Common use of Operating Cost Increase Clause in Contracts

Operating Cost Increase. If the Operating Costs for any calendar year or partial calendar year during the Term are greater than the Operating Costs for the Base Calendar Year set forth in Section 1.1 (or a prorated amount thereof for any partial calendar year), then Tenant shall pay to Landlord its Proportionate Share set forth in Section 1.1 of such excess, as the same may be adjusted in the event of a remeasurement or change in size of the Premises or Building. Operating Costs for the Base Calendar Year shall be adjusted to reflect an occupancy rate in the Building of ninety-five percent (95%). Landlord may from time to time reasonably estimate the amount due from Tenant under this Section with respect to any calendar year or portion thereof and, commencing no sooner than the first (1st) anniversary of the Term Commencement Date, Tenant shall pay periodically as Landlord may determine, but not more frequently than monthly, the amount of Landlord's estimate as rent with the next due payment of monthly Base Rent. Not later than one hundred twenty (120) days after the end of each calendar year, Landlord shall render Tenant a statement of Operating Costs for such calendar year and any amount due from Tenant or any credit due to Tenant hereunder. Payment by Tenant of any amount due shall be made as additional rent with Tenant's next due payment of monthly Base Rent (or, if the term of this Lease has ended, within ten (10) days of receipt of such statement), and Landlord shall credit the amount of any overpayment against subsequent obligations of Tenant under this clause (or refund such overpayment, if the term of this Lease has ended and Tenant has no further obligations to Landlord). Failure by Landlord to deliver such statement within the one hundred twenty (120) day period does not relieve Tenant of its obligation to pay the charges described herein; provided, however, that in the event that Landlord fails to furnish Tenant with such statement within two (2) years after the end of any calendar year, then Tenant shall not be required to pay Tenant's Proportionate Share of any increase in Operating Costs for that calendar year. (a) Such books and records shall be made available to Tenant at the offices where Landlord keeps the same during normal business hours. (b) Tenant shall have the right to make such examination no more than once in respect of any period in which Landlord has given Tenant a statement of the actual amount of Operating Costs. (c) Any request for examination in respect of any year may be made no more than one (1) year after Landlord renders the statement of the actual amount of Operating Costs for such year, and such examination shall be performed within such one (1) year period. (d) Such examination may be made only by an independent certified public accountant reasonably acceptable to Landlord. Without limiting Landlord's approval rights, Landlord may withhold its approval of any examiner of Tenant who is being paid by Tenant on a contingent fee basis. (e) As a condition to performing any such examination, Tenant and its examiners shall be required to execute and deliver to Landlord an agreement, in form acceptable to Landlord, agreeing to keep confidential any information which it discovers about Landlord or the Building in connection with such examination. If it is determined that Landlord overstated Operating Costs for the year to which Tenant's examination relates by more than 4%, Landlord shall reimburse Tenant for the reasonable costs and expenses incurred by Tenant in performing such examination, but in no event shall such reimbursement exceed $2,000.00; and if it is determined that Landlord understated Operating Costs for the year to which Tenant's examination relates, Landlord shall reimburse Tenant for the reasonable costs and expenses incurred by Tenant in performing such examination, but in no event shall such reimbursement exceed the amount of Tenant's underpayment on account of Operating Costs for such year. If it is determined that there was an overpayment or underpayment on account of Operating Costs for the year to which Tenant's examination relates, Landlord shall reimburse Tenant, or Tenant shall pay to Landlord, within thirty (30) days of such determination, the amount of such overpayment or underpayment (as the case may be).

Operating Cost Increase. If a. Tenant covenants and agrees to pay to Landlord, as Operating Cost Increase for each Cost Increase Year during the Lease Term a sum computed by subtracting the Operating Cost Base from the Common Area Costs shown on the Operating Statement for the Cost Increase Year in question, and multiplying the result by Tenant’s Proportionate Share. Under no circumstances shall Tenant be entitled to any refund of or credit against Common Area Costs for any calendar year or partial calendar year during the Term are greater Cost Increase Year should Common Area Costs ever be less than the Operating Costs for Cost Base. Within 120 days after the Base Calendar expiration of each Cost Year set forth Increase Year, Landlord shall furnish Tenant with an Operating Statement. The Operating Cost Increase shall, except as provided in Section 1.1 section (or a prorated amount thereof b) below, be due from Tenant 30 days from receipt of such Operating Statement. b. Landlord may deliver an Estimated Operating Statement for any partial calendar year)Cost Increase Year. If and when so delivered from time-to-time, then Tenant shall pay to Landlord its Proportionate Share set forth in Section 1.1 of such excess, as the same may be adjusted in the event of a remeasurement or change in size of the Premises or Building. Operating Costs for the Base Calendar Year shall be adjusted to reflect an occupancy rate in the Building of ninety-five percent (95%). Landlord may from time to time reasonably estimate the amount due from Tenant under this Section with respect to any calendar year or portion thereof and, commencing no sooner than advance on the first (1st) anniversary of the Term Commencement Date, Tenant shall pay periodically as Landlord may determine, but not more frequently than monthly, the amount of Landlord's estimate as rent with the next due payment of monthly Base Rent. Not later than one hundred twenty (120) days after the end day of each calendar yearmonth the monthly Estimated Operating Cost Increase installments provided for in such Estimated Operating statement, such payments to continue until another Estimated Operating Statement is delivered. Upon the delivery of an Operating Statement for an Cost Increase Year for which Estimated Operating Cost increase installments were paid by Tenant, Tenant shall, within 30 days thereafter, pay to Landlord shall render Tenant a statement the sum of (x) the excess, if any, of the Estimated Operating Costs for such calendar year and any amount due from Tenant or any credit due to Tenant hereunder. Payment Cost Increase installments paid by Tenant of any amount due shall be made as additional rent with Tenant's next due payment of monthly Base Rent (or, if the term of this Lease has ended, within ten (10) days of receipt of such statement), and Landlord shall credit the amount of any overpayment against subsequent obligations of Tenant under this clause (or refund such overpayment, if the term of this Lease has ended and Tenant has no further obligations to Landlord). Failure by Landlord to deliver such statement within the one hundred twenty (120) day period does not relieve Tenant of its obligation to pay the charges described herein; provided, however, that in the event that Landlord fails to furnish Tenant with such statement within two (2) years after the end of any calendar year, then Tenant shall not be required to pay Tenant's Proportionate Share of any increase in Operating Costs for that calendar year. (a) Such books and records shall be made available to Tenant at the offices where Landlord keeps the same during normal business hours. (b) Tenant shall have the right to make such examination no more than once in respect of any period in which Landlord has given Tenant a statement such Cost Increase Year, and (y) the excess, if any, of the actual amount of Estimated Operating Costs. (c) Any request Cost Increase installments due for examination in respect of any year may be made no more than one (1) year after Landlord renders the statement of current Cost Increase Year as shown on the actual amount of current Estimated Operating Costs for such year, and such examination shall be performed within such one (1) year period. (d) Such examination may be made only by an independent certified public accountant reasonably acceptable to Landlord. Without limiting Landlord's approval rights, Landlord may withhold its approval of any examiner of Tenant who is Statement over the Estimated Operating Cost Increase installments then being paid by Tenant multiplied by the number of months which has elapsed, in whole or in part, since the commencement of the current Cost Increase Year. If Tenant’s Estimated Operating Cost Increase installments for the prior or current Cost Increase Year shall exceed the Operating Cost Increase due for the prior Cost Increase Year or the Estimated Operating Cost Increase due for the current Cost Increase Year, respectively such excess shall first be credited against any amounts shown due on the Operating Statement and the Estimated Operating Statement and the balance, if any shall be credited against the next succeeding installment or installments of Operating Cost Increase becoming due hereunder; provided however that if the Lease Term shall expire or this Lease shall terminate prior to full application of such credit, any balance due Tenant shall be refunded to Tenant by Landlord. c. Operating Cost Increase shall be prorated on a contingent fee daily basis for any Cost Increase Year not wholly falling within the Lease Term.” d. Operating Cost Increases shall be capped at six percent per annum on a cumulative basis. As used herein “controllable” costs shall exclude any costs not reasonably with Landlord’s control such as costs for taxes, utility costs, and insurance. (e) As a condition 10. The holdover rate in Section 2.10 of the Lease is hereby amended to performing any such examination, Tenant be 1.75 times the Base Rent. Section 4.1 of the Lease is hereby deleted in its entirety and its examiners shall be required to execute and deliver to Landlord an agreement, in form acceptable to Landlord, agreeing to keep confidential any information which it discovers about Landlord or the Building in connection with such examination. If it is determined that Landlord overstated Operating Costs for the year to which Tenant's examination relates by more than 4%, Landlord shall reimburse Tenant for the reasonable costs and expenses incurred by Tenant in performing such examination, but in no event shall such reimbursement exceed $2,000.00; and if it is determined that Landlord understated Operating Costs for the year to which Tenant's examination relates, Landlord shall reimburse Tenant for the reasonable costs and expenses incurred by Tenant in performing such examination, but in no event shall such reimbursement exceed the amount of Tenant's underpayment on account of Operating Costs for such year. If it is determined that there was an overpayment or underpayment on account of Operating Costs for the year to which Tenant's examination relates, Landlord shall reimburse Tenant, or Tenant shall pay to Landlord, within thirty (30) days of such determination, the amount of such overpayment or underpayment (replaced as the case may be).follows: