Operating Expense Exclusions. The term “Operating Expenses” shall not include: (i) legal and auditing fees (other than those fees reasonably incurred in connection with the maintenance and operation of all or any portion the Premises and included as part of the property management fee); (ii) depreciation of the Building or any other improvements situated within the Premises; (iii) any items for which Landlord is actually reimbursed by insurance; (iv) costs of repairs or other work necessitated by casualty (excluding any deductibles) and/or costs of repair or other work necessitated by the exercise of the right of eminent domain to the extent insurance proceeds or a condemnation award, as applicable, is actually received by Landlord for such purposes; provided, such costs of repairs or other work shall be paid by the parties in accordance with the provisions of Sections 25 and 26, below; (v) other than any interest charges for capital improvements referred to in Section 6.1.1(iv) hereinabove, any interest or payments on any financing for the Building or the Premises, interest and penalties incurred as a result of Landlord’s late payment of any invoice (except to the extent resulting from Tenant’s failure to pay Operating Expenses and Tax Expenses to Landlord when due as set forth herein), and any bad debt loss, rent loss or reserves for same; (vi) costs associated with the investigation and/or remediation of Hazardous Materials (hereafter defined) present in, on or about any portion of the Premises, unless such costs and expenses are the responsibility of Tenant as provided in Section 27 hereof, in which event such costs and expenses shall be paid solely by Tenant in accordance with Section 27 hereof; (vii) overhead and profit increment paid to Landlord or to subsidiaries or affiliates of Landlord for goods and/or services in the Premises to the extent the same exceeds the costs of such by unaffiliated third parties on a competitive basis; or any costs included in Operating Expenses representing an amount paid to any entity related to Landlord which is in excess of the amount which would have been paid in the absence of such relationship; (viii) any payments under a ground lease or master lease; (ix) costs of advertising and promotional expenditures for the Property; (x) any fines or penalties incurred solely and directly as a result of actual violations by Landlord of any governmental rule or authority for which Landlord is responsible hereunder; (xi) costs for sculpture, paintings or other objects of art; (xii) costs attributable to repairing items that are covered by warranties from third parties; (xiii) costs associated with the operation of the business of the entity which constitutes Landlord, as the same are distinguished from the cost of operating the Property, including partnership accounting and legal matters, costs of defending any lawsuits with any mortgagee or lender, costs of selling, syndicating, financing, mortgaging or hypothecating any of Landlord’s interest in the Property or the Building and disputes of Landlord with the property management company managing the Property; (xiv) costs occasioned by the act, omission or violation of any Law by Landlord, or its agents, employees or contractors; (xv) costs which could properly be capitalized under generally accepted accounting principles, except to the extent amortized as provided in Section 6.1.1(iv) above; and (xvi) earthquake insurance deductibles in excess of One Hundred Thousand Dollars ($100,000).
Appears in 1 contract
Samples: Lease Agreement (Infinera Corp)
Operating Expense Exclusions. The term “Operating Expenses” shall not include: (i) costs (including permit, license, and inspection fees) incurred in renovating, improving or decorating vacant space or space for other tenants within the Project; (ii) costs incurred because Landlord or another tenant actually violated the terms and conditions of any lease within the Project or any disputes between Landlord and another tenant; (iii) legal and auditing fees (other than those fees reasonably incurred in connection with the maintenance and operation of all or any portion the Premises Project), leasing commissions, advertising expenses, and included as part other costs incurred in connection with the original leasing of the property management fee)Project or future re-leasing of any portion of the Project; (iiiv) depreciation of the Building or any other improvements situated within the PremisesProject; (iiiv) any items for which Landlord is actually reimbursed by insurancereimbursed; (ivvi) costs of repairs or other work necessitated by casualty (excluding any deductibles) and/or costs of repair or other work necessitated by the exercise of the right of eminent domain to the extent insurance proceeds or a condemnation award, as applicable, is actually received by Landlord for such purposes; provided, such costs of repairs or other work shall be paid by the parties in accordance with the provisions of Sections 25 and 26, below; (vvii) other than any interest charges for capital improvements referred to in Section 6.1.1(iv) hereinabove, any interest or payments on any financing for the Building or the PremisesPark, interest and penalties incurred as a result of Landlord’s late payment of any invoice (except to the extent resulting from provided that Tenant pays Tenant’s failure to pay Share of Operating Expenses and Tax Expenses to Landlord when due as set forth herein), and any bad debt loss, rent loss or reserves for same; (viviii) costs associated with the investigation and/or remediation of Hazardous Materials (hereafter defined) present in, on or about any portion of the PremisesProject, unless such costs and expenses are the responsibility of Tenant as provided in Section 27 hereof, in which event such costs and expenses shall be paid solely by Tenant in accordance with Section 27 hereof; (viiix) Landlord’s cost for the repairs and maintenance items set forth in Section 11.3; (x) overhead and profit increment paid to Landlord or to subsidiaries or affiliates of Landlord for goods and/or services in the Premises Project to the extent the same exceeds the costs of such by unaffiliated third parties on a competitive basis; or any costs included in Operating Expenses representing an amount paid to any entity related to Landlord which is in excess of the amount which would have been paid in the absence of such relationship; (viiixi) any payments under a ground lease or master lease; (ix) costs of advertising and promotional expenditures for the Property; (x) any fines or penalties incurred solely and directly as a result of actual violations by Landlord of any governmental rule or authority for which Landlord is responsible hereunder; (xi) costs for sculpture, paintings or other objects of art; (xii) costs attributable executive salaries or salaries of service personnel to repairing items the extent that are covered by warranties from third partiessuch personnel perform services not in connection with the operation, repair, or maintenance of the Park; (xiii) costs associated with of correcting defects in the operation initial design or construction of the business of Building or any other improvements to the entity which constitutes Landlord, as the same are distinguished from the cost of operating the Property, including partnership accounting and legal matters, costs of defending any lawsuits with any mortgagee or lender, costs of selling, syndicating, financing, mortgaging or hypothecating any of Landlord’s interest in the Property or the Building and disputes of Landlord with the property management company managing the PropertyPark; (xiv) costs occasioned directly necessitated by or directly resulting from the act, omission or violation gross negligence of any Law by Landlord, its agents or its agents, employees or contractorsemployees; (xv) costs which could properly be capitalized under generally accepted accounting principles, except of special services provided to other tenants of the extent amortized as provided in Section 6.1.1(iv) aboveBuilding but not to Tenant; and (xvi) earthquake insurance deductibles except as otherwise provided in excess Section 6.1.1 of One Hundred Thousand Dollars ($100,000)this Lease, the cost of any capital improvements.
Appears in 1 contract
Samples: Lease Agreement (Gsi Group Inc)
Operating Expense Exclusions. The term “Operating Expenses” Expenses shall not includeinclude any item of expense that was not included in Base Year Operating Expenses without Landlord providing a reasonable explanation for the necessity to do so and obtaining Tenant’s consent, which consent shall not be unreasonably withheld, conditioned or delayed. Operating Expenses shall not include (i) specific costs for any capital repairs, replacements or improvements, except as provided above; (ii) expenses for which Landlord is reimbursed or indemnified (either by an insurer, condemnor, tenant, warrantor or otherwise) to the extent of funds received by Landlord; (iii) expenses incurred in leasing or procuring tenants (including lease commissions, advertising expenses and expenses of renovating space for tenants); (iv) payments for rented equipment, the cost of which would constitute a capital expenditure not permitted pursuant to the foregoing if the equipment were purchased; (v) interest or amortization payments on any mortgages or deeds of trust; (vi) net basic rents under ground or underlying leases; or (vii) costs specially billed to and paid by specific tenants. There shall be no duplication of costs or reimbursements. Operating Expenses shall not include the following: A. any expenditure (including, without limitation, the rental or purchase cost of any improvement, part, supply, tool, item of equipment, or repair) that would be deemed a capital expenditure under generally accepted accounting principles (“GAAP”), except any such expenditure that: (i) legal and auditing fees is incurred primarily to reduce current or future operating expense costs or otherwise improve the operating efficiency of the Property (provided that such savings are not primarily for the benefit of any particular tenant other than those fees reasonably incurred in connection with the maintenance and operation of all or any portion the Premises and included as part of the property management feeTenant) (“Cost-Saving Expenditures”); (ii) depreciation is required to comply with any Laws that are enacted, or first interpreted to apply to the Property, after the date of the Building or any other improvements situated within the PremisesLease (“Code-Required Expenditures”); (iii) is covered by any items for which Landlord insurance deductible that is actually reimbursed by insurance; not excluded from Expenses pursuant to subparagraph B below or (iv) costs of repairs or other work necessitated is incurred to repair damage from a Casualty for which insurance is available but not maintained by casualty (excluding any deductibles) and/or costs of repair or other work necessitated by the exercise of the right of eminent domain Landlord, but only to the extent insurance proceeds or of an amount equal to a condemnation award, as applicable, commercially reasonable deductible for such insurance. Any capital expenditure that is actually received deemed an Expense pursuant to clause (i) of the first sentence of this subparagraph A (and not pursuant to any other provision hereof) shall be amortized by Landlord over such period as may be selected by Landlord provided that the annual amortized portion of such expenditure shall not exceed the actual cost savings generated by the item for which such purposesexpenditure was incurred. Any capital expenditure that is deemed an Expense pursuant to clause (ii) of the first sentence of this subparagraph A shall be amortized by Landlord over the actual useful life of the item for which such expenditure was incurred (as reasonably determined by Landlord in accordance with GAAP); provided, however, that if such item generates a costs of repairs or other work shall be paid by the parties in accordance with the provisions of Sections 25 and 26savings, below; (v) other than any interest charges for capital improvements referred to in Section 6.1.1(iv) hereinabovesuch expenditure may, any interest or payments on any financing for the Building or the Premises, interest and penalties incurred as a result of at Landlord’s late payment option, be amortized over such shorter period, if any, as may be selected by Landlord provided that the annual amortized portion of such expenditure shall not exceed the actual cost savings realized. The amortized cost of any invoice (except to capital items may, at Landlord’s option, include actual or imputed interest at the extent resulting from Tenant’s failure rate that Landlord would reasonably be required to pay Operating Expenses and Tax Expenses to Landlord when due as set forth herein), and any bad debt loss, rent loss or reserves for same; (vi) costs associated with the investigation and/or remediation of Hazardous Materials (hereafter defined) present in, on or about any portion of the Premises, unless such costs and expenses are the responsibility of Tenant as provided in Section 27 hereof, in which event such costs and expenses shall be paid solely by Tenant in accordance with Section 27 hereof; (vii) overhead and profit increment paid to Landlord or to subsidiaries or affiliates of Landlord for goods and/or services in the Premises to the extent the same exceeds the costs of such by unaffiliated third parties on a competitive basis; or any costs included in Operating Expenses representing an amount paid to any entity related to Landlord which is in excess of the amount which would have been paid in the absence of such relationship; (viii) any payments under a ground lease or master lease; (ix) costs of advertising and promotional expenditures for the Property; (x) any fines or penalties incurred solely and directly as a result of actual violations by Landlord of any governmental rule or authority for which Landlord is responsible hereunder; (xi) costs for sculpture, paintings or other objects of art; (xii) costs attributable to repairing items that are covered by warranties from third parties; (xiii) costs associated with the operation of the business of the entity which constitutes Landlord, as the same are distinguished from finance the cost of operating the Property, including partnership accounting and legal matters, costs of defending any lawsuits with any mortgagee or lender, costs of selling, syndicating, financing, mortgaging or hypothecating any of Landlord’s interest in the Property or the Building and disputes of Landlord with the property management company managing the Property; (xiv) costs occasioned by the act, omission or violation of any Law by Landlord, or its agents, employees or contractors; (xv) costs which could properly be capitalized under generally accepted accounting principles, except to the extent amortized as provided in Section 6.1.1(iv) above; and (xvi) earthquake insurance deductibles in excess of One Hundred Thousand Dollars ($100,000).capital item;
Appears in 1 contract
Operating Expense Exclusions. The term “Operating Expenses” Notwithstanding anything to the contrary in this Lease, in no event shall Tenant have any obligation to perform, pay directly, or reimburse Landlord for any of the following items: (1) costs covered by warranties; (2) costs of correcting defects in the design or construction of the Premises including latent defects or the material used in the construction of the Premises or building systems during the period of the applicable Construction Warranties (as defined in the Development Agreement), provided that for the purposes of this clause conditions (not occasioned by design or construction defects) resulting from ordinary wear and tear and use or from the misuse of Tenant or the Tenant Parties (as defined in Section 14.1) shall not include: be deemed defects; (i3) legal real estate brokers’ commissions or other costs incurred for attracting tenants; (4) costs resulting from the gross negligence or willful misconduct of Landlord or Landlord’s property manager or the default of Landlord under this Lease or any other agreement affecting Landlord or the Premises; (5) legal, accounting or professional fees and auditing fees (other than those fees reasonably costs incurred in connection with lease negotiations, the maintenance audit of any Landlord financial materials and operation of all requests related to any assignment or any portion sublease, provided that the Premises and included as part foregoing shall not operate to exclude the reasonable costs incurred by Landlord in connection with preparing the annual reconciliation of the Operating Expenses by Landlord’s property management feemanager or a third-party accounting professional; (6) interest and principal payments or other amortization or depreciation charges on the Building (including without limitation the Building systems and equipment) or Premises or the indebtedness of Landlord (other than Amortized Costs as provided above); (ii) depreciation of the Building or any other improvements situated within the Premises; (iii) any items for which Landlord is actually reimbursed by insurance; (iv) costs of repairs or other work necessitated by casualty (excluding any deductibles) and/or costs of repair or other work necessitated by the exercise of the right of eminent domain to the extent insurance proceeds or a condemnation award, as applicable, is actually received by Landlord for such purposes; provided, such costs of repairs or other work shall be paid by the parties in accordance with the provisions of Sections 25 and 26, below; (v) other than any interest charges for capital improvements referred to in Section 6.1.1(iv) hereinabove, any interest or payments on any financing for the Building or the Premises, interest and penalties incurred as a result of Landlord’s late payment of any invoice (except to the extent resulting from Tenant’s failure to pay Operating Expenses and Tax Expenses to Landlord when due as set forth herein), and any bad debt loss, rent loss or reserves for same; (vi) costs associated with the investigation and/or remediation of Hazardous Materials (hereafter defined) present in, on or about any portion of the Premises, unless such costs and expenses are the responsibility of Tenant as provided in Section 27 hereof, in which event such costs and expenses shall be paid solely by Tenant in accordance with Section 27 hereof; (vii7) overhead and profit increment paid to Landlord or to subsidiaries or affiliates of Landlord for goods and/or management or other services in the Premises for supplies or other materials to the extent the same exceeds the costs of such by unaffiliated third parties on a competitive basis; or any costs included in Operating Expenses representing an amount paid to any entity related to Landlord which is amounts incurred are in excess of the amount those which would have been paid reasonably incurred if such supplies or services were obtained from unrelated third parties (but this provision does not prevent the payment of a management fee to Landlord not exceeding the amount specified in the absence of such relationshipthis Article 4); (viii) 8) contributions to any payments under a ground lease political or master leasecharitable persons or entities; (ix) costs of advertising and promotional expenditures for the Property; (x) any fines or penalties incurred solely and directly as a result of actual violations by Landlord of any governmental rule or authority for which Landlord is responsible hereunder; (xi9) costs for the acquisition of sculpture, paintings or other objects of artart objects; (xii10) costs attributable to repairing items that are covered by warranties from third partiesadvertising, marketing and promotion costs; (xiii11) costs associated with the operation of the business of the corporation or other entity which constitutes the Landlord, as the same are distinguished from costs of operation of the Building; (12) costs that are actually reimbursed to Landlord by insurance companies or other third parties; (13) reserves; (14) costs incurred to investigate, remove, remediate, or respond to any claim related to Hazardous Materials except Hazardous Materials that are the Tenant’s responsibility under Section 20); (15) the cost of operating insurance coverages not generally carried by landlords of similar buildings in the Propertyarea or not specified in this Lease; (16) (a) deductibles in excess of $50,000 for commercial general liability insurance and property insurance coverages carried by Landlord, including partnership accounting per occurrence and legal mattersco-insurance payments, (b) deductibles for earthquake and earth movement coverage in excess of $100,000 or 3% of the insurable value, whichever is applicable, and (c) deductibles in excess of $100,000 for environmental or pollution liability coverage and for other insurance coverages required or permitted to be carried by Landlord under this Lease provided, that at Tenant’s request, Landlord and Tenant shall confer in good faith to resolve questions or concerns regarding the costs of defending any lawsuits with any mortgagee or lenderthe Landlord’s insurance coverage (including without limitation the amount of insurance premiums, costs of sellingdeductible levels selected by the Landlord, syndicating, financing, mortgaging or hypothecating any and other aspects of Landlord’s insurance affecting the costs of such insurance included in Operating Expenses), with the intent to reasonably minimize the costs of Landlord’s insurance required to be paid by Tenant under this Lease consistent with the insurance coverage carried by landlords of similar facilities in McCarran, Nevada, provided that Landlord’s decision regarding Landlord’s insurance coverage shall be final and binding on the parties so long as the same is consistent with Landlord’s uniform policies of providing insurance for similar properties; (17) interest or penalties due to the late payment of taxes, utility bills or other costs; provided that Tenant is not in default beyond applicable notice and cure periods under this Lease in connection with the Property payment of such costs to Landlord; (18) any cost for overtime or the Building and disputes other expenses to Landlord in curing defaults of Landlord with the property management company managing the Propertyunder this Lease; (xiv19) the costs occasioned by the actincluding fines, omission penalties, and legal fees incurred due to violations of law, contracts or violation of any Law title matters by Landlord, or its employees, agents, employees or contractorscontractors or assigns; (xv20) rent under any ground lease or master lease; (21) costs incurred in connection with the financing or transfer of the Premises or any interest therein; (22) the cost of any action that is specifically Landlord’s sole expense under this Lease; (23) any cost incurred by Landlord which could properly be capitalized under generally accepted accounting principlesis reimbursed by third parties; (24) estate, inheritance or succession taxes imposed on Landlord; and (25) franchise or income taxes imposed on Landlord except to the extent amortized as provided the same are in Section 6.1.1(ivsubstitution of real estate taxes. Landlord will not collect or be entitled to collect more than one hundred percent (100%) above; and (xvi) earthquake insurance deductibles of the Operating Expenses actually paid by Landlord in excess of One Hundred Thousand Dollars ($100,000)connection with the Premises in any Lease year.
Appears in 1 contract
Samples: Lease Agreement (Zulily, Inc.)
Operating Expense Exclusions. The term “Operating Expenses” shall not includeinclude the following: (i) legal payments by Landlord of interest and auditing fees principal on any debt secured by a mortgage, deed of trust or similar instrument (other than those fees reasonably incurred in connection with collectively, a “Mortgage”) encumbering the maintenance and operation of all Total Building Facilities or any portion the Premises and included as part of the property management fee)thereof; (ii) depreciation of the Building or any other improvements situated within the Premisesand amortization costs (except as provided below); (iii) any items for which Landlord is actually reimbursed by insurancetaxes and assessments attributable to the personal property of tenants, and Mortgage lien taxes, documentary stamp taxes, recording fees or the like; (iv) costs of repairs or other work necessitated by casualty (excluding any deductibles) and/or costs of repair or other work necessitated by the exercise of the right of eminent domain to the extent insurance proceeds or a condemnation award, as applicable, is actually received by Landlord for such purposes; provided, such costs of repairs or other work shall be paid by the parties in accordance with the provisions of Sections 25 and 26, belowleasing commissions; (v) other than any interest charges for capital improvements referred to in Section 6.1.1(iv) hereinabove, any interest or payments on any financing for the Building or the Premises, interest and penalties incurred as a result of Landlord’s late payment of any invoice (except to the extent resulting from Tenant’s failure to pay Operating Expenses and Tax Expenses to Landlord when due as set forth herein), and any bad debt loss, rent loss or reserves for sameground rent; (vi) costs associated legal fees and other expenses incurred by Landlord in dealings with the investigation and/or remediation of Hazardous Materials (hereafter defined) other present in, on or about any portion prospective tenants or occupants of the Premises, unless such costs and expenses are the responsibility of Tenant as provided in Section 27 hereof, in which event such costs and expenses shall be paid solely by Tenant in accordance with Section 27 hereofBuilding; (vii) overhead and profit increment paid to Landlord costs of any special services, operations or to subsidiaries accommodations incurred for the benefit of select tenants; (viii) costs incurred in renovating, improving, decorating, painting, redecorating or affiliates of Landlord for goods and/or services otherwise improving usable area in the Premises Building (vacant or otherwise) for individual tenants; (ix) marketing and promotional costs; and (x) capital expenditures other than the Permitted Capital Expenditures. Operating Expenses shall be reduced to the extent Landlord is reimbursed therefor by (a) the same exceeds proceeds of insurance policies carried by Landlord on the costs Building, or (b) warranty, or (c) recovery of damages to the Building from any third party. If any Operating Expense comprises a capital expenditure, then such capital expenditure shall be amortized (with interest thereon at a reasonable rate) in conformance with generally accepted accounting principals, and only the annual amortized installment of such by unaffiliated third parties on a competitive basis; or any costs capital expenditure shall be included in Operating Expenses representing an amount paid to any entity related to Landlord which is in excess of the amount which would have been paid in the absence of such relationship; (viii) any payments under a ground lease or master lease; (ix) costs of advertising and promotional expenditures for the Property; (x) any fines or penalties incurred solely and directly as a result of actual violations by Landlord of any governmental rule or authority for which Landlord is responsible hereunder; (xi) costs for sculpture, paintings or other objects of art; (xii) costs attributable to repairing items that are covered by warranties from third parties; (xiii) costs associated with the operation of the business of the entity which constitutes Landlord, as the same are distinguished from the cost of operating the Property, including partnership accounting and legal matters, costs of defending any lawsuits with any mortgagee or lender, costs of selling, syndicating, financing, mortgaging or hypothecating any of Landlord’s interest in the Property or the Building and disputes of Landlord with the property management company managing the Property; (xiv) costs occasioned by the act, omission or violation of any Law by Landlord, or its agents, employees or contractors; (xv) costs which could properly be capitalized under generally accepted accounting principles, except to the extent amortized as provided in Section 6.1.1(iv) above; and (xvi) earthquake insurance deductibles in excess of One Hundred Thousand Dollars ($100,000)each year.
Appears in 1 contract
Samples: Office Lease (Parnell Pharmaceuticals Holdings LTD)
Operating Expense Exclusions. The term “Operating Expenses” shall not include: (i) costs (including permit, license, and inspection fees) incurred in renovating, improving or decorating vacant space or space for other tenants within the Project; (ii) costs incurred because Landlord or another tenant actually violated or was alleged to have violated the terms and conditions of any lease within the Project; (iii) legal and auditing fees (other than those fees reasonably incurred in connection with the maintenance and operation of all or any portion the Premises Project), leasing commissions, advertising expenses, and included as part other costs incurred in connection with the original leasing of the property management fee)Project or future re-leasing of any portion of the Project; (iiiv) depreciation of the Building or any other improvements situated within the PremisesProject and expense reserves; (iiiv) any items for which Landlord is actually reimbursed by insurancereimbursed; (ivvi) costs of repairs or other work necessitated by casualty (excluding any deductibles) and/or costs of repair or other work necessitated by the exercise of the right of eminent domain to the extent insurance proceeds or a condemnation award, as applicable, is actually received by Landlord for such purposes; provided, such costs of repairs or other work shall be paid by the parties in accordance with the provisions of Sections 25 and 26, below; (vvii) other than any interest charges for capital improvements referred to in Section 6.1.1(iv) hereinabove, any interest or payments on any financing for the Building or the PremisesProject, interest and penalties incurred as a result of Landlord’s late payment of any invoice (except to the extent resulting from provided that Tenant pays Tenant’s failure to pay Share of Operating Expenses and Tax Expenses to Landlord when due as set forth herein), and any bad debt loss, rent loss or reserves for same; (viviii) costs associated with the investigation and/or remediation of Hazardous Materials (hereafter defined) present in, on or about any portion of the PremisesProject, unless such costs and expenses are the responsibility of Tenant as provided in Section 27 hereof, in which event such costs and expenses shall be paid solely by Tenant in accordance with Section 27 hereof; (viiix) Landlord’s cost for the repairs and maintenance items set forth in Section 11.3; (x) overhead and profit increment paid to Landlord or to subsidiaries or affiliates of Landlord for goods and/or services in the Premises Project to the extent the same exceeds the costs of such by unaffiliated third parties on a competitive basis; or any costs included in Operating Expenses representing an amount paid to any entity related to Landlord which is in excess of the amount which would have been paid in the absence of such relationship; (viiixi) any payments under a ground lease or master lease; (ix) costs of advertising and promotional expenditures for the Property; (x) any fines or penalties incurred solely and directly as a result of actual violations by Landlord of any governmental rule or authority for which Landlord is responsible hereunder; (xi) costs for sculpture, paintings or other objects of art; (xii) costs attributable incurred in connection with upgrading the Building and/or the Project to repairing items that are covered by warranties from third parties; (xiii) costs associated with the operation of the business of the entity which constitutes Landlord, as the same are distinguished from the cost of operating the Property, including partnership accounting and legal matters, costs of defending any lawsuits comply with any mortgagee laws in effect prior to the Lease Date, including, without limitation the ADA (For this purpose, a change in interpretation of or lender, costs of selling, syndicating, financing, mortgaging or hypothecating any of Landlord’s interest change in the Property or procedures for enforcing an existing law will be the Building and disputes equivalent of Landlord with the property management company managing the Property; (xiv) costs occasioned by the act, omission or violation of any Law by Landlord, or its agents, employees or contractors; (xv) costs which could properly be capitalized under generally accepted accounting principles, except to the extent amortized as provided in Section 6.1.1(iv) above; and (xvi) earthquake insurance deductibles in excess of One Hundred Thousand Dollars ($100,000a new law).
Appears in 1 contract
Samples: Lease Agreement (Meru Networks Inc)
Operating Expense Exclusions. The term “Operating Expenses” shall not include: (i) costs (including permit, license, and inspection fees) incurred in renovating, improving or decorating vacant space or space for other tenants within the Project; (ii) costs incurred because Landlord or another tenant violated the terms and conditions of any lease within the Project; (iii) legal and auditing fees (other than those fees reasonably incurred in connection with the maintenance and operation of all or any portion the Premises Project), leasing commissions, promotional expenses, attorneys’ fees, advertising expenses, and included as part other costs incurred in connection with the original leasing of the property management fee)Project or future re-leasing of any portion of the Project and in constructing improvements to other tenant’s premises for any other tenant of the Project; (iiiv) depreciation of the 000 Xxxx Xxxxx Building, the 000 Xxxx Xxxxx Building or any other improvements situated within the PremisesProject and expense reserves; (iiiv) any items for which Landlord is actually reimbursed by insurancereimbursed; (ivvi) costs of repairs or other work necessitated by casualty (excluding any deductibles) and/or costs of repair or other work necessitated by the exercise of the right of eminent domain to the extent insurance proceeds or a condemnation award, as applicable, is actually received by Landlord for such purposes; provided, such costs of repairs or other work shall be paid by the parties in accordance with the provisions of Sections 25 and 26, below; (vvii) other than any interest charges for capital improvements referred to in Section 6.1.1(iv) hereinabove, any interest or payments on any financing for the 000 Xxxx Xxxxx Building, the 000 Xxxx Xxxxx Building or the PremisesProject, interest and penalties incurred as a result of Landlord’s late payment of any invoice (except to the extent resulting from provided that Tenant pays Tenant’s failure to pay Share of Operating Expenses and Tax Expenses to Landlord when due as set forth herein), and any bad debt loss, rent loss or reserves for samesame and any depreciation allowance or expense reserves; (viviii) costs associated with the investigation and/or remediation of Hazardous Materials (hereafter defined) present in, on or about any portion of the PremisesProject, unless such costs and expenses are the responsibility of Tenant as provided in Section 27 hereof, in which event such costs and expenses shall be paid solely by Tenant in accordance with Section 27 hereof; (viiix) Landlord’s cost for the repairs and maintenance items set forth in Section 11.3; (x) overhead and profit increment paid to Landlord or to subsidiaries or affiliates of Landlord for goods and/or services in the Premises Project to the extent the same exceeds the costs of such by unaffiliated third parties on a competitive basis; or any costs included in Operating Expenses representing an amount paid to any entity related to Landlord which is in excess of the amount which would have been paid in the absence of such relationship; (viiixi) any payments under a ground lease or master lease; (ixxii) management fees in excess of three percent (3%) of the gross revenues of the Project; (xiii) all customary capital repairs and replacements to the base structural elements and operating systems of the Premises, including the foundation, roof structure, roof membrane, exterior walls and heating, ventilation and air conditioning systems, other than any capital repairs or replacements triggered by Tenant’s particular and unique use of the Premises or Tenant Improvements or Alterations to the Premises or any New ADA Work as provided In subsection (xi) of Section 6.1.1 above; (xiv) compensation paid to any employee of Landlord above the grade of Property Manager/Building Superintendent, including officers and executives of Landlord; (xv) costs of advertising electrical energy furnished and promotional expenditures metered directly to tenants of the Project or for the Propertywhich Landlord is entitled to be reimbursed by tenants as additional rental over and above tenant’s Base Rent or pass-through of Operating Expenses; (xxvi) the costs of repairs or maintenance which are covered by warranties or service contracts in existence on the Commencement Date and to the extent such maintenance and repairs are made at no cost to Landlord; (xvii) the costs and expenses incurred in leasing equipment or systems that would ordinarily constitute a capital expenditure if such equipment or systems were purchased which Is excluded from Operating Expenses under subsection (xiii) above; (xviii) the costs of repairs, alterations and general maintenance necessitated by the gross negligence or willful misconduct of Landlord or its agents, employees, or contractors, or repairs, alterations and general maintenance necessitated by the gross negligence or willful misconduct of any other tenant or occupant of the Project or any of their respective agents, employees, contractors, invitees, or licensees; (xix) any fines amount payable by Landlord by way of indemnity or for damages or which constitute a fine or penalty, including interest or penalties for late payment (except to the extent imposed due to late payment by Tenant); (xx) any cost for overtime or other expenses to Landlord in curing defaults; (xxi) the costs including fines, penalties, and legal fees incurred solely and directly as a result of actual due to violations by Landlord Landlord, its employees, agents, or contractors or assigns, or any other tenant (excluding Tenant) or occupant of the Project of building codes, any governmental rule or authority for which Landlord is responsible hereunderrequirement or the terms and conditions of any lease pertaining to the Project or any other contract; (xixxii) costs for sculptureany compensation paid to clerks, paintings attendants or other objects of artpersons in commercial concessions operated by Landlord; (xiixxiii) costs attributable Operating Expenses incurred with respect to repairing items that are covered by warranties from third partiesany restaurant areas of the Project; (xiiixxiv) costs associated charitable or political contributions or donations of Landlord; (xxv) during only the initial three (3) year and three (3) month term of this Lease expiring on June 30, 2014, the cost of maintaining and repairing the roof of the 000 Xxxx Xxxxx Building and the roof of the 000 Xxxx Xxxxx Building, including the cost of any roof maintenance contracts, and the cost of resurfacing the roof of the 000 Xxxx Xxxxx Building the first time such resurfacing occurs during the term of this Lease, provided that the replacement of the structural portions of the roof of the 000 Xxxx Xxxxx Building and of the 000 Xxxx Xxxxx Building during the Term of this Lease shall be Landlord’s obligations under Section 11.3 of this Lease without reimbursement from Tenant through Tenant’s payment of Tenant’s Share of Operating Expenses; or (xxvi) during only the initial three (3) year and three (3) month term of this Lease expiring on June 30, 2014, the cost of maintaining and repairing the heating, ventilation and air-conditioning units serving the 000 Xxxx Xxxxx Building and the 000 Xxxx Xxxxx Building, including such units that serve the Premises or the Common Areas, including the cost of any maintenance contract, provided that the replacement of any such unit at any time during the term of this Lease shall be Landlord’s obligation under Section 11.3 of this Lease without reimbursement from Tenant through Tenant’s payment of Tenant’s Share of Operating Expenses. Landlord agrees that (y) Landlord will not collect or be entitled to collect more than one hundred percent (100%) of the increases in Operating Expenses actually paid by Landlord in connection with the operation of the business of the entity which constitutes LandlordBuilding in any calendar year, as the same are distinguished and (z) excluding management fees and any other fees expressly provided in this Lease, Landlord shall make no profit from the cost of operating the Property, including partnership accounting and legal matters, costs of defending any lawsuits with any mortgagee or lender, costs of selling, syndicating, financing, mortgaging or hypothecating any of Landlord’s interest in the Property or the Building and disputes collection of Landlord with the property management company managing the Property; (xiv) costs occasioned by the act, omission or violation of any Law by Landlord, or its agents, employees or contractors; (xv) costs which could properly be capitalized under generally accepted accounting principles, except to the extent amortized as provided in Section 6.1.1(iv) above; and (xvi) earthquake insurance deductibles in excess of One Hundred Thousand Dollars ($100,000)Operating Expenses.
Appears in 1 contract
Samples: Lease Agreement (Proofpoint Inc)
