A few of these provisions are expounded upon below.

Operating Expenses

Landlords have expanded the list of expenses to include every imaginable expenditure. The provision should only pass through to the tenant legitimate expenses relating to the operation and maintenance of the common areas. Your Tenant Representative should negotiate a list of Operating Expense Exclusions.

Insist on reviewing the history of the building's CAM charges for at least the three prior years. You want to compare the amount of operating expenses and their annual increases to other comparable buildings to determine whether they are reasonable, in addition to estimating what the operating expense charges will be throughout the term of the lease.

Attention must be given to the base year in any CAM clause which requires the Tenant to pay its prorata share of expenses incurred over a base year. If your are renewing your lease the base year needs to be brought up to the current year. The tenant should make certain that the base year expenses are subject to a "gross up" to reflect the full amount of operating expenses that would have been incurred by the building had it been 95% occupied.

The Tenant should reserve the right to audit the landlord's expenses and to review the landlord's calculations.

Repair and Maintenance Provision

Areas located outside the leased premises should not be included in this provision. Often times the landlord includes these areas.

Tenants should pay particular attention to any repair and maintenance provision that requires the Tenant to repair and maintain items or areas that are traditionally the landlord's responsibility.

Define exactly the extent of the tenant's repair and maintenance obligations, taking care to exclude items such as regular wear and tear or items that are covered by the landlord's property insurance.

If the landlord is to be held responsible for the repair and maintenance of certain items, the lease must be specific about these items so that there is no doubt as to which party has responsibility.

Real Property Taxes

The real property taxes provision defines the respective obligations of the landlord and Tenant for real property taxes. Landlords have expanded the definition of real property taxes to include any type of tax assessed against the property or the landlord and are increasingly defining taxes to include future taxes of any sort, including rent taxes or income taxes.

Define precisely which taxes and/or assessments are to be included in the definition of real property taxes and be sure to exclude federal or state income, franchise or estate taxes.

The tenant should be responsible only for its pro rata share of the total amount above the base year.

Be conscientious that the Tax liability could increase considerably if the landlord sells the property and they have held the property long enough for the property value to have increased. Put some limitation on increases in real property taxes resulting from a change in ownership or completely eliminate it. The ability to do this will be dependent on many factors such as size of transaction, length of term etc.

Compliance with Laws

A Tenant not appreciating the potential effects of this provision may find itself footing the bill for earthquake retrofitting, asbestos abatement, sprinkler installation, or compliance with the Americans with Disabilities Act.

This provision typically requires the tenant to perform potentially expensive replacements, alterations, or improvements of the leased premises to comply with existing or future laws and government orders relating to the leased premises.

In some instances the landlord agrees to bear the burden of complying with these laws or the lease places the responsibility to comply with such laws directly on the tenant.

If the landlord is to bear the responsibility, the tenant must curtail the landlord's ability to pass on the cost of compliance through other provisions such as the

Operating expense provision

If the Tenant is to be responsible for compliance with laws, the landlord should represent and warrant to the tenant in the lease that the building is in compliance with all presently-existing laws and limit its responsibility for compliance with future laws to those items necessitated solely due to the tenant's particular use of the premises.

Negotiate a cap on annual exposure.

Assignment and Subletting

Requesting for permission to assign or sublet the premises may give the landlord the ability to terminate the lease.

Negotiate exclusions from the consent requirements including assignment or sublet for reorganization purposes and space-sharing arrangements up to a defined square footage.

If the lease requires consent and the landlord consents to an assignment or sublet, the landlord may get to keep all rents paid by the assignee or subtenant in excess of the tenant's fixed rent obligation to the landlord. The tenant should ask for at least a portion of this excess rent. Fifty percent is customary.

Subtract from the excess the value of leasehold improvements made for the assignee or sublessee and any broker's commissions paid by the tenant in locating the assignee or sublessee. Not doing so may severely overstate the excess rent and can result in a premium to the landlord.

If the Option periods are transferrable, attempt to get a release of liability for any Option periods.

Review the lease to determine whether it contains a Recapture clause. Under a

Recapture clause, a request by the tenant that the landlord consent to an assignment or sublet may trigger an option enabling the landlord to terminate the tenant's lease. The tenant should have the recapture clause deleted or should insert an option allowing the tenant to withdraw its request if the landlord elects to terminate the lease.

Insert a clause that requires the landlord to give the tenant notice of any default following an assignment so that the tenant will have the right, but not the obligation, to cure the default and regain possession of the premises.

Subordination, Nondisturbance and Attornment (SNDA) Provision

If the landlord asks you for what amounts to a favor for the benefit of its lender, the tenant should be sure to get something in return.

This provision defines the relationship between the landlord's current and future lenders and the tenant in the event the landlord defaults on its loan obligations. A subordination clause typically readjusts the priorities that normally would result from general legal rules by providing that any existing or subsequent lender of the landlord can elect to deem its deed of trust superior or junior to the lease regardless of the date on which the lender's deed of trust was recorded.  This obligates the Tenant to recognize the foreclosing lender or as the new landlord under the existing lease.

In exchange for its subordination and attornment agreements, the Tenant must assure continuation of its lease by requiring the landlord's lender to agree not to disturb the tenant's lease if the lender forecloses or a ground lessor asserts its right to the property. Without a nondisturbance clause tied to the subordination and attornment provisions, the tenant's lease could be wiped out by virtue of the

subordination provision.

Termination and Abatement Rights

A lease containing waivers of Tenant remedies may leave a Tenant with no place to turn if the landlord defaults in its obligations.

This clause defines what remedies are available to the Tenant in the event of a default on the part of the landlord.

In an ideal world the tenant would like to preserve its repair and deduct rights so that if there is a problem the tenant can remedy the problem and deduct the cost from its rent. Negotiate a lease which contains abatement and termination rights.

Abatement rights allow the tenant to abate, in proportion to the area of the premises affected, the amount of rent it pays if the landlord fails to remedy items for which it is responsible that interfere with the tenant's use of or access to the leased premises.

Termination rights may give the Tenant the option, under the above circumstances, to vacate the entire premises without further obligation.

Termination, Relocation or Expansion Rights

A Tenant who has not had its lease carefully read may be surprised to learn that the landlord has reserved the right to unilaterally terminate the lease or relocate the Tenant.

A termination provision in favor of the landlord allows the landlord to unilaterally terminate the lease, usually on the occurrence of some condition.

A relocation provision allows the landlord to relocate the tenant to other premises within the building.

An expansion provision, on the other hand, may give another Tenant the right to expand into the Tenant's premises and may allow the landlord to terminate the Tenant's lease or relocate the Tenant.

If conditions require acceptance, the Tenant should make certain that it can only be relocated to a comparable location and position and that the landlord has to pay for all expenses related to the relocation, including the cost of moving the business and constructing Tenant Improvements.

Damage and Destruction

If the leased premises or the building housing the leased premises is damaged or destroyed, this provision typically provides that the landlord may elect, in its sole discretion, to continue the lease or to terminate it. In the case of continuation, it usually provides for an abatement of rent in the same proportion that Tenant's use of the leased premises is impaired.

Make sure that the abatement of rent language is fair. Some leases base it on the amount of square footage of the leased premises that is damaged or destroyed. This is not fair. sometimes the entire premises is not useable even where the damage is to a small area.

The ability to terminate should reside in both landlord and Tenant. Otherwise, the Tenant may find itself bound to a lease under which it is unable to use the leased premises for a significant time. This can throw a real wrench into any Tenant's business plans.

The Tenant should not be liable for damage or destruction resulting from its own negligence if the landlord has business interruption insurance, or other similar insurance?

Maintain the right to complete your improvements following the landlord's repair before your rent obligation resumes.

Tenant Improvements

If improvements are to be made to the leased premises prior to occupancy, the Tenant should understand the economic impact of such improvements and know what it will get.

Make certain that the obligation to pay rent and other charges do not begin until the improvements are complete.

Determine whether the landlord will be designing and constructing the improvements at its sole cost (a "turnkey" arrangement) or whether the landlord will be giving the tenant an allowance, with either the Tenant or landlord designing and constructing the improvements (an "allowance" arrangement).

Before entering into the lease, in an allowance arrangement, the Tenant should have final space plans and estimates for the work so that the Tenant is not exposed for the cost of improvements in excess of the landlord's allowance or at the very least will know how much it will have to pay.

In both turnkey and allowance arrangements, the Tenant must be work with a competent Tenant Rep and space planner to make certain that the space will be built out to satisfy the Tenant's needs.

Where the landlord does the design work, reserve the right to look at, review and approve all designs and materials utilized and the right to make changes up through the design stage of the improvement design documents.

In an allowance arrangement make sure that the allowance will not be used up for base building work, such as demolition, bathrooms located in common areas, asbestos abatement, or sprinkler systems.

If the actual improvements cost is less than the allowance, the Tenant should attempt to get the landlord to apply the allowance to the costs of other work that is the responsibility of the Tenant under the lease or work letter, pay it to the tenant, off-set it against future rent, or allow the Tenant to use some portion of it.

Negotiate remedies for landlord-caused delay and carefully define and limit the consequences of Tenant-caused delay.