Payment of Additional Rent. (i) Prior to the commencement of each Computation Year or as soon thereafter as practicable, Landlord shall notify Tenant of Landlord’s estimate of the total amounts that will be payable by Tenant under Paragraph 4(b) for the ensuing Computation Year, and Tenant shall pay such estimated Additional Rent on a monthly basis, in advance, on the first day of each month. Tenant shall continue to make said monthly payments until notified by Landlord of a change therein. If at any time or times (but not more frequently than once per Computation Year) Landlord determines that the amounts payable under Paragraph 4(b) for the current Computation Year will vary from Landlord’s estimate given to Tenant, Landlord, by notice to Tenant, may revise the estimate for such Computation Year, and subsequent payments by Tenant for such Computation Year shall be based upon such revised estimate. By April 1 of each calendar year following the initial Computation Year or as soon thereafter as practicable, Landlord shall provide to Tenant a statement (“Annual Statement”) showing the actual Additional Rent due to Landlord under Paragraph 4(b) for the prior Computation Year. If the total of the monthly payments of Additional Rent that Tenant has made for the prior Computation Year under Paragraph 4(b) is less than the actual Additional Rent chargeable to Tenant for such prior Computation Year, then Tenant shall pay the difference in a lump sum within thirty (30) days after receipt of such Annual Statement from Landlord. Any overpayment by Tenant of Additional Rent under Paragraph 4(b) for the prior Computation Year shall, at Landlord’s option, be credited against past due or current amounts owed by Tenant or returned to Tenant in a lump sum payment within ten (10) days after delivery of such Annual Statement. (ii) Landlord’s then-current annual operating and capital budgets for the Building and the Project or the pertinent part thereof shall be used for calculating Tenant’s monthly payment of estimated Additional Rent for the current year, subject to adjustment as provided above. Even though this Lease has expired or terminated and Tenant has vacated the Premises, with respect to the year in which this Lease expires or terminates, subject to the provisions of Paragraph (b)(ii)(K), Tenant shall remain liable for payment of any amount due to Landlord in excess of the estimated Additional Rent previously paid by Tenant, and, conversely, Landlord shall promptly return to Tenant any overpayment of Additional Rent. Failure of Landlord to submit statements as called for herein shall not be deemed a waiver of Tenant’s obligation to pay Additional Rent as herein provided. (iii) Landlord, in its reasonable discretion, shall allocate Operating Expenses, Insurance Expenses, Utility Expenses, or Taxes among office, retail or other portions or occupants of the Project according to reasonable real estate accounting and management principles, consistently applied. With respect to Expenses which Landlord allocates to the Building, Tenant’s “Proportionate Share” shall be the percentage set forth in the Basic Lease Information as Tenant’s Proportionate Share of the Building. With respect to Expenses which Landlord allocates to the Project as a whole or to only a portion of the Project, Tenant’s “Proportionate Share” shall be, with respect to Operating Expenses, Insurance Expenses, Utility Expenses or Taxes which Landlord allocates to the Project as a whole, the percentage set forth in the Basic Lease Information as Tenant’s Proportionate Share of the Project and, with respect to Expenses which Landlord allocates to only a portion of the Project, a percentage calculated by Landlord from time to time in its reasonable discretion and furnished to Tenant in writing, in either case as adjusted by Landlord from time to time for a remeasurement of or changes in the Premises or the Project, whether such changes in size are due to an addition to or a sale or conveyance of a portion of the Project or otherwise. (iv) If the average occupancy level of the Building or the Project for the Base Year and/or any subsequent Computation Year is not one hundred percent (100%) of full occupancy, then the Expenses for such year shall be adjusted by Landlord, in its reasonable discretion, to reflect the Expenses which would have been paid or incurred had the Building or the Project, as applicable, been one hundred percent (100%) occupied during such year. (v) Without limiting the foregoing terms of Paragraph 4(c), Landlord reserves the right from time to time to remeasure the Project in accordance with the commonly used or current or revised standards promulgated from time to time by the Building Owners and Managers Association (BOMA) or other generally accepted measurement standards utilized by Landlord and to thereafter adjust the Proportionate Share(s) of Tenant and any other affected tenants of the Project. Following receipt of written notice from Landlord of such re-measurement, Tenant’s Proportionate Share of the Project shall be adjusted in accordance with the revised measurement of the Project. In no event shall any such adjustment result in an increase in Base Rent under this Lease. (vi) Notwithstanding any contrary provision hereof, if, after Landlord’s delivery of any Annual Statement, an increase or decrease in Taxes occurs for the applicable Computation Year or Base Year (whether by reason of reassessment, supplemental assessment, error, or otherwise), Taxes for such Computation Year or the Base Year (and in the case of an adjustment in the Base Year, the Taxes for subsequent Computation Years) shall be retroactively adjusted. If, as a result of such adjustment, Tenant has underpaid or overpaid Tenant’s Proportionate Share of Taxes, Tenant shall pay Landlord the amount of such underpayment within thirty (30) days after receipt of an invoice therefor, or Landlord, at Landlord’s option, shall credit the amount of such overpayment against past due or current amounts owed by Tenant or return the overpayment to Tenant in a lump sum payment within thirty (30) days after such adjustment.
Appears in 2 contracts
Sources: Lease Agreement (10x Genomics, Inc.), Lease Agreement (10X Genomics, Inc.)
Payment of Additional Rent. (i) Prior to Within ninety (90) days after the commencement end of the Base Year and each Computation Year or as soon thereafter as practicable, Landlord shall notify give to Tenant notice of Landlord’s estimate of the total amounts that will be payable by Tenant under Paragraph 4(b) for the ensuing following Computation Year, and Tenant shall pay such estimated Additional Rent on a monthly basis, in advance, on the first (1st) day of each month. Tenant shall continue to make said monthly payments of estimated Additional Rent until notified by Landlord of a change thereinprovides at least thirty (30) days’ prior notice and reasonably justifies any increase in such monthly payments. If at any time or times (but not more frequently than once per Computation Year) Landlord reasonably determines that the amounts payable under Paragraph 4(b) for the current Computation Year will vary from Landlord’s estimate given to Tenant, Landlord, by at least thirty (30) days’ notice to Tenant, may revise the estimate for such Computation Year, and subsequent payments by Tenant for such Computation Year shall be based upon such revised estimate. By April 1 of each Each calendar year following the initial Computation Year or as soon thereafter as practicableYear, Landlord shall use commercially reasonable efforts to provide to Tenant by April 1, a statement (“Annual Statement”) showing the actual Additional Rent due to Landlord under Paragraph 4(b) for the prior Computation Year. If the total of the monthly payments of Additional Rent that Tenant has made for the prior Computation Year under Paragraph 4(b) is less than the actual Additional Rent chargeable to Tenant for such prior Computation Year, then Tenant shall pay the difference in a lump sum within thirty twenty (3020) days after receipt of such Annual Statement statement from Landlord. Any overpayment by Tenant of Additional Rent under Paragraph 4(b) for the prior Computation Year shall, at Landlord’s option, be either credited against past towards the Rent next due or current amounts owed by Tenant or returned to Tenant in a lump sum payment within ten (10) days after delivery of such Annual Statementstatement; provided, however, that upon the expiration of the Term, or earlier termination, Landlord shall, within sixty (60) days thereafter, provide Tenant a reconciliation of estimated payments of Additional Rent and estimated actual Additional Rent and ▇▇▇▇ Tenant for any Additional Rent due or reimburse any overpayment at the time of such reconciliation.
(ii) Landlord’s then-current annual operating and capital budgets for the Building and the Project or the pertinent part thereof shall be used for purposes of calculating Tenant’s monthly payment of estimated Additional Rent for the current year, subject to adjustment as provided above. Landlord shall make the final determination of Additional Rent for the year in which this Lease terminates as soon as possible after termination of such year. Even though this Lease the Term has expired or terminated and Tenant has vacated the Premises, with respect to the year in which this Lease expires or terminates, subject to the provisions of Paragraph (b)(ii)(K), Tenant shall remain liable for payment of any amount due to Landlord in excess of the estimated Additional Rent previously paid by TenantTenant for a period of twenty-four (24) months following the date that the Lease expires, and, conversely, Landlord shall promptly return within twenty (20) days of determination to Tenant any overpayment of Additional Rentmade by Tenant during such period. Failure The failure of Landlord to submit statements within twenty-four (24) months of the respective statement due date as called for herein shall not be deemed a waiver of Tenant’s obligation to pay Additional Rent as herein provided.
(iii) Landlord, in its reasonable discretion, shall allocate With respect to Operating Expenses, Insurance Expenses, Utility Expenses, Expenses or Taxes among office, retail or other portions or occupants of the Project according to reasonable real estate accounting and management principles, consistently applied. With respect to Expenses which Landlord allocates to the Building, Tenant’s “Proportionate Share” shall be the percentage set forth in the Basic Lease Information as Tenant’s Proportionate Share of the Building, as adjusted by Landlord from time to time for changes in the physical size of the Premises or the Building, whether such changes in size are due to an addition to or a sale or conveyance of a portion of the Building or otherwise. With respect to Operating Expenses, Insurance Expenses, Utility Expenses or Taxes which Landlord reasonably allocates to the Project as a whole or to only a portion of the Project, Tenant’s “Proportionate Share” shall be, with respect to Operating Expenses, Insurance Expenses, Utility Expenses or Taxes which Landlord allocates to the Project as a whole, the percentage set forth in the Basic Lease Information as Tenant’s Proportionate Share of the Project and, with respect to Operating Expenses, Insurance Expenses, Utility Expenses or Taxes which Landlord allocates to only a portion of the Project, a percentage calculated by Landlord from time to time in its reasonable discretion and furnished to Tenant in writing, in either case as adjusted by Landlord from time to time for a remeasurement of or changes in the physical size of the Premises or the Project, whether such changes in size are due to an addition to or a sale or conveyance of a portion of the Project or otherwise. Notwithstanding the foregoing provisions of this Paragraph 4(d)(iii), Landlord may, in its reasonable discretion, equitably adjust Tenant’s Proportionate Share(s) for all or part of any item of expense or cost reimbursable by Tenant that relates to a repair, replacement, or service that benefits only the Premises or only a portion of the Building and/or the Project or that varies with the occupancy of the Building and/or the Project. Without limiting the generality of the foregoing, Tenant understands and agrees that Landlord shall have the right to adjust Tenant’s Proportionate Share(s) of any Utility Expenses based upon Tenant’s use of the Utilities or similar services as reasonably estimated and determined by Landlord based upon factors such as size of the Premises and intensity of use of such Utilities by Tenant such that Tenant shall pay the portion of such charges reasonably consistent with Tenant’s excessive use or underuse of such Utilities and similar services. If Tenant disputes any such estimate or determination of Utility Expenses, then Tenant shall either pay the estimated adjusted amount (and, if disputed, resolve the dispute pursuant to the Interim Resolution procedure specified in Paragraph 66 below) or, with the prior written approval of Landlord, which approval may be given or withheld in Landlord’s sole and absolute discretion, cause the Premises to be separately metered, at Tenant’s sole expense.
(iv) If In the event the average occupancy level of the Building or the Project for the Base Year and/or any subsequent Computation Year is not one hundred ninety-five percent (10095%) or more of full occupancyoccupancy and fully used, then the Operating Expenses for such year Base Year and/or subsequent Computation Year shall be adjusted apportioned among the tenants by Landlord, in its reasonable discretion, the Landlord to reflect the Expenses those costs which would have been paid or incurred occurred had the Building or the Project, as applicable, been one hundred ninety-five percent (10095%) occupied during such yearBase Year and/or subsequent Computation Year.
(v) Without limiting the foregoing terms of Paragraph 4(c), Landlord reserves the right from time to time to remeasure the Premises, the Building and/or the Project in accordance with the commonly used or current or revised standards promulgated from time to time by the Building Owners and Managers Association (BOMA) or the American National Standards Institute or other generally accepted measurement standards utilized by Landlord and to thereafter adjust Landlord, but in no event shall the Base Rent or Proportionate Share(s) of Tenant and any other affected tenants of the Project. Following receipt of written notice from Landlord be adjusted solely by reason of such re-measurement, Tenant’s Proportionate Share of the Project shall be adjusted in accordance with the revised measurement of the Project. In no event shall any such adjustment result in an increase in Base Rent under this Leaseremeasurement.
(vi) Notwithstanding any contrary provision hereof, if, after Landlord’s delivery In the event that the Commencement Date shall be a day other than the first day of any Annual Statement, an increase or decrease in Taxes occurs for the applicable Computation Year or Base Year (whether by reason of reassessment, supplemental assessment, error, or otherwise), Taxes for such a Computation Year or the Base Year (and in Expiration Date or other termination of this Lease shall be a day other than the case last day of an adjustment in the Base a Computation Year, the Taxes for subsequent amounts payable by Tenant pursuant to Paragraph 4(b) above with respect to the year in which such Commencement Date or Expiration Date (or other termination of this Lease) occurs will be prorated on the basis on which the number of days of the Term included in such year bears to three hundred sixty (360).
(vii) With respect to any Expenses that are “incurred” but not paid by Landlord in any Computation Years) Year, such Expenses shall only be included to the extent such inclusion is generally consistent with commonly and consistently utilized commercial real estate accounting principles. Expenses shall be retroactively adjusted. If, as a result of such adjustment, Tenant has underpaid or overpaid Tenant’s Proportionate Share of Taxes, Tenant shall pay Landlord reduced by the amount of all reimbursements, recoupments, payments, credits, allowances or the like actually received by Landlord in respect of amounts previously billed to Tenant as Expenses; provided, however, that Landlord may include in Expenses, the reasonable and actual costs and expenses, if any, incurred by Landlord in obtaining such underpayment within thirty reimbursements, recoupments, payments, credits, allowances or the like. Landlord shall not collect as Additional Rent an amount that would reimburse Landlord for a sum in excess of one hundred percent (30100%) days of Expenses in any calendar year and Landlord shall not recover any item of Expenses more than once. Landlord shall at all times use its best efforts to operate the Project in an economically reasonable manner consistent with other First-Class Buildings.
(viii) Landlord shall have no right to ▇▇▇▇ Tenant for any Expenses (other than Taxes) attributable to a Computation Year after receipt the date which is twenty-four (24) months after the end of an invoice thereforsuch Computation Year. Landlord shall have no obligation to return, rebate or credit to Tenant any refund, rebate, or Landlord, at Landlord’s option, shall credit return of Expenses (other than Taxes) received by Landlord after the amount date which is twenty-four (24) months after the Expiration Date of such overpayment against past due or current amounts owed by Tenant or return the overpayment to Tenant in a lump sum payment within thirty (30) days after such adjustmentthis Lease.
Appears in 1 contract
Payment of Additional Rent. (i) Prior Within thirty (30) days prior to the commencement end of each Computation Year or as soon thereafter as practicableYear, Landlord shall notify deliver Notice to Tenant of Landlord’s good faith estimate of the total amounts that will to be payable by Tenant under Paragraph Section 4(b) for the ensuing following Computation Year, together with reasonable documentation in support of such good faith estimate, and Tenant shall pay such estimated Additional Rent on a monthly basis, in advance, on the first day of each month. Tenant shall continue to make said monthly payments until notified by Landlord of a change therein. If at any time or times (but not more frequently than once per calendar month for such following Computation Year) Landlord determines that the amounts payable under Paragraph 4(b) . Landlord’s then-current annual operating and capital budgets for the current Computation Year will vary from LandlordSan Diego Facility shall be used for purposes of calculating Tenant’s estimate given to Tenant, Landlord, by notice to Tenant, may revise monthly payment of estimated Additional Rent for the estimate for such corresponding Computation Year, and subsequent payments by Tenant for such Computation Year shall be based upon such revised estimatesubject to adjustment as provided herein. 739237752.8 5
(ii) By April 1 of each calendar year following the initial Computation Year or as soon thereafter as practicableYear, Landlord shall provide to Tenant with a statement (the “Annual Statement”) showing the actual Additional Rent due to Landlord under Paragraph 4(b) for the prior Computation YearYear and setting forth in reasonable detail the basis for the calculation of actual Additional Rent, together with reasonable supporting documentation. If the total of the monthly payments of Additional Rent that Tenant has made for the prior Computation Year under Paragraph 4(b) is less than the actual Additional Rent chargeable to Tenant for such prior Computation Year, then Tenant shall pay the difference in a lump sum within thirty fifteen (3015) days Business Days after receipt of such Annual Statement statement from Landlord. Any overpayment by Tenant of Additional Rent under Paragraph 4(b) for the prior Computation Year shall, at LandlordTenant’s option, be either credited against past towards the Additional Rent next due or current amounts owed by Tenant or returned to Tenant in a lump sum payment within ten fifteen (1015) days after delivery of such Annual StatementBusiness Days.
(iiiii) Landlord’s then-current annual operating and capital budgets for Landlord shall endeavor to make the Building and the Project or the pertinent part thereof shall be used for calculating Tenant’s monthly payment final determination of estimated Additional Rent for the current year, subject to adjustment as provided above. Even though Computation Year in which this Lease expires or terminates as soon as possible after the end of such Computation Year, but in no event later than ninety (90) days thereafter or as soon as practicable thereafter. With respect to the Computation Year in which this Lease expires or terminates, even if the Term has expired or terminated and Tenant has vacated the Premises, with respect to the year in which this Lease expires or terminates, subject to the provisions of Paragraph (b)(ii)(K), Tenant shall remain liable for payment of any amount due to Landlord in excess of the estimated Additional Rent previously paid by Tenant, and, conversely, Landlord shall promptly return to Tenant any overpayment of Additional Rentoverpayment. Failure of Landlord Notwithstanding anything to submit statements as called for herein the contrary contained in this Lease, Tenant shall not be deemed a waiver of Tenant’s have no obligation to pay Additional Rent as herein provided.
any Expenses to Landlord which are first billed by the Landlord after the date which is twelve (iii12) Landlord, in its reasonable discretion, shall allocate Operating Expenses, Insurance Expenses, Utility Expenses, or Taxes among office, retail or other portions or occupants months after the expiration of the Project according to reasonable real estate accounting and management principlesTerm, consistently applied. With respect to Expenses except for Taxes for which Tenant is responsible under this Lease and/or any costs for which Landlord allocates to is billed after the Building, Tenant’s “Proportionate Share” shall be the percentage set forth in the Basic Lease Information as Tenant’s Proportionate Share of the Building. With respect to Expenses which Landlord allocates to the Project as a whole or to only a portion of the Project, Tenant’s “Proportionate Share” shall be, with respect to Operating Expenses, Insurance Expenses, Utility Expenses or Taxes which Landlord allocates to the Project as a whole, the percentage set forth in the Basic Lease Information as Tenant’s Proportionate Share of the Project and, with respect to Expenses which Landlord allocates to only a portion of the Project, a percentage calculated by Landlord from time to time in its reasonable discretion and furnished to Tenant in writing, in either case as adjusted by Landlord from time to time for a remeasurement of or changes in the Premises or the Project, whether such changes in size are due to an addition to or a sale or conveyance of a portion of the Project or otherwise.
(iv) If the average occupancy level of the Building or the Project for the Base Year and/or any subsequent Computation Year is not one hundred percent (100%) of full occupancy, then the Expenses for such year shall be adjusted by Landlord, in its reasonable discretion, to reflect the Expenses which would have been paid or incurred had the Building or the Project, as applicable, been one hundred percent (100%) occupied during such year.
(v) Without limiting the foregoing terms of Paragraph 4(c), Landlord reserves the right from time to time to remeasure the Project in accordance with the commonly used or current or revised standards promulgated from time to time by the Building Owners and Managers Association (BOMA) or other generally accepted measurement standards utilized by Landlord and to thereafter adjust the Proportionate Share(s) of Tenant and any other affected tenants of the Project. Following receipt of written notice from Landlord expiration of such re12-measurement, Tenant’s Proportionate Share of the Project shall be adjusted in accordance with the revised measurement of the Project. In no event shall any such adjustment result in an increase in Base Rent under this Leasemonth period.
(vi) Notwithstanding any contrary provision hereof, if, after Landlord’s delivery of any Annual Statement, an increase or decrease in Taxes occurs for the applicable Computation Year or Base Year (whether by reason of reassessment, supplemental assessment, error, or otherwise), Taxes for such Computation Year or the Base Year (and in the case of an adjustment in the Base Year, the Taxes for subsequent Computation Years) shall be retroactively adjusted. If, as a result of such adjustment, Tenant has underpaid or overpaid Tenant’s Proportionate Share of Taxes, Tenant shall pay Landlord the amount of such underpayment within thirty (30) days after receipt of an invoice therefor, or Landlord, at Landlord’s option, shall credit the amount of such overpayment against past due or current amounts owed by Tenant or return the overpayment to Tenant in a lump sum payment within thirty (30) days after such adjustment.
Appears in 1 contract
Sources: Lease Agreement (Quidel Corp /De/)
Payment of Additional Rent. (i) Prior to the commencement of each Computation Year or as soon thereafter as practicable, Landlord shall notify Tenant of Landlord’s estimate of the total amounts that will be payable by Tenant under Paragraph 4(b) for the ensuing Computation Year, and Tenant shall pay such estimated Additional Rent on a monthly basis, in advance, on the first day of each month. Tenant shall continue to make said monthly payments until notified by Landlord of a change therein. If at any time or times (but not more frequently than once per Computation Year) Landlord determines that the amounts payable under Paragraph 4(b) for the current Computation Year will vary from Landlord’s estimate given to Tenant, Landlord, by notice to Tenant, may revise the estimate for such Computation Year, and subsequent payments by Tenant for such Computation Year shall be based upon such revised estimate. By April 1 of each calendar year following the initial Computation Year or as soon thereafter as practicable, Landlord shall provide to Tenant a statement (“Annual Statement”) showing the actual Additional Rent due to Landlord under Paragraph 4(b) for the prior Computation Year. If the total of the monthly payments of Additional Rent that Tenant has made for the prior Computation Year under Paragraph 4(b) is less than the actual Additional Rent chargeable to Tenant for such prior Computation Year, then Tenant shall pay the difference in a lump sum within thirty (30) days after receipt of such Annual Statement from Landlord. Any overpayment by Tenant of Additional Rent under Paragraph 4(b) for the prior Computation Year shall, at Landlord’s option, be credited against past due or current amounts owed by Tenant or returned to Tenant in a lump sum payment within ten (10) days after delivery of such Annual Statement.
(ii) Landlord’s then-current annual operating and capital budgets for the Building and the Project or the pertinent part thereof shall be used for calculating Tenant’s monthly payment of estimated Additional Rent for the current year, subject to adjustment as provided above. Even though this Lease has expired or terminated and Tenant has vacated the Premises, with respect to the year in which this Lease expires or terminates, subject to the provisions of Paragraph (b)(ii)(K), Tenant shall remain liable for payment of any amount due to Landlord in excess of the estimated Additional Rent previously paid by Tenant, and, conversely, Landlord shall promptly return to Tenant any overpayment of Additional Rent. Failure of Landlord to submit statements as called for herein shall not be deemed a waiver of Tenant’s obligation to pay Additional Rent as herein provided.
(iii) Landlord, in its reasonable discretion, shall allocate Operating Expenses, Insurance Expenses, Utility Expenses, or Taxes among office, retail or other portions or occupants of the Project according to reasonable real estate accounting and management principles, consistently applied. With respect to Expenses which Landlord allocates to the Building, Tenant’s “Proportionate Share” shall be the percentage set forth in the Basic Lease Information as Tenant’s Proportionate Share of the Building. With respect to Expenses which Landlord allocates to the Project as a whole or to only a portion of the Project, Tenant’s “Proportionate Share” shall be, with respect to Operating Expenses, Insurance Expenses, Utility Expenses or Taxes which Landlord allocates to the Project as a whole, the percentage set forth in the Basic Lease Information as Tenant’s Proportionate Share of the Project and, with respect to Expenses which Landlord allocates to only a portion of the Project, a percentage calculated by Landlord from time to time in its reasonable discretion and furnished to Tenant in writing, in either case as adjusted by Landlord from time to time for a remeasurement of or changes in the Premises or the Project, whether such changes in size are due to an addition to or a sale or conveyance of a portion of the Project or otherwise.
(iv) If the average occupancy level of the Building or the Project for the Base Year and/or any subsequent Computation Year is not one hundred percent (100%) of full occupancy, then the Expenses for such year shall be adjusted by Landlord, in its reasonable discretion, to reflect the Expenses which would have been paid or incurred had the Building or the Project, as applicable, been one hundred percent (100%) occupied during such year.
(v) Without limiting the foregoing terms of Paragraph 4(c), Landlord reserves the right from time to time to remeasure the Project in accordance with the commonly used or current or revised standards promulgated from time to time by the Building Owners and Managers Association (BOMA) or other generally accepted measurement standards utilized by Landlord and to thereafter adjust the Proportionate Share(s) of Tenant and any other affected tenants of the Project. Following receipt of written notice from Landlord of such re-measurement, Tenant’s Proportionate Share of the Project shall be adjusted in accordance with the revised measurement of the Project. In no event shall any such adjustment result in an increase in Base Rent under this Lease.
(vi) Notwithstanding any contrary provision hereof, if, after Landlord’s delivery of any Annual Statement, an increase or decrease in Taxes occurs for the applicable Computation Year or Base Year (whether by reason of reassessment, supplemental assessment, error, or otherwise), Taxes for such Computation Year or the Base Year (and in the case of an adjustment in the Base Year, the Taxes for subsequent Computation Years) shall be retroactively adjusted. If, as a result of such adjustment, Tenant has underpaid or overpaid Tenant’s Proportionate Share of Taxes, Tenant shall pay Landlord the amount of such underpayment within thirty (30) days after receipt of an invoice therefor, or Landlord, at Landlord’s option, shall credit the amount of such overpayment against past due or current amounts owed by Tenant or return the overpayment to Tenant in a lump sum payment within thirty (30) days after such adjustment.11
Appears in 1 contract
Sources: Lease Agreement (10x Genomics, Inc.)
Payment of Additional Rent. (i) Prior Within thirty (30) days prior to the commencement end of each Computation Year or as soon thereafter as practicableYear, Landlord shall notify deliver Notice to Tenant of Landlord’s good faith estimate of the total amounts that will to be payable by Tenant under Paragraph Section 4(b) for the ensuing following Computation Year, together with reasonable documentation in support of such good faith estimate, and Tenant shall pay such estimated Additional Rent on a monthly basis, in advance, on the first day Business Day of each month. Tenant shall continue to make said monthly payments until notified by Landlord of a change therein. If at any time or times (but not more frequently than once per calendar month for such following Computation Year) Landlord determines that the amounts payable under Paragraph 4(b) . Landlord’s then-current annual operating and capital budgets for the current Computation Year will vary from LandlordSan Diego Facility shall be used for purposes of calculating Tenant’s estimate given to Tenant, Landlord, by notice to Tenant, may revise monthly payment of estimated Additional Rent for the estimate for such corresponding Computation Year, and subsequent payments by Tenant for such Computation Year shall be based upon such revised estimate. subject to adjustment as provided herein.
(ii) By April 1 of each calendar year following the initial Computation Year or as soon thereafter as practicableYear, Landlord shall provide to Tenant with a statement (the “Annual Statement”) showing the actual Additional Rent due to Landlord under Paragraph 4(b) for the prior Computation YearYear and setting forth in reasonable detail the basis for the calculation of actual Additional Rent, together with reasonable supporting documentation. If the total of the monthly payments of Additional Rent that Tenant has made for the prior Computation Year under Paragraph 4(b) is less than the actual Additional Rent chargeable to Tenant for such prior Computation Year, then Tenant shall pay the difference in a lump sum within thirty fifteen (3015) days Business Days after receipt of such Annual Statement statement from Landlord. Any overpayment by Tenant of Additional Rent under Paragraph 4(b) for the prior Computation Year shall, at LandlordTenant’s option, be either credited against past towards the Additional Rent next due or current amounts owed by Tenant or returned to Tenant in a lump sum payment within ten fifteen (1015) days after delivery of such Annual StatementBusiness Days.
(iiiii) Landlord’s then-current annual operating and capital budgets for Landlord shall endeavor to make the Building and the Project or the pertinent part thereof shall be used for calculating Tenant’s monthly payment final determination of estimated Additional Rent for the current year, subject to adjustment as provided above. Even though Computation Year in which this Lease expires or terminates as soon as possible after the end of such Computation Year, but in no event later than ninety (90) days thereafter or as soon as practicable thereafter. With respect to the Computation Year in which this Lease expires or terminates, even if the Term has expired or terminated and Tenant has vacated the Premises, with respect to the year in which this Lease expires or terminates, subject to the provisions of Paragraph (b)(ii)(K), Tenant shall remain liable for payment of any amount due to Landlord in excess of the estimated Additional Rent previously paid by Tenant, and, conversely, Landlord shall promptly return to Tenant any overpayment of Additional Rentoverpayment. Failure of Landlord Notwithstanding anything to submit statements as called for herein the contrary contained in this Lease, Tenant shall not be deemed a waiver of Tenant’s have no obligation to pay Additional Rent as herein provided.
any Expenses to Landlord which are first billed by the Landlord after the date which is twelve (iii12) Landlord, in its reasonable discretion, shall allocate Operating Expenses, Insurance Expenses, Utility Expenses, or Taxes among office, retail or other portions or occupants months after the expiration of the Project according to reasonable real estate accounting and management principlesTerm, consistently applied. With respect to Expenses except for Taxes for which Tenant is responsible under this Lease and/or any costs for which Landlord allocates to is billed after the Building, Tenant’s “Proportionate Share” shall be the percentage set forth in the Basic Lease Information as Tenant’s Proportionate Share of the Building. With respect to Expenses which Landlord allocates to the Project as a whole or to only a portion of the Project, Tenant’s “Proportionate Share” shall be, with respect to Operating Expenses, Insurance Expenses, Utility Expenses or Taxes which Landlord allocates to the Project as a whole, the percentage set forth in the Basic Lease Information as Tenant’s Proportionate Share of the Project and, with respect to Expenses which Landlord allocates to only a portion of the Project, a percentage calculated by Landlord from time to time in its reasonable discretion and furnished to Tenant in writing, in either case as adjusted by Landlord from time to time for a remeasurement of or changes in the Premises or the Project, whether such changes in size are due to an addition to or a sale or conveyance of a portion of the Project or otherwise.
(iv) If the average occupancy level of the Building or the Project for the Base Year and/or any subsequent Computation Year is not one hundred percent (100%) of full occupancy, then the Expenses for such year shall be adjusted by Landlord, in its reasonable discretion, to reflect the Expenses which would have been paid or incurred had the Building or the Project, as applicable, been one hundred percent (100%) occupied during such year.
(v) Without limiting the foregoing terms of Paragraph 4(c), Landlord reserves the right from time to time to remeasure the Project in accordance with the commonly used or current or revised standards promulgated from time to time by the Building Owners and Managers Association (BOMA) or other generally accepted measurement standards utilized by Landlord and to thereafter adjust the Proportionate Share(s) of Tenant and any other affected tenants of the Project. Following receipt of written notice from Landlord expiration of such re12-measurement, Tenant’s Proportionate Share of the Project shall be adjusted in accordance with the revised measurement of the Project. In no event shall any such adjustment result in an increase in Base Rent under this Leasemonth period.
(vi) Notwithstanding any contrary provision hereof, if, after Landlord’s delivery of any Annual Statement, an increase or decrease in Taxes occurs for the applicable Computation Year or Base Year (whether by reason of reassessment, supplemental assessment, error, or otherwise), Taxes for such Computation Year or the Base Year (and in the case of an adjustment in the Base Year, the Taxes for subsequent Computation Years) shall be retroactively adjusted. If, as a result of such adjustment, Tenant has underpaid or overpaid Tenant’s Proportionate Share of Taxes, Tenant shall pay Landlord the amount of such underpayment within thirty (30) days after receipt of an invoice therefor, or Landlord, at Landlord’s option, shall credit the amount of such overpayment against past due or current amounts owed by Tenant or return the overpayment to Tenant in a lump sum payment within thirty (30) days after such adjustment.
Appears in 1 contract
Sources: Lease Agreement (Quidel Corp /De/)
Payment of Additional Rent. (i1) Prior to the Upon commencement of each Computation Year or as soon thereafter as practicablethis Lease, Landlord shall notify submit to Tenant of Landlord’s an estimate of the total amounts that will be payable by Tenant under Paragraph 4(b) monthly Additional Rent for the ensuing Computation Year, period between the Commencement Date and the following December 31 and Tenant shall pay such estimated Additional Rent on a monthly basis, in advance, on the first day of each month. Tenant shall continue to make said monthly payments until notified by Landlord of a change therein. Thereafter, within Ninety (90) days of the end of each Computation Year or as soon thereafter practicable, Landlord shall give to Tenant Notice of Landlord's estimate of the total amounts that will be payable by Tenant under Paragraph 4(b) for the following Computation Year. If at any time or times (but not more frequently than once per Computation Year) Landlord determines that the amounts payable under Paragraph 4(b) for the current Computation Year will vary from Landlord’s 's estimate given to Tenant, Landlord, by notice to Tenant, may revise the estimate for such Computation Year, and subsequent payments by Tenant for such Computation Year shall be based upon such revised estimate. By April 1 of each calendar year following the initial Computation Year or as soon thereafter as practicableYear, Landlord shall endeavor to provide to Tenant a statement (“Annual Statement”) showing the actual Additional Rent due to Landlord under Paragraph 4(b) for the prior Computation Year, to be prorated for partial Computation Years during the Term. If the total of the monthly payments of Additional Rent that Tenant has made for the prior Computation Year under Paragraph 4(b) is less than the actual Additional Rent chargeable to Tenant for such prior Computation Year, then Tenant shall pay the difference in a lump sum within thirty (30) days after receipt of such Annual Statement statement from Landlord. Any overpayment by Tenant of Additional Rent under Paragraph 4(b) for the prior Computation Year shall, at Landlord’s 's option, be credited against past towards the Additional Rent next due or current amounts owed by Tenant or returned to Tenant in a lump sum payment within ten thirty (1030) days after delivery of such Annual Statementstatement.
(ii2) Landlord’s 's then-current annual operating and capital budgets for the Building and the Project or the pertinent part thereof shall be used for purposes of calculating Tenant’s 's monthly payment of estimated Additional Rent for the current year, subject to adjustment as provided above. Landlord shall make the final determination of Additional Rent for the year in which this Lease terminates as soon as possible after termination of such year. Even though this Lease the Term has expired or terminated and Tenant has vacated the Premises, with respect to the year in which this Lease expires or terminates, subject to the provisions of Paragraph (b)(ii)(K), Tenant shall remain liable for payment of any amount due to Landlord in excess of the estimated Additional Rent previously paid by Tenant, and, conversely, Landlord shall promptly return to Tenant any overpayment of Additional Rentoverpayment. Failure of Landlord to submit statements as called for herein shall not be deemed a waiver of Tenant’s 's obligation to pay Additional Rent as herein provided.
(iii3) Landlord, in its reasonable discretion, shall allocate With respect to Operating Expenses, Insurance Expenses, Utility Expenses, Expenses or Taxes among office, retail or other portions or occupants of the Project according to reasonable real estate accounting and management principles, consistently applied. With respect to Expenses which Landlord allocates to the Building, Tenant’s “'s "Proportionate Share” " shall be the percentage set forth in the Basic Lease Information as Tenant’s 's Proportionate Share of the Building, as adjusted by Landlord from time to time for a remeasurement of or changes in the physical size of the Premises or the Building, whether such changes in size are due to an addition to or a scale or conveyance of a portion of the Building or otherwise. With respect to Operating Expenses, Insurance Expenses, Utility Expenses or Taxes which Landlord allocates to the Project as a whole or to only a portion of the Project, Tenant’s “'s "Proportionate Share” " shall be, with respect to Operating Expenses, Expenses Insurance Expenses, Utility Expenses or Taxes which Landlord allocates to the Project as a whole, the percentage set forth in the Basic Lease Information as Tenant’s 's Proportionate Share of the Project and, with respect to Expenses which Landlord allocates to only a portion of the Project, a percentage calculated by Landlord from time to time in its reasonable sole discretion and furnished to Tenant in writing, in either case as adjusted by Landlord from time to time for a remeasurement of or changes in the physical size of the Premises or the Project, whether such changes in size are due to an addition to or a sale or conveyance of a portion of the Project or otherwise. Notwithstanding the foregoing, Landlord may equitably adjust Tenant's Proportionate Share(s) for all or part of any item of expense or cost reimbursable by Tenant that relates to a repair, replacement, or service that benefits only the Premises or only a portion of the Building and/or the Project or that varies with the occupancy of the Building and/or the Project. Without limiting the generality of the foregoing, Tenant understands and agrees that if some or all Utilities serving the Premises are not separately metered Landlord shall have the right to adjust Tenant's Proportionate Share(s) of any Utility Expenses based upon Tenant's use of the Utilities or similar services as reasonably estimated and determined by Landlord based upon factors such as size of the Premises and intensity of use of such Utilities by Tenant such that Tenant shall pay the portion of such charges reasonably consistent with Tenant's use of such Utilities and similar services. If Tenant disputes any such estimate or determination of Utility Expenses, then Tenant shall either pay the estimated amount or, with the prior written approval of Landlord, which approval may be given or withheld in Landlord's sole and absolute discretion, cause the Premises to be separately metered at Tenant's sole expense.
(iv4) If In the event the average occupancy level of the Building or the Project for the Base Year and/or any subsequent Computation Year is not one hundred ninety-five percent (10095%) or more of full occupancy, then the Operating Expenses for such year shall be adjusted apportioned among the tenants by Landlord, in its reasonable discretion, the Landlord to reflect the Expenses those costs which would have been paid or incurred occurred had the Building or the Project, as applicable, been one hundred ninety-five percent (10095%) occupied during such year.
(v) Without limiting the foregoing terms of Paragraph 4(c), Landlord reserves the right from time to time to remeasure the Project in accordance with the commonly used or current or revised standards promulgated from time to time by the Building Owners and Managers Association (BOMA) or other generally accepted measurement standards utilized by Landlord and to thereafter adjust the Proportionate Share(s) of Tenant and any other affected tenants of the Project. Following receipt of written notice from Landlord of such re-measurement, Tenant’s Proportionate Share of the Project shall be adjusted in accordance with the revised measurement of the Project. In no event shall any such adjustment result in an increase in Base Rent under this Lease.
(vi) Notwithstanding any contrary provision hereof, if, after Landlord’s delivery of any Annual Statement, an increase or decrease in Taxes occurs for the applicable Computation Year or Base Year (whether by reason of reassessment, supplemental assessment, error, or otherwise), Taxes for such Computation Year or the Base Year (and in the case of an adjustment in the Base Year, the Taxes for subsequent Computation Years) shall be retroactively adjusted. If, as a result of such adjustment, Tenant has underpaid or overpaid Tenant’s Proportionate Share of Taxes, Tenant shall pay Landlord the amount of such underpayment within thirty (30) days after receipt of an invoice therefor, or Landlord, at Landlord’s option, shall credit the amount of such overpayment against past due or current amounts owed by Tenant or return the overpayment to Tenant in a lump sum payment within thirty (30) days after such adjustment.
Appears in 1 contract
Payment of Additional Rent. (i1) Prior to Within ninety (90) days of the commencement end of the Base Year and each Computation Year or as soon thereafter as practicable, Landlord shall notify give to Tenant notice of Landlord’s 's estimate of the total amounts that will be payable by Tenant under Paragraph 4(b) for the ensuing following Computation Year, and Tenant shall pay such estimated Additional Rent on a monthly basis, in advance, on the first day of each month. Tenant shall continue to make said monthly payments until notified by Landlord of a change therein. If at any time or times (but not more frequently than once per Computation Year) Landlord determines that the amounts payable under Paragraph 4(b) for the current Computation Year will vary from Landlord’s 's estimate given to Tenant, Landlord, by notice to Tenant, may revise the estimate for such Computation Year, and subsequent payments by Tenant for such Computation Year shall be based upon such revised estimate. By April 1 of each calendar year following the initial Computation Year or as soon thereafter as practicableYear, Landlord shall endeavor to provide to Tenant a statement (“Annual Statement”) showing the actual Additional Rent due to Landlord under Paragraph 4(b) for the prior Computation Year. If the total of the monthly payments of Additional Rent that Tenant has made for the prior Computation Year under Paragraph 4(b) is less than the actual Additional Rent chargeable to Tenant for such prior Computation Year, then Tenant shall pay the difference in a lump sum within thirty ten (3010) days after receipt of such Annual Statement statement from Landlord. Any overpayment by Tenant of Additional Rent under Paragraph 4(b) for the prior Computation Year shall, at Landlord’s 's option, be either credited against past towards the Additional Rent next due or current amounts owed by Tenant or returned to Tenant in a lump sum payment within ten (10) days after delivery of such Annual Statementstatement.
(ii2) Landlord’s 's then-current annual operating and capital budgets for the Building and the Project or the pertinent part thereof shall be used for purposes of calculating Tenant’s 's monthly payment of estimated Additional Rent for the current year, subject to adjustment as provided above. Landlord shall make the final determination of Additional Rent for the year in which this Lease terminates as soon as possible after termination of such year. Even though this Lease the Term has expired or terminated and Tenant has vacated the Premises, with respect to the year in which this Lease expires or terminates, subject to the provisions of Paragraph (b)(ii)(K), Tenant shall remain liable for payment of any amount due to Landlord in excess of the estimated Additional Rent previously paid by Tenant, and, conversely, Landlord shall promptly return to Tenant any overpayment of Additional Rentoverpayment. Failure of Landlord to submit statements as called for herein shall not be deemed a waiver of Tenant’s 's obligation to pay Additional Rent as herein provided.
(iii) Landlord. Notwithstanding anything to the contrary in this Lease, in its reasonable discretion, shall allocate if Landlord fails to deliver a statement of actual Operating Expenses, Insurance Expenses, Utility Expenses, Expenses or Taxes among office, retail or other portions or occupants within eighteen (18) months after the expiration of the Project according to reasonable real estate accounting and management principlescalendar year for which such a statement is due, consistently applied. With respect to Expenses which Landlord allocates to the Building, Tenant’s “Proportionate Share” shall be the percentage set forth in the Basic Lease Information as deemed to have waived its right to receive Tenant’s 's payment of Tenant's Proportionate Share of Operating Expenses, Insurance Expenses, Utility Expenses or Taxes for the Building. With respect applicable calendar year; provided, however, Landlord shall not be deemed to Expenses which Landlord allocates have waived its right to the Project as receive Tenant's payment of Tenant's Proportionate Share of any supplemental Taxes resulting from a whole or to only a portion transfer of ownership of the ProjectBuilding if such supplemental Taxes are assessed by the County of Orange ("County") more than eighteen (18) months after the expiration of the calendar year in which the transfer of ownership occurred, and Tenant shall remain liable for payment of Tenant’s “'s Proportionate Share” shall be, with Share of such supplemental Taxes irrespective of when the assessment is actually made by the County.
(3) With respect to Operating Expenses, Insurance Expenses, Utility Expenses or Taxes which Landlord allocates to the Project as a wholeBuilding, Tenant's "PROPORTIONATE SHARE" shall be the percentage set forth in the Basic Lease Information as Tenant’s 's Proportionate Share of the Project andBuilding, with respect to Expenses which Landlord allocates to only a portion of the Project, a percentage calculated by Landlord from time to time in its reasonable discretion and furnished to Tenant in writing, in either case as adjusted by Landlord from time to time for a remeasurement of or changes in the physical size of the Premises or the ProjectBuilding, whether such changes in size are due to an addition to or a sale or conveyance of a portion of the Project Building or otherwise.
. With respect to Operating Expenses, Insurance Expenses, Utility Expenses or Taxes which Landlord allocates to the Project as a whole or to only a portion of the Project (iv) If hereinafter, "PROJECT EXPENSES"), Landlord shall allocate 14.29% of Project Expenses to the average occupancy level Building (the "BUILDING SHARE"). Accordingly, Tenant's "PROPORTIONATE SHARE" with respect to the Building shall include the Building Share of Project Expenses. Notwithstanding the foregoing, Landlord may equitably adjust Tenant's Proportionate Share for all or part of any item of expense or cost reimbursable by Tenant that relates to a repair, replacement, or service that benefits only the Premises or only a portion of the Building or and/or the Project for or that varies with the Base Year and/or any subsequent Computation Year is not one hundred percent (100%) occupancy of full occupancy, then the Expenses for such year shall be adjusted by Landlord, in its reasonable discretion, to reflect the Expenses which would have been paid or incurred had the Building or and/or the Project, as applicable, been one hundred percent (100%) occupied during such year.
(v) . Without limiting the foregoing terms generality of Paragraph 4(c)the foregoing, Tenant understands and agrees that Landlord shall have the right to adjust Tenant's Proportionate Share of any Utility Expenses based upon Tenant's use of the Utilities or similar services as reasonably estimated and determined by Landlord based upon factors such as size of the Premises and intensity of use of such Utilities by Tenant such that Tenant shall pay the portion of such charges reasonably consistent with Tenant's use of such Utilities and similar services. If Tenant disputes any such estimate or determination of Utility Expenses, then Tenant shall either pay the estimated amount or, with the prior written approval of Landlord, which approval may be given or withheld in Landlord's sole and absolute discretion, cause the Premises to be separately metered at Tenant's sole expense. In addition to the foregoing, Landlord reserves shall have the right right, from time to time time, to remeasure equitably allocate some or all of the Operating Expenses, Taxes, Insurance Expenses and Utility Expenses among different tenants and/or different buildings of the Project (the "COST POOLS"). Such Cost Pools may include, without limitation, office space tenants and industrial/R&D space tenants in accordance with the commonly used or current or revised standards promulgated from time Project and may be modified to time by take into account the Building Owners and Managers Association (BOMA) or other generally accepted measurement standards utilized by Landlord and to thereafter adjust the Proportionate Share(s) addition of Tenant and any other affected tenants of additional buildings within the Project. Following receipt of written notice from Landlord Accordingly, in the event of such re-measurementallocation into Cost Pools, Tenant’s 's Proportionate Share of Shares with respect to the Building and the Project shall be appropriately adjusted in accordance with the revised measurement of the Project. In no event shall any to reflect such adjustment result in an increase in Base Rent under this Leaseallocation.
(vi) Notwithstanding any contrary provision hereof, if, after Landlord’s delivery of any Annual Statement, an increase or decrease in Taxes occurs for the applicable Computation Year or Base Year (whether by reason of reassessment, supplemental assessment, error, or otherwise), Taxes for such Computation Year or the Base Year (and in the case of an adjustment in the Base Year, the Taxes for subsequent Computation Years) shall be retroactively adjusted. If, as a result of such adjustment, Tenant has underpaid or overpaid Tenant’s Proportionate Share of Taxes, Tenant shall pay Landlord the amount of such underpayment within thirty (30) days after receipt of an invoice therefor, or Landlord, at Landlord’s option, shall credit the amount of such overpayment against past due or current amounts owed by Tenant or return the overpayment to Tenant in a lump sum payment within thirty (30) days after such adjustment.
Appears in 1 contract
Sources: Office Lease Agreement (Performance Capital Management LLC)
Payment of Additional Rent. (i) Prior to the Upon commencement of each Computation Year or as soon thereafter as practicablethis Lease, Landlord shall notify submit to Tenant of Landlord’s an estimate of the total amounts that will be payable by Tenant under Paragraph 4(b) monthly Additional Rent for the ensuing Computation Year, period between the Commencement Date and the following December 31 and Tenant shall pay such estimated Additional Rent on a monthly basis, in advance, on the first day of each month. Tenant shall continue to make said monthly payments until notified by Landlord of a change therein. If at any time or times (but not more frequently than once per Computation Year) Landlord reasonably determines that the amounts payable under Paragraph 4(b) for the current Computation Year will vary from Landlord’s estimate given to Tenant, Landlord, by notice to Tenant, may revise the estimate for such Computation Yearyear, and subsequent payments by Tenant for such Computation Year year shall be based upon such revised estimate; provided that Landlord shall not adjust the estimated monthly payments of Additional Rent more than one time in any calendar year. By April 1 of each calendar year Year following the initial Computation Year or as soon thereafter as practicableYear, Landlord shall endeavor to provide to Tenant a statement (“Annual Statement”) showing the actual Additional Rent due to Landlord under Paragraph 4(b) for the prior Computation Year, to be prorated during the first year from the Commencement Date. Such statement shall be certified by Landlord’s authorized representative showing: (A) the amount of the actual Expenses for the preceding calendar year, with a breakdown of amounts by major categories of the Expenses; (B) the amounts paid by Tenant toward the estimated Expenses during the preceding calendar year; and (C) any applicable limitation under this Paragraph 4. If the total of the monthly payments of Additional Rent that Tenant has made for the prior Computation Year under Paragraph 4(b) is less than the actual Additional Rent chargeable to Tenant for such prior Computation Year, then Tenant shall pay the difference in a lump sum within thirty ten (3010) days after receipt of such Annual Statement statement from Landlord. Any overpayment by Tenant of Additional Rent under Paragraph 4(b) for the prior Computation Year shall, at Landlord’s option, calendar year shall be credited against past towards the Additional Rent next due or current amounts owed by Tenant or returned to Tenant in a lump sum payment within ten (10) days after delivery of such Annual Statementstatement.
(ii) Landlord’s then-current annual operating and capital budgets for the Building and the Project or the pertinent part thereof shall be used for purposes of calculating Tenant’s monthly payment of estimated Additional Rent for the current year, subject to adjustment as provided above. Landlord shall make the final determination of Additional Rent for the year in which this Lease terminates as soon as possible after the end of such year. Even though this Lease the Term has expired or terminated and Tenant has vacated the Premises, with respect to the year in which this Lease expires or terminates, subject to the provisions of Paragraph (b)(ii)(K), Tenant shall remain liable for payment of any amount due to Landlord in excess of the estimated Additional Rent previously paid by Tenant, and, conversely, Landlord shall promptly return to Tenant any overpayment of Additional Rentoverpayment. Failure of Landlord to submit statements as called for herein shall not be deemed a waiver of Tenant’s obligation to pay Additional Rent as herein provided.
(iii) Landlord, in its reasonable discretion, shall allocate Operating Expenses, Insurance Expenses, Utility Expenses, or Taxes among office, retail or other portions or occupants of the Project according to reasonable real estate accounting and management principles, consistently applied. With respect to Expenses which Landlord allocates to the Building, Tenant’s “Proportionate Share” shall be the percentage set forth in the Basic Lease Information as Tenant’s Proportionate Share of the Building, as adjusted by Landlord from time to time for a remeasurement of or changes in the physical size of the Premises or the Building, whether such changes in size are due to an addition to or a sale or conveyance of a portion of the Building or otherwise. With respect to Expenses which Landlord allocates to the Project as a whole or to only a portion of the Project, Tenant’s “Proportionate Share” shall be, be with respect to Operating Expenses, Insurance Expenses, Utility Expenses or Taxes expenses which Landlord allocates to the Project as a wholeentire Project, the percentage set forth in the Basic Lease Information as Tenant’s Proportionate Share of the Project and, with respect to Expenses which Landlord allocates to only a portion of the Project, a percentage calculated by Landlord from time to time in its reasonable discretion and furnished to Tenant in writing, in either case as adjusted by Landlord from time to time for a remeasurement of or changes in the physical size of the Premises or the Project, whether such changes in size are due to an addition to or a sale or conveyance of a portion of the Project or otherwise. Notwithstanding the foregoing, Landlord may equitably adjust Tenant’s Proportionate Share(s) for all or part of any item of expense or cost reimbursable by Tenant that relates to a repair, replacement, or service that benefits only a portion of the Project or that varies with the occupancy of the Project. Landlord shall have the right to adjust Tenant’s Proportionate Share(s) of any Utility Expenses based upon Tenant’s use of the Utilities or similar services as reasonably estimated and determined by Landlord based upon factors such as size of the Premises and intensity of use of such Utilities by Tenant such that Tenant shall pay the portion of such charges reasonably consistent with Tenant’s use of such Utilities and other services and costs. If Tenant disputes any such estimate or determination of Utility Expenses, then Tenant shall either pay the estimated amount or cause the Premises to be separately metered at Tenant’s sole expense.
(iv) If In the event the average occupancy level of the Building or the Project for the Base Year and/or any subsequent Computation Year is not one hundred percent (100%) of full occupancy), then the Expenses for such year shall be adjusted by Landlord, in its reasonable discretion, Landlord to reflect the Expenses those costs which would have been paid or incurred had the Building or the Project, as applicable, been one hundred percent (100%) occupied during such year. Landlord agrees that since one of the purposes of Expenses and the gross up provision is to allow Landlord to require Tenant to pay for the costs attributable to its Premises, Landlord agrees that (A) Landlord will not collect or be entitled to collect Expenses from all of its tenants in an amount which is in excess of one hundred percent (100%) of the Expenses actually paid by Landlord in connection with the operation of the Building and the Project, and (B) Landlord shall make no profit from Landlord’s collections of Expenses.
(v) Without limiting the foregoing terms of Paragraph 4(c), Landlord reserves the right from time to time to remeasure the Premises, the Building and/or the Project in accordance with the commonly used or current or revised standards promulgated from time to time by the Building Owners and Managers Association (BOMA) or other generally accepted measurement standards utilized by Landlord and to thereafter adjust the Proportionate Share(s) of Tenant and any other affected tenants of the Project. Following receipt of written notice from Landlord of such re-measurement, Tenant’s Proportionate Share of the Project shall be adjusted in accordance with the revised measurement of Building and/or the Project. In no event shall any such adjustment result in an increase in Base Rent under this Lease.
(vi) Notwithstanding any contrary provision hereof, if, after Landlord’s delivery of any Annual Statement, an increase or decrease in Taxes occurs for the applicable Computation Year or Base Year (whether by reason of reassessment, supplemental assessment, error, or otherwise), Taxes for such Computation Year or the Base Year (and in the case of an adjustment in the Base Year, the Taxes for subsequent Computation Years) shall be retroactively adjusted. If, as a result of such adjustment, Tenant has underpaid or overpaid Tenant’s Proportionate Share of Taxes, Tenant shall pay Landlord the amount of such underpayment within thirty (30) days after receipt of an invoice therefor, or Landlord, at Landlord’s option, shall credit the amount of such overpayment against past due or current amounts owed by Tenant or return the overpayment to Tenant in a lump sum payment within thirty (30) days after such adjustment.
Appears in 1 contract
Payment of Additional Rent. (i1) Prior to Within ninety (90) days of the commencement end of the Base Year and each Computation Year or as soon thereafter as practicable, Landlord shall notify give to Tenant notice of Landlord’s estimate of the total amounts that will be payable by Tenant under Paragraph 4(b) for the ensuing following Computation Year, and Tenant shall pay such estimated Additional Rent on a monthly basis, in advance, on the first day of each month. Tenant shall continue to make said monthly payments until notified by Landlord of a change therein. If at any time or times (but not more frequently than once per Computation Year) Landlord determines that the amounts payable under Paragraph 4(b) for the current Computation Year will vary from Landlord’s estimate given to Tenant, Landlord, by notice to Tenant, may revise the estimate for such Computation Year, and subsequent payments by Tenant for such Computation Year shall be based upon such revised estimate. By April 1 of each calendar year following the initial Computation Year or as soon thereafter as practicableYear, Landlord shall endeavor to provide to Tenant a statement (“Annual Statement”) showing the actual Additional Rent due to Landlord under Paragraph 4(b) for the prior Computation Year. If the total of the monthly payments of Additional Rent that Tenant has made for the prior Computation Year under Paragraph 4(b) is less than the actual Additional Rent chargeable to Tenant for such prior Computation Year, then Tenant shall pay the difference in a lump sum within thirty ten (3010) days after receipt of such Annual Statement statement from Landlord. Any overpayment by Tenant of Additional Rent under Paragraph 4(b) for the prior Computation Year shall, at Landlord’s option, be either credited against past towards the Additional Rent next due or current amounts owed by Tenant or returned to Tenant in a lump sum payment within ten (10) days after delivery of such Annual Statementstatement. If Landlord fails to provide such statement by December 31 of the calendar year following any Computation Year, in no event shall Tenant be obligated for any underpayment due for such Computational Year.
(ii2) Landlord’s then-current annual operating and capital budgets for the Building and the Project or the pertinent part thereof shall be used for purposes of calculating Tenant’s monthly payment of estimated Additional Rent for the current year, subject to adjustment as provided above. Landlord shall make the final determination of Additional Rent for the year in which this Lease terminates as soon as possible after termination of such year. Even though this Lease the Term has expired or terminated and Tenant has vacated the Premises, with respect to the year in which this Lease expires or terminates, subject to the provisions of Paragraph (b)(ii)(K), Tenant shall remain liable for payment of any amount due to Landlord in excess of the estimated Additional Rent previously paid by Tenant, and, conversely, Landlord shall promptly return to Tenant any overpayment of Additional Rentoverpayment. Failure of Landlord to submit statements as called for herein shall not be deemed a waiver of Tenant’s obligation to pay Additional Rent as herein provided; however, if Landlord fails to provide such statement by December 31 of the calendar year following any Computation Year, in no event shall Tenant be obligated for any underpayment due for such Computational Year. .
(iii3) Landlord, in its reasonable discretion, shall allocate With respect to Operating Expenses, Insurance Expenses, Utility Expenses, Expenses or Taxes among office, retail or other portions or occupants of the Project according to reasonable real estate accounting and management principles, consistently applied. With respect to Expenses which Landlord allocates to the Building, Tenant’s “Proportionate Share” shall be the percentage set forth in the Basic Lease Information as Tenant’s Proportionate Share of the Building, as adjusted by Landlord from time to time for a re-measurement of or changes in the physical size of the Premises or the Building, whether such changes in size are due to an addition to or a sale or conveyance of a portion of the Building or otherwise. With respect to Operating Expenses, Insurance Expenses, Utility Expenses or Taxes which Landlord allocates to the Project Building as a whole or to only a portion of the ProjectBuilding, Tenant’s “Proportionate Share” shall be, with respect to Operating Expenses, Insurance Expenses, Utility Expenses or Taxes which Landlord allocates to the Project Building as a whole, the percentage set forth in the Basic Lease Information as Tenant’s Proportionate Share of the Project Building and, with respect to Operating Expenses, Insurance Expenses, Utility Expenses or Taxes which Landlord allocates to only a portion of the ProjectBuilding, a percentage calculated by Landlord from time to time in its reasonable sole discretion and furnished to Tenant in writing, in either case as adjusted by Landlord from time to time for a remeasurement re-measurement of or changes in the physical size of the Premises or the ProjectBuilding, whether such changes in size are due to an addition to or a sale or conveyance of a portion of the Project Building or otherwise. Notwithstanding the foregoing, Landlord may equitably adjust Tenant’s Proportionate Share(s) for all or part of any item of expense or cost reimbursable by Tenant that relates to a repair, replacement, or service that benefits only the Premises or only a portion of the Building or that varies with the occupancy of the Building.
(iv4) If In the event the average occupancy level of the Building or the Project for the Base Year and/or any subsequent Computation Year is not one hundred ninety five percent (10095%) or more of full occupancy, then the Operating Expenses for such year (including the Base Year) shall be adjusted apportioned among the tenants by Landlord, in its reasonable discretion, the Landlord to reflect the Expenses those costs which would have been paid or incurred occurred had the Building or the Project, as applicable, been one hundred ninety five percent (10095%) occupied during such year.
(v5) Without limiting the foregoing terms of this Paragraph 4(c), Landlord reserves the right from time to time to remeasure re-measure the Project Premises and/or the Building in accordance with the commonly used or current or revised standards promulgated from time to time by the Building Owners and Managers Association (BOMA) or the American National Standards Institute or other generally accepted measurement standards utilized by Landlord and to thereafter adjust the Proportionate Share(s) of Tenant and any other affected tenants of the Project. Following receipt of written notice from Landlord of such re-measurement, Building without additional actual Additional Rent on a per square foot basis charged to Tenant’s Proportionate Share of the Project shall be adjusted in accordance with the revised measurement of the Project. In no event shall any such adjustment result in an increase in Base Rent under this Lease.
(vi) Notwithstanding any contrary provision hereof, if, after Landlord’s delivery of any Annual Statement, an increase or decrease in Taxes occurs for the applicable Computation Year or Base Year (whether by reason of reassessment, supplemental assessment, error, or otherwise), Taxes for such Computation Year or the Base Year (and in the case of an adjustment in the Base Year, the Taxes for subsequent Computation Years) shall be retroactively adjusted. If, as a result of such adjustment, Tenant has underpaid or overpaid Tenant’s Proportionate Share of Taxes, Tenant shall pay Landlord the amount of such underpayment within thirty (30) days after receipt of an invoice therefor, or Landlord, at Landlord’s option, shall credit the amount of such overpayment against past due or current amounts owed by Tenant or return the overpayment to Tenant in a lump sum payment within thirty (30) days after such adjustment.
Appears in 1 contract
Payment of Additional Rent. (i1) Prior to the Upon commencement of each Computation Year or as soon thereafter as practicablethis Lease, Landlord shall notify submit to Tenant of Landlord’s an estimate of monthly Additional Rent (based upon the total amounts that will be payable by Tenant under Paragraph 4(bestimated budget numbers for calendar 2003 set forth above in this Section 4) for the ensuing Computation Year, period between the Rent Commencement Date and the following December 31 and Tenant shall pay such estimated Additional Rent on a monthly basis, in advance, on the first day of each month. Tenant shall continue to make said monthly payments until notified by Landlord of a change therein. Thereafter, within Ninety (90) days of the end of each Computation Year or as soon thereafter practicable, Landlord shall give to Tenant Notice of Landlord's estimate of the total amounts that will be payable by Tenant under Paragraph 4(b) for the following Computation Year. If at any time or times (but not more frequently than once per Computation Year) Landlord determines that the amounts payable under Paragraph 4(b) for the current Computation Year will vary from Landlord’s 's estimate given to Tenant, Landlord, by notice to Tenant, may revise the estimate for such Computation Year, and subsequent payments by Tenant for such Computation Year shall be based upon such revised estimate. By April 1 of each calendar year following the initial Computation Year or as soon thereafter as practicableYear, Landlord shall endeavor to provide to Tenant a statement (“Annual Statement”) showing the actual Additional Rent due to Landlord under Paragraph 4(b) for the prior Computation Year, to be prorated for partial Computation Years during the Term. If the total of the monthly payments of Additional Rent that Tenant has made for the prior Computation Year under Paragraph 4(b) is less than the actual Additional Rent chargeable to Tenant for such prior Computation Year, then Tenant shall pay the difference in a lump sum within thirty ten (3010) days after receipt of such Annual Statement statement from Landlord. Any overpayment by Tenant of Additional Rent under Paragraph 4(b) for the prior Computation Year shall, at Landlord’s 's option, be credited against past towards the Additional Rent next due or current amounts owed by Tenant or returned to Tenant in a lump sum payment within ten (10) days after delivery of such Annual Statementstatement.
(ii2) Landlord’s 's then-current annual operating and capital budgets for the Building and the Project or the pertinent part thereof shall be used for purposes of calculating Tenant’s 's monthly payment of estimated Additional Rent for the current year, subject to adjustment as provided above. Landlord shall make the final determination of Additional Rent for the year in which this Lease terminates as soon as possible after termination of such year. Even though this Lease the Term has expired or terminated and Tenant has vacated the Premises, with respect to the year in which this Lease expires or terminates, subject to the provisions of Paragraph (b)(ii)(K), Tenant shall remain liable for payment of any amount due to Landlord in excess of the estimated Additional Rent previously paid by Tenant, and, conversely, Landlord shall promptly return to Tenant any overpayment of Additional Rentoverpayment. Failure of Landlord to submit statements as called for herein shall not be deemed a waiver of Tenant’s 's obligation to pay Additional Rent as herein provided.
(iii3) Landlord, in its reasonable discretion, shall allocate With respect to Operating Expenses, Insurance Expenses, Utility Expenses, Forge Park Common Expenses or Taxes among office, retail or other portions or occupants of the Project according to reasonable real estate accounting and management principles, consistently applied. With respect to Expenses which Landlord allocates to the Building, Tenant’s “'s "Proportionate Share” " shall be the percentage set forth in the Basic Lease Information as Tenant’s 's Proportionate Share of the Building. With respect Notwithstanding the foregoing, Landlord may equitably adjust Tenant's Proportionate Share(s) for all or part of any item of expense or cost reimbursable by Tenant that relates to Expenses which Landlord allocates to a repair, replacement, or service that benefits only the Project as a whole Premises or to only a portion of the Project, Tenant’s “Proportionate Share” shall be, with respect to Operating Expenses, Insurance Expenses, Utility Expenses or Taxes which Landlord allocates to the Project as a whole, the percentage set forth in the Basic Lease Information as Tenant’s Proportionate Share of the Project and, with respect to Expenses which Landlord allocates to only a portion of the Project, a percentage calculated by Landlord from time to time in its reasonable discretion and furnished to Tenant in writing, in either case as adjusted by Landlord from time to time for a remeasurement of or changes in the Premises or the Project, whether such changes in size are due to an addition to or a sale or conveyance of a portion of Building and/or the Project or otherwise.
(iv) If that varies with the average occupancy level of the Building or the Project for the Base Year and/or any subsequent Computation Year is not one hundred percent (100%) of full occupancy, then the Expenses for such year shall be adjusted by Landlord, in its reasonable discretion, to reflect the Expenses which would have been paid or incurred had the Building or the Project, as applicable, been one hundred percent (100%) occupied during such year.
(v) . Without limiting the foregoing terms generality of Paragraph 4(c)the foregoing, Tenant understands and agrees that Landlord reserves shall have the right from time to time to remeasure the Project in accordance with the commonly used or current or revised standards promulgated from time to time by the Building Owners and Managers Association (BOMA) or other generally accepted measurement standards utilized by Landlord and to thereafter adjust the Tenant's Proportionate Share(s) of Tenant any Utility Expenses for utilities that are not separately metered based upon Tenant's use of such Utilities or similar services as reasonably estimated and any other affected tenants determined by Landlord based upon factors such as size of the Project. Following receipt Premises and intensity of written notice from Landlord use of such re-measurement, Tenant’s Proportionate Share of the Project shall be adjusted in accordance with the revised measurement of the Project. In no event shall any Utilities by Tenant such adjustment result in an increase in Base Rent under this Lease.
(vi) Notwithstanding any contrary provision hereof, if, after Landlord’s delivery of any Annual Statement, an increase or decrease in Taxes occurs for the applicable Computation Year or Base Year (whether by reason of reassessment, supplemental assessment, error, or otherwise), Taxes for such Computation Year or the Base Year (and in the case of an adjustment in the Base Year, the Taxes for subsequent Computation Years) shall be retroactively adjusted. If, as a result of such adjustment, Tenant has underpaid or overpaid Tenant’s Proportionate Share of Taxes, that Tenant shall pay Landlord the amount portion of such underpayment within thirty (30) days after receipt of an invoice therefor, or Landlord, at Landlord’s option, shall credit the amount charges reasonably consistent with Tenant's use of such overpayment against past due or current amounts owed by Tenant or return the overpayment to Tenant in a lump sum payment within thirty (30) days after such adjustment.Utilities and similar
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Payment of Additional Rent. (i) Prior to Within ninety (90) days of the commencement end of the Base Year and each Computation Year or as soon thereafter as practicable, Landlord shall notify give to Tenant notice of Landlord’s estimate of the total amounts that will be payable by Tenant under Paragraph 4(bSection (b) for the ensuing following Computation Year, and Tenant shall pay such estimated Additional Rent on a monthly basis, in advance, on the first day of each month. Tenant shall continue to make said monthly payments until notified by Landlord of a change therein. If at any time or times (but not more frequently than once per Computation Year) Landlord determines that the amounts payable under Paragraph 4(bSection (b) for the current Computation Year will vary from Landlord’s estimate given to Tenant, Landlord, by notice to Tenant, may revise the estimate for such Computation Year, and subsequent payments by Tenant for such Computation Year shall be based upon such revised estimate. By April 1 of each calendar year following the initial Computation Year or as soon thereafter as practicableYear, Landlord shall endeavor to provide to Tenant a reasonably detailed statement (“Annual Statement”) showing the actual Additional Rent due to Landlord under Paragraph 4(b) for the prior Computation Year. If the total of the monthly payments of Additional Rent that Tenant has made for the prior Computation Year under Paragraph 4(b) is less than the actual Additional Rent chargeable to Tenant for such prior Computation Year, then Tenant shall pay the difference in a lump sum within thirty ten (3010) days after receipt of such Annual Statement statement from Landlord. Any overpayment by Tenant of Additional Rent under Paragraph 4(b) for the prior Computation Year shall, at Landlord’s option, be either credited against past towards the Additional Rent next due or current amounts owed by Tenant or returned to Tenant in a lump sum payment within ten (10) days after delivery of such Annual Statementstatement.
(ii) Landlord’s then-current annual operating and capital budgets for the Building and the Project or the pertinent part thereof shall be used for purposes of calculating Tenant’s monthly payment of estimated Additional Rent for the current year, subject to adjustment as provided above. Landlord shall make the final determination of Additional Rent for the year in which this Lease terminates as soon as commercially practicable after termination of such year. Even though this Lease the Term has expired or terminated and Tenant has vacated the Premises, with respect to the year in which this Lease expires or terminates, subject to the provisions of Paragraph (b)(ii)(K), Tenant shall remain liable for payment of any amount due to Landlord in excess of the estimated Additional Rent previously paid by Tenant, and, conversely, Landlord shall promptly return to Tenant any overpayment of Additional Rentoverpayment. Failure of Landlord to submit statements as called for herein shall not be deemed a waiver of Tenant’s obligation to pay Additional Rent as herein provided.
(iii) Landlord, in its reasonable discretion, shall allocate Operating Expenses, Insurance Expenses, Utility Expenses, or Taxes among office, retail or other portions or occupants of the Project according to reasonable real estate accounting and management principles, consistently applied. With respect to Expenses Expenses, which Landlord allocates to the Building, Tenant’s “Proportionate Share” shall be the percentage set forth in the Basic Lease Information as Tenant’s Proportionate Share of the Building, as adjusted by Landlord from time to time for a remeasurement of or changes in the physical size of the Premises or the Building, whether such changes in size are due to an addition to or a sale or conveyance of a portion of the Building or otherwise. With respect to Expenses Expenses, which Landlord allocates to the Project as a whole or to only a portion of the Project, Tenant’s “Proportionate Share” shall be, with respect to Operating Expenses, Insurance Expenses, Utility Expenses or Taxes which Landlord allocates to the Project as a whole, the percentage set forth in the Basic Lease Information as Tenant’s Proportionate Share of the Project and, with respect to Expenses Expenses, which Landlord allocates to only a portion of the Project, a percentage calculated by Landlord from time to time in its reasonable sole discretion and furnished to Tenant in writing, in either case as adjusted by Landlord from time to time for a remeasurement of or changes in the physical size of the Premises or the Project, whether such changes in size are due to an addition to or a sale or conveyance of a portion of the Project or otherwise. Notwithstanding the foregoing, Landlord may equitably adjust Tenant’s Proportionate Share(s) for all or part of any item of expense or cost reimbursable by Tenant that relates to a repair, replacement, or service that benefits only the Premises or only a portion of the Building and/or the Project or that varies with the occupancy of the Building and/or the Project. Without limiting the generality of the foregoing, Tenant understands and agrees that Landlord shall have the right to adjust Tenant’s Proportionate Share(s) of any Utility Expenses based upon Tenant’s use of the Utilities or similar services as reasonably estimated and determined by Landlord based upon factors such as size of the Premises and intensity of use of such Utilities by Tenant such that Tenant shall pay the portion of such charges reasonably consistent with Tenant’s use of such Utilities and similar services. If Tenant disputes any such estimate or determination of Utility Expenses, then Tenant shall either pay the estimated amount or, with the prior written approval of Landlord, which approval may be given or withheld in Landlord’s sole and absolute discretion, cause the Premises to be separately metered at Tenant’s sole expense.
(iv) If In the event the average occupancy level of the Building or the Project for the Base Year and/or any subsequent Computation Year is not one hundred ninety-five percent (10095%) or more of full occupancy, then the Operating Expenses for such year shall be adjusted apportioned among the tenants by Landlord, in its reasonable discretion, the Landlord to reflect the Expenses those costs which would have been paid or incurred occurred had the Building or the Project, as applicable, been one hundred ninety-five percent (10095%) occupied during such year.
(v) Without limiting the foregoing terms of Paragraph 4(c)Section (c) above, Landlord reserves the right from time to time to remeasure the Premises, the Building and/or the Project in accordance with the commonly used or current or revised standards promulgated from time to time by the Building Owners and Managers Association (BOMA) or the American National Standards Institute or other generally accepted measurement standards utilized by Landlord and to thereafter adjust the Proportionate Share(s) of Tenant and any other affected tenants of the Building and/or Project. Following receipt of written notice from Landlord of such re-measurement, Tenant’s Proportionate Share of the Project shall be adjusted in accordance with the revised measurement of the Project. In no event shall any such adjustment result in an increase in Base Rent under this Lease.
(vi) Notwithstanding any contrary provision hereof, if, after Landlord’s delivery of any Annual Statement, an increase or decrease in Taxes occurs for the applicable Computation Year or Base Year (whether by reason of reassessment, supplemental assessment, error, or otherwise), Taxes for such Computation Year or the Base Year (and in the case of an adjustment in the Base Year, the Taxes for subsequent Computation Years) shall be retroactively adjusted. If, as a result of such adjustment, Tenant has underpaid or overpaid Tenant’s Proportionate Share of Taxes, Tenant shall pay Landlord the amount of such underpayment within thirty (30) days after receipt of an invoice therefor, or Landlord, at Landlord’s option, shall credit the amount of such overpayment against past due or current amounts owed by Tenant or return the overpayment to Tenant in a lump sum payment within thirty (30) days after such adjustment.
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Payment of Additional Rent. (i1) Prior to Within ninety (90) days of the commencement end of each Computation Year or as soon thereafter as practicablepracticable (but in no event more than two hundred seventy (270) days after the end of each Computation Year), Landlord shall notify give to Tenant notice of Landlord’s estimate of the total amounts that will be payable by Tenant under Paragraph 4(b) for the ensuing following Computation Year, and Tenant shall pay such estimated Additional Rent on a monthly basis, in advance, on the first day of each month. Tenant shall continue to make said monthly payments until notified by Landlord of a change therein. If at any time or times (but not more frequently than once per Computation Year) Landlord determines that the amounts payable under Paragraph 4(b) for the current Computation Year will vary from Landlord’s estimate given to Tenant, Landlord, by notice to Tenant, may reasonably revise the estimate for such Computation Year, and subsequent payments by Tenant for such Computation Year shall be based upon such revised estimate. By April 1 of each calendar year following the initial Computation Year or as soon thereafter as practicableYear, Landlord shall endeavor to provide to Tenant a statement (“Annual Statement”) showing the actual Additional Rent due to Landlord under Paragraph 4(b) for the prior Computation Year. If the total of the monthly payments of Additional Rent that Tenant has made for the prior Computation Year under Paragraph 4(b) is less than the actual Additional Rent chargeable to Tenant for such prior Computation Year, then Tenant shall pay the difference in a lump sum within thirty (30) days after receipt of such Annual Statement statement from Landlord. Any overpayment by Tenant of Additional Rent under Paragraph 4(b) for the prior Computation Year shall, at LandlordTenant’s option, be either credited against past towards the Additional Rent next due or current amounts owed by Tenant or returned to Tenant in a lump sum payment within ten thirty (1030) days after delivery of such Annual Statementstatement.
(ii2) Landlord’s then-current annual operating and capital budgets for the Building and the Project or the pertinent part thereof shall be used for purposes of calculating Tenant’s monthly payment of estimated Additional Rent for the current year, subject to adjustment as provided above. Landlord shall make the final determination of Additional Rent for the year in which this Lease terminates as soon as possible after termination of such year. Even though this Lease the Term has expired or terminated and Tenant has vacated the Premises, with respect to the year in which this Lease expires or terminates, subject to the provisions of Paragraph (b)(ii)(K), Tenant shall remain liable for a period of 18 months after the expiration of the Lease for payment of any amount due to Landlord in excess of the estimated Additional Rent previously paid by Tenant, and, conversely, Landlord shall promptly return to Tenant any overpayment of Additional Rentoverpayment. Failure of Landlord to submit statements as called for herein shall not be deemed a waiver of Tenant’s obligation to pay Additional Rent as herein provided.
(iii3) Landlord, in its reasonable discretion, shall allocate With respect to Operating Expenses, Insurance Expenses, Utility Expenses, Expenses or Taxes among office, retail or other portions or occupants of the Project according to reasonable real estate accounting and management principles, consistently applied. With respect to Expenses which Landlord allocates to the Building, Tenant’s “Proportionate Share” shall be the percentage set forth in the Basic Lease Information as Tenant’s Proportionate Share of the Building. With respect to Expenses which Landlord allocates to the Project as a whole or to only a portion of the Project, Tenant’s “Proportionate Share” shall be, with respect to Operating Expenses, Insurance Expenses, Utility Expenses or Taxes which Landlord allocates to the Project as a whole, the percentage set forth in the Basic Lease Information as Tenant’s Proportionate Share of the Project and, with respect to Expenses which Landlord allocates to only a portion of the Project, a percentage calculated by Landlord from time to time in its reasonable discretion and furnished to Tenant in writing, in either case as adjusted by Landlord from time to time for a remeasurement of or changes in the physical size of the Premises or the ProjectBuilding, whether such changes in size are due to an addition to or a sale or conveyance of a portion of the Project Building or otherwise; provided, however, that no such remeasurement may occur during the original Term, unless due to Tenant leasing additional space in the Building.
(iv4) If In the event the average occupancy level of the Building or the Project for the Base Year and/or or any subsequent Computation Year is not one hundred ninety-five percent (10095%) or more of full occupancy, then the Operating Expenses that vary with occupancy for such year shall be adjusted apportioned among the tenants by Landlord, in its reasonable discretion, the Landlord to reflect the Expenses those costs which would have been paid or incurred occurred had the Building or the Project, as applicable, been one hundred ninety-five percent (10095%) occupied during such year.
(v5) Without limiting the foregoing terms of Paragraph 4(c)) above, Landlord reserves the right from time to time to remeasure the Premises, the Building and/or the Project in accordance with the commonly used or current or revised standards promulgated from time to time by the Building Owners and Managers Association (BOMA) or the American National Standards Institute or other generally accepted measurement standards utilized by Landlord and to thereafter adjust the Proportionate Share(s) of Tenant and any other affected tenants of the Building and/or Project. Following receipt of written notice from Landlord of such re-measurement, Tenant’s Proportionate Share of the Project shall be adjusted in accordance with the revised measurement of the Project. In no event shall any such adjustment result in an increase in Base Rent under this Lease.
(vi) Notwithstanding any contrary provision hereof, if, after Landlord’s delivery of any Annual Statement, an increase or decrease in Taxes occurs for the applicable Computation Year or Base Year (whether by reason of reassessment, supplemental assessment, error, or otherwise), Taxes for such Computation Year or the Base Year (and in the case of an adjustment in the Base Year, the Taxes for subsequent Computation Years) shall be retroactively adjusted. If, as a result of such adjustment, Tenant has underpaid or overpaid Tenant’s Proportionate Share of Taxes, Tenant shall pay Landlord the amount of such underpayment within thirty (30) days after receipt of an invoice therefor, or Landlord, at Landlord’s option, shall credit the amount of such overpayment against past due or current amounts owed by Tenant or return the overpayment to Tenant in a lump sum payment within thirty (30) days after such adjustment.
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Payment of Additional Rent. (i1) Prior to Within ninety (90) days of the commencement end of the Base Year and each Computation Year or as soon thereafter as practicable, Landlord shall notify give to Tenant notice of Landlord’s estimate of the total amounts that will be payable by Tenant under Paragraph 4(b4.02(a) for the ensuing following Computation Year, and Tenant shall pay such estimated Additional Rent on a monthly basis, in advance, on the first day of each month. Tenant shall continue to make said monthly payments until notified by Landlord of a change therein. If at any time or times (but not more frequently than once per Computation Year) Landlord determines that the amounts payable under Paragraph 4(b4.02
(a) for the current Computation Year will vary from Landlord’s estimate given to Tenant, Landlord, by notice to Tenant, may revise the estimate for such Computation Year, and subsequent payments by Tenant for such Computation Year shall be based upon such revised estimate. By April 1 of each calendar year following the initial Computation Year or as soon thereafter as practicableYear, Landlord shall provide to Tenant a statement (“Annual Statement”) showing the actual Additional Rent due to Landlord under Paragraph 4(b) for the prior Computation Year. If the total of the monthly payments of Additional Rent that Tenant has made for the prior Computation Year under Paragraph 4(b) is less than the actual Additional Rent chargeable to Tenant for such prior Computation Year, then Tenant shall pay the difference in a lump sum within thirty ten (3010) days after receipt of such Annual Statement statement from Landlord. Any overpayment by Tenant of Additional Rent under Paragraph 4(b) for the prior Computation Year shall, at Landlord’s option, shall be credited against past due or current amounts owed by Tenant or returned to Tenant in a lump sum payment within ten (10) days after delivery of such Annual Statementstatement.
(ii2) Landlord’s then-current annual operating and capital budgets for the Building and the Project or the pertinent part thereof shall be used for purposes of calculating Tenant’s monthly payment of estimated Additional Rent for the current year, subject to adjustment as provided above. Landlord shall make the final determination of Additional Rent for the year in which this Lease terminates as soon as possible after termination of such year. Even though this Lease the Term has expired or terminated and Tenant has vacated the Premises, with respect to the year in which this Lease expires or terminates, subject to the provisions of Paragraph (b)(ii)(K), Tenant shall remain liable for payment of any amount due to Landlord in excess of the estimated Additional Rent previously paid by Tenant, and, conversely, Landlord shall promptly return to Tenant any overpayment of Additional Rentoverpayment. Failure of Landlord to submit statements as called for herein shall not be deemed a waiver of Tenant’s obligation to pay Additional Rent as herein provided.
(iii3) Landlord, in its reasonable discretion, shall allocate Operating Expenses, Insurance Expenses, Utility Expenses, or Taxes among office, retail or other portions or occupants of the Project according to reasonable real estate accounting and management principles, consistently applied. With respect to Operating Expenses which Landlord allocates to the Buildingoffice portion of the Project, Tenant’s “Proportionate Share” shall be the percentage set forth in the Basic Lease Information Section 4.a of this Amendment as Tenant’s Proportionate Share of the BuildingOffice Tower. With respect to Operating Expenses which Landlord allocates to the Project as a whole or to only a portion of the Project, Tenant’s “Proportionate Share” shall be, with respect to Operating Expenses, Insurance Expenses, Utility Expenses or Taxes which Landlord allocates to the Project as a whole, the percentage set forth in the Basic Lease Information Section 4.a as Tenant’s Proportionate Share of the Project andProject. Notwithstanding the foregoing, with respect Landlord may equitably adjust Tenant’s Proportionate Share(s) for all or part of any item of expense or cost reimbursable by Tenant that relates to Expenses which Landlord allocates to a repair, replacement, or service that benefits only the Premises or only a portion of the Project, a percentage calculated by Landlord from time to time in its reasonable discretion and furnished to Tenant in writing, in either case as adjusted by Landlord from time to time for a remeasurement of or changes in the Premises or the Project, whether such changes in size are due to an addition to or a sale or conveyance of a portion of Building and/or the Project or otherwisethat varies with the occupancy of the Building and/or the Project. Without limiting the generality of the foregoing, Tenant understands and agrees that Landlord shall have the right to adjust Tenant’s Proportionate Share(s) of any Utility Expenses based upon Tenant’s use of the utilities or similar services as reasonably estimated and determined by Landlord based upon factors such as size of the Premises and intensity of use of such utilities by Tenant such that Tenant shall pay the portion of such charges reasonably consistent with Tenant’s use of such utilities and similar services. If Tenant disputes any such estimate or determination of Utility Expenses, then Tenant shall either pay the estimated amount or, with the prior written approval of Landlord, which approval may be given or withheld in Landlord’s sole and absolute discretion, cause the Premises to be separately metered at Tenant’s sole expense.
(iv4) If In the event the average occupancy level of the Building or the Project for the Base Year and/or any subsequent Computation Year is not one hundred ninety-five percent (10095%) or more of full occupancy, then the variable expenses on which there has been a reduction to accurately reflect the decreased occupancy level but not the fixed Operating Expenses for such year shall be adjusted apportioned among the tenants by Landlord, in its reasonable discretion, the Landlord to reflect the Expenses those costs which would have been paid or incurred occurred had the Building or the Project, as applicable, been one hundred ninety-five percent (10095%) occupied during such year, provided, however, in no event shall Landlord recover more than the amount of Operating Expenses actually incurred.
(v5) Without limiting Landlord shall not, during the foregoing terms of Paragraph 4(c)Term or any extensions or renewals thereof, Landlord reserves the right from time to time to remeasure the Project Premises in accordance with the commonly used or current or revised standards promulgated from time to time by the Building Owners and Managers Association (BOMABONA) or the American National Standards Institute or other generally accepted measurement standards utilized by Landlord and to thereafter shall not adjust the Proportionate Share(s) of Tenant and any other affected tenants of the Project. Following receipt of written notice from Landlord of such re-measurement, Tenant’s Proportionate Share of the Project shall be adjusted in accordance with the revised measurement of the Project. In no event shall any such adjustment result in an increase in Base Rent under this Lease.
(vi) Notwithstanding any contrary provision hereof, if, after Landlord’s delivery of any Annual Statement, an increase or decrease in Taxes occurs for the applicable Computation Year or Base Year (whether by reason of reassessment, supplemental assessment, error, or otherwise), Taxes for such Computation Year or the Base Year (and in the case of an adjustment in the Base Year, the Taxes for subsequent Computation Years) shall be retroactively adjusted. If, as a result of such adjustment, Tenant has underpaid or overpaid Tenant’s Proportionate Share of Taxes, Tenant shall pay Landlord the amount of such underpayment within thirty (30) days after receipt of an invoice therefor, or Landlord, at Landlord’s option, shall credit the amount of such overpayment against past due or current amounts owed by Tenant or return the overpayment to Tenant in a lump sum payment within thirty (30) days after such adjustment.
Appears in 1 contract
Sources: Office Lease Agreement (Federal Home Loan Bank of Seattle)
Payment of Additional Rent. (i) Prior to Within ninety (90) days of the commencement end of the Base Year and each Computation Year or as soon thereafter as practicable, Landlord shall notify give to Tenant notice of Landlord’s estimate of the total amounts that will be payable by Tenant under Paragraph 4(b) for the ensuing following Computation Year, and Tenant shall pay such estimated Additional Rent on a monthly basis, in advance, on the first day of each month. Tenant shall continue to make said monthly payments until notified by Landlord of a change therein. If at any time or times (but not more frequently than once per Computation Year) Landlord determines that the amounts payable under Paragraph 4(b) for the current Computation Year will vary from Landlord’s estimate given to Tenant, Landlord, by notice to Tenant, may revise the estimate for such Computation Year, and subsequent payments by Tenant for such Computation Year shall be based upon such revised estimate. By April 1 of each calendar year following the initial Computation Year or as soon thereafter as practicableYear, Landlord shall endeavor to provide to Tenant a statement (“Annual Statement”) showing the actual Additional Rent due to Landlord under Paragraph 4(b) for the prior Computation Year. If the total of the monthly payments of Additional Rent that Tenant has made for the prior Computation Year under Paragraph 4(b) is less than the actual Additional Rent chargeable to Tenant for such prior Computation Year, then Tenant shall pay the difference in a lump sum within thirty (30) days after receipt of such Annual Statement statement from Landlord. Any overpayment by Tenant of Additional Rent under Paragraph 4(b) for the prior Computation Year shall, at Landlord’s option, be either credited against past towards the Additional Rent next due or current amounts owed by Tenant or returned to Tenant in a lump sum payment within ten thirty (1030) days after delivery of such Annual Statementstatement.
(ii) Landlord’s then-current annual operating and capital budgets for the Building and the Project or the pertinent part thereof shall be used for purposes of calculating Tenant’s monthly payment of estimated Additional Rent for the current year, subject to adjustment as provided above. Landlord shall make the final determination of Additional Rent for the year in which this Lease terminates as soon as possible after termination of such year. Even though this Lease the Term has expired or terminated and Tenant has vacated the Premises, with respect to the year in which this Lease expires or terminates, subject to the provisions of Paragraph (b)(ii)(K), Tenant shall remain liable for payment of any amount due to Landlord in excess of the estimated Additional Rent previously paid by Tenant, and, conversely, Landlord shall promptly return to Tenant any overpayment of Additional Rentoverpayment. Failure of Landlord to submit statements as called for herein shall not be deemed a waiver of Tenant’s obligation to pay Additional Rent as herein provided.
(iii) Landlord, in its reasonable discretion, shall allocate With respect to Operating Expenses, Insurance Expenses, Utility Expenses, Expenses or Taxes among office, retail or other portions or occupants of the Project according to reasonable real estate accounting and management principles, consistently applied. With respect to Expenses which Landlord allocates to the Building, Tenant’s “Proportionate Share” shall be the percentage set forth in the Basic Lease Information as Tenant’s Proportionate Share of the Building, as adjusted by Landlord from time to time for changes in the physical size of the Premises or the Building, whether such changes in size are due to an addition to or a sale or conveyance of a portion of the Building or otherwise. With respect to Operating Expenses, Insurance Expenses, Utility Expenses or Taxes which Landlord allocates to the Project as a whole or to only a portion of the Project, Tenant’s “Proportionate Share” shall be, with respect to Operating Expenses, Insurance Expenses, Utility Expenses or Taxes which Landlord allocates to the Project as a whole, the percentage set forth in the Basic Lease Information as Tenant’s Proportionate Share of the Project and, with respect to Operating Expenses, Insurance Expenses, Utility Expenses or Taxes which Landlord allocates to only a portion of the Project, a percentage calculated by Landlord from time to time in its reasonable discretion and furnished to Tenant in writing, in either case as adjusted by Landlord from time to time for a remeasurement of or changes in the physical size of the Premises or the Project, whether such changes in size are due to an addition to or a sale or conveyance of a portion of the Project or otherwise. Notwithstanding the foregoing, Landlord may equitably adjust Tenant’s Proportionate Share(s) for all or part of any item of expense or cost reimbursable by Tenant that relates to a repair, replacement, or service that benefits only the Premises or only a portion of the Building and/or the Project or that varies with the occupancy of the Building and/or the Project. Without limiting the generality of the foregoing, Tenant understands and agrees that Landlord shall have the right to adjust Tenant’s Proportionate Share(s) of any Utility Expenses based upon Tenant’s use of the Utilities or similar services as reasonably estimated and determined by Landlord based upon factors such as size of the Premises and intensity of use of such Utilities by Tenant such that Tenant shall pay the portion of such charges reasonably consistent with Tenant’s use of such Utilities and similar services. If Tenant disputes any such estimate or determination of Utility Expenses, then Tenant shall either pay the estimated amount or, with the prior written approval of Landlord, which approval may be given or withheld in Landlord’s sole and absolute discretion, cause the Premises to be separately metered at Tenant’s sole expense.
(iv) If In the event the average occupancy level of the Building or the Project for the Base Year and/or any subsequent Computation Year is not one hundred ninety-five percent (10095%) or more of full occupancy, then the Operating Expenses for such year shall be adjusted apportioned among the tenants by Landlord, in its reasonable discretion, the Landlord to reflect the Expenses those costs which would have been paid or incurred occurred had the Building or the Project, as applicable, been one hundred ninety-five percent (10095%) occupied during such year.
(v) Without limiting In the foregoing terms event that the Commencement Date shall be a day other than the first day of Paragraph 4(c), Landlord reserves a Computation Year or the right from time to time to remeasure the Project in accordance with the commonly used or current or revised standards promulgated from time to time by the Building Owners and Managers Association (BOMA) Expiration Date or other generally accepted measurement standards utilized termination of this Lease shall be a day other than the last day of a Computation Year, the amounts payable by Landlord and Tenant pursuant to thereafter adjust Paragraph 4(b) above with respect to the Proportionate Share(syear in which such Commencement Date or Expiration Date (or other termination of this Lease) occurs will be prorated on the basis on which the number of Tenant and any other affected tenants days of the Project. Following receipt of written notice from Landlord of Term included in such reyear bears to three hundred sixty-measurement, Tenant’s Proportionate Share of the Project shall be adjusted in accordance with the revised measurement of the Project. In no event shall any such adjustment result in an increase in Base Rent under this Leasefive (365).
(vi) Notwithstanding Landlord shall have no obligation to return, rebate or credit to Tenant any contrary provision hereofrefund, if, after Landlord’s delivery of any Annual Statement, an increase or decrease in Taxes occurs for the applicable Computation Year or Base Year (whether by reason of reassessment, supplemental assessment, errorrebate, or otherwise), Taxes for such Computation Year or return of Operating Expenses received by Landlord after the Base Year date which is eighteen (and in 18) months after the case Expiration Date of an adjustment in the Base Year, the Taxes for subsequent Computation Years) shall be retroactively adjusted. If, as a result of such adjustment, Tenant has underpaid or overpaid Tenant’s Proportionate Share of Taxes, Tenant shall pay Landlord the amount of such underpayment within thirty (30) days after receipt of an invoice therefor, or Landlord, at Landlord’s option, shall credit the amount of such overpayment against past due or current amounts owed by Tenant or return the overpayment to Tenant in a lump sum payment within thirty (30) days after such adjustmentthis Lease.
Appears in 1 contract
Payment of Additional Rent. (i1) Prior to Within ninety (90) days of the commencement end of the Base Year and each Computation Year or as soon thereafter as practicable, Landlord shall notify give to Tenant notice of Landlord’s 's estimate of the total amounts that will be payable by Tenant under Paragraph 4(b) for the ensuing following Computation Year, and Tenant shall pay such estimated Additional Rent on a monthly basis, in advance, on the first day of each month. Tenant shall continue to make said monthly payments until notified by Landlord of a change therein. If at any time or times (but not more frequently than once per Computation Year) Landlord determines that the amounts payable under Paragraph 4(b) for the current Computation Year will vary from Landlord’s 's estimate given to Tenant, Landlord, by notice to Tenant, may revise the estimate for such Computation Year, and subsequent payments by Tenant for such Computation Year shall be based upon such revised estimate. By April August 1 of each calendar year following the initial Computation Year or as soon thereafter as practicableYear, Landlord shall provide to Tenant a statement (“Annual Statement”) showing the actual Additional Rent due to Landlord under Paragraph 4(b) for the prior Computation Year. If the total of the monthly payments of Additional Rent that Tenant has made for the prior Computation Year under Paragraph 4(b) is less than the actual Additional Rent chargeable to Tenant for such prior Computation Year, then Tenant shall pay the difference in a lump sum within thirty ten (3010) days after receipt of such Annual Statement statement from Landlord. Any overpayment by Tenant of Additional Rent under Paragraph 4(b) for the prior Computation Year shall, at Landlord’s 's option, be either credited against past towards the Additional Rent next due or current amounts owed by Tenant or returned to Tenant in a lump sum payment within ten (10) days after delivery of such Annual Statementstatement.
(ii2) Landlord’s 's then-current annual operating and capital budgets for the Building and the Project or the pertinent part thereof shall be used for purposes of calculating Tenant’s Tenants monthly payment of estimated Additional Rent for the current year, subject to adjustment as provided above. Landlord shall make the final determination of Additional Rent for the year in which this Lease terminates as soon as possible after termination of such year. Even though this Lease the Term has expired or terminated and Tenant has vacated the Premises, with respect to the year in which this Lease expires or terminates, subject to the provisions of Paragraph (b)(ii)(K), Tenant shall remain liable for payment of any amount due to Landlord in excess of the estimated Additional Rent previously paid by Tenant, and, conversely, Landlord shall promptly return to Tenant any overpayment of Additional Rentoverpayment. Failure of Landlord to submit statements as called for herein shall not be deemed a waiver of Tenant’s 's obligation to pay Additional Rent as herein provided.
(iii3) Landlord, in its reasonable discretion, shall allocate With respect to Operating Expenses, Insurance Expenses, Utility Expenses, Expenses or Taxes among office, retail or other portions or occupants of the Project according to reasonable real estate accounting and management principles, consistently applied. With respect to Expenses which Landlord allocates to the Building, Tenant’s “'s "Proportionate Share” " shall be the percentage set forth in the Basic Lease Information as Tenant’s 's Proportionate Share of the Building, as adjusted by Landlord from time to time for a remeasurement of or changes in the physical size of the Premises or the Building, whether such changes in size are due to an addition to or a sale or conveyance of a portion of the Building or otherwise. With respect to Operating Expenses, Insurance Expenses, Utility Expenses or Taxes which Landlord allocates to the Project as a whole or to only a portion of the Project, Tenant’s “'s "Proportionate Share” " shall be, with respect to Operating Expenses, Insurance Expenses, Utility Expenses or Taxes which Landlord allocates to the Project as a whole, the percentage set forth in the Basic Lease Information as Tenant’s 's Proportionate Share of the Project and, with respect to Operating Expenses, Insurance Expenses, Utility Expenses or Taxes which Landlord allocates to only a portion of the Project, a percentage calculated by Landlord from time to time in its reasonable sole discretion and furnished to Tenant in writing, in either case as adjusted by Landlord from time to time for a remeasurement of or changes in the physical size of the Premises or the Project, whether such changes in size are due to an addition to or a sale or conveyance of a portion of the Project or otherwise. Notwithstanding the foregoing, Landlord may equitably adjust Tenant's Proportionate Share(s) for all or part of any item of expense or cost reimbursable by Tenant that relates to a repair, replacement, or service that benefits only the Premises or only a portion of the Building and/or the Project or that varies with the occupancy of the Building and/or the Project.
(iv4) If In the average event the average, occupancy level of the Building or the Project for the Base Year and/or any subsequent Computation Year is not one hundred ninety five percent (10095%) or more of full occupancy, then the Operating Expenses for such year shall be adjusted apportioned among the tenants by Landlord, in its reasonable discretion, the Landlord to reflect the Expenses those costs which would have been paid or incurred occurred had the Building or the Project, as applicable, been one hundred ninety five percent (10095%) occupied during such year.
(v5) Without limiting the foregoing terms of Paragraph 4(c)) above, Landlord reserves the right from time to time to remeasure the Premises, the Building and/or the Project in accordance with the commonly used or current or revised standards promulgated from time to time by the Building Owners and Managers Association (BOMA) or the American National Standards Institute or other generally accepted measurement standards utilized by Landlord and to thereafter adjust the Proportionate Share(s) of Tenant and any other affected tenants of the Building and/or Project. Following receipt of written notice from Landlord of shall not adjust the Base Rent based on any such re-measurement, Tenant’s Proportionate Share of remeasurement and any remeasurentent shall occur to all the Project shall be adjusted buildings in accordance with the revised measurement of the Project. In no event shall any such adjustment result in an increase in Base Rent under this Lease.
(vi) Notwithstanding any contrary provision hereof, if, after Landlord’s delivery of any Annual Statement, an increase or decrease in Taxes occurs for the applicable Computation Year or Base Year (whether by reason of reassessment, supplemental assessment, error, or otherwise), Taxes for such Computation Year or the Base Year (and in the case of an adjustment in the Base Year, the Taxes for subsequent Computation Years) shall be retroactively adjusted. If, as a result of such adjustment, Tenant has underpaid or overpaid Tenant’s Proportionate Share of Taxes, Tenant shall pay Landlord the amount of such underpayment within thirty (30) days after receipt of an invoice therefor, or Landlord, at Landlord’s option, shall credit the amount of such overpayment against past due or current amounts owed by Tenant or return the overpayment to Tenant in a lump sum payment within thirty (30) days after such adjustment.
Appears in 1 contract
Sources: Lease Agreement (Pixelworks Inc)
Payment of Additional Rent. (i) Prior to Within ninety (90) days of the commencement end of the Base Year and each Computation Year or as soon thereafter as practicable, Landlord shall notify give to Tenant notice of Landlord’s estimate of the total amounts that will be payable by Tenant under Paragraph 4(b) for the ensuing following Computation Year, and Tenant shall pay such estimated Additional Rent on a monthly basis, in advance, on the first day of each month. Tenant shall continue to make said monthly payments until notified by Landlord of a change therein. If at any time or times (but not more frequently than once per Computation Year) Landlord determines that the amounts payable under Paragraph 4(b) for the current Computation Year will vary from Landlord’s estimate given to Tenant, Landlord, by notice to Tenant, may revise the estimate for such Computation Year, and subsequent payments by Tenant for such Computation Year shall be based upon such revised estimate. By April 1 of each calendar year following the initial Computation Year or as soon thereafter as practicableYear, Landlord shall endeavor to provide to Tenant a statement (“Annual Statement”) showing the actual Additional Rent due to Landlord under Paragraph 4(b) for the prior Computation Year. If the total of the monthly payments of Additional Rent that Tenant has made for the prior Computation Year under Paragraph 4(b) is less than the actual Additional Rent chargeable to Tenant for such prior Computation Year, then Tenant shall pay the difference in a lump sum within thirty (30) days after receipt of such Annual Statement statement from Landlord. Any overpayment by Tenant of Additional Rent under Paragraph 4(b) for the prior Computation Year shall, at Landlord’s option, be either credited against past towards the Additional Rent next due or current amounts owed by Tenant or returned to Tenant in a lump sum payment within ten thirty (1030) days after delivery of such Annual Statementstatement.
(ii) Landlord’s then-current annual operating and capital budgets for the Building and the Project or the pertinent part thereof shall be used for purposes of calculating Tenant’s monthly payment of estimated Additional Rent for the current year, subject to adjustment as provided above. Landlord shall make the final determination of Additional Rent for the year in which this Lease terminates as soon as possible after termination of such year. Even though this Lease the Term has expired or terminated and Tenant has vacated the Premises, with respect to the year in which this Lease expires or terminates, subject to the provisions of Paragraph (b)(ii)(K), Tenant shall remain liable for payment of any amount due to Landlord in excess of the estimated Additional Rent previously paid by Tenant, and, conversely, Landlord shall promptly return to Tenant any overpayment of Additional Rentoverpayment. Failure of Landlord to submit statements as called for herein shall not be deemed a waiver of Tenant’s obligation to pay Additional Rent as herein provided; provided, however, that Landlord shall provide a final accounting to Tenant on or before the date which is six (6) months following the last day of the calendar year in which the Term of this Lease expires.
(iii) Landlord, in its reasonable discretion, shall allocate With respect to Operating Expenses, Insurance Expenses, Utility Expenses, Expenses or Taxes among office, retail or other portions or occupants of the Project according to reasonable real estate accounting and management principles, consistently applied. With respect to Expenses which Landlord allocates to the Building, Tenant’s “Proportionate Share” shall be the percentage set forth in the Basic Lease Information as Tenant’s Proportionate Share of the Building. With respect to Expenses which Landlord allocates to the Project Building as a whole or to only a portion of the ProjectBuilding, Tenant’s “Proportionate Share” shall be, with respect to Operating Expenses, Insurance Expenses, Utility Expenses or Taxes which Landlord allocates to the Project Building as a whole, the percentage set forth in the Basic Lease Information as Tenant’s Proportionate Share of the Project Building and, with respect to Operating Expenses, Insurance Expenses, Utility Expenses or Taxes which Landlord allocates to only a portion of the ProjectBuilding, a percentage calculated by Landlord from time to time in its reasonable sole discretion and furnished to Tenant in writing, in either case as adjusted by Landlord from time to time for a remeasurement of or changes in the physical size of the Premises or the ProjectBuilding, whether such changes in size are due to an addition to or a sale or conveyance of a portion of the Project Building or otherwise. Notwithstanding the foregoing, Landlord may equitably adjust Tenant’s Proportionate Share for all or part of any item of expense or cost reimbursable by Tenant that relates to a repair, replacement, or service that benefits only the Premises or only a portion of the Building or that varies with the occupancy of the Building. Without limiting the generality of the foregoing, Tenant understands and agrees that Landlord shall have the right to adjust Tenant’s Proportionate Share of any Utility Expenses based upon Tenant’s use of the Utilities or similar services as reasonably estimated and determined by Landlord based upon factors such as size of the Premises and intensity of use of such Utilities by Tenant such that Tenant shall pay the portion of such charges reasonably consistent with Tenant’s use of such Utilities and similar services. If Tenant disputes any such estimate or determination of Utility Expenses, then Tenant shall either pay the estimated amount or, with the prior written approval of Landlord, which approval may be given or withheld in Landlord’s sole and absolute discretion, cause the Premises to be separately metered at Tenant’s sole expense.
(iv) If In the event the average occupancy level of the Building or the Project for the Base Year and/or any subsequent Computation Year is not one hundred percent (100%) of full occupancy, then the Operating Expenses for such year shall be adjusted apportioned among the tenants by Landlord, in its reasonable discretion, the Landlord to reflect the Expenses those costs which would have been paid or incurred occurred had the Building or the Project, as applicable, been one hundred percent (100%) occupied during such year.
(v) Without limiting the foregoing terms of Paragraph 4(c)4(c)(iii) above, Landlord reserves the right from time to time to remeasure the Project Premises and/or the Building in accordance with the commonly used or current or revised standards promulgated from time to time by the Building Owners and Managers Association (BOMA) or the American National Standards Institute or other generally accepted measurement standards utilized by Landlord and to thereafter adjust the Proportionate Share(s) Share of Tenant and any other affected tenants of the Project. Following receipt of written notice from Landlord of such re-measurement, Tenant’s Proportionate Share of the Project shall be adjusted in accordance with the revised measurement of the Project. In no event shall any such adjustment result in an increase in Base Rent under this LeaseBuilding.
(vi) Notwithstanding any contrary provision hereof, if, after Landlord’s delivery of any Annual Statement, an increase or decrease in Taxes occurs for the applicable Computation Year or Base Year (whether by reason of reassessment, supplemental assessment, error, or otherwise), Taxes for such Computation Year or the Base Year (and in the case of an adjustment in the Base Year, the Taxes for subsequent Computation Years) shall be retroactively adjusted. If, as a result of such adjustment, Tenant has underpaid or overpaid Tenant’s Proportionate Share of Taxes, Tenant shall pay Landlord the amount of such underpayment within thirty (30) days after receipt of an invoice therefor, or Landlord, at Landlord’s option, shall credit the amount of such overpayment against past due or current amounts owed by Tenant or return the overpayment to Tenant in a lump sum payment within thirty (30) days after such adjustment.
Appears in 1 contract
Payment of Additional Rent. (i) Prior to the 4.3.1 Upon commencement of each Computation Year or as soon thereafter as practicablethis Lease, Landlord shall notify submit to Tenant of Landlord’s an estimate of the total amounts that will be payable by Tenant under Paragraph 4(b) monthly Additional Rent for the ensuing Computation Year, period between the Commencement Date and the following December 31 and Tenant shall pay such estimated Additional Rent on a monthly basis, in advance, on the first day of each month. Tenant shall continue to make said monthly payments until notified by Landlord of a change therein. If at any time or times (but not more frequently than once per Computation Year) Landlord determines that the amounts payable under Paragraph 4(b) 4.2 for the current Computation Year will vary from Landlord’s estimate given to Tenant, Landlord, by notice to Tenant, may revise the estimate for such Computation Yearyear, and subsequent payments by Tenant for such Computation Year year shall be based upon such revised estimate. By April 1 of each calendar year Year following the initial Computation Year or as soon thereafter as practicableYear, Landlord shall endeavor to provide to Tenant a statement (“Annual Statement”) showing the actual Additional Rent due to Landlord under Paragraph 4(b) for the prior Computation Year, to be prorated during the first year from the Commencement Date. If the total of the monthly payments of Additional Rent that Tenant has made for the prior Computation Year under Paragraph 4(b) is less than the actual Additional Rent chargeable to Tenant for such prior Computation Year, then Tenant shall pay the difference in a lump sum within thirty ten (3010) business days after receipt of such Annual Statement statement from Landlord. Any overpayment by Tenant of Additional Rent under Paragraph 4(b) for the prior Computation Year shall, at Landlord’s option, calendar year shall be credited against past towards the Additional Rent next due or current amounts owed by Tenant or returned to Tenant in a lump sum payment within ten (10) business days after delivery of such Annual Statementstatement.
(ii) 4.3.2 Landlord’s then-current annual operating and capital budgets for the Building and the Project or the pertinent part thereof shall be used for purposes of calculating Tenant’s monthly payment of estimated Additional Rent for the current year, subject to adjustment as provided above. Landlord shall make the final determination of Additional Rent for the year in which this Lease terminates as soon as possible after the end of such year. Even though this Lease the Term has expired or terminated and Tenant has vacated the Premises, with respect to the year in which this Lease expires or terminates, subject to the provisions of Paragraph (b)(ii)(K), Tenant shall remain liable for payment of any amount due to Landlord in excess of the estimated Additional Rent previously paid by Tenant, and, conversely, Landlord shall promptly return to Tenant any overpayment of Additional Rentoverpayment. Failure of Landlord to submit statements as called for herein shall not be deemed a waiver of Tenant’s obligation to pay Additional Rent as herein provided.
(iii) Landlord, in its reasonable discretion, shall allocate Operating Expenses, Insurance Expenses, Utility Expenses, or Taxes among office, retail or other portions or occupants of the Project according to reasonable real estate accounting and management principles, consistently applied. 4.3.3 With respect to Expenses which Landlord allocates to the Building, Tenant’s “Proportionate Share” shall be the percentage set forth in the Basic Lease Information as Tenant’s Proportionate Share of the Building, as adjusted by Landlord from time to time for a remeasurement of or changes in the physical size of the Premises or the Building, whether such changes in size are due to an addition to or a sale or conveyance of a portion of the Building or otherwise. With respect to Expenses which Landlord allocates to the Project as a whole or to only a portion of the Project, Tenant’s “Proportionate Share” shall be, be with respect to Operating Expenses, Insurance Expenses, Utility Expenses or Taxes expenses which Landlord allocates to the Project as a wholeentire Project, the percentage set forth in the Basic Lease Information as Tenant’s Proportionate Share of the Project and, with respect to Expenses which Landlord allocates to only a portion of the Project, a percentage calculated by Landlord from time to time in its reasonable sole discretion and furnished to Tenant in writing, in either case as adjusted by Landlord from time to time for a remeasurement of or changes in the physical size of the Premises or the Project, whether such changes in size are due to an addition to or a sale or conveyance of a portion of the Project or otherwise. Notwithstanding the foregoing, Landlord may equitably adjust Tenant’s Proportionate Share(s) for all or part of any item of expense or cost reimbursable by Tenant that relates to a repair, replacement, or service that benefits only the Premises or only a portion of the Building and/or the Project or that varies with the occupancy of the Building and/or the Project. Landlord shall have the right to adjust Tenant’s Proportionate Share(s) of any Utility Expenses based upon Tenant’s use of the Utilities or similar services as reasonably estimated and determined by Landlord based upon factors such as size of the Premises and intensity of use of such Utilities by Tenant such that Tenant shall pay the portion of such charges reasonably consistent with Tenant’s use of such Utilities and other services and costs. If Tenant disputes any such estimate or determination of Utility Expenses, then Tenant shall either pay the estimated amount or cause the Premises to be separately metered at Tenant’s sole expense.
(iv) If 4.3.4 In the event the average occupancy level of the Building or the Project for the Base Year and/or any subsequent Computation Year is not one hundred percent (100%) of full occupancy), then the Expenses for such year shall be adjusted by Landlord, in its reasonable discretion, the Landlord to reflect the Expenses those costs which would have been paid or incurred had the Building or the Project, as applicable, been one hundred percent (100%) occupied during such year.
(v) Without limiting the foregoing terms of Paragraph 4(c), 4.3.5 Landlord reserves the right from time to time to remeasure the Premises, the Building and/or the Project in accordance with the commonly used or current or revised standards promulgated from time to time by the Building Owners and Managers Association (BOMA) or other generally accepted measurement standards utilized by Landlord and to thereafter adjust the Proportionate Share(s) of Tenant and any other affected tenants of the Building and/or Project. Following receipt of written notice from Landlord of such re-measurement, Tenant’s Proportionate Share of the Project shall be adjusted in accordance with the revised measurement of the Project. In no event shall any such adjustment result in an increase in Base Rent under this Lease.
(vi) Notwithstanding any contrary provision hereof, if, after Landlord’s delivery of any Annual Statement, an increase or decrease in Taxes occurs for the applicable Computation Year or Base Year (whether by reason of reassessment, supplemental assessment, error, or otherwise), Taxes for such Computation Year or the Base Year (and in the case of an adjustment in the Base Year, the Taxes for subsequent Computation Years) shall be retroactively adjusted. If, as a result of such adjustment, Tenant has underpaid or overpaid Tenant’s Proportionate Share of Taxes, Tenant shall pay Landlord the amount of such underpayment within thirty (30) days after receipt of an invoice therefor, or Landlord, at Landlord’s option, shall credit the amount of such overpayment against past due or current amounts owed by Tenant or return the overpayment to Tenant in a lump sum payment within thirty (30) days after such adjustment.
Appears in 1 contract
Sources: Warehouse/Industrial Lease Agreement (Zeltiq Aesthetics Inc)
Payment of Additional Rent. (i) Prior to the commencement of each Computation Year or as soon thereafter as practicable, Landlord shall notify Tenant of Landlord’s reasonable estimate of the total amounts that will be payable by Tenant under Paragraph 4(b) for the ensuing Computation YearYear (which reasonable estimate and all other statements related to Expenses to be provided by Landlord to Tenant hereunder shall be in writing and in reasonable detail), and Tenant shall pay such estimated Additional Rent on a monthly basis, in advance, on the first day of each month. Tenant shall continue to make said monthly payments until notified by Landlord of a change therein. If at any time or times (but not more frequently than once per Computation Year) Landlord reasonably determines that the amounts payable under Paragraph 4(b) for the current Computation Year will vary from Landlord’s estimate given to Tenant, Landlord, by notice to Tenant, may reasonably revise the estimate for such Computation Year provided that Landlord may not so revise its estimate more than one time per Computation Year, and subsequent payments by Tenant for such Computation Year shall be based upon such revised estimate. By April 1 following the Base Year, Landlord shall endeavor to provide Tenant a reasonably detailed written statement (a “Base Year Statement”) showing Expenses for the Base Year. By April 1 of each calendar year following the initial Computation Year or as soon thereafter as practicableYear, Landlord shall endeavor to provide to Tenant a statement (an “Annual Statement”) showing the actual Additional Rent due to Landlord under Paragraph 4(b) for the prior Computation Year. If the total of the monthly payments of Additional Rent that Tenant has made for the prior Computation Year under Paragraph 4(b) is less than the actual Additional Rent chargeable to Tenant for such prior Computation Year, then Tenant shall pay the difference in a lump sum within thirty ten (3010) business days after receipt of such Annual Statement from Landlord. Any overpayment by Tenant of Additional Rent under Paragraph 4(b) for the prior Computation Year shall, at Landlord’s option, be credited against past due or current amounts owed by Tenant or returned to Tenant in a lump sum payment within ten (10) business days after delivery of such Annual Statement, unless such overpayment relates to the last Computation Year of this Lease in which event Landlord shall make such lump sum payment within ten (10) business days after the delivery of such Annual Statement, provided Tenant is not otherwise in Default hereunder.
(ii) Landlord’s then-current annual operating and capital budgets for the Building and the Project or the pertinent part thereof shall be used for calculating Tenant’s monthly payment of estimated Additional Rent for the current year, subject to adjustment as provided above. Even though this Lease has expired or terminated and Tenant has vacated the Premises, with respect to the year in which this Lease expires or terminates, subject to the provisions of Paragraph (b)(ii)(Kb)(ii)(H), Tenant shall remain liable for payment of any amount due to Landlord in excess of the estimated Additional Rent previously paid by Tenant, and, conversely, Landlord shall promptly return to Tenant any overpayment of Additional Rent. Failure of Landlord to submit statements as called for herein shall not be deemed a waiver of Tenant’s obligation to pay Additional Rent as herein provided.
(iii) Landlord, in its reasonable discretion, shall may allocate Operating Expenses, Insurance Expenses, Utility Expenses, Expenses or Taxes among office, retail or other portions or occupants of the Project according to reasonable real estate accounting and management principles, consistently appliedProject. With respect to Expenses which Landlord allocates to the Building, Tenant’s “Proportionate Share” Share shall be the percentage set forth in the Basic Lease Information as Tenant’s Proportionate Share of the Building. With respect to Expenses which Landlord allocates to the Project as a whole or to only a portion of the Project, Tenant’s “Proportionate Share” Share shall be, with respect to Operating Expenses, Insurance Expenses, Utility Expenses or Taxes which Landlord allocates to the Project as a whole, the percentage set forth in the Basic Lease Information as Tenant’s Proportionate Share of the Project and, with respect to Expenses which Landlord allocates to only a portion of the Project, a percentage calculated by Landlord from time to time in its reasonable discretion and furnished to Tenant in writing, in either case as reasonably adjusted by Landlord from time to time for a remeasurement of or changes in the physical size of the Premises or the Project, whether such changes in size are due to an addition to or a sale or conveyance of a portion of the Project or otherwise. Notwithstanding the foregoing, Landlord may equitably adjust Tenant’s Proportionate Share(s) for all or part of any item of expense or cost reimbursable by Tenant that relates to a repair, replacement, or service that benefits only the Premises or only a portion of the Building and/or the Project or that varies with the occupancy of the Building and/or the Project. Without limiting the generality of the foregoing, Landlord shall have the right to adjust Tenant’s Proportionate Share(s) of any Operating Expenses based upon Tenant’s use of Utilities or similar services as reasonably estimated and determined by Landlord based upon factors such as size of the Premises and intensity of use of such Utilities by Tenant, so that Tenant shall pay the portion of such charges reasonably consistent with Tenant’s use of such Utilities and similar services. If Tenant disputes any such estimate or determination of such Utilities, then Tenant shall either pay the estimated amount or, with the prior written approval of Landlord, which approval may be given or withheld in Landlord’s sole and absolute discretion, cause the Premises to be separately metered at Tenant’s sole expense (unless such meter shows that Tenant was not using excess Utilities or causing excess Utility expenses to be incurred, in which event Landlord shall be responsible for the cost of such meter).
(iv) If the average occupancy level of the Building or the Project for the Base Year and/or any subsequent Computation Year is not one hundred percent (100%) of full occupancy, then the Expenses for such year shall be adjusted by Landlord, in its reasonable discretion, to reflect the Expenses which would have been paid or incurred had the Building or the Project, as applicable, been one hundred percent (100%) occupied during such year.
(v) Without limiting the foregoing terms of Paragraph 4(c), in connection with and following any physical changes or modifications to the Building and/or the Project, Landlord reserves the right from time to time to remeasure the Building and/or the Project in accordance with the commonly used or current or revised standards promulgated from time to time by the Building Owners and Managers Association (BOMA) or other generally accepted measurement standards utilized by Landlord and to thereafter adjust the Proportionate Share(s) of Tenant and any other affected tenants of the Building and/or the Project. Following receipt of written notice from Landlord of such re-measurement, Tenant’s Proportionate Share of the Project and Tenant’s Proportionate Share of the Building shall be adjusted in accordance with the such revised measurement of the Project. In no event shall any such adjustment result in an increase in Base Rent under this Leasemeasurements.
(vi) Notwithstanding any contrary provision hereof, if, after Landlord’s delivery of any Annual Statement, an increase or decrease in Taxes occurs for the applicable Computation Year or Base Year (whether by reason of reassessment, supplemental assessment, error, or otherwise), Taxes for such Computation Year or the Base Year (and in the case of an adjustment in the Base Year, the Taxes for subsequent Computation Years) shall be retroactively adjusted. If, as a result of such adjustment, Tenant has underpaid or overpaid Tenant’s Proportionate Share of Taxes, Tenant shall pay Landlord the amount of such underpayment within thirty ten (3010) business days after receipt of an invoice therefor, or Landlord, at Landlord’s option, shall credit the amount of such overpayment against past due or current amounts owed by Tenant or return the overpayment to Tenant in a lump sum payment, unless such overpayment relates to the last Computation Year of this Lease in which event Landlord shall return the overpayment to Tenant in a lump sum payment within thirty (30) days after such adjustmentprovided Tenant is not otherwise in Default hereunder.
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Payment of Additional Rent. (i1) Prior to the commencement of each Computation Year or as soon thereafter as practicablepracticable (but in no event later than May 1), Landlord shall notify Tenant of Landlord’s estimate of the total amounts that will be payable by Tenant under Paragraph 4(b4(b) for the ensuing Computation Year, and Tenant shall pay such estimated Additional Rent on a monthly basis, in advance, on the first day of each month. Tenant shall continue to make said monthly payments until notified by Landlord of a change therein. If at any time or times (but not more frequently than once per Computation Year) Landlord determines that the amounts payable under Paragraph 4(b4(b) for the current Computation Year will vary from Landlord’s estimate given to TenantTenant by five percent (5%) or more, Landlord, by notice to Tenant, may revise the estimate for such Computation Year, and subsequent payments by Tenant for such Computation Year shall be based upon such revised estimate. By April May 1 of each calendar year following the initial Computation Year or as soon thereafter as practicableYear, Landlord shall provide to Tenant a statement (“Annual Statement”) showing the actual Additional Rent due to Landlord under Paragraph 4(b4(b) for the prior Computation Year. If the total of the monthly payments of Additional Rent that Tenant has made for the prior Computation Year under Paragraph 4(b4(b) is less than the actual Additional Rent chargeable to Tenant for such prior Computation Year, then Tenant shall pay the difference in a lump sum within thirty (30) days after receipt of such Annual Statement from Landlord. Any overpayment by Tenant of Additional Rent under Paragraph 4(b4(b) for the prior Computation Year shall, at Landlord’s optionoption (except at the expiration of this Lease), be credited against past due or current amounts owed by Tenant ▇▇▇▇▇▇ or returned to Tenant in a lump sum payment within ten (10) days after delivery of such Annual Statement. Notwithstanding anything contained in this Lease to the contrary, Landlord hereby waives all right to collect Additional Rent for which an Annual Statement complying with the requirements of this Paragraph has not been submitted to Tenant within eighteen (18) months after the end of the Computation Year during which such Additional Rent was incurred.
(ii2) Landlord’s then-current annual operating and capital budgets for the Building and the Project or the pertinent part thereof shall be used for calculating Tenant’s monthly payment of estimated Additional Rent for the current year, subject to adjustment as provided above. Even though this Lease has expired or terminated and Tenant has vacated the Premises, with respect to the year in which this Lease expires or terminates, subject to the provisions of Paragraph (b)(ii)(K)this Lease, Tenant shall remain liable for payment of any amount due to Landlord in excess of the estimated Additional Rent previously paid by Tenant▇▇▇▇▇▇, and, conversely, Landlord shall remain liable to promptly return to Tenant any overpayment of Additional Rent. Failure of Landlord to submit statements as called for herein shall not be deemed a waiver of Tenant’s obligation to pay Additional Rent as herein provided.
(iii3) Landlord, in its reasonable discretion, shall may allocate Operating Expenses, Insurance Expenses, Utility Expenses, or Taxes among office, retail or other portions or occupants of the Project according to reasonable real estate accounting and management principlesProject, consistently appliedprovided that such allocation is commensurate with Institutional Owner Practices. With respect to Expenses which Landlord allocates to the Building, Tenant’s “Proportionate Share” shall be the percentage set forth in the Basic Lease Information as Tenant’s Proportionate Share of the Building, as adjusted by Landlord from time to time for a remeasurement of or changes in the physical size of the Building, whether such changes in size are due to an addition to or a sale or conveyance of a portion of the Building or otherwise. With respect to Expenses which Landlord allocates to the Project as a whole or to only a portion of the Project, Tenant’s “Proportionate Share” shall be, with respect to Operating Expenses, Insurance Expenses, Utility Expenses or Taxes which Landlord allocates to the Project as a whole, the percentage set forth in the Basic Lease Information as Tenant’s Proportionate Share of the Project and, with respect to Expenses which Landlord allocates to only a portion of the Project, a percentage calculated by Landlord from time to time in its reasonable discretion (and in a manner commensurate with Institutional Owner Practices) and furnished to Tenant in writing, in either case as adjusted by Landlord from time to time for a remeasurement of or changes in the Premises or physical size of the Project, whether such changes in size are due to an addition to or a sale or conveyance of a portion of the Project or otherwise. Notwithstanding the foregoing, Landlord may equitably adjust Tenant’s Proportionate Share for all or part of any item of expense or cost reimbursable by Tenant that relates to a repair, replacement, or service that benefits only the Premises or only a portion of the Building and/or the Project that services Tenant specifically.
(iv4) If the average occupancy level of the Building or the Project for the Base Year and/or any subsequent Computation Year is not one hundred ninety-five percent (10095%) of full occupancyoccupied, then the Operating Expenses and Utility Expenses that vary by rates of occupancy such as utilities, trash removal and janitorial services (as opposed to those fixed expenses that do not vary by occupancy levels) (“Variable Expenses”) for such year shall be adjusted by Landlord, in its reasonable discretiondiscretion and in a manner commensurate with the standards of Comparable Buildings, to reflect the Variable Expenses which would have been paid or incurred had the Building or the Project, as applicable, been one hundred ninety-five percent (10095%) occupied during such year. Notwithstanding the terms of the preceding sentence, Landlord covenants and agrees that Tenant’s Proportionate Share of any adjusted Variable Expenses shall not exceed Tenant’s Proportionate Share of the actual out-of-pocket costs paid by Landlord for such variable components of Operating Expenses and Utility Expenses that vary by rates of occupancy, it being the intent of Landlord and Tenant that such adjustment of Variable Expenses shall not operate as a profit mechanism or reserve fund for the benefit of Landlord.
(v5) Without limiting the foregoing terms of Paragraph 4(c4(c), Landlord reserves the right from time to time to remeasure the Building and/or the Project in accordance with the commonly used or current or revised standards promulgated from time to time by the Building Owners and Managers Association (BOMA) or other generally accepted measurement standards utilized by Landlord consistent with Institutional Owner Practices and to thereafter adjust the Proportionate Share(s) Share of Tenant and any other affected tenants of the Building and/or Project. Following receipt of written notice from Landlord of such re-measurement, Tenantthe Base Rent, ▇▇▇▇▇▇’s Proportionate Share of the Project Project, and all other future amounts payable by Tenant hereunder based upon the rentable area of the Premises shall be adjusted in accordance with the revised measurement of the Project. In no event shall any such adjustment result in an increase in Base Rent under this LeasePremises.
(vi6) Notwithstanding any contrary provision hereof, if, after Landlord▇▇▇▇▇▇▇▇’s delivery of any Annual Statement, an increase or decrease in Taxes occurs for the applicable Computation Year or Base Year (whether by reason of reassessment, supplemental assessment, error, or otherwise), Taxes for such Computation Year or the Base Year (and in the case of an adjustment in the Base Year, the Taxes for subsequent Computation Years) shall be retroactively adjusted. If, as a result of such adjustment, Tenant has underpaid or overpaid Tenant’s Proportionate Share of Taxes, Tenant shall pay Landlord the amount of such underpayment within thirty (30) days after receipt of an invoice therefor, or Landlord, at Landlord’s option, shall credit the amount of such overpayment against past due or current amounts owed by Tenant or return the overpayment to Tenant in a lump sum payment within thirty (30) days after such adjustmentpayment.
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Sources: Lease Agreement (Zynex Inc)