Common use of Escalation Rent Clause in Contracts

Escalation Rent. For the avoidance of doubt, this Section 3.3: (a) uses the definitions set forth in Section 3.4 below, and (b) provides the methods for calculating operating expense, tax, and business improvement district assessment payments due from Subtenant hereunder, which are in lieu of the provisions set forth in Sections 4.01,4.02 and 4.03 of the Lease (which pursuant to Section 6.3(b) hereof are expressly excluded from incorporation herein except to the extent necessary to calculate the amounts payable by Subtenant under this Sublease (and except as may otherwise be provided in this Section 3.3, Section 3.4 hereof or Section 6.3(b) hereof). In addition to the Base Rent, Subtenant covenants and agrees to pay to Sublandlord commencing on the Rent Commencement Date, an amount (collectively, “Escalation Rent” and, together with the Base Rent and all Additional Rent payable hereunder, the “Rental”! equal to: (i) the Tax Escalation Payment (as hereinafter defined) plus (ii) the Operating Expense Escalation Payment (as hereinafter defined) plus (iii) the BID Escalation Payment (as hereinafter defined). Escalation Rent shall be payable by Subtenant to Sublandlord in the same manner as the same is payable by Sublandlord to Landlord under Article 4 of the Lease; except that, with respect to any such amounts that do not recur monthly, Subtenant shall, upon receipt of written notice or an invoice therefor from Sublandlord, pay such amounts directly to Sublandlord no later than fifteen (15) days after receipt of Sublandlord’s notice or invoice. Escalation Rent shall be prorated, if necessary, to correspond with that portion of a Tax Year (as defined in the Lease) or an Operating Expense Year (as defined in the Lease) occurring during the Term. Promptly following its receipt of any Estimated Tax Statement pursuant to Section 4.02.B(ii) of the Lease, Estimated BID Statement pursuant to Section 4.02.D(ii) of the Lease and/or Estimated Operating Expense Statement pursuant to Section 4.03.B(ii) of the Lease or of any Tax Statement pursuant to Section 4.02.B(iii) of the Lease, BID Statement pursuant to Section 4.02.D(iii) of the Lease and/or Operating Expense Statement pursuant to Section 4.03.B(iii) of the Lease, Sublandlord shall calculate the Escalation Rent payable by Subtenant in accordance with the terms of this Sublease. After making the aforesaid calculations, Sublandlord shall send a statement (“Sublandlord's Statement”) to Subtenant, along with a copy of such Estimated Tax Statement, Estimated BID Statement, Estimated Operating Expense Statement, Tax Statement, BID Statement and/or Operating Expense Statement and any other supporting documentation received from Landlord, which statement shall set forth the Escalation Rent payable by Subtenant and the manner in which it was derived. In the event that Sublandlord receives a refund from Landlord in connection with any Escalation Rent payment, Sublandlord shall promptly refund to Subtenant Subtenant's Proportionate Tax Share or Subtenant's Proportionate Operating Expense Share (each such term as hereinafter defined), as applicable, of such amount refunded, after first deducting a proportionate amount of Sublandlord's reasonable out-of-pocket costs, if any, in obtaining such rent abatement or refund calculated based on the percentage of the total amount of the refund which is payable to Subtenant. Sublandlord agrees that in the event that Sublandlord makes any objection under Article 4 of the Lease, such objection shall not be resolved in a manner that unreasonably discriminates against Subtenant. For the avoidance of doubt, (x) notwithstanding the foregoing, Subtenant shall not owe any Operating Expense Escalation Payment, BID Escalation Payment or Tax Escalation Payment for any period prior to the date which is the first (1st) anniversary of the Commencement Date (the “Free Escalation Period”) and (y) from and after the expiration of the Free Escalation Period, Subtenant shall owe Operating Expense Escalation Payments even if the Free Escalation Period expires on or prior to December 31, 2021 notwithstanding the fact that amounts incurred by Sublandlord in calendar year 2021 are used to calculate the Base Operating Expense Payment.

Escalation Rent. For the avoidance of doubt, this Section 3.3: (a) uses the definitions set forth in Section 3.4 below, and (b) provides the methods for calculating operating expense, tax, and business improvement district assessment payments due from Subtenant hereunder, which are in lieu of the provisions set forth in Sections 4.01,4.02 and 4.03 of the Lease (which pursuant to Section 6.3(b) hereof are expressly excluded from incorporation herein except to the extent necessary to calculate the amounts payable by Subtenant under this Sublease (and except as may otherwise be provided in this Section 3.3, Section 3.4 hereof or Section 6.3(b) hereof). In addition to the Base Rentannual Fixed Rent reserved in Article 3 hereof, Subtenant Tenant covenants and agrees to pay to Sublandlord commencing on the Rent Commencement DateSublandlord, an amount as additional rent (collectively, “Escalation "Additional Rent” and, together with the Base Rent and all Additional Rent payable hereunder"), the “Rental”! equal to: following: (i) the Tax Escalation Payment (as hereinafter defined) plus (ii) the Operating Expense Escalation Payment (as hereinafter defined) plus (iii) the BID Escalation Payment (as hereinafter defined). Escalation Rent shall be payable by Subtenant All sums which Sublandlord is required to Sublandlord in the same manner as the same is payable by Sublandlord pay to Landlord under Overlandlord pursuant to Article 4 5 of the Lease; except that, ▇▇▇▇▇▇▇▇▇ with respect to any such amounts that do not recur monthly, Subtenant shall, upon receipt the term of written notice or an invoice therefor from Sublandlord, pay such amounts directly to Sublandlord no later than fifteen (15) days after receipt this Sublease in respect of Sublandlord’s notice or invoice. Escalation Rent shall be prorated, if necessary, to correspond with that portion of a Tax Year Operating Expenses (as defined in the Lease▇▇▇▇▇▇▇▇▇) or an Operating Expense Year in excess of the sums required to be paid by Sublandlord pursuant to Article 5 of the ▇▇▇▇▇▇▇▇▇ for the year 1998 and (y) in respect of Real Estate Taxes (as defined in the Lease▇▇▇▇▇▇▇▇▇) occurring during in excess of the Termaverage of the sums required to be paid by Sublandlord pursuant to Article 5 of the ▇▇▇▇▇▇▇▇▇ with respect to the fiscal tax year 1997-1998 and fiscal tax year 1998-1999. Promptly following its receipt Tenant shall have no obligation to pay any Additional Rent with respect to Real Estate Taxes for the fiscal tax year 1997-1998. (ii) Any other sums which become due and payable by Sublandlord to Overlandlord as Additional Rent (as defined in Section 2 of the ▇▇▇▇▇▇▇▇▇) or otherwise which would not have become due and payable but for the acts and/or failures to act of Tenant under this Sublease or which are otherwise attributable to the Subleased Premises ("Tenant Surcharges"), including, but not limited to: (w) any Estimated Tax Statement increase in Overlandlord's fire, rent or other insurance premiums as provided in Article 11 of the ▇▇▇▇▇▇▇▇▇ resulting from any act or omission of Tenant; (x) any additional charges to Sublandlord on account of Tenant's use of heating, ventilation or air conditioning after hours as provided in Section 9.2 of the ▇▇▇▇▇▇▇▇▇; and (y) any additional charges to Sublandlord on account of Tenant's use of cleaning services after hours or in excess of normal usage, as provided in Section 9.4 of the ▇▇▇▇▇▇▇▇▇. Notwithstanding the foregoing, however, Tenant shall not be obligated to pay any Additional Rent with respect to amounts payable by Landlord to Overlandlord pursuant to Section 4.02.B(ii) 15.7 of the Lease▇▇▇▇▇▇▇▇▇ with respect to the profits and consideration payable to Overlandlord by Landlord as a result of this Sublease. (b) The parties hereto agree that Sublandlord shall have all of the rights and remedies with respect to the nonpayment by Tenant of the Additional Rent provided for in this Article 4 and all other costs, Estimated BID Statement charges and expenses provided for in this Sublease as are provided for in this Sublease or by law in case of the nonpayment of annual Fixed Rent provided for hereunder. Tenant shall have all of the rights and remedies with respect to contesting such Additional Rent, receiving refunds for overpayments or receiving statements from Overlandlord with respect to such Additional Rent as are provided to Sublandlord under the ▇▇▇▇▇▇▇▇▇. The statement or statements referred to in this paragraph (b) shall be accompanied by copies of all statements received by Sublandlord from Overlandlord on which such statement or statements are based. In the event that Tenant desires to exercise Sublandlord's rights pursuant to Section 4.02.D(ii) Article 5 of the Lease ▇▇▇▇▇▇▇▇▇ ("Article 5") and/or Estimated Operating Expense Statement to contest such statement from Overlandlord, Tenant shall submit to Sublandlord a notice requesting Sublandlord to forward to Overlandlord Tenant's request to exercise Sublandlord's rights pursuant to Section 4.03.B(ii) Article 5 and/or Tenant's notice contesting such statement setting forth therein the reasons for such contest, as the case may be. Sublandlord shall promptly forward such Tenant's notice to Overlandlord. Sublandlord shall in no event be liable to Tenant nor shall Tenant be excused from the performance or observance of any of its obligations to be performed or observed under this Sublease, or entitled to terminate this Sublease or to receive any reduction in or abatement of the Lease or annual Fixed Rent, Additional Rent and other charges provided for in this Sublease, because of any Tax Statement pursuant error in any statement submitted by Overlandlord, except as may be permitted to Section 4.02.B(iii) Sublandlord as tenant under the ▇▇▇▇▇▇▇▇▇. If Overlandlord shall fail to correct any such statement so contested by Tenant, Sublandlord shall, upon notice, permit Tenant, at Tenant's sole cost and expense, to enforce Sublandlord's rights against Overlandlord with respect to the Subleased Premises in Sublandlord's name or in Tenant's name as agent for Sublandlord; provided, however, that Tenant shall indemnify and hold harmless Sublandlord from and against all liability, loss, claims, demands, penalties or damage which Sublandlord may incur or suffer by reason of such action, except any such liability, loss, claims, demands, penalties or damage which Sublandlord may incur or suffer by reason of Sublandlord's acts or omissions or the Lease, BID Statement pursuant acts or omissions of any other subtenant of Sublandlord under the ▇▇▇▇▇▇▇▇▇. Sublandlord agrees to Section 4.02.D(iii) cooperate with Tenant in such action and shall execute any and all documents reasonably required in furtherance of such action. In the Lease and/or Operating Expense Statement pursuant event that as a result of Tenant's action Sublandlord shall receive a refund relating to Section 4.03.B(iii) of the Leasesuch contested statement, Sublandlord shall calculate pay to Tenant, out of such refund, an amount equal to the Escalation reasonable costs and expenses incurred by Tenant in connection therewith upon presentation of receipted bills therefor, and Tenant's Proportionate Share of the balance of such refund. (c) Tenant shall pay Sublandlord the Additional Rent payable set forth in paragraph (a) of this Article 4 promptly and in no event later than five (5) days after the presentation of a statement therefor by Subtenant Sublandlord to Tenant. Tenant covenants to pay the Additional Rent when due, and in lawful money of the United States, notwithstanding that Tenant may have cause to protest such statement. Any such protest may be made in accordance with paragraph (b) hereof, but shall not relieve Tenant of its obligation to pay Additional Rent when due hereunder, provided that Sublandlord's corresponding obligation to pay Additional Rent under the ▇▇▇▇▇▇▇▇▇ similarly is not relieved. Any delay by Sublandlord in billing any sum set forth in paragraph (a) of this Article 4 shall not constitute a waiver of or in any way impair Tenant's obligation to pay the same in accordance with the terms of this Sublease. After making . (d) Tenant's obligation to pay the aforesaid calculationsAdditional Rent provided for in this Article 4 during the term of this Sublease, Sublandlord shall send a statement (“as well as Sublandlord's Statement”) obligation to Subtenant, along with a copy of such Estimated Tax Statement, Estimated BID Statement, Estimated Operating Expense Statement, Tax Statement, BID Statement and/or Operating Expense Statement and any other supporting documentation received from Landlord, which statement shall set forth the Escalation Rent payable by Subtenant and the manner in which it was derived. In the event that Sublandlord receives a refund from Landlord in connection with any Escalation Rent payment, Sublandlord shall promptly refund pay to Subtenant SubtenantTenant Tenant's Proportionate Tax Share of the balance of any refund in accordance with the last sentence of paragraph 4(b) hereof, shall survive the expiration or Subtenant's Proportionate Operating Expense Share earlier termination of this Sublease. (each such term as hereinafter defined)e) Notwithstanding anything herein contained to the contrary, with respect to electric current, Tenant shall pay, as applicableAdditional Rent, of to Sublandlord such amount refunded, after first deducting a proportionate amount of Sublandlord's reasonable out-of-pocket costs, if any, amounts as Sublandlord is required to pay for electric current consumed in obtaining such rent abatement or refund calculated based on the percentage Subleased Premises pursuant to Section 9.1 of the total amount of the refund which is payable to Subtenant. Sublandlord agrees that in the event that Sublandlord makes any objection under Article 4 of the Lease, such objection shall not be resolved in a manner that unreasonably discriminates against Subtenant. For the avoidance of doubt, (x) notwithstanding the foregoing, Subtenant shall not owe any Operating Expense Escalation Payment, BID Escalation Payment or Tax Escalation Payment for any period prior to the date which is the first (1st) anniversary of the Commencement Date (the “Free Escalation Period”) and (y) from and after the expiration of the Free Escalation Period, Subtenant shall owe Operating Expense Escalation Payments even if the Free Escalation Period expires on or prior to December 31, 2021 notwithstanding the fact that amounts incurred by Sublandlord in calendar year 2021 are used to calculate the Base Operating Expense Payment▇▇▇▇▇▇▇▇▇.