Common use of Operating Expenses and Real Estate Taxes Clause in Contracts

Operating Expenses and Real Estate Taxes. Commencing on the first (1st) day of the second Fifth Floor Expansion Space Lease Year, Tenant shall pay (in accordance with the process generally set forth in Section 5.1(e) of the Lease), as additional rent for the Fifth Floor Expansion Space, (i) Tenant’s proportionate share (with respect to the Fifth Floor Expansion Space only) of the amount by which Operating Expenses incurred by Landlord for each calendar year falling entirely or partly within the Fifth Floor Expansion Space Lease Term exceed the Fifth Floor Expansion Space Base Year Operating Expenses (hereinafter defined) incurred by Landlord during the twelve (12) month period commencing January 1, 2009, and ending December 31, 2009 (the “Fifth Floor Expansion Space Base Year”), and (ii) Tenant’s proportionate share (with respect to the Fifth Floor Expansion Space only) of the amount by which Real Estate Taxes for each calendar year falling entirely or partly within the Fifth Floor Expansion Space Lease Term exceed the Fifth Floor Expansion Space Base Year Real Estate Taxes (hereinafter defined) incurred by Landlord during the Fifth Floor Expansion Space Base Year. For the purpose of this Second Amendment, the term “Fifth Floor Expansion Space Base Year Operating Expenses” means the Operating expenses incurred by Landlord during

Operating Expenses and Real Estate Taxes. Commencing (a) From and after January 1, 2005 and continuing until the Second Phase Period Expiration Date, Subtenant shall pay to Sublessor as Additional Rent, in advance, without demand and without any setoff or deduction, the amount (“Expense Adjustment Amount”) by which the total of the Real Estate Taxes in a Lease Year (as such term is defined in Paragraph 3(a) of the Main Lease) and Operating Expenses (as such term is defined in Paragraph 3(a) of the Main Lease) in a Lease Year exceeds the total of Real Estate Taxes and Operating Expenses for the Base Year, respectively. The Expense Adjustment Amount with respect to each Lease Year shall be paid in equal monthly installments, in advance, on the first day of each month during such Lease Year in an amount estimated from time to time by Sublessor and communicated by written notice to Subtenant, together with the basis for such estimation. In the event that said estimate is delivered to Subtenant after the first day of January of the applicable Lease Year, said amount, so estimated, shall be payable as Additional Rent, in equal monthly installments, in advance, on the first day of each month over the balance of such Lease Year, with the number of installments being equal to the number of full calendar months remaining in such Lease Year. Subtenant shall continue to pay such estimated amount of Expense Adjustment Amount for each subsequent Lease Year thereafter on or before the first (1st) day of each month in advance without demand and without any setoff or deduction, but the second Fifth Floor Expansion Space aforesaid estimated amount of the Expense Adjustment Amount may be adjusted and revised by Sublessor after the end of each calendar year during the Term on the basis of the projected Operating Expenses and Real Estate Taxes for the subject lease year, which projection shall be given to Subtenant. Notwithstanding anything herein to the contrary, in event that the total of the Real Estate Taxes in a Lease Year and Operating Expenses in a Lease Year are equal to or less than the total of Real Estate Taxes and Operating Expenses for the Base Year, the Expense Adjustment Amount for such Lease Year shall be zero and Subtenant shall not be entitled to any credit or refund whatsoever for such Lease Year on account of Operating Expenses and Real Estate Taxes, except as provided in subparagraph (b) below. (b) As promptly as practicable following the close of each Lease Year, Tenant but in any event within one hundred twenty (120) days after such close (provided that Sublessor receives from Overlandlord a statement as described in the first sentence of Section 3(c)(iv) of the Main Lease within ninety (90) days following the end of each Lease Year, as provided in Section 3(c)(iv) of the Main Lease). Sublessor shall prepare and deliver to Subtenant a statement (“Sublessor’s Statement”) specifying Operating Expenses and Real Estate Taxes for the applicable Lease Year. Sublessor shall compute the Expense Adjustment Amount for the applicable Lease Year based on Operating Expenses and Real Estate Taxes specified in Sublessor’s Statement and Sublessor shall deliver to Subtenant a statement of such amount based upon said Sublessor’s Statement. Subtenant shall pay any deficiency to Sublessor as shown by such statement within ten (10) days after receipt of such statement. If the total of the estimated monthly installments paid by Subtenant during any Lease Year exceeds the actual Expense Adjustment Amount due from Subtenant for such Lease Year, Sublessor shall, provided Subtenant is not in default hereunder, at Sublessor’s option, either (i) refund such excess or (ii) credit such excess against the most current monthly installment or installments due Sublessor for its estimate of the Expense Adjustment Amount for the next following Lease Year. A pro rata adjustment shall be made for a fractional Lease Year occurring during the term of this Sublease based upon the number of days of the term of this Sublease during said Lease Year as compared to three hundred sixty-five (365) days and all additional sums payable by Subtenant or credits due Subtenant as a result of the provisions of this paragraph shall be adjusted accordingly. (c) From time to time during any applicable Lease Year, Sublessor may reestimate, together with the basis for same, the amount of the Expense Adjustment Amount, and in such event Sublessor shall notify Subtenant, in writing, of such reestimate in the manner above set forth and fix monthly installments for the then remaining balance of such Lease Year in an amount sufficient to pay the reestimated amount over the balance of such Lease Year after giving credit for payments made by Subtenant on the previous estimate. (d) If, due to a future change in the method of taxation or in the taxing authority, any tax or excise on rents, gross receipts tax, or other tax, however described, is levied or assessed by the United States of America or the state in which the Office Park is located or any political subdivision thereof, against Sublessor in respect to the Fixed Rent, Additional Rent, or other charges reserved under this Sublease or as a result of Sublessor’s receipt of such rents or other charges accruing under this Sublease; the same shall be paid by Subtenant as Additional Rent hereunder; provided, however, Subtenant shall have no obligation to pay net income taxes of Sublessor. (e) Notwithstanding anything herein to the contrary, with respect to those certain non-infrastructure related operation and maintenance services set forth on Exhibit C attached hereto and made a part hereof, Sublessor agrees to reasonably cooperate with efforts to review operations and current service providers and other vendors to identity cost-saving opportunities by identifying such other service providers and vendors that may provide substantially similar services to those set forth on Exhibit C at a lower cost, provided that the replacement of the current vendor shall not adversely affect Sublessor’s maintenance and repair obligations under the Main Lease. Notwithstanding the foregoing, all contracts for operation, maintenance and repair for the Buildings and the Office Park shall be entered into by Sublessor, at Sublessor’s reasonable discretion, subject to the preceding sentence, and to Paragraph 36 below. (f) In the event that the assessed value of the Office Park increases by an amount exceeding ten percent (10%) (the “Tax Threshold”) in a tax year, and provided that such increase in the assessed value of the Office Park was not caused by or the result of Subtenant’s actions at the Office Park, and further provided that Subtenant is not then in default under this Sublease, Subtenant, no more frequently than once every three (3) years, shall have the right to submit a written request to Sublessor, which request shall be considered by Sublessor, with respect to the contest or appeal of the increase in the assessed value of the Office Park over the Tax Threshold. Sublessor, in Sublessor’s sole and absolute discretion, may elect to (i) file a tax appeal at any time, in accordance with the process generally requirements set forth in Section 5.1(e) of the Main Lease), as additional rent for the Fifth Floor Expansion Space, (i) Tenant’s proportionate share (with respect to the Fifth Floor Expansion Space only) of the amount by which Operating Expenses incurred by Landlord for each calendar year falling entirely or partly within the Fifth Floor Expansion Space Lease Term exceed the Fifth Floor Expansion Space Base Year Operating Expenses (hereinafter defined) incurred by Landlord during the twelve (12) month period commencing January 1, 2009, and ending December 31, 2009 (the “Fifth Floor Expansion Space Base Year”), and (ii) Tenantnot file a tax appeal in which event any increase in excess of the Tax Threshold shall be borne by Sublessor, at Sublessor’s proportionate share sole cost and expense. Notwithstanding the foregoing, in the event that Sublessor files a tax appeal, whether or not such tax appeal was requested by Subtenant, Subtenant shall remain liable for payment of the entire Expense Adjustment Amount (with respect which shall include any and all taxes based on the then assessed value of the Office Park) regardless of the outcome of Sublessor’s tax appeal, including any additional increases in the assessed value of the Office Park. If a contest or appeal made by Sublessor shall result in a decrease in the assessed value of the Office Park, all credits or refunds over the Tax Threshold shall belong to and be remitted to Subtenant, and the remainder of any credits or refunds shall belong to and be remitted to Sublessor. Notwithstanding anything herein to the Fifth Floor Expansion Space only) of the amount by which Real Estate Taxes for each calendar year falling entirely or partly within the Fifth Floor Expansion Space Lease Term exceed the Fifth Floor Expansion Space Base Year Real Estate Taxes (hereinafter defined) incurred by Landlord during the Fifth Floor Expansion Space Base Year. For the purpose of this Second Amendmentcontrary, the term “Fifth Floor Expansion Space Base Year Operating Expenses” means foregoing shall in no way limit or modify Sublessor’s rights to file a tax appeal as provided in the Operating expenses incurred Main Lease; provided, however, that any appraisers, attorneys and other representatives selected by Landlord duringSublessor for any tax appeal shall be subject to the reasonable approval of Subtenant.

Operating Expenses and Real Estate Taxes. Commencing on the first (1st) day of the second Fifth Floor Expansion Space Lease YearJanuary 1, 2012, Tenant shall pay (in accordance with the process generally set forth in Section 5.1(e) of the Lease), as additional rent for the Fifth Floor Expansion Additional Space, (i) Tenant’s proportionate share (with respect to the Fifth Floor Expansion Additional Space only) of the amount by which Operating Expenses incurred by Landlord for each calendar year falling entirely or partly within the Fifth Floor Expansion Additional Space Lease Term exceed the Fifth Floor Expansion Additional Space Base Year Operating Expenses (hereinafter defined) incurred by Landlord during the twelve (12) month period commencing January 1, 20092011, and ending December 31, 2009 2011 (the “Fifth Floor Expansion Additional Space Base Year”), and (ii) Tenant’s proportionate share (with respect to the Fifth Floor Expansion Additional Space only) of the amount by which Real Estate Taxes for each calendar year falling entirely or partly within the Fifth Floor Expansion Additional Space Lease Term exceed the Fifth Floor Expansion Additional Space Base Year Real Estate Taxes (hereinafter defined) incurred by Landlord during the Fifth Floor Expansion Additional Space Base Year. For the purpose of this Second Third Amendment, the term “Fifth Floor Expansion Additional Space Base Year Operating Expenses” means the Operating expenses incurred by Landlord duringduring the Fifth Floor Additional Space Base Year and the term “Fifth Floor Additional Space Base Year Real Estate Taxes” means the Real Estate Taxes incurred by Landlord during the Fifth Floor Additional Space Base Year. Landlord and Tenant acknowledge that the “Base Year” for the “Premises” under the Original Lease is different than the “Base Year” for the Fifth Floor Additional Space. To the extent that the aggregate of the Operating Expenses and Real Estate Taxes (for the Fifth Floor Additional Space only) for any calendar year are less than the aggregate of the Fifth Floor Additional Space Base Year Operating Expenses and Fifth Floor Additional Space Base Year Real Estate Taxes, then Tenant shall only be responsible for the net increase over the aggregate of the Fifth Floor Additional Space Base Year Operating Expenses and the Fifth Floor Additional Space Base Year Real Estate Taxes after deducting the amount of such reduction from the Fifth Floor Additional Space Base Year Operating Expenses and/or Fifth Floor Additional Space Base Year Real Estate Taxes (as applicable); provided, however, in no event will the netting-out of increase in taxes and expenses pursuant to this sentence result in a credit or reimbursement to Tenant. By way of hypothetical example of the foregoing sentence only, if the Fifth Floor Additional Space Base Year Operating Expenses (for the Fifth Floor Additional Space) were $100 and the Fifth Floor Additional Space Base Year Real Estate Taxes (for the Fifth Floor Additional Space) were $100 and thereafter in a calendar year in which Real Estate Taxes (for the Fifth Floor Additional Space) are $110 and Operating Expenses (for the Fifth Floor Additional Space) are $90, then Tenant’s responsibility for (its proportionate share) of such costs (for the Fifth Floor Additional Space) would be $0.

Operating Expenses and Real Estate Taxes. Commencing on (a) During the first (1st) day of the second Fifth Floor Expansion Space Lease YearTerm, Tenant shall pay (in accordance with the process generally set forth in Section 5.1(e) of the Lease)Landlord, as additional rent for the Fifth Floor Expansion SpacePremises, (i) Tenant’s proportionate share (with respect to which, as of the Fifth Floor Expansion Space onlydate of this Lease, is 38.44% based on Tenant’s lease of One Hundred Eleven Thousand Eight Hundred Ninety-Five (111,895) square feet of rentable area) of the amount by which Operating Expenses incurred by Landlord for each calendar year falling entirely or partly within the Fifth Floor Expansion Space Lease Term exceed a base amount (the Fifth Floor Expansion Space “Base Year Operating Expenses”) equal to the Operating Expenses (hereinafter defined) incurred by Landlord during the twelve (12) month period (the “Base Year”) commencing January 1, 20092008, and ending December 31, 2009 (the “Fifth Floor Expansion Space Base Year”)2008, and (ii) Tenant’s proportionate share (with respect to which, as of the Fifth Floor Expansion Space onlydate of this Lease, is 38.44% based on Tenant’s lease of One Hundred Eleven Thousand Eight Hundred Ninety-Five (111,895)) of the amount by which Real Estate Taxes (as defined in Section 5.1(c)) for each calendar year falling entirely or partly within the Fifth Floor Expansion Space Lease Term exceed a base amount (the Fifth Floor Expansion Space “Base Year Real Estate Taxes”) equal to the Real Estate Taxes incurred by Landlord during the Base Year. To the extent that the aggregate of the Operating Expenses and Real Estate Taxes for any calendar year are less than the aggregate of the Base Year Operating Expenses and Base Year Real Estate Taxes, then Tenant shall only be responsible for the net increase over the aggregate of the Base Year Operating Expenses and the Base Year Real Estate Taxes after deducting the amount of such reduction from the Base Year Operating Expenses and/or Base Year Real Estate Taxes (hereinafter definedas applicable); provided, however, in no event will the netting-out of increase in taxes and expenses pursuant to this sentence result in a credit or reimbursement to Tenant. By way of hypothetical example of the foregoing sentence only, if the Base Year Operating Expenses were $100 and the Base Year Real Estate Taxes were $100 and thereafter in a calendar year in which Real Estate Taxes are $110 and Operating Expenses are $90, Tenant’s responsibility for (its proportionate share) of such costs would be $0. For purposes of this Article V, Tenant’s proportionate share of such increases in Operating Expenses shall be that percentage which is equal to a fraction, the numerator of which is the number of square feet of rentable area in the Premises from time to time and the denominator of which is the total number of square feet of rentable area in the Building from time to time, excluding the number of square feet devoted to storage space located in the Building, the Storage Space and the Building’s parking garage (the “Garage”), and Tenant’s proportionate share of such increases in Real Estate Taxes shall be that percentage which is equal to a fraction, the numerator of which is the number of square feet of rentable area in the Premises from time to time and the denominator of which is the total number of square feet of rentable area in the Building from time to time, excluding the number of square feet devoted to storage space located in the Building, the Storage Space and the Garage. It is understood that (x) the number comprising such numerator is subject to change in the event Tenant exercises its right to expand the Premises under Article XXVIII hereof, or if Landlord exercises its right to recapture a portion of the Premises pursuant to Section 8.4 hereof, so that Tenant actually pays its fair share of Operating Expenses and Real Estate Taxes, and (y) the number comprising such denominator is subject to change because of changes in the use or configuration of space in the Building or the addition of space to the Building or the deletion of space from the Building or in the amount of space leased by tenants who pay by separate meter for their electrical and/or janitorial, cleaning, or other utilities or services so that Tenant actually pays its fair share of Operating Expenses and Real Estate Taxes; provided, however, that any such change in rentable area shall be determined in accordance with the standard set forth in Section 25.17 of this Lease, and, in any event, that the denominator with respect to Real Estate Taxes shall be calculated based on the total number of square feet of rentable area in the Building, exclusive of the Garage, any storage areas located in the Building and any Storage Space leased by Tenant. Notwithstanding the foregoing, in no event shall the aforementioned denominator be decreased by more than five thousand (5,000) square feet of rentable area in the aggregate during the Lease Term (as the same may be extended pursuant to the terms hereof). Tenant’s proportionate share shall be proportionately increased in the event Tenant expands the Premises in accordance with the terms of this Lease during the Lease Term (exclusive of any additional Storage Space leased by Tenant). Tenant’s proportionate share shall be proportionately decreased in the event the size of the Premises is reduced in accordance with the terms of this Lease during the Lease Term. (b) Operating Expenses shall be defined as the following costs and expenses relating to the management and operation of the Building using generally accepted accounting principles consistently applied: (1) electricity, gas, water, HVAC (as defined below), sewer and other utility charges of every type and nature; (2) premiums and other charges for insurance and deductibles under such insurance policies; (3) personnel costs for employees of Landlord engaged full time in the operation, management, maintenance and repair of the Building and Landlord’s reasonable allocation of the wages, salary or other compensation or benefits paid to the individual employees of Landlord and Landlord’s Building manager, if offsite, who are assigned part-time to the operation, management, maintenance and repair of the Building, and the cost of Landlord’s property manager for the Building, provided that in no event shall the management fee for Landlord’s property manager for the Building exceed three percent (3%) per annum of the gross income of the Building (with Landlord hereby confirming that the management fee for the Base Year shall be three percent (3%) of the gross annual income of the Building for the Base Year (subject to the provisions of Section 5.1(d) below); (4) costs of service and maintenance contracts relating to the Building as a whole (excluding contracts for the operation of the Garage); (5) maintenance, repair and supplies, and to the extent permitted to be passed through as an Operating Expense hereunder, replacement expenses, which are deducted by Landlord in computing its federal income tax liability; (6) depreciation (on a straight-line basis) for capital expenditures made by Landlord to reduce Operating Expenses (provided such annual depreciation does not exceed the annual savings by Landlord) or to comply with legal or insurance requirements applicable to the Building after the date hereof, such capital costs to be amortized over Landlord’s reasonable estimated useful life of the improvement, together with interest at the rate paid by Landlord on any funds borrowed for such expenditures; (7) charges for the following services: lobby attendant(s), if any, concierge, if any, at least one (1) security guard on a 24-hour, seven-days-a-week basis and access control; and other services or amenities provided to the Building provided, however, if a service or amenity is not provided in the Base Year but is provided in a subsequent Lease Year, Landlord shall pass through only the cost of such service or amenity in excess of Landlord’s reasonable estimate of what the cost of such service or amenity would have been in the Base Year if such service or amenity had been provided in the Base Year; (8) charges for janitorial, trash removal and cleaning services and supplies furnished to the Building; (9) costs of snow removal; (10) costs associated with the operation, maintenance, equipping and repair of the Building’s fitness center (the “Fitness Center”) (but specifically excluding the costs of initially equipping of the Fitness Center in accordance with the terms of this Lease, which initial equipping costs will not be an Operating Expense); and (11) any other expense reasonably incurred by Landlord during in maintaining, repairing, operating or cleaning the Fifth Floor Expansion Space Base YearBuilding. For Operating Expenses shall not include: (i) Real Estate Taxes; (ii) principal or interest payments on any Mortgages (as defined in Section 21.1); (ii) costs which are solely attributable to any retail portions of the Building; (iii) costs for which Landlord is actually reimbursed by Tenant, by insurance proceeds or by other tenants of the Building (other than such tenants’ regular contributions to Operating Expenses); (iv) legal fees incurred for negotiating leases or collecting rent; (v) costs directly and solely related to maintenance and operation of the entity that constitutes Landlord, such as accounting fees incurred solely for the purpose of this Second Amendmentreporting Landlord’s financial condition; (vi) costs of repairs, replacements or other work occasioned by fire, windstorm or other casualty, or the term “Fifth Floor Expansion Space Base Year Operating Expenses” means exercise by governmental authorities of the Operating right of eminent domain (except the deductible), whether such taking be total or partial, to the extent of any condemnation awards received by Landlord; (vii) leasing commissions, attorneys’ fees, marketing costs, disbursements and other expenses incurred by Landlord duringor its agents in connection with negotiations for leases with tenants, other occupants or prospective tenants or other occupants of the Building; (viii) tenant allowances, tenant concessions and other costs and expenses (including permit, license and inspection fees) incurred in connection with completing, fixturing, furnishing, renovating or otherwise improving, decorating or decorated leased premises for tenants or other occupants of the Building, or vacant, leaseable space in the Building, including the cost of space planning/interior architecture fees and/or engineering costs for the same; (ix) fees, fines or penalties (including legal fees) incurred due to the violation (as compared to compliance costs, which are included in Operating Expenses as provided above) by Landlord, its agents, any tenant (other than Tenant) or other occupant of the Building, and/or of any valid applicable Laws that would not have been incurred but for such violation by Landlord, its agent, tenant or other occupant, it being intended that each such party shall be responsible for the costs resulting from its violation of such leases and Laws; (x) penalties for any late payment by Landlord, including, without limitation, taxes; (xi) compensation paid to clerks, attendants or other persons in commercial concessions (such as a snack bar, restaurant or newsstand, but not including the Building amenities such as the Fitness Center or the parking facilities); (xii) costs of correcting defects in the construction of the Building; (xiii) costs of services (including electricity), items or other benefits of a material type which are not available to Tenant without specific charge therefor, but which are provided to another tenant or occupant of the Building, whether or not such other tenant or occupant is specifically charged therefor by Landlord; (xiv) depreciation/amortization for capital expenditures, except to the extent expressly permitted above; (xv) costs arising from the presence of Hazardous Materials (hereinafter defined) in, about or below the Land or the Building (including any Hazardous Materials brought to, deposited on or dispossessed of at the Building by Landlord or Landlord’s contractors, agents or employees, but specifically excluding any Hazardous Materials brought in, about or below the Land by Tenant or Tenant’s contractors, agents, employees or invitees); (xvi) the costs of special services and utilities separately paid by particular tenants of the Building; (xvii) advertising for vacant space in the Building; (xviii) compensation paid to officers or executives of Landlord above the level of property manager and costs and salaries associated with Landlord’s home office or off-site employees, except to the extent expressly permitted above; (xix) costs incurred as the result of Landlord’s tortious or grossly negligent conduct; (xxi) costs directly incurred in connection with the sale, financing or refinancing, mortgaging, selling or change of ownership of the Building, including attorneys’ fees and accountants’ fees attributable thereto, closing costs, title insurance premiums and transfer taxes; (xxiii) rentals and other related expenses incurred in leasing equipment ordinarily considered to be of a capital nature, except on a temporary basis and except to the extent such capital expenditures would otherwise be includable as an Operating Expense as provided above; (xxiv) amounts which would otherwise be included as Operating Expenses which are paid to any affiliate or subsidiaries of Landlord to the extent the costs of such services exceed the fair market value; (xxv) costs incurred (less costs of recovery) for any items to the extent reimbursed to Landlord under a manufacturer’s, materialman’s, vendor’s or contractor’s warranty; (xxvi) contributions to charitable organizations; (xxvii) costs of acquiring, installing, moving or restoring objects of art; (xxviii) costs incurred in removing the property of former tenants or other occupants in the Building; (xxix) expenses attributable to Landlord’s use of any public portions of the Building including, but not limited, to shows, promotions, kiosks and advertising; (xxx) costs of special services to the Building that are not used by Tenant.