to shows, promotions, kiosks, displays, filming, photography, private events or parties, ceremonies, and advertising beyond the normal expenses otherwise attributable to providing Project services;
(xviii) Any entertainment, dining or travel expenses for any purpose;
(xix) Any flowers, gifts, balloons, etc. provided to any entity whatsoever, including, but not limited to, Tenant, other tenants, employees, vendors, contractors, prospective tenants and agents;
(xx) Any “finders fees”, brokerage commissions, job placement costs or job advertising costs;
(xxi) Any “above-standard” cleaning, including, but not limited to construction cleanup or special cleanings associated with parties/events and specific tenant requirements in excess of service provided to Tenant, including related trash collection, removal, hauling and dumping;
(xxii) The cost of any magazine, newspaper, trade 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.subscriptions;
(rxxiii) Taxes and assessments attributable to the The cost of any training or incentive programs, other than for 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.life safety information services;
(sxxiv) Penalties and interest The cost of any “tenant relations” parties, events or promotion not consented to by an authorized representative of Tenant in writing;
(xxv) “In-house” legal fees;
(xxvi) Earthquake Insurance (unless required by Landlord’s lender);
(xxvii) Tax penalties incurred as a result of Landlord’s negligence or negligence, inability or unwillingness to make payments or to file any tax payments or informational returns when due including tax penalties due;
(xxviii) Costs arising from construction defects in the structural components of the base, shell or core of the Project or Building;
(xxix) Bad debt or rent losses;
(xxx) Water, gas and interestheat, so long light, power, telephone service, trash collection and other services and utilities supplied exclusively to any other tenant in the Project;
(xxxi) Notwithstanding any contrary provision of the Lease, including, without limitation, any provision relating to capital expenditures, any and all expenses and costs caused by or arising from the existence of hazardous materials or substances (as defined by applicable laws, rules and regulations now or subsequently applicable to the Project) in or about the Premises, the Building or the Project caused by or arising from the release of hazardous materials or substances, including, without limitation, hazardous substances in the ground water or soil, unless such penalties expenses and costs are caused by or interest do not result arise from Tenant’s breach of this Sublease Tenant or Tenant’s failure to make timely payment of any sum due under this Sublease.contractors or invitees; and
(txxxii) Costs (including in connection therewith all attorneys’ fees and costs of settlement judgments and payments in lieu thereof) arising from claims, disputes or potential disputes in connection with potential or actual claims, litigation or arbitration pertaining to the Landlord or the Building or the Project. Any charge cost or expense excluded as a Project Operating Expense, Building Expense or Operating Expense shall be excluded as a Building Operating Expense, Project Operating Expense, or Operating Expense, whether incurred with respect to the Project or the Building, and any such expense shall be limited as provided in such provisions to the extent so limited, whether incurred with respect to the Project or the Building. Any costs in connection with the MAC Surviving Liabilities relating to building systems, utilities, and Landlord’s Work, including any obligation of Landlord to correct or repair any defect or deficiency thereof are hereby expressly excluded as Operating Expenses during the period for which such MAC Surviving Liabilities survive pursuant to the Umbrella Agreement; provided that with respect to Landlord’s Work completed in accordance with the obligations of the Landlord under the terms of this Lease, including the terms set forth in Section 8.4, during such period such costs are not excluded as Operating Expenses to the extent that it they are deemed Building Operating Expenses pursuant to Section 7.2.1 above or Project Operating Expenses pursuant to Section 7.2.3 above. Landlord agrees that Landlord will not collect or be entitled to collect Operating Expenses from all of its tenants in an amount which is materially in excess of that charged by landlords for similar buildings in the general vicinity one hundred percent (100%) 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 Operating Expenses actually paid by Landlord in connection with the transfer or disposition operation of Landlord’s interest the Project. All assessments and taxes which are not specifically charged to Tenant because of what Tenant has done, which can be paid by Landlord in installments, shall be paid by Landlord in the Property.
(dd) Any maximum number of installments permitted by law if requested by Tenant and all costs not included as Operating Expenses except in the year in which the assessment or tax is actually paid. In the event any facilities, services or utilities used in connection with the Building or the Project are provided from another building or project or area, the cost 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 connection therewith shall be allocated to Operating Expenses is based upon by Landlord on a “base reasonably equitable basis. Each time Landlord provides Tenant with an actual or estimated statement of Operating Expenses, such statement shall be itemized on a line item by line item basis, showing the applicable expense for the applicable year” or “expense stop”, any new item or category of expense not included in the year prior to the applicable year, and the base year or expense stop (if different). Landlord shall not cause any retail and restaurant operations in the Project to be included separately metered in Operating order to facilitate the computation and allocation of Project 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.
Appears in 2 contracts
Samples: Industrial Lease (Appfolio Inc), Industrial Lease (Appfolio Inc)
Exclusions from Operating Expenses. Notwithstanding any term or condition set forth in this Exhibit or the provisions of the Master Lease or Sublease anything to the contrarycontrary herein, Operating Expenses shall not include (A) depreciation, interest, and amortization on Superior Mortgages (as defined in § 18.1 below), and other debt costs or ground lease payments, if any; (B) legal fees in connection with leasing, tenant disputes, or enforcement of leases; (C) real estate brokers’ leasing commissions; (D) improvements or alterations to tenant spaces; (E) the cost of providing any service directly to, and reimbursed or paid directly by, any tenant; (F) any costs expressly excluded from Operating Expenses elsewhere in this Lease; (G) costs of any items to the followingextent Landlord receives reimbursement from insurance proceeds or from a third party (such proceeds to be deducted from Operating Expenses in the year in which received); (H) capital expenditures, except those expressly permitted above; provided, all such permitted capital expenditures (together with reasonable financing charges) shall be amortized for purposes of this Lease over the shorter of (x) their useful lives or (y) the period during which the reasonably estimated savings in Operating Expenses equals the expenditures. The following specific categories of expenses are also excluded hereunder from the definition of Operating Expenses:
(a) Any ground lease rental.Real Estate Taxes;
(b) Costs leasing commissions, costs, disbursements, and other expenses 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 leasing, renovating, or improving space for tenants’ leases or which Landlord provides selectively to one or more, but not all, tenants without reimbursement.;
(c) Costs costs (including permit, license, and inspection fees and tenant improvement allowances) incurred in renovating, improving, decorating, painting, or redecorating vacant space or space for tenants;
(d) Landlord’s cost of electricity or other service sold to tenants for which Landlord is to be reimbursed as a charge over the Rent and Additional Rent payable under the lease with that tenant;
(e) except as otherwise expressly permitted hereunder, costs incurred by Landlord for the repair of damage to the Building and/or the Land to the extent alterations that Landlord is reimbursed by insurance or condemnation proceeds or by tenants, warrantors or other third parties.
(d) Costs, including permit, license are considered capital improvements 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.replacements under generally-accepted accounting principles consistently applied;
(f) Depreciation depreciation and amortization of any type on the Building 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 expressly permitted elsewhere 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.Lease;
(g) Attorneys’ fees and other except as otherwise expressly permitted hereunder, 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, nature including capital improvements, capital replacements, capital repairs, capital equipment 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 generally-accepted accounting principles consistently applied, would not be considered to be an operating expense ;
(h) costs incurred because Landlord or another tenant violated the terms of the Building or any comparable building.lease;
Appears in 2 contracts
Samples: Commercial Sublease Agreement (Sunesis Pharmaceuticals Inc), Commercial Sublease Agreement (Sunesis Pharmaceuticals Inc)
Exclusions from Operating Expenses. Notwithstanding any term or condition set forth in this Exhibit or the provisions of the Master Lease or Sublease anything to the contrarycontrary contained herein, in no event shall Operating Expenses shall not include any of the following:
: (a1) Any costs for which Landlord is reimbursed, receives a credit or is otherwise compensated (other than tenant reimbursements for Operating Expenses); (2) rent or other amounts payable under any ground lease rental.
(b) Costs incurred by Landlord or master lease, or interest, amortization or other repayment of indebtedness or costs, fees, points or other expenses in connection with respect to goods and services (including utilities sold and supplied to tenants and occupants any financing or refinancing of all or any part of the BuildingReal Property; (3) to costs of correcting defects in the extent that Landlord is entitled to direct reimbursement for such costs other than through the operating expense pass-through provisions initial design or construction 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 any expansion thereof or otherwise improving, decorating, painting any expenses resulting from inferior or redecorating vacant space for tenants deficient workmanship; (4) costs of repair 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 restoration required due to violations by tenants of the terms and conditions of their leases).
casualty damage or condemnation (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 commercially reasonable deductibles); (5) non-refundable reserves for various equipment room and common areas, costs of signs in anticipated or on the Building and/or the Land identifying the owner unanticipated future expenses; (6) interest 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 penalties incurred as a result of Landlord’s failure to pay any bill as it shall become due; (7) costs resulting from the gross negligence or inability willful misconduct of Landlord, its employees, and/or agents; (8) leasing commissions, attorneys’ fees, costs and disbursements, and other expenses (including, without limitation, advertising and marketing costs) incurred in connection with leasing, renovating, or unwillingness to make tax payments when due including tax penalties improving space for tenants or other occupants or prospective tenants or occupants of the Building, or costs (including, without limitation, permit, license, and interestinspection fees) incurred in renovating or otherwise improving or decorating, so long as such penalties painting or interest do not result from Tenant’s breach of this Sublease redecorating space for tenants or Tenant’s failure to make timely payment other occupants or vacant space; (9) costs of any sum due under this Sublease.
(t) Any services sold to tenants or other occupants for which Landlord is entitled to be reimbursed by such tenants or other occupants as an additional charge or expense to rental over and above the extent that it is materially in excess basic rent and escalations payable under the lease with such tenant or other occupant; (10) allowances for depreciation of that charged by landlords for similar buildings improvements in the general vicinity of Common Areas; and (11) so called “capital items” or “capital expenditures” which, pursuant to generally accepted accounting principles, are not fully chargeable to current expenses in the Premises.
(u) Costs due to violation of law.
(v) The amount of any deductible with respect to Sublandlord’s insuranceyear the expenditure is incurred, 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 except to the extent such capital expenditures are amortized over their useful life (with commercially reasonable interest) in accordance with generally accepted accounting principles and only with respect to those that (A) are intended to effect economies in the operation or maintenance of the Real Property, or any portion thereof, or (B) are installed with a reduction was obtained for purposes reasonable and good faith expectation by Landlord that the same will reduce current or future Operating Expenses, or (C) are intended to enhance the safety or security of establishing the base year Real Property or expense stop tax component.
its occupants, or (xD) Incomeare required to comply with present or anticipated conservation programs, profit, franchise, rent, sales, gift, estate, succession, inheritance, foreign ownership, foreign control, transfer, capital levy, and/or personal property taxes payable by Landlord.
or (yE) Costs are otherwise includable in Operating Expenses pursuant to the application of correcting defects in construction or equipment or in replacing defective equipment.
sound real estate management principles (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, including but not limited to, the costs parking lot repair and expenses of clean up, remediation, environmental surveys/assessments, compliance with Environmental Laws (as hereinafter definedresurfacing), 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.
Appears in 2 contracts
Samples: Lease Agreement, Retail Lease
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 expenses, except to the extent specifically permitted by a specific exception to the following:
(ai) Replacement of or structural repairs to the roof or the exterior walls;
(ii) Alterations solely attributable to tenants of the Project other than Tenant;
(iii) 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.
(civ) Costs incurred by Landlord for the repair of damage to the Building and/or the Land Project, to the extent that Landlord is reimbursed by insurance or condemnation proceeds or by tenants, warrantors or other third parties.proceeds;
(dv) Costs, including permit, license and inspection costs, incurred with respect to the installation of tenant Tenant or other occupants’ improvements made for any tenants in the Building Project or incurred in renovating or otherwise improving, decorating, painting or redecorating vacant space for tenants or other occupants of the Building.Project;
(evi) Salaries Depreciation, amortization and bonuses of officersinterest payments, executives except as provided herein 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 tools, supplies and supplies vendor-type equipment purchased by Landlord to enable Landlord to supply services Landlord might otherwise contract for with a third party, all as determined where such depreciation, amortization and interest payments would otherwise have been included 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.charge for such third party’s services;
(gvii) AttorneysMarketing costs, leasing commissions, attorneys’ fees in connection with the negotiation and preparation of letters, deal memos, letters of intent, leases, subleases and/or assignments, space planning costs, and other costs and expenses incurred in connection with lease, sublease and/or assignment negotiations or disputes and transactions 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).Project;
(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.
(kviii) Costs incurred by Landlord due to the violation by Landlord or any other tenant of the terms and conditions of any lease of space in the Building.Project;
(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.
(mix) Interest, pointsprincipal, points and fees on debt debts or amortization on any mortgage or mortgages or any other debt instrument encumbering the Building and/or or the Land.Project (except as specifically permitted above);
(nx) Any compensation paid to clerks, attendants or other persons in commercial concessions operated by 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.
(pxi) 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 or Project identifying the owner or any tenant of the Building.Building or Project or other tenants’ signs;
(qxii) Costs arising from Landlord’s charitable or political contributions;
(xiii) Costs for sculpture, paintings or other objects of art;
(xiv) Costs associated with the operation of the business of the entity which constitutes Landlord as the same are distinguished from the costs of operation of the Project, including accounting and legal matters, costs of defending any lawsuits with any mortgagee (except as the actions of Tenant may be in issue), costs of selling, syndicating, financing, mortgaging or hypothecating any of Landlord’s interest in the Project, costs of any disputes between Landlord and its employees (if any) not Landlord’s Initials CZ Tenant’s Initials HZ engaged in Project operation, disputes of Landlord with Project management, or outside fees paid in connection with disputes with other tenants;
(xv) Costs of overtime any “tap fees” or other extraordinary expense to Landlord any sewer or water connection fees for the benefit of any particular tenant in performing work which Landlord is obligated to perform under any leases which reasonably could have been avoided through the exercise of ordinary diligence.Project;
(rxvi) Taxes Any expenses incurred by Landlord for use of any portions of the Project to accommodate events including, but not limited to shows, promotions, kiosks, displays, filming, photography, private events or parties, ceremonies, and assessments advertising beyond the normal expenses otherwise 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.providing Project services;
(sxvii) Penalties and interest incurred as a result of Landlord’s negligence Any entertainment, dining 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 travel expenses for any sum due under this Sublease.purpose;
(txviii) Any charge or expense flowers, gifts, balloons, etc. provided 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 insuranceentity whatsoever, 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 Tenant, other tenants, employees, vendors, contractors, prospective tenants 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.agents;
(bbxix) Any and all “finders fees”, brokerage commissions, job placement costs of Landlord for repairs resulting from damage, destruction or condemnation covered by other provisions of this Sublease.job advertising cost;
(ccxx) Any “above-standard” cleaning, including, but not limited to construction cleanup or special cleanings associated with parties/events and all costs incurred specific tenant requirements in excess of service provided to Tenant, including related trash collection, removal, hauling and dumping;
(xxi) The cost of any magazine, newspaper, trade or other subscriptions;
(xxii) The cost of any training or incentive programs, other than for tenant life safety information services;
(xxiii) The cost of any “tenant relations” parties, events or promotion not consented to by Landlord an authorized representative of Tenant in connection with the transfer or disposition of writing;
(xxiv) “In-house” legal fees;
(xxv) Earthquake insurance, unless required by Landlord’s interest lender(s); and
(xxvi) Any deductible from any insurance proceeds in excess of $50,000 in the Propertyaggregate.
(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.
Appears in 2 contracts
Samples: Multi Purpose Commercial Building Lease (Sientra, Inc.), Multi Purpose Commercial Building Lease (Sientra, Inc.)
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 contraryabove, Operating Expenses shall not include any of the following:
(ai) Interest, principal, depreciation, and other lender costs and closing costs on any mortgage or mortgages, ground lease payments, or other debt instrument encumbering the Building;
(ii) Any ground lease rental.bad debt loss, rent loss, or reserves for bad debt or rent loss;
(biii) Costs associated with operation of the business of the ownership of the Building or entity that constitutes Landlord or Landlord’s property manager, as distinguished from the cost of Building operations, including the costs of partnership or corporate accounting and legal matters; defending or prosecuting any lawsuit with any mortgagee, lender, ground lessor, broker, tenant, occupant, or prospective tenant or occupant; selling or syndicating any of Landlord’s interest in the Building; and disputes between Landlord and Landlord’s property manager;
(iv) Landlord’s general corporate or partnership overhead and general administrative expenses, including the salaries of management personnel who are not directly related to the Building and primarily engaged in the operation, maintenance, and repair of the Building, except to the extent that those costs and expenses are included in the management fees;
(v) Advertising, promotional expenditures and leasing expenses primarily directed toward leasing space in the Building;
(vi) Leasing commissions, space-planning costs, attorney fees and costs, disbursements, and other expenses incurred by Landlord in connection with respect to goods and services (including utilities sold and supplied to tenants and leasing, other negotiations, or disputes with tenants, occupants, prospective tenants, or other prospective occupants of the Building, or associated with the enforcement of any leases;
(vii) Charitable or political contributions;
(viii) Costs for which Landlord is reimbursed;
(ix) Fees paid to any affiliate or party related to Landlord to the extent that such fees exceed the charges for comparable services rendered by unaffiliated third parties of comparable skill, stature and reputation in the same market; and
(x) Any management fee payable to Landlord is entitled or any third parties in excess of five percent (5%) of the Operating Expenses. As to direct reimbursement for the costs of capital improvements, replacements, repairs, equipment and other capital costs, all such costs other than through shall be included in Operating Expenses but shall be amortized over the operating expense pass-through provisions reasonable useful life of such tenants’ leases improvement, replacement, repair 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 equipment in accordance with generally accepted accounting practices, consistently applied, and when depreciation or amortization is permitted or required, principles together with interest at 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 prime rate on the Building and/or the Land identifying the owner or any tenant of the Buildingunamortized balance.
(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.
Appears in 2 contracts
Exclusions from Operating Expenses. Notwithstanding any term or condition set forth in this Exhibit or the provisions of foregoing, the Master Lease or Sublease to the contrary, Operating Expenses shall not include any of the following:
(ai) Any ground lease or underlying lease rental.;
(bii) Costs incurred by Landlord Capital improvements and equipment which are not consistent with respect the capital improvements referred 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.above;
(ciii) Costs incurred by Landlord for the repair Repair of damage to the Building and/or the Land Building, to the extent that Landlord is reimbursed by insurance proceeds, warranties or condemnation proceeds or by tenants, warrantors or other third parties.guaranties;
(div) Costs, including permit, license Construction and inspection costs, incurred with respect to the installation of tenant improvements improvements, renovations, or decorations 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 in the Building or who are above for vacant tenant suites within the level of Building Manager.Building, including, without limitation, fees and costs for space planning, architectural drawings, construction, permits, licenses and inspection;
(fv) 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 Costs incurred in connection with negotiations or disputes and transactions with present or prospective tenants or other occupants of the Building (including costs incurred due to violations by tenants of the terms for leases, subleases, assignments and conditions of their leases).
(h) Costs of a capital natureother related transactions, including, without limitation, capital improvements, capital replacements, capital repairs, capital equipment attorneys' fees for such negotiations 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.transactions;
(ivi) Brokerage commissions, finders’ fees, attorneys’ fees Sums paid to Landlord or to subsidiaries or to the Building to the extent that such sums exceed the costs of such goods and other costs incurred or service which would be rendered by Landlord in leasing or attempting to lease space in the Building.unaffiliated third parties on a competitive basis;
(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.
(mvii) Interest, pointsprincipal, points and fees on debt debts or amortization on any mortgage or mortgages any other financing instrument encumbering the Building and/or the LandBuilding.
(nviii) Landlord’s 's general corporate overhead.overhead and general and administrative expenses other than the management fee and reasonable general and administrative expenses related to the Building;
(oix) Subject Rental payments incurred under leases for capital equipment where such leases are capitalized under the tax basis accounting principles to the provision set forth extent such capital equipment are not covered under the Lease. Landlord shall allocate to Operating Expenses only such costs for capital equipment incurred as Landlord may reasonably determine are attributable to such services performed for the Building;
(x) All items and services for which Tenant or any other tenant 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 directly reimburses or which is used in providing janitorial, parking lot maintenance, window washing Landlord provides selectively to one or similar services.more tenants (other than Tenant) without reimbursement;
(pxi) Advertising Marketing costs, including leasing commissions, advertising and promotional expenditures andexpenditures, 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 or other tenants' signs;
(xii) Electric power costs for which any tenant directly contracts with the local public service company and which are assessed at a valuation higher than paid for by any such tenant;
(xiii) Upgrading the valuation at which Building standard tenant improvements are assessed to comply with handicap, life safety, fire and safety as to the extent that Landlord was in violation of such taxes codes; provided, Landlord shall have the right to include such upgrading costs in the Operating Expenses in order to comply with any code or assessments for excess valuation are directly billed to and collected from such tenant or occupants.law of which Landlord was not in violation of as of the Term Commencement date;
(sxiv) Penalties The cost to remove or encapsulate the presence of hazardous materials or substances in or about the Building or Building, including, without limitation, hazardous substances in the ground water or soil to the extent said hazardous material or substance was not caused by the Tenant;
(xv) Landlord's charitable or political contributions;
(xvi) Sculpture, paintings or other objects of art;
(xvii) Legal fees and expenses incurred in connection with the enforcement of any leases or defense of Landlord's title to or interest in the Building;
(xviii) Wages/benefits of all on-site Building employees or property/asset management employees above the classification of property manager;
(xix) Tax penalties incurred as a result of Landlord’s negligence or 's negligence, inability or unwillingness to make payments and/or to file any tax payments or information returns 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.due;
(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.
(vxx) The amount cost of completing 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 Sublandlordpunch-list work.
(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.
Appears in 1 contract
Samples: Office Lease (Electronic Arts Inc)
Exclusions from Operating Expenses. Notwithstanding any term or condition set forth in this Exhibit or Any operating costs incurred after the provisions of the Master Lease or Sublease to the contrary, Expiration Date shall be excluded from Operating Expenses. Operating Expenses shall not include be "net" only, and for that purpose shall be reduced by the amounts of any reimbursement, refund, credit or discount received or receivable by Landlord (net of the following:
(areasonable costs and expenses of obtaining the same, if any) Any ground lease rental.
(b) Costs incurred by Landlord with respect to goods and services any item of cost that is included in Operating Expenses (other than reimbursements by other tenants in the nature of escalation or additional rental payments similar to those required of Tenant pursuant to this Lease). Operating Expenses also excludes, the following: any income, franchise or other taxes imposed upon Landlord's income or profits, unless imposed in lieu of real property ad valorem taxes; the cost of any work or service performed for any tenant (including utilities sold and supplied to tenants and occupants Tenant) at such tenant's cost; the cost of correcting defects in the original construction of the Building; salaries, bonuses or payments of any other kind to officers and executives of Landlord; except as provided in paragraph 1 above, the cost of any work or service performed for any facility other than the Building; the cost of any repairs, alterations, additions, changes, replacements and other items which are made in order to prepare for a new tenant's occupancy; the cost of any repair in accordance with the Article of this Lease governing destruction or damage by fire or other casualty; interest on debt or amortization payments on any Mortgage and rental under any ground lease or other underlying lease; all leasing expenses, including any real estate brokerage commissions or other costs (including concessions) to the extent that incurred in procuring tenants; charges (including applicable taxes) for utilities for which Landlord is entitled to direct reimbursement for such costs from any tenant (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 reimbursements 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 nature or incurred in renovating escalation or otherwise improving, decorating, additional rental payments similar to those required of Tenant pursuant to this Lease); any costs of painting or redecorating vacant space for tenants or other occupants decorating any tenanted part of the Building.; and any expenses for repairs or maintenance covered by warranties and service contracts in existence on the Commencement Date. EXHIBIT "E" RULES AND REGULATIONS
(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 applied1. The sidewalks, and when depreciation public portions of the Building, such as entrances, passages, courts, elevators, vestibules, stairways, corridors or amortization is permitted halls, and the streets, alleys or required, ways surrounding or in 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 vicinity of the Building (including costs incurred due to violations by tenants of the terms and conditions of their leases).
(h) Costs of a capital natureshall not be obstructed, 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 Tenanteven temporarily, or encumbered by Tenant or used 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 any purpose other than ingress 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 egress 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 2. No curtains, blinds, shades, louvered openings, tinted coating, film or screens shall be attached to violation of law.
(v) The amount of or hung in, or used in connection with, any deductible with respect to Sublandlord’s insurancewindow, the costs of self insurance glass surface or any risk which Landlord has elected to self insure against and premiums for any insurance not carried as door of the commencement Premises, without the prior written consent of the Master Lease or SubleaseLandlord, 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 unless installed 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.
Appears in 1 contract
Exclusions from Operating Expenses. Notwithstanding The following items will be excluded from any term payment of Operating Expenses: i Costs for capital improvements or condition set forth in this Exhibit or other capital expenditures made to the provisions Project and/or the Land other than Permissible Capital Improvements to the extent permitted under Section 4(B) above. ii Alterations attributable solely to certain tenants of the Master Lease or Sublease Project and/or the Land (including Tenant) and costs of constructing leasehold improvements to the contrary, Operating Expenses shall not include any rentable areas of the following:
(a) Any ground lease rental.
(b) Costs incurred Project, whether for Tenant or any other tenant. iii Interest and any increase in the rate of interest payable by Landlord with respect to goods and services (including utilities sold and supplied to tenants and occupants any debts secured by a deed of trust or mortgage on 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 Project and/or the Land to the extent that Landlord is reimbursed by insurance or condemnation proceeds or by tenants, warrantors and amortization or other third parties.
payments or charges on loans to Landlord (d) Costsincluding, including permitwithout limitation, license and inspection costspoints, incurred with respect to the installation of tenant improvements made for any tenants in the Building or incurred in renovating or otherwise improvingfinder’s fees, decoratinglegal fees, painting or redecorating vacant space for tenants commissions, loan fees, participation payments, 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 borrowed funds), whether loans that are unsecured or disputes are secured by a deed of trust, mortgage, or otherwise on the Project and/or the Land or any equipment or other personal property used in connection with present the Project. iv Depreciation of the Project or prospective any other improvements on the Land under or pertaining to the Project or any equipment or other personal property used in connection with the Project. v Any amortization expense except for costs of Permissible Capital Improvements to the extent includable in Operating Expenses under Section 4(B) above. vii Taxes and all costs expressly excluded from the definition of Taxes. viii The cost incurred in performing work or furnishing services for one or more individual tenants which work or services are in excess of work and services required to be provided to (or are otherwise not provided to) Tenant under the Lease. ix [Intentionally Omitted] x Expenses incurred in leasing (including without limitation, existing leases of existing tenants) or procuring new tenants or subtenants including advertising and leasing fees, commissions or brokerage commissions of any kind, including without limitation, signing bonuses, moving expenses, assumption of rent under existing leases and other occupants concessions or inducements, marketing expenses and expenses for preparation of leases or renovating space for existing or new tenants or subtenants and build out allowances. xi [Intentionally Omitted] xii The annual fee for any property management services for the Building Project to the extent it exceeds three percent (including costs incurred due to violations by tenants 3%) of gross receipts for the terms and conditions Project. For purposes of their this Section 4(C)(xii), gross receipts means regular payments made under leases).
, licenses and/or occupancy agreements for the Project and, for the avoidance of doubt, specifically excludes non-recurring or extraordinary receipts or revenues (h) Costs of a e.g., proceeds from any capital natureevents, including, without limitation, capital improvementsdispositions, capital replacements, capital repairs, capital equipment and capital tools, and any improvements financings or alterations incurred to comply with any applicable Legal Requirements as set forth in Article 5 re-financings of the Master Lease all as determined in accordance with generally accepted accounting practicesLand, 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 Project or any tenant of the Buildingportions thereof).
(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.
Appears in 1 contract
Exclusions from Operating Expenses. Notwithstanding any term or condition set forth in this Exhibit or the provisions of the Master Lease or Sublease foregoing to the contrary, "Operating Expenses Expenses" shall not include any of the following:
a. debt service, including interest, financing costs and amortization of mortgages on the Building;
b. any tenant improvements performed or alteration of space leased to tenants or occupants of the Building whether such work or alteration is performed for the initial occupancy by such tenant or occupant or thereafter;
c. the cost of alterations, capital improvements and replacements which under generally accepted accounting principles are properly classified as capital expenditures, except as set forth in Section 1 d or 1 g above;
d. any cash or other consideration paid by Landlord on account of, with respect to, or in lieu of tenant improvements or alterations described in Section 2b above;
e. base ground rent (if any), plus escalations thereto, but exclusive of Real Estate Taxes, utilities and other "net" elements constituting rent under a ground lease;
f. depreciation or amortization on the Building except as provided in Section 1 c and 1 d above;
g. repairs or replacements necessitated by the gross negligence or willful misconduct of Landlord;
h. costs of enforcement of leases;
i. leasing commissions, advertising and promotional expenses and any other comparable expenses directly related to leasing or procuring tenants or negotiating with prospective tenants;
j. legal fees, accounting fees and other professional and consulting fees (a) Any ground lease rental.
incurred in procuring tenants for the Building, (b) Costs incurred in connection with Landlord's gross negligence or willful misconduct or default under any mortgage, deed of trust or ground lease relating to the Building, (c) relating to enforcing any leases or any Landlord/Tenant proceeding, (d) relating to the defense of Landlord's title to, or interest in, the Building, or (e) relating to the refinancing or sale of the Building or any interest therein;
k. the cost of repairs incurred by Landlord with respect to goods and services (including utilities sold and supplied to tenants and occupants reasons of the Building) fire or other casualty or condemnation to the extent that either (a) Landlord is entitled compensated therefore through proceeds of insurance or condemnation awards; or (b) Landlord is not fully compensated therefore due to direct reimbursement for the Landlord not obtaining insurance against such costs other than through fire or casualty or the operating expense passdecision of Landlord to self-through provisions of such tenants’ leases insure; or which Landlord provides selectively to one or more, but not all, tenants without reimbursement.
(c) Costs incurred if Landlord is not fully compensated by reason of the coinsurance provisions of its insurance policies due to Landlord not obtaining and maintaining a sufficient amount of insurance coverage;
l. all expenses for which Landlord has received reimbursement (such as from insurance or from other tenants of the repair Building);
m. income or franchise taxes or such other taxes imposed upon or measured by Landlord's net income from the operation of damage to the Building and/or the Land Building, except to the extent that Landlord is reimbursed by insurance or condemnation proceeds or by tenants, warrantors or these are enacted as a substitute for other third parties.taxes that would be included as Operating Expenses;
(d) Costs, including permit, license and inspection costs, incurred with respect n. costs allocable to the installation of tenant improvements made for any tenants in properties other than the Building in which Landlord or incurred in renovating any partner thereof has a direct or otherwise improving, decorating, painting indirect interest;
o. recordation and transfer taxes and .transfer gain taxes;
p. fees or redecorating vacant space for tenants or other occupants expenses 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 property management services provided 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 parties related to or affiliated with Landlord, which amount is except to the extent such fees or expenses are not in excess of the amount which would have reasonably been paid market rate for services of comparable quality as charged by unaffiliated parties (provided that in no event will the following be deemed in excess of the market rate: property management fees equal to four percent of gross income derived from the Project, including net parking income (or' rent under a garage lease, if applicable) and amounts received as reimbursements for Operating Expenses or Real Estate Taxes, but excluding insurance and condemnation proceeds); q. the cost of installing, operating, and maintaining any specialty facility such as an observatory broadcasting facility, restaurant or luncheon club, athletic or recreational club, theater or cafeteria unless available to all tenants in the absence Building;
r. the cost 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 additions to the Building which is used that result in providing janitorial, parking lot maintenance, window washing a larger building; and s. costs or similar servicespayments associated with Landlord's obtaining air rights or development rights.
(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.
Appears in 1 contract
Samples: Office Lease (Xedar Corp)
Exclusions from Operating Expenses. Notwithstanding any term or condition set forth in this Exhibit or the provisions of the Master Lease or Sublease Section 7.2 to the contrary, Operating Expenses shall not include any of exclude the following:
(ai) Any ground lease rentalCosts of repairs, replacements or other work occasioned by fire, windstorm or other casualty to the extent of the greater of the amount actually covered by insurance or the amount of insurance that Landlord is required to maintain under this Lease (excluding commercially reasonable deductibles), or by the exercise by governmental authorities of the right of eminent domain.
(bii) Costs Leasing commissions, attorney's fees, costs, disbursements and other expenses incurred by Landlord or its agents in connection with respect to goods and services (including utilities sold and supplied to leases with other tenants, other occupants or prospective tenants and or other occupants of the Building) to Building and the extent that Landlord is entitled to direct reimbursement for such Project, and similar costs incurred in connection with and/or enforcement of any leases with other than through tenants, other occupants, or prospective tenants or other occupants of the operating expense pass-through provisions of such tenants’ leases or which Landlord provides selectively to one or more, but not all, tenants without reimbursementBuilding and the Project.
(ciii) 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 Tenant allowances," "tenant concessions," work letters, and other costs or condemnation proceeds or by tenants, warrantors or other third parties.
expenses (d) Costs, including permit, license and inspection costs, incurred with respect to the installation of tenant improvements made for any tenants in the Building fees but not including such costs or expenses incurred in connection with any Common Facilities) incurred in completing, fixturing, furnishing, renovating or otherwise improving, decorating, painting decorating or redecorating vacant space for other tenants or other occupants of the Building and the Project, or vacant, leasable space in the Building, including space planning/interior design fees for same.
(eiv) Salaries Costs of correcting material defects, including any allowances for same, in the original construction of the Building (including latent defects) or equipment used therein (or the replacement of defective equipment).
(v) Costs (including fines, penalties and bonuses legal fees) incurred due to the knowing and willful violation by Landlord, its employees, agents and/or contractors, of officers, executives any terms and employees conditions of Landlord not employed exclusively at this Lease or of the [eases of the other tenants in the Building or who are above the level Project, and/or of Building Managerany Applicable Laws that would not have been incurred but for such violation by Landlord, its employees, agents and/or contractors.
(fvi) Payments in respect of overhead and/or profit to any subsidiary or affiliate of Landlord as a result of a non-competitive selection process for services (other than property and construction management fees) on or to the Building or the Project, or for goods, supplies or other materials, to the extent that the costs of such services, goods, supplies and/or materials exceed the costs that would have been paid had the services, goods, supplies or materials been provided by parties unaffiliated with Landlord of similar skill, competence and experience, on a competitive basis.
(vii) Payments of principal, finance charges or interest on debt or amortization on any mortgage or deed of trust encumbering the Building or the Project, and rental payments (or increases in same) under any ground or underlying lease or leases (except to the extent the same may be made to pay or reimburse, or may be measured by, Real Property Taxes).
(viii) Except for property and construction management fees, and the administrative fee to Landlord set forth in Section 7.2, costs of Landlord's general overhead and general administrative expenses (individual, partnership or corporate, as the case may be), which costs would not be chargeable to Operating Expenses of the Building or the Project in accordance with generally accepted accounting principles, including, without limitation, all costs [elated to accounting and audit services by certified public accountants for Landlord and its affiliates (excepting accounting and audit services necessary to satisfy normal property management requirements),
(ix) Compensation paid to clerks, attendants or other persons in commercial concessions (such as a snack bar, restaurant or newsstand), if any, operated by Landlord or any subsidiary or affiliate of Landlord.
(x) Advertising and promotional expenses.
(xi) Costs for which Landlord is directly reimbursed by insurance.
(xii) Depreciation and amortization of on the Building, the Project or any type equipment or materials used by Landlord or Landlord's manager in conjunction therewith, except on materials, tools and supplies equipment or materials purchased by Landlord to enable Landlord to supply services Landlord might otherwise contract for with a third party, where such depreciation would otherwise have been included in the charge for such third party's services, all as determined in accordance with generally accepted accounting practicesprinciples, consistently applied, and when depreciation or amortization is permitted or required, the item shall be amortized over its reasonably anticipated 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).
(hxiii) 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 except those set forth in Article 5 of the Master Lease all as determined in accordance with generally accepted accounting practices, consistently appliedSection 7.2(xi).
(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.
Appears in 1 contract
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 followinginclude:
(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 depreciation or amortization of the Project (except as provided above in Section 5.1);
(ii) interest on and amortization of debts (except as provided above in Section 5.1); (iii) Tenant Improvements under Exhibit C; (iv) leasing commissions, finders’ fees, attorneys’ fees and other costs costs, expenses incurred by Landlord in leasing or attempting to lease space in the Building.
(j) Expenses in connection with services or other benefitsthis Lease and with leasing, which are not offered to Tenantrenovating, or improving space for which Tenant other tenants or prospective tenants; (v) costs associated with the collections of rent under any lease or defense of Landlord’s title to or interests in the Project; (vi) refinancing costs; (vii) fines or penalties incurred due to violations by Landlord of Applicable Laws, regulations, orders and the like; (viii) all overhead, costs and expenses associated with the operation of Landlord’s business, as distinguished from costs and expenses associated with the operation of the Project, such as, without limitation, corporate accounting and legal fees, costs and expense of defending or prosecuting litigation not related to the Project, and costs and expense of selling, syndicating, financing or mortgaging Landlord’s interest in the Project; (ix) any items of expense to the extent Landlord is charged for directly but which are provided reimbursed by means other than Operating Expense payments by tenants of the Project such as through warranties, guaranties, insurance proceeds or litigation against the party who wrongfully caused the expense; (x) costs of restoration or repair of the Building as a result of total or partial destruction or condemnation thereof, such costs to another tenant or occupant be handled pursuant to Article 19 of this Lease; (xi) cost to maintain and replace the Building and components of the Building.
(k) Costs incurred by Landlord due , Building Expenses, and Building Systems to the violation extent reimbursed by Landlord Tenant pursuant to other provisions of the terms this Lease; (xii) contributions to charitable organizations (except as provided in Section 3.4); and conditions of any lease of space in the Building.
(lxiii) Any cost representing an amount fees, costs, reimbursements and other sums paid to any person, firm, corporation or other entity related to or affiliated with Landlord, which amount is in excess affiliates of the amount which would have reasonably been paid in the absence of such relationship Landlord 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 provided 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 Project to the extent that such taxes fees, costs, reimbursements or assessments for excess valuation other sums 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 prevailing market amounts for comparable services provided by landlords for similar buildings in the general vicinity of the Premisesunaffiliated third parties.
(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.
Appears in 1 contract
Samples: Retail Lease
Exclusions from Operating Expenses. Notwithstanding any term or condition set forth in this Exhibit or the provisions of the Master Lease or Sublease anything to the contrarycontrary in Section 3(b) of this Lease, Operating Expenses shall not include any of the following:.
(a) Any ground lease rentalLegal fees, brokerage fees, leasing commissions, advertising costs, or other related expenses incurred by Landlord in connection with the leasing of the Property.
(b) Costs incurred by Landlord with respect Repairs, alterations, additions, improvements or replacements of a capital nature made to goods and services (including utilities sold and supplied to tenants and occupants rectify or correct any defect in the original design, materials or workmanship 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 reimbursementLandlord's building.
(c) Costs incurred by Landlord for the repair of damage Repairs to the Building and/or the Land to the extent that Property as a result of any fire or other casualty for which Landlord is reimbursed by insurance or condemnation proceeds or by tenants, warrantors or other third partiesinsurance.
(d) CostsRepairs to the Property as a result of any willful misconduct of Landlord or Landlord's agents, and repairs to the Property as a result of any negligence or willful misconduct of Landlord's contractors for which Landlord is reimbursed.
(e) Charges for any portion of salaries or other benefits of Landlord's officers or personnel, except those engaged in full-time management or maintenance and operation of the Property, it being understood that a pro rata portion of such salaries and other benefits may be charged for personnel working part-time on the management or maintenance and operation of the Property, who are also working part-time on other properties or other matters.
(f) Landlord's general overhead expenses which are not related to the Property; it being understood that a pro rata portion of such overhead expenses may be charged for such expenses which are incurred both in connection with the Property and other properties managed by Landlord.
(g) Legal fees, accounting fees, and other expenses incurred in connection with disputes with tenants or other occupants of the Property, or associated with the enforcement of the terms of any leases with tenants, or the defense of Landlord's title to, or interest, in the Property.
(h) Costs incurred due to a willful violation by Landlord of any term or condition of this Lease or any third party lease within the Property.
(i) Costs (including permitpermits, license licensing and inspection costs, incurred with respect to the installation of tenant improvements made for any tenants in the Building or fees) incurred in renovating or otherwise improving, decorating, painting or redecorating vacant altering space for tenants or other occupants of occupants, or vacant space (excluding common areas) in the Building.
(e) Salaries and bonuses of officersProperty, executives and employees of Landlord not employed exclusively at the Building or who which 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 performed in connection with negotiations the leasing or disputes with present or prospective tenants or other occupants re-leasing of space, as opposed to 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 Landlord's repair obligations under any improvements or alterations incurred to comply lease 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 Buildingtenant.
(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 generally-accepted accounting principles consistently applied, would not be considered to be an a reasonable maintenance or operating expense of similar real estate.
(k) Any expense for which Landlord has been reimbursed, it being understood between the Building parties that Landlord shall not collect in excess of one hundred (100%) percent of its actual Operating Expenses, and shall not recover the cost of any items more than once.
(l) Salaries of building management personnel who perform services solely connected with the management, operations, repair or maintenance of the building, which exceeds three (3%) percent of the gross revenues of the Property per year.
(m) Alterations, additions, improvements or replacements of a capital nature made to the roof or the heating and air conditioning system servicing the Property; it being understood, however, that all repairs not of a capital nature, made to the roof or the heating and air conditioning system. may be included as an Operating Expense.
(n) Any principal or interest payments on the original purchase or refinancing of the Property, or in connection with any capital expenditures made to or with respect to the Property.
(o) Amortization, debt service, or other payments on loans to Landlord.
(p) Depreciation on Landlord's building, or any comparable buildingequipment therein, except as expressly provided with respect to those items which reduce other Operating Expenses, as more fully set forth in Section 3(b).
Appears in 1 contract
Exclusions from Operating Expenses. Notwithstanding any term or condition set forth anything to the contrary contained in this Exhibit or the provisions Article 4 of the Master Lease or Sublease to the contraryLease, Operating Expenses shall not include any of the following:
(ai) Interest, principal, points and fees on mortgage debts or amortization on any mortgage or mortgages;
(ii) Any ground lease rental.;
(biii) Costs incurred by Electric power costs or other utility costs for which any tenant directly contracts with the local public service company (but Landlord with respect shall have the right to goods “gross up” as if the floor was vacant);
(iv) All items and services for which Tenant or any other tenant in the Building reimburses Landlord (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 Tenant’s Percentage Share of such tenants’ leases Operating Expenses), or which Landlord provides selectively to one or more, but not all, more tenants (other than Tenant) without reimbursement.;
(cv) Costs incurred by Landlord for the repair of damage damages to the Building and/or the Land Building, to the extent that Landlord is reimbursed by insurance or condemnation proceeds or by tenantsproceeds, warrantors or other third parties.exclusive of any deductible expenses involved;
(dvi) CostsLegal fees, including permitspace planner’s fees, license real estate brokers’ leasing commissions, and inspection costs, advertising expenses incurred in connection with respect to the installation original development or original leasing 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 future leasing of the Building.;
(evii) Salaries and bonuses of officersLeasing commissions, 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 materialsattorneys’ fees, 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 except for costs incurred due to violations by tenants of enforcement of the terms Building’s Rules and conditions of their leasesRegulations).;
(hviii) Landlord’s executive salaries;
(ix) Landlord’s general corporate overhead, except to the extent included in other items includable in Operating Expenses;
(x) Costs, including permit, license and inspection costs, incurred with respect to the installation of tenant improvements in the premises of other tenants;
(xi) Any compensation paid to clerks, attendants or other persons in retail concessions (excluding parking and concierge services) operated by Landlord;
(xii) Overhead and profit increment paid to Landlord or to subsidiaries or affiliates of Landlord for services in the Building to the extent the same materially exceeds the cost of such services rendered by unaffiliated third parties which are of the quality provided in the Building;
(xiii) Rentals for items (except when needed in connection with normal repairs and maintenance of permanent systems) which, if purchased rather than rented, would constitute a capital improvement which is specifically excluded in (xiv) below (excluding, however, equipment not affixed to the Building which is used in providing janitorial or similar services);
(xiv) Costs of a capital natureimprovements in excess of $100,000 per annum, includingand in all cases excepting those (1) required by laws enacted on or after the date the temporary certificate of occupancy issued for the Building shall be validly issued (amortized over the useful life of the improvement), without limitationtogether with interest, (2) acquired to reduce Non-Tax Operating Expenses amortized on an annual rate reasonably calculated to equal the amount of Non-Tax Operating Expenses projected to be saved in each calendar year throughout the Term (as determined at the time Landlord elected to proceed with the capital improvementsimprovement to reduce Non-Tax Operating Expenses), capital replacementstogether with interest, capital repairs, capital equipment and or (3) costs of capital tools;
(xv) Depreciation, except as provided herein and any improvements or alterations incurred except on materials, tools, supplies and vendor-type equipment purchased by Landlord to comply enable Landlord to supply services Landlord might otherwise contract for with any applicable Legal Requirements as set forth a third party where such depreciation would otherwise have been included in Article 5 of the Master Lease charge for such third party’s services all as determined in accordance with generally accepted accounting practicesprinciples, consistently applied., and when depreciation is permitted or required, the item shall be amortized over its reasonable anticipated useful life; and
(i) Brokerage commissions, finders’ fees, attorneys’ fees and other costs incurred by Landlord in leasing or attempting to lease space in the Building.
(jxvi) Expenses in connection with services or other benefits, benefits which are not offered to Tenant, Tenant or for which Tenant is charged for directly but which are provided to another tenant or occupant of the BuildingBuilding the cost of which is included in Non-Tax Operating Expenses.
(kxvii) Costs incurred Capital expenditures required by Landlord due Landlord’s failure to comply with laws enacted on or before the violation by Landlord of the terms and conditions of any lease of space in date when the Building.’s temporary certificate of occupancy was validly issued;
(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.
(pxviii) Advertising and promotional expenditures andexpenditures, 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 (except for the Land Building directory) identifying the owner of the Building or any other tenant of the Building.;
(qxix) 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 Tax penalties 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 Subleasedue.
(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.
Appears in 1 contract
Samples: Lease Agreement (Rentech Inc /Co/)
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 exclude the followingfollowing expenditures:
(a1) Any ground lease rentalLeasing commissions, attorneys’ fees and other expenses related to leasing tenant space and constructing improvements for the benefit of an individual tenant.
(b2) Costs incurred by Landlord with respect to goods Goods and services (including utilities sold and supplied furnished to tenants and occupants an individual tenant of the Building) Building which are above building standard and which are separately reimbursable directly to the extent that Landlord is entitled in addition 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 reimbursementExcess Operating Expenses.
(c3) Costs incurred by Landlord for the repair of damage to the Building and/or the Land to the extent that Landlord is reimbursed Repairs, replacements and general maintenance paid by insurance proceeds or condemnation proceeds or by tenants, warrantors or other third partiesproceeds.
(d4) CostsExcept as provided in Section 4(D)(9), including permitdepreciation, license amortization, interest payments on any encumbrances on the Project and inspection coststhe cost of capital improvements or additions.
(5) Costs of installing any specialty service, incurred with respect such as an observatory, broadcasting facility, luncheon club, or athletic or recreational club.
(6) Expenses for repairs or maintenance related to the installation Project which have been reimbursed, or are reimbursable to Landlord pursuant to warranties or service contracts.
(7) Costs (other than maintenance costs) of tenant improvements made for any tenants in the Building art work (such as sculptures or incurred in renovating or otherwise improving, decorating, painting or redecorating vacant space for tenants or other occupants of paintings) used to decorate the Building.
(e8) Payments on indebtedness secured by liens against the Project, or costs of refinancing such indebtedness.
(9) Salaries Costs of correcting defects in or inadequacy of the construction of the Project, not constituting ordinary repair and bonuses maintenance.
(10) Costs of officersthe design and construction of tenant improvements to the Premises or the premises of other tenants or other occupants and the amount of any allowances or credits paid to or granted to tenants or other occupants for any such design or construction.
(11) Marketing costs, executives legal fees, space planners’ fees, advertising and employees promotional expenses, and brokerage fees incurred in connection with the original development, subsequent improvement, or original or future leasing of the Project.
(12) Costs for which the Landlord is reimbursed, or would have been reimbursed if Landlord had carried the insurance Landlord is required to carry pursuant to this Lease or would have been reimbursed if Landlord had used commercially reasonable efforts to collect such amounts, by any tenant or occupant of the Project or by insurance from its carrier or any tenant’s carrier.
(13) Any bad debt loss, rent loss, or reserves of any kind.
(14) Costs associated with the operation of the business of the entity which constitutes the Landlord, as the same are distinguished from the costs of operation of the Project, including accounting and legal matters, costs of defending any lawsuits with any mortgagee, costs of selling, syndicating, financing, mortgaging or hypothecating any of the Landlord’s interest in the Project, and costs incurred in connection with any disputes between Landlord and its employees, between Landlord and Project management, or between Landlord and other tenants or occupants.
(15) The wages and benefits of any employee who does not devote substantially all of his or her employed exclusively at time to the Building or who Project unless such wages and benefits are prorated to reflect time spent on operating and managing the Project vis-à-vis time spent on matters unrelated to operating and managing the Project; provided, that in no event shall Operating Expenses for purposes of this Lease include wages and/or benefits attributable to personnel above the level of Building ManagerProject manager or Project engineer.
(f16) Depreciation and amortization of any type except on materials, tools and supplies purchased Amount paid as ground rental or as rental for the Project 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 lifeLandlord.
(g17) Attorneys’ fees and Any amount paid by Landlord or to the parent organization or a subsidiary or affiliate of the Landlord for supplies and/or services in the Project to the extent the same exceeds the costs of such supplies and/or services rendered by qualified, first-class unaffiliated third parties on a competitive basis.
(18) Any compensation paid to clerks, attendants or other persons in commercial concessions operated by or on behalf of the Landlord provided, however, this exclusion is not intended to exclude from Operating Expenses the costs and expenses incurred associated with maintaining common locker room areas in Building 2 of the Project, the common area portion of food court areas or other areas of the Project benefiting the tenants of the Project.
(19) The cost of rental for items (except when needed in connection with negotiations normal repairs and maintenance 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)keeping permanent systems in operation while repairs are being made) that if purchased, rather than rented, would constitute a capital improvement that is specifically excluded from Operating Expenses.
(h20) Costs, other than those incurred in ordinary maintenance and repair, for sculpture, paintings, fountains or other objects of art.
(21) Tax penalties.
(22) Costs arising from the gross negligence or willful misconduct of a capital natureLandlord or Landlord Parties.
(23) All costs, in any calendar year, arising from the release, removal or remediation (including encapsulation) of Hazardous Materials in or about the Premises, the Building or the Project, 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 Hazardous Materials in the Building.
(j) Expenses in connection with services ground water or other benefits, which are soil. The foregoing exclusion does 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) exclude 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 Hazardous Materials that must be handled in connection with the transfer or disposition day-to-day operation of the Project (e.g., cleaning up diesel fuel from Landlord’s interest in emergency generator, handling Hazardous Materials discovered during repair or maintenance of Common Areas, etc.), unless caused by the Property.
(dd) Any and all costs incurred by Landlord in the operation acts or omissions of any specialty operations or facilities at the Building Tenant Party; provided, however, 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 costs shall not be included in Operating Expenses as a subterfuge to include otherwise excludable costs hereunder. Costs incurred in handling Hazardous Materials in the day-to-day operation of the Project, which are attributable to an individual tenant, will not be included in Operating Expenses, and unless the individual tenant is Tenant, Landlord shall have no recourse against Tenant for recovery of such costs.
(ff24) Parking area maintenance, operating costs and real estate taxes for any such parking areas to the extent such costs are offset by parking area revenuesCosts arising from Landlord’s charitable or political contributions.
(gg25) Initial cost and replacement costs of any permanent landscapingAny entertainment, water features, fountains, artwork, sculptures and other decorative treatments. (hh) Contributions to Operating Expense Reservesdining or travel expenses.
(ii26) Any other cost or expense which, under generally accepted accounting principles consistently applied, would not be considered Costs of electrical power to be an operating expense of any leased premises within the Building or any comparable buildingProject.
Appears in 1 contract
Exclusions from Operating Expenses. Notwithstanding any term or condition set forth in this Exhibit or the provisions of the Master Lease or Sublease Subparagraph 6.2 above to the contrary, "Operating Expenses Expenses" shall not include any of the followinginclude:
(a) Any 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 Project to the extent that Landlord is reimbursed by insurance (or would have been reimbursed had Landlord not self-insured and carried the insurance coverage required to be carried by Landlord under this Lease) or condemnation proceeds or by tenants, warrantors or other similar third parties.persons;
(dc) Costscosts, including permit, license and inspection costs, incurred with respect to the installation of tenant improvements made for any tenants in the Building Project (including the original Leasehold Improvements for the Premises), or incurred in renovating or otherwise improving, decorating, painting or redecorating vacant space for specific tenants or other occupants of the Building.Project, including space planning and interior design costs and fees;
(d) marketing costs, including, without limitation, brokerage commissions, finders' fees, attorneys' fees, space planning costs and other costs incurred by Landlord in leasing or attempting to lease space in the Project;
(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’ 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 natureProject; provided, includinghowever, 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, that Operating Expenses shall include those attorneys’ ' fees and other costs and expenses incurred by in connection with negotiations, disputes or claims relating to items of Operating Expenses, enforcement of rules and regulations of the Project, and such other matters relating to the maintenance of standards required of Landlord in leasing or attempting to lease space in under the Building.Lease;
(jf) Expenses interest, principal, points and fees on debt or amortization on any mortgage, deed of trust or other debt encumbering the Project, or any portion thereof;
(g) expenses, charges or taxes in connection with services or other benefits, benefits which are not offered to Tenant, Tenant or for which Tenant is charged for directly but which are provided to another tenant free of charge;
(h) overhead and profit increment paid to Landlord or occupant to subsidiaries or affiliates of Landlord for goods and/or services in the Building.Building or Project to the extent the same exceeds the costs of such goods and/or services rendered by unaffiliated third parties on a competitive basis;
(i) except for the management/administrative fee as provided in Subparagraph 6.2(i)(4), herein above, Landlord's general corporate overhead and general and administrative expenses;
(j) any compensation paid to clerks, attendants or other persons in commercial concessions operated by or on behalf of Landlord;
(k) Costs incurred by Landlord due electric power costs for which any tenant directly contracts with the local public service company or other supplier and is obligated to pay for the violation by Landlord same, provided that for determining the electric power costs component of Operating Expenses, the terms and conditions square footage of any lease of space in such tenant's leased premises shall be excluded from the Building.denominator used for calculating Tenant's Proportionate Share;
(l) Any cost representing an amount paid to any person, firm, corporation costs arising from Landlord's charitable 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.political contributions;
(m) Interestpenalties incurred due to Landlord's failure to comply with any applicable laws, pointsrules, codes, regulations or other governmental requirements, or any covenants, conditions and fees on debt restrictions (or amortization on any mortgage or mortgages encumbering the Building and/or the Land.like); and
(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 Tenant or by other tenants of correcting defects in construction or equipment or in replacing defective equipment.
(z) Any the Project. Landlord agrees that since one of the purposes of Operating Expenses and all costs of the gross up provision is to allow 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, to require Tenant to pay for the costs and expenses of clean upattributable to its Premises, remediation, environmental surveys/assessments, compliance with Environmental Laws Landlord agrees that (as hereinafter defined), consulting fees, treatment and monitoring charges, transportation expenses and disposal fees, etc.
(bbi) Any and all costs of Landlord for repairs resulting from damage, destruction will not collect or condemnation covered by other provisions of this Sublease.
(cc) Any and all costs incurred be entitled to collect Operating Expenses not actually paid 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 Project; (ii) Landlord shall make no profit from Landlord's collection of Operating Expenses; and (iii) Tenant's obligation to pay its proportionate share of any comparable buildingReal Property Taxes and Assessments shall be calculated as if Landlord had paid same in the maximum number of installments permitted (inclusive of interest charges, if any, payable to the taxing authority if Landlord had paid same in the maximum number of installments permitted), even if Landlord elected to make payment on a lump sum basis or otherwise.
Appears in 1 contract
Exclusions from Operating Expenses. Notwithstanding any term or condition anything contained in the definition of Operating Expenses as set forth in Subsection 4.1 b) of this Exhibit or the provisions of the Master Lease or Sublease to the contraryLease, Operating Expenses shall not include any of the following:
(ai) Any ground lease rental.;
(bii) Costs incurred by Landlord with respect The costs of repairs to goods and services (including utilities sold and supplied to tenants and occupants of the Building) to , if 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 repairs is reimbursed by the insurance carried by Landlord or condemnation proceeds or by tenants, warrantors or other third parties.subject to award under any eminent domain proceeding;
(diii) Costs, including permit, license and inspection costs, incurred with respect to the installation of tenant Tenant’s or other occupant’s improvements made for any tenants in the Building or incurred in renovating or otherwise improving, decorating, painting or redecorating vacant space for tenants Tenant or other occupants of the Building.;
(eiv) Salaries Depreciation, amortization and bonuses of officersinterest payments, executives and employees of Landlord not employed exclusively at the Building except as specifically permitted herein or who are above the level of Building Manager.
(f) Depreciation and amortization of any type except on materials, tools supplies and supplies vendor-type equipment purchased by Landlord to enable Landlord to supply services Landlord might otherwise contract for with a third party where such depreciation, amortization and interest payments would otherwise have been included in the charge for such third party’s services. In such a circumstance, the inclusion of all as depreciation, amortization and interest payments shall be determined in accordance with pursuant to generally accepted accounting practicesprinciples, consistently applied, and when amortized over the reasonably anticipated useful life of the capital item for which such amortization, depreciation or amortization is permitted or requiredinterest allocation was calculated;
v) Marketing costs, the item shall be amortized over its useful life.
(g) Attorneysincluding leasing commissions, attorneys’ fees incurred in connection with the negotiation and preparation of letters, deal memos, letters of intent, leases subleases and/or assignments, space planning costs, and other costs and expenses incurred in connection with lease, sublease and/or assignment negotiations or disputes and transactions 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).Building;
(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.
(jvi) Expenses in connection with for services or other benefits, which are not offered to Tenant, Tenant or for which Tenant is charged for directly but which directly, whether or not such services or other benefits are provided to another tenant or occupant of the Building.;
(kvii) Costs incurred by Landlord due to Landlord’s or any tenant of the violation by Landlord Building’s violation, other than Tenant, of the terms and conditions of any lease of space or rental agreement in the Building.;
(lviii) Any cost representing an amount paid to That portion of any person, firm, corporation or other entity related to or affiliated with billing by Landlord, which amount is in excess of the amount which would have reasonably been paid its subsidiaries or affiliates for goods and/or services in the absence Building, to the extent that such billing exceeds the costs of such relationship goods and/or services if rendered by an unaffiliated third parties on a competitive basis;
ix) Costs incurred by Landlord for comparable work or services involving structural earthquake repairs necessitated by the Building or comparable buildings January 17, 1994 earthquake that occurred in the general vicinity of the Building.;
(mx) Interest, pointsprincipal, points and fees on debt debts or amortization on any mortgage or mortgages or any other debt instrument encumbering the Building and/or or the Land.land thereunder;
xi) Costs associated with operating the entity which constitutes Landlord, as the same are distinguished from the costs of operation of the Building, including partnership accounting and legal matters, costs of defending any lawsuits with any mortgagee (n) except as the actions of Tenant may be in issue), costs of selling, syndicating, financing, mortgaging or hypothecating any of Landlord’s general corporate overhead.interest in the Building, costs (including attorneys’ fees and costs of settlement judgments and payments in lieu thereof) arising from claims, disputes or potential disputes in connection with potential or actual claims, litigation or arbitration pertaining to Landlord’s ownership of the Building;
(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.
(pxii) Advertising and promotional expenditures andexpenditures, 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 tenants signs;
xiii) Electric, gas or other power costs for with Landlord in performing work which Landlord is obligated to perform under any leases which reasonably could have has been avoided through the exercise of ordinary diligence.
(r) Taxes and assessments attributable to the directly reimbursed by another tenant improvements of tenants or occupants occupant of the Building Building, or for which are assessed at a valuation higher than any tenant directly contracts with 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.local public service company;
(sxiv) Penalties Tax penalties and interest incurred as a result of Landlord’s negligence negligent 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 willful failure to make timely payments and/or to file any income tax or informational return(s) when due, unless such non-payment is due to Tenant’s nonpayment of rent;
xv) Costs incurred by Landlord to comply with notices of violation of the Americans With Disabilities Act, as amended, when such notices are for conditions existing prior to the Commencement Date;
xvi) Any charitable or political contributions;
xvii) The purchase or rental price of any sum due under this Sublease.sculpture, paintings or other object of art, whether or not installed in, on or upon the Building;
(txviii) Any charge compensation paid or expense expenses reimbursed to clerks, attendants or other persons working in any commercial concession(s) operated by Landlord, and any services provided, taxes attributable to and costs incurred in connection with the operation of any retail or restaurant operations in the Building;
xix) Any accelerated payment(s) made at Landlord’s election on obligations, including, without limitation, taxes and assessments, undertaken by of which would not otherwise become due, to the extent that it is materially such accelerated payment(s) exceed the amount otherwise payable had Landlord not elected to accelerate payment thereof. Notwithstanding such exclusion, the balance of such accelerated payment shall be included by Landlord in operating expense calculations for succeeding years, as if the payment had been made when originally due prior to such acceleration.
xx) Costs, including attorneys’ fees and settlement judgments and/or payments in lieu thereof, arising from actual or potential claims, disputes, litigation or arbitration pertaining to Landlord and/or the Building;
xxi) Insurance deductibles in excess of that charged by landlords for similar buildings reasonable and customary deductible amounts, and/or whether or not reasonable and/or customary, in the general vicinity excess of the Premises.$250,000 in any calendar year;
(uxxii) Costs due to violation of law.
(v) The amount of any deductible with respect to Sublandlord’s insurance, the costs of self repairs which would have been covered by casualty insurance or any risk which Landlord has elected to self insure against and premiums but 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 maintain casualty insurance to cover the extent such a reduction was obtained replacement value of the Building as required by this Lease;
xxiii) Capital expenditures not otherwise permitted hereunder;
xxiv) The assessment or billing of operating expenses that results in Landlord being reimbursed more than one hundred percent (100%) of the total expenses for purposes of establishing the base calendar year or expense stop tax component.in question;
(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.
(yxxv) Costs of correcting defects in construction to remove or equipment axxxx or in replacing defective equipment.remediate hazardous materials or comply with laws regulating hazardous materials;
(zxxvi) Any and all costs of bad debt loss, rent loss or reserves for bad debts or rent loss; and
xxvii) Costs incurred by Landlord to comply with applicable Codes (as such term is defined in complying with its obligations under Article 5(b) (entitled “Compliance with Law”) Section 10.1 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 when compliance is 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 conditions existing prior to the extent such costs are offset by parking area revenuesCommencement Date.
(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.
Appears in 1 contract
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 the cost of any work performed (such as preparing a tenant’s space for occupancy, including painting and decorating) or services provided (such as separately metered electricity) for any tenant (including Lessee) at such tenant’s cost, or provided by Lessor without charge as an inducement to lease rental.
(such as free rent or improvement allowances); (b) Costs incurred by Landlord with respect salaries of Lessor’s officers and partners and its headquarters staff; (c) the cost of any work performed or service provided for any tenant of the Building (other than Lessee) to goods and services (including utilities sold and supplied a materially greater extent or in a materially more favorable manner than that furnished generally to the other tenants and occupants (such as electricity and cleaning services provided to retail tenants); (d) the cost of the Building) to the extent that Landlord is entitled to direct reimbursement any items 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 Lessor is reimbursed by insurance proceeds, condemnation awards, a tenant of the Building, or condemnation proceeds otherwise; (e) the cost of any material expansions of or by tenants, warrantors or other third parties.
(d) Costs, including permit, license and inspection costs, incurred with respect improvements to the installation of tenant improvements made for any tenants in the Building or incurred in renovating the Property, or otherwise improvingOperating Expenses generated by such expansions constructed after the Commencement Date; (f) the cost of any additions, decoratingchanges, painting or redecorating vacant space for tenants or other occupants of replacements which under generally accepted accounting principles are properly classified as capital expenditures, except to the Building.
extent provided clauses (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.
through (g) Attorneys’ fees and other costs and expenses incurred in connection with negotiations Section 4.3 above; (g) the cost of any repair made in response to any insured fire or disputes with present or prospective tenants or other occupants casualty damage (except for the amount of the Building (including costs incurred due to violations by tenants of the terms and conditions of their leases).
“deductible” under Lessor’s property insurance) or any condemnation; (h) Costs of a capital nature, including, without limitation, capital improvements, capital replacements, capital repairs, capital equipment and capital tools, and insurance premiums to the extent any improvements or alterations incurred tenant causes an increase in the Lessor’s existing insurance premiums and/or requires Lessor to comply with any applicable Legal Requirements as set forth in Article 5 of purchase additional insurance not typically carried by comparable building owners to the Master Lease all as determined in accordance with generally accepted accounting practices, consistently applied.
Lessor; (i) Brokerage commissionsinterest and principal payments on any debt, finders’ feesdepreciation, attorneys’ fees and rental under any ground lease or other costs incurred by Landlord in leasing or attempting to lease space in the Building.
underlying lease; (j) Expenses in connection with services any real estate brokerage commissions or other benefits, which are not offered to Tenantcost incurred in procuring tenants, or for which Tenant is charged for directly but which are provided to another tenant or occupant any fee in lieu of the Building.
commission; (k) Costs incurred by Landlord due to the violation by Landlord of the terms and conditions of any lease of space in the Building.
architectural fees for tenant space; (l) Any cost any costs representing an amount paid to any person, firm, corporation or other an entity related to or affiliated with Landlord, which amount is Lessor to the extent in excess of the amount which would have reasonably been paid in the absence of such relationship a relationship; (m) any expenses for comparable work repairs or services involving maintenance which are reimbursed under warranties, guaranties or service contracts (excluding any mandatory deductibles); (n) legal and related expenses arising out of the Building construction, sale or comparable buildings in the general vicinity financing of the Building.
(m) Interest, points, and fees on debt or amortization on the enforcement of the provisions of any mortgage or mortgages encumbering the Building and/or the Land.
(n) Landlordtenant’s general corporate overhead.
lease; (o) Subject insurance premiums 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 extent 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.
any refunds thereof; (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.
home office accounting fee allocations; (q) Costs of overtime costs with respect to a sale, financing 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.
refinancing; (r) Taxes and assessments attributable to bad debt loss, rent loss or reserves for bad debt loss or rent loss (but not 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 premiums for excess valuation are directly billed to and collected from such tenant or occupants.
rent loss insurance); (s) Penalties costs associated with the operation of the business entity of Lessor, including partnership audit, business entity accounting, 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.
business entity legal matters; (t) Any charge fines and penalties associated with Lessor making late payments 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.
violating Governmental Requirements; (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 artwork which Landlord has elected to self insure against exceed usual and premiums customary standards for any insurance not carried as of the commencement of the Master Lease or Sublease, but subsequently obtained by Master Landlord or Sublandlordcomparably situated commercial office buildings.
(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.
Appears in 1 contract
Samples: Office Lease (Icop Digital, Inc)
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 contraryforegoing, Operating Expenses shall not include any of the following:
(ai) Any ground lease rental.;
(bii) Costs incurred by Landlord with respect of items considered capital repairs, replacements, improvements and equipment under generally accepted accounting principles consistently applied (“Capital Items”), except for (1) the cost of those Capital Items, acquired to goods and services (including utilities sold and supplied to tenants and occupants of the Building) reduce Operating Expenses but only to the extent that Landlord is entitled to direct reimbursement for such costs other than through of the operating expense pass-through provisions actual monetary savings, in which case each Capital Item shall be amortized over the useful life of such tenants’ leases or which Landlord provides selectively to one or moreCapital Items on a straight line basis, but not allwithout interest, tenants without reimbursement.and with a reasonable salvage value;
(ciii) Rentals for items (except when needed in connection with normal repairs and maintenance of permanent systems) which if purchased, rather than rented, would constitute a capital improvement which is specifically excluded in Subsection (ii) above (excluding, however, equipment not affixed to the Building which is used in providing janitorial or similar services);
(iv) Costs incurred by Landlord for the repair of casualty 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.Building;
(dv) Costs, including permit, license and inspection costs, incurred with respect to the installation of tenant or other occupants’ 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.;
(evi) Salaries Costs associated with the operation of the business of the partnership or entity which constitutes Landlord as the same are distinguished from the costs of operation of the Building, including partnership accounting and bonuses legal matters, costs of officersdefending any lawsuits , executives costs of selling, syndicating, financing, mortgaging or hypothecating any of Landlord’s interest in the Building, costs of any disputes between Landlord and its employees (if any) not engaged in Building operation, disputes of Landlord not employed exclusively at the with Building management, or who are above the level of Building Manager.outside fees paid in connection with disputes with other tenants; and
(fvii) Depreciation and amortization of any type except on materialsMarketing costs including, tools and supplies purchased by Landlord to enable Landlord to supply services Landlord might otherwise contract for with a third partywithout limitation, all as determined in accordance with generally accepted accounting practicesleasing commissions, consistently applied, and when depreciation or amortization is permitted or required, the item shall be amortized over its useful life.
(g) Attorneysattorneys’ fees in connection with the negotiation and preparation of deal memos, letters of intent, leases, subleases and/or assignments, space planning costs, and other costs and expenses incurred in connection with lease, sublease and/or assignment negotiations or disputes and transactions 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).Building;
(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.
(jviii) Expenses in connection with services or other benefits, benefits which are not offered to Tenant, Tenant or for which Tenant is charged for directly but which are provided to another tenant or occupant of the Building.;
(kix) Costs incurred by Landlord due to the violation by Landlord or any tenant of the terms and conditions of any lease of space in the Building.;
(lx) Any cost representing an amount Overhead and profit increment paid to any person, firm, corporation Landlord or other entity related to subsidiaries or affiliated with Landlord, which amount is affiliates of Landlord for goods and/or services in excess of or to the amount which would have reasonably been paid in Building to the absence extent the same exceeds the costs of such relationship for comparable work or goods and/or services involving the Building or comparable buildings in the general vicinity of the Building.rendered by unaffiliated third parties on a competitive basis;
(mxi) Interest, pointsprincipal, points and fees on debt debts or amortization on any mortgage or mortgages or any other debt instrument encumbering the Building or the site (except as permitted elsewhere in this Lease;
(xii) Landlord’s general partnership overhead and general and administrative expenses;
(xiii) Costs (including in connection therewith all attorneys’ fees and costs of settlement judgments and payments in lieu thereof) arising from claims, disputes or potential disputes in connection with potential or actual claims litigation or arbitrations pertaining to Landlord and/or the Building and/or the Land.Lot;
(nxiv) Landlord’s general corporate overhead.Costs for sculpture, paintings or other objects of art;
(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.
(pxv) Advertising and promotional expenditures andexpenditures, 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 or other tenants’ signs;
(xvi) Electric power costs for which are assessed at a valuation higher than any tenant directly contracts with the valuation at which Building standard tenant local public service company;
(xvii) Costs arising from Landlord’s charitable or political contributions;
(xviii) Costs incurred in connection with upgrading or otherwise making alterations, additions or improvements are assessed to the extent that Building exterior or the Building foundation or structural elements to comply with disability, life, fire and safety or other codes, ordinances, statutes, or other laws in effect on or before the Lease Term Commencement Date including, without limitation, the ADA, including penalties or damages incurred due to such taxes or assessments for excess valuation are directly billed to and collected from such tenant or occupants.non-compliance;
(sxix) Penalties and interest Tax penalties incurred as a result of Landlord’s negligence or failure, negligence, inability or unwillingness to make payments and/or to file any tax payments or information returns when due including tax penalties due;
(xx) Costs for which Landlord is compensated by a management fee;
(xxi) Costs arising from the negligence or fault of other tenants or Landlord or its agents, or any vendors, contractors, or providers of materials or services selected, hired or engaged by Landlord or its agents including, without limitation, the selection of building materials;
(xxii) Notwithstanding any contrary provision of the Lease, including, without limitation, any provision relating to capital expenditures, any and interest, so long all costs arising from the presence of hazardous materials or substances (as such penalties or interest do not result from Tenant’s breach defined by Applicable Laws in effect on the date of this Sublease Lease) in or about the Building or site including, without limitation, hazardous substances in the ground water or soil, not placed in the Premises, Building or Lot by Tenant, it’s failure to make timely payment agents, employees, invitees, or customers;
(xxiii) Costs arising from earthquake insurance unless required by Landlord’s lender;
(xxiv) Any other expenses which, in accordance with generally accepted accounting principles, consistently applied, would not normally be treated as Operating Expenses by landlords of any sum due under this Subleasecomparable buildings.
(t1) Any charge Landlord agrees that since one of the purposes of passing through Operating Expenses is to allow Landlord to require Tenant to pay for the pro-rata cost attributable to its Premises, Landlord agrees that (i) Landlord will not collect or expense be entitled to the extent that it collect Operating Expenses from all of its tenants in an amount which is materially in excess of that charged by landlords for similar buildings in the general vicinity one hundred percent (100%) 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 Operating Expenses actually paid by Landlord in connection with the transfer or disposition operation of the Building, and (ii) Landlord shall make no profit from Landlord’s interest collections of Operating Expenses except in the Property.
(dd) Any form of late charges or interest on amounts not paid when due. All assessments and all costs incurred premiums which are not specifically charged to Tenant because of what Tenant has done, which can be paid by Landlord in installments, shall be paid by Landlord in the operation maximum number of any specialty operations installments permitted by law and not included as Operating Expenses except in the year in which the assessment or facilities at premium installment is actually paid; provided, however, that if the prevailing practice in other comparable buildings in the vicinity of the Building is to pay such as any health assessments or exercise clubpremiums on an earlier basis, broadcast facilityand Landlord pays on such basis, rooftop antenna facility, helicopter pad, concierge such assessments 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 premiums shall not be included in Operating Expenses as paid by Landlord; in no event, however, shall Landlord include any accrued interest (resulting from such assessments or premiums) in its computation of Operating Expenses.
(ff2) Parking area maintenanceEach time Landlord provides Tenant with an actual and/or estimated statement of Operating Expenses, operating costs such statement shall be itemized on a line item by line item basis, and real estate taxes shall be accompanied by a copy of all tax bills as well as a statement of the amount of Operating Expenses for any such parking areas the applicable year and the year prior to the extent such costs are offset by parking area revenuesapplicable year.
(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.
Appears in 1 contract
Samples: Office Lease (Annie's, Inc.)
Exclusions from Operating Expenses. Notwithstanding any term or condition set forth in the foregoing, for purposes of this Exhibit or the provisions of the Master Lease or Sublease to the contraryLease, Operating Expenses shall not include any of the followingnot, however, include:
(ai) Any ground lease rental.bad debt expenses and interest, principal, points and fees on debts (except in connection with the financing of items which may be included in Operating Expenses) or on any mortgage or mortgages or any other debt instrument encumbering the Building, Retail Area and/or the Real Property (including the land on which the Building, Retail Area and/or the Real Property is situated) or any amortization thereon;
(bii) Costs marketing costs, including leasing commissions, attorneys’ fees in connection with the negotiation and preparation of letters, deal memos, letters of intent, leases, subleases and/or assignments, space planning costs, and other costs and expenses incurred by Landlord in connection with respect to goods any lease, sublease and/or assignment negotiations and services (including utilities sold and supplied to transactions with present or prospective tenants and or other occupants of the Building) to the extent that Landlord is entitled to direct reimbursement for such Building and/or Retail Area, including attorneys’ fees and other costs and expenditures incurred in connection with disputes with present or prospective tenants or other than through the operating expense pass-through provisions occupants 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.Retail Area;
(diii) Costsreal estate brokers’ leasing commissions or any other tenant concessions;
(iv) costs, including permit, license and inspection costs, incurred with respect to the installation of tenant other tenants’ or occupants’ improvements made for any tenants or other occupants in the Building and/or Retail Area or incurred in renovating or otherwise improving, decorating, painting or redecorating vacant space for tenants or other occupants in the Building and/or Retail Area;
(v) the cost of providing any service directly to and payable by any tenant; provided, however, Landlord shall directly charge, and enforce its right to collect such direct charges from, tenants for any above-standard services in a nondiscriminatory manner;
(vi) any costs expressly excluded from Operating Expenses elsewhere in this Lease;
(vii) costs of any items (including, but not limited to, costs incurred by Landlord for the repair or damage to the Building, Retail Area or Real Property) to the extent Landlord receives reimbursement from insurance proceeds or would have received reimbursement from insurance proceeds if Landlord had carried the insurance required to be carried by Landlord hereunder (such proceeds to be deducted from Operating Expenses in the year in which they are received or would have been received, as the case may be) or from a third party, such proceeds to be credited to Operating Expenses in the year in which received, except that any deductible amount under any insurance policy (to the extent such deductible is consistent with Landlord’s insurance obligations set forth in Section 10.2 below) shall be included within Operating Expenses; provided, however, that any earthquake repair costs (regardless of whether such costs are covered by insurance), and/or deductible amounts for earthquake and/or terrorism insurance policies carried by Landlord, if any, included in Operating Expenses only to the extent they do not exceed five percent (5%) of the total Operating Expenses (including the costs of any repair or replacement of any items damaged as a result of such earthquake or terrorist act, as the case may be) for any single Expense Year, and to the extent such costs exceed five percent (5%) of the total Operating Expenses for any single Expense Year, such excess costs shall be included in Operating Expenses in the immediately next subsequent Expense Year(s) (but in no event shall such included excess costs exceed five percent (5%) of the total Operating Expenses for any single subsequent Expense Year(s)). To the extent any such earthquake repair costs (regardless of whether such costs are covered by insurance), and/or deductible amounts pertain to costs of repairs or improvements, which costs are included in Operating Expenses pursuant to the foregoing and are capital improvements under generally accepted accounting principles, such costs shall be amortized on a straight line basis (including interest on the unamortized cost) over the reasonably anticipated useful life of such capital item (except in no event shall such anticipated useful life for purposes of this clause (vii) be less than five (5) years or greater than thirty-five (35) years) and shall be subject to the cap of not collectively exceeding five percent (5%) of the total Operating Expenses for any single Expense Year;
(viii) costs of capital improvements, capital repairs or capital replacements, except those specifically permitted (and subject to the conditions contained therein) in clauses (x), (xii) and (xiv) of Section 4.2.5 above or clauses (vii) or (x) of this Section 4.2.5.1;
(ix) rentals and other related expenses for leasing a heating, ventilation and air conditioning system, elevators, or other items (except when needed in connection with normal repairs and maintenance of the Building., Retail Area and/or Real Property) which if purchased, rather than rented, would constitute a capital improvement not included in Operating Expenses pursuant to this Lease;
(ex) Salaries depreciation, amortization and bonuses interest payments, except (A) in connection with capital improvements, capital repairs or capital replacements specifically permitted in clauses (x), (xii) or (xiii) of officersSection 4.2.5 above or clause (vii) of this Section 4.2.5.1, executives and employees of Landlord not employed exclusively at the Building or who are above the level of Building Manager.
(fB) Depreciation and amortization of any type except on materials, tools tools, supplies and supplies vendor-type equipment purchased by Landlord to enable Landlord to supply services for which Landlord might otherwise contract for with a third party, provided such depreciation, amortization and interest payments would otherwise have been included in the charge for such third party’s services, all as determined in accordance with generally accepted accounting practicesprinciples, consistently applied, ; and when provided that in any case where depreciation or amortization is permitted or requiredrequired pursuant to the foregoing, the item shall be amortized on a straight line basis over its reasonably anticipated useful life., even if such life extends beyond the Lease Term;
(gxi) Attorneys’ fees costs incurred by Landlord for alterations (including structural additions), repairs, equipment and other costs tools which are of a capital nature and/or which are considered capital improvements or replacements under generally accepted accounting principles, consistently applied, except as specifically included in Operating Expenses pursuant to clauses (x), (xii), and (xiii) of Section 4.2.5 above or clauses (vii) or (x) of this Section 4.2.5.1;
(xii) expenses incurred in connection with negotiations services, materials or disputes with present other benefits (A) for which Tenant or prospective any other tenants or other occupants of the Building and/or Retail Area are charged directly , or (including costs incurred due to violations by tenants of the terms and conditions of their leases).
(hB) 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 or made available to Tenant, or for which Tenant is charged for directly but which are provided offered and made available to another tenant or occupant other tenants of the Building.Building and/or Retail Area without charge;
(kxiii) Costs costs incurred by Landlord due to the violation by Landlord or any tenant of the terms and conditions of any lease of space in the Building.Building and/or Retail Area;
(lxiv) Any cost representing an amount overhead and profit increment paid to any person, firm, corporation Landlord or other entity related to subsidiaries or affiliated with Landlord, which amount is in excess affiliates of the amount which would have reasonably been paid Landlord for goods and/or services in the absence Building, Retail Area and/or Real Property to the extent the same exceeds the costs of such relationship for comparable work or goods and/or services involving the Building or comparable buildings in the general vicinity of the Building.provided by unaffiliated third parties on a competitive basis;
(m) Interest, points, and fees on debt or amortization on any mortgage or mortgages encumbering the Building and/or the Land.
(nxv) Landlord’s general corporate overhead.overhead and general and administrative expenses;
(oxvi) 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 advertising and promotional expenditures andexpenditures, 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 Retail Area or Real Property 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 and/or Retail Area or assessments for excess valuation are directly billed to and collected from such tenant or occupants.other tenants’ signs;
(sxvii) Penalties and interest electric power costs or other utility costs for which any tenant directly contracts with the local public service company;
(xviii) tax penalties incurred as a result of Landlord’s negligence or negligence, inability or unwillingness to make tax payments or file returns 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.due;
(txix) 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 arising from Landlord’s failure to secure a property tax reduction charitable or political contributions or the payment of Builders and Owners Management Association dues;
(xx) costs of installing, maintaining and operating any specialty service operated by Landlord including without limitation, any luncheon club, communications facility, observatory or athletic facility, and/or the repair thereof;
(xxi) the amounts of the management fee paid or charged by Landlord in connection with the management of the Building, Retail Area and Real Property (including the common areas of the Building, Retail Area and Real Property) to the extent such management fee is in excess of the lesser of (A) management fees customarily paid or charged by landlords of other first-class retail projects that are a reduction was obtained part of office buildings in the Downtown Los Angeles, California area, or (B) three percent (3%) of gross revenues of the Building, Retail Area and Real Property, as such gross revenues are customarily and reasonably calculated by landlords of such first-class retail projects that are a part of office buildings (including the gross-up of such revenues, with such gross-up to be determined assuming all tenants and occupants paying full rent, as opposed to free rent, half rent, partial rent, and the like); provided, however, if the percentage rate used for calculating such management fee (on a percentage of gross revenues basis) included in Operating Expenses for any Expense Year after the Base Year exceeds the applicable percentage rate used for calculating such management fee (on a percentage of gross revenues basis) included in the Base Year, then for each such Expense Year during which such higher percentage rate is so used, such percentage rate for the Base Year (for purposes of establishing calculating the base year or expense stop tax component.Operating Expenses during the Base Year) shall be increased to equal the same percentage rate for such applicable Expense Year;
(xxxii) Incomecosts necessitated by or resulting from the negligence or willful misconduct of Landlord, profitor any of its agents, 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 employees 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 independent contractors including, but not limited to, tax penalties incurred as a result of Landlord’s negligence, inability or unwillingness to make payments or file returns when due;
(xxiii) any ground lease rental or reserves;
(xxiv) costs associated with the operation of the business of the person or entity which constitutes Landlord, as the same are distinguished from the costs of operation and management of the Building, Retail Area and Real Property;
(xxv) costs of any items to the extent Landlord receives reimbursement through warranties or service contracts (such proceeds to be credited to Operating Expenses in the year in which received);
(xxvi) Landlord’s travel expenses;
(xxvii) intentionally omitted;
(xxviii) the following costs and expenses attributable to the Building Parking Areas: (A) the wages and salaries of clean upany clerks, 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 attendants 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 personnel engaged in the operation of any specialty operations or facilities at the Building such as Parking Area and any health fee or exercise club, broadcast facility, rooftop antenna facility, helicopter pad, concierge or compensation paid to 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 operator of the Building or Parking Area; (B) the cost and expense of any comparable buildingdaily and weekly cleaning and maintenance of the Building Parking Area; and (C) the extra cost and expense attributable to any special insurance coverage specifically relating to the operation of the Building Parking Area, as opposed to the general operation of the Building and Real Property; and
(xxix) the costs described in clauses (1) through (4) of Sections 29.31.2 of this Lease.
Appears in 1 contract
Samples: Retail Lease (KBS Real Estate Investment Trust II, Inc.)
Exclusions from Operating Expenses. Notwithstanding any term or condition set forth anything in this Exhibit or the provisions of the Master Lease or Sublease Section 5 to the contrary, for purposes of this Lease, Operating Expenses shall not not, however, include the following: a. costs incurred in connection with the original construction of the Premises; b. except as set forth in item (vii) above, depreciation, interest and principal payments on mortgages and other debt costs, including prepayment fees, late fees, attorney fees, costs of environmental investigations or reports, points, fees, and other lender costs and closing costs on any mortgage or mortgages, if any; c. marketing costs, legal fees, space planners' and architects' fees, advertising and promotional expenses, and brokerage fees incurred in connection with the original development, subsequent improvement, or original or future leasing of the Premises; d. costs for which the Landlord is reimbursed, or would have been reimbursed if Landlord had carried the insurance Landlord is required to carry pursuant to this Lease or would have been reimbursed if Landlord had used commercially reasonable efforts to collect such amounts from its insurer (except to the extent of the insurance deductible); e. any bad debt loss, rent loss, or reserves for bad debts or rent loss or any reserves of any kind; f. costs associated with the operation of the business of the partnership or entity which constitutes the Landlord, as the same are distinguished from the costs of operation of the Premises, including partnership accounting and legal matters, costs of defending any lawsuits with any mortgagee (except as the actions of the Tenant may be in issue), costs of selling, syndicating, financing, mortgaging or hypothecating any of the following:Landlord's interest in the Premises, and costs incurred in connection with any disputes between Landlord and its employees, or between Landlord and Premises management g. the wages and benefits of any employee who does not devote substantially all of his or her employed time to the Premises unless such wages and benefits are prorated to reflect time spent on operating and managing the Premises vis- à-vis time spent on matters unrelated to operating and managing the Premises; h. except as set forth in item (vii) above, late charges, penalties, liquidated damages, interest and other finance charges;
5 52757516.2 i. amount paid as ground rental or as rental for the Premises by the Landlord or under any mortgage or secured loan agreement; j. costs of capital repairs and alterations, capital improvements and capital equipment, except as set forth in item (avii) Any ground lease rental.
(b) Costs incurred above; k. any amount paid by Landlord with respect or to goods the parent organization or a subsidiary or affiliate of the Landlord for supplies and/or services in the Premises to the extent the same exceeds the costs of such supplies and/or services rendered by qualified, first-class unaffiliated third parties on a competitive basis; l. all items and services for which Tenant or any third party reimburses Landlord (including utilities sold the cost of work or materials provided under the enforcement of any warranties held by Landlord); m. tax penalties; n. fees and supplied reimbursements payable to tenants Landlord (including its parent organization, subsidiaries and/or affiliates) or by Landlord for management of the Premises other than the Management Fee; o. any costs expressly excluded from Operating Expenses elsewhere in this Lease; p. Xxxxxxxx's general corporate overhead and occupants general and administrative expenses; q. all assessments and premiums which are not specifically charged to Tenant because of what Tenant has done, which can be paid by Landlord in installments, shall be paid by Landlord in the maximum number of installments permitted by applicable Laws (except to the extent inconsistent with the general practice of landlords of buildings comparable to and in the vicinity 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 shall be included as Operating Expenses in the Building year in which the assessment 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 premium installment is permitted or required, the item shall be amortized over its useful life.
(g) Attorneys’ fees and other actually paid; r. 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 Applicable Law with respect to Sublandlord’s insurance“Hazardous Materials” (as defined in Section 18(A) below), which was in existence in the Premises prior to the Commencement Date; s. in-house legal and/or accounting (as opposed to office building bookkeeping) fees; t. legal fees and costs, settlements, judgments or awards paid or incurred because of disputes between Landlord and Tenant, Landlord and prospective occupants or prospective tenants/occupants, or providers of goods and services to the Premises; u. legal fees and costs concerning the negotiation and preparation of self insurance this Lease or any risk which litigation between Landlord has elected to self insure against and premiums for Tenant; v. any insurance not carried as of the commencement of the Master Lease or Sublease, but subsequently obtained reserves retained 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 Landlord; w. costs arising 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 's charitable 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.political contributions;
Appears in 1 contract
Samples: Lease Agreement (Instil Bio, Inc.)
Exclusions from Operating Expenses. Notwithstanding any term or condition set forth in this Exhibit or the provisions of the Master Lease or Sublease Subparagraph 6.2 above to the contrary, "Operating Expenses Expenses" shall not include any of the followinginclude:
(a) Any 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.persons;
(dc) Costscosts, including permit, license and inspection costs, incurred with respect to the installation of tenant improvements made for any tenants in the Building (including the original Leasehold Improvement for the Premises), or incurred in renovating or otherwise improving, decorating, painting or redecorating vacant space for tenants or other occupants of the Building., including space planning and interior design posts and fees;
(ed) Salaries depreciation, amortization and bonuses of officersinterest payments, executives except as specifically provided herein, 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 tools, supplies and supplies vendor-type equipment purchased by Landlord to enable Landlord to supply services Landlord might otherwise contract for with a third party, where such depreciation, amortization and interest payments would otherwise have been included in the charge for such third party's services, all as determined in accordance with generally accepted standard accounting practices, consistently applied, and when depreciation or amortization is permitted or required, the item shall be amortized over its useful life.;
(ge) Attorneys’ brokerage commissions, finders' fees, attorneys' fees, space planning costs and other costs incurred by Landlord in leasing or attempting to lease space in the Building;
(f) 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 natureBuilding; provided, includinghowever, 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, that Operating Expenses shall include those attorneys’ ' fees and other costs cost and expenses incurred by Landlord in leasing or attempting to lease space in the Building.
(j) Expenses in connection with services negotiations, disputes or other benefitsclaims relating to items of Operating Expenses, which are not offered to Tenant, or for which Tenant is charged for directly but which are provided to another tenant or occupant enforcement of rules and regulations of the Building., and such other matters relating to the maintenance of standards required of Landlord under the Lease; and
(kg) 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 personinterest, firmprincipal, 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, points and fees on debt or amortization on any mortgage mortgage, deed of trust or mortgages other debt encumbering the Building and/or the Landor Site.
(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.
Appears in 1 contract
Exclusions from Operating Expenses. Notwithstanding any term or condition set forth in the foregoing, for purposes of this Exhibit or the provisions of the Master Lease or Sublease to the contraryLease, Operating Expenses shall not include any of the followingnot, however, include:
(ai) Any ground lease rental.bad debt expenses and interest, principal, points and fees on debts (except in connection with the financing of items which may be included in Operating Expenses) or on any mortgage or mortgages or any other debt instrument encumbering the Building and/or the Real Property (including the land on which the Building and/or the Real Property is situated) or any amortization thereon;
(bii) Costs marketing costs, including leasing commissions, attorneys’ fees in connection with the negotiation and preparation of letters, deal memos, letters of intent, leases, subleases and/or assignments, space planning costs, and other costs and expenses incurred by Landlord in connection with respect to goods any lease, sublease and/or assignment negotiations and services (including utilities sold and supplied to transactions with present or prospective tenants and or other occupants of the Building) to , including attorneys’ fees and other costs and expenditures incurred in connection with disputes with present or prospective tenants or other occupants of 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.Building;
(ciii) 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 real estate brokers’ leasing commissions or condemnation proceeds or by tenants, warrantors or any other third parties.tenant concessions;
(div) Costscosts, including permit, license and inspection costs, incurred with respect to the installation of tenant other tenants’ or occupants’ improvements made for any tenants or other occupants in the Building or incurred in renovating or otherwise improving, decorating, painting or redecorating vacant space for tenants or other occupants of in the Building.;
(ev) Salaries the cost of providing any service directly to and bonuses payable by any tenant; provided, however, Landlord shall directly charge, and enforce its right to collect such direct charges from, tenants for any above-standard services in a nondiscriminatory manner;
(vi) any costs expressly excluded from Operating Expenses elsewhere in this Lease;
(vii) costs of officersany items (including, executives and employees of but not limited to, costs incurred by Landlord not employed exclusively at for the repair or damage to the Building or who Real Property) to the extent Landlord receives reimbursement from insurance proceeds or would have received reimbursement from insurance proceeds if Landlord had carried the insurance required to be carried by Landlord hereunder (such proceeds to be deducted from Operating Expenses in the year in which they are above received or would have been received, as the level case may be) or from a third party, such proceeds to be credited to Operating Expenses in the year in which received, except that any deductible amount under any insurance policy (to the extent such deductible is consistent with Landlord’s insurance obligations set forth in Section 10.2 below) shall be included within Operating Expenses; provided, however, that any earthquake repair costs (regardless of Building Manager.whether such costs are covered by insurance), and/or deductible amounts for earthquake and/or terrorism insurance policies carried by Landlord, if any, included in Operating Expenses only to the extent they do not exceed five percent (5%) of the total Operating Expenses (including the costs of any repair or replacement of any items damaged as a result of such earthquake or terrorist act, as the case may be) for any single Expense Year, and to the extent such costs exceed five percent (5%) of the total Operating Expenses for any single Expense Year, such excess costs shall be included in Operating Expenses in the immediately next subsequent Expense Year(s) (but in no event shall such included excess costs exceed five percent (5%) of the total Operating Expenses for any single subsequent Expense Year(s)). To the extent any such earthquake repair costs (regardless of whether such costs are covered by insurance), and/or deductible amounts pertain to costs of repairs or improvements, which costs are included in Operating Expenses pursuant to the foregoing and are capital improvements under generally accepted accounting principles, such costs shall be amortized on a straight line basis (including interest on the unamortized cost) over the reasonably anticipated useful life of such capital item (except in no event shall such anticipated useful life for purposes of this clause (vii) be less than five (5) years or greater than thirty-five (35) years) and shall be subject to the cap of not collectively exceeding five percent (5%) of the total Operating Expenses for any single Expense Year;
(fviii) Depreciation costs of capital improvements, capital repairs or capital replacements, except those specifically permitted (and subject to the conditions contained therein) in clauses (x), (xii) and (xiii) of Section 4.2.5 above or clauses (vii) or (x) of this Section 4.2.5.1;
(ix) rentals and other related expenses for leasing a heating, ventilation and air conditioning system, elevators, or other items (except when needed in connection with normal repairs and maintenance of the Building and/or Real Property) which if purchased, rather than rented, would constitute a capital improvement not included in Operating Expenses pursuant to this Lease;
(x) depreciation, amortization and interest payments, except (A) in connection with capital improvements, capital repairs or capital replacements specifically permitted in clauses (x), (xii) or (xiii) of any type except Section 4.2.5 above or clause (vii) of this Section 4.2.5.1, or (B) on materials, tools tools, supplies and supplies vendor-type equipment purchased by Landlord to enable Landlord to supply services for which Landlord might otherwise contract for with a third party, provided such depreciation, amortization and interest payments would otherwise have been included in the charge for such third party’s services, all as determined in accordance with generally accepted accounting practicesprinciples, consistently applied, ; and when provided that in any case where depreciation or amortization is permitted or requiredrequired pursuant to the foregoing, the item shall be amortized on a straight line basis over its reasonably anticipated useful life., even if such life extends beyond the Lease Term;
(gxi) Attorneys’ fees costs incurred by Landlord for alterations (including structural additions), repairs, equipment and other costs tools which are of a capital nature and/or which are considered capital improvements or replacements under generally accepted accounting principles, consistently applied, except as specifically included in Operating Expenses pursuant to clauses (x), (xii), and (xiii) of Section 4.2.5 above or clauses (vii) or (x) of this Section 4.2.5.1;
(xii) expenses incurred in connection with negotiations services, materials or disputes with present other benefits (A) for which Tenant or prospective any other tenants or other occupants of the Building are charged directly, or (including costs incurred due to violations by tenants of the terms and conditions of their leases).
(hB) 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 or made available to Tenant, or for which Tenant is charged for directly but which are provided offered and made available to another tenant or occupant other tenants of the Building.Building without charge;
(kxiii) Costs costs incurred by Landlord due to the violation by Landlord or any tenant of the terms and conditions of any lease of space in the Building.;
(lxiv) Any cost representing an amount overhead and profit increment paid to any person, firm, corporation Landlord or other entity related to subsidiaries or affiliated with Landlord, which amount is affiliates of Landlord for goods and/or services 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 Real Property to the Land.extent the same exceeds the costs of such goods and/or services provided by unaffiliated third parties on a competitive basis;
(nxv) Landlord’s general corporate overhead.overhead and general and administrative expenses;
(oxvi) 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 advertising and promotional expenditures andexpenditures, 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 or Real Property 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.other tenants’ signs;
(sxvii) Penalties and interest electric power costs or other utility costs for which any tenant directly contracts with the local public service company;
(xviii) tax penalties incurred as a result of Landlord’s negligence or negligence, inability or unwillingness to make tax payments or file returns when due including tax penalties and interest, so long as such penalties due;
(xix) costs arising from Landlord’s charitable or interest do not result from Tenant’s breach of this Sublease political contributions or Tenant’s failure to make timely the payment of any sum due under this Sublease.Builders and Owners Management Association dues;
(txx) Any charge costs of installing, maintaining and operating any specialty service operated by Landlord including without limitation, any luncheon club, communications facility, observatory or expense to athletic facility, and/or the extent that it is materially in excess repair thereof;
(xxi) the amounts of that the management fee paid or charged by landlords for similar buildings Landlord in connection with 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 management of the Building and/or and Real Property (including the Land during the lease term or from any major alterations, improvements, modifications or renovations to common areas of 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 and Real Property) to the extent such management fee is in excess of the lesser of (A) management fees customarily paid or charged by landlords of other first-class office buildings in the Downtown Los Angeles, California area, or (B) three percent (3%) of gross revenues of the Building and Real Property, as such gross revenues are customarily and reasonably calculated by landlords of such first-class office buildings (including the gross-up of such revenues, with such gross-up to be determined assuming all tenants and occupants paying full rent, as opposed to free rent, half rent, partial rent, and the like); provided, however, if the percentage rate used for calculating such management fee (on a reduction was obtained percentage of gross revenues basis) included in Operating Expenses for any Expense Year after the Base Year exceeds the applicable percentage rate used for calculating such management fee (on a percentage of gross revenues basis) included in the Base Year, then for each such Expense Year during which such higher percentage rate is so used, such percentage rate for the Base Year (for purposes of establishing calculating the base year or expense stop tax component.Operating Expenses during the Base Year) shall be increased to equal the same percentage rate for such applicable Expense Year;
(xxxii) Incomecosts necessitated by or resulting from the negligence or willful misconduct of Landlord, profitor any of its agents, 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 employees 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 independent contractors including, but not limited to, tax penalties incurred as a result of Landlord’s negligence, inability or unwillingness to make payments or file returns when due;
(xxiii) any ground lease rental or reserves;
(xxiv) costs associated with the operation of the business of the person or entity which constitutes Landlord, as the same are distinguished from the costs of operation and management of the Building and Real Property;
(xxv) costs of any items to the extent Landlord receives reimbursement through warranties or service contracts (such proceeds to be credited to Operating Expenses in the year in which received);
(xxvi) Landlord’s travel expenses;
(xxvii) the costs of providing non-Business Hours HVAC to tenants of the Building (including Tenant) in an amount equal to the sum of (A) the amount actually paid by Tenant to Landlord for after-hours HVAC usage, plus (B) the amount that would have been paid by other tenants in the Building for such other tenants’ non-Business Hours HVAC usage if such other tenants were charged the hourly rates applicable to Tenant as set forth in Section 6.2 below (regardless of whether such other tenants were charged higher or lower rates or not charged at all for such non-Business Hours HVAC usage and regardless of whether such tenants were billed for such non-Business Hours HVAC and then failed to pay for such non-Business Hours HVAC);
(xxviii) the following costs and expenses attributable to the Building Parking Areas: (A) the wages and salaries of clean upany clerks, 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 attendants 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 personnel engaged in the operation of any specialty operations or facilities at the Building such as Parking Area and any health fee or exercise club, broadcast facility, rooftop antenna facility, helicopter pad, concierge or compensation paid to 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 operator of the Building or Parking Area; (B) the cost and expense of any comparable buildingdaily and weekly cleaning and maintenance of the Building Parking Area; and (C) the extra cost and expense attributable to any special insurance coverage specifically relating to the operation of the Building Parking Area, as opposed to the general operation of the Building and Real Property; and
(xxix) the costs described in clauses (1) through (4) of Sections 29.31.2 of this Lease.
Appears in 1 contract
Samples: Office Lease (KBS Real Estate Investment Trust II, Inc.)
Exclusions from Operating Expenses. Notwithstanding any term or condition set forth in this Exhibit or the provisions of the Master Lease or Sublease Subparagraph 6.2 above to the contrary, "Operating Expenses Expenses" shall not include any of the followinginclude:
(a) Any 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.persons;
(dc) Costscosts, including permit, license and inspection costs, incurred with respect to the installation of tenant improvements made for any tenants in the Building (including the original Leasehold Improvements for the Premises), or incurred in renovating or otherwise improving, decorating, painting or redecorating vacant space for tenants or other occupants of the Building., including space planning and interior design costs and fees;
(ed) Salaries depreciation, amortization and bonuses of officersinterest payments, executives except as specifically provided herein, 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 tools, supplies and supplies vendor-type equipment purchased by Landlord to enable Landlord to supply services Landlord might otherwise contract for with a third party, where such depreciation, amortization and interest payments would otherwise have been included in the charge for such third party's services, all as determined in accordance with generally accepted standard accounting practices, consistently applied, and when depreciation or amortization is permitted or required, the item shall be amortized over its useful life.;
(ge) Attorneys’ brokerage commissions, finders' fees, attorneys' fees, space planning costs and other costs incurred by Landlord in leasing or attempting to lease space in the Building;
(f) 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 natureBuilding; provided, includinghowever, 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, that Operating Expenses shall include those attorneys’ ' fees and other costs and expenses incurred by Landlord in leasing or attempting to lease space in the Building.
(j) Expenses in connection with services negotiations, disputes or other benefitsclaims relating to items of Operating Expenses, which are not offered to Tenant, or for which Tenant is charged for directly but which are provided to another tenant or occupant enforcement of rules and regulations of the Building., and such other matters relating to the maintenance of standards required of Landlord under the Lease; and
(kg) 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 personinterest, firmprincipal, 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, points and fees on debt or amortization on any mortgage mortgage, deed of trust or mortgages other debt encumbering the Building and/or the Landor Site.
(n) Landlord’s general corporate overhead.
(o) Subject to the provision set forth in subparagraph (h) aboveany expenses resulting from environmental damage, rental payments incurred in leasing air conditioning systemsnot caused by this tenant, 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 but caused by another tenant or occupants.
(s) Penalties and interest incurred as a result negligence 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.
(yi) Costs 000 Xxxxxxxxx Xxxx Xxxx. is in compliance with all applicable building codes and regulations. Tenant's share 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”) Operating Expenses during the term 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 lease 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 exceed 10% of the Building or any comparable buildingprior years expenses paid by Tenant.
Appears in 1 contract
Exclusions from Operating Expenses. Notwithstanding Despite any term or condition set forth in this Exhibit or the provisions other provision of the Master Lease or Sublease to the contrarysubsection 5.2.4, Operating Expenses shall not include any of the followinginclude:
(a) Any Depreciation on the Building, Premises and improvements, interest, or amortization on mortgages or ground lease rentalpayments.
(b) Costs Legal fees incurred by Landlord with respect to goods in negotiating 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 reimbursementenforcing tenant leases.
(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 partiesReal estate brokers' leasing commissions.
(d) Costs, including permit, license and inspection costs, incurred with respect Improvements 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 Buildingspaces.
(e) Salaries The cost of providing any service directly to and bonuses of officers, executives and employees of Landlord not employed exclusively at the Building or who are above the level of Building Managerpaid directly by any tenant.
(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 Any costs expressly excluded from Operating Expenses elsewhere 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 lifethis Lease.
(g) Attorneys’ fees and other costs and expenses incurred Costs of any items for which Landlord receives reimbursement from insurance proceeds or a third party. Insurance proceeds shall be excluded from Operating Expenses 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)year in which they are received, except that any deductible amount under any insurance policy shall be included within Operating Expenses.
(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 except as set forth otherwise stated in Article 5 of the Master Lease all as determined in accordance with generally accepted accounting practices, consistently appliedthis section 5.2.
(i) Brokerage commissions, finders’ fees, attorneys’ fees and Payments to Landlord's subsidiaries or affiliates for management or other costs incurred by Landlord in leasing services on or attempting to lease space in the Building, including insurance, or for supplies or other materials to the extent that the cost of the services, supplies, or materials exceeds the cost that would have been paid had the services, supplies, or materials been provided by unaffiliated parties on an arm's length basis.
(j) Expenses in connection with services All rental and other payments due under any ground or other benefits, which are not offered to Tenantunderlying lease, 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 for 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, nature (except janitorial equipment which is not affixed to the any Building which is used and equipment leased in providing janitorial, parking lot maintenance, window washing or similar servicesorder to reduce operating expenses.)
(pk) Advertising and promotional expenditures andAny compensation paid to clerks, except for the Building directory and interior signs identifying retail use tenants and signage for various equipment room and common areasattendants, 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 persons 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 commercial concessions operated by Landlord.
(yl) Costs Wages, salaries, or other compensation paid to any executive employees above the grade of correcting defects in construction or equipment or in replacing defective equipmentbuilding manager.
(zm) Any and all The cost of correcting any building code or other violations which were in effect on or prior to the Commencement Date, unless occasioned by Tenant's special use of the Premises or Alterations.
(n) Increased or incremental costs of Landlord in complying with its obligations under Article 5(b) (entitled “Compliance with Law”) caused by Landlord's breach of this Lease, gross negligence or willful misconduct, including any fines or penalties due to violation of law or regulation.
(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.
Appears in 1 contract
Samples: Office Lease (Quokka Sports Inc)
Exclusions from Operating Expenses. Notwithstanding any term or condition set forth in this Exhibit or the provisions of the Master Lease or Sublease Section 7.2 to the contrary, Operating Expenses shall not include any of exclude the following:
(ai) Any ground lease rentalCosts of repairs, replacements or other work occasioned by fire, windstorm or other casualty to the extent of the greater of the amount actually covered by insurance or the amount of insurance that Landlord is required to maintain under this Lease (excluding commercially reasonable deductibles), or by the exercise by governmental authorities of the right of eminent domain.
(bii) Costs Leasing commissions, attorney's fees, costs, disbursements and other expenses incurred by Landlord or its agents in connection with respect to goods and services (including utilities sold and supplied to leases with other tenants, other occupants or prospective tenants and or other occupants of the Building) to Building and the extent that Landlord is entitled to direct reimbursement for such Project, and similar costs incurred in connection with and/or enforcement of any leases with other than through tenants, other occupants, or prospective tenants or other occupants of the operating expense pass-through provisions of such tenants’ leases or which Landlord provides selectively to one or more, but not all, tenants without reimbursementBuilding and the Project.
(ciii) 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 Tenant allowances," "tenant concessions," work letters, and other costs or condemnation proceeds or by tenants, warrantors or other third parties.
expenses (d) Costs, including permit, license and inspection costs, incurred with respect to the installation of tenant improvements made for any tenants in the Building fees but not including such costs or expenses incurred in connection with any Common Facilities) incurred in completing, fixturing, furnishing, renovating or otherwise improving, decorating, painting decorating or redecorating vacant space for other tenants or other occupants of the Building and the Project, or vacant, leasable space in the Building, including space planning/interior design fees for same.
(eiv) Salaries Costs of correcting material defects, including any allowances for same, in the original construction of the Building (including latent defects) or equipment used therein (or the replacement of defective equipment).
(v) Costs (including fines, penalties and bonuses legal fees) incurred due to the knowing and willful violation by Landlord, its employees, agents and/or contractors, of officers, executives any terms and employees conditions of Landlord not employed exclusively at this Lease or of the leases of the other tenants in the Building or who are above the level Project, and/or of Building Managerany Applicable Laws that would not have been incurred but for such violation by Landlord, its employees, agents and/or contractors.
(fvi) Payments in respect of overhead and/or profit to any subsidiary or affiliate of Landlord as a result of a non-competitive selection process for services (other than property and construction management fees) on or to the Building or the Project, or for goods, supplies or other materials, to the extent that the costs of such services, goods, supplies and/or materials exceed the costs that would have been paid had the services, goods, supplies or materials been provided by parties unaffiliated with Landlord of similar skill, competence and experience, on a competitive basis.
(vii) Payments of principal, finance charges or interest on debt or amortization on any mortgage or deed of trust encumbering the Building or the Project, and rental payments (or increases in same) under any ground or underlying lease or leases (except to the extent the same may be made to pay or reimburse, or may be measured by, Real Property Taxes).
(viii) Except for property and construction management fees, and the administrative fee to Landlord set forth in Section 7.2, costs of Landlord's general overhead and general administrative expenses (individual, partnership or corporate, as the case may be), which costs would not be chargeable to Operating Expenses of the Building or the Project in accordance with generally accepted accounting principles, including, without limitation, all costs related to accounting and audit services by certified public accountants for Landlord and its affiliates (excepting accounting and audit services necessary to satisfy normal property management requirements). [*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED. 20
(ix) Compensation paid to clerks, attendants or other persons in commercial concessions (such as a snack bar, restaurant or newsstand), if any, operated by Landlord or any subsidiary or affiliate of Landlord.
(x) Advertising and promotional expenses.
(xi) Costs for which Landlord is directly reimbursed by insurance.
(xii) Depreciation and amortization of on the Building, the Project or any type equipment or materials used by Landlord or Landlord's manager in conjunction therewith, except on materials, tools and supplies equipment or materials purchased by Landlord to enable Landlord to supply services Landlord might otherwise contract for with a third party, where such depreciation would otherwise have been included in the charge for such third party's services, all as determined in accordance with generally accepted accounting practicesprinciples, consistently applied, and when depreciation or amortization is permitted or required, the item shall be amortized over its reasonably anticipated 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).
(hxiii) 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 except those set forth in Article 5 of the Master Lease all as determined in accordance with generally accepted accounting practices, consistently appliedSection 7.2(xi).
(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.
Appears in 1 contract
Samples: Office Lease (Allos Therapeutics)
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 the following: (i) Real Estate Taxes; (ii) principal or interest payments on any Mortgages; (iii) leasing commissions or legal fees with respect to the negotiation of any tenant lease; (iv) the costs of special services and utilities separately charged to particular tenants of the following:
Building; (av) Any ground lease rental.
payments; (bvi) Costs advertising and promotional expenses directly relating to leasing; (vii) costs for which Landlord can be or will be reimbursed by insurance proceeds, tenants of the Building (other than such tenants’ regular contributions to Operating Expenses) or any other source; (viii) legal fees incurred for collecting rents; (ix) costs directly and solely related to the maintenance and operation of the entity that constitutes the Landlord, such as accounting fees incurred for the purpose of reporting Landlord’s financial condition; (x) costs of repairs, replacements or other work occasioned by fire, windstorm or other casualty, or the exercise by governmental authorities of the right of eminent domain (except a commercially reasonable deductible); (xi) leasing commissions, attorney’s fees, costs, disbursements and other expenses incurred by Landlord or its agents in connection with respect to goods and services (including utilities sold and supplied to negotiations for leases with tenants, other occupants or prospective tenants and or other occupants of the Building) to the extent that Landlord is entitled to direct reimbursement for such , and similar costs other than through the operating expense pass-through provisions incurred in connection with disputes with and/or enforcement of such tenants’ any 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 with tenants, warrantors other occupants, or prospective tenants or other third parties.
occupants of the Building; (dxii) Costs, “Tenant or tenant allowances,” “Tenant or tenant concessions,” and other costs and expenses (including permit, license and inspection costs, incurred with respect to the installation of tenant improvements made for any tenants in the Building or fees) incurred in connection with completing, fixturing, furnishing, renovating or otherwise improving, decorating, painting decorating or redecorating vacant space leased premises for tenants or other occupants of the Building.
, or vacant, leasable space in the Building, including space planning/interior architecture fees and/or engineering for same; (exiii) Salaries and bonuses of officerscosts or expenses (including fines, 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 materialspenalties, 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’ legal fees and premium deductibles) incurred due to the negligence or violation (as compared to compliance costs, which are included in Operating Expenses as provided above) by Landlord, its agents, any tenant (other costs and expenses incurred in connection with negotiations or disputes with present or prospective tenants than Tenant) or other occupants occupant of the Building (including costs incurred due to violations by tenants of the any terms and conditions of their leases).
this Lease or of the leases of other tenants in the Building, and/or of any valid applicable laws that would not have been incurred but for such violation by Landlord, its agent, tenant, or other occupant, it being intended that each party shall be responsible for the costs resulting from its violation of such leases and laws; provided that reasonable attorneys fees to enforce rules and regulations for the Building shall be included in Operating Expenses; (hxiv) Costs of a capital naturepenalties for any late payment by Landlord, including, without limitation, capital improvementstaxes and equipment leases; (xv) compensation paid to clerks, capital replacementsattendants or other persons in commercial concessions (such as a snack bar, capital repairsrestaurant or newsstand, capital equipment and capital toolsbut not including Building amenities such as a fitness center or parking facilities); (xvi) Landlord’s contributions to charitable organizations; (xvii) costs of correcting defects, and including any improvements or alterations incurred to comply with any applicable Legal Requirements as set forth allowances for same, in Article 5 the construction of the Master Lease all as determined in accordance with generally accepted accounting practices, consistently applied.
Building; (ixviii) 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 (including electricity), items or other benefits, benefits of a material type which are not offered available to Tenantor provided to Tenant without specific charge therefor, or for which Tenant is charged for directly but which are provided to another tenant or occupant of the Building.
, whether or not such other tenant or occupant is specifically charged therefor by Landlord; (kxix) Costs costs or expenses for sculpture, paintings or other works of art, including costs incurred with respect to the purchase, ownership, leasing, showing, promotion, securing, repair and/or maintenance of same, other than normal building decorations customary in buildings comparable to the Building; (xx) costs arising from the presence of Hazardous Materials in, about or below the Land or the Building (including any Hazardous Materials brought to, deposited on or disposed of at the Building by Landlord due to or Landlord’s Agents) (but excluding those Hazardous Materials utilized in connection with the violation by Landlord operation, maintenance and repair of the terms Building in the ordinary course and conditions those brought, deposited or disposed of any lease by Tenant or Tenant’s Agents with respect to its use or occupancy of space in the Building.
); (lxxi) Any the cost representing an amount of any capital improvement or other capital expenditure, except as permitted under Section 7.2(6) above; (xxii) costs of providing electricity and other services (including excess HVAC) sold or provided to tenants in the Building (including Tenant) and for which Landlord is entitled to be reimbursed by such tenants as a separate additional charge or rental; (xxiii) costs necessitated by or resulting from the negligence or willful misconduct of Landlord or Landlord’s agents, employees or contractors; (xxiv) salaries, expenses, fringe benefits and other compensation paid or provided to employees of Landlord who are not assigned to the operation, management, maintenance or repair of the Building, provided that Operating Expenses shall include Landlord’s reasonable allocation of compensation paid to any personemployees who are assigned part-time to the operation, firmmaintenance, corporation or repair of the Building but in no event shall Operating Expenses include wages, salaries, fringe benefits or other entity compensation for executive or other personnel above the grade of chief engineer or property/building manager; (xxv) amounts paid to related to corporations, entities or affiliated with Landlord, persons which amount is are in excess of the amount which would have reasonably been paid in usual and customary fair market value of the absence of such relationship for comparable work goods or services involving the Building or comparable involved paid by similar landlords for similar first class office buildings in the general vicinity of the Building.
Herndon, Virginia area; (mxxvi) Interest, points, and fees on debt costs or amortization on payments associated with Landlord’s obtaining air rights or other development rights; (xxvii) any mortgage expenses for repairs or mortgages encumbering the Building and/or the Land.
maintenance which are reimbursable through warranties or services contracts; (nxxviii) Landlord’s general personal and corporate overhead.
income, franchise, excess profits and similar taxes on Landlord’s business; (oxxix) Subject to costs associated with any retail spaces in the provision set forth in subparagraph Building; (hxxx) above, rental payments incurred in leasing air conditioning systems, elevators or other equipment ordinarily considered to be increased insurance premiums caused by the uses of a capital nature, except equipment not affixed to the Building which is used in providing janitorialmade by any other tenant or the negligence or willful misconduct of any other tenant; (xxxi) any cost or charge for Landlord’s income taxes, parking lot maintenanceexcess profits taxes, window washing or similar services.
franchise taxes; and (pxxxii) 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 expenses to Landlord in curing any defects or performing work which Landlord is obligated expressly provided in the Lease 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 be borne 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 interestexpense. In addition, 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 in the calculation of any sum due costs or expenses under this Sublease.
(t) Any charge or expense to the extent that Article 7, it is materially in excess of expressly understood 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 no cost or expense which, under generally accepted accounting principles consistently applied, would not shall be considered to be an operating expense of the Building or any comparable buildingcharged more than once.
Appears in 1 contract
Samples: Deed of Lease (Xo Holdings Inc)
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, The following shall be additional exclusions from Operating Expenses shall not include any of under the followingLease:
(a) Any ground lease rental.reserves for repairs, maintenance and replacements;
(b) Costs incurred by Landlord costs or expenses associated 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 leasing space in the Building 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 sale 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 interest 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 naturebuilding, including, without limitation, capital improvementsadvertising and marketing, capital replacementscommissions or any amounts paid for or on behalf of a Tenant such as space planning, capital moving costs, rental and other tenant concessions;
(c) salaries, wages, or other compensation paid to employees of any property management organization whose salaries are deemed covered by a management fee (i.e., property manager, accounting or clerical personnel);
(d) costs of electricity outside normal business hours sold to other tenants of the Building by Landlord or any other special service to other tenants or service in excess of that furnished to Tenant or which are over and above the rent and escalations payable under the lease agreement with that tenant (including without limitation after hour HVAC costs) whether or not Landlord receives reimbursement from such tenants as an additional charge;
(e) expenses for repairs, capital equipment and capital tools, and any replacements or improvements or alterations incurred to comply with any applicable Legal Requirements as set forth in Article 5 arising from the initial construction of the Master Lease all as determined in accordance with generally accepted accounting practices, consistently applied.
Building to the extent such expenses are either (i) Brokerage commissions, finders’ fees, attorneys’ fees reimbursed to Landlord by virtue of warranties from contractors or suppliers or (ii) result by reason of deficiencies in design or workmanship except conditions resulting from ordinary wear and other costs incurred by Landlord in leasing or attempting to lease space in the Building.tear;
(jf) Expenses in connection with services or other benefits, any costs which are not offered to Tenant, in excess of arms length competitive market prices for goods 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 services including any lease of space in the Building.
(l) Any cost representing an amount amounts paid to any person, firmfirm or corporation related or otherwise affiliated with Landlord or any general partner, corporation officer or director of Landlord or any of its general partners;
(g) accounting or legal fees incurred in tenant disputes, or in procuring tenants, or for fees not related to the operation and maintenance of the Building but personal to Landlord;
(h) all costs shall be "net" only and shall be reduced by the amount of insurance (or the amount of reimbursement if Landlord would have maintained insurance per Landlord's requirements in the Lease), condemnation awards or other entity related reimbursement, recoupment, payment, discount, warrantee, guarantee or allowance received by Landlord;
(i) cost of renovating or otherwise improving space for new tenants or in renovating space vacated by any tenant or any other work which Landlord performs for any tenant;
(j) costs relating to maintaining Landlord's existence, either as a corporation, partnership, or affiliated other entity, such as trustee's fees, annual fees, partnership organization or administration expenses, deed recordation expenses, legal and accounting fees (other than with respect to Building operations);
(k) interest or penalties arising by reason of Landlord's failure to timely pay any Operating Expenses or Real Estate Taxes;
(l) compensation paid to clerks, which amount is attendants, sales persons or other persons on or in excess of the amount which would have reasonably been paid commercial concessions operated in the absence of such relationship for comparable work or services involving the Building or comparable buildings in the general vicinity of the Building.building;
(m) Interestcosts incurred to contain, pointsencapsulate, and fees on debt remove, or amortization on remedy any mortgage hazardous or mortgages encumbering toxic wastes, materials or substances from either the Building and/or or Land or any tests or surveys obtained in connection with the Land.above;
(n) costs incurred due to Landlord’s general corporate overhead.'s violation of any term or condition of this Lease or any other lease relating to the Building or any law, ordinance or governmental rule or regulation affecting the Building;
(o) Subject to the provision set forth in subparagraph (h) above, rental payments and other expenses incurred in leasing air conditioning condition systems, elevators or other equipment ordinarily considered to be of a capital naturenature under generally accepted accounting principles, except equipment used in providing janitorial services when such equipment is not affixed to the Building which is used in providing janitorial, parking lot maintenance, window washing or similar services.Building;
(p) Advertising and promotional expenditures and, except for the cost of correcting any code violations in the Building directory and interior signs identifying retail use tenants and signage for various equipment room and common areas, costs which were violations prior to the commencement date of signs in or on the Building and/or the Land identifying the owner or any tenant of the Building.this Lease;
(q) Costs costs for acquisitions of overtime sculpture, paintings 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 objects of ordinary diligence.art;
(r) Taxes title insurance, automobile insurance, key man and assessments attributable other life insurance, long-term disability insurance and health, accident and sickness insurance, excepting only group plans providing reasonable benefits to persons of the tenant improvements grade of tenants or occupants building manager and below employed in the operation and management of the Building which are assessed at a valuation higher than (provided that the valuation at which cost of insurance with respect to any such employee dividing his or her time between the Building standard tenant improvements are assessed to the extent that and any other buildings shall be apportioned pro rata among all such taxes or assessments for excess valuation are directly billed to and collected from such tenant or occupants.buildings);
(s) Penalties and interest incurred as a result the cost of Landlord’s negligence removal of radon 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 CFC's from Tenant’s breach of this Sublease or Tenant’s failure to make timely payment of any sum due under this Sublease.the Building;
(t) Any charge any expense that under generally accepted accounting principles would not be considered a normal maintenance 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.operating expense;
(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, giftinheritance, estate, succession, inheritance, foreign ownership, foreign control, transfer, gift tax, or 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 levy shall not be included in Operating Expenses.
(ff) Parking area maintenance, operating costs and real estate taxes for any such parking areas to and further, no franchise, corporation, income or profit tax calculated upon 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.Landlord's net income be
Appears in 1 contract
Samples: Lease Agreement (V One Corp/ De)
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 contraryforegoing, Operating Expenses shall not include any include: (1) capital expenditures (other than Permitted Capital Expenditures); (2) costs of the following:
special services rendered to individual tenants (aincluding Tenant) Any for which a special charge is made; (3) ground lease rental.
; (b4) Costs incurred interest or principal payments on indebtedness, debt amortization or ground rent paid by Landlord in connection with respect to goods and services any mortgages, deeds of trust or other financing encumbrances, or ground leases of the Building, the Project or other real property owned by Landlord; (5) costs of tenant improvements (including utilities sold the cost of permits, approvals and supplied inspections) for Tenant or other tenants of the Building; (6) costs of services or other benefits of a type which are not available to Tenant but which are provided to other tenants and or occupants of the Building) to the extent that Landlord is entitled to direct reimbursement , and costs 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 other tenants of the Building other than through payment of tenants’ shares of Operating Expenses and Taxes; (7) leasing commissions, warrantors or other third parties.
(d) Costs, including permit, license and inspection marketing costs, incurred with respect to the installation of tenant improvements made for any tenants in the Building or incurred in renovating or otherwise improvingadvertising costs, decoratinglegal, painting or redecorating vacant space for tenants or other occupants of the Building.
(e) Salaries auditing, consulting 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’ professional fees and other costs and fees costs, or expenses incurred in connection with negotiations (a) financings, refinancing or disputes with present or prospective tenants or other occupants sale of the Building Building, or any interest in Landlord or in the Building, or (including costs incurred due to violations by tenants of the terms and conditions of their leases).
b) any ground lease (h) Costs of a capital nature, including, without limitation, capital improvementsrecording costs, capital replacementsmortgage recording taxes, capital title insurance premiums and other similar costs), or (c) enforcement of leases or other landlord/tenant proceedings, or (d) the defense of Landlord’s title to or interest in the Building; (8) depreciation or amortization, other than as allowed in clause (l) in the definition of Operating Expenses; (9) the cost of repairs or other work as a result of any fire or other casualty; (10) the cost of repairs, capital equipment and capital tools, and any improvements replacements 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.
rebuilding necessitated by condemnation or eminent domain; (i11) Brokerage commissions, finders’ fees, attorneys’ fees and other costs incurred by Landlord in leasing to remediate 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 remove Hazardous Materials from the Building or comparable buildings in the general vicinity of the Building.
Project (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 arise from actions in the nature of ordinary cleaning, repair and replacement costs maintenance activities and not in violation of any permanent landscaping, water features, fountains, artwork, sculptures Environmental Laws) and other decorative treatments. (hh) Contributions which were not brought 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 Project by Tenant; (12) costs, fines or penalties incurred due to Landlord’s violation of Applicable Laws (but not excluding the cost of compliance that is allowed above in the definition of Operating Expenses); (13) overhead and profit increment paid to Landlord or to subsidiaries or affiliates of Landlord for goods or services to the extent the same exceeds the costs of such goods or services rendered by unaffiliated third parties on a competitive basis; (14) the cost of any comparable building.electric power for which any tenant directly contracts with the local public service company or for which any tenant is separately metered or sub-metered and pays Landlord directly; (15) costs arising from the negligence or intentional misconduct of other tenants or Landlord, its employees or agents; (16) Landlord’s charitable or political contributions; (17) costs paid by warranties in effect with respect to Building systems;
Appears in 1 contract
Samples: Deed of Lease (Appian Corp)
