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4.4 Calculation and Payment of Expenses and Taxes .
4.4.1 Statement of Actual Expenses and Taxes and Payment by Tenant
. Landlord shall give to Tenant, within 180
days after the end of each Expense Year a statement (the “ Statement ”)
setting forth the actual amount of Direct Expenses for such Expense
Year, including Tenant’
s Share of Expenses and Taxes for such Expense Year. If the amount paid by Tenant for such Expense Year pursuant to
Section 4.4.2 below is less or more than the actual sum of Tenant’
s Direct Expenses for such Expense Year (as such amounts are set forth in
such Statement), Tenant shall pay Landlord the amount of such underpayment, or receive a credit in the amount of such overpayment, with or
against the Rent next due hereunder; provided, however, that if this Lease has expired or terminated and Tenant has vacated the Premises, Tenant
shall pay Landlord the amount of such underpayment, or Landlord shall pay Tenant the amount of such overpayment (less any Rent due), within
30 days after delivery of such Statement. Any failure of Landlord to timely furnish the Statement for any Expense Year shall not preclude
Landlord or Tenant from enforcing its rights under this Article 4. Notwithstanding the immediately preceding sentence, Tenant shall not be
responsible for any Direct Expenses attributable to any Expense Year which are first billed to Tenant more than two (2) calendar years after the
expiration of the applicable Expense Year, provided that in all events Tenant shall be responsible for Direct Expenses levied by any
governmental authority or by any public utility companies at any time which are attributable to any Expense Year (provided that Landlord
delivers Tenant a bill for such amounts within two (2) years following Landlord’s receipt of the bill therefor).
4.4.2 Statement of Estimated Expenses and Taxes
. Landlord shall endeavor to give to Tenant, for each Expense Year,
a statement (the “ Estimate Statement ”) setting forth Landlord’s reasonable estimates of the Direct Expenses (the “
Estimated Direct
Expenses ”) for such Expense Year, including Tenant’
s Share of Expenses and Taxes for such Expense Year. Notwithstanding anything to the
contrary in this Lease, the Estimated Direct Expenses for any portion of the term during 2011 shall be $0.50 per month per square foot of the
Premises. Upon receiving an Estimate Statement, Tenant shall pay, with its next installment of Base Rent, an amount equal to the excess of
(a) the amount obtained by multiplying (i) the sum of the Estimated Direct Expenses (as such amount is set forth in such Estimate Statement), by
(ii) a fraction, the numerator of which is the number of months that have elapsed in the applicable Expense Year (including the month of such
payment) and the denominator of which is 12, over (b) any amount previously paid by Tenant for such Expense Year pursuant to this
Section 4.4.2
. Until a new Estimate Statement is furnished (which Landlord shall have the right to deliver to Tenant at any time), Tenant shall
pay monthly, with the monthly Base Rent installments, an amount equal to one-
twelfth (1/12) of the sum of the Estimated Direct Expenses, as
such amount is set forth in the previous Estimate Statement delivered by Landlord to Tenant. Except as expressly provided in Section 4.4.1
, any
failure of Landlord to timely furnish any Estimate Statement shall not preclude Landlord from enforcing its rights to receive payments and revise
any previous Estimate Statement under this Article 4 .
4.4.3 Retroactive Adjustment . Notwithstanding anything herein to the contrary, but subject to Section 4.4.
1, if, after
Landlord’
s delivery of any Statement, an increase or decrease in Direct Expenses occurs for the applicable Expense Year (whether, in the case of
Taxes, by reason of reassessment or error, or, in the case of Expenses, by a third-party’
s reimbursement of costs or otherwise), Direct Expenses
for such Expense Year shall be retroactively adjusted. If, as a result of such adjustment, it is determined that Tenant has under-
or overpaid
Tenant’
s Share of such Taxes or Expenses, Tenant shall pay Landlord the amount of such underpayment, or receive a credit in the amount of
such overpayment, with or against the Rent then or next due hereunder; provided, however, that if this Lease has expired or terminated and
Tenant has vacated the Premises, Tenant shall pay Landlord the amount of such underpayment, or Landlord shall pay Tenant the amount of such
overpayment (less any Rent due), within 30 days after such adjustment is made.
4.5 Taxes and Other Charges for Which Tenant Is Directly Responsible .
4.5.1 Tenant shall pay, 10 days before delinquency, any taxes levied against Tenant’
s equipment, furniture, trade fixtures and
other personal property located in or about the Premises (“ Tenant’s Property ”).
If any such taxes are levied against Landlord or its property
(or if the assessed value of Landlord’
s property is increased by the inclusion therein of a value placed upon such equipment, furniture, fixtures or
other personal property of Tenant), and if Landlord pays such taxes (or such increased assessment), which Landlord shall have the right to do
regardless of the validity thereof (unless the same is timely and successfully challenged by Tenant or, if requested by Tenant, the same is made
by Landlord under protest as and to the extent permitted by Law), Tenant shall, upon demand, repay to Landlord the amount so paid.
4.5.2 Notwithstanding any contrary provision herein, Tenant shall pay, 10 days before delinquency, (i) any rent tax, sales tax,
service tax, transfer tax or value added tax, or any other tax respecting the rent or services described herein or otherwise respecting this Lease;
(ii) taxes assessed upon the possession, leasing, operation, management, maintenance, alteration, repair, use or occupancy by Tenant of any
portion of the Project; and (iii) taxes assessed upon this transaction or any document to
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