Operating Cost. (a) Operating Cost shall mean all expenses and costs of every kind and nature which Landlord shall pay or become obligated to pay because of or in connection with the management, maintenance, preservation or operation of the Building (determined in accordance with generally accepted accounting principles, consistently applied) including, but not limited to the following: (1) Expenses of the operation, maintenance and security of the Building, including compensation in the form of wages, salaries, and other compensation and benefits (including payroll taxes, federal, state and local unemployment taxes and social security taxes, insurance, welfare and retirement benefits, and related expenses and benefits of all on-site and off-site employees [to the extent involved in the management, maintenance and operation of the Building], reasonably pro-rated to reflect services provided for the Building and other building(s)); (2) Cost for Landlord’s office and management office operation for the Building, including the actual cost (or, in the absence of a specific rent charge, the fair market rent) of any space occupied by entities providing management or building services for the Building, reasonably prorated between the Building and the building at 000 Xxxxxxxx Xxxxxx; (3) All tools, supplies, materials and equipment used in the operation and maintenance of the Building (reasonably pro-rated to reflect services provided for the Building and other building(s)), including rental fees for the same, if such items are not purchased and amortized pursuant to (10) below; (4) Utilities, including electricity, water, sewer, gas, communication, heating, lighting, air conditioning and ventilating, for the entire Building; (5) All maintenance, janitorial and service agreements and costs for the Building, including, without limitation, alarm service, landscaping, window cleaning, escalator and elevator maintenance, rubbish and snow removal, pest control, equipment maintenance or servicing or maintenance or cleaning for sidewalks, Building exterior, roof and service areas; (6) A management fee in connection with the operation of the Building; provided, however, that the share of such cost included in Tenant’s Operating Cost under this Lease shall be separately calculated and equal three percent (3%) of all Rent under this Lease, excluding such fee, and that such share shall be in lieu of Tenant’s Proportionate Share of the management fee for the entire Building; (7) Legal and accounting services for the Building, including the costs of audits by certified public accountants, but excluding legal costs (and related costs and expenses) incurred in disputes with or proceedings against any specific tenant or in connection with the development, financing, sale and/or leasing of the Building or any part thereof; (8) All insurance premiums and costs applicable to the Building and Landlord’s personal property used in connection therewith, including but not limited to, the premiums and cost of fire, casualty and liability coverage and rental abatement and business interruption insurance and unreimbursed costs incurred by Landlord that are subject to an insurance deductible; (9) Repairs, replacements and general maintenance (except for repairs paid by proceeds of insurance or by Tenant or other third parties, and alterations attributable solely to tenants of the Building other than Tenant); (10) Amortization (together with reasonable actual or imputed financing charges) over its useful life as reasonably determined by Landlord (or such shorter pay-back period as may be reasonably estimated by Landlord for cost-savings items) of capital improvements made to the Building that (i) are reasonably designed to maintain the first-class quality of the Building’s operations consistent with Comparable Buildings in Downtown Boston (excluding major lobby reconstruction or other major improvement work in the Building) or to reduce energy consumption or improve the operating efficiency of the Building, (ii) may be required by governmental authorities (other than a failure of the Building to comply with any law, ordinance, order, or other governmental rule or regulation in effect and interpreted to apply to the Property as of the date hereof) or any insurer of the Building consistent with Comparable Buildings in Downtown Boston, or (iii) constitute equipment of a capital nature contemplated in (3) above (such as, for example, snow blowers, vacuums and sweepers), which in Landlord’s reasonable judgment, is ultimately less costly to purchase than to rent. (b) Notwithstanding any other provision herein to the contrary, in the event that the Building is not fully occupied during any year of the Term, an adjustment shall be made in computing Operating Cost for such year so that Operating Cost shall be computed as though the Building had been fully occupied during such year; provided, however, that in no event shall Landlord collect in total, from Tenant and all other tenants of the Building, an amount greater than one hundred percent (100%) of the actual Operating Cost during any year of the Term, To the extent items of Operating Cost are incurred for the Building and other buildings (including the other building in the Project), the costs of such items shall be reasonably allocated by Landlord between the Building and such other building(s). (c) Operating Cost shall not include (i) costs associated with the operation of the parking garage forming part of the Building (including the elevators serving the garage) or any validated parking, or with the development, construction, financing, sale or leasing of the Building, (ii) specific costs for tenant electricity (of the type specified in Section 3.01(b)) or for extra services (of the type specified in Section 3.02) that are separately billed to and paid by specific tenants leasing space in the Office Section of the Building, or those costs and expenses which are specifically attributable to and separately paid by the tenants in the Commercial Section of the Building and not provided to Tenant hereunder, (iii) that portion of the costs and expenses relating to the loading dock facilities and the General Common Areas which exclusively serves the Commercial Section of the Building or is paid by the tenants in the Commercial Section of the Building, (iv) compensation (including salaries, wages, fringe benefits, profit-sharing, bonuses and other employee benefit plans) paid to any executives or principals of Landlord above the grade of senior property manager (other than costs of such personnel who actually perform services that would have been included in Operating Cost hereunder if performed by a third party), (v) franchise, corporate excise or income taxes imposed on Landlord, (vi) capital expenses (whether for repairs, replacements or improvements), depreciation, amortization, or other non-cash items of the Building (except as provided in clause (a)(10) above), (vii) debt service or ground lease payments, other costs of financing or refinancing of any Mortgage, or costs incurred in connection with any other financing, sale, or syndication of the Building or any interest therein, or in the defense of Landlord’s title thereto, (viii) advertising costs, promotional expenses, signs, brokerage commissions, tenant improvement allowances, costs of design or construction of tenant improvements, moving expenses, attorneys’ fees and other expenses incurred in marketing tenant spaces, negotiating leases with current or prospective tenants of the Building or preparing such tenants’ spaces for occupancy, (ix) costs of capital items, except as expressly included above in clause (10) in Operating Cost, (x) costs for which Landlord is reimbursed under insurance policies, warranties, or otherwise by building service contractors or other third parties (including other tenants for separately reimbursable charges, such as overtime HVAC or special services), but not for Operating Cost charges, (xi) penalties, fines, or interest that Landlord is obligated to pay by reason of a failure by Landlord to comply with applicable legal requirements or to timely pay Impositions, utility bills or similar third party payments of Operating Cost; (xii) the cost of services provided to Landlord by any affiliate or subsidiary of Landlord, to the extent such costs exceed the costs that would have been paid by Landlord in an arm’s length transaction, provided that this clause shall not be construed to affect the management fee charged under Section 2.04(a)(6) above; (xiii) charitable contributions or similar donations, (xiv) costs of purchasing works of art, (xv) bad debt or rental loss or any reserves, (xvi) costs of organizing or maintaining Landlord as an entity, such as trustees’ fees, annual fees, partnership expenses, and legal and accounting fees in organizing or maintaining Landlord as an entity, (xvii) costs of services provided to other tenants and not to Tenant, (xviii) costs of assessment or remediation of specific releases or spills of hazardous materials in the Building, other than those caused by Tenant or any Tenant Party (which may be separately chargeable to Tenant) or incurred in the ordinary course of owning, operating, and maintaining a first-class mixed-use high-rise building in downtown Boston (e.g., periodic air quality testing or the handling or disposal of cleaning materials or other materials used in mechanical equipment or in providing building services, all of which are includable in Operating Cost); or (xix) costs directly resulting from the ascertained negligence or willful misconduct of Landlord or its employees, agents, or contractors or other tenants, (xx) costs directly resulting from the ascertained negligence or willful misconduct of Landlord or its employees, agents, or contractors or other tenants, or (xxi) costs directly resulting from the violation by any tenant of the Building of its lease obligations, to the extent not reimbursed by such party and not otherwise excluded hereunder, (xxii) damages, penalties, fines, or interest that Landlord is obligated to pay by reason of failure by Landlord to comply with applicable law or its lease obligations; (xxiii) taxes (other than sales or use taxes in connection with Building services, operations or repairs) imposed on Landlord, or (xxiv) costs of repairs or restoration due to casualty or condemnation affecting all or part of the Building, except as expressly included above in clause (8) in Operating Costs.
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Samples: Lease Agreement (Rhythm Pharmaceuticals, Inc.), Lease Agreement (Rhythm Pharmaceuticals, Inc.)
Operating Cost. (a) Operating Cost shall mean mean, without duplication, all expenses and costs (but not specific costs which are separately billed to and paid by particular tenants of the Project) of every kind and nature which Landlord shall pay or become obligated to pay because of or in connection with the management, ownership, maintenance, repair, preservation or and operation of the Building Project and its supporting facilities directly servicing the Project (determined in accordance with generally accepted accounting principles, consistently appliedincluding pursuant to the Lobby Easement) including, but not limited to to, the following:
(1) Expenses of the operationWages, maintenance and security of the Building, including compensation in the form of wages, salaries, and other compensation and benefits (including payroll taxes, federal, state and local unemployment taxes and social security taxes, insurance, welfare and retirement benefits, salaries and related expenses and benefits of all on-site and off-site employees [and personnel engaged in the operation, maintenance, repair and security of the Project, to the extent involved in such charges are directly allocable to services rendered by the management, maintenance employees and operation personnel for the benefit of the Building]Project (excluding such sums, reasonably pro-rated if any, paid to reflect personnel employed by subsidiaries or affiliates of Landlord to the extent that the wages, salaries or benefits materially exceed the amounts normally payable for similar services provided for under similar circumstances (taking into account the Building market factors in effect on the date any relevant contracts were negotiated) in comparable buildings within the geographic area in which the Project is located, and other building(s));in all events excluding executives’ salaries.
(2) Cost for Reasonable costs of Landlord’s office and property management office operation for the Building, including the actual cost (or, in the absence Building not to exceed 1,000 rentable square feet of a specific rent charge, the fair market rent) of any space occupied by entities providing management or building services for the Building, reasonably prorated between the Building and the building at 000 Xxxxxxxx Xxxxxx;space.
(3) All tools, normal and customary supplies, materials materials, equipment and equipment rental used in the operation operation, maintenance, repair and maintenance preservation of the Building (reasonably pro-rated to reflect services provided for the Building and other building(s)), including rental fees for the same, if such items are not purchased and amortized pursuant to (10) below;Project.
(4) Utilities, including electricity, water, sewer, gas, communicationsewer and power, telephone, communication and cable television facilities, trash disposal, lighting, heating, lighting, air conditioning and ventilating, ventilating and the operation of the cooling tower for the entire Building;Project (excluding any costs directly charged to Tenant or other tenants in the Project).
(5) All maintenance, janitorial and service agreements and costs for the BuildingProject and the equipment therein, including, without limitation, alarm and/or security service, landscaping, window cleaning, escalator and elevator maintenance, rubbish and snow removal, pest control, equipment maintenance or servicing or maintenance or cleaning for sidewalks, landscaping, Building exterior, roof exterior and service areas;.
(6) A management fee in connection with the operation of the Building; provided, however, that the share of such cost included in Tenant’s Operating Cost under this Lease shall be separately calculated and equal three percent (3%) of all Rent under this Lease, excluding such fee, and that such share shall be in lieu of Tenant’s Proportionate Share of the management fee for the entire Building;
(7) Legal and accounting services for the BuildingProject, including the costs of audits by certified public accountants; provided, but excluding however, that legal expenses shall not include the cost of lease negotiations, termination of leases, extension of leases, negotiation of estoppels and subordination agreements, or legal costs (and related costs and expenses) incurred in disputes with proceedings by or proceedings against any specific tenant or in connection with the development, financing, sale and/or leasing of the Building or any part thereof;tenant.
(8) 7) All insurance premiums costs, including, but not limited to, the cost of property and costs liability coverage and rental income and earthquake insurance applicable to the Building Project and Landlord’s personal property used in connection therewith, as well as costs (including but not limited tocapital costs, if applicable) of repairing an insured casualty to the premiums and cost extent of fire, casualty and liability coverage and rental abatement and business interruption the commercially reasonable deductible amounts applicable to such insurance and unreimbursed costs incurred by Landlord that are (subject to an insurance deductible;the limits set forth in the final sentence of Section 4.3(b) below) and costs of repair of uninsured casualty (subject to the limits set forth in the final sentence of Section 4.3(b) below).
(9) 8) Repairs, replacements and general maintenance (except for repairs paid by the proceeds of insurance or by Tenant or other tenants of the Project or third parties, and alterations attributable solely to tenants of the Building Project other than Tenant);.
(9) Operating expenses and costs incurred in connection with the parking garage affiliated with the Building (except those not directly attributable to parking for Building occupants (e.g., special event parking).
(10) Amortization (together with reasonable actual or imputed financing charges) over its useful life as reasonably determined by Landlord of (or such shorter pay-back period as may be reasonably estimated by Landlord for cost-savings itemsA) of capital improvements made to the Building that (i) Project subsequent to the date of this Lease which are reasonably designed to maintain the first-class quality of the Building’s operations consistent with Comparable Buildings in Downtown Boston (excluding major lobby reconstruction or other major improvement work in the Building) or to reduce energy consumption or improve the operating efficiency of the BuildingProject (provided, however, that, the costs thereof may only be included in Operating Costs if, at the time such costs were incurred, Landlord reasonably estimated that the annual saving in Operating Costs that would result from such expenditure would be equal to or exceed the annual amortized amount of the cost to be included in Operating Costs pursuant to this item (ii10))or (B) capital improvements made to the Project subsequent to the date of this Lease which may be required by governmental authorities authorities, including those improvements required for energy conservation and for the benefit of individuals with disabilities (provided that such amortization period shall be within the range used to amortize such costs by landlords of other than a failure first-class office buildings in the geographic area of the Building Premises in accordance with generally accepted property management practices). Notwithstanding the foregoing, the amortization period used with respect to comply with any law(B) above shall not be less than the lesser of (i) one year multiplied by the amount obtained by dividing the cost of such capital improvement by $50,000 and (ii) the reasonable useful life of such capital improvement.
(11) All property management fees, ordinance, order, or other governmental rule or regulation in effect and interpreted not to apply to the Property as exceed four percent (4%) of gross rents of the date hereof) or any insurer of the Building consistent with Comparable Buildings in Downtown Boston, or (iii) constitute equipment of a capital nature contemplated in (3) above (such as, for example, snow blowers, vacuums and sweepers), which in Landlord’s reasonable judgment, is ultimately less costly to purchase than to rentProject.
(b) Notwithstanding any other provision herein the provisions of Section 4.3(a) above to the contrary, in the event that the Building is not fully occupied during any year of the Term, an adjustment shall be made in computing Operating Cost for such year so that Operating Cost shall exclude (i) costs arising from the violation of any applicable law by Landlord, any other occupant of the Project, or their respective agents, employees or contractors, except to the extent such costs reflect costs that would have been incurred by Landlord absent such violation, (ii) the capital cost of repairs and other work occasioned by insured casualty, except for the deductible amounts set forth in Section 4.3(a)(7) above, (iii) any repairs of a capital nature necessary to cure defects in the initial construction of the Project and costs of compliance with applicable building codes to the extent the Project does not comply with such building codes as of the date of this Lease and such compliance is required as of the date of this Lease, (iv) the cost (including permits, licenses and inspection fees) of decorating, improving for tenant occupancy, renovating, painting or redecorating portions of the Project to be computed demised to tenants, (v) costs, fees and expenses incurred in connection with lease negotiations or lease disputes with current or prospective Project tenants, (vi) penalties or other costs incurred due to a violation by Landlord, as though determined by written admission, stipulation, final judgment or arbitration award, of any of the Building had terms and conditions of this Lease or any other lease relating to the Project except to the extent such costs reflect costs that would have been fully occupied during incurred by Landlord absent such year; violation, (vii) increases in insurance costs directly attributable to the activities of another tenant in the Project, (viii) the cost of any Hazardous Material abatement or removal activities, provided, however, that in no event shall Operating Cost may include minor costs attributable to those actions taken by Landlord collect in totalto comply with any laws, from Tenant rules and all other tenants regulations incidental to with the ordinary operation and maintenance of the BuildingProject, an amount greater than one hundred percent (100%) including costs incurred in removing limited amounts of the actual Operating Cost during any year of the Term, To the extent items of Operating Cost are incurred for Hazardous Materials from the Building when such removal is directly related to such ordinary maintenance and operation, (ix) interest, charges, and fees incurred on debt, other than as permitted under item (10) above, (x) costs to maintain the foundation, roof structure, exterior walls and other buildings (including the other building in the Project), the costs of such items shall be reasonably allocated by Landlord between the Building and such other building(s).
(c) Operating Cost shall not include (i) costs associated with the operation of the parking garage forming part of the Building (including the elevators serving the garage) or any validated parking, or with the development, construction, financing, sale or leasing structural components of the Building, (iixi) specific costs for tenant electricity (of the type specified in Section 3.01(b)) or for extra services (of the type specified in Section 3.02) that are separately billed to and paid by specific tenants leasing space in the Office Section of the Building, or those costs and expenses which are specifically attributable to and separately paid by the tenants in the Commercial Section of the Building and not provided to Tenant hereunder, (iii) that portion of the costs and expenses relating to the loading dock facilities and the General Common Areas which exclusively serves the Commercial Section of the Building or is paid by the tenants in the Commercial Section of the Building, (iv) compensation (including salaries, wages, fringe benefits, profitco-sharing, bonuses and other employee benefit plans) paid to any executives or principals of Landlord above the grade of senior property manager (other than costs of such personnel who actually perform services that would have been included in Operating Cost hereunder if performed by a third party), (v) franchise, corporate excise or income taxes imposed on Landlord, (vi) capital expenses (whether for repairs, replacements or improvements), depreciation, amortization, or other non-cash items of the Building (except as provided in clause (a)(10) above), (vii) debt service or ground lease insurance payments, other costs of financing or refinancing of any Mortgage, or costs incurred in connection with any other financing, sale, or syndication of the Building or any interest therein, or in the defense of Landlord’s title thereto, (viii) advertising costs, promotional expenses, signs, brokerage commissions, tenant improvement allowances, costs of design or construction of tenant improvements, moving expenses, attorneys’ fees and other expenses incurred in marketing tenant spaces, negotiating leases with current or prospective tenants of the Building or preparing such tenants’ spaces for occupancy, (ix) costs of capital items, except as expressly included above in clause (10) in Operating Cost, (x) costs for which Landlord is reimbursed under insurance policies, warranties, or otherwise by building service contractors or other third parties (including other tenants for separately reimbursable charges, such as overtime HVAC or special services), but not for Operating Cost charges, (xi) penalties, fines, or interest that Landlord is obligated to pay by reason of a failure by Landlord to comply with applicable legal requirements or to timely pay Impositions, utility bills or similar third party payments of Operating Cost; (xii) the cost of services provided any repairs, improvements, alterations or equipment which would be properly classified as capital expenditures according to Landlord by generally accepted accounting principles and practices (except for any affiliate or subsidiary capital expenditures expressly included in Operating Cost pursuant to items (7) and (10) of LandlordSection 4.2(a) above). Tenant’s Proportionate Share of capital expenditures included in Operating Cost pursuant to item (7) of Section 4.2 above, if greater than $200,000 for any casualty, shall be deemed limited to the extent $200,000 for such costs exceed the costs that would have been paid by Landlord casualty, and Tenant’s Proportionate Share of capital expenditures included in an arm’s length transactionOperating Cost pursuant to item (10)(B) of Section 4.2 above, if greater than $200,000 for any capital improvement project, shall be deemed limited to $200,000 for such capital improvement project, provided that this clause in either such event such $200,000 cap shall not be construed increased to affect reflect the management fee charged under Section 2.04(a)(6) above; (xiii) charitable contributions or similar donations, (xiv) costs of purchasing works of art, (xv) bad debt or rental loss or any reserves, (xvi) costs of organizing or maintaining Landlord as an entity, such as trustees’ fees, annual fees, partnership expenses, and legal and accounting fees in organizing or maintaining Landlord as an entity, (xvii) costs of services provided to other tenants and not to Tenant, (xviii) costs of assessment or remediation of specific releases or spills of hazardous materials percentage increase in the Building, other than those caused by Tenant or any Tenant Party (which may be separately chargeable to Tenant) or incurred in the ordinary course of owning, operating, and maintaining a first-class mixed-use high-rise building in downtown Boston (e.g., periodic air quality testing or the handling or disposal of cleaning materials or other materials used in mechanical equipment or in providing building services, all of which are includable in Operating Cost); or (xix) costs directly resulting CPI from the ascertained negligence or willful misconduct of Landlord or its employees, agents, or contractors or other tenants, (xx) costs directly resulting from the ascertained negligence or willful misconduct of Landlord or its employees, agents, or contractors or other tenants, or (xxi) costs directly resulting from the violation by any tenant of the Building of its lease obligations, CPI Base to the extent not reimbursed by CPI in effect at the time of such party and not otherwise excluded hereunder, (xxii) damages, penalties, fines, or interest that Landlord is obligated to pay by reason of failure by Landlord to comply with applicable law or its lease obligations; (xxiii) taxes (other than sales or use taxes in connection with Building services, operations or repairs) imposed on Landlord, or (xxiv) costs of repairs or restoration due to casualty or condemnation affecting all or part of the Building, except as expressly included above in clause (8) in Operating Costscapital expenditure.
Appears in 1 contract
Operating Cost. (a) Operating Cost shall mean all expenses and costs of every kind and nature which Landlord shall pay or become obligated to pay because of or in connection with the management, maintenance, preservation or operation of the Building (determined in accordance with generally accepted accounting principles, consistently applied) including, but not limited to the following:
(1) Expenses of the operation, maintenance and security of the Building, including compensation in the form of wages, salaries, and other compensation and benefits (including payroll taxes, federal, state and local unemployment taxes and social security taxes), insurance, welfare and retirement benefits, and related expenses and benefits of all on-site and off-site employees [(to the extent involved directly in the managementoperation, maintenance maintenance, management and operation preservation of the Building], reasonably pro-rated to reflect services provided for the Building and other building(s));
(2) Cost incurred by Landlord in Greater Boston for Landlord’s office and management office operation for the Building, including the actual cost (or, in the absence of a specific rent charge, the fair market rent) of any space occupied by entities providing management or building services for the Building, reasonably prorated between the Building and the building at 000 Xxxxxxxx Xxxxxx;
(3) All tools, supplies, materials and equipment used in the operation and maintenance of the Building (reasonably pro-rated to reflect services provided for the Building and other building(s))Building, including rental fees for the same, if such items are not purchased and amortized amortized, pursuant to (10) below;
(4) Utilities, including electricity, waterwater and power, sewer, gas, communication, heating, lighting, air conditioning and ventilating, for ventilating the entire Building;
(5) All maintenance, janitorial and service agreements and or costs for the Building, including, without limitation, alarm service, landscaping, window cleaning, painting and decorating Common Areas, escalator and elevator maintenance, rubbish and snow removal, pest control, equipment maintenance or servicing or maintenance or cleaning for sidewalks, Building exterior, roof and service areas, and all other costs incurred by Landlord in providing the services and complying with Landlord’s obligations under Section 3.01 below;
(6) A management fee in connection with the operation of the Building; provided, however, that the share of such cost included in Tenant’s Operating Cost under this Lease shall share to be separately calculated and equal three percent (3%) of all Rent under this LeaseRent, excluding such fee, and that such share shall be in lieu of Tenant’s Proportionate Share of the management fee for the entire Building;
(7) Legal and accounting services for the Building, including the costs of audits by certified public accountants; provided, but excluding however, that the legal expenses shall not include legal costs (and related costs and expenses) incurred in disputes with proceedings by or proceedings against any specific tenant or legal costs incurred in connection with the developmentleasing, financing, sale development and/or leasing construction of the Building or any part thereofBuilding;
(8) All insurance premiums and costs applicable to the Building and Landlord’s personal property used in connection therewith, including but not limited to, the premiums and cost of fire, casualty and liability coverage and rental abatement and or business interruption insurance and unreimbursed costs incurred by Landlord that are subject to an insurance deductibleset forth herein;
(9) RepairsRepairs (including, replacements where necessary, replacements) and general maintenance (except for repairs paid by proceeds of insurance or by Tenant or other third parties, and alterations attributable solely to tenants of the Building other than Tenant)maintenance;
(10) Amortization (together with reasonable actual or imputed financing charges) over its useful life as reasonably determined by Landlord (or such shorter pay-back period as may be reasonably estimated by Landlord for cost-savings items) of capital improvements made to the Building that subsequent to the Term Commencement Date of the Original Lease which (i) are reasonably designed to maintain the first-class quality of the Building’s operations consistent with Comparable Buildings in Downtown Boston (excluding major lobby reconstruction or other major improvement work in the Building) or to reduce energy consumption or and will improve the operating efficiency of the Building, (ii) may be are required by governmental authorities (other than those which, prior to initial occupancy, were required by such governmental authorities as a failure condition of the Building such occupancy) or are designed to comply with any law, ordinance, order, or other governmental rule or regulation in effect and interpreted to apply to the Property as of the date hereof) or any insurer of the Building consistent with Comparable Buildings in Downtown Boston, applicable laws or (iii) constitute equipment of a capital nature contemplated in (3) above (such as, for example, snow blowers, vacuums and sweepers), which in Landlord’s reasonable judgment, is ultimately less costly to purchase than then to rent; provided, however, that the amount of such amortization for items in (i) above shall not exceed in any year the amount of costs reasonably determined by Landlord to have been saved by the expenditure either through direct reduction or minimization of increases which would have otherwise occurred.
(b) Notwithstanding any other provision herein to the contrary, in the event that the Building is not fully occupied during any year of the Term, an adjustment shall be made in computing Operating Cost for such year so that Operating Cost shall be computed as though the Office Section of the Building had been fully occupied during such year; provided, however, that in no event shall Landlord collect in total, from Tenant and all other tenants of the Building, an amount greater than one hundred percent (100%) of the actual Operating Cost during any year of the Term, To the extent items of Operating Cost are incurred for the Building and other buildings (including the other building in the Project), the costs of such items shall be reasonably allocated by Landlord between the Building and such other building(s).
(c) Notwithstanding the foregoing, Operating Cost shall not include (i) the costs or expenses incurred by Landlord in the initial construction and development of the Building; (ii) payments of principal, interest or other charges on any Mortgage; (iii) costs of financing or refinancing of any Mortgage or costs incurred in connection with any other financing, sale, or syndication of the Building; (iv) any rent paid on any ground or underlying lease of the Land; (v) taxes (other than Impositions) imposed on Landlord; (vi) costs relating to maintaining Landlord’s existence as a corporation, limited partnership or other entity; (vii) costs of leasing other rentable areas in the Building, including advertising, leasing commissions, public relations expenses, tenant improvement allowances, moving expenses, and legal expenses related to lease negotiations and enforcement of leases; (viii) costs of leasehold improvements (including interior painting and decorations) in other tenants’ space; (ix) the incremental increases in premiums for insurance required to be carried by Landlord pursuant to this Lease when such increases are caused by any special or hazardous use of the Building by Landlord or other tenants, provided that office, retail, parking, restaurant, and ancillary uses customarily associated with a mixed office and retail project shall not be considered special or hazardous; (x) costs paid directly by individual tenants to suppliers, including tenant electricity and telephone costs; (xi) costs incurred by Landlord relating to any violation by Landlord or any other tenant of the terms and conditions of any lease of space to the extent that such costs would not otherwise have been incurred by Landlord but for such breach; (xii) the cost of making installations, alterations or replacements to the Building or Building equipment that under generally accepted accounting principles are properly classified as capital expenditures, except to the extent the amortized costs may be charged under Section 2.04(a)(10) above; (xiii) depreciation; (xiv) reserves for bad debts, repairs or capital improvements; (xv) the cost of any items for which Landlord is reimbursed by insurance, condemnation, refund, rebate or otherwise (which Landlord shall use commercially reasonable efforts to obtain), provided that the reasonable costs incurred in such recovery and any uncollected deductible shall be included in Operating Cost; (xvi) any expenses for repairs or maintenance to the extent recovered separately under warranties, guarantees and service contracts (which Landlord shall use commercially reasonable efforts to enforce, provided that the reasonable costs incurred in such enforcement shall be included in Operating Cost); (xvii) damages, penalties or fines that Landlord is obligated to pay by reason of Landlord’s violation of applicable law or failure to comply with its lease obligations; (xviii) contributions to charitable organizations; (xix) compensation paid to any executives or principals of Landlord above the grade of senior property manager, except that such costs shall be included in Operating Cost to the extent such person actually performs services that are attributable to actual Building operations or that would have been performed by an outside consultant and included in Operating Cost hereunder; (xx) costs associated with the operation repair, maintenance and management of the parking garage forming part of the Building (including the elevators serving the garage) or any validated parking, or with the development, construction, financing, sale or leasing of the Building), (iixxi) specific costs for tenant electricity (of the type specified in Section 3.01(b)) or for extra services (of the type specified in Section 3.02) that are separately billed to and or paid by specific tenants leasing space in the Office Section of the Building, or those costs and expenses which are specifically attributable to and or separately paid by the tenants in the Commercial Section of the Building and not provided to Tenant hereunderBuilding, (iiixxii) specific costs attributable to any services not available to Tenant, (xxiii) that portion of the costs and expenses relating to the loading dock facilities and the General Common Areas which exclusively serves the Commercial Section of the Building or that is paid by the tenants in the Commercial Section of the Building; (xxiv) the cost of installing, (iv) compensation (including salariesoperating, wages, fringe benefits, profit-sharing, bonuses and other employee benefit plans) paid to maintaining any executives or principals of Landlord above the grade of senior property manager (other than costs of such personnel who actually perform services that would have been included in Operating Cost hereunder if performed by a third party), (v) franchise, corporate excise or income taxes imposed on Landlord, (vi) capital expenses (whether for repairs, replacements or improvements), depreciation, amortization, retail concession or other non-cash items of the special Building (except as provided in clause (a)(10) above), (vii) debt service or ground lease payments, other costs of financing or refinancing of any Mortgage, or costs incurred in connection with any other financing, sale, or syndication of the Building or any interest therein, or in the defense of Landlord’s title thereto, (viii) advertising costs, promotional expenses, signs, brokerage commissions, tenant improvement allowances, costs of design or construction of tenant improvements, moving expenses, attorneys’ fees and other expenses incurred in marketing tenant spaces, negotiating leases with current or prospective tenants of the Building or preparing such tenants’ spaces for occupancy, (ix) costs of capital items, except as expressly included above in clause (10) in Operating Cost, (x) costs for which Landlord is reimbursed under insurance policies, warranties, or otherwise by building service contractors or other third parties (including other tenants for separately reimbursable chargesfacility, such as overtime HVAC or special services)an observatory, but not for Operating Cost chargesbroadcasting facility, (xi) penalties, finesfitness club, or interest that Landlord is obligated to pay by reason of a failure by Landlord to comply with applicable legal requirements or to timely pay Impositions, utility bills or similar third party payments of Operating Costdining facility; (xiixxv) the cost of services or materials provided to Landlord by any affiliate or subsidiary of Landlord, to the extent such costs exceed the costs that would have been paid by Landlord in an arm’s length transaction, provided that this clause shall not be construed to affect the management fee charged under Section 2.04(a)(6) above; or (xiiixxvi) charitable contributions or similar donationsthe cost of acquiring sculptures, (xiv) costs of purchasing paintings and other works of art, (xv) bad debt or rental loss or any reserves, (xvi) costs of organizing or maintaining Landlord as an entity, such as trustees’ fees, annual fees, partnership expenses, and legal and accounting fees in organizing or maintaining Landlord as an entity, (xvii) costs of services provided to other tenants and not to Tenant, (xviii) costs of assessment or remediation of specific releases or spills of hazardous materials in the Building, other than those caused by Tenant or any Tenant Party (which may be separately chargeable to Tenant) or incurred in the ordinary course of owning, operating, and maintaining a first-class mixed-use high-rise building in downtown Boston (e.g., periodic air quality testing or the handling or disposal of cleaning materials or other materials used in mechanical equipment or in providing building services, all of which are includable in Operating Cost); or (xix) costs directly resulting from the ascertained negligence or willful misconduct of Landlord or its employees, agents, or contractors or other tenants, (xx) costs directly resulting from the ascertained negligence or willful misconduct of Landlord or its employees, agents, or contractors or other tenants, or (xxi) costs directly resulting from the violation by any tenant of the Building of its lease obligations, to the extent not reimbursed by such party and not otherwise excluded hereunder, (xxii) damages, penalties, fines, or interest that Landlord is obligated to pay by reason of failure by Landlord to comply with applicable law or its lease obligations; (xxiii) taxes (other than sales or use taxes in connection with Building services, operations or repairs) imposed on Landlord, or (xxiv) costs of repairs or restoration due to casualty or condemnation affecting all or part of the Building, except as expressly included above in clause (8) in Operating Costs.
Appears in 1 contract
Operating Cost. (a) Subject to the exclusions set forth in Section 2.04(c) below, Operating Cost shall mean all expenses and costs of every kind and nature which Landlord shall pay or become obligated to pay because of or in connection with the management, maintenance, preservation or operation of the Building (determined in accordance with generally accepted accounting principles, consistently applied) including, but not limited to the following:
(1) Expenses of the operation, maintenance and security of the Building, including compensation in the form of wages, salaries, and other compensation and benefits (including payroll taxes, federal, state and local unemployment taxes and social security taxes, insurance, welfare and retirement benefits, and related expenses and benefits of all on-site and off-site employees [to the extent involved in the management, maintenance and operation of the Building]employees, reasonably pro-rated to reflect services provided for the Building and other building(s));.
(2) Cost for Landlord’s office and management office operation for the Building, including the actual cost (or, in the absence of a specific rent chargeif not paid, the imputed fair market rent) of any space occupied by entities providing management or building services for the Building, which shall be reasonably prorated allocated between the Building and any other buildings served by the building at 000 Xxxxxxxx Xxxxxxpersonnel occupying such space;
(3) All tools, supplies, materials and equipment used in the operation and maintenance of the Building (reasonably pro-rated to reflect services provided for the Building and other building(s))Building, including rental fees for the same, if such items are not purchased and amortized pursuant to (10) below;
(4) Utilities, including electricity, water, sewer, gas, communication, heating, lighting, air conditioning and ventilating, for the entire BuildingBuilding (subject to the exclusions set forth below for separately reimbursable tenant charges);
(5) All maintenance, janitorial and service agreements and costs for the Building, including, without limitation, alarm service, landscaping, window cleaning, escalator and elevator maintenance, rubbish and snow removal, pest control, equipment maintenance or servicing or maintenance or cleaning for sidewalks, Building exterior, roof and service areas;
(6) A management fee in connection with the operation of the Building; provided, however, that the Tenant’s share of such cost included in Tenant’s Operating Cost under this Lease shall be separately calculated and equal three percent (3%) of all Rent under this Lease, excluding such fee, and that such share shall be in lieu of Tenant’s Proportionate Share of the management fee for the entire Building;
(7) Legal and accounting services for the Building, including the costs of audits by certified public accountants, but excluding legal costs (and related costs and expenses) incurred in disputes with or proceedings against any specific tenant or in connection with the development, financing, sale and/or and leasing of the Building or any part thereofBuilding;
(8) All insurance premiums and costs applicable to the Building and Landlord’s personal property used in connection therewith, including but not limited to, the premiums and cost of fire, casualty and liability coverage and rental abatement and business interruption insurance and unreimbursed unreimbursable costs incurred by Landlord that are subject to an insurance deductible;
(9) Repairs, replacements and general maintenance (except for repairs paid covered by proceeds of insurance or reimbursable by Tenant or other third parties, and alterations attributable solely to tenants of the Building other than Tenant);
(10) Amortization (together with reasonable actual or imputed financing charges) over its useful life as reasonably determined by Landlord (or such shorter pay-back period as may be reasonably estimated by Landlord for cost-savings items) of capital improvements made to the Building that (i) are reasonably designed to maintain the first-class quality of the Building’s operations consistent with Comparable Buildings in Downtown Boston (excluding major lobby reconstruction or other major improvement work in the Building) or to reduce energy consumption or improve the quality or operating efficiency of the BuildingBuilding (by an amount reasonably projected by Landlord to equal or exceed the amortized costs of such improvements with respect to capital expenditures for operating efficiency), (ii) may be required by governmental authorities (other than a failure of the Building to comply with any law, ordinance, order, or other governmental rule or regulation law in effect and interpreted to apply to the Property as of the date hereof) or any insurer of the Building consistent with Comparable Buildings in Downtown BostonBuilding, or (iii) constitute equipment of a capital nature contemplated in (3) above (such as, for example, snow blowers, vacuums and sweepers), which in Landlord’s reasonable judgment, is ultimately less costly to purchase than to rent.
(b) Notwithstanding any other provision herein to the contrary, in the event that the Building is not fully occupied during any year of the Term, an adjustment shall be made in computing Operating Cost for such year so that the components of Operating Cost that vary with occupancy shall be computed as though extrapolated to equal the amount of such variable Operating Cost that would have been incurred if the Building had been fully occupied during such year; provided, however, that in no event shall Landlord collect in total, from Tenant and all other tenants of the Building, an amount greater than one hundred percent (100%) of any item of the actual Operating Cost during any year of the Term, To the extent items of Operating Cost are incurred for the Building and other buildings . For a simplified illustration (including the other building in the Projectwith rounded hypothetical numbers), if the costs of such items shall be reasonably allocated by Landlord between providing standard office tenant cleaning services had been $500,000 for 500,000 rentable square feet of occupied office tenant space during an entire year, the Office Section of the Building had contained 700,000 rentable square feet, and the incremental cost of providing such other building(s)cleaning services for the balance of the Office Section, if occupied, would have been at the same per square foot rate, then for purposes of computing Operating Cost for such year the amount of such variable office tenant cleaning services included in Operating Cost would be extrapolated to $700,000.
(c) Notwithstanding the foregoing, Operating Cost shall not include (i) costs associated with the operation of the parking garage forming part of the Building (including the elevators serving the garage) or any validated parking), or with the development, construction, financing, sale or leasing (including the procurement of tenants) of the BuildingBuilding (including, without limitation, attorneys’ fees in connection therewith); (ii) specific costs for tenant electricity (of the type specified in Section 3.01(b)) or for extra services (of the type specified in Section 3.02) that are separately billed billable to and paid payable by specific other tenants leasing space in the Office Section of the Building, or (iii) those costs and expenses which are specifically properly attributable to and or separately paid payable by the tenants in the Commercial Section of the Building and not provided to Tenant hereunder, Building; (iiiiv) that portion of the costs and expenses relating to the loading dock facilities and the General Common Areas which exclusively serves the Commercial Section of the Building or is paid by the tenants in the Commercial Section of the Building, ; (ivv) compensation (including salaries, wages, fringe benefits, profit-sharing, bonuses and other employee benefit plans) paid to any executives or principals of Landlord above the grade of senior property manager (other than manager, except that such costs of shall be included in Operating Cost to the extent such personnel who person actually perform performs services that are attributable to actual Building operations or that would have been performed by an outside consultant and included in Operating Cost hereunder if performed by a third party), (v) franchise, corporate excise or income taxes imposed on Landlord, hereunder; (vi) capital expenses (whether for repairs, replacements or improvements), depreciation, amortization, or Impositions and other non-cash items of the Building (except taxes excluded from Impositions as provided set forth in clause (a)(10) above), Section 2.05 below; (vii) depreciation, and any rent paid on any ground or underlying lease of the Land; (viii) debt service or ground lease payments, other costs of financing or refinancing of any Mortgage, or costs incurred in connection with any other financing, sale, or syndication of the Building or any interest therein, or in the defense of Landlord’s title thereto, ; (viiiix) advertising costs, promotional expenses, signs, brokerage commissions, tenant improvement allowances, costs of design or construction of tenant improvements, moving expenses, attorneys’ fees fees, and other expenses incurred in marketing tenant spaces, negotiating leases (or assignments, subleases or amendments thereof) with current or prospective tenants of the Building or preparing such tenants’ spaces for occupancy, ; (ixx) costs of capital items, except as expressly included above in clause (10a)(10) in Operating Cost, ; (xxi) costs for which Landlord is reimbursed under insurance policies, warranties, policies or otherwise by building service contractors or other third parties (including other tenants for separately reimbursable charges, such as overtime HVAC or special services), but not for Operating Cost charges, (xi) penalties, fines, or interest that Landlord is obligated to pay by reason of a failure by Landlord to comply with applicable legal requirements or to timely pay Impositions, utility bills or similar third party payments of Operating Cost; (xii) the cost incremental additional costs of services provided any work or service performed for any other tenant to Landlord by any affiliate a materially greater extent or subsidiary of Landlord, in a materially more favorable manner than that furnished to the extent such costs exceed the costs that would have been paid by Landlord in an arm’s length transaction, provided that this clause shall not be construed to affect the management fee charged under Section 2.04(a)(6) aboveTenant; (xiii) charitable contributions or similar donations, (xiv) costs of purchasing works of art, (xv) bad debt or rental loss or any reserves, (xvi) costs of organizing or maintaining Landlord as an entity, such as trustees’ fees, annual fees, partnership expenses, and legal and accounting fees in organizing or maintaining Landlord as an entity, (xvii) costs of services provided to other tenants and not to Tenant, (xviii) costs of assessment or remediation of specific releases or spills of hazardous materials in the Building, other than those caused by Tenant or any Tenant Party (which may be separately chargeable to Tenant) or incurred in the ordinary course of owning, operating, and maintaining a first-class mixed-use high-rise building in downtown Boston (e.g., periodic air quality testing or the handling or disposal of cleaning materials or other materials used in mechanical equipment or in providing building services, all of which are includable in Operating Cost); or (xix) costs directly resulting from the ascertained negligence or willful misconduct of Landlord or its employees, agents, or contractors or other tenants, (xx) costs directly resulting from the ascertained negligence or willful misconduct of Landlord or its employees, agents, or contractors or other tenants, or (xxi) costs directly resulting from the violation by any tenant of the Building of its lease obligations, to the extent not reimbursed by such party and not otherwise excluded hereunder, (xxii) damages, penalties, fines, or interest that which Landlord is obligated to pay by reason of failure by Landlord to comply with applicable law or its lease obligations; (xxiiixiv) taxes charitable, civic and political contributions or similar donations, and (other than sales or use taxes in connection with Building services, operations or repairs) imposed on Landlord, or (xxivxv) costs of repairs or restoration due services provided to casualty or condemnation affecting all or part of the Building, except as expressly included above in clause (8) in Operating Costsother tenants and not to Tenant.
Appears in 1 contract
Samples: Lease (NewStar Financial, Inc.)
Operating Cost. (a) Except as expressly otherwise provided herein, Operating Cost shall mean all expenses and costs of every kind and nature which Landlord shall pay or become obligated to pay because of or in connection with the management, maintenance, preservation or operation of the Building (determined in accordance with generally accepted accounting principles, consistently applied) including, but not limited to the following:
(1) Expenses of the operation, maintenance and security of the Building, including compensation in the form of wages, salaries, and other compensation and benefits (including payroll taxes, federal, state and local unemployment taxes and social security taxes, insurance, welfare and retirement benefits, and related expenses and benefits of all on-site and off-site employees [to the extent involved in the management, maintenance and operation of the Building]employees, reasonably pro-rated to reflect services provided for the Building and other building(s));.
(2) Cost for Landlord’s office and management office operation for the Building, including the actual cost (or, in the absence of a specific rent chargeif not paid, the imputed fair market rent) of any space occupied by entities providing management or building services for the Building, which shall be reasonably prorated allocated between the Building and any other buildings served by the building at 000 Xxxxxxxx Xxxxxxpersonnel occupying such space;
(3) All tools, supplies, materials and equipment used in the operation and maintenance of the Building (reasonably pro-rated to reflect services provided for the Building and other building(s))Building, including rental fees for the same, if such items are not purchased and amortized pursuant to (10) below;
(4) Utilities, including electricity, water, sewer, gas, communication, heating, lighting, air conditioning and ventilating, for the entire BuildingBuilding (subject to the exclusions set forth below for separately reimbursable tenant charges);
(5) All maintenance, janitorial and service agreements and costs for the Building, including, without limitation, alarm service, landscaping, window cleaning, escalator and elevator maintenance, rubbish and snow removal, pest control, equipment maintenance or servicing or maintenance or cleaning for sidewalks, Building exterior, roof and service areas;
(6) A management fee in connection with the operation of the Building; provided, however, that the Tenant’s share of such cost included in Tenant’s Operating Cost under this Lease shall be separately calculated and equal three percent (3%) of all Rent under this Lease, excluding such fee, and that such share shall be in lieu of Tenant’s Proportionate Share of the management fee for the entire Building;
(7) Legal and accounting services for the Building, including the costs of audits by certified public accountants, but excluding legal costs (and related costs and expenses) incurred in disputes with or proceedings against any specific tenant or in connection with the development, financing, sale and/or and leasing of the Building or any part thereofBuilding;
(8) All insurance premiums and costs applicable to the Building and Landlord’s personal property used in connection therewith, including but not limited to, the premiums and cost of fire, casualty and liability coverage and rental abatement and business interruption insurance and unreimbursed unreimbursable costs incurred by Landlord that are subject to an insurance deductible;
(9) Repairs, replacements and general maintenance (except for repairs paid covered by proceeds of insurance or reimbursable by Tenant or other third parties, and alterations attributable solely to tenants of the Building other than Tenant);
(10) Amortization (together with reasonable actual or imputed financing charges) over its useful life as reasonably determined by Landlord (or such shorter pay-back period as may be reasonably estimated by Landlord for cost-savings items) of capital improvements made to the Building that (i) are reasonably designed to maintain the first-class quality of the Building’s operations consistent with Comparable Buildings in Downtown Boston (excluding major lobby reconstruction or other major improvement work in the Building) or to reduce energy consumption or improve the quality or operating efficiency of the BuildingBuilding (by an amount reasonably projected by Landlord to equal or exceed the amortized costs of such improvements with respect to capital expenditures for operating efficiency), (ii) may be required by governmental authorities (other than a failure of the Building to comply with any law, ordinance, order, or other governmental rule or regulation law in effect and interpreted to apply to the Property as of the date hereof) or any insurer of the Building consistent with Comparable Buildings in Downtown BostonBuilding, or (iii) constitute equipment of a capital nature contemplated in (3) above (such as, for example, snow blowers, vacuums and sweepers), which in Landlord’s reasonable judgment, is ultimately less costly to purchase than then to rent.
(b) Notwithstanding any other provision herein to the contrary, in the event that the Building is not fully occupied during any year of the Term, an adjustment shall be made in computing Operating Cost for such year so that Operating Cost shall be computed as though the Building had been fully occupied during such year; provided, however, that in no event shall Landlord collect in total, from Tenant and all other tenants of the Building, an amount greater than one hundred percent (100%) of any item of the actual Operating Cost during any year of the Term, To the extent items of Operating Cost are incurred for the Building and other buildings (including the other building in the Project), the costs of such items shall be reasonably allocated by Landlord between the Building and such other building(s).
(c) Notwithstanding the foregoing, Operating Cost shall not include (i) costs associated with the operation of the parking garage forming part of the Building (including the elevators serving the garage) or any validated parking), or with the development, construction, financing, sale or leasing (including the procurement of tenants) of the BuildingBuilding (including, without limitation, attorneys’ fees in connection therewith); (ii) specific costs for tenant electricity (of the type specified in Section 3.01(b)) or for extra services (of the type specified in Section 3.02) that are separately billed billable to and paid payable by specific other tenants leasing space in the Office Section of the Building, or those costs and expenses which are specifically properly attributable to and or separately paid payable by the tenants in the Commercial Section of the Building and not provided to Tenant hereunder, Building; (iii) that portion of the costs and expenses relating to the loading dock facilities and the General Common Areas which exclusively serves the Commercial Section of the Building or is paid by the tenants in the Commercial Section of the Building, ; (iv) compensation (including salaries, wages, fringe benefits, profit-sharing, bonuses and other employee benefit plans) paid to any executives or principals of Landlord above the grade of senior property manager (other than manager, except that such costs of shall be included in Operating Cost to the extent such personnel who person actually perform performs services that are attributable to actual Building operations or that would have been performed by an outside consultant and included in Operating Cost hereunder if performed by a third party), hereunder; (v) franchise, corporate excise or income taxes (other than Impositions) imposed on Landlord, ; (vi) capital expenses (whether for repairs, replacements or improvements), depreciation, amortization, or other non-cash items of the Building (except as provided in clause (a)(10) above), ; (vii) any rent paid on any ground or underlying lease of the Land; (viii) debt service or ground lease payments, other costs of financing or refinancing of any Mortgage, or costs incurred in connection with any other financing, sale, or syndication of the Building or any interest therein, or in the defense of Landlord’s title thereto, ; (viiiix) advertising costs, promotional expenses, signs, brokerage commissions, tenant improvement allowances, costs of design or construction of tenant improvements, moving expenses, attorneys’ fees fees, and other expenses incurred in marketing tenant spaces, negotiating leases (or assignments, subleases or amendments thereof) with current or prospective tenants of the Building or preparing such tenants’ spaces for occupancy, ; (ixx) costs of capital items, except as expressly included above in clause (10) in Operating Cost, ; (xxi) costs for which Landlord is reimbursed under insurance policies, warranties, policies or otherwise by building service contractors or other third parties (including other tenants for separately reimbursable charges, such as overtime HVAC or special services), but not for Operating Cost charges, (xi) penalties, fines, or interest that Landlord is obligated to pay by reason of a failure by Landlord to comply with applicable legal requirements or to timely pay Impositions, utility bills or similar third party payments of Operating Cost; (xii) the cost incremental additional costs of services provided any work or service performed for any other tenant to Landlord by any affiliate a materially greater extent or subsidiary of Landlord, in a materially more favorable manner than that furnished to the extent such costs exceed the costs that would have been paid by Landlord in an arm’s length transaction, provided that this clause shall not be construed to affect the management fee charged under Section 2.04(a)(6) aboveTenant; (xiii) charitable contributions or similar donations, (xiv) costs of purchasing works of art, (xv) bad debt or rental loss or any reserves, (xvi) costs of organizing or maintaining Landlord as an entity, such as trustees’ fees, annual fees, partnership expenses, and legal and accounting fees in organizing or maintaining Landlord as an entity, (xvii) costs of services provided to other tenants and not to Tenant, (xviii) costs of assessment or remediation of specific releases or spills of hazardous materials in the Building, other than those caused by Tenant or any Tenant Party (which may be separately chargeable to Tenant) or incurred in the ordinary course of owning, operating, and maintaining a first-class mixed-use high-rise building in downtown Boston (e.g., periodic air quality testing or the handling or disposal of cleaning materials or other materials used in mechanical equipment or in providing building services, all of which are includable in Operating Cost); or (xix) costs directly resulting from the ascertained negligence or willful misconduct of Landlord or its employees, agents, or contractors or other tenants, (xx) costs directly resulting from the ascertained negligence or willful misconduct of Landlord or its employees, agents, or contractors or other tenants, or (xxi) costs directly resulting from the violation by any tenant of the Building of its lease obligations, to the extent not reimbursed by such party and not otherwise excluded hereunder, (xxii) damages, penalties, fines, or interest that which Landlord is obligated to pay by reason of failure by Landlord to comply with applicable law or its lease obligations; (xxiiixiv) taxes charitable, civic and political contributions or similar donations, and (other than sales or use taxes in connection with Building services, operations or repairs) imposed on Landlord, or (xxivxv) costs of repairs or restoration due services provided to casualty or condemnation affecting all or part of the Building, except as expressly included above in clause (8) in Operating Costsother tenants and not to Tenant.
Appears in 1 contract
Samples: Lease (NewStar Financial, Inc.)
