Common use of Common Area Maintenance Costs Clause in Contracts

Common Area Maintenance Costs. (i) ESTIMATED PAYMENTS. Commencing on the Commencement Date and continuing throughout the entire Term, Tenant shall pay Tenant's Percentage Share of all Common Area Maintenance Costs paid or payable by Landlord in each year; provided, however, that Tenant shall pay Tenant's Building Share of those Common Area Maintenance Costs arising from Landlord's performance of its obligations under PARAGRAPHS 17.A and Tenant's obligations under PARAGRAPH 17.D. Before commencement of the Term and during December of each calendar year or as soon thereafter as practicable, Landlord shall give Tenant notice of its estimate of amounts payable under this PARAGRAPH 5.D.(i) for the ensuing calendar year. Such notice shall show in reasonable detail the basis on which the estimate was determined. On or before the first day of each month during the ensuing calendar year, Tenant shall pay to Landlord one-twelfth (1/12th) of such estimated amounts, provided that if such notice is not given in December, Tenant shall continue to pay on the basis of the prior year's estimate until the month after such notice is given. If at any time or times it appears to Landlord, in its reasonable judgment, that the amounts payable under this PARAGRAPH 5.D.(i) for the current calendar year will vary from its then-current estimate by more than five percent (5%), Landlord may, in its sole discretion, by notice to Tenant, showing in reasonable detail the basis for such variance, revise its estimate for such year, in which case subsequent payments by Tenant for such year shall be based upon such revised estimate. Landlord's election not to give the notice described in the foregoing sentence shall not affect Landlord's ability to charge Tenant for, nor Tenant's liability to pay for, any shortfall in the estimated payments for such calendar year previously made by Tenant, as set forth in PARAGRAPH 5.D.(ii).

Common Area Maintenance Costs. (i) ESTIMATED PAYMENTS. Commencing on the Commencement Date and continuing throughout the entire Term, Tenant shall pay Tenant's ’s Percentage Share of all Common Area Maintenance Costs paid or payable by Landlord in each year; provided, however, that Tenant shall pay Tenant's ’s Building Share of those Common Area Maintenance Costs arising from Landlord's ’s performance of its obligations under PARAGRAPHS 17.A and Tenant's ’s obligations under PARAGRAPH 17.D. Before commencement of the Term and during December of each calendar year or as soon thereafter as practicable, Landlord shall give Tenant notice of its estimate of amounts payable under this PARAGRAPH 5.D.(i) for the ensuing calendar year. Such notice shall show in reasonable detail the basis on which the estimate was determined. On or before the first day of each month during the ensuing calendar year, Tenant shall pay to Landlord one-twelfth (1/12th) of such estimated amounts, provided that if such notice is not given in December, Tenant shall continue to pay on the basis of the prior year's ’s estimate until the month after such notice is given. If at any time or times it appears to Landlord, in its reasonable judgment, that the amounts payable under this PARAGRAPH 5.D.(i) for the current calendar year will vary from its then-current estimate by more than five percent (5%), Landlord may, in its sole discretion, by notice to Tenant, showing in reasonable detail the basis for such variance, revise its estimate for such year, in which case subsequent payments by Tenant for such year shall be based upon such revised estimate. Landlord's ’s election not to give the notice described in the foregoing sentence shall not affect Landlord's ’s ability to charge Tenant for, nor Tenant's ’s liability to pay for, any shortfall in the estimated payments for such calendar year previously made by Tenant, as set forth in PARAGRAPH 5.D.(ii).

Common Area Maintenance Costs. (i) ESTIMATED PAYMENTS“Common Area Maintenance Costs” shall include only those reasonable costs actually incurred by Landlord, and payable by Tenant, for the operation, maintenance and repair of the Common Area, which costs are not otherwise charged as Real Estate Taxes or Insurance Costs. Commencing on the Commencement Date and continuing throughout the entire Term, Tenant shall pay Tenant's Percentage Share of all The Common Area Maintenance Costs paid include, but are not limited to: cleaning, trash removal, snow and ice removal, line repainting, patching or payable by Landlord resealing pavement, landscape maintenance, sewer charges, license and permit fees, policing, fire protection, security services (if any), traffic direction, repairs, maintenance supplies, and other everyday maintenance expenses including routine replacements of light bulbs and other similar items, and other reasonable costs of maintaining the Common Area in each year; provideda clean and safe condition as required herein. 1 Assuming Floor Area of 545,010 sf However, however, that Tenant shall pay Tenant's Building Share of those Common Area Maintenance Costs arising shall not include any item which is not customarily considered to be a normal expense of operation, maintenance and repair of the Common Area, including, without limitation: any charges for administrative expenses or management fees other than an administrative fee not to exceed three percent (3%) of the Base Rent for the applicable period; any capital costs of any nature, any charges for capital improvements or for depreciation of capital improvements in connection with the Real Estate or the Industrial Park, including but not limited to the repaving or replacement of any and all driveways, sidewalks, streets and parking areas; any principal or interest payments, or any points or fees, on the loans secured by mortgages in the Real Estate or the Industrial Park or any part thereof; cost and expenses incurred in connection with leasing space at the Real Estate or the Industrial Park, including, without limitation, leasing commissions, advertising and promotional expenses, and legal fees for the preparation of leases; rents payable with respect to any leasing office; court costs and legal fees incurred to enforce the obligations of other tenants of the Industrial Park; costs recoverable by Landlord pursuant to its insurance policies; costs resulting from Landlord's performance repairs, alterations, additions, improvements, or replacements made to rectify or correct any material defect in the original design, materials or workmanship of the Leased Premises or Common Area (but including repairs made as a result of ordinary wear and tear); costs incurred by Landlord in fulfilling its obligations in connection with Landlord’s Work; Real Estate Taxes; Insurance Costs; marketing or advertising costs for the Real Estate or the Industrial Park; the cost of electricity or other utilities that serve other tenants’ spaces; executive or managerial salaries; consulting fees; fees paid to architects, engineers, attorneys or other professionals; market study fees; initial paving, initial striping or initial landscaping costs; costs of sculptures, paintings or other artwork, if any, in the Common Areas; costs of structural repairs or replacements; the costs of performing any of Landlord’s repair and maintenance responsibilities under PARAGRAPHS 17.A and Tenant's obligations Article VIII; rental or other payments under PARAGRAPH 17.D. Before commencement any ground lease; any amounts paid by Landlord resulting from a default under a lease or other agreement in conjunction with the Real Estate or the Industrial Park; the cost of containing, removing or otherwise remediating any contamination or environmental liability of the Term Real Estate or the Industrial Park; home or branch office expenses; costs resulting from any sale or transfer of the Real Estate or any interest therein by Landlord; any excessive amount the Landlord pays a contractor or vendor because of a special relationship; any single non-customary expense of which Tenant’s share exceeds ten thousand dollars ($10,000.00) and during December of each calendar year which has not been approved in advance by Tenant (which approval shall not be unreasonably withheld); or any other unsubstantiated or unreasonable cost. Common Area Maintenance Costs shall include any “common area maintenance costs” allocable to the Premises as soon thereafter defined and provided in the CCR (as practicabledefined in Section 27.13), Landlord shall give Tenant notice of its estimate of amounts payable under this PARAGRAPH 5.D.(i) for the ensuing calendar year. Such notice shall show in reasonable detail the basis on which the estimate was determined. On or before the first day of each month during the ensuing calendar year, Tenant shall pay to Landlord one-twelfth (1/12th) of such estimated amountsif any, provided that if such notice is costs do not given in December, Tenant shall continue to pay on the basis of the prior year's estimate until the month after such notice is given. If at duplicate any time or times it appears to Landlord, in its reasonable judgment, that the amounts payable under this PARAGRAPH 5.D.(i) for the current calendar year will vary from its then-current estimate by more than five percent (5%), Landlord may, in its sole discretion, by notice to Tenant, showing in reasonable detail the basis for such variance, revise its estimate for such year, in which case subsequent payments by Tenant for such year shall be based upon such revised estimate. Landlord's election not to give the notice described in the foregoing sentence shall not affect Landlord's ability to charge Tenant for, nor Tenant's liability to pay for, any shortfall in the estimated payments for such calendar year previously made by Tenant, as Common Area Maintenance Costs set forth in PARAGRAPH 5.D.(ii)this Section 1.11 and are of a type not otherwise excluded from being passed through to Tenant hereunder.

Common Area Maintenance Costs. (ia) ESTIMATED PAYMENTS. Commencing on the Commencement Date and continuing throughout the entire Term, ,Tenant shall pay Tenant's Percentage Share of to Landlord,as Additional Rent hereunder,6.99%percent(the"CAM Share")of all Common Area Maintenance Costs paid or payable by Landlord in (hereinafter defined)of the Buildings incurred during each calendar year; provided, however, that . Tenant shall pay make monthly payments of Tenant's Building CAM Share of those Common Area Maintenance Costs arising from on an estimated basis, based on Landlord's performance reasonable estimate of its obligations under PARAGRAPHS 17.A and Tenant's obligations under PARAGRAPH 17.D. Before Common Area Maintenance Costs for such calendar year. Prior to the commencement of the Term and during December of each calendar year or as soon thereafter as practicable, year,Landlord shall give use reasonable efforts to furnish Tenant notice of its a statement showing Landlord's reasonable estimate of amounts payable under this PARAGRAPH 5.D.(i) Tenant's CAM Share of Common Area Maintenance Costs for the ensuing upcoming calendar year. Such notice shall show in reasonable detail Commencing on the basis Commencement Date,and continuing on which the estimate was determined. On or before the first day of each calendar month thereafter during the ensuing calendar year, Term,Tenant shall pay to Landlord one-twelfth (1/12th) twelfth(1/12th)of Landlord's estimate of Tenant's CAM Share of Common Area Maintenance Costs for the then-current calendar year. Within one hundred twenty(120)days after the end of each calendar year, Landlord shall provide to Tenant a statement(the"CAM Statement")setting forth the total Common Area Maintenance Costs for such calendar year and Tenant's CAM Share thereof,calculated according to the formula set forth above. Within thirty(30)days after the delivery of such estimated amounts, provided that if such notice is not given in December, CAM Statement,Tenant shall continue pay to pay Landlord any deficiency between the amount shown as on Tenant's CAM Statement as the CAM Share of Common Area Maintenance Costs for such year and the estimated payments made by Tenant toward such amount in accordance herewith. In the event Tenant shall have made excess estimated payments,the excess shall be applied against estimated payments of Common Area Maintenance Costs for the then-current calendar year,unless the Term shall have expired,in which event Landlord shall refund such excess to Tenant with the delivery of the CAM Statement. Tenant's CAM Share of Common Area Maintenance Costs for any partial calendar year during the Term shall be determined by multiplying Tenant's CAM Share with respect to the entire calendar year by a fraction,the numerator of which is the number of days during such calendar year fulling within the Term and the denominator of which is three hundred sixty-five(365). (b) For purposes of this Section 6,the term"Common Area Maintenance Costs"shall mean any and all expenses incurred by Landlord in connection with the operation,management,maintenance and repair of the Buildings and the Project Land and all easements,rights and appurtenances thereto,including,but not limited to:management fees;legal and accounting fees;the cost of any association fees,dues,assessments or other similar charges;the costs and expenses incurred in connection with the provision of the utilities and services(if any)to or for the benefit of the Buildings(but expressly excluding utilities provided to tenant premises set forth therein),including but not limited to the maintenance, repair and replacement of the base Building systems; salaries, wages, medical, surgical, general welfare benefits (including group life insurance), pension payments, payroll taxes, and worker's compensation insurance for employees of landlord and the property manager engaged in the operation,management,maintenance and repair of the Building;the costs and expenses incurred in connection with the provision of any security or security personnel;any trash removal and collection expenses;the cost of all casualty,liability and other insurance obtained by Landlord in connection with the ownership and operation of the Buildings and the Project Land;license fees;any local and state surcharges or special charges;access control services and costs;building supplies;uniforms and dry cleaning; snow and ice removal or prevention;repair and maintenance of the grounds,including costs of landscaping,gardening and planting;service or management contracts with independent contractors,including but not limited to access control and energy management services;telephone,telegraph,postage,stationery supplies and other materials and expenses required for the routine operation of the Building;vault payments,if any;any capital expenditures incurred either to reduce Common Area Maintenance Costs to the extent of actual savings realized by Landlord or to comply with any governmental law,order or regulation;and any other expense or charge which would be included in Common Area Maintenance Costs in accordance with sound accounting and management principles generally accepted with respect to the operation of buildings comparable to the Buildings in the Atlanta,Georgia metropolitan area. (c) Notwithstanding anything contained in this Section 6 to the contrary,Landlord reserves the right,at • any time in the future,to calculate Common Area Maintenance Costs on the basis of the prior year's estimate until Common Area Maintenance 3 MASTER LEASE-COPY PRIOR TO REVISION CHG02:20031080.vt 12/8101 9:49 AM • Costs incurred in connection with the month after such notice is given. If at any time or times Building and the Land on which it appears to Landlord, in its reasonable judgment, that the amounts payable under this PARAGRAPH 5.D.(i) for the current calendar year will vary from its then-current estimate by more than five percent (5%), Landlord may, in its sole discretion, by notice to Tenant, showing in reasonable detail the basis for such variance, revise its estimate for such year, sits only,in which case subsequent payments by Tenant for such year event the CAM Share shall be based upon such revised estimateadjusted accordingly. Landlord's election not to give the notice described in the foregoing sentence shall not affect Landlord's ability to charge Tenant for, nor Tenant's liability to pay for, any shortfall in the estimated payments for such calendar year previously made by Tenant, as set forth in PARAGRAPH 5.D.(ii)7.

Common Area Maintenance Costs. (i) ESTIMATED PAYMENTSEstimated Payments. Commencing on the Commencement Date ------------------ and continuing throughout the entire Term, Tenant shall pay Tenant's Percentage Share of all Common Area Maintenance Costs paid or payable by Landlord in each year; provided, however, that Tenant shall pay Tenant's Building Share one hundred percent (100%) of those Common Area Maintenance Costs arising from Landlord's performance of its obligations under PARAGRAPHS Paragraphs 17.A --------------- and Tenant's obligations under PARAGRAPH Paragraph 17.D. Before commencement of the Term -------------- and during December of each calendar year or as soon thereafter as practicable, Landlord shall give Tenant notice of its estimate of amounts payable under this PARAGRAPH Paragraph 5.D.(i) for the ensuing calendar year. Such notice shall show in ----------------- reasonable detail the basis on which the estimate was determined. On or before the first day of each month during the ensuing calendar year, Tenant shall pay to Landlord one-twelfth (1/12th) of such estimated amounts, provided that if such notice is not given in December, Tenant shall continue to pay on the basis of the prior year's estimate until the month after such notice is given. If at any time or times it appears to Landlord, in its reasonable judgment, that the amounts payable under this PARAGRAPH Paragraph 5.D.(i) for the current calendar year will ----------------- vary from its then-current estimate by more than five percent (5%), Landlord may, in its sole discretion, by notice to Tenant, showing in reasonable detail the basis for such variance, revise its estimate for such year, in which case subsequent payments by Tenant for such year shall be based upon such revised estimate. Landlord's election not to give the notice described in the foregoing sentence shall not affect Landlord's ability to charge Tenant for, nor Tenant's liability to pay for, any shortfall in the estimated payments for such calendar year previously made by Tenant, as set forth in PARAGRAPH Paragraph 5.D.(ii).. ------------------

Common Area Maintenance Costs. (i) ESTIMATED PAYMENTS. Commencing on During the Commencement Date and continuing throughout the entire Term, Tenant Landlord shall be responsible to annually pay Tenant's Percentage Share of all Common Area Maintenance Costs paid or payable by Landlord Expenses in each year; provided, however, that Tenant shall pay Tenant's Building Share of those an amount not to exceed the Common Area Maintenance Costs arising from Landlord's performance of its obligations under PARAGRAPHS 17.A and Tenant's obligations under PARAGRAPH 17.D. Before commencement Expenses payable as of the Term and during December Base Year, which for purposes of each calendar this section shall be the year or as soon thereafter as practicable, Landlord shall give Tenant notice of its estimate of amounts payable under this PARAGRAPH 5.D.(i) for the ensuing calendar year2011. Such notice shall show Commencing in reasonable detail the basis on which the estimate was determined. On or before the first day of each month during year following the ensuing calendar yearBase Year, Tenant shall pay to Landlord, as Additional Rent, Tenant’s Proportionate Share of any and all increases in current year Common Area Maintenance Expenses over the Common Area Maintenance Expenses for the Base Year. The term “Common Area Maintenance Expenses” shall mean the total cost and expense incurred in operating and maintaining the Building and the Common Areas in and adjoining the Building for use by Tenant and the other tenants of the Building and Complex and the concessionaires, officers, employees, agents, customers and invitees of Tenant. Common Area Maintenance Expenses shall specifically include, without limitation, all the maintenance, repair and operating duties required of Landlord onein Section 6.1, including gardening and landscaping; the cost of public liability and property damage insurance; repairs; the cost of fire and extended coverage insurance on the Building; rental or business interruption insurance; pumping, cleaning, repairing, and rebuilding of all drainage systems and leaching fields; sanitary control; removal of snow, trash, rubbish and other refuse; the costs of security, seal coating, line painting, and heating and cooling of internal Common Areas; all water and sewer charges for the Building whether consumed in any tenant space or the Common Areas; lighting of the parking areas; and lighting of the Building. The Additional Rent to be paid shall be paid as part of Rent, on a monthly basis, and at the times and in the fashion herein provided for the payment of Annual Fixed Rent. In addition to the foregoing, Common Area Maintenance Expenses will include janitorial services for the Premises, which Landlord shall cause to be provided in accordance with Exhibit G. Notwithstanding the foregoing, all annual Common Area Maintenance Expenses shall not increase by more than three (4%) percent per year on a non-twelfth cumulative, non-compounded basis, excluding snow removal, utilities and insurance. In addition, Common Area Maintenance Expenses shall not include (1/12tha) repairs and general maintenance paid from proceeds of insurance or by a tenant or other third parties, (b) alterations attributable to tenants in, or other occupants of the Complex or vacant rentable space in the Complex, (c) the cost of capital improvements, replacements or expenses, and such estimated amountsother costs that, provided that if under generally accepted accounting principals (“GAAP”), consistently applied would be considered capital or are otherwise outside normal costs and expenses in connection with the operation, cleaning, management, security, maintenance and repair of similar buildings, (d) depreciation, (e) principal or interest payments or ground lease payments relating to the Complex, (f) lease commissions or marketing costs, (g) costs, repairs or other work occasioned by fire, windstorm or other casualty or condemnation, (h) rental concessions granted to tenants or costs associated with the negotiation, execution or enforcement of this Lease or leases with other tenants, (i) costs incurred in connection with the sale, financing, refinancing or mortgaging of all or any portion of the Complex, (i) any penalties or liquidated damages Landlord pays under this Lease or to any other tenants or occupants of the Complex, (l) costs associated with correcting any violation of law, or to comply with laws enacted after the Execution of the Lease, (l) political or charitable contributions, (m) reserves of any kind, including, without limitation, replacement reserves and reserves for bad debts or lost rent or any similar charge not involving the payment of money to third parties; (n) wages or salaries of employees over the rank of building superintendent; (o) expenses resulting from any violation by Landlord of the terms of any lease of space in the Building or Complex or of any ground or underlying lease or mortgage to which this Lease is subordinate; (p) costs of compliance with the Americans with Disabilities Act, as from time to time amended, and the rules and regulations thereunder; and (q) any cost and expense incurred by or on behalf of Landlord in removing and disposing or causing to be removed or disposed hazardous or toxic substances or materials, or any cooling or chiller system and the chemicals used in such notice is not given system from any part of the Building. Landlord shall deliver an annual statement Tenant by May 15th of each year during the Term setting forth in December, detail the Common Area Maintenance Expenses. Tenant shall continue be entitled to pay on inspect Landlord’s books and records related to the basis of the prior year's estimate until the month after such notice is given. If costs and expenses and Additional Rent at any time within one hundred and eighty (180) days following Tenant’s receipt of Landlord’s annual statements for such Common Area Maintenance Expenses. If the parties mutually agree as to any discrepancy, Landlord shall credit any overpayment toward the next Additional Rent payment falling due or times it appears pay such overpayment to LandlordTenant within thirty (30) days of such determination. If the variance is ten percent (10%) or more in the aggregate, Landlord shall pay the reasonable costs of said inspection. Tenant’s right of inspection shall expire on the one hundred and eightieth (180th) day from Tenant’s receipt thereof. If the parties fail to agree on any such discrepancy, then such dispute will be resolved by an accounting firm mutually acceptable to both parties or, in its reasonable judgment, that the amounts payable under this PARAGRAPH 5.D.(i) for the current calendar year will vary from its then-current estimate by more than five percent (5%), Landlord may, in its sole discretionabsence of agreement, by notice to a regionally recognized accounting firm selected by lot after eliminating Landlord’s auditors, Tenant, showing in reasonable detail 's auditor and one additional firm designated as objectionable by each of Tenant and Landlord. The determination of any accounting firm so selected of the basis for such variance, revise its estimate for such year, in which case subsequent payments by Tenant for such year Common Area Maintenance Expenses shall be based conclusive and binding upon the parties. Each party shall be responsible for its own fees and costs, including attorneys’ fees, incurred in any such revised estimate. Landlord's election not to give the notice described in the foregoing sentence shall not affect Landlord's ability to charge Tenant for, nor Tenant's liability to pay for, any shortfall in the estimated payments for such calendar year previously made by Tenant, as set forth in PARAGRAPH 5.D.(ii)arbitration.