Health Net 2009 Annual Report Download - page 438

have been incurred for such services or utilities on a full time basis for normal Project operating hours. Operating Costs for the Base
Year (as defined in Item 8 of the Basic Lease Provisions) shall not include (i) Operating Costs attributable to temporary market-wide
labor-rate increases and/or utility rate increases due to extraordinary circumstances, including, but not limited to Force Majeure,
conservation surcharges, boycotts, embargoes, or other shortages, or (ii) one-time special assessments, charges, costs or fees or
extraordinary charges or costs incurred in the Base Year only. In no event shall the components of Operating Costs for any calendar
year related to any utility costs (including, without limitation, electrical costs) be less than the components of Operating Costs related
to such utility costs in the Base Year. In addition, if in any calendar year subsequent to the Base Year, the amount of Operating Costs
decreases due to a reduction in the cost of providing utilities, security and/or other services to the Project for any reason, including
without limitation, because of deregulation of the utility industry and/or reduction in rates achieved in contracts with utilities and/or
service providers, then for purposes of the calendar year in which such decrease in Operating Costs occurred and all subsequent
calendar years, the Operating Costs for the Base Year shall be decreased by an amount equal to such decrease. In the event (i) the
Commencement Date shall be a date other than January 1, (ii) the date fixed for the expiration of the Lease Term shall be a date other
than December 31, (iii) of any early termination of this Lease, or (iv) of any increase or decrease in the size of the Premises, then in
each such event, an appropriate adjustment in the application of this Paragraph 3 shall, subject to the provisions of this Lease, be
made to reflect such event on a basis determined by Landlord to be consistent with the principles underlying the provisions of this
Paragraph 3. Notwithstanding anything in this Section 3 to the contrary, any capital expenditures or government-imposed special
assessments having a useful life of 3 years or more shall be amortized over the useful life of such improvements in accordance with
the Internal Revenue Code requirements.
(f) Prior to the commencement of each calendar year of the Lease Term following the Commencement Date, Landlord shall
have the right to give to Tenant a written estimate of Tenant’s Proportionate Share of the projected excess, if any, of the Operating
Costs for the Project for the ensuing year over the Base Operating Costs. Tenant shall pay such estimated amount to Landlord in equal
monthly installments, in advance on the first day of each month. Within a reasonable period after the end of each calendar year,
Landlord shall furnish Tenant a statement indicating in reasonable detail (including, but not limited to any “gross up” of Operating
Costs) the excess of Operating Costs over Base Operating Costs for such period and the parties shall, within thirty (30) days
thereafter, make any payment or allowance necessary to adjust Tenant’s estimated payments to Tenant’s actual share of such excess
as indicated by such annual statement. Any payment due Landlord shall be payable by Tenant on demand from Landlord. Any
amount due Tenant shall be credited against installments next becoming due under this Paragraph 3(f) or refunded to Tenant, if
requested by Tenant.
(g) [INTENTIONALLY DELETED]
(h) Tenant shall pay ten (10) days before delinquency, all taxes and assessments (i) levied against any personal property, tenant
improvements or trade fixtures of Tenant in or about the Premises and (ii) based upon this Lease or any document to which Tenant is
a party creating or transferring an interest in this Lease or an estate in all or any portion of the Premises. If any such taxes or
assessments are levied against Landlord or Landlord’s property or if the assessed value of the Project is increased by the inclusion
therein of a value placed upon such personal property or trade fixtures, Tenant shall upon demand reimburse Landlord for the taxes
and assessments so levied against Landlord, or such taxes, levies and assessments resulting from such increase in assessed value.
(i) Any delay or failure of Landlord in (i) delivering any estimate or statement described in this Paragraph 3, or (ii) computing or
billing Tenant’s Proportionate Share of excess Operating Costs shall not constitute a waiver of its right to require an increase in Rent,
or in any way impair, the continuing obligations of Tenant under this Paragraph 3; provided, however, that Landlord’s failure to bill
Tenant for any item of Operating Costs within one (1) year after the calendar year in which such Operating Costs were incurred shall
be deemed to be an unconditional waiver of Landlord’s right to collect such Operating Costs. In the event of any dispute as to any
Additional Rent due under this Paragraph 3, an officer of Tenant or Tenant’s certified public accountant shall have the right after
reasonable notice and at reasonable times to inspect and make copies of (at Tenant’s expense, subject to the reimbursement provisions
of this Paragraph 3(i)) Landlord’s accounting records at Landlord’s accounting office. If after such inspection, Tenant still disputes
such Additional Rent, upon Tenant’s written request therefor, a certification as to the proper amount of Operating Costs and the
amount due to or payable by Tenant shall be made by an independent certified public accountant mutually agreed to by Landlord and
Tenant. If Landlord and Tenant
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