Tenant Reimbursements. SECTION 5.01. In addition to the Fixed Rent and commencing on the Commencement Date, Tenant shall pay to Landlord as Additional Rent, Tenant's Share of the following taxes, insurance premiums and Common Area costs (hereinafter called "Reimbursements"): (A) All real property taxes and special assessments (the "Real Estate Taxes") levied or assessed against the Building. Tenant shall not be required to pay any taxes imposed upon the net income of Landlord or franchise taxes of Landlord, or any estate, succession, inheritance or transfer taxes imposed upon Landlord. If, at any time during the Term, any lawful governing authority levies or assesses against Landlord any tax, fee, or excise, however described, as a direct substitution in whole or in part for, or in addition to, or as the substantial equivalent of any Real Estate Taxes, then Tenant shall pay as provided herein Tenant's Share of that tax, fee or excise. Tenant shall pay before delinquency all taxes, assessments, license fees, and other charges that are levied or assessed against Tenant's personal property located on the Demised Premises. On demand by Landlord, Tenant shall furnish Landlord with satisfactory evidence of these payments. If any taxes on Tenant's personal property are levied against Landlord or Landlord's property, or if the assessed value of the Building is increased by the inclusion of a value placed on Tenant's personal property or as a result of alterations, additions or improvements made to the Demised Premises by or for Tenant, Tenant, on demand, shall immediately pay to Landlord as Additional Rent the sum of the taxes levied against Landlord, or the proportion of the taxes resulting from such increase in Landlord's assessment caused thereby. Landlord shall be entitled to, in good faith using its reasonable determination, ascertain the value of the tax increase attributable to Tenant's personal property or alterations, additions or improvements. (1.) If permitted by the appropriate taxing authority without the necessity of a subdivision, Tenant shall make application for the Demised Premises and the improvements erected thereon to be treated as a separate tax lot and, if successful, shall pay real property taxes and special assessments directly to the taxing authority. In this event, real property taxes and assessments will not be paid to Landlord as additional rent. (2.) Nothing herein contained shall require Tenant to pay any Federal or State income taxes assessed against the Landlord, or any gift, estate, succession, inheritance or transfer taxes of Landlord imposed as owner of the fee interest of the Demised Premises or any taxes imposed upon rent as such, payable by Tenant under this Lease; provided, however, that if at any time during the term of this Lease the methods of taxation prevailing at the Commencement Date shall be altered so that in lieu of or as a substitute for the whole or any part of the taxes, assessments, levies, impositions or charges now levied, assessed or imposed on real estate and improvements thereon there shall be levied, assessed and imposed a tax, assessment, levy, imposition or charge, wholly or partially as a capital levy or otherwise, upon the rents received therefrom, or measured by or based in whole or in part upon the Demised Premises and imposed upon Landlord, than all such taxes, assessments, levies impositions, or charges or any part thereof so measured or based shall be deemed to be included within the term "Impositions" for the purposes hereof to the extent that such imposition would be payable if the Demised Premises were the only property of Landlord subject to such Imposition, and Tenant shall pay and discharge the same as herein provided in respect of the payment of Impositions. Subject to the specific exclusions set forth above in this Section 5.01, Tenant shall in addition to the foregoing, pay any new taxes of a nature not presently in effect, but which may be hereafter levied against or imposed upon Landlord or the Demised Premises if such tax shall be based on or arise out of the ownership, use or operation of the Demised Premises. (3.) If Tenant pays Real Estate Taxes separately, then Tenant, upon request of Landlord, shall furnish to Landlord, or if requested by Landlord furnish to any fee mortgagee, within ten (10) days after the date when such Imposition will become due, official receipts if available of the appropriate taxing authority, or other evidence satisfactory to Landlord or such mortgagee evidencing the payment thereof. The certificate, receipt or bill of the appropriate official designated by law to make or xxxxe the same shall be prima facie evidence that such Imposition is due and unpaid, or has been paid at the time of the making or issuance of such certificate, receipt or bill. (4.) Landlord appoints Tenant the attxxxxy-in-fact of Landlord for the purpose of making all payments to be made by Tenant pursuant to any of the provisions of this Lease to persons or entities other than Landlord. In case any person or entity to whom any sum is directly paid by Tenant under any of the provisions of this Lease shall refuse to accept payment of such sum from Tenant, Tenant shall thereupon give written notice of such fact to Landlord and shall pay such sum to Landlord at the address specified herein and Landlord shall thereupon pay such sum to such person or entity. (5.) Notwithstanding any other provision herein set forth, Tenant, in addition to being responsible for taxes and insurance as herein set forth, shall be responsible for all fire insurance premiums on buildings and improvements situate on the Demised Premises from the dates when Impositions are first payable by Tenant pursuant to Section 5.01 above through and inclusive of the dates when Basic Rent as herein set forth shall be payable. (6.) Tenant, at its own cost and expense, shall take good care of the Demised Premises, all exclusive rights of way, curbs and appurtenances thereto and maintain and repair any easements used in common with others in accordance with any maintenance and repair obligations relating thereto, and shall keep the same in good order and condition, and reasonably free of any dirt, rubbish, snow, ice and unlawful obstructions. Landlord is responsible for snow removal from Tenant's drive-thru area at Tenant's sole cost and expense. (7.) Tenant has the right to seek a reduction in the valuation of the Demised Premises for tax purposes and to contest in good faith by appropriate proceedings, at Tenant's expense, the amount of validity in whole or in part of any imposition, tax or assessment affecting the Demised Premises. (8.) Landlord shall not be required to join in any proceedings referred to herein unless the provisions of any law, rule or regulation at the time in effect shall require that such proceedings be brought by or in the name of Landlord or any owner of the Demised Premises, in which event Landlord shall join in such proceedings or permit the same to be brought in its name. Landlord shall not ultimately be subjected to any liability for the payment of any costs or expenses in connection with any such proceedings, and Tenant shall indemnify and save harmless Landlord from any such costs and expenses. Tenant shall be entitled to any refund of any imposition and penalties or interest thereon received by Landlord which have been paid by Tenant or which have been paid by Landlord but previously reimbursed in full by Tenant. (9.) Landlord, in the event Tenant has not filed an appeal, reserves unto itself the right to appeal and seek a reduction in the valuation of the Demised Premises for real estate tax purposes. (10.) Tenant is only responsible for its share of Reimbursements and Impositions which come due during Tenant's Term, and Landlord agrees that any improvement assessments will be paid in the maximum number of permitted installments. (B) All insurance premiums incurred by Landlord for policies of insurance maintained on or with respect to the Building, including but not limited to fire and extended coverage insurance, liability insurance, workmen's compensation, rent interruption insurance and any other insurance that Landlord deems necessary to be carried on or with respect to the Building. If the rate of any insurance carried by Landlord is increased as a result of Tenant's use of the Demised Premises, then Tenant shall pay to Landlord as Additional Rent, upon demand, the full amount of any such increase. (C) All customary and reasonable sums expended by Landlord for the maintenance and operation of the Common Areas, and an allowance to Landlord for Landlord's supervision of maintenance and operation of the Common Areas in an amount equal to 15% times the total Common Area Expenses of the Building (excluding Real Estate Taxes and insurance). Costs for maintenance and operation of the common areas shall include by way of example and not by way of limitation, the costs of the following: resurfacing, paving, repainting and restriping, roof repairs, exterminating, cleaning, sweeping, and other maintenance and repair services with respect to the Common Areas of the Building, or any part thereof;; policing and providing for security guards or security patrols; costs for local fire protection; purchasing and maintaining refuse receptacles and costs of trash removal; planting and relandscaping; snow removal; purchasing, constructing, maintaining or repairing car stops, directional signs and other markers; lighting and other utilities; reasonable depreciation allowance on improvements, machinery, and equipment used in connection with the Common Areas; such fees as may be paid to any third party in connection with such maintenance and operation or the management of the Building (such management fees are to be in lieu of the 5% Landlord's supervision fee set forth above); and such other costs as the Landlord, in its reasonable discretion, shall deem necessary for the maintenance and operation of the Common Areas. All Capital Expenditures made to the Building, i.e., expenditures which, in accordance with generally accepted accounting principles, are not fully chargeable to current expense in the year the expenditure is incurred, shall be excluded from Common Area Expenses except the cost of repaving described above, which repaving cost will be amortized over the useful life of the improvement. SECTION 5.02. Landlord may submit to Tenant a statement of anticipated monthly Reimbursements for the period between the Commencement Date and the end of the first Lease Year and for each subsequent Lease Year or fraction thereof. If so, Tenant shall pay such Reimbursements on a pro rata monthly basis concurrent with the payment of the Fixed Rent. Tenant shall continue to make said monthly payments until notified by Landlord of a change thereof. Landlord shall furnish to Tenant a statement showing the total Reimbursements, Tenant's Share of total Reimbursements for the prior Lease Year, and the payments made by Tenant with respect to such Lease Year, within sixty (60) days after the end of each Lease Year. However, Landlord's failure to provide such statement of Reimbursements by the date provided hereinabove shall in no way excuse Tenant from its obligation to pay its pro rata share of Reimbursements or constitute a waiver of Landlord's right to bill and collect such pro rata share of Reimbursements from Tenant ix xxcordance with this Article, provided that Landlord submits a final statement of total reimbursements for a particular calendar year within one year after the end of such calendar year. If Tenant's Share of Reimbursements for the Lease Year exceeds the payments made by Tenant, Tenant shall pay Landlord the deficiency within ten (10) days after receipt of the statement. If Tenant's payments made during the Lease Year exceed Tenant's Share of Reimbursements, Landlord shall credit the sum of such excess toward the monthly Reimbursements next coming due or, if there are insufficient installment periods remaining in Tenant's term, pay same over to Tenant. The actual Reimbursements of the prior Lease Year may be used for the purpose of calculating the anticipated monthly Reimbursements for the then current Lease Year, subject to the right of Landlord to increase the monthly Reimbursements for anticipated increased costs. . Tenant shall have the right, on an annual basis and at Tenant's sole cost, to audit all Common Area costs charged by the Landlord. SECTION 5.03. Landlord shall keep full, complete and proper books, records and accounts of Common Area Expenses. No more than once per annum and upon reasonable written notice, Tenant and its agents and employees shall have the right at any time and at all times during regular business hours to examine and inspect all books and records of Landlord pertaining to Common Area Expenses for the purpose of investigating and verifying the accuracy of any statement of Common Area Expenses. Once in any calendar year, Tenant may cause an audit of Common Area Expenses to be made by an independent certified accountant of Tenant's selection and, if the Common Area Expenses for the accounting period covered by the statement which is the subject of the audit are found to be overstated by more than five percent (5%), Landlord shall immediately pay to Tenant the cost of such audit, not to exceed the lesser of the amount of the discrepancy or One Thousand Dollars ($1,000.00), plus the amount of any overpayment made by Tenant to Landlord, otherwise the cost of such audit shall be paid by Tenant. If the statement of Common Area Expenses which is the subject of the audit is otherwise found to be incorrect, the party found to be owing money shall promptly pay an offsetting sum to the other party.

Appears in 1 contract

Samples: Lease (Yardville National Bancorp)

Tenant Reimbursements. ~~SECTION 5.01. In addition to~~ Tenants under the ~~Fixed Rent and commencing on the Commencement Date, Tenant shall pay to Landlord as Additional Rent, Tenant's Share of the following taxes, insurance premiums and Common Area costs~~ Leases are currently paying Seller certain amounts (hereinafter called "Reimbursements"): (A) All real property taxes and special assessments (the "Real Estate Taxes") levied or assessed against the Building. Tenant shall not be required to pay any taxes imposed upon the net income of Landlord or franchise taxes of Landlord, or any estate, succession, inheritance or transfer taxes imposed upon Landlord. If, at any time during the Term, any lawful governing authority levies or assesses against Landlord any tax, fee, or excise, however described, as a direct substitution in whole or in part for, or in addition to, or as the substantial equivalent of any Real Estate Taxes, then Tenant shall pay as provided herein Tenant's Share of that tax, fee or excise. Tenant shall pay before delinquency all taxes, assessments, license fees, and other charges that are levied or assessed against Tenant's personal property located on the Demised Premises. On demand by Landlord, Tenant shall furnish Landlord with satisfactory evidence of these payments. If any taxes on Tenant's personal property are levied against Landlord or Landlord's property, or if the assessed value of the Building is increased by the inclusion of a value placed on Tenant's personal property or as a result of alterations, additions or improvements made to the Demised Premises by or for Tenant, Tenant, on demand, shall immediately pay to Landlord as Additional Rent the sum of the taxes levied against Landlord, or the proportion of the taxes resulting from such increase in Landlord's assessment caused thereby. Landlord shall be entitled to, in good faith using its reasonable determination, ascertain the value of the tax increase attributable to Tenant's personal property or alterations, additions or improvements. (1.) If permitted by the appropriate taxing authority without the necessity of a subdivision, Tenant shall make application for the Demised Premises and the improvements erected thereon to be treated as a separate tax lot and, if successful, shall pay real property taxes and special assessments directly to the taxing authority. In this event, real property taxes and assessments will not be paid to Landlord as additional rent. (2.) Nothing herein contained shall require Tenant to pay any Federal or State income taxes assessed against the Landlord, or any gift, estate, succession, inheritance or transfer taxes of Landlord imposed as owner of the fee interest of the Demised Premises or any taxes imposed upon rent as such, payable by Tenant under this Lease; provided, however, that if at any time during the term of this Lease the methods of taxation prevailing at the Commencement Date shall be altered so that in lieu of or as a substitute for the whole or any part of the taxes, assessments, levies, impositions or charges now levied, assessed or imposed on real estate and improvements thereon there shall be levied, assessed and imposed a tax, assessment, levy, imposition or charge, wholly or partially as a capital levy or otherwise, upon the rents received therefrom, or measured by or based in whole or in part upon the Demised Premises and imposed upon Landlord, than all such taxes, assessments, levies impositions, or charges or any part thereof so measured or based shall be deemed to be included within the term "Impositions" for the purposes hereof to the extent that such imposition would be payable if the Demised Premises were the only property of Landlord subject to such Imposition, and Tenant shall pay and discharge the same as herein provided in respect of the payment of Impositions. Subject to the specific exclusions set forth above in this Section 5.01, Tenant shall in addition to the foregoing, pay any new taxes of a nature not presently in effect, but which may be hereafter levied against or imposed upon Landlord or the Demised Premises if such tax shall be based on or arise out of the ownership, use or operation of the Demised Premises. (3.) If Tenant pays Real Estate Taxes separately, then Tenant, upon request of Landlord, shall furnish to Landlord, or if requested by Landlord furnish to any fee mortgagee, within ten (10) days after the date when such Imposition will become due, official receipts if available of the appropriate taxing authority, or other evidence satisfactory to Landlord or such mortgagee evidencing the payment thereof. The certificate, receipt or bill of the appropriate official designated by law to make or xxxxe the same shall be prima facie evidence that such Imposition is due and unpaid, or has been paid at the time of the making or issuance of such certificate, receipt or bill. (4.) Landlord appoints Tenant the attxxxxy-in-fact of Landlord for the purpose of making all payments to be made by Tenant pursuant to any of the provisions of this Lease to persons or entities other than Landlord. In case any person or entity to whom any sum is directly paid by Tenant under any of the provisions of this Lease shall refuse to accept payment of such sum from Tenant, Tenant shall thereupon give written notice of such fact to Landlord and shall pay such sum to Landlord at the address specified herein and Landlord shall thereupon pay such sum to such person or entity. (5.) Notwithstanding any other provision herein set forth, Tenant, in addition to being responsible for taxes and insurance as herein set forth, shall be responsible for all fire insurance premiums on buildings and improvements situate on the Demised Premises from the dates when Impositions are first payable by Tenant pursuant to Section 5.01 above through and inclusive of the dates when Basic Rent as herein set forth shall be payable. (6.) Tenant, at its own cost and expense, shall take good care of the Demised Premises, all exclusive rights of way, curbs and appurtenances thereto and maintain and repair any easements used in common with others in accordance with any maintenance and repair obligations relating thereto, and shall keep the same in good order and condition, and reasonably free of any dirt, rubbish, snow, ice and unlawful obstructions. Landlord is responsible for snow removal from Tenant's drive-thru area at Tenant's sole cost and expense. (7.) Tenant has the right to seek a reduction in the valuation of the Demised Premises for tax purposes and to contest in good faith by appropriate proceedings, at Tenant's expense, the amount of validity in whole or in part of any imposition, tax or assessment affecting the Demised Premises. (8.) Landlord shall not be required to join in any proceedings referred to herein ~~unless~~ as "Tenant Reimbursements") based on Seller's estimates for real estate taxes and assessments, common area maintenance, operating expenses and similar expenses (collectively, "Tenant Reimbursable Expenses"). 5.5.1 For the ~~provisions of any law, rule or regulation at the time in effect shall require that such proceedings be brought by or in the name of Landlord or any owner~~ Calendar Year of the ~~Demised Premises~~Closing. At Closing, in which event Landlord shall join in such proceedings or permit the same to be brought in its name. Landlord shall not ultimately be subjected to any liability for the payment of any costs or expenses in connection with any such proceedings, and Tenant shall indemnify and save harmless Landlord from any such costs and expenses. Tenant Seller shall be entitled to ~~any refund~~ retain all Tenant Reimbursements collected as of ~~any imposition~~ Closing. After Closing, Seller shall determine Tenant Reimbursements paid to Seller by tenants and ~~penalties or interest thereon received by Landlord which have been paid by~~ Tenant or which have been paid by Landlord but previously reimbursed in full by Tenant. (9.) Landlord, in the event Tenant has not filed an appeal, reserves unto itself the right to appeal and seek a reduction in the valuation of the Demised Premises for real estate tax purposes. (10.) Tenant is only responsible for its share of Reimbursements and Impositions which come due during Tenant's Term, and Landlord agrees that any improvement assessments will be paid in the maximum number of permitted installments. (B) All insurance premiums Reimbursable Expenses incurred by ~~Landlord~~ Seller for ~~policies of insurance maintained on or with respect to~~ the Building, including but not limited to fire and extended coverage insurance, liability insurance, workmen's compensation, rent interruption insurance and any other insurance that Landlord deems necessary to be carried on or with respect to calendar year in which the ~~Building~~Closing occurs. If the ~~rate~~ amount of ~~any insurance carried~~ Tenant Reimbursements collected by ~~Landlord~~ Seller for such year is ~~increased as a result~~ less than the amount of ~~Tenant's use~~ Tenant Reimbursable Expenses paid by Seller for such year (or less than the amount which Seller is entitled to recover under the terms of the ~~Demised Premises~~Leases), then ~~Tenant~~ Purchaser shall ~~pay~~ promptly bill the tenant for the difference owed by tenant and on receipt, remix xxme to ~~Landlord as Additional Rent, upon demand,~~ Seller. If the ~~full~~ amount of Tenant Reimbursements collected by Seller for the calendar year in which the Closing occurs exceeds the amount of Tenant Reimbursable Expenses paid by Seller for such year (or greater than the amount which Seller is entitled to recover under the terms of the Leases), then Seller shall remit such excess amounts to Purchaser. Upon receipt of such excess amounts, Purchaser shall be thereafter obligated to promptly remit the applicable portion to the particular tenants entitled thereto, and Purchaser shall indemnify, defend and hold Seller, its constituent members or partners, its agents and its direct and indirect principals, and all of their respective directors, officers, employees and agents harmless from and against any losses, claims, damages and liabilities, including, without limitation, reasonable attorneys' fees and expenses incurred in connection therewith, arising out of or resulting from Purchaser's failure to remit any such ~~increase. (C) All customary and reasonable sums expended by Landlord for the maintenance and operation of the Common Areas, and an allowance~~ amounts to Landlord for Landlord's supervision of maintenance and operation of the Common Areas in an amount equal to 15% times the total Common Area Expenses of the Building (excluding Real Estate Taxes and insurance). Costs for maintenance and operation of the common areas shall include by way of example and not by way of limitation, the costs of the following: resurfacing, paving, repainting and restriping, roof repairs, exterminating, cleaning, sweeping, and other maintenance and repair services with respect to the Common Areas of the Building, or any part thereof;; policing and providing for security guards or security patrols; costs for local fire protection; purchasing and maintaining refuse receptacles and costs of trash removal; planting and relandscaping; snow removal; purchasing, constructing, maintaining or repairing car stops, directional signs and other markers; lighting and other utilities; reasonable depreciation allowance on improvements, machinery, and equipment used in connection with the Common Areas; such fees as may be paid to any third party in connection with such maintenance and operation or the management of the Building (such management fees are to be in lieu of the 5% Landlord's supervision fee set forth above); and such other costs as the Landlord, in its reasonable discretion, shall deem necessary for the maintenance and operation of the Common Areas. All Capital Expenditures made to the Building, i.e., expenditures which, tenants in accordance with ~~generally accepted accounting principles, are not fully chargeable to current expense in~~ the ~~year the expenditure is incurred, shall be excluded from Common Area Expenses except the cost of repaving described above, which repaving cost will be amortized over the useful life of the improvement~~provisions hereof. SECTION 5.02. Landlord may submit to Tenant a statement of anticipated monthly Reimbursements for the period between the Commencement Date and the end of the first Lease Year and for each subsequent Lease Year or fraction thereof. If so, Tenant shall pay such Reimbursements on a pro rata monthly basis concurrent with the payment of the Fixed Rent. Tenant shall continue to make said monthly payments until notified by Landlord of a change thereof. Landlord shall furnish to Tenant a statement showing the total Reimbursements, Tenant's Share of total Reimbursements for the prior Lease Year, and the payments made by Tenant with respect to such Lease Year, within sixty (60) days after the end of each Lease Year. However, Landlord's failure to provide such statement of Reimbursements by the date provided hereinabove shall in no way excuse Tenant from its obligation to pay its pro rata share of Reimbursements or constitute a waiver of Landlord's right to bill and collect such pro rata share of Reimbursements from Tenant ix xxcordance with this Article, provided that Landlord submits a final statement of total reimbursements for a particular calendar year within one year after the end of such calendar year. If Tenant's Share of Reimbursements for the Lease Year exceeds the payments made by Tenant, Tenant shall pay Landlord the deficiency within ten (10) days after receipt of the statement. If Tenant's payments made during the Lease Year exceed Tenant's Share of Reimbursements, Landlord shall credit the sum of such excess toward the monthly Reimbursements next coming due or, if there are insufficient installment periods remaining in Tenant's term, pay same over to Tenant. The actual Reimbursements of the prior Lease Year may be used for the purpose of calculating the anticipated monthly Reimbursements for the then current Lease Year, subject to the right of Landlord to increase the monthly Reimbursements for anticipated increased costs. . Tenant shall have the right, on an annual basis and at Tenant's sole cost, to audit all Common Area costs charged by the Landlord. SECTION 5.03. Landlord shall keep full, complete and proper books, records and accounts of Common Area Expenses. No more than once per annum and upon reasonable written notice, Tenant and its agents and employees shall have the right at any time and at all times during regular business hours to examine and inspect all books and records of Landlord pertaining to Common Area Expenses for the purpose of investigating and verifying the accuracy of any statement of Common Area Expenses. Once in any calendar year, Tenant may cause an audit of Common Area Expenses to be made by an independent certified accountant of Tenant's selection and, if the Common Area Expenses for the accounting period covered by the statement which is the subject of the audit are found to be overstated by more than five percent (5%), Landlord shall immediately pay to Tenant the cost of such audit, not to exceed the lesser of the amount of the discrepancy or One Thousand Dollars ($1,000.00), plus the amount of any overpayment made by Tenant to Landlord, otherwise the cost of such audit shall be paid by Tenant. If the statement of Common Area Expenses which is the subject of the audit is otherwise found to be incorrect, the party found to be owing money shall promptly pay an offsetting sum to the other party.

Appears in 1 contract

Samples: Real Estate Sale Agreement (Bedford Property Investors Inc/Md)

Tenant Reimbursements. ~~SECTION 5.01. In addition to~~ Tenants under the ~~Fixed Rent and commencing on the Commencement Date, Tenant shall pay to Landlord as Additional Rent, Tenant's Share of the following taxes, insurance premiums and Common Area costs~~ Leases are currently paying Seller certain amounts (hereinafter called "Reimbursements"): (A) All real property taxes and special assessments (the "Real Estate Taxes") levied or assessed against the Building. Tenant shall not be required to pay any taxes imposed upon the net income of Landlord or franchise taxes of Landlord, or any estate, succession, inheritance or transfer taxes imposed upon Landlord. If, at any time during the Term, any lawful governing authority levies or assesses against Landlord any tax, fee, or excise, however described, as a direct substitution in whole or in part for, or in addition to, or as the substantial equivalent of any Real Estate Taxes, then Tenant shall pay as provided herein Tenant's Share of that tax, fee or excise. Tenant shall pay before delinquency all taxes, assessments, license fees, and other charges that are levied or assessed against Tenant's personal property located on the Demised Premises. On demand by Landlord, Tenant shall furnish Landlord with satisfactory evidence of these payments. If any taxes on Tenant's personal property are levied against Landlord or Landlord's property, or if the assessed value of the Building is increased by the inclusion of a value placed on Tenant's personal property or as a result of alterations, additions or improvements made to the Demised Premises by or for Tenant, Tenant, on demand, shall immediately pay to Landlord as Additional Rent the sum of the taxes levied against Landlord, or the proportion of the taxes resulting from such increase in Landlord's assessment caused thereby. Landlord shall be entitled to, in good faith using its reasonable determination, ascertain the value of the tax increase attributable to Tenant's personal property or alterations, additions or improvements. (1.) If permitted by the appropriate taxing authority without the necessity of a subdivision, Tenant shall make application for the Demised Premises and the improvements erected thereon to be treated as a separate tax lot and, if successful, shall pay real property taxes and special assessments directly to the taxing authority. In this event, real property taxes and assessments will not be paid to Landlord as additional rent. (2.) Nothing herein contained shall require Tenant to pay any Federal or State income taxes assessed against the Landlord, or any gift, estate, succession, inheritance or transfer taxes of Landlord imposed as owner of the fee interest of the Demised Premises or any taxes imposed upon rent as such, payable by Tenant under this Lease; provided, however, that if at any time during the term of this Lease the methods of taxation prevailing at the Commencement Date shall be altered so that in lieu of or as a substitute for the whole or any part of the taxes, assessments, levies, impositions or charges now levied, assessed or imposed on real estate and improvements thereon there shall be levied, assessed and imposed a tax, assessment, levy, imposition or charge, wholly or partially as a capital levy or otherwise, upon the rents received therefrom, or measured by or based in whole or in part upon the Demised Premises and imposed upon Landlord, than all such taxes, assessments, levies impositions, or charges or any part thereof so measured or based shall be deemed to be included within the term "Impositions" for the purposes hereof to the extent that such imposition would be payable if the Demised Premises were the only property of Landlord subject to such Imposition, and Tenant shall pay and discharge the same as herein provided in respect of the payment of Impositions. Subject to the specific exclusions set forth above in this Section 5.01, Tenant shall in addition to the foregoing, pay any new taxes of a nature not presently in effect, but which may be hereafter levied against or imposed upon Landlord or the Demised Premises if such tax shall be based on or arise out of the ownership, use or operation of the Demised Premises. (3.) If Tenant pays Real Estate Taxes separately, then Tenant, upon request of Landlord, shall furnish to Landlord, or if requested by Landlord furnish to any fee mortgagee, within ten (10) days after the date when such Imposition will become due, official receipts if available of the appropriate taxing authority, or other evidence satisfactory to Landlord or such mortgagee evidencing the payment thereof. The certificate, receipt or bill of the appropriate official designated by law to make or xxxxe the same shall be prima facie evidence that such Imposition is due and unpaid, or has been paid at the time of the making or issuance of such certificate, receipt or bill. (4.) Landlord appoints Tenant the attxxxxy-in-fact of Landlord for the purpose of making all payments to be made by Tenant pursuant to any of the provisions of this Lease to persons or entities other than Landlord. In case any person or entity to whom any sum is directly paid by Tenant under any of the provisions of this Lease shall refuse to accept payment of such sum from Tenant, Tenant shall thereupon give written notice of such fact to Landlord and shall pay such sum to Landlord at the address specified herein and Landlord shall thereupon pay such sum to such person or entity. (5.) Notwithstanding any other provision herein set forth, Tenant, in addition to being responsible for taxes and insurance as herein set forth, shall be responsible for all fire insurance premiums on buildings and improvements situate on the Demised Premises from the dates when Impositions are first payable by Tenant pursuant to Section 5.01 above through and inclusive of the dates when Basic Rent as herein set forth shall be payable. (6.) Tenant, at its own cost and expense, shall take good care of the Demised Premises, all exclusive rights of way, curbs and appurtenances thereto and maintain and repair any easements used in common with others in accordance with any maintenance and repair obligations relating thereto, and shall keep the same in good order and condition, and reasonably free of any dirt, rubbish, snow, ice and unlawful obstructions. Landlord is responsible for snow removal from Tenant's drive-thru area at Tenant's sole cost and expense. (7.) Tenant has the right to seek a reduction in the valuation of the Demised Premises for tax purposes and to contest in good faith by appropriate proceedings, at Tenant's expense, the amount of validity in whole or in part of any imposition, tax or assessment affecting the Demised Premises. (8.) Landlord shall not be required to join in any proceedings referred to herein ~~unless~~ as "Tenant Reimbursements") based on Seller's estimates for real estate taxes and assessments, common area maintenance, operating expenses and similar expenses (collectively, "Tenant Reimbursable Expenses"). 4.4.1 For the ~~provisions of any law, rule or regulation at the time in effect shall require that such proceedings be brought by or in the name of Landlord or any owner~~ Calendar Year of the ~~Demised Premises~~Closing. At Closing, in which event Landlord shall join in such proceedings or permit the same to be brought in its name. Landlord shall not ultimately be subjected to any liability for the payment of any costs or expenses in connection with any such proceedings, and Tenant shall indemnify and save harmless Landlord from any such costs and expenses. Tenant Seller shall be entitled to ~~any refund~~ retain all Tenant Reimbursements so long as they are not in excess of ~~any imposition and penalties or interest thereon received by Landlord which have been~~ the Tenant Reimbursable Expenses actually paid by Seller for the period prior to Closing. After Closing, Purchaser shall reconcile such Tenant or Reimbursements with tenants for the calendar year in which ~~have been paid by Landlord but previously reimbursed in full by Tenant. (9.) Landlord, in~~ the event Tenant has not filed an appeal, reserves unto itself the right to appeal and seek a reduction in the valuation of the Demised Premises for real estate tax purposes. (10.) Tenant is only responsible for its share of Reimbursements and Impositions which come due during Tenant's Term, and Landlord agrees that any improvement assessments will be paid in the maximum number of permitted installments. (B) All insurance premiums incurred by Landlord for policies of insurance maintained on or with respect to the Building, including but not limited to fire and extended coverage insurance, liability insurance, workmen's compensation, rent interruption insurance and any other insurance that Landlord deems necessary to be carried on or with respect to the BuildingClosing occurs. If the ~~rate~~ amount of ~~any insurance carried~~ Tenant Reimbursements collected by ~~Landlord~~ Seller for such year is ~~increased as a result~~ less than the amount of ~~Tenant's use~~ Tenant Reimbursable Expenses paid by Seller for such year (or less than the amount which Seller is entitled to recover under the terms of the ~~Demised Premises~~Leases), then ~~Tenant~~ Purchaser shall promptly remit such amounts to Seller to the extent such amounts have been collected from tenants. If such amounts have not yet been collected from tenants, Purchaser shall promptly xxxx the tenants for such amounts and continue to xxxx such tenants for such amounts each month for two (2) months thereafter, and, promptly upon receipt thereof, pay such amounts to ~~Landlord as Additional Rent~~Seller. On the other hand, ~~upon demand,~~ if the ~~full~~ amount of Tenant Reimbursements collected by Seller for the calendar year in which the Closing occurs exceeds the amount of Tenant Reimbursable Expenses paid by Seller for such year (or the amount which Seller is entitled to recover under the terms of the Leases), then Seller shall remit such excess amounts to Purchaser. Upon receipt of such excess amounts, Purchaser shall be thereafter obligated to promptly remit the applicable portion to the particular tenants entitled thereto; and Purchaser shall indemnify, defend and hold Seller, its beneficiaries, their partners, and their respective directors, officers, employees and agents, and each of them, harmless from and against any losses, claims, damages and liabilities, including, without limitation, reasonable attorneys' fees and expenses incurred in connection therewith, arising out of or resulting from Purchaser's failure to remit any such ~~increase. (C) All customary and reasonable sums expended by Landlord for the maintenance and operation of the Common Areas, and an allowance~~ amounts to Landlord for Landlord's supervision of maintenance and operation of the Common Areas in an amount equal to 15% times the total Common Area Expenses of the Building (excluding Real Estate Taxes and insurance). Costs for maintenance and operation of the common areas shall include by way of example and not by way of limitation, the costs of the following: resurfacing, paving, repainting and restriping, roof repairs, exterminating, cleaning, sweeping, and other maintenance and repair services with respect to the Common Areas of the Building, or any part thereof;; policing and providing for security guards or security patrols; costs for local fire protection; purchasing and maintaining refuse receptacles and costs of trash removal; planting and relandscaping; snow removal; purchasing, constructing, maintaining or repairing car stops, directional signs and other markers; lighting and other utilities; reasonable depreciation allowance on improvements, machinery, and equipment used in connection with the Common Areas; such fees as may be paid to any third party in connection with such maintenance and operation or the management of the Building (such management fees are to be in lieu of the 5% Landlord's supervision fee set forth above); and such other costs as the Landlord, in its reasonable discretion, shall deem necessary for the maintenance and operation of the Common Areas. All Capital Expenditures made to the Building, i.e., expenditures which, tenants in accordance with ~~generally accepted accounting principles, are not fully chargeable to current expense in~~ the year the expenditure is incurred, shall be excluded from Common Area Expenses except the cost of repaving described above, which repaving cost will be amortized over the useful life of the improvement. SECTION 5.02. Landlord may submit to Tenant a statement of anticipated monthly Reimbursements for the period between the Commencement Date and the end of the first Lease Year and for each subsequent Lease Year or fraction thereof. If so, Tenant shall pay such Reimbursements on a pro rata monthly basis concurrent with the payment of the Fixed Rent. Tenant shall continue to make said monthly payments until notified by Landlord of a change thereof. Landlord shall furnish to Tenant a statement showing the total Reimbursements, Tenant's Share of total Reimbursements for the prior Lease Yearprovisions hereof, and such indemnity shall survive the payments made by Tenant with respect to such Lease Year, within sixty (60) days after the end of each Lease Year. However, Landlord's failure to provide such statement of Reimbursements by the date provided hereinabove shall in no way excuse Tenant from its obligation to pay its pro rata share of Reimbursements or constitute a waiver of Landlord's right to bill and collect such pro rata share of Reimbursements from Tenant ix xxcordance with this Article, provided that Landlord submits a final statement of total reimbursements for a particular calendar year within one year after the end of such calendar year. If Tenant's Share of Reimbursements for the Lease Year exceeds the payments made by Tenant, Tenant shall pay Landlord the deficiency within ten (10) days after receipt of the statement. If Tenant's payments made during the Lease Year exceed Tenant's Share of Reimbursements, Landlord shall credit the sum of such excess toward the monthly Reimbursements next coming due or, if there are insufficient installment periods remaining in Tenant's term, pay same over to Tenant. The actual Reimbursements of the prior Lease Year may be used for the purpose of calculating the anticipated monthly Reimbursements for the then current Lease Year, subject to the right of Landlord to increase the monthly Reimbursements for anticipated increased costs. . Tenant shall have the right, on an annual basis and at Tenant's sole cost, to audit all Common Area costs charged by the LandlordClosing. SECTION 5.03. Landlord shall keep full, complete and proper books, records and accounts of Common Area Expenses. No more than once per annum and upon reasonable written notice, Tenant and its agents and employees shall have the right at any time and at all times during regular business hours to examine and inspect all books and records of Landlord pertaining to Common Area Expenses for the purpose of investigating and verifying the accuracy of any statement of Common Area Expenses. Once in any calendar year, Tenant may cause an audit of Common Area Expenses to be made by an independent certified accountant of Tenant's selection and, if the Common Area Expenses for the accounting period covered by the statement which is the subject of the audit are found to be overstated by more than five percent (5%), Landlord shall immediately pay to Tenant the cost of such audit, not to exceed the lesser of the amount of the discrepancy or One Thousand Dollars ($1,000.00), plus the amount of any overpayment made by Tenant to Landlord, otherwise the cost of such audit shall be paid by Tenant. If the statement of Common Area Expenses which is the subject of the audit is otherwise found to be incorrect, the party found to be owing money shall promptly pay an offsetting sum to the other party.

Appears in 1 contract

Samples: Real Estate Sale Agreement (First Capital Income Properties LTD Series Xi)

Tenant Reimbursements. ~~SECTION~~ Section 5.01. In addition to the Fixed Rent and commencing on the Commencement Date, Tenant shall pay to Landlord as Additional Rent, Tenant's ’s Share of the following taxes, insurance premiums and Common Area costs (hereinafter called "“Reimbursements"”): (A) All real property taxes and special assessments (the "“Real Estate Taxes"”) levied or assessed against the ~~Building~~Shopping Center. Tenant shall not be required to pay any taxes imposed upon the net income of Landlord or franchise taxes of Landlord, or any estate, succession, inheritance or transfer taxes imposed upon Landlord. If, at any time during the Term, any lawful governing authority levies or assesses against Landlord any tax, fee, or excise, however described, as a direct substitution in whole or in part for, or in addition to, or as the substantial equivalent of any Real Estate Taxes, then Tenant shall pay as provided herein Tenant's ’s Share of that tax, fee or excise. Tenant shall pay before delinquency all taxes, assessments, license fees, and other charges that are levied or assessed against Tenant's ’s personal property located on the Demised Premises. On demand by Landlord, Tenant shall furnish Landlord with satisfactory evidence of these payments. If any taxes on Tenant's ’s personal property are levied against Landlord or Landlord's ’s property, or if the assessed value of the ~~Building~~ Shopping Center is increased by the inclusion of a value placed on Tenant's ’s personal property or as a result of alterations, additions or improvements made to the Demised Premises by or for Tenant, Tenant, on demand, shall immediately pay to Landlord as Additional Rent the sum of the taxes levied against Landlord, or the proportion of the taxes resulting from such increase in Landlord's ’s assessment caused thereby. Landlord shall be entitled to, in good faith using its reasonable determination, ascertain the value of the tax increase attributable to Tenant's ’s personal property or alterations, additions or improvements. (1.) If permitted by the appropriate taxing authority without the necessity of a subdivision, Tenant shall make application for the Demised Premises and the improvements erected thereon to be treated as a separate tax lot and, if successful, shall pay real property taxes and special assessments directly to the taxing authority. In this event, real property taxes and assessments will not be paid to Landlord as additional rent. (2.) Nothing herein contained shall require Tenant to pay any Federal or State income taxes assessed against the Landlord, or any gift, estate, succession, inheritance or transfer taxes of Landlord imposed as owner of the fee interest of the Demised Premises or any taxes imposed upon rent as such, payable by Tenant under this Lease; provided, however, that if at any time during the term of this Lease the methods of taxation prevailing at the Commencement Date shall be altered so that in lieu of or as a substitute for the whole or any part of the taxes, assessments, levies, impositions or charges now levied, assessed or imposed on real estate and improvements thereon there shall be levied, assessed and imposed a tax, assessment, levy, imposition or charge, wholly or partially as a capital levy or otherwise, upon the rents received therefrom, or measured by or based in whole or in part upon the Demised Premises and imposed upon Landlord, than all such taxes, assessments, levies impositions, or charges or any part thereof so measured or based shall be deemed to be included within the term "“Impositions" ” for the purposes hereof to the extent that such imposition would be payable if the Demised Premises were the only property of Landlord subject to such Imposition, and Tenant shall pay and discharge the same as herein provided in respect of the payment of Impositions. Subject to the specific exclusions set forth above in this Section 5.01, Tenant shall in addition to the foregoing, pay any new taxes of a nature not presently in effect, but which may be hereafter levied against or imposed upon Landlord or the Demised Premises if such tax shall be based on or arise out of the ownership, use or operation of the Demised Premises. (3.) If Tenant pays Real Estate Taxes separately, then Tenant, upon request of Landlord, shall furnish to Landlord, or if requested by Landlord furnish to any fee mortgagee, within ten (10) days after the date when such Imposition will become due, official receipts if available of the appropriate taxing authority, or other evidence satisfactory to Landlord or such mortgagee evidencing the payment thereof. The certificate, receipt or ~~bill~~ bxxx of the appropriate official designated by law to make or ~~xxxxe~~ issue the same shall be prima facie evidence that such Imposition is due and unpaid, or has been paid at the time of the making or issuance of such certificate, receipt or ~~bill~~bxxx. (4.) Landlord appoints Tenant the ~~attxxxxy~~attorney-in-fact of Landlord for the purpose of making all payments to be made by Tenant pursuant to any of the provisions of this Lease to persons or entities other than Landlord. In case any person or entity to whom any sum is directly paid by Tenant under any of the provisions of this Lease shall refuse to accept payment of such sum from Tenant, Tenant shall thereupon give written notice of such fact to Landlord and shall pay such sum to Landlord at the address specified herein and Landlord shall thereupon pay such sum to such person or entity. (5.) Notwithstanding any other provision herein set forth, Tenant, in addition to being responsible for taxes and insurance as herein set forth, shall be responsible for all fire insurance premiums on buildings and improvements situate on the Demised Premises from the dates when Impositions are first payable by Tenant pursuant to Section 5.01 above through and inclusive of the dates when Basic Rent as herein set forth shall be payable. (6.) Tenant, at its own cost and expense, shall take good care of the Demised Premises, all exclusive rights of way, curbs and appurtenances thereto and maintain and repair any easements used in common with others in accordance with any maintenance and repair obligations relating thereto, and shall keep the same in good order and condition, and reasonably free of any dirt, rubbish, snow, ice and unlawful obstructions. Landlord is responsible for snow removal from Tenant's ’s drive-thru ~~area at Tenant's sole cost and expense~~area. (7.) Tenant has the right to seek a reduction in the valuation of the Demised Premises for tax purposes and to contest in good faith by appropriate proceedings, at Tenant's ’s expense, the amount of validity in whole or in part of any imposition, tax or assessment affecting the Demised Premises. (8.) Landlord shall not be required to join in any proceedings referred to herein unless the provisions of any law, rule or regulation at the time in effect shall require that such proceedings be brought by or in the name of Landlord or any owner of the Demised Premises, in which event Landlord shall join in such proceedings or permit the same to be brought in its name. Landlord shall not ultimately be subjected to any liability for the payment of any costs or expenses in connection with any such proceedings, and Tenant shall indemnify and save harmless Landlord from any such costs and expenses. Tenant shall be entitled to any refund of any imposition and penalties or interest thereon received by Landlord which have been paid by Tenant or which have been paid by Landlord but previously reimbursed in full by Tenant. (9.) Landlord, in the event Tenant has not filed an appeal, reserves unto itself the right to appeal and seek a reduction in the valuation of the Demised Premises for real estate tax purposes. (10.) Tenant is only responsible for its share of Reimbursements and Impositions which come due during Tenant's ’s Term, and Landlord agrees that any improvement assessments will be paid in the maximum number of permitted installments. (B) All insurance premiums incurred by Landlord for policies of insurance maintained on or with respect to the ~~Building~~Shopping Center, including but not limited to fire and extended coverage insurance, liability insurance, workmen's ’s compensation, rent interruption insurance and any other insurance that Landlord deems necessary to be carried on or with respect to the ~~Building~~Shopping Center. If the rate of any insurance carried by Landlord is increased as a result of Tenant's ’s use of the Demised Premises, then Tenant shall pay to Landlord as Additional Rent, upon demand, the full amount of any such increase. (C) All customary and reasonable sums expended by Landlord for the maintenance and operation of the Common Areas, and an allowance to Landlord for Landlord's ’s supervision of maintenance and operation of the Common Areas in an amount equal to 15% times the total Common Area Expenses of the ~~Building~~ Shopping Center (excluding Real Estate Taxes and insurance). Costs for maintenance and operation of the common areas shall include by way of example and not by way of limitation, the costs of the following: resurfacing, paving, repainting and restriping, roof repairs, exterminating, cleaning, sweeping, and other maintenance and repair services with respect to the Common Areas of the ~~Building~~Shopping Center, or any part thereof;; policing and providing for security guards or security patrols; costs for local fire protection; purchasing and maintaining refuse receptacles and costs of trash removal; planting and relandscaping; snow removal; purchasing, constructing, maintaining or repairing car stops, directional signs and other markers; lighting and other utilities; reasonable depreciation allowance on improvements, machinery, and equipment used in connection with the Common Areas; such fees as may be paid to any third party in connection with such maintenance and operation or the management of the ~~Building~~ Shopping Center (such management fees are to be in lieu of the 5% Landlord's ’s supervision fee set forth above); and such other costs as the Landlord, in its reasonable discretion, shall deem necessary for the maintenance and operation of the Common Areas. All Capital Expenditures made to the ~~Building~~Shopping Center, i.e., expenditures which, in accordance with generally accepted accounting principles, are not fully chargeable to current expense in the year the expenditure is incurred, shall be excluded from Common Area Expenses except the cost of repaving described above, which repaving cost will be amortized over the useful life of the improvement. ~~SECTION~~ Section 5.02. Landlord may submit to Tenant a statement of anticipated monthly Reimbursements for the period between the Commencement Date and the end of the first Lease Year and for each subsequent Lease Year or fraction thereof. If so, Tenant shall pay such Reimbursements on a pro rata monthly basis concurrent with the payment of the Fixed Rent. Tenant shall continue to make said monthly payments until notified by Landlord of a change thereof. Landlord shall furnish to Tenant a statement showing the total Reimbursements, Tenant's ’s Share of total Reimbursements for the prior Lease Year, and the payments made by Tenant with respect to such Lease Year, within sixty (60) days after the end of each Lease Year. However, Landlord's ’s failure to provide such statement of Reimbursements by the date provided hereinabove shall in no way excuse Tenant from its obligation to pay its pro rata share of Reimbursements or constitute a waiver of Landlord's ’s right to ~~bill~~ bxxx and collect such pro rata share of Reimbursements from Tenant ~~ix xxcordance~~ in accordance with this Article, provided that Landlord submits a final statement of total reimbursements for a particular calendar year within one year after the end of such calendar year. If Tenant's ’s Share of Reimbursements for the Lease Year exceeds the payments made by Tenant, Tenant shall pay Landlord the deficiency within ten (10) days after receipt of the statement. If Tenant's ’s payments made during the Lease Year exceed Tenant's ’s Share of Reimbursements, Landlord shall credit the sum of such excess toward the monthly Reimbursements next coming due or, if there are insufficient installment periods remaining in Tenant's ’s term, pay same over to Tenant. The actual Reimbursements of the prior Lease Year may be used for the purpose of calculating the anticipated monthly Reimbursements for the then current Lease Year, subject to the right of Landlord to increase the monthly Reimbursements for anticipated increased costs. . Tenant shall have the right, on an annual basis and at Tenant's ’s sole cost, to audit all Common Area costs charged by the Landlord. ~~SECTION~~ Section 5.03. Landlord shall keep full, complete and proper books, records and accounts of Common Area Expenses. No more than once per annum and upon reasonable written notice, Tenant and its agents and employees shall have the right at any time and at all times during regular business hours to examine and inspect all books and records of Landlord pertaining to Common Area Expenses for the purpose of investigating and verifying the accuracy of any statement of Common Area Expenses. Once in any calendar year, Tenant may cause an audit of Common Area Expenses to be made by an independent certified accountant of Tenant's ’s selection and, if the Common Area Expenses for the accounting period covered by the statement which is the subject of the audit are found to be overstated by more than five percent (5%), Landlord shall immediately pay to Tenant the cost of such audit, not to exceed the lesser of the amount of the discrepancy or One Thousand Dollars ($1,000.00), plus the amount of any overpayment made by Tenant to Landlord, otherwise the cost of such audit shall be paid by Tenant. If the statement of Common Area Expenses which is the subject of the audit is otherwise found to be incorrect, the party found to be owing money shall promptly pay an offsetting sum to the other party.

Appears in 1 contract

Samples: Lease Agreement (Yardville National Bancorp)

Tenant Reimbursements. SECTION 5.01. In addition to the Fixed Rent and commencing on the Commencement Date, Tenant shall pay to Landlord as Additional Rent, Tenant's Share of the following taxes, insurance premiums and Common Area costs (hereinafter called "Reimbursements"): (A) All real property taxes and special assessments (the "Real Estate Taxes") levied or assessed against the Building. Tenant shall not be required to pay any taxes imposed upon the net income of Landlord or franchise taxes of Landlord, or any estate, succession, inheritance or transfer taxes imposed upon Landlord. If, at any time during the Term, any lawful governing authority levies or assesses against Landlord any tax, fee, or excise, however described, as a direct substitution in whole or in part for, or in addition to, or as the substantial equivalent of any Real Estate Taxes, then Tenant shall pay as provided herein Tenant's Share of that tax, fee or excise. Tenant shall pay before delinquency all taxes, assessments, license fees, and other charges that are levied or assessed against Tenant's personal property located on the Demised Premises. On demand by Landlord, Tenant shall furnish Landlord with satisfactory evidence of these payments. If any taxes on Tenant's personal property are levied against Landlord or Landlord's property, or if the assessed value of the Building is increased by the inclusion of a value placed on Tenant's personal property or as a result of alterations, additions or improvements made to the Demised Premises by or for Tenant, Tenant, on demand, shall immediately pay to Landlord as Additional Rent the sum of the taxes levied against Landlord, or the proportion of the taxes resulting from such increase in Landlord's assessment caused thereby. Landlord shall be entitled to, in good faith using its reasonable determination, ascertain the value of the tax increase attributable to Tenant's personal property or alterations, additions or improvements. (1.) If permitted by the appropriate taxing authority without the necessity of a subdivision, Tenant shall make application for the Demised Premises and the improvements erected thereon to be treated as a separate tax lot and, if successful, shall pay real property taxes and special assessments directly to the taxing authority. In this event, real property taxes and assessments will not be paid to Landlord as additional rent. (2.) Nothing herein contained shall require Tenant to pay any Federal or State income taxes assessed against the Landlord, or any gift, estate, succession, inheritance or transfer taxes of Landlord imposed as owner of the fee interest of the Demised Premises or any taxes imposed upon rent as such, payable by Tenant under this Lease; provided, however, that if at any time during the term of this Lease the methods of taxation prevailing at the Commencement Date shall be altered so that in lieu of or as a substitute for the whole or any part of the taxes, assessments, levies, impositions or charges now levied, assessed or imposed on real estate and improvements thereon there shall be levied, assessed and imposed a tax, assessment, levy, imposition or charge, wholly or partially as a capital levy or otherwise, upon the rents received therefrom, or measured by or based in whole or in part upon the Demised Premises and imposed upon Landlord, than all such taxes, assessments, levies impositions, or charges or any part thereof so measured or based shall be deemed to be included within the term "Impositions" for the purposes hereof to the extent that such imposition would be payable if the Demised Premises were the only property of Landlord subject to such Imposition, and Tenant shall pay and discharge the same as herein provided in respect of the payment of Impositions. Subject to the specific exclusions set forth above in this Section 5.01, Tenant shall in addition to the foregoing, pay any new taxes of a nature not presently in effect, but which may be hereafter levied against or imposed upon Landlord or the Demised Premises if such tax shall be based on or arise out of the ownership, use or operation of the Demised Premises. (3.) If Tenant pays Real Estate Taxes separately, then Tenant, upon request of Landlord, shall furnish to Landlord, or if requested by Landlord furnish to any fee mortgagee, within ten (10) days after the date when such Imposition will become due, official receipts if available of the appropriate taxing authority, or other evidence satisfactory to Landlord or such mortgagee evidencing the payment thereof. The certificate, receipt or bill of the appropriate official designated by law to make or xxxxe the same shall be prima facie evidence that such Imposition is due and unpaid, or has been paid at the time of the making or issuance of such certificate, receipt or bill. (4.) Landlord appoints Tenant the ~~attxxxxy~~attorney-inxx-~~fact~~ xact of Landlord for the purpose of making all payments to be made by Tenant pursuant to any of the provisions of this Lease to persons or entities other than Landlord. In case any person or entity to whom any sum is directly paid by Tenant under any of the provisions of this Lease shall refuse to accept payment of such sum from Tenant, Tenant shall thereupon give written notice of such fact to Landlord and shall pay such sum to Landlord at the address specified herein and Landlord shall thereupon pay such sum to such person or entity. (5.) Notwithstanding any other provision herein set forth, Tenant, in addition to being responsible for taxes and insurance as herein set forth, shall be responsible for all fire insurance premiums on buildings and improvements situate on the Demised Premises from the dates when Impositions are first payable by Tenant pursuant to Section 5.01 above through and inclusive of the dates when Basic Rent as herein set forth shall be payable. (6.) Tenant, at its own cost and expense, shall take good care of the Demised Premises, all exclusive rights of way, curbs and appurtenances thereto and maintain and repair any easements used in common with others in accordance with any maintenance and repair obligations relating thereto, and shall keep the same in good order and condition, and reasonably free of any dirt, rubbish, snow, ice and unlawful obstructions. Landlord is responsible for snow removal from Tenant's drive-thru area at Tenant's sole cost and expense. (7.) Tenant has the right to seek a reduction in the valuation of the Demised Premises for tax purposes and to contest in good faith by appropriate proceedings, at Tenant's expense, the amount of validity in whole or in part of any imposition, tax or assessment affecting the Demised Premises. (8.) Landlord shall not be required to join in any proceedings referred to herein unless the provisions of any law, rule or regulation at the time in effect shall require that such proceedings be brought by or in the name of Landlord or any owner of the Demised Premises, in which event Landlord shall join in such proceedings or permit the same to be brought in its name. Landlord shall not ultimately be subjected to any liability for the payment of any costs or expenses in connection with any such proceedings, and Tenant shall indemnify and save harmless Landlord from any such costs and expenses. Tenant shall be entitled to any refund of any imposition and penalties or interest thereon received by Landlord which have been paid by Tenant or which have been paid by Landlord but previously reimbursed in full by Tenant. (9.) Landlord, in the event Tenant has not filed an appeal, reserves unto itself the right to appeal and seek a reduction in the valuation of the Demised Premises for real estate tax purposes. (10.) Tenant is only responsible for its share of Reimbursements and Impositions which come due during Tenant's Term, and Landlord agrees that any improvement assessments will be paid in the maximum number of permitted installments. (B) All insurance premiums incurred by Landlord for policies of insurance maintained on or with respect to the Building, including but not limited to fire and extended coverage insurance, liability insurance, workmen's compensation, rent interruption insurance and any other insurance that Landlord deems necessary to be carried on or with respect to the Building. If the rate of any insurance carried by Landlord is increased as a result of Tenant's use of the Demised Premises, then Tenant shall pay to Landlord as Additional Rent, upon demand, the full amount of any such increase. (C) All customary and reasonable sums expended by Landlord for the maintenance and operation of the Common Areas, and an allowance to Landlord for Landlord's supervision of maintenance and operation of the Common Areas in an amount equal to 15% times the total Common Area Expenses of the Building (excluding Real Estate Taxes and insurance). Costs for maintenance and operation of the common areas shall include by way of example and not by way of limitation, the costs of the following: resurfacing, paving, repainting and restriping, roof repairs, exterminating, cleaning, sweeping, and other maintenance and repair services with respect to the Common Areas of the Building, or any part thereof;; policing and providing for security guards or security patrols; costs for local fire protection; purchasing and maintaining refuse receptacles and costs of trash removal; planting and relandscaping; snow removal; purchasing, constructing, maintaining or repairing car stops, directional signs and other markers; lighting and other utilities; reasonable depreciation allowance on improvements, machinery, and equipment used in connection with the Common Areas; such fees as may be paid to any third party in connection with such maintenance and operation or the management of the Building (such management fees are to be in lieu of the 5% Landlord's supervision fee set forth above); and such other costs as the Landlord, in its reasonable discretion, shall deem necessary for the maintenance and operation of the Common Areas. All Capital Expenditures made to the Building, i.e., expenditures which, in accordance with generally accepted accounting principles, are not fully chargeable to current expense in the year the expenditure is incurred, shall be excluded from Common Area Expenses except the cost of repaving described above, which repaving cost will be amortized over the useful life of the improvement. SECTION 5.02. Landlord may submit to Tenant a statement of anticipated monthly Reimbursements for the period between the Commencement Date and the end of the first Lease Year and for each subsequent Lease Year or fraction thereof. If so, Tenant shall pay such Reimbursements on a pro rata monthly basis concurrent with the payment of the Fixed Rent. Tenant shall continue to make said monthly payments until notified by Landlord of a change thereof. Landlord shall furnish to Tenant a statement showing the total Reimbursements, Tenant's Share of total Reimbursements for the prior Lease Year, and the payments made by Tenant with respect to such Lease Year, within sixty (60) days after the end of each Lease Year. However, Landlord's failure to provide such statement of Reimbursements by the date provided hereinabove shall in no way excuse Tenant from its obligation to pay its pro rata share of Reimbursements or constitute a waiver of Landlord's right to bill and collect such pro rata share of Reimbursements from Tenant ix xxcordance with this Article, provided that Landlord submits a final statement of total reimbursements for a particular calendar year within one year after the end of such calendar year. If Tenant's Share of Reimbursements for the Lease Year exceeds the payments made by Tenant, Tenant shall pay Landlord the deficiency within ten (10) days after receipt of the statement. If Tenant's payments made during the Lease Year exceed Tenant's Share of Reimbursements, Landlord shall credit the sum of such excess toward the monthly Reimbursements next coming due or, if there are insufficient installment periods remaining in Tenant's term, pay same over to Tenant. The actual Reimbursements of the prior Lease Year may be used for the purpose of calculating the anticipated monthly Reimbursements for the then current Lease Year, subject to the right of Landlord to increase the monthly Reimbursements for anticipated increased costs. . Tenant shall have the right, on an annual basis and at Tenant's sole cost, to audit all Common Area costs charged by the Landlord. SECTION 5.03. Landlord shall keep full, complete and proper books, records and accounts of Common Area Expenses. No more than once per annum and upon reasonable written notice, Tenant and its agents and employees shall have the right at any time and at all times during regular business hours to examine and inspect all books and records of Landlord pertaining to Common Area Expenses for the purpose of investigating and verifying the accuracy of any statement of Common Area Expenses. Once in any calendar year, Tenant may cause an audit of Common Area Expenses to be made by an independent certified accountant of Tenant's selection and, if the Common Area Expenses for the accounting period covered by the statement which is the subject of the audit are found to be overstated by more than five percent (5%), Landlord shall immediately pay to Tenant the cost of such audit, not to exceed the lesser of the amount of the discrepancy or One Thousand Dollars ($1,000.00), plus the amount of any overpayment made by Tenant to Landlord, otherwise the cost of such audit shall be paid by Tenant. If the statement of Common Area Expenses which is the subject of the audit is otherwise found to be incorrect, the party found to be owing money shall promptly pay an offsetting sum to the other party.

Appears in 1 contract

Samples: Lease (Yardville National Bancorp)

Tenant Reimbursements. ~~SECTION 5.01~~Tenants under the Leases are currently paying Sellers certain amounts (referred to herein as “Tenant Reimbursements”) based on Sellers’ estimates for real estate taxes and assessments, common area maintenance, operating expenses and similar expenses of Sellers (collectively, “Seller Expenses”). 4.4.1 For the Calendar Year of the Closing. To the extent collected by Sellers prior to Closing, Tenant Reimbursements paid by tenants under the Assignable Leases for the calendar month in which the Closing occurs shall be prorated between Purchaser and Sellers based on the number of days of such month the Property will have been owned by Purchaser and Sellers, respectively. There shall be no proration of such Tenant Reimbursements which are delinquent as of Closing. Tenant Reimbursements collected on or after the Closing Date shall be applied to such period as the tenant may direct, or if there is no such direction, first to the month of Closing, then to any delinquency existing for the period thereafter and then to any delinquency for the period prior to Closing. Purchaser shall cause any Tenant Reimbursements applicable to the period prior to Closing to be remitted to Sellers if, as, and when collected. At Closing, Sellers shall deliver to Purchaser a schedule of all delinquent Tenant Reimbursements. In ~~addition to~~ the ~~Fixed Rent and commencing on the Commencement Date~~event any delinquent Tenant Reimbursements are omitted from such schedule, Tenant shall pay to Landlord as Additional Rent, Tenant's Share of the following taxes, insurance premiums and Common Area costs (hereinafter called "Reimbursements"): (A) All real property taxes and special assessments (the "Real Estate Taxes") levied or assessed against the Building. Tenant Sellers shall not be ~~required~~ deemed to ~~pay any taxes imposed upon~~ have waived their rights to such amounts. Purchaser shall include the ~~net income~~ amount of ~~Landlord or franchise taxes of Landlord, or any estate, succession, inheritance or transfer taxes imposed upon Landlord. If, at any time during~~ delinquent Tenant Reimbursements in the Term, any lawful governing authority levies or assesses against Landlord any tax, fee, or excise, however described, as a direct substitution in whole or in part for, or in addition to, or as the substantial equivalent of any Real Estate Taxes, then Tenant shall pay as provided herein Tenant's Share of that tax, fee or excise. Tenant shall pay before delinquency all taxes, assessments, license fees, and other charges that are levied or assessed against Tenant's personal property located on the Demised Premises. On demand by Landlord, Tenant shall furnish Landlord with satisfactory evidence of these payments. If any taxes on Tenant's personal property are levied against Landlord or Landlord's property, or if the assessed value of the Building is increased by the inclusion of a value placed on Tenant's personal property or as a result of alterations, additions or improvements made first bills thereafter submitted to the Demised Premises by or for Tenant, Tenant, on demand, shall immediately pay to Landlord as Additional Rent the sum of the taxes levied against Landlord, or the proportion of the taxes resulting from such increase tenants in Landlord's assessment caused thereby. Landlord shall be entitled to, in good faith using its reasonable determination, ascertain the value of the tax increase attributable to Tenant's personal property or alterations, additions or improvements. (1.) If permitted by the appropriate taxing authority without the necessity of a subdivision, Tenant shall make application for the Demised Premises and the improvements erected thereon to be treated as a separate tax lot and, if successful, shall pay real property taxes and special assessments directly to the taxing authority. In this event, real property taxes and assessments will not be paid to Landlord as additional rent. (2.) Nothing herein contained shall require Tenant to pay any Federal or State income taxes assessed against the Landlord, or any gift, estate, succession, inheritance or transfer taxes of Landlord imposed as owner of the fee interest of the Demised Premises or any taxes imposed upon rent as such, payable by Tenant under this Lease; provided, however, that if at any time during the term of this Lease the methods of taxation prevailing at the Commencement Date shall be altered so that in lieu of or as a substitute for the whole or any part of the taxes, assessments, levies, impositions or charges now levied, assessed or imposed on real estate and improvements thereon there shall be levied, assessed and imposed a tax, assessment, levy, imposition or charge, wholly or partially as a capital levy or otherwise, upon the rents received therefrom, or measured by or based in whole or in part upon the Demised Premises and imposed upon Landlord, than all such taxes, assessments, levies impositions, or charges or any part thereof so measured or based shall be deemed to be included within the term "Impositions" for the purposes hereof to the extent that such imposition would be payable if the Demised Premises were the only property of Landlord subject to such Imposition, and Tenant shall pay and discharge the same as herein provided in respect of the payment of Impositions. Subject to the specific exclusions set forth above in this Section 5.01, Tenant shall in addition to the foregoing, pay any new taxes of a nature not presently in effect, but which may be hereafter levied against or imposed upon Landlord or the Demised Premises if such tax shall be based on or arise out of the ownership, use or operation of the Demised Premises. (3.) If Tenant pays Real Estate Taxes separately, then Tenant, upon request of Landlord, shall furnish to Landlord, or if requested by Landlord furnish to any fee mortgagee, within ten (10) days question after the date when such Imposition will become due, official receipts if available of the appropriate taxing authority, or other evidence satisfactory to Landlord or such mortgagee evidencing the payment thereof. The certificate, receipt or bill of the appropriate official designated by law to make or xxxxe the same shall be prima facie evidence that such Imposition is due and unpaid, or has been paid at the time of the making or issuance of such certificate, receipt or bill. (4.) Landlord appoints Tenant the attxxxxy-in-fact of Landlord for the purpose of making all payments to be made by Tenant pursuant to any of the provisions of this Lease to persons or entities other than Landlord. In case any person or entity to whom any sum is directly paid by Tenant under any of the provisions of this Lease shall refuse to accept payment of such sum from Tenant, Tenant shall thereupon give written notice of such fact to Landlord and shall pay such sum to Landlord at the address specified herein and Landlord shall thereupon pay such sum to such person or entity. (5.) Notwithstanding any other provision herein set forth, Tenant, in addition to being responsible for taxes and insurance as herein set forth, shall be responsible for all fire insurance premiums on buildings and improvements situate on the Demised Premises from the dates when Impositions are first payable by Tenant pursuant to Section 5.01 above through and inclusive of the dates when Basic Rent as herein set forth shall be payable. (6.) Tenant, at its own cost and expense, shall take good care of the Demised Premises, all exclusive rights of way, curbs and appurtenances thereto and maintain and repair any easements used in common with others in accordance with any maintenance and repair obligations relating theretoClosing, and shall keep the same in good order and condition, and reasonably free of any dirt, rubbish, snow, ice and unlawful obstructions. Landlord is responsible for snow removal from Tenant's drive-thru area at Tenant's sole cost and expense. (7.) Tenant has the right to seek a reduction in the valuation of the Demised Premises for tax purposes and to contest in good faith by appropriate proceedings, at Tenant's expense, the amount of validity in whole or in part of any imposition, tax or assessment affecting the Demised Premises. (8.) Landlord shall not be required to join in any proceedings referred to herein unless the provisions of any law, rule or regulation at the time in effect shall require that such proceedings be brought by or in the name of Landlord or any owner of the Demised Premises, in which event Landlord shall join in such proceedings or permit the same to be brought in its name. Landlord shall not ultimately be subjected to any liability for the payment of any costs or expenses in connection with any such proceedings, and Tenant shall indemnify and save harmless Landlord from any such costs and expenses. Tenant shall be entitled to any refund of any imposition and penalties or interest thereon received by Landlord which have been paid by Tenant or which have been paid by Landlord but previously reimbursed in full by Tenant. (9.) Landlord, in the event Tenant has not filed an appeal, reserves unto itself the right to appeal and seek a reduction in the valuation of the Demised Premises for real estate tax purposes. (10.) Tenant is only responsible for its share of Reimbursements and Impositions which come due during Tenant's Term, and Landlord agrees that any improvement assessments will be paid in the maximum number of permitted installments. (B) All insurance premiums incurred by Landlord for policies of insurance maintained on or with respect to the Building, including but not limited to fire and extended coverage insurance, liability insurance, workmen's compensation, rent interruption insurance and any other insurance that Landlord deems necessary to be carried on or with respect to the Building. If the rate of any insurance carried by Landlord is increased as a result of Tenant's use of the Demised Premises, then Tenant shall pay to Landlord as Additional Rent, upon demand, the full amount of any such increase. (C) All customary and reasonable sums expended by Landlord for the maintenance and operation of the Common Areas, and an allowance to Landlord for Landlord's supervision of maintenance and operation of the Common Areas in an amount equal to 15% times the total Common Area Expenses of the Building (excluding Real Estate Taxes and insurance). Costs for maintenance and operation of the common areas shall include by way of example and not by way of limitation, the costs of the following: resurfacing, paving, repainting and restriping, roof repairs, exterminating, cleaning, sweeping, and other maintenance and repair services with respect to the Common Areas of the Building, or any part thereof;; policing and providing for security guards or security patrols; costs for local fire protection; purchasing and maintaining refuse receptacles and costs of trash removal; planting and relandscaping; snow removal; purchasing, constructing, maintaining or repairing car stops, directional signs and other markers; lighting and other utilities; reasonable depreciation allowance on improvements, machinery, and equipment used in connection with the Common Areas; such fees as may be paid to any third party in connection with such maintenance and operation or the management of the Building (such management fees are to be in lieu of the 5% Landlord's supervision fee set forth above); and such other costs as the Landlord, in its reasonable discretion, shall deem necessary for the maintenance and operation of the Common Areas. All Capital Expenditures made to the Building, i.e., expenditures which, in accordance with generally accepted accounting principles, are not fully chargeable to current expense in the year the expenditure is incurred, shall be excluded from Common Area Expenses except the cost of repaving described above, which repaving cost will be amortized over the useful life of the improvement. SECTION 5.02. Landlord may submit to Tenant a statement of anticipated monthly Reimbursements for the period between the Commencement Date and the end of the first Lease Year and for each subsequent Lease Year or fraction thereof. If so, Tenant shall pay such Reimbursements on a pro rata monthly basis concurrent with the payment of the Fixed Rent. Tenant shall continue to ~~make said monthly payments until notified by Landlord~~ do so for three (3) months thereafter. Purchaser shall promptly deliver to Sellers a copy of ~~a change thereof~~each such xxxx submitted to tenants. ~~Landlord shall furnish~~ After such three (3) month period, Sellers may pursue remedies directly against delinquent tenants, but may not xxx to ~~Tenant a statement showing the total Reimbursements, Tenant's Share of total Reimbursements for the prior Lease Year, and the payments made by Tenant with respect to~~ evict or otherwise dispossess such ~~Lease Year, within sixty~~ tenants. Not later than ninety (6090) days after the end of ~~each Lease Year. However, Landlord's failure to provide such statement of Reimbursements by~~ the date provided hereinabove shall in no way excuse Tenant from its obligation to pay its pro rata share of Reimbursements or constitute a waiver of Landlord's right to bill and collect such pro rata share of Reimbursements from Tenant ix xxcordance with this Article, provided that Landlord submits a final statement of total reimbursements for a particular calendar year ~~within one~~ in which Closing occurs, Purchaser shall determine the Tenant Reimbursements paid to Sellers by tenants and Seller Expenses for the portion of the calendar year ~~after~~ in which the ~~end of~~ Closing occurs that Sellers owned the Property. Sellers shall provide to Purchaser the information necessary to make such ~~calendar year~~determination. If ~~Tenant's Share~~ the amount of Tenant Reimbursements collected by Sellers for such year is less than the amount of Seller Expenses for such year, then Purchaser shall promptly remit the difference to Sellers. If the amount of Tenant Reimbursements collected by Sellers for the ~~Lease Year~~ calendar year in which the Closing occurs exceeds the ~~payments made~~ amount of Seller Expenses paid by ~~Tenant~~Sellers for such year, ~~Tenant~~ then Sellers shall ~~pay Landlord the deficiency within ten (10) days after~~ remit such excess amounts to Purchaser. Upon receipt ~~of the statement. If Tenant's payments made during the Lease Year exceed Tenant's Share of Reimbursements, Landlord shall credit the sum~~ of such excess ~~toward~~ amounts, Purchaser shall be thereafter obligated to promptly remit the ~~monthly~~ applicable portion to the particular tenants entitled thereto. Purchaser shall indemnify, defend and hold Sellers and Sellers’ Affiliates harmless from and against any losses, claims, damages and liabilities, including, without limitation, reasonable attorneys’ fees and expenses incurred in connection therewith, arising out of or resulting from Purchaser’s failure to remit any amounts actually received from Sellers to tenants in accordance with the provisions hereof. The provisions of this Section 4.4.1 shall survive Closing. 4.4.2 For Prior Calendar Years. Sellers shall be responsible for the reconciliation with tenants of Tenant Reimbursements ~~next coming due or~~and Seller Expenses for any calendar year prior to that in which the Closing occurs. To the extent any reconciliation are not completed as of Closing, if ~~there are insufficient installment periods remaining in Tenant's term~~the amount of Tenant Reimbursements collected by Sellers for such prior years is less than the amount of Seller Expenses for such period, ~~pay same over~~ then Sellers shall be entitled to ~~Tenant~~xxxx such tenants and retain any such amounts due from tenants. ~~The actual~~ If the amount of Tenant Reimbursements collected by Sellers for such prior calendar year exceeds the amount of Seller Expenses with respect to such period, then, to the extent required under the terms of the Leases, Sellers shall remit such excess amounts to the applicable tenants. In connection with the foregoing, Sellers shall be permitted to make and retain copies of all Leases and all xxxxxxxx concerning Tenant Reimbursements for such prior ~~Lease Year may be used~~ years, and Purchaser covenants and agrees to provide Sellers with reasonable access to the books and records pertaining to such Tenant Reimbursements, and to otherwise cooperate with Sellers (at no cost to Purchaser) for the purpose of ~~calculating the anticipated monthly~~ enabling Sellers to adequately respond to any claim by tenants for reimbursement of Tenant Reimbursements for the then current Lease Year, subject to the right of Landlord to increase the monthly Reimbursements for anticipated increased costs. . Tenant shall have the right, on an annual basis and at Tenant's sole cost, to audit all Common Area costs charged by the Landlord. SECTION 5.03. Landlord shall keep full, complete and proper books, records and accounts of Common Area Expenses. No more than once per annum and upon reasonable written notice, Tenant and its agents and employees shall have the right at any time and at all times during regular business hours to examine and inspect all books and records of Landlord pertaining to Common Area Expenses for the purpose of investigating and verifying the accuracy of any statement of Common Area Expenses. Once in any calendar year, Tenant may cause an audit of Common Area Expenses to be made by an independent certified accountant of Tenant's selection and, if the Common Area Expenses for the accounting period covered by the statement which is the subject of the audit are found to be overstated by more than five percent (5%), Landlord shall immediately pay to Tenant the cost of such audit, not to exceed the lesser of the amount of the discrepancy or One Thousand Dollars ($1,000.00), plus the amount of any overpayment made by Tenant to Landlord, otherwise the cost of such audit shall be previously paid by ~~Tenant~~such tenants. If The provisions of this Section 4.4.2 shall survive the ~~statement of Common Area Expenses which is the subject of the audit is otherwise found to be incorrect, the party found to be owing money shall promptly pay an offsetting sum to the other party~~Closing.

Appears in 1 contract

Samples: Real Estate Sale Agreement

Tenant Reimbursements. ~~SECTION 5.01. In addition~~ Notwithstanding the foregoing terms of this Article 6, Seller shall have no obligation to ~~the Fixed Rent~~ pay (and ~~commencing on the Commencement Date, Tenant~~ Buyer shall ~~pay to Landlord as Additional Rent, Tenant's Share of the following taxes, insurance premiums and Common Area costs (hereinafter called "Reimbursements"): (A~~not receive a credit at Closing for) ~~All~~ any real estate or personal property taxes ~~and~~ or special assessments (the "Real Estate Taxes") levied or assessed against the Building. Tenant shall not be required to pay any taxes imposed upon the net income of Landlord or franchise taxes of Landlord, or any estate, succession, inheritance or transfer taxes imposed upon Landlord. If, at any time during the Term, any lawful governing authority levies or assesses against Landlord any tax, fee, or excise, however described, as a direct substitution in whole or in part for, or in addition to, or as the substantial equivalent of any Real Estate Taxes, then Tenant shall pay as provided herein Tenant's Share of that tax, fee or excise. Tenant shall pay before delinquency all taxes, assessments, license fees, and other charges that are levied or assessed against Tenant's personal property located on the Demised Premises. On demand by Landlord, Tenant shall furnish Landlord with satisfactory evidence of these payments. If any taxes on Tenant's personal property are levied against Landlord or Landlord's property, or if the assessed value of the Building is increased by the inclusion of a value placed on Tenant's personal property or as a result of alterations, additions or improvements made to the Demised Premises by or for Tenant, Tenant, on demand, shall immediately pay to Landlord as Additional Rent the sum of the taxes levied against Landlord, or the proportion of the taxes resulting from such increase in Landlord's assessment caused thereby. Landlord shall be entitled to, in good faith using its reasonable determination, ascertain the value of the tax increase attributable to Tenant's personal property or alterations, additions or improvements. (1.) If permitted by the appropriate taxing authority without the necessity of a subdivision, Tenant shall make application for the Demised Premises and the improvements erected thereon to be treated as a separate tax lot and, if successful, shall pay real property taxes and special assessments directly to the taxing authority. In this event, real property taxes and assessments will not be paid to Landlord as additional rent. (2.) Nothing herein contained shall require Tenant to pay any Federal or State income taxes assessed against the Landlord, or any gift, estate, succession, inheritance or transfer taxes of Landlord imposed as owner of the fee interest of the Demised Premises or any taxes imposed upon rent as such, payable by Tenant under this Lease; provided, however, that if at any time during the term of this Lease the methods of taxation prevailing at the Commencement Date shall be altered so that in lieu of or as a substitute for the whole or any part of the taxes, assessments, levies, impositions or charges now levied, assessed or imposed on real estate and improvements thereon there shall be levied, assessed and imposed a tax, assessment, levy, imposition or charge, wholly or partially as a capital levy or otherwise, upon the rents received therefrom, or measured by or based in whole or in part upon the Demised Premises and imposed upon Landlord, than all such taxes, assessments, levies impositions, or charges or any part thereof so measured or based shall be deemed to be included within the term "Impositions" for the purposes hereof to the extent that ~~such imposition would be payable if~~ (x) Buyer is entitled after Closing to reimbursement of taxes and assessments, or the ~~Demised Premises were~~ recovery of any increase in taxes and assessments, from the ~~only property of Landlord subject~~ tenants under the Leases (including payments due from tenants for the month in which Closing occurs but which are not actually received by Seller prior to ~~such Imposition~~Closing), and ~~Tenant shall pay and discharge~~ (y) such reimbursements from tenants under the ~~same~~ Leases are not more than thirty (30) days past due as ~~herein provided in respect~~ of the ~~payment~~ Closing Date, regardless of Impositions. Subject to the specific exclusions set forth above in this Section 5.01, Tenant shall in addition to the foregoing, pay any new taxes of a nature not presently in effect, but which may be hereafter levied against whether Buyer actually collects such reimbursement or imposed upon Landlord or the Demised Premises if such tax shall be based on or arise out of the ownership, use or operation of the Demised Premises. (3.) If Tenant pays Real Estate Taxes separately, then Tenant, upon request of Landlord, shall furnish to Landlord, or if requested by Landlord furnish to any fee mortgagee, within ten (10) days after the date when such Imposition will become due, official receipts if available of the appropriate taxing authority, or other evidence satisfactory to Landlord or such mortgagee evidencing the payment thereof. The certificate, receipt or bill of the appropriate official designated by law to make or xxxxe the same shall be prima facie evidence that such Imposition is due and unpaid, or has been paid at the time of the making or issuance of such certificate, receipt or bill. (4.) Landlord appoints Tenant the attxxxxy-in-fact of Landlord for the purpose of making all payments to be made by Tenant pursuant to any of the provisions of this Lease to persons or entities other than Landlord. In case any person or entity to whom any sum is directly paid by Tenant under any of the provisions of this Lease shall refuse to accept payment of such sum from Tenant, Tenant shall thereupon give written notice of such fact to Landlord and shall pay such sum to Landlord at the address specified herein and Landlord shall thereupon pay such sum to such person or entity. (5.) Notwithstanding any other provision herein set forth, Tenant, in addition to being responsible for increased taxes and ~~insurance~~ assessments from such tenants after Closing, it being understood and agreed by Buyer and Seller that (a) as ~~herein set forth~~between Buyer and Seller, Buyer shall be responsible for payment of all ~~fire insurance premiums~~ of such real estate or personal property taxes and assessments, and (b) the burden of collecting such reimbursements shall be solely on ~~buildings~~ Buyer. Furthermore, Seller and ~~improvements situate on~~ Buyer acknowledge and agree that, notwithstanding any provision in any of the ~~Demised Premises from~~ Leases to the ~~dates when Impositions~~ contrary, the tax reimbursement payments to be paid by tenants of the Property during the Tax Year in which Closing occurs are ~~first~~ to be applied to pay the real estate taxes assessed for such Tax Year and, therefore, Buyer shall not receive a credit for any amounts due and payable by ~~Tenant pursuant to Section 5.01 above through and inclusive~~ tenants of the ~~dates when Basic Rent~~ Property prior to the Closing as herein set forth shall be payable. (6.) Tenant, at its own cost and expense, shall take good care of the Demised Premises, all exclusive rights of way, curbs and appurtenances thereto and maintain and repair any easements used in common with others in accordance with any maintenance and repair obligations relating thereto, and shall keep the same in good order and condition, and reasonably free of any dirt, rubbish, snow, ice and unlawful obstructions. Landlord is responsible for snow removal from Tenant's drive-thru area at Tenant's sole cost and expense. (7.) Tenant has the right to seek a reduction in the valuation of the Demised Premises for tax purposes and to contest in good faith by appropriate proceedings, at Tenant's expense, the amount of validity in whole or in part of any imposition, tax or assessment affecting the Demised Premises. (8.) Landlord shall not be required to join in any proceedings referred to herein unless the provisions of any law, rule or regulation at the time in effect shall require that such proceedings be brought by or in the name of Landlord or any owner of the Demised Premises, in which event Landlord shall join in such proceedings or permit the same to be brought in its name. Landlord shall not ultimately be subjected to any liability for the payment of any costs or expenses in connection with any such proceedings, and Tenant shall indemnify and save harmless Landlord from any such costs and expenses. Tenant shall be entitled to any refund of any imposition and penalties or interest thereon received by Landlord which have been paid by Tenant or which have been paid by Landlord but previously reimbursed in full by Tenant. (9.) Landlord, in the event Tenant has not filed an appeal, reserves unto itself the right to appeal and seek a reduction in the valuation of the Demised Premises for real estate tax ~~purposes.~~ reimbursements (~~10.) Tenant is only responsible for its share of Reimbursements and Impositions~~ other than real estate tax reimbursements actually received by Seller prior to Closing which come due during Tenant's Term, and Landlord agrees that any improvement assessments will be paid in the maximum number of permitted installments. (B) All insurance premiums incurred by Landlord for policies of insurance maintained on or with respect are applicable to the ~~Building~~month in which Closing occurs, including but not limited to fire and extended coverage insurance, liability insurance, workmen's compensation, rent interruption insurance and any other insurance that Landlord deems necessary to be carried on or with respect to the Building. If the rate of any insurance carried by Landlord is increased as a result of Tenant's use of the Demised Premises, then Tenant shall pay to Landlord as Additional Rent, upon demand, the full amount of any such increase. (C) All customary and reasonable sums expended by Landlord for the maintenance and operation of the Common Areas, and an allowance to Landlord for Landlord's supervision of maintenance and operation of the Common Areas in an amount equal to 15% times the total Common Area Expenses of the Building (excluding Real Estate Taxes and insurance). Costs for maintenance and operation of the common areas shall include by way of example and not by way of limitation, the costs of the following: resurfacing, paving, repainting and restriping, roof repairs, exterminating, cleaning, sweeping, and other maintenance and repair services with respect to the Common Areas of the Building, or any part thereof;; policing and providing for security guards or security patrols; costs for local fire protection; purchasing and maintaining refuse receptacles and costs of trash removal; planting and relandscaping; snow removal; purchasing, constructing, maintaining or repairing car stops, directional signs and other markers; lighting and other utilities; reasonable depreciation allowance on improvements, machinery, and equipment used in connection with the Common Areas; such fees as may be paid to any third party in connection with such maintenance and operation or the management of the Building (such management fees are to be in lieu of the 5% Landlord's supervision fee set forth above); and such other costs as the Landlord, in its reasonable discretion, shall deem necessary for the maintenance and operation of the Common Areas. All Capital Expenditures made to the Building, i.e., expenditures which, in accordance with generally accepted accounting principles, are not fully chargeable to current expense in the year the expenditure is incurred, which reimbursements shall be ~~excluded from Common Area Expenses except the cost of repaving described above, which repaving cost will be amortized over the useful life of the improvement~~prorated between Buyer and Seller). SECTION 5.02. Landlord may submit to Tenant a statement of anticipated monthly Reimbursements for the period between the Commencement Date and the end of the first Lease Year and for each subsequent Lease Year or fraction thereof. If so, Tenant shall pay such Reimbursements on a pro rata monthly basis concurrent with the payment of the Fixed Rent. Tenant shall continue to make said monthly payments until notified by Landlord of a change thereof. Landlord shall furnish to Tenant a statement showing the total Reimbursements, Tenant's Share of total Reimbursements for the prior Lease Year, and the payments made by Tenant with respect to such Lease Year, within sixty (60) days after the end of each Lease Year. However, Landlord's failure to provide such statement of Reimbursements by the date provided hereinabove shall in no way excuse Tenant from its obligation to pay its pro rata share of Reimbursements or constitute a waiver of Landlord's right to bill and collect such pro rata share of Reimbursements from Tenant ix xxcordance with this Article, provided that Landlord submits a final statement of total reimbursements for a particular calendar year within one year after the end of such calendar year. If Tenant's Share of Reimbursements for the Lease Year exceeds the payments made by Tenant, Tenant shall pay Landlord the deficiency within ten (10) days after receipt of the statement. If Tenant's payments made during the Lease Year exceed Tenant's Share of Reimbursements, Landlord shall credit the sum of such excess toward the monthly Reimbursements next coming due or, if there are insufficient installment periods remaining in Tenant's term, pay same over to Tenant. The actual Reimbursements of the prior Lease Year may be used for the purpose of calculating the anticipated monthly Reimbursements for the then current Lease Year, subject to the right of Landlord to increase the monthly Reimbursements for anticipated increased costs. . Tenant shall have the right, on an annual basis and at Tenant's sole cost, to audit all Common Area costs charged by the Landlord. SECTION 5.03. Landlord shall keep full, complete and proper books, records and accounts of Common Area Expenses. No more than once per annum and upon reasonable written notice, Tenant and its agents and employees shall have the right at any time and at all times during regular business hours to examine and inspect all books and records of Landlord pertaining to Common Area Expenses for the purpose of investigating and verifying the accuracy of any statement of Common Area Expenses. Once in any calendar year, Tenant may cause an audit of Common Area Expenses to be made by an independent certified accountant of Tenant's selection and, if the Common Area Expenses for the accounting period covered by the statement which is the subject of the audit are found to be overstated by more than five percent (5%), Landlord shall immediately pay to Tenant the cost of such audit, not to exceed the lesser of the amount of the discrepancy or One Thousand Dollars ($1,000.00), plus the amount of any overpayment made by Tenant to Landlord, otherwise the cost of such audit shall be paid by Tenant. If the statement of Common Area Expenses which is the subject of the audit is otherwise found to be incorrect, the party found to be owing money shall promptly pay an offsetting sum to the other party.

Appears in 1 contract

Samples: Purchase and Sale Agreement (Pennsylvania Real Estate Investment Trust)

Tenant Reimbursements. SECTION 5.01. In addition to the Fixed Rent and commencing on the Commencement Date, Tenant shall pay to Landlord as Additional Rent, Tenant's Share of the following taxes, insurance premiums and Common Area costs (hereinafter called "Reimbursements"): (A) All real property taxes and special assessments (the "Real Estate Taxes") levied or assessed against the Building. Tenant shall not be required to pay any taxes imposed upon the net income of Landlord or franchise taxes of Landlord, or any estate, succession, inheritance or transfer taxes imposed upon Landlord. If, at any time during the Term, any lawful governing authority levies or assesses against Landlord any tax, fee, or excise, however described, as a direct substitution in whole or in part for, or in addition to, or as the substantial equivalent of any Real Estate Taxes, then Tenant shall pay as provided herein Tenant's Share of that tax, fee or excise. Tenant shall pay before delinquency all taxes, assessments, license fees, and other charges that are levied or assessed against Tenant's personal property located on the Demised Premises. On demand by Landlord, Tenant shall furnish Landlord with satisfactory evidence of these payments. If any taxes on Tenant's personal property are levied against Landlord or Landlord's property, or if the assessed value of the Building is increased by the inclusion of a value placed on Tenant's personal property or as a result of alterations, additions or improvements made to the Demised Premises by or for Tenant, Tenant, on demand, shall immediately pay to Landlord as Additional Rent the sum of the taxes levied against Landlord, or the proportion of the taxes resulting from such increase in Landlord's assessment caused thereby. Landlord shall be entitled to, in good faith using its reasonable determination, ascertain the value of the tax increase attributable to Tenant's personal property or alterations, additions or improvements. (1.) If permitted by the appropriate taxing authority without the necessity of a subdivision, Tenant shall make application for the Demised Premises and the improvements erected thereon to be treated as a separate tax lot and, if successful, shall pay real property taxes and special assessments directly to the taxing authority. In this event, real property taxes and assessments will not be paid to Landlord as additional rent. (2.) Nothing herein contained shall require Tenant to pay any Federal or State income taxes assessed against the Landlord, or any gift, estate, succession, inheritance or transfer taxes of Landlord imposed as owner of the fee interest of the Demised Premises or any taxes imposed upon rent as such, payable by Tenant under this Lease; provided, however, that if at any time during the term of this Lease the methods of taxation prevailing at the Commencement Date shall be altered so that in lieu of or as a substitute for the whole or any part of the taxes, assessments, levies, impositions or charges now levied, assessed or imposed on real estate and improvements thereon there shall be levied, assessed and imposed a tax, assessment, levy, imposition or charge, wholly or partially as a capital levy or otherwise, upon the rents received therefrom, or measured by or based in whole or in part upon the Demised Premises and imposed upon Landlord, than all such taxes, assessments, levies impositions, or charges or any part thereof so measured or based shall be deemed to be included within the term "Impositions" for the purposes hereof to the extent that such imposition would be payable if the Demised Premises were the only property of Landlord subject to such Imposition, and Tenant shall pay and discharge the same as herein provided in respect of the payment of Impositions. Subject to the specific exclusions set forth above in this Section 5.01, Tenant shall in addition to the foregoing, pay any new taxes of a nature not presently in effect, but which may be hereafter levied against or imposed upon Landlord or the Demised Premises if such tax shall be based on or arise out of the ownership, use or operation of the Demised Premises. (3.) If Tenant pays Real Estate Taxes separately, then Tenant, upon request of Landlord, shall furnish to Landlord, or if requested by Landlord furnish to any fee mortgagee, within ten (10) days after the date when such Imposition will become due, official receipts if available of the appropriate taxing authority, or other evidence satisfactory to Landlord or such mortgagee evidencing the payment thereof. The certificate, receipt or bill of the appropriate official designated by law to make or xxxxe the same shall be prima facie evidence that such Imposition is due and unpaid, or has been paid at the time of the making or issuance of such certificate, receipt or bill. (4.) Landlord appoints Tenant the attxxxxy-in-fact of Landlord for the purpose of making all payments to be made by Tenant pursuant to any of the provisions of this Lease to persons or entities other than Landlord. In case any person or entity to whom any sum is directly paid by Tenant under any of the provisions of this Lease shall refuse to accept payment of such sum from Tenant, Tenant shall thereupon give written notice of such fact to Landlord and shall pay such sum to Landlord at the address specified herein and Landlord shall thereupon pay such sum to such person or entity. (5.) Notwithstanding any other provision herein set forth, ,Tenant, in addition to being responsible for taxes and insurance as herein set forth, shall be responsible for all fire insurance premiums on buildings and improvements situate on the Demised Premises from the dates when Impositions are first payable by Tenant pursuant to Section 5.01 above through and inclusive of the dates when Basic Rent as herein set forth shall be payable. (6.) Tenant, at its own cost and expense, shall take good care of the Demised Premises, all exclusive rights of way, curbs and appurtenances thereto and maintain and repair any easements used in common with others in accordance with any maintenance and repair obligations relating thereto, and shall keep the same in good order and condition, and reasonably free of any dirt, rubbish, snow, ice and unlawful obstructions. Landlord is responsible for snow removal from Tenant's drive-thru area at Tenant's sole cost and expense. (7.) Tenant has the right to seek a reduction in the valuation of the Demised Premises for tax purposes and to contest in good faith by appropriate proceedings, at Tenant's expense, the amount of validity in whole or in part of any imposition, tax or assessment affecting the Demised Premises. (8.) Landlord shall not be required to join in any proceedings referred to herein unless the provisions of any law, rule or regulation at the time in effect shall require that such proceedings be brought by or in the name of Landlord or any owner of the Demised Premises, in which event Landlord shall join in such proceedings or permit the same to be brought in its name. Landlord shall not ultimately be subjected to any liability for the payment of any costs or expenses in connection with any such proceedings, and Tenant shall indemnify and save harmless Landlord from any such costs and expenses. Tenant shall be entitled to any refund of any imposition and penalties or interest thereon received by Landlord which have been paid by Tenant or which have been paid by Landlord but previously reimbursed in full by Tenant. (9.) Landlord, in the event Tenant has not filed an appeal, reserves unto itself the right to appeal and seek a reduction in the valuation of the Demised Premises for real estate tax purposes. (10.) Tenant is only responsible for its share of Reimbursements and Impositions which come due during Tenant's Term, and Landlord agrees that any improvement assessments will be paid in the maximum number of permitted installments. (B) All insurance premiums incurred by Landlord for policies of insurance maintained on or with respect to the Building, including but not limited to fire and extended coverage insurance, liability insurance, workmen's compensation, rent interruption insurance and any other insurance that Landlord deems necessary to be carried on or with respect to the Building. If the rate of any insurance carried by Landlord is increased as a result of Tenant's use of the Demised Premises, then Tenant shall pay to Landlord as Additional Rent, upon demand, the full amount of any such increase. (C) All customary and reasonable sums expended by Landlord for the maintenance and operation of the Common Areas, and an allowance to Landlord for Landlord's supervision of maintenance and operation of the Common Areas in an amount equal to 15% times the total Common Area Expenses of the Building (excluding Real Estate Taxes and insurance). Costs for maintenance and operation of the common areas shall include by way of example and not by way of limitation, the costs of the following: resurfacing, paving, repainting and restriping, roof repairs, exterminating, cleaning, sweeping, and other maintenance and repair services with respect to the Common Areas of the Building, or any part thereof;; policing and providing for security guards or security patrols; costs for local fire protection; purchasing and maintaining refuse receptacles and costs of trash removal; planting and relandscaping; snow removal; purchasing, constructing, maintaining or repairing car stops, directional signs and other markers; lighting and other utilities; reasonable depreciation allowance on improvements, machinery, and equipment used in connection with the Common Areas; such fees as may be paid to any third party in connection with such maintenance and operation or the management of the Building (such management fees are to be in lieu of the 5% Landlord's supervision fee set forth above); and such other costs as the Landlord, in its reasonable discretion, shall deem necessary for the maintenance and operation of the Common Areas. All Capital Expenditures made to the Building, i.e., expenditures which, in accordance with generally accepted accounting principles, are not fully chargeable to current expense in the year the expenditure is incurred, shall be excluded from Common Area Expenses except the cost of repaving described above, which repaving cost will be amortized over the useful life of the improvement. SECTION 5.02. Landlord may submit to Tenant a statement of anticipated monthly Reimbursements for the period between the Commencement Date and the end of the first Lease Year and for each subsequent Lease Year or fraction thereof. If so, Tenant shall pay such Reimbursements on a pro rata monthly basis concurrent with the payment of the Fixed Rent. Tenant shall continue to make said monthly payments until notified by Landlord of a change thereof. Landlord shall furnish to Tenant a statement showing the total Reimbursements, Tenant's Share of total Reimbursements for the prior Lease Year, and the payments made by Tenant with respect to such Lease Year, within sixty (60) days after the end of each Lease Year. However, Landlord's failure to provide such statement of Reimbursements by the date provided hereinabove shall in no way excuse Tenant from its obligation to pay its pro rata share of Reimbursements or constitute a waiver of Landlord's right to bill and collect such pro rata share of Reimbursements from Tenant ix xxcordance with this Article, provided that Landlord submits a final statement of total reimbursements for a particular calendar year within one year after the end of such calendar year. If Tenant's Share of Reimbursements for the Lease Year exceeds the payments made by Tenant, Tenant shall pay Landlord the deficiency within ten (10) days after receipt of the statement. If Tenant's payments made during the Lease Year exceed Tenant's Share of Reimbursements, Landlord shall credit the sum of such excess toward the monthly Reimbursements next coming due or, if there are insufficient installment periods remaining in Tenant's term, pay same over to Tenant. The actual Reimbursements of the prior Lease Year may be used for the purpose of calculating the anticipated monthly Reimbursements for the then current Lease Year, subject to the right of Landlord to increase the monthly Reimbursements for anticipated increased costs. . Tenant shall have the right, on an annual basis and at Tenant's sole cost, to audit all Common Area costs charged by the Landlord. SECTION 5.03. Landlord shall keep full, complete and proper books, records and accounts of Common Area Expenses. No more than once per annum and upon reasonable written notice, Tenant and its agents and employees shall have the right at any time and at all times during regular business hours to examine and inspect all books and records of Landlord pertaining to Common Area Expenses for the purpose of investigating and verifying the accuracy of any statement of Common Area Expenses. Once in any calendar year, Tenant may cause an audit of Common Area Expenses to be made by an independent certified accountant of Tenant's selection and, if the Common Area Expenses for the accounting period covered by the statement which is the subject of the audit are found to be overstated by more than five percent (5%), Landlord shall immediately pay to Tenant the cost of such audit, not to exceed the lesser of the amount of the discrepancy or One Thousand Dollars ($1,000.00), plus the amount of any overpayment made by Tenant to Landlord, otherwise the cost of such audit shall be paid by Tenant. If the statement of Common Area Expenses which is the subject of the audit is otherwise found to be incorrect, the party found to be owing money shall promptly pay an offsetting sum to the other party.

Appears in 1 contract

Samples: Lease (Yardville National Bancorp)

Common use of Tenant Reimbursements Clause in Contracts