HEREUNDER (OR, IN THE EVENT THAT THE LEASE IS EXPIRED OR OTHERWISE
TERMINATED, THEN LESSOR SHALL REMIT THE OVERPAYMENT TO LESSEE WITHIN THIRTY (30)
DAYS OF NOTICE FROM LESSEE).
(B)
THE ACCEPTANCE BY LESSOR OF THE ESTIMATED
PAYMENTS OF PERCENTAGE RENT OR ANY ADDITIONAL PAYMENT OF PERCENTAGE RENT
(PURSUANT TO SUBPARAGRAPH (A) ABOVE) SHALL NOT PREJUDICE LESSOR'S RIGHT, AT
LESSOR'S SOLE COST AND EXPENSE (EXCEPT AS EXPRESSLY PROVIDED BELOW), TO AN
EXAMINATION OF LESSEE'S RECORDS OF GROSS REVENUES FOR ANY PERIOD FOR WHICH
LESSEE IS REQUIRED TO MAINTAIN RECORDS TO VERIFY GROSS REVENUES.
LESSOR SHALL
HAVE THE RIGHT TO EXAMINE LESSEE'S RECORDS DURING ALL REGULAR BUSINESS HOURS
UPON REASONABLE PRIOR NOTICE.
LESSEE, UPON
11
REASONABLE PRIOR NOTICE, SHALL MAKE AVAILABLE TO LESSOR FOR EXAMINATION ANY
OTHER RECORDS REQUIRED TO BE MAINTAINED HEREUNDER.
IF THE AUDIT OF THE BOOKS
AND RECORDS BY LESSOR (THE "LESSOR'S GROSS REVENUES AUDIT") DISCLOSES THAT GROSS
REVENUES WERE UNDERREPORTED BY LESSEE FOR ANY PERIOD COVERED BY SUCH AUDIT,
LESSEE SHALL PROMPTLY PAY TO LESSOR, THE COST OF THE LESSOR'S GROSS REVENUES
AUDIT, AS ADDITIONAL RENT, IN ADDITION TO ANY DEFICIENCY IN PERCENTAGE RENT THAT
MAY BE DUE, PLUS INTEREST THEREON AT THE BASE RATE FROM THE DATE DUE UNTIL
PAID.
IF THE LESSOR'S GROSS REVENUES AUDIT OR THE ANNUAL AUDITED GROSS REVENUES
STATEMENT FOR TWO (2) CONSECUTIVE LEASE YEARS DISCLOSES THAT GROSS REVENUES WERE
UNDERREPORTED BY LESSEE BY FIVE PERCENT (5%) OR MORE FOR EACH SUCH LEASE YEAR,
LESSOR SHALL HAVE THE OPTION, EXERCISABLE WITHIN SIXTY (60) DAYS OF ITS
DISCOVERY OF THE DISCREPANCY, TO CONSIDER SUCH EVENT AS AN EVENT OF DEFAULT.
THE PROVISIONS OF THIS SECTION SHALL SURVIVE THE EXPIRATION OF THE TERM OR THE
EARLIER TERMINATION OF THIS LEASE FOR A PERIOD OF ONE (1) YEAR THEREAFTER.
ANY
DISPUTE AS TO THE EXISTENCE OR AMOUNT OF ANY DEFICIENCY IN THE PAYMENT OF
PERCENTAGE RENT AS DISCLOSED BY LESSOR'S GROSS REVENUES AUDIT SHALL, IF NOT
OTHERWISE SETTLED BY THE PARTIES, BE SUBMITTED TO ARBITRATION PURSUANT TO THE
PROVISIONS OF SECTION 38.2.
(C)
LESSEE SHALL MAINTAIN IN A MANNER AND FORM
SATISFACTORY TO LESSOR, DURING THE TERM, AND FOR A PERIOD OF THREE (3)
CONSECUTIVE YEARS THEREAFTER, COMPLETE AND ACCURATE GENERAL BOOKS OF ACCOUNT,
WHICH SHALL REFLECT GROSS REVENUES, AND WHICH SHALL INCLUDE, IF USED BY LESSEE,
WITHOUT LIMITATION, ORIGINAL INVOICES, SALES RECORDS, SALES SLIPS, SALES CHECKS,
SALES REPORTS, CASH REGISTER TAPES, RECORDS OF BANK DEPOSITS, INVENTORY RECORDS
PREPARED AS OF THE CLOSE OF THE LESSEE'S ACCOUNTING PERIOD, SALES AND OCCUPATION
TAX RETURNS AND ALL OTHER ORIGINAL RECORDS AND OTHER PERTINENT PAPERS WHICH WILL
ENABLE LESSOR TO DETERMINE THE GROSS REVENUES DERIVED BY LESSEE DURING THE
TERM.
SUCH RECORDS FOR THE THREE (3) MOST RECENT YEARS SHALL BE MAINTAINED AT
THE LEASED PROPERTY OR LESSEE'S CORPORATE HEADQUARTERS.
THE PROVISIONS HEREOF
SHALL SURVIVE THE EXPIRATION OF THE TERM OR THE EARLIER TERMINATION OF THIS
LEASE.
4.3
ADDITIONAL CHARGES.
IN ADDITION TO THE BASE
RENT AND THE PERCENTAGE RENT, (A) LESSEE ALSO WILL PAY AND DISCHARGE