Common use of Actual Operating Expenses Clause in Contracts

Actual Operating Expenses. Within ninety (90) days after the close of each Operating Year (except the Base Year) during the Term, Landlord shall deliver to Tenant a written statement (the “Statement”) setting forth the Actual Operating Expenses during the preceding Operating Year. If such expenses for any Operating Year exceed the Estimated Operating Expenses paid by Tenant to Landlord pursuant to Section 4(a), Tenant shall pay the amount of such excess to Landlord as additional rent within thirty (30) days after receipt by Tenant of the Statement. If the Statement shows such expenses to be less than the amount paid by Tenant to Landlord pursuant to Section 4(a), then the amount of such overpayment shall be paid by Landlord to Tenant within thirty (30) days following the date of the Statement or, at Landlord’s option, credited by Landlord to the payment of rent next due. Prior to the date that is sixty (60) days after Tenant’s receipt of the Statement, Landlord shall provide Tenant with reasonable access, upon reasonable prior notice and during normal business hours, to inspect Landlord’s books and records with respect to the Actual Operating Expenses (“Tenant’s Audit”), provided: (i) Tenant is not in default under any of the material provisions of the Lease, (ii) Tenant shall pay any amounts owing hereunder when due, (iii) Tenant’s Audit is performed by an officer of Tenant or certified public accountant who is paid by the hour and not on a contingency fee basis, (iv) Tenant and any Tenant Party (as defined in Section 6(c) hereof) performing Tenant’s Audit execute a confidentiality agreement in a form reasonably acceptable to Landlord, (v) Tenant’s Audit shall be performed at Tenant’s sole cost and expense unless otherwise provided herein and (vi) Tenant’s Audit shall be completed within such ninety (90) day period. If, within such ninety (90) day period, Tenant delivers to Landlord the written results of Tenant’s Audit, certified by an officer of Tenant as being true and correct, which states that Actual Operating Expenses are more than five percent (5%) less than Landlord’s determination of Actual Operating Expenses (the “Discrepancy”), Landlord shall, promptly after its receipt of the written results of Tenant’s Audit either (A) reimburse Tenant for (1) Tenant’s reasonable out-of-pocket costs and expenses incurred in performing the Tenant’s Audit (not to exceed an amount equal to $3,000.00) and (2) the amount of any overpayment made by Tenant to Landlord pursuant to this Section 4(b), or (B) notify Tenant in writing that Landlord disagrees with the result of Tenant’s Audit, in which event the Landlord and Tenant shall submit their respective calculations of the Actual Operating Expenses to a neutral certified public accountant appointed with the consent of both Landlord and Tenant, who shall review the respective determinations of Actual Operating Expenses, and shall make a final determination of the Actual Operating Expenses for the year in question which shall be binding on both Landlord and Tenant, and if such accountant determines that the Discrepancy is greater than five percent (5%), Landlord, promptly after its receipt of such final determination, shall reimburse Tenant for Tenant’s reasonable out-of-pocket costs and expenses incurred in performing the Tenant’s Audit (not to exceed an amount equal to $3,000.00) and the amount of any overpayment made by Tenant to Landlord pursuant to this Section 4(b).

Actual Operating Expenses. Within ninety (90) days after the close of each Operating Year (except including the Base Year) during the Term, Landlord shall deliver to Tenant a written statement (the “Statement”) setting forth the Actual Operating Expenses during the preceding Operating YearYear and the amount by which such Actual Operating Expenses exceed the Base Amount (the“Operating Expense Increase”). If such expenses Tenant’s Proportionate Share of the Operating Expense Increase for any Operating Year exceed exceeds the Estimated Operating Expenses paid by Tenant to Landlord pursuant to Section 4(a), ) Tenant shall pay the amount of such excess to Landlord as additional rent within thirty (30) days after receipt by Tenant of the Statementsuch statement. If such statement shows Tenant’s Proportionate Share of the Statement shows such expenses Operating Expense Increase to be less than the amount paid by Tenant to Landlord pursuant to Section 4(a), then the amount of such overpayment shall be paid by Landlord to Tenant within thirty (30) days following the date of such statement or, at Landlord’s option, credited by Landlord to the Statement payment of rent next due. Additionally, promptly following the reassessment of the value of the Project by any such governmental authority subsequent to the leasing and occupancy of a substantial portion of the Project, Landlord shall provide Tenant with a written statement reflecting the adjusted Actual Operating Expenses for the Base Year. If, as a result of Landlord’s recalculation of the Actual Operating Expenses for the Base Year Landlord determines that the amount paid by Tenant pursuant to this Section 4 for any Operating Year was less than the amount owed by Tenant for such Operating Year, Tenant shall pay to Landlord the amount of such shortfall within thirty (30) days after the date of Tenant’s receipt of such statement, and if, as a result of Landlord’s recalculation of the Actual Operating Expenses for the Base Year Landlord determines that amounts paid by Tenant pursuant to this Section 4 for any Operating Year exceeded the amount owed by Tenant for such Operating Year, then the amount of such overpayment shall be paid by Landlord to Tenant within thirty (30) days following the date of such statement or, at Landlord’s option, credited by Landlord to the payment of rent next due. Prior to the date that is sixty one (60) days 1)year after Tenant’s receipt of the StatementLandlord’s statement of Actual Operating Expenses for any Operating Year, Landlord shall provide Tenant with reasonable access, upon reasonable prior notice and during normal business hours, to inspect and photocopy Landlord’s books and records with respect to the Actual Operating Expenses for such Operating Year (“Tenant’s Audit”), provided: (i) Tenant is not in default under any of the material provisions of the Lease, Lease (ii) Tenant shall pay any amounts owing hereunder when due, (iii) Tenant’s Audit is performed by an officer of Tenant or certified public accountant who is paid by remaining uncured following the hour and not on a contingency fee basis, (iv) Tenant and any Tenant Party (as defined in Section 6(c) hereof) performing Tenant’s Audit execute a confidentiality agreement in a form reasonably acceptable to Landlord, (v) Tenant’s Audit shall be performed at Tenant’s sole cost and expense unless otherwise provided herein and (vi) Tenant’s Audit shall be completed within such ninety (90) day period. If, within such ninety (90) day period, Tenant delivers to Landlord the written results of Tenant’s Audit, certified by an officer of Tenant as being true and correct, which states that Actual Operating Expenses are more than five percent (5%) less than Landlord’s determination of Actual Operating Expenses (the “Discrepancy”), Landlord shall, promptly after its receipt of the written results of Tenant’s Audit either (A) reimburse Tenant for (1) Tenant’s reasonable out-of-pocket costs and expenses incurred in performing the Tenant’s Audit (not to exceed an amount equal to $3,000.00) and (2) the amount expiration of any overpayment made by Tenant to Landlord pursuant to applicable period for cure under this Section 4(bLease), or (B) notify Tenant in writing that Landlord disagrees with the result of Tenant’s Audit, in which event the Landlord and Tenant shall submit their respective calculations of the Actual Operating Expenses to a neutral certified public accountant appointed with the consent of both Landlord and Tenant, who shall review the respective determinations of Actual Operating Expenses, and shall make a final determination of the Actual Operating Expenses for the year in question which shall be binding on both Landlord and Tenant, and if such accountant determines that the Discrepancy is greater than five percent (5%), Landlord, promptly after its receipt of such final determination, shall reimburse Tenant for Tenant’s reasonable out-of-pocket costs and expenses incurred in performing the Tenant’s Audit (not to exceed an amount equal to $3,000.00) and the amount of any overpayment made by Tenant to Landlord pursuant to this Section 4(b).,

Actual Operating Expenses. Within ninety (90) days after the close By May 1 of each Operating Year (except the Base Year) year during the TermTerm or the year following the termination of this Lease, Landlord or as soon as possible thereafter, Lessor shall deliver to Tenant provide Lessee a written statement showing: (the “Statement”i) setting forth the Actual Operating Expenses for the prior calendar year then ended (ii) the Operating Expense Amount for the prior calendar year then ended; (iii) the Base Year Operating Expense Amount; (iv) the difference between subparts (ii) and (iii); and (v) a statement prepared by Lessor comparing Forecast Additional Rental with actual Additional Rental based on such Actual Operating Expenses (collectively the “Operating Cost Report”). In the event that Forecast Additional Rental exceeds Additional Rental for said calendar year, Lessor shall pay Lessee (in the form of a credit against such rentals next due if during the preceding Operating YearTerm) an amount equal to such excess. If such expenses In the event that the Additional Rental exceeds Forecast Additional Rental for any Operating Year exceed the Estimated Operating Expenses paid by Tenant to Landlord pursuant to Section 4(a)said calendar year, Tenant Lessee shall pay the amount of such excess to Landlord as additional rent Lessor, within thirty (30) days after of receipt by Tenant of the Statementstatement, an amount equal to such difference. Lessor shall maintain books and records reflecting the Actual Operating Expenses and Lessee shall have the right to inspect and audit Lessor’s records at Lessor’s office upon at least five (5) business days’ prior written notice during normal business hours during the 365 days following the delivery of an Operating Cost Report. The results of any such inspection shall be kept strictly confidential by ▇▇▇▇▇▇ and its agents, and Lessee and its agents must agree, in their contract for such services, to such confidentiality restrictions and shall specifically agree that the results shall not be made available to any other lessee of the Building. Unless Lessee sends to Lessor any written exception to Operating Cost Report within said 365-day period, such report shall be deemed final and accepted by ▇▇▇▇▇▇. Lessee or Lessor (as the case may be depending on the difference between Forecast Additional Rental and Additional Rental) shall pay the amount shown on the Operating Cost Report for such calendar year in the manner prescribed in this Lease, whether or not Lessee takes any such written exception, without any prejudice to such exception. If ▇▇▇▇▇▇ makes a timely exception, Lessee or their qualified professional can audit the Statement shows such expenses to books and records reflecting actual operating expenses. Lessee cannot use contingent fee auditors. Lessee’s exception and reconciliation, if necessary, shall be less than the made between parties, and any amount paid by Tenant to Landlord pursuant to Section 4(a), then the amount of such overpayment owed shall be paid by Landlord to Tenant within thirty (30) days following the date owing party promptly. Lessee shall pay the cost of such audit. If the Statement or, at Landlord’s option, credited by Landlord to audit reveals an error in the payment of rent next due. Prior to the date that is sixty (60) days after Tenant’s receipt of the Statement, Landlord shall provide Tenant with reasonable access, upon reasonable prior notice and during normal business hours, to inspect Landlord’s books and records with respect to the Actual Total Operating Expenses (“Tenant’s Audit”), provided: (i) Tenant is not in default under any of the material provisions of the Lease, (ii) Tenant shall pay any amounts owing hereunder when due, (iii) Tenant’s Audit is performed by an officer of Tenant 5.0% or certified public accountant who is paid by the hour and not on a contingency fee basis, (iv) Tenant and any Tenant Party (as defined in Section 6(c) hereof) performing Tenant’s Audit execute a confidentiality agreement in a form reasonably acceptable to Landlord, (v) Tenant’s Audit shall be performed at Tenant’s sole cost and expense unless otherwise provided herein and (vi) Tenant’s Audit shall be completed within such ninety (90) day period. If, within such ninety (90) day period, Tenant delivers to Landlord the written results of Tenant’s Audit, certified by an officer of Tenant as being true and correct, which states that Actual Operating Expenses are more than five percent (5%) less than Landlord’s determination of Actual Operating Expenses (the “Discrepancy”), Landlord shall, promptly after its receipt of the written results of Tenant’s Audit either (A) reimburse Tenant for (1) Tenant’s reasonable out-of-pocket costs and expenses incurred in performing the Tenant’s Audit (not to exceed an amount equal to $3,000.00) and (2) the amount of any overpayment made by Tenant to Landlord pursuant to this Section 4(b), or (B) notify Tenant in writing that Landlord disagrees with the result of Tenant’s Auditmore, in which event case the Landlord and Tenant shall submit their respective calculations Lessor will reimburse Lessee for the cost of the Actual Operating Expenses audit up to a neutral certified public accountant appointed with the consent maximum of both Landlord $1,000. Lessor and Tenant, who shall review the respective determinations of Actual Operating Expenses, and shall make a final determination of the Actual Operating Expenses for the year in question which shall be binding on both Landlord and Tenant, and if such accountant determines ▇▇▇▇▇▇ hereby agree that the Discrepancy is greater than five percent (5%), Landlord, promptly after its receipt of such final determination, shall reimburse Tenant for Tenant’s reasonable out-of-pocket costs and expenses incurred in performing the Tenant’s Audit (not to exceed an amount equal to $3,000.00) and the amount of any overpayment made by Tenant to Landlord pursuant to this Section 4(b)shall survive the termination hereof.

Actual Operating Expenses. Within ninety (90) days after the close of each Operating Year (except including the Base Year) during the Term, Landlord shall deliver to Tenant a written statement (the “Statement”) setting forth the Actual Operating Expenses during the preceding Operating YearYear and the amount by which the Actual Operating Expenses exceed the Base Amount . If such expenses for any Operating Year exceed the Estimated Operating Expenses paid by Tenant to Landlord pursuant to Section 4(a), Tenant shall pay the amount of such excess to Landlord as additional rent within thirty (30) days after receipt by Tenant of the Statementsuch statement. If the Statement such statement shows such expenses to be less than the amount paid by Tenant to Landlord pursuant to Section 4(a), then the amount of such overpayment shall be paid by Landlord to Tenant within thirty (30) days following the date of such statement or, at Landlord’s option, credited by Landlord to the Statement payment of rent next due. Additionally, promptly following the reassessment of the value of the Project by any such governmental authority subsequent to the leasing and occupancy of a substantial portion of the Project, Landlord shall provide Tenant with a written statement reflecting the adjusted Actual Operating Expenses for the Base Year. If, as a result of Landlord’s recalculation of the Actual Operating Expenses for the Base Year Landlord determines that the amount paid by Tenant pursuant to this Section 4 for any Operating Year was less than the amount owed by Tenant for such Operating Year, Tenant shall pay to Landlord the amount of such shortfall within thirty (30) days after the date of Tenant’s receipt of such statement, and if, as a result of Landlord’s recalculation of the Actual Operating Expenses for the Base Year Landlord determines that amounts paid by Tenant pursuant to this Section 4 for any Operating Year exceeded the amount owed by Tenant for such Operating Year, then the amount of such overpayment shall be paid by Landlord to Tenant within thirty (30) days following the date of such statement or, at Landlord’s option, credited by Landlord to the payment of rent next due. Prior to the date that is sixty one (601) days year after Tenant’s receipt of the StatementLandlord’s statement of Actual Operating Expenses for any Operating Year, Landlord shall provide Tenant with reasonable access, upon reasonable prior notice and amid during normal business hours, to inspect and photocopy Landlord’s books and records with respect to the Actual Operating Expenses for such Operating Year (“Tenant’s Audit”), provided: (i) Tenant is not in default under any of the material provisions of the Lease (remaining uncured following the expiration of any applicable period for cure under this Lease), (ii) Tenant shall pay any amounts owing hereunder when due, (iii) Tenant’s Audit is performed by an officer employee of Tenant or certified certified, public accountant who is not paid by the hour and not on a contingency fee basis, (iv) Tenant and any Tenant Party (as defined in Section 6(c) hereof) performing Tenant’s Audit execute a confidentiality agreement in a form reasonably acceptable to LandlordLandlord and Tenant, (v) Tenant’s Audit shall be performed at Tenant’s sole cost and expense unless otherwise provided herein and (vi) Tenant’s Audit shall be completed within such ninety sixty (9060) day perioddays after Landlord gives Tenant access to its books and records. If, within such ninety sixty (9060) day period, Tenant delivers to Landlord the written results of Tenant’s Audit, certified by an officer of Tenant as being true and correct, Audit which states that Actual Operating Expenses are more than five percent (5%) less than Landlord’s determination of Actual Operating Expenses (the “Discrepancy”), Landlord shall, promptly after its receipt of the written results of Tenant’s Audit either (A) reimburse Tenant for (1the amount of any overpayment made by Tenant to Landlord pursuant to this Section 4(b) and for Tenant’s reasonable out-of-pocket costs and expenses incurred in performing the Tenant’s Audit in the event the Discrepancy is greater than five percent (not to exceed an amount equal to $3,000.005%) and (2) the amount of any overpayment made by Tenant to Landlord pursuant to this Section 4(b), or (B) notify Tenant in writing that Landlord disagrees with the result of Tenant’s Audit, in which event the Landlord and Tenant shall submit their respective calculations of the Actual Operating Expenses to a neutral certified public accountant appointed with the consent of both Landlord and Tenant, who shall review the respective determinations of Actual Operating Expenses, and shall make a final determination of the Actual Operating Expenses for the year in question which shall be binding on both Landlord and Tenant, and if such accountant determines that the Discrepancy there is greater than five percent (5%)a Discrepancy, Landlord, promptly after its receipt of such final determination, shall reimburse Tenant for the amount of any overpayment made by Tenant to Landlord pursuant to this Section 4(b) and for Tenant’s reasonable out-of-pocket costs and expenses incurred in performing the Tenant’s Audit in the event the Discrepancy is greater than five percent (not to exceed an amount equal to $3,000.00) and the amount of any overpayment made by Tenant to Landlord pursuant to this Section 4(b5%).

Actual Operating Expenses. Within ninety one hundred twenty (90120) days after the close of each Operating Year (except including the Base Year) during the Term, Landlord shall deliver to Tenant a reasonably detailed written statement (the “Statement”) setting forth the Actual Operating Expenses during the preceding Operating Year. If Any such written statement shall describe in reasonable detail any gross up of Actual Operating Expenses. For each Operating Year following the Base Year, if such expenses for any such Operating Year exceed the Estimated Operating Expenses paid by Tenant to Landlord pursuant to Section 4(a5(a), Tenant shall pay Tenant’s Proportionate Share of the amount of such excess to Landlord as additional rent within thirty (30) days after receipt by Tenant of the Statementsuch statement. If the Statement such statement shows Tenant’s Proportionate Share of such expenses to be less than the amount paid by Tenant to Landlord pursuant to Section 4(a5(a), then the amount of such overpayment shall be paid by Landlord to Tenant within thirty (30) days following the date of the Statement such statement or, at Landlord’s option, credited by Landlord to the payment of rent next duedue (which amount, if credited, shall be communicated to Tenant in writing). Prior Landlord’s failure to the date that is sixty give such notice and statement within one hundred twenty (60120) days after Tenant’s receipt the close of any Operating Year shall not release either party from the Statementobligation to make the adjustment provided for in this Section 5(b); provided, Landlord shall provide Tenant with reasonable accesshowever, upon reasonable prior notice and during normal business hours, to inspect that Landlord’s books and records failure to give such notice or statement within one hundred eighty (180) days after the close of any Operating Year shall be deemed to be an unconditional waiver of Landlord’s right to collect the adjustment provided for in this Section 5(b) for such Operating Year, except with respect to the Actual items of Operating Expenses (“Tenant’s Audit”), provided: (i) Tenant is or Property Taxes the exact and final amount of which could not in default under any be ascertained through the exercise of the material provisions of the Lease, (ii) Tenant shall pay any amounts owing hereunder when due, (iii) Tenant’s Audit is performed by an officer of Tenant or certified public accountant who is paid by the hour and not on a contingency fee basis, (iv) Tenant and any Tenant Party (as defined in Section 6(c) hereof) performing Tenant’s Audit execute a confidentiality agreement in a form reasonably acceptable to Landlord, (v) Tenant’s Audit shall be performed at Tenant’s sole cost and expense unless otherwise provided herein and (vi) Tenant’s Audit shall be completed reasonable diligence within such ninety one hundred eighty (90) day period. If, within such ninety (90180) day period, Tenant delivers as to Landlord which items the written results adjustment provided for in this Section 5(b) for such Operating Year shall be made when the exact and final amount of Tenant’s Audit, certified by an officer of Tenant as being true and correct, which states that Actual Operating Expenses are more than five percent (5%) less than Landlord’s such items can be ascertained. The determination of Actual Operating Expenses (the “Discrepancy”), Landlord shall, promptly after its receipt of the written results of Tenant’s Audit either (A) reimburse Tenant for (1) Tenant’s reasonable out-of-pocket costs and expenses incurred in performing the Tenant’s Audit (not to exceed an amount equal to $3,000.00) and (2) the amount of any overpayment Estimated Operating Expenses shall be made by Tenant to Landlord pursuant to this Section 4(b), or (B) notify Tenant in writing that Landlord disagrees with the result of Tenant’s Audit, in which event the Landlord and Tenant shall submit their respective calculations of the Actual Operating Expenses to a neutral certified public accountant appointed with the consent of both Landlord and Tenant, who shall review the respective determinations of Actual Operating Expenses, and shall make a final determination of the Actual Operating Expenses for the year in question which shall be binding on both Landlord and Tenant, and if such accountant determines that the Discrepancy is greater than five percent (5%), Landlord, promptly after its receipt of such final determination, shall reimburse Tenant for Tenant’s reasonable out-of-pocket costs and expenses incurred in performing the Tenant’s Audit (not to exceed an amount equal to $3,000.00) and the amount of any overpayment made by Tenant to Landlord pursuant to this Section 4(b).