PAYMENTS.
ANNUALLY, THE LANDLORD SHALL
RENDER TO THE TENANT A STATEMENT IN REASONABLE DETAIL SHOWING FOR THE PRECEDING
CALENDAR YEAR OR FRACTION THEREOF, AS THE CASE MAY BE, THE OPERATING EXPENSES
AND TENANT'S PROPORTIONATE SHARE OF THE OPERATING EXPENSES.
THE LANDLORD SHALL
USE DILIGENT EFFORTS TO DELIVER THE STATEMENT NOT LATER THAN NINETY (90) DAYS
AFTER THE END OF EACH CALENDAR YEAR OR FRACTION THEREOF AT THE BEGINNING OR AT
THE END OF THE TERM.
SAID STATEMENT TO BE RENDERED TO TENANT ALSO SHALL SHOW
FOR THE PRECEDING CALENDAR YEAR OR FRACTION THEREOF, AS THE CASE MAY BE, THE
AMOUNTS OF OPERATING EXPENSES ALREADY PAID BY TENANT.
IF AT THE TIME SUCH
STATEMENT IS RENDERED IT IS DETERMINED WITH RESPECT TO ANY CALENDAR YEAR THAT
TENANT HAS PAID (I) LESS THAN TENANT'S PROPORTIONATE SHARE OF OPERATING EXPENSES
OR (II) MORE THAN TENANT'S PROPORTIONATE SHARE OF OPERATING EXPENSES, THEN, IN
THE CASE OF (I) TENANT SHALL PAY TO THE LANDLORD, AS ADDITIONAL RENT, WITHIN
THIRTY (30) DAYS OF SUCH STATEMENT THE
10
AMOUNTS OF SUCH UNDERPAYMENT AND, IN THE CASE OF (II) THE LANDLORD SHALL REFUND
SUCH OVERPAYMENT TO THE TENANT WITHIN THIRTY (30) DAYS (LESS ANY AMOUNT THEN
OWED TO LANDLORD BY TENANT UNDER THIS LEASE, IN WHICH CASE LANDLORD PROMPTLY
SHALL NOTIFY TENANT OF SUCH OFFSET ).
THE OBLIGATION TO MAKE SUCH PAYMENT OR
REFUND FOR ANY PARTIAL CALENDAR YEAR AT THE END OF THE TERM SHALL SURVIVE THE
TERM.
IN NO EVENT SHALL TENANT BE OBLIGATED TO MAKE ANY PAYMENT WITH RESPECT TO
ANY OPERATING EXPENSE FIRST BILLED TO TENANT MORE THAN EIGHTEEN (18) MONTHS
AFTER THE END OF THE CALENDAR YEAR IN WHICH THE OPERATING EXPENSE WAS INCURRED.
3.4.4
TENANT'S RIGHT TO REVIEW.
TENANT SHALL HAVE THE
RIGHT TO EXAMINE, COPY AND AUDIT LANDLORD'S BOOKS AND RECORDS RELATING TO
OPERATING EXPENSES AND THE ALLOCATION OF EXPENSES MADE BY LANDLORD ESTABLISHING
TENANT'S PROPORTIONATE SHARE OF OPERATING EXPENSES FOR ANY CALENDAR YEAR FOR A
PERIOD OF ONE YEAR FOLLOWING THE DATE THAT TENANT RECEIVES THE STATEMENT OF
OPERATING EXPENSES AND TENANT'S PROPORTIONATE SHARE OF OPERATING EXPENSES FOR
SUCH YEAR FROM LANDLORD.
TENANT SHALL GIVE LANDLORD NOT LESS THAN THIRTY (30)
DAYS' PRIOR NOTICE OF ITS INTENTION TO EXAMINE AND AUDIT SUCH BOOKS AND RECORDS,
AND SUCH EXAMINATION AND AUDIT SHALL TAKE PLACE AT THE LANDLORD'S OFFICES;
PROVIDED, HOWEVER, THAT SO LONG AS LANDLORD MAINTAINS AN OFFICE IN THE GREATER
BOSTON AREA, LANDLORD SHALL KEEP THE BOOKS AND RECORDS RELATING TO THE PREMISES
IN SUCH OFFICE.
ALL COSTS OF THE EXAMINATION AND AUDIT SHALL BE BORNE BY
TENANT; PROVIDED, HOWEVER, THAT IF SUCH EXAMINATION AND AUDIT ESTABLISHES THAT
THE ACTUAL OPERATING EXPENSES OR THE AMOUNT ALLOCATED TO TENANT'S PROPORTIONATE
SHARE OF OPERATING EXPENSES FOR THE YEAR IN QUESTION ARE LESS THAN THE AMOUNT
SET FORTH AS THE ANNUAL OPERATING EXPENSES ON THE ANNUAL STATEMENT DELIVERED TO
TENANT BY AT LEAST FIVE PERCENT (5%), THEN LANDLORD SHALL PAY THE REASONABLE
COSTS OF SUCH EXAMINATION AND AUDIT.
IF, PURSUANT TO SUCH