Payment of Additional Rent. In addition to the Minimum Annual Rent specified in this Lease, Tenant shall pay to Landlord as "Additional Rent" for the Leased Premises, in each calendar year or partial calendar year, during the Lease Term, an amount equal to the Annual Rental Adjustment excluding Real Estate Taxes for such calendar year or partial calendar year. In the case of the calendar year of the Commencement Date, Landlord shall provide such notice prior to the Commencement Date. The Annual Rental Adjustment excluding Real Estate Taxes shall be estimated annually by Landlord, and written notice thereof shall be given to Tenant prior to the beginning of each calendar year. Tenant shall pay to Landlord each month, at the same time the Monthly Rental Installment is due, an amount equal to one-twelfth (1/12) of the estimated Annual Rental Adjustment excluding Real Estate Taxes. If the cost of utility, janitorial or other services increase during a calendar year, Landlord may increase the estimated Annual Rental Adjustment excluding Real Estate Taxes during such year by giving Tenant written notice to that effect, and thereafter Tenant shall pay to Landlord, in each of the remaining months of such year, an amount equal to the amount of such increase in the estimated Annual Rental Adjustment excluding Real Estate Taxes for the remainder of the year divided by the number of months remaining in such year. Within a reasonable time after the end of each calendar year, Landlord shall prepare and deliver to Tenant a statement showing the actual Annual Rental Adjustment excluding Real Estate Taxes. Within thirty (30) days after receipt of the aforementioned statement, Tenant shall pay to Landlord, or Landlord shall credit against the next rent payment or payments due from Tenant, as the case may be, the difference between the actual Annual Rental Adjustment excluding Real Estate Taxes for the preceding calendar year and the estimated amount paid by Tenant to Landlord during such year. In addition, Tenant shall pay, before delinquency, any and all Real Estate Taxes as defined in Section 3.02.D, above, directly to the appropriate taxing authority. If Tenant fails for any reason to pay the Real Estate Taxes when same is due and payable, Landlord shall have the right, but not the obligation, to pay the Real Estate Taxes directly to the taxing authority and Tenant shall immediately reimburse Landlord for the cost thereof. Such amount shall accrue interest from the date Landlord pays such amount, pursuant to Section 3.04, below, shall include any penalties, late fees and any interest assessed due to such delinquency. Tenant or its accountants shall have the right to inspect, at reasonable time and in a reasonable manner, during the one hundred twenty (120) day period following the delivery of Landlord's statement of the actual amount of the Annual Rental Adjustment excluding Real Estate Taxes, such of Landlord's books of account and records as pertain to and contain information concerning such costs and expenses for the Building for the prior calendar year in order to verify the amounts thereof. In the event the first audit discloses (i) errors made during the prior calendar year which, when totaled, indicate that the sum overcharged to and paid by Tenant, exceeds five percent (5%) of the Annual Rental Adjustment excluding Real Estate Taxes plus Landlord's Share of Operating Expenses (the "Total Expenses"), the audit shall be at the expense of Landlord, not to exceed Two Thousand Five Hundred Dollars ($2,500.00), or (ii) no errors or an error which equals or is less than five percent (5%) of the Total Expenses, the audit shall be at the expense of Tenant. For each subsequent audit, where the audit discloses errors exceeding five percent (5%) of the Total Expenses, Landlord shall pay for such audit and, if the audit discloses errors equal to or less than five percent (5%) of the Total Expenses, Tenant shall pay the costs of the audit. If Landlord spends more than eight (8) hours to accommodate Tenant's right to audit hereunder, Tenant shall also pay to Landlord as additional rent Seventy-five Dollars ($75.00) per hour for each additional hour that Tenant's audit takes of Landlord's property manager's or asset manager's time, provided such audit discloses no error or an error greater than five percent (5%) of the Total Expenses. The results of the audit (regardless of the degree of the error, if any) shall be binding upon Landlord and Tenant, and Landlord shall thereafter, if appropriate, change its method of calculating the Operating Expenses consistent with the results of the audit. Tenant agrees to hold the information obtained from such audit confidential and shall not disclose the same without Landlord's express written permission except as necessary to enforce the Lease or protect Tenant's rights hereunder. If Tenant shall not elect to cause an audit within the time period permitted hereby, then Landlord's statement shall be conclusively deemed to have been approved and accepted by Tenant. Pending resolution of any dispute with respect to statements of Tenant's Annual Rental Adjustment, Tenant shall pay its Annual Rental Adjustment as shown on such statement, and upon final determination of the amount of Tenant's Annual Rental Adjustment, Landlord shall promptly refund any overpayment to Tenant or Tenant shall promptly pay any amount due to Landlord, as applicable.
Appears in 6 contracts
Samples: Office Lease (Interactive Intelligence Group, Inc.), Office Lease (Interactive Intelligence Group, Inc.), Office Lease (Interactive Intelligence Group, Inc.)
Payment of Additional Rent. In addition to the Minimum Annual All Additional Rent specified in this Lease, shall be paid by Tenant shall pay to Landlord in equal monthly installments concurrent with the Rent. Payments of Additional Rent shall be calculated as "Additional Rent" for follows: on, or before the Leased Premises, in each calendar year or partial calendar year, during the Lease commencement date of this Term, an amount equal to the Annual Rental Adjustment excluding Real Estate Taxes for such calendar year or partial calendar year. In the case of the calendar year of the Commencement Date, Landlord shall provide such notice prior to give Tenant a statement of the Commencement Date. The Annual Rental Adjustment excluding Real Estate Taxes shall be estimated annually by Landlordannual CAM Costs, Tax Costs, and written notice thereof shall be given to Tenant prior to Insurance Costs for the beginning Property ("Estimate of each calendar yearCosts"). Tenant shall pay Additional Rent to Landlord each month, at based upon the same time Estimate of Costs divided by twelve (12). The Estimate of Costs shall be the Monthly Rental Installment is due, an amount equal to one-twelfth (1/12) of the estimated Annual Rental Adjustment excluding Real Estate Taxes. If the cost of utility, janitorial or other services increase during a calendar year, Landlord may increase the estimated Annual Rental Adjustment excluding Real Estate Taxes during such year by giving Tenant written notice to that effect, and thereafter Tenant shall pay to Landlord, in each of the remaining months basis of such year, an amount equal to the amount Additional Rent calculated until Tenant is notified by Landlord of such increase in the estimated Annual Rental Adjustment excluding Real Estate Taxes for the remainder of the year divided by the number of months remaining in such yeara change thereof. Within a reasonable time after ninety (90) days of the end of each calendar year, Landlord shall prepare compute actual CAM Costs, Tax Costs, and deliver to Insurance Costs for the preceding year (the "Actual Costs"). Landlord shall provide Tenant with a statement showing of Actual Costs. In the actual Annual Rental Adjustment excluding Real Estate Taxes. Within thirty (30) days after receipt event that Tenant's payment of Additional Rent for said calendar year totals less than the Tenant's pro-rata share of the aforementioned statementActual Costs, Tenant shall be obligated to pay to Landlord, or Landlord shall credit against the next rent payment or payments due from Tenant, as the case may bewithin ten (10) days of receipt of statement, the difference between the actual Annual Rental Adjustment excluding Real Estate Taxes for the preceding calendar year Tenant's pro-rata share of Actual Costs and the estimated amount Additional Rent actually paid by Tenant to Landlord during such for said calendar year. In addition, Tenant shall pay, before delinquency, any and all Real Estate Taxes as defined in Section 3.02.D, above, directly to the appropriate taxing authority. If Tenant fails event Tenant's Additional Rent actually paid for any reason to pay the Real Estate Taxes when same is due and payable, Landlord shall have the right, but not the obligation, to pay the Real Estate Taxes directly to the taxing authority and Tenant shall immediately reimburse Landlord for the cost thereof. Such amount shall accrue interest from the date Landlord pays such amount, pursuant to Section 3.04, below, shall include any penalties, late fees and any interest assessed due to such delinquency. Tenant or its accountants shall have the right to inspect, at reasonable time and in a reasonable manner, during the one hundred twenty (120) day period following the delivery said calendar year exceeds Tenant's pro-rata share of Landlord's statement of the actual amount of the Annual Rental Adjustment excluding Real Estate TaxesActual Costs, such excess shall be credited to Tenant's account. The Actual Costs of Landlord's books of account and records as pertain to and contain information concerning such costs and expenses for the Building for the prior calendar year in order to verify the amounts thereof. In the event the first audit discloses (i) errors made during the prior calendar year which, when totaled, indicate that the sum overcharged to and paid by Tenant, exceeds five percent (5%) of the Annual Rental Adjustment excluding Real Estate Taxes plus Landlord's Share of Operating Expenses (the "Total Expenses"), the audit shall be at used for the expense of Landlord, not to exceed Two Thousand Five Hundred Dollars ($2,500.00), or (ii) no errors or an error which equals or is less than five percent (5%) of the Total Expenses, the audit shall be at the expense of Tenant. For each subsequent audit, where the audit discloses errors exceeding five percent (5%) of the Total Expenses, Landlord shall pay for such audit and, if the audit discloses errors equal to or less than five percent (5%) of the Total Expenses, Tenant shall pay the costs of the audit. If Landlord spends more than eight (8) hours to accommodate Tenant's right to audit hereunder, Tenant shall also pay to Landlord as additional rent Seventy-five Dollars ($75.00) per hour for each additional hour that Tenant's audit takes of Landlord's property manager's or asset manager's time, provided such audit discloses no error or an error greater than five percent (5%) of the Total Expenses. The results of the audit (regardless of the degree of the error, if any) shall be binding upon Landlord and Tenant, and Landlord shall thereafter, if appropriate, change its method purpose of calculating the Operating Expenses consistent with Estimate of Costs for the results of the audit. Tenant agrees to hold the information obtained from such audit confidential and shall not disclose the same without Landlord's express written permission except as necessary to enforce the Lease or protect Tenant's rights hereunder. If Tenant shall not elect to cause an audit within the time period permitted hereby, then Landlord's statement shall be conclusively deemed to have been approved and accepted by Tenant. Pending resolution of any dispute with respect to statements of Tenant's Annual Rental Adjustment, Tenant shall pay its Annual Rental Adjustment as shown on such statement, and upon final determination of the amount of Tenant's Annual Rental Adjustment, Landlord shall promptly refund any overpayment to Tenant or Tenant shall promptly pay any amount due to Landlord, as applicablecurrent year.
Appears in 4 contracts
Samples: A) Lease Agreement (Nutritional High International Inc), Lease Agreement (Nutritional High International Inc), Lease Agreement (Nutritional High International Inc)
Payment of Additional Rent. In addition Landlord shall have the right to reasonably estimate the Operating Expenses for each Operating Year. Upon Landlord’s or Agent’s notice to Tenant of such estimated amount, Tenant shall pay, on the first day of each month during that Operating Year, an amount (the “Estimated Additional Rent”) equal to the Minimum Annual estimate of the Tenant’s Proportionate Share of Operating Expenses divided by 12 (or the fractional portion of the Operating Year remaining at the time Landlord delivers its notice of the estimated amounts due from Tenant for that Operating Year). If the aggregate amount of Estimated Additional Rent specified in this Leaseactually paid by Tenant during any Operating Year is less than Tenant’s actual ultimate liability for Operating Expenses for that particular Operating Year, Tenant shall pay to Landlord as "Additional Rent" for the Leased Premises, in each calendar year or partial calendar year, during the Lease Term, an amount equal to the Annual Rental Adjustment excluding Real Estate Taxes for such calendar year or partial calendar year. In the case of the calendar year of the Commencement Date, Landlord shall provide such notice prior to the Commencement Date. The Annual Rental Adjustment excluding Real Estate Taxes shall be estimated annually by Landlord, and written notice thereof shall be given to Tenant prior to the beginning of each calendar year. Tenant shall pay to Landlord each month, at the same time the Monthly Rental Installment is due, an amount equal to one-twelfth (1/12) of the estimated Annual Rental Adjustment excluding Real Estate Taxes. If the cost of utility, janitorial or other services increase during a calendar year, Landlord may increase the estimated Annual Rental Adjustment excluding Real Estate Taxes during such year by giving Tenant written notice to that effect, and thereafter Tenant shall pay to Landlord, in each of the remaining months of such year, an amount equal to the amount of such increase in the estimated Annual Rental Adjustment excluding Real Estate Taxes for the remainder of the year divided by the number of months remaining in such year. Within a reasonable time after the end of each calendar year, Landlord shall prepare and deliver to Tenant a statement showing the actual Annual Rental Adjustment excluding Real Estate Taxes. Within deficiency within thirty (30) days after receipt of Landlord’s written demand therefor. If the aforementioned statement, Tenant shall pay to Landlord, or Landlord shall credit against the next rent payment or payments due from Tenant, as the case may be, the difference between the actual Annual Rental Adjustment excluding Real Estate Taxes for the preceding calendar year and the estimated aggregate amount of Estimated Additional Rent actually paid by Tenant to Landlord during a given Operating Year exceeds Tenant’s actual liability for such year. In additionOperating Year (“Excess Additional Rent”), the Excess Additional Rent shall be credited against the Estimated Additional Rent next due from Tenant shall payafter Landlord’s determination that Excess Additional Rent has been paid by Tenant; provided, before delinquencyhowever, any and all Real Estate Taxes as defined in Section 3.02.D, above, directly to the appropriate taxing authority. If event that Tenant fails for any reason to pay the Real Estate Taxes when same is due and payable, Landlord shall have the right, but not the obligation, to pay the Real Estate Taxes directly to the taxing authority and Tenant shall immediately reimburse Landlord for the cost thereof. Such amount shall accrue interest from the date Landlord pays such amount, pursuant to Section 3.04, below, shall include any penalties, late fees and any interest assessed due to such delinquency. Tenant or its accountants shall have the right to inspect, at reasonable time and in a reasonable manner, Excess Additional Rent during the one hundred twenty (120) day period following final Lease Year, then upon the delivery expiration of the Term, and determination, by Landlord's statement , of the actual amount of the Annual Rental Adjustment excluding Real Estate Taxes, such of Landlord's books of account and records as pertain to and contain information concerning such costs and expenses for the Building for the prior calendar year in order to verify the amounts thereof. In the event the first audit discloses (i) errors made during the prior calendar year which, when totaled, indicate that the sum overcharged to and paid by Tenant, exceeds five percent (5%) of the Annual Rental Adjustment excluding Real Estate Taxes plus Landlord's Share of Operating Expenses (the "Total Expenses"), the audit shall be at the expense of Landlord, not to exceed Two Thousand Five Hundred Dollars ($2,500.00), or (ii) no errors or an error which equals or is less than five percent (5%) of the Total Expenses, the audit shall be at the expense of Tenant. For each subsequent audit, where the audit discloses errors exceeding five percent (5%) of the Total ExpensesExcess Additional Rent, Landlord or Agent shall pay for such audit and, if Tenant the audit discloses errors equal to or less than five percent (5%) of the Total Expenses, Tenant shall pay the costs of the audit. If Landlord spends more than eight (8) hours to accommodate Tenant's right to audit hereunder, Tenant shall also pay to Landlord as additional rent Seventythen-five Dollars ($75.00) per hour for each additional hour that Tenant's audit takes of Landlord's property manager's or asset manager's time, provided such audit discloses no error or an error greater than five percent (5%) of the Total Expenses. The results of the audit (regardless of the degree of the error, if any) shall be binding upon Landlord and Tenant, and Landlord shall thereafter, if appropriate, change its method of calculating the Operating Expenses consistent with the results of the audit. Tenant agrees to hold the information obtained from such audit confidential and shall not disclose the same without Landlord's express written permission except as necessary to enforce the Lease or protect Tenant's rights hereunder. If Tenant shall not elect to cause an audit within the time period permitted hereby, then Landlord's statement shall be conclusively deemed to have been approved and accepted by Tenant. Pending resolution of any dispute with respect to statements of Tenant's Annual Rental Adjustment, Tenant shall pay its Annual Rental Adjustment as shown on such statement, and upon final determination of the amount of Tenant's Annual Rental Adjustment, Landlord shall promptly refund any overpayment to Tenant or Tenant shall promptly pay any amount due to Landlord, as applicableapplicable Excess Additional Rent.
Appears in 4 contracts
Samples: Letter (Clearfield, Inc.), NANOPHASE TECHNOLOGIES Corp, Spectranetics Corp
Payment of Additional Rent. In addition Landlord shall have the right to reasonably estimate the Operating Expenses for each Operating Year. Upon Landlord’s or Agent’s notice to Tenant of such estimated amount, Tenant shall pay, on the first day of each month during that Operating Year, an amount (the “Estimated Additional Rent”) equal to the Minimum Annual estimate of the Tenant’s Proportionate Share of Operating Expenses divided by 12 (or the fractional portion of the Operating Year remaining at the time Landlord delivers its notice of the estimated amounts due from Tenant for that Operating Year). If the aggregate amount of Estimated Additional Rent specified in this Leaseactually paid by Tenant during any Operating Year is less than Tenant’s actual ultimate liability for Operating Expenses for that particular Operating Year, Tenant shall pay to Landlord as "Additional Rent" for the Leased Premises, in each calendar year or partial calendar year, during the Lease Term, an amount equal to the Annual Rental Adjustment excluding Real Estate Taxes for such calendar year or partial calendar year. In the case of the calendar year of the Commencement Date, Landlord shall provide such notice prior to the Commencement Date. The Annual Rental Adjustment excluding Real Estate Taxes shall be estimated annually by Landlord, and written notice thereof shall be given to Tenant prior to the beginning of each calendar year. Tenant shall pay to Landlord each month, at the same time the Monthly Rental Installment is due, an amount equal to one-twelfth (1/12) of the estimated Annual Rental Adjustment excluding Real Estate Taxes. If the cost of utility, janitorial or other services increase during a calendar year, Landlord may increase the estimated Annual Rental Adjustment excluding Real Estate Taxes during such year by giving Tenant written notice to that effect, and thereafter Tenant shall pay to Landlord, in each of the remaining months of such year, an amount equal to the amount of such increase in the estimated Annual Rental Adjustment excluding Real Estate Taxes for the remainder of the year divided by the number of months remaining in such year. Within a reasonable time after the end of each calendar year, Landlord shall prepare and deliver to Tenant a statement showing the actual Annual Rental Adjustment excluding Real Estate Taxes. Within deficiency within thirty (30) days after receipt of Landlord’s written demand therefor. If the aforementioned statement, Tenant shall pay to Landlord, or Landlord shall credit against the next rent payment or payments due from Tenant, as the case may be, the difference between the actual Annual Rental Adjustment excluding Real Estate Taxes for the preceding calendar year and the estimated aggregate amount of Estimated Additional Rent actually paid by Tenant to Landlord during a given Operating Year exceeds Tenant’s actual liability for such year. In additionOperating Year (“Excess Additional Rent”), the Excess Additional Rent shall be credited against the Estimated Additional Rent next due from Tenant shall payafter Landlord’s determination that Excess Additional Rent has been paid by Tenant; provided, before delinquencyhowever, any and all Real Estate Taxes as defined in Section 3.02.D, above, directly to the appropriate taxing authority. If event that Tenant fails for any reason to pay the Real Estate Taxes when same is due and payable, Landlord shall have the right, but not the obligation, to pay the Real Estate Taxes directly to the taxing authority and Tenant shall immediately reimburse Landlord for the cost thereof. Such amount shall accrue interest from the date Landlord pays such amount, pursuant to Section 3.04, below, shall include any penalties, late fees and any interest assessed due to such delinquency. Tenant or its accountants shall have the right to inspect, at reasonable time and in a reasonable manner, Excess Additional Rent during the one hundred twenty (120) day period following final Lease Year, then upon the delivery expiration of the Term, and determination, by Landlord's statement , of the actual amount of the Annual Rental Adjustment excluding Real Estate Taxes, such of Landlord's books of account and records as pertain to and contain information concerning such costs and expenses for the Building for the prior calendar year in order to verify the amounts thereof. In the event the first audit discloses (i) errors made during the prior calendar year which, when totaled, indicate that the sum overcharged to and paid by Tenant, exceeds five percent (5%) of the Annual Rental Adjustment excluding Real Estate Taxes plus Landlord's Share of Operating Expenses (the "Total Expenses"), the audit shall be at the expense of Landlord, not to exceed Two Thousand Five Hundred Dollars ($2,500.00), or (ii) no errors or an error which equals or is less than five percent (5%) of the Total Expenses, the audit shall be at the expense of Tenant. For each subsequent audit, where the audit discloses errors exceeding five percent (5%) of the Total ExpensesExcess Additional Rent, Landlord or Agent shall pay for such audit and, if Tenant the audit discloses errors equal to or less than five percent then-applicable Excess Additional Rent within sixty (5%60) of the Total Expenses, Tenant shall pay the costs of the audit. If Landlord spends more than eight (8) hours to accommodate Tenant's right to audit hereunder, Tenant shall also pay to Landlord as additional rent Seventy-five Dollars ($75.00) per hour for each additional hour that Tenant's audit takes of Landlord's property manager's or asset manager's time, provided such audit discloses no error or an error greater than five percent (5%) of the Total Expenses. The results of the audit (regardless of the degree of the error, if any) shall be binding upon Landlord and Tenant, and Landlord shall thereafter, if appropriate, change its method of calculating the Operating Expenses consistent with the results of the audit. Tenant agrees to hold the information obtained from such audit confidential and shall not disclose the same without Landlord's express written permission except as necessary to enforce the Lease or protect Tenant's rights hereunder. If Tenant shall not elect to cause an audit within the time period permitted hereby, then Landlord's statement shall be conclusively deemed to have been approved and accepted by Tenant. Pending resolution of any dispute with respect to statements of Tenant's Annual Rental Adjustment, Tenant shall pay its Annual Rental Adjustment as shown on such statement, and upon final determination of the amount of Tenant's Annual Rental Adjustment, Landlord shall promptly refund any overpayment to Tenant or Tenant shall promptly pay any amount due to Landlord, as applicabledays.
Appears in 2 contracts
Samples: ArcherDX, Inc., ArcherDX, Inc.
Payment of Additional Rent. In addition Landlord shall have the right to reasonably estimate the Operating Expenses for each Operating Year. Prior to the Minimum Annual Commencement Date, and at the beginning of each Operating Year, or as soon as reasonably practicable thereafter, Landlord shall submit to Tenant Landlord’s calculation of the estimate of Additional Rent specified in this Leasebased upon a calendar year, which statement shall also include a calculation of Tenant’s Proportionate Share (the “Landlord’s Statement”). Tenant shall pay an amount (the “Estimated Additional Rent”) equal to the estimate of the Tenant’s Proportionate Share of Operating Expenses divided by 12 (or the fractional portion of the Operating Year remaining at the time Landlord delivers its notice of the estimated amounts due from Tenant for that Operating Year). Following each Operating Year, Landlord shall provide Tenant a reconciliation of Tenant’s actual liability for Operating Expenses during such Operating Year (the “Reconciliation Statement”). If the Reconciliation Statement shows that the aggregate amount of Estimated Additional Rent actually paid by Tenant during any Operating Year is less than Tenant’s actual liability for Operating Expenses for that particular Operating Year, Tenant shall pay to Landlord as "Additional Rent" for the Leased Premises, in each calendar year or partial calendar year, during the Lease Term, an amount equal to the Annual Rental Adjustment excluding Real Estate Taxes for such calendar year or partial calendar year. In the case of the calendar year of the Commencement Date, Landlord shall provide such notice prior to the Commencement Date. The Annual Rental Adjustment excluding Real Estate Taxes shall be estimated annually by Landlord, and written notice thereof shall be given to Tenant prior to the beginning of each calendar year. Tenant shall pay to Landlord each month, at the same time the Monthly Rental Installment is due, an amount equal to one-twelfth (1/12) of the estimated Annual Rental Adjustment excluding Real Estate Taxes. If the cost of utility, janitorial or other services increase during a calendar year, Landlord may increase the estimated Annual Rental Adjustment excluding Real Estate Taxes during such year by giving Tenant written notice to that effect, and thereafter Tenant shall pay to Landlord, in each of the remaining months of such year, an amount equal to the amount of such increase in the estimated Annual Rental Adjustment excluding Real Estate Taxes for the remainder of the year divided by the number of months remaining in such year. Within a reasonable time after the end of each calendar year, Landlord shall prepare and deliver to Tenant a statement showing the actual Annual Rental Adjustment excluding Real Estate Taxes. Within deficiency within thirty (30) days after receipt of Landlord’s written demand therefor. If the aforementioned statement, Tenant shall pay to Landlord, or Landlord shall credit against Reconciliation Statement shows that the next rent payment or payments due from Tenant, as the case may be, the difference between the actual Annual Rental Adjustment excluding Real Estate Taxes for the preceding calendar year and the estimated aggregate amount of Estimated Additional Rent payment(s) actually paid by Tenant to Landlord during a given Operating Year exceeds Tenant’s actual liability for such year. In additionOperating Year, the excess shall be credited against the Estimated Additional Rent next due from Tenant shall pay, before delinquency, any and all Real Estate Taxes as defined in Section 3.02.D, above, directly to the appropriate taxing authority. If Tenant fails for any reason to pay the Real Estate Taxes when same is due and payable, Landlord shall have the right, but not the obligation, to pay the Real Estate Taxes directly to the taxing authority and Tenant shall immediately reimburse Landlord for the cost thereof. Such amount shall accrue interest from the date Landlord pays such amount, pursuant to Section 3.04, below, shall include any penalties, late fees and any interest assessed due to such delinquency. Tenant or its accountants shall have the right to inspect, at reasonable time and in a reasonable manner, during the one hundred twenty (120) day period following immediately subsequent Operating Year, except that in the delivery of Landlord's statement event that such excess is paid by Tenant during the final Lease Year, then upon the expiration of the actual amount of the Annual Rental Adjustment excluding Real Estate Taxes, such of Landlord's books of account and records as pertain to and contain information concerning such costs and expenses for the Building for the prior calendar year in order to verify the amounts thereof. In the event the first audit discloses (i) errors made during the prior calendar year which, when totaled, indicate that the sum overcharged to and paid by Tenant, exceeds five percent (5%) of the Annual Rental Adjustment excluding Real Estate Taxes plus Landlord's Share of Operating Expenses (the "Total Expenses"), the audit shall be at the expense of Landlord, not to exceed Two Thousand Five Hundred Dollars ($2,500.00), or (ii) no errors or an error which equals or is less than five percent (5%) of the Total Expenses, the audit shall be at the expense of Tenant. For each subsequent audit, where the audit discloses errors exceeding five percent (5%) of the Total ExpensesTerm, Landlord shall pay for such audit and, if Tenant the audit discloses errors equal to or less than five percent (5%) of the Total Expenses, Tenant shall pay the costs of the auditthen-applicable excess promptly after determination thereof. If Landlord spends more than eight (8) hours to accommodate Tenant's right to audit hereunder, Tenant shall also pay to Landlord as additional rent Seventy-five Dollars ($75.00) per hour for each additional hour that Tenant's audit takes of Landlord's property manager's or asset manager's time, provided such audit discloses no error or an error greater than five percent (5%) of the Total Expenses. The results of the audit (regardless of the degree of the error, if any) No interest shall be binding upon Landlord and Tenant, and Landlord shall thereafter, if appropriate, change its method of calculating the Operating Expenses consistent with the results of the audit. Tenant agrees to hold the information obtained from such audit confidential and shall not disclose the same without Landlord's express written permission except as necessary to enforce the Lease or protect Tenant's rights hereunder. If Tenant shall not elect to cause an audit within the time period permitted hereby, then Landlord's statement shall be conclusively deemed to have been approved and accepted by Tenant. Pending resolution of any dispute with respect to statements of Tenant's Annual Rental Adjustment, Tenant shall pay its Annual Rental Adjustment as shown on such statement, and upon final determination of the amount of Tenant's Annual Rental Adjustment, Landlord shall promptly refund any overpayment payable to Tenant or Tenant shall promptly pay any amount due to Landlord, as applicableon account of payments of Estimated Additional Rent.
Appears in 2 contracts
Samples: Gordmans Stores, Inc., Gordmans Stores, Inc.
Payment of Additional Rent. In addition to the Minimum Annual Rent specified in this Lease, Tenant shall pay to Landlord as "Additional Rent" for the Leased Premises, in each calendar year or partial calendar year, during the Lease Term, an amount equal to the Annual Rental Adjustment excluding Real Estate Taxes for such calendar year or partial calendar year. In the case of the calendar year of the Commencement Date, Landlord shall provide such notice prior to the Commencement Date. The Annual Rental Adjustment excluding Real Estate Taxes shall be reasonably estimated annually by Landlord, and written notice thereof shall be given to Tenant prior to January 1 for the beginning of each upcoming calendar year. Tenant shall pay to Landlord each month, at the same time the Monthly Rental Installment is due, an amount equal to one-twelfth (1/12) of the estimated Annual Rental Adjustment excluding Adjustment. If Real Estate Taxes. If Taxes or the cost of utility, utility or janitorial or other services increase during a calendar year, Landlord may may, on not more than one (1) occasion each year, increase the estimated Annual Rental Adjustment excluding Real Estate Taxes during such year by giving Tenant written notice to that effect, and thereafter Tenant shall pay to Landlord, in each of the remaining months of such year, an amount equal to the amount of such increase in the estimated Annual Rental Adjustment excluding Real Estate Taxes for the remainder of the year divided by the number of months remaining in such year. Within a reasonable time On or before March 31, after the end of each calendar year, Landlord shall prepare and deliver to Tenant a detailed statement showing the actual Annual Rental Adjustment excluding Real Estate TaxesAdjustment. Within thirty (30) days after receipt of the aforementioned statement, but subject to Tenant's audit and dispute rights below, Tenant shall pay to Landlord, or Landlord shall credit against the next rent payment or payments due from Tenant, as the case may be, the difference between the actual Annual Rental Adjustment excluding Real Estate Taxes for the preceding calendar year and the estimated amount paid by Tenant to Landlord during such year. In additionThe estimated Annual Rental Adjustment for the calendar year 2000 is $5.34 per rentable square foot. Tenant shall have ninety (90) days following its receipt of Landlord' statement to audit Landlord's books and records with respect to the Operating Expenses for the year in question. Landlord will make such books and records available to Tenant in the property management office in Atlanta during normal business hours beginning on any business day within five (5) business days of Tenant's notice to Landlord that Tenant desires to conduct such audit. Such review of Landlord's books and records shall not exceed five (5) business days. If, based on such audit, Tenant believes that certain of the Operating Expenses charged by Landlord are not properly included within Operating Expenses or that Landlord has erred in calculating the Operating Expenses or that any amounts included therein are not commercially reasonable, Tenant shall paynotify Landlord, before delinquency, any and all Real Estate Taxes as defined in Section 3.02.D, above, directly to within two weeks of the appropriate taxing authorityend of such audit that Tenant disputes some portion of the Operating Expenses. If Tenant fails for any reason to pay the Real Estate Taxes when same is due and payablePromptly upon receipt of such notice, Landlord shall have the right, but not the obligation, to pay the Real Estate Taxes directly to the taxing authority and Tenant shall immediately reimburse meet and negotiate in good faith to resolve their disagreement concerning the Operating Expenses. If, within thirty (30) days of Tenant's notice, Landlord and Tenant are unable to resolve Tenant's objections, then, within fifteen (15) days after the expiration of the aforesaid thirty (30) day period, Landlord and Tenant shall agree on one of the "big five" accounting firms which does not currently work for either Landlord or Tenant and shall submit the disputed portion of the Operating Expenses to such "big five" accounting firm for resolution. The "big five" accounting firm shall resolve the dispute and determine the proper amount of Operating Expenses for the cost thereofyear in question and its decision shall be final and binding on both parties. Such amount shall accrue interest from the date Landlord pays such amount, pursuant to Section 3.04, below, shall include any penalties, late The fees and any interest assessed due to such delinquency. Tenant or its accountants shall have the right to inspect, at reasonable time and in a reasonable manner, during the one hundred twenty (120) day period following the delivery of Landlord's statement of the actual amount "big five" accounting firm shall be paid by Tenant, in the event that the total of any errors on the part of Landlord equal less than 3% of the Annual Rental Adjustment excluding Real Estate Taxes, such of Landlord's books of account and records as pertain to and contain information concerning such costs and expenses for the Building for the prior that calendar year in order to verify the amounts thereofyear. In the event the first audit discloses (i) errors made during the prior calendar year which, when totaled, indicate that the sum overcharged to and paid by Tenant, exceeds five percent (5%) total of any errors on the part of Landlord are in excess of 3% of the Annual Rental Adjustment excluding Real Estate Taxes plus Landlord's Share of Operating Expenses (the "Total Expenses"), the audit shall be at the expense of Landlord, not to exceed Two Thousand Five Hundred Dollars ($2,500.00), or (ii) no errors or an error which equals or is less than five percent (5%) of the Total Expenses, the audit shall be at the expense of Tenant. For each subsequent audit, where the audit discloses errors exceeding five percent (5%) of the Total Expensesfor that calendar year, Landlord shall pay will reimburse Tenant for such audit and, if the audit discloses errors equal to or less than five percent (5%) of the Total Expenses, Tenant shall pay the all costs of the audit. If Landlord spends more than eight (8) hours to accommodate Tenant's right to audit hereunder, Tenant shall also pay to Landlord as additional rent Seventy-five Dollars ($75.00) per hour for each additional hour that Tenant's audit takes of Landlord's property manager's or asset manager's time, provided such audit discloses no error or an error greater than five percent (5%) of the Total Expenses. The results of the audit (regardless of the degree of the error, if any) shall be binding upon Landlord and Tenant, and Landlord shall thereafter, if appropriate, change its method of calculating the Operating Expenses consistent with the results of the audit. Tenant agrees to hold the information obtained from such audit confidential and shall not disclose the same without Landlord's express written permission except as necessary to enforce the Lease or protect Tenant's rights hereunder. If Tenant shall not elect to cause an audit within the time period permitted hereby, then Landlord's statement shall be conclusively deemed to have been approved and accepted by Tenant. Pending resolution of any dispute with respect to statements of Tenant's Annual Rental Adjustment, Tenant shall pay its Annual Rental Adjustment as shown on such statement, and upon final determination of the amount of Tenant's Annual Rental Adjustment, Landlord shall promptly refund any overpayment to Tenant or Tenant shall promptly pay any amount due to Landlord, as applicableaccounting firm.
Appears in 2 contracts
Samples: Office Lease Agreement (KMC Telecom Holdings Inc), Office Lease Agreement (KMC Telecom Holdings Inc)
Payment of Additional Rent. In addition to the Minimum Annual Rent specified in (1) Upon execution of this Lease, Landlord shall submit to Tenant an estimate of the monthly Taxes and Assessments, insurance premiums, Outside Area Expenses, Maintenance and Repair Costs, and Management and Administration costs (paragraph 4(b )(1 ), 4(b)(2),4(b)(3),4(b)(4), and 4(b)(5)above) (collectively, the “Costs”) for the period between the Commencement Date and the following December 31 and Tenant shall pay to Landlord as "Additional Rent" for such estimated Costs in advance on a monthly basis, commencing with the Leased Premises, in Commencement Date and continuing thereafter on the first day of each calendar year or partial calendar year, during the Lease Term, an amount equal to the Annual Rental Adjustment excluding Real Estate Taxes for such calendar year or partial calendar year. In the case month of the calendar year of the Commencement Date, Landlord shall provide such notice prior to the Commencement Date. The Annual Rental Adjustment excluding Real Estate Taxes shall be estimated annually by Landlord, and written notice thereof shall be given to Tenant prior to the beginning of each calendar yearTerm. Tenant shall pay continue to make said monthly payments until notified by Landlord each month, at the same time the Monthly Rental Installment is due, an amount equal to one-twelfth (1/12) of the estimated Annual Rental Adjustment excluding Real Estate Taxesa change therein. If the cost of utility, janitorial or other services increase during a calendar year, Landlord may increase the estimated Annual Rental Adjustment excluding Real Estate Taxes during such year by giving Tenant written notice to that effect, and thereafter Tenant shall pay to Landlord, in each of the remaining months of such year, an amount equal to the amount of such increase in the estimated Annual Rental Adjustment excluding Real Estate Taxes for the remainder of the year divided by the number of months remaining in such year. Within a reasonable time after the end By March 1 of each calendar year, Landlord shall prepare and deliver endeavor to provide to Tenant a statement showing the actual Annual Rental Adjustment excluding Real Estate TaxesCosts due to Landlord for the prior calendar year, prorated from the Commencement Date during the first year. Within If the total of the monthly payments of Costs that Tenant has made for the prior calendar year (or portion thereof during which this Lease was in effect) is less than the actual Costs chargeable to Tenant for such prior calendar year, then Tenant shall pay the difference in a lump sum within thirty (30) days after receipt of the aforementioned statement, Tenant shall pay to such statement from Landlord, or Landlord shall credit against the next rent payment or payments due from Tenant, as the case may be, the difference between the actual Annual Rental Adjustment excluding Real Estate Taxes for the preceding calendar year and the estimated amount paid . Any overpayment by Tenant to Landlord during such year. In addition, Tenant shall pay, before delinquency, any and all Real Estate Taxes as defined in Section 3.02.D, above, directly to the appropriate taxing authority. If Tenant fails for any reason to pay the Real Estate Taxes when same is due and payable, Landlord shall have the right, but not the obligation, to pay the Real Estate Taxes directly to the taxing authority and Tenant shall immediately reimburse Landlord for the cost thereof. Such amount shall accrue interest from the date Landlord pays such amount, pursuant to Section 3.04, below, shall include any penalties, late fees and any interest assessed due to such delinquency. Tenant or its accountants shall have the right to inspect, at reasonable time and in a reasonable manner, during the one hundred twenty (120) day period following the delivery of Landlord's statement of the actual amount of the Annual Rental Adjustment excluding Real Estate Taxes, such of Landlord's books of account and records as pertain to and contain information concerning such costs and expenses for the Building Costs for the prior calendar year shall be applied as a credit to Tenant against Rent next coming due. Notwithstanding anything to the contrary in order this Lease, “Costs” shall not include and Tenant shall in no event have any obligation to verify reimburse Landlord for, all or any portion of the amounts thereof. In following: (a) costs occasioned by the event negligence or willful misconduct or violation of any law by Landlord, its agents, employees or contractors; (b) costs to comply with any covenant, condition, restriction, or underwriter’s requirement applicable to the first audit discloses Premises or the Property on the Commencement Date; (c) costs incurred in connection with the presence of any Hazardous Material, except to the extent (i) errors made during caused by the prior calendar year which, when totaled, indicate that release or emission of the sum overcharged to and paid Hazardous Material in question by Tenant, exceeds five percent its agents, employees or invitees, (5%ii) caused by the release, emission, or deposit of the Annual Rental Adjustment excluding Real Estate Taxes plus Landlord's Share Hazardous Material in question on or about the surface areas of Operating Expenses (the "Total Expenses"), Outside Areas during the audit shall be at performance of routine maintenance and repairs to the expense of Landlord, not to exceed Two Thousand Five Hundred Dollars ($2,500.00)Outside Areas, or (iii) caused by the unlawful dumping or deposit of the Hazardous Material in question on or about the surface areas of the Outside Area by any party other than Landlord, its agents, employees or invitees, but only if such Hazardous Material can be removed and disposed of in the ordinary course of trash disposal or consists of small amounts of Hazardous Materials, such as car or truck batteries; or cans of oil or gasoline), which costs under clause (ii) no errors or an error which equals or is less than five percent (5%iii) above shall include only costs to transport the Hazardous Material from the Property, clean the surface of the Total Expensesparking areas, driveways and/or sidewalks, or replace damaged landscaping, but not costs to remove or remediate any soil or groundwater contamination which may result from the audit shall be at presence of such Hazardous Material; (d) interest, charges and fees incurred on debt; (e) expense reserves; (f) costs of structural repairs to the expense of Tenant. For each subsequent auditBuilding; (g) costs for services which are paid directly by Tenant under the Lease; (h) wages, where compensation, and labor burden for any employee not stationed on the audit discloses errors exceeding five percent (5%) Property on a full-time basis or any fee, profit or compensation retained by Landlord or its affiliates for management and administration of the Total Expenses, Landlord shall pay for such audit and, if Property in excess of 3% of Base Rent; and (i) any earthquake insurance deductibles. Notwithstanding the audit discloses errors equal to or less than five percent (5%) of the Total Expensesforegoing, Tenant shall not be required to pay any Costs otherwise due hereunder if Landlord first notifies Tenant of such Costs in a statement received by Tenant more than eighteen (18) months after such Costs are incurred; provided, however, that the costs foregoing limitation shall not apply with respect to any supplemental tax assessment billed to Landlord solely as a result of the audit. If Landlord spends more than eight (8) hours to accommodate Tenant's right to audit hereunder, Tenant shall also pay to Landlord as additional rent Seventy-five Dollars ($75.00) per hour for each additional hour that Tenant's audit takes of Landlord's property manager's or asset manager's time, provided such audit discloses no error or an error greater than five percent (5%) of the Total Expenses. The results of the audit (regardless of the degree of the errorImprovements, if any, or any other alterations or improvements to the Premises by Tenant so long as Landlord bills Tenant for any such supplemental taxes within sixty (60) shall be binding upon Landlord and Tenant, and Landlord shall thereafter, if appropriate, change its method of calculating the Operating Expenses consistent with the results days after Landlord’s receipt of the audit. Tenant agrees to hold supplemental tax xxxx from the information obtained from such audit confidential and shall not disclose the same without Landlord's express written permission except as necessary to enforce the Lease or protect Tenant's rights hereunder. If Tenant shall not elect to cause an audit within the time period permitted hereby, then Landlord's statement shall be conclusively deemed to have been approved and accepted by Tenant. Pending resolution of any dispute with respect to statements of Tenant's Annual Rental Adjustment, Tenant shall pay its Annual Rental Adjustment as shown on such statement, and upon final determination of the amount of Tenant's Annual Rental Adjustment, Landlord shall promptly refund any overpayment to Tenant or Tenant shall promptly pay any amount due to Landlord, as applicablecounty assessor.
Appears in 2 contracts
Samples: Lease Agreement (Silk Road Medical Inc), Lease Agreement (Silk Road Medical Inc)
Payment of Additional Rent. In addition On or before the Commencement Date and thereafter not more than once per calendar year, Landlord shall furnish Tenant a written statement estimating Tenant’s Proportionate Share of the annual Operating Expenses of the Building, the Premises, the Common Areas, if any, and the Project, if any (the “Estimate”), which Estimate shall apply only to those Operating Expenses not paid directly by Tenant. Beginning on the Minimum Annual Rent specified in this LeaseCommencement Date and on the first day of each month during the Term, Tenant shall pay to Landlord as "Additional Rent" for the Leased Premises, in each calendar year or partial calendar year, during the Lease Term, an amount equal to the Annual Rental Adjustment excluding Real Estate Taxes for such calendar year or partial calendar year. In the case of the calendar year of the Commencement Date, Landlord shall provide such notice prior to the Commencement Date. The Annual Rental Adjustment excluding Real Estate Taxes shall be estimated annually by Landlord, and written notice thereof shall be given to Tenant prior to the beginning of each calendar year. Tenant shall pay to Landlord each month, at the same time the Monthly Rental Installment is due, an amount equal to Rent one-twelfth (1/12) of the estimated Annual Rental Adjustment excluding Real Estate TaxesEstimate then in effect (the “Estimated Payments”). If the cost of utility, janitorial or other services increase during a calendar year, Landlord may increase the estimated Annual Rental Adjustment excluding Real Estate Taxes during such year by giving Tenant written notice to that effect, and thereafter Tenant shall pay to Landlord, in each of the remaining months of such year, an amount equal to the amount of such increase in the estimated Annual Rental Adjustment excluding Real Estate Taxes for the remainder of the year divided by the number of months remaining in such year. Within a reasonable time As soon as practical after the end of each calendar yearyear (or on the expiration or earlier termination of this Lease), Landlord shall prepare and deliver to furnish Tenant a written statement showing a detailed and itemized breakdown of the actual Annual Rental Adjustment excluding Real Estate Taxestotal Operating Expenses actually paid by Landlord with respect to the Building, the Premises, the Common Areas, if any and the Project, if any for the calendar year just ended (the “Actual Expenses”). Within If Txxxxx’s Proportionate Share of the Actual Expenses exceeds the Estimated Payments, for the same period of time, then Txxxxx agrees to pay within thirty (30) days after of receipt of the aforementioned said statement, Tenant shall pay to Landlord, or Landlord shall credit against the next rent payment or payments due from Tenant, as the case may be, the difference between Txxxxx’s Proportionate Share of the actual Annual Rental Adjustment excluding Real Estate Taxes Actual Expenses and the Estimated Payments. If the Estimated Payments exceed Txxxxx’s Proportionate Share of the Actual Expenses, then Lxxxxxxx agrees to refund the difference at the time that such statement is furnished. The provisions of this Section shall apply for the preceding any partial calendar year and during which this Lease is effective, subject to a pro rata adjustment based upon the estimated amount paid by Tenant to Landlord during such yearnumber of calendar months or portions thereof that this Lease is in effect. In addition, Tenant shall pay, before delinquency, any and all Real Estate Taxes as defined in Section 3.02.D, above, directly to the appropriate taxing authority. If Tenant fails for any reason Tenant’s obligation to pay such difference and/or Landlord’s obligation to refund such difference shall survive the Real Estate Taxes when same is due and payable, Landlord shall have the right, but not the obligation, to pay the Real Estate Taxes directly to the taxing authority and Tenant shall immediately reimburse Landlord for the cost thereof. Such amount shall accrue interest from the date Landlord pays such amount, pursuant to Section 3.04, below, shall include any penalties, late fees and any interest assessed due to such delinquency. Tenant termination or its accountants shall have the right to inspect, at reasonable time and in a reasonable manner, during the one hundred twenty (120) day period following the delivery expiration of Landlord's statement of the actual amount of the Annual Rental Adjustment excluding Real Estate Taxes, such of Landlord's books of account and records as pertain to and contain information concerning such costs and expenses for the Building for the prior calendar year in order to verify the amounts thereof. In the event the first audit discloses (i) errors made during the prior calendar year which, when totaled, indicate that the sum overcharged to and paid by Tenant, exceeds five percent (5%) of the Annual Rental Adjustment excluding Real Estate Taxes plus Landlord's Share of Operating Expenses (the "Total Expenses"), the audit shall be at the expense of Landlord, not to exceed Two Thousand Five Hundred Dollars ($2,500.00), or (ii) no errors or an error which equals or is less than five percent (5%) of the Total Expenses, the audit shall be at the expense of Tenant. For each subsequent audit, where the audit discloses errors exceeding five percent (5%) of the Total Expenses, Landlord shall pay for such audit and, if the audit discloses errors equal to or less than five percent (5%) of the Total Expenses, Tenant shall pay the costs of the audit. If Landlord spends more than eight (8) hours to accommodate Tenant's right to audit hereunder, Tenant shall also pay to Landlord as additional rent Seventy-five Dollars ($75.00) per hour for each additional hour that Tenant's audit takes of Landlord's property manager's or asset manager's time, provided such audit discloses no error or an error greater than five percent (5%) of the Total Expenses. The results of the audit (regardless of the degree of the error, if any) shall be binding upon Landlord and Tenant, and Landlord shall thereafter, if appropriate, change its method of calculating the Operating Expenses consistent with the results of the audit. Tenant agrees to hold the information obtained from such audit confidential and shall not disclose the same without Landlord's express written permission except as necessary to enforce the Lease or protect Tenant's rights hereunder. If Tenant shall not elect to cause an audit within the time period permitted hereby, then Landlord's statement shall be conclusively deemed to have been approved and accepted by Tenant. Pending resolution of any dispute with respect to statements of Tenant's Annual Rental Adjustment, Tenant shall pay its Annual Rental Adjustment as shown on such statement, and upon final determination of the amount of Tenant's Annual Rental Adjustment, Landlord shall promptly refund any overpayment to Tenant or Tenant shall promptly pay any amount due to Landlord, as applicablethis Lease.
Appears in 2 contracts
Samples: Commercial Lease Agreement (CONX Corp.), Commercial Lease Agreement (CONX Corp.)
Payment of Additional Rent. In addition Landlord shall from time to time deliver to Tenant a written notice or notices ("Projection Notice") setting forth Landlord's reasonable estimates, forecasts or projections (collectively, the "Projections") of Real Estate Taxes and Operating Expenses with respect to the Minimum Annual Rent specified in this Leasecurrent calendar year. On or before the first day of the next calendar month following Lxxxxxxx's service of a Projection Notice, and on or before the first day of each month thereafter, Tenant shall pay to Landlord as "Additional Rent" for the Leased Premises, in each calendar year or partial calendar year, during the Lease Term, an amount equal to the Annual Rental Adjustment excluding Real Estate Taxes for such calendar year or partial calendar year. In the case of the calendar year of the Commencement Date, Landlord shall provide such notice prior to the Commencement Date. The Annual Rental Adjustment excluding Real Estate Taxes shall be estimated annually by Landlord, and written notice thereof shall be given to Tenant prior to the beginning of each calendar year. Tenant shall pay to Landlord each month, at the same time the Monthly Rental Installment is due, an amount equal to on account one-twelfth (1/12) of the estimated Annual Rental Adjustment excluding Real Estate Taxes. If the cost of utility, janitorial or other services increase during a calendar year, Landlord may increase the estimated Annual Rental Adjustment excluding Real Estate Taxes during such year by giving Tenant written notice to that effect, and thereafter Tenant shall pay to Landlord, in each of the remaining months of such year, an amount equal to the amount of such increase Tenant's Share of the Projections as shown in the estimated Annual Rental Adjustment excluding Real Estate Taxes for the remainder of the year divided by the number of months remaining in such yearProjection Notice. Within a reasonable time after Following the end of each calendar year and after Landlord shall have determined the actual amount of Real Estate Taxes and Operating Expenses for such calendar year, Landlord shall prepare and deliver to notify Tenant a statement showing the actual Annual Rental Adjustment excluding in writing of Tenant's Share of such Real Estate TaxesTaxes and Operating Expenses. Within If Txxxxx's Share of such Real Estate Taxes and Operating Expenses exceeds the respective amounts paid for such calendar year by Tenant, Tenant shall, within thirty (30) days after receipt the date of the aforementioned statementLandlord's notice, Tenant shall pay to LandlordLandlord an amount equal to such excess. If the said amounts paid for such calendar year by Txxxxx exceed Txxxxx's Share of such Real Estate Taxes and Operating Expenses, or then Landlord shall credit against the next rent payment or payments due from Tenant, as the case may be, the difference between the actual Annual Rental Adjustment excluding Real Estate Taxes for the preceding calendar year and the estimated amount paid by Tenant such excess to Landlord during such year. In addition, Tenant shall pay, before delinquency, any and all Real Estate Taxes as defined in Section 3.02.D, above, directly to the appropriate taxing authority. If Tenant fails for any reason to pay the Real Estate Taxes when same is due and payable, Landlord shall have the right, but not the obligation, to pay the Real Estate Taxes directly to the taxing authority and Tenant shall immediately reimburse Landlord for the cost thereof. Such amount shall accrue interest from Rent payable after the date Landlord pays such amount, pursuant to Section 3.04, below, shall include any penalties, late fees and any interest assessed due to such delinquency. Tenant or its accountants shall have the right to inspect, at reasonable time and in a reasonable manner, during the one hundred twenty (120) day period following the delivery of Landlord's statement notice until such excess has been exhausted. If this Lease shall expire prior to full application of the actual amount of the Annual Rental Adjustment excluding Real Estate Taxes, such of Landlord's books of account and records as pertain to and contain information concerning such costs and expenses for the Building for the prior calendar year in order to verify the amounts thereof. In the event the first audit discloses (i) errors made during the prior calendar year which, when totaled, indicate that the sum overcharged to and paid by Tenant, exceeds five percent (5%) of the Annual Rental Adjustment excluding Real Estate Taxes plus Landlord's Share of Operating Expenses (the "Total Expenses"), the audit shall be at the expense of Landlord, not to exceed Two Thousand Five Hundred Dollars ($2,500.00), or (ii) no errors or an error which equals or is less than five percent (5%) of the Total Expenses, the audit shall be at the expense of Tenant. For each subsequent audit, where the audit discloses errors exceeding five percent (5%) of the Total Expensesexcess, Landlord shall pay to Tenant the balance not theretofore applied against Rent and not reasonably required for such audit and, if payment of Additional Rent for the audit discloses errors equal calendar year in which the Lease expires. No interest or penalties shall accrue on any amounts which Landlord is obligated to credit or less than five percent (5%) of the Total Expenses, Tenant shall pay the costs of the audit. If Landlord spends more than eight (8) hours to accommodate Tenant's right to audit hereunder, Tenant shall also pay to Landlord as additional rent Seventy-five Dollars ($75.00) per hour for each additional hour that Tenant's audit takes Tenant by reason of Landlord's property manager's or asset manager's time, provided such audit discloses no error or an error greater than five percent (5%) of the Total Expenses. The results of the audit (regardless of the degree of the error, if any) shall be binding upon Landlord and Tenant, and Landlord shall thereafter, if appropriate, change its method of calculating the Operating Expenses consistent with the results of the audit. Tenant agrees to hold the information obtained from such audit confidential and shall not disclose the same without Landlord's express written permission except as necessary to enforce the Lease or protect Tenant's rights hereunder. If Tenant shall not elect to cause an audit within the time period permitted hereby, then Landlord's statement shall be conclusively deemed to have been approved and accepted by Tenant. Pending resolution of any dispute with respect to statements of Tenant's Annual Rental Adjustment, Tenant shall pay its Annual Rental Adjustment as shown on such statement, and upon final determination of the amount of Tenant's Annual Rental Adjustment, Landlord shall promptly refund any overpayment to Tenant or Tenant shall promptly pay any amount due to Landlord, as applicablethis Section 5.3.
Appears in 2 contracts
Samples: Lease Agreement (Cogent Communications Holdings, Inc.), Lease Agreement (Cogent Communications Holdings, Inc.)
Payment of Additional Rent. In addition (i) Approximately thirty (30) days prior to the Minimum Annual Rent specified in this Leaseend of the Base Year and each Computation Year or as soon thereafter as practicable, Landlord shall give to Tenant notice of Landlord’s estimate of the total amounts that will be payable by Tenant under Paragraph 4(b) for the following Computation Year, and Tenant shall pay such estimated Additional Rent on a monthly basis, in advance, on the first day of each month. Tenant shall continue to make said monthly payments until notified by Landlord as "Additional Rent" of a change therein. If at any time or times Landlord determines that the amounts payable under Paragraph 4(b) for the Leased Premisescurrent Computation Year will vary from Landlord’s estimate given to Tenant, in Landlord, by notice to Tenant, may revise the estimate for such Computation Year, and subsequent payments by Tenant for such Computation Year shall be based upon such revised estimate. By April 1 of each calendar year or partial calendar year, during following the Lease Term, an amount equal to the Annual Rental Adjustment excluding Real Estate Taxes for such calendar year or partial calendar year. In the case of the calendar year of the Commencement Dateinitial Computation Year, Landlord shall provide such notice prior to the Commencement Date. The Annual Rental Adjustment excluding Real Estate Taxes shall be estimated annually by Landlord, and written notice thereof shall be given to Tenant prior to the beginning of each calendar year. Tenant shall pay to Landlord each month, at the same time the Monthly Rental Installment is due, an amount equal to one-twelfth (1/12) of the estimated Annual Rental Adjustment excluding Real Estate Taxes. If the cost of utility, janitorial or other services increase during a calendar year, Landlord may increase the estimated Annual Rental Adjustment excluding Real Estate Taxes during such year by giving Tenant written notice to that effect, and thereafter Tenant shall pay to Landlordshall, in each of the remaining months of such yeargood faith, an amount equal endeavor to the amount of such increase in the estimated Annual Rental Adjustment excluding Real Estate Taxes for the remainder of the year divided by the number of months remaining in such year. Within a reasonable time after the end of each calendar year, Landlord shall prepare and deliver provide to Tenant a statement showing the actual Annual Rental Adjustment excluding Real Estate TaxesAdditional Rent due to Landlord for the prior Computation Year. Within If the total of the monthly payments of Additional Rent that Tenant has made for the prior Computation Year is less than the actual Additional Rent chargeable to Tenant for such prior Computation Year, then Tenant shall pay the difference in a lump sum within ten (10) days after receipt of such statement from Landlord. Any overpayment by Tenant of Additional Rent for the prior Computation Year shall, at Landlord’s option, be either credited towards the Additional Rent next due or returned to Tenant in a lump sum payment within ten (10) days after delivery of such statement. Tenant shall have the right, during Landlord’s regular business hours and on reasonable prior notice, to inspect, at the location of Landlord’s accounting records, Landlord’s books and records regarding Additional Rent for the year to which the statement relates. The inspection of Landlord’s books and records may be conducted by Tenant’s employee or a reputable certified public accountant (i.e., a member of a reputable, independent, nationally or regionally recognized certified public accounting firm, who has experience reviewing financial operating records of office building landlords; provided that such accountant is not retained by Tenant on a contingency fee basis) and such audit or review is completed within five (5) business days. If such inspection reveals that the amount of Additional Rent billed to Tenant was incorrect, the appropriate party shall pay to the other party the deficiency or overpayment, as applicable, within thirty (30) days after receipt following delivery of the aforementioned statementinspection, Tenant without interest at the interest rate set forth in Paragraph 45. All costs and expenses of the inspection shall pay to Landlord, or Landlord shall credit against the next rent payment or payments due from Tenant, as the case may be, the difference between the actual Annual Rental Adjustment excluding Real Estate Taxes for the preceding calendar year and the estimated amount be paid by Tenant to unless the final undisputed determination is that Landlord during such year. In addition, Tenant shall pay, before delinquency, any and all Real Estate Taxes as defined in Section 3.02.D, above, directly to the appropriate taxing authority. If Tenant fails for any reason to pay the Real Estate Taxes when same is due and payable, Landlord shall have the right, but not the obligation, to pay the Real Estate Taxes directly to the taxing authority and Tenant shall immediately reimburse Landlord for the cost thereof. Such amount shall accrue interest from the date Landlord pays such amount, pursuant to Section 3.04, below, shall include any penalties, late fees and any interest assessed due to such delinquency. Tenant or its accountants shall have the right to inspect, at reasonable time and in a reasonable manner, during the one hundred twenty (120) day period following the delivery of Landlord's statement of the actual amount of the Annual Rental Adjustment excluding Real Estate Taxes, such of Landlord's books of account and records as pertain to and contain information concerning such costs and expenses for the Building for the prior calendar year in order to verify the amounts thereof. In the event the first audit discloses (i) errors made during the prior calendar year which, when totaled, indicate that the sum overcharged to and paid overstated Additional Rent by Tenant, exceeds five percent (5%) of the Annual Rental Adjustment excluding Real Estate Taxes plus Landlord's Share of Operating Expenses (the "Total Expenses"), the audit shall be at the expense of Landlord, not to exceed Two Thousand Five Hundred Dollars ($2,500.00), or (ii) no errors or an error which equals or is less more than five percent (5%) of for the Total Expensesapplicable year, the audit shall be at the expense of Tenant. For each subsequent audit, where the audit discloses errors exceeding five percent (5%) of the Total Expenses, in which case Landlord shall pay for such audit and, if the audit discloses errors equal to or less than five percent (5%) of the Total Expenses, Tenant shall pay the actual and reasonable costs of the audit. If Landlord spends more than eight (8) hours arbitration, not to accommodate Tenant's right to audit hereunder, Tenant shall also pay to Landlord as additional rent Seventy-five Dollars ($75.00) per hour for each additional hour that Tenant's audit takes of Landlord's property manager's or asset manager's time, provided such audit discloses no error or an error greater than five percent (5%) of the Total Expenses. The results of the audit (regardless of the degree of the error, if any) shall be binding upon Landlord and Tenant, and Landlord shall thereafter, if appropriate, change its method of calculating the Operating Expenses consistent with the results of the audit. Tenant agrees to hold the information obtained from such audit confidential and shall not disclose the same without Landlord's express written permission except as necessary to enforce the Lease or protect Tenant's rights hereunder. If Tenant shall not elect to cause an audit within the time period permitted hereby, then Landlord's statement shall be conclusively deemed to have been approved and accepted by Tenant. Pending resolution of any dispute with respect to statements of Tenant's Annual Rental Adjustment, Tenant shall pay its Annual Rental Adjustment as shown on such statement, and upon final determination of exceed the amount of Tenant's Annual Rental Adjustment, $5,000. Landlord shall promptly refund any overpayment to Tenant maintain its accounting records of Additional Rent for at least three (3) years following the expiration or Tenant shall promptly pay any amount due to Landlord, as applicableearlier termination of this Lease.
Appears in 2 contracts
Samples: Lease Agreement (Cloudflare, Inc.), Lease Agreement (Cloudflare, Inc.)
Payment of Additional Rent. In addition to the Minimum Annual Base Rent specified in this Leasepayable pursuant to Section 3.1 above, Tenant shall pay to Landlord as "Additional Rent" for the Leased Premises, in each calendar year or partial calendar year, during the Lease Term, an amount equal to the Annual Rental Adjustment excluding Real Estate Taxes for such calendar year or partial calendar year. In the case of the calendar year of from and after the Commencement Date, Landlord shall provide such notice prior to the Commencement Date. The Annual Rental Adjustment excluding Real Estate Taxes shall be estimated annually by Landlord, and written notice thereof shall be given to Tenant prior to the beginning of each calendar year. Tenant shall pay to Landlord each month, at the same time the Monthly Rental Installment is due, an amount equal to one-twelfth (1/12) of the estimated Annual Rental Adjustment excluding Real Estate Taxes. If the cost of utility, janitorial or other services increase during a calendar year, Landlord may increase the estimated Annual Rental Adjustment excluding Real Estate Taxes during such year by giving Tenant written notice to that effect, and thereafter Tenant shall pay to Landlord, in each of the remaining months of such year, an amount equal to the amount of such increase in the estimated Annual Rental Adjustment excluding Real Estate Taxes for the remainder of the year divided by the number of months remaining in such year. Within a reasonable time after the end of each calendar year, Landlord shall prepare and deliver to Tenant a statement showing the actual Annual Rental Adjustment excluding Real Estate Taxes. Within thirty (30) days after receipt or portion thereof, of the aforementioned statementTerm, Tenant Subtenant, as Additional Rent, shall pay to Landlord, or Landlord shall credit against the next rent payment or payments due from Tenant, as the case may be, the difference between the actual Annual Rental Adjustment excluding Real Estate Taxes for the preceding calendar year and the estimated amount paid by Tenant to Landlord during such year. In addition, Tenant shall pay, before delinquency, any and all Real Estate Taxes as defined in Section 3.02.D, above, directly to the appropriate taxing authority. If Tenant fails for any reason to pay the Real Estate Taxes when same is due and payable, Landlord shall have the right, but not the obligation, to pay the Real Estate Taxes directly to the taxing authority and Tenant shall immediately reimburse Landlord for the cost thereof. Such amount shall accrue interest from the date Landlord pays such amount, pursuant to Section 3.04, below, shall include any penalties, late fees and any interest assessed due to such delinquency. Tenant or its accountants shall have the right to inspect, at reasonable time and in a reasonable manner, during the one hundred twenty (120) day period following the delivery of Landlord's statement of the actual amount of the Annual Rental Adjustment excluding Real Estate Taxes, such of Landlord's books of account and records as pertain to and contain information concerning such costs and expenses for the Building for the prior calendar year in order to verify the amounts thereof. In the event the first audit discloses (i) errors made during the prior calendar year which, when totaled, indicate that the sum overcharged to and paid by Tenant, exceeds five percent (5%) of the Annual Rental Adjustment excluding Real Estate Taxes plus Landlord's Subtenant’s Percentage Share of Operating Expenses Costs payable by Sublandlord under the Master Lease for the then current calendar year; provided, however, that (a) for any partial calendar year occurring during the "Total Expenses"Term, such Operating Costs shall be prorated based upon the number of days of such partial calendar year occurring during the Term (i.e., such Operating Costs shall be multiplied by a fraction, the numerator of which is the number of days of such partial calendar year occurring during the Term and the denominator of which is 365, and Subtenant shall pay Subtenant’s Percentage Share of such prorated amount), and (b) if Sublandlord receives any refund of Operating Costs with respect to the audit shall be at the expense of LandlordTerm, not to exceed Two Thousand Five Hundred Dollars ($2,500.00), or (ii) no errors or an error which equals or is less than five percent (5%) of the Total Expenses, the audit shall be at the expense of Tenant. For each subsequent audit, where the audit discloses errors exceeding five percent (5%) of the Total Expenses, Landlord shall pay for such audit and, if the audit discloses errors equal to or less than five percent (5%) of the Total Expenses, Tenant Sublandlord shall pay the costs Subtenant’s Percentage Share of such refund to Subtenant (which obligation shall survive the expiration or termination of this Sublease). Sublandlord shall give Subtenant written notice of Sublandlord’s estimate (which estimate shall be accompanied by Landlord’s estimate of the audit. If Landlord spends more than eight (8) hours to accommodate Tenant's right to audit hereunder, Tenant shall also pay to Landlord as additional rent Seventy-five Dollars ($75.00Operating Costs payable under the Master Lease) per hour for each additional hour that Tenant's audit takes of Landlord's property manager's or asset manager's time, provided such audit discloses no error or an error greater than five percent (5%) of the Total Expenses. The results of the audit (regardless of the degree of the error, if any) shall be binding upon Landlord and Tenant, and Landlord shall thereafter, if appropriate, change its method of calculating the Operating Expenses consistent with the results of the audit. Tenant agrees to hold the information obtained from such audit confidential and shall not disclose the same without Landlord's express written permission except as necessary to enforce the Lease or protect Tenant's rights hereunder. If Tenant shall not elect to cause an audit within the time period permitted hereby, then Landlord's statement shall be conclusively deemed to have been approved and accepted by Tenant. Pending resolution of any dispute with respect to statements of Tenant's Annual Rental Adjustment, Tenant shall pay its Annual Rental Adjustment as shown on such statement, and upon final determination of the amount of Tenant's Annual Rental AdjustmentAdditional Rent per month payable pursuant to this Section 3.2(b) for each calendar year promptly following the Sublandlord’s receipt of Landlord’s estimate of the Operating Costs payable under the Master Lease. Thereafter, Landlord the Additional Rent payable pursuant to this Section 3.2(b) shall promptly refund any overpayment to Tenant or Tenant shall promptly pay any amount due to Landlord, as applicablebe determined and adjusted in accordance with the provisions of Section 3.2(c) below.
Appears in 2 contracts
Samples: Zendesk, Inc., Zendesk, Inc.
Payment of Additional Rent. In addition to the Minimum Annual Rent specified in this Lease, Tenant shall pay to Landlord as "Additional Rent" for the Leased Premises, in each calendar year or partial calendar year, during the Lease Term, an amount equal to the Annual Rental Adjustment excluding Real Estate Taxes for such calendar year or partial calendar year. In the case of the calendar year of the Commencement Date, Landlord shall provide such have the right to reasonably estimate the Operating Expenses for each Operating Year. Upon Landlord's or Agent's WRITTEN notice prior to the Commencement Date. The Annual Rental Adjustment excluding Real Estate Taxes shall be estimated annually by Landlord, and written notice thereof shall be given to Tenant prior to the beginning of each calendar year. Tenant shall pay to Landlord each month, at the same time the Monthly Rental Installment is due, an amount equal to one-twelfth (1/12) of the estimated Annual Rental Adjustment excluding Real Estate Taxes. If the cost of utility, janitorial or other services increase during a calendar year, Landlord may increase the estimated Annual Rental Adjustment excluding Real Estate Taxes during such year by giving Tenant written notice to that effect, and thereafter Tenant shall pay to Landlord, in each of the remaining months of such year, an amount equal to the amount of such increase in the estimated Annual Rental Adjustment excluding Real Estate Taxes for the remainder of the year divided by the number of months remaining in such year. Within a reasonable time after the end of each calendar year, Landlord shall prepare and deliver to Tenant a statement showing the actual Annual Rental Adjustment excluding Real Estate Taxes. Within thirty (30) days after receipt of the aforementioned statement, Tenant shall pay to Landlord, or Landlord shall credit against the next rent payment or payments due from Tenant, as the case may be, the difference between the actual Annual Rental Adjustment excluding Real Estate Taxes for the preceding calendar year and the estimated amount paid by Tenant to Landlord during such year. In additionamount, Tenant shall pay, before delinquencyon the first day of each month during that Operating Year, any and all Real Estate Taxes as defined in Section 3.02.D, above, directly an amount (the "ESTIMATED ADDITIONAL RENT") equal to the appropriate taxing authority. If Tenant fails for any reason to pay the Real Estate Taxes when same is due and payable, Landlord shall have the right, but not the obligation, to pay the Real Estate Taxes directly to the taxing authority and Tenant shall immediately reimburse Landlord for the cost thereof. Such amount shall accrue interest from the date Landlord pays such amount, pursuant to Section 3.04, below, shall include any penalties, late fees and any interest assessed due to such delinquency. Tenant or its accountants shall have the right to inspect, at reasonable time and in a reasonable manner, during the one hundred twenty (120) day period following the delivery of Landlord's statement estimate of the actual amount of the Annual Rental Adjustment excluding Real Estate Taxes, such of LandlordTenant's books of account and records as pertain to and contain information concerning such costs and expenses for the Building for the prior calendar year in order to verify the amounts thereof. In the event the first audit discloses (i) errors made during the prior calendar year which, when totaled, indicate that the sum overcharged to and paid by Tenant, exceeds five percent (5%) of the Annual Rental Adjustment excluding Real Estate Taxes plus Landlord's Proportionate Share of Operating Expenses divided by 12 (or the fractional portion of the Operating Year remaining at the time Landlord delivers its WRITTEN notice of the estimated amounts due from Tenant for that Operating Year). FOLLOWING THE END OF EACH OPERATING YEAR, LANDLORD SHALL DELIVER TO TENANT A STATEMENT OF ACTUAL OPERATING EXPENSES FOR SUCH OPERATING YEAR (EACH, AN "Total ExpensesOPERATING EXPENSES STATEMENT"), . If the audit shall be at the expense aggregate amount of Landlord, not to exceed Two Thousand Five Hundred Dollars ($2,500.00), or (ii) no errors or an error which equals or Estimated Additional Rent actually paid by Tenant during any Operating Year is less than five percent (5%) of the Total Expenses, the audit shall be at the expense of Tenant. For each subsequent audit, where the audit discloses errors exceeding five percent (5%) of the Total Expenses, Landlord shall pay 's actual ultimate liability for such audit and, if the audit discloses errors equal to or less than five percent (5%) of the Total ExpensesOperating Expenses for that particular Operating Year AS SHOWN ON THE APPLICABLE OPERATING EXPENSES STATEMENT, Tenant shall pay the costs of the audit. If Landlord spends more than eight (8) hours to accommodate Tenant's right to audit hereunder, Tenant shall also pay to Landlord as additional rent Seventy-five Dollars ($75.00) per hour for each additional hour that Tenant's audit takes deficiency within 30 days of Landlord's property managerwritten demand therefor. If the aggregate amount of Estimated Additional Rent actually paid by Tenant during a given Operating Year exceeds Tenant's or asset manager's timeactual liability for such Operating Year, provided AS SHOWN ON THE APPLICABLE OPERATING EXPENSES STATEMENT, the excess shall be credited against the Estimated Additional Rent next due from Tenant during the immediately subsequent Operating Year, except that in the event that such audit discloses no error or an error greater than five percent (5%) excess is paid by Tenant during the final Lease Year, then upon the expiration of the Total Expenses. The results of the audit (regardless of the degree of the errorTerm, if any) shall be binding upon Landlord and Tenant, and Landlord shall thereafter, if appropriate, change its method of calculating the Operating Expenses consistent with the results of the audit. Tenant agrees to hold the information obtained from such audit confidential and shall not disclose the same without Landlord's express written permission except as necessary to enforce the Lease or protect Tenant's rights hereunder. If Tenant shall not elect to cause an audit within the time period permitted hereby, then Landlord's statement shall be conclusively deemed to have been approved and accepted by Tenant. Pending resolution of any dispute with respect to statements of Tenant's Annual Rental Adjustment, Tenant Agent shall pay its Annual Rental Adjustment as shown on such statement, and upon final Tenant the then-applicable excess promptly after determination of the amount of Tenant's Annual Rental Adjustment, Landlord shall promptly refund any overpayment to Tenant or Tenant shall promptly pay any amount due to Landlord, as applicable.thereof BUT NO LATER THAN 90
Appears in 2 contracts
Samples: Asset Acceptance Capital Corp, Asset Acceptance Capital Corp
Payment of Additional Rent. In addition to the Minimum Annual Rent specified in (1) Upon execution of this Lease, Landlord shall submit to Tenant shall pay to Landlord as "Additional Rent" an estimate of the monthly Taxes and Assessments, insurance premiums, Outside Area Expenses, Maintenance and Repair Costs, and Management and Administration costs (paragraph 4(b)(1), 4(b)(2),4(b)(3),4(b)(4), and 4(b)(5)above) (collectively, the “Costs”) for the Leased Premises, in each calendar year or partial calendar year, during the Lease Term, an amount equal to the Annual Rental Adjustment excluding Real Estate Taxes for such calendar year or partial calendar year. In the case of the calendar year of period between the Commencement Date, Landlord shall provide Date and December 31 of such notice prior to the Commencement Date. The Annual Rental Adjustment excluding Real Estate Taxes shall be estimated annually by Landlord, and written notice thereof shall be given to Tenant prior to the beginning of each calendar year. Tenant shall pay to Landlord such estimated Costs in advance on a monthly basis, commencing with the Commencement Date and continuing thereafter on the first day of each month, at the same time the Monthly Rental Installment is due, an amount equal to one-twelfth (1/12) month of the estimated Annual Rental Adjustment excluding Real Estate Taxes. If Term (the cost of utilityparties acknowledge, janitorial or other services increase during a calendar yearhowever, Landlord may increase that the estimated Annual Rental Adjustment excluding Real Estate Taxes during such year Costs due for the first month of the Term were paid by giving Tenant written notice to that effect, and thereafter upon execution of this Lease). Tenant shall pay continue to Landlord, in each make said monthly payments until notified by Landlord of the remaining months of such year, an amount equal to the amount of such increase in the estimated Annual Rental Adjustment excluding Real Estate Taxes for the remainder of the year divided by the number of months remaining in such yeara change therein. Within a reasonable time after the end By March 1 of each calendar year, Landlord shall prepare and deliver use commercially reasonable efforts to provide Tenant with a statement showing the actual Annual Rental Adjustment excluding Real Estate TaxesCosts due to Landlord for the prior calendar year, with the first statement prorated from the Commencement Date through December 31 of such calendar year. Within If the total of the monthly payments of Costs that Tenant has made for the prior calendar year (or portion thereof during which this Lease was in effect) is less than the actual Costs chargeable to Tenant for such prior calendar year, then Tenant shall pay the difference in a lump sum within thirty (30) days after receipt of the aforementioned statement, Tenant shall pay to such statement from Landlord, or Landlord shall credit against the next rent payment or payments due from Tenant, as the case may be, the difference between the actual Annual Rental Adjustment excluding Real Estate Taxes for the preceding calendar year and the estimated amount paid . Any overpayment by Tenant to Landlord during such year. In addition, Tenant shall pay, before delinquency, any and all Real Estate Taxes as defined in Section 3.02.D, above, directly to the appropriate taxing authority. If Tenant fails for any reason to pay the Real Estate Taxes when same is due and payable, Landlord shall have the right, but not the obligation, to pay the Real Estate Taxes directly to the taxing authority and Tenant shall immediately reimburse Landlord for the cost thereof. Such amount shall accrue interest from the date Landlord pays such amount, pursuant to Section 3.04, below, shall include any penalties, late fees and any interest assessed due to such delinquency. Tenant or its accountants shall have the right to inspect, at reasonable time and in a reasonable manner, during the one hundred twenty (120) day period following the delivery of Landlord's statement of the actual amount of the Annual Rental Adjustment excluding Real Estate Taxes, such of Landlord's books of account and records as pertain to and contain information concerning such costs and expenses for the Building Costs for the prior calendar year in order shall be applied as a credit to verify Tenant or, if any overpayment is made by Tenant for the amounts thereof. In the event the first audit discloses (i) errors made during the prior calendar last year which, when totaled, indicate that the sum overcharged to and paid by Tenant, exceeds five percent (5%) of the Annual Rental Adjustment excluding Real Estate Taxes plus Landlord's Share of Operating Expenses (the "Total Expenses"), the audit shall be at the expense of Landlord, not to exceed Two Thousand Five Hundred Dollars ($2,500.00)Term, or (ii) no errors or an error which equals or is less than five percent (5%) of the Total Expenses, the audit shall be at the expense of Tenant. For each subsequent audit, where the audit discloses errors exceeding five percent (5%) of the Total Expenses, Landlord shall pay for such audit and, if the audit discloses errors equal to or less than five percent (5%) of the Total Expenses, Tenant shall pay the costs of the audit. If Landlord spends more than eight (8) hours to accommodate Tenant's right to audit hereunder, Tenant shall also pay to Landlord as additional rent Seventy-five Dollars ($75.00) per hour for each additional hour that Tenant's audit takes of Landlord's property manager's or asset manager's time, provided such audit discloses no error or an error greater than five percent (5%) of the Total Expenses. The results of the audit (regardless of the degree of the error, if any) shall be binding upon Landlord and Tenant, and Landlord shall thereafter, if appropriate, change its method of calculating the Operating Expenses consistent with the results of the audit. Tenant agrees to hold the information obtained from such audit confidential and shall not disclose the same without Landlord's express written permission except as necessary to enforce the Lease or protect Tenant's rights hereunder. If Tenant shall not elect to cause an audit within the time period permitted herebyportion thereof, then Landlord's statement shall be conclusively deemed to have been approved and accepted by Tenant. Pending resolution of any dispute with respect to statements of Tenant's Annual Rental Adjustment, Tenant shall pay its Annual Rental Adjustment as shown on such statement, and upon final determination of the amount of Tenant's Annual Rental Adjustment, Landlord shall promptly refund any such overpayment to Tenant following Landlord’s determination of the actual Costs for such year, or Tenant shall promptly pay any amount due to Landlord, as applicableportion thereof.
Appears in 2 contracts
Samples: Lease Agreement (Aerohive Networks, Inc), Lease Agreement (Aerohive Networks, Inc)
Payment of Additional Rent. In addition Landlord will make a good faith -------------------------- estimate of the Additional Rent to be due from Tenant for all or part of any calendar year during the Minimum Annual Rent specified in this LeaseTerm, and Tenant shall agrees to pay to Landlord as "Additional Rent" for Landlord, on January 1, 2002 and on the Leased Premises, in first day of each subsequent calendar year or partial calendar year, month during the Lease Term, an amount equal to 1/12/th/ of the Annual Rental Adjustment excluding Real Estate Taxes estimated Additional Rent for such calendar year full or partial calendar year. In From time to time, Landlord may estimate and re-estimate the case Additional Rent to be due from Tenant and deliver a copy of the estimate or re-estimate to Tenant. Subsequently, the monthly installments of Additional Rent payable by Tenant will be appropriately adjusted in accordance with Landlord's estimations so that by the end of the calendar year in question Tenant will have paid all of the Commencement Date, Landlord shall provide such notice prior to the Commencement Date. The Annual Rental Adjustment excluding Real Estate Taxes shall be Additional Rent as estimated annually by Landlord, and written notice thereof shall be given to Tenant prior to the beginning of each calendar year. Tenant shall pay to Landlord each month, at the same time the Monthly Rental Installment is due, an amount equal to one-twelfth (1/12) of the estimated Annual Rental Adjustment excluding Real Estate Taxes. If the cost of utility, janitorial or other services increase during a calendar year, Landlord may increase the estimated Annual Rental Adjustment excluding Real Estate Taxes during such year by giving Tenant written notice to that effect, and thereafter Tenant shall pay to Landlord, in each of the remaining months of such year, an amount equal to the amount of such increase in the estimated Annual Rental Adjustment excluding Real Estate Taxes for the remainder of the year divided by the number of months remaining in such year. Within a reasonable time after the end By April 1 of each calendar year, or as soon after that date as practicable, Landlord shall prepare and deliver will furnish to Tenant a statement showing of Operating Costs paid for the previous year, adjusted as provided in Section 3.2(f) below (the "Operating Costs Statement"). By September 1 of each calendar year, or as soon after that date as practicable, Landlord will furnish to Tenant a statement of the Taxes paid for the previous year, adjusted as provided in Section 3.2(f) below (the "Tax Statement"). If the Operating Costs Statement and/or the Tax Statement reveal(s) that Tenant paid more in Operating Costs Adjustment or Tax Adjustment than the actual Annual Rental Adjustment excluding Real Estate Taxes. Within amount for the year for which such statement was prepared, then Landlord will either credit Tenant for such excess within thirty (30) days after receipt of or refund such excess amount to Tenant if this Lease has expired or been terminated. Likewise, if Tenant paid less in Operating Costs Adjustment than the aforementioned statementactual amount for the year for which such statement was prepared, then Tenant shall pay to Landlord, or Landlord shall credit against the next rent payment or payments due from Tenant, as the case may be, the difference between the actual Annual Rental Adjustment excluding Real Estate Taxes for the preceding calendar year and the estimated amount paid by Tenant such deficiency to Landlord during such year. In addition, Tenant shall pay, before delinquency, any and all Real Estate Taxes as defined in Section 3.02.D, above, directly to the appropriate taxing authority. If Tenant fails for any reason to pay the Real Estate Taxes when same is due and payable, Landlord shall have the right, but not the obligation, to pay the Real Estate Taxes directly to the taxing authority and Tenant shall immediately reimburse Landlord for the cost thereof. Such amount shall accrue interest from the date Landlord pays such amount, pursuant to Section 3.04, below, shall include any penalties, late fees and any interest assessed due to such delinquency. Tenant or its accountants shall have the right to inspect, at reasonable time and in a reasonable manner, during the one hundred twenty within ten (12010) day period following the delivery of days after Landlord's statement demand. This provision will survive the Termination Date of the actual amount of the Annual Rental Adjustment excluding Real Estate Taxes, such of Landlord's books of account and records as pertain to and contain information concerning such costs and expenses for the Building for the prior calendar year in order to verify the amounts thereof. In the event the first audit discloses (i) errors made during the prior calendar year which, when totaled, indicate that the sum overcharged to and paid by Tenant, exceeds five percent (5%) of the Annual Rental Adjustment excluding Real Estate Taxes plus Landlord's Share of Operating Expenses (the "Total Expenses"), the audit shall be at the expense of Landlord, not to exceed Two Thousand Five Hundred Dollars ($2,500.00), or (ii) no errors or an error which equals or is less than five percent (5%) of the Total Expenses, the audit shall be at the expense of Tenant. For each subsequent audit, where the audit discloses errors exceeding five percent (5%) of the Total Expenses, Landlord shall pay for such audit and, if the audit discloses errors equal to or less than five percent (5%) of the Total Expenses, Tenant shall pay the costs of the audit. If Landlord spends more than eight (8) hours to accommodate Tenant's right to audit hereunder, Tenant shall also pay to Landlord as additional rent Seventy-five Dollars ($75.00) per hour for each additional hour that Tenant's audit takes of Landlord's property manager's or asset manager's time, provided such audit discloses no error or an error greater than five percent (5%) of the Total Expenses. The results of the audit (regardless of the degree of the error, if any) shall be binding upon Landlord and Tenant, and Landlord shall thereafter, if appropriate, change its method of calculating the Operating Expenses consistent with the results of the audit. Tenant agrees to hold the information obtained from such audit confidential and shall not disclose the same without Landlord's express written permission except as necessary to enforce the Lease or protect Tenant's rights hereunder. If Tenant shall not elect to cause an audit within the time period permitted hereby, then Landlord's statement shall be conclusively deemed to have been approved and accepted by Tenant. Pending resolution of any dispute with respect to statements of Tenant's Annual Rental Adjustment, Tenant shall pay its Annual Rental Adjustment as shown on such statement, and upon final determination of the amount of Tenant's Annual Rental Adjustment, Landlord shall promptly refund any overpayment to Tenant or Tenant shall promptly pay any amount due to Landlord, as applicablethis Lease.
Appears in 2 contracts
Samples: Lease Agreement (Coolsavings Com Inc), Disturbance and Attornment Agreement (Coolsavings Com Inc)
Payment of Additional Rent. In addition Landlord shall have the right to reasonably estimate the Operating Expenses for each Operating Year. Upon Landlord’s or Agent’s notice to Tenant of such estimated amount, Tenant shall pay, on the first day of each month during that Operating Year, an amount (the “Estimated Additional Rent”) equal to the Minimum Annual estimate of the Tenant’s Proportionate Share of Operating Expenses divided by 12 (or the fractional portion of the Operating Year remaining at the time Landlord delivers its notice of the estimated amounts due from Tenant for that Operating Year). If the aggregate amount of Estimated Additional Rent specified in this Leaseactually paid by Tenant during any Operating Year is less than Tenant’s actual ultimate liability for Operating Expenses for that particular Operating Year, Tenant shall pay to Landlord as "Additional Rent" for the Leased Premises, in each calendar year or partial calendar year, during the Lease Term, an amount equal to the Annual Rental Adjustment excluding Real Estate Taxes for such calendar year or partial calendar year. In the case deficiency within 30 days of the calendar year of the Commencement Date, Landlord shall provide such notice prior to the Commencement Date. The Annual Rental Adjustment excluding Real Estate Taxes shall be estimated annually by Landlord, and ’s written notice thereof shall be given to Tenant prior to the beginning of each calendar year. Tenant shall pay to Landlord each month, at the same time the Monthly Rental Installment is due, an amount equal to one-twelfth (1/12) of the estimated Annual Rental Adjustment excluding Real Estate Taxesdemand therefor. If the cost aggregate amount of utility, janitorial or other services increase Estimated Additional Rent actually paid by Tenant during a calendar yeargiven Operating Year exceeds Tenant’s actual liability for such Operating Year, the excess shall be credited against the Estimated Additional Rent next due from Tenant during the immediately subsequent Operating Year, except that in the event that such excess is paid by Tenant during the final Lease Year, then upon the expiration of the Term, Landlord may increase the estimated Annual Rental Adjustment excluding Real Estate Taxes during such year by giving Tenant written notice to that effect, and thereafter Tenant or Agent shall pay Tenant the then-applicable excess promptly after determination thereof. No interest shall be payable to Landlord, in each Tenant on account of the remaining months payments of Estimated Additional Rent and such year, an amount equal to the amount of such increase in the estimated Annual Rental Adjustment excluding Real Estate Taxes for the remainder of the year divided by the number of months remaining in such yearpayments may be commingled. Within a reasonable time one hundred twenty (120) days after the end of each calendar yearyear during the Lease Term, Landlord shall prepare and deliver furnish to Tenant a statement (i) annual statements itemizing the Operating Expenses for the year just ended, which statements shall be reasonably detailed, prepared in the ordinary course of Landlord’s business and certified by Landlord as being true and complete, and (ii) Landlord’s calculations showing Tenant’s Proportionate Share of the actual Annual Rental Adjustment excluding Real Estate TaxesOperating Expenses for such year. Within Upon thirty (30) days after receipt of prior notice and not more than once per year during the aforementioned statementLease Term, Tenant shall pay to Landlord, or Landlord shall credit against the next rent payment or payments due from Tenant, as the case may be, the difference between the actual Annual Rental Adjustment excluding Real Estate Taxes for the preceding calendar year and the estimated amount paid by Tenant to Landlord during such year. In addition, Tenant shall pay, before delinquency, any and all Real Estate Taxes as defined in Section 3.02.D, above, directly to the appropriate taxing authority. If Tenant fails for any reason to pay the Real Estate Taxes when same is due and payable, Landlord shall have the right, but not the obligation, to pay the Real Estate Taxes directly to the taxing authority and Tenant shall immediately reimburse Landlord for the cost thereof. Such amount shall accrue interest from the date Landlord pays such amount, pursuant to Section 3.04, below, shall include any penalties, late fees and any interest assessed due to such delinquency. Tenant or its accountants shall have the right to inspect, at reasonable time inspect Landlord’s books and in a reasonable manner, during records for the one hundred twenty (120) day period following sole purpose of verifying the delivery of Landlord's statement Operating Expenses and the calculation of the actual amount of the Annual Rental Adjustment excluding Real Estate Taxes, such of Landlord's books of account and records as pertain to and contain information concerning such costs and expenses for the Building for the prior calendar year in order to verify the amounts Tenant’s Proportionate Share thereof. In the event the first audit discloses (i) errors made during the prior calendar year which, when totaled, indicate If any such inspection reveals that the sum Tenant was overcharged and not otherwise properly reconciled pursuant to and paid by Tenant, exceeds five percent (5%) of the Annual Rental Adjustment excluding Real Estate Taxes plus Landlord's Share of Operating Expenses (the "Total Expenses"), the audit shall be at the expense of Landlord, not to exceed Two Thousand Five Hundred Dollars ($2,500.00), or (ii) no errors or an error which equals or is less than five percent (5%) of the Total Expenses, the audit shall be at the expense of Tenant. For each subsequent audit, where the audit discloses errors exceeding five percent (5%) of the Total Expensesthis Section 3.3, Landlord shall pay for credit any such audit and, if amounts to the audit discloses errors equal to or less than five percent (5%next payment(s) of Additional Rent becoming due or, in the Total Expensesfinal year, Tenant shall pay the costs of the audit. If Landlord spends more than eight (8) hours refund any such excess amount charged to accommodate Tenant's right to audit hereunder, Tenant shall also pay to Landlord as additional rent Seventy-five Dollars ($75.00) per hour for each additional hour that Tenant's audit takes of Landlord's property manager's or asset manager's time, provided such audit discloses no error or an error greater than five percent (5%) of the Total Expenses. The results of the audit (regardless of the degree of the error, if any) shall be binding upon Landlord and Tenant, and Landlord shall thereafter, if appropriate, change its method of calculating the Operating Expenses consistent with the results of the audit. Tenant agrees to hold the maintain in strict confidence any information obtained from such audit confidential and shall not disclose the same without Landlord's express written permission Tenant obtains or reviews pursuant to its inspections rights granted under this Section 3.3 except as necessary to enforce the Lease or protect Tenant's rights hereunder. If that Tenant shall not elect be permitted to disclose such information to its attorneys and advisors, provided Tenant informs such parties of the confidential nature of such information and uses good faith and diligent efforts to cause an audit within the time period permitted hereby, then Landlord's statement shall be conclusively deemed such parties to have been approved and accepted by Tenant. Pending resolution of any dispute with respect to statements of Tenant's Annual Rental Adjustment, Tenant shall pay its Annual Rental Adjustment maintain such information as shown on such statement, and upon final determination of the amount of Tenant's Annual Rental Adjustment, Landlord shall promptly refund any overpayment to Tenant or Tenant shall promptly pay any amount due to Landlord, as applicableconfidential.
Appears in 2 contracts
Samples: Assignment and Assumption of Lease (Wornick CO Right Away Division, L.P.), Assignment and Assumption of Lease (TWC Holding Corp.)
Payment of Additional Rent. In addition Except as otherwise expressly provided herein, Additional Rent shall be paid and adjusted with reference to a fiscalperiod of twelve (12) calendar months ("Fiscal Period"), which shall be a calendar year unless the Landlord shall from time to time have selected a Fiscal Period which is not a calendar year by written notice to the Minimum Annual Tenant. Payment of Additional Rent specified shall commence January 1, 2000. The Landlord shall advise the Tenant in this Leasewriting of its estimate of the Additional Rent to be payable by the Tenant during the Fiscal Period (or broken portion of the Fiscal Period, as the case may be, if applicable at the commencement or end of the Term or because of a change in Fiscal Period) which commenced upon the commencement dateof the Term and for each succeeding Fiscal Period or broken portion thereof which commences during the Term. Such estimate shall in every case be a reasonable estimate and, if requested by the Tenant, shall be accompanied by reasonable particulars of the manner in which it was calculated. The Additional Rent payable by the Tenant shall pay to Landlord as "Additional Rent" for the Leased Premises, be paid in each calendar year or partial calendar year, during the Lease Term, an amount equal to the Annual Rental Adjustment excluding Real Estate Taxes for such calendar year or partial calendar year. In the case of the calendar year of the Commencement Date, Landlord shall provide such notice prior to the Commencement Date. The Annual Rental Adjustment excluding Real Estate Taxes shall be estimated annually by Landlord, and written notice thereof shall be given to Tenant prior to the beginning of each calendar year. Tenant shall pay to Landlord each month, monthly installments in advance at the same time as payment of Basic Rent is due hereunder based on the Monthly Rental Installment is dueLandlord's estimate as aforesaid, an amount equal except as otherwise expressly provided herein. From time to one-twelfth (1/12) of time, the estimated Annual Rental Adjustment excluding Real Estate Taxes. If the cost of utility, janitorial or other services increase during a calendar year, Landlord may increase the estimated Annual Rental Adjustment excluding Real Estate Taxes during such year by giving Tenant written notice to that effectre-estimate, and thereafter Tenant shall pay to Landlordon a reasonable basis, in each of the remaining months of such year, an amount equal to the amount of Additional Rent for any Fiscal Period or broken portion thereof, in which case the Landlord shall advise the Tenant in writing of such increase in the estimated Annual Rental Adjustment excluding Real Estate Taxes re-estimate and fix new equal monthly installments for the remainder remaining balance of the year divided by the number of months remaining in such yearFiscal Period or broken portion thereof. Within a reasonable time ninety (90) days after the end of each calendar yearsuch Fiscal Period or broken portion thereof, the Landlord shall prepare and deliver submit to the Tenant a statement showing of the actual Annual Rental Adjustment excluding Real Estate TaxesAdditional Rent payable in respect of such Fiscal Period or broken portion thereof and a calculation of the amounts by which the Additional Rent payable by the Tenant exceeds or is less than (as the case may be) the aggregate installments paid by the Tenant on account of Additional Rent for such Fiscal Period. Within one year after the submission of any such statement, the Tenant (through its authorized representatives and accountants)may, at any reasonable time after five (5) days' prior written notice to the Landlord, examine all the Landlord's books and records for the Property, which books and records shall be kept in British Columbia, and the Landlord shall keep complete and accurate books and records in respect of all incomings and outgoings. Within thirty (30) days after receipt the submission of such statement either the aforementioned statement, Tenant shall pay to Landlordthe Landlord any amount by which the amount found payable by the Tenant with respect to such Fiscal Period or broken portion thereof exceeds the aggregate of the monthly payments made by it on account thereof during such Fiscal Period or broken portion thereof, or the Landlord shall credit against pay to the next rent payment or payments due from Tenant, Tenant any amount by which the amount found payable as aforesaid is less than the case may beaggregate of such monthly payments. That part of Additional Rent to be paid pursuant to clause 3(b)(i) above shall be estimated as aforesaid and for leases commencing prior to June 30th, the difference between estimate of the actual Annual Rental Adjustment excluding Real Estate Taxes tax for the preceding current calendar year shall be paid by equal monthly payment from the date of commencement through June 30th of the same year. For leases commencing after June 30th, the tax for the current calendar year shall be due and payable upon occupancy. Commencing on occupancy and thereafter on July 1st in each year hereof, the forthcoming year's tax shall be estimated as aforesaid and shall be paid by equal monthlyinstallments such that by June 1st of each subsequent year the estimate of the then current calendar year's tax shall have been deposited with the Landlord. Differences between actual tax and the estimated estimate thereof shall be notified and shall be payable or refundable within 30 days of such notification. The Landlord covenants to deliver to the Tenant forthwith upon receipt of notification of any taxes, a statement of the Tenant's proportionate share thereof and a statement of account showing the amount paid pursuant thereto by the Tenant to Landlord during such year. In addition, Tenant shall pay, before delinquency, any and all Real Estate Taxes as defined in Section 3.02.D, above, directly to the appropriate taxing authority. If Tenant fails for any reason to pay the Real Estate Taxes when same is balance due and payable, Landlord shall have the right, but not the obligation, to pay the Real Estate Taxes directly to the taxing authority and Tenant shall immediately reimburse Landlord for the cost thereof. Such amount shall accrue interest from the date Landlord pays such amount, pursuant to Section 3.04, below, shall include any penalties, late fees and any interest assessed due to such delinquency. Tenant or its accountants shall have the right to inspect, at reasonable time and in a reasonable manner, during the one hundred twenty (120) day period following the delivery of Landlord's statement of the actual amount of the Annual Rental Adjustment excluding Real Estate Taxes, such of Landlord's books of account and records as pertain to and contain information concerning such costs and expenses for the Building for the prior calendar year in order to verify the amounts thereof. In the event the first audit discloses (i) errors made during the prior calendar year which, when totaled, indicate that the sum overcharged to and paid by Tenant, exceeds five percent (5%) of the Annual Rental Adjustment excluding Real Estate Taxes plus Landlord's Share of Operating Expenses (the "Total Expenses"), the audit shall be at the expense of Landlord, not to exceed Two Thousand Five Hundred Dollars ($2,500.00), or (ii) no errors or an error which equals or is less than five percent (5%) of the Total Expenses, the audit shall be at the expense of Tenant. For each subsequent audit, where the audit discloses errors exceeding five percent (5%) of the Total Expenses, Landlord shall pay for such audit and, if the audit discloses errors equal to or less than five percent (5%) of the Total Expenses, Tenant shall pay the costs of the audit. If Landlord spends more than eight (8) hours to accommodate Tenant's right to audit hereunder, Tenant shall also pay to Landlord as additional rent Seventy-five Dollars ($75.00) per hour for each additional hour that Tenant's audit takes of Landlord's property manager's or asset manager's time, provided such audit discloses no error or an error greater than five percent (5%) of the Total Expenses. The results of the audit (regardless of the degree of the error, if any) shall be binding upon Landlord and Tenant, and Landlord shall thereafter, if appropriate, change its method of calculating the Operating Expenses consistent with the results of the audit. Tenant agrees to hold the information obtained from such audit confidential and shall not disclose the same without Landlord's express written permission except as necessary to enforce the Lease or protect Tenant's rights hereunder. If Tenant shall not elect to cause an audit within the time period permitted hereby, then Landlord's statement shall be conclusively deemed to have been approved and accepted by Tenant. Pending resolution of any dispute with respect to statements of Tenant's Annual Rental Adjustment, Tenant shall pay its Annual Rental Adjustment as shown on such statement, and upon final determination of the amount of Tenant's Annual Rental Adjustment, Landlord shall promptly refund any overpayment to Tenant or Tenant shall promptly pay any amount due to Landlord, as applicable.
Appears in 1 contract
Samples: Agreement (Landstar Inc)
Payment of Additional Rent. In addition to the Minimum Annual Rent specified Unless Tenant is in this LeaseDefault hereunder, Tenant shall pay the Building Expenses directly to the applicable payees as such Building Expenses become due and payable. In the event of a Tenant Default and thereafter, Landlord as "shall estimate the total amount of Additional Rent" for the Leased Premises, in Rent to be paid by Tenant during each calendar year or partial calendar year, during of the Lease Term, an amount equal to the Annual Rental Adjustment excluding Real Estate Taxes pro-rated for such calendar year or any partial calendar yearyears. In the case of the calendar year of the Commencement DateFollowing a Tenant Default and Landlord’s notice, Landlord shall provide such notice prior to the Commencement Date. The Annual Rental Adjustment excluding Real Estate Taxes shall be estimated annually by Landlord, and written notice thereof shall be given to Tenant prior to the beginning of each calendar year. Tenant shall pay to Landlord each month, at the same time the Monthly Rental Installment is due, an amount equal to one-twelfth (1/12) of the estimated Annual Rental Adjustment excluding Real Estate Taxes. If the cost of utility, janitorial or other services increase during a calendar year, Landlord may increase the estimated Annual Rental Adjustment excluding Real Estate Taxes during such year by giving Tenant written notice to that effect, and thereafter Tenant shall pay to Landlord, in each of the remaining months of such year, an amount equal to the amount of such increase in the estimated Annual Rental Adjustment excluding Real Estate Taxes Additional Rent for the remainder of the year divided by the number of months remaining in such year. Within a reasonable time after the end of each calendar year, Landlord shall prepare and deliver submit to Tenant a statement showing of the actual Annual Rental Adjustment excluding Real Estate Taxes. Within amount of such Additional Rent and within thirty (30) days after receipt of the aforementioned such statement, Tenant shall pay to Landlordany deficiency between the actual amount owed and the estimates paid during such calendar year. In the event of overpayment, or Landlord shall credit against the amount of such overpayment toward the next rent payment or payments due from Tenant, as the case may be, the difference between the actual Annual Rental Adjustment excluding Real Estate Taxes for the preceding calendar year and the estimated amount paid by Tenant to Landlord during such year. In addition, Tenant shall pay, before delinquency, any and all Real Estate Taxes as defined in Section 3.02.D, above, directly to the appropriate taxing authority. If Tenant fails for any reason to pay the Real Estate Taxes when same is due and payable, Landlord shall have the right, but not the obligation, to pay the Real Estate Taxes directly to the taxing authority and Tenant shall immediately reimburse Landlord for the cost thereof. Such amount shall accrue interest from the date Landlord pays such amount, pursuant to Section 3.04, below, shall include any penalties, late fees and any interest assessed due to such delinquencyinstallments of Minimum Rent. Tenant or its accountants shall have the right to inspect, at reasonable time times and in a reasonable manner, during the one hundred twenty sixty (12060) day period following the delivery of Landlord's ’s statement of the actual amount of the Annual Rental Adjustment excluding Real Estate TaxesAdditional Rent (the “Inspection Period”), such of Landlord's ’s books of account and records as pertain to and contain information concerning such costs and expenses for the Building Additional Rent for the prior calendar year in order to verify the amounts thereof. In Such inspection shall take place at Landlord’s office. Only Tenant or a certified public accountant that is not being compensated for its services on a contingency fee basis shall conduct such inspection. Landlord and Tenant shall act reasonably in assessing the event the first audit discloses (i) errors made during the prior calendar year which, when totaled, indicate that the sum overcharged to and paid by Tenant, exceeds five percent (5%) other party’s calculation of the Annual Rental Adjustment excluding Real Estate Taxes plus Landlord's Share of Operating Expenses (the "Total Expenses"), the audit shall be at the expense of Landlord, not to exceed Two Thousand Five Hundred Dollars ($2,500.00), or (ii) no errors or an error which equals or is less than five percent (5%) of the Total Expenses, the audit shall be at the expense of TenantAdditional Rent. For each subsequent audit, where the audit discloses errors exceeding five percent (5%) of the Total Expenses, Landlord shall pay for such audit and, if the audit discloses errors equal to or less than five percent (5%) of the Total Expenses, Tenant shall pay the costs provide Landlord with a copy of its findings within thirty (30) days after completion of the audit. If Landlord spends more than eight (8) hours Tenant’s failure to accommodate Tenant's exercise its rights hereunder within the Inspection Period shall be deemed a waiver of its right to audit hereunderinspect or contest the method, Tenant shall also pay to Landlord as additional rent Seventy-five Dollars ($75.00) per hour for each additional hour that Tenant's audit takes accuracy or amount of Landlord's property manager's or asset manager's time, provided such audit discloses no error or an error greater than five percent (5%) Additional Rent. All of the Total Expenses. The results of the audit (regardless of the degree of the errorinformation obtained through Tenant’s inspection, if any) shall be binding upon as well as any compromise, settlement or adjustment reached between Landlord and Tenant, and Landlord shall thereafter, if appropriate, change its method of calculating the Operating Expenses consistent with Tenant relative to the results of the audit. inspection shall be held in strict confidence by Tenant agrees to hold the information obtained from such audit confidential and shall not disclose the same without Landlord's express written permission except as necessary to enforce the Lease or protect Tenant's rights hereunder. If its officers, agents, and employees, and Tenant shall not elect cause its independent professionals to cause an audit within the time period permitted hereby, then Landlord's statement shall be conclusively deemed to have been approved and accepted by Tenant. Pending resolution of any dispute with respect to statements of Tenant's Annual Rental Adjustment, Tenant shall pay its Annual Rental Adjustment as shown on such statement, and upon final determination of the amount of Tenant's Annual Rental Adjustment, Landlord shall promptly refund any overpayment to Tenant or Tenant shall promptly pay any amount due to Landlord, as applicablesimilarly bound.
Appears in 1 contract
Payment of Additional Rent. In addition Landlord will make a good faith estimate of the Additional Rent to be due from Tenant for all or part of any calendar year during the Minimum Annual Rent specified Term and will provide a copy of such estimate to Tenant on or before February 1 of each year beginning in this Lease, 2005. Tenant shall agrees to pay to Landlord as "Additional Rent" for Landlord, on the Leased Premises, in Commencement Date and on the first day of each subsequent calendar year or partial calendar year, month during the Lease Term, an amount equal to 1/12th of the Annual Rental Adjustment excluding Real Estate Taxes estimated Additional Rent for such calendar year full or partial calendar year. In From time to time, Landlord may estimate and re-estimate the case Additional Rent to be due from Tenant and deliver a copy of the estimate or re-estimate to Tenant. Subsequently, the monthly installments of Additional Rent payable by Tenant will be appropriately adjusted in accordance with Landlord’s estimations so that by the end of the calendar year in question Tenant will have paid all of the Commencement Date, Landlord shall provide such notice prior to the Commencement Date. The Annual Rental Adjustment excluding Real Estate Taxes shall be Additional Rent as estimated annually by Landlord, and written notice thereof shall be given to Tenant prior to the beginning of each calendar year. Tenant shall pay to Landlord each month, at the same time the Monthly Rental Installment is due, an amount equal to one-twelfth (1/12) of the estimated Annual Rental Adjustment excluding Real Estate Taxes. If the cost of utility, janitorial or other services increase during a calendar year, Landlord may increase the estimated Annual Rental Adjustment excluding Real Estate Taxes during such year by giving Tenant written notice to that effect, and thereafter Tenant shall pay to Landlord, in each of the remaining months of such year, an amount equal to the amount of such increase in the estimated Annual Rental Adjustment excluding Real Estate Taxes for the remainder of the year divided by the number of months remaining in such year. Within a reasonable time after the end By April 1 of each calendar year, or as soon after that date as practicable, Landlord shall prepare and deliver will furnish to Tenant a statement showing of Operating Costs paid for the previous year, adjusted as provided in Section 3.2(f) below (the “Operating Costs Statement”). By September 1 of each calendar year, or as soon after that date as practicable, Landlord will furnish to Tenant a statement of the Taxes paid for the previous year, adjusted as provided in Section 3.2(f) below (the “Tax Statement”). If the Operating Costs Statement and/or the Tax Statement reveal(s) that Tenant paid more in Operating Costs Adjustment or Tax Adjustment than the actual Annual Rental amount for the year for which such statement was prepared, then Landlord will promptly credit Tenant for such excess. Likewise, if Tenant paid less in Operating Costs Adjustment excluding Real Estate Taxes. Within thirty than the actual amount for the year for which such statement was prepared, then Tenant shall pay such deficiency to Landlord within ten (3010) days after receipt Landlord’s demand. This provision will survive the Termination Date of the aforementioned statement, Tenant shall pay to Landlord, or Landlord shall credit against the next rent payment or payments due from Tenant, as the case may be, the difference between the actual Annual Rental Adjustment excluding Real Estate Taxes for the preceding calendar year and the estimated amount paid by Tenant to Landlord during such year. In addition, Tenant shall pay, before delinquency, any and all Real Estate Taxes as defined in Section 3.02.D, above, directly to the appropriate taxing authority. If Tenant fails for any reason to pay the Real Estate Taxes when same is due and payable, Landlord shall have the right, but not the obligation, to pay the Real Estate Taxes directly to the taxing authority and Tenant shall immediately reimburse Landlord for the cost thereof. Such amount shall accrue interest from the date Landlord pays such amount, pursuant to Section 3.04, below, shall include any penalties, late fees and any interest assessed due to such delinquency. Tenant or its accountants shall have the right to inspect, at reasonable time and in a reasonable manner, during the one hundred twenty (120) day period following the delivery of Landlord's statement of the actual amount of the Annual Rental Adjustment excluding Real Estate Taxes, such of Landlord's books of account and records as pertain to and contain information concerning such costs and expenses for the Building for the prior calendar year in order to verify the amounts thereof. In the event the first audit discloses (i) errors made during the prior calendar year which, when totaled, indicate that the sum overcharged to and paid by Tenant, exceeds five percent (5%) of the Annual Rental Adjustment excluding Real Estate Taxes plus Landlord's Share of Operating Expenses (the "Total Expenses"), the audit shall be at the expense of Landlord, not to exceed Two Thousand Five Hundred Dollars ($2,500.00), or (ii) no errors or an error which equals or is less than five percent (5%) of the Total Expenses, the audit shall be at the expense of Tenant. For each subsequent audit, where the audit discloses errors exceeding five percent (5%) of the Total Expenses, Landlord shall pay for such audit and, if the audit discloses errors equal to or less than five percent (5%) of the Total Expenses, Tenant shall pay the costs of the audit. If Landlord spends more than eight (8) hours to accommodate Tenant's right to audit hereunder, Tenant shall also pay to Landlord as additional rent Seventy-five Dollars ($75.00) per hour for each additional hour that Tenant's audit takes of Landlord's property manager's or asset manager's time, provided such audit discloses no error or an error greater than five percent (5%) of the Total Expenses. The results of the audit (regardless of the degree of the error, if any) shall be binding upon Landlord and Tenant, and Landlord shall thereafter, if appropriate, change its method of calculating the Operating Expenses consistent with the results of the audit. Tenant agrees to hold the information obtained from such audit confidential and shall not disclose the same without Landlord's express written permission except as necessary to enforce the Lease or protect Tenant's rights hereunder. If Tenant shall not elect to cause an audit within the time period permitted hereby, then Landlord's statement shall be conclusively deemed to have been approved and accepted by Tenant. Pending resolution of any dispute with respect to statements of Tenant's Annual Rental Adjustment, Tenant shall pay its Annual Rental Adjustment as shown on such statement, and upon final determination of the amount of Tenant's Annual Rental Adjustment, Landlord shall promptly refund any overpayment to Tenant or Tenant shall promptly pay any amount due to Landlord, as applicablethis Lease.
Appears in 1 contract
Samples: Lease Agreement (Ecollege Com)
Payment of Additional Rent. In addition Landlord shall reasonably estimate the total amount of Additional Rent to the Minimum Annual Rent specified in this Lease, be paid by Tenant shall pay to Landlord as "Additional Rent" for the Leased Premises, in during each calendar year or partial calendar year, during of the Lease Term, an amount equal to the Annual Rental Adjustment excluding Real Estate Taxes pro-rated for such calendar year or any partial calendar yearyears. In the case of the calendar year of Commencing on the Commencement Date, Landlord shall provide such notice prior to the Commencement Date. The Annual Rental Adjustment excluding Real Estate Taxes shall be estimated annually by Landlord, and written notice thereof shall be given to Tenant prior to the beginning of each calendar year. Tenant shall pay to Landlord each month, at the same time the Monthly Rental Installment is due, an amount equal to one-twelfth (1/12) of the estimated Annual Rental Adjustment excluding Real Estate Taxes. If the cost of utility, janitorial or other services increase during a calendar year, Landlord may increase the estimated Annual Rental Adjustment excluding Real Estate Taxes during such year by giving Tenant written notice to that effect, and thereafter Tenant shall pay to Landlord, in each of the remaining months of such year, an amount equal to the amount of such increase in the estimated Annual Rental Adjustment excluding Real Estate Taxes Additional Rent for the remainder of the year divided by the number of months remaining in such year. The estimate of Additional Rent for any given year shall not exceed one hundred five percent (105%) of the actual amount of Additional Rent from the prior year unless Landlord can document for Tenant why a greater increase is appropriate. Within a reasonable time one hundred twenty (120) days after the end of each calendar year, Landlord shall prepare and deliver submit to Tenant a statement showing of the actual Annual Rental Adjustment excluding Real Estate Taxes. Within amount of such Additional Rent and within thirty (30) days after receipt of the aforementioned such statement, Tenant shall pay to Landlordany deficiency between the actual amount owed and the estimates paid during such calendar year. In the event of overpayment, or Landlord shall credit against the amount of such overpayment toward the next rent payment or payments due from Tenant, as the case may be, the difference between the actual Annual Rental Adjustment excluding Real Estate Taxes for the preceding calendar year and the estimated amount paid by Tenant to Landlord during such year. In addition, Tenant shall pay, before delinquency, any and all Real Estate Taxes as defined in Section 3.02.D, above, directly to the appropriate taxing authority. If Tenant fails for any reason to pay the Real Estate Taxes when same is due and payable, Landlord shall have the right, but not the obligation, to pay the Real Estate Taxes directly to the taxing authority and Tenant shall immediately reimburse Landlord for the cost thereof. Such amount shall accrue interest from the date Landlord pays such amount, pursuant to Section 3.04, below, shall include any penalties, late fees and any interest assessed due to such delinquencyinstallments of Minimum Rent. Tenant or its accountants shall have the right to inspect, at reasonable time and in a reasonable manner, during the one hundred twenty (120) day period following the delivery of Landlord's statement of the actual amount of the Annual Rental Adjustment excluding Real Estate Taxes, inspect such of Landlord's books of account and records which contain the Operating Expense information, upon written notice given to Landlord not later than ninety (90) days following receipt of such statement by Tenant. If the parties are unable to resolve any disagreement as pertain to the Operating Expenses by good faith negotiation within ninety (90) days following Tenant's notice to Landlord, Tenant may, at Tenant's sole cost and contain information concerning expense, cause a qualified independent certified public accountant designated by Landlord from a list of not less than five (5) such costs accountants selected by Tenant (to be paid on an hourly and expenses for not a contingency fee basis) to audit Landlord's records with respect to the Building for the prior calendar year in order to verify the amounts thereofOperating Expenses which audit shall be completed within sixty (60) days. In the event the first audit discloses (i) errors made during the prior calendar year which, when totaled, clearly indicate that the sum overcharged to and paid by Tenant, exceeds five four percent (54%) of the Annual Rental Adjustment excluding Real Estate Taxes plus Landlord's Share of annual Operating Expenses (the "Total Expenses")Expense amount, the audit shall be at the expense of Landlord, not to exceed Two Thousand Five Hundred Dollars ($2,500.00), or (ii) no errors or an error which equals or is less than five four percent (54%) of the Total Expensesannual Operating Expense amount, the audit shall be at the expense of Tenant. For each subsequent audit, where the audit discloses errors exceeding five percent (5%) of the Total Expenses, Landlord shall pay for such audit and, if the audit discloses errors equal to or less than five percent (5%) of the Total Expenses, Tenant shall pay the costs of the audit. If Landlord spends more than eight (8) hours to accommodate Tenant's right to audit hereunder, Tenant shall also pay to Landlord as additional rent Seventy-five Dollars ($75.00) per hour for each additional hour that Tenant's audit takes of Landlord's property manager's or asset manager's time, provided such audit discloses no error or an error greater than five percent (5%) of the Total Expenses. The results of the audit (regardless of the degree of the error, if any) shall be binding upon Landlord and Tenant, and Landlord shall thereafter, if appropriate, change its method of calculating the Operating Expenses consistent with the results of the audit. Tenant agrees to hold the information obtained from such audit confidential and shall not disclose the same without Landlord's express written permission except as necessary to enforce the Lease or protect Tenant's rights hereunder. If Tenant shall not elect to cause an audit within the time period permitted hereby, then Landlord's statement shall be conclusively deemed to have been approved and accepted by Tenant. Pending resolution of any dispute with respect to statements of Tenant's Annual Rental Adjustment, Tenant shall pay its Annual Rental Adjustment as shown on such statement, and upon final determination of the amount of Tenant's Annual Rental Adjustment, Landlord shall promptly refund any overpayment to Tenant or Tenant shall promptly pay any amount due to Landlord, as applicable.
Appears in 1 contract
Samples: Lease Agreement (Homegrocer Com Inc)
Payment of Additional Rent. In addition Prior to January 1 of each -------------------------- calendar year following the Minimum Annual Rent specified calendar year in which this LeaseLease commences (the "Base Year"), Landlord shall furnish to Tenant shall pay to Landlord as "Additional Rent" a written statement showing in reasonable detail the estimated Landlord's Operating Expenses for the Leased Premises, in each calendar year or partial next forthcoming calendar year, during . At the Lease Term, an amount equal to the Annual Rental Adjustment excluding Real Estate Taxes for first monthly rent payment date in such calendar year or partial calendar year. In the case that occurs at least twenty (20) days following Tenant's receipt of such statement and at each of the calendar year of the Commencement Date, Landlord shall provide other monthly rent payment dates during such notice prior to the Commencement Date. The Annual Rental Adjustment excluding Real Estate Taxes shall be estimated annually by Landlord, and written notice thereof shall be given to Tenant prior to the beginning of each calendar year. Tenant shall pay to Landlord each month, at the same time the Monthly Rental Installment is due, an amount equal to one-twelfth (1/12) of the estimated Annual Rental Adjustment excluding Real Estate Taxes. If the cost of utility, janitorial or other services increase during a calendar year, Landlord may increase the estimated Annual Rental Adjustment excluding Real Estate Taxes during such year by giving Tenant written notice to that effect, and thereafter Tenant shall pay to Landlord, in each as additional rent, 1/12th of the remaining months of such year, an amount equal to the amount Tenant's Pro Rata Share of such increase in the estimated Annual Rental Adjustment excluding Real Estate Taxes for annual Landlord's Operating Expenses. In the remainder event of the inability of Landlord for any reason to furnish said statement prior to January 1, Tenant shall pay, at the monthly rent payment date next following Tenant's receipt of said statement, any additional rent which shall have accrued prior to such payment date. On or before March 31 (or as soon thereafter as possible) in each calendar year divided by commencing with the number of months remaining in such year. Within a reasonable time calendar year after the end of each calendar yearBase Year, Landlord shall prepare and deliver furnish to Tenant a written statement showing in reasonable detail (i) the actual Annual Rental Adjustment excluding Real Estate TaxesLandlord's Operating Expenses incurred during the preceding calendar year or portion thereof, and (ii) an itemized schedule of all Landlord's estimated Operating Expenses during the then current calendar year. Within thirty At the monthly rent payment date that occurs at least twenty (3020) days after next following Tenant's receipt of the aforementioned such statement, Tenant shall pay to Landlord, as additional rent, in the event of an excess (or Landlord Tenant shall credit against receive a refund, in the next rent payment or payments due from Tenantevent of a deficiency, as the case may be, in an amount equal to the difference between (i) the additional rent payable by Tenant based upon the actual Annual Rental Adjustment excluding Real Estate Taxes Landlord's Operating Expenses for the preceding calendar year year, and (ii) the estimated amount actual additional rent paid by Tenant to Landlord during based upon estimated Landlord's Operating Expenses for such year. In addition, Tenant shall pay, before delinquency, any and all Real Estate Taxes as defined in Section 3.02.D, above, directly to the appropriate taxing authority. If Tenant fails for any reason to pay the Real Estate Taxes when same is due and payable, Landlord shall have the right, but not the obligation, to pay the Real Estate Taxes directly to the taxing authority and Tenant shall immediately reimburse Landlord for the cost thereof. Such amount shall accrue interest from the date Landlord pays such amount, pursuant to Section 3.04, below, shall include any penalties, late fees and any interest assessed due to such delinquency. Tenant or its accountants shall have the right to inspect, at reasonable time and in a reasonable manner, during the one hundred twenty (120) day period following the delivery Estimates of Landlord's statement of the actual amount of the Annual Rental Adjustment excluding Real Estate TaxesOperating Expenses shall be made exclusively by Landlord, such of based upon Landlord's experience with actual costs and reasonable projections upon five (5) days prior written notice Tenant may review the books of account and records as pertain to and contain information concerning such costs and expenses for the Building for the prior calendar year in order to verify the amounts thereof. In the event the first audit discloses (i) errors made during the prior calendar year which, when totaled, indicate that the sum overcharged to and paid by Tenant, exceeds five percent (5%) of the Annual Rental Adjustment excluding Real Estate Taxes plus Landlord from which Landlord's Share of Operating Expenses (the "Total Expenses"), the audit shall be at the expense of Landlord, not to exceed Two Thousand Five Hundred Dollars ($2,500.00), or (ii) no errors or an error which equals or is less than five percent (5%) of the Total Expenses, the audit shall be at the expense of Tenant. For each subsequent audit, where the audit discloses errors exceeding five percent (5%) of the Total Expenses, Landlord shall pay for such audit and, if the audit discloses errors equal to or less than five percent (5%) of the Total Expenses, Tenant shall pay the costs of the audit. If Landlord spends more than eight (8) hours to accommodate Tenant's right to audit hereunder, Tenant shall also pay to Landlord as additional rent Seventy-five Dollars ($75.00) per hour for each additional hour that Tenant's audit takes of Landlord's property manager's or asset manager's time, provided such audit discloses no error or an error greater than five percent (5%) of the Total Expenses. The results of the audit (regardless of the degree of the error, if any) shall be binding upon Landlord and Tenant, and Landlord shall thereafter, if appropriate, change its method of calculating the Operating Expenses consistent with the results of the audit. Tenant agrees to hold the information obtained from such audit confidential and shall not disclose the same without Landlord's express written permission except as necessary to enforce the Lease or protect Tenant's rights hereunder. If Tenant shall not elect to cause an audit within the time period permitted hereby, then Landlord's statement shall be conclusively deemed to have been approved and accepted by Tenant. Pending resolution of any dispute with respect to statements of Tenant's Annual Rental Adjustment, Tenant shall pay its Annual Rental Adjustment as shown on such statement, and upon final determination of the amount of Tenant's Annual Rental Adjustment, Landlord shall promptly refund any overpayment to Tenant or Tenant shall promptly pay any amount due to Landlord, as applicableare determined.
Appears in 1 contract
Payment of Additional Rent. In addition to the Minimum Annual Rent specified in (i) Upon commencement of this Lease, Landlord shall submit to Tenant an estimate of monthly Additional Rent for the period between the Commencement Date and the following December 31 and, subject to Paragraph 4(c) above, Tenant shall pay to Landlord as "such estimated Additional Rent" for the Leased PremisesRent on a monthly basis, in each calendar year or partial calendar yearadvance, during on the Lease Term, an amount equal to the Annual Rental Adjustment excluding Real Estate Taxes for such calendar year or partial calendar year. In the case of the calendar year of the Commencement Date, Landlord shall provide such notice prior to the Commencement Date. The Annual Rental Adjustment excluding Real Estate Taxes shall be estimated annually by Landlord, and written notice thereof shall be given to Tenant prior to the beginning first day of each calendar yearmonth. Tenant shall pay continue to make said monthly payments until notified by Landlord each month, at the same time the Monthly Rental Installment is due, an amount equal to one-twelfth (1/12) of the estimated Annual Rental Adjustment excluding Real Estate Taxesa change therein. If at any time or times Landlord determines that the cost of utilityamounts payable under Paragraph 4(b) for the current year will vary from Landlord’s estimate given to Tenant, janitorial or other services increase during a calendar yearLandlord, Landlord may increase the estimated Annual Rental Adjustment excluding Real Estate Taxes during such year by giving Tenant written notice to that effectTenant, and thereafter Tenant shall pay to Landlord, in each of may revise the remaining months of estimate for such year, an amount equal to the amount of and subsequent payments by Tenant for such increase in the estimated Annual Rental Adjustment excluding Real Estate Taxes for the remainder of the year divided by the number of months remaining in shall be based upon such yearrevised estimate. Within a reasonable time after the end By April 1 of each calendar year, Landlord shall prepare and deliver endeavor to provide to Tenant a statement showing the actual Annual Rental Adjustment excluding Real Estate TaxesAdditional Rent due to Landlord for the prior calendar year, to be prorated during the first year from the Commencement Date. Within thirty If the total of the monthly payments of Additional Rent that Tenant has made for the prior calendar year is less than the actual Additional Rent chargeable to Tenant for such prior calendar year, then Tenant shall pay the difference in a lump sum within ten (3010) days after receipt of the aforementioned statement, Tenant shall pay to such statement from Landlord, or Landlord shall credit against the next rent payment or payments due from Tenant, as the case may be, the difference between the actual Annual Rental Adjustment excluding Real Estate Taxes for the preceding calendar year and the estimated amount paid . Any overpayment by Tenant to Landlord during such year. In addition, Tenant shall pay, before delinquency, any and all Real Estate Taxes as defined in Section 3.02.D, above, directly to the appropriate taxing authority. If Tenant fails for any reason to pay the Real Estate Taxes when same is due and payable, Landlord shall have the right, but not the obligation, to pay the Real Estate Taxes directly to the taxing authority and Tenant shall immediately reimburse Landlord for the cost thereof. Such amount shall accrue interest from the date Landlord pays such amount, pursuant to Section 3.04, below, shall include any penalties, late fees and any interest assessed due to such delinquency. Tenant or its accountants shall have the right to inspect, at reasonable time and in a reasonable manner, during the one hundred twenty (120) day period following the delivery of Landlord's statement of the actual amount of the Annual Rental Adjustment excluding Real Estate Taxes, such of Landlord's books of account and records as pertain to and contain information concerning such costs and expenses for the Building Additional Rent for the prior calendar year shall be credited towards the Additional Rent next due. Any delay or failure by Landlord in order delivering any statement pursuant to verify the amounts thereof. In the event the first audit discloses (ithis Paragraph 4(d) errors made during the prior calendar year whichshall not constitute a waiver of its right to receive Tenant’s payment of Expenses, when totalednor shall it relieve Tenant of its obligations to pay Expenses pursuant to this Paragraph 4, indicate except that the sum overcharged Landlord’s right to and paid by Tenant, exceeds five percent (5%) of the Annual Rental Adjustment excluding Real Estate Taxes plus Landlord's Share of Operating amend any individual statement to increase any Expenses (the "Total Expenses"), the audit shall be at the expense of Landlord, not to exceed Two Thousand Five Hundred Dollars ($2,500.00), or (iiother than Taxes and Assessments) no errors or an error which equals or is less than five percent (5%) of the Total Expenses, the audit shall be at the expense of Tenant. For each subsequent audit, where the audit discloses errors exceeding five percent (5%) of the Total Expenses, Landlord shall pay for such audit and, if the audit discloses errors equal to or less than five percent (5%) of the Total Expenses, payable by Tenant shall pay terminate on the costs date that is two (2) calendar years after the date of the audit. If Landlord spends more than eight (8) hours to accommodate Tenant's right to audit hereunder, Tenant shall also pay to Landlord as additional rent Seventy-five Dollars ($75.00) per hour for each additional hour that Tenant's audit takes of Landlord's property manager's or asset manager's time, provided such audit discloses no error or an error greater than five percent (5%) of the Total Expenses. The results of the audit (regardless of the degree of the error, if any) shall be binding upon Landlord and Tenant, and Landlord shall thereafter, if appropriate, change its method of calculating the Operating Expenses consistent with the results of the audit. Tenant agrees to hold the information obtained from such audit confidential and shall not disclose the same without Landlord's express written permission except as necessary to enforce the Lease or protect Tenant's rights hereunder. If Tenant shall not elect to cause an audit within the time period permitted hereby, then Landlord's statement shall be conclusively deemed to have been approved and accepted by Tenant. Pending resolution of any dispute with respect to statements of Tenant's Annual Rental Adjustment, Tenant shall pay its Annual Rental Adjustment as shown on such statement, and upon final determination of the amount of Tenant's Annual Rental Adjustment, Landlord shall promptly refund any overpayment to Tenant or Tenant shall promptly pay any amount due to Landlord, as applicable.
Appears in 1 contract
Samples: Lease Agreement (Alliance Fiber Optic Products Inc)
Payment of Additional Rent. In addition to the Minimum Annual Rent specified in this Lease, Tenant shall pay to Landlord as "Additional Rent" for the Leased Premises, in each calendar year or partial calendar year, during During the Lease Term, an amount equal to the Annual Rental Adjustment excluding Real Estate Taxes for such calendar year or partial calendar year. In the case of the calendar year of commencing with the Commencement Date, Landlord shall provide such notice prior to estimate in advance and notify Tenant of estimated Common Area Costs, all real property taxes for which Tenant is liable under Section 4.02 of the Commencement Date. The Annual Rental Adjustment excluding Real Estate Taxes shall be estimated annually by LandlordLease, all insurance premiums for which Tenant is liable under Section 4.04 of the Lease, all Property Maintenance Costs, and written notice thereof shall be given to all other Additional Rent payable by Tenant prior to the beginning of each calendar yearhereunder, including, but not limited to, any related sales tax thereon. Tenant shall pay to Landlord each Tenant’s Pro Rata Share of such estimated Common Area Costs, real property taxes, insurance premiums, Property Maintenance Costs, and all other items of Additional Rent (prorated for any fractional month) on a monthly basis, at the same time the Monthly Rental Installment is Base Rent shall be due, an amount equal subject to one-twelfth (1/12) the terms set forth in this Section. Tenant’s Pro Rata Share shall be calculated by dividing the square foot area of the estimated Annual Rental Adjustment excluding Real Estate TaxesPremises, as set forth in Section 1.01 of the Lease, by the aggregate square foot area of the Building which is leased or held for lease by tenants, as of the date on which the computation is made. If the cost of utility, janitorial or other services increase during a calendar year, Landlord may increase the estimated Annual Rental Adjustment excluding Real Estate Taxes during such year by giving Tenant written notice adjust Landlord’s estimates of any item of Additional Rent at any time (but not more frequently than annually) based upon Landlord’s reasonable anticipation of costs to that effectbe incurred, and thereafter Tenant Tenant’s Pro Rata Share of such costs shall pay to Landlord, be adjusted as a change in each the area of the remaining months of such year, an amount equal to Premises or the amount of such increase building in which the estimated Annual Rental Adjustment excluding Real Estate Taxes for the remainder Premises are located may occur. Such adjustments shall be effective as of the year divided by next rent payment date after notice of adjustment is given to Tenant. At Landlord’s election, statements of Additional Rent may be delivered monthly on or before the number first day of months remaining in such yeareach calendar month. Within a reasonable time sixty (60) days after the end of each calendar year, year of the Lease Term. Landlord shall prepare and deliver to Tenant a statement showing setting forth, in reasonable detail, the actual Annual Rental Adjustment excluding Real Estate TaxesCommon Area Costs, real property taxes, insurance premiums, Property Maintenance Costs and all other Additional Rent paid by Landlord during the preceding calendar year and Tenant’s Pro Rata Share (adjusted, if necessary, to reflect the extent to which the Lease Term fell in such calendar year). Within thirty (30) days after Upon receipt of the aforementioned such statement, Tenant there shall pay to Landlord, or be an adjustment between Landlord shall credit against the next rent payment or payments due from and Tenant, with payment to or credit given by Landlord (as the case may be, the difference between the actual Annual Rental Adjustment excluding Real Estate Taxes for the preceding calendar year and the estimated amount paid by Tenant to Landlord during such year. In addition, Tenant shall pay, before delinquency, any and all Real Estate Taxes as defined in Section 3.02.D, above, directly to the appropriate taxing authority. If Tenant fails for any reason to pay the Real Estate Taxes when same is due and payable, ) so that Landlord shall have receive the right, but not the obligation, to pay the Real Estate Taxes directly to the taxing authority and Tenant shall immediately reimburse Landlord for the cost thereof. Such amount shall accrue interest from the date Landlord pays such amount, pursuant to Section 3.04, below, shall include any penalties, late fees and any interest assessed due to such delinquency. Tenant or its accountants shall have the right to inspect, at reasonable time and in a reasonable manner, during the one hundred twenty (120) day period following the delivery of Landlord's statement of the actual entire amount of the Annual Rental Adjustment excluding Real Estate Taxes, such Tenant’s Pro Rata Share of Landlord's books of account and records as pertain to and contain information concerning such costs and expenses for the Building for the prior calendar year in order to verify the amounts thereof. In the event the first audit discloses (i) errors made during the prior calendar year which, when totaled, indicate that the sum overcharged to such period and paid by Tenant, exceeds five percent (5%) of the Annual Rental Adjustment excluding Real Estate Taxes plus Landlord's Share of Operating Expenses (the "Total Expenses"), the audit Tenant shall be at the expense of Landlord, not to exceed Two Thousand Five Hundred Dollars ($2,500.00), or (ii) no errors or an error which equals or is less than five percent (5%) of the Total Expenses, the audit shall be at the expense of Tenant. For each subsequent audit, where the audit discloses errors exceeding five percent (5%) of the Total Expenses, Landlord shall pay for such audit andreceive a credit, if indicated, against the audit discloses errors equal to or less than five percent (5%) next installment of the Total Expenses, Tenant shall pay the costs of the auditRent. If Landlord spends more than eight does not deliver such statement to Tenant within three hundred thirty (8) hours to accommodate Tenant's right to audit hereunder330) days after the end of any calendar year, then Tenant shall also have no further obligation to pay to any amount subsequently invoiced by Landlord as additional rent Seventy-five Dollars ($75.00) per hour for each additional hour that Tenant's audit takes of Landlord's property manager's or asset manager's time, provided such audit discloses no error or an error greater than five percent (5%) of the Total Expenses. The results of the audit (regardless of the degree of the error, if any) shall be binding upon Landlord and Tenant, and Landlord shall thereafter, if appropriate, change its method of calculating the Operating Expenses consistent with the results of the audit. Tenant agrees to hold the information obtained from such audit confidential and shall not disclose regarding the same without Landlord's express written permission except as necessary to enforce the Lease or protect Tenant's rights hereunder. If Tenant shall not elect to cause an audit within the time period permitted hereby, then Landlord's statement shall be conclusively deemed to have been approved and accepted by Tenant. Pending resolution of any dispute with respect to statements of Tenant's Annual Rental Adjustment, Tenant shall pay its Annual Rental Adjustment as shown on such statement, and upon final determination of the amount of Tenant's Annual Rental Adjustment, Landlord shall promptly refund any overpayment to Tenant or Tenant shall promptly pay any amount due to Landlord, as applicableprior calendar year.
Appears in 1 contract
Payment of Additional Rent. In addition to the Minimum Annual Rent specified in this Lease, Tenant shall pay as Additional Rent any ---------------------------- increases in the amount equal to Landlord Tenant's Proportionate Share multiplied by the difference of (a) the total annual Operating Expenses, as "Additional Rent" defined below, for the Leased Premisescalendar year in question and (b) the Operating Expenses for the Base Year. Landlord may collect such amount in a lump sum, in each due within 30 days after Landlord furnishes to Tenant an annual Operating Expense Statement as defined below. Alternatively, Landlord may make a good faith estimate of the Additional Rent to be due by Tenant for any calendar year or partial calendar year, part thereof during the Lease Term, an amount equal to the Annual Rental Adjustment excluding Real Estate Taxes for such calendar year or partial calendar year. In the case of the calendar year of the Commencement Dateand, unless Landlord shall provide such notice prior to the Commencement Date. The Annual Rental Adjustment excluding Real Estate Taxes shall be estimated annually by Landlord, and written notice thereof shall be given delivers to Tenant prior to the beginning of each calendar year. Tenant shall pay to Landlord each month, at the same time the Monthly Rental Installment is due, an amount equal to one-twelfth (1/12) a revision of the estimated Annual Rental Adjustment excluding Real Estate Taxes. If the cost of utility, janitorial or other services increase during a calendar year, Landlord may increase the estimated Annual Rental Adjustment excluding Real Estate Taxes during such year by giving Tenant written notice to that effect, and thereafter Tenant shall pay to Landlord, in each of the remaining months of such year, an amount equal to the amount of such increase in the estimated Annual Rental Adjustment excluding Real Estate Taxes for the remainder of the year divided by the number of months remaining in such year. Within a reasonable time after the end of each calendar year, Landlord shall prepare and deliver to Tenant a statement showing the actual Annual Rental Adjustment excluding Real Estate Taxes. Within thirty (30) days after receipt of the aforementioned statementAdditional Rent, Tenant shall pay to Landlord, on the Commencement Date and on the first day of each calendar month thereafter, an amount equal to the estimated Additional Rent for such calendar year or part thereof divided by the number of months in such calendar year during the Term. From time to time during any calendar year, Landlord shall credit against may estimate and re-estimate the next rent payment or payments Additional Rent to be due from Tenant, as the case may be, the difference between the actual Annual Rental Adjustment excluding Real Estate Taxes by Tenant for the preceding that calendar year and deliver a copy of the estimated amount paid estimate or re-estimate to Tenant. Thereafter, the monthly installments of Additional Rent payable by Tenant to Landlord during such year. In additionshall be appropriately adjusted in accordance with the estimations so that, by the end of the calendar year in question, Tenant shall pay, before delinquency, any and have paid all Real Estate Taxes of the Additional Rent as defined in Section 3.02.D, above, directly estimated by Landlord. Any amounts paid based on such an estimate shall be subject to the appropriate taxing authority. If Tenant fails for any reason to pay the Real Estate Taxes when same is due and payable, Landlord shall have the right, but not the obligation, to pay the Real Estate Taxes directly to the taxing authority and Tenant shall immediately reimburse Landlord for the cost thereof. Such amount shall accrue interest from the date Landlord pays such amount, adjustment pursuant to Section 3.04, below, shall include any penalties, late fees and any interest assessed due to such delinquency. Tenant or its accountants shall have the right to inspect, at reasonable time and in a reasonable manner, during the one hundred twenty (120) day period following the delivery of Landlord's statement of the 6c when actual amount of the Annual Rental Adjustment excluding Real Estate Taxes, such of Landlord's books of account and records as pertain to and contain information concerning such costs and expenses for the Building for the prior calendar year in order to verify the amounts thereof. In the event the first audit discloses (i) errors made during the prior calendar year which, when totaled, indicate that the sum overcharged to and paid by Tenant, exceeds five percent (5%) of the Annual Rental Adjustment excluding Real Estate Taxes plus Landlord's Share of "Operating Expenses (the "Total Expenses"), the audit shall be at the expense of Landlord, not to exceed Two Thousand Five Hundred Dollars ($2,500.00), or (ii) no errors or an error which equals or is less than five percent (5%) of the Total Expenses, the audit shall be at the expense of Tenant. For each subsequent audit, where the audit discloses errors exceeding five percent (5%) of the Total Expenses, Landlord shall pay for such audit and, if the audit discloses errors equal to or less than five percent (5%) of the Total Expenses, Tenant shall pay the costs of the audit. If Landlord spends more than eight (8) hours to accommodate Tenant's right to audit hereunder, Tenant shall also pay to Landlord as additional rent Seventy-five Dollars ($75.00) per hour " are available for each additional hour that Tenant's audit takes of Landlord's property manager's or asset manager's time, provided such audit discloses no error or an error greater than five percent (5%) of the Total Expenses. The results of the audit (regardless of the degree of the error, if any) shall be binding upon Landlord and Tenant, and Landlord shall thereafter, if appropriate, change its method of calculating the Operating Expenses consistent with the results of the audit. Tenant agrees to hold the information obtained from such audit confidential and shall not disclose the same without Landlord's express written permission except as necessary to enforce the Lease or protect Tenant's rights hereunder. If Tenant shall not elect to cause an audit within the time period permitted hereby, then Landlord's statement shall be conclusively deemed to have been approved and accepted by Tenant. Pending resolution of any dispute with respect to statements of Tenant's Annual Rental Adjustment, Tenant shall pay its Annual Rental Adjustment as shown on such statement, and upon final determination of the amount of Tenant's Annual Rental Adjustment, Landlord shall promptly refund any overpayment to Tenant or Tenant shall promptly pay any amount due to Landlord, as applicablecalendar year.
Appears in 1 contract
Samples: Lease Agreement (Yp Net Inc)
Payment of Additional Rent. In addition Landlord shall from time to time deliver to Tenant a written notice or notices ("Projection Notice") setting forth Landlord's reasonable estimates, forecasts or projections (collectively, the "Projections") of Taxes and Operating Expenses with respect to the Minimum Annual Rent specified in this Leasecurrent calendar year. On or before the first day of the next calendar month following Landlord's service of a Projection Notice, and on or before the first day of each month thereafter, Tenant shall pay to Landlord as "Additional Rent" for the Leased Premises, in each calendar year or partial calendar year, during the Lease Term, an amount equal to the Annual Rental Adjustment excluding Real Estate Taxes for such calendar year or partial calendar year. In the case of the calendar year of the Commencement Date, Landlord shall provide such notice prior to the Commencement Date. The Annual Rental Adjustment excluding Real Estate Taxes shall be estimated annually by Landlord, and written notice thereof shall be given to Tenant prior to the beginning of each calendar year. Tenant shall pay to Landlord each month, at the same time the Monthly Rental Installment is due, an amount equal to on account one-twelfth (1/12) of the estimated Annual Rental Adjustment excluding Real Estate Taxes. If the cost amount of utility, janitorial or other services increase during a calendar year, Landlord may increase the estimated Annual Rental Adjustment excluding Real Estate Taxes during such year by giving Tenant written notice to that effect, and thereafter Tenant shall pay to Landlord, in each Tenant's Proportionate Share of the remaining months of such year, an amount equal to the amount of such increase Projections as shown in the estimated Annual Rental Adjustment excluding Real Estate Taxes for the remainder of the year divided by the number of months remaining in such yearProjection Notice. Within a reasonable time after Following the end of each calendar year and after Landlord shall have determined the actual amount of Taxes and Operating Expenses for such calendar year, Landlord shall prepare notify Tenant in writing of Tenant's Proportionate Share of such Taxes and deliver to Operating Expenses. If Tenant's Proportionate Share of such Taxes and Operating Expenses exceeds the respective amounts paid for such calendar year by Tenant, Tenant a statement showing the actual Annual Rental Adjustment excluding Real Estate Taxes. Within shall, within thirty (30) days after receipt the date of the aforementioned statement, Tenant shall Landlord's notice pay to LandlordLandlord an amount equal to such excess. If the said amounts paid for such calendar year by Tenant exceed Tenant's Proportionate Share of such Taxes and Operating Expenses, or then Landlord shall credit against the next rent payment or payments due from Tenant, as the case may be, the difference between the actual Annual Rental Adjustment excluding Real Estate Taxes for the preceding calendar year and the estimated amount paid by Tenant such excess to Landlord during such year. In addition, Tenant shall pay, before delinquency, any and all Real Estate Taxes as defined in Section 3.02.D, above, directly to the appropriate taxing authority. If Tenant fails for any reason to pay the Real Estate Taxes when same is due and payable, Landlord shall have the right, but not the obligation, to pay the Real Estate Taxes directly to the taxing authority and Tenant shall immediately reimburse Landlord for the cost thereof. Such amount shall accrue interest from Rent payable after the date Landlord pays such amount, pursuant to Section 3.04, below, shall include any penalties, late fees and any interest assessed due to such delinquency. Tenant or its accountants shall have the right to inspect, at reasonable time and in a reasonable manner, during the one hundred twenty (120) day period following the delivery of Landlord's statement notice until such excess has been exhausted. If this Lease shall expire prior to full application of the actual amount of the Annual Rental Adjustment excluding Real Estate Taxes, such of Landlord's books of account and records as pertain to and contain information concerning such costs and expenses for the Building for the prior calendar year in order to verify the amounts thereof. In the event the first audit discloses (i) errors made during the prior calendar year which, when totaled, indicate that the sum overcharged to and paid by Tenant, exceeds five percent (5%) of the Annual Rental Adjustment excluding Real Estate Taxes plus Landlord's Share of Operating Expenses (the "Total Expenses"), the audit shall be at the expense of Landlord, not to exceed Two Thousand Five Hundred Dollars ($2,500.00), or (ii) no errors or an error which equals or is less than five percent (5%) of the Total Expenses, the audit shall be at the expense of Tenant. For each subsequent audit, where the audit discloses errors exceeding five percent (5%) of the Total Expensesexcess, Landlord shall pay to Tenant the balance not theretofore applied against Rent and not reasonably required for such audit and, if payment of Additional Rent for the audit discloses errors equal calendar year in which the Lease expires. No interest or penalties shall accrue on any amounts which Landlord is obligated to credit or less than five percent (5%) of the Total Expenses, Tenant shall pay the costs of the audit. If Landlord spends more than eight (8) hours to accommodate Tenant's right to audit hereunder, Tenant shall also pay to Landlord as additional rent Seventy-five Dollars ($75.00) per hour for each additional hour that Tenant's audit takes Tenant by reason of Landlord's property manager's or asset manager's time, provided such audit discloses no error or an error greater than five percent (5%) of the Total Expenses. The results of the audit (regardless of the degree of the error, if any) shall be binding upon Landlord and Tenant, and Landlord shall thereafter, if appropriate, change its method of calculating the Operating Expenses consistent with the results of the audit. Tenant agrees to hold the information obtained from such audit confidential and shall not disclose the same without Landlord's express written permission except as necessary to enforce the Lease or protect Tenant's rights hereunder. If Tenant shall not elect to cause an audit within the time period permitted hereby, then Landlord's statement shall be conclusively deemed to have been approved and accepted by Tenant. Pending resolution of any dispute with respect to statements of Tenant's Annual Rental Adjustment, Tenant shall pay its Annual Rental Adjustment as shown on such statement, and upon final determination of the amount of Tenant's Annual Rental Adjustment, Landlord shall promptly refund any overpayment to Tenant or Tenant shall promptly pay any amount due to Landlord, as applicablethis Section.
Appears in 1 contract
Samples: Asset Acceptance Capital Corp
Payment of Additional Rent. In addition to the Minimum Annual Rent specified in this Lease, Tenant shall pay to Landlord as "Additional Rent" for the Leased Premises, in each calendar year or partial calendar year, during the Lease Term, an amount equal to the Annual Rental Adjustment excluding Real Estate Taxes for such calendar year or partial calendar year. In the case of the calendar year of the Commencement Date, Landlord shall provide such have the right to reasonably estimate the Operating Expenses for each Operating Year. Upon Landlord’s or Agent’s notice prior to the Commencement Date. The Annual Rental Adjustment excluding Real Estate Taxes shall be estimated annually by Landlord, and written notice thereof shall be given to Tenant prior to the beginning of each calendar year. Tenant shall pay to Landlord each month, at the same time the Monthly Rental Installment is due, an amount equal to one-twelfth (1/12) of the estimated Annual Rental Adjustment excluding Real Estate Taxes. If the cost of utility, janitorial or other services increase during a calendar year, Landlord may increase the estimated Annual Rental Adjustment excluding Real Estate Taxes during such year by giving Tenant written notice to that effect, and thereafter Tenant shall pay to Landlord, in each of the remaining months of such year, an amount equal to the amount of such increase in the estimated Annual Rental Adjustment excluding Real Estate Taxes for the remainder of the year divided by the number of months remaining in such year. Within a reasonable time after the end of each calendar year, Landlord shall prepare and deliver to Tenant a statement showing the actual Annual Rental Adjustment excluding Real Estate Taxes. Within thirty (30) days after receipt of the aforementioned statement, Tenant shall pay to Landlord, or Landlord shall credit against the next rent payment or payments due from Tenant, as the case may be, the difference between the actual Annual Rental Adjustment excluding Real Estate Taxes for the preceding calendar year and the estimated amount paid by Tenant to Landlord during such year. In additionamount, Tenant shall pay, before delinquencyon the first day of each month during that Operating Year, any and all Real Estate Taxes as defined in Section 3.02.D, above, directly an amount (the “Estimated Additional Rent”) equal to the appropriate taxing authority. If Tenant fails for any reason to pay the Real Estate Taxes when same is due and payable, Landlord shall have the right, but not the obligation, to pay the Real Estate Taxes directly to the taxing authority and Tenant shall immediately reimburse Landlord for the cost thereof. Such amount shall accrue interest from the date Landlord pays such amount, pursuant to Section 3.04, below, shall include any penalties, late fees and any interest assessed due to such delinquency. Tenant or its accountants shall have the right to inspect, at reasonable time and in a reasonable manner, during the one hundred twenty (120) day period following the delivery of Landlord's statement estimate of the actual amount of the Annual Rental Adjustment excluding Real Estate Taxes, such of Landlord's books of account and records as pertain to and contain information concerning such costs and expenses for the Building for the prior calendar year in order to verify the amounts thereof. In the event the first audit discloses (i) errors made during the prior calendar year which, when totaled, indicate that the sum overcharged to and paid by Tenant, exceeds five percent (5%) of the Annual Rental Adjustment excluding Real Estate Taxes plus Landlord's ’s Proportionate Share of Operating Expenses divided by 12 (or the "Total Expenses"), fractional portion of the audit shall be Operating Year remaining at the expense time Landlord delivers its notice of Landlord, not to exceed Two Thousand Five Hundred Dollars the estimated amounts due from Tenant for that Operating Year). Landlord shall reconcile estimated and actual Operating Expenses at any time within six ($2,500.00), or (ii6) no errors or an error which equals or months after the last day of the Operating Year in question and if the aggregate amount of Estimated Additional Rent actually paid by Tenant during any Operating Year is less than five percent (5%) of the Total Expenses, the audit shall be at the expense of Tenant. For each subsequent audit, where the audit discloses errors exceeding five percent (5%) of the Total Expenses, Landlord shall pay ’s actual ultimate liability for such audit and, if the audit discloses errors equal to or less than five percent (5%) of the Total ExpensesOperating Expenses for that particular Operating Year, Tenant shall pay the costs deficiency within 30 days of Landlord’s written demand therefor. If the aggregate amount of Estimated Additional Rent actually paid by Tenant during a given Operating Year exceeds Tenant’s actual liability for such Operating Year, the excess shall be credited against the Estimated Additional Rent next due from Tenant during the immediately subsequent Operating Year, except that in the event that such excess is paid by Tenant during the final Lease Year, then upon the expiration of the auditTerm, Landlord or Agent shall pay Tenant the then-applicable excess promptly after determination thereof. If Landlord spends more than eight (8) hours to accommodate Tenant's right to audit hereunder, Tenant shall also pay to Landlord as additional rent Seventy-five Dollars ($75.00) per hour for each additional hour that Tenant's audit takes of Landlord's property manager's or asset manager's time, provided such audit discloses no error or an error greater than five percent (5%) of the Total Expenses. The results of the audit (regardless of the degree of the error, if any) No interest shall be binding upon Landlord and Tenantpayable to Tenant on account of payments of Estimated Additional Rent, and Landlord shall thereafter, if appropriate, change its method of calculating the Operating Expenses consistent with the results of the audit. Tenant agrees to hold the information obtained from such audit confidential and shall not disclose the same without Landlord's express written permission except as necessary to enforce the Lease or protect Tenant's rights hereunder. If Tenant shall not elect to cause an audit within the time period permitted hereby, then Landlord's statement shall payments may be conclusively deemed to have been approved and accepted by Tenant. Pending resolution of any dispute with respect to statements of Tenant's Annual Rental Adjustment, Tenant shall pay its Annual Rental Adjustment as shown on such statement, and upon final determination of the amount of Tenant's Annual Rental Adjustment, Landlord shall promptly refund any overpayment to Tenant or Tenant shall promptly pay any amount due to Landlord, as applicablecommingled.
Appears in 1 contract
Samples: Makemusic Inc
Payment of Additional Rent. In addition to Within ninety (90) days after the Minimum Annual Rent specified in this Lease, Tenant shall pay to Landlord as "Additional Rent" for the Leased Premises, in close of each calendar year or partial as soon thereafter as reasonably possible, Lessor shall compute the actual prior year's Operating Expenses and as soon as practicable after December 31 of each year during the Term, Lessor shall furnish to Lessee a statement ("Statement") showing in reasonable detail the actual Operating Expenses for the previous calendar year, the amount, if any, paid by Lessee during the Lease Term, an amount equal to the Annual Rental Adjustment excluding Real Estate Taxes for such previous calendar year toward the Operating Expenses, the amount, if any, Lessee owes Lessor with respect to such Operating Expenses or partial calendar yearthe amount Lessor owes Lessee as a refund. In the case of the calendar year of the Commencement Date, Landlord shall provide such notice prior to the Commencement Date. The Annual Rental Adjustment excluding Real Estate Taxes shall be estimated annually by Landlord, and written notice thereof shall be given to Tenant prior to the beginning of each calendar year. Tenant Lessee shall pay to Landlord each month, at the same time the Monthly Rental Installment is due, an amount equal to one-twelfth (1/12) of the estimated Annual Rental Adjustment excluding Real Estate Taxes. If the cost of utility, janitorial or other services increase during a calendar year, Landlord may increase the estimated Annual Rental Adjustment excluding Real Estate Taxes during such year by giving Tenant written notice to that effect, and thereafter Tenant shall pay to Landlord, in each of the remaining months of such year, an amount equal to the amount of the Additional Rent shown on such increase in the estimated Annual Rental Adjustment excluding Real Estate Taxes for the remainder of the year divided by the number of months remaining in such yearStatement within ten (10) days after receipt thereof. Within a reasonable time after the end of each calendar yearLessee, Landlord shall prepare and deliver to Tenant a statement showing the actual Annual Rental Adjustment excluding Real Estate Taxes. Within thirty within sixty (3060) days after receipt of a Statement may audit Lessor's records concerning such Statement for the aforementioned statementprevious year to verify, Tenant at Lessee's own expense, those Operating Expenses. Any Statement issued by Lessor shall pay be final and binding upon Lessor and Lessee, except to Landlordthe extent that Lessee shall take written exception thereto within said sixty (60) day period. Any amount due to Lessor as shown on any such Statement, whether or Landlord not Lessee has taken written exception thereto, shall credit against be paid by Lessee when due without prejudice to any such written exception. At the next rent payment or payments due from Tenantoption of Lessor, Lessee may be billed monthly for one-twelfth (1/12th) of the Additional Rent, as the case may be, the difference between the actual Annual Rental Adjustment excluding Real Estate Taxes for the preceding estimated by Lessor on a calendar year and the estimated amount paid by Tenant to Landlord during such year. In addition, Tenant shall pay, before delinquency, any and all Real Estate Taxes as defined in Section 3.02.D, above, directly to the appropriate taxing authority. If Tenant fails for any reason to pay the Real Estate Taxes when same is due and payable, Landlord shall have the right, but not the obligation, to pay the Real Estate Taxes directly to the taxing authority and Tenant shall immediately reimburse Landlord for the cost thereof. Such amount shall accrue interest from the date Landlord pays such amount, pursuant to Section 3.04, below, shall include any penalties, late fees and any interest assessed due to such delinquency. Tenant or its accountants shall have the right to inspect, at reasonable time and in a reasonable manner, during the one hundred twenty (120) day period following the delivery of Landlord's statement of the actual amount of the Annual Rental Adjustment excluding Real Estate Taxes, such of Landlord's books of account and records as pertain to and contain information concerning such costs and expenses for the Building for the prior calendar year in order to verify the amounts thereofprojection basis. In the event that Lessee's actual Additional Rent exceeds the first audit discloses monthly estimates of adjusted rent collected by Lessor from Lessee, Lessee shall pay such excess within ten (i10) errors made during days after receipt of notice from Lessor. In the prior calendar year which, when totaled, indicate that the sum overcharged to and paid by Tenant, exceeds five percent (5%) of the Annual Rental Adjustment excluding Real Estate Taxes plus Landlordevent Lessee's Share of Operating Expenses (the "Total Expenses"), the audit shall be at the expense of Landlord, not to exceed Two Thousand Five Hundred Dollars ($2,500.00), or (ii) no errors or an error which equals or actual Additional Rent is less than five percent the monthly estimates of adjusted rent collected by Lessor from Lessee, Lessor shall promptly refund (5%) of the Total Expenses, the audit shall be at the expense of Tenant. For each subsequent audit, where the audit discloses errors exceeding five percent (5%) of the Total Expenses, Landlord shall pay for such audit andor, if the audit discloses errors equal to or less than five percent (5%) this Lease remains in effect, credit against payments of the Total Expenses, Tenant shall pay the costs of the audit. If Landlord spends more than eight (8) hours to accommodate Tenant's right to audit hereunder, Tenant shall also pay to Landlord as additional rent Seventy-five Dollars ($75.00) per hour for each additional hour that Tenant's audit takes of Landlord's property manager's or asset manager's time, provided such audit discloses no error or an error greater than five percent (5%) of the Total Expenses. The results of the audit (regardless of the degree of the error, if any) shall be binding upon Landlord and Tenant, and Landlord shall thereafter, if appropriate, change its method of calculating the Operating Expenses consistent with the results of the audit. Tenant agrees to hold the information obtained from such audit confidential and shall not disclose the same without Landlord's express written permission except as necessary to enforce the Lease or protect Tenant's rights hereunder. If Tenant shall not elect to cause an audit within the time period permitted hereby, then Landlord's statement shall be conclusively deemed to have been approved and accepted by Tenant. Pending resolution of any dispute with respect to statements of Tenant's Annual Rental Adjustment, Tenant shall pay its Annual Rental Adjustment as shown on such statement, and upon final determination of Rent thereafter coming due hereunder the amount of Tenant's Annual Rental Adjustment, Landlord shall promptly refund any overpayment to Tenant or Tenant shall promptly pay any amount due to Landlord, as applicable.such difference). (E)
Appears in 1 contract
Samples: Acceptance Agreement (Eagle Financial Services Inc)
Payment of Additional Rent. In addition Landlord shall have the right to invoice Tenant monthly, quarterly, or otherwise from time to time, for Tenant’s Pro Rata Share of the actual Taxes, Insurance and CAM expenses (subject to the Minimum Annual Rent specified in Controllable CAM Cap (defined below)) payable by Tenant under this Lease, Tenant shall pay to Landlord as "Additional Rent" for the Leased Premises, in each calendar year or partial calendar year, during the Lease Term, an amount equal to the Annual Rental Adjustment excluding Real Estate Taxes for such calendar year or partial calendar year. In the case of the calendar year of the Commencement Date, Landlord shall provide such notice prior to the Commencement Date. The Annual Rental Adjustment excluding Real Estate Taxes shall be estimated annually by Landlord, ; and written notice thereof shall be given to Tenant prior to the beginning of each calendar year. Tenant shall pay to Landlord each month, at the same time the Monthly Rental Installment is due, an amount equal to one-twelfth (1/12) of the estimated Annual Rental Adjustment excluding Real Estate Taxes. If the cost of utility, janitorial or other services increase during a calendar year, Landlord may increase the estimated Annual Rental Adjustment excluding Real Estate Taxes during such year by giving Tenant written notice to that effect, and thereafter Tenant shall pay to Landlord, in each of the remaining months of such yearas Additional Rent, an amount equal to the amount of such increase in the estimated Annual Rental Adjustment excluding Real Estate Taxes those amounts for the remainder of the year divided by the number of months remaining in such year. Within a reasonable time after the end of each calendar year, Landlord shall prepare and deliver to which Tenant a statement showing the actual Annual Rental Adjustment excluding Real Estate Taxes. Within is invoiced within thirty (30) days after receipt of the aforementioned statementsaid invoice. Alternatively, Tenant shall pay to at Landlord, or Landlord shall credit against the next rent payment or payments due from Tenant, as the case may be, the difference between the actual Annual Rental Adjustment excluding Real Estate Taxes for the preceding calendar year and the estimated amount paid by Tenant to Landlord during such year. In addition, Tenant shall pay, before delinquency, any and all Real Estate Taxes as defined in Section 3.02.D, above, directly to the appropriate taxing authority. If Tenant fails for any reason to pay the Real Estate Taxes when same is due and payable’s election, Landlord shall have the rightright to invoice Tenant monthly for Tenant’s Pro Rata Share of such Taxes, but Insurance and CAM expenses (subject to the Controllable CAM Cap (defined below)) payable by Tenant under this Lease, as reasonably estimated by Landlord. Any monies paid in advance to Landlord by Tenant shall not accrue interest thereon. At the end of each calendar year or property fiscal year, Landlord shall deliver a statement to Tenant setting forth the difference between Tenant’s actual Pro Rata Share of Taxes, Insurance and/or CAM expenses and the total amount of monthly payments, paid by Tenant to Landlord. Tenant shall thereafter pay to Landlord the full amount of any difference between Tenant’s actual obligation over the total amount of Tenant’s estimated payments, within thirty (30) days after receipt of said statement; conversely, in the event Tenant’s estimated payments exceed Tenant’s actual obligation, Landlord shall either refund the overpayment to Tenant or credit said overpayment against Tenant’s monthly obligation in the forthcoming year. The reduction of Rent during the Phase 1 Reduced Rent Period and Phase 2 Reduced Rent Period shall only apply to Base Rent and there shall be no abatement of Additional Rent under this Lease except as set forth in the next succeeding sentence. Notwithstanding the foregoing, Tenant shall have no obligation to pay the Real Estate Taxes directly or Insurance with respect to the taxing authority Phase 2 Premises prior to the date upon which Tenant’s Pro Rata Share is increased in accordance with Item 21 of the Basic Lease Provisions. As further described in Item 21 of the Basic Lease Provisions, initially all common areas will be operated for the exclusive benefit of Tenant and therefore Tenant shall immediately reimburse be responsible for 100% of all CAM notwithstanding anything in this Lease to the contrary, subject, however, to the Controllable CAM Cap (defined below). For purposes of this Lease, with respect to expenses Landlord for allocates to the cost thereof. Such amount Project, Tenant’s Pro Rata Share is hereinafter defined as a fraction, the numerator of which shall accrue interest from be the date Landlord pays such amount, pursuant to Section 3.04, below, shall include any penalties, late fees and any interest assessed due to such delinquency. Tenant or its accountants shall have the right to inspect, at reasonable time and in a reasonable manner, during the one hundred twenty (120) day period following the delivery of Landlord's statement square footage of the actual amount Premises, and the denominator of which shall be the square footage of the Annual Rental Adjustment excluding Real Estate Taxesrentable area of the Project, such which Pro Rata Share is hereby agreed to be as set forth in Item 21 of Landlord's books of account and records the Basic Lease Provisions, subject to adjustment as pertain to and contain information concerning such costs and expenses for the Building for the prior calendar year in order to verify the amounts thereofprovided herein. In the event this Lease expires on a date other than the first audit discloses end of a billing period, Tenant’s obligation with respect to any amounts owed to Landlord shall survive the expiration of the Lease Term, and shall be invoiced to Tenant when the same have been accurately determined or, at Landlord’s option, such amounts shall be reasonably estimated by Landlord to reflect the period of time the Lease was in effect during such billing period. In the event that the Project is modified, as permitted under Section 37 hereof, and such changes result in the construction of additional improvements within the Project altering the square footage of improvements on the Land, Tenant’s Pro Rata Share shall be adjusted as described in Section 37 hereof. Notwithstanding the foregoing, for purposes of calculating CAM the maximum increase in the amount of Controllable CAM (idefined below) errors made during the prior that may be included in calculating such CAM for each calendar year which, when totaled, indicate that the sum overcharged to and paid by Tenant, exceeds five percent (5%) of the Annual Rental Adjustment excluding Real Estate Taxes plus Landlord's Share of Operating Expenses after calendar year 2022 (the "Total Expenses"), the audit shall be at the expense of Landlord, not to exceed Two Thousand Five Hundred Dollars ($2,500.00), or (ii) no errors or an error which equals or is less than five percent (5%) of the Total Expenses, the audit shall be at the expense of Tenant. For each subsequent audit, where the audit discloses errors exceeding five percent (5%) of the Total Expenses, Landlord shall pay for such audit and, if the audit discloses errors equal to or less than five percent (5%) of the Total Expenses, Tenant shall pay the costs of the audit. If Landlord spends more than eight (8) hours to accommodate Tenant's right to audit hereunder, Tenant shall also pay to Landlord as additional rent Seventy-five Dollars ($75.00) per hour for each additional hour that Tenant's audit takes of Landlord's property manager's or asset manager's time, provided such audit discloses no error or an error greater than five percent (5%) of the Total Expenses. The results of the audit (regardless of the degree of the error, if any“Initial Cap Base Year”) shall be binding upon Landlord and Tenantlimited to 5% per calendar year on a cumulative, and Landlord shall thereafter, if appropriate, change its method of calculating compounded basis (the Operating Expenses consistent with “Controllable CAM Cap”). If the results Project is not 100% occupied for all or any part of the audit. Tenant agrees to hold the information obtained from Lease Term, such audit confidential and shall not disclose the same without Landlord's express written permission except as necessary to enforce the Lease or protect Tenant's rights hereunder. If Tenant shall not elect to cause an audit within the time period permitted hereby, then Landlord's statement Controllable CAM shall be conclusively deemed to have been approved and accepted by Tenant“grossed up” in accordance with Section 4(a)(iii). Pending resolution of any dispute with respect to statements of Tenant's Annual Rental AdjustmentFor example, Tenant shall pay its Annual Rental Adjustment as shown on such statement, and upon final determination of the maximum amount of Tenant's Annual Rental Adjustment, Landlord shall promptly refund any overpayment to Tenant or Tenant shall promptly pay any amount due to Landlord, as applicable.Controllable CAM that may be included in the calculation of such CAM for each calendar year
Appears in 1 contract
Samples: Agreement of Lease (Invitae Corp)
Payment of Additional Rent. In addition Landlord shall have the right to invoice Tenant monthly, for Tenant’s pro rata share of the Minimum Annual Rent specified in actual Taxes, Insurance and CAM expenses payable by Tenant under this Lease, Tenant shall pay to Landlord as "Additional Rent" for the Leased Premises, in each calendar year or partial calendar year, during the Lease Term, an amount equal to the Annual Rental Adjustment excluding Real Estate Taxes for such calendar year or partial calendar year. In the case of the calendar year of the Commencement Date, Landlord shall provide such notice prior to the Commencement Date. The Annual Rental Adjustment excluding Real Estate Taxes shall be estimated annually by Landlord, ; and written notice thereof shall be given to Tenant prior to the beginning of each calendar year. Tenant shall pay to Landlord each month, at the same time the Monthly Rental Installment is due, an amount equal to one-twelfth (1/12) of the estimated Annual Rental Adjustment excluding Real Estate Taxes. If the cost of utility, janitorial or other services increase during a calendar year, Landlord may increase the estimated Annual Rental Adjustment excluding Real Estate Taxes during such year by giving Tenant written notice to that effect, and thereafter Tenant shall pay to Landlord, in each of the remaining months of such yearas Additional Rent, an amount equal to the amount of such increase in the estimated Annual Rental Adjustment excluding Real Estate Taxes those amounts for the remainder of the year divided by the number of months remaining in such year. Within a reasonable time after the end of each calendar year, Landlord shall prepare and deliver to which Tenant a statement showing the actual Annual Rental Adjustment excluding Real Estate Taxes. Within is invoiced within thirty (30) days after receipt of the aforementioned statementsaid invoice. Alternatively, Tenant shall pay to at Landlord, or Landlord shall credit against the next rent payment or payments due from Tenant, as the case may be, the difference between the actual Annual Rental Adjustment excluding Real Estate Taxes for the preceding calendar year and the estimated amount paid by Tenant to Landlord during such year. In addition, Tenant shall pay, before delinquency, any and all Real Estate Taxes as defined in Section 3.02.D, above, directly to the appropriate taxing authority. If Tenant fails for any reason to pay the Real Estate Taxes when same is due and payable’s election, Landlord shall have the rightright to invoice Tenant monthly for Tenant’s pro rata share of such expenses, but as reasonably estimated by Landlord. Any monies paid in advance to Landlord by Tenant shall not accrue interest thereon. AT [SIC] the end of each calendar year or property fiscal year, Landlord shall deliver a statement to Tenant setting forth the difference between Tenant’s actual pro rata share of Taxes, Insurance and/or CAM expenses and the total amount of monthly payments, paid by Tenant to Landlord. Tenant shall thereafter pay to Landlord the full amount of any difference between Tenant’s actual obligation over the total amount of Tenant’s estimated payments, within thirty (30) days after receipt of said statement; conversely, in the event Tenant’s estimated payments exceed Tenant’s actual obligation, Landlord shall, within said 30 day period either refund the overpayment to pay Tenant or credit said overpayment against Tenant’s monthly obligation in the Real Estate Taxes directly forthcoming year. For purposes of this Lease. [SIC] Tenant’s pro rata share is hereinafter defined as a fraction, the numerator of which shall be the square footage of the Premises, and the denominator of which shall be the square footage of the rentable area of the Property, which pro rata share is hereby agreed to be equal to 3.9%. In the taxing authority event this Lease expires on a date other than the end of a billing period. Tenant’s obligation with respect to any amounts owed to Landlord at the time of such expiration shall survive the expiration of the lease term, and shall be invoiced to Tenant when the same have been accurately determined. Landlord shall immediately reimburse Landlord for maintain complete and accurate records of all Taxes, Insurance and CAM expenses incurred in connection wit the cost thereof. Such amount shall accrue interest from the date Landlord pays such amount, pursuant to Section 3.04, below, shall include any penalties, late fees and any interest assessed due to such delinquencyProperty. Tenant or its accountants shall have the right to inspectinspect such records at Tenant’s sole cost and expense, at reasonable time and in a reasonable manner, during the one hundred twenty (120) day period following the delivery office of Landlord's statement ’s managing agent during said agent’s normal business hours, upon five (5) days prior written notice. Landlord shall not be obligated to provide Tenant with detailed summaries or receipts for any expenses incurred by or on behalf of the actual amount of the Annual Rental Adjustment excluding Real Estate Taxes, such of Landlord's books of account and records as pertain to and contain information concerning such costs and expenses for the Building for the prior calendar year in order to verify the amounts thereof. In the event the first audit discloses (i) errors made during the prior calendar year which, when totaled, indicate that the sum overcharged to and paid by Tenant, exceeds five percent (5%) of the Annual Rental Adjustment excluding Real Estate Taxes plus Landlord's Share of Operating Expenses (the "Total Expenses"), the audit Property; but Landlord shall provide Tenant with one or more statements which shall be at certified by Landlord setting forth such expenses, categorized by class and amount. Notwithstanding the expense aforesaid, unless Tenant asserts specific errors within ninety (90) days after receipt of Landlord, not to exceed Two Thousand Five Hundred Dollars ($2,500.00)any invoice, or (ii) no errors or an error which equals or is less than five percent (5%) of the Total Expensesyear-end statement, the audit it shall be at the expense of Tenant. For each subsequent auditdeemed that said invoice, where the audit discloses errors exceeding five percent (5%) of the Total Expenses, Landlord shall pay for such audit and, if the audit discloses errors equal to or less than five percent (5%) of the Total Expenses, Tenant shall pay the costs of the audit. If Landlord spends more than eight (8) hours to accommodate Tenant's right to audit hereunder, Tenant shall also pay to Landlord as additional rent Seventyyear-five Dollars ($75.00) per hour for each additional hour that Tenant's audit takes of Landlord's property manager's or asset manager's time, provided such audit discloses no error or an error greater than five percent (5%) of the Total Expenses. The results of the audit (regardless of the degree of the error, if any) shall be binding upon Landlord and Tenant, and Landlord shall thereafter, if appropriate, change its method of calculating the Operating Expenses consistent with the results of the audit. Tenant agrees to hold the information obtained from such audit confidential and shall not disclose the same without Landlord's express written permission except as necessary to enforce the Lease or protect Tenant's rights hereunder. If Tenant shall not elect to cause an audit within the time period permitted hereby, then Landlord's statement shall be conclusively deemed to have been approved and accepted by Tenant. Pending resolution of any dispute with respect to statements of Tenant's Annual Rental Adjustment, Tenant shall pay its Annual Rental Adjustment as shown on such end statement, and upon final determination of the amount of Tenant's Annual Rental Adjustment, Landlord shall promptly refund any overpayment to Tenant or Tenant shall promptly pay any amount due to Landlord, as applicableis correct.
Appears in 1 contract
Samples: Office/Laboratory Lease (Tetralogic Pharmaceuticals Corp)
Payment of Additional Rent. In addition Landlord shall invoice Tenant monthly or otherwise from time to the Minimum Annual Rent specified in this Leasetime, Tenant shall pay to Landlord as "Additional Rent" for the Leased Premises, in each calendar year or partial calendar year, during the Lease Term, an amount equal to the Annual Rental Adjustment excluding Real Estate Taxes for such calendar year or partial calendar year. In the case Tenant’s pro rata share of the calendar year of the Commencement DateTaxes, Landlord shall provide such notice prior to the Commencement Date. The Annual Rental Adjustment excluding Real Estate Taxes shall be Insurance and CAM expenses, as reasonably estimated annually by Landlord, ; and written notice thereof shall be given to Tenant prior to the beginning of each calendar year. Tenant shall pay to Landlord each month, at the same time the Monthly Rental Installment is due, an amount equal to one-twelfth (1/12) of the estimated Annual Rental Adjustment excluding Real Estate Taxes. If the cost of utility, janitorial or other services increase during a calendar year, Landlord may increase the estimated Annual Rental Adjustment excluding Real Estate Taxes during such year by giving Tenant written notice to that effect, and thereafter Tenant shall pay to Landlord, in each of the remaining months of such yearas Additional Rent, an amount equal to the amount of such increase in the estimated Annual Rental Adjustment excluding Real Estate Taxes those amounts for the remainder of the year divided by the number of months remaining in such year. Within a reasonable time after the end of each calendar year, Landlord shall prepare and deliver to which Tenant a statement showing the actual Annual Rental Adjustment excluding Real Estate Taxes. Within is invoiced within thirty (30) days after receipt of the aforementioned statement, said invoice. Any monies paid in advance to Landlord by Tenant shall pay to Landlordnot accrue interest thereon. At the end of each calendar year or property fiscal year, or Landlord shall credit against the next rent payment or payments due from Tenant, as the case may be, deliver a statement to Tenant setting forth the difference between the Tenant’s actual Annual Rental Adjustment excluding Real Estate Taxes for the preceding calendar year pro rata share of Taxes, Insurance and/or CAM expenses and the estimated total amount of monthly payments paid by Tenant to Landlord during such yearLandlord. In addition, Tenant shall paythereafter pay to Landlord the full amount of any difference between Tenant’s actual obligation over the total amount of Tenant’s estimated payments within thirty (30) days after receipt of said statement; conversely, before delinquency, any and all Real Estate Taxes as defined in Section 3.02.D, above, directly to the appropriate taxing authority. If Tenant fails for any reason to pay the Real Estate Taxes when same is due and payableevent Tenant’s estimated payments exceed Tenant’s actual obligation, Landlord shall have refund the right, but not overpayment to Tenant or credit the obligation, to pay the Real Estate Taxes directly amount to the taxing authority next installments of CAM due. For purposes of this Lease, Tenant’s pro rata share is hereinafter defined as a fraction, the numerator of which shall be the square footage of the Premises, and the denominator of which shall be the square footage of the Total Property, which pro rata share is hereby agreed to be equal to fifty percent (50%). In the event this Lease expires on a date other than the end of a billing period, Tenant’s obligation with respect to any amounts owed to Landlord shall survive the expiration of the lease term, and shall be invoiced to Tenant when the same have been accurately determined or, at Landlord’s option, such amounts shall immediately reimburse be reasonably estimated by Landlord for to reflect the cost thereofperiod of time the Lease was in effect during such billing period. Such amount Landlord shall accrue interest from maintain complete and accurate records of all Taxes, Insurance and CAM expenses incurred in connection with the date Landlord pays such amount, pursuant to Section 3.04, below, shall include any penalties, late fees and any interest assessed due to such delinquencyTotal Property. Tenant or its accountants shall have the right to inspectinspect such records at Tenant’s sole cost and expense, at reasonable time and in a reasonable manner, during the one hundred twenty (120) day period following the delivery office of Landlord's statement of the actual amount of the Annual Rental Adjustment excluding Real Estate Taxes’s managing agent during said agent’s normal business hours, such of Landlord's books of account and records as pertain to and contain information concerning such costs and expenses for the Building for the upon ten (10) days prior written notice once a calendar year in order to verify the amounts thereof. In the event the first audit discloses (i) errors made during the prior calendar year which, when totaled, indicate that the sum overcharged to and paid by Tenant, exceeds five percent (5%) of the Annual Rental Adjustment excluding Real Estate Taxes plus Landlord's Share of Operating Expenses (the "Total Expenses"), the audit shall be at the expense of Landlord, not to exceed Two Thousand Five Hundred Dollars ($2,500.00), or (ii) no errors or an error which equals or is less than five percent (5%) of the Total Expenses, the audit shall be at the expense of Tenant. For each subsequent audit, where the audit discloses errors exceeding five percent (5%) of the Total Expenses, Landlord shall pay for such audit and, if the audit discloses errors equal to or less than five percent (5%) of the Total Expenses, Tenant shall pay the costs of the audit. If Landlord spends more than eight (8) hours to accommodate Tenant's right to audit hereunder, Tenant shall also pay to Landlord as additional rent Seventy-five Dollars ($75.00) per hour for each additional hour that Tenant's audit takes of Landlord's property manager's or asset manager's time, provided such audit discloses no error or an error greater than five percent (5%) of the Total Expenses. The results of the audit (regardless of the degree of the error, if any) shall be binding upon Landlord and Tenant, and Landlord shall thereafter, if appropriate, change its method of calculating the Operating Expenses consistent with the results of the audit. Tenant agrees to hold the information obtained from such audit confidential and shall not disclose the same without Landlord's express written permission except as necessary to enforce the Lease or protect Tenant's rights hereunder. If Tenant shall not elect to cause an audit within the time period permitted hereby, then Landlord's statement shall be conclusively deemed to have been approved and accepted by Tenant. Pending resolution of any dispute with respect to statements of Tenant's Annual Rental Adjustment, Tenant shall pay its Annual Rental Adjustment as shown on such statement, and upon final determination of the amount of Tenant's Annual Rental Adjustment, Landlord shall promptly refund any overpayment to Tenant or Tenant shall promptly pay any amount due to Landlord, as applicableyear.
Appears in 1 contract
Payment of Additional Rent. In addition to the Minimum Annual Rent specified in this Lease, Tenant shall pay to Landlord as "Additional Rent" for the Leased Premises, in each calendar year or partial calendar year, during the Lease Term, an amount equal to the Annual Rental Adjustment excluding Real Estate Taxes for such calendar year or partial calendar year. In the case of the calendar year of the Commencement Date, Landlord shall provide such have the right to reasonably estimate the Operating Expenses for each Operating Year. Upon Landlord’s or Agent’s notice prior to the Commencement Date. The Annual Rental Adjustment excluding Real Estate Taxes shall be estimated annually by Landlord, and written notice thereof shall be given to Tenant prior to the beginning of each calendar year. Tenant shall pay to Landlord each month, at the same time the Monthly Rental Installment is due, an amount equal to one-twelfth (1/12) of the estimated Annual Rental Adjustment excluding Real Estate Taxes. If the cost of utility, janitorial or other services increase during a calendar year, Landlord may increase the estimated Annual Rental Adjustment excluding Real Estate Taxes during such year by giving Tenant written notice to that effect, and thereafter Tenant shall pay to Landlord, in each of the remaining months of such year, an amount equal to the amount of such increase in the estimated Annual Rental Adjustment excluding Real Estate Taxes for the remainder of the year divided by the number of months remaining in such year. Within a reasonable time after the end of each calendar year, Landlord shall prepare and deliver to Tenant a statement showing the actual Annual Rental Adjustment excluding Real Estate Taxes. Within thirty (30) days after receipt of the aforementioned statement, Tenant shall pay to Landlord, or Landlord shall credit against the next rent payment or payments due from Tenant, as the case may be, the difference between the actual Annual Rental Adjustment excluding Real Estate Taxes for the preceding calendar year and the estimated amount paid by Tenant to Landlord during such year. In additionamount, Tenant shall pay, before delinquencyon the first day of each month during that Operating Year, any and all Real Estate Taxes as defined in Section 3.02.D, above, directly an amount (the “Estimated Additional Rent”) equal to the appropriate taxing authority. If Tenant fails for any reason to pay the Real Estate Taxes when same is due and payable, Landlord shall have the right, but not the obligation, to pay the Real Estate Taxes directly to the taxing authority and Tenant shall immediately reimburse Landlord for the cost thereof. Such amount shall accrue interest from the date Landlord pays such amount, pursuant to Section 3.04, below, shall include any penalties, late fees and any interest assessed due to such delinquency. Tenant or its accountants shall have the right to inspect, at reasonable time and in a reasonable manner, during the one hundred twenty (120) day period following the delivery of Landlord's statement estimate of the actual amount of the Annual Rental Adjustment excluding Real Estate Taxes, such of Landlord's books of account and records as pertain to and contain information concerning such costs and expenses for the Building for the prior calendar year in order to verify the amounts thereof. In the event the first audit discloses (i) errors made during the prior calendar year which, when totaled, indicate that the sum overcharged to and paid by Tenant, exceeds five percent (5%) of the Annual Rental Adjustment excluding Real Estate Taxes plus Landlord's ’s Proportionate Share of Operating Expenses divided by 12 (or the "Total Expenses"), fractional portion of the audit shall be Operating Year remaining at the expense time Landlord delivers its notice of Landlordthe estimated amounts due from Tenant for that Operating Year). Landlord may during the course of any Operating Year, not redetermine the amount of its estimate of Operating Expenses for such Operating Year and adjust the amount of Estimated Additional Rent accordingly, whereupon Tenant shall pay the adjusted Estimated Additional Rent from and after the first day of the month following the month in which Landlord delivers to exceed Two Thousand Five Hundred Dollars ($2,500.00), or (ii) no errors or an error which equals or Tenant written notice of such adjustment of Estimated Additional Rent. If the aggregate amount of Estimated Additional Rent actually paid by Tenant during any Operating Year is less than five percent (5%) of the Total Expenses, the audit shall be at the expense of Tenant. For each subsequent audit, where the audit discloses errors exceeding five percent (5%) of the Total Expenses, Landlord shall pay ’s actual ultimate liability for such audit and, if the audit discloses errors equal to or less than five percent (5%) of the Total ExpensesOperating Expenses for that particular Operating Year, Tenant shall pay the costs deficiency within 30 days of Landlord’s written demand therefor. If the aggregate amount of Estimated Additional Rent actually paid by Tenant during a given Operating Year exceeds Tenant’s actual liability for such Operating Year, the excess shall be credited against the Estimated Additional Rent next due from Tenant during the immediately subsequent Operating Year, except that in the event that such excess is paid by Tenant during the final Lease Year, then upon the expiration of the auditTerm, Landlord or Agent shall pay Tenant the then-applicable excess promptly after determination thereof. No interest shall be payable to Tenant on account of payments of Estimated Additional Rent, and such payments may be commingled. If there exists any dispute as to (i) the amount of Additional Rent, (ii) whether a particular expense is properly included in Additional Rent or (iii) Landlord’s calculation of Additional Rent (each an “Additional Rent Dispute”), the events, errors, acts or omissions giving rise to such Additional Rent Dispute shall not constitute a breach or default by Landlord spends more than eight (8) hours to accommodate Tenant's right to audit hereunderunder this Lease and even if a judgment resolving the Additional Rent Dispute is entered against Landlord, Tenant this Lease shall also pay to Landlord as additional rent Seventy-five Dollars ($75.00) per hour for each additional hour that Tenant's audit takes of Landlord's property manager's or asset manager's time, provided such audit discloses no error or an error greater than five percent (5%) of the Total Expenses. The results of the audit (regardless of the degree of the error, if any) shall be binding upon Landlord remain in full force and Tenant, effect and Landlord shall thereafternot be liable for any consequential damages resulting from the event, if appropriateerror, change its method act or omission giving rise to such Additional Rent Dispute. Notwithstanding the existence of calculating the Operating Expenses consistent with the results of the audit. Tenant agrees to hold the information obtained from such audit confidential and shall not disclose the same without Landlord's express written permission except as necessary to enforce the Lease or protect Tenant's rights hereunder. If Tenant shall not elect to cause an audit within the time period permitted hereby, then Landlord's statement shall be conclusively deemed to have been approved and accepted by Tenant. Pending resolution of any dispute with respect to statements of Tenant's Annual Rental AdjustmentAdditional Rent Dispute, Tenant shall pay its Annual Rental Adjustment as shown on such statement, and upon final determination of timely the amount of Additional Rent which is in dispute and will continue to make all subsequent payments of Additional Rent as and when required under this Lease, provided that the payment of such disputed amount and other amounts shall be without prejudice to Tenant's Annual Rental Adjustment, Landlord shall promptly refund any overpayment to Tenant or Tenant shall promptly pay any amount due to Landlord, as applicable’s position.
Appears in 1 contract
Samples: Liquidity Services Inc
Payment of Additional Rent. In addition (i) Prior to the Minimum Annual Rent specified commencement of each Computation Year or as soon thereafter as practicable, Landlord shall notify Tenant of Landlord’s reasonable estimate of the total amounts that will be payable by Tenant under Paragraph 4(b) for the ensuing Computation Year (which reasonable estimate and all other statements related to Expenses to be provided by Landlord to Tenant hereunder shall be in this Leasewriting and in reasonable detail), and Tenant shall pay such estimated Additional Rent on a monthly basis, in advance, on the first day of each month. Tenant shall continue to make said monthly payments until notified by Landlord as "Additional Rent" of a change therein. If at any time or times Landlord reasonably determines that the amounts payable under Paragraph 4(b) for the Leased Premisescurrent Computation Year will vary from Landlord’s estimate given to Tenant, in Landlord, by notice to Tenant, may reasonably revise the estimate for such Computation Year provided that Landlord may not so revise its estimate more than one time per Computation Year, and subsequent payments by Tenant for such Computation Year shall be based upon such revised estimate. By April 1 following the Base Year, Landlord shall endeavor to provide Tenant a reasonably detailed written statement (a “Base Year Statement”) showing Expenses for the Base Year. By April 1 of each calendar year or partial calendar year, during following the Lease Term, an amount equal to the Annual Rental Adjustment excluding Real Estate Taxes for such calendar year or partial calendar year. In the case of the calendar year of the Commencement Dateinitial Computation Year, Landlord shall endeavor to provide such notice prior to the Commencement Date. The Annual Rental Adjustment excluding Real Estate Taxes shall be estimated annually by Landlord, and written notice thereof shall be given to Tenant prior to the beginning of each calendar year. Tenant shall pay to Landlord each month, at the same time the Monthly Rental Installment is due, an amount equal to one-twelfth (1/12) of the estimated Annual Rental Adjustment excluding Real Estate Taxes. If the cost of utility, janitorial or other services increase during a calendar year, Landlord may increase the estimated Annual Rental Adjustment excluding Real Estate Taxes during such year by giving Tenant written notice to that effect, and thereafter Tenant shall pay to Landlord, in each of the remaining months of such year, an amount equal to the amount of such increase in the estimated Annual Rental Adjustment excluding Real Estate Taxes for the remainder of the year divided by the number of months remaining in such year. Within a reasonable time after the end of each calendar year, Landlord shall prepare and deliver to Tenant a statement (an “Annual Statement”) showing the actual Annual Rental Adjustment excluding Real Estate TaxesAdditional Rent due to Landlord under Paragraph 4(b) for the prior Computation Year. Within thirty If the total of the monthly payments of Additional Rent that Tenant has made for the prior Computation Year under Paragraph 4(b) is less than the actual Additional Rent chargeable to Tenant for such prior Computation Year, then Tenant shall pay the difference in a lump sum within ten (3010) business days after receipt of such Annual Statement from Landlord. Any overpayment by Tenant of Additional Rent under Paragraph 4(b) for the aforementioned statementprior Computation Year shall, at Landlord’s option, be credited against past due or current amounts owed by Tenant shall pay or returned to LandlordTenant in a lump sum payment within ten (10) business days after delivery of such Annual Statement, or unless such overpayment relates to the last Computation Year of this Lease in which event Landlord shall credit against the next rent make such lump sum payment or payments due from Tenant, as the case may be, the difference between the actual Annual Rental Adjustment excluding Real Estate Taxes for the preceding calendar year and the estimated amount paid by Tenant to Landlord during such year. In addition, Tenant shall pay, before delinquency, any and all Real Estate Taxes as defined in Section 3.02.D, above, directly to the appropriate taxing authority. If Tenant fails for any reason to pay the Real Estate Taxes when same is due and payable, Landlord shall have the right, but not the obligation, to pay the Real Estate Taxes directly to the taxing authority and Tenant shall immediately reimburse Landlord for the cost thereof. Such amount shall accrue interest from the date Landlord pays such amount, pursuant to Section 3.04, below, shall include any penalties, late fees and any interest assessed due to such delinquency. Tenant or its accountants shall have the right to inspect, at reasonable time and in a reasonable manner, during the one hundred twenty within ten (12010) day period following business days after the delivery of Landlord's statement of the actual amount of the such Annual Rental Adjustment excluding Real Estate Taxes, such of Landlord's books of account and records as pertain to and contain information concerning such costs and expenses for the Building for the prior calendar year in order to verify the amounts thereof. In the event the first audit discloses (i) errors made during the prior calendar year which, when totaled, indicate that the sum overcharged to and paid by Tenant, exceeds five percent (5%) of the Annual Rental Adjustment excluding Real Estate Taxes plus Landlord's Share of Operating Expenses (the "Total Expenses"), the audit shall be at the expense of Landlord, not to exceed Two Thousand Five Hundred Dollars ($2,500.00), or (ii) no errors or an error which equals or is less than five percent (5%) of the Total Expenses, the audit shall be at the expense of Tenant. For each subsequent audit, where the audit discloses errors exceeding five percent (5%) of the Total Expenses, Landlord shall pay for such audit and, if the audit discloses errors equal to or less than five percent (5%) of the Total Expenses, Tenant shall pay the costs of the audit. If Landlord spends more than eight (8) hours to accommodate Tenant's right to audit hereunder, Tenant shall also pay to Landlord as additional rent Seventy-five Dollars ($75.00) per hour for each additional hour that Tenant's audit takes of Landlord's property manager's or asset manager's timeStatement, provided such audit discloses no error or an error greater than five percent (5%) of the Total Expenses. The results of the audit (regardless of the degree of the error, if any) shall be binding upon Landlord and Tenant, and Landlord shall thereafter, if appropriate, change its method of calculating the Operating Expenses consistent with the results of the audit. Tenant agrees to hold the information obtained from such audit confidential and shall is not disclose the same without Landlord's express written permission except as necessary to enforce the Lease or protect Tenant's rights otherwise in Default hereunder. If Tenant shall not elect to cause an audit within the time period permitted hereby, then Landlord's statement shall be conclusively deemed to have been approved and accepted by Tenant. Pending resolution of any dispute with respect to statements of Tenant's Annual Rental Adjustment, Tenant shall pay its Annual Rental Adjustment as shown on such statement, and upon final determination of the amount of Tenant's Annual Rental Adjustment, Landlord shall promptly refund any overpayment to Tenant or Tenant shall promptly pay any amount due to Landlord, as applicable.
Appears in 1 contract
Payment of Additional Rent. In addition to the Minimum Annual Rent specified in Upon commencement of this Lease, Landlord shall submit to Tenant an estimate of monthly Additional Rent for the period between the Commencement Date and the following December 31 and Tenant shall pay such estimated Additional Rent on a monthly basis, in advance, on the first day of each month. Tenant shall continue to make said monthly payments until notified by Landlord as "Additional Rent" of a change therein. If at any time or times Landlord determines that the amounts payable under Paragraph 4(b) for the Leased Premisescurrent year will vary from Landlord's estimate given to Tenant, in each calendar Landlord, by notice to Tenant, may revise the estimate for such year, and subsequent payments by Tenant for such year or partial shall be based upon such revised estimate. In the event Landlord fails to notify Tenant, prior to the commencement of any calendar year, of the monthly installments of estimated Additional Rent that will be due hereunder during the Lease Termsuch calendar year, then Tenant shall continue paying estimated installments of Additional Rent in an amount equal to the Annual Rental Adjustment excluding Real Estate Taxes for prior year's installments until Tenant receives notice of the actual amount of the installments due hereunder during such calendar year or partial calendar year. In the case of the calendar year of the Commencement Date, Landlord shall provide such notice prior to the Commencement Date. The Annual Rental Adjustment excluding Real Estate Taxes shall be estimated annually by Landlord, and written notice thereof shall be given to Tenant prior to the beginning of each calendar year. Tenant shall pay to Landlord each month, at the same time the Monthly Rental Installment is due, an amount equal to one-twelfth (1/12) of the estimated Annual Rental Adjustment excluding Real Estate Taxes. If the cost of utility, janitorial or other services increase during a calendar year, Landlord may increase the estimated Annual Rental Adjustment excluding Real Estate Taxes during such year by giving Tenant written notice to that effect, and thereafter Tenant shall pay to Landlord, in each of the remaining months of such year, an amount equal to the amount of such increase in the estimated Annual Rental Adjustment excluding Real Estate Taxes for the remainder of the year divided by the number of months remaining in such year. Within a reasonable time after the end By April 1 of each calendar year, Landlord shall prepare and deliver endeavor to provide to Tenant a detailed statement (an "Expense Statement") showing the actual Annual Rental Adjustment excluding Real Estate TaxesExpenses and the actual Additional Rent due to Landlord for the prior calendar year, to be prorated during the first year from the Commencement Date. Within If the total of the monthly payments of Additional Rent that Tenant has made for the prior calendar year is less than the actual Additional Rent chargeable to Tenant for such prior calendar year, then Tenant shall pay the difference in a lump sum within thirty (30) days after receipt of such Expense Statement from Landlord. Any overpayment by Tenant of Additional Rent for the aforementioned statementprior calendar year shall be credited towards the Rent next due. Landlord's then-current annual operating and capital budgets for the Building and the Project or the pertinent part thereof shall be used for purposes of calculating Tenant's monthly payment of estimated Additional Rent for the current year, subject to adjustment as provided above. Landlord shall make the final determination of Additional Rent for the year in which this Lease terminates as soon as possible after termination of such year. Even though the Term has expired and Tenant has vacated the Premises, Tenant shall pay remain liable for payment of any amount due to Landlord, or Landlord shall credit against in excess of the next rent payment or payments due from estimated Additional Rent previously paid by Tenant, as the case may beand, the difference between the actual Annual Rental Adjustment excluding Real Estate Taxes for the preceding calendar year and the estimated amount paid by Tenant to Landlord during such year. In addition, Tenant shall pay, before delinquency, any and all Real Estate Taxes as defined in Section 3.02.D, above, directly to the appropriate taxing authority. If Tenant fails for any reason to pay the Real Estate Taxes when same is due and payableconversely, Landlord shall have the right, but promptly return to Tenant any overpayment. Failure of Landlord to submit Expense Statements as called for herein shall not the obligation, be deemed a waiver of Tenant's obligation to pay the Real Estate Taxes directly Additional Rent as herein provided. With respect to Expenses which Landlord allocates to the taxing authority and Tenant Building, Tenant's "Proportionate Share" shall immediately reimburse be the percentage set forth in the Basic Lease Information as Tenant's Proportionate Share of the Building, as adjusted by Landlord from time to time for a remeasurement of or changes in the cost thereof. Such amount shall accrue interest from physical size of the date Landlord pays Premises or the Building, whether such amount, pursuant to Section 3.04, below, shall include any penalties, late fees and any interest assessed changes in size are due to an addition to or a sale or conveyance of a portion of the Building or otherwise. With respect to Expenses which Landlord allocates to the Project as a whole or to only a portion of the Project, Tenant's "Proportionate Share" shall be, with respect to Expenses which Landlord allocates to the Project as a whole, the percentage set forth in the Basic Lease Information as Tenant's Proportionate Share of the Project and, with respect to Expenses which Landlord allocates to only a portion of the Project, a percentage calculated by Landlord from time to time in its reasonable discretion and furnished to Tenant in writing, in either case as adjusted by Landlord from time to time for a remeasurement of or changes in the physical size of the Premises or the Project, whether such delinquencychanges in size are due to an addition to or a sale or conveyance of a portion of the Project or otherwise. Notwithstanding the foregoing, Landlord may equitably adjust Tenant's Proportionate Share(s) for all or part of any item of expense or cost reimbursable by Tenant that relates to a repair, replacement, or its accountants service that benefits only the Premises or only a portion of the Building and/or the Project or that varies with the occupancy of the Building and/or the Project. Without limiting the generality of the foregoing, Tenant understands and agrees that Landlord shall have the right to inspect, at reasonable time and in a reasonable manner, during the one hundred twenty (120adjust Tenant's Proportionate Share(s) day period following the delivery of Landlordany Utility Expenses based upon Tenant's statement use of the actual amount Utilities or similar services as reasonably estimated and determined by Landlord based upon factors such as size of the Annual Rental Adjustment excluding Real Estate Taxes, Premises and intensity of use of such of Landlord's books of account and records as pertain to and contain information concerning Utilities by Tenant such costs and expenses for the Building for the prior calendar year in order to verify the amounts thereof. In the event the first audit discloses (i) errors made during the prior calendar year which, when totaled, indicate that the sum overcharged to and paid by Tenant, exceeds five percent (5%) of the Annual Rental Adjustment excluding Real Estate Taxes plus Landlord's Share of Operating Expenses (the "Total Expenses"), the audit shall be at the expense of Landlord, not to exceed Two Thousand Five Hundred Dollars ($2,500.00), or (ii) no errors or an error which equals or is less than five percent (5%) of the Total Expenses, the audit shall be at the expense of Tenant. For each subsequent audit, where the audit discloses errors exceeding five percent (5%) of the Total Expenses, Landlord shall pay for such audit and, if the audit discloses errors equal to or less than five percent (5%) of the Total Expenses, Tenant shall pay the costs portion of the audit. If Landlord spends more than eight (8) hours to accommodate such charges reasonably consistent with Tenant's right to audit hereunder, Tenant shall also pay to Landlord as additional rent Seventy-five Dollars ($75.00) per hour for each additional hour that Tenant's audit takes use of Landlord's property manager's or asset manager's time, provided such audit discloses no error or an error greater than five percent (5%) of the Total Expenses. The results of the audit (regardless of the degree of the error, if any) shall be binding upon Landlord Utilities and Tenant, and Landlord shall thereafter, if appropriate, change its method of calculating the Operating Expenses consistent with the results of the audit. Tenant agrees to hold the information obtained from such audit confidential and shall not disclose the same without Landlord's express written permission except as necessary to enforce the Lease or protect Tenant's rights hereunder. If Tenant shall not elect to cause an audit within the time period permitted hereby, then Landlord's statement shall be conclusively deemed to have been approved and accepted by Tenant. Pending resolution of any dispute with respect to statements of Tenant's Annual Rental Adjustment, Tenant shall pay its Annual Rental Adjustment as shown on such statement, and upon final determination of the amount of Tenant's Annual Rental Adjustment, Landlord shall promptly refund any overpayment to Tenant or Tenant shall promptly pay any amount due to Landlord, as applicablesimilar services.
Appears in 1 contract
Samples: Lease Agreement (Cepheid)
Payment of Additional Rent. In addition Landlord shall have the right to the Minimum Annual Rent specified in bill Tenant monthly for axx Xaxes, Insurance, and Common Area Maintenance expenses which Tenant is obligated to pay Landlord under this Lease; and, in the event Landlord so elects, Tenant shall pay to Landlord as "Additional Rent" for the Leased PremisesLandlord, in each calendar year or partial calendar year, during the Lease Term, an amount equal addition to the Annual Rental Adjustment excluding Real Estate Taxes for such calendar year or partial calendar year. In the case payments of the calendar year of the Commencement Date, Landlord shall provide such notice prior to the Commencement Date. The Annual Rental Adjustment excluding Real Estate Taxes shall be estimated annually by Landlord, and written notice thereof shall be given to Tenant prior to the beginning of each calendar year. Tenant shall pay to Landlord each month, at the same time the Monthly Rental Installment is dueBase Rent, an amount equal to one-twelfth (1/12) of the estimated Annual Rental Adjustment excluding Real Estate Tenant's total proportionate share of such Taxes, Insurance and/or Common Area Maintenance expense. If the cost of utility, janitorial or other services increase during a calendar year, All monies paid in advance to Landlord may increase the estimated Annual Rental Adjustment excluding Real Estate Taxes during such year by giving Tenant written notice to that effect, and thereafter Tenant shall pay to Landlord, in each not accrue interest thereon. Such amounts for the first year of the remaining months of lease term shall be reasonably estimated by Landlord; thereafter, such year, an amount equal to amounts shall be estimated upon the amount of such increase in the estimated Annual Rental Adjustment excluding Real Estate Taxes for the remainder basis of the year divided by the number of months remaining in such preceding year. Within a reasonable time after At the end of each calendar year, Landlord shall prepare and deliver a statement to Tenant setting forth Tenant's actual proportionate share of Taxes, Insurance and/or Common Area Maintenance expenses along with a statement showing copy of the actual Annual Rental Adjustment excluding Real Estate Taxestax bill and the total amount xx monthly payments, if any, paid by Tenant to Landlord. Within Tenant shall thereafter pay to Landlord the full amount of any difference between Tenant's proportionate share and Tenant's estimated payments within thirty (30) days after receipt of Landlord's statement. Conversely, in the aforementioned statementevent Tenant's estimated payments exceed the actual amount of Tenant's proportionate share, Landlord shall refund the overpayment to Tenant. In the event any bills or computations are not available prior to the end of the lease term, Tenant shall pay to an amount reasonably estimated by Landlord, which amount shall be equitably adjusted for any partial month or Landlord year of the term of this Lease. For purposes of this Lease, Tenant's proportionate share shall credit against the next rent payment or payments due from Tenant, be defined as the case may bea fraction, the difference between numerator of which shall be the actual Annual Rental Adjustment excluding Real Estate Taxes for square footage of the preceding calendar year Premises, and the estimated amount paid by Tenant denominator of which shall be the square footage of the rentable area of the Property, which proportionate share is hereby agreed to Landlord during such be equal to 56.55% at the time the lease was executed. Within ninety (90) days after receipt of each year. In addition-end statement, Tenant shall pay, before delinquency, any and all Real Estate Taxes as defined in Section 3.02.D, above, directly to the appropriate taxing authority. If Tenant fails for any reason to pay the Real Estate Taxes when same is due and payable, Landlord or its authorized agent shall have the right, but not the obligationat Tenant's sole cost and expense, to pay the Real Estate Taxes directly to the taxing authority inspect and Tenant shall immediately reimburse Landlord for the cost thereof. Such amount shall accrue interest from the date Landlord pays such amount, pursuant to Section 3.04, below, shall include any penalties, late fees and any interest assessed due to such delinquency. Tenant or its accountants shall have the right to inspect, at reasonable time and in a reasonable manner, during the one hundred twenty (120) day period following the delivery of audit Landlord's statement records with respect to Tenant's proportionate share of the actual amount of the Annual Rental Adjustment excluding Real Estate Taxesexpenses, such of Landlord's books of account and records as pertain to and contain information concerning such costs and expenses for the Building for the prior calendar year in order to verify the amounts thereof. In the event the first audit discloses (i) errors made during the prior calendar year which, when totaled, indicate that the sum overcharged to and paid by Tenant, exceeds five percent (5%) of the Annual Rental Adjustment excluding Real Estate Taxes plus Landlord's Share of Operating Expenses (the "Total Expenses"), the which audit shall be at the expense of Landlord's office during Landlord's normal business hours, not to exceed Two Thousand Five Hundred Dollars ($2,500.00), or (ii) no errors or an error which equals or is less than and upon five percent (5%) of the Total Expenses, the audit shall be at the expense of Tenantdays prior written notice. For each subsequent audit, where the audit discloses errors exceeding five percent (5%) of the Total ExpensesExcept as aforesaid, Landlord shall pay not be obligated to provide Tenant with detailed summaries and receipts for such audit and, if all expenses incurred by the audit discloses errors equal to or less than five percent (5%) of the Total Expenses, Tenant shall pay the costs of the audit. If Landlord spends more than eight (8) hours to accommodate Tenant's right to audit hereunder, Tenant shall also pay to Landlord as additional rent Seventy-five Dollars ($75.00) per hour for each additional hour that Tenant's audit takes of Landlord's property manager's or asset manager's time, provided such audit discloses no error or an error greater than five percent (5%) of the Total Expenses. The results of the audit (regardless of the degree of the error, if any) shall be binding upon Landlord and Tenant, and Property; but Landlord shall thereafterprovide Tenant with a statement setting forth such, if appropriateexpenses, change its method of calculating the Operating Expenses consistent with the results of the auditcategorized by class and amount. Unless Tenant agrees to hold the information obtained from such audit confidential and shall not disclose the same without Landlord's express written permission except as necessary to enforce the Lease or protect Tenant's rights hereunder. If Tenant shall not elect to cause an audit asserts specific errors within the time period permitted herebysaid ninety (90) days, then Landlord's said year-end statement shall be conclusively deemed to have been approved and accepted by Tenant. Pending resolution of any dispute with respect to statements of Tenant's Annual Rental Adjustment, Tenant shall pay its Annual Rental Adjustment as shown on such statement, and upon final determination of the amount of Tenant's Annual Rental Adjustment, Landlord shall promptly refund any overpayment to Tenant or Tenant shall promptly pay any amount due to Landlord, as applicablebe correct.
Appears in 1 contract
Samples: Warehouse Lease Agreement (Nooney Realty Trust Inc)
Payment of Additional Rent. In addition Landlord shall have the right to invoice Tenant monthly, for Tenant’s pro rata share of the Minimum Annual Rent specified in actual Taxes, Insurance and CAM expenses payable by Tenant under this Lease, Tenant shall pay to Landlord as "Additional Rent" for the Leased Premises, in each calendar year or partial calendar year, during the Lease Term, an amount equal to the Annual Rental Adjustment excluding Real Estate Taxes for such calendar year or partial calendar year. In the case of the calendar year of the Commencement Date, Landlord shall provide such notice prior to the Commencement Date. The Annual Rental Adjustment excluding Real Estate Taxes shall be estimated annually by Landlord, ; and written notice thereof shall be given to Tenant prior to the beginning of each calendar year. Tenant shall pay to Landlord each month, at the same time the Monthly Rental Installment is due, an amount equal to one-twelfth (1/12) of the estimated Annual Rental Adjustment excluding Real Estate Taxes. If the cost of utility, janitorial or other services increase during a calendar year, Landlord may increase the estimated Annual Rental Adjustment excluding Real Estate Taxes during such year by giving Tenant written notice to that effect, and thereafter Tenant shall pay to Landlord, in each of the remaining months of such yearas Additional Rent, an amount equal to the amount of such increase in the estimated Annual Rental Adjustment excluding Real Estate Taxes those amounts for the remainder of the year divided by the number of months remaining in such year. Within a reasonable time after the end of each calendar year, Landlord shall prepare and deliver to which Tenant a statement showing the actual Annual Rental Adjustment excluding Real Estate Taxes. Within is invoiced within thirty (30) days after receipt of the aforementioned statementsaid invoice. Alternatively, Tenant shall pay to at Landlord, or Landlord shall credit against the next rent payment or payments due from Tenant, as the case may be, the difference between the actual Annual Rental Adjustment excluding Real Estate Taxes for the preceding calendar year and the estimated amount paid by Tenant to Landlord during such year. In addition, Tenant shall pay, before delinquency, any and all Real Estate Taxes as defined in Section 3.02.D, above, directly to the appropriate taxing authority. If Tenant fails for any reason to pay the Real Estate Taxes when same is due and payable’s election, Landlord shall have the rightright to invoice Tenant monthly for Tenant’s pro rata share of such expenses, but as reasonably estimated by Landlord. Any monies paid in advance to Landlord by Tenant shall not accrue interest thereon. AT the end of each calendar year or property fiscal year, Landlord shall deliver a statement to Tenant setting forth the difference between Tenant’s actual pro rata share of Taxes, Insurance and/or CAM expenses and the total amount of monthly payments, paid by Tenant to Landlord. Tenant shall thereafter pay to Landlord the full amount of any difference between Tenant’s actual obligation over the total amount of Tenant’s estimated payments, within thirty (30) days after receipt of said statement; conversely, in the event Tenant’s estimated payments exceed Tenant’s actual obligation, Landlord shall, within said 30 day period either refund the overpayment to pay Tenant or credit said overpayment against Tenant’s monthly obligation in the Real Estate Taxes directly forthcoming year. For purposes of this Lease. Tenant’s pro rata share is hereinafter defined as a fraction, the numerator of which shall be the square footage of the Premises, and the denominator of which shall be the square footage of the rentable area of the Property, which pro rata share is hereby agreed to be equal to 3.9%. In the taxing authority event this Lease expires on a date other than the end of a billing period. Tenant’s obligation with respect to any amounts owed to Landlord at the time of such expiration shall survive the expiration of the lease term, and shall be invoiced to Tenant when the same have been accurately determined. Landlord shall immediately reimburse Landlord for maintain complete and accurate records of all Taxes, Insurance and CAM expenses incurred in connection wit the cost thereof. Such amount shall accrue interest from the date Landlord pays such amount, pursuant to Section 3.04, below, shall include any penalties, late fees and any interest assessed due to such delinquencyProperty. Tenant or its accountants shall have the right to inspectinspect such records at Tenant’s sole cost and expense, at reasonable time and in a reasonable manner, during the one hundred twenty (120) day period following the delivery office of Landlord's statement ’s managing agent during said agent’s normal business hours, upon five (5) days prior written notice. Landlord shall not be obligated to provide Tenant with detailed summaries or receipts for any expenses incurred by or on behalf of the actual amount of the Annual Rental Adjustment excluding Real Estate Taxes, such of Landlord's books of account and records as pertain to and contain information concerning such costs and expenses for the Building for the prior calendar year in order to verify the amounts thereof. In the event the first audit discloses (i) errors made during the prior calendar year which, when totaled, indicate that the sum overcharged to and paid by Tenant, exceeds five percent (5%) of the Annual Rental Adjustment excluding Real Estate Taxes plus Landlord's Share of Operating Expenses (the "Total Expenses"), the audit Property; but Landlord shall provide Tenant with one or more statements which shall be at certified by Landlord setting forth such expenses, categorized by class and amount. Notwithstanding the expense aforesaid, unless Tenant asserts specific errors within ninety (90) days after receipt of Landlord, not to exceed Two Thousand Five Hundred Dollars ($2,500.00)any invoice, or (ii) no errors or an error which equals or is less than five percent (5%) of the Total Expensesyear-end statement, the audit it shall be at the expense of Tenant. For each subsequent auditdeemed that said invoice, where the audit discloses errors exceeding five percent (5%) of the Total Expenses, Landlord shall pay for such audit and, if the audit discloses errors equal to or less than five percent (5%) of the Total Expenses, Tenant shall pay the costs of the audit. If Landlord spends more than eight (8) hours to accommodate Tenant's right to audit hereunder, Tenant shall also pay to Landlord as additional rent Seventyyear-five Dollars ($75.00) per hour for each additional hour that Tenant's audit takes of Landlord's property manager's or asset manager's time, provided such audit discloses no error or an error greater than five percent (5%) of the Total Expenses. The results of the audit (regardless of the degree of the error, if any) shall be binding upon Landlord and Tenant, and Landlord shall thereafter, if appropriate, change its method of calculating the Operating Expenses consistent with the results of the audit. Tenant agrees to hold the information obtained from such audit confidential and shall not disclose the same without Landlord's express written permission except as necessary to enforce the Lease or protect Tenant's rights hereunder. If Tenant shall not elect to cause an audit within the time period permitted hereby, then Landlord's statement shall be conclusively deemed to have been approved and accepted by Tenant. Pending resolution of any dispute with respect to statements of Tenant's Annual Rental Adjustment, Tenant shall pay its Annual Rental Adjustment as shown on such end statement, and upon final determination of the amount of Tenant's Annual Rental Adjustment, Landlord shall promptly refund any overpayment to Tenant or Tenant shall promptly pay any amount due to Landlord, as applicableis correct.
Appears in 1 contract
Samples: Office/Laboratory Lease (Tetralogic Pharmaceuticals Corp)
Payment of Additional Rent. In addition to the Minimum Annual Rent specified in this Lease, (a) It is hereby agreed that Tenant shall pay to Landlord as Additional Rent during each calendar year during the term hereof an estimate of "Additional RentTenant's Proportionate Share of Operating Expenses and Real Estate Taxes" for the Leased Premises, in each calendar year or partial calendar year, during the Lease Term, an amount equal to the Annual Rental Adjustment excluding Real Estate Taxes for such calendar year or partial calendar year. In the case of the calendar year of the Commencement Date, Landlord shall provide such notice prior to the Commencement Date. The Annual Rental Adjustment excluding Real Estate Taxes shall be as reasonably estimated annually by Landlord, and written notice thereof shall be given to Tenant prior to the beginning of each calendar year. Tenant shall pay to Landlord each monthpayable monthly, at the same time the Monthly Rental Installment is due, an amount equal to rate of one-twelfth (1/12) thereof, on the same date and at the same place that base rent as described in Section 1 is or would otherwise be payable, with an adjustment to be made between the parties at a later date as hereinafter provided. Tenant shall deliver to Tenant, as soon as practicable following the end of the estimated Annual Rental Adjustment excluding Real Estate Taxes. If the cost of utility, janitorial or other services increase during a any calendar year, Landlord may increase the estimated Annual Rental Adjustment excluding Real Estate Taxes during such year by giving Tenant written notice to that effectbut in no event later than June 30th, and thereafter Tenant shall pay to Landlord, in each an estimate of the remaining months of such year, an amount equal to the amount of such increase in the estimated Annual Rental Adjustment excluding Operating Expenses and Real Estate Taxes for the remainder new calendar year (the "Budget Sheet"). Until receipt of the year divided by Budget Sheet, Tenant shall continue to pay its monthly Tenant's Proportionate Share of Operating Expenses and Real Estate Taxes based upon the number of months remaining in such estimate for the preceding calendar year. Within a reasonable time after To the end extent that the Budget Sheet reflects an estimate of each Tenant's Proportionate Share of Operating Expenses and Real Estate Taxes for the new calendar year greater than the amount actually paid to the date of receipt of the Budget Sheet for the new calendar year, Tenant shall pay such amount to Landlord shall prepare and deliver to Tenant a statement showing the actual Annual Rental Adjustment excluding Real Estate Taxes. Within within thirty (30) days after of receipt of the aforementioned statementBudget Sheet. Upon receipt of the Budget Sheet, Tenant shall thereafter pay the amount of its monthly Tenant's Proportionate Share of Operating Expenses and Real Estate Taxes. Notwithstanding the foregoing, Landlord's failure to deliver the Budget Sheet to Tenant on or before June 30th, shall in no way serve as a waiver of Landlord's right under this Section. As soon as practicable following the end of any calendar year, or but not later than June 30th, Landlord shall credit against submit to Tenant a statement in reasonable detail describing the next rent payment or payments due from computations of the Operating Expenses and Real Estate Taxes, setting forth the exact amount of Tenant, as the case may be, the difference between the actual Annual Rental Adjustment excluding 's Proportionate Share of Operating Expenses and Real Estate Taxes for the preceding calendar year just completed (the "Statement"), and the difference, if any, between the actual Tenant's Proportionate Share of Operating Expenses and Real Estate Taxes for the calendar year just completed and the estimated amount of Tenant's Proportionate Share of Operating Expenses and Real Estate Taxes paid by Tenant to Landlord during such yearLandlord. In additionNotwithstanding the foregoing, Landlord's failure to deliver the Statement to Tenant shall pay, on or before delinquency, any and all Real Estate Taxes as defined in Section 3.02.D, above, directly to the appropriate taxing authority. If Tenant fails for any reason to pay the Real Estate Taxes when same is due and payable, Landlord shall have the right, but not the obligation, to pay the Real Estate Taxes directly to the taxing authority and Tenant shall immediately reimburse Landlord for the cost thereof. Such amount shall accrue interest from the date Landlord pays such amount, pursuant to Section 3.04, belowJune 30th, shall include any penalties, late fees and any interest assessed due to such delinquency. Tenant or its accountants shall have the right to inspect, at reasonable time and in no way serve as a reasonable manner, during the one hundred twenty (120) day period following the delivery waiver of Landlord's statement of right under this Section. To the extent that the actual amount of the Annual Rental Adjustment excluding Real Estate Taxes, such of LandlordTenant's books of account and records as pertain to and contain information concerning such costs and expenses for the Building for the prior calendar year in order to verify the amounts thereof. In the event the first audit discloses (i) errors made during the prior calendar year which, when totaled, indicate that the sum overcharged to and paid by Tenant, exceeds five percent (5%) of the Annual Rental Adjustment excluding Real Estate Taxes plus Landlord's Proportionate Share of Operating Expenses (and Real Estate Taxes for the "Total Expenses"), period covered by the audit shall be at Statement is higher than the expense of Landlord, not to exceed Two Thousand Five Hundred Dollars ($2,500.00), or (ii) no errors or an error which equals or is less than five percent (5%) of the Total Expenses, the audit shall be at the expense of Tenant. For each subsequent audit, where the audit discloses errors exceeding five percent (5%) of the Total Expenses, Landlord shall pay for such audit and, if the audit discloses errors equal to or less than five percent (5%) of the Total Expenses, Tenant shall pay the costs of the audit. If Landlord spends more than eight (8) hours to accommodate estimated Tenant's right to audit hereunderProportionate Share of Operating Expenses and Real Estate Taxes which Tenant previously paid during the calendar year just completed, Tenant shall also pay to Landlord as additional rent Seventy-five Dollars such balance within thirty ($75.0030) per hour for each additional hour days following receipt of the Statement from Landlord. To the extent that the actual Tenant's audit takes Proportionate Share of Landlord's property manager's or asset manager's time, provided such audit discloses no error or an error greater than five percent (5%) of the Total Expenses. The results of the audit (regardless of the degree of the error, if any) shall be binding upon Landlord and Tenant, and Landlord shall thereafter, if appropriate, change its method of calculating the Operating Expenses consistent with and Real Estate Taxes for the results of period covered by the audit. Tenant agrees to hold Statement is less than the information obtained from such audit confidential and shall not disclose the same without Landlord's express written permission except as necessary to enforce the Lease or protect estimated Tenant's rights hereunder. If Proportionate Share of Operating Expenses and Real Estate Taxes which Tenant shall not elect to cause an audit within previously paid during the time period permitted hereby, then Landlord's statement shall be conclusively deemed to have been approved and accepted by Tenant. Pending resolution of any dispute with respect to statements of Tenant's Annual Rental Adjustment, Tenant shall pay its Annual Rental Adjustment as shown on such statement, and upon final determination of the amount of Tenant's Annual Rental Adjustmentcalendar year just completed, Landlord shall promptly refund credit the excess against any overpayment sums then owing or next becoming due from Tenant to Tenant or Tenant shall promptly pay any amount due to Landlord, as applicableLandlord under the Lease.
Appears in 1 contract
Samples: Lease Agreement (Wentworth I Inc)
Payment of Additional Rent. In addition 3(n) During the Term of the Lease, the Tenant shall pay to the Minimum Annual Rent specified Landlord, Additional Rental for Taxes, Additional Rental for Insurance and Additional Rental for Operating Costs and any other costs charged to the Tenant as provided for in this Lease, Tenant which shall pay be collectively be referred to Landlord herein as "Additional Rent" for , Additional Rental or Additional Rentals. Prior to the Leased Premises, in commencement of the term of this Lease and of each calendar year or partial calendar year, during the Lease Term, an amount equal to Landlord shall estimate the Annual Rental Adjustment excluding Real Estate Taxes amounts of the said Additional Rentals as herein before set forth for such the ensuing calendar year or partial calendar year. In the case of the calendar year of the Commencement Date, Landlord shall provide such notice prior to the Commencement Date. The Annual Rental Adjustment excluding Real Estate Taxes shall be estimated annually by Landlord, and written notice thereof shall be given to Tenant prior to the beginning of each calendar year. Tenant shall pay to Landlord each month, at the same time the Monthly Rental Installment is due, an amount equal to one-twelfth (1/12if applicable) of the estimated Annual Rental Adjustment excluding Real Estate Taxes. If the cost of utility, janitorial or other services increase during a calendar year, Landlord may increase the estimated Annual Rental Adjustment excluding Real Estate Taxes during such year by giving Tenant written notice to that effect, and thereafter Tenant shall pay to Landlord, in each of the remaining months of such year, an amount equal to the amount of such increase in the estimated Annual Rental Adjustment excluding Real Estate Taxes for the remainder of the year divided by the number of months remaining in such year. Within a reasonable time after the end of each calendar year, Landlord shall prepare and deliver to Tenant a statement showing the actual Annual Rental Adjustment excluding Real Estate Taxes. Within thirty (30) days after receipt of the aforementioned statement, Tenant shall pay to Landlord, or Landlord shall credit against the next rent payment or payments due from Tenantbroken portion thereof, as the case may be, and shall notify the difference between Tenant in writing of such estimate. The amount so estimated shall be payable in equal monthly installments in advance over the actual Annual Rental Adjustment excluding Real Estate Taxes for the preceding calendar year or broken portion thereof in question, on the first day of each and the estimated amount paid by Tenant to Landlord every month during such yearLease Year. In addition, Tenant shall pay, before delinquency, any and all Real Estate Taxes as defined The Landlord may from time to time alter the calendar year selected in Section 3.02.D, above, directly to which case the appropriate taxing authorityadjustment in monthly installments shall be made. If Tenant fails for any reason From time to pay time during a calendar year, the Real Estate Taxes when same is due and payable, Landlord shall have may re-estimate the right, but not the obligation, to pay the Real Estate Taxes directly to the taxing authority and Tenant shall immediately reimburse Landlord for the cost thereof. Such amount shall accrue interest from the date Landlord pays such amount, pursuant to Section 3.04, below, shall include any penalties, late fees and any interest assessed due to such delinquency. Tenant or its accountants shall have the right to inspect, at reasonable time and in a reasonable manner, during the one hundred twenty (120) day period following the delivery of Landlord's statement of the actual amount of the Annual Rental Adjustment excluding Real Estate Taxestaxes, such insurance, or operating costs or any of Landlord's books of account and records as pertain to and contain information concerning such costs and expenses for the Building for the prior calendar year them, in order to verify the amounts thereof. In the which event the first audit discloses (i) errors made during the prior calendar year which, when totaled, indicate that the sum overcharged to and paid by Tenant, exceeds five percent (5%) of the Annual Rental Adjustment excluding Real Estate Taxes plus Landlord's Share of Operating Expenses (the "Total Expenses"), the audit shall be at the expense of Landlord, not to exceed Two Thousand Five Hundred Dollars ($2,500.00), or (ii) no errors or an error which equals or is less than five percent (5%) of the Total Expenses, the audit shall be at the expense of Tenant. For each subsequent audit, where the audit discloses errors exceeding five percent (5%) of the Total Expenses, Landlord shall pay for notify the Tenant in writing of such audit and, if re-estimate and the audit discloses errors equal to or less than five percent (5%) of the Total Expenses, Tenant shall pay the amended monthly installments for the then remaining balance of such calendar year or broken portion thereof. Within sixty (60) days after the expiration of each calendar year, the Landlord shall make a calculation of such taxes, insurance, and operating costs for such calendar year or broken portion thereof and shall notify the Tenant of such calculation and the audit. If Landlord spends more than eight (8) hours to accommodate Tenant's right to audit hereunder, and the Tenant shall also pay make the necessary readjustment within thirty (30) days of such notification to Landlord as additional rent Seventy-five Dollars ($75.00) per hour for each additional hour that the Tenant's audit takes of Landlord's property manager's or asset manager's time, provided such audit discloses no error or an error greater than five percent (5%) of the Total Expenses. The results of the audit (regardless of the degree of the error, if any) shall be binding upon Landlord and Tenant, and Landlord shall thereafter, if appropriate, change its method of calculating the Operating Expenses consistent with the results of the audit. Tenant agrees to hold the information obtained from such audit confidential and shall may not disclose the same without Landlord's express written permission except as necessary to enforce the Lease or protect Tenant's rights hereunder. If Tenant shall not elect to cause an audit within the time period permitted hereby, then Landlord's statement shall be conclusively deemed to have been approved and accepted by Tenant. Pending resolution of any dispute claim a readjustment with respect to statements such Additional Rentals based upon any error of Tenant's Annual Rental Adjustmentestimation, determination or calculation thereof unless claimed in writing within one (1) year after the Landlord has provided the Tenant shall pay its Annual Rental Adjustment as shown on such statement, and upon final determination of with the amount of Tenant's Annual Rental Adjustment, Landlord shall promptly refund any overpayment calculation referred to Tenant or Tenant shall promptly pay any amount due to Landlord, as applicableherein.
Appears in 1 contract
Samples: Lease (Phreesia, Inc.)
Payment of Additional Rent. In addition Landlord shall have the right to reasonably estimate the Minimum Annual Additional Rent specified in this Leasefor each Operating Year. Upon Landlord's or Agent's notice to Tenant of such estimated amount, Tenant shall pay to Landlord as "Additional Rent" for pay, on the Leased Premises, in first day of each calendar year or partial calendar year, month during the Lease Termthat Operating Year, an amount (the "Estimated Additional Rent") equal to the Annual Rental Adjustment excluding Real Estate Taxes for such calendar year or partial calendar year. In the case estimate of the calendar year of the Commencement Date, Landlord shall provide such notice prior to the Commencement Date. The Annual Rental Adjustment excluding Real Estate Taxes shall be estimated annually by Landlord, and written notice thereof shall be given to Tenant prior to the beginning of each calendar year. Tenant shall pay to Landlord each month, at the same time the Monthly Rental Installment is due, an amount equal to one-twelfth (1/12) of the estimated Annual Rental Adjustment excluding Real Estate Taxes. If the cost of utility, janitorial or other services increase during a calendar year, Landlord may increase the estimated Annual Rental Adjustment excluding Real Estate Taxes during such year by giving Tenant written notice to that effect, and thereafter Tenant shall pay to Landlord, in each of the remaining months of such year, an amount equal to the amount of such increase in the estimated Annual Rental Adjustment excluding Real Estate Taxes for the remainder of the year Additional Rent divided by the number of months in the applicable Operating Year or the fractional portion thereof remaining at the time Landlord delivers its notice of estimated Additional Rent due from Tenant. If the aggregate amount of Estimated Additional Rent actually paid by Tenant during any Operating Year is less than Tenant's actual ultimate liability for Additional Rent for that particular Operating Year, as determined pursuant to Section 3.2, Tenant shall pay the deficiency within thirty (30) days of the delivery to Tenant of a statement showing in reasonable detail the Operating Expenses, the Improvements Maintenance Costs and the Improvements Taxes for such yearOperating Year together with copies of applicable tax bills (the "Annual Additional Rent Statement"). Within a Landlord shall make all reasonable time effort to deliver the Annual Additional Rent Statement to Tenant within 120 days after the end of each calendar yearOperating Year during the Term. If the aggregate amount of Estimated Additional Rent actually paid by Tenant during a given Operating Year exceeds Tenant's actual liability for such Operating Year, the excess shall be credited against the Estimated Additional Rent due from Tenant during the immediately subsequent Operating Year, except that in the event that such excess is paid by Tenant during the final Lease Year, then upon the expiration of the Term, Landlord or Agent shall prepare and deliver promptly pay Tenant the then-applicable excess after determination thereof. No interest shall be payable to Tenant a statement showing the actual Annual Rental Adjustment excluding Real Estate Taxeson account of such payments of Estimated Additional Rent and such payments may be commingled. Within thirty (30) days after receipt of the aforementioned statement, Tenant shall pay Upon reasonable prior written notice to Landlord, or Landlord shall credit against the next rent payment or payments due from Tenant shall, at Tenant's sole expense, as the case may be, the difference between the actual Annual Rental Adjustment excluding Real Estate Taxes for the preceding calendar year and the estimated amount paid by Tenant to Landlord during such year. In addition, Tenant shall pay, before delinquency, any and all Real Estate Taxes as defined in Section 3.02.D, above, directly to the appropriate taxing authority. If Tenant fails for any reason to pay the Real Estate Taxes when same is due and payable, Landlord shall have the right, but not the obligation, to pay the Real Estate Taxes directly to the taxing authority and Tenant shall immediately reimburse Landlord for the cost thereof. Such amount shall accrue interest from the date Landlord pays such amount, pursuant to Section 3.04, below, shall include any penalties, late fees and any interest assessed due to such delinquency. Tenant or its accountants shall have the right to inspect, at reasonable time and in a reasonable manner, during the one hundred twenty (120) day period following the delivery of Landlord's statement of the actual amount of the Annual Rental Adjustment excluding Real Estate Taxes, such of examine Landlord's books of account and records as pertain pertaining to Operating Expenses, Improvements Maintenance Costs and contain information concerning such costs and expenses Improvements Taxes for the Building sole purpose of determining whether Landlord has properly invoiced Tenant for the prior calendar year in order to verify the amounts thereof. In the event the first audit discloses (i) errors made during the prior calendar year which, when totaled, indicate that the sum overcharged to and paid by Tenant, exceeds five percent (5%) of the Annual Rental Adjustment excluding Real Estate Taxes plus Landlord's Share of Operating Expenses (the "Total Expenses"), the audit shall be at the expense of Landlord, not to exceed Two Thousand Five Hundred Dollars ($2,500.00), or (ii) no errors or an error which equals or is less than five percent (5%) of the Total Expenses, the audit shall be at the expense of Tenant. For each subsequent audit, where the audit discloses errors exceeding five percent (5%) of the Total Expenses, Landlord shall pay for such audit and, if the audit discloses errors equal to or less than five percent (5%) of the Total Expenses, Tenant shall pay the costs of the audit. If Landlord spends more than eight (8) hours to accommodate Tenant's right to audit hereunder, Tenant shall also pay to Landlord as additional rent Seventy-five Dollars ($75.00) per hour for each additional hour that Tenant's audit takes of Landlord's property manager's or asset manager's time, provided such audit discloses no error or an error greater than five percent (5%) of the Total Expenses. The results of the audit (regardless of the degree of the error, if any) shall be binding upon Landlord and Tenant, and Landlord shall thereafter, if appropriate, change its method of calculating the Operating Expenses consistent with the results of the audit. Tenant agrees to hold the information obtained from such audit confidential and shall not disclose the same without Landlord's express written permission except as necessary to enforce the Lease or protect Tenant's rights hereunder. If Tenant shall not elect to cause an audit within the time period permitted hereby, then Landlord's statement shall be conclusively deemed to have been approved and accepted by Tenant. Pending resolution of any dispute with respect to statements of Tenant's Annual Rental Adjustment, Tenant shall pay its Annual Rental Adjustment as shown on such statement, and upon final determination of the amount of Tenant's Annual Rental Adjustment, Landlord shall promptly refund any overpayment to Tenant or Tenant shall promptly pay any amount due to Landlord, as applicableAdditional Rent under this Lease.
Appears in 1 contract
Samples: Gantos Inc
Payment of Additional Rent. In addition to the Minimum Annual The Additional Rent specified in this LeaseSection 4.03 hereof shall be paid and adjusted with reference to a fiscal period of 12 calendar months, Tenant which shall pay to Landlord as "Additional Rent" for the Leased Premises, in each be a calendar year or partial unless the Landlord shall from time to time have selected a fiscal period which is not a calendar year, year by notice to the Tenant. The Landlord shall advise the Tenant in writing of its estimate of the Additional Rent to be payable by the Tenant during the Lease Term, an amount equal to the Annual Rental Adjustment excluding Real Estate Taxes for such calendar year fiscal period (or partial calendar year. In the case broken portion of the calendar year of the Commencement Date, Landlord shall provide such notice prior to the Commencement Date. The Annual Rental Adjustment excluding Real Estate Taxes shall be estimated annually by Landlord, and written notice thereof shall be given to Tenant prior to the beginning of each calendar year. Tenant shall pay to Landlord each month, at the same time the Monthly Rental Installment is due, an amount equal to one-twelfth (1/12) of the estimated Annual Rental Adjustment excluding Real Estate Taxes. If the cost of utility, janitorial or other services increase during a calendar year, Landlord may increase the estimated Annual Rental Adjustment excluding Real Estate Taxes during such year by giving Tenant written notice to that effect, and thereafter Tenant shall pay to Landlord, in each of the remaining months of such year, an amount equal to the amount of such increase in the estimated Annual Rental Adjustment excluding Real Estate Taxes for the remainder of the year divided by the number of months remaining in such year. Within a reasonable time after the end of each calendar year, Landlord shall prepare and deliver to Tenant a statement showing the actual Annual Rental Adjustment excluding Real Estate Taxes. Within thirty (30) days after receipt of the aforementioned statement, Tenant shall pay to Landlord, or Landlord shall credit against the next rent payment or payments due from Tenantfiscal period, as the case may be, if applicable at the difference between commencement or end of the actual Annual Rental Adjustment excluding Real Estate Term or because of a change in fiscal period) which commenced upon the Commencement Date of the Initial Term, and on or before the commencement of each succeeding fiscal period which commences during the Term, the Landlord shall advise the Tenant in writing of its estimate of the Additional Rent to be incurred in such fiscal period or broken portion thereof. Such estimate shall in every case be a reasonable estimate and based wherever possible upon previous operating expenses. The Additional Rent payable by the Tenant, except as herein otherwise provided, shall be paid in equal monthly instalments in advance on the first day of each and every month during the Term based on the Landlord's estimate as aforesaid. If required by the Landlord, Taxes for the preceding calendar year and the estimated amount any 12 months fiscal period shall be paid by Tenant nine equal instalments on the first day of each of the first nine months of such fiscal period. Within 120 days after the end of each such fiscal period or broken portion thereof (or with respect to Landlord during any component of Additional Rent which cannot be computed within such year. In addition120 day period, Tenant shall pay, before delinquency, any and all Real Estate Taxes as defined in Section 3.02.D, above, directly to within 30 days after the appropriate taxing authority. If Tenant fails for any reason to pay the Real Estate Taxes when same is due and payable, Landlord shall have received the rightinformation necessary to compute such component of Additional Rent), but not the obligation, to pay the Real Estate Taxes directly Landlord shall submit to the taxing authority and Tenant shall immediately reimburse Landlord for the cost thereof. Such amount shall accrue interest from the date Landlord pays such amount, pursuant to Section 3.04, below, shall include any penalties, late fees and any interest assessed due to such delinquency. Tenant or its accountants shall have the right to inspect, at reasonable time and in a reasonable manner, during the one hundred twenty (120) day period following the delivery of Landlord's statement of the actual amount Additional Rent payable in respect of the Annual Rental Adjustment excluding Real Estate Taxessuch fiscal period or broken portion thereof, such of Landlord's books of account and records as pertain to and contain information concerning such costs and expenses for the Building for the prior calendar year in order to verify the amounts thereof. In the event the first audit discloses (i) errors made during the prior calendar year which, when totaled, indicate that the sum overcharged to and paid by Tenant, exceeds five percent (5%) of the Annual Rental Adjustment excluding Real Estate Taxes plus Landlord's Share of Operating Expenses (the "Total Expenses"), the audit shall be at the expense of Landlord, not to exceed Two Thousand Five Hundred Dollars ($2,500.00), or (ii) no errors or an error which equals or is less than five percent (5%) of the Total Expenses, the audit shall be at the expense of Tenant. For each subsequent audit, where the audit discloses errors exceeding five percent (5%) of the Total Expenses, Landlord shall pay for such audit and, if the audit discloses errors equal to or less than five percent (5%) of the Total Expenses, Tenant shall pay the costs of the audit. If Landlord spends more than eight (8) hours to accommodate Tenant's right to audit hereunder, Tenant shall also pay to Landlord as additional rent Seventy-five Dollars ($75.00) per hour for each additional hour that Tenant's audit takes of Landlord's property manager's or asset manager's time, provided such audit discloses no error or an error greater than five percent (5%) of the Total Expenses. The results of the audit (regardless of the degree of the error, if any) shall be binding upon Landlord and Tenant, and Landlord shall thereafter, if appropriate, change its method of calculating the Operating Expenses consistent with the results of the audit. Tenant agrees to hold the information obtained from such audit confidential and shall not disclose the same without Landlord's express written permission except as necessary to enforce the Lease or protect Tenant's rights hereunder. If Tenant shall not elect to cause an audit within the time period permitted hereby, then Landlord's statement shall be conclusively deemed to have been approved and accepted verified by Tenant. Pending resolution of any dispute with respect to statements of Tenantthe Landlord's Annual Rental Adjustment, Tenant shall pay its Annual Rental Adjustment as shown on such statementAccountant, and upon final determination a calculation of the amount of Tenant's Annual Rental Adjustment, Landlord shall promptly refund any overpayment to amounts by which the Additional Rent payable by the Tenant exceeds or Tenant shall promptly pay any amount due to Landlordfalls short, as applicablethe case may be, of the aggregate instalments paid by the Tenant on account of Additional Rent for such fiscal period.
Appears in 1 contract
Samples: Second Lease Amending Agreement (Ss&c Technologies Inc)
Payment of Additional Rent. In addition to the Minimum Annual Rent specified in this Lease, Tenant shall pay to Landlord as "Additional Rent" for the Leased Premises, in each calendar year or partial calendar year, during the Lease Term, an amount equal to the Annual Rental Adjustment excluding Real Estate Taxes for such calendar year or partial calendar year. In the case of the calendar year of the Commencement Date, Landlord shall provide such notice prior to the Commencement Date. The Annual Rental Adjustment excluding Real Estate Taxes shall be estimated annually by Landlord, and written notice thereof shall be given to Tenant prior to the beginning of each calendar year. Tenant shall pay to Landlord each month, at the same time the Monthly Rental Installment is due, an amount equal to one-twelfth (1/12) of the estimated Annual Rental Adjustment excluding Adjustment. If Real Estate Taxes. If Taxes or the cost of utility, utility or janitorial or other services increase during a calendar year, Landlord may increase the estimated Annual Rental Adjustment excluding Real Estate Taxes during such year by giving Tenant written notice to that effect, and thereafter Tenant shall pay to Landlord, in each of the remaining months of such year, an amount equal to the amount of such increase in the estimated Annual Rental Adjustment excluding Real Estate Taxes for the remainder of the year divided by the number of months remaining in such year. Within a reasonable time after the end of each calendar year, Landlord shall prepare and deliver to Tenant a statement showing the actual Annual Rental Adjustment excluding Real Estate TaxesAdjustment. Within thirty (30) days after receipt of the aforementioned statement, Tenant shall pay to Landlord, or Landlord shall credit against the next rent payment or payments due from Tenant, as the case may be, the difference between the actual Annual Rental Adjustment excluding Real Estate Taxes for the preceding calendar year and the estimated amount paid by Tenant to Landlord during such year. In addition, Tenant shall pay, before delinquency, any and all Real Estate Taxes as defined in Section 3.02.D, above, directly to the appropriate taxing authority. If Tenant fails for any reason to pay the Real Estate Taxes when same is due and payable, Landlord shall have the right, but not the obligation, to pay the Real Estate Taxes directly to the taxing authority and Tenant shall immediately reimburse Landlord for the cost thereof. Such amount shall accrue interest from the date Landlord pays such amount, pursuant to Section 3.04, below, shall include any penalties, late fees and any interest assessed due to such delinquency. Tenant or its accountants shall have the right to inspect, at reasonable time and in a reasonable manner, during the one hundred twenty (120) day period following the delivery of Landlord's statement of the actual amount of the Annual Rental Adjustment excluding Real Estate Taxes, such of Landlord's books of account and records as pertain to and contain information concerning such costs and expenses for the Building for the prior calendar year in order to verify the amounts thereof. In the event the first audit discloses (i) errors made during the prior calendar year which, when totaled, indicate that the sum overcharged to and paid by Tenant, exceeds five percent (5%) of the Annual Rental Adjustment excluding Real Estate Taxes plus Landlord's Share of Operating Expenses (the "Total Expenses"), the audit shall be at the expense of Landlord, not to exceed Two Thousand Five Hundred Dollars ($2,500.00), or (ii) no errors or an error which equals or is less than five percent (5%) of the Total Expenses, the audit shall be at the expense of Tenant. For each subsequent audit, where the audit discloses errors exceeding five percent (5%) of the Total Expenses, Landlord shall pay for such audit and, if the audit discloses errors equal to or less than five percent (5%) of the Total Expenses, Tenant shall pay the costs of the audit. If Landlord spends more than eight (8) hours to accommodate Tenant's right to audit hereunder, Tenant shall also pay to Landlord as additional rent Seventy-five Dollars ($75.00) per hour for each additional hour that Tenant's audit takes of Landlord's property manager's or asset manager's time, provided such audit discloses no error or an error greater than five percent (5%) of the Total Expenses. The results of the audit (regardless of the degree of the error, if any) shall be binding upon Landlord and Tenant, and Landlord shall thereafter, if appropriate, change its method of calculating the Operating Expenses consistent with the results of the audit. Tenant agrees to hold the information obtained from such audit confidential and shall not disclose the same without Landlord's express written permission except as necessary to enforce the Lease or protect Tenant's rights hereunder. If Tenant shall not elect to cause an audit within the time period permitted hereby, then Landlord's statement shall be conclusively deemed to have been approved and accepted by Tenant. Pending resolution of any dispute with respect to statements of Tenant's Annual Rental Adjustment, Tenant shall pay its Annual Rental Adjustment as shown on such statement, and upon final determination of the amount of Tenant's Annual Rental Adjustment, Landlord shall promptly refund any overpayment to Tenant or Tenant shall promptly pay any amount due to Landlord, as applicable.
Appears in 1 contract
Samples: Lease (Zix Corp)
Payment of Additional Rent. In addition Landlord shall have the right to ----------------------------- reasonably estimate the Operating Expenses for each Operating Year. Upon Landlord's or Agent's notice to Tenant of such estimated amount, Tenant shall pay, on the first day of each month during that Operating Year, an amount (the "Estimated ADDITIONAL RENT") equal to the Minimum Annual estimate of the Tenant's Proportionate Share of Operating Expenses divided by 12 (or the fractional portion of the Operating Year remaining at the time Landlord delivers its notice of the estimated amounts due from Tenant for that Operating Year). If the aggregate amount of Estimated Additional Rent specified in this Leaseactually paid by Tenant during any Operating Year is less than Tenant's actual ultimate liability for Operating Expenses for that particular Operating Year, Tenant shall pay to the deficiency within 30 days of Landlord's written demand therefore. If the aggregate amount of Estimated Additional Rent actually paid by Tenant during a given Operating Year exceeds Tenant's actual liability for such Operating Year, the excess shall be credited against the Estimated Additional Rent next due from Tenant during the immediately subsequent Operating Year, except that in the event that such excess is paid by Tenant during the final Lease Year, then upon the expiration of the Term, Landlord as "Additional Rent" or Agent shall pay Tenant the then-applicable excess promptly after determination thereof. Landlord, for the Leased Premisespurpose of paying for repairs, in each calendar year or partial calendar year, during the Lease Term, an amount equal maintenance and replacements to the Annual Rental Adjustment excluding Real Estate Taxes for such calendar year Premises or partial calendar year. In the case Property incurred on a periodic, but less frequent than annual, basis ("RESERVE EXPENSES") will establish a reserve (the "MAINTENANCE RESERVE") to which Tenant, simultaneously with the payment of the calendar year of the Commencement Date, Landlord shall provide such notice prior to the Commencement Date. The Annual Rental Adjustment excluding Real Estate Taxes shall be estimated annually by Landlord, and written notice thereof shall be given to Tenant prior to the beginning of each calendar year. Tenant shall pay to Landlord Estimated Additional Rent each month, at the same time the Monthly Rental Installment is due, shall contribute a monthly deposit in an amount equal to one-twelfth (1/12) reasonably determined by Landlord. Such deposits shall be applied on account of Reserve Expenses incurred by Landlord during the estimated Annual Rental Adjustment excluding Real Estate Taxes. If the cost of utility, janitorial or other services increase during a calendar year, Landlord may increase the estimated Annual Rental Adjustment excluding Real Estate Taxes during such year by giving Tenant written notice to that effect, and thereafter Tenant Term; any deficit shall pay to Landlord, in each of the remaining months of such year, an amount equal to the amount of such increase in the estimated Annual Rental Adjustment excluding Real Estate Taxes for the remainder of the year divided by the number of months remaining in such year. Within a reasonable time after the end of each calendar year, Landlord shall prepare and deliver to Tenant a statement showing the actual Annual Rental Adjustment excluding Real Estate Taxes. Within thirty (30) days after receipt of the aforementioned statement, Tenant shall pay to Landlord, or Landlord shall credit against the next rent payment or payments due from Tenant, as the case may be, the difference between the actual Annual Rental Adjustment excluding Real Estate Taxes for the preceding calendar year and the estimated amount be paid by Tenant to Landlord during such yearupon demand. In addition, Tenant shall pay, before delinquency, any and all Real Estate Taxes as defined in Section 3.02.D, above, directly to Upon the appropriate taxing authority. If Tenant fails for any reason to pay expiration or sooner termination of the Real Estate Taxes when same is due and payableLease, Landlord shall have retain such deposits to fund Reserve Expenses incurred after the right, but not the obligation, Term. No interest shall be payable to pay the Real Estate Taxes directly Tenant on account of payments of Estimated Additional Rent or deposits to the taxing authority and Tenant shall immediately reimburse Landlord for the cost thereof. Such amount shall accrue interest from the date Landlord pays such amount, pursuant to Section 3.04, below, shall include any penalties, late fees and any interest assessed due to such delinquency. Tenant or its accountants shall have the right to inspect, at reasonable time and in a reasonable manner, during the one hundred twenty (120) day period following the delivery of Landlord's statement of the actual amount of the Annual Rental Adjustment excluding Real Estate Taxes, such of Landlord's books of account and records as pertain to and contain information concerning such costs and expenses for the Building for the prior calendar year in order to verify the amounts thereof. In the event the first audit discloses (i) errors made during the prior calendar year which, when totaled, indicate that the sum overcharged to and paid by Tenant, exceeds five percent (5%) of the Annual Rental Adjustment excluding Real Estate Taxes plus Landlord's Share of Operating Expenses (the "Total Expenses"), the audit shall be at the expense of Landlord, not to exceed Two Thousand Five Hundred Dollars ($2,500.00), or (ii) no errors or an error which equals or is less than five percent (5%) of the Total Expenses, the audit shall be at the expense of Tenant. For each subsequent audit, where the audit discloses errors exceeding five percent (5%) of the Total Expenses, Landlord shall pay for such audit and, if the audit discloses errors equal to or less than five percent (5%) of the Total Expenses, Tenant shall pay the costs of the audit. If Landlord spends more than eight (8) hours to accommodate Tenant's right to audit hereunder, Tenant shall also pay to Landlord as additional rent Seventy-five Dollars ($75.00) per hour for each additional hour that Tenant's audit takes of Landlord's property manager's or asset manager's time, provided such audit discloses no error or an error greater than five percent (5%) of the Total Expenses. The results of the audit (regardless of the degree of the error, if any) shall be binding upon Landlord and TenantMaintenance Reserve, and Landlord shall thereafter, if appropriate, change its method of calculating the Operating Expenses consistent with the results of the audit. Tenant agrees to hold the information obtained from such audit confidential and shall not disclose the same without Landlord's express written permission except as necessary to enforce the Lease or protect Tenant's rights hereunder. If Tenant shall not elect to cause an audit within the time period permitted hereby, then Landlord's statement shall payments may be conclusively deemed to have been approved and accepted by Tenant. Pending resolution of any dispute with respect to statements of Tenant's Annual Rental Adjustment, Tenant shall pay its Annual Rental Adjustment as shown on such statement, and upon final determination of the amount of Tenant's Annual Rental Adjustment, Landlord shall promptly refund any overpayment to Tenant or Tenant shall promptly pay any amount due to Landlord, as applicablecommingled.
Appears in 1 contract
Samples: Data Call Technologies
Payment of Additional Rent. In addition Landlord shall have the right to reasonably estimate the Operating Expenses for each Operating Year. Upon Landlord’s or Agent’s notice to Tenant of such estimated amount, Tenant shall pay, on the first day of each month during that Operating Year, an amount (the “Estimated Additional Rent”) equal to the Minimum Annual estimate of the Operating Expenses divided by 12 (or the fractional portion of the Operating Year remaining at the time Landlord delivers its notice of the estimated amounts due from Tenant for that Operating Year). Landlord shall reconcile the Estimated Additional Rent specified in this Leaseand Tenant’s actual liability for Operating Expenses for each Operating Year within sixty (60) days of the conclusion of such Operating Year. If the aggregate amount of Estimated Additional Rent actually paid by Tenant during any Operating Year is less than Tenant’s actual liability for Operating Expenses for that particular Operating Year, Tenant shall pay to Landlord as "Additional Rent" for the Leased Premises, in each calendar year or partial calendar year, during the Lease Term, an amount equal to the Annual Rental Adjustment excluding Real Estate Taxes for such calendar year or partial calendar year. In the case of the calendar year of the Commencement Date, Landlord shall provide such notice prior to the Commencement Date. The Annual Rental Adjustment excluding Real Estate Taxes shall be estimated annually by Landlord, and written notice thereof shall be given to Tenant prior to the beginning of each calendar year. Tenant shall pay to Landlord each month, at the same time the Monthly Rental Installment is due, an amount equal to one-twelfth (1/12) of the estimated Annual Rental Adjustment excluding Real Estate Taxes. If the cost of utility, janitorial or other services increase during a calendar year, Landlord may increase the estimated Annual Rental Adjustment excluding Real Estate Taxes during such year by giving Tenant written notice to that effect, and thereafter Tenant shall pay to Landlord, in each of the remaining months of such year, an amount equal to the amount of such increase in the estimated Annual Rental Adjustment excluding Real Estate Taxes for the remainder of the year divided by the number of months remaining in such year. Within a reasonable time after the end of each calendar year, Landlord shall prepare and deliver to Tenant a statement showing the actual Annual Rental Adjustment excluding Real Estate Taxes. Within deficiency within thirty (30) days after receipt of Landlord’s written demand therefor. If the aforementioned statement, Tenant shall pay to Landlord, or Landlord shall credit against the next rent payment or payments due from Tenant, as the case may be, the difference between the actual Annual Rental Adjustment excluding Real Estate Taxes for the preceding calendar year and the estimated aggregate amount of Estimated Additional Rent actually paid by Tenant to during a given Operating Year exceeds Tenant’s actual liability for such Operating Year, the excess shall be credited against the Estimated Additional Rent next due from Tenant during the immediately subsequent Operating Year, except that in the event that such excess is paid by Tenant during the final Lease Year, then upon the expiration of the Term, Landlord during or Agent shall pay Tenant the then-applicable excess within thirty (30) days of the determination thereof, which determination shall be made no later than sixty (60) days after such yearexpiration. In addition, Tenant shall pay, before delinquency, any and all Real Estate Taxes as defined in Section 3.02.D, above, directly Notwithstanding anything contained herein to the appropriate taxing authority. If Tenant fails for any reason to pay the Real Estate Taxes when same is due and payablecontrary, Landlord shall have no obligation to hire, manage or arrange for the right, but not provision of goods and services in support of operations at the obligation, Premises. Tenant shall be responsible for negotiating with third parties to pay the Real Estate Taxes directly provide maintenance or operating services to the taxing authority and Tenant shall immediately reimburse Landlord for Premises. Notwithstanding anything to the cost thereof. Such amount shall accrue interest from the date Landlord pays such amountcontrary, pursuant to Section 3.04, below, shall include any penalties, late fees and any interest assessed due to such delinquency. Tenant or its accountants shall have the right to inspect, at reasonable time and in a reasonable manner, during the one hundred twenty (120) day period following the delivery of Landlord's statement of the actual amount of the Annual Rental Adjustment excluding Real Estate Taxes, such of Landlord's books of account and records as pertain to and contain information concerning such costs and expenses for the Building for the prior calendar year in order to verify the amounts thereof. In the event the first audit discloses (i) errors made during the prior calendar year which, when totaled, indicate that the sum overcharged to and paid by Tenant, exceeds five percent (5%) of the Annual Rental Adjustment excluding Real Estate Taxes plus Landlord's Share of Operating Expenses (the "Total Expenses"), the audit shall be at the expense of Landlord, not to exceed Two Thousand Five Hundred Dollars ($2,500.00), or (ii) no errors or an error which equals or is less than five percent (5%) of the Total Expenses, the audit shall be at the expense of Tenant. For each subsequent audit, where the audit discloses errors exceeding five percent (5%) of the Total ExpensesProperty has multiple tenants, Landlord shall pay be solely responsible for such audit and, if the audit discloses errors equal to or less than five percent (5%) maintenance and support of the Total ExpensesCommon Areas, Tenant shall pay the with costs of the audit. If Landlord spends more than eight (8) hours to accommodate Tenant's right to audit hereunder, Tenant shall also pay to Landlord as additional rent Seventy-five Dollars ($75.00) per hour for each additional hour that Tenant's audit takes of Landlord's property manager's or asset manager's time, provided such audit discloses no error or an error greater than five percent (5%) of the Total Expenses. The results of the audit (regardless of the degree of the error, if any) shall be binding upon Landlord and Tenant, and Landlord shall thereafter, if appropriate, change its method of calculating the arising therefrom being included in Operating Expenses consistent with the results of the audit. Tenant agrees to hold the information obtained from such audit confidential and shall not disclose the same without Landlord's express written permission except as necessary to enforce the Lease or protect Tenant's rights hereunder. If Tenant shall not elect to cause an audit within the time period permitted hereby, then Landlord's statement shall be conclusively deemed to have been approved and accepted by Tenant. Pending resolution of any dispute with respect to statements of Tenant's Annual Rental Adjustment, Tenant shall pay its Annual Rental Adjustment as shown on such statement, and upon final determination of the amount of Tenant's Annual Rental Adjustment, Landlord shall promptly refund any overpayment to Tenant or Tenant shall promptly pay any amount due to Landlord, as applicablea pro-rata basis.
Appears in 1 contract
Samples: Mq Associates Inc
Payment of Additional Rent. In addition to the Minimum Annual Rent specified in this Lease, Tenant shall pay to Landlord as "Additional Rent" for the Leased Premises, in each calendar year or partial calendar year, during the Lease Term, an amount equal to the Annual Rental Adjustment excluding Real Estate Taxes for such calendar year or partial calendar year. In the case of the calendar year of the Commencement Date, Landlord shall provide such have the right to reasonably estimate the Operating Expenses for each Operating Year. Upon Landlord’s or Agent’s notice prior to the Commencement Date. The Annual Rental Adjustment excluding Real Estate Taxes shall be estimated annually by Landlord, and written notice thereof shall be given to Tenant prior to the beginning of each calendar year. Tenant shall pay to Landlord each month, at the same time the Monthly Rental Installment is due, an amount equal to one-twelfth (1/12) of the estimated Annual Rental Adjustment excluding Real Estate Taxes. If the cost of utility, janitorial or other services increase during a calendar year, Landlord may increase the estimated Annual Rental Adjustment excluding Real Estate Taxes during such year by giving Tenant written notice to that effect, and thereafter Tenant shall pay to Landlord, in each of the remaining months of such year, an amount equal to the amount of such increase in the estimated Annual Rental Adjustment excluding Real Estate Taxes for the remainder of the year divided by the number of months remaining in such year. Within a reasonable time after the end of each calendar year, Landlord shall prepare and deliver to Tenant a statement showing the actual Annual Rental Adjustment excluding Real Estate Taxes. Within thirty (30) days after receipt of the aforementioned statement, Tenant shall pay to Landlord, or Landlord shall credit against the next rent payment or payments due from Tenant, as the case may be, the difference between the actual Annual Rental Adjustment excluding Real Estate Taxes for the preceding calendar year and the estimated amount paid by Tenant to Landlord during such year. In additionamount, Tenant shall pay, before delinquencyon the first day of each month during that Operating Year, any and all Real Estate Taxes as defined in Section 3.02.D, above, directly an amount (the “Estimated Additional Rent”) equal to the appropriate taxing authority. If Tenant fails for any reason to pay the Real Estate Taxes when same is due and payable, Landlord shall have the right, but not the obligation, to pay the Real Estate Taxes directly to the taxing authority and Tenant shall immediately reimburse Landlord for the cost thereof. Such amount shall accrue interest from the date Landlord pays such amount, pursuant to Section 3.04, below, shall include any penalties, late fees and any interest assessed due to such delinquency. Tenant or its accountants shall have the right to inspect, at reasonable time and in a reasonable manner, during the one hundred twenty (120) day period following the delivery of Landlord's statement estimate of the actual amount of the Annual Rental Adjustment excluding Real Estate Taxes, such of Landlord's books of account and records as pertain to and contain information concerning such costs and expenses for the Building for the prior calendar year in order to verify the amounts thereof. In the event the first audit discloses (i) errors made during the prior calendar year which, when totaled, indicate that the sum overcharged to and paid by Tenant, exceeds five percent (5%) of the Annual Rental Adjustment excluding Real Estate Taxes plus Landlord's ’s Proportionate Share of Operating Expenses divided by 12 (or the "Total Expenses"), fractional portion of the audit shall be Operating Year remaining at the expense time Landlord delivers its notice of Landlordthe estimated amounts due from Tenant for that Operating Year). Landlord may during the course of any Operating Year, not redetermine the amount of its estimate of Operating Expenses for such Operating Year and adjust the amount of Estimated Additional Rent accordingly, whereupon Tenant shall pay the adjusted Estimated Additional Rent from and after the first day of the month following the month in which Landlord delivers to exceed Two Thousand Five Hundred Dollars ($2,500.00), or (ii) no errors or an error which equals or Tenant written notice of such adjustment of Estimated Additional Rent. If the aggregate amount of Estimated Additional Rent actually paid by Tenant during any Operating Year is less than five percent (5%) of the Total Expenses, the audit shall be at the expense of Tenant. For each subsequent audit, where the audit discloses errors exceeding five percent (5%) of the Total Expenses, Landlord shall pay ’s actual ultimate liability for such audit and, if the audit discloses errors equal to or less than five percent (5%) of the Total ExpensesOperating Expenses for that particular Operating Year, Tenant shall pay the costs deficiency within 30 days of Landlord’s written demand therefor. If the aggregate amount of Estimated Additional Rent actually paid by Tenant during a given Operating Year exceeds Tenant’s actual liability for such Operating Year, the excess shall be credited against the Estimated Additional Rent next due from Tenant during the immediately subsequent Operating Year, except that in the event that such excess is paid by Tenant during the final Lease Year, then upon the expiration of the auditTerm, Landlord or Agent shall pay Tenant the then-applicable excess promptly after determination thereof. No interest shall be payable to Tenant on account of payments of Estimated Additional Rent or deposits to the Maintenance Reserve, and such payments may be commingled. If there exists any dispute as to (i) the amount of Additional Rent, (ii) whether a particular expense is properly included in Additional Rent or (iii) Landlord’s calculation of Additional Rent (each an “Additional Rent Dispute”), the events, errors, acts or omissions giving rise to such Additional Rent Dispute shall not constitute a breach or default by Landlord spends more than eight (8) hours to accommodate Tenant's right to audit hereunderunder this Lease and even if a judgment resolving the Additional Rent Dispute is entered against Landlord, Tenant this Lease shall also pay to Landlord as additional rent Seventy-five Dollars ($75.00) per hour for each additional hour that Tenant's audit takes of Landlord's property manager's or asset manager's time, provided such audit discloses no error or an error greater than five percent (5%) of the Total Expenses. The results of the audit (regardless of the degree of the error, if any) shall be binding upon Landlord remain in full force and Tenant, effect and Landlord shall thereafternot be liable for any consequential damages resulting from the event, if appropriateerror, change its method act or omission giving rise to such Additional Rent Dispute. Notwithstanding the existence of calculating the Operating Expenses consistent with the results of the audit. Tenant agrees to hold the information obtained from such audit confidential and shall not disclose the same without Landlord's express written permission except as necessary to enforce the Lease or protect Tenant's rights hereunder. If Tenant shall not elect to cause an audit within the time period permitted hereby, then Landlord's statement shall be conclusively deemed to have been approved and accepted by Tenant. Pending resolution of any dispute with respect to statements of Tenant's Annual Rental AdjustmentAdditional Rent Dispute, Tenant shall pay its Annual Rental Adjustment as shown on such statement, and upon final determination of timely the amount of Additional Rent which is in dispute and will continue to make all subsequent payments of Additional Rent as and when required under this Lease, provided that the payment of such disputed amount and other amounts shall be without prejudice to Tenant's Annual Rental Adjustment, Landlord shall promptly refund any overpayment to Tenant or Tenant shall promptly pay any amount due to Landlord, as applicable’s position.
Appears in 1 contract
Samples: Liquidity Services Inc
Payment of Additional Rent. In addition Landlord shall estimate in good faith the total amount of Additional Rent to the Minimum Annual Rent specified in this Lease, be paid by Tenant shall pay to Landlord as "Additional Rent" for the Leased Premises, in during each calendar year or partial calendar year, during of the Lease Term, an pro-rated for any partial years. Landlord’s estimate of the amount equal to the Annual Rental Adjustment excluding Real Estate Taxes of Additional Rent for such calendar year or partial calendar year. In the case of the calendar year 2004 is $1.34 per rentable square foot of the Leased Premises. Tenant acknowledges that said amount is only an estimate and agrees to reimburse Landlord for the actual amount of Additional Rent payable by Tenant under the Lease in accordance with this Section 3.03. Commencing on the Commencement Date, Landlord shall provide such notice prior to the Commencement Date. The Annual Rental Adjustment excluding Real Estate Taxes shall be estimated annually by Landlord, and written notice thereof shall be given to Tenant prior to the beginning of each calendar year. Tenant shall pay to Landlord each month, at the same time the Monthly Rental Installment is due, an amount equal to one-twelfth (1/12) of the estimated Annual Rental Adjustment excluding Real Estate Taxes. If the cost of utility, janitorial or other services increase during a calendar year, Landlord may increase the estimated Annual Rental Adjustment excluding Real Estate Taxes during such year by giving Tenant written notice to that effect, and thereafter Tenant shall pay to Landlord, in each of the remaining months of such year, an amount equal to the amount of such increase in the estimated Annual Rental Adjustment excluding Real Estate Taxes Additional Rent for the remainder of the year divided by the number of months remaining in such year. Within a reasonable time one hundred twenty (120) days after the end of each calendar year, Landlord shall prepare and deliver submit to Tenant a reasonably itemized statement showing of the actual Annual Rental Adjustment excluding Real Estate Taxes. Within amount of Additional Rent for such calendar year and within thirty (30) days after receipt of the aforementioned such statement, Tenant shall pay to Landlordany deficiency between the actual amount owed and the estimates paid during such calendar year. In the event of overpayment, or Landlord shall credit against the amount of such overpayment toward the next rent payment installments of Minimum Rent. Tenant, at its sole cost and expense, shall have the right (to be exercised by giving written notice to Landlord within thirty (30) days after receipt of Landlord’s statement) to audit and/or inspect Landlord’s books and records pertaining only to items affecting Operating Expenses for such previous calendar year. Such audit and/or inspection must be conducted during Landlord’s normal business hours (and only after Tenant gives Landlord fifteen (15) days prior written notice) and commenced and concluded by no later than ninety (90) days after Tenant’s receipt of Landlord’s statement; and provided further that such audit and/or inspection does not unreasonably interfere with the conduct of Landlord’s business. Tenant shall deliver to Landlord a copy of the results of such audit within five (5) days of its receipt by Tenant. If Landlord and Tenant agree that Landlord’s calculation of Tenant’s share of Operating Expenses for the inspected calendar year was incorrect, the parties shall enter into a written agreement confirming such error and then, and only then, Tenant shall be entitled to a credit against future Minimum Annual Rent for said overpayment (or payments due from Tenanta refund of any overpayment if the Lease Term has expired) or Tenant shall pay to Landlord the amount of any underpayment, as the case may be, . If the difference between results of the actual Annual Rental Adjustment excluding Real Estate Taxes for the preceding calendar year and the estimated amount paid audit indicate errors showing an overpayment of Operating Expenses by Tenant to Landlord during such year. In addition, Tenant shall pay, before delinquency, any and all Real Estate Taxes as defined in Section 3.02.D, above, directly to the appropriate taxing authority. If Tenant fails for any reason to pay the Real Estate Taxes when same is due and payable, Landlord shall have the right, but not the obligation, to pay the Real Estate Taxes directly to the taxing authority and Tenant shall immediately reimburse Landlord for the cost thereof. Such amount shall accrue interest from the date Landlord pays such amount, pursuant to Section 3.04, below, shall include any penalties, late fees and any interest assessed due to such delinquency. Tenant or its accountants shall have the right to inspect, at reasonable time and in a reasonable manner, during the one hundred twenty (120) day period following the delivery of Landlord's statement of the actual amount of the Annual Rental Adjustment excluding Real Estate Taxes, such of Landlord's books of account and records as pertain to and contain information concerning such costs and expenses for the Building for the prior calendar year in order to verify the amounts thereof. In the event the first audit discloses (i) errors made during the prior calendar year which, when totaled, indicate that the sum overcharged to and paid by Tenant, exceeds more than five percent (5%) of the Annual Rental Adjustment excluding Real Estate Taxes plus Landlord's Share annual Operating Expenses, then Landlord shall pay for the cost and expense of Operating Expenses Tenant’s independent professionals, if any, conducting such audit, not to exceed Three Thousand and No/100 Dollars ($3,000.00), or if the "Total Expenses"results of the audit indicate no errors or an error which equals or is less than five percent (5%), the audit shall be at the expense of LandlordTenant. If Landlord spends more than eight (8) hours to accommodate Tenant’s right to audit hereunder, not Tenant shall also pay to exceed Landlord as Additional Rent Two Thousand Five Hundred Dollars ($2,500.00)200.00) per hour for each hour that Tenant’s audit takes of Landlord’s property manager’s or asset manager’s time, or (ii) provided such audit discloses no errors error or an error which equals or is less than five percent (5%) of the Total Expensesannual Additional Rent amount. All of the information obtained through Tenant’s inspection with respect to financial matters (including, without limitation, costs, expenses and income) and any other matters pertaining to Landlord, the audit shall be at Leased Premises, the expense of Tenant. For each subsequent auditBuilding and/or the Park as well as any compromise, where the audit discloses errors exceeding five percent (5%) of the Total Expenses, Landlord shall pay for such audit and, if the audit discloses errors equal to settlement or less than five percent (5%) of the Total Expenses, Tenant shall pay the costs of the audit. If Landlord spends more than eight (8) hours to accommodate Tenant's right to audit hereunder, Tenant shall also pay to Landlord as additional rent Seventy-five Dollars ($75.00) per hour for each additional hour that Tenant's audit takes of Landlord's property manager's or asset manager's time, provided such audit discloses no error or an error greater than five percent (5%) of the Total Expenses. The results of the audit (regardless of the degree of the error, if any) shall be binding upon adjustment reached between Landlord and Tenant, and Landlord shall thereafter, if appropriate, change its method of calculating the Operating Expenses consistent with Tenant relative to the results of the auditinspection shall be held in strict confidence by Tenant and its officers, agents, and employees; and Tenant shall cause its independent professionals and any of its officers, agents or employees to be similarly bound. The obligations of Tenant in the preceding sentence shall survive the expiration or earlier termination of the Lease. Tenant agrees may conduct such review by its own staff or consultants or may use a qualified independent certified public accountant designated by Tenant to hold aid Tenant in conducting the information obtained from such audit confidential and audit; provided that in no event shall not disclose the same without Landlord's express written permission except as necessary to enforce the Lease Tenant use any contingent fee-based auditor or protect Tenant's rights hereunder. If Tenant shall not elect to cause an audit within the time period permitted hereby, then Landlord's statement shall be conclusively deemed to have been approved and accepted by Tenant. Pending resolution of any dispute with respect to statements of Tenant's Annual Rental Adjustment, Tenant shall pay its Annual Rental Adjustment as shown on such statement, and upon final determination of the amount of Tenant's Annual Rental Adjustment, Landlord shall promptly refund any overpayment to Tenant or Tenant shall promptly pay any amount due to Landlord, as applicableconsultant.
Appears in 1 contract
Samples: Lease Agreement (Cellstar Corp)
Payment of Additional Rent. In addition to the Minimum Annual Rent specified in (1) Upon commencement of this Lease, Landlord shall submit to Tenant an estimate of monthly Additional Rent for the period between the Commencement Date and the following December 31 and Tenant shall pay to Landlord as "such estimated Additional Rent" for the Leased PremisesRent on a monthly basis, in each calendar year or partial calendar yearadvance, during on the Lease Term, an amount equal to the Annual Rental Adjustment excluding Real Estate Taxes for such calendar year or partial calendar year. In the case of the calendar year of the Commencement Date, Landlord shall provide such notice prior to the Commencement Date. The Annual Rental Adjustment excluding Real Estate Taxes shall be estimated annually by Landlord, and written notice thereof shall be given to Tenant prior to the beginning first day of each calendar yearmonth. Tenant shall pay continue to make said monthly payments until notified by Landlord each month, at the same time the Monthly Rental Installment is due, an amount equal to one-twelfth (1/12) of the estimated Annual Rental Adjustment excluding Real Estate Taxesa change therein. If at any time or times Landlord reasonably determines that the cost of utilityamounts payable under Paragraph 4(b) for the current year will vary from Landlord's estimate given to Tenant, janitorial or other services increase during a calendar yearLandlord, Landlord may increase the estimated Annual Rental Adjustment excluding Real Estate Taxes during such year by giving Tenant written notice to that effectTenant, and thereafter Tenant shall pay to Landlord, in each of may revise the remaining months of estimate for such year, an amount equal to the amount of and subsequent payments by Tenant for such increase in the estimated Annual Rental Adjustment excluding Real Estate Taxes for the remainder of the year divided by the number of months remaining in shall be based upon such yearrevised estimate. Within a reasonable time after the end By April 1 of each calendar year, Landlord shall prepare and deliver endeavor to provide to Tenant a statement ("EXPENSE STATEMENT") showing the actual Annual Rental Adjustment excluding Real Estate TaxesAdditional Rent due to Landlord for the prior calendar year, to be prorated during the first year from the Commencement Date and during the last year to the Expiration Date. Within If the total of the monthly payments of Additional Rent that Tenant has made for the prior calendar year is less than the actual Additional Rent chargeable to Tenant for such prior calendar year, then Tenant shall pay the difference in a lump sum within thirty (30) days after receipt of the aforementioned statement, such Expense Statement from Landlord. Any overpayment by Tenant shall pay to Landlord, or Landlord shall credit against the next rent payment or payments due from Tenant, as the case may be, the difference between the actual Annual Rental Adjustment excluding Real Estate Taxes of Additional Rent for the preceding prior calendar year and shall be credited towards the estimated amount paid by Tenant to Landlord during such year. In additionAdditional Rent next due or, Tenant shall pay, before delinquency, any and all Real Estate Taxes as defined in Section 3.02.D, above, directly with respect to the appropriate taxing authority. If last year of the Term, paid to Tenant fails for any reason to pay the Real Estate Taxes when same is due and payable, Landlord shall have the right, but not the obligation, to pay the Real Estate Taxes directly to the taxing authority and Tenant shall immediately reimburse Landlord for the cost thereof. Such amount shall accrue interest from the date Landlord pays such amount, pursuant to Section 3.04, below, shall include any penalties, late fees and any interest assessed due to such delinquency. Tenant or its accountants shall have the right to inspect, at reasonable time and in a reasonable manner, during the one hundred twenty (120) day period following concurrently with the delivery of Landlord's statement of the actual amount of the Annual Rental Adjustment excluding Real Estate Taxes, such of Landlord's books of account and records as pertain to and contain information concerning such costs and expenses for the Building for the prior calendar year in order to verify the amounts thereof. In the event the first audit discloses (i) errors made during the prior calendar year which, when totaled, indicate that the sum overcharged to and paid by Tenant, exceeds five percent (5%) of the Annual Rental Adjustment excluding Real Estate Taxes plus Landlord's Share of Operating Expenses (the "Total Expenses"), the audit shall be at the expense of Landlord, not to exceed Two Thousand Five Hundred Dollars ($2,500.00), or (ii) no errors or an error which equals or is less than five percent (5%) of the Total Expenses, the audit shall be at the expense of Tenant. For each subsequent audit, where the audit discloses errors exceeding five percent (5%) of the Total Expenses, Landlord shall pay for such audit and, if the audit discloses errors equal to or less than five percent (5%) of the Total Expenses, Tenant shall pay the costs of the audit. If Landlord spends more than eight (8) hours to accommodate Tenant's right to audit hereunder, Tenant shall also pay to Landlord as additional rent Seventy-five Dollars ($75.00) per hour for each additional hour that Tenant's audit takes of Landlord's property manager's or asset manager's time, provided such audit discloses no error or an error greater than five percent (5%) of the Total Expenses. The results of the audit (regardless of the degree of the error, if any) shall be binding upon Landlord and Tenant, and Landlord shall thereafter, if appropriate, change its method of calculating the Operating Expenses consistent with the results of the audit. Tenant agrees to hold the information obtained from such audit confidential and shall not disclose the same without Landlord's express written permission except as necessary to enforce the Lease or protect Tenant's rights hereunder. If Tenant shall not elect to cause an audit within the time period permitted hereby, then Landlord's statement shall be conclusively deemed to have been approved and accepted by Tenant. Pending resolution of any dispute with respect to statements of Tenant's Annual Rental Adjustment, Tenant shall pay its Annual Rental Adjustment as shown on such statement, and upon final determination of the amount of Tenant's Annual Rental Adjustment, Landlord shall promptly refund any overpayment to Tenant or Tenant shall promptly pay any amount due to Landlord, as applicableExpense Statement.
Appears in 1 contract
Samples: Lease Agreement (Affymetrix Inc)
Payment of Additional Rent. In addition Landlord shall furnish Tenant, at least thirty (30) days prior to the Minimum Annual Rent specified in this Leasecommencement of each Calendar Year and from time to time (but not more than twice) during each such Calendar Year, written statements setting forth Landlord’s then-current reasonable estimate of Tenant’s Expense Participation Amount for such Calendar Year. Tenant shall pay to Landlord as "Additional Rent" for Rent on the Leased Premises, in each calendar year or partial calendar year, during the Lease Term, an amount equal to the Annual Rental Adjustment excluding Real Estate Taxes for such calendar year or partial calendar year. In the case of the calendar year of the Commencement Date, Landlord shall provide such notice prior to the Commencement Date. The Annual Rental Adjustment excluding Real Estate Taxes shall be estimated annually by Landlord, and written notice thereof shall be given to Tenant prior to the beginning first thy of each calendar year. Tenant shall pay to Landlord month during each monthCalendar Year, at together with the same time the Monthly Rental Installment is duepayment of Base Rent, if any, an amount equal to one-twelfth (1/121/12th) of Landlord’s then-current reasonable estimate of Tenant’s Proportionate Share Operating Expenses - Office Tower of Operating Expenses for the estimated Annual Rental Adjustment excluding Real Estate TaxesOffice Tower for such Calendar Year and one-twelfth (1/12th) of Landlord’s then-current reasonable estimate of Tenant’s Proportionate Share Operating Expenses - Retail Space of Operating Expenses for the Retail Space for such Calendar Year, plus any amounts that would have been paid for months prior to the current month if Landlord’s current estimate had been in effect during those months. If the cost of utility, janitorial or other services increase during a calendar year, Landlord may increase the estimated Annual Rental Adjustment excluding Real Estate Taxes during such year by giving Tenant written notice to that effect, and thereafter Tenant shall pay to Landlord not later than fifteen (15) days prior to the date on which Taxes are required to be paid by Landlord, in Tenant’s Proportionate Share Taxes - Office Tower of Taxes payable for the Office Tower and Tenant’s Proportionate Share Taxes - Retail Space of Taxes payable for the Retail Space for each Calendar Year. Landlord shall provide Tenant with a copy of the remaining most recent Tax bills for the Office Tower and Retail Space and a statement indicating Tenant’s Proportionate Share Taxes - Office Tower of Taxes for the Office Tower and Tenant’s Proportionate Share Taxes - Retail Space of Taxes for the Retail Space at least forty (40) days prior to the date such Taxes are due. In addition to the foregoing, for the first twelve (12) months of the Term, on the first day of each such yearmonth, Tenant shall pay to Landlord an amount equal to the amount sum of such increase in the estimated Annual Rental Adjustment excluding Real Estate (1) one twenty-fourth (1/24th) of Tenant’s Proportionate Share Taxes - Office Tower of Taxes for the remainder Office Tower which were paid for Calendar Year 1996 and (ii) one-twenty fourth (1124th) of Tenant’s Proportionate Share Taxes - Retail Space of Taxes for the year divided by Retail Space which were paid for Calendar Year 1996 (said sum, the number “Tax Escrow”). Landlord shall place the Tax Escrow in a separate account, invest such payments in reasonable and liquid securities at the direction of months remaining in such yearTenant and at Tenant’s expense. Within a reasonable time after Following the end final payment of Taxes payable for the Calendar Year 1997 and each calendar yearsubsequent Calendar Year, Landlord shall prepare notify Tenant of any Increases in Taxes from the prior Calendar Year and deliver shall apply for Tenant’s benefit any interest earned on the amount held in the Tax Escrow during the prior Calendar Year, and shall remit any excess interest to Tenant, or request Tenant a statement showing to fund any shortfall into the actual Annual Rental Adjustment excluding Real Estate Tax Escrow, so that at all times the Tax Escrow shall contain at lease one half of the amount of Tenant’s Proportionate Share Taxes - Office Tower of Taxes for the Office Tower and Tenant’s Proportionate Share Taxes - Retail Space of Taxes for the Retail Space paid for the then most recent Calendar Year. Tenant shall deposit into the Tax Escrow any such shortfall amount within thirty (30) days of Landlord’s request. If Tenant fails to pay to Landlord Tenant’s Proportionate Share - Office Tower of Taxes for the Office Tower and Tenant’s Proportionate Share Taxes - Retail Space of Taxes for the Retail Space for the Calendar Year when due as provided herein, Landlord may apply the Tax Escrow to the amount of Taxes owed by Tenant. If any portion of the Tax Escrow is applied to the payment of Taxes. Within , Tenant shall, within thirty (30) days after receipt the written request of Landlord, pay to l an amount sufficient to replenish the aforementioned statementTax Escrow to its original level. On the Termination Date, Tenant shall pay into the Tax Escrow an amount necessary to Landlord, or Landlord shall credit against increase the next rent payment or payments due from Tax Escrow to the amount of Tenant, as the case may be, the difference between the actual Annual Rental Adjustment excluding Real Estate ’s Proportionate Share Taxes - Office Tower of Taxes for the preceding calendar year Office Tower and Tenant’s Proportionate Share Taxes - Retail Space of Taxes for the estimated Retail Space for Taxes which have accrued in the Calendar Year in which the Termination Date occurs through the Termination Date. Landlord shall use the Tax Escrow for the payment of Tenant’s share of Taxes for the final Calendar Year of the Term and shall pay any excess remaining in the Tax Escrow (and any interest earned thereon) to Tenant within thirty (30) days. If Tenant’s share of Taxes for the final Calendar Year of the Term exceeds the amount paid by held in the Tax Escrow, Tenant shall, within thirty (30) days after the written request of landlord, pay such excess to Landlord during such yearLandlord. In additionNotwithstanding anything to the contrary contained herein, Tenant shall paypay Tenant’s Proportionate Share Taxes - Office Tower of 1997 Taxes for the Office Tower and Tenant’s Proportionate Share Taxes - Retail Space of 1997 Taxes for the Retail Space for the entire Calendar Year 1997, before delinquency, any regardless of when the Commencement Date of this Lease actually occurs. Tenant also agrees that it shall remain responsible for Tenant’s Proportionate Share Taxes - Office Tower and all Real Estate Tenant’s Proportionate Share Taxes as defined in Section 3.02.D, above, directly to the appropriate taxing authority. If Tenant fails - Retail Space for any reason Contraction Space with respect to pay which Tenant has exercised its option under Section 31 for the Real Estate Taxes when same Calendar Year in which such Contraction Space is due vacated by Tenant through the applicable Contraction Date, although payable in the subsequent Calendar Year. Landlord agrees to keep true and payableaccurate records of all Operating Expenses. Prior to May 1 of each Calendar Year, Landlord shall have submit to Tenant a detailed statement certified by a certified public accountant (the right, but not the obligation, to pay the Real Estate Taxes directly to the taxing authority and Tenant shall immediately reimburse Landlord for the cost thereof. Such amount shall accrue interest from the date Landlord pays such amount, pursuant to Section 3.04, below, shall include any penalties, late fees and any interest assessed due to such delinquency. Tenant or its accountants shall have the right to inspect, at reasonable time and in a reasonable manner, during the one hundred twenty TM Statement”) setting faith (120A) day period following the delivery of Landlord's statement of the actual amount of the Annual Rental Adjustment excluding Real Estate Taxes, such of Landlord's books of account Operating Expenses and records as pertain to and contain information concerning such costs and expenses Taxes for the Building for the prior calendar year in order to verify the amounts thereof. In the event the first audit discloses previous Calendar Year, (iB) errors made during the prior calendar year which, when totaled, indicate that the sum overcharged to and paid by Tenant, exceeds five percent (5%) of the Annual Rental Adjustment excluding Real Estate Taxes plus Landlord's Share of Operating Expenses (the "Total Expenses"), the audit shall be at the expense of Landlord, not to exceed Two Thousand Five Hundred Dollars ($2,500.00), or (ii) no errors or an error which equals or is less than five percent (5%) of the Total Expenses, the audit shall be at the expense of Tenant. For each subsequent audit, where the audit discloses errors exceeding five percent (5%) of the Total Expenses, Landlord shall pay for such audit and, if the audit discloses errors equal to or less than five percent (5%) of the Total Expenses, Tenant shall pay the costs of the audit. If Landlord spends more than eight (8) hours to accommodate Tenant's right to audit hereunder, Tenant shall also pay to Landlord as additional rent Seventy-five Dollars ($75.00) per hour for each additional hour that Tenant's audit takes of Landlord's property manager's or asset manager's time, provided such audit discloses no error or an error greater than five percent (5%) of the Total Expenses. The results of the audit (regardless of the degree of the error, if any) shall be binding upon Landlord and Tenant, and Landlord shall thereafter, if appropriate, change its method of calculating the Operating Expenses consistent with the results of the audit. Tenant agrees to hold the information obtained from such audit confidential and shall not disclose the same without Landlord's express written permission except as necessary to enforce the Lease or protect Tenant's rights hereunder. If Tenant shall not elect to cause an audit within the time period permitted hereby, then Landlord's statement shall be conclusively deemed to have been approved and accepted by Tenant. Pending resolution of any dispute with respect to statements of Tenant's Annual Rental Adjustment, Tenant shall pay its Annual Rental Adjustment as shown on such statement, and upon final determination of the amount of Tenant's Annual Rental Adjustment’s Expense Participation Amount on account of such previous Calendar Year and (C) the payments made by Tenant on account thereof. If the installments made on account of such previous Calendar Year exceed Tenant’s Expense Participation Amount due on account of such Calendar Year, as shown on the Operating Statement, such excess shall be credited by Landlord against the next succeeding installment(s) of Tenant’s Expense Participation Amount; provided if Tenant is not in default under this Lease, Landlord shall promptly at Tenant’s request refund any overpayment such excess to Tenant or Tenant shall promptly pay any amount within thirty (30) days of such request. If, however, said installment(s) are less than Tenant’s Expense Participant Amount due to Landlordon account of such Calendar Year, as applicableshown on the Operating Statement, then Tenant agrees to pay to Landlord the amount necessary to make up any deficiency within thirty (30) days after the delivery of the Operating Statement to Tenant.
Appears in 1 contract
Payment of Additional Rent. In addition Landlord will make a good faith estimate of the Additional Rent to be due from Tenant for all or part of any calendar year during the Minimum Annual Rent specified in this LeaseTerm, and Tenant shall agrees to pay to Landlord as "Additional Rent" for Landlord, commencing on the Leased Premises, in Commencement Date and on the first day of each subsequent calendar year or partial calendar year, month during the Lease Term, an amount equal to 1/12th of the Annual Rental Adjustment excluding Real Estate Taxes estimated Additional Rent for such calendar year full or partial calendar year. In the case of the calendar year of the Commencement DateFrom time to time, Landlord shall provide such notice prior to the Commencement Date. The Annual Rental Adjustment excluding Real Estate Taxes shall be estimated annually by Landlord, and written notice thereof shall be given to Tenant prior to the beginning of each calendar year. Tenant shall pay to Landlord each month, at the same time the Monthly Rental Installment is due, an amount equal to one-twelfth (1/12) of the estimated Annual Rental Adjustment excluding Real Estate Taxes. If the cost of utility, janitorial or other services increase but no more than once during a any calendar year, Landlord may increase estimate the estimated Annual Rental Adjustment excluding Real Estate Taxes during such year by giving Additional Rent to be due from Tenant written notice to that effect, and thereafter Tenant shall pay to Landlord, in each deliver a copy of the remaining months estimate to Tenant. Subsequently, the monthly installments of such year, an amount equal to Additional Rent payable by Tenant will be appropriately adjusted in accordance with Landlord’s estimations so that by the amount of such increase in the estimated Annual Rental Adjustment excluding Real Estate Taxes for the remainder end of the calendar year divided in question Tenant will have paid all of the Additional Rent as estimated by the number of months remaining in such yearLandlord. Within a reasonable time after the end By May 1 of each calendar year, or as soon after that date as practicable but no later than June 30, Landlord shall prepare and deliver will furnish to Tenant a statement showing of Operating Costs paid for the previous year (the “Operating Costs Statement”) and a statement of the Taxes paid for the previous year (the “Tax Statement”). If the Operating Costs Statement and/or the Tax Statement reveal(s) that Tenant paid more in Operating Costs Adjustment or Tax Adjustment than the actual Annual Rental amount for the year for which such statement was prepared, then Landlord will promptly pay Tenant an amount equal to such overpayment. Likewise, if Tenant paid less in Operating Costs Adjustment excluding Real Estate Taxes. Within or Tax Adjustment than the actual amount for the year for which such statement was prepared, then Tenant shall pay such deficiency to Landlord within thirty (30) days after receipt of Landlord’s demand so long as such demand is made in writing within three (3) years after the aforementioned statement, Tenant shall pay to Landlord, or Landlord shall credit against the next rent payment or payments due from Tenant, as the case may be, the difference between the actual Annual Rental Adjustment excluding Real Estate Taxes for the preceding calendar year and the estimated amount paid by Tenant to Landlord during such year. In addition, Tenant shall pay, before delinquency, any and all Real Estate Taxes as defined in Section 3.02.D, above, directly to the appropriate taxing authority. If Tenant fails for any reason to pay the Real Estate Taxes when same is due and payable, Landlord shall have the right, but not the obligation, to pay the Real Estate Taxes directly to the taxing authority and Tenant shall immediately reimburse Landlord for the cost thereof. Such amount shall accrue interest from the date Landlord pays such amount, pursuant to Section 3.04, below, shall include any penalties, late fees and any interest assessed due to such delinquency. Tenant or its accountants shall have the right to inspect, at reasonable time and in a reasonable manner, during the one hundred twenty (120) day period following the delivery of Landlord's statement of the actual amount of the Annual Rental Adjustment excluding Real Estate Taxes, such of Landlord's books of account and records as pertain to and contain information concerning such costs and expenses for the Building for the prior calendar year in order to verify which such underpayment occurred. This provision will survive the amounts thereof. In the event the first audit discloses (i) errors made during the prior calendar year which, when totaled, indicate that the sum overcharged to and paid by Tenant, exceeds five percent (5%) Termination Date of the Annual Rental Adjustment excluding Real Estate Taxes plus Landlord's Share of Operating Expenses (the "Total Expenses"), the audit shall be at the expense of Landlord, not to exceed Two Thousand Five Hundred Dollars ($2,500.00), or (ii) no errors or an error which equals or is less than five percent (5%) of the Total Expenses, the audit shall be at the expense of Tenant. For each subsequent audit, where the audit discloses errors exceeding five percent (5%) of the Total Expenses, Landlord shall pay for such audit and, if the audit discloses errors equal to or less than five percent (5%) of the Total Expenses, Tenant shall pay the costs of the audit. If Landlord spends more than eight (8) hours to accommodate Tenant's right to audit hereunder, Tenant shall also pay to Landlord as additional rent Seventy-five Dollars ($75.00) per hour for each additional hour that Tenant's audit takes of Landlord's property manager's or asset manager's time, provided such audit discloses no error or an error greater than five percent (5%) of the Total Expenses. The results of the audit (regardless of the degree of the error, if any) shall be binding upon Landlord and Tenant, and Landlord shall thereafter, if appropriate, change its method of calculating the Operating Expenses consistent with the results of the audit. Tenant agrees to hold the information obtained from such audit confidential and shall not disclose the same without Landlord's express written permission except as necessary to enforce the Lease or protect Tenant's rights hereunder. If Tenant shall not elect to cause an audit within the time period permitted hereby, then Landlord's statement shall be conclusively deemed to have been approved and accepted by Tenant. Pending resolution of any dispute with respect to statements of Tenant's Annual Rental Adjustment, Tenant shall pay its Annual Rental Adjustment as shown on such statement, and upon final determination of the amount of Tenant's Annual Rental Adjustment, Landlord shall promptly refund any overpayment to Tenant or Tenant shall promptly pay any amount due to Landlord, as applicablethis Lease.
Appears in 1 contract
Payment of Additional Rent. In addition Subject to the Minimum Annual Rent specified limits in this Leaseparagraph 10.5 below, Tenant shall pay its actual Prorata Share of Taxes (as defined herein) (see paragraph 10.2) and its share of CAM costs (see paragraph 10.3) to Landlord as "Additional Rent" for the Leased Premises, in each calendar year or partial calendar year, during the Lease Term, an amount equal to the Annual Rental Adjustment excluding Real Estate Taxes for such calendar year or partial calendar year. In the case of the calendar year of the Commencement Date, Landlord shall provide such notice prior to periods after the Commencement Date. The Annual Rental Adjustment excluding Real Estate Tenant shall pay its share of Taxes shall be estimated annually by Landlord, and written notice thereof shall be given to within thirty (30) days after Tenant prior to receives a copy of the beginning of each calendar yearpaid Tax xxxx. Tenant shall pay to Landlord its share of CAM costs on the first day of each month, at commencing on the same time Rent Commencement Date and continuing on a monthly basis throughout the Monthly Rental Installment is due, an amount Lease Term. Tenant’s monthly payments shall be equal to one-twelfth (1/12) of Tenant’s actual CAM cost payment for the estimated Annual Rental Adjustment excluding Real Estate Taxes. If the cost of utility, janitorial or other services increase during a calendar previous year, Landlord may increase but for the estimated Annual Rental Adjustment excluding Real Estate Taxes during such period from the Commencement Date until the end of the first full calendar year by giving Tenant written notice to after that effect, and thereafter date Tenant shall pay to Landlord, make estimated monthly payments in each of the remaining months of such year, an amount equal reasonably determined by Landlord prior to the amount of such increase in the estimated Annual Rental Adjustment excluding Real Estate Taxes for the remainder of the year divided by the number of months remaining in such yearCommencement Date. Within a reasonable time 120 days after the end expiration of each calendar year, Landlord shall prepare and deliver furnish to Tenant a Landlord’s annual statement showing the actual Annual Rental Adjustment excluding Real Estate Taxesof expenses, itemized by category (“Landlord’s Reconciliation”) and such other documentation as Tenant reasonably requests. Within Tenant shall pay to Landlord within thirty (30) days after Tenant’s receipt of Landlord’s Reconciliation any outstanding deficiency for the aforementioned statementforegoing calendar year. If Landlord’s Reconciliation reflects an overpayment by Tenant for the calendar year, Tenant shall pay be given a credit against CAM costs for the ensuing calendar year (or in the last year of the Lease Term, Tenant shall be given a cash refund of overpayment within thirty (30) days after the date of receipt of Landlord’s Reconciliation). Tenant’s “Prorata Share” for purposes of computing CAM costs and Taxes hereunder shall be the gross leasable area of the Premises (determined pursuant to paragraph 2.3 above) (excluding mezzanines) divided by the gross leasable area of all buildings (including the Building) in the Shopping Center (excluding mezzanines), and adjusted when necessary to reflect new leasable area (but shall not be increased if buildings in the Shopping Center are removed by casualty, condemnation, or otherwise). However, any increase in Tenant’s CAM costs and Taxes payment shall be limited as provided in paragraph 10.5 herein. CAM costs and Taxes shall be prorated for partial years. Landlord waives Taxes and CAM costs that are not billed within 24 months from the date due. The provisions of this Lease shall not be deemed to require Tenant to pay, by whatever name called, municipal, state, county, or federal income or receipts or excess profits Taxes assessed against Landlord, or Landlord shall credit against the next rent payment municipal, county, state, or payments due from Tenantfederal capital levy, as the case may beestate, the difference between the actual Annual Rental Adjustment excluding Real Estate succession, inheritance, gift, or transfer Taxes for the preceding calendar year and the estimated amount paid by Tenant to Landlord during such year. In addition, Tenant shall pay, before delinquency, any and all Real Estate Taxes as defined in Section 3.02.D, above, directly to the appropriate taxing authority. If Tenant fails for any reason to pay the Real Estate Taxes when same is due and payable, Landlord shall have the right, but not the obligation, to pay the Real Estate Taxes directly to the taxing authority and Tenant shall immediately reimburse Landlord for the cost thereof. Such amount shall accrue interest from the date Landlord pays such amount, pursuant to Section 3.04, below, shall include any penalties, late fees and any interest assessed due to such delinquency. Tenant or its accountants shall have the right to inspect, at reasonable time and in a reasonable manner, during the one hundred twenty (120) day period following the delivery of Landlord's statement of the actual amount of the Annual Rental Adjustment excluding Real Estate Taxes, such of Landlord's books of account and records as pertain to and contain information concerning such costs and expenses for the Building for the prior calendar year in order to verify the amounts thereof. In the event the first audit discloses (i) errors made during the prior calendar year which, when totaled, indicate that the sum overcharged to and paid by Tenant, exceeds five percent (5%) of the Annual Rental Adjustment excluding Real Estate Taxes plus Landlord's Share of Operating Expenses (the "Total Expenses"), the audit shall be at the expense of Landlord, not to exceed Two Thousand Five Hundred Dollars ($2,500.00)or corporation franchise Taxes imposed upon any corporate owner of the fee of the Premises, or (ii) no errors or an error which equals or is less than five percent (5%) of the Total Expensesany tax, the audit shall be at the expense of Tenant. For each subsequent auditwhatever form it takes, where the audit discloses errors exceeding five percent (5%) of the Total Expenses, Landlord shall pay for such audit and, if the audit discloses errors equal to or less than five percent (5%) of the Total Expenses, Tenant shall pay the costs of the audit. If Landlord spends more than eight (8) hours to accommodate Tenant's right to audit hereunder, Tenant shall also pay to Landlord as additional rent Seventy-five Dollars ($75.00) per hour for each additional hour that Tenant's audit takes of Landlord's property manager's or asset manager's time, provided such audit discloses no error or an error greater than five percent (5%) of the Total Expenses. The results of the audit (regardless of the degree of the error, if any) shall be binding upon Landlord and Tenant, and Landlord shall thereafter, if appropriate, change its method of calculating the Operating Expenses consistent with the results of the audit. Tenant agrees to hold the information obtained from such audit confidential and shall not disclose the same without Landlord's express written permission except as necessary to enforce the Lease or protect Tenant's rights hereunder. If Tenant shall not elect to cause an audit within the time period permitted hereby, then Landlord's statement shall be conclusively deemed to have been approved and accepted by Tenant. Pending resolution in lieu of any dispute with respect to statements of Tenant's Annual Rental Adjustment, Tenant shall pay its Annual Rental Adjustment as shown on such statement, and upon final determination of the amount of Tenant's Annual Rental Adjustment, Landlord shall promptly refund any overpayment to Tenant or Tenant shall promptly pay any amount due to Landlord, as applicableTaxes.
Appears in 1 contract
Payment of Additional Rent. In addition Landlord shall have the right to invoice Tenant monthly, quarterly, or otherwise from time to time, for Tenant’s Pro Rata Share of the Minimum Annual Rent specified in actual Taxes, Insurance and CAM expenses payable by Tenant under this Lease, Tenant shall pay to Landlord as "Additional Rent" for the Leased Premises, in each calendar year or partial calendar year, during the Lease Term, an amount equal to the Annual Rental Adjustment excluding Real Estate Taxes for such calendar year or partial calendar year. In the case of the calendar year of the Commencement Date, Landlord shall provide such notice prior to the Commencement Date. The Annual Rental Adjustment excluding Real Estate Taxes shall be estimated annually by Landlord, ; and written notice thereof shall be given to Tenant prior to the beginning of each calendar year. Tenant shall pay to Landlord each month, at the same time the Monthly Rental Installment is due, an amount equal to one-twelfth (1/12) of the estimated Annual Rental Adjustment excluding Real Estate Taxes. If the cost of utility, janitorial or other services increase during a calendar year, Landlord may increase the estimated Annual Rental Adjustment excluding Real Estate Taxes during such year by giving Tenant written notice to that effect, and thereafter Tenant shall pay to Landlord, in each of the remaining months of such yearas Additional Rent, an amount equal to the amount of such increase in the estimated Annual Rental Adjustment excluding Real Estate Taxes those amounts for the remainder of the year divided by the number of months remaining in such year. Within a reasonable time after the end of each calendar year, Landlord shall prepare and deliver to which Tenant a statement showing the actual Annual Rental Adjustment excluding Real Estate Taxes. Within is invoiced within thirty (30) days after receipt of the aforementioned statementsaid invoice. Alternatively, Tenant shall pay to at Landlord, or Landlord shall credit against the next rent payment or payments due from Tenant, as the case may be, the difference between the actual Annual Rental Adjustment excluding Real Estate Taxes for the preceding calendar year and the estimated amount paid by Tenant to Landlord during such year. In addition, Tenant shall pay, before delinquency, any and all Real Estate Taxes as defined in Section 3.02.D, above, directly to the appropriate taxing authority. If Tenant fails for any reason to pay the Real Estate Taxes when same is due and payable’s election, Landlord shall have the rightright to invoice Tenant monthly for Tenant’s Pro Rata Share of such Taxes, but Insurance and CAM expenses, as reasonably estimated by Landlord. Any monies paid in advance to Landlord by Tenant shall not accrue interest thereon. At the end of each calendar year or property fiscal year, Landlord shall deliver a statement to Tenant setting forth the difference between Tenant’s actual Pro Rata Share of Taxes, Insurance and/or CAM expenses and the total amount of monthly payments, paid by Tenant to Landlord. Tenant shall thereafter pay to Landlord the full amount of any difference between Tenant’s actual obligation over the total amount of Tenant’s estimated payments, within thirty (30) days after receipt of said statement; conversely, in the event Tenant’s estimated payments exceed Tenant’s actual obligation, Landlord shall either refund the overpayment to pay Tenant or credit said overpayment against Tenant’s monthly obligation in the Real Estate Taxes directly forthcoming year. For purposes of this Lease, Tenant’s Pro Rata Share is hereinafter defined as a fraction, the numerator of which shall be the square footage of the Premises, and the denominator of which shall be the square footage of the rentable area of the Property, which Pro Rata Share is hereby agreed to be as set forth in Item 13 of the taxing authority Basic Lease Provisions. In the event this Lease expires on a date other than the end of a billing period, Tenant’s obligation with respect to any amounts owed to Landlord shall survive the expiration of the Lease Term, and shall be invoiced to Tenant when the same have been accurately determined or, at Landlord’s option, such amounts shall immediately reimburse be reasonably estimated by Landlord for to reflect the cost thereofperiod of time the Lease was in effect during such billing period. Such amount Landlord shall accrue interest from maintain complete and accurate records of all Taxes, Insurance and CAM expenses incurred in connection with the date Landlord pays such amount, pursuant to Section 3.04, below, shall include any penalties, late fees and any interest assessed due to such delinquencyProperty. Tenant or its accountants shall have the right to inspectinspect such records at Tenant’s sole cost and expense, at reasonable time and in a reasonable manner, during the one hundred twenty (120) day period following the delivery office of Landlord's statement ’s managing agent during said agent’s normal business hours, upon five (5) days prior written notice. Landlord shall not be obligated to provide Tenant with detailed summaries or receipts for any expenses incurred by or on behalf of the actual amount Property; but Landlord shall provide Tenant with one or more statements setting forth such expenses, categorized by class and amount. Notwithstanding the aforesaid, unless Tenant asserts specific errors within ninety (90) days after receipt of the Annual Rental Adjustment excluding Real Estate Taxesany invoice, such of Landlord's books of account and records as pertain to and contain information concerning such costs and expenses for the Building for the prior calendar year in order to verify the amounts thereof. In the event the first audit discloses (i) errors made during the prior calendar year whichor year-end statement, when totaled, indicate that the sum overcharged to and paid by Tenant, exceeds five percent (5%) of the Annual Rental Adjustment excluding Real Estate Taxes plus Landlord's Share of Operating Expenses (the "Total Expenses"), the audit it shall be at the expense of Landlord, not to exceed Two Thousand Five Hundred Dollars ($2,500.00)deemed that said invoice, or (ii) no errors or an error which equals or year-end statement, is less than five percent (5%) of the Total Expenses, the audit shall be at the expense of Tenant. For each subsequent audit, where the audit discloses errors exceeding five percent (5%) of the Total Expenses, Landlord shall pay for such audit and, if the audit discloses errors equal to or less than five percent (5%) of the Total Expenses, Tenant shall pay the costs of the audit. If Landlord spends more than eight (8) hours to accommodate Tenant's right to audit hereunder, Tenant shall also pay to Landlord as additional rent Seventy-five Dollars ($75.00) per hour for each additional hour that Tenant's audit takes of Landlord's property manager's or asset manager's time, provided such audit discloses no error or an error greater than five percent (5%) of the Total Expensescorrect. The results terms and provisions of this Article 4 shall survive the audit (regardless expiration or earlier termination of the degree of the error, if any) shall be binding upon Landlord and Tenant, and Landlord shall thereafter, if appropriate, change its method of calculating the Operating Expenses consistent with the results of the audit. Tenant agrees to hold the information obtained from such audit confidential and shall not disclose the same without Landlord's express written permission except as necessary to enforce the Lease or protect Tenant's rights hereunder. If Tenant shall not elect to cause an audit within the time period permitted hereby, then Landlord's statement shall be conclusively deemed to have been approved and accepted by Tenant. Pending resolution of any dispute with respect to statements of Tenant's Annual Rental Adjustment, Tenant shall pay its Annual Rental Adjustment as shown on such statement, and upon final determination of the amount of Tenant's Annual Rental Adjustment, Landlord shall promptly refund any overpayment to Tenant or Tenant shall promptly pay any amount due to Landlord, as applicablethis Lease.
Appears in 1 contract
Samples: Agreement of Lease (Shutterfly Inc)
Payment of Additional Rent. In addition to the Minimum Annual Rent specified in this Lease, Tenant shall pay to Landlord as "Additional Rent" for the Leased Premises, in each calendar year or partial calendar year, during During the Lease Term, an amount equal to the Annual Rental Adjustment excluding Real Estate Taxes Landlord shall estimate in advance and notify Tenant of estimated Common Area Costs, all real property taxes for such calendar year or partial calendar year. In the case which Tenant is liable under Section 4.02 of the calendar year Lease, all insurance premiums for which Tenant is liable under Section 4.04 of the Commencement DateLease, Landlord shall provide such notice prior to the Commencement Date. The Annual Rental Adjustment excluding Real Estate Taxes shall be estimated annually by Landlordall Property Maintenance Costs, and written notice thereof shall be given to all other Additional Rent payable by Tenant prior to the beginning of each calendar yearhereunder, including, but not limited to, any related sales tax thereon. Tenant shall pay to Landlord each Tenant's Pro Rata Share of such estimated Common Area Costs, real property taxes, insurance premiums, Property Maintenance Costs, and all other items of Additional Rent (prorated for any fractional month) on a monthly basis, at the same time the Monthly Rental Installment is Base Rent shall be due, an amount equal subject to one-twelfth (1/12) the terms set forth in this Section. Tenant's Pro Rata Share shall be calculated by dividing the square foot area of the estimated Annual Rental Adjustment excluding Real Estate TaxesPremises, as set forth in Section 1.01 of the Lease, by the aggregate square foot area of the Building which is leased or held for lease by tenants, as of the date on which the computation is made. If the cost of utility, janitorial or other services increase during a calendar year, Tenant's Initial Pro Rata Share is set out in Section 1.09B. Landlord may increase the estimated Annual Rental Adjustment excluding Real Estate Taxes during such year by giving Tenant written notice adjust Landlord's estimates of any item of Additional Rent at any time based upon Landlord's reasonable anticipation of costs to that effectbe incurred, and thereafter Tenant Tenant's Pro Rata Share of such costs shall pay to Landlord, be adjusted as a change in each the area of the remaining months of such year, an amount equal to Premises or the amount of such increase building in which the estimated Annual Rental Adjustment excluding Real Estate Taxes for the remainder Premises are located may occur. Such adjustments shall be effective as of the year divided by next rent payment date after notice of adjustment is given to Tenant. At Landlord's election, statements of Additional Rent may be delivered monthly on or before the number first day of months remaining in such yeareach calendar month. Within a reasonable time sixty (60) days after the end of each calendar yearyear of the Lease Term, Landlord shall prepare and deliver to Tenant a statement showing setting forth, in reasonable detail, the actual Annual Rental Adjustment excluding Real Estate TaxesCommon Area Costs and Property Maintenance Costs paid or incurred by Landlord during, or attributable to, the preceding calendar year and Tenant's Pro Rata Share (adjusted, if necessary, to reflect the extent to which the Lease Term fell in such calendar year). Within thirty (30) days after Upon receipt of the aforementioned such statement, Tenant there shall pay to Landlord, or be an adjustment between Landlord shall credit against the next rent payment or payments due from and Tenant, with payment to or credit given by Landlord (as the case may be, the difference between the actual Annual Rental Adjustment excluding Real Estate Taxes for the preceding calendar year and the estimated amount paid by Tenant to Landlord during such year. In addition, Tenant shall pay, before delinquency, any and all Real Estate Taxes as defined in Section 3.02.D, above, directly to the appropriate taxing authority. If Tenant fails for any reason to pay the Real Estate Taxes when same is due and payable, ) so that Landlord shall have receive the right, but not the obligation, to pay the Real Estate Taxes directly to the taxing authority and Tenant shall immediately reimburse Landlord for the cost thereof. Such amount shall accrue interest from the date Landlord pays such amount, pursuant to Section 3.04, below, shall include any penalties, late fees and any interest assessed due to such delinquency. Tenant or its accountants shall have the right to inspect, at reasonable time and in a reasonable manner, during the one hundred twenty (120) day period following the delivery of Landlord's statement of the actual entire amount of the Annual Rental Adjustment excluding Real Estate Taxes, such Tenant's share of Landlord's books of account and records as pertain to and contain information concerning such costs and expenses for the Building for the prior calendar year in order to verify the amounts thereof. In the event the first audit discloses (i) errors made during the prior calendar year which, when totaled, indicate that the sum overcharged to such period and paid by Tenant, exceeds five percent (5%) of the Annual Rental Adjustment excluding Real Estate Taxes plus Landlord's Share of Operating Expenses (the "Total Expenses"), the audit Tenant shall be at the expense of Landlord, not to exceed Two Thousand Five Hundred Dollars ($2,500.00), or (ii) no errors or an error which equals or is less than five percent (5%) of the Total Expenses, the audit shall be at the expense of Tenant. For each subsequent audit, where the audit discloses errors exceeding five percent (5%) of the Total Expenses, Landlord shall pay for such audit andreceive a credit, if the audit discloses errors equal to or less than five percent (5%) indicated, against subsequent installments of the Total Expenses, Tenant shall pay the costs of the audit. If Landlord spends more than eight (8) hours to accommodate Tenant's right to audit hereunder, Tenant shall also pay to Landlord as additional rent Seventy-five Dollars ($75.00) per hour for each additional hour that Tenant's audit takes of Landlord's property manager's or asset manager's time, provided such audit discloses no error or an error greater than five percent (5%) of the Total Expenses. The results of the audit (regardless of the degree of the error, if any) shall be binding upon Landlord and Tenant, and Landlord shall thereafter, if appropriate, change its method of calculating the Operating Expenses consistent with the results of the audit. Tenant agrees to hold the information obtained from such audit confidential and shall not disclose the same without Landlord's express written permission except as necessary to enforce the Lease or protect Tenant's rights hereunder. If Tenant shall not elect to cause an audit within the time period permitted hereby, then Landlord's statement shall be conclusively deemed to have been approved and accepted by Tenant. Pending resolution of any dispute with respect to statements of Tenant's Annual Rental Adjustment, Tenant shall pay its Annual Rental Adjustment as shown on such statement, and upon final determination of the amount of Tenant's Annual Rental Adjustment, Landlord shall promptly refund any overpayment to Tenant or Tenant shall promptly pay any amount due to Landlord, as applicableRent.
Appears in 1 contract
Samples: Industrial Real Estate Lease (Home Interiors & Gifts Inc)
Payment of Additional Rent. In addition to the Minimum Annual Rent specified in (1) Upon execution and delivery of this Lease, Landlord shall submit to Tenant an estimate of Tenant’s applicable share of monthly Taxes and Assessments, Insurance Costs, Outside Area Expenses, Maintenance and Repairs Costs and Management Costs (collectively, the “Costs”) for the period between the estimated Commencement Date (which, for purposes of this provision, shall be estimated to be on or about December 1, 2006) and the following December 31 and Tenant shall pay to Landlord as "its applicable share of such estimated Costs (which amount shall constitute Additional Rent" ) in advance on a monthly basis concurrently with the payment of the Base Rent. Attached hereto as Exhibit D and solely for informational purposes is a calculation of Additional Rent that would be payable for the Leased Premisesperiod from January 1, in each calendar year or partial calendar year2007 to December 31, during the Lease Term, an amount equal to the Annual Rental Adjustment excluding Real Estate Taxes for such calendar year or partial calendar year. In the case of the calendar year of the Commencement Date, Landlord shall provide such notice prior to the Commencement Date. The Annual Rental Adjustment excluding Real Estate Taxes shall be estimated annually by Landlord, and written notice thereof shall be given to Tenant prior to the beginning of each calendar year2007. Tenant shall pay continue to make said monthly payments until notified by Landlord each month, at the same time the Monthly Rental Installment is due, an amount equal to one-twelfth (1/12) of the estimated Annual Rental Adjustment excluding Real Estate Taxesa change therein. If the cost of utility, janitorial or other services increase during a calendar year, Landlord may increase the estimated Annual Rental Adjustment excluding Real Estate Taxes during such year by giving Tenant written notice to that effect, and thereafter Tenant shall pay to Landlord, in each of the remaining months of such year, an amount equal to the amount of such increase in the estimated Annual Rental Adjustment excluding Real Estate Taxes for the remainder of the year divided by the number of months remaining in such year. Within a reasonable time after the end By April 1 of each calendar year, Landlord shall prepare and deliver provide to Tenant a statement showing the actual Annual Rental Adjustment excluding Real Estate TaxesCosts due to Landlord for the prior calendar year (both the total of each of such Costs and Tenant’s share thereof as provided for herein), prorated from the Commencement Date during the first year. Within If the total of the monthly payments of Additional Rent made by Tenant for the prior calendar year (or portion thereof during which this Lease was in effect) is less than the actual Costs chargeable to Tenant for such prior calendar year in accordance with the terms hereof, then Tenant shall pay the difference in a lump sum within thirty (30) days after receipt of the aforementioned statement, Tenant shall pay to such statement from Landlord, or Landlord shall credit against the next rent payment or payments due from Tenant, as the case may be, the difference between the actual Annual Rental Adjustment excluding Real Estate Taxes for the preceding calendar year and the estimated amount paid . Any overpayment by Tenant to Landlord during such year. In addition, Tenant shall pay, before delinquency, any and all Real Estate Taxes as defined in Section 3.02.D, above, directly to the appropriate taxing authority. If Tenant fails for any reason to pay the Real Estate Taxes when same is due and payable, Landlord shall have the right, but not the obligation, to pay the Real Estate Taxes directly to the taxing authority and Tenant shall immediately reimburse Landlord for the cost thereof. Such amount shall accrue interest from the date Landlord pays such amount, pursuant to Section 3.04, below, shall include any penalties, late fees and any interest assessed due to such delinquency. Tenant or its accountants shall have the right to inspect, at reasonable time and in a reasonable manner, during the one hundred twenty (120) day period following the delivery of Landlord's statement of the actual amount of the Annual Rental Adjustment excluding Real Estate Taxes, such of Landlord's books of account and records as pertain to and contain information concerning such costs and expenses for the Building Additional Rent for the prior calendar year in order shall be credited to verify the amounts thereof. In payment of the event the first audit discloses (i) errors made during the prior calendar year which, when totaled, indicate that the sum overcharged to and paid by Tenant, exceeds five percent (5%next due monthly installment(s) of the Annual Rental Adjustment excluding Real Estate Taxes plus Landlord's Share of Operating Expenses (the "Total Expenses"), the audit shall be at the expense of Landlord, not to exceed Two Thousand Five Hundred Dollars ($2,500.00), or (ii) no errors or an error which equals or is less than five percent (5%) of the Total Expenses, the audit shall be at the expense of Tenant. For each subsequent audit, where the audit discloses errors exceeding five percent (5%) of the Total Expenses, Landlord shall pay for such audit and, if the audit discloses errors equal to or less than five percent (5%) of the Total Expenses, Tenant shall pay the costs of the audit. If Landlord spends more than eight (8) hours to accommodate Tenant's right to audit hereunder, Tenant shall also pay to Landlord as additional rent Seventy-five Dollars ($75.00) per hour for each additional hour that Tenant's audit takes of Landlord's property manager's or asset manager's time, provided such audit discloses no error or an error greater than five percent (5%) of the Total Expenses. The results of the audit (regardless of the degree of the error, if any) shall be binding upon Landlord and Tenant, and Landlord shall thereafter, if appropriate, change its method of calculating the Operating Expenses consistent with the results of the audit. Tenant agrees to hold the information obtained from such audit confidential and shall not disclose the same without Landlord's express written permission except as necessary to enforce the Lease or protect Tenant's rights hereunder. If Tenant shall not elect to cause an audit within the time period permitted hereby, then Landlord's statement shall be conclusively deemed to have been approved and accepted by Tenant. Pending resolution of any dispute with respect to statements of Tenant's Annual Rental Adjustment, Tenant shall pay its Annual Rental Adjustment as shown on such statement, and upon final determination of the amount of Tenant's Annual Rental Adjustment, Landlord shall promptly refund any overpayment to Tenant or Tenant shall promptly pay any amount due to Landlord, as applicableAdditional Rent.
Appears in 1 contract
Payment of Additional Rent. In addition to the Minimum Annual Rent specified in this LeaseTenant will pay, Tenant shall pay to Landlord as "Additional Rent" for the Leased Premises, in each calendar year or partial calendar year, during the Lease Term, an amount equal to the Annual Rental Adjustment excluding (a) Tenant’s Pro Rata Share of Real Estate Taxes for such calendar year or partial calendar yeareach Calendar Year, in the manner provided in this Section 2.6; and (b) Tenant’s Pro Rata Share of Operating Expenses for each Calendar Year, as estimated by Landlord hereunder, in equal monthly installments, in advance, on the first day of each month during each applicable Calendar Year. In the case event that Landlord’s estimate of Tenant’s Pro Rata Share of Operating Expenses is delivered to Tenant after the first day of January of the calendar year of applicable Calendar Year, then the Commencement Datelast estimate for the prior Calendar Year will remain in effect until the estimate for the applicable Calendar Year has been delivered to Tenant. Such newly estimated amount will thereafter be payable as Additional Rent hereunder, Landlord shall provide such notice prior to in equal monthly installments, in advance, on the Commencement Date. The Annual Rental Adjustment excluding Real Estate Taxes shall be estimated annually by Landlord, and written notice thereof shall be given to Tenant prior to the beginning first day of each calendar year. Tenant shall pay to Landlord each month, at month over the same time the Monthly Rental Installment is due, an amount equal to one-twelfth (1/12) of the estimated Annual Rental Adjustment excluding Real Estate Taxes. If the cost of utility, janitorial or other services increase during a calendar year, Landlord may increase the estimated Annual Rental Adjustment excluding Real Estate Taxes during such year by giving Tenant written notice to that effect, and thereafter Tenant shall pay to Landlord, in each of the remaining months balance of such yearCalendar Year, an amount with the number of installments being equal to the amount of such increase in the estimated Annual Rental Adjustment excluding Real Estate Taxes for the remainder of the year divided by the number of full calendar months remaining in such yearCalendar Year. Within So long as Landlord has provided Tenant with a reasonable time after copy of the end of each calendar year, Landlord shall prepare and deliver to Tenant a statement showing the actual Annual Rental Adjustment excluding subject xxxx for Real Estate Taxes. Within Taxes at least thirty (30) days after receipt in advance of the aforementioned statementdate on which Tenant is to make payment to Landlord pursuant to this sentence, Tenant shall will pay Tenant’s Pro Rata Share of Real Estate Taxes to Landlord, in immediately available funds, so that Landlord receives such payment not less than five (5) business days prior to the due date for the payment of such Real Estate Taxes. In the event that Tenant fails to make such payment by such date, then Tenant will also pay to Landlord, or Landlord shall credit against the next rent payment or payments due from Tenant, as the case may be, the difference between the actual Annual Rental Adjustment excluding Real Estate Taxes for the preceding calendar year and the estimated amount paid by Tenant to Landlord during such year. In addition, Tenant shall pay, before delinquencyupon demand, any and all Real Estate Taxes penalties and interest for which Landlord is liable as defined in Section 3.02.D, above, directly to the appropriate taxing authority. If Tenant fails for any reason to pay the Real Estate Taxes when same is due and payable, Landlord shall have the right, but not the obligation, to pay the Real Estate Taxes directly to the taxing authority and Tenant shall immediately reimburse Landlord for the cost thereof. Such amount shall accrue interest from the date Landlord pays a result of such amount, pursuant to Section 3.04, below, shall include any penalties, late fees and any interest assessed due to such delinquency. Tenant or its accountants shall have the right to inspect, at reasonable time and in a reasonable manner, during the one hundred twenty (120) day period following the delivery of Landlord's statement of the actual amount of the Annual Rental Adjustment excluding Real Estate Taxes, such of Landlord's books of account and records as pertain to and contain information concerning such costs and expenses for the Building for the prior calendar year in order to verify the amounts thereof. In the event the first audit discloses (i) errors made during the prior calendar year which, when totaled, indicate that the sum overcharged to and paid payment by Tenant, exceeds five percent (5%) of the Annual Rental Adjustment excluding Real Estate Taxes plus Landlord's Share of Operating Expenses (the "Total Expenses"), the audit shall be at the expense of Landlord, not to exceed Two Thousand Five Hundred Dollars ($2,500.00), or (ii) no errors or an error which equals or is less than five percent (5%) of the Total Expenses, the audit shall be at the expense of Tenant. For each subsequent audit, where the audit discloses errors exceeding five percent (5%) of the Total Expenses, Landlord shall pay for such audit and, if the audit discloses errors equal to or less than five percent (5%) of the Total Expenses, Tenant shall pay the costs of the audit. If Landlord spends more than eight (8) hours to accommodate Tenant's right to audit hereunder, Tenant shall also pay to Landlord as additional rent Seventy-five Dollars ($75.00) per hour for each additional hour that Tenant's audit takes of Landlord's property manager's or asset manager's time, provided such audit discloses no error or an error greater than five percent (5%) of the Total Expenses. The results of the audit (regardless of the degree of the error, if any) shall be binding upon Landlord and Tenant, and Landlord shall thereafter, if appropriate, change its method of calculating the Operating Expenses consistent with the results of the audit. Tenant agrees to hold the information obtained from such audit confidential and shall not disclose the same without Landlord's express written permission except as necessary to enforce the Lease or protect Tenant's rights hereunder. If Tenant shall not elect to cause an audit within the time period permitted hereby, then Landlord's statement shall be conclusively deemed to have been approved and accepted by Tenant. Pending resolution of any dispute with respect to statements of Tenant's Annual Rental Adjustment, Tenant shall pay its Annual Rental Adjustment as shown on such statement, and upon final determination of the amount of Tenant's Annual Rental Adjustment, Landlord shall promptly refund any overpayment to Tenant or Tenant shall promptly pay any amount due to Landlord, as applicable.
Appears in 1 contract
Samples: Office Lease (Depomed Inc)
Payment of Additional Rent. In addition Landlord shall have the right to invoice Tenant monthly, quarterly, or otherwise from time to time (but in no case more frequently than monthly nor less frequently than annually), for Tenant’s Pro Rata Share of the Minimum Annual Rent specified in actual Taxes, Insurance and CAM expenses payable by Tenant under this Lease, Tenant shall pay to Landlord as "Additional Rent" for the Leased Premises, in each calendar year or partial calendar year, during the Lease Term, an amount equal to the Annual Rental Adjustment excluding Real Estate Taxes for such calendar year or partial calendar year. In the case of the calendar year of the Commencement Date, Landlord shall provide such notice prior to the Commencement Date. The Annual Rental Adjustment excluding Real Estate Taxes shall be estimated annually by Landlord, ; and written notice thereof shall be given to Tenant prior to the beginning of each calendar year. Tenant shall pay to Landlord each month, at the same time the Monthly Rental Installment is due, an amount equal to one-twelfth (1/12) of the estimated Annual Rental Adjustment excluding Real Estate Taxes. If the cost of utility, janitorial or other services increase during a calendar year, Landlord may increase the estimated Annual Rental Adjustment excluding Real Estate Taxes during such year by giving Tenant written notice to that effect, and thereafter Tenant shall pay to Landlord, in each of the remaining months of such yearas Additional Rent, an amount equal to the amount of such increase in the estimated Annual Rental Adjustment excluding Real Estate Taxes those amounts for the remainder of the year divided by the number of months remaining in such year. Within a reasonable time after the end of each calendar year, Landlord shall prepare and deliver to which Tenant a statement showing the actual Annual Rental Adjustment excluding Real Estate Taxes. Within is invoiced within thirty (30) days after receipt of the aforementioned statementsaid invoice. Alternatively, Tenant shall pay to at Landlord, or Landlord shall credit against the next rent payment or payments due from Tenant, as the case may be, the difference between the actual Annual Rental Adjustment excluding Real Estate Taxes for the preceding calendar year and the estimated amount paid by Tenant to Landlord during such year. In addition, Tenant shall pay, before delinquency, any and all Real Estate Taxes as defined in Section 3.02.D, above, directly to the appropriate taxing authority. If Tenant fails for any reason to pay the Real Estate Taxes when same is due and payable’s election, Landlord shall have the rightright to invoice Tenant monthly for Tenant’s Pro Rata Share of such Taxes, but Insurance and CAM expenses, as reasonably estimated by Landlord. Any monies paid in advance to Landlord by Tenant shall not accrue interest thereon. Following the end of each calendar year or property fiscal year, Landlord shall deliver a statement to Tenant setting forth the difference between Tenant’s actual Pro Rata Share of Taxes, Insurance and/or CAM expenses and the total amount of monthly payments, paid by Tenant to Landlord. Tenant shall thereafter pay to Landlord the full amount of any difference between Tenant’s actual obligation over the total amount of Tenant’s estimated payments, within thirty (30) days after receipt of said statement; conversely, in the event Tenant’s estimated payments exceed Tenant’s actual obligation, Landlord shall either refund the overpayment to pay the Real Estate Taxes directly to the taxing authority and Tenant shall immediately reimburse Landlord for the cost thereof. Such amount shall accrue interest from the date Landlord pays such amount, pursuant to Section 3.04, below, shall include any penalties, late fees and any interest assessed due to such delinquency. Tenant or its accountants credit said overpayment against Tenant’s monthly obligation in the forthcoming year. For purposes of this Lease, Tenant’s Pro Rata Share is hereinafter defined as a fraction, the numerator of which shall have be the right to inspect, at reasonable time and in a reasonable manner, during the one hundred twenty (120) day period following the delivery of Landlord's statement square footage of the actual amount Premises, and the denominator of which shall be the square footage of the Annual Rental Adjustment excluding Real Estate Taxesrentable area of the Building, such which Pro Rata Share is hereby agreed to be as set forth in Item 13 of Landlord's books of account and records as pertain to and contain information concerning such costs and expenses for the Building for the prior calendar year in order to verify the amounts thereofBasic Lease Provisions. In the event this Lease expires on a date other than the first audit discloses (i) errors made during the prior calendar year whichend of a billing period, when totaled, indicate that the sum overcharged to and paid by Tenant, exceeds five percent (5%) of the Annual Rental Adjustment excluding Real Estate Taxes plus Landlord's Share of Operating Expenses (the "Total Expenses"), the audit shall be at the expense of Landlord, not to exceed Two Thousand Five Hundred Dollars ($2,500.00), or (ii) no errors or an error which equals or is less than five percent (5%) of the Total Expenses, the audit shall be at the expense of Tenant. For each subsequent audit, where the audit discloses errors exceeding five percent (5%) of the Total Expenses, Landlord shall pay for such audit and, if the audit discloses errors equal to or less than five percent (5%) of the Total Expenses, Tenant shall pay the costs of the audit. If Landlord spends more than eight (8) hours to accommodate Tenant's right to audit hereunder, Tenant shall also pay to Landlord as additional rent Seventy-five Dollars ($75.00) per hour for each additional hour that Tenant's audit takes of Landlord's property manager's or asset manager's time, provided such audit discloses no error or an error greater than five percent (5%) of the Total Expenses. The results of the audit (regardless of the degree of the error, if any) shall be binding upon Landlord and Tenant, and Landlord shall thereafter, if appropriate, change its method of calculating the Operating Expenses consistent with the results of the audit. Tenant agrees to hold the information obtained from such audit confidential and shall not disclose the same without Landlord's express written permission except as necessary to enforce the Lease or protect Tenant's rights hereunder. If Tenant shall not elect to cause an audit within the time period permitted hereby, then Landlord's statement shall be conclusively deemed to have been approved and accepted by Tenant. Pending resolution of any dispute ’s obligation with respect to statements any amounts owed to Landlord shall survive the expiration of Tenant's Annual Rental Adjustment, Tenant shall pay its Annual Rental Adjustment as shown on such statementthe Lease Term, and upon final determination of the amount of Tenant's Annual Rental Adjustment, Landlord shall promptly refund any overpayment be invoiced to Tenant or Tenant when the same have been accurately determined or, at Landlord’s option, such amounts shall promptly pay any amount due be reasonably estimated by Landlord to Landlord, as applicablereflect the period of time the Lease was in effect during such billing period.
Appears in 1 contract
Payment of Additional Rent. In addition Any monies paid in advance to the Minimum Annual Rent specified in this Lease, Landlord by Tenant shall pay to Landlord as "Additional Rent" for the Leased Premises, in each calendar year or partial calendar year, during the Lease Term, an amount equal to the Annual Rental Adjustment excluding Real Estate Taxes for such calendar year or partial calendar yearnot accrue interest thereon. In the case of the calendar year of the Commencement Date, Landlord shall provide such notice prior to the Commencement Date. The Annual Rental Adjustment excluding Real Estate Taxes shall be estimated annually by Landlord, and written notice thereof shall be given to Tenant prior to the beginning of each calendar year. Tenant shall pay to Landlord each month, at the same time the Monthly Rental Installment is due, an amount equal to one-twelfth (1/12) of the estimated Annual Rental Adjustment excluding Real Estate Taxes. If the cost of utility, janitorial or other services increase during a calendar year, Landlord may increase the estimated Annual Rental Adjustment excluding Real Estate Taxes during such year by giving Tenant written notice to that effect, and thereafter Tenant shall pay to Landlord, in each of the remaining months of such year, an amount equal to the amount of such increase in the estimated Annual Rental Adjustment excluding Real Estate Taxes for the remainder of the year divided by the number of months remaining in such year. Within a reasonable time after At the end of each calendar year or property fiscal year, Landlord shall prepare and deliver a statement to Tenant a statement showing setting forth the difference between Tenant’s actual Annual Rental Adjustment excluding Real Estate pro rata share of Taxes, Insurance and/or CAM expenses and the total amount of monthly payments paid by Tenant to Landlord. Within Tenant shall thereafter pay to Landlord the full amount of any difference between Tenant’s actual obligation over the total amount of Tenant’s estimated payments, within thirty (30) days after receipt notice of said statement is sent to Tenant; conversely, in the aforementioned statement, Tenant shall pay to Landlord, or Landlord shall credit against the next rent payment or event Tenant’s estimated payments due from exceed Tenant, as the case may be, the difference between the ’s actual Annual Rental Adjustment excluding Real Estate Taxes for the preceding calendar year and the estimated amount paid by Tenant to Landlord during such year. In addition, Tenant shall pay, before delinquency, any and all Real Estate Taxes as defined in Section 3.02.D, above, directly to the appropriate taxing authority. If Tenant fails for any reason to pay the Real Estate Taxes when same is due and payableobligation, Landlord shall have refund the right, but not overpayment to Tenant or credit the obligation, to pay the Real Estate Taxes directly amount to the taxing authority next installments of CAM due, in the Landlord’s sole discretion. In the event this Lease expires on a date other than the end of a billing period, Tenant’s obligation with respect to any amounts owed to Landlord shall survive the expiration of the lease term, and shall be invoiced to Tenant when the same have been accurately determined or, at Landlord’s option, such amounts shall immediately be reasonably estimated by Landlord to reflect the period of time the Lease was in effect during such billing period. If Tenant’s inspection of such records reveals a variance in Tenant’s favor of more than 10%, then Landlord shall reimburse Tenant for reasonable third party audit fees (not to exceed $3,000) so incurred by Tenant as well as such overpayments on amounts charged. Landlord for shall maintain complete and accurate records of all Taxes, Insurance and CAM expenses incurred in connection with the cost thereof. Such amount shall accrue interest from the date Landlord pays such amount, pursuant to Section 3.04, below, shall include any penalties, late fees and any interest assessed due to such delinquencyProperty. Tenant or its accountants shall have the right to inspectinspect such records at Tenant’s sole cost and expense, at reasonable time and in a reasonable manner, during the one hundred twenty (120) day period following the delivery office of Landlord's statement ’s managing agent during said agent’s normal business hours, upon ten (10) days prior written notice once a calendar year. Notwithstanding the aforesaid, unless Tenant asserts specific errors within ninety (90) days after receipt of the actual amount of the Annual Rental Adjustment excluding Real Estate Taxesany invoice, such of Landlord's books of account and records as pertain to and contain information concerning such costs and expenses for the Building for the prior calendar year in order to verify the amounts thereof. In the event the first audit discloses (i) errors made during the prior calendar year whichor yearend statement, when totaled, indicate that the sum overcharged to and paid by Tenant, exceeds five percent (5%) of the Annual Rental Adjustment excluding Real Estate Taxes plus Landlord's Share of Operating Expenses (the "Total Expenses"), the audit it shall be at the expense of Landlord, not to exceed Two Thousand Five Hundred Dollars ($2,500.00)deemed that said invoice, or (ii) no errors or an error which equals or is less than five percent (5%) of the Total Expenses, the audit shall be at the expense of Tenant. For each subsequent audit, where the audit discloses errors exceeding five percent (5%) of the Total Expenses, Landlord shall pay for such audit and, if the audit discloses errors equal to or less than five percent (5%) of the Total Expenses, Tenant shall pay the costs of the audit. If Landlord spends more than eight (8) hours to accommodate Tenant's right to audit hereunder, Tenant shall also pay to Landlord as additional rent Seventy-five Dollars ($75.00) per hour for each additional hour that Tenant's audit takes of Landlord's property manager's or asset manager's time, provided such audit discloses no error or an error greater than five percent (5%) of the Total Expenses. The results of the audit (regardless of the degree of the error, if any) shall be binding upon Landlord and Tenant, and Landlord shall thereafter, if appropriate, change its method of calculating the Operating Expenses consistent with the results of the audit. Tenant agrees to hold the information obtained from such audit confidential and shall not disclose the same without Landlord's express written permission except as necessary to enforce the Lease or protect Tenant's rights hereunder. If Tenant shall not elect to cause an audit within the time period permitted hereby, then Landlord's statement shall be conclusively deemed to have been approved and accepted by Tenant. Pending resolution of any dispute with respect to statements of Tenant's Annual Rental Adjustment, Tenant shall pay its Annual Rental Adjustment as shown on such year–end statement, and upon final determination of the amount of Tenant's Annual Rental Adjustment, Landlord shall promptly refund any overpayment to Tenant or Tenant shall promptly pay any amount due to Landlord, as applicableis correct.
Appears in 1 contract
Samples: Lease (Hemagen Diagnostics Inc)
Payment of Additional Rent. In addition Landlord shall have the right to reasonably estimate the Operating Expenses for each Operating Year. Upon Landlord’s or Agent’s notice to Tenant of such estimated amount, Tenant shall pay, on the first day of each month during that Operating Year, an amount (the “Estimated Additional Rent”) equal to the Minimum Annual estimate of the Operating Expenses divided by 12 (or the fractional portion of the Operating Year remaining at the time Landlord delivers its notice of the estimated amounts due from Tenant for that Operating Year). If the aggregate amount of Estimated Additional Rent specified in this Leaseactually paid by Tenant during any Operating Year is less than Tenant’s actual ultimate liability for Operating Expenses for that particular Operating Year, Tenant shall pay to Landlord as "Additional Rent" for the Leased Premises, in each calendar year or partial calendar year, during the Lease Term, an amount equal to the Annual Rental Adjustment excluding Real Estate Taxes for such calendar year or partial calendar year. In the case deficiency within 30 days of the calendar year of the Commencement Date, Landlord shall provide such notice prior to the Commencement Date. The Annual Rental Adjustment excluding Real Estate Taxes shall be estimated annually by Landlord, and ’s written notice thereof shall be given to Tenant prior to the beginning of each calendar year. Tenant shall pay to Landlord each month, at the same time the Monthly Rental Installment is due, an amount equal to one-twelfth (1/12) of the estimated Annual Rental Adjustment excluding Real Estate Taxesdemand therefor. If the cost aggregate amount of utility, janitorial or other services increase Estimated Additional Rent actually paid by Tenant during a calendar yeargiven Operating Year exceeds Tenant’s actual liability for such Operating Year, the excess shall be credited against the Estimated Additional Rent in the month next due from Tenant during the immediately subsequent Operating Year, except that in the event that such excess is paid by Tenant during the final Lease Year, then upon the expiration of the Term, Landlord may increase the estimated Annual Rental Adjustment excluding Real Estate Taxes during such year by giving Tenant written notice to that effect, and thereafter Tenant or Agent shall pay to Landlord, in each of Tenant the remaining months of such year, an amount equal to the amount of such increase in the estimated Annual Rental Adjustment excluding Real Estate Taxes for the remainder of the year divided by the number of months remaining in such year. Within a reasonable time after the end of each calendar year, Landlord shall prepare and deliver to Tenant a statement showing the actual Annual Rental Adjustment excluding Real Estate Taxes. Within then-applicable excess within thirty (30) days after receipt determination thereof. No interest shall be payable to Tenant on account of the aforementioned statement, Tenant shall pay to Landlord, or Landlord shall credit against the next rent payment or such payments due from Tenant, as the case of Estimated Additional Rent and such payments may be, the difference between the actual Annual Rental Adjustment excluding Real Estate Taxes for the preceding calendar year and the estimated amount paid by Tenant to Landlord during such yearbe commingled. In addition, Tenant shall pay, before delinquency, the event that any and all Real Estate Taxes as defined item of Operating Expenses has not been included in Section 3.02.D, above, directly to the appropriate taxing authority. If Tenant fails for any reason to pay the Real Estate Taxes when same is due and payableTenant’s Estimated Additional Rent payments, Landlord shall have the rightright to xxxx Tenant for any such cost which is incurred, but not the obligation, to pay the Real Estate Taxes directly to the taxing authority and Tenant shall immediately reimburse pay to the Landlord for the cost thereof. Such invoiced amount shall accrue interest from the date Landlord pays such amount, pursuant to Section 3.04, below, shall include any penalties, late fees and any interest assessed due to such delinquency. Tenant or its accountants shall have the right to inspect, at reasonable time and in a reasonable manner, during the one hundred twenty within thirty (12030) day period following the delivery days of Landlord's ’s written demand therefor. Landlord agrees that it shall deliver reasonable back-up documentation for any such statement of the actual amount of the Annual Rental Adjustment excluding Real Estate Taxes, such of Landlord's books of account and records as pertain to and contain information concerning such costs and expenses for the Building for the prior calendar year in order to verify the amounts thereof. In the event the first audit discloses (i) errors made during the prior calendar year which, when totaled, indicate that the sum overcharged to and paid by Tenant, exceeds five percent (5%) of the Annual Rental Adjustment excluding Real Estate Taxes plus Landlord's Share of Operating Expenses (the "Total Expenses"), the audit shall be at the expense of Landlord, not to exceed Two Thousand Five Hundred Dollars ($2,500.00), or (ii) no errors or an error which equals or is less than five percent (5%) of the Total Expenses, the audit shall be at the expense of Tenant. For each subsequent audit, where the audit discloses errors exceeding five percent (5%) of the Total Expenses, Landlord shall pay for such audit and, if the audit discloses errors equal to or less than five percent (5%) of the Total Expenses, Tenant shall pay the costs of the audit. If Landlord spends more than eight (8) hours to accommodate Tenant's right to audit hereunder, Tenant shall also pay to Landlord as additional rent Seventy-five Dollars ($75.00) per hour for each additional hour that Tenant's audit takes of Landlord's property manager's or asset manager's time, provided such audit discloses no error or an error greater than five percent (5%) of the Total Expenses. The results of the audit (regardless of the degree of the error, if any) shall be binding upon Landlord and Tenant, and Landlord shall thereafter, if appropriate, change its method of calculating the Operating Expenses consistent with the results of the audit. Tenant agrees to hold the information obtained from such audit confidential and shall not disclose the same without Landlord's express upon Tenant’s written permission except as necessary to enforce the Lease or protect Tenant's rights hereunder. If Tenant shall not elect to cause an audit within the time period permitted hereby, then Landlord's statement shall be conclusively deemed to have been approved and accepted by Tenant. Pending resolution of any dispute with respect to statements of Tenant's Annual Rental Adjustment, Tenant shall pay its Annual Rental Adjustment as shown on such statement, and upon final determination of the amount of Tenant's Annual Rental Adjustment, Landlord shall promptly refund any overpayment to Tenant or Tenant shall promptly pay any amount due to Landlord, as applicablerequest.
Appears in 1 contract
Samples: Dendreon Corp
Payment of Additional Rent. In addition to the Minimum Annual Rent specified in this Lease, Tenant shall pay to Landlord as "Additional Rent" for the Leased Premises, in each calendar year or partial calendar year, as the case may be, during the Lease Term, an amount equal to the Annual Rental Adjustment excluding Real Estate Taxes Operating Expenses for such calendar year or partial calendar year. In , as the case of the may be. The Operating Expenses for each calendar year of the Commencement Date, Landlord shall provide such notice prior to the Commencement Date. The Annual Rental Adjustment excluding Real Estate Taxes shall be reasonably estimated annually by LandlordLandlord annually, and written notice thereof shall be given to Tenant prior to the Commencement Date, and, thereafter, prior to the beginning of each calendar year. Commencing on the Commencement Date, Tenant shall pay to Landlord each month, at the same time that the Monthly Rental Installment is due, an amount equal to one-twelfth (1/12) of the estimated Annual Rental Adjustment excluding Operating Expenses. If Real Estate Taxes. If Taxes or the cost costs of utility, utility or janitorial or other services increase during a calendar year, Landlord may increase the estimated Annual Rental Adjustment excluding Real Estate Taxes Operating Expenses during such calendar year by giving Tenant written notice to that effect, and thereafter and, thereafter, Tenant shall pay to Landlord, in each of the remaining months of such calendar year, an amount equal to the amount of such increase in the estimated Annual Rental Adjustment excluding Real Estate Taxes for the remainder of the year Operating Expenses divided by the number of months remaining in such calendar year. Within a reasonable time sixty (60) days after the end of each calendar or partial calendar year, as the case may be, Landlord shall prepare and deliver to Tenant a detailed reconciliation statement showing the actual Annual Rental Adjustment excluding Real Estate TaxesOperating Expenses for such calendar year or (partial calendar year). Within thirty (30) days after receipt of the aforementioned such reconciliation statement, Tenant shall pay to Landlord, or Landlord shall credit against the next rent payment or payments due from Tenant, as the case may be, the difference any deficiency between the actual Annual Rental Adjustment excluding Real Estate Taxes for the preceding calendar year amount owed and the estimated amount paid payments made by Tenant to Landlord during such year. In addition, Tenant shall pay, before delinquency, any and all Real Estate Taxes as defined in Section 3.02.D, above, directly to the appropriate taxing authority. If Tenant fails for any reason to pay the Real Estate Taxes when same is due and payable, Landlord shall have the right, but not the obligation, to pay the Real Estate Taxes directly to the taxing authority and Tenant shall immediately reimburse Landlord for the cost thereof. Such amount shall accrue interest from the date Landlord pays such amount, pursuant to Section 3.04, below, shall include any penalties, late fees and any interest assessed due to such delinquency. Tenant or its accountants shall have the right to inspect, at reasonable time and in a reasonable manner, during the one hundred twenty (120) day period following the delivery of Landlord's statement of the actual amount of the Annual Rental Adjustment excluding Real Estate Taxes, such of Landlord's books of account and records as pertain to and contain information concerning such costs and expenses for the Building for the prior calendar year in order to verify the amounts thereof(or partial calendar year). In the event of an overpayment by Tenant of the first audit discloses (i) errors made during the prior Operating Expenses for a given calendar year which, when totaled, indicate that the sum overcharged to and paid by Tenant, exceeds five percent (5%) of the Annual Rental Adjustment excluding Real Estate Taxes plus Landlord's Share of Operating Expenses (the "Total Expenses"or partial calendar year), the audit shall be at the expense of Landlord, not to exceed Two Thousand Five Hundred Dollars ($2,500.00), or (ii) no errors or an error which equals or is less than five percent (5%) of the Total Expenses, the audit shall be at the expense of Tenant. For each subsequent audit, where the audit discloses errors exceeding five percent (5%) of the Total Expenses, Landlord shall pay for such audit and, if the audit discloses errors equal to or less than five percent (5%) of the Total Expenses, Tenant shall pay the costs of the audit. If Landlord spends more than eight (8) hours to accommodate Tenant's right to audit hereunder, Tenant shall also pay to Landlord as additional rent Seventy-five Dollars ($75.00) per hour for each additional hour that Tenant's audit takes of Landlord's property manager's or asset manager's time, provided such audit discloses no error or an error greater than five percent (5%) of the Total Expenses. The results of the audit (regardless of the degree of the error, if any) shall be binding upon Landlord and Tenant, and Landlord shall thereafter, if appropriate, change its method of calculating the Operating Expenses consistent with the results of the audit. Tenant agrees to hold the information obtained from such audit confidential and shall not disclose the same without Landlord's express written permission except as necessary to enforce the Lease or protect Tenant's rights hereunder. If Tenant shall not elect to cause an audit within the time period permitted hereby, then Landlord's statement shall be conclusively deemed to have been approved and accepted by Tenant. Pending resolution of any dispute with respect to statements of Tenant's Annual Rental Adjustment, Tenant shall pay its Annual Rental Adjustment as shown on such statement, and upon final determination of credit the amount of Tenant's Annual such overpayment toward the next Monthly Rental Adjustment, Landlord shall promptly refund any Installment and the next monthly estimated Operating Expense payment until such overpayment is recovered by Tenant in full (or remit such amount in cash to Tenant or Tenant in the event that this Lease shall promptly pay any amount due to Landlord, as applicablehave terminated).
Appears in 1 contract
Payment of Additional Rent. In addition Landlord shall have the right to reasonably estimate the Operating Expenses for each Operating Year. Upon Landlord's or Agent's notice to Tenant of such estimated amount (the "Estimated Operating Expenses Notice"), Tenant shall pay, on the first day of each month during that Operating Year, an amount(the "Estimated Additional Rent") equal to the Minimum Annual estimate of the Operating Expenses divided by 12 (or the fractional portion of the Operating Year remaining at the time Landlord delivers its notice of the estimated amounts due from Tenant for that Operating Year). If the aggregate amount of Estimated Additional Rent specified in this Leaseactually paid by Tenantduring any Operating Year is less than Tenant's actual ultimate liability for Operating Expenses for that particular Operating Year, Tenant shall pay to Landlord as "the deficiency within 30 days of Landlord's written demand therefor. If the aggregate amount of Estimated Additional Rent" Rent actually paid by Tenant during a given Oxxxxxxng Year e xceeds Tenant's actual liability for such Operating Year, the Leased Premises, in each calendar year or partial calendar year, excess shall be credited against the Estimated Additional Rent next due from Tenant during the immediately subsequent Operating Year, except that in the event thatsuch excess is paid by Tenant during the final Lease Year, then upon the expiration of the Term, an amount equal Landlord or Agent shall pay Tenant the then-applicable excess promptly after determination thereof. Tenant shall have the right, at its sole cost and expense at reasonable times upon reasonable notice, to audit or have its appointed accountant or auditor audit or review the Annual Rental Adjustment excluding Real Estate Taxes for books and records of Landlord related to Operating Expenses provided that no such calendar year audit or partial review shall occur more frequently than once each calendar year. In the case of the calendar year of the Commencement Dateevent Tenant's audit discloses any discrepancy, Landlord shall provide such notice prior to the Commencement Date. The Annual Rental Adjustment excluding Real Estate Taxes shall be estimated annually by Landlord, and written notice thereof shall be given to Tenant prior to the beginning of each calendar year. Tenant shall pay to Landlord each month, at the same time the Monthly Rental Installment is due, an amount equal to one-twelfth (1/12) of the estimated Annual Rental Adjustment excluding Real Estate Taxes. If the cost of utility, janitorial or other services increase during a calendar year, Landlord may increase the estimated Annual Rental Adjustment excluding Real Estate Taxes during such year by giving Tenant written notice to that effect, and thereafter Tenant shall pay to Landlord, in each of the remaining months of such year, an amount equal to the amount of such increase in the estimated Annual Rental Adjustment excluding Real Estate Taxes for the remainder of the year divided by the number of months remaining in such year. Within a reasonable time after the end of each calendar year, Landlord shall prepare and deliver to Tenant a statement showing the actual Annual Rental Adjustment excluding Real Estate Taxes. Within thirty (30) days after receipt of the aforementioned statement, Tenant shall pay to Landlord, or Landlord shall credit against the next rent payment or payments due from Tenant, as the case may be, the difference between the actual Annual Rental Adjustment excluding Real Estate Taxes for the preceding calendar year and the estimated amount paid by Tenant to Landlord during such year. In addition, Tenant shall pay, before delinquency, any and all Real Estate Taxes as defined in Section 3.02.D, above, directly to the appropriate taxing authority. If Tenant fails for any reason to pay the Real Estate Taxes when same is due and payable, Landlord shall have the right, but not the obligation, to pay the Real Estate Taxes directly to the taxing authority and Tenant shall immediately reimburse Landlord for use their bestefforts to resolve the cost thereof. Such amount dispute and make an appropriate adjustment, failing which, they shall accrue interest from the date Landlord pays submit any such amount, dispute to arbitration pursuant to Section 3.0424.15 below. The decision rendered in such arbitration shall be final, belowbinding and non-appealable. The expenses of arbitration, other than individual legal and accounting expenses which shall be the respective parties' responsibility, shall include any penalties, late fees and any interest assessed due to such delinquency. Tenant or its accountants shall have be divided equally between the right to inspect, at reasonable time and in a reasonable manner, during the one hundred twenty (120) day period following the delivery of Landlord's statement of the actual amount of the Annual Rental Adjustment excluding Real Estate Taxes, such of Landlord's books of account and records as pertain to and contain information concerning such costs and expenses for the Building for the prior calendar year in order to verify the amounts thereofparties. In the event event, by agreement or as a result of an arbitration decision, it is determined that there was a miscalculation of Tenant's share of Operaxxxx Xxp enses claimed by the first audit discloses (i) errors made during the prior calendar year which, when totaled, indicate that the sum overcharged to and paid Landlord by Tenant, exceeds five percent (5%) of the Annual Rental Adjustment excluding Real Estate Taxes plus Landlord's Share of Operating Expenses (the "Total Expenses"), the audit shall be at the expense of Landlord, not to exceed Two Thousand Five Hundred Dollars ($2,500.00), or (ii) no errors or an error which equals or is less more than five percent (5%) of the Total Expenses), the audit shall be at the expense costs to Tenant of Tenant. For each subsequent audit, where the audit discloses errors exceeding five percent (5%) of the Total Expenses, Landlord shall pay for such audit and, if the audit discloses errors equal to or less than five percent (5%) of the Total Expenses, Tenant shall pay the costs of the audit. If Landlord spends more than eight (8) hours to accommodate Tenant's right to audit hereunder, Tenant shall also pay to Landlord as additional rent Seventy-five Dollars ($75.00) per hour for each additional hour that Tenant's audit takes of Landlord's property manager's or asset manager's time, provided such audit discloses no error or an error greater than five percent review (5%) of the Total Expenses. The results of the audit (regardless of the degree of the error, if anyincluding legal and accounting costs) shall be binding upon Landlord and Tenant, and Landlord shall thereafter, if appropriate, change its method of calculating the Operating Expenses consistent with the results of the auditreimbursed by Landlord,not to exceed $7,500.00. Tenant agrees to hold the information obtained from Any error discovered by such audit confidential or review which is a recurring error shall also be corrected and shall not disclose the same without Landlord's express written permission except as necessary to enforce the Lease or protect Tenant's rights hereunder. If Tenant shall not elect to cause an audit within the time period permitted hereby, then Landlord's statement any overpayment shall be conclusively deemed to have been approved and accepted by Tenant. Pending resolution of any dispute with respect to statements of Tenant's Annual Rental Adjustment, Tenant shall pay its Annual Rental Adjustment as shown on such statement, and upon final determination of the amount of Tenant's Annual Rental Adjustment, Landlord shall promptly refund any overpayment to Tenant or Tenant shall promptly pay any amount due to Landlord, as applicablerefunded.
Appears in 1 contract
Samples: R & B Inc
Payment of Additional Rent. In addition to the Minimum Annual The Additional Rent specified in this LeaseSubsections 4.2(b) and (c) shall be paid and adjusted with reference to a fiscal period of 12 calendar months, which shall be the 12 month period ending on December 31st in each year during the Term unless the Landlord, by notice to the Tenant, shall from time to time have selected a fiscal period which ends on a different date provided that any change shall not have the effect of increasing Additional Rent payable (but which shall be a 12 month period except where a shorter broken fiscal period occurs at the commencement or end of the Term or is necessary to accommodate a change in the fiscal period made during the Term). From time to time throughout the Term, the Landlord shall give written notice to the Tenant of the Landlord's estimate of such Additional Rent to be paid by the Tenant during the next ensuing fiscal period. Each estimate shall be reasonable and equitable. Such Additional Rent payable by the Tenant shall pay to Landlord as "Additional Rent" for the Leased Premises, be paid in each calendar year or partial calendar year, during the Lease Term, an amount equal to the Annual Rental Adjustment excluding Real Estate Taxes for such calendar year or partial calendar year. In the case of the calendar year of the Commencement Date, Landlord shall provide such notice prior to the Commencement Date. The Annual Rental Adjustment excluding Real Estate Taxes shall be estimated annually by Landlord, and written notice thereof shall be given to Tenant prior to the beginning of each calendar year. Tenant shall pay to Landlord each month, monthly instalments in advance at the same time as payment of Basic Rent is due hereunder and shall be based on the Monthly Rental Installment is due, an amount equal Landlord's estimate as aforesaid. From time to one-twelfth (1/12) of time the estimated Annual Rental Adjustment excluding Real Estate Taxes. If the cost of utility, janitorial or other services increase during a calendar year, Landlord may increase the estimated Annual Rental Adjustment excluding Real Estate Taxes during such year by giving Tenant written notice to that effectre-estimate, on a reasonable and thereafter Tenant shall pay to Landlordequitable basis, in each of the remaining months of such year, an amount equal to the amount of such increase Additional Rent for any fiscal period in which case the estimated Annual Rental Adjustment excluding Real Estate Taxes Landlord shall give notice to the Tenant of such re-estimate and fix new equal monthly instalments for the remainder remaining balance of such fiscal period so that, after giving credit for the instalments paid by the Tenant on the basis of the year divided previous estimate or estimates, all the Additional Rent as estimated or re-estimated will have been paid during such fiscal period. All Additional Service Costs shall be paid by the number of months remaining in such year. Within a reasonable time after the end of each calendar year, Landlord shall prepare and deliver to Tenant a statement showing the actual Annual Rental Adjustment excluding Real Estate Taxes. Within within thirty (30) days after receipt by it from time to time of the aforementioned statement, Tenant shall pay to Landlord, or Landlord shall credit against the next rent payment or payments due from Tenant, as the case may be, the difference between the actual Annual Rental Adjustment excluding Real Estate Taxes for the preceding calendar year and the estimated amount paid by Tenant to Landlord during such year. In addition, Tenant shall pay, before delinquency, any and all Real Estate Taxes as defined in Section 3.02.D, above, directly to the appropriate taxing authority. If Tenant fails for any reason to pay the Real Estate Taxes when same is due and payable, Landlord shall have the right, but not the obligation, to pay the Real Estate Taxes directly to the taxing authority and Tenant shall immediately reimburse Landlord for the cost thereof. Such amount shall accrue interest invoices from the date Landlord pays such amount, pursuant to Section 3.04, below, shall include any penalties, late fees and any interest assessed due to such delinquency. Tenant or its accountants shall have the right to inspect, at reasonable time and in a reasonable manner, during the one hundred twenty (120) day period following the delivery of Landlord's statement of the actual amount of the Annual Rental Adjustment excluding Real Estate Taxes, such of Landlord's books of account and records as pertain to and contain information concerning such costs and expenses for the Building for the prior calendar year in order to verify specifying the amounts thereof. In the event the first audit discloses (i) errors made during the prior calendar year which, when totaled, indicate that the sum overcharged to and paid by Tenant, exceeds five percent (5%) of the Annual Rental Adjustment excluding Real Estate Taxes plus Landlord's Share of Operating Expenses (the "Total Expenses"), the audit shall be at the expense of Landlord, not to exceed Two Thousand Five Hundred Dollars ($2,500.00), or (ii) no errors or an error which equals or is less than five percent (5%) of the Total Expenses, the audit shall be at the expense of Tenant. For each subsequent audit, where the audit discloses errors exceeding five percent (5%) of the Total Expenses, Landlord shall pay for such audit and, if the audit discloses errors equal to or less than five percent (5%) of the Total Expenses, Tenant shall pay the costs of the audit. If Landlord spends more than eight (8) hours to accommodate Tenant's right to audit hereunder, Tenant shall also pay to Landlord as additional rent Seventy-five Dollars ($75.00) per hour for each additional hour that Tenant's audit takes of Landlord's property manager's or asset manager's time, provided such audit discloses no error or an error greater than five percent (5%) of the Total Expenses. The results of the audit (regardless of the degree of the error, if any) shall be binding upon Landlord and Tenant, and Landlord shall thereafter, if appropriate, change its method of calculating the Operating Expenses consistent with the results of the audit. Tenant agrees to hold the information obtained from such audit confidential and shall not disclose the same without Landlord's express written permission except as necessary to enforce the Lease or protect Tenant's rights hereunder. If Tenant shall not elect to cause an audit within the time period permitted hereby, then Landlord's statement shall be conclusively deemed to have been approved and accepted by Tenant. Pending resolution of any dispute with respect to statements of Tenant's Annual Rental Adjustment, Tenant shall pay its Annual Rental Adjustment as shown on such statement, and upon final determination of the amount of Tenant's Annual Rental Adjustment, Landlord shall promptly refund any overpayment to Tenant or Tenant shall promptly pay any amount due to Landlord, as applicable.
Appears in 1 contract
Samples: Lease Amending Agreement (Kroll Inc)
Payment of Additional Rent. In addition to Commencing on the Minimum Annual Rent specified in this LeaseCommencement Date, Tenant shall pay to Landlord as "Additional Rent" for the Leased Premises, in each calendar year or partial calendar year, during the Lease Term, an amount equal to the Annual Rental Adjustment excluding Real Estate Taxes for such calendar year or partial calendar year. In the case of the calendar year of the Commencement Date, Landlord shall provide such notice prior to the Commencement Date. The Annual Rental Adjustment excluding Real Estate Taxes shall be estimated annually by Landlord, and written notice thereof shall be given to Tenant prior to the beginning of each calendar year. Tenant shall pay to Landlord each month, at the same time the Monthly Rental Installment is due, an amount equal to Rent one-twelfth (1/12) of the estimated Annual Rental Adjustment excluding Real Estate Taxes. If Estimated Costs Allocable to the cost of utility, janitorial or other services increase during a calendar year, Landlord may increase the estimated Annual Rental Adjustment excluding Real Estate Taxes during such year by giving Tenant written notice to that effect, and thereafter Tenant shall pay to Landlord, Premises in each lawful money of the remaining months United States in advance on or before the first day of such yeareach month, an amount equal without deduction or offset, at the address specified in Section 5. Prior to the amount of such increase in the estimated Annual Rental Adjustment excluding Real Estate Taxes for the remainder of the year divided by the number of months remaining in such year. Within a reasonable time after the end commencement of each calendar yearLease Year during the Lease Term, Landlord shall prepare and deliver to furnish Tenant a statement showing the actual Annual Rental Adjustment excluding Real Estate Taxes. Within thirty (30) days after receipt of the aforementioned statement, Tenant shall pay to Landlord, or Landlord shall credit against the next rent payment or payments due from Tenant, as the case may be, the difference between the actual Annual Rental Adjustment excluding Real Estate Taxes for the preceding calendar year and the estimated amount paid by Tenant to Landlord during such year. In addition, Tenant shall pay, before delinquency, any and all Real Estate Taxes as defined in Section 3.02.D, above, directly to the appropriate taxing authority. If Tenant fails for any reason to pay the Real Estate Taxes when same is due and payable, Landlord shall have the right, but not the obligation, to pay the Real Estate Taxes directly to the taxing authority and Tenant shall immediately reimburse Landlord for the cost thereof. Such amount shall accrue interest from the date Landlord pays such amount, pursuant to Section 3.04, below, shall include any penalties, late fees and any interest assessed due to such delinquency. Tenant or its accountants shall have the right to inspect, at reasonable time and in a reasonable manner, during the one hundred twenty (120) day period following the delivery of Landlord's written statement of the actual amount Estimated Costs Allocable to the Premises for such Lease Year, together with the calculation of the Annual Rental Adjustment excluding Real Estate Taxes, estimated monthly Additional Rent payable during such of Lease Year. If at any time or times during such Lease Year it appears to Landlord that the Actual Costs Allocable to the Premises will vary from Landlord's books of account and records as pertain to and contain information concerning such costs and expenses for the Building for the prior calendar year in order to verify the amounts thereof. In the event the first audit discloses (i) errors made during the prior calendar year which, when totaled, indicate that the sum overcharged to and paid estimate by Tenant, exceeds five percent (5%) of the Annual Rental Adjustment excluding Real Estate Taxes plus Landlord's Share of Operating Expenses (the "Total Expenses"), the audit shall be at the expense of Landlord, not to exceed Two Thousand Five Hundred Dollars ($2,500.00), or (ii) no errors or an error which equals or is less more than five percent (5%) of the Total Expenseson an annual basis, the audit Landlord may, by written notice to Tenant, revise Landlord's estimate for such Lease Year, and subsequent Additional Rent payments by Tenant for such Lease Year shall be at recalculated based on Landlord's revised Estimated Costs Allocable to the expense Premises. Within ninety (90) days after the close of Tenant. For each subsequent auditLease Year during the Lease Term, where or as soon thereafter as practicable, but not later than one hundred twenty (120) days after the audit discloses errors exceeding five percent (5%) close of the Total Expensessuch Lease Year, Landlord shall deliver to Tenant a written statement setting forth the Actual Costs Allocable to the Premises during the preceding Lease Year. If such costs for any Lease Year exceed Estimated Costs Allocable to the Premises paid by Tenant to Landlord, Tenant shall pay for the amount of such excess to Landlord as Additional Rent within forty-five (45) days after receipt of such statement by Tenant. If such statement shows such costs to be less than the amount paid by Tenant to Landlord, then the amount of such overpayment by Tenant shall be credited by Landlord to the next immediate Rent payable by Tenant. Tenant shall have the right, at Tenant's sole expense, to audit andLandlord's books regarding Actual Costs, provided that (i) such right shall not be exercised more than once each calendar year, and (ii) such right must be exercised, if at all, by delivery of written notice to Landlord on or before thirty (30) days after Landlord's delivery of the written statement setting forth Actual Costs Allocable to the Premises during the preceding Lease Year. If the audit discloses errors equal reveals that Landlord's statement is determined to or less be in error by more than five percent (5%) ), the amount of Additional Rent payable by Tenant attributable to Actual Costs Allocable to the Total Expenses, Tenant Premises shall pay be recalculated based upon the costs results of the any such audit. If Landlord spends more the Expiration Date is a day other than eight (8) hours to accommodate Tenant's right to audit hereunderthe last day of a Lease Year, Tenant shall also pay to Landlord as additional rent Seventy-five Dollars ($75.00) per hour for each additional hour that Tenant's audit takes of Landlord's property manager's or asset manager's time, provided such audit discloses no error or an error greater than five percent (5%) of the Total Expenses. The results of the audit (regardless of the degree of the error, if any) shall be binding upon Landlord and Tenant, and Landlord shall thereafter, if appropriate, change its method of calculating the Operating Expenses consistent with the results of the audit. Tenant agrees to hold the information obtained from such audit confidential and shall not disclose the same without Landlord's express written permission except as necessary to enforce the Lease or protect Tenant's rights hereunder. If Tenant shall not elect to cause an audit within the time period permitted hereby, then Landlord's statement shall be conclusively deemed to have been approved and accepted by Tenant. Pending resolution amount of any dispute adjustment between Actual Costs and Estimated Costs Allocable to the Premises with respect to statements the Lease Year in which such termination occurs shall be prorated on the basis of Tenant's Annual Rental Adjustment, Tenant shall pay its Annual Rental Adjustment as shown on such statement, and upon final determination of the a 365-day year. Any amount of Tenant's Annual Rental Adjustment, payable by Landlord shall promptly refund any overpayment to Tenant or by Tenant to Landlord with respect to such adjustment shall promptly pay any amount due be payable within forty-five (45) days after delivery by Landlord to Landlord, as applicableTenant of the Statement of Actual Costs Allocable to the Premises with respect to such Lease Year.
Appears in 1 contract
Payment of Additional Rent. In addition Landlord shall have the right to reasonably estimate the Minimum Annual Rent specified in this LeaseOperating Expenses for each Operating Year. Upon Landlord’s or Agent’s notice to Tenant of such estimated amount, Tenant shall pay to Landlord as "Additional Rent" for pay, on the Leased Premises, in first day of each calendar year or partial calendar year, month during the Lease Termthat Operating Year, an amount (the “Estimated Additional Rent”) equal to the Annual Rental Adjustment excluding Real Estate Taxes for such calendar year or partial calendar year. In the case estimate of the calendar year Tenant’s Proportionate Share of Operating Expenses divided by 12 (or the fractional portion of the Commencement Date, Landlord shall provide such notice prior to the Commencement Date. The Annual Rental Adjustment excluding Real Estate Taxes shall be estimated annually by Landlord, and written notice thereof shall be given to Tenant prior to the beginning of each calendar year. Tenant shall pay to Landlord each month, Operating Year remaining at the same time the Monthly Rental Installment is due, an amount equal to one-twelfth (1/12) Landlord delivers its notice of the estimated Annual Rental Adjustment excluding Real Estate Taxes. If the cost of utility, janitorial or other services increase during a calendar year, Landlord may increase the estimated Annual Rental Adjustment excluding Real Estate Taxes during such year by giving Operating Expenses due from Tenant written notice to for that effect, and thereafter Tenant shall pay to Landlord, in each of the remaining months of such year, an amount equal to the amount of such increase in the estimated Annual Rental Adjustment excluding Real Estate Taxes for the remainder of the year divided by the number of months remaining in such yearOperating Year). Within a reasonable time sixty (60) days after the end of each calendar yearOperating Year, Landlord shall prepare and deliver a written statement to Tenant a statement showing detailing the actual Annual Rental Adjustment excluding Real Estate TaxesOperating Expenses incurred during the preceding Operating Year: (“Landlord’s Statement”). Within If the aggregate amount of Estimated Additional Rent actually paid by Tenant during any Operating Year is less than Tenant’s actual ultimate liability for Operating Expenses for that particular Operating Year, Tenant shall pay the deficiency within thirty (30) days of Landlord’s written demand therefore. If the aggregate amount of Estimated Additional Rent actually paid by Tenant during a given Operating Year exceeds Tenant’s actual liability for such Operating Year, the excess shall be credited against the Estimated Additional Rent next due from Tenant during the immediately subsequent Operating Year, except that in the event that such excess is paid by Tenant during the final lease Year, then upon the expiration of the Term, Landlord or Agent shall pay Tenant the then-applicable excess within thirty (30) days after receipt of the aforementioned statement, Tenant shall pay to Landlord, or Landlord shall credit against the next rent payment or payments due from Tenant, as the case may be, the difference between the actual Annual Rental Adjustment excluding Real Estate Taxes for the preceding calendar year and the estimated amount paid by Tenant to Landlord during such year. In addition, Tenant shall pay, before delinquency, any and all Real Estate Taxes as defined in Section 3.02.D, above, directly to the appropriate taxing authority. If Tenant fails for any reason to pay the Real Estate Taxes when same is due and payable, Landlord shall have the right, but not the obligation, to pay the Real Estate Taxes directly to the taxing authority and Tenant shall immediately reimburse Landlord for the cost determination thereof. Such amount shall accrue No interest from the date Landlord pays such amount, pursuant to Section 3.04, below, shall include any penalties, late fees and any interest assessed due to such delinquency. Tenant or its accountants shall have the right to inspect, at reasonable time and in a reasonable manner, during the one hundred twenty (120) day period following the delivery of Landlord's statement of the actual amount of the Annual Rental Adjustment excluding Real Estate Taxes, such of Landlord's books of account and records as pertain to and contain information concerning such costs and expenses for the Building for the prior calendar year in order to verify the amounts thereof. In the event the first audit discloses (i) errors made during the prior calendar year which, when totaled, indicate that the sum overcharged to and paid by Tenant, exceeds five percent (5%) of the Annual Rental Adjustment excluding Real Estate Taxes plus Landlord's Share of Operating Expenses (the "Total Expenses"), the audit shall be at the expense of Landlord, not to exceed Two Thousand Five Hundred Dollars ($2,500.00), or (ii) no errors or an error which equals or is less than five percent (5%) of the Total Expenses, the audit shall be at the expense of Tenant. For each subsequent audit, where the audit discloses errors exceeding five percent (5%) of the Total Expenses, Landlord shall pay for such audit and, if the audit discloses errors equal to or less than five percent (5%) of the Total Expenses, Tenant shall pay the costs of the audit. If Landlord spends more than eight (8) hours to accommodate Tenant's right to audit hereunder, Tenant shall also pay to Landlord as additional rent Seventy-five Dollars ($75.00) per hour for each additional hour that Tenant's audit takes of Landlord's property manager's or asset manager's time, provided such audit discloses no error or an error greater than five percent (5%) of the Total Expenses. The results of the audit (regardless of the degree of the error, if any) shall be binding upon Landlord and Tenant, and Landlord shall thereafter, if appropriate, change its method of calculating the Operating Expenses consistent with the results of the audit. Tenant agrees to hold the information obtained from such audit confidential and shall not disclose the same without Landlord's express written permission except as necessary to enforce the Lease or protect Tenant's rights hereunder. If Tenant shall not elect to cause an audit within the time period permitted hereby, then Landlord's statement shall be conclusively deemed to have been approved and accepted by Tenant. Pending resolution of any dispute with respect to statements of Tenant's Annual Rental Adjustment, Tenant shall pay its Annual Rental Adjustment as shown on such statement, and upon final determination of the amount of Tenant's Annual Rental Adjustment, Landlord shall promptly refund any overpayment payable to Tenant or Tenant shall promptly pay any amount due to Landlord, as applicableon account of such payments of Estimated Additional Rent and such payments may be commingled.
Appears in 1 contract
Samples: Digital Lightwave Inc
Payment of Additional Rent. In addition to The Landlord shall estimate the Minimum Annual amount of the Additional Rent specified in this Leasepayable by the Tenant at the commencement of each Lease Year, or fraction of a Lease Year within the Term. The Tenant shall pay to the Landlord as "the Additional Rent" Rent in equal monthly installments in advance throughout the period for which the Leased Premises, in each calendar year or partial calendar year, during estimate is made. The Landlord may periodically revise its estimates and notify the Lease Term, an amount equal to the Annual Rental Adjustment excluding Real Estate Taxes for such calendar year or partial calendar year. In the case Tenant of the calendar year of the Commencement Date, Landlord shall provide such notice prior to the Commencement Date. The Annual Rental Adjustment excluding Real Estate Taxes shall be estimated annually by Landlordrevised estimates, and written notice thereof shall the Tenant’s monthly payments will be given to Tenant prior to the beginning of each calendar year. Tenant shall pay to Landlord each month, at the same time the Monthly Rental Installment is due, an amount equal to one-twelfth (1/12) of the estimated Annual Rental Adjustment excluding Real Estate Taxes. If the cost of utility, janitorial or other services increase during a calendar year, Landlord may increase the estimated Annual Rental Adjustment excluding Real Estate Taxes during such year by giving Tenant written notice to that effect, and thereafter Tenant shall pay to Landlord, in each of the remaining months of such year, an amount equal to the amount of such increase in the estimated Annual Rental Adjustment excluding Real Estate Taxes for the remainder of the year divided by the number of months remaining in such yearadjusted accordingly. Within a reasonable time 120 days after the end of each calendar yeara Lease Year and upon a reasonable period of time after the expiry of the Lease, the Landlord shall prepare and deliver will provide to the Tenant a statement showing of the actual Annual Rental Adjustment excluding Real Estate Taxesamounts payable by the Tenant, showing in reasonable detail the determination of the costs and the calculation of the Tenant’s payment (the “Statement”). Within Any amounts owing by the Tenant to the Landlord will be paid within thirty (30) days after receipt the date of delivery of the aforementioned statementStatement by the Landlord. Provided the Tenant is not in default under this Lease, any amounts owing by the Landlord to the Tenant shall pay will be credited to Landlordthe Tenant’s account, without interest. The Landlord shall, within ten (10) days of the Tenant’s request, provide reasonable access to the Tenant or Landlord shall credit against the next rent payment Tenant’s accountants or payments due from Tenant, as the case may be, the difference between the actual Annual Rental Adjustment excluding Real Estate auditors to its books and records with respect to Operating Costs and Realty Taxes for examination by them, at the preceding calendar year Tenant’s cost, at the Landlord’s office or offices where such records and books are kept. Notwithstanding the estimated amount paid by Tenant Tenant’s right to Landlord during such year. In additionquestion, Tenant it shall pay, before delinquency, any and all Real Estate Taxes as defined in Section 3.02.D, above, directly to the appropriate taxing authority. If Tenant fails for any reason continue to pay the Real Estate Taxes Rent as and when same is due and payable, Landlord shall have the right, but not the obligation, to pay the Real Estate Taxes directly to the taxing authority and due. The Tenant shall immediately reimburse not be entitled to dispute the accuracy of any statement provided by the Landlord in accordance with the foregoing or claim any reimbursement or adjustment in respect of Additional Rent owing for a Lease Year after the cost thereof. Such amount shall accrue interest expiry of six (6) months from the date Landlord pays such amount, pursuant to Section 3.04, below, shall include any penalties, late fees and any interest assessed due to such delinquency. of receipt by the Tenant or its accountants shall have the right to inspect, at reasonable time and in a reasonable manner, during the one hundred twenty (120) day period following the delivery of Landlord's statement of the actual amount of the Annual Rental Adjustment excluding Real Estate Taxes, such of Landlord's books of account and records as pertain to and contain information concerning such costs and expenses for the Building for the prior calendar year in order to verify the amounts thereof. In the event the first audit discloses (i) errors made during the prior calendar year which, when totaled, indicate that the sum overcharged to and paid by Tenant, exceeds five percent (5%) of the Annual Rental Adjustment excluding Real Estate Taxes plus Landlord's Share of Operating Expenses (the "Total Expenses"), the audit shall be at the expense of Landlord, not to exceed Two Thousand Five Hundred Dollars ($2,500.00), or (ii) no errors or an error which equals or is less than five percent (5%) of the Total Expenses, the audit shall be at the expense of Tenant. For each subsequent audit, where the audit discloses errors exceeding five percent (5%) of the Total Expenses, Landlord shall pay ’s Statement for such audit and, if the audit discloses errors equal to or less than five percent (5%) of the Total Expenses, Tenant shall pay the costs of the audit. If Landlord spends more than eight (8) hours to accommodate Tenant's right to audit hereunder, Tenant shall also pay to Landlord as additional rent Seventy-five Dollars ($75.00) per hour for each additional hour that Tenant's audit takes of Landlord's property manager's or asset manager's time, provided such audit discloses no error or an error greater than five percent (5%) of the Total Expenses. The results of the audit (regardless of the degree of the error, if any) shall be binding upon Landlord and Tenant, and Landlord shall thereafter, if appropriate, change its method of calculating the Operating Expenses consistent with the results of the audit. Tenant agrees to hold the information obtained from such audit confidential and shall not disclose the same without Landlord's express written permission except as necessary to enforce the Lease or protect Tenant's rights hereunder. If Tenant shall not elect to cause an audit within the time period permitted hereby, then Landlord's statement shall be conclusively deemed to have been approved and accepted by Tenant. Pending resolution of any dispute with respect to statements of Tenant's Annual Rental Adjustment, Tenant shall pay its Annual Rental Adjustment as shown on such statement, and upon final determination of the amount of Tenant's Annual Rental Adjustment, Landlord shall promptly refund any overpayment to Tenant or Tenant shall promptly pay any amount due to Landlord, as applicableYear.
Appears in 1 contract
Samples: Lease (Adsero Corp)
Payment of Additional Rent. In addition Landlord shall have the right to reasonably estimate the Operating Expenses for each Operating Year. Tenant shall pay, on the first day of each month during that Operating Year, an amount (the "Estimated Additional Rent") equal to the Minimum Annual estimate of the Tenant's Proportionate Share of Operating Expenses divided by 12 (or the fractional portion of the Operating Year remaining at the time Landlord delivers its notice of the estimated amounts due from Tenant for that Operating Year). Landlord shall deliver a statement of Operating Expenses to Tenant promptly following each Operating Year; Landlord shall deliver backup documentation to Tenant regarding any such statement, upon Tenant's written request. If the aggregate amount of Estimated Additional Rent specified in this Leaseactually paid by Tenant during any Operating Year is less than Tenant's actual ultimate liability for Operating Expenses for that particular Operating Year, Tenant shall pay to Landlord as "the deficiency within 30 days of Landlord's written demand. If the aggregate amount of Estimated Additional Rent" Rent actually paid by Tenant during a given Operating Year exceeds Tenant's actual liability for such Operating Year, the Leased Premises, in each calendar year or partial calendar year, excess shall be credited against the Estimated Additional Rent next due from Tenant during the immediately subsequent Operating Year, except that in the event that such excess is paid by Tenant during the final Lease Year, then upon the expiration of the Term, an amount equal Landlord shall pay Tenant the then-applicable excess promptly after determination thereof, provided that there are no other amounts due and owing by Tenant to the Annual Rental Adjustment excluding Real Estate Taxes for such calendar year or partial calendar yearLandlord. In the case event that any item of the calendar year of the Commencement DateOperating Expenses has not been included in Tenant's Estimated Additional Rent payments, Landlord shall provide such notice prior have the right to the Commencement Date. The Annual Rental Adjustment excluding Real Estate Taxes shall be estimated annually by Landlordbill Tenant for any xxxh cost, which incurred, and written notice thereof shall be given to Tenant prior to the beginning of each calendar year. Tenant shall pay to the Landlord each month, at the same time the Monthly Rental Installment is due, an invoiced amount equal to one-twelfth (1/12) of the estimated Annual Rental Adjustment excluding Real Estate Taxes. If the cost of utility, janitorial or other services increase during a calendar year, Landlord may increase the estimated Annual Rental Adjustment excluding Real Estate Taxes during such year by giving Tenant written notice to that effect, and thereafter Tenant shall pay to Landlord, in each of the remaining months of such year, an amount equal to the amount of such increase in the estimated Annual Rental Adjustment excluding Real Estate Taxes for the remainder of the year divided by the number of months remaining in such year. Within a reasonable time after the end of each calendar year, Landlord shall prepare and deliver to Tenant a statement showing the actual Annual Rental Adjustment excluding Real Estate Taxes. Within within thirty (30) days after receipt of the aforementioned statement, Tenant shall pay to Landlord, or Landlord shall credit against the next rent payment or payments due from Tenant, as the case may be, the difference between the actual Annual Rental Adjustment excluding Real Estate Taxes for the preceding calendar year and the estimated amount paid by Tenant to Landlord during such year. In addition, Tenant shall pay, before delinquency, any and all Real Estate Taxes as defined in Section 3.02.D, above, directly to the appropriate taxing authority. If Tenant fails for any reason to pay the Real Estate Taxes when same is due and payable, Landlord shall have the right, but not the obligation, to pay the Real Estate Taxes directly to the taxing authority and Tenant shall immediately reimburse Landlord for the cost thereof. Such amount shall accrue interest from the date Landlord pays such amount, pursuant to Section 3.04, below, shall include any penalties, late fees and any interest assessed due to such delinquency. Tenant or its accountants shall have the right to inspect, at reasonable time and in a reasonable manner, during the one hundred twenty (120) day period following the delivery of Landlord's statement of the actual amount of the Annual Rental Adjustment excluding Real Estate Taxes, such of Landlord's books of account and records as pertain to and contain information concerning such costs and expenses for the Building for the prior calendar year in order to verify the amounts thereofwritten demand therefor. In the event the first audit discloses (i) errors made during the prior calendar year which, when totaled, indicate that the sum overcharged to and paid by Tenant, exceeds five percent (5%) of the Annual Rental Adjustment excluding Real Estate Taxes plus Landlord's Share of Operating Expenses (the "Total Expenses"), the audit shall be at the expense of Landlord, not to exceed Two Thousand Five Hundred Dollars ($2,500.00), or (ii) no errors or an error which equals or is less than five percent (5%) of the Total Expenses, the audit shall be at the expense of Tenant. For each subsequent audit, where the audit discloses errors exceeding five percent (5%) of the Total Expenses, Landlord shall pay for such audit and, if the audit discloses errors equal to or less than five percent (5%) of the Total Expenses, Tenant shall pay the costs of the audit. If Landlord spends more than eight (8) hours to accommodate Tenant's right to audit hereunder, Tenant shall also pay to Landlord as additional rent Seventy-five Dollars ($75.00) per hour for each additional hour that Tenant's audit takes of Landlord's property manager's or asset manager's time, provided such audit discloses no error or an error greater than five percent (5%) of the Total Expenses. The results of the audit (regardless of the degree of the error, if any) shall be binding upon Landlord and Tenant, and Landlord shall thereafter, if appropriate, change its method of calculating the Operating Expenses consistent with the results of the audit. Tenant agrees to hold the information obtained from such audit confidential and shall not disclose the same without Landlord's express written permission except as necessary to enforce the Lease or protect Tenant's rights hereunder. If Tenant shall not elect to cause an audit within the time period permitted hereby, then Landlord's statement shall be conclusively deemed to have been approved and accepted by Tenant. Pending resolution of any dispute with respect to statements of Tenant's Annual Rental Adjustment, Tenant shall pay its Annual Rental Adjustment as shown on such statement, and upon final determination of the amount of Tenant's Annual Rental Adjustment, Landlord shall promptly refund any overpayment to Tenant or Tenant shall promptly pay any amount due to Landlord, as applicable4.
Appears in 1 contract
Samples: Classica Group Inc
Payment of Additional Rent. Landlord shall furnish Tenant, at -------------------------- least thirty (30) days prior to the commencement of each Calendar Year and from time to time (but not more than twice) during each such Calendar Year, written statements setting forth Landlord's then-current reasonable estimate of Tenant's Expense Participation Amount for such Calendar Year. Tenant shall pay to Landlord as Additional Rent on the first day of each month during each Calendar Year, together with the payment of Base Rent, if any, an amount equal to one- twelfth (1/12th) of Landlord's then-current reasonable estimate of Tenant's Proportionate Share Operating Expenses -Office Tower of Operating Expenses for the Office Tower for such Calendar Year and one-twelfth (1/12th) of Landlord's then-current reasonable estimate of Tenant's Proportionate Share Operating Expenses - Retail Space of Operating Expenses for the Retail Space for such Calendar Year, plus any amounts that would have been paid for months prior to the current month if Landlord's current estimate had been in effect during those months. Tenant shall pay to Landlord not later than fifteen (15) days prior to the date on which Taxes are required to be paid by Landlord, Tenant's Proportionate Share Taxes - Office Tower of Taxes payable for the Office Tower and Tenant's Proportionate Share Taxes - Retail Space of Taxes payable for the Retail Space for each Calendar Year. Landlord shall provide Tenant with a copy of the most recent Tax bills for the Office Tower and Retail Space and a statement indicating Tenant's Proportionate Share Taxes - Office Tower of Taxes for the Office Tower and Tenant's Proportionate Share Taxes - Retail Space of Taxes for the Retail Space at least forty (40) days prior to the date such Taxes are due. In addition to the Minimum Annual Rent specified in this Leaseforegoing, for the first twelve (12) months of the Term, on the first day of each such month, Tenant shall pay to Landlord as "Additional Rent" for the Leased Premises, in each calendar year or partial calendar year, during the Lease Term, an amount equal to the Annual Rental Adjustment excluding Real Estate sum of (i) one-twenty fourth (1/24th) of Tenant's Proportionate Share Taxes - Office Tower of Taxes for the Office Tower which were paid for Calendar Year 1996 and (ii) one-twenty fourth (1/24th) of Tenant's Proportionate Share Taxes -Retail Space of Taxes for the Retail Space which were paid for Calendar Year 1996 (said sum, the "Tax Escrow"). Landlord shall place the Tax Escrow in a separate account, invest such calendar year or partial calendar yearpayments in reasonable and liquid securities at the direction of Tenant and at Tenant's expense. In Following the case final payment of Taxes payable for the calendar year of the Commencement DateCalendar Year 1997 and each subsequent Calendar Year, Landlord shall provide such notice notify Tenant of any increases in Taxes from the prior to the Commencement Date. The Annual Rental Adjustment excluding Real Estate Taxes Calendar Year and shall be estimated annually by Landlord, and written notice thereof shall be given to Tenant prior to the beginning of each calendar year. Tenant shall pay to Landlord each month, at the same time the Monthly Rental Installment is due, an amount equal to one-twelfth (1/12) of the estimated Annual Rental Adjustment excluding Real Estate Taxes. If the cost of utility, janitorial or other services increase during a calendar year, Landlord may increase the estimated Annual Rental Adjustment excluding Real Estate Taxes during such year by giving Tenant written notice to that effect, and thereafter Tenant shall pay to Landlord, in each of the remaining months of such year, an amount equal to apply for Tenant's benefit any interest earned on the amount of such increase held in the estimated Annual Rental Adjustment excluding Real Estate Taxes for the remainder of the year divided by the number of months remaining in such year. Within a reasonable time after the end of each calendar year, Landlord shall prepare and deliver to Tenant a statement showing the actual Annual Rental Adjustment excluding Real Estate Taxes. Within thirty (30) days after receipt of the aforementioned statement, Tenant shall pay to Landlord, or Landlord shall credit against the next rent payment or payments due from Tenant, as the case may be, the difference between the actual Annual Rental Adjustment excluding Real Estate Taxes for the preceding calendar year and the estimated amount paid by Tenant to Landlord during such year. In addition, Tenant shall pay, before delinquency, any and all Real Estate Taxes as defined in Section 3.02.D, above, directly to the appropriate taxing authority. If Tenant fails for any reason to pay the Real Estate Taxes when same is due and payable, Landlord shall have the right, but not the obligation, to pay the Real Estate Taxes directly to the taxing authority and Tenant shall immediately reimburse Landlord for the cost thereof. Such amount shall accrue interest from the date Landlord pays such amount, pursuant to Section 3.04, below, shall include any penalties, late fees and any interest assessed due to such delinquency. Tenant or its accountants shall have the right to inspect, at reasonable time and in a reasonable manner, during the one hundred twenty (120) day period following the delivery of Landlord's statement of the actual amount of the Annual Rental Adjustment excluding Real Estate Taxes, such of Landlord's books of account and records as pertain to and contain information concerning such costs and expenses for the Building for the prior calendar year in order to verify the amounts thereof. In the event the first audit discloses (i) errors made Tax Escrow during the prior calendar year whichCalendar Year, when totaled, indicate that the sum overcharged and shall remit any excess interest to and paid by Tenant, exceeds five percent (5%) of or request Tenant to fund any shortfall into the Annual Rental Adjustment excluding Real Estate Taxes plus Landlord's Share of Operating Expenses (Tax Escrow, so that at all times the "Total Expenses"), the audit Tax Escrow shall be contain at the expense of Landlord, not to exceed Two Thousand Five Hundred Dollars ($2,500.00), or (ii) no errors or an error which equals or is less than five percent (5%) of the Total Expenses, the audit shall be at the expense of Tenant. For each subsequent audit, where the audit discloses errors exceeding five percent (5%) of the Total Expenses, Landlord shall pay for such audit and, if the audit discloses errors equal to or less than five percent (5%) of the Total Expenses, Tenant shall pay the costs of the audit. If Landlord spends more than eight (8) hours to accommodate Tenant's right to audit hereunder, Tenant shall also pay to Landlord as additional rent Seventy-five Dollars ($75.00) per hour for each additional hour that Tenant's audit takes of Landlord's property manager's or asset manager's time, provided such audit discloses no error or an error greater than five percent (5%) of the Total Expenses. The results of the audit (regardless of the degree of the error, if any) shall be binding upon Landlord and Tenant, and Landlord shall thereafter, if appropriate, change its method of calculating the Operating Expenses consistent with the results of the audit. Tenant agrees to hold the information obtained from such audit confidential and shall not disclose the same without Landlord's express written permission except as necessary to enforce the Lease or protect Tenant's rights hereunder. If Tenant shall not elect to cause an audit within the time period permitted hereby, then Landlord's statement shall be conclusively deemed to have been approved and accepted by Tenant. Pending resolution of any dispute with respect to statements of Tenant's Annual Rental Adjustment, Tenant shall pay its Annual Rental Adjustment as shown on such statement, and upon final determination lease one half of the amount of Tenant's Annual Rental Adjustment, Landlord shall promptly refund any overpayment to Tenant or Proportionate Share Taxes - Office Tower of Taxes for the Office Tower and Tenant's Proportionate Share Taxes - Retail Space of Taxes for the Retail Space paid for the then most recent Calendar Year. Tenant shall promptly pay deposit into the Tax Escrow any such shortfall amount due to Landlord, as applicable.within thirty
Appears in 1 contract
Samples: Lease (Bcom3 Group Inc)
Payment of Additional Rent. In addition Landlord shall have the right to reasonably estimate the Minimum Annual Rent specified in this LeaseOperating Expenses for each Operating Year. Upon Landlord’s or Agent’s notice to Tenant of such estimated amount, Tenant shall pay to Landlord as "Additional Rent" for pay, on the Leased Premises, in first day of each calendar year or partial calendar year, month during the Lease Termthat Operating Year, an amount (the “Estimated Additional Rent”) equal to the Annual Rental Adjustment excluding Real Estate Taxes for such calendar year or partial calendar year. In the case estimate of the calendar year Tenant’s Share of Operating Expenses divided by 12 (or the fractional portion of the Commencement Date, Landlord shall provide such notice prior to the Commencement Date. The Annual Rental Adjustment excluding Real Estate Taxes shall be estimated annually by Landlord, and written notice thereof shall be given to Tenant prior to the beginning of each calendar year. Tenant shall pay to Landlord each month, Operating Year remaining at the same time the Monthly Rental Installment is due, an amount equal to one-twelfth (1/12) Landlord delivers its notice of the estimated Annual Rental Adjustment excluding Real Estate Taxes. If the cost of utility, janitorial or other services increase during a calendar year, Landlord may increase the estimated Annual Rental Adjustment excluding Real Estate Taxes during such year by giving Operating Expenses due from Tenant written notice to for that effect, and thereafter Tenant shall pay to Landlord, in each of the remaining months of such year, an amount equal to the amount of such increase in the estimated Annual Rental Adjustment excluding Real Estate Taxes for the remainder of the year divided by the number of months remaining in such yearOperating Year). Within a reasonable time ninety (90) days after the end of each calendar yearOperating Year, Landlord shall prepare and deliver to Tenant a an annual statement showing (the actual “Annual Rental Adjustment excluding Real Estate TaxesStatement”) of the Additional Rent payable under Section 3.2 for such Operating Year. Within If the Annual Statement shows that Tenant’s payments of Estimated Additional Rent for such Operating Year exceeded Tenant’s obligations for such Operating Year, Landlord shall at its option either (1) credit the excess to the next succeeding installments of Rent or (2) pay the excess to Tenant within thirty (30) days after receipt delivery of such Annual Statement. If the aforementioned statementAnnual Statement shows that Tenant’s payments of Estimated Additional Rent for such Operating Year were less than Tenant’s obligation for such Operating Year, Tenant shall pay the deficiency to Landlord, or Landlord shall credit against within thirty (30) days after delivery of the next rent payment or payments due from Tenant, as Annual Statement. In the case may be, event that the difference between the actual Annual Rental Adjustment excluding Real Estate Taxes for the preceding calendar year and the estimated amount Estimated Additional Rent paid by Tenant to Landlord during the final Lease Year exceeds the actual Additional Rent due for such year. In additionLease Year, then upon the expiration of the Term, and provided there is no uncured default by Tenant shall pay, before delinquency, any and all Real Estate Taxes as defined in Section 3.02.D, above, directly to the appropriate taxing authority. If Tenant fails for any reason to pay the Real Estate Taxes when same is due and payableunder this Lease, Landlord or Agent shall have pay Tenant the right, but not the obligation, to pay the Real Estate Taxes directly to the taxing authority and Tenant shall immediately reimburse Landlord for the cost thereof. Such amount shall accrue interest from the date Landlord pays such amount, pursuant to Section 3.04, below, shall include any penalties, late fees and any interest assessed due to such delinquency. Tenant or its accountants shall have the right to inspect, at reasonable time and in a reasonable manner, during the one hundred twenty (120) day period following the delivery of Landlord's statement of the actual amount of the Annual Rental Adjustment excluding Real Estate Taxes, such of Landlord's books of account and records as pertain to and contain information concerning such costs and expenses for the Building for the prior calendar year in order to verify the amounts then applicable excess promptly after determination thereof. In the event the first audit discloses (i) errors made during the prior calendar year which, when totaled, indicate that the sum overcharged to and paid by Tenant, exceeds five percent (5%) upon expiration of the Annual Rental Adjustment excluding Real Estate Taxes plus Landlord's Share of Operating Expenses (the "Total Expenses"), the audit shall be at the expense of Landlord, not to exceed Two Thousand Five Hundred Dollars ($2,500.00), or (ii) no errors or an error which equals or is less than five percent (5%) of the Total Expenses, the audit shall be at the expense of Tenant. For each subsequent audit, where the audit discloses errors exceeding five percent (5%) of the Total Expenses, Landlord shall pay for such audit and, if the audit discloses errors equal to or less than five percent (5%) of the Total Expenses, Tenant shall pay the costs of the audit. If Landlord spends more than eight (8) hours to accommodate Tenant's right to audit hereunder, Tenant shall also pay to Landlord as additional rent Seventy-five Dollars ($75.00) per hour for each additional hour that Tenant's audit takes of Landlord's property manager's or asset manager's time, provided such audit discloses no error or an error greater than five percent (5%) of the Total Expenses. The results of the audit (regardless of the degree of the error, if any) shall be binding upon Term a bona fide dispute exists between Landlord and Tenant, and Landlord shall thereafter, if appropriate, change its method of calculating the Operating Expenses consistent with the results of the audit. Tenant agrees to hold the information obtained from such audit confidential and shall not disclose the same without Landlord's express written permission except as necessary to enforce the Lease or protect Tenant's rights hereunder. If Tenant shall not elect to cause an audit within the time period permitted hereby, then Landlord's statement shall be conclusively deemed to have been approved and accepted by Tenant. Pending resolution of any dispute with respect to statements the existence of Tenant's Annual Rental Adjustmentan uncured default, Tenant shall pay its Annual Rental Adjustment the parties will diligently and in good faith attempt to resolve the dispute as shown on such statement, expeditiously as possible and upon final determination payment of the excess amount will be suspended pending resolution of Tenant's Annual Rental Adjustmentthe dispute. In the event that mediation or arbitration of the dispute becomes necessary after the expiration of the Lease Term, Landlord each party will bear their own costs and attorney’s fees. No interest shall promptly refund any overpayment be payable to Tenant or Tenant shall promptly pay any amount due to Landlord, as applicableon account of such payments of Estimated Additional Rent and such payments may be commingled.
Appears in 1 contract
Samples: Magnetek, Inc.
Payment of Additional Rent. In addition to (a) Landlord shall estimate the Minimum Annual Rent specified in this LeaseTaxes and the Premises’ Operating Expenses not directly paid by Tenant (e.g., Assessments and Insurance costs), and Tenant shall pay to Landlord as "Additional Rent" for the Leased Premises, in each calendar year or partial calendar year, during the Lease Term, an amount equal to the Annual Rental Adjustment excluding Real Estate Taxes for such calendar year or partial calendar year. In the case of the calendar year of the Commencement Date, Landlord shall provide such notice prior to the Commencement Date. The Annual Rental Adjustment excluding Real Estate Taxes shall be estimated annually by Landlord, and written notice thereof shall be given to Tenant prior to the beginning of each calendar year. Tenant shall pay to Landlord each month, at the same time the Monthly Rental Installment is due, an amount equal to one-twelfth (1/12) thereof monthly in advance, together with each monthly payment of Base Rent. Landlord shall estimate and account for Premises’ Operating Expenses on a calendar-year basis and shall provide notice and reasonable documentation of prior years’ actual expenses and the estimate of the then-current calendar year's Premises’ Operating Expenses (“Annual Operating Cost Recap”) no later than May 1 of each year with the change in estimated payment to be effective the first day of the month at least 30 days after delivery of the Annual Rental Adjustment excluding Real Estate TaxesOperating Cost Recap but in no event later than the June Rent payment each year. If at any time during any Lease Year Landlord determines that the cost of utility, janitorial or other services increase during a calendar year, Landlord may increase actual Premises’ Operating Expenses have changed over the estimated Annual Rental Adjustment excluding Real Estate Taxes during such year costs by giving Tenant written notice to that effect, and thereafter Tenant shall pay to Landlord, in each of the remaining months of such yearan identifiable amount (e.g., an amount equal to increase or decrease in insurance cost or Regular or Special Assessments), the amount Landlord shall provide Tenant notice and reasonable documentation of such increase in said change and the estimated Annual Rental Adjustment excluding Real Estate Taxes for monthly Additional Rent shall be adjusted effective with the remainder of the year divided by the number of months remaining next following Rent Payment, but in such yearno event less than twenty (20) days following Landlord’s notice. Within a reasonable time after ninety (90) days following the end of each calendar year, Landlord shall prepare furnish Tenant statements of the actual Taxes and deliver the actual Premises’ Operating Expenses not directly paid by Tenant for that year, and there shall be an adjustment between Landlord and Tenant, with payment to Landlord or credit to Tenant a statement showing against future Rent (or payment to Tenant if at the actual Annual Rental Adjustment excluding Real Estate Taxes. Within thirty (30) days after receipt end of the aforementioned statement, Tenant shall pay to Landlord, or Landlord shall credit against the next rent payment or payments due from TenantTerm hereof), as the case may be, require. Landlord's failure to provide notice within such time shall not relieve Tenant of its obligations to pay the difference between entire amount due from Tenant for such period. Tenant covenants and agrees that Tenant shall remain liable to and shall pay the actual Annual Rental Adjustment excluding Real Estate Taxes for the preceding calendar year and the estimated amount Premises’ Operating Cost not directly paid by Tenant to Landlord during such year. In addition, Tenant shall pay, before delinquency, any and all Real Estate Taxes as defined in Section 3.02.D, above, directly to the appropriate taxing authority. If Tenant fails for any reason to pay the Real Estate Taxes when same is due and payable, Landlord shall have the right, but not the obligation, to pay the Real Estate Taxes directly to the taxing authority and Tenant shall immediately reimburse Landlord for the cost thereof. Such amount shall accrue interest from the date Landlord pays such amount, pursuant to Section 3.04, below, shall include any penalties, late fees and any interest assessed due to such delinquency. Tenant or its accountants shall have the right to inspect, at reasonable time and in a reasonable manner, during the one hundred twenty (120) day period following the delivery of Landlord's statement of the actual amount of the Annual Rental Adjustment excluding Real Estate Taxes, such of Landlord's books of account and records as pertain to and contain information concerning such costs and expenses for the Building for the prior calendar year in order to verify the amounts thereof. In the event the first audit discloses (i) errors made during the prior calendar year whichand times as set forth herein, when totaled, indicate that the sum overcharged to and paid notwithstanding any termination of this Lease by Tenant, exceeds five percent (5%) reason of the Annual Rental Adjustment excluding Real Estate Taxes plus Landlord's Share of Operating Expenses (the "Total Expenses"), the audit shall be at the expense of Landlord, not to exceed Two Thousand Five Hundred Dollars ($2,500.00), or (ii) no errors or an error which equals or is less than five percent (5%) of the Total Expenses, the audit shall be at the expense any default of Tenant. For each subsequent audit, where the audit discloses errors exceeding five percent (5%) of the Total Expenses, Landlord ; this covenant shall pay for survive any such audit and, if the audit discloses errors equal to or less than five percent (5%) of the Total Expenses, Tenant shall pay the costs of the audit. If Landlord spends more than eight (8) hours to accommodate Tenant's right to audit hereunder, Tenant shall also pay to Landlord as additional rent Seventy-five Dollars ($75.00) per hour for each additional hour that Tenant's audit takes of Landlord's property manager's or asset manager's time, provided such audit discloses no error or an error greater than five percent (5%) of the Total Expenses. The results of the audit (regardless of the degree of the error, if any) shall be binding upon Landlord and Tenant, and Landlord shall thereafter, if appropriate, change its method of calculating the Operating Expenses consistent with the results of the audit. Tenant agrees to hold the information obtained from such audit confidential and shall not disclose the same without Landlord's express written permission except as necessary to enforce the Lease or protect Tenant's rights hereunder. If Tenant shall not elect to cause an audit within the time period permitted hereby, then Landlord's statement shall be conclusively deemed to have been approved and accepted by Tenant. Pending resolution of any dispute with respect to statements of Tenant's Annual Rental Adjustment, Tenant shall pay its Annual Rental Adjustment as shown on such statement, and upon final determination of the amount of Tenant's Annual Rental Adjustment, Landlord shall promptly refund any overpayment to Tenant or Tenant shall promptly pay any amount due to Landlord, as applicabletermination.
Appears in 1 contract
Samples: Lease (Teltronics Inc)
Payment of Additional Rent. In addition Landlord shall have the right to reasonably estimate the Operating Expenses for each Operating Year Upon Landlord’s or Agent’s notice to Tenant of such estimated amount, Tenant shall pay, on the first day of each month during that Operating Year, an amount (the “Estimated Additional Rent”) equal to the Minimum Annual estimate of the Tenant’s Proportionate Share of Operating Expenses divided by 12 (or the fractional portion of the Operating Year remaining at the time Landlord delivers its notice of the estimated amounts due from Tenant for that Operating Year). If the aggregate amount of Estimated Additional Rent specified in this Leaseactually paid by Tenant during any Operating Year is less than Tenant’s actual ultimate liability for Operating Expenses for that particular Operating Year, Tenant shall pay to the deficiency within 30 days of Landlord’s written demand therefor. If the aggregate amount of Estimated Additional Rent actually paid by Tenant during a given Operating Year exceeds Tenant’s actual liability for such Operating Year, the excess shall be credited against the Estimated Additional Rent next due from Tenant during the immediately subsequent Operating Year, except that in the event that such excess is paid by Tenant during the final Lease Year, then upon the expiration of the Term, Landlord as "Additional Rent" or Agent shall pay Tenant the then-applicable excess promptly after determination thereof. Landlord, for the Leased Premisespurpose of paying for repairs, maintenance and replacements to the Premises or the Property incurred on a periodic, but less frequent than annual, basis (“Reserve Expenses”) will establish a reserve (the “Maintenance Reserve”) to which Tenant, simultaneously with the payment of Estimated Additional Rent each month, shall contribute a monthly deposit in each calendar year or partial calendar year, during the Lease Term, an amount equal to the Annual Rental Adjustment excluding Real Estate Taxes for such calendar year or partial calendar year. In the case of the calendar year of the Commencement Date, Landlord shall provide such notice prior to the Commencement Date. The Annual Rental Adjustment excluding Real Estate Taxes shall be estimated annually reasonably determined and budgeted by Landlord, and written notice thereof which amount shall not exceed Four percent (4%) of yearly estimated Operating Expenses. Such deposits shall be given to Tenant prior to applied on account of Reserve Expenses incurred by Landlord during the beginning of each calendar year. Tenant Term; any deficit shall pay to Landlord each month, at the same time the Monthly Rental Installment is due, an amount equal to one-twelfth (1/12) of the estimated Annual Rental Adjustment excluding Real Estate Taxes. If the cost of utility, janitorial or other services increase during a calendar year, Landlord may increase the estimated Annual Rental Adjustment excluding Real Estate Taxes during such year by giving Tenant written notice to that effect, and thereafter Tenant shall pay to Landlord, in each of the remaining months of such year, an amount equal to the amount of such increase in the estimated Annual Rental Adjustment excluding Real Estate Taxes for the remainder of the year divided by the number of months remaining in such year. Within a reasonable time after the end of each calendar year, Landlord shall prepare and deliver to Tenant a statement showing the actual Annual Rental Adjustment excluding Real Estate Taxes. Within thirty (30) days after receipt of the aforementioned statement, Tenant shall pay to Landlord, or Landlord shall credit against the next rent payment or payments due from Tenant, as the case may be, the difference between the actual Annual Rental Adjustment excluding Real Estate Taxes for the preceding calendar year and the estimated amount be paid by Tenant to Landlord during such yearupon demand. In addition, Tenant shall pay, before delinquency, any and all Real Estate Taxes as defined in Section 3.02.D, above, directly to Upon the appropriate taxing authority. If Tenant fails for any reason to pay expiration or sooner termination of the Real Estate Taxes when same is due and payableLease, Landlord shall have retain such deposits to fund Reserve Expenses incurred after the right, but not the obligation, Term. No interest shall be payable to pay the Real Estate Taxes directly Tenant on account of payments of Estimated Additional Rent or deposits to the taxing authority and Tenant shall immediately reimburse Landlord for the cost thereof. Such amount shall accrue interest from the date Landlord pays such amount, pursuant to Section 3.04, below, shall include any penalties, late fees and any interest assessed due to such delinquency. Tenant or its accountants shall have the right to inspect, at reasonable time and in a reasonable manner, during the one hundred twenty (120) day period following the delivery of Landlord's statement of the actual amount of the Annual Rental Adjustment excluding Real Estate Taxes, such of Landlord's books of account and records as pertain to and contain information concerning such costs and expenses for the Building for the prior calendar year in order to verify the amounts thereof. In the event the first audit discloses (i) errors made during the prior calendar year which, when totaled, indicate that the sum overcharged to and paid by Tenant, exceeds five percent (5%) of the Annual Rental Adjustment excluding Real Estate Taxes plus Landlord's Share of Operating Expenses (the "Total Expenses"), the audit shall be at the expense of Landlord, not to exceed Two Thousand Five Hundred Dollars ($2,500.00), or (ii) no errors or an error which equals or is less than five percent (5%) of the Total Expenses, the audit shall be at the expense of Tenant. For each subsequent audit, where the audit discloses errors exceeding five percent (5%) of the Total Expenses, Landlord shall pay for such audit and, if the audit discloses errors equal to or less than five percent (5%) of the Total Expenses, Tenant shall pay the costs of the audit. If Landlord spends more than eight (8) hours to accommodate Tenant's right to audit hereunder, Tenant shall also pay to Landlord as additional rent Seventy-five Dollars ($75.00) per hour for each additional hour that Tenant's audit takes of Landlord's property manager's or asset manager's time, provided such audit discloses no error or an error greater than five percent (5%) of the Total Expenses. The results of the audit (regardless of the degree of the error, if any) shall be binding upon Landlord and TenantMaintenance Reserve, and Landlord shall thereafter, if appropriate, change its method of calculating the Operating Expenses consistent with the results of the audit. Tenant agrees to hold the information obtained from such audit confidential and shall not disclose the same without Landlord's express written permission except as necessary to enforce the Lease or protect Tenant's rights hereunder. If Tenant shall not elect to cause an audit within the time period permitted hereby, then Landlord's statement shall payments may be conclusively deemed to have been approved and accepted by Tenant. Pending resolution of any dispute with respect to statements of Tenant's Annual Rental Adjustment, Tenant shall pay its Annual Rental Adjustment as shown on such statement, and upon final determination of the amount of Tenant's Annual Rental Adjustment, Landlord shall promptly refund any overpayment to Tenant or Tenant shall promptly pay any amount due to Landlord, as applicablecommingled.
Appears in 1 contract
Samples: Zars Inc/Ut
Payment of Additional Rent. In addition Landlord shall estimate the total amount of Additional Rent to the Minimum Annual Rent specified in this Lease, be paid by Tenant shall pay to Landlord as "Additional Rent" for the Leased Premises, in during each calendar year or partial calendar year, during of the Lease Term, an amount equal to the Annual Rental Adjustment excluding Real Estate Taxes pro-rated for such calendar year or any partial calendar yearyears. In the case of the calendar year of Commencing on the Commencement Date, Landlord shall provide such notice prior to the Commencement Date. The Annual Rental Adjustment excluding Real Estate Taxes shall be estimated annually by Landlord, and written notice thereof shall be given to Tenant prior to the beginning of each calendar year. Tenant shall pay to Landlord each month, at the same time the Monthly Rental Installment is due, an amount equal to one-twelfth (1/12) of the estimated Annual Rental Adjustment excluding Real Estate Taxes. If the cost of utility, janitorial or other services increase during a calendar year, Landlord may increase the estimated Annual Rental Adjustment excluding Real Estate Taxes during such year by giving Tenant written notice to that effect, and thereafter Tenant shall pay to Landlord, in each of the remaining months of such year, an amount equal to the amount of such increase in the estimated Annual Rental Adjustment excluding Real Estate Taxes Additional Rent for the remainder of the year divided by the number of months remaining in such year. Within a reasonable time one hundred twenty (120) days after the end of each calendar year, Landlord shall prepare and deliver submit to Tenant a statement showing of the actual Annual Rental Adjustment excluding Real Estate Taxes. Within amount of such Additional Rent and within thirty (30) days after receipt of the aforementioned such statement, Tenant shall pay to Landlordany deficiency between the actual amount owed and the estimates paid during such calendar year. In the event of overpayment, or Landlord shall credit against the amount of such overpayment toward the next rent payment installments of Minimum Rent or payments due from Tenant, as reimburse Tenant within thirty (30) days in the case may be, of any overpayment made during the difference between final year of the actual Annual Rental Adjustment excluding Real Estate Taxes for the preceding calendar year and the estimated amount paid by Tenant to Landlord during such year. In addition, Tenant shall pay, before delinquency, any and all Real Estate Taxes as defined in Section 3.02.D, above, directly to the appropriate taxing authority. If Tenant fails for any reason to pay the Real Estate Taxes when same is due and payable, Landlord shall have the right, but not the obligation, to pay the Real Estate Taxes directly to the taxing authority and Tenant shall immediately reimburse Landlord for the cost thereof. Such amount shall accrue interest from the date Landlord pays such amount, pursuant to Section 3.04, below, shall include any penalties, late fees and any interest assessed due to such delinquencyLease Term. Tenant or its accountants shall have the right to inspect, at reasonable time times and in a reasonable manner, during the one hundred twenty ninety (12090) day period following the delivery of Landlord's statement of the actual amount of the Annual Rental Adjustment excluding Real Estate TaxesAdditional Rent, such of Landlord's books of account and records as pertain to and contain information concerning such costs and expenses for the Building for the prior calendar year in order to verify the amounts thereof. Tenant's failure to exercise its rights hereunder within said ninety (90) day period shall be deemed a waiver of its right to inspect or contest the method, accuracy or amount of the Additional Rent. In the event the first audit discloses (i) errors made during the prior calendar year which, when totaled, indicate that the sum overcharged to and paid by Tenant, exceeds five percent (5%) of the Annual Rental Adjustment excluding Real Estate Taxes plus Landlord's Share of Operating Expenses (the "Total Expenses"), the audit shall be at the expense of Landlord, not to exceed Two Thousand Five Hundred Dollars ($2,500.00), or (ii) no errors or an error which equals or is less than five percent (5%) of the Total Expenses, the audit shall be at the expense of Tenant. For each subsequent audit, where the audit discloses errors exceeding five percent (5%) of the Total Expensesany undisputed error, Landlord shall pay for such audit and, if make a correcting payment in full to Tenant within thirty (30) days after the audit discloses errors equal to or less than five percent (5%) of the Total Expenses, Tenant shall pay the costs of the audit. If Landlord spends more than eight (8) hours to accommodate Tenant's right to audit hereunder, Tenant shall also pay to Landlord as additional rent Seventy-five Dollars ($75.00) per hour for each additional hour that Tenant's audit takes of Landlord's property manager's or asset manager's time, provided such audit discloses no error or an error greater than five percent (5%) of the Total Expenses. The results of the audit (regardless of the degree of the error, if any) shall be binding upon Landlord and Tenant, and Landlord shall thereafter, if appropriate, change its method of calculating the Operating Expenses consistent with the results of the audit. Tenant agrees to hold the information obtained from such audit confidential and shall not disclose the same without Landlord's express written permission except as necessary to enforce the Lease or protect Tenant's rights hereunder. If Tenant shall not elect to cause an audit within the time period permitted hereby, then Landlord's statement shall be conclusively deemed to have been approved and accepted by Tenant. Pending resolution of any dispute with respect to statements of Tenant's Annual Rental Adjustment, Tenant shall pay its Annual Rental Adjustment as shown on such statement, and upon final determination of the amount of such error. In, the event of any errors on the part of Landlord which Landlord agrees were errors in excess of fifteen percent (15%) of Tenant's Annual Rental Adjustmentactual operating expense liability for any calendar year, Landlord will also reimburse Tenant for all costs of an audit reasonably incurred by Tenant within the above thirty (30) day period. If within the period aforesaid, Tenant provides Landlord with its notice disputing the correctness of the statement, and if such dispute shall promptly refund any overpayment have not been settled by agreement, Tenant may submit the dispute to a reputable firm of independent certified public accountants selected by Tenant or Tenant shall promptly pay any amount due to and approved by Landlord, as applicablesuch approval shall not be unreasonably withheld or delayed, and the decision of such accountants shall be conclusive and binding upon the parties. If such accountant decides that there was an error, Landlord will make correcting payment. The fees and expenses involved in such decision shall be borne by the unsuccessful party.
Appears in 1 contract
Samples: Lease Agreement (Viacell Inc)
Payment of Additional Rent. In addition to the Minimum Each Annual Rent specified in this Lease, Tenant shall pay to Landlord as "Additional Rent" for the Leased Premises, in each calendar year or partial calendar year, during the Lease Term, an amount equal to the Annual Rental Adjustment excluding Real Estate Taxes for such calendar year or partial calendar year. In the case of the calendar year of the Commencement Date, Landlord shall provide such notice prior to the Commencement Date. The Annual Rental Adjustment excluding Real Estate Taxes shall be separately estimated annually by Landlord, and written notice thereof shall be given to Tenant within fifteen (15) days after the Commencement Date and thereafter at least thirty (30) days prior to the beginning of each calendar year. Tenant shall then pay to Landlord each month, at the same time the installment of Monthly Rental Installment Rent is due, an amount equal to one-twelfth (1/12) of the each estimated Annual Rental Adjustment. Landlord shall have the right to revise each Annual Adjustment excluding Real Estate Taxesfor a given calendar year upon not less than fifteen (15) days prior written notice to Tenant, provided the actual amount of the corresponding Annual Adjustment for such calendar year will, in the Landlord's reasonable judgment, exceed Landlord's prior estimate for such calendar year. If In addition, at the cost of utility, janitorial or other services increase during time Landlord revises an estimated Annual Adjustment for a given calendar year, Landlord may increase shall be entitled to collect from Tenant, within twenty (20) days after submitting a statement thereof, a lump sum payment which when added to the monthly installments of such estimated Annual Rental Adjustment excluding Real Estate Taxes previously made by Tenant in such calendar year and the revised monthly installments to be made during such year by giving Tenant written notice to that effect, and thereafter Tenant shall pay to Landlord, in each of the remaining months balance of such calendar year, an amount will equal to the amount of such increase in the estimated Annual Rental Adjustment excluding Real Estate Taxes for the remainder of the year divided as then revised by the number of months remaining in such yearLandlord. Within a reasonable time ninety (90) days after the end of each calendar yearyear (or as soon thereafter as is reasonably practicable), Landlord shall prepare and deliver to Tenant a statement showing the actual Annual Rental Adjustment excluding Real Estate Taxes. Within thirty Adjustments for such calendar year, and within fifteen (3015) days after receipt of the aforementioned statementsuch date, Tenant shall pay to LandlordLandlord any deficiency, or Landlord shall credit against the next rent payment or payments due from Tenant, as the case may be, the difference between the actual Annual Rental Adjustment excluding Real Estate Taxes for the preceding calendar year and the estimated amount paid by Tenant to Landlord during such year. In addition, Tenant shall pay, before delinquency, any and all Real Estate Taxes as defined in Section 3.02.D, above, directly to the appropriate taxing authority. If Tenant fails tenant's account for any reason to pay the Real Estate Taxes when same is due and payable, Landlord shall have the right, but not the obligation, to pay the Real Estate Taxes directly to the taxing authority and Tenant shall immediately reimburse Landlord for the cost thereof. Such amount shall accrue interest from the date Landlord pays such amount, pursuant to Section 3.04, below, shall include any penalties, late fees and any interest assessed due to such delinquency. Tenant or its accountants shall have the right to inspect, at reasonable time and in a reasonable manner, during the one hundred twenty (120) day period following the delivery of Landlord's statement of the actual amount overpayment of the Annual Rental Adjustments for such calendar year. Landlord's failure to timely deliver the statement of any estimated Annual Adjustment excluding Real Estate Taxesor any statement of an actual Annual Adjustment shall not relieve Tenant of its obligation to pay, when such statement is provided, such of Landlord's books of account and records as pertain to and contain information concerning estimated Annual Adjustment or such costs and expenses for the Building for the prior calendar year in order to verify the amounts thereofactual Annual Adjustment. In the event the first audit discloses (i) errors made during the prior case of a calendar year which, when totaled, indicate that the sum overcharged to and paid by Tenant, exceeds five percent (5%) of the Annual Rental Adjustment excluding Real Estate Taxes plus Landlord's Share of Operating Expenses (the "Total Expenses"), the audit shall be at the expense of Landlord, not to exceed Two Thousand Five Hundred Dollars ($2,500.00), or (ii) no errors or an error which equals or is less than five percent (5%) of the Total Expenses, the audit shall be at the expense of Tenant. For each subsequent audit, where the audit discloses errors exceeding five percent (5%) of the Total Expenses, Landlord shall pay for such audit and, if the audit discloses errors equal to or less than five percent (5%) of the Total Expenses, Tenant shall pay the costs of the audit. If Landlord spends more than eight (8) hours to accommodate Tenant's right to audit hereunder, Tenant shall also pay to Landlord as additional rent Seventy-five Dollars ($75.00) per hour for each additional hour that Tenant's audit takes of Landlord's property manager's or asset manager's time, provided such audit discloses no error or an error greater than five percent (5%) of the Total Expenses. The results of the audit (regardless of the degree of the error, if any) shall be binding upon Landlord and Tenant, and Landlord shall thereafter, if appropriate, change its method of calculating the Operating Expenses consistent with the results of the audit. Tenant agrees to hold the information obtained from such audit confidential and shall not disclose the same without Landlord's express written permission except as necessary to enforce the Lease or protect Tenant's rights hereunder. If Tenant shall not elect to cause an audit falling only partly within the time period permitted herebylease term, then Landlord's statement shall be conclusively deemed to have been approved and accepted each Annual Adjustment payable by Tenant. Pending resolution of any dispute Tenant with respect to statements of Tenant's Annual Rental Adjustment, Tenant such year shall pay its Annual Rental Adjustment as shown on such statement, and upon final determination of the amount of Tenant's Annual Rental Adjustment, Landlord shall promptly refund any overpayment to Tenant or Tenant shall promptly pay any amount due to Landlord, as applicablebe prorated accordingly.
Appears in 1 contract
Samples: Lease Agreement (Browsesafe Com Inc)
Payment of Additional Rent. In addition order to the Minimum Annual Rent specified in this Lease, Tenant shall pay to Landlord as "provide for current payments of Additional Rent" for the Leased Premises, in each calendar year or partial calendar year, during the Lease Term, an amount equal to the Annual Rental Adjustment excluding Real Estate Taxes for such calendar year or partial calendar year. In the case of the calendar year of the Commencement Date, Landlord shall provide such notice prior to the Commencement Date. The Annual Rental Adjustment excluding Real Estate Taxes shall be estimated annually by Landlord, and will give Tenant written notice thereof shall be given to Tenant prior to the beginning of Tenant’s Proportionate Share of estimated operating expenses for each calendar year. Tenant shall pay to Landlord, as an Additional Rent deposit, in monthly installments, commencing on the first day of the Term of this Lease, and/or the first day of the calendar month following that month in which Landlord each monthnotifies Tenant of the estimated Additional Rent, at the same time the Monthly Rental Installment is due, an amount equal to one-twelfth (1/121/12th) of the Additional Rent due Landlord for any said calendar year as estimated Annual Rental Adjustment excluding Real Estate Taxesby Landlord. If at any time it appears to Landlord that the cost of utility, janitorial or other services increase during a Additional Rent due Landlord for any calendar yearyear will vary from its estimate thereof by more than ten percent (10%), Landlord may increase the estimated Annual Rental Adjustment excluding Real Estate Taxes during such year may, by giving Tenant written notice to Tenant, revise its estimate for such year. Subsequent Additional Rent deposits by Tenant for such year shall be based on the revised estimate. Tenant shall pay Landlord the Additional Rent deposit in the same manner as Base Rent beginning on the first day of the calendar month following that effectcalendar month in which this Lease commences. Within ninety (90) days of the end of the calendar year for which estimates of Additional Rent were made, actual Additional Rent due for such year shall be calculated and an annual statement thereof provided to Tenant. If Tenant’s Proportionate Share of actual Additional Rent exceeds the amounts paid by Tenant based on Landlord’s estimates, Landlord shall xxxx Tenant for the excess amount, and thereafter Tenant shall pay to Landlord, in each of the remaining months of such year, an Landlord said amount equal to the amount of such increase in the estimated Annual Rental Adjustment excluding Real Estate Taxes for the remainder of the year divided by the number of months remaining in such year. Within a reasonable time after the end of each calendar year, Landlord shall prepare and deliver to Tenant a statement showing the actual Annual Rental Adjustment excluding Real Estate Taxes. Within within thirty (30) days after receipt of billing. If Tenant’s Proportionate Share of actual Additional Rent is less than the aforementioned statementamounts paid by Tenant based on Landlord’s estimate thereof, Tenant shall pay to Landlord, or receive from Landlord shall credit against a refund of the next rent payment or payments due from Tenant, as the case may be, the difference between the actual Annual Rental Adjustment excluding Real Estate Taxes for the preceding calendar year and the estimated amount excess so paid by Tenant. Tenant to Landlord during such year. In addition, Tenant shall pay, before delinquency, any and all Real Estate Taxes as defined in Section 3.02.D, above, directly to the appropriate taxing authority. If Tenant fails for any reason to pay the Real Estate Taxes when same is due and payable, Landlord shall have the right, but not within thirty (30) days from Tenant’s receipt of the obligationannual statement of Additional Rent contemplated above and at Tenant’s sole cost and expense, to pay the Real Estate Taxes directly to the taxing authority review and Tenant shall immediately reimburse Landlord inspect Landlord’s books and records of Additional Rent for the cost thereofperiods covered by such annual statement. Such amount shall accrue interest from If the date Landlord pays such amount, pursuant to Section 3.04, below, shall include Term commences on any penalties, late fees and any interest assessed due to such delinquency. Tenant or its accountants shall have the right to inspect, at reasonable time and in a reasonable manner, during the one hundred twenty (120) day period following the delivery of Landlord's statement of the actual amount of the Annual Rental Adjustment excluding Real Estate Taxes, such of Landlord's books of account and records as pertain to and contain information concerning such costs and expenses for the Building for the prior calendar year in order to verify the amounts thereof. In the event other than the first audit discloses (i) errors made during day of January, or if the prior calendar year whichTerm ends on any day other than the last day of December, when totaled, indicate that the sum overcharged to and paid by Tenant, exceeds five percent (5%) of the Annual Rental Adjustment excluding Real Estate Taxes plus Landlord's Share of Operating Expenses (the "Total Expenses"), the audit any Additional Rent due Landlord shall be at the expense prorated, based on a 365-day year. Upon expiration or termination of Landlord, not to exceed Two Thousand Five Hundred Dollars ($2,500.00), or (ii) no errors or an error which equals or is less than five percent (5%) of the Total Expenses, the audit shall be at the expense of Tenant. For each subsequent audit, where the audit discloses errors exceeding five percent (5%) of the Total Expenses, Landlord shall pay for such audit and, if the audit discloses errors equal to or less than five percent (5%) of the Total Expensesthis Lease, Tenant shall pay such prorated amount within thirty (30) days of billing. This covenant shall survive the costs expiration or termination of the audit. If Landlord spends more than eight (8) hours to accommodate Tenant's right to audit hereunder, Tenant shall also pay to Landlord as additional rent Seventy-five Dollars ($75.00) per hour for each additional hour that Tenant's audit takes of Landlord's property manager's or asset manager's time, provided such audit discloses no error or an error greater than five percent (5%) of the Total Expenses. The results of the audit (regardless of the degree of the error, if any) shall be binding upon Landlord and Tenant, and Landlord shall thereafter, if appropriate, change its method of calculating the Operating Expenses consistent with the results of the audit. Tenant agrees to hold the information obtained from such audit confidential and shall not disclose the same without Landlord's express written permission except as necessary to enforce the Lease or protect Tenant's rights hereunder. If Tenant shall not elect to cause an audit within the time period permitted hereby, then Landlord's statement shall be conclusively deemed to have been approved and accepted by Tenant. Pending resolution of any dispute with respect to statements of Tenant's Annual Rental Adjustment, Tenant shall pay its Annual Rental Adjustment as shown on such statement, and upon final determination of the amount of Tenant's Annual Rental Adjustment, Landlord shall promptly refund any overpayment to Tenant or Tenant shall promptly pay any amount due to Landlord, as applicablethis Lease.
Appears in 1 contract
Payment of Additional Rent. In addition to (a) Landlord shall estimate the Minimum Annual Rent specified in this LeaseTaxes and the Premises’ Operating Costs not directly paid by Tenant (e.g., Assessments and Insurance costs), and Tenant shall pay to Landlord as "Additional Rent" for the Leased Premises, in each calendar year or partial calendar year, during the Lease Term, an amount equal to the Annual Rental Adjustment excluding Real Estate Taxes for such calendar year or partial calendar year. In the case of the calendar year of the Commencement Date, Landlord shall provide such notice prior to the Commencement Date. The Annual Rental Adjustment excluding Real Estate Taxes shall be estimated annually by Landlord, and written notice thereof shall be given to Tenant prior to the beginning of each calendar year. Tenant shall pay to Landlord each month, at the same time the Monthly Rental Installment is due, an amount equal to one-twelfth (1/12) thereof monthly in advance, together with each monthly payment of Base Rent. Landlord shall estimate and account for Premises’ Operating Costs on a calendar-year basis and shall provide notice and reasonable documentation of prior years’ actual expenses and the estimate of the then-current calendar year’s Premises’ Operating Costs no later than May 1 of each year with the change in estimated Annual Rental Adjustment excluding Real Estate Taxespayment to be effective with the June Rent payment each year. If at any time during any Lease Year Landlord determines that the cost of utility, janitorial or other services increase during a calendar year, Landlord may increase actual Premises’ Operating Costs have changed over the estimated Annual Rental Adjustment excluding Real Estate Taxes during such year costs by giving an identifiable amount (e.g. an increase or decrease in insurance cost or Regular or Special Assessments), the Landlord shall provide Tenant written notice to that effect, and thereafter Tenant shall pay to Landlord, in each reasonable documentation of the remaining months of such year, an amount equal to the amount of such increase in said change and the estimated Annual Rental Adjustment excluding Real Estate Taxes for monthly Additional Rent shall be adjusted effective with the remainder of the year divided by the number of months remaining next following Rent Payment, but in such yearno event less than twenty (20) days following Landlord’s notice. Within a reasonable time after ninety (90) days following the end of each calendar year, Landlord shall prepare furnish Tenant statements of the actual Taxes and deliver the actual Premises’ Operating Cost not directly paid by Tenant for that year, and there shall be an adjustment between Landlord and Tenant, with payment to Landlord or credit to Tenant a statement showing against future Rent (or payment to Tenant if at the actual Annual Rental Adjustment excluding Real Estate Taxes. Within thirty (30) days after receipt end of the aforementioned statement, Tenant shall pay to Landlord, or Landlord shall credit against the next rent payment or payments due from TenantTerm hereof), as the case may be, require. Landlord’s failure to provide notice within such time shall not relieve Tenant of its obligations to pay the difference between entire amount due from Tenant for such period. Tenant covenants and agrees that Tenant shall remain liable to and shall pay the actual Annual Rental Adjustment excluding Real Estate Taxes for the preceding calendar year and the estimated amount Premises’ Operating Cost not directly paid by Tenant to Landlord during such year. In addition, Tenant shall pay, before delinquency, any and all Real Estate Taxes as defined in Section 3.02.D, above, directly to the appropriate taxing authority. If Tenant fails for any reason to pay the Real Estate Taxes when same is due and payable, Landlord shall have the right, but not the obligation, to pay the Real Estate Taxes directly to the taxing authority and Tenant shall immediately reimburse Landlord for the cost thereof. Such amount shall accrue interest from the date Landlord pays such amount, pursuant to Section 3.04, below, shall include any penalties, late fees and any interest assessed due to such delinquency. Tenant or its accountants shall have the right to inspect, at reasonable time and in a reasonable manner, during the one hundred twenty (120) day period following the delivery of Landlord's statement of the actual amount of the Annual Rental Adjustment excluding Real Estate Taxes, such of Landlord's books of account and records as pertain to and contain information concerning such costs and expenses for the Building for the prior calendar year in order to verify the amounts thereof. In the event the first audit discloses (i) errors made during the prior calendar year whichand times as set forth herein, when totaled, indicate that the sum overcharged to and paid notwithstanding any termination of this Lease by Tenant, exceeds five percent (5%) reason of the Annual Rental Adjustment excluding Real Estate Taxes plus Landlord's Share of Operating Expenses (the "Total Expenses"), the audit shall be at the expense of Landlord, not to exceed Two Thousand Five Hundred Dollars ($2,500.00), or (ii) no errors or an error which equals or is less than five percent (5%) of the Total Expenses, the audit shall be at the expense any default of Tenant. For each subsequent audit, where the audit discloses errors exceeding five percent (5%) of the Total Expenses, Landlord ; this covenant shall pay for survive any such audit and, if the audit discloses errors equal to or less than five percent (5%) of the Total Expenses, Tenant shall pay the costs of the audit. If Landlord spends more than eight (8) hours to accommodate Tenant's right to audit hereunder, Tenant shall also pay to Landlord as additional rent Seventy-five Dollars ($75.00) per hour for each additional hour that Tenant's audit takes of Landlord's property manager's or asset manager's time, provided such audit discloses no error or an error greater than five percent (5%) of the Total Expenses. The results of the audit (regardless of the degree of the error, if any) shall be binding upon Landlord and Tenant, and Landlord shall thereafter, if appropriate, change its method of calculating the Operating Expenses consistent with the results of the audit. Tenant agrees to hold the information obtained from such audit confidential and shall not disclose the same without Landlord's express written permission except as necessary to enforce the Lease or protect Tenant's rights hereunder. If Tenant shall not elect to cause an audit within the time period permitted hereby, then Landlord's statement shall be conclusively deemed to have been approved and accepted by Tenant. Pending resolution of any dispute with respect to statements of Tenant's Annual Rental Adjustment, Tenant shall pay its Annual Rental Adjustment as shown on such statement, and upon final determination of the amount of Tenant's Annual Rental Adjustment, Landlord shall promptly refund any overpayment to Tenant or Tenant shall promptly pay any amount due to Landlord, as applicabletermination.
Appears in 1 contract
Samples: Lease (Quixote Corp)
Payment of Additional Rent. In addition to the Minimum Annual Rent specified in this Lease, Tenant shall pay to Landlord as "Additional Rent" for the Leased Premises, in each calendar year or partial calendar year, during the Lease Term, an amount equal to the Annual Rental Adjustment excluding Real Estate Taxes for such calendar year or partial calendar year. In the case of the calendar year of the Commencement Date, Landlord shall provide such have the right to reasonably estimate the Operating Expenses for each Operating Year. Upon Landlord's or Agent's notice prior to the Commencement Date. The Annual Rental Adjustment excluding Real Estate Taxes shall be estimated annually by Landlord, and written notice thereof shall be given to Tenant prior to the beginning of each calendar year. Tenant shall pay to Landlord each month, at the same time the Monthly Rental Installment is due, an amount equal to one-twelfth (1/12) of the estimated Annual Rental Adjustment excluding Real Estate Taxes. If the cost of utility, janitorial or other services increase during a calendar year, Landlord may increase the estimated Annual Rental Adjustment excluding Real Estate Taxes during such year by giving Tenant written notice to that effect, and thereafter Tenant shall pay to Landlord, in each of the remaining months of such year, an amount equal to the amount of such increase in the estimated Annual Rental Adjustment excluding Real Estate Taxes for the remainder of the year divided by the number of months remaining in such year. Within a reasonable time after the end of each calendar year, Landlord shall prepare and deliver to Tenant a statement showing the actual Annual Rental Adjustment excluding Real Estate Taxes. Within thirty (30) days after receipt of the aforementioned statement, Tenant shall pay to Landlord, or Landlord shall credit against the next rent payment or payments due from Tenant, as the case may be, the difference between the actual Annual Rental Adjustment excluding Real Estate Taxes for the preceding calendar year and the estimated amount paid by Tenant to Landlord during such year. In additionamount, Tenant shall pay, before delinquencyon the first day of each month during that Operating Year, any and all Real Estate Taxes as defined in Section 3.02.D, above, directly an amount (the "ESTIMATED ADDITIONAL RENT") equal to the appropriate taxing authority. If Tenant fails for any reason to pay the Real Estate Taxes when same is due and payable, Landlord shall have the right, but not the obligation, to pay the Real Estate Taxes directly to the taxing authority and Tenant shall immediately reimburse Landlord for the cost thereof. Such amount shall accrue interest from the date Landlord pays such amount, pursuant to Section 3.04, below, shall include any penalties, late fees and any interest assessed due to such delinquency. Tenant or its accountants shall have the right to inspect, at reasonable time and in a reasonable manner, during the one hundred twenty (120) day period following the delivery of Landlord's statement estimate of the actual amount of the Annual Rental Adjustment excluding Real Estate Taxes, such of LandlordTenant's books of account and records as pertain to and contain information concerning such costs and expenses for the Building for the prior calendar year in order to verify the amounts thereof. In the event the first audit discloses (i) errors made during the prior calendar year which, when totaled, indicate that the sum overcharged to and paid by Tenant, exceeds five percent (5%) of the Annual Rental Adjustment excluding Real Estate Taxes plus Landlord's Proportionate Share of Operating Expenses divided by 12 (or the "Total Expenses"), fractional portion of the audit shall be Operating Year remaining at the expense time Landlord delivers its notice of Landlord, not to exceed Two Thousand Five Hundred Dollars ($2,500.00the estimated amounts due from Tenant for that Operating Year), or (ii) no errors or an error which equals or . If the aggregate amount of Estimated Additional Rent actually paid by Tenant during any Operating Year is less than five percent (5%) of the Total Expenses, the audit shall be at the expense of Tenant. For each subsequent audit, where the audit discloses errors exceeding five percent (5%) of the Total Expenses, Landlord shall pay 's actual ultimate liability for such audit and, if the audit discloses errors equal to or less than five percent (5%) of the Total ExpensesOperating Expenses for that particular Operating Year, Tenant shall pay the costs of the audit. If Landlord spends more than eight (8) hours to accommodate Tenant's right to audit hereunder, Tenant shall also pay to Landlord as additional rent Seventy-five Dollars ($75.00) per hour for each additional hour that Tenant's audit takes deficiency within 30 days of Landlord's property managerwritten demand therefor. If the aggregate amount of Estimated Additional Rent actually paid by Tenant during a given Operating Year exceeds Tenant's or asset manager's timeactual liability for such Operating Year, provided the excess shall be credited against the Estimated Additional Rent next due from Tenant during the immediately subsequent Operating Year, except that in the event that such audit discloses no error or an error greater than five percent (5%) excess is paid by Tenant during the final Lease Year, then upon the expiration of the Total ExpensesTerm, Landlord or Agent shall pay Tenant the then-applicable excess promptly after determination thereof. The results Landlord, for the purpose of paying for repairs, maintenance and replacements to the audit Premises or the Property incurred on a periodic, but less frequent than annual, basis (regardless "RESERVE EXPENSES") will establish a reserve (the "MAINTENANCE RESERVE") to which Tenant, simultaneously with the payment of the degree of the errorEstimated Additional Rent each month, if any) shall contribute a monthly deposit in an amount reasonably determined by Landlord. Such deposits shall be binding upon applied on account of Reserve Expenses incurred by Landlord and Tenant, and Landlord shall thereafter, if appropriate, change its method of calculating the Operating Expenses consistent with the results of the audit. Tenant agrees to hold the information obtained from such audit confidential and shall not disclose the same without Landlord's express written permission except as necessary to enforce the Lease or protect Tenant's rights hereunder. If Tenant shall not elect to cause an audit within the time period permitted hereby, then Landlord's statement shall be conclusively deemed to have been approved and accepted by Tenant. Pending resolution of any dispute with respect to statements of Tenant's Annual Rental Adjustment, Tenant shall pay its Annual Rental Adjustment as shown on such statement, and upon final determination of the amount of Tenant's Annual Rental Adjustment, Landlord shall promptly refund any overpayment to Tenant or Tenant shall promptly pay any amount due to Landlord, as applicable.during the
Appears in 1 contract
Samples: Vascular Solutions Inc
Payment of Additional Rent. In addition Landlord will make a good faith estimate of the Additional Rent to be due from Tenant for all or part of any calendar year during the Minimum Annual Rent specified in this LeaseTerm, and Tenant shall agrees to pay to Landlord as "Additional Rent" for Landlord, on the Leased Premises, in Commencement Date and on the first day of each subsequent calendar year or partial calendar year, month during the Lease Term, an amount equal to 1/12th of the Annual Rental Adjustment excluding Real Estate Taxes estimated Additional Rent for such calendar year full or partial calendar year. In From time to time, Landlord may estimate and re-estimate the case Additional Rent to be due from Tenant and deliver a copy of the estimate or re-estimate to Tenant. Subsequently, the monthly installments of Additional Rent payable by Tenant will be appropriately adjusted in accordance with Landlord's estimations so that by the end of the calendar year in question Tenant will have paid all of the Commencement Date, Landlord shall provide such notice prior to the Commencement Date. The Annual Rental Adjustment excluding Real Estate Taxes shall be Additional Rent as estimated annually by Landlord, and written notice thereof shall be given to Tenant prior to the beginning of each calendar year. Tenant shall pay to Landlord each month, at the same time the Monthly Rental Installment is due, an amount equal to one-twelfth (1/12) of the estimated Annual Rental Adjustment excluding Real Estate Taxes. If the cost of utility, janitorial or other services increase during a calendar year, Landlord may increase the estimated Annual Rental Adjustment excluding Real Estate Taxes during such year by giving Tenant written notice to that effect, and thereafter Tenant shall pay to Landlord, in each of the remaining months of such year, an amount equal to the amount of such increase in the estimated Annual Rental Adjustment excluding Real Estate Taxes for the remainder of the year divided by the number of months remaining in such year. Within a reasonable time after the end By April 1 of each calendar year, or as soon after that date as practicable, Landlord shall prepare and deliver will furnish to Tenant a statement showing of Operating Costs paid for the previous year, adjusted as provided in Section 3.2(f) below (the "OPERATING COSTS STATEMENT"). By June 1 of each calendar year, or as soon after that date as practicable, Landlord will furnish to Tenant a statement of the Taxes paid for the previous year, adjusted as provided in Section 3.2(f) below (the "TAX STATEMENT"). If the Operating Costs Statement and/or the Tax Statement reveal(s) that Tenant paid more in Operating Costs Adjustment or Tax Adjustment than the actual Annual Rental amount for the year for which such statement was prepared, then Landlord will promptly credit Tenant for such excess. Likewise, if Tenant paid less in Operating Costs Adjustment excluding Real Estate Taxes. Within thirty than the actual amount for the year for which such statement was prepared, then Tenant shall pay such deficiency to Landlord within ten (3010) days after receipt of the aforementioned statement, Tenant shall pay to Landlord, or Landlord shall credit against the next rent payment or payments due from Tenant, as the case may be, the difference between the actual Annual Rental Adjustment excluding Real Estate Taxes for the preceding calendar year and the estimated amount paid by Tenant to Landlord during such year. In addition, Tenant shall pay, before delinquency, any and all Real Estate Taxes as defined in Section 3.02.D, above, directly to the appropriate taxing authority. If Tenant fails for any reason to pay the Real Estate Taxes when same is due and payable, Landlord shall have the right, but not the obligation, to pay the Real Estate Taxes directly to the taxing authority and Tenant shall immediately reimburse Landlord for the cost thereof. Such amount shall accrue interest from the date Landlord pays such amount, pursuant to Section 3.04, below, shall include any penalties, late fees and any interest assessed due to such delinquency. Tenant or its accountants shall have the right to inspect, at reasonable time and in a reasonable manner, during the one hundred twenty (120) day period following the delivery of Landlord's statement demand. This provision will survive the Termination Date of the actual amount of the Annual Rental Adjustment excluding Real Estate Taxes, such of Landlord's books of account and records as pertain to and contain information concerning such costs and expenses for the Building for the prior calendar year in order to verify the amounts thereof. In the event the first audit discloses (i) errors made during the prior calendar year which, when totaled, indicate that the sum overcharged to and paid by Tenant, exceeds five percent (5%) of the Annual Rental Adjustment excluding Real Estate Taxes plus Landlord's Share of Operating Expenses (the "Total Expenses"), the audit shall be at the expense of Landlord, not to exceed Two Thousand Five Hundred Dollars ($2,500.00), or (ii) no errors or an error which equals or is less than five percent (5%) of the Total Expenses, the audit shall be at the expense of Tenant. For each subsequent audit, where the audit discloses errors exceeding five percent (5%) of the Total Expenses, Landlord shall pay for such audit and, if the audit discloses errors equal to or less than five percent (5%) of the Total Expenses, Tenant shall pay the costs of the audit. If Landlord spends more than eight (8) hours to accommodate Tenant's right to audit hereunder, Tenant shall also pay to Landlord as additional rent Seventy-five Dollars ($75.00) per hour for each additional hour that Tenant's audit takes of Landlord's property manager's or asset manager's time, provided such audit discloses no error or an error greater than five percent (5%) of the Total Expenses. The results of the audit (regardless of the degree of the error, if any) shall be binding upon Landlord and Tenant, and Landlord shall thereafter, if appropriate, change its method of calculating the Operating Expenses consistent with the results of the audit. Tenant agrees to hold the information obtained from such audit confidential and shall not disclose the same without Landlord's express written permission except as necessary to enforce the Lease or protect Tenant's rights hereunder. If Tenant shall not elect to cause an audit within the time period permitted hereby, then Landlord's statement shall be conclusively deemed to have been approved and accepted by Tenant. Pending resolution of any dispute with respect to statements of Tenant's Annual Rental Adjustment, Tenant shall pay its Annual Rental Adjustment as shown on such statement, and upon final determination of the amount of Tenant's Annual Rental Adjustment, Landlord shall promptly refund any overpayment to Tenant or Tenant shall promptly pay any amount due to Landlord, as applicablethis Lease.
Appears in 1 contract
Payment of Additional Rent. In addition Landlord shall have the right to invoice Tenant monthly, quarterly, or otherwise from time to time, for Tenant’s Pro Rata Share of the Minimum Annual Rent specified in actual Taxes, Insurance and CAM expenses payable by Tenant under this Lease, Tenant shall pay to Landlord as "Additional Rent" for the Leased Premises, in each calendar year or partial calendar year, during the Lease Term, an amount equal to the Annual Rental Adjustment excluding Real Estate Taxes for such calendar year or partial calendar year. In the case of the calendar year of the Commencement Date, Landlord shall provide such notice prior to the Commencement Date. The Annual Rental Adjustment excluding Real Estate Taxes shall be estimated annually by Landlord, ; and written notice thereof shall be given to Tenant prior to the beginning of each calendar year. Tenant shall pay to Landlord each month, at the same time the Monthly Rental Installment is due, an amount equal to one-twelfth (1/12) of the estimated Annual Rental Adjustment excluding Real Estate Taxes. If the cost of utility, janitorial or other services increase during a calendar year, Landlord may increase the estimated Annual Rental Adjustment excluding Real Estate Taxes during such year by giving Tenant written notice to that effect, and thereafter Tenant shall pay to Landlord, in each of the remaining months of such yearas Additional Rent, an amount equal to the amount of such increase in the estimated Annual Rental Adjustment excluding Real Estate Taxes those amounts for the remainder of the year divided by the number of months remaining in such year. Within a reasonable time after the end of each calendar year, Landlord shall prepare and deliver to which Tenant a statement showing the actual Annual Rental Adjustment excluding Real Estate Taxes. Within is invoiced within thirty (30) days after receipt of the aforementioned statementsaid invoice. Alternatively, Tenant shall pay to at Landlord, or Landlord shall credit against the next rent payment or payments due from Tenant, as the case may be, the difference between the actual Annual Rental Adjustment excluding Real Estate Taxes for the preceding calendar year and the estimated amount paid by Tenant to Landlord during such year. In addition, Tenant shall pay, before delinquency, any and all Real Estate Taxes as defined in Section 3.02.D, above, directly to the appropriate taxing authority. If Tenant fails for any reason to pay the Real Estate Taxes when same is due and payable’s election, Landlord shall have the rightright to invoice Tenant monthly for Tenant’s Pro Rata Share of such Taxes, but Insurance and CAM expenses, as reasonably estimated by Landlord. Any monies paid in advance to Landlord by Tenant shall not accrue interest thereon. Following the end of each calendar year or property fiscal year, Landlord shall deliver a statement to Tenant setting forth the difference between Tenant’s actual Pro Rata Share of Taxes, Insurance and/or CAM expenses and the total amount of monthly payments, paid by Tenant to Landlord. Tenant shall thereafter pay to Landlord the full amount of any difference between Tenant’s actual obligation over the total amount of Tenant’s estimated payments, within thirty (30) days after receipt of said statement; conversely, in the event Tenant’s estimated payments exceed Tenant’s actual obligation, Landlord shall either refund the overpayment to pay Tenant or credit said overpayment against Tenant’s monthly obligation in the Real Estate Taxes directly forthcoming year. For purposes of this Lease, Tenant’s Pro Rata Share is hereinafter defined as a fraction, the numerator of which shall be the square footage of the Premises, and the denominator of which shall be the square footage of the rentable area of the Property, which Pro Rata Share is hereby agreed to be as set forth in Item 13 of the taxing authority Basic Lease Provisions. In the event this Lease expires on a date other than the end of a billing period, Tenant’s obligation with respect to any amounts owed to Landlord shall survive the expiration of the Lease Term, and shall be invoiced to Tenant when the same have been accurately determined or, at Landlord’s option, such amounts shall immediately reimburse be reasonably estimated by Landlord for to reflect the cost thereofperiod of time the Lease was in effect during such billing period. Such amount Landlord shall accrue interest from maintain complete and accurate records of all Taxes, Insurance and CAM expenses incurred in connection with the date Landlord pays such amount, pursuant to Section 3.04, below, shall include any penalties, late fees and any interest assessed due to such delinquencyProperty. Tenant or its accountants shall have the right to inspectinspect such records at Tenant’s sole cost and expense, at reasonable time and in a reasonable manner, during the one hundred twenty (120) day period following the delivery office of Landlord's statement ’s managing agent during said agent’s normal business hours, upon five (5) days prior written notice. Landlord shall not be obligated to provide Tenant with detailed summaries or receipts for any expenses incurred by or on behalf of the actual amount Property; but Landlord shall provide Tenant with one or more statements setting forth such expenses, categorized by class and amount. Notwithstanding the aforesaid, unless Tenant asserts specific errors within ninety (90) days after receipt of the Annual Rental Adjustment excluding Real Estate Taxesany invoice, such of Landlord's books of account and records as pertain to and contain information concerning such costs and expenses for the Building for the prior calendar year in order to verify the amounts thereof. In the event the first audit discloses (i) errors made during the prior calendar year whichor year-end statement, when totaled, indicate that the sum overcharged to and paid by Tenant, exceeds five percent (5%) of the Annual Rental Adjustment excluding Real Estate Taxes plus Landlord's Share of Operating Expenses (the "Total Expenses"), the audit it shall be at the expense of Landlord, not to exceed Two Thousand Five Hundred Dollars ($2,500.00)deemed that said invoice, or (ii) no errors or an error which equals or is less than five percent (5%) of the Total Expenses, the audit shall be at the expense of Tenant. For each subsequent audit, where the audit discloses errors exceeding five percent (5%) of the Total Expenses, Landlord shall pay for such audit and, if the audit discloses errors equal to or less than five percent (5%) of the Total Expenses, Tenant shall pay the costs of the audit. If Landlord spends more than eight (8) hours to accommodate Tenant's right to audit hereunder, Tenant shall also pay to Landlord as additional rent Seventyyear-five Dollars ($75.00) per hour for each additional hour that Tenant's audit takes of Landlord's property manager's or asset manager's time, provided such audit discloses no error or an error greater than five percent (5%) of the Total Expenses. The results of the audit (regardless of the degree of the error, if any) shall be binding upon Landlord and Tenant, and Landlord shall thereafter, if appropriate, change its method of calculating the Operating Expenses consistent with the results of the audit. Tenant agrees to hold the information obtained from such audit confidential and shall not disclose the same without Landlord's express written permission except as necessary to enforce the Lease or protect Tenant's rights hereunder. If Tenant shall not elect to cause an audit within the time period permitted hereby, then Landlord's statement shall be conclusively deemed to have been approved and accepted by Tenant. Pending resolution of any dispute with respect to statements of Tenant's Annual Rental Adjustment, Tenant shall pay its Annual Rental Adjustment as shown on such end statement, and upon final determination of the amount of Tenant's Annual Rental Adjustment, Landlord shall promptly refund any overpayment to Tenant or Tenant shall promptly pay any amount due to Landlord, as applicableis correct.
Appears in 1 contract
Payment of Additional Rent. In addition to Commencing on the Minimum Annual Rent specified in this LeaseCommencement Date, Tenant shall pay to Landlord as "Additional Rent" for Rent 1/12 (8.33%) of the Leased PremisesEstimated Costs Allocable to the Premises in lawful money of the United States in advance on or before the first day of each month, without deduction or offset, at the address specified in Section 5. Prior to the commencement of each calendar year or partial calendar year, Lease Year during the Lease Term, an amount equal Landlord shall furnish Tenant a written statement of the Estimated Costs Allocable to the Annual Rental Adjustment excluding Real Estate Taxes Premises for such calendar year or partial calendar year. In Lease Year, together with the case of the calendar year of the Commencement Date, Landlord shall provide such notice prior to the Commencement Date. The Annual Rental Adjustment excluding Real Estate Taxes shall be estimated annually by Landlord, and written notice thereof shall be given to Tenant prior to the beginning of each calendar year. Tenant shall pay to Landlord each month, at the same time the Monthly Rental Installment is due, an amount equal to one-twelfth (1/12) calculation of the estimated Annual Rental Adjustment excluding Real Estate Taxesmonthly Additional Rent payable during such Lease Year. If the cost of utility, janitorial at any time or other services increase during a calendar year, Landlord may increase the estimated Annual Rental Adjustment excluding Real Estate Taxes times during such year by giving Tenant written notice Lease Year it appears to Landlord that effect, and thereafter Tenant shall pay to Landlord, in each of the remaining months of such year, an amount equal Actual Costs Allocable to the amount of such increase in the estimated Annual Rental Adjustment excluding Real Estate Taxes for the remainder of the year divided by the number of months remaining in such year. Within a reasonable time after the end of each calendar year, Landlord shall prepare and deliver to Tenant a statement showing the actual Annual Rental Adjustment excluding Real Estate Taxes. Within thirty (30) days after receipt of the aforementioned statement, Tenant shall pay to Landlord, or Landlord shall credit against the next rent payment or payments due Premises will vary from Tenant, as the case may be, the difference between the actual Annual Rental Adjustment excluding Real Estate Taxes for the preceding calendar year and the estimated amount paid by Tenant to Landlord during such year. In addition, Tenant shall pay, before delinquency, any and all Real Estate Taxes as defined in Section 3.02.D, above, directly to the appropriate taxing authority. If Tenant fails for any reason to pay the Real Estate Taxes when same is due and payable, Landlord shall have the right, but not the obligation, to pay the Real Estate Taxes directly to the taxing authority and Tenant shall immediately reimburse Landlord for the cost thereof. Such amount shall accrue interest from the date Landlord pays such amount, pursuant to Section 3.04, below, shall include any penalties, late fees and any interest assessed due to such delinquency. Tenant or its accountants shall have the right to inspect, at reasonable time and in a reasonable manner, during the one hundred twenty (120) day period following the delivery of Landlord's statement of the actual amount of the Annual Rental Adjustment excluding Real Estate Taxes, such of Landlord's books of account and records as pertain to and contain information concerning such costs and expenses for the Building for the prior calendar year in order to verify the amounts thereof. In the event the first audit discloses (i) errors made during the prior calendar year which, when totaled, indicate that the sum overcharged to and paid estimate by Tenant, exceeds five percent (5%) of the Annual Rental Adjustment excluding Real Estate Taxes plus Landlord's Share of Operating Expenses (the "Total Expenses"), the audit shall be at the expense of Landlord, not to exceed Two Thousand Five Hundred Dollars ($2,500.00), or (ii) no errors or an error which equals or is less more than five percent (5%) of the Total Expenseson an annual basis, the audit Landlord may, by written notice to Tenant, revise Landlord's estimate for such Lease Year, and subsequent Additional Rent payments by Tenant for such Lease Year shall be at recalculated based on Landlord's revised Estimated Costs Allocable to the expense Premises. Within ninety (90) days after the close of Tenant. For each subsequent auditLease Year during the Lease Term, where or as soon thereafter as practicable, but not later than one hundred twenty (120) days after the audit discloses errors exceeding five percent (5%) close of the Total Expensessuch Lease Year, Landlord shall deliver to Tenant a written statement setting forth the Actual Costs Allocable to the Premises during the preceding Lease Year. If such costs for any Lease Year exceed Estimated Costs Allocable to the Premises paid by Tenant to Landlord, Tenant shall pay for the amount of such excess to Landlord as Additional Rent within forty-five (45) days after receipt of such statement by Tenant. If such statement shows such costs to be less than the amount paid by Tenant to Landlord, then the amount of such overpayment by Tenant shall be credited by Landlord to the next immediate Rent payable by Tenant. Tenant shall have the right, at Tenant's sole expense, to audit andLandlord's books regarding Actual Costs, provided that (i) such right shall not be exercised more than once each calendar year, and (ii) such right must be exercised, if at all, by delivery of written notice to Landlord on or before thirty (30) days after Landlord's delivery of the written statement setting forth Actual Costs Allocable to the Premises during the preceding Lease Year. If the audit discloses errors equal reveals that Landlord's statement is determined to or less be in error by more than five percent (5%) ), the amount of Additional Rent payable by Tenant attributable to Actual Costs Allocable to the Total Expenses, Tenant Premises shall pay be recalculated based upon the costs results of the any such audit. If Landlord spends more the Expiration Date is a day other than eight (8) hours to accommodate Tenant's right to audit hereunderthe last day of a Lease Year, Tenant shall also pay to Landlord as additional rent Seventy-five Dollars ($75.00) per hour for each additional hour that Tenant's audit takes of Landlord's property manager's or asset manager's time, provided such audit discloses no error or an error greater than five percent (5%) of the Total Expenses. The results of the audit (regardless of the degree of the error, if any) shall be binding upon Landlord and Tenant, and Landlord shall thereafter, if appropriate, change its method of calculating the Operating Expenses consistent with the results of the audit. Tenant agrees to hold the information obtained from such audit confidential and shall not disclose the same without Landlord's express written permission except as necessary to enforce the Lease or protect Tenant's rights hereunder. If Tenant shall not elect to cause an audit within the time period permitted hereby, then Landlord's statement shall be conclusively deemed to have been approved and accepted by Tenant. Pending resolution amount of any dispute adjustment between Actual Costs and Estimated Costs Allocable to the Premises with respect to statements the Lease Year in which such termination occurs shall be prorated on the basis of Tenant's Annual Rental Adjustment, Tenant shall pay its Annual Rental Adjustment as shown on such statement, and upon final determination of the a 365-day year. Any amount of Tenant's Annual Rental Adjustment, payable by Landlord shall promptly refund any overpayment to Tenant or by Tenant to Landlord with respect to such adjustment shall promptly pay any amount due be payable within forty-five (45) days after delivery by Landlord to Landlord, as applicableTenant of the Statement of Actual Costs Allocable to the Premises with respect to such Lease Year.
Appears in 1 contract
Payment of Additional Rent. In addition Landlord shall be entitled to estimate annually the Minimum Annual total amount of Additional Rent specified in this Lease, to be paid by Tenant shall pay to Landlord as "Additional Rent" for the Leased Premises, in during each calendar year or partial calendar year, during the Lease Term, an amount equal to the Annual Rental Adjustment excluding Real Estate Taxes for such calendar year or partial calendar year. In the case of the calendar year of the Commencement Date, Landlord shall provide such notice prior to the Commencement Date. The Annual Rental Adjustment excluding Real Estate Taxes shall be estimated annually by Landlord, Lease Term and written notice thereof shall be given to Tenant within a reasonable time period prior to the beginning of each calendar year (in the event the Lease Term shall commence in a calendar year, Tenant shall be furnished with said notice on the Commencement Date). Not later than November 30th of each calendar year, Landlord shall deliver to Tenant a proposed budget of Operating Expenses (each, an “Expense [ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT OF 1933, AS AMENDED. Budget”) for the following calendar year (except that, for the first year of the Lease Term, Tenant shall be provided with an Expense Budget not later than sixty (60) days prior to the Commencement Date). Tenant shall have the right to review and consult with Landlord regarding each Expense Budget within fifteen (15) days after Tenant’s receipt of the same. Tenant shall provide to Landlord, within such fifteen (15) day period, written approval of the applicable Expense Budget or, if Tenant disapproves any line item or line items contained therein, written notice of such disapproval on a line item basis. In the event Tenant delivers a notice of disapproval, Landlord shall act reasonably and in good faith to develop an Expense Budget that is responsive to Tenant’s concerns; provided, however, that in the event of a disagreement between Landlord and Tenant concerning the Expense Budget, the decision of Landlord shall control. Commencing on the Commencement Date, Tenant shall pay to Landlord each month, at the same time the Monthly Rental Installment is due, an amount equal to one-twelfth (1/12) of the estimated Annual Rental Adjustment excluding Real Estate Taxes. If the cost of utility, janitorial or other services increase during a calendar year, Landlord may increase the estimated Annual Rental Adjustment excluding Real Estate Taxes during such year by giving Tenant written notice to that effect, and thereafter Tenant shall pay to Landlord, in each of the remaining months of such year, an amount equal to the amount of such increase in the estimated Annual Rental Adjustment excluding Real Estate Taxes Additional Rent for the remainder of the year divided by the number of months remaining in such year. Within a reasonable time after the end of each calendar year, Landlord shall prepare and deliver Any amount required to Tenant a statement showing the actual Annual Rental Adjustment excluding Real Estate Taxes. Within thirty (30) days after receipt of the aforementioned statement, Tenant shall pay to Landlord, or Landlord shall credit against the next rent payment or payments due from Tenant, as the case may be, the difference between the actual Annual Rental Adjustment excluding Real Estate Taxes for the preceding calendar year and the estimated amount be paid by Tenant hereunder (in addition to Minimum Annual Rent) and any charges or expenses incurred by Landlord during such year. In additionon behalf of Tenant under the terms of this Lease shall be considered “Additional Rent” payable in the same manner and upon the same terms and conditions as the Minimum Annual Rent reserved hereunder, Tenant shall pay, before delinquency, any and all Real Estate Taxes except as defined in Section 3.02.D, above, directly set forth herein to the appropriate taxing authoritycontrary. If Any failure on the part of Tenant fails for any reason to pay such Additional Rent when and as the Real Estate Taxes when same is shall become due and payable, shall entitle Landlord shall have the right, but not the obligation, to pay the Real Estate Taxes directly to the taxing authority and Tenant shall immediately reimburse Landlord remedies available to it for the cost thereof. Such amount shall accrue interest from the date Landlord pays such amount, pursuant to Section 3.04, below, shall include any penalties, late fees and any interest assessed due to such delinquency. Tenant or its accountants shall have the right to inspect, at reasonable time and in a reasonable manner, during the one hundred twenty (120) day period following the delivery non-payment of Landlord's statement of the actual amount of the Minimum Annual Rental Adjustment excluding Real Estate Taxes, such of Landlord's books of account and records as pertain to and contain information concerning such costs and expenses for the Building for the prior calendar year in order to verify the amounts thereof. In the event the first audit discloses (i) errors made during the prior calendar year which, when totaled, indicate that the sum overcharged to and paid by Tenant, exceeds five percent (5%) of the Annual Rental Adjustment excluding Real Estate Taxes plus Landlord's Share of Operating Expenses (the "Total Expenses"), the audit shall be at the expense of Landlord, not to exceed Two Thousand Five Hundred Dollars ($2,500.00), or (ii) no errors or an error which equals or is less than five percent (5%) of the Total Expenses, the audit shall be at the expense of Tenant. For each subsequent audit, where the audit discloses errors exceeding five percent (5%) of the Total Expenses, Landlord shall pay for such audit and, if the audit discloses errors equal to or less than five percent (5%) of the Total Expenses, Tenant shall pay the costs of the audit. If Landlord spends more than eight (8) hours to accommodate Tenant's right to audit hereunder, Tenant shall also pay to Landlord as additional rent Seventy-five Dollars ($75.00) per hour for each additional hour that Tenant's audit takes of Landlord's property manager's or asset manager's time, provided such audit discloses no error or an error greater than five percent (5%) of the Total Expenses. The results of the audit (regardless of the degree of the error, if any) shall be binding upon Landlord and Tenant, and Landlord shall thereafter, if appropriate, change its method of calculating the Operating Expenses consistent with the results of the audit. Tenant agrees to hold the information obtained from such audit confidential and shall not disclose the same without Landlord's express written permission except as necessary to enforce the Lease or protect Tenant's rights hereunder. If Tenant shall not elect to cause an audit within the time period permitted hereby, then Landlord's statement shall be conclusively deemed to have been approved and accepted by Tenant. Pending resolution of any dispute with respect to statements of Tenant's Annual Rental Adjustment, Tenant shall pay its Annual Rental Adjustment as shown on such statement, and upon final determination of the amount of Tenant's Annual Rental Adjustment, Landlord shall promptly refund any overpayment to Tenant or Tenant shall promptly pay any amount due to Landlord, as applicableRent.
Appears in 1 contract
Payment of Additional Rent. In addition to The Landlord shall estimate the Minimum Annual amount of the Additional Rent specified in this Leasepayable by the Tenant at the commencement of each Lease Year, or fraction of a Lease Year within the Term. The Tenant shall pay to the Landlord as "the Additional Rent" Rent in equal monthly installments in advance throughout the period for which the Leased Premises, in each calendar year or partial calendar year, during estimate is made. The Landlord may periodically revise its estimates and notify the Lease Term, an amount equal to the Annual Rental Adjustment excluding Real Estate Taxes for such calendar year or partial calendar year. In the case Tenant of the calendar year of the Commencement Date, Landlord shall provide such notice prior to the Commencement Date. The Annual Rental Adjustment excluding Real Estate Taxes shall be estimated annually by Landlordrevised estimates, and written notice thereof shall the Tenant’s monthly payments will be given to Tenant prior to the beginning of each calendar year. Tenant shall pay to Landlord each month, at the same time the Monthly Rental Installment is due, an amount equal to one-twelfth (1/12) of the estimated Annual Rental Adjustment excluding Real Estate Taxes. If the cost of utility, janitorial or other services increase during a calendar year, Landlord may increase the estimated Annual Rental Adjustment excluding Real Estate Taxes during such year by giving Tenant written notice to that effect, and thereafter Tenant shall pay to Landlord, in each of the remaining months of such year, an amount equal to the amount of such increase in the estimated Annual Rental Adjustment excluding Real Estate Taxes for the remainder of the year divided by the number of months remaining in such yearadjusted accordingly. Within a reasonable time 120 days after the end of each calendar yeara Lease Year and upon a reasonable period of time after the expiry of the Lease, the Landlord shall prepare and deliver will provide to the Tenant a statement showing of the actual Annual Rental Adjustment excluding Real Estate Taxesamounts payable by the Tenant, showing in reasonable detail the determination of the costs and the calculation of the Tenant’s payment (the “Statement”). Within Any amounts owing by the Tenant to the Landlord will be paid within thirty (30) days after receipt the date of delivery of the aforementioned statementStatement by the Landlord. Provided the Tenant is not in default under this Lease, any amounts owing by the Landlord to the Tenant shall pay will be credited to Landlordthe Tenant’s account, without interest. The Landlord shall, within ten (10) days of the Tenant’s request, provide reasonable access to the Tenant or Landlord shall credit against the next rent payment Tenant’s accountants or payments due from Tenant, as the case may be, the difference between the actual Annual Rental Adjustment excluding Real Estate auditors to its books and records with respect to Operating Costs and Realty Taxes for examination by them, at the preceding calendar year Tenant’s cost, at the Landlord’s office or offices where such records and books are kept. Notwithstanding the estimated amount paid by Tenant Tenant’s right to Landlord during such year. In additionquestion, Tenant it shall pay, before delinquency, any and all Real Estate Taxes as defined in Section 3.02.D, above, directly to the appropriate taxing authority. If Tenant fails for any reason continue to pay the Real Estate Taxes Rent as and when same is due and payable, Landlord shall have the right, but not the obligation, to pay the Real Estate Taxes directly to the taxing authority and due. The Tenant shall immediately reimburse not be entitled to dispute the accuracy of any statement provided by the Landlord in accordance with the foregoing or claim any reimbursement or adjustment in respect of Additional Rent owing for a Lease Year after the cost thereof. Such amount shall accrue interest expiry of six (6) months from the date Landlord pays such amount, pursuant to Section 3.04, below, shall include any penalties, late fees and any interest assessed due to such delinquency. of receipt by the Tenant or its accountants shall have the right to inspect, at reasonable time and in a reasonable manner, during the one hundred twenty (120) day period following the delivery of Landlord's statement of the actual amount of the Annual Rental Adjustment excluding Real Estate Taxes, such of Landlord's books of account and records as pertain to and contain information concerning such costs and expenses for the Building for the prior calendar year in order to verify the amounts thereof. In the event the first audit discloses (i) errors made during the prior calendar year which, when totaled, indicate that the sum overcharged to and paid by Tenant, exceeds five percent (5%) of the Annual Rental Adjustment excluding Real Estate Taxes plus Landlord's Share of Operating Expenses (the "Total Expenses"), the audit shall be at the expense of Landlord, not to exceed Two Thousand Five Hundred Dollars ($2,500.00), or (ii) no errors or an error which equals or is less than five percent (5%) of the Total Expenses, the audit shall be at the expense of Tenant. For each subsequent audit, where the audit discloses errors exceeding five percent (5%) of the Total Expenses, Landlord shall pay ’s statement for such audit and, if the audit discloses errors equal to or less than five percent (5%) of the Total Expenses, Tenant shall pay the costs of the audit. If Landlord spends more than eight (8) hours to accommodate Tenant's right to audit hereunder, Tenant shall also pay to Landlord as additional rent Seventy-five Dollars ($75.00) per hour for each additional hour that Tenant's audit takes of Landlord's property manager's or asset manager's time, provided such audit discloses no error or an error greater than five percent (5%) of the Total Expenses. The results of the audit (regardless of the degree of the error, if any) shall be binding upon Landlord and Tenant, and Landlord shall thereafter, if appropriate, change its method of calculating the Operating Expenses consistent with the results of the audit. Tenant agrees to hold the information obtained from such audit confidential and shall not disclose the same without Landlord's express written permission except as necessary to enforce the Lease or protect Tenant's rights hereunder. If Tenant shall not elect to cause an audit within the time period permitted hereby, then Landlord's statement shall be conclusively deemed to have been approved and accepted by Tenant. Pending resolution of any dispute with respect to statements of Tenant's Annual Rental Adjustment, Tenant shall pay its Annual Rental Adjustment as shown on such statement, and upon final determination of the amount of Tenant's Annual Rental Adjustment, Landlord shall promptly refund any overpayment to Tenant or Tenant shall promptly pay any amount due to Landlord, as applicableYear.
Appears in 1 contract
Samples: Agreement of Lease (Dirtt Environmental Solutions LTD)
Payment of Additional Rent. In addition Prior to the Minimum commencement of the Lease Term, Landlord shall give Tenant a written estimate of Operating Expenses and Tenant's Proportionate Share thereof for the current year. Tenant shall pay its estimated Proportionate Share of Operating Expenses in equal monthly installments, in advance, concurrently with installments of Basic Annual Rent specified Rent. Prior to March 1 of each calendar year thereafter, Landlord shall furnish to Tenant a statement ("Expense Statement") showing in this Leasereasonable detail: (a) the actual Operating Expenses incurred by Landlord during the preceding calendar year, and Tenant's actual Proportionate Share thereof; (b) the amount (if any) by which Tenant's Proportionate Share of actual Operating Expenses for the preceding calendar year exceeded Tenant's total estimated payments made during such year, which amount shall be due to Landlord; (c) the estimated Operating Expenses for the current calendar year and Tenant's Proportionate Share of Operating Expenses; and (d) the amount of any increase in Tenant's estimated monthly payments for the current calendar year times the number of monthly payments due during such calendar year prior to the date of the Expense Statement, which amount shall be due to Landlord. Tenant shall pay to Landlord as "Additional Rent" for Rent all amounts owing to Landlord as shown on the Leased PremisesExpense Statement, in each calendar year or partial calendar yearwithin twenty (20) days of receipt thereof. Any overpayment by Tenant, during as shown on the Lease TermExpense Statement, an amount equal to the Annual Rental Adjustment excluding Real Estate Taxes for such calendar year or partial calendar year. In the case of the calendar year of the Commencement Date, Landlord shall provide such notice prior to the Commencement Date. The Annual Rental Adjustment excluding Real Estate Taxes shall be estimated annually by Landlord, and written notice thereof shall be given to Tenant prior to credited against the beginning next installments of each calendar year. Tenant shall pay to Landlord each month, at rent due hereunder Commencing with the same time the Monthly Rental Installment is due, an amount equal to one-twelfth (1/12) next installment of the estimated Annual Rental Adjustment excluding Real Estate Taxes. If the cost of utility, janitorial or other services increase during a calendar year, Landlord may increase the estimated Annual Rental Adjustment excluding Real Estate Taxes during such year by giving Tenant written notice to that effect, and thereafter Tenant shall pay to Landlord, in each of the remaining months of such year, an amount equal to the amount of such increase in the estimated Annual Rental Adjustment excluding Real Estate Taxes for the remainder of the year divided by the number of months remaining in such year. Within a reasonable time after the end of each calendar year, Landlord shall prepare and deliver to Tenant a statement showing the actual Annual Rental Adjustment excluding Real Estate Taxes. Within thirty (30) days Additional Rent due after receipt of the aforementioned statement, Tenant shall pay to Landlord, or Landlord shall credit against the next rent payment or payments due from Tenant, as the case may be, the difference between the actual Annual Rental Adjustment excluding Real Estate Taxes for the preceding calendar year and the estimated amount paid by Tenant to Landlord during such year. In addition, Tenant shall pay, before delinquency, any and all Real Estate Taxes as defined in Section 3.02.D, above, directly to the appropriate taxing authority. If Tenant fails for any reason to pay the Real Estate Taxes when same is due and payable, Landlord shall have the right, but not the obligation, to pay the Real Estate Taxes directly to the taxing authority and Tenant shall immediately reimburse Landlord for the cost thereof. Such amount shall accrue interest from the date Landlord pays such amount, pursuant to Section 3.04, below, shall include any penalties, late fees and any interest assessed due to such delinquency. Tenant or its accountants shall have the right to inspect, at reasonable time and in a reasonable manner, during the one hundred twenty (120) day period following the delivery of Landlord's statement of the actual amount of the Annual Rental Adjustment excluding Real Estate Taxes, such of Landlord's books of account and records as pertain to and contain information concerning such costs and expenses for the Building for the prior calendar year in order to verify the amounts thereof. In the event the first audit discloses (i) errors made during the prior calendar year which, when totaled, indicate that the sum overcharged to and paid by Tenant, exceeds five percent (5%) of the Annual Rental Adjustment excluding Real Estate Taxes plus Landlord's Share of Operating Expenses (the "Total Expenses"), the audit shall be at the expense of Landlord, not to exceed Two Thousand Five Hundred Dollars ($2,500.00), or (ii) no errors or an error which equals or is less than five percent (5%) of the Total Expenses, the audit shall be at the expense of Tenant. For each subsequent audit, where the audit discloses errors exceeding five percent (5%) of the Total Expenses, Landlord shall pay for such audit and, if the audit discloses errors equal to or less than five percent (5%) of the Total ExpensesExpense Statement, Tenant shall pay the costs estimated monthly amount of the audit. If Landlord spends more than eight (8) hours to accommodate Tenant's right to audit hereunder, Tenant shall also pay to Landlord as additional rent Seventy-five Dollars ($75.00) per hour for each additional hour that Tenant's audit takes of Landlord's property manager's or asset manager's time, provided such audit discloses no error or an error greater than five percent (5%) of the Total Expenses. The results of the audit (regardless of the degree of the error, if any) shall be binding upon Landlord and Tenant, and Landlord shall thereafter, if appropriate, change its method of calculating the Operating Expenses consistent with the results of the audit. Tenant agrees to hold the information obtained from such audit confidential and shall not disclose the same without Landlord's express written permission except as necessary to enforce the Lease or protect Tenant's rights hereunder. If Tenant shall not elect to cause an audit within the time period permitted hereby, then Landlord's statement shall be conclusively deemed to have been approved and accepted by Tenant. Pending resolution of any dispute with respect to statements of Tenant's Annual Rental Adjustment, Tenant shall pay its Annual Rental Adjustment as shown on such statement, and upon final determination of the amount of Tenant's Annual Rental Adjustment, Landlord shall promptly refund any overpayment to Tenant or Tenant shall promptly pay any amount due to Landlord, as applicable.current year specified in the
Appears in 1 contract
Samples: Lease Agreement (Equidyne Corp)
Payment of Additional Rent. In addition Landlord will make a good faith estimate of the Additional Rent to be due from Tenant for all or part of any calendar year during the Minimum Annual Rent specified in this LeaseTerm, and Tenant shall agrees to pay to Landlord as "Additional Rent" for Landlord, on the Leased PremisesJanuary 1, in 2007 and on the first day of each subsequent calendar year or partial calendar year, month during the Lease Term, an amount equal to 1/12th of the Annual Rental Adjustment excluding Real Estate Taxes estimated Additional Rent for such calendar year full or partial calendar year. In From time to time, Landlord may estimate and re-estimate the case Additional Rent to be due from Tenant and deliver a copy of the estimate or re-estimate to Tenant. Subsequently, the monthly installments of Additional Rent payable by Tenant will be appropriately adjusted in accordance with Landlord's estimations so that by the end of the calendar year in question Tenant will have paid all of the Commencement Date, Landlord shall provide such notice prior to the Commencement Date. The Annual Rental Adjustment excluding Real Estate Taxes shall be Additional Rent as estimated annually by Landlord, and written notice thereof shall be given to Tenant prior to the beginning of each calendar year. Tenant shall pay to Landlord each month, at the same time the Monthly Rental Installment is due, an amount equal to one-twelfth (1/12) of the estimated Annual Rental Adjustment excluding Real Estate Taxes. If the cost of utility, janitorial or other services increase during a calendar year, Landlord may increase the estimated Annual Rental Adjustment excluding Real Estate Taxes during such year by giving Tenant written notice to that effect, and thereafter Tenant shall pay to Landlord, in each of the remaining months of such year, an amount equal to the amount of such increase in the estimated Annual Rental Adjustment excluding Real Estate Taxes for the remainder of the year divided by the number of months remaining in such year. Within a reasonable time after the end By April 1 of each calendar year, or as soon after that date as practicable, Landlord shall prepare and deliver will furnish to Tenant a statement showing of Operating Costs paid for the previous year, adjusted as provided in Section 3.2(f) below (the "Operating Costs Statement"). By September 1 of each calendar year, or as soon after that date as practicable, Landlord will furnish to Tenant a statement of the Taxes paid for the previous year, adjusted as provided in Section 3.2(f) below (the "Tax Statement"). If the Operating Costs Statement and/or the Tax Statement reveal(s) that Tenant paid more in Operating Costs Adjustment or Tax Adjustment than the actual Annual Rental amount for the year for which such statement was prepared, then Landlord will promptly credit Tenant for such excess. Likewise, if Tenant paid less in Operating Costs Adjustment excluding Real Estate Taxes. Within than the actual amount for the year for which such statement was prepared, then Tenant shall pay such deficiency to Landlord within thirty (30) days after receipt of the aforementioned statement, Tenant shall pay to Landlord, or Landlord shall credit against the next rent payment or payments due from Tenant, as the case may be, the difference between the actual Annual Rental Adjustment excluding Real Estate Taxes for the preceding calendar year and the estimated amount paid by Tenant to Landlord during such year. In addition, Tenant shall pay, before delinquency, any and all Real Estate Taxes as defined in Section 3.02.D, above, directly to the appropriate taxing authority. If Tenant fails for any reason to pay the Real Estate Taxes when same is due and payable, Landlord shall have the right, but not the obligation, to pay the Real Estate Taxes directly to the taxing authority and Tenant shall immediately reimburse Landlord for the cost thereof. Such amount shall accrue interest from the date Landlord pays such amount, pursuant to Section 3.04, below, shall include any penalties, late fees and any interest assessed due to such delinquency. Tenant or its accountants shall have the right to inspect, at reasonable time and in a reasonable manner, during the one hundred twenty (120) day period following the delivery of Landlord's statement invoice. This provision will survive the Termination Date of the actual amount of the Annual Rental Adjustment excluding Real Estate Taxes, such of Landlord's books of account and records as pertain to and contain information concerning such costs and expenses for the Building for the prior calendar year in order to verify the amounts thereof. In the event the first audit discloses (i) errors made during the prior calendar year which, when totaled, indicate that the sum overcharged to and paid by Tenant, exceeds five percent (5%) of the Annual Rental Adjustment excluding Real Estate Taxes plus Landlord's Share of Operating Expenses (the "Total Expenses"), the audit shall be at the expense of Landlord, not to exceed Two Thousand Five Hundred Dollars ($2,500.00), or (ii) no errors or an error which equals or is less than five percent (5%) of the Total Expenses, the audit shall be at the expense of Tenant. For each subsequent audit, where the audit discloses errors exceeding five percent (5%) of the Total Expenses, Landlord shall pay for such audit and, if the audit discloses errors equal to or less than five percent (5%) of the Total Expenses, Tenant shall pay the costs of the audit. If Landlord spends more than eight (8) hours to accommodate Tenant's right to audit hereunder, Tenant shall also pay to Landlord as additional rent Seventy-five Dollars ($75.00) per hour for each additional hour that Tenant's audit takes of Landlord's property manager's or asset manager's time, provided such audit discloses no error or an error greater than five percent (5%) of the Total Expenses. The results of the audit (regardless of the degree of the error, if any) shall be binding upon Landlord and Tenant, and Landlord shall thereafter, if appropriate, change its method of calculating the Operating Expenses consistent with the results of the audit. Tenant agrees to hold the information obtained from such audit confidential and shall not disclose the same without Landlord's express written permission except as necessary to enforce the Lease or protect Tenant's rights hereunder. If Tenant shall not elect to cause an audit within the time period permitted hereby, then Landlord's statement shall be conclusively deemed to have been approved and accepted by Tenant. Pending resolution of any dispute with respect to statements of Tenant's Annual Rental Adjustment, Tenant shall pay its Annual Rental Adjustment as shown on such statement, and upon final determination of the amount of Tenant's Annual Rental Adjustment, Landlord shall promptly refund any overpayment to Tenant or Tenant shall promptly pay any amount due to Landlord, as applicablethis Lease.
Appears in 1 contract
Samples: Lease Agreement (Coolsavings Inc)
Payment of Additional Rent. In addition Landlord will make a good faith estimate of the Additional Rent to be due from Tenant for all or part of any calendar year during the Minimum Annual Rent specified in this LeaseTerm, and Tenant shall agrees to pay to Landlord as "Additional Rent" for Landlord, on the Leased Premises, in Commencement Date and on the first day of each subsequent calendar year or partial calendar year, month during the Lease Term, an amount equal to 1/12th of the Annual Rental Adjustment excluding Real Estate Taxes estimated Additional Rent for such calendar year full or partial calendar year. In From time to time, Landlord may estimate and re-estimate the case Additional Rent to be due from Tenant and deliver a copy of the estimate or re-estimate to Tenant. Subsequently, the monthly installments of Additional Rent payable by Tenant will be appropriately adjusted in accordance with Landlord's estimations so that by the end of the calendar year in question Tenant will have paid all of the Commencement Date, Landlord shall provide such notice prior to the Commencement Date. The Annual Rental Adjustment excluding Real Estate Taxes shall be Additional Rent as estimated annually by Landlord, and written notice thereof shall be given to Tenant prior to the beginning of each calendar year. Tenant shall pay to Landlord each month, at the same time the Monthly Rental Installment is due, an amount equal to one-twelfth (1/12) of the estimated Annual Rental Adjustment excluding Real Estate Taxes. If the cost of utility, janitorial or other services increase during a calendar year, Landlord may increase the estimated Annual Rental Adjustment excluding Real Estate Taxes during such year by giving Tenant written notice to that effect, and thereafter Tenant shall pay to Landlord, in each of the remaining months of such year, an amount equal to the amount of such increase in the estimated Annual Rental Adjustment excluding Real Estate Taxes for the remainder of the year divided by the number of months remaining in such year. Within a reasonable time after the end By April 1 of each calendar year, or as soon after that date as practicable, Landlord shall prepare and deliver will furnish to Tenant a statement showing of Operating Costs paid for the previous year, adjusted as provided in Section 3.2(f) below (the "OPERATING COSTS STATEMENT"). By September 1 of each calendar year, or as soon after that date as practicable, Landlord will furnish to Tenant a statement of the Taxes paid for the previous year, adjusted as provided in Section 3.2(f) below (the "TAX STATEMENT"). If the Operating Costs Statement and/or the Tax Statement reveal(s) that Tenant paid more in Operating Costs Adjustment or Tax Adjustment than the actual Annual Rental amount for the year for which such statement was prepared, then Landlord will promptly credit Tenant for such excess. Likewise, if Tenant paid less in Operating Costs Adjustment excluding Real Estate Taxes. Within thirty than the actual amount for the year for which such statement was prepared, then Tenant shall pay such deficiency to Landlord within ten (3010) days after receipt of the aforementioned statement, Tenant shall pay to Landlord, or Landlord shall credit against the next rent payment or payments due from Tenant, as the case may be, the difference between the actual Annual Rental Adjustment excluding Real Estate Taxes for the preceding calendar year and the estimated amount paid by Tenant to Landlord during such year. In addition, Tenant shall pay, before delinquency, any and all Real Estate Taxes as defined in Section 3.02.D, above, directly to the appropriate taxing authority. If Tenant fails for any reason to pay the Real Estate Taxes when same is due and payable, Landlord shall have the right, but not the obligation, to pay the Real Estate Taxes directly to the taxing authority and Tenant shall immediately reimburse Landlord for the cost thereof. Such amount shall accrue interest from the date Landlord pays such amount, pursuant to Section 3.04, below, shall include any penalties, late fees and any interest assessed due to such delinquency. Tenant or its accountants shall have the right to inspect, at reasonable time and in a reasonable manner, during the one hundred twenty (120) day period following the delivery of Landlord's statement demand. This provision will survive the Termination Date of the actual amount of the Annual Rental Adjustment excluding Real Estate Taxes, such of Landlord's books of account and records as pertain to and contain information concerning such costs and expenses for the Building for the prior calendar year in order to verify the amounts thereof. In the event the first audit discloses (i) errors made during the prior calendar year which, when totaled, indicate that the sum overcharged to and paid by Tenant, exceeds five percent (5%) of the Annual Rental Adjustment excluding Real Estate Taxes plus Landlord's Share of Operating Expenses (the "Total Expenses"), the audit shall be at the expense of Landlord, not to exceed Two Thousand Five Hundred Dollars ($2,500.00), or (ii) no errors or an error which equals or is less than five percent (5%) of the Total Expenses, the audit shall be at the expense of Tenant. For each subsequent audit, where the audit discloses errors exceeding five percent (5%) of the Total Expenses, Landlord shall pay for such audit and, if the audit discloses errors equal to or less than five percent (5%) of the Total Expenses, Tenant shall pay the costs of the audit. If Landlord spends more than eight (8) hours to accommodate Tenant's right to audit hereunder, Tenant shall also pay to Landlord as additional rent Seventy-five Dollars ($75.00) per hour for each additional hour that Tenant's audit takes of Landlord's property manager's or asset manager's time, provided such audit discloses no error or an error greater than five percent (5%) of the Total Expenses. The results of the audit (regardless of the degree of the error, if any) shall be binding upon Landlord and Tenant, and Landlord shall thereafter, if appropriate, change its method of calculating the Operating Expenses consistent with the results of the audit. Tenant agrees to hold the information obtained from such audit confidential and shall not disclose the same without Landlord's express written permission except as necessary to enforce the Lease or protect Tenant's rights hereunder. If Tenant shall not elect to cause an audit within the time period permitted hereby, then Landlord's statement shall be conclusively deemed to have been approved and accepted by Tenant. Pending resolution of any dispute with respect to statements of Tenant's Annual Rental Adjustment, Tenant shall pay its Annual Rental Adjustment as shown on such statement, and upon final determination of the amount of Tenant's Annual Rental Adjustment, Landlord shall promptly refund any overpayment to Tenant or Tenant shall promptly pay any amount due to Landlord, as applicablethis Lease.
Appears in 1 contract
Samples: Lease Agreement (Hotjobs Com LTD)
Payment of Additional Rent. In addition to Except as otherwise provided in the Minimum Annual Rent specified in last sentence of this LeaseSection 7.4, Tenant shall pay to Landlord as "Additional Rent" for the Leased Premisesmonthly, in advance, Tenant's Proportionate Share of an amount estimated by Landlord to be Landlord's approximate average monthly expenditure for such Additional Rent items, which estimated amount shall be reconciled at the end of each calendar year or partial calendar year, during the Lease Term, an amount equal to the Annual Rental Adjustment excluding Real Estate Taxes for such calendar year or partial calendar year. In the case of the calendar year of the Commencement Date, Landlord shall provide such notice prior to the Commencement Date. The Annual Rental Adjustment excluding Real Estate Taxes shall be estimated annually by Landlord, and written notice thereof shall be given to Tenant prior to the beginning of each calendar year. Tenant shall pay to Landlord each month, at the same time the Monthly Rental Installment is due, an amount equal to one-twelfth (1/12) of the estimated Annual Rental Adjustment excluding Real Estate Taxes. If the cost of utility, janitorial or other services increase during a calendar year, Landlord may increase the estimated Annual Rental Adjustment excluding Real Estate Taxes during such year by giving Tenant written notice to that effect, and thereafter Tenant shall pay as compared to Landlord, in each of the remaining months of such year, an amount equal to the amount of such increase in the estimated Annual Rental Adjustment excluding Real Estate Taxes 's actual expenditure for the remainder of the year divided by the number of months remaining in such yearsaid Additional Rent items. Within a reasonable time ninety (90) days after the end of each calendar year, Landlord shall prepare and deliver provide to Tenant a statement showing of the actual Annual Rental Adjustment excluding Real Estate TaxesAdditional Rent due for the preceding calendar year. Within thirty (30) days after receipt of the aforementioned statement, Tenant shall pay to Landlord, upon demand, any amount expended by Landlord for said Additional Rent items in excess of said estimated amount, or Landlord shall credit (or refund to Tenant if no further installments of Base Rent or Additional Rent are due hereunder) any amount of estimated payments made by Tenant in excess of Landlord's actual expenditures for said Additional Rent items against the next rent payment or payments installments of Base Rent and Additional Rent due from hereunder. Landlord shall use reasonable efforts to notify Tenant at least sixty days prior to the commencement of each year of the amount estimated by Landlord to be Tenant, as the case may be, the difference between the actual Annual Rental Adjustment excluding Real Estate Taxes 's Proportionate Share of Additional Rent items for the preceding such calendar year and the estimated amount paid by Tenant to Landlord during such year. In additionSuch estimates may be revised by Landlord from time to time upon thirty (30) days' prior written notice to Tenant. Tenant shall be entitled during normal business hours and upon reasonable advance notice to audit the books and records of Landlord relating to the Additional Rent expenses within eighteen (18) months after the end of the year to which such expenses relate. Notwithstanding anything to the contrary contained in this Article 7, at all times that the Premises include the entire Complex as provided in Section 3.1, Tenant shall paybe responsible for and shall pay directly all Real Property Taxes, before delinquencyutilities, any insurance premiums, costs of Common Area maintenance and repair, and all Real Estate Taxes as defined in Section 3.02.D, above, directly other costs relating to the appropriate taxing authority. If Tenant fails for any reason Complex, excepting only costs and obligations relating to pay the Real Estate Taxes when same is due and payable, Landlord shall have the right, but not the obligation, to pay the Real Estate Taxes directly to the taxing authority and Tenant shall immediately reimburse Landlord for the cost thereof. Such amount shall accrue interest from the date Landlord pays such amount, pursuant to Section 3.04, below, shall include any penalties, late fees Hazardous Materials other than Tenant's Hazardous Materials and any interest assessed due to such delinquency. Tenant or its accountants shall have the right to inspect, at reasonable time and in a reasonable manner, during the one hundred twenty (120) day period following the delivery of Landlord's statement of the actual amount of the Annual Rental Adjustment excluding Real Estate Taxes, such of Landlord's books of account and records as pertain to and contain information concerning such other costs and expenses for the Building for the prior calendar year in order obligations expressly provided herein to verify the amounts thereof. In the event the first audit discloses (i) errors made during the prior calendar year which, when totaled, indicate that the sum overcharged to and paid be borne by Landlord without reimbursement by Tenant, exceeds five percent (5%) of the Annual Rental Adjustment excluding Real Estate Taxes plus Landlord's Share of Operating Expenses (the "Total Expenses"), the audit shall be at the expense of Landlord, not to exceed Two Thousand Five Hundred Dollars ($2,500.00), or (ii) no errors or an error which equals or is less than five percent (5%) of the Total Expenses, the audit shall be at the expense of Tenant. For each subsequent audit, where the audit discloses errors exceeding five percent (5%) of the Total Expenses, Landlord shall pay for such audit and, if the audit discloses errors equal to or less than five percent (5%) of the Total Expenses, Tenant shall pay the costs of the audit. If Landlord spends more than eight (8) hours to accommodate Tenant's right to audit hereunder, Tenant shall also pay to Landlord as additional rent Seventy-five Dollars ($75.00) per hour for each additional hour that Tenant's audit takes of Landlord's property manager's or asset manager's time, provided such audit discloses no error or an error greater than five percent (5%) of the Total Expenses. The results of the audit (regardless of the degree of the error, if any) shall be binding upon Landlord and Tenant, and Landlord shall thereafter, if appropriate, change its method of calculating the Operating Expenses consistent with the results of the audit. Tenant agrees to hold the information obtained from such audit confidential and shall not disclose the same without Landlord's express written permission except as necessary to enforce the Lease or protect Tenant's rights hereunder. If Tenant shall not elect to cause an audit within the time period permitted hereby, then Landlord's statement shall be conclusively deemed to have been approved and accepted by Tenant. Pending resolution of any dispute with respect to statements of Tenant's Annual Rental Adjustment, Tenant shall pay its Annual Rental Adjustment as shown on such statement, and upon final determination of the amount of Tenant's Annual Rental Adjustment, Landlord shall promptly refund any overpayment to Tenant or Tenant shall promptly pay any amount due to Landlord, as applicable.
Appears in 1 contract
Samples: Genencor International Inc
Payment of Additional Rent. In addition Additional Rent commences to the Minimum Annual Rent specified in this Lease, Tenant shall pay to Landlord as "Additional Rent" for the Leased Premises, in each calendar year or partial calendar year, during the Lease Term, an amount equal to the Annual Rental Adjustment excluding Real Estate Taxes for such calendar year or partial calendar year. In the case of the calendar year of the Commencement Date, Landlord shall provide such notice prior to accrue upon the Commencement Date. The Annual Rental Adjustment excluding Real Estate Taxes Tenant’s Proportionate Share of Operating Expenses payable hereunder for the calendar years in which the Term begins and ends shall be estimated annually by Landlord, and written notice thereof prorated to correspond to that portion of said calendar years occurring within the Term. Landlord shall be given have the right to Tenant prior to reasonably estimate the beginning of Operating Expenses for each calendar year. Upon Landlord’s notice to Tenant of such estimated amount, Tenant shall pay to Landlord pay, on the first day of each month, at the same time the Monthly Rental Installment is due, an amount equal to one-twelfth (1/12) of the estimated Annual Rental Adjustment excluding Real Estate Taxes. If the cost of utility, janitorial or other services increase month during a that calendar year, Landlord may increase the estimated Annual Rental Adjustment excluding Real Estate Taxes during such year by giving Tenant written notice to that effect, and thereafter Tenant shall pay to Landlord, in each of the remaining months of such year, an amount (the “Estimated Additional Rent”) equal to the estimate of the Tenant’s Proportionate Share of Operating Expenses divided by 12 (or the fractional portion of the calendar year remaining at the time Landlord delivers its notice of the estimated amounts due from Tenant for that calendar year). If the aggregate amount of such increase in the estimated Annual Rental Adjustment excluding Real Estate Taxes Estimated Additional Rent actually paid by Tenant during any calendar year is less than Tenant’s actual ultimate liability for the remainder of the year divided by the number of months remaining in such year. Within a reasonable time after the end of each Operating Expenses for that particular calendar year, Landlord Tenant shall prepare and deliver to Tenant a statement showing pay the actual Annual Rental Adjustment excluding Real Estate Taxes. Within deficiency within thirty (30) days of Landlord’s written demand therefor. If the aggregate amount of Estimated Additional Rent actually paid by Txxxxx during a given calendar year exceeds Tenant’s actual liability for such calendar year (“Excess Additional Rent”), the Excess Additional Rent shall be credited against the Estimated Additional Rent next due from Tenant after receipt Landlord’s determination that Excess Additional Rent has been paid by Tenant; provided, however, in the event that Tenant pays Excess Additional Rent during the final year of the aforementioned statementTerm, Tenant shall pay to then upon the expiration of the Term, and determination, by Landlord, or Landlord shall credit against the next rent payment or payments due from Tenant, as the case may be, the difference between the actual Annual Rental Adjustment excluding Real Estate Taxes for the preceding calendar year and the estimated amount paid by Tenant to Landlord during such year. In addition, Tenant shall pay, before delinquency, any and all Real Estate Taxes as defined in Section 3.02.D, above, directly to the appropriate taxing authority. If Tenant fails for any reason to pay the Real Estate Taxes when same is due and payable, Landlord shall have the right, but not the obligation, to pay the Real Estate Taxes directly to the taxing authority and Tenant shall immediately reimburse Landlord for the cost thereof. Such amount shall accrue interest from the date Landlord pays such amount, pursuant to Section 3.04, below, shall include any penalties, late fees and any interest assessed due to such delinquency. Tenant or its accountants shall have the right to inspect, at reasonable time and in a reasonable manner, during the one hundred twenty (120) day period following the delivery of Landlord's statement of the actual amount of the Annual Rental Adjustment excluding Real Estate Taxes, such of Landlord's books of account and records as pertain to and contain information concerning such costs and expenses for the Building for the prior calendar year in order to verify the amounts thereof. In the event the first audit discloses (i) errors made during the prior calendar year which, when totaled, indicate that the sum overcharged to and paid by Tenant, exceeds five percent (5%) of the Annual Rental Adjustment excluding Real Estate Taxes plus Landlord's Share of Operating Expenses (the "Total Expenses"), the audit shall be at the expense of Landlord, not to exceed Two Thousand Five Hundred Dollars ($2,500.00), or (ii) no errors or an error which equals or is less than five percent (5%) of the Total Expenses, the audit shall be at the expense of Tenant. For each subsequent audit, where the audit discloses errors exceeding five percent (5%) of the Total ExpensesExcess Additional Rent, Landlord shall pay for such audit and, if Tenant the audit discloses errors equal to or less than five percent (5%) of the Total Expenses, Tenant shall pay the costs of the audit. If Landlord spends more than eight (8) hours to accommodate Tenant's right to audit hereunder, Tenant shall also pay to Landlord as additional rent Seventythen-five Dollars ($75.00) per hour for each additional hour that Tenant's audit takes of Landlord's property manager's or asset manager's time, provided such audit discloses no error or an error greater than five percent (5%) of the Total Expenses. The results of the audit (regardless of the degree of the error, if any) shall be binding upon Landlord and Tenant, and Landlord shall thereafter, if appropriate, change its method of calculating the Operating Expenses consistent with the results of the audit. Tenant agrees to hold the information obtained from such audit confidential and shall not disclose the same without Landlord's express written permission except as necessary to enforce the Lease or protect Tenant's rights hereunder. If Tenant shall not elect to cause an audit within the time period permitted hereby, then Landlord's statement shall be conclusively deemed to have been approved and accepted by Tenant. Pending resolution of any dispute with respect to statements of Tenant's Annual Rental Adjustment, Tenant shall pay its Annual Rental Adjustment as shown on such statement, and upon final determination of the amount of Tenant's Annual Rental Adjustment, Landlord shall promptly refund any overpayment to Tenant or Tenant shall promptly pay any amount due to Landlord, as applicableapplicable Excess Additional Rent.
Appears in 1 contract
Samples: JP Outfitters, Inc.
