Tenant with an Annual
Expenses Estimate (the "Annual Expense Estimate") of Tenant's Prorata Share for
the upcoming calendar year, and commencing on the following January 1, Tenant
shall begin paying Landlord one-twelfth (1/12) of such Annual Expense Estimate
with each succeeding monthly installment of rent.
(VI)
AT THE END OF THE TERM OF THIS LEASE OR UPON
ANY EARLIER TERMINATION OF THE LEASE OR OF TENANT'S RIGHT TO POSSESSION OF THE
PREMISES, TENANT SHALL BE OBLIGATED TO PAY LANDLORD, IN THE EVENT OF AN
UNDERPAYMENT BY TENANT, OR LANDLORD SHALL BE OBLIGATED TO REFUND TO TENANT, IN
THE EVENT OF ANY OVERPAYMENT BY TENANT, THE DIFFERENCE, IF ANY, BETWEEN THE
AGGREGATE AMOUNT ACTUALLY PAID BY TENANT WITH RESPECT TO TENANT'S PRORATA SHARE
AND THAT WHICH IT IS OBLIGATED TO PAY UNDER THE FOREGOING SUBSECTION
2(D)(V)(1).
AS SOON AS PRACTICABLE AFTER THE BEGINNING OF THE CALENDAR YEAR
FOLLOWING THE END OF THE TERM HEREOF OR ANY SUCH EARLIER TERMINATION, LANDLORD
SHALL FURNISH TENANT AN ANNUAL EXPENSE STATEMENT IN THE MANNER PROVIDED IN THE
FOREGOING SUBSECTION 2(D)(V)(1) RELATIVE TO THE PRORATED PORTION OF THE
PRECEDING CALENDAR YEAR FOR
11
WHICH THIS LEASE WAS IN EFFECT AND TENANT HAD THE RIGHT TO POSSESSION OF THE
PREMISES, AND UPON THE FURNISHING OF SUCH ANNUAL EXPENSE STATEMENT, LANDLORD
SHALL IMMEDIATELY REFUND, OR TENANT SHALL IMMEDIATELY PAY LANDLORD, THE AMOUNT,
IF ANY, DUE AS AFORESAID.
TENANT'S OBLIGATION TO PAY TENANT'S PRORATA SHARE AND
LANDLORD'S OBLIGATION TO REFUND ANY OVERPAYMENTS AS AFORESAID SHALL SURVIVE ANY
EXPIRATION OR OTHER TERMINATION OF THIS LEASE.
NOTWITHSTANDING ANYTHING
CONTAINED HEREIN TO THE CONTRARY, ANY ADJUSTMENTS BY LANDLORD TO TENANT'S
PRORATA SHARE FOR PRIOR YEARS UNDER THIS SECTION 2(D)(VI) SHALL RELATE ONLY TO
THE CALENDAR YEAR MOST RECENTLY ENDED.
(VII)
IT IS UNDERSTOOD AND AGREED THAT TENANT'S
PRORATA SHARE SHALL, FOR THE PURPOSES OF THE DEFAULT PROVISIONS HEREOF, BE
DEEMED TO BE ADDITIONAL RENT DUE FROM TENANT, AND ANY DEFAULT IN THE PAYMENT
THEREOF SHALL ENTITLE LANDLORD TO ALL REMEDIES PROVIDED FOR HEREIN OR AT LAW OR
IN EQUITY ON ACCOUNT OF TENANT'S FAILURE TO PAY RENT.
THE OTHER PROVISIONS
HEREOF TO THE CONTRARY NOTWITHSTANDING, IT IS AGREED THAT TENANT'S PAYMENT OF A
PORTION OF THE EXPENSE OF OPERATING THE BUILDING SHALL NOT BE DEEMED PAYMENTS OF
RENT AS THAT TERM IS CONSTRUED RELATIVE TO GOVERNMENTAL WAGE AND PRICE CONTROLS
OR ANALOGOUS GOVERNMENTAL ACTIONS AFFECTING THE AMOUNT OF RENT WHICH LANDLORD
MAY CHARGE TENANT.
(VIII)
IN THE EVENT THAT WITHIN NINETY (90) DAYS AFTER
TENANT'S RECEIPT OF THE ANNUAL EXPENSE STATEMENT FOR THE PRIOR CALENDAR YEAR,
TENANT REASONABLY BELIEVES THAT CERTAIN OF THE OPERATING EXPENSES CHARGED BY
LANDLORD INCLUDE COSTS THAT ARE NOT PROPERLY INCLUDED WITHIN THE TERM "OPERATING
EXPENSES" OR THAT LANDLORD HAS ERRED IN CALCULATING SAME, TENANT SHALL HAVE THE
RIGHT TO AUDIT LANDLORD'S BOOKS AND RECORDS IN ACCORDANCE WITH THIS PARAGRAPH.
TENANT SHALL EXERCISE SUCH AUDIT RIGHT BY PROVIDING LANDLORD WITH A WRITTEN
NOTICE OF TENANT'S EXERCISE OF SUCH AUDIT RIGHT WITHIN SUCH 90-DAY PERIOD (THE
"AUDIT NOTICE").