OR
CONTINGENCY BASIS) SELECTED BY TENANT AND REASONABLY APPROVED BY LANDLORD (THE
"ACCOUNTANT") TO COMPLETE AN AUDIT OF LANDLORD'S BOOKS AND RECORDS TO DETERMINE
THE PROPER AMOUNT OF THE OPERATING EXPENSES, TAX EXPENSES AND UTILITIES COSTS
INCURRED AND AMOUNTS PAYABLE BY TENANT FOR THE EXPENSE YEAR WHICH IS THE SUBJECT
OF SUCH STATEMENT.
SUCH AUDIT BY THE ACCOUNTANT SHALL BE FINAL AND BINDING UPON
LANDLORD AND TENANT.
IF
22
LANDLORD AND TENANT CANNOT MUTUALLY AGREE AS TO THE IDENTITY OF THE ACCOUNTANT
WITHIN THIRTY (30) DAYS AFTER TENANT NOTIFIES LANDLORD THAT TENANT DESIRES AN
AUDIT TO BE PERFORMED, THEN THE ACCOUNTANT SHALL BE ONE OF THE "BIG 4"
ACCOUNTING FIRMS (WHICH IS NOT PAID ON A COMMISSION OR CONTINGENCY BASIS AND IS
NOT REPRESENTING OR ENGAGED BY TENANT OR LANDLORD IN OTHER MATTERS, AND HAS NOT
REPRESENTED OR BEEN ENGAGED BY TENANT OR LANDLORD FOR ANY MATTER FOR THE 5-YEAR
PERIOD PRECEDING THE AUDIT), AS SELECTED BY TENANT.
IF SUCH AUDIT REVEALS THAT
LANDLORD HAS OVER-CHARGED TENANT, THEN WITHIN THIRTY (30) DAYS AFTER THE RESULTS
OF SUCH AUDIT ARE MADE AVAILABLE TO LANDLORD, LANDLORD SHALL REIMBURSE TO TENANT
THE AMOUNT OF SUCH OVER-CHARGE, TOGETHER WITH INTEREST ON THE AMOUNT OF THE
OVER-CHARGE AT THE INTEREST RATE (AS DEFINED IN SECTION 4.5 ABOVE).
IF THE
AUDIT REVEALS THAT THE TENANT WAS UNDER-CHARGED, THEN WITHIN THIRTY (30) DAYS
AFTER THE RESULTS OF SUCH AUDIT ARE MADE AVAILABLE TO TENANT, TENANT SHALL
REIMBURSE TO LANDLORD THE AMOUNT OF SUCH UNDER-CHARGE.
TENANT AGREES TO PAY THE
COST OF SUCH AUDIT UNLESS IT IS SUBSEQUENTLY DETERMINED THAT LANDLORD'S ORIGINAL
STATEMENT WHICH WAS THE SUBJECT OF SUCH AUDIT OVERSTATED OPERATING EXPENSES, TAX
EXPENSES AND UTILITIES COSTS BY FIVE PERCENT (5%) OR MORE OF THE ORIGINALLY
REPORTED OPERATING EXPENSES, TAX EXPENSES AND UTILITIES COSTS WHICH WAS THE
SUBJECT OF SUCH AUDIT, IN WHICH CASE ALL REASONABLE AND DOCUMENTED COSTS
INCURRED BY TENANT IN CONNECTION WITH SAID AUDIT (BUT NOT IN EXCESS OF THE
OVER-CHARGE) SHALL BE REIMBURSED BY LANDLORD WITHIN THIRTY (30) DAYS AFTER
DEMAND THEREFOR.
THE PAYMENT BY TENANT OF ANY AMOUNTS PURSUANT TO THIS
ARTICLE 4 SHALL NOT PRECLUDE TENANT FROM QUESTIONING, DURING THE REVIEW PERIOD,
THE CORRECTNESS OF THE PARTICULAR STATEMENT IN QUESTION PROVIDED BY LANDLORD,
BUT THE FAILURE OF TENANT TO OBJECT THERETO, CONDUCT AND COMPLETE ITS INSPECTION
AND HAVE THE ACCOUNTANT CONDUCT THE AUDIT AS DESCRIBED ABOVE PRIOR TO THE
EXPIRATION OF THE REVIEW PERIOD FOR SUCH STATEMENT SHALL BE CONCLUSIVELY DEEMED
TENANT'S APPROVAL OF THE STATEMENT IN QUESTION AND THE AMOUNT OF OPERATING
EXPENSES, TAX EXPENSES AND UTILITIES COSTS SHOWN THEREON.
IF FOLLOWING TENANT'S
DELIVERY TO LANDLORD OF A WRITTEN REQUEST TO MAKE LANDLORD'S BOOKS AND RECORDS
REGARDING THE OPERATING EXPENSES, TAX EXPENSES AND UTILITIES COSTS REASONABLY
AVAILABLE TO TENANT AND/OR THE ACCOUNTANT TO CONDUCT ANY SUCH INSPECTION AND/OR
AUDIT DESCRIBED ABOVE IN THIS SECTION 4.7, LANDLORD FAILS TO MAKE LANDLORD'S
BOOKS REASONABLY AVAILABLE FOR SUCH PURPOSES DURING LANDLORD'S NORMAL BUSINESS
HOURS, AND SUCH FAILURE CONTINUES FOR ONE (1) BUSINESS