BE IN ADDITION TO ALL OF LANDLORD'S OTHER RIGHTS
AND REMEDIES HEREUNDER, AT LAW AND/OR IN EQUITY AND SHALL NOT BE CONSTRUED AS
LIQUIDATED DAMAGES OR AS LIMITING LANDLORD'S REMEDIES IN ANY MANNER.
IN
ADDITION TO THE LATE CHARGE DESCRIBED ABOVE, ANY RENT OR OTHER AMOUNTS OWING
HEREUNDER WHICH ARE NOT PAID BY THE DATE THEY ARE DUE SHALL THEREAFTER BEAR
INTEREST UNTIL PAID AT A RATE EQUAL TO THE LESSER OF (I) THE INTEREST RATE SET
FORTH IN SECTION 4.2.4 ABOVE, OR (II) THE HIGHEST RATE PERMITTED BY APPLICABLE
LAW.
4.6
AUDIT RIGHT.
WITHIN ONE HUNDRED EIGHTY (180) DAYS AFTER RECEIPT
OF A STATEMENT BY TENANT ("REVIEW PERIOD"), IF TENANT DISPUTES THE AMOUNT SET
FORTH IN THE STATEMENT, TENANT'S EMPLOYEES OR AN INDEPENDENT CERTIFIED PUBLIC
ACCOUNTANT (WHICH ACCOUNTANT IS A MEMBER OF A NATIONALLY OR REGIONALLY
RECOGNIZED ACCOUNTING FIRM) DESIGNATED BY TENANT, MAY, AFTER WRITTEN NOTICE TO
LANDLORD AND AT REASONABLE TIMES, INSPECT LANDLORD'S RECORDS (PERTAINING TO
LANDLORD'S CALCULATION OF DIRECT EXPENSES AND/OR UTILITIES COSTS) AT LANDLORD'S
OFFICES, PROVIDED THAT TENANT IS NOT THEN IN DEFAULT AFTER EXPIRATION OF ALL
APPLICABLE CURE PERIODS AND PROVIDED FURTHER THAT TENANT AND SUCH ACCOUNTANT OR
REPRESENTATIVE SHALL, AND EACH OF THEM SHALL USE THEIR COMMERCIALLY REASONABLE
EFFORTS TO CAUSE THEIR RESPECTIVE AGENTS AND EMPLOYEES TO, MAINTAIN ALL
INFORMATION CONTAINED IN LANDLORD'S RECORDS IN STRICT CONFIDENCE.
NOTWITHSTANDING THE FOREGOING, TENANT SHALL ONLY HAVE THE RIGHT TO REVIEW
LANDLORD'S RECORDS ONE (1) TIME DURING ANY TWELVE (12) MONTH PERIOD.
TENANT'S
FAILURE TO DISPUTE THE AMOUNTS SET FORTH IN ANY STATEMENT WITHIN THE REVIEW
PERIOD SHALL BE DEEMED TO BE TENANT'S APPROVAL OF SUCH STATEMENT AND TENANT,
THEREAFTER, WAIVES THE RIGHT OR ABILITY TO DISPUTE THE AMOUNTS
10
SET FORTH IN SUCH STATEMENT.
IF AFTER SUCH INSPECTION, BUT WITHIN THIRTY (30)
DAYS AFTER THE REVIEW PERIOD, TENANT NOTIFIES LANDLORD IN WRITING THAT TENANT
STILL DISPUTES SUCH AMOUNTS, A CERTIFICATION AS TO THE PROPER AMOUNT SHALL BE
MADE, AT TENANT'S EXPENSE, BY AN INDEPENDENT CERTIFIED PUBLIC ACCOUNTANT
SELECTED BY LANDLORD, AND REASONABLY ACCEPTABLE TO TENANT, WHO IS A MEMBER OF A
NATIONALLY OR REGIONALLY RECOGNIZED ACCOUNTING FIRM.
HOWEVER, IF SUCH
CERTIFICATION BY THE ACCOUNTANT PROVES THAT THE TOTAL AMOUNT OF DIRECT EXPENSES
AND/OR UTILITIES COSTS, AS APPLICABLE, SET FORTH IN THE STATEMENT WERE
OVERSTATED BY MORE THAN FIVE PERCENT (5%), THEN THE ACTUAL, DOCUMENTED AND
REASONABLE COST OF THE REVIEW, THE ACCOUNTANT AND SUCH CERTIFICATION SHALL BE
PAID FOR BY LANDLORD.
PROMPTLY FOLLOWING THE PARTIES RECEIPT OF SUCH
CERTIFICATION, THE PARTIES SHALL MAKE SUCH APPROPRIATE PAYMENTS OR
REIMBURSEMENTS, AS THE CASE MAY BE, TO EACH OTHER, AS ARE DETERMINED TO BE OWING
PURSUANT TO SUCH CERTIFICATION.
IN NO EVENT SHALL LANDLORD OR ITS PROPERTY
MANAGER BE REQUIRED TO (I) PHOTOCOPY ANY ACCOUNTING RECORDS OR OTHER ITEMS OR
CONTRACTS (BUT LANDLORD WILL PERMIT TENANT TO MAKE PHOTOCOPIES AT TENANT'S OWN
EXPENSE), (II) CREATE ANY LEDGERS OR SCHEDULES NOT ALREADY IN EXISTENCE,
(III) INCUR ANY COSTS OR EXPENSES RELATIVE TO SUCH INSPECTION (EXCEPT AS
PROVIDED ABOVE), OR