Common use of Operating Costs and Taxes Clause in Contracts

Operating Costs and Taxes. Section 4.1 Tenant shall pay to Landlord Tenant's Share of Excess Operating Costs and Excess Taxes for each calendar year or fractional calendar year during the Term in accordance with the terms and provisions of this Article 4. A. Prior to the first business day (or as soon thereafter as is practicable) of each calendar year after the Base Year, Landlord shall give Tenant a statement setting forth Landlord's estimate of Excess Operating Costs and Excess Taxes for such calendar year and Tenant's Share thereof. With respect to the first calendar year after the Base Year, (i) if such statement is given prior to January 1 of such year, then on January 1 and on the first day of each month during such calendar year Tenant shall pay to Landlord the Monthly Installment of Excess Operating Costs and Excess Taxes for such calendar year, or (ii) if such statement is given on or after January 1 of such year, then within thirty (30) days after such statement is given Tenant shall pay to Landlord the product of the amount of the Monthly Installment of Excess Operating Costs and Excess Taxes for such calendar year multiplied by the number of months during such calendar year occurring prior to the date of such payment (including the month during which such payment is made) and thereafter Tenant shall pay to Landlord, on the first day of each month during the remainder of such calendar year, the Monthly Installment of Excess Operating Costs and Excess Taxes for such calendar year. With respect to the second and subsequent calendar years after the Base Year, (i) if such statement is given prior to January 1 of such year, then on January 1 and on the first day of each month during such calendar year Tenant shall pay to Landlord the Monthly Installment of Excess Operating Costs and Excess Taxes for such calendar year, or (ii) if for any reason such statement is given on or after January 1 of such year, then until Tenant is given such statement Tenant shall continue to pay to Landlord, on January 1 and on the first day of each month until the date on which such statement is given, the Monthly Installment of Excess Operating Costs and Excess Taxes for the preceding calendar year, and (A) within thirty (30) days after such statement is given Tenant shall pay to Landlord any underpayment by Tenant, or, in the event of an overpayment by Tenant, such overpayment shall be applied as a credit against the next installment(s) of Rent payable under this Lease, and (B) thereafter Tenant shall pay to Landlord, on the first day of each month during the remainder of the calendar year to which such statement relates, the Monthly Installment of Excess Operating Costs and Excess Taxes for such calendar year. For purposes of clause (ii)(A) of the preceding sentence, any underpayment or overpayment shall be determined based on the amount of Monthly Installments of Excess Operating Costs and Excess Taxes paid by Tenant for such calendar year prior to the date on which such statement is given relative to the amount of Monthly Installments of Excess Operating Costs and Excess Taxes that would have been payable by Tenant prior to the date on which such statement is given if such statement had been given prior to January 1 of such calendar year. Landlord may, from time to time during any calendar year after the Base Year (but not more frequently than once during any calendar year), notify Tenant in writing of any change in Landlord's estimate of Excess Operating Costs or Excess Taxes, or both of them, for the remainder of such calendar year, in which event the Monthly Installment of Excess Operating Costs and Excess Taxes payable for each of the remaining months of such calendar year shall be adjusted to reflect such change. B. On approximately the first day of April of the first year after the Base Year (or as soon thereafter as is practicable), Landlord shall give Tenant a statement of the actual Excess Operating Costs and Excess Taxes incurred or paid for the Base Year. On approximately the first day of April of the second year after the Base Year and each subsequent year during the Term (or as soon thereafter as is practicable), Landlord shall give Tenant a statement of the actual Excess Operating Costs and Excess Taxes incurred or paid for the preceding calendar year and of Tenant's Share thereof (the "Reconciliation Statement"). Within thirty (30) days after such statement is given, Tenant shall pay to Landlord the amount by which Tenant's Share of Excess Operating Costs and Excess Taxes for such preceding calendar year, as shown on Landlord's statement, exceeds the aggregate of the amount paid by Tenant therefor, or, in the event of any overpayment by Tenant, such overpayment by Tenant shall be applied as a credit against the next installment(s) of Rent payable under this Lease. Section 4.2 If the Building is not fully occupied (meaning ninety-five percent (95%) of the Building RSF) during any full or fractional calendar year of the Term (including, without limitation, the Base Year), the actual Operating Costs and Taxes for such calendar year shall be adjusted to the amount that, in the reasonable estimation of Landlord, would have been incurred or paid if the Building had been fully occupied for such calendar year. Section 4.3 If at any time during the Term taxes, assessments, excises, levies, or other fees or charges of any kind or nature whatsoever by any public authority are levied, imposed, assessed, charged, confirmed, or imposed on the rents received from the Project, then the same shall be paid when due by Tenant to the extent attributable to the Rent payable hereunder by Tenant or reserved herein. Tenant shall pay when due any taxes, assessments, excises, levies, and other fees and charges of any kind or nature whatsoever by any public authority that are now or hereafter levied, imposed, assessed, charged, confirmed, or imposed on or against (i) the personal property in the Premises, or (ii) the leasehold improvements in the Premises (but only if and to the extent similar leasehold improvements in the premises of other tenants in the Building are also separately taxed or assessed). Section 4.4 Tenant may examine or cause an audit of Landlord's records relating to Operating Costs for a calendar year by giving Landlord Tenant's written request to conduct such examination or audit within thirteen (13) months after Tenant's receipt or deemed receipt of the Reconciliation Statement for such calendar year. Such examination or audit shall be conducted during normal business hours, at a time and date acceptable to each of Landlord and Tenant. In the event that, as a result of any such examination or audit, Tenant disputes any payment of Tenant's Share of Excess Operating Costs for the calendar year being examined, and Landlord disagrees with Tenant with respect to such dispute, then Landlord and Tenant shall each select one of its officers or senior managers to represent it, and such representatives shall promptly meet or otherwise communicate and use reasonable, good faith efforts to resolve such dispute. If such representatives do not resolve any such dispute within thirty (30) days after their initial meeting or other communication concerning such dispute, then such dispute shall be resolved by arbitration in accordance with the rules of the American Arbitration Association, with each of Landlord and Tenant paying one-half of the cost of such arbitration. Notwithstanding the foregoing, in no event shall Tenant be entitled to withhold or delay payment of any portion of Excess Operating Costs payable by Tenant hereunder on account of any such dispute.

Operating Costs and Taxes. Section 4.1 To pay throughout the Term as Additional Rent its Proportionate Share of Taxes against or in respect of the Lands, the Buildings and other fixtures, improvements, equipment and facilities thereon or related thereto (other than Taxes payable directly by tenants pursuant to provisions similar to Subsection 5.01(b) hereof) and its Proportionate Share of Operating Costs. The amounts of Taxes and Operating Costs which the Tenant is to pay shall be estimated by the Landlord for such period as the Landlord may determine from time to time. The Tenant agrees to pay to the Landlord Tenant's Share of Excess Operating Costs and Excess Taxes for such amounts in monthly instalments to advance during each calendar year or fractional calendar year during the Term in accordance with the terms and provisions of this Article 4. A. Prior to the first business day (or as soon thereafter as is practicable) of each calendar year after the Base Year, Landlord shall give Tenant a statement setting forth Landlord's estimate of Excess Operating Costs and Excess Taxes for such calendar year and Tenant's Share thereof. With respect to the first calendar year after the Base Year, (i) if such statement is given prior to January 1 of such year, then on January 1 and period on the first day dates and at the times for payment of each month during such calendar year Tenant shall pay to Landlord the Monthly Installment of Excess Operating Costs and Excess Taxes Rent provided for such calendar year, or in this Lease. Within ninety (ii) if such statement is given on or after January 1 of such year, then within thirty (3090) days after such statement is given Tenant shall pay to Landlord the product of the amount of the Monthly Installment of Excess Operating Costs and Excess Taxes for such calendar year multiplied by the number of months during such calendar year occurring prior to the date of such payment (including the month during which such payment is made) and thereafter Tenant shall pay to Landlord, on the first day end of each month during the remainder of such calendar year, the Monthly Installment of Excess Operating Costs and Excess Taxes for such calendar year. With respect Landlord will furnish to the second and subsequent calendar years after the Base Year, (i) if such statement is given prior to January 1 of such year, then on January 1 and on the first day of each month during such calendar year Tenant shall pay to Landlord the Monthly Installment of Excess Operating Costs and Excess Taxes for such calendar year, or (ii) if for any reason such statement is given on or after January 1 of such year, then until Tenant is given such statement Tenant shall continue to pay to Landlord, on January 1 and on the first day of each month until the date on which such statement is given, the Monthly Installment of Excess Operating Costs and Excess Taxes for the preceding calendar year, and (A) within thirty (30) days after such statement is given Tenant shall pay to Landlord any underpayment by Tenant, or, in the event of an overpayment by Tenant, such overpayment shall be applied as a credit against the next installment(s) of Rent payable under this Lease, and (B) thereafter Tenant shall pay to Landlord, on the first day of each month during the remainder of the calendar year to which such statement relates, the Monthly Installment of Excess Operating Costs and Excess Taxes for such calendar year. For purposes of clause (ii)(A) of the preceding sentence, any underpayment or overpayment shall be determined based on the amount of Monthly Installments of Excess Operating Costs and Excess Taxes paid by Tenant for such calendar year prior to the date on which such statement is given relative to the amount of Monthly Installments of Excess Operating Costs and Excess Taxes that would have been payable by Tenant prior to the date on which such statement is given if such statement had been given prior to January 1 of such calendar year. Landlord may, from time to time during any calendar year after the Base Year (but not more frequently than once during any calendar year), notify Tenant in writing of any change in Landlord's estimate of Excess Operating Costs or Excess Taxes, or both of them, for the remainder of such calendar year, in which event the Monthly Installment of Excess Operating Costs and Excess Taxes payable for each of the remaining months of such calendar year shall be adjusted to reflect such change. B. On approximately the first day of April of the first year after the Base Year (or as soon thereafter as is practicable), Landlord shall give Tenant a statement of the actual Excess Taxes and Operating Costs during such calendar year and Excess Taxes incurred the Tenant’s Proportionate Share thereof showing in reasonable detail the information relevant and necessary to the exact calculation of these amounts. If the amount payable by the Tenant as shown on such statement Is greater or paid for less than the Base Year. On approximately the first day of April aggregate of the second year amounts paid on account of Taxes and Operating Costs by the Tenant to the Landlord pursuant to this Section, the proper adjustment shall be made within fourteen (14) days after delivery of the Base Year statement. Any payment made by the Landlord or made by the Tenant and each subsequent year during accepted by the Term Landlord in respect of any adjustment made hereunder, shall be without prejudice to the right of the Landlord to claim a re-adjustment provided such claim is made within twelve (or 12) months to the date of delivery of the statement referred to in this Section. If for any reason beyond the Landlord’s control the Landlord is unable to deliver the statement hereinbefore referred to within the said period of ninety (90) days, the Landlord shall take all reasonable steps as may be necessary to deliver such statement as soon thereafter as is practicable)reasonably possible and the failure to provide such statement within the said period shall not entitle the Tenant to withhold any sum payable to the Landlord hereunder, or to claim damages from the Landlord. The certificate of an accountant appointed by the Landlord shall give Tenant a statement of the actual Excess Operating Costs and Excess Taxes incurred or paid for the preceding calendar year and of Tenant's Share thereof (the "Reconciliation Statement"). Within thirty (30) days after such statement is given, Tenant shall pay to Landlord the amount by which Tenant's Share of Excess Operating Costs and Excess Taxes for such preceding calendar year, as shown on Landlord's statement, exceeds the aggregate of the amount paid by Tenant therefor, or, in the event of a dispute be conclusive and binding upon the Landlord and the Tenant as to any overpayment by Tenantamount payable from time to time under this Section. Notwithstanding the provisions of this Section, such overpayment by Tenant if at any time during any fiscal period the Buildings shall be applied as a credit against the next installment(s) of Rent payable under this Lease. Section 4.2 If the Building is not fully occupied (meaning ninety-five less than one hundred percent (95100%) of the Building RSF) during any full or fractional calendar year of the Term (including, without limitationoccupied by tenants, the Base Year), Landlord shall ▇▇▇▇ the actual right to adjust any cost incurred in the Buildings that is directly related to tenant occupancy so that the Landlord will fully recover the Tenant’s Proportionate Share of its expenditure and Operating Costs and Taxes for such calendar year shall be adjusted to the amount that, in the reasonable estimation of Landlord, which would have been incurred or paid if the Building Buildings had been fully one hundred percent (100%) occupied for such calendar year. Section 4.3 If at any time during the Term taxes, assessments, excises, levies, or other fees or charges of any kind or nature whatsoever by any public authority are levied, imposed, assessed, charged, confirmed, or imposed on the rents received from the Project, then the same shall be paid when due by Tenant to the extent attributable to the Rent payable hereunder by Tenant or reserved herein. Tenant shall pay when due any taxes, assessments, excises, levies, and other fees and charges of any kind or nature whatsoever by any public authority that are now or hereafter levied, imposed, assessed, charged, confirmed, or imposed on or against (i) the personal property in the Premises, or (ii) the leasehold improvements in the Premises (but only if and to the extent similar leasehold improvements in the premises of other tenants in the Building are also separately taxed or assessed). Section 4.4 Tenant may examine or cause an audit of Landlord's records relating to Operating Costs for a calendar year by giving Landlord Tenant's written request to conduct such examination or audit within thirteen (13) months after Tenant's receipt or deemed receipt whole of the Reconciliation Statement for such calendar year. Such examination or audit shall be conducted during normal business hours, at a time and date acceptable to each of Landlord and Tenant. In the event that, as a result of any such examination or audit, Tenant disputes any payment of Tenant's Share of Excess Operating Costs for the calendar year being examined, and Landlord disagrees with Tenant with respect to such dispute, then Landlord and Tenant shall each select one of its officers or senior managers to represent it, and such representatives shall promptly meet or otherwise communicate and use reasonable, good faith efforts to resolve such dispute. If such representatives do not resolve any such dispute within thirty (30) days after their initial meeting or other communication concerning such dispute, then such dispute shall be resolved by arbitration in accordance with the rules of the American Arbitration Association, with each of Landlord and Tenant paying one-half of the cost of such arbitration. Notwithstanding the foregoing, in no event shall Tenant be entitled to withhold or delay payment of any portion of Excess Operating Costs payable by Tenant hereunder on account of any such disputefiscal period.

Operating Costs and Taxes. Section 4.1 Tenant shall pay to Landlord Tenant's Share of Excess Operating Costs and Excess Taxes for each calendar year or fractional calendar year during the Term in accordance with the terms and provisions of this Article 4. A. (a) Prior to the first business day (or as soon thereafter as is practicable) of each calendar year after the tile Base Year, Landlord shall give Tenant a statement setting forth Landlord's estimate of Excess Operating Costs and Excess Taxes for such calendar year and Tenant's Share thereofhereof. With respect to the first calendar year after the Base Year, (i) if such statement is given prior to January 1 of such year, then on January 1 and on the first day of each month during such calendar year Tenant shall pay to Landlord the Monthly Installment of Excess Operating Costs and Excess Taxes for such calendar year, or (ii) if such statement is given on or after January 1 of such year, then within thirty ten (3010) days after such statement is given Tenant shall pay to Landlord the product of the amount of the Monthly Installment of Excess Operating Costs and Excess Taxes for such calendar year multiplied by the number of months during such calendar year occurring prior to the date of such payment (including the month during which such payment is made) and thereafter Tenant shall pay to Landlord, on the first day of each month during the remainder of such calendar year, the Monthly Installment of Excess Operating Costs and Excess Taxes for such calendar year. With respect to the second and subsequent calendar years after the Base Year, (i) if such statement is given prior to January 1 I of such year, then on January 1 I and on the first day of each month during such calendar year Tenant shall pay to Landlord the Monthly Installment of Excess Operating Costs and Excess Taxes for such calendar year, or (ii) if for any reason such statement is given on or after January 1 of such year, then until Tenant is given such statement Tenant shall continue to pay to Landlord, on January 1 and on the first day of each month until the date on which such statement is given, the tile Monthly Installment of Excess Operating Costs and Excess Taxes for the preceding calendar year, and (A) within thirty ten (3010) days after such statement is given Tenant shall pay to Landlord any underpayment by Tenant, or, in the tile event of an overpayment by Tenant, such overpayment shall be applied as a credit against the next installment(s) of Rent payable under this Lease, and (B) thereafter Tenant shall pay to Landlord, on the tile first day of each month during the remainder of the calendar year to which such statement relates, the Monthly Installment of Excess Operating Costs and Excess Taxes for such calendar year. For purposes of clause (ii)(A) of the preceding sentence, any ally underpayment or overpayment shall be determined based on the amount of Monthly Installments of Excess Operating Costs and Excess Taxes paid by Tenant for such calendar year prior to the date on which such statement is given relative to the amount of Monthly Installments of Excess Operating Costs and Excess Taxes that would have been payable by Tenant prior to the date on which such statement is given if such statement had been given prior to January 1 I of such calendar year. Landlord may, from time to time during any calendar year after the Base Year (but not more frequently than once during any calendar year)Year, notify Tenant in writing of any change in Landlord's estimate of Excess Operating Costs or Excess Taxes, or both of them, for the remainder of such calendar year, in which event the Monthly Installment of Excess Operating Costs and Excess Taxes payable for each of the remaining months of such calendar year shall be adjusted to reflect such change. B. On approximately the first day of April of the first year after the Base Year (or as soon thereafter as is practicable), Landlord shall give Tenant a statement of the actual Excess Operating Costs and Excess Taxes incurred or paid for the Base Year. b) On approximately the first day of April of the second year after the Base Year and each subsequent year during the Term (or as soon thereafter as is practicable), Landlord shall give Tenant a statement of the actual Excess Operating Costs and Excess Taxes incurred or paid for the preceding calendar year and of Tenant's Share thereof (the "Reconciliation Statement")thereof. Within thirty (30) days after such statement is given, Tenant shall pay to Landlord the amount by which Tenant's Share of Excess Operating Costs and Excess Taxes for such preceding calendar year, as shown on Landlord's statement, exceeds the aggregate of the amount paid by Tenant therefor, or, in the event of any overpayment by Tenant, such overpayment by Tenant shall be applied as a credit against the next installment(s) of Rent payable under this Lease. Section 4.2 If the Building is not fully occupied (meaning ninety-five percent (95%) of the Building RSF) during any full or fractional calendar year of the Term (including, without limitation, the Base Year), the actual Operating Costs and Taxes for such calendar year shall be adjusted to the amount that, in the reasonable estimation of Landlord, would have been incurred or paid if the Building had been fully occupied for such calendar year. Section 4.3 If at any time during the Term taxes, assessments, excises, levies, or other fees or charges of any kind or nature whatsoever by any public authority are levied, imposed, assessed, charged, confirmed, or imposed on the rents received from the Project, then the same shall be paid when due by Tenant to the extent attributable to the Rent payable hereunder by Tenant or reserved herein. Tenant shall pay when due any taxes, assessments, excises, levies, and other fees and charges of any kind or nature whatsoever by any public authority that are now or hereafter levied, imposed, assessed, charged, confirmed, or imposed on or against (i) the personal property in the Premises, or (ii) the leasehold improvements in the Premises (but only if and to the extent similar leasehold improvements in the premises of other tenants in the Building are also separately taxed or assessed). Section 4.4 Tenant may examine or cause an audit of Landlord's records relating to Operating Costs for a calendar year by giving Landlord Tenant's written request to conduct such examination or audit within thirteen (13) months after Tenant's receipt or deemed receipt of the Reconciliation Statement for such calendar year. Such examination or audit shall be conducted during normal business hours, at a time and date acceptable to each of Landlord and Tenant. In the event that, as a result of any such examination or audit, Tenant disputes any payment of Tenant's Share of Excess Operating Costs for the calendar year being examined, and Landlord disagrees with Tenant with respect to such dispute, then Landlord and Tenant shall each select one of its officers or senior managers to represent it, and such representatives shall promptly meet or otherwise communicate and use reasonable, good faith efforts to resolve such dispute. If such representatives do not resolve any such dispute within thirty (30) days after their initial meeting or other communication concerning such dispute, then such dispute shall be resolved by arbitration in accordance with the rules of the American Arbitration Association, with each of Landlord and Tenant paying one-half of the cost of such arbitration. Notwithstanding the foregoing, in no event shall Tenant be entitled to withhold or delay payment of any portion of Excess Operating Costs payable by Tenant hereunder on account of any such dispute.