Common use of Additional Rents Clause in Contracts

Additional Rents. In addition to Base Rent, Tenant will pay as “Additional Rent” the sums or amounts set forth herein or as become due and payable elsewhere in this Lease. (a) Landlord agrees to expend as its share of Operating Costs during any calendar year an amount equal to the actual Operating Costs of the Building incurred during the Base Year (“Landlord’s Share”). Prior to the commencement of each calendar year or as soon thereafter as possible, Landlord will provide a written estimate of the Operating Costs expected to be incurred during the calendar year in excess of Landlord’s Share for the same period and showing Tenant’s Pro Rata Share of such amount (“estimated Tenant’s Share of Operating Costs Increases”). Commencing on the first anniversary of the Commencement Date Tenant will pay to Landlord, during the remaining Term of this Lease, the estimated Tenant’s Share of Operating Costs Increases, in equal monthly installments payable in advance on the first day of each calendar month, without any offset or deduction whatsoever or any prior demand unless otherwise provided in this Lease. (b) If Landlord will not have furnished estimated Operating Costs at the times contemplated herein, then until such estimated Operating Costs are provided, Tenant will continue to pay an amount equal to the monthly sum payable under this Section in respect of the last month of the preceding calendar year. In such event, promptly after estimated Operating Costs are furnished to Tenant, or together therewith, Landlord will give notice stating whether the aggregate amount of the installments of estimated Tenant’s Share of Operating Costs Increases previously made for such calendar year is more or less than the aggregate amount of the installments of estimated Tenant’s Share of Operating Costs Increases to be made for the then-current calendar year in accordance with such estimated Operating Costs, and (i) if there is a deficiency, within thirty (30) days after receipt of such notice Tenant will pay the amount of such deficiency, or (ii) if there has been an overpayment, Landlord will credit Tenant in the amount thereof toward subsequent payments of Base Rent or Additional Rent (or, upon termination of the Lease, Landlord will reimburse Tenant such overpayment in cash and within sixty (60) days thereof with Landlord’s obligations under this Section surviving expiration or any earlier termination of this Lease); and (iii) on the first day of the next following month, and monthly thereafter throughout the remainder of such calendar year, Tenant will pay an amount equal to one-twelfth (1/12) of estimated Tenant’s Share of Operating Costs Increases, shown on such estimated Operating Costs. Landlord may at any time or from time to time revise the estimated Operating Costs and, in such case, the estimated Tenant’s Share of Operating Costs Increases for the remainder of the calendar year will be based upon such revised estimate of Operating Costs and adjusted, paid, and/or credited, as applicable, substantially in the same manner as provided above. (c) Within one hundred twenty (120) days after the end of each calendar year, or at such later time as Landlord will be able to determine the actual amounts of Operating Costs, Landlord will furnish to Tenant a written statement (“Landlord’s Statement”) showing the actual Operating Costs for the calendar year, Landlord’s Share of Operating Costs during the Base Year, and Tenant’s Pro Rata Share of Operating Costs during such calendar year in excess of Landlord’s Share (“actual Tenant’s Share of Operating Costs Increases). If Landlord’s Statement shows that the estimated Tenant’s Share of Operating Costs Increases exceeded the actual Tenant’s Share for such calendar year, then Landlord will credit Tenant in the amount of such excess against subsequent payments of Base Rent and Additional Rent. If Landlord’s Statement will show that the estimated Tenant’s Share of Operating Costs increases were less than actual Tenant’s Share of Operating Costs Increases for such period, Tenant will pay the amount of such deficiency within thirty (30) days after the delivery to Tenant of such Landlord’s Statement. Landlord’s failure to render a Landlord’s Statement with respect to any period will not eliminate or reduce Tenant’s obligation to pay actual Tenant’s Share of Operating Costs Increases for such period and will not prejudice Landlord’s right to render a Landlord’s Statement with respect to any subsequent period. The obligations of Tenant under the provisions of this paragraph with respect to any increase in Additional Rent will survive the expiration or any sooner termination of the this Lease. If a change in Real Estate Taxes is obtained through a tax appeal by Landlord or otherwise, which affects the result of Landlord’s prior year’s calculation of Tenant’s Pro Rata Share of Operating Expense Increases, then Landlord shall promptly issue a credit or a charge to Tenant, as the case may be, reflecting such Real Estate Taxes adjustment. (d) In respect of any Lease Year or partial Lease Year (including the Base Year) in which the Building is not occupied to the extent of ninety-five percent (95%) of the Rentable Area thereof, the Operating Costs in respect of such period will for the purposes of this Section, be increased to be equal to the amount which would have been incurred had the Building been occupied to the extent of ninety-five percent (95%) of the Rentable Area thereof. (e) Tenant will have the right to inspect Landlord’s accounting records relative to Operating Costs of the Building at Landlord’s accounting office in Madison, Wisconsin during normal business hours at any time within sixty (60) days following receipt of Landlord’s Statement for the Base Year and within one (1) year with respect to any other calendar year. Unless Tenant takes written exception to any item within such time periods, such Landlord’s Statement will be considered as final and accepted by Tenant. If Tenant makes a timely written exception to Landlord (a “Notice Dispute”) and if Landlord and Tenant do not agree on the proper amount for actual Tenant’s Share of Operating Costs Increases within thirty (30) days of such Notice of Dispute, the matter shall be submitted to an independent certified public accountant selected by Landlord, with reasonable approval by Tenant, whose determination shall be final. If Landlord shall have overstated Tenant’s Share of Operating Costs by more than five (5) percent, Landlord shall pay all costs of such examination. If Landlord shall not have overstated Tenant’s Share of Operating Expenses by more than five percent (5%), Tenant shall pay all costs of such examination. (f) In the event that an increase in Real Estate Taxes is caused by Tenant’s improvements made to the Premises (other than the Landlord’s Work as defined in Exhibit B), Tenant will pay when due all the increase attributable to such improvements. If the improvements, the taxes for which are to be paid separately by Tenant, are not separately assessed, Landlord will equitably determine Tenant’s portion of that tax from the respective valuations assigned in the assessor’s worksheets or such other information (which may include the cost of construction) as may be reasonably available.

Appears in 2 contracts

Samples: Lease Agreement, Lease Agreement (Sonic Foundry Inc)

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Additional Rents. In addition If any tenants are required to Base Rentpay percentage rent, Tenant will pay as “escalation charges for real estate taxes, parking charges, operating expenses and maintenance escalation rents or charges, cost-of-living increases or other charges of a similar nature ("Additional Rent” Rents") and any Additional Rents are received from a tenant after the sums or amounts set forth herein or as become due and payable elsewhere in this Lease. (a) Landlord agrees to expend as its share of Operating Costs during any calendar year an amount equal to the actual Operating Costs of the Building incurred during the Base Year (“Landlord’s Share”). Prior to the commencement of each calendar year or as soon thereafter as possible, Landlord will provide a written estimate of the Operating Costs expected to be incurred during the calendar year in excess of Landlord’s Share for the same period and showing Tenant’s Pro Rata Share of such amount (“estimated Tenant’s Share of Operating Costs Increases”). Commencing on the first anniversary of the Commencement Date Tenant will pay to Landlord, during the remaining Term of this Lease, the estimated Tenant’s Share of Operating Costs Increases, in equal monthly installments payable in advance on the first day of each calendar month, without any offset or deduction whatsoever or any prior demand unless otherwise provided in this Lease. (b) If Landlord will not have furnished estimated Operating Costs at the times contemplated hereinClosing Date, then until the Purchaser shall apply such estimated Operating Costs are provided, Tenant will continue to pay an amount equal to the monthly sum payable under this Section in respect of the last month of the preceding calendar year. In such event, promptly after estimated Operating Costs are furnished to Tenant, or together therewith, Landlord will give notice stating whether the aggregate amount of the installments of estimated Tenant’s Share of Operating Costs Increases previously made for such calendar year is more or less than the aggregate amount of the installments of estimated Tenant’s Share of Operating Costs Increases to be made for the then-current calendar year in accordance with such estimated Operating Costs, and Additional Rents (i) if there is a deficiencyfirst, within thirty (30to the applicable rental period(s) days after receipt following the period in which the Closing occurred, to the extent of any Additional Rents due and owing for such notice Tenant will pay the amount of such deficiencyperiod, or (ii) if there has been an overpaymentsecond, Landlord will credit Tenant to the applicable rental period in which the amount thereof toward subsequent payments Closing occurred, to the extent of Base Rent or any Additional Rent (orRents due and owing for such period, upon termination of the Lease, Landlord will reimburse Tenant such overpayment in cash and within sixty (60) days thereof with Landlord’s obligations under this Section surviving expiration or any earlier termination of this Lease); and (iii) on third, to the first day applicable rental period(s) preceding the period in which the Closing occurred, to the extent of the next following month, any Additional Rents due and monthly thereafter throughout the remainder of such calendar year, Tenant will pay an amount equal to one-twelfth (1/12) of estimated Tenant’s Share of Operating Costs Increases, shown on such estimated Operating Costs. Landlord may at any time or from time to time revise the estimated Operating Costs and, in such case, the estimated Tenant’s Share of Operating Costs Increases for the remainder of the calendar year will be based upon such revised estimate of Operating Costs and adjusted, paid, and/or credited, as applicable, substantially in the same manner as provided above. (c) Within one hundred twenty (120) days after the end of each calendar year, or at such later time as Landlord will be able to determine the actual amounts of Operating Costs, Landlord will furnish to Tenant a written statement (“Landlord’s Statement”) showing the actual Operating Costs for the calendar year, Landlord’s Share of Operating Costs during the Base Year, and Tenant’s Pro Rata Share of Operating Costs during such calendar year in excess of Landlord’s Share (“actual Tenant’s Share of Operating Costs Increases). If Landlord’s Statement shows that the estimated Tenant’s Share of Operating Costs Increases exceeded the actual Tenant’s Share for such calendar year, then Landlord will credit Tenant in the amount of such excess against subsequent payments of Base Rent and Additional Rent. If Landlord’s Statement will show that the estimated Tenant’s Share of Operating Costs increases were less than actual Tenant’s Share of Operating Costs Increases owing for such period, Tenant will pay less, in the amount case of rents received by the Purchaser, a proportionate share of any reasonable attorneys' fees and costs and expenses expended by the Purchaser in connection with collection thereof. Notwithstanding the foregoing allocation, if and to the extent that any remittance of Additional Rents is accompanied by express directions from a tenant that such deficiency within thirty (30) days after Additional Rents are allocable to a specific rental period, such Additional Rents shall be applied first to the delivery to Tenant rental period so specified, and the remainder shall be applied in accordance with the immediately preceding sentence. To the extent that such Additional Rents consist of percentage rents, such Landlord’s Statement. Landlord’s failure to render Additional Rents shall be allocated under this Section 3.3.2 based on the assumption that such Additional Rents are earned at a Landlord’s Statement with respect to any constant rate during the course of the period will not eliminate or reduce Tenant’s obligation to pay actual Tenant’s Share of Operating Costs Increases for which such period and will not prejudice Landlord’s right to render a Landlord’s Statement with respect to any subsequent periodAdditional Rents are paid. The obligations of Tenant under the provisions of this paragraph with respect to any increase in Additional Rent will Section 3.3.2 shall survive the expiration or any sooner termination of the this LeaseClosing. If a change in Real Estate Taxes is obtained through a tax appeal by Landlord or otherwise, which affects the result of Landlord’s prior year’s calculation of Tenant’s Pro Rata Share of Operating Expense Increases, then Landlord shall promptly issue a credit or a charge to Tenant, as the case may be, reflecting such Real Estate Taxes adjustment. (d) In respect of any Lease Year or partial Lease Year (including the Base Year) in which the Building is not occupied to the extent of ninety-five percent (95%) of the Rentable Area thereof, the Operating Costs in respect of such period will for the purposes of this Section, be increased to be equal to the amount which would have been incurred had the Building been occupied to the extent of ninety-five percent (95%) of the Rentable Area thereof. (e) Tenant will have the right to inspect Landlord’s accounting records relative to Operating Costs of the Building at Landlord’s accounting office in Madison, Wisconsin during normal business hours at any time within sixty (60) days following receipt of Landlord’s Statement for the Base Year and within one (1) year with respect to any other calendar year. Unless Tenant takes written exception to any item within such time periods, such Landlord’s Statement will be considered as final and accepted by Tenant. If Tenant makes a timely written exception to Landlord (a “Notice Dispute”) and if Landlord and Tenant do not agree on the proper amount for actual Tenant’s Share of Operating Costs Increases within thirty (30) days of such Notice of Dispute, the matter shall be submitted to an independent certified public accountant selected by Landlord, with reasonable approval by Tenant, whose determination shall be final. If Landlord shall have overstated Tenant’s Share of Operating Costs by more than five (5) percent, Landlord shall pay all costs of such examination. If Landlord shall not have overstated Tenant’s Share of Operating Expenses by more than five percent (5%), Tenant shall pay all costs of such examination. (f) In the event that an increase the provisions of any Lease regarding calculation of Additional Rents call for a partial refunding or credit of such Additional Rents for any period paid in Real Estate Taxes is caused advance by Tenant’s improvements made such tenant, the Sellers shall pay a portion of such refund or credit, net of offsets, ratably attributable to the Premises (other than the Landlord’s Work as defined in Exhibit B), Tenant will pay when due all the increase attributable to such improvements. If the improvements, the taxes for which are to be paid separately by Tenant, are not separately assessed, Landlord will equitably determine Tenant’s portion of that tax from such Additional Rents received by the respective valuations assigned in the assessor’s worksheets or Sellers for such other information (which may include the cost of construction) as may be reasonably availableperiod.

Appears in 2 contracts

Samples: Purchase and Sale Agreement (Dean Witter Realty Yield Plus L P), Purchase and Sale Agreement (Dean Witter Realty Income Partnership Iii Lp)

Additional Rents. In addition to Base Rent(i) Any percentage rent, Tenant will pay as escalation rent, charges for real estate taxes, operating and maintenance expenses, pass-throughs for roof, parking area and other capital asset replacements (including amortization payments), escalation rents or charges, electricity charges, cost of living increases or any other charges of a similar nature other than fixed or base rent under the Leases (collectively, the “Additional Rent” the sums or amounts set forth herein or Rents”) shall be prorated as become due and payable elsewhere in this Lease. (a) Landlord agrees to expend as its share of Operating Costs during any calendar year an amount equal to the actual Operating Costs of the Building incurred during the Base Year (“Landlord’s Share”). Prior to the commencement of each calendar year or as soon thereafter as possibleClosing Date between Buyer and Seller, Landlord will provide a written estimate of the Operating Costs expected to be incurred during the calendar year in excess of Landlord’s Share for the same period and showing Tenant’s Pro Rata Share of such amount (“estimated Tenant’s Share of Operating Costs Increases”). Commencing on the first anniversary of the Commencement Date Tenant will pay to Landlord, during the remaining Term of this Lease, the estimated Tenant’s Share of Operating Costs Increases, in equal monthly installments payable in advance on the first day of each calendar month, without any offset or deduction whatsoever or any prior demand unless otherwise provided in this Lease. (b) If Landlord will not have furnished estimated Operating Costs at the times contemplated herein, then until such estimated Operating Costs are provided, Tenant will continue to pay an amount equal to the monthly sum payable under this Section in respect of the last month of the preceding calendar year. In such event, promptly after estimated Operating Costs are furnished to Tenant, or together therewith, Landlord will give notice stating whether the aggregate amount of the installments of estimated Tenant’s Share of Operating Costs Increases previously made for such calendar year is more or less than the aggregate amount of the installments of estimated Tenant’s Share of Operating Costs Increases with final adjusted proration payments to be made for on or before the then-current calendar year in accordance with such estimated Operating Costs, and (i) if there date that is a deficiency, within thirty (30) days after receipt of such notice Tenant will pay the amount of such deficiency, or (ii) if there has been an overpayment, Landlord will credit Tenant in the amount thereof toward subsequent payments of Base Rent or Additional Rent (or, upon termination of the Lease, Landlord will reimburse Tenant such overpayment in cash and within sixty (60) days thereof with Landlord’s obligations under this Section surviving expiration or any earlier termination of this Lease); and (iii) on the first day of the next following month, and monthly thereafter throughout the remainder of such calendar year, Tenant will pay an amount equal to one-twelfth (1/12) of estimated Tenant’s Share of Operating Costs Increases, shown on such estimated Operating Costs. Landlord may at any time or from time to time revise the estimated Operating Costs and, in such case, the estimated Tenant’s Share of Operating Costs Increases for the remainder of the calendar year will be based upon such revised estimate of Operating Costs and adjusted, paid, and/or credited, as applicable, substantially in the same manner as provided above. (c) Within one hundred twenty (120) days after following the end Closing Date. (ii) Prior to the Closing, Seller shall provide Buyer on an estimated basis with information regarding Additional Rents which were received by Seller prior to Closing and the amount of each calendar year, or at reimbursable expenses paid by Seller prior to Closing. If Seller’s collections of such later time as Landlord will be able to determine the actual amounts of Operating Costs, Landlord will furnish to Tenant a written statement (“Landlord’s Statement”) showing the actual Operating Costs for the calendar year, Landlord’s Share of Operating Costs during the Base Year, and Tenant’s Pro Rata Share of Operating Costs during such calendar year Additional Rents is in excess of Landlordthe amounts actually paid by Seller for such items for the period prior to Closing, then Buyer shall receive a credit at Closing for the excess amounts collected. Buyer shall apply all such excess amounts to the charges owed by Buyer for such items for the period after the Closing and, if required by the Leases, shall rebate or credit the tenants with any remainder. If it is determined that the amount collected during Seller’s Share ownership period was less than the amounts actually paid by Seller for such items for the period prior to the Closing, then the collection and remitting of such amounts shall be governed by the provisions of subsection (a) above regarding the post-closing application of rents. With respect to reimbursable expenses paid by Seller prior to Closing, but not billed to tenants prior to Closing, Seller will provide to Buyer all relevant information including supporting documentation and Seller’s calculation of the amount to be billed to each tenant. (iii) On or before the date that is one hundred twenty (120) days following the Closing Date, Seller shall deliver to Buyer a reconciliation of all expenses reimbursable by tenants under the Leases, and the amount of Additional Rents received by Seller and Buyer relating thereto (the actual Tenant’s Share of Operating Costs IncreasesReconciliation”). If Landlord’s Statement shows that Upon reasonable notice and during normal business hours, each party shall make available to the estimated Tenant’s Share other all information reasonably required to confirm the Reconciliation. In the event of Operating Costs Increases exceeded any overpayment of Additional Rents by the actual Tenant’s Share for such calendar yeartenants to Seller, then Landlord will credit Tenant Seller shall promptly, but in no event later than fifteen (15) days after receipt of the Reconciliation, pay to Buyer the amount of such excess against subsequent payments of Base Rent overpayment and Additional Rent. If Landlord’s Statement will show that Buyer, as the estimated Tenant’s Share of Operating Costs increases were less than actual Tenant’s Share of Operating Costs Increases for such periodlandlord under the particular Leases, Tenant will shall pay or credit to each applicable tenant the amount of such deficiency within thirty overpayment. Seller shall indemnify and hold Buyer harmless from and against any costs, damages, liabilities, losses, expenses, liens or claims (30including, without limitation, reasonable attorneys’ fees) days after the delivery to Tenant arising out of such LandlordSeller’s Statement. Landlord’s Reconciliation and/or failure to render a Landlordreimburse tenants for any overpayments by tenants as of the Closing, which obligation shall survive the Closing. Seller’s Statement with respect Reconciliation shall be calculated based on the expenses actually incurred by Seller for the period covered by such Reconciliation and Seller’s period of ownership of the Property. If Seller determines following such Seller’s Reconciliation, that any tenant(s) have underpaid any such Additional Rents or other operating expenses or reimbursements allocable to any period will not eliminate or reduce Tenant’s obligation prior to pay actual Tenant’s Share the Closing, then Seller may pursue collection of Operating Costs Increases for such period and will not prejudice Landlord’s shortfall in payments, provided Seller shall have no right to render a Landlord’s Statement with respect to terminate any subsequent period. The obligations of Tenant under the provisions of this paragraph with respect to any increase in Additional Rent will survive the expiration Lease or any sooner termination of the this Lease. If a change in Real Estate Taxes is obtained through a tax appeal by Landlord or otherwise, which affects the result of Landlordtenant’s prior year’s calculation of Tenant’s Pro Rata Share of Operating Expense Increases, then Landlord shall promptly issue a credit or a charge to Tenant, as the case may be, reflecting such Real Estate Taxes adjustment. (d) In respect of occupancy under any Lease Year or partial Lease Year (including the Base Year) in which the Building is not occupied to the extent of ninety-five percent (95%) of the Rentable Area thereof, the Operating Costs in respect of such period will for the purposes of this Section, be increased to be equal to the amount which would have been incurred had the Building been occupied to the extent of ninety-five percent (95%) of the Rentable Area thereofconnection therewith. (e) Tenant will have the right to inspect Landlord’s accounting records relative to Operating Costs of the Building at Landlord’s accounting office in Madison, Wisconsin during normal business hours at any time within sixty (60) days following receipt of Landlord’s Statement for the Base Year and within one (1) year with respect to any other calendar year. Unless Tenant takes written exception to any item within such time periods, such Landlord’s Statement will be considered as final and accepted by Tenant. If Tenant makes a timely written exception to Landlord (a “Notice Dispute”) and if Landlord and Tenant do not agree on the proper amount for actual Tenant’s Share of Operating Costs Increases within thirty (30) days of such Notice of Dispute, the matter shall be submitted to an independent certified public accountant selected by Landlord, with reasonable approval by Tenant, whose determination shall be final. If Landlord shall have overstated Tenant’s Share of Operating Costs by more than five (5) percent, Landlord shall pay all costs of such examination. If Landlord shall not have overstated Tenant’s Share of Operating Expenses by more than five percent (5%), Tenant shall pay all costs of such examination. (f) In the event that an increase in Real Estate Taxes is caused by Tenant’s improvements made to the Premises (other than the Landlord’s Work as defined in Exhibit B), Tenant will pay when due all the increase attributable to such improvements. If the improvements, the taxes for which are to be paid separately by Tenant, are not separately assessed, Landlord will equitably determine Tenant’s portion of that tax from the respective valuations assigned in the assessor’s worksheets or such other information (which may include the cost of construction) as may be reasonably available.

Appears in 2 contracts

Samples: Purchase and Sale Agreement, Purchase and Sale Agreement (Zynga Inc)

Additional Rents. In addition Purchaser shall use commercially reasonable efforts to Base Rentcollect any Additional Rents for the Property operating year (2024) in which Closing occurs, Tenant will pay as “where such Additional Rent” the sums or amounts set forth herein or as Rents first become due and payable elsewhere after Closing, but shall have no obligation to collect any Additional Rents for periods relating to operating years which ended prior to Closing. Additional Rents that were collected before Closing but relate in this Lease. (a) Landlord agrees part to expend a period after Closing shall be apportioned as its share of Operating Costs during any calendar year an amount equal to the actual Operating Costs of the Building incurred during Closing Date and Purchaser shall receive a credit against the Base Year Purchase Price for any such Additional Rents attributable to periods from and after Closing. Not later than three (“Landlord3) months following the Closing Date, Seller shall provide to Purchaser, Sxxxxx’s Share”). Prior to proposed reconciliation of Additional Rents for the commencement of each calendar year or as soon thereafter as possible, Landlord will provide a written estimate of the Operating Costs expected to be incurred during Property for the calendar year 2024 prior to the Closing Date. As soon as is reasonably practical, but in excess no event later than May 31, 2025, Purchaser shall prepare for Seller’s review and approval a reconciliation of Landlord’s Share Additional Rent for the same period calendar year 2024. Upon completion of an approved reconciliation of Additional Rent for the calendar year 2024, Purchaser shall invoice and showing diligently pursue collection from the Tenant any outstanding Additional Rent and where appropriate, credit the Tenant any overpaid Additional Rent. Promptly after receipt by Purchaser of any such outstanding amounts from the Tenant’s Pro Rata Share , Purchaser shall forward to Seller the portion of such amount (“estimated Tenant’s Share of Operating Costs Increases”). Commencing on the first anniversary of the Commencement Date Tenant will pay to Landlord, during the remaining Term of this Lease, the estimated Tenant’s Share of Operating Costs Increases, in equal monthly installments payable in advance on the first day of each calendar month, without any offset or deduction whatsoever or any prior demand unless otherwise provided in this Lease. (b) If Landlord will not have furnished estimated Operating Costs at the times contemplated herein, then until such estimated Operating Costs are provided, Tenant will continue to pay an amount equal amounts relating to the monthly sum payable under this Section in respect of the last month of the preceding calendar year. In such event, promptly after estimated Operating Costs are furnished to Tenant, or together therewith, Landlord will give notice stating whether the aggregate amount of the installments of estimated Tenant’s Share of Operating Costs Increases previously made for such calendar year is more or less than 2024 prior to the aggregate amount of the installments of estimated Tenant’s Share of Operating Costs Increases to be made for the then-current calendar year in accordance with such estimated Operating Costs, and (i) if there is a deficiency, within Closing Date. Within thirty (30) days after receipt completion of such notice Tenant will pay the amount an approved reconciliation of such deficiency, or (ii) if there has been an overpayment, Landlord will credit Tenant in the amount thereof toward subsequent payments of Base Rent or Additional Rent (or, upon termination of the Lease, Landlord will reimburse Tenant such overpayment in cash and within sixty (60) days thereof with Landlord’s obligations under this Section surviving expiration or any earlier termination of this Lease); and (iii) on the first day of the next following month, and monthly thereafter throughout the remainder of such calendar year, Tenant will pay an amount equal to one-twelfth (1/12) of estimated Tenant’s Share of Operating Costs Increases, shown on such estimated Operating Costs. Landlord may at any time or from time to time revise the estimated Operating Costs and, in such case, the estimated Tenant’s Share of Operating Costs Increases for the remainder of the calendar year will be based upon such revised estimate 2024, Seller shall pay to Purchaser the portion of Operating Costs and adjusted, paid, and/or credited, as applicable, substantially in any proper credit due the same manner as provided above. (c) Within one hundred twenty (120) days after the end of each calendar year, or at such later time as Landlord will be able Tenant relating to determine the actual amounts of Operating Costs, Landlord will furnish to Tenant a written statement (“Landlord’s Statement”) showing the actual Operating Costs for the calendar year, Landlord’s Share of Operating Costs during year 2024 prior to the Base Year, Closing Date. Purchaser and Tenant’s Pro Rata Share of Operating Costs during such calendar year in excess of Landlord’s Share (“actual Tenant’s Share of Operating Costs Increases). If Landlord’s Statement shows that the estimated Tenant’s Share of Operating Costs Increases exceeded the actual Tenant’s Share for such calendar year, then Landlord will credit Tenant in the amount of such excess against subsequent payments of Base Rent and Additional Rent. If Landlord’s Statement will show that the estimated Tenant’s Share of Operating Costs increases were less than actual Tenant’s Share of Operating Costs Increases for such period, Tenant will pay the amount of such deficiency within thirty (30) days after the delivery to Tenant of such Landlord’s Statement. Landlord’s failure to render a Landlord’s Statement Seller shall each act reasonably with respect to any period will not eliminate or reduce Tenant’s obligation to pay actual Tenant’s Share the reconciliation of Operating Costs Increases for such period and will not prejudice Landlord’s right to render a Landlord’s Statement with respect to any subsequent period. The obligations of Tenant under the provisions of this paragraph with respect to any increase in Additional Rent will survive the expiration or any sooner termination of the this Lease. If a change in Real Estate Taxes is obtained through a tax appeal by Landlord or otherwise, which affects the result of Landlord’s prior year’s calculation of Tenant’s Pro Rata Share of Operating Expense Increases, then Landlord shall promptly issue a credit or a charge to Tenant, as the case may be, reflecting such Real Estate Taxes adjustmentset forth above. (d) In respect of any Lease Year or partial Lease Year (including the Base Year) in which the Building is not occupied to the extent of ninety-five percent (95%) of the Rentable Area thereof, the Operating Costs in respect of such period will for the purposes of this Section, be increased to be equal to the amount which would have been incurred had the Building been occupied to the extent of ninety-five percent (95%) of the Rentable Area thereof. (e) Tenant will have the right to inspect Landlord’s accounting records relative to Operating Costs of the Building at Landlord’s accounting office in Madison, Wisconsin during normal business hours at any time within sixty (60) days following receipt of Landlord’s Statement for the Base Year and within one (1) year with respect to any other calendar year. Unless Tenant takes written exception to any item within such time periods, such Landlord’s Statement will be considered as final and accepted by Tenant. If Tenant makes a timely written exception to Landlord (a “Notice Dispute”) and if Landlord and Tenant do not agree on the proper amount for actual Tenant’s Share of Operating Costs Increases within thirty (30) days of such Notice of Dispute, the matter shall be submitted to an independent certified public accountant selected by Landlord, with reasonable approval by Tenant, whose determination shall be final. If Landlord shall have overstated Tenant’s Share of Operating Costs by more than five (5) percent, Landlord shall pay all costs of such examination. If Landlord shall not have overstated Tenant’s Share of Operating Expenses by more than five percent (5%), Tenant shall pay all costs of such examination. (f) In the event that an increase in Real Estate Taxes is caused by Tenant’s improvements made to the Premises (other than the Landlord’s Work as defined in Exhibit B), Tenant will pay when due all the increase attributable to such improvements. If the improvements, the taxes for which are to be paid separately by Tenant, are not separately assessed, Landlord will equitably determine Tenant’s portion of that tax from the respective valuations assigned in the assessor’s worksheets or such other information (which may include the cost of construction) as may be reasonably available.

Appears in 1 contract

Samples: Agreement of Sale (EQT Exeter Real Estate Income Trust, Inc.)

Additional Rents. In addition If any tenants are required to Base Rentpay percentage rent, Tenant will pay as “escalation charges for real estate taxes, parking charges, operating expenses and maintenance escalation charges, cost-of-living increases or other charges of a similar nature ("ADDITIONAL RENTS") and if on the Closing Date any tenant is in arrears in the payment of Additional Rent” Rents or has not paid Additional Rents payable by it for the sums month in which the Closing occurs (whether or not it is in arrears for such month on the Closing Date), any Additional Rents received by the Purchaser or the Seller from such tenant after the Closing shall be applied to amounts set forth herein or as become due and payable elsewhere by such tenant in the manner specified by such tenant, provided that if such tenant does not so specify, such Additional Rents shall be applied to amounts due and payable by such tenant during the following periods in the following order of priority: (i) first, to the month in which the Closing occurred, (ii) second, to the months following the month in which the Closing occurred, and, (iii) third, to the month preceding the month in which the Closing occurred. If Additional Rents or any portion thereof received by the Seller or the Purchaser after the Closing are due and payable to the other party by reason of this Lease. (a) Landlord agrees to expend as its allocation, the appropriate sum, less a proportionate share of Operating Costs during any calendar year an amount equal reasonable attorneys' fees and costs and expenses expended in connection with theof collection thereof shall be promptly paid to the actual Operating Costs of other party (to the Building incurred during the Base Year (“Landlord’s Share”extent not collected from or reimbursed by tenants). Prior to To the commencement extent that such Additional Rents consist of each calendar year or as soon thereafter as possiblepercentage rents, Landlord will provide a written estimate of the Operating Costs expected to such Additional Rents shall be incurred during the calendar year in excess of Landlord’s Share for the same period and showing Tenant’s Pro Rata Share of such amount (“estimated Tenant’s Share of Operating Costs Increases”). Commencing on the first anniversary of the Commencement Date Tenant will pay to Landlord, during the remaining Term of this Lease, the estimated Tenant’s Share of Operating Costs Increases, in equal monthly installments payable in advance on the first day of each calendar month, without any offset or deduction whatsoever or any prior demand unless otherwise provided in this Lease. (b) If Landlord will not have furnished estimated Operating Costs at the times contemplated herein, then until such estimated Operating Costs are provided, Tenant will continue to pay an amount equal to the monthly sum payable allocated under this Section in respect 3.2.2. based on the assumption that such Additional Rents are earned at a constant rate during the course of the last month of the preceding calendar year. In period for which such event, promptly after estimated Operating Costs Additional Rents are furnished to Tenant, or together therewith, Landlord will give notice stating whether the aggregate amount of the installments of estimated Tenant’s Share of Operating Costs Increases previously made for such calendar year is more or less than the aggregate amount of the installments of estimated Tenant’s Share of Operating Costs Increases to be made for the then-current calendar year in accordance with such estimated Operating Costs, and (i) if there is a deficiency, within thirty (30) days after receipt of such notice Tenant will pay the amount of such deficiency, or (ii) if there has been an overpayment, Landlord will credit Tenant in the amount thereof toward subsequent payments of Base Rent or Additional Rent (or, upon termination of the Lease, Landlord will reimburse Tenant such overpayment in cash and within sixty (60) days thereof with Landlord’s obligations under this Section surviving expiration or any earlier termination of this Lease); and (iii) on the first day of the next following month, and monthly thereafter throughout the remainder of such calendar year, Tenant will pay an amount equal to one-twelfth (1/12) of estimated Tenant’s Share of Operating Costs Increases, shown on such estimated Operating Costs. Landlord may at any time or from time to time revise the estimated Operating Costs and, in such case, the estimated Tenant’s Share of Operating Costs Increases for the remainder of the calendar year will be based upon such revised estimate of Operating Costs and adjusted, paid, and/or credited, as applicable, substantially in the same manner as provided above. (c) Within one hundred twenty (120) days after the end of each calendar year, or at such later time as Landlord will be able to determine the actual amounts of Operating Costs, Landlord will furnish to Tenant a written statement (“Landlord’s Statement”) showing the actual Operating Costs for the calendar year, Landlord’s Share of Operating Costs during the Base Year, and Tenant’s Pro Rata Share of Operating Costs during such calendar year in excess of Landlord’s Share (“actual Tenant’s Share of Operating Costs Increases). If Landlord’s Statement shows that the estimated Tenant’s Share of Operating Costs Increases exceeded the actual Tenant’s Share for such calendar year, then Landlord will credit Tenant in the amount of such excess against subsequent payments of Base Rent and Additional Rent. If Landlord’s Statement will show that the estimated Tenant’s Share of Operating Costs increases were less than actual Tenant’s Share of Operating Costs Increases for such period, Tenant will pay the amount of such deficiency within thirty (30) days after the delivery to Tenant of such Landlord’s Statement. Landlord’s failure to render a Landlord’s Statement with respect to any period will not eliminate or reduce Tenant’s obligation to pay actual Tenant’s Share of Operating Costs Increases for such period and will not prejudice Landlord’s right to render a Landlord’s Statement with respect to any subsequent period. The obligations of Tenant under the provisions of this paragraph with respect to any increase in Additional Rent will Section 3.2.2. shall survive the expiration or any sooner termination of the this Lease. If a change in Real Estate Taxes is obtained through a tax appeal by Landlord or otherwise, which affects the result of Landlord’s prior year’s calculation of Tenant’s Pro Rata Share of Operating Expense Increases, then Landlord shall promptly issue a credit or a charge to Tenant, as the case may be, reflecting such Real Estate Taxes adjustmentClosing. (d) In respect of any Lease Year or partial Lease Year (including the Base Year) in which the Building is not occupied to the extent of ninety-five percent (95%) of the Rentable Area thereof, the Operating Costs in respect of such period will for the purposes of this Section, be increased to be equal to the amount which would have been incurred had the Building been occupied to the extent of ninety-five percent (95%) of the Rentable Area thereof. (e) Tenant will have the right to inspect Landlord’s accounting records relative to Operating Costs of the Building at Landlord’s accounting office in Madison, Wisconsin during normal business hours at any time within sixty (60) days following receipt of Landlord’s Statement for the Base Year and within one (1) year with respect to any other calendar year. Unless Tenant takes written exception to any item within such time periods, such Landlord’s Statement will be considered as final and accepted by Tenant. If Tenant makes a timely written exception to Landlord (a “Notice Dispute”) and if Landlord and Tenant do not agree on the proper amount for actual Tenant’s Share of Operating Costs Increases within thirty (30) days of such Notice of Dispute, the matter shall be submitted to an independent certified public accountant selected by Landlord, with reasonable approval by Tenant, whose determination shall be final. If Landlord shall have overstated Tenant’s Share of Operating Costs by more than five (5) percent, Landlord shall pay all costs of such examination. If Landlord shall not have overstated Tenant’s Share of Operating Expenses by more than five percent (5%), Tenant shall pay all costs of such examination. (f) In the event that an increase in Real Estate Taxes is caused by Tenant’s improvements made to the Premises (other than the Landlord’s Work as defined in Exhibit B), Tenant will pay when due all the increase attributable to such improvements. If the improvements, the taxes for which are to be paid separately by Tenant, are not separately assessed, Landlord will equitably determine Tenant’s portion of that tax from the respective valuations assigned in the assessor’s worksheets or such other information (which may include the cost of construction) as may be reasonably available.

Appears in 1 contract

Samples: Purchase and Sale Agreement (Witter Dean Realty Income Partnership I Lp)

Additional Rents. In addition If any Space Tenants are required to Base Rentpay Additional Rents and the same are not finally adjusted between the landlord and Space Tenant under any Space Lease until after the preparation of the Preliminary Proration Statement pursuant to Section 9.4(a)(i) above, Tenant will pay then, the Preliminary Proration Statement shall include an estimated reconciliation as of the Closing Date of the amounts of all bxxxxxxx and charges for Additional Rent” the sums or amounts set forth herein or as become due and payable elsewhere in this Lease. (a) Landlord agrees to expend as its share of Operating Costs during any Rents for calendar year an amount equal to 2014 through the actual Operating Costs of the Building incurred during the Base Year (“Landlord’s Share”). Prior to the commencement of each calendar year or Closing Date, as soon thereafter as possible, Landlord will provide a written estimate of the Operating Costs expected to be incurred during the calendar year in excess of Landlord’s Share for the same period and showing Tenant’s Pro Rata Share of such amount (“estimated Tenant’s Share of Operating Costs Increases”). Commencing on the first anniversary of the Commencement Date Tenant will pay to Landlord, during the remaining Term of this Lease, the estimated Tenant’s Share of Operating Costs Increases, in equal monthly installments payable in advance on the first day of each calendar month, without any offset or deduction whatsoever or any prior demand unless otherwise provided in this Lease. (b) Section 9.4(b)(i). If Landlord will not the amounts that have furnished estimated Operating Costs at been billed to Space Tenants for Additional Rents for calendar year 2014 through the times contemplated herein, then until Closing Date are less than would have been owed by Space Tenants under their respective Space Leases if the reconciliations under such estimated Operating Costs Space Tenant Spaces Leases were completed as of the Closing Date based on the actual costs incurred by Seller for items that are provided, Tenant will continue to pay an amount equal payable by the Space Tenants as Additional Rents under their respective Space Leases for calendar year 2014 up to the monthly sum payable under this Section Closing Date, the Preliminary Proration Statement will include a credit to Seller in respect of the last month of the preceding calendar year. In such event, promptly after estimated Operating Costs are furnished to Tenant, or together therewith, Landlord will give notice stating whether the aggregate amount of the installments of estimated Tenant’s Share of Operating Costs Increases previously made for such calendar year is more or less than the aggregate amount of the installments of estimated Tenant’s Share of Operating Costs Increases to be made for the then-current calendar year in accordance with such estimated Operating Costs, and (i) if there is a deficiency, within thirty (30) days after receipt of such notice Tenant will pay the amount of such deficiencyshortfall, or (iisubject to final adjustment as provided below in Sections 9.4(b)(iii) through 9.4(b)(v) below. If the amounts that have been billed to Space Tenants for Additional Rents for calendar year 2014 through the Closing Date exceed what would have been owed by Space Tenants under their respective Space Leases if there has been an overpayment, Landlord will credit the reconciliations under such Space Tenant in the amount thereof toward subsequent payments of Base Rent or Additional Rent (or, upon termination Space Leases were completed as of the Lease, Landlord will reimburse Tenant such overpayment in cash and within sixty (60) days thereof with Landlord’s obligations under this Section surviving expiration or any earlier termination of this Lease); and (iii) Closing Date based on the first day of actual costs incurred by Seller for items that are payable by the next following month, and monthly thereafter throughout Space Tenants as Additional Rents under their respective Space Leases for calendar year 2014 up to the remainder of such calendar year, Tenant will pay an amount equal to one-twelfth (1/12) of estimated Tenant’s Share of Operating Costs Increases, shown on such estimated Operating Costs. Landlord may at any time or from time to time revise the estimated Operating Costs and, in such caseClosing Date, the estimated Tenant’s Share of Operating Costs Increases for the remainder of the calendar year Preliminary Proration Statement will be based upon such revised estimate of Operating Costs and adjusted, paid, and/or credited, as applicable, substantially in the same manner as provided above. (c) Within one hundred twenty (120) days after the end of each calendar year, or at such later time as Landlord will be able include a credit to determine the actual amounts of Operating Costs, Landlord will furnish to Tenant a written statement (“Landlord’s Statement”) showing the actual Operating Costs for the calendar year, Landlord’s Share of Operating Costs during the Base Year, and Tenant’s Pro Rata Share of Operating Costs during such calendar year in excess of Landlord’s Share (“actual Tenant’s Share of Operating Costs Increases). If Landlord’s Statement shows that the estimated Tenant’s Share of Operating Costs Increases exceeded the actual Tenant’s Share for such calendar year, then Landlord will credit Tenant Purchaser in the amount of such excess against subsequent payments of Base Rent and Additional Rent. If Landlord’s Statement will show that the estimated Tenant’s Share of Operating Costs increases were less than actual Tenant’s Share of Operating Costs Increases for such periodbilled amount, Tenant will pay the amount of such deficiency within thirty (30subject to final adjustment as provided below in Sections 9.4(b)(iii) days after the delivery to Tenant of such Landlord’s Statement. Landlord’s failure to render a Landlord’s Statement with respect to any period will not eliminate or reduce Tenant’s obligation to pay actual Tenant’s Share of Operating Costs Increases for such period and will not prejudice Landlord’s right to render a Landlord’s Statement with respect to any subsequent period. The obligations of Tenant under the provisions of this paragraph with respect to any increase in Additional Rent will survive the expiration or any sooner termination of the this Lease. If a change in Real Estate Taxes is obtained through a tax appeal by Landlord or otherwise, which affects the result of Landlord’s prior year’s calculation of Tenant’s Pro Rata Share of Operating Expense Increases, then Landlord shall promptly issue a credit or a charge to Tenant, as the case may be, reflecting such Real Estate Taxes adjustment9.4(b)(v) below. (d) In respect of any Lease Year or partial Lease Year (including the Base Year) in which the Building is not occupied to the extent of ninety-five percent (95%) of the Rentable Area thereof, the Operating Costs in respect of such period will for the purposes of this Section, be increased to be equal to the amount which would have been incurred had the Building been occupied to the extent of ninety-five percent (95%) of the Rentable Area thereof. (e) Tenant will have the right to inspect Landlord’s accounting records relative to Operating Costs of the Building at Landlord’s accounting office in Madison, Wisconsin during normal business hours at any time within sixty (60) days following receipt of Landlord’s Statement for the Base Year and within one (1) year with respect to any other calendar year. Unless Tenant takes written exception to any item within such time periods, such Landlord’s Statement will be considered as final and accepted by Tenant. If Tenant makes a timely written exception to Landlord (a “Notice Dispute”) and if Landlord and Tenant do not agree on the proper amount for actual Tenant’s Share of Operating Costs Increases within thirty (30) days of such Notice of Dispute, the matter shall be submitted to an independent certified public accountant selected by Landlord, with reasonable approval by Tenant, whose determination shall be final. If Landlord shall have overstated Tenant’s Share of Operating Costs by more than five (5) percent, Landlord shall pay all costs of such examination. If Landlord shall not have overstated Tenant’s Share of Operating Expenses by more than five percent (5%), Tenant shall pay all costs of such examination. (f) In the event that an increase in Real Estate Taxes is caused by Tenant’s improvements made to the Premises (other than the Landlord’s Work as defined in Exhibit B), Tenant will pay when due all the increase attributable to such improvements. If the improvements, the taxes for which are to be paid separately by Tenant, are not separately assessed, Landlord will equitably determine Tenant’s portion of that tax from the respective valuations assigned in the assessor’s worksheets or such other information (which may include the cost of construction) as may be reasonably available.

Appears in 1 contract

Samples: Contract of Sale (American Realty Capital - Retail Centers of America, Inc.)

Additional Rents. In addition to Base RentAny percentage rent, Tenant will pay escalation charges for real estate taxes, parking charges, operating and maintenance expenses, pass-throughs for roof, parking area and other capital asset replacements (including amortization payments), escalation rents or charges, electricity charges, cost of living increases or any other charges of a similar nature other than fixed or base rent under the Leases (collectively, the "Additional Rents") shall be prorated as “Additional Rent” the sums or amounts set forth herein or as become due and payable elsewhere in this Lease. (a) Landlord agrees to expend as its share of Operating Costs during any calendar year an amount equal to the actual Operating Costs of the Building incurred during the Base Year (“Landlord’s Share”). Prior to the commencement of each calendar year or as soon thereafter as possible, Landlord will provide a written estimate of the Operating Costs expected Closing Date between Buyer and Seller proration payments to be incurred during made on or before the date which is ninety (90) days following the end of the calendar year in which the Closing occurs based on the actual number of days of the year and month which shall have elapsed as of the Closing Date. Prior to Closing, Seller shall provide Buyer on an estimated basis with information regarding Additional Rents which were received by Seller prior to Closing and the amount of reimbursable expenses paid by Seller prior to Closing. If Seller's collections of such amounts is in excess of Landlord’s Share the amounts actually paid by Seller for such items for the same period and showing Tenant’s Pro Rata Share of such amount (“estimated Tenant’s Share of Operating Costs Increases”). Commencing on the first anniversary of the Commencement Date Tenant will pay prior to Landlord, during the remaining Term of this Lease, the estimated Tenant’s Share of Operating Costs Increases, in equal monthly installments payable in advance on the first day of each calendar month, without any offset or deduction whatsoever or any prior demand unless otherwise provided in this Lease. (b) If Landlord will not have furnished estimated Operating Costs at the times contemplated hereinClosing, then until Buyer shall receive a credit at Closing for the excess amounts collected. Buyer shall apply all such estimated Operating Costs are provided, Tenant will continue to pay an amount equal excess amounts to the monthly sum payable under this Section in respect of the last month of the preceding calendar year. In such event, promptly after estimated Operating Costs are furnished to Tenant, or together therewith, Landlord will give notice stating whether the aggregate amount of the installments of estimated Tenant’s Share of Operating Costs Increases previously made charges owed by Buyer for such calendar year items for the period after the Closing and, if required by the Leases, shall rebate or credit the tenants with any remainder. If it is more or determined that the amount collected during Seller's ownership period was less than the aggregate amount amounts actually paid by Seller for such items for the period prior to the Closing, then the collection and remitting of such amounts shall be governed by the provisions of subsection (iii) above regarding the post-closing application of rents. With respect to reimbursable expenses paid by Seller prior to Closing, but not billed to tenants prior to Closing, Seller will provide to Buyer all relevant information including supporting documentation and Seller's calculation of the installments of estimated Tenant’s Share of Operating Costs Increases amount to be made for billed to each tenant. On or before the then-current date which is ninety (90) days following the end of the calendar year in accordance with such estimated Operating Costswhich the Closing occurs, Buyer shall deliver to Seller a reconciliation of all expenses reimbursable by tenants under the Leases, and the amount of Additional Rents received by Seller and Buyer relating thereto (i) if there is a deficiencythe "Reconciliation"). Upon reasonable notice and during normal business hours, within thirty each party shall make available to the other all information reasonably required to confirm the Reconciliation. In the event of any overpayment of Additional Rents by the tenants to Seller, Seller shall promptly, but in no event later than fifteen (3015) days after receipt of such notice Tenant will the Reconciliation, pay to Buyer the amount of such deficiency, or (ii) if there has been an overpayment, Landlord will credit Tenant in the amount thereof toward subsequent payments of Base Rent or Additional Rent (or, upon termination of the Lease, Landlord will reimburse Tenant such overpayment in cash and within sixty (60) days thereof with Landlord’s obligations under this Section surviving expiration or any earlier termination of this Lease); and (iii) on the first day of the next following month, and monthly thereafter throughout the remainder of such calendar year, Tenant will pay an amount equal to one-twelfth (1/12) of estimated Tenant’s Share of Operating Costs Increases, shown on such estimated Operating Costs. Landlord may at any time or from time to time revise the estimated Operating Costs and, in such case, the estimated Tenant’s Share of Operating Costs Increases for the remainder of the calendar year will be based upon such revised estimate of Operating Costs and adjusted, paid, and/or creditedBuyer, as applicablethe landlord under the particular Leases, substantially in the same manner as provided above. (c) Within one hundred twenty (120) days after the end of shall pay or credit to each calendar year, or at such later time as Landlord will be able to determine the actual amounts of Operating Costs, Landlord will furnish to Tenant a written statement (“Landlord’s Statement”) showing the actual Operating Costs for the calendar year, Landlord’s Share of Operating Costs during the Base Year, and Tenant’s Pro Rata Share of Operating Costs during such calendar year in excess of Landlord’s Share (“actual Tenant’s Share of Operating Costs Increases). If Landlord’s Statement shows that the estimated Tenant’s Share of Operating Costs Increases exceeded the actual Tenant’s Share for such calendar year, then Landlord will credit Tenant in applicable tenant the amount of such excess against subsequent payments overpayment. In the event of Base Rent and an underpayment of Additional Rent. If Landlord’s Statement will show that Rents by the estimated Tenant’s Share of Operating Costs increases were less than actual Tenant’s Share of Operating Costs Increases for such periodtenants to Seller, Tenant will Buyer shall pay to Seller the amount of such deficiency underpayment within thirty fifteen (30) days after the delivery to Tenant of such Landlord’s Statement. Landlord’s failure to render a Landlord’s Statement with respect to any period will not eliminate or reduce Tenant’s obligation to pay actual Tenant’s Share of Operating Costs Increases for such period and will not prejudice Landlord’s right to render a Landlord’s Statement with respect to any subsequent period. The obligations of Tenant under the provisions of this paragraph with respect to any increase in Additional Rent will survive the expiration or any sooner termination of the this Lease. If a change in Real Estate Taxes is obtained through a tax appeal by Landlord or otherwise, which affects the result of Landlord’s prior year’s calculation of Tenant’s Pro Rata Share of Operating Expense Increases, then Landlord shall promptly issue a credit or a charge to Tenant, as the case may be, reflecting such Real Estate Taxes adjustment. (d) In respect of any Lease Year or partial Lease Year (including the Base Year) in which the Building is not occupied to the extent of ninety-five percent (95%) of the Rentable Area thereof, the Operating Costs in respect of such period will for the purposes of this Section, be increased to be equal to the amount which would have been incurred had the Building been occupied to the extent of ninety-five percent (95%) of the Rentable Area thereof. (e) Tenant will have the right to inspect Landlord’s accounting records relative to Operating Costs of the Building at Landlord’s accounting office in Madison, Wisconsin during normal business hours at any time within sixty (6015) days following Buyer's receipt of Landlord’s Statement for the Base Year and within one (1) year with respect to any other calendar year. Unless Tenant takes written exception to any item within such time periods, such Landlord’s Statement will be considered as final and accepted by Tenant. If Tenant makes a timely written exception to Landlord (a “Notice Dispute”) and if Landlord and Tenant do not agree on the proper amount for actual Tenant’s Share of Operating Costs Increases within thirty (30) days of such Notice of Dispute, the matter shall be submitted to an independent certified public accountant selected by Landlord, with reasonable approval by Tenant, whose determination shall be final. If Landlord shall have overstated Tenant’s Share of Operating Costs by more than five (5) percent, Landlord shall pay all costs of such examination. If Landlord shall not have overstated Tenant’s Share of Operating Expenses by more than five percent (5%), Tenant shall pay all costs of such examination. (f) In the event that an increase in Real Estate Taxes is caused by Tenant’s improvements made to the Premises (other than the Landlord’s Work as defined in Exhibit B), Tenant will pay when due all the increase attributable to such improvements. If the improvements, the taxes for which are to be paid separately by Tenant, are not separately assessed, Landlord will equitably determine Tenant’s portion of that tax amounts from the respective valuations assigned in the assessor’s worksheets or such other information (which may include the cost of construction) as may be reasonably availabletenants.

Appears in 1 contract

Samples: Purchase and Sale Agreement (Weingarten Realty Investors /Tx/)

Additional Rents. In addition If any tenants are required to Base Rentpay percentage rent, Tenant will pay as “escalation charges for real estate taxes, parking charges, operating expenses and maintenance escalation charges, cost-of- living increases or other charges of a similar nature ("Additional Rent” Rents") and any Additional Rents are collected by the sums or Purchaser from a tenant after the Closing Date, then such Additional Rents shall be applied to amounts set forth herein or as become due and payable elsewhere by such tenant in this Lease. the manner specified by such tenant, provided, that, if the tenant does not so specify, such Additional Rents shall be applied to amounts due and payable by such tenant during the following periods in the following order of priority: (ai) Landlord agrees to expend as its share of Operating Costs during any calendar year an amount equal first, to the actual Operating Costs of month in which the Building incurred during the Base Year Closing occurred, (“Landlord’s Share”). Prior ii) second, to the commencement of each calendar year or as soon thereafter as possible, Landlord will provide a written estimate of months following the Operating Costs expected to be incurred during month in which the calendar year in excess of Landlord’s Share for the same period and showing Tenant’s Pro Rata Share of such amount (“estimated Tenant’s Share of Operating Costs Increases”). Commencing on the first anniversary of the Commencement Date Tenant will pay to Landlord, during the remaining Term of this Lease, the estimated Tenant’s Share of Operating Costs Increases, in equal monthly installments payable in advance on the first day of each calendar month, without any offset or deduction whatsoever or any prior demand unless otherwise provided in this Lease. (b) If Landlord will not have furnished estimated Operating Costs at the times contemplated herein, then until such estimated Operating Costs are provided, Tenant will continue to pay an amount equal to the monthly sum payable under this Section in respect of the last month of the preceding calendar year. In such event, promptly after estimated Operating Costs are furnished to Tenant, or together therewith, Landlord will give notice stating whether the aggregate amount of the installments of estimated Tenant’s Share of Operating Costs Increases previously made for such calendar year is more or less than the aggregate amount of the installments of estimated Tenant’s Share of Operating Costs Increases to be made for the then-current calendar year in accordance with such estimated Operating CostsClosing occurred, and (iiii) if third, to the months preceding the month in which the Closing occurred. If Additional Rents or any portion thereof received by the Purchaser after the Closing are due and payable to the Seller by reason of this allocation, the appropriate sum, less a proportionate share of any reasonable attorneys' fees and costs and expenses expended in connection with the collection thereof, (to the extent not collected from or reimbursed by tenants) shall be promptly paid to the Seller. Collection After the Closing. After the Closing, the Seller shall continue to have the right, in its own name, to demand payment of and to collect Rent and Additional Rent arrearages owed to the Seller by any tenant, which right shall include, without limitation, the right to continue or commence legal actions or proceedings against any tenant (but which right shall specifically exclude any right to terminate any Lease). The Purchaser agrees to cooperate with the Seller in connection with all efforts by the Seller to collect such Rents and Additional Rents and to take all steps, whether before or after the Closing Date, as may be reasonably necessary to carry out the intention of the foregoing, including, without limitation, the delivery to the Seller, upon demand, of any relevant books and records (including any Rent or Additional Rent statements, receipted bills and copies of tenant checks used in payment of such Rent or Additional Rent), the execution of any and all consents or other documents, and the undertaking of any act reasonably necessary for the collection of such Rents and Additional Rents by the Seller, provided that the cooperation required pursuant to this sentence shall not require the Purchaser to be a party to any legal action against any tenant. If for any fiscal period which includes the Adjustment Date tenants are paying Additional Rent based upon estimates prepared by the Seller, such Additional Rents shall be reapportioned when the actual expenses for the fiscal period are known. Water. If there is a deficiencywater meter on the Property, within the Seller shall furnish a reading to a date not more than thirty (30) days after receipt prior to the Closing Date, and the unfixed water charges and sewer rent, if any, based thereon for the intervening time shall be apportioned on the basis of such notice Tenant will pay the amount of such deficiency, or (ii) if there has been an overpayment, Landlord will credit Tenant in the amount thereof toward subsequent payments of Base Rent or Additional Rent (or, upon termination of the Lease, Landlord will reimburse Tenant such overpayment in cash and within sixty (60) days thereof with Landlord’s obligations under this Section surviving expiration or any earlier termination of this Lease); and (iii) on the first day of the next following month, and monthly thereafter throughout the remainder of such calendar year, Tenant will pay an amount equal to one-twelfth (1/12) of estimated Tenant’s Share of Operating Costs Increases, shown on such estimated Operating Costs. Landlord may at any time or from time to time revise the estimated Operating Costs and, in such case, the estimated Tenant’s Share of Operating Costs Increases for the remainder of the calendar year will be based upon such revised estimate of Operating Costs and adjusted, paid, and/or credited, as applicable, substantially in the same manner as provided abovelast reading. (c) Within one hundred twenty (120) days after the end of each calendar year, or at such later time as Landlord will be able to determine the actual amounts of Operating Costs, Landlord will furnish to Tenant a written statement (“Landlord’s Statement”) showing the actual Operating Costs for the calendar year, Landlord’s Share of Operating Costs during the Base Year, and Tenant’s Pro Rata Share of Operating Costs during such calendar year in excess of Landlord’s Share (“actual Tenant’s Share of Operating Costs Increases). If Landlord’s Statement shows that the estimated Tenant’s Share of Operating Costs Increases exceeded the actual Tenant’s Share for such calendar year, then Landlord will credit Tenant in the amount of such excess against subsequent payments of Base Rent and Additional Rent. If Landlord’s Statement will show that the estimated Tenant’s Share of Operating Costs increases were less than actual Tenant’s Share of Operating Costs Increases for such period, Tenant will pay the amount of such deficiency within thirty (30) days after the delivery to Tenant of such Landlord’s Statement. Landlord’s failure to render a Landlord’s Statement with respect to any period will not eliminate or reduce Tenant’s obligation to pay actual Tenant’s Share of Operating Costs Increases for such period and will not prejudice Landlord’s right to render a Landlord’s Statement with respect to any subsequent period. The obligations of Tenant under the provisions of this paragraph with respect to any increase in Additional Rent will survive the expiration or any sooner termination of the this Lease. If a change in Real Estate Taxes is obtained through a tax appeal by Landlord or otherwise, which affects the result of Landlord’s prior year’s calculation of Tenant’s Pro Rata Share of Operating Expense Increases, then Landlord shall promptly issue a credit or a charge to Tenant, as the case may be, reflecting such Real Estate Taxes adjustment. (d) In respect of any Lease Year or partial Lease Year (including the Base Year) in which the Building is not occupied to the extent of ninety-five percent (95%) of the Rentable Area thereof, the Operating Costs in respect of such period will for the purposes of this Section, be increased to be equal to the amount which would have been incurred had the Building been occupied to the extent of ninety-five percent (95%) of the Rentable Area thereof. (e) Tenant will have the right to inspect Landlord’s accounting records relative to Operating Costs of the Building at Landlord’s accounting office in Madison, Wisconsin during normal business hours at any time within sixty (60) days following receipt of Landlord’s Statement for the Base Year and within one (1) year with respect to any other calendar year. Unless Tenant takes written exception to any item within such time periods, such Landlord’s Statement will be considered as final and accepted by Tenant. If Tenant makes a timely written exception to Landlord (a “Notice Dispute”) and if Landlord and Tenant do not agree on the proper amount for actual Tenant’s Share of Operating Costs Increases within thirty (30) days of such Notice of Dispute, the matter shall be submitted to an independent certified public accountant selected by Landlord, with reasonable approval by Tenant, whose determination shall be final. If Landlord shall have overstated Tenant’s Share of Operating Costs by more than five (5) percent, Landlord shall pay all costs of such examination. If Landlord shall not have overstated Tenant’s Share of Operating Expenses by more than five percent (5%), Tenant shall pay all costs of such examination. (f) In the event that an increase in Real Estate Taxes is caused by Tenant’s improvements made to the Premises (other than the Landlord’s Work as defined in Exhibit B), Tenant will pay when due all the increase attributable to such improvements. If the improvements, the taxes for which are to be paid separately by Tenant, are not separately assessed, Landlord will equitably determine Tenant’s portion of that tax from the respective valuations assigned in the assessor’s worksheets or such other information (which may include the cost of construction) as may be reasonably available.

Appears in 1 contract

Samples: Purchase and Sale Agreement (Witter Dean Realty Income Partnership Ii Lp)

Additional Rents. In addition If any tenants are required to Base Rentpay percentage rent, Tenant will pay as “escalation charges for real estate taxes, parking charges, operating expenses and maintenance escalation charges, cost-of-living increases or other charges of a similar nature ("Additional Rent” Rents") and any Additional Rents are collected by the sums or amounts set forth herein or as become due Purchaser from a tenant after the Closing Date, then the Purchaser shall apply such Additional Rents in the manner specified by such tenant and payable elsewhere if tenant does not specify in this Lease. the following order of priority: (ai) Landlord agrees first to expend as its share of Operating Costs during any calendar year an amount equal to the actual Operating Costs of the Building incurred during the Base Year (“Landlord’s Share”). Prior to the commencement of each calendar year or as soon thereafter as possible, Landlord will provide a written estimate of the Operating Costs expected to be incurred during the calendar year in excess of Landlord’s Share Additional Rents owed by such tenant for the same period and showing Tenant’s Pro Rata Share of month in which the Closing occurred, (ii) second to any Additional Rents owed by such amount (“estimated Tenant’s Share of Operating Costs Increases”). Commencing on the first anniversary of the Commencement Date Tenant will pay to Landlord, during the remaining Term of this Lease, the estimated Tenant’s Share of Operating Costs Increases, in equal monthly installments payable in advance on the first day of each calendar month, without any offset or deduction whatsoever or any prior demand unless otherwise provided in this Lease. (b) If Landlord will not have furnished estimated Operating Costs at the times contemplated herein, then until such estimated Operating Costs are provided, Tenant will continue to pay an amount equal to the monthly sum payable under this Section in respect of the last month of the preceding calendar year. In such event, promptly after estimated Operating Costs are furnished to Tenant, or together therewith, Landlord will give notice stating whether the aggregate amount of the installments of estimated Tenant’s Share of Operating Costs Increases previously made for such calendar year is more or less than the aggregate amount of the installments of estimated Tenant’s Share of Operating Costs Increases to be made tenant for the then-current calendar year month following the month in accordance with such estimated Operating Costswhich the Closing occurred, and (iiii) if there is a deficiencythird, within thirty to any Additional Rents owed by such tenant for the month preceding the month in which the Closing occurred. Collection After the Closing. After the Closing, the Seller shall continue to have the right, in its own name, to demand payment of and to collect Rent and Additional Rent arrearages owed to the Seller by any tenant, which right shall include, without limitation, the right to continue or commence legal actions or proceedings against any tenant. The Purchaser agrees to cooperate (30at no expense to Purchaser) days with the Seller in connection with all efforts by the Seller to collect such Rents and Additional Rents and to take all steps, whether before or after receipt the Closing Date, as may be reasonably necessary to carry out the intention of such notice Tenant will pay the amount foregoing, including, without limitation, the delivery to the Seller, upon demand, of such deficiency, or any relevant books and records (ii) if there has been an overpayment, Landlord will credit Tenant in the amount thereof toward subsequent payments of Base including any Rent or Additional Rent (orstatements, upon termination receipted bills and copies of tenant checks used in payment of such Rent or Additional Rent), the Lease, Landlord will reimburse Tenant such overpayment in cash execution of any and within sixty (60) days thereof with Landlord’s obligations under this Section surviving expiration all consents or any earlier termination of this Lease); and (iii) on the first day of the next following monthother documents, and monthly thereafter throughout the remainder undertaking of any act reasonably necessary for the collection of such calendar yearRents and Additional Rents by the Seller. [If for any fiscal period which includes the Adjustment Date tenants are paying Additional Rent based upon estimates prepared by the Seller, Tenant will pay an amount equal to one-twelfth (1/12) of estimated Tenant’s Share of Operating Costs Increases, shown on such estimated Operating Costs. Landlord may at any time or from time to time revise Additional Rents shall be reapportioned when the estimated Operating Costs and, in such case, the estimated Tenant’s Share of Operating Costs Increases actual expenses for the remainder of the calendar year will be based upon such revised estimate of Operating Costs and adjusted, paid, and/or credited, as applicable, substantially in the same manner as provided abovefiscal period are known. (c) Within one hundred twenty (120) days after the end of each calendar year, or at such later time as Landlord will be able to determine the actual amounts of Operating Costs, Landlord will furnish to Tenant a written statement (“Landlord’s Statement”) showing the actual Operating Costs for the calendar year, Landlord’s Share of Operating Costs during the Base Year, and Tenant’s Pro Rata Share of Operating Costs during such calendar year in excess of Landlord’s Share (“actual Tenant’s Share of Operating Costs Increases). If Landlord’s Statement shows that the estimated Tenant’s Share of Operating Costs Increases exceeded the actual Tenant’s Share for such calendar year, then Landlord will credit Tenant in the amount of such excess against subsequent payments of Base Rent and Additional Rent. If Landlord’s Statement will show that the estimated Tenant’s Share of Operating Costs increases were less than actual Tenant’s Share of Operating Costs Increases for such period, Tenant will pay the amount of such deficiency within thirty (30) days after the delivery to Tenant of such Landlord’s Statement. Landlord’s failure to render a Landlord’s Statement with respect to any period will not eliminate or reduce Tenant’s obligation to pay actual Tenant’s Share of Operating Costs Increases for such period and will not prejudice Landlord’s right to render a Landlord’s Statement with respect to any subsequent period. The obligations of Tenant under the provisions of this paragraph with respect to any increase in Additional Rent will survive the expiration or any sooner termination of the this Lease. If a change in Real Estate Taxes is obtained through a tax appeal by Landlord or otherwise, which affects the result of Landlord’s prior year’s calculation of Tenant’s Pro Rata Share of Operating Expense Increases, then Landlord shall promptly issue a credit or a charge to Tenant, as the case may be, reflecting such Real Estate Taxes adjustment. (d) In respect of any Lease Year or partial Lease Year (including the Base Year) in which the Building is not occupied to the extent of ninety-five percent (95%) of the Rentable Area thereof, the Operating Costs in respect of such period will for the purposes of this Section, be increased to be equal to the amount which would have been incurred had the Building been occupied to the extent of ninety-five percent (95%) of the Rentable Area thereof. (e) Tenant will have the right to inspect Landlord’s accounting records relative to Operating Costs of the Building at Landlord’s accounting office in Madison, Wisconsin during normal business hours at any time within sixty (60) days following receipt of Landlord’s Statement for the Base Year and within one (1) year with respect to any other calendar year. Unless Tenant takes written exception to any item within such time periods, such Landlord’s Statement will be considered as final and accepted by Tenant. If Tenant makes a timely written exception to Landlord (a “Notice Dispute”) and if Landlord and Tenant do not agree on the proper amount for actual Tenant’s Share of Operating Costs Increases within thirty (30) days of such Notice of Dispute, the matter shall be submitted to an independent certified public accountant selected by Landlord, with reasonable approval by Tenant, whose determination shall be final. If Landlord shall have overstated Tenant’s Share of Operating Costs by more than five (5) percent, Landlord shall pay all costs of such examination. If Landlord shall not have overstated Tenant’s Share of Operating Expenses by more than five percent (5%), Tenant shall pay all costs of such examination. (f) In the event that an increase in Real Estate Taxes is caused by Tenant’s improvements made to the Premises (other than the Landlord’s Work as defined in Exhibit B), Tenant will pay when due all the increase attributable to such improvements. If the improvements, the taxes for which are to be paid separately by Tenant, are not separately assessed, Landlord will equitably determine Tenant’s portion of that tax from the respective valuations assigned in the assessor’s worksheets or such other information (which may include the cost of construction) as may be reasonably available.]

Appears in 1 contract

Samples: Purchase and Sale Agreement (Dean Witter Realty Income Partnership Iii Lp)

Additional Rents. In addition to Base Rent, Tenant will pay as “Additional Rent” the sums or amounts set forth herein or as become due and payable elsewhere in this Lease. (a) Landlord agrees to expend as its share of Operating Costs during any calendar year an amount equal to the actual Operating Costs of the Building incurred during the Base Year (“Landlord’s Share”). Prior to the commencement of each calendar year or as soon thereafter as possible, Landlord will provide a written estimate of the Operating Costs expected to be incurred during the calendar year in excess of Landlord’s Share for the same period and showing Tenant’s Pro Rata Share of such amount (“estimated Tenant’s Share of Operating Costs Increases”). Commencing on the first anniversary of the Commencement Date Tenant will pay to Landlord, during the remaining Term of this Lease, the estimated Tenant’s Share of Operating Costs Increases, in equal monthly installments payable in advance on the first day of each calendar month, without any offset or deduction whatsoever or any prior demand unless otherwise provided in this Lease. (b) If Landlord will not have furnished estimated Operating Costs at the times contemplated herein, then until such estimated Operating Costs are provided, Tenant will continue to pay an amount equal to the monthly sum payable under this Section in respect of the last month of the preceding calendar year. In such event, promptly after estimated Operating Costs are furnished to Tenant, or together therewith, Landlord will give notice stating whether the aggregate amount of the installments of estimated Tenant’s Share of Operating Costs Increases previously made for such calendar year is more or less than the aggregate amount of the installments of estimated Tenant’s Share of Operating Costs Increases to be made for the then-current calendar year in accordance with such estimated Operating Costs, and (i) If any Tenants are required to pay percentage rents, escalation charges for increases in real estate taxes or operating expenses, labor cost increases, cost-of-living increases, charges for electricity, water, cleaning or overtime services, “sundry charges,” or other charges of a similar nature (collectively, “Additional Rents”), the same shall be adjusted on an if, as and when collected basis. Subject to subsection (ii) below, if there is a deficiencyany Additional Rents are collected by the Buyer or the Companies after the Closing Date which are attributable in whole or in part to any period prior to the Closing, then the Buyer shall promptly pay to the Sellers their proportionate share thereof. With respect to any estimated Additional Rents paid or payable by Tenants for any period prior to the Closing which, pursuant to the applicable Lease, are to be recalculated after the Closing based upon actual expenses and other relevant factors, (1) the Sellers shall, with respect to such adjustments which are in favor of any such Tenant, pay to the Buyer the amount of such adjustment (after which the Buyer shall pay directly to the Tenant in question), within thirty fifteen (3015) days after written demand and presentation to the Sellers of documentation in support of such adjustments, and (2) the Buyer shall, with respect to such adjustments which are in favor of landlord, pay to the Sellers the amount of such adjustments which the Tenant pays to the Buyer or the Companies, within fifteen (15) days after receipt of such notice Tenant will pay thereof by the amount of such deficiencyBuyer. The Buyer shall cause the Companies, or (ii) if there has been an overpayment, Landlord will credit Tenant in the amount thereof toward subsequent payments of Base Rent or Additional Rent (or, upon termination accordance with prudent first class management and operation of the LeaseReal Property, Landlord will reimburse Tenant for a period of one (1) year following the Closing Date, xxxx Tenants such overpayment in cash and within sixty (60) days thereof with Landlord’s obligations under this Section surviving expiration or any earlier termination of this Lease); and (iii) on Additional Rents attributable to an accounting period that shall have expired prior to the first day of the next following month, and monthly thereafter throughout the remainder of such calendar year, Tenant will pay an amount equal to one-twelfth (1/12) of estimated Tenant’s Share of Operating Costs Increases, shown on such estimated Operating Costs. Landlord may at any time or from time to time revise the estimated Operating Costs and, in such case, the estimated Tenant’s Share of Operating Costs Increases for the remainder of the calendar year will be based upon such revised estimate of Operating Costs and adjusted, paid, and/or credited, as applicable, substantially Closing in the same manner as provided above. that the Buyer causes the Companies to xxxx Tenants for Additional Rents in respect of an accounting period that shall expire after the Closing (c) Within one hundred twenty (120) days after including without limitation, the annual “true up” at the end of each calendar year). Notwithstanding anything to the contrary contained herein, with respect to Tenants who are not, at the time in question, in occupancy of any portion of the Real Property, the Sellers shall have the right to pursue such Tenants to collect delinquencies for periods prior to the Closing (including, without limitation, by the prosecution of an action or proceeding) and (B) with respect to Tenants who are, at the time in question, in occupancy of a portion of the Real Property, the Buyer shall use commercially reasonable efforts to collect any such later time as Landlord will be able delinquent Additional Rents allocable to determine the actual amounts period of Operating Costs, Landlord will the Sellers’ ownership of the Companies. The Sellers shall furnish to Tenant a written statement the Buyer accurate information (“Landlord’s Statement”based on the Sellers’ and the Companies’ records) showing relating to the actual Operating Costs period prior to the Closing that is reasonably necessary for the calendar yearbilling of delinquent Additional Rents for Tenants, Landlordwho are, at the time in question, in occupancy of a portion of the Real Property. Until the date which is twelve (12) months after the Closing Date, the Buyer shall cause the Companies to xxxx Tenants for Additional Rents for accounting periods prior to the Closing in accordance with and on the basis of such information furnished by the Sellers. Subsequent to the Closing, the Sellers shall have the right no more than once each quarter during such period, on reasonable advance notice to the Buyer, during ordinary business hours, to review the Companies’ books and records relating to delinquent Additional Rents for periods prior to the Closing, to the extent reasonably necessary to ascertain the status of the Buyer’s Share and the Companies’ billing and collection of Operating Costs such delinquent Additional Rents. Buyer will not take any action that could reasonably be expected to result in the compromise of any claim against any Tenant with respect to Fixed Rents due under such Tenant’s Lease for the period prior to the Closing. (ii) (A) Any Additional Rents collected by the Buyer or the Companies after the Closing from Tenants who owe Additional Rents for periods prior to the Closing (to the extent not applied against Fixed Rents due and payable by such Tenant in accordance with Section 2.4(e) above) shall be applied to Additional Rents due and payable in the following order of priority: (B) first, to the payment of Additional Rents for the month in which the Closing Date occurs, with such amounts being prorated between the Buyer and Seller based upon the number of days each owned the Companies during the Base Yearmonth in which the Closing occurs; (C) second, in payment of Additional Rents for the month immediately preceding the month in which the Closing occurs; (D) third, in payment of Additional Rents for any months which commenced after the Closing occurs, but only to the extent payments of Additional Rents for such month are then currently due; and Tenant’s Pro Rata Share (E) fourth, in payment of Operating Costs during Additional Rents for months preceding the month immediately prior to the month in which the Closing occurs, provided, if a Tenant on its own designates that a payment by such Tenant shall be applied to a specific outstanding Additional Rent obligation of such Tenant (without a request from the Companies or Buyer to make such designation), then such payment shall be applied to such obligation. Notwithstanding the foregoing, any funds collected by the Buyer or the Companies for Additional Rents as the result of an end of calendar year “true up” that are in excess favor of Landlord’s Share (“actual Tenant’s Share landlord shall be divided between the Sellers and the Buyer based upon the number of Operating Costs Increases). If Landlord’s Statement shows that months each owned the estimated Tenant’s Share of Operating Costs Increases exceeded the actual Tenant’s Share Companies for such calendar year, then Landlord will credit Tenant in the amount of such excess against subsequent payments of Base Rent and Additional Rent. If Landlord’s Statement will show that the estimated Tenant’s Share of Operating Costs increases were less than actual Tenant’s Share of Operating Costs Increases for such period, Tenant will pay the amount of such deficiency within thirty (30) days after the delivery to Tenant of such Landlord’s Statement. Landlord’s failure to render a Landlord’s Statement with respect to any period will not eliminate or reduce Tenant’s obligation to pay actual Tenant’s Share of Operating Costs Increases for such period and will not prejudice Landlord’s right to render a Landlord’s Statement with respect to any subsequent period. The obligations of Tenant under the provisions of this paragraph with respect to any increase in Additional Rent will survive the expiration or any sooner termination of the this Lease. If a change in Real Estate Taxes is obtained through a tax appeal by Landlord or otherwise, which affects the result of Landlord’s prior year’s calculation of Tenant’s Pro Rata Share of Operating Expense Increases, then Landlord shall promptly issue a credit or a charge to Tenant, as the case may be, reflecting such Real Estate Taxes adjustment. (d) In respect of any Lease Year or partial Lease Year (including the Base Year) in which the Building is not occupied to the extent of ninety-five percent (95%) of the Rentable Area thereof, the Operating Costs in respect of such period will for the purposes of this Section, be increased to be equal to the amount which would have been incurred had the Building been occupied to the extent of ninety-five percent (95%) of the Rentable Area thereof. (e) Tenant will have the right to inspect Landlord’s accounting records relative to Operating Costs of the Building at Landlord’s accounting office in Madison, Wisconsin during normal business hours at any time within sixty (60) days following receipt of Landlord’s Statement for the Base Year and within one (1) year with respect to any other calendar year. Unless Tenant takes written exception to any item within such time periods, such Landlord’s Statement will be considered as final and accepted by Tenant. If Tenant makes a timely written exception to Landlord (a “Notice Dispute”) and if Landlord and Tenant do not agree on the proper amount for actual Tenant’s Share of Operating Costs Increases within thirty (30) days of such Notice of Dispute, the matter shall be submitted to an independent certified public accountant selected by Landlord, with reasonable approval by Tenant, whose determination shall be final. If Landlord shall have overstated Tenant’s Share of Operating Costs by more than five (5) percent, Landlord shall pay all costs of such examination. If Landlord shall not have overstated Tenant’s Share of Operating Expenses by more than five percent (5%), Tenant shall pay all costs of such examination. (f) In the event that an increase in Real Estate Taxes is caused by Tenant’s improvements made to the Premises (other than the Landlord’s Work as defined in Exhibit B), Tenant will pay when due all the increase attributable to such improvements. If the improvements, the taxes for which are to be paid separately by Tenant, are not separately assessed, Landlord will equitably determine Tenant’s portion of that tax from the respective valuations assigned in the assessor’s worksheets or such other information (which may include the cost of construction) as may be reasonably available.

Appears in 1 contract

Samples: Transaction Agreement (CyrusOne Inc.)

Additional Rents. In addition to Base RentAny percentage rent, Tenant will pay escalation charges for real estate taxes, parking charges, operating and maintenance expenses, escalation rents or charges, electricity charges, cost of living increases or any other charges of a similar nature other than fixed or base rent under the Leases (collectively, the "Additional Rents") shall be prorated as “Additional Rent” of the sums Closing Date between Buyer and Transferors on or amounts set forth herein or as become due and payable elsewhere in this Lease. before the date which is ninety (a90) Landlord agrees to expend as its share days following the end of Operating Costs during any the calendar year an amount equal to in which the closing occurs based on the actual Operating Costs number of days of the Building incurred during year and month which shall have elapsed as of the Base Year (“Landlord’s Share”)Closing Date. Prior to the commencement end of each calendar year or as soon thereafter as possible, Landlord will provide a written estimate of the Operating Costs expected to be incurred during the calendar year in excess of Landlord’s Share for which the same period closing occurs, Transferors shall provide Buyer with information regarding Additional Rents which were received by Transferors prior to closing and showing Tenant’s Pro Rata Share of such amount (“estimated Tenant’s Share of Operating Costs Increases”). Commencing on the first anniversary of the Commencement Date Tenant will pay to Landlord, during the remaining Term of this Lease, the estimated Tenant’s Share of Operating Costs Increases, in equal monthly installments payable in advance on the first day of each calendar month, without any offset or deduction whatsoever or any prior demand unless otherwise provided in this Lease. (b) If Landlord will not have furnished estimated Operating Costs at the times contemplated herein, then until such estimated Operating Costs are provided, Tenant will continue to pay an amount equal to the monthly sum payable under this Section in respect of the last month of the preceding calendar year. In such event, promptly after estimated Operating Costs are furnished to Tenant, or together therewith, Landlord will give notice stating whether the aggregate amount of the installments of estimated Tenant’s Share of Operating Costs Increases previously made for such calendar year is more or less than the aggregate amount of the installments of estimated Tenant’s Share of Operating Costs Increases to be made for the then-current calendar year in accordance with such estimated Operating Costs, and (i) if there is a deficiency, within thirty (30) days after receipt of such notice Tenant will pay the amount of such deficiency, reimbursable expenses paid by Transferors prior to closing. On or (ii) if there has been an overpayment, Landlord will credit Tenant in before the amount thereof toward subsequent payments of Base Rent or Additional Rent (or, upon termination of the Lease, Landlord will reimburse Tenant such overpayment in cash and within sixty (60) days thereof with Landlord’s obligations under this Section surviving expiration or any earlier termination of this Lease); and (iii) on the first day of the next following month, and monthly thereafter throughout the remainder of such calendar year, Tenant will pay an amount equal to one-twelfth (1/12) of estimated Tenant’s Share of Operating Costs Increases, shown on such estimated Operating Costs. Landlord may at any time or from time to time revise the estimated Operating Costs and, in such case, the estimated Tenant’s Share of Operating Costs Increases for the remainder of the calendar year will be based upon such revised estimate of Operating Costs and adjusted, paid, and/or credited, as applicable, substantially in the same manner as provided above. (c) Within one hundred twenty (120) days after the end of each calendar year, or at such later time as Landlord will be able to determine the actual amounts of Operating Costs, Landlord will furnish to Tenant a written statement (“Landlord’s Statement”) showing the actual Operating Costs for the calendar year, Landlord’s Share of Operating Costs during the Base Year, and Tenant’s Pro Rata Share of Operating Costs during such calendar year in excess of Landlord’s Share (“actual Tenant’s Share of Operating Costs Increases). If Landlord’s Statement shows that the estimated Tenant’s Share of Operating Costs Increases exceeded the actual Tenant’s Share for such calendar year, then Landlord will credit Tenant in the amount of such excess against subsequent payments of Base Rent and Additional Rent. If Landlord’s Statement will show that the estimated Tenant’s Share of Operating Costs increases were less than actual Tenant’s Share of Operating Costs Increases for such period, Tenant will pay the amount of such deficiency within thirty (30) days after the delivery to Tenant of such Landlord’s Statement. Landlord’s failure to render a Landlord’s Statement with respect to any period will not eliminate or reduce Tenant’s obligation to pay actual Tenant’s Share of Operating Costs Increases for such period and will not prejudice Landlord’s right to render a Landlord’s Statement with respect to any subsequent period. The obligations of Tenant under the provisions of this paragraph with respect to any increase in Additional Rent will survive the expiration or any sooner termination of the this Lease. If a change in Real Estate Taxes date which is obtained through a tax appeal by Landlord or otherwise, which affects the result of Landlord’s prior year’s calculation of Tenant’s Pro Rata Share of Operating Expense Increases, then Landlord shall promptly issue a credit or a charge to Tenant, as the case may be, reflecting such Real Estate Taxes adjustment. (d) In respect of any Lease Year or partial Lease Year (including the Base Year) in which the Building is not occupied to the extent of ninety-five percent (95%) of the Rentable Area thereof, the Operating Costs in respect of such period will for the purposes of this Section, be increased to be equal to the amount which would have been incurred had the Building been occupied to the extent of ninety-five percent (95%) of the Rentable Area thereof. (e) Tenant will have the right to inspect Landlord’s accounting records relative to Operating Costs of the Building at Landlord’s accounting office in Madison, Wisconsin during normal business hours at any time within sixty (60) days following receipt the end of Landlord’s Statement for the Base Year calendar year in which the closing occurs, Buyer shall deliver to Transferors a reconciliation of all expenses reimbursable by tenants under the Leases, and within one the amount of Additional Rents received by Transferors and Buyer relating thereto (1) year with respect the "Reconciliation"). Upon reasonable notice and during normal business hours, each party shall make available to any the other calendar yearall information reasonably required to confirm the Reconciliation. Unless Tenant takes written exception to any item within such time periods, such Landlord’s Statement will be considered as final and accepted by Tenant. If Tenant makes a timely written exception to Landlord (a “Notice Dispute”) and if Landlord and Tenant do not agree on the proper amount for actual Tenant’s Share of Operating Costs Increases within thirty (30) days of such Notice of Dispute, the matter shall be submitted to an independent certified public accountant selected by Landlord, with reasonable approval by Tenant, whose determination shall be final. If Landlord shall have overstated Tenant’s Share of Operating Costs by more than five (5) percent, Landlord shall pay all costs of such examination. If Landlord shall not have overstated Tenant’s Share of Operating Expenses by more than five percent (5%), Tenant shall pay all costs of such examination. (f) In the event that of any overpayment of Additional Rents by the tenants to Transferors, Transferors shall promptly, but in no event later than fifteen (15) days after receipt of the Reconciliation, pay to Buyer the amount of such overpayment and Buyer, as the landlord under the particular Leases, shall pay or credit to each applicable tenant the amount of such overpayment. In the event of an increase in Real Estate Taxes is caused underpayment of Additional Rents by Tenant’s improvements made the tenants to Transferors, Buyer shall pay to Transferors the Premises amount of such underpayment within fifteen (other than the Landlord’s Work as defined in Exhibit B), Tenant will pay when due all the increase attributable to 15) days following Buyer's receipt of any such improvements. If the improvements, the taxes for which are to be paid separately by Tenant, are not separately assessed, Landlord will equitably determine Tenant’s portion of that tax amounts from the respective valuations assigned in the assessor’s worksheets or such other information (which may include the cost of construction) as may be reasonably availabletenants.

Appears in 1 contract

Samples: Purchase and Sale Agreement (Amb Property Corp)

Additional Rents. In addition to Base Rent, Tenant will pay as “Additional Rent” the sums or amounts set forth herein or as become due and payable elsewhere in this Lease. (a) Landlord agrees If any Tenants are required to expend pay percentage rents, charges for operating expenses, escalation charges for increases in operating expenses, if any, business improvement district assessments, labor cost increases, cost-of-living increases, charges for electricity, water, cleaning or overtime services, work order charges, “sundry charges” or other charges of a similar nature (collectively, “Additional Rents”), the same shall be adjusted on an if, as its and when collected basis. With respect to any estimated Additional Rents paid or payable by Tenants for any period prior to the Closing which, pursuant to the applicable Lease, are to be recalculated after the Closing based upon actual expenses and other relevant factors, (i) Seller agrees, with respect to such adjustments which are in favor of any such Tenant, to pay to Owner Seller’s proportionate share of Operating Costs during any calendar year an the amount equal of such adjustment (after which Owner shall pay directly to the actual Operating Costs Tenant in question), within fifteen (15) days after written demand and presentation to Seller of the Building incurred during the Base Year (“Landlord’s Share”). Prior to the commencement of each calendar year or as soon thereafter as possible, Landlord will provide a written estimate of the Operating Costs expected to be incurred during the calendar year documentation in excess of Landlord’s Share for the same period and showing Tenant’s Pro Rata Share support of such amount (“estimated Tenant’s Share of Operating Costs Increases”). Commencing on the first anniversary of the Commencement Date Tenant will pay to Landlord, during the remaining Term of this Lease, the estimated Tenant’s Share of Operating Costs Increases, in equal monthly installments payable in advance on the first day of each calendar month, without any offset or deduction whatsoever or any prior demand unless otherwise provided in this Lease. (b) If Landlord will not have furnished estimated Operating Costs at the times contemplated herein, then until such estimated Operating Costs are provided, Tenant will continue to pay an amount equal to the monthly sum payable under this Section in respect of the last month of the preceding calendar year. In such event, promptly after estimated Operating Costs are furnished to Tenant, or together therewith, Landlord will give notice stating whether the aggregate amount of the installments of estimated Tenant’s Share of Operating Costs Increases previously made for such calendar year is more or less than the aggregate amount of the installments of estimated Tenant’s Share of Operating Costs Increases to be made for the then-current calendar year in accordance with such estimated Operating Costsadjustments, and (iii) if there is a deficiencySeller and Purchaser agree to cause Owner, with respect to such adjustments which are in favor of landlord, to pay to Seller its proportionate share of the amount of such adjustments which the Tenant pays to Owner, within thirty fifteen (3015) days after receipt of such notice Tenant will pay the amount of such deficiencythereof by Owner. Seller and Purchaser agree to cause Owner to, or (ii) if there has been an overpayment, Landlord will credit Tenant in accordance with Owner’s standard practice in the amount thereof toward subsequent payments of Base Rent or Additional Rent (or, upon termination management and operation of the LeaseReal Property, Landlord will reimburse Tenant xxxx Tenants such overpayment in cash and within sixty (60) days thereof with Landlord’s obligations under this Section surviving expiration or any earlier termination of this Lease); and (iii) on Additional Rents attributable to an accounting period that shall have expired prior to the first day of the next following month, and monthly thereafter throughout the remainder of such calendar year, Tenant will pay an amount equal to one-twelfth (1/12) of estimated Tenant’s Share of Operating Costs Increases, shown on such estimated Operating Costs. Landlord may at any time or from time to time revise the estimated Operating Costs and, in such case, the estimated Tenant’s Share of Operating Costs Increases for the remainder of the calendar year will be based upon such revised estimate of Operating Costs and adjusted, paid, and/or credited, as applicable, substantially Closing in the same manner as provided above. that Owner bills tenants for Additional Rents in respect of an accounting period that shall expire after the Closing (c) Within one hundred twenty (120) days after including without limitation, the annual “true up” at the end of each calendar year). Notwithstanding anything contained herein to the contrary, (A) Seller shall have the right, at its sole cost and expense, to pursue in its own name, or at such later time as Landlord will be able to determine the actual amounts of Operating Costs, Landlord will furnish to Tenant a written statement (“Landlord’s Statement”) showing the actual Operating Costs for the calendar year, Landlord’s Share of Operating Costs during the Base Year, and Tenant’s Pro Rata Share of Operating Costs during such calendar year in excess of Landlord’s Share (“actual Tenant’s Share of Operating Costs Increases). If Landlord’s Statement shows that the estimated Tenant’s Share of Operating Costs Increases exceeded the actual Tenant’s Share for such calendar year, then Landlord will credit Tenant in the amount name of such excess against subsequent payments of Base Rent and Additional Rent. If Landlord’s Statement will show that the estimated Tenant’s Share of Operating Costs increases were less than actual Tenant’s Share of Operating Costs Increases for such periodOwner, Tenant will pay the amount of such deficiency within thirty (30) days after the delivery Closing any tenants to Tenant collect delinquencies for periods prior to the Closing (including, without limitation, by the prosecution of such Landlord’s Statement. Landlord’s failure to render a Landlord’s Statement an action or proceeding, provided that with respect to tenants who are, at the time in question, in occupancy of any period will not eliminate portion of the Property, no such action or reduce Tenantproceeding shall require the eviction of any such tenant without the Purchaser’s obligation to pay actual Tenant’s Share consent, and in which event all sums collected by Seller as a result of Operating Costs Increases for such period litigation (after payment of all costs and will not prejudice Landlord’s right to render a Landlord’s Statement expenses) shall be applied in full satisfaction of the subject delinquencies), and (B) with respect to Tenants who are, at the time in question, in occupancy of a portion of the Property, Seller and Purchaser agree to cause Owner to use commercially reasonable efforts to collect any subsequent periodsuch delinquent Additional Rent allocable to the period of Seller’s 100% ownership of Holdco provided that in no event shall such efforts require the eviction of any such tenant unless Purchaser shall agree thereto in writing, and in which event all sums collected by Seller as a result of such litigation (after payment of all costs and expenses) shall be applied in full satisfaction of the subject delinquencies). The obligations No action which results in the compromising of any claim against any Tenant under the provisions of this paragraph with respect to any increase in Additional Rent will survive base or fixed rents due under such Tenant’s Lease for the expiration or any sooner termination of period prior to the this Lease. If a change in Real Estate Taxes is obtained through a tax appeal by Landlord or otherwiseClosing shall be made without Seller’s prior written approval, which affects approval shall not be unreasonably withheld, delayed or conditioned. (b) With respect to any Tenant which has paid all Additional Rents due and payable to the Closing Date, if, prior to the Closing, Owner or Owner’s managing agent shall have actually received and collected any installments or other amounts of Additional Rents from such Tenant attributable to Additional Rents for periods from and after the Closing Date, then Seller shall cause Owner to retain such amounts until Closing. (c) Any Additional Rents collected by Owner after the Closing from Tenants who owe Additional Rents for periods prior to the Closing (to the extent not applied against Fixed Rents due and payable by such Tenant in accordance with Section 4.2.5 above) shall be applied to Additional Rents then due and payable in the following order of priority: (i) first, in payment of Additional Rents for the accounting period in which the Closing Date occurs, with such amounts being prorated between Seller, as the sole owner of Holdco for the period prior to Closing and Seller and Purchaser in accordance with their respective interests under the JV Agreement for the period after Closing, based upon the number of days during the accounting period in which the Closing occurs, (ii) second, in payment of Additional Rents for any accounting periods which commenced after the Closing occurs, but only to the extent payments of Additional Rents for such accounting period are then currently due; and (iii) third, in payment of Additional Rents for accounting periods preceding the accounting period in which the Closing occurs. Notwithstanding the foregoing, (I) if any Additional Rents are collected by Owner after the Closing Date which are expressly attributable in whole or in part to any period prior to the Closing, then Seller and Purchaser shall cause Owner to promptly pay to Seller its proportionate share thereof, (II) if any Additional Rents are collected by Owner after the Closing Date which are expressly attributable in whole or in part to any period prior to the Closing, then Owner may retain its proportionate share thereof, and (III) any funds collected by Owner for Additional Rents as the result of Landlord’s prior year’s calculation an end of Tenant’s Pro Rata Share billing period “true up” that are in favor of Operating Expense Increaseslandlord, then Landlord shall promptly issue a credit or a charge to Tenantbe divided between Seller, as the case may be, reflecting such Real Estate Taxes adjustmentsole owner of Holdco for the period prior to Closing and Seller and Purchaser in accordance with their respective interests under the JV Agreement for the period after Closing. (d) In respect of any Lease Year Any rents or partial Lease Year (including the Base Year) in which the Building is not occupied other amounts paid by Tenants pursuant to the extent of ninety-five percent (95%) of the Rentable Area thereofLeases actually received and collected by Owner prior to Closing, the Operating Costs in respect of such period will for the purposes of this Sectionbut that correspond to real estate taxes, be increased to be equal to the amount which would have been incurred had the Building been occupied to the extent of ninety-five percent (95%) of the Rentable Area thereof. (e) Tenant will have the right to inspect Landlord’s accounting records relative to Operating Costs of the Building at Landlord’s accounting office in Madison, Wisconsin during normal business hours at any time within sixty (60) days following receipt of Landlord’s Statement for the Base Year and within one (1) year with respect to any operating expenses or other calendar year. Unless Tenant takes written exception to any item within such time periods, such Landlord’s Statement will be considered as final and accepted by Tenant. If Tenant makes a timely written exception to Landlord (a “Notice Dispute”) and if Landlord and Tenant do not agree on the proper amount for actual Tenant’s Share of Operating Costs Increases within thirty (30) days of such Notice of Dispute, the matter shall be submitted to an independent certified public accountant selected by Landlord, with reasonable approval by Tenant, whose determination shall be final. If Landlord shall have overstated Tenant’s Share of Operating Costs by more than five (5) percent, Landlord shall pay all costs of such examination. If Landlord shall not have overstated Tenant’s Share of Operating Expenses by more than five percent (5%), Tenant shall pay all costs of such examination. (f) In the event that an increase in Real Estate Taxes is caused by Tenant’s improvements made to the Premises (other than the Landlord’s Work as defined in Exhibit B), Tenant will pay when due all the increase attributable to such improvements. If the improvements, the taxes for charges which are to be paid separately by Tenant, are not separately assessed, Landlord will equitably determine Tenant’s portion of that tax from due and payable until after the respective valuations assigned in the assessor’s worksheets or such other information (which may include the cost of construction) as may be reasonably availableClosing.

Appears in 1 contract

Samples: Purchase and Sale Agreement (Boston Properties LTD Partnership)

Additional Rents. In addition to Base Rent, Tenant will pay as “Additional Rent” the sums or amounts set forth herein or as become due and payable elsewhere in this Lease. (a) Landlord agrees If any Tenants are required to expend pay percentage rents, charges for operating expenses, escalation charges for increases in operating expenses, if any, business improvement district assessments, theater surcharges pursuant to any of the Project Documents, xxxxxx’x wage increases, labor cost increases, cost-of-living increases, charges for electricity, water, cleaning or overtime services, work order charges, “sundry charges” or other charges of a similar nature (collectively, “Additional Rents”), the same shall be adjusted on an if, as its share of Operating Costs during and when collected basis. With respect to any calendar year an amount equal estimated Additional Rents paid or payable by Tenants for any period prior to the actual Operating Costs of the Building incurred during the Base Year (“Landlord’s Share”). Prior Closing which, pursuant to the commencement of each calendar year or as soon thereafter as possibleapplicable Lease, Landlord will provide a written estimate of the Operating Costs expected are to be incurred during recalculated after the calendar year Closing based upon actual expenses and other relevant factors, (i) Seller agrees, with respect to such adjustments which are in excess favor of Landlord’s Share for any such Tenant, to pay to Purchaser the same period and showing Tenant’s Pro Rata Share amount of such amount adjustment (“estimated Tenant’s Share of Operating Costs Increases”). Commencing on the first anniversary of the Commencement Date Tenant will after which Purchaser shall pay to Landlord, during the remaining Term of this Lease, the estimated Tenant’s Share of Operating Costs Increases, in equal monthly installments payable in advance on the first day of each calendar month, without any offset or deduction whatsoever or any prior demand unless otherwise provided in this Lease. (b) If Landlord will not have furnished estimated Operating Costs at the times contemplated herein, then until such estimated Operating Costs are provided, Tenant will continue to pay an amount equal directly to the monthly sum payable under this Section Tenant in respect question), within fifteen (15) days after written demand and presentation to Seller of the last month documentation in support of the preceding calendar year. In such event, promptly after estimated Operating Costs are furnished to Tenant, or together therewith, Landlord will give notice stating whether the aggregate amount of the installments of estimated Tenant’s Share of Operating Costs Increases previously made for such calendar year is more or less than the aggregate amount of the installments of estimated Tenant’s Share of Operating Costs Increases to be made for the then-current calendar year in accordance with such estimated Operating Costsadjustments, and (iii) if there is a deficiencyPurchaser agrees, with respect to such adjustments which are in favor of landlord, to pay to Seller the amount of such adjustments which the Tenant pays to Purchaser, within thirty fifteen (3015) days after receipt of such notice Tenant will pay the amount of such deficiencythereof by Purchaser. Purchaser agrees that it shall, or (ii) if there has been an overpayment, Landlord will credit Tenant in accordance with Purchaser’s standard practice in the amount thereof toward subsequent payments of Base Rent or Additional Rent (or, upon termination management and operation of the LeaseReal Property, Landlord will reimburse Tenant xxxx Tenants such overpayment in cash and within sixty (60) days thereof with Landlord’s obligations under this Section surviving expiration or any earlier termination of this Lease); and (iii) on Additional Rents attributable to an accounting period that shall have expired prior to the first day of the next following month, and monthly thereafter throughout the remainder of such calendar year, Tenant will pay an amount equal to one-twelfth (1/12) of estimated Tenant’s Share of Operating Costs Increases, shown on such estimated Operating Costs. Landlord may at any time or from time to time revise the estimated Operating Costs and, in such case, the estimated Tenant’s Share of Operating Costs Increases for the remainder of the calendar year will be based upon such revised estimate of Operating Costs and adjusted, paid, and/or credited, as applicable, substantially Closing in the same manner as provided above. that Purchaser bills tenants for Additional Rents in respect of an accounting period that shall expire after the Closing (c) Within one hundred twenty (120) days after including without limitation, the annual “true up” at the end of each calendar year). Notwithstanding anything contained herein to the contrary, (A) Seller shall have the right, at its sole cost and expense, to pursue in its own name after the Closing any tenants to collect delinquencies for periods prior to the Closing (including, without limitation, by the prosecution of an action or proceeding, provided that with respect to tenants who are, at the time in question, in occupancy of any portion of the Property, no such later action or proceeding shall require the eviction of any such tenant without the Purchaser’s consent, and in which event all sums collected by Seller as a result of such litigation (after payment of all costs and expenses) shall be applied in full satisfaction of the subject delinquencies), and (B) with respect to Tenants who are, at the time in question, in occupancy of a portion of the Property, Purchaser agrees that it shall use commercially reasonable efforts to collect any such delinquent Additional Rent allocable to the period of Seller’s ownership of the Property provided that in no event shall such efforts require the eviction of any such tenant unless Purchaser shall agree thereto in writing, and in which event all sums collected by Purchaser as Landlord will a result of such litigation (after payment of all costs and expenses) shall be able applied in full satisfaction of the subject delinquencies). Seller shall furnish to determine Purchaser such accurate information (based on Seller’s records) relating to the actual period prior to the Closing that is reasonably necessary for the billing of such Additional Rents. Purchaser shall xxxx Tenants for Additional Rents for accounting periods prior to the Closing in accordance with and on the basis of such information furnished by Seller. Subsequent to the Closing, Seller shall have the right, from time to time for a period of ninety (90) days following the Closing, to review Purchaser’s rental records with respect to the Property during Purchaser’s ordinary business hours, at Purchaser’s offices, to ascertain the status of Purchaser’s billing and collection of Additional Rent. No action which results in the compromising of any claim against any Tenant with respect to base or fixed rents due under such Tenant’s Lease for the period prior to the Closing shall be made without Seller’s prior written approval, which approval shall not be unreasonably withheld, delayed or conditioned. No legal action or proceeding to collect Additional Rent shall be first commenced by Seller against a Tenant after the date which is six (6) months after the Closing Date. With respect to any Tenant which has paid all Additional Rents due and payable to the Closing Date, if, prior to the Closing, Seller or Seller’s managing agent shall have actually received and collected any installments or other amounts of Operating CostsAdditional Rents from such Tenant attributable to Additional Rents for periods from and after the Closing Date, Landlord will furnish to Tenant then, Purchaser shall receive a written statement (“Landlord’s Statement”) showing credit against the actual Operating Costs for Balance of the calendar year, Landlord’s Share of Operating Costs during the Base Year, and Tenant’s Pro Rata Share of Operating Costs during such calendar year in excess of Landlord’s Share (“actual Tenant’s Share of Operating Costs Increases). If Landlord’s Statement shows that the estimated Tenant’s Share of Operating Costs Increases exceeded the actual Tenant’s Share for such calendar year, then Landlord will credit Tenant Purchase Price in the amount of such excess installments or other amounts of Additional Rents at the Closing. (b) Any Additional Rents collected by Purchaser or Seller after the Closing from Tenants who owe Additional Rents for periods prior to the Closing (to the extent not applied against subsequent Fixed Rents due and payable by such Tenant in accordance with Section 4.2.5 above) shall be applied to Additional Rents then due and payable in the following order of priority (i) first, in payment of Additional Rents for the accounting period in which the Closing Date occurs, with such amounts being prorated between Purchaser and Seller based upon the number of days each owned the Property during the accounting period in which the Closing occurs; (ii) second, in payment of Additional Rents for any accounting periods which commenced after the Closing occurs, but only to the extent payments of Base Rent and Additional Rent. If Landlord’s Statement will show that the estimated Tenant’s Share of Operating Costs increases were less than actual Tenant’s Share of Operating Costs Increases Rents for such periodaccounting period are then currently due; and (iii) third, Tenant will pay in payment of Additional Rents for accounting periods preceding the amount of such deficiency within thirty accounting period prior to the accounting period in which the Closing occurs. Notwithstanding the foregoing, (30I) days if any Additional Rents are collected by Purchaser after the delivery to Tenant of such Landlord’s Statement. Landlord’s failure to render a Landlord’s Statement with respect Closing Date which are expressly attributable in whole or in part to any period will not eliminate prior to the Closing, then Purchaser shall promptly pay to Seller its proportionate share thereof, (II) if any Additional Rents are collected by Seller after the Closing Date which are expressly attributable in whole or reduce Tenant’s obligation to pay actual Tenant’s Share of Operating Costs Increases for such period and will not prejudice Landlord’s right to render a Landlord’s Statement with respect in part to any subsequent period. The obligations of Tenant under period prior to the provisions of this paragraph with respect to Closing, then Seller may retain its proportionate share thereof, and (III) any increase in funds collected by Purchaser for Additional Rent will survive the expiration or any sooner termination of the this Lease. If a change in Real Estate Taxes is obtained through a tax appeal by Landlord or otherwise, which affects Rents as the result of Landlordan end of billing period “true up” that are in favor of landlord, shall be divided between Seller and Purchaser based upon the number of months each held the landlord’s prior year’s calculation of Tenant’s Pro Rata Share of Operating Expense Increasesinterest in the Property for such billing period. At the Closing, then Landlord Purchaser shall promptly issue receive a credit against the Balance of the Purchase Price for any rents or a charge to Tenant, as the case may be, reflecting such Real Estate Taxes adjustment. (d) In respect of any Lease Year or partial Lease Year (including the Base Year) in which the Building is not occupied other amounts paid by Tenants pursuant to the extent of ninety-five percent (95%) of the Rentable Area thereofLeases actually received and collected by Seller prior to Closing, the Operating Costs in respect of such period will for the purposes of this Sectionbut that correspond to real estate taxes, be increased to be equal to the amount which would have been incurred had the Building been occupied to the extent of ninety-five percent (95%) of the Rentable Area thereof. (e) Tenant will have the right to inspect Landlord’s accounting records relative to Operating Costs of the Building at Landlord’s accounting office in Madison, Wisconsin during normal business hours at any time within sixty (60) days following receipt of Landlord’s Statement for the Base Year and within one (1) year with respect to any operating expenses or other calendar year. Unless Tenant takes written exception to any item within such time periods, such Landlord’s Statement will be considered as final and accepted by Tenant. If Tenant makes a timely written exception to Landlord (a “Notice Dispute”) and if Landlord and Tenant do not agree on the proper amount for actual Tenant’s Share of Operating Costs Increases within thirty (30) days of such Notice of Dispute, the matter shall be submitted to an independent certified public accountant selected by Landlord, with reasonable approval by Tenant, whose determination shall be final. If Landlord shall have overstated Tenant’s Share of Operating Costs by more than five (5) percent, Landlord shall pay all costs of such examination. If Landlord shall not have overstated Tenant’s Share of Operating Expenses by more than five percent (5%), Tenant shall pay all costs of such examination. (f) In the event that an increase in Real Estate Taxes is caused by Tenant’s improvements made to the Premises (other than the Landlord’s Work as defined in Exhibit B), Tenant will pay when due all the increase attributable to such improvements. If the improvements, the taxes for charges which are to be paid separately by Tenant, are not separately assessed, Landlord will equitably determine Tenant’s portion of that tax from due and payable until after the respective valuations assigned in the assessor’s worksheets or such other information (which may include the cost of construction) as may be reasonably availableClosing.

Appears in 1 contract

Samples: Purchase and Sale Agreement (Boston Properties Inc)

Additional Rents. In addition Additional Rents that were collected before Closing but relate in part to Base Rent, Tenant will pay a period after Closing shall be apportioned as “Additional Rent” the sums or amounts set forth herein or as become due and payable elsewhere in this Lease. (a) Landlord agrees to expend as its share of Operating Costs during any calendar year an amount equal to the actual Operating Costs of the Building incurred during Closing Date and Purchaser shall receive a credit against the Base Year Purchase Price for any such Additional Rents attributable to periods from and after Closing. Not later than three (“Landlord3) months following the Closing Date, Seller shall provide to Purchaser, Sxxxxx’s Share”). Prior to proposed reconciliation of Additional Rents for the commencement of each calendar year or as soon thereafter as possible, Landlord will provide a written estimate of the Operating Costs expected to be incurred during Property for the calendar year 2024 prior to the Closing Date. As soon as is reasonably practical, but in excess no event later than April 30, 2025, Purchaser shall prepare for Seller’s review and approval a reconciliation of Landlord’s Share Additional Rent for the same period calendar year 2024. Upon completion of an approved reconciliation of Additional Rent for the calendar year 2024, Purchaser shall invoice and showing diligently pursue collection from the Tenant any outstanding Additional Rent and where appropriate, credit the Tenant any overpaid Additional Rent. Promptly after receipt by Purchaser of any such outstanding amounts from the Tenant’s Pro Rata Share , Purchaser shall forward to Seller the portion of such amount (“estimated Tenant’s Share of Operating Costs Increases”). Commencing on the first anniversary of the Commencement Date Tenant will pay to Landlord, during the remaining Term of this Lease, the estimated Tenant’s Share of Operating Costs Increases, in equal monthly installments payable in advance on the first day of each calendar month, without any offset or deduction whatsoever or any prior demand unless otherwise provided in this Lease. (b) If Landlord will not have furnished estimated Operating Costs at the times contemplated herein, then until such estimated Operating Costs are provided, Tenant will continue to pay an amount equal amounts relating to the monthly sum payable under this Section in respect of the last month of the preceding calendar year. In such event, promptly after estimated Operating Costs are furnished to Tenant, or together therewith, Landlord will give notice stating whether the aggregate amount of the installments of estimated Tenant’s Share of Operating Costs Increases previously made for such calendar year is more or less than 2024 prior to the aggregate amount of the installments of estimated Tenant’s Share of Operating Costs Increases to be made for the then-current calendar year in accordance with such estimated Operating Costs, and (i) if there is a deficiency, within Closing Date. Within thirty (30) days after receipt completion of such notice Tenant will pay the amount an approved reconciliation of such deficiency, or (ii) if there has been an overpayment, Landlord will credit Tenant in the amount thereof toward subsequent payments of Base Rent or Additional Rent (or, upon termination of the Lease, Landlord will reimburse Tenant such overpayment in cash and within sixty (60) days thereof with Landlord’s obligations under this Section surviving expiration or any earlier termination of this Lease); and (iii) on the first day of the next following month, and monthly thereafter throughout the remainder of such calendar year, Tenant will pay an amount equal to one-twelfth (1/12) of estimated Tenant’s Share of Operating Costs Increases, shown on such estimated Operating Costs. Landlord may at any time or from time to time revise the estimated Operating Costs and, in such case, the estimated Tenant’s Share of Operating Costs Increases for the remainder of the calendar year will be based upon such revised estimate 2024, Seller shall pay to Purchaser the portion of Operating Costs and adjusted, paid, and/or credited, as applicable, substantially in any proper credit due the same manner as provided above. (c) Within one hundred twenty (120) days after the end of each calendar year, or at such later time as Landlord will be able Tenant relating to determine the actual amounts of Operating Costs, Landlord will furnish to Tenant a written statement (“Landlord’s Statement”) showing the actual Operating Costs for the calendar year, Landlord’s Share of Operating Costs during year 2024 prior to the Base Year, Closing Date. Purchaser and Tenant’s Pro Rata Share of Operating Costs during such calendar year in excess of Landlord’s Share (“actual Tenant’s Share of Operating Costs Increases). If Landlord’s Statement shows that the estimated Tenant’s Share of Operating Costs Increases exceeded the actual Tenant’s Share for such calendar year, then Landlord will credit Tenant in the amount of such excess against subsequent payments of Base Rent and Additional Rent. If Landlord’s Statement will show that the estimated Tenant’s Share of Operating Costs increases were less than actual Tenant’s Share of Operating Costs Increases for such period, Tenant will pay the amount of such deficiency within thirty (30) days after the delivery to Tenant of such Landlord’s Statement. Landlord’s failure to render a Landlord’s Statement Seller shall each act reasonably with respect to any period will not eliminate or reduce Tenant’s obligation to pay actual Tenant’s Share the reconciliation of Operating Costs Increases for such period and will not prejudice Landlord’s right to render a Landlord’s Statement with respect to any subsequent period. The obligations of Tenant under the provisions of this paragraph with respect to any increase in Additional Rent will survive the expiration or any sooner termination of the this Lease. If a change in Real Estate Taxes is obtained through a tax appeal by Landlord or otherwise, which affects the result of Landlord’s prior year’s calculation of Tenant’s Pro Rata Share of Operating Expense Increases, then Landlord shall promptly issue a credit or a charge to Tenant, as the case may be, reflecting such Real Estate Taxes adjustmentset forth above. (d) In respect of any Lease Year or partial Lease Year (including the Base Year) in which the Building is not occupied to the extent of ninety-five percent (95%) of the Rentable Area thereof, the Operating Costs in respect of such period will for the purposes of this Section, be increased to be equal to the amount which would have been incurred had the Building been occupied to the extent of ninety-five percent (95%) of the Rentable Area thereof. (e) Tenant will have the right to inspect Landlord’s accounting records relative to Operating Costs of the Building at Landlord’s accounting office in Madison, Wisconsin during normal business hours at any time within sixty (60) days following receipt of Landlord’s Statement for the Base Year and within one (1) year with respect to any other calendar year. Unless Tenant takes written exception to any item within such time periods, such Landlord’s Statement will be considered as final and accepted by Tenant. If Tenant makes a timely written exception to Landlord (a “Notice Dispute”) and if Landlord and Tenant do not agree on the proper amount for actual Tenant’s Share of Operating Costs Increases within thirty (30) days of such Notice of Dispute, the matter shall be submitted to an independent certified public accountant selected by Landlord, with reasonable approval by Tenant, whose determination shall be final. If Landlord shall have overstated Tenant’s Share of Operating Costs by more than five (5) percent, Landlord shall pay all costs of such examination. If Landlord shall not have overstated Tenant’s Share of Operating Expenses by more than five percent (5%), Tenant shall pay all costs of such examination. (f) In the event that an increase in Real Estate Taxes is caused by Tenant’s improvements made to the Premises (other than the Landlord’s Work as defined in Exhibit B), Tenant will pay when due all the increase attributable to such improvements. If the improvements, the taxes for which are to be paid separately by Tenant, are not separately assessed, Landlord will equitably determine Tenant’s portion of that tax from the respective valuations assigned in the assessor’s worksheets or such other information (which may include the cost of construction) as may be reasonably available.

Appears in 1 contract

Samples: Agreement of Sale (EQT Exeter Real Estate Income Trust, Inc.)

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Additional Rents. In addition If any tenants are required to Base Rentpay percentage rent, Tenant will pay as “escalation charges for real estate taxes, parking charges, operating expenses and maintenance escalation charges, cost-of-living increases or other charges of a similar nature ("ADDITIONAL RENTS") and any Additional Rent” Rents are collected by the Purchaser from a tenant after the Closing Date, then the Purchaser shall promptly apply such sums received from such tenant during the following periods in the following order of priority: (i) first, to the then current month in which the payment was received if Additional Rent is due and owing for such month, (ii) second, to the months in which any arrearages exist, paying off the most recent arrears first. If Additional Rents or amounts set forth herein any portion thereof received by the Seller or as become the Purchaser after the Closing are due and payable elsewhere in to the other party by reason of this Lease. (a) Landlord agrees to expend as its allocation, the appropriate sum, less a proportionate share of Operating Costs during any calendar year an amount equal reasonable attorneys' fees and costs and expenses expended in connection with the collection thereof, shall be promptly paid to the actual Operating Costs of other party (to the Building incurred during the Base Year (“Landlord’s Share”extent not collected from or reimbursed by tenants). Prior At the Closing, Seller shall deliver to the commencement Purchaser a list of each calendar year or as soon thereafter as possible, Landlord will provide a written estimate of the Operating Costs expected Additional Rent billed to be incurred during tenants for the calendar year in excess of Landlord’s Share which the Closing occurs (both on a monthly basis and in the aggregate), the basis for which the same period monthly amounts are being billed and showing Tenant’s Pro Rata Share of such amount (“estimated Tenant’s Share of Operating Costs Increases”). Commencing the amounts incurred by Seller on the first anniversary account of the Commencement Date Tenant will pay to Landlord, during the remaining Term components of this Lease, the estimated Tenant’s Share of Operating Costs Increases, in equal monthly installments payable in advance on the first day of each calendar month, without any offset or deduction whatsoever or any prior demand unless otherwise provided in this Lease. (b) If Landlord will not have furnished estimated Operating Costs at the times contemplated herein, then until Additional Rent for such estimated Operating Costs are provided, Tenant will continue to pay an amount equal to the monthly sum payable under this Section in respect of the last month of the preceding calendar year. In such event, promptly after estimated Operating Costs are furnished to Tenant, or together therewith, Landlord will give notice stating whether Upon the aggregate amount reconciliation by Purchaser of the installments of estimated Tenant’s Share of Operating Costs Increases previously made Additional Rents billed to Tenants, and the amounts actually incurred for such calendar year is more or less than the aggregate amount year, Seller and Purchaser shall be liable for overpayments of the installments of estimated Tenant’s Share of Operating Costs Increases to be made for the then-current calendar year in accordance with such estimated Operating CostsAdditional Rents, and (i) if there shall be entitled to payments from Tenants, as the case may be, on a pro-rata basis based upon each party's period of ownership during such calendar year. To the extent Seller is a deficiencyliable for an overpayment, it shall make such overpayment to Purchaser within thirty (30) days after receipt of such notice Tenant will pay request, for further distribution by Purchaser to the amount of such deficiency, or (ii) if there has been an overpayment, Landlord will credit Tenant in the amount thereof toward subsequent payments of Base Rent or Additional Rent (or, upon termination of the Lease, Landlord will reimburse Tenant such overpayment in cash and within sixty (60) days thereof with Landlord’s obligations under this Section surviving expiration or any earlier termination of this Lease); and (iii) on the first day of the next following month, and monthly thereafter throughout the remainder of such calendar year, Tenant will pay an amount equal to one-twelfth (1/12) of estimated Tenant’s Share of Operating Costs Increases, shown on such estimated Operating Costs. Landlord may at any time or from time to time revise the estimated Operating Costs and, in such case, the estimated Tenant’s Share of Operating Costs Increases for the remainder of the calendar year will be based upon such revised estimate of Operating Costs and adjusted, paid, and/or creditedtenants, as applicable, substantially in the same manner as provided above. (c) Within one hundred twenty (120) days after the end of each calendar year, or at such later time as Landlord will be able to determine the actual amounts of Operating Costs, Landlord will furnish to Tenant a written statement (“Landlord’s Statement”) showing the actual Operating Costs for the calendar year, Landlord’s Share of Operating Costs during the Base Year, and Tenant’s Pro Rata Share of Operating Costs during such calendar year in excess of Landlord’s Share (“actual Tenant’s Share of Operating Costs Increases). If Landlord’s Statement shows that the estimated Tenant’s Share of Operating Costs Increases exceeded the actual Tenant’s Share for such calendar year, then Landlord will credit Tenant in the amount of such excess against subsequent payments of Base Rent and Additional Rent. If Landlord’s Statement will show that the estimated Tenant’s Share of Operating Costs increases were less than actual Tenant’s Share of Operating Costs Increases for such period, Tenant will pay the amount of such deficiency within thirty (30) days after the delivery to Tenant of such Landlord’s Statement. Landlord’s failure to render a Landlord’s Statement with respect to any period will not eliminate or reduce Tenant’s obligation to pay actual Tenant’s Share of Operating Costs Increases for such period and will not prejudice Landlord’s right to render a Landlord’s Statement with respect to any subsequent period. The obligations of Tenant under the provisions of this paragraph with respect to any increase in Additional Rent will survive the expiration or any sooner termination of the this Lease. If a change in Real Estate Taxes is obtained through a tax appeal by Landlord or otherwise, which affects the result of Landlord’s prior year’s calculation of Tenant’s Pro Rata Share of Operating Expense Increases, then Landlord shall promptly issue a credit or a charge to Tenant, as the case may be, reflecting such Real Estate Taxes adjustment. (d) In respect of any Lease Year or partial Lease Year (including the Base Year) in which the Building is not occupied to the extent of ninety-five percent (95%) of the Rentable Area thereof, the Operating Costs in respect of such period will for the purposes of this Section, be increased to be equal to the amount which would have been incurred had the Building been occupied to the extent of ninety-five percent (95%) of the Rentable Area thereof. (e) Tenant will have the right to inspect Landlord’s accounting records relative to Operating Costs of the Building at Landlord’s accounting office in Madison, Wisconsin during normal business hours at any time within sixty (60) days following receipt of Landlord’s Statement for the Base Year and within one (1) year with respect to any other calendar year. Unless Tenant takes written exception to any item within such time periods, such Landlord’s Statement will be considered as final and accepted by Tenant. If Tenant makes a timely written exception to Landlord (a “Notice Dispute”) and if Landlord and Tenant do not agree on the proper amount for actual Tenant’s Share of Operating Costs Increases within thirty (30) days of such Notice of Dispute, the matter shall be submitted to an independent certified public accountant selected by Landlord, with reasonable approval by Tenant, whose determination shall be final. If Landlord shall have overstated Tenant’s Share of Operating Costs by more than five (5) percent, Landlord shall pay all costs of such examination. If Landlord shall not have overstated Tenant’s Share of Operating Expenses by more than five percent (5%), Tenant shall pay all costs of such examination. (f) In the event that an increase in Real Estate Taxes is caused by Tenant’s improvements made to the Premises (other than the Landlord’s Work as defined in Exhibit B), Tenant will pay when due all the increase attributable to such improvements. If the improvements, the taxes for which are to be paid separately by Tenant, are not separately assessed, Landlord will equitably determine Tenant’s portion of that tax from the respective valuations assigned in the assessor’s worksheets or such other information (which may include the cost of construction) as may be reasonably available.

Appears in 1 contract

Samples: Purchase and Sale Agreement (Dean Witter Realty Yield Plus L P)

Additional Rents. In addition Any percentage rent, escalation charges for real estate taxes, parking charges, operating and maintenance expenses, pass-throughs for roof, parking area and other capital asset replacements (including amortization payments), escalation rents or charges, electricity charges, cost of living increases or any other charges of a similar nature other than fixed or base rent under the Leases (collectively, the "Additional Rents") shall be prorated as of the Closing Date between Purchaser and Seller, with proration payments to Base Rent, Tenant will pay as “Additional Rent” be made on or before the sums or amounts set forth herein or as become due and payable elsewhere in this Lease. date which is ninety (a90) Landlord agrees to expend as its share days following the end of Operating Costs during any the calendar year an amount equal to in which the Closing occurs based on the actual Operating Costs number of days of the Building incurred during year and month which shall have elapsed as of the Base Year (“Landlord’s Share”)Closing Date. Prior to the commencement Closing, Seller shall provide Purchaser on an estimated basis with information regarding Additional Rents which were received by Seller prior to Closing and the amount of each calendar year reimbursable expenses paid by Seller prior to Closing. If Seller's collections of such amounts is in excess of the amounts actually paid by Seller for such items for the period prior to Closing, then Purchaser shall receive a credit at Closing for the excess amounts collected. Purchaser shall apply all such excess amounts to the charges owed by Purchaser for such items for the period after the Closing and, if required by the Leases, shall rebate or as soon thereafter as possiblecredit the tenants with any remainder. If it is determined that the amount collected during Seller's ownership period was less than the amounts actually paid by Seller for such items for the period prior to the Closing, Landlord then the collection and remitting of such amounts shall be governed by the provisions of subsection (iii) above regarding the post-closing application of rents. With respect to reimbursable expenses paid by Seller prior to Closing, but not billed to tenants prior to Closing, Seller will provide a written estimate to Purchaser all relevant information including supporting documentation and Seller's calculation of the Operating Costs expected amount to be incurred during billed to each tenant. On or before the date which is ninety (90) days following the end of the calendar year in excess which the Closing occurs, Purchaser shall deliver to Seller a reconciliation of Landlord’s Share for all expenses reimbursable by tenants under the same period Leases, and showing Tenant’s Pro Rata Share the amount of such amount Additional Rents received by Seller and Purchaser relating thereto (“estimated Tenant’s Share of Operating Costs Increases”the "RECONCILIATION"). Commencing on the first anniversary of the Commencement Date Tenant will pay to LandlordUpon reasonable notice and during normal business hours, during the remaining Term of this Lease, the estimated Tenant’s Share of Operating Costs Increases, in equal monthly installments payable in advance on the first day of each calendar month, without any offset or deduction whatsoever or any prior demand unless otherwise provided in this Lease. (b) If Landlord will not have furnished estimated Operating Costs at the times contemplated herein, then until such estimated Operating Costs are provided, Tenant will continue to pay an amount equal party shall make available to the monthly sum payable under this Section in respect of other all information reasonably required to confirm the last month of the preceding calendar yearReconciliation. In such eventthe event of any overpayment of Additional Rents by the tenants to Seller, promptly after estimated Operating Costs are furnished to TenantSeller shall promptly, or together therewith, Landlord will give notice stating whether the aggregate amount of the installments of estimated Tenant’s Share of Operating Costs Increases previously made for such calendar year is more or less but in no event later than the aggregate amount of the installments of estimated Tenant’s Share of Operating Costs Increases to be made for the then-current calendar year in accordance with such estimated Operating Costs, and fifteen (i) if there is a deficiency, within thirty (3015) days after receipt of such notice Tenant will the Reconciliation, pay to Purchaser the amount of such deficiency, or (ii) if there has been an overpayment, Landlord will credit Tenant in the amount thereof toward subsequent payments of Base Rent or Additional Rent (or, upon termination of the Lease, Landlord will reimburse Tenant such overpayment in cash and within sixty (60) days thereof with Landlord’s obligations under this Section surviving expiration or any earlier termination of this Lease); and (iii) on the first day of the next following month, and monthly thereafter throughout the remainder of such calendar year, Tenant will pay an amount equal to one-twelfth (1/12) of estimated Tenant’s Share of Operating Costs Increases, shown on such estimated Operating Costs. Landlord may at any time or from time to time revise the estimated Operating Costs and, in such case, the estimated Tenant’s Share of Operating Costs Increases for the remainder of the calendar year will be based upon such revised estimate of Operating Costs and adjusted, paid, and/or creditedPurchaser, as applicablethe landlord under the particular Leases, substantially in the same manner as provided above. (c) Within one hundred twenty (120) days after the end of shall pay or credit to each calendar year, or at such later time as Landlord will be able to determine the actual amounts of Operating Costs, Landlord will furnish to Tenant a written statement (“Landlord’s Statement”) showing the actual Operating Costs for the calendar year, Landlord’s Share of Operating Costs during the Base Year, and Tenant’s Pro Rata Share of Operating Costs during such calendar year in excess of Landlord’s Share (“actual Tenant’s Share of Operating Costs Increases). If Landlord’s Statement shows that the estimated Tenant’s Share of Operating Costs Increases exceeded the actual Tenant’s Share for such calendar year, then Landlord will credit Tenant in applicable tenant the amount of such excess against subsequent payments overpayment. In the event of Base Rent and an underpayment of Additional Rent. If Landlord’s Statement will show that Rents by the estimated Tenant’s Share of Operating Costs increases were less than actual Tenant’s Share of Operating Costs Increases for such periodtenants to Seller, Tenant will Purchaser shall pay to Seller the amount of such deficiency underpayment within thirty fifteen (30) days after the delivery to Tenant of such Landlord’s Statement. Landlord’s failure to render a Landlord’s Statement with respect to any period will not eliminate or reduce Tenant’s obligation to pay actual Tenant’s Share of Operating Costs Increases for such period and will not prejudice Landlord’s right to render a Landlord’s Statement with respect to any subsequent period. The obligations of Tenant under the provisions of this paragraph with respect to any increase in Additional Rent will survive the expiration or any sooner termination of the this Lease. If a change in Real Estate Taxes is obtained through a tax appeal by Landlord or otherwise, which affects the result of Landlord’s prior year’s calculation of Tenant’s Pro Rata Share of Operating Expense Increases, then Landlord shall promptly issue a credit or a charge to Tenant, as the case may be, reflecting such Real Estate Taxes adjustment. (d) In respect of any Lease Year or partial Lease Year (including the Base Year) in which the Building is not occupied to the extent of ninety-five percent (95%) of the Rentable Area thereof, the Operating Costs in respect of such period will for the purposes of this Section, be increased to be equal to the amount which would have been incurred had the Building been occupied to the extent of ninety-five percent (95%) of the Rentable Area thereof. (e) Tenant will have the right to inspect Landlord’s accounting records relative to Operating Costs of the Building at Landlord’s accounting office in Madison, Wisconsin during normal business hours at any time within sixty (6015) days following Purchaser's receipt of Landlord’s Statement for the Base Year and within one (1) year with respect to any other calendar year. Unless Tenant takes written exception to any item within such time periods, such Landlord’s Statement will be considered as final and accepted by Tenant. If Tenant makes a timely written exception to Landlord (a “Notice Dispute”) and if Landlord and Tenant do not agree on the proper amount for actual Tenant’s Share of Operating Costs Increases within thirty (30) days of such Notice of Dispute, the matter shall be submitted to an independent certified public accountant selected by Landlord, with reasonable approval by Tenant, whose determination shall be final. If Landlord shall have overstated Tenant’s Share of Operating Costs by more than five (5) percent, Landlord shall pay all costs of such examination. If Landlord shall not have overstated Tenant’s Share of Operating Expenses by more than five percent (5%), Tenant shall pay all costs of such examination. (f) In the event that an increase in Real Estate Taxes is caused by Tenant’s improvements made to the Premises (other than the Landlord’s Work as defined in Exhibit B), Tenant will pay when due all the increase attributable to such improvements. If the improvements, the taxes for which are to be paid separately by Tenant, are not separately assessed, Landlord will equitably determine Tenant’s portion of that tax amounts from the respective valuations assigned in the assessor’s worksheets or such other information (which may include the cost of construction) as may be reasonably availabletenants.

Appears in 1 contract

Samples: Purchase and Sale Agreement (Burnham Pacific Properties Inc)

Additional Rents. In addition to Base RentAny percentage rent, Tenant will pay escalation charges for real estate taxes, parking charges, operating and maintenance expenses, pass-throughs for roof, parking area and other capital asset replacements (including amortization payments), escalation rents or charges, electricity charges, cost of living increases or any other charges of a similar nature other than fixed or base rent under the Leases (collectively, the "Additional Rents") shall be prorated as “Additional Rent” the sums or amounts set forth herein or as become due and payable elsewhere in this Lease. (a) Landlord agrees to expend as its share of Operating Costs during any calendar year an amount equal to the actual Operating Costs of the Building incurred during the Base Year (“Landlord’s Share”). Prior to the commencement of each calendar year or as soon thereafter as possibleClosing Date between Buyer and Seller, Landlord will provide a written estimate of the Operating Costs expected proration payments to be incurred during made on or before the date which is ninety (90) days following the end of the calendar year in which the Closing occurs based on the actual number of days of the year and month which shall have elapsed as of the Closing Date. Prior to Closing, Seller shall provide Buyer on an estimated basis with information regarding Additional Rents which were received by Seller prior to Closing and the amount of reimbursable expenses paid by Seller prior to Closing. If Seller's collections of such amounts is in excess of Landlord’s Share the amounts actually paid by Seller for such items for the same period and showing Tenant’s Pro Rata Share of such amount (“estimated Tenant’s Share of Operating Costs Increases”). Commencing on the first anniversary of the Commencement Date Tenant will pay prior to Landlord, during the remaining Term of this Lease, the estimated Tenant’s Share of Operating Costs Increases, in equal monthly installments payable in advance on the first day of each calendar month, without any offset or deduction whatsoever or any prior demand unless otherwise provided in this Lease. (b) If Landlord will not have furnished estimated Operating Costs at the times contemplated hereinClosing, then until Buyer shall receive a credit at Closing for the excess amounts collected. Buyer shall apply all such estimated Operating Costs are provided, Tenant will continue to pay an amount equal excess amounts to the monthly sum payable under this Section in respect of the last month of the preceding calendar year. In such event, promptly after estimated Operating Costs are furnished to Tenant, or together therewith, Landlord will give notice stating whether the aggregate amount of the installments of estimated Tenant’s Share of Operating Costs Increases previously made charges owed by Buyer for such calendar year items for the period after the Closing and, if required by the Leases, shall rebate or credit the tenants with any remainder. If it is more or determined that the amount collected during Seller's ownership period was less than the aggregate amount amounts actually paid by Seller for such items for the period prior to the Closing, then the collection and remitting of such amounts shall be governed by the provisions of subsection (iii) above regarding the post-closing application of rents. With respect to reimbursable expenses paid by Seller prior to Closing, but not billed to tenants prior to Closing, Seller will provide to Buyer all relevant information including supporting documentation and Seller's calculation of the installments of estimated Tenant’s Share of Operating Costs Increases amount to be made for billed to each tenant. On or before the then-current date which is ninety (90) days following the end of the calendar year in accordance with such estimated Operating Costswhich the Closing occurs, Buyer shall deliver to Seller a reconciliation of all expenses reimbursable by tenants under the Leases, and the amount of Additional Rents received by Seller and Buyer relating thereto (i) if there is a deficiencythe "Reconciliation"). Upon reasonable notice and during normal business hours, within thirty each party shall make available to the other all information reasonably required to confirm the Reconciliation. In the event of any overpayment of Additional Rents by the tenants to Seller, Seller shall promptly, but in no event later than fifteen (3015) days after receipt of such notice Tenant will the Reconciliation, pay to Buyer the amount of such deficiency, or (ii) if there has been an overpayment, Landlord will credit Tenant in the amount thereof toward subsequent payments of Base Rent or Additional Rent (or, upon termination of the Lease, Landlord will reimburse Tenant such overpayment in cash and within sixty (60) days thereof with Landlord’s obligations under this Section surviving expiration or any earlier termination of this Lease); and (iii) on the first day of the next following month, and monthly thereafter throughout the remainder of such calendar year, Tenant will pay an amount equal to one-twelfth (1/12) of estimated Tenant’s Share of Operating Costs Increases, shown on such estimated Operating Costs. Landlord may at any time or from time to time revise the estimated Operating Costs and, in such case, the estimated Tenant’s Share of Operating Costs Increases for the remainder of the calendar year will be based upon such revised estimate of Operating Costs and adjusted, paid, and/or creditedBuyer, as applicablethe landlord under the particular Leases, substantially in the same manner as provided above. (c) Within one hundred twenty (120) days after the end of shall pay or credit to each calendar year, or at such later time as Landlord will be able to determine the actual amounts of Operating Costs, Landlord will furnish to Tenant a written statement (“Landlord’s Statement”) showing the actual Operating Costs for the calendar year, Landlord’s Share of Operating Costs during the Base Year, and Tenant’s Pro Rata Share of Operating Costs during such calendar year in excess of Landlord’s Share (“actual Tenant’s Share of Operating Costs Increases). If Landlord’s Statement shows that the estimated Tenant’s Share of Operating Costs Increases exceeded the actual Tenant’s Share for such calendar year, then Landlord will credit Tenant in applicable tenant the amount of such excess against subsequent payments overpayment. In the event of Base Rent and an underpayment of Additional Rent. If Landlord’s Statement will show that Rents by the estimated Tenant’s Share of Operating Costs increases were less than actual Tenant’s Share of Operating Costs Increases for such periodtenants to Seller, Tenant will Buyer shall pay to Seller the amount of such deficiency underpayment within thirty fifteen (30) days after the delivery to Tenant of such Landlord’s Statement. Landlord’s failure to render a Landlord’s Statement with respect to any period will not eliminate or reduce Tenant’s obligation to pay actual Tenant’s Share of Operating Costs Increases for such period and will not prejudice Landlord’s right to render a Landlord’s Statement with respect to any subsequent period. The obligations of Tenant under the provisions of this paragraph with respect to any increase in Additional Rent will survive the expiration or any sooner termination of the this Lease. If a change in Real Estate Taxes is obtained through a tax appeal by Landlord or otherwise, which affects the result of Landlord’s prior year’s calculation of Tenant’s Pro Rata Share of Operating Expense Increases, then Landlord shall promptly issue a credit or a charge to Tenant, as the case may be, reflecting such Real Estate Taxes adjustment. (d) In respect of any Lease Year or partial Lease Year (including the Base Year) in which the Building is not occupied to the extent of ninety-five percent (95%) of the Rentable Area thereof, the Operating Costs in respect of such period will for the purposes of this Section, be increased to be equal to the amount which would have been incurred had the Building been occupied to the extent of ninety-five percent (95%) of the Rentable Area thereof. (e) Tenant will have the right to inspect Landlord’s accounting records relative to Operating Costs of the Building at Landlord’s accounting office in Madison, Wisconsin during normal business hours at any time within sixty (6015) days following Buyer's receipt of Landlord’s Statement for the Base Year and within one (1) year with respect to any other calendar year. Unless Tenant takes written exception to any item within such time periods, such Landlord’s Statement will be considered as final and accepted by Tenant. If Tenant makes a timely written exception to Landlord (a “Notice Dispute”) and if Landlord and Tenant do not agree on the proper amount for actual Tenant’s Share of Operating Costs Increases within thirty (30) days of such Notice of Dispute, the matter shall be submitted to an independent certified public accountant selected by Landlord, with reasonable approval by Tenant, whose determination shall be final. If Landlord shall have overstated Tenant’s Share of Operating Costs by more than five (5) percent, Landlord shall pay all costs of such examination. If Landlord shall not have overstated Tenant’s Share of Operating Expenses by more than five percent (5%), Tenant shall pay all costs of such examination. (f) In the event that an increase in Real Estate Taxes is caused by Tenant’s improvements made to the Premises (other than the Landlord’s Work as defined in Exhibit B), Tenant will pay when due all the increase attributable to such improvements. If the improvements, the taxes for which are to be paid separately by Tenant, are not separately assessed, Landlord will equitably determine Tenant’s portion of that tax amounts from the respective valuations assigned in the assessor’s worksheets or such other information (which may include the cost of construction) as may be reasonably availabletenants.

Appears in 1 contract

Samples: Purchase and Sale Agreement (Burnham Pacific Properties Inc)

Additional Rents. In addition to Base Rent, Tenant will pay as “Additional Rent” the sums or amounts set forth herein hereinafter or as become due and payable elsewhere in this Lease. (a) Landlord agrees to expend as its share of Operating Costs during any calendar year an amount equal to the actual Operating Costs of the Building incurred during the Base Year (“Landlord’s Share”). Prior to the commencement of each calendar year or as soon thereafter as possible, Landlord will provide a written estimate of the Operating Costs expected to be incurred during the calendar year in excess of Landlord’s Share for the same period and showing Tenant’s Pro Rata Share of such amount (“estimated Tenant’s Share of Operating Costs Increases”). Commencing on the first anniversary of the Commencement Date Tenant will pay to Landlord, during the remaining Term of this Lease, the estimated Tenant’s Share of Operating Costs Increases, in equal monthly installments payable in advance on the first day of each calendar month, without any offset or deduction whatsoever or any prior demand unless otherwise provided in this Lease. (b) If Landlord will not have furnished estimated Operating Costs at the times contemplated herein, then until such estimated Operating Costs are provided, Tenant will continue to pay an amount equal to the monthly sum payable under this Section in respect of the last month of the preceding calendar year. In such event, promptly after estimated Operating Costs are furnished to Tenant, or together therewith, Landlord will give notice stating whether the aggregate amount of the installments of estimated Tenant’s Share of Operating Costs Increases previously made for such calendar year is more or less than the aggregate amount of the installments of estimated Tenant’s Share of Operating Costs Increases to be made for the then-current calendar year in accordance with such estimated Operating Costs, and (i) if there is a deficiency, within thirty (30) days after receipt of such notice Tenant will pay the amount of such deficiency, or (ii) if there has been an overpayment, Landlord will credit Tenant in the amount thereof toward subsequent payments of Base Rent or Additional Rent (or, upon termination of the Lease, Landlord will reimburse Tenant such overpayment in cash and within sixty (60) days thereof with Landlord’s obligations under this Section surviving expiration or any earlier termination of this Lease); and (iii) on the first day of the next following month, and monthly thereafter throughout the remainder of such calendar year, Tenant will pay an amount equal to one-twelfth (1/12) of estimated Tenant’s Share of Operating Costs Increases, shown on such estimated Operating Costs. Landlord may at any time or from time to time revise the estimated Operating Costs and, in such case, the estimated Tenant’s Share of Operating Costs Increases for the remainder of the calendar year will be based upon such revised estimate of Operating Costs and adjusted, paid, and/or credited, as applicable, substantially in the same manner as provided above. (c) Within one hundred twenty (120) days after the end of each calendar year, or at such later time as Landlord will be able to determine the actual amounts of Operating Costs, Landlord will furnish to Tenant a written statement (“Landlord’s Statement”) showing the actual Operating Costs for the calendar year, Landlord’s Share of Operating Costs during the Base Year, and Tenant’s Pro Rata Share of Operating Costs during such calendar year in excess of Landlord’s Share (“actual Tenant’s Share of Operating Costs Increases). If Landlord’s Statement shows that the estimated Tenant’s Share of Operating Costs Increases exceeded the actual Tenant’s Share for such calendar year, then Landlord will credit Tenant in the amount of such excess against subsequent payments of Base Rent and Additional Rent. If Landlord’s Statement will show that the estimated Tenant’s Share of Operating Costs increases were less than actual Tenant’s Share of Operating Costs Increases for such period, Tenant will pay the amount of such deficiency within thirty (30) days after the delivery to Tenant of such Landlord’s Statement. Landlord’s failure to render a Landlord’s Statement with respect to any period will not eliminate or reduce Tenant’s obligation to pay actual Tenant’s Share of Operating Costs Increases for such period and will not prejudice Landlord’s right to render a Landlord’s Statement with respect to any subsequent period. The obligations of Tenant under the provisions of this paragraph with respect to any increase in Additional Rent will survive the expiration or any sooner termination of the this Lease. If a change in Real Estate Taxes is obtained through a tax appeal by Landlord or otherwise, which affects the result of Landlord’s prior year’s calculation of Tenant’s Pro Rata Share of Operating Expense Increases, then Landlord shall promptly issue a credit or a charge to Tenant, as the case may be, reflecting such Real Estate Taxes adjustment. (d) In respect of any Lease Year or partial Lease Year (including the Base Year) in which the Building is not occupied to the extent of ninety-five percent (95%) of the Rentable Area thereof, the Operating Costs in respect of such period will for the purposes of this Section, be increased to be equal to the amount which would have been incurred had the Building been occupied to the extent of ninety-five percent (95%) of the Rentable Area thereof. (e) Tenant will have the right to inspect Landlord’s accounting records relative to Operating Costs of the Building at Landlord’s accounting office in Madison, Wisconsin during normal business hours at any time within sixty two (602) days years following receipt of Landlord’s Statement for the Base Year and within one (1) year with respect to any other calendar year. Unless Tenant takes written exception to any item within such time periods, such Landlord’s Statement will be considered as final and accepted by Tenant. If Tenant makes a timely written exception to Landlord (a “Notice Dispute”) and if Landlord and Tenant do not agree on the proper amount for actual Tenant’s Share of Operating Costs Increases within thirty (30) days of such Notice of Dispute, the matter shall be submitted to an independent certified public accountant selected by Landlord, with reasonable approval by Tenant, whose determination shall be final. If Landlord shall have overstated Tenant’s Share of Operating Costs by more than five (5) percent, Landlord shall pay all costs of such examination. If Landlord shall not have overstated Tenant’s Share of Operating Expenses by more than five percent (5%), Tenant shall pay all costs of such examination. (f) In the event that an increase in Real Estate Taxes is caused by Tenant’s improvements made to the Premises (other than the Landlord’s Work as defined in Exhibit B)Premises, Tenant will pay when due all the increase attributable to such improvements. If the improvements, the taxes for which are to be paid separately by Tenant, are not separately assessed, Landlord will equitably determine Tenant’s portion of that tax from the respective valuations assigned in the assessor’s worksheets or such other information (which may include the cost of construction) as may be reasonably available. Notwithstanding anything to the contrary contained herein, Tenant shall have the right, in the name of the Landlord and with the Landlord’s full cooperation, but without any cost to Landlord, to bring suit in any court of competent jurisdiction to recover the amount of any such Real Estate Taxes paid under protest on the basis of this paragraph, and any amount so recovered shall belong to Tenant; provided, however, that wherever circumstances permit, Landlord shall not pay any such Real Estate Taxes until Tenant has had a reasonable opportunity to investigate and contest such Real Estate Taxes, or post a bond in lieu of payment. Notwithstanding this, Landlord shall not be required to take any action that may result in the delinquency of Real Estate Taxes due and payable or to take any action that may result in a lien being placed on the Building.

Appears in 1 contract

Samples: Lease Agreement (Sonic Foundry Inc)

Additional Rents. In addition Tenants are obligated to Base Rentpay, Tenant will pay as additional rent, certain escalations in base rent and pass throughs of operating and similar expenses pursuant to the terms of the Third Party Leases (collectively, “Additional Rent” the sums or amounts set forth herein or as become due and payable elsewhere in this Lease. (a) Landlord agrees to expend as its share of Operating Costs during any calendar year an amount equal to the actual Operating Costs of the Building incurred during the Base Year (“Landlord’s ShareRents”). Prior On or before the date that is ninety (90) days following the Closing, Seller shall deliver to Buyer a reconciliation of all expenses reimbursable by tenants under the commencement Third Party Leases, and the amount of each calendar year or as soon thereafter as possibleAdditional Rents received by Seller (the “Seller’s Reconciliation”), Landlord will provide and Buyer shall promptly, following Seller’s request, deliver to Seller all information reasonably requested by Seller pertinent to Seller’s Reconciliation. Upon reasonable notice and during normal business hours, (i) Seller shall make available to Buyer all information reasonably required to confirm final agreement on the Seller’s Reconciliation, including, without limitation, a written estimate copy of the Operating Costs expected to be incurred during the calendar year in excess of LandlordSeller’s Share general ledger for the same period and showing Tenant’s Pro Rata Share of such amount (“estimated Tenant’s Share of Operating Costs Increases”). Commencing on the first anniversary of the Commencement Date Tenant will pay to Landlord, during the remaining Term of this Lease, the estimated Tenant’s Share of Operating Costs Increases, in equal monthly installments payable in advance on the first day of each calendar month, without any offset or deduction whatsoever or any prior demand unless otherwise provided in this Lease. (b) If Landlord will not have furnished estimated Operating Costs at the times contemplated herein, then until such estimated Operating Costs are provided, Tenant will continue to pay an amount equal to the monthly sum payable under this Section in respect of the last month of the preceding calendar year. In such event, promptly after estimated Operating Costs are furnished to Tenant, or together therewith, Landlord will give notice stating whether the aggregate amount of the installments of estimated Tenant’s Share of Operating Costs Increases previously made for such calendar year is more or less than the aggregate amount of the installments of estimated Tenant’s Share of Operating Costs Increases to be made for the then-current calendar year in accordance with such estimated Operating CostsProperty, and (iii) if there is Buyer shall make available to Seller all information reasonably required to confirm final agreement on the Seller’s Reconciliation, including, without limitation, a deficiency, copy of Buyer’s general ledger for the Property. Seller and Buyer shall use reasonable efforts to agree upon the accuracy of the Seller’s Reconciliation within thirty (30) days after receipt delivery of such notice Tenant will Seller’s Reconciliation to Buyer. In the event of any overpayment of Additional Rents to Seller by the tenants under the Third Party Leases, Seller shall promptly, but in no event later than ten (10) Business Days after Buyer and Seller agree upon the accuracy of the Seller’s Reconciliation, pay to Buyer the amount of such deficiencyoverpayment to the extent not previously credited to Buyer, and Xxxxx, as the landlord under the particular Third Party Leases, shall pay or (ii) if there has been an overpaymentcredit, Landlord will credit Tenant in accordance with the amount thereof toward subsequent payments of Base Rent or Additional Rent (or, upon termination of the applicable Third Party Lease, Landlord will reimburse Tenant such overpayment in cash and within sixty (60) days thereof with Landlord’s obligations under this Section surviving expiration or any earlier termination of this Lease); and (iii) on the first day of the next following month, and monthly thereafter throughout the remainder of such calendar year, Tenant will pay an amount equal to one-twelfth (1/12) of estimated Tenant’s Share of Operating Costs Increases, shown on such estimated Operating Costs. Landlord may at any time or from time to time revise the estimated Operating Costs and, in such case, the estimated Tenant’s Share of Operating Costs Increases for the remainder of the calendar year will be based upon such revised estimate of Operating Costs and adjusted, paid, and/or credited, as applicable, substantially in the same manner as provided above. (c) Within one hundred twenty (120) days after the end of each calendar year, or at such later time as Landlord will be able to determine the actual amounts of Operating Costs, Landlord will furnish to Tenant a written statement (“Landlord’s Statement”) showing the actual Operating Costs for the calendar year, Landlord’s Share of Operating Costs during the Base Year, and Tenant’s Pro Rata Share of Operating Costs during such calendar year in excess of Landlord’s Share (“actual Tenant’s Share of Operating Costs Increases). If Landlord’s Statement shows that the estimated Tenant’s Share of Operating Costs Increases exceeded the actual Tenant’s Share for such calendar year, then Landlord will credit Tenant in applicable tenant the amount of such excess against subsequent payments overpayment. In the event of Base Rent an underpayment of Additional Rents by the tenants to Seller, then the collection and Additional Rent. If Landlord’s Statement will show that the estimated Tenant’s Share of Operating Costs increases were less than actual Tenant’s Share of Operating Costs Increases for such period, Tenant will pay the amount remitting of such deficiency within thirty (30) days after the delivery to Tenant of such Landlord’s Statement. Landlord’s failure to render a Landlord’s Statement with respect to any period will not eliminate or reduce Tenant’s obligation to pay actual Tenant’s Share of Operating Costs Increases for such period and will not prejudice Landlord’s right to render a Landlord’s Statement with respect to any subsequent period. The obligations of Tenant under amounts shall be governed by the provisions of this paragraph with Section 6.8.3 above regarding the post-closing application of rents. With respect to any increase in Additional Rent reimbursable expenses paid by Seller prior to Closing, but not billed to tenants prior to Closing, Seller will survive the expiration or any sooner termination of the this Lease. If a change in Real Estate Taxes is obtained through a tax appeal by Landlord or otherwise, which affects the result of Landlord’s prior yearprovide to Buyer all relevant information including supporting documentation and Seller’s calculation of Tenant’s Pro Rata Share of Operating Expense Increases, then Landlord shall promptly issue a credit or a charge to Tenant, as the case may be, reflecting such Real Estate Taxes adjustment. (d) In respect of any Lease Year or partial Lease Year (including the Base Year) in which the Building is not occupied to the extent of ninety-five percent (95%) of the Rentable Area thereof, the Operating Costs in respect of such period will for the purposes of this Section, be increased amount to be equal billed to the amount which would have been incurred had the Building been occupied each tenant and Buyer shall make efforts to the extent of ninety-five percent (95%) of the Rentable Area thereofcollect such amounts pursuant to Section 6.8.3. (e) Tenant will have the right to inspect Landlord’s accounting records relative to Operating Costs of the Building at Landlord’s accounting office in Madison, Wisconsin during normal business hours at any time within sixty (60) days following receipt of Landlord’s Statement for the Base Year and within one (1) year with respect to any other calendar year. Unless Tenant takes written exception to any item within such time periods, such Landlord’s Statement will be considered as final and accepted by Tenant. If Tenant makes a timely written exception to Landlord (a “Notice Dispute”) and if Landlord and Tenant do not agree on the proper amount for actual Tenant’s Share of Operating Costs Increases within thirty (30) days of such Notice of Dispute, the matter shall be submitted to an independent certified public accountant selected by Landlord, with reasonable approval by Tenant, whose determination shall be final. If Landlord shall have overstated Tenant’s Share of Operating Costs by more than five (5) percent, Landlord shall pay all costs of such examination. If Landlord shall not have overstated Tenant’s Share of Operating Expenses by more than five percent (5%), Tenant shall pay all costs of such examination. (f) In the event that an increase in Real Estate Taxes is caused by Tenant’s improvements made to the Premises (other than the Landlord’s Work as defined in Exhibit B), Tenant will pay when due all the increase attributable to such improvements. If the improvements, the taxes for which are to be paid separately by Tenant, are not separately assessed, Landlord will equitably determine Tenant’s portion of that tax from the respective valuations assigned in the assessor’s worksheets or such other information (which may include the cost of construction) as may be reasonably available.

Appears in 1 contract

Samples: Office Lease (PACIFIC GAS & ELECTRIC Co)

Additional Rents. In addition Tenants are obligated to Base Rentpay, Tenant will pay as additional rent, certain escalations in base rent and pass throughs of operating and similar expenses pursuant to the terms of the Third Party Leases (collectively, “Additional Rent” the sums or amounts set forth herein or as become due and payable elsewhere in this Lease. (a) Landlord agrees to expend as its share of Operating Costs during any calendar year an amount equal to the actual Operating Costs of the Building incurred during the Base Year (“Landlord’s ShareRents”). Prior On or before the date that is ninety (90) days following the Closing, Seller shall deliver to Buyer a reconciliation of all expenses reimbursable by tenants under the commencement Third Party Leases, and the amount of each calendar year or as soon thereafter as possibleAdditional Rents received by Seller (the “Seller’s Reconciliation”), Landlord will provide and Buyer shall promptly, following Seller’s request, deliver to Seller all information reasonably requested by Seller pertinent to Seller’s Reconciliation. Upon reasonable notice and during normal business hours, (i) Seller shall make available to Buyer all information reasonably required to confirm final agreement on the Seller’s Reconciliation, including, without limitation, a written estimate copy of the Operating Costs expected to be incurred during the calendar year in excess of LandlordSeller’s Share general ledger for the same period and showing Tenant’s Pro Rata Share of such amount (“estimated Tenant’s Share of Operating Costs Increases”). Commencing on the first anniversary of the Commencement Date Tenant will pay to Landlord, during the remaining Term of this Lease, the estimated Tenant’s Share of Operating Costs Increases, in equal monthly installments payable in advance on the first day of each calendar month, without any offset or deduction whatsoever or any prior demand unless otherwise provided in this Lease. (b) If Landlord will not have furnished estimated Operating Costs at the times contemplated herein, then until such estimated Operating Costs are provided, Tenant will continue to pay an amount equal to the monthly sum payable under this Section in respect of the last month of the preceding calendar year. In such event, promptly after estimated Operating Costs are furnished to Tenant, or together therewith, Landlord will give notice stating whether the aggregate amount of the installments of estimated Tenant’s Share of Operating Costs Increases previously made for such calendar year is more or less than the aggregate amount of the installments of estimated Tenant’s Share of Operating Costs Increases to be made for the then-current calendar year in accordance with such estimated Operating CostsProperty, and (iii) if there is Buyer shall make available to Seller all information reasonably required to confirm final agreement on the Seller’s Reconciliation, including, without limitation, a deficiency, copy of Buyer’s general ledger for the Property. Seller and Buyer shall use reasonable efforts to agree upon the accuracy of the Seller’s Reconciliation within thirty (30) days after receipt delivery of such notice Tenant will Seller’s Reconciliation to Buyer. In the event of any overpayment of Additional Rents to Seller by the tenants under the Third Party Leases, Seller shall promptly, but in no event later than ten (10) Business Days after Buyer and Seller agree upon the accuracy of the Seller’s Reconciliation, pay to Buyer the amount of such deficiencyoverpayment to the extent not previously credited to Buyer, and Buyer, as the landlord under the particular Third Party Leases, shall pay or (ii) if there has been an overpaymentcredit, Landlord will credit Tenant in accordance with the amount thereof toward subsequent payments of Base Rent or Additional Rent (or, upon termination of the applicable Third Party Lease, Landlord will reimburse Tenant such overpayment in cash and within sixty (60) days thereof with Landlord’s obligations under this Section surviving expiration or any earlier termination of this Lease); and (iii) on the first day of the next following month, and monthly thereafter throughout the remainder of such calendar year, Tenant will pay an amount equal to one-twelfth (1/12) of estimated Tenant’s Share of Operating Costs Increases, shown on such estimated Operating Costs. Landlord may at any time or from time to time revise the estimated Operating Costs and, in such case, the estimated Tenant’s Share of Operating Costs Increases for the remainder of the calendar year will be based upon such revised estimate of Operating Costs and adjusted, paid, and/or credited, as applicable, substantially in the same manner as provided above. (c) Within one hundred twenty (120) days after the end of each calendar year, or at such later time as Landlord will be able to determine the actual amounts of Operating Costs, Landlord will furnish to Tenant a written statement (“Landlord’s Statement”) showing the actual Operating Costs for the calendar year, Landlord’s Share of Operating Costs during the Base Year, and Tenant’s Pro Rata Share of Operating Costs during such calendar year in excess of Landlord’s Share (“actual Tenant’s Share of Operating Costs Increases). If Landlord’s Statement shows that the estimated Tenant’s Share of Operating Costs Increases exceeded the actual Tenant’s Share for such calendar year, then Landlord will credit Tenant in applicable tenant the amount of such excess against subsequent payments overpayment. In the event of Base Rent an underpayment of Additional Rents by the tenants to Seller, then the collection and Additional Rent. If Landlord’s Statement will show that the estimated Tenant’s Share of Operating Costs increases were less than actual Tenant’s Share of Operating Costs Increases for such period, Tenant will pay the amount remitting of such deficiency within thirty (30) days after the delivery to Tenant of such Landlord’s Statement. Landlord’s failure to render a Landlord’s Statement with respect to any period will not eliminate or reduce Tenant’s obligation to pay actual Tenant’s Share of Operating Costs Increases for such period and will not prejudice Landlord’s right to render a Landlord’s Statement with respect to any subsequent period. The obligations of Tenant under amounts shall be governed by the provisions of this paragraph with Section 6.8.3 above regarding the post-closing application of rents. With respect to any increase in Additional Rent reimbursable expenses paid by Seller prior to Closing, but not billed to tenants prior to Closing, Seller will survive the expiration or any sooner termination of the this Lease. If a change in Real Estate Taxes is obtained through a tax appeal by Landlord or otherwise, which affects the result of Landlord’s prior yearprovide to Buyer all relevant information including supporting documentation and Seller’s calculation of Tenant’s Pro Rata Share of Operating Expense Increases, then Landlord shall promptly issue a credit or a charge to Tenant, as the case may be, reflecting such Real Estate Taxes adjustment. (d) In respect of any Lease Year or partial Lease Year (including the Base Year) in which the Building is not occupied to the extent of ninety-five percent (95%) of the Rentable Area thereof, the Operating Costs in respect of such period will for the purposes of this Section, be increased amount to be equal billed to the amount which would have been incurred had the Building been occupied each tenant and Buyer shall make efforts to the extent of ninety-five percent (95%) of the Rentable Area thereofcollect such amounts pursuant to Section 6.8.3. (e) Tenant will have the right to inspect Landlord’s accounting records relative to Operating Costs of the Building at Landlord’s accounting office in Madison, Wisconsin during normal business hours at any time within sixty (60) days following receipt of Landlord’s Statement for the Base Year and within one (1) year with respect to any other calendar year. Unless Tenant takes written exception to any item within such time periods, such Landlord’s Statement will be considered as final and accepted by Tenant. If Tenant makes a timely written exception to Landlord (a “Notice Dispute”) and if Landlord and Tenant do not agree on the proper amount for actual Tenant’s Share of Operating Costs Increases within thirty (30) days of such Notice of Dispute, the matter shall be submitted to an independent certified public accountant selected by Landlord, with reasonable approval by Tenant, whose determination shall be final. If Landlord shall have overstated Tenant’s Share of Operating Costs by more than five (5) percent, Landlord shall pay all costs of such examination. If Landlord shall not have overstated Tenant’s Share of Operating Expenses by more than five percent (5%), Tenant shall pay all costs of such examination. (f) In the event that an increase in Real Estate Taxes is caused by Tenant’s improvements made to the Premises (other than the Landlord’s Work as defined in Exhibit B), Tenant will pay when due all the increase attributable to such improvements. If the improvements, the taxes for which are to be paid separately by Tenant, are not separately assessed, Landlord will equitably determine Tenant’s portion of that tax from the respective valuations assigned in the assessor’s worksheets or such other information (which may include the cost of construction) as may be reasonably available.

Appears in 1 contract

Samples: Office Lease (PACIFIC GAS & ELECTRIC Co)

Additional Rents. Operating Expenses. In addition to Base Rentthe base rent set forth above, Tenant will Lessee further agrees to pay as Additional Rent” the sums or amounts set forth herein or as become due and payable elsewhere in this Lease. (a) Landlord agrees to expend as its Rental Lessee's pro rata share of all Operating Costs during Expenses of the Building, it being understood that the base rent payable by Lessee to Lessor is the absolute net rent to be received by Lessor and there shall be no charges or impositions against said rent. Lessor may, within nine (9) months following the close of any calendar year an amount equal to for which additional rental is due under this Paragraph, invoice Lessee for its pro rata share of operating expenses. The invoice shall include in reasonable detail the actual Operating Costs computations of the Building incurred during the Base Year (“Landlord’s Share”). Prior additional rental, and Lessee agrees to the commencement of each calendar year or as soon thereafter as possible, Landlord will provide a written estimate make payment of the Operating Costs expected additional rental to be incurred during the calendar year in excess of Landlord’s Share for the same period and showing Tenant’s Pro Rata Share of such amount (“estimated Tenant’s Share of Operating Costs Increases”). Commencing on the first anniversary of the Commencement Date Tenant will pay to Landlord, during the remaining Term of this Lease, the estimated Tenant’s Share of Operating Costs Increases, in equal monthly installments payable in advance on the first day of each calendar month, without any offset or deduction whatsoever or any prior demand unless otherwise provided in this Lease. (b) If Landlord will not have furnished estimated Operating Costs at the times contemplated herein, then until such estimated Operating Costs are provided, Tenant will continue to pay an amount equal to the monthly sum payable under this Section in respect of the last month of the preceding calendar year. In such event, promptly after estimated Operating Costs are furnished to Tenant, or together therewith, Landlord will give notice stating whether the aggregate amount of the installments of estimated Tenant’s Share of Operating Costs Increases previously made for such calendar year is more or less than the aggregate amount of the installments of estimated Tenant’s Share of Operating Costs Increases to be made for the then-current calendar year in accordance with such estimated Operating Costs, and (i) if there is a deficiency, Lessor within thirty (30) days after following receipt of such notice Tenant will pay the amount invoice. In addition to Lessor's right to invoice Lessee for actual operating expenses, if any, at the end of such deficiencyeach calendar year, or (ii) if there has been an overpaymentLessor shall have the right but not the obligation, Landlord will credit Tenant in at any time during the amount thereof toward subsequent payments of Base Rent or Additional Rent (or, upon termination of the Lease, Landlord will reimburse Tenant such overpayment in cash and within sixty (60) days thereof with Landlord’s obligations under this Section surviving expiration or any earlier termination term of this Lease); , to estimate operating expenses for the coming calendar year (or remaining part thereof) and (iii) on the first day of the next following month, and monthly thereafter throughout the remainder invoice Lessee for its pro rata share of such calendar yearestimated operating expenses. Lessee shall pay monthly, Tenant will pay concurrent with each Base Rent payment due hereunder, an amount equal to one-twelfth (1/12) of estimated Tenant’s Share of Operating Costs Increases, shown on such estimated Operating Costs. Landlord may at any time or from time to time revise the estimated Operating Costs andannual operating expenses, in such casepayment being considered "Additional Rent". In the event of an overpayment or underpayment by Lessee, the estimated Tenant’s Share of Operating Costs Increases for the remainder of the calendar year will each party hereby agrees to an appropriate adjustment to be based upon such revised estimate of Operating Costs and adjusted, paid, and/or paid or credited, as applicablethe case may be, substantially in as determined by the same manner accounting of actual operating expenses as provided above. (c) Within one hundred twenty (120) days after herein, to the end of each calendar year, or at such later time as Landlord will Additional Rent payment next becoming due from Lessee. Such adjustment shall be able to determine the actual amounts of Operating Costs, Landlord will furnish to Tenant a written statement (“Landlord’s Statement”) showing the actual Operating Costs for the calendar year, Landlord’s Share of Operating Costs during the Base Year, and Tenant’s Pro Rata Share of Operating Costs during such calendar year in excess of Landlord’s Share (“actual Tenant’s Share of Operating Costs Increases). If Landlord’s Statement shows that the estimated Tenant’s Share of Operating Costs Increases exceeded the actual Tenant’s Share for such calendar year, then Landlord will credit Tenant in the amount of such excess against subsequent payments of Base Rent and Additional Rent. If Landlord’s Statement will show that the estimated Tenant’s Share of Operating Costs increases were less than actual Tenant’s Share of Operating Costs Increases for such period, Tenant will pay the amount of such deficiency made within thirty (30) days after Lessor has finally determined the delivery to Tenant of such Landlord’s Statement. Landlord’s failure to render a Landlord’s Statement with respect to any period will not eliminate or reduce Tenant’s obligation to pay actual Tenant’s Share of Operating Costs Increases operating expenses for such period the calendar year and will not prejudice Landlord’s right to render a Landlord’s Statement with respect to any subsequent period. The obligations of Tenant under the provisions of this paragraph with respect to any increase in Additional Rent will survive the expiration or any sooner termination notified Lessee of the this Leasepayment (or credit) which is due. If a change in Real Estate Taxes is obtained through a tax appeal by Landlord or otherwise, which affects the result of Landlord’s prior year’s calculation of Tenant’s Pro Rata Share of Operating Expense Increases, then Landlord Appropriate proration shall promptly issue a credit or a charge to Tenant, as the case may be, reflecting such Real Estate Taxes adjustment. (d) In respect of any Lease Year or be made for partial Lease Year (including the Base Year) in which the Building is not occupied to the extent of ninety-five percent (95%) of the Rentable Area thereof, the Operating Costs in respect of such period will for the purposes of this Section, be increased to be equal to the amount which would have been incurred had the Building been occupied to the extent of ninety-five percent (95%) of the Rentable Area thereof. (e) Tenant will periods. Lessee shall have the right to inspect Landlord’s accounting records relative to Operating Costs of the Building at Landlord’s accounting office in Madisonright, Wisconsin during normal business hours at any time within sixty (60) days following from receipt of Landlord’s Statement for Lessor's notice of the Base Year actual Additional Rent due hereunder, and within one (1) year with respect at Lessee's own expense and at a reasonable time, to any other calendar yearinspect Lessor's books at the Lessor or its agent's place of business, relevant to the Additional Rent due under this Paragraph, or at Lessor's option, Lessor shall provide to Lessee a statement of operating expenses in reasonable detail. Unless Tenant takes written exception to any item within such time periods, such Landlord’s Statement will be considered as final and accepted by Tenant. If Tenant makes a timely written exception to Landlord (a “Notice Dispute”) and if Landlord and Tenant do not agree on the proper amount for actual Tenant’s Share of Operating Costs Increases within thirty (30) days of such Notice of Dispute, the matter shall be submitted to an independent certified public accountant selected by Landlord, with reasonable approval by Tenant, whose determination shall be final. If Landlord shall have overstated Tenant’s Share of Operating Costs by more than five (5) percent, Landlord shall pay all costs of such examination. If Landlord shall not have overstated Tenant’s Share of Operating Expenses by more than five percent (5%), Tenant shall pay all costs of such examination. (f) In the event that an increase in Real Estate Taxes is caused Lessee shall dispute the Additional Rent due hereunder (including election by Tenant’s improvements made Lessee to the Premises (other than the Landlord’s Work inspect Lessor's books, as defined in Exhibit Bprovided for above), Tenant will Lessee shall nonetheless be required to pay the Additional Rent so invoiced to Lessee as and when due all required herein pending resolution of such dispute. Lessee's obligation to pay this rent shall survive the increase attributable to such improvements. If termination of the improvements, the taxes for which are to be paid separately by Tenant, are not separately assessed, Landlord will equitably determine Tenant’s portion of that tax from the respective valuations assigned in the assessor’s worksheets or such other information (which may include the cost of construction) as may be reasonably availableLease.

Appears in 1 contract

Samples: Lease Agreement (Neogen Corp)

Additional Rents. In addition to Base RentAny percentage rent, Tenant will pay escalation charges for real estate taxes, parking charges, operating and maintenance expenses, pass-throughs for roof, parking area and other capital asset replacements (including amortization payments), escalation rents or charges, electricity charges, cost of living increases or any other charges of a similar nature other than fixed or base rent under the Leases (collectively, the "Additional Rents") shall be prorated as “Additional Rent” the sums or amounts set forth herein or as become due and payable elsewhere in this Lease. (a) Landlord agrees to expend as its share of Operating Costs during any calendar year an amount equal to the actual Operating Costs of the Building incurred during the Base Year (“Landlord’s Share”). Prior to the commencement of each calendar year or as soon thereafter as possible, Landlord will provide a written estimate of the Operating Costs expected Closing Date between Buyer and Seller proration payments to be incurred during made on or before the date which is ninety (90) days following the end of the calendar year in which the Closing occurs based on the actual number of days of the year and month which shall have elapsed as of the Closing Date. Prior to Closing, Seller shall provide Buyer on an estimated basis with information regarding Additional Rents which were received by Seller prior to Closing and the amount of reimbursable expenses paid by Seller prior to Closing. If Seller's collections of such amounts is in excess of Landlord’s Share the amounts actually paid by Seller for such items for the same period and showing Tenant’s Pro Rata Share of such amount (“estimated Tenant’s Share of Operating Costs Increases”). Commencing on the first anniversary of the Commencement Date Tenant will pay prior to Landlord, during the remaining Term of this Lease, the estimated Tenant’s Share of Operating Costs Increases, in equal monthly installments payable in advance on the first day of each calendar month, without any offset or deduction whatsoever or any prior demand unless otherwise provided in this Lease. (b) If Landlord will not have furnished estimated Operating Costs at the times contemplated hereinClosing, then until Buyer shall receive a credit at Closing for the excess amounts collected. Buyer shall apply all such estimated Operating Costs are provided, Tenant will continue to pay an amount equal excess amounts to the monthly sum payable under this Section in respect of the last month of the preceding calendar year. In such event, promptly after estimated Operating Costs are furnished to Tenant, or together therewith, Landlord will give notice stating whether the aggregate amount of the installments of estimated Tenant’s Share of Operating Costs Increases previously made charges owed by Buyer for such calendar year items for the period after the Closing and, if required by the Leases, shall rebate or credit the tenants with any remainder. If it is more or determined that the amount collected during Seller's ownership period was less than the aggregate amount amounts actually paid by Seller for such items for the period prior to the Closing, then the collection and remitting of such amounts shall be governed by the provisions of subsection (iii) above regarding the post- closing application of rents. With respect to reimbursable expenses paid by Seller prior to Closing, but not billed to tenants prior to Closing, Seller will provide to Buyer all relevant information including supporting documentation and Seller's calculation of the installments of estimated Tenant’s Share of Operating Costs Increases amount to be made for billed to each tenant. On or before the then-current date which is ninety (90) days following the end of the calendar year in accordance with such estimated Operating Costswhich the Closing occurs, Buyer shall deliver to Seller a reconciliation of all expenses reimbursable by tenants under the Leases, and the amount of Additional Rents received by Seller and Buyer relating thereto (i) if there is a deficiencythe "Reconciliation"). Upon reasonable notice and during normal business hours, within thirty each party shall make available to the other all information reasonably required to confirm the Reconciliation. In the event of any overpayment of Additional Rents by the tenants to Seller, Seller shall promptly, but in no event later than fifteen (3015) days after receipt of such notice Tenant will the Reconciliation, pay to Buyer the amount of such deficiency, or (ii) if there has been an overpayment, Landlord will credit Tenant in the amount thereof toward subsequent payments of Base Rent or Additional Rent (or, upon termination of the Lease, Landlord will reimburse Tenant such overpayment in cash and within sixty (60) days thereof with Landlord’s obligations under this Section surviving expiration or any earlier termination of this Lease); and (iii) on the first day of the next following month, and monthly thereafter throughout the remainder of such calendar year, Tenant will pay an amount equal to one-twelfth (1/12) of estimated Tenant’s Share of Operating Costs Increases, shown on such estimated Operating Costs. Landlord may at any time or from time to time revise the estimated Operating Costs and, in such case, the estimated Tenant’s Share of Operating Costs Increases for the remainder of the calendar year will be based upon such revised estimate of Operating Costs and adjusted, paid, and/or creditedBuyer, as applicablethe landlord under the particular Leases, substantially in the same manner as provided above. (c) Within one hundred twenty (120) days after the end of shall pay or credit to each calendar year, or at such later time as Landlord will be able to determine the actual amounts of Operating Costs, Landlord will furnish to Tenant a written statement (“Landlord’s Statement”) showing the actual Operating Costs for the calendar year, Landlord’s Share of Operating Costs during the Base Year, and Tenant’s Pro Rata Share of Operating Costs during such calendar year in excess of Landlord’s Share (“actual Tenant’s Share of Operating Costs Increases). If Landlord’s Statement shows that the estimated Tenant’s Share of Operating Costs Increases exceeded the actual Tenant’s Share for such calendar year, then Landlord will credit Tenant in applicable tenant the amount of such excess against subsequent payments overpayment. In the event of Base Rent and an underpayment of Additional Rent. If Landlord’s Statement will show that Rents by the estimated Tenant’s Share of Operating Costs increases were less than actual Tenant’s Share of Operating Costs Increases for such periodtenants to Seller, Tenant will Buyer shall pay to Seller the amount of such deficiency underpayment within thirty fifteen (30) days after the delivery to Tenant of such Landlord’s Statement. Landlord’s failure to render a Landlord’s Statement with respect to any period will not eliminate or reduce Tenant’s obligation to pay actual Tenant’s Share of Operating Costs Increases for such period and will not prejudice Landlord’s right to render a Landlord’s Statement with respect to any subsequent period. The obligations of Tenant under the provisions of this paragraph with respect to any increase in Additional Rent will survive the expiration or any sooner termination of the this Lease. If a change in Real Estate Taxes is obtained through a tax appeal by Landlord or otherwise, which affects the result of Landlord’s prior year’s calculation of Tenant’s Pro Rata Share of Operating Expense Increases, then Landlord shall promptly issue a credit or a charge to Tenant, as the case may be, reflecting such Real Estate Taxes adjustment. (d) In respect of any Lease Year or partial Lease Year (including the Base Year) in which the Building is not occupied to the extent of ninety-five percent (95%) of the Rentable Area thereof, the Operating Costs in respect of such period will for the purposes of this Section, be increased to be equal to the amount which would have been incurred had the Building been occupied to the extent of ninety-five percent (95%) of the Rentable Area thereof. (e) Tenant will have the right to inspect Landlord’s accounting records relative to Operating Costs of the Building at Landlord’s accounting office in Madison, Wisconsin during normal business hours at any time within sixty (6015) days following Buyer's receipt of Landlord’s Statement for the Base Year and within one (1) year with respect to any other calendar year. Unless Tenant takes written exception to any item within such time periods, such Landlord’s Statement will be considered as final and accepted by Tenant. If Tenant makes a timely written exception to Landlord (a “Notice Dispute”) and if Landlord and Tenant do not agree on the proper amount for actual Tenant’s Share of Operating Costs Increases within thirty (30) days of such Notice of Dispute, the matter shall be submitted to an independent certified public accountant selected by Landlord, with reasonable approval by Tenant, whose determination shall be final. If Landlord shall have overstated Tenant’s Share of Operating Costs by more than five (5) percent, Landlord shall pay all costs of such examination. If Landlord shall not have overstated Tenant’s Share of Operating Expenses by more than five percent (5%), Tenant shall pay all costs of such examination. (f) In the event that an increase in Real Estate Taxes is caused by Tenant’s improvements made to the Premises (other than the Landlord’s Work as defined in Exhibit B), Tenant will pay when due all the increase attributable to such improvements. If the improvements, the taxes for which are to be paid separately by Tenant, are not separately assessed, Landlord will equitably determine Tenant’s portion of that tax amounts from the respective valuations assigned in the assessor’s worksheets or such other information (which may include the cost of construction) as may be reasonably availabletenants.

Appears in 1 contract

Samples: Purchase and Sale Agreement (Weingarten Realty Investors /Tx/)

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