LANDLORD'S OFFICES.
TENANT SHALL BEAR ALL COSTS OF SUCH
AUDIT, INCLUDING LANDLORD'S ACTUAL COPYING COSTS AND PERSONNEL COSTS, IF ANY,
INCURRED IN CONNECTION WITH SUCH AUDIT, EXCEPT THAT, IF THE AUDIT (AS CONDUCTED
AND CERTIFIED BY THE AUDITOR) SHOWS AN AGGREGATE OVERSTATEMENT OF OPERATING
COSTS OF FIVE (5%) OR MORE, AND LANDLORD'S AUDITORS CONCUR IN SUCH FINDINGS (OR,
IN THE ABSENCE OF SUCH CONCURRENCE, SUCH OVERSTATEMENT IS CONFIRMED BY A COURT
OF COMPETENT JURISDICTION OR SUCH OTHER DISPUTE RESOLUTION MECHANISM AS TO WHICH
THE PARTIES MUTUALLY AGREE IN WRITING), THEN LANDLORD SHALL BEAR ALL COSTS OF
THE AUDIT (INCLUDING THE COST OF THE DISPUTE RESOLUTION MECHANISM).
IF THE
AGREED OR CONFIRMED AUDIT SHOWS AN UNDERPAYMENT OF OPERATING COSTS BY TENANT,
TENANT SHALL PAY TO LANDLORD, WITHIN TEN (10) BUSINESS DAYS AFTER THE AUDIT IS
AGREED TO OR CONFIRMED, THE AMOUNT OWED TO LANDLORD, AND, IF THE AGREED OR
CONFIRMED AUDIT SHOWS AN OVERPAYMENT OF OPERATING COSTS BY TENANT, LANDLORD
SHALL REIMBURSE TENANT FOR SUCH OVERPAYMENT WITHIN THIRTY (30) DAYS AFTER THE
AUDIT IS AGREED TO OR CONFIRMED.
NOTWITHSTANDING ANYTHING TO THE CONTRARY SET
FORTH ABOVE, TENANT'S AUDIT RIGHTS UNDER THIS SECTION 4.2. SHALL BE CONDITIONED
UPON (I) TENANT HAVING PAID THE TOTAL AMOUNTS BILLED BY LANDLORD UNDER THIS
SECTION 4.2 (INCLUDING, WITHOUT LIMITATION, THE CONTESTED AMOUNTS) AND
(II) TENANT AND TENANT'S AUDITOR EXECUTING, PRIOR TO THE COMMENCEMENT OF THE
AUDIT, A CONFIDENTIALITY AGREEMENT IN FORM AND SUBSTANCE REASONABLY SATISFACTORY
TO LANDLORD AND TENANT IN WHICH TENANT AND TENANT'S AUDITOR SHALL AGREE TO KEEP
CONFIDENTIAL, AND NOT DISCLOSE TO ANY OTHER PARTY (EXCEPT TO THE LIMITED EXTENT
EXPRESSLY PROVIDED IN THE CONFIDENTIALITY AGREEMENT), THE RESULTS OF ANY SUCH
AUDIT OR ANY ACTION TAKEN BY LANDLORD IN RESPONSE THERETO.
4.3
OPERATING COST.
(A)
OPERATING COST SHALL MEAN, WITHOUT DUPLICATION, ALL EXPENSES AND
COSTS (BUT NOT SPECIFIC COSTS WHICH ARE SEPARATELY BILLED TO AND PAID BY
PARTICULAR TENANTS OF THE PROJECT) OF EVERY KIND AND NATURE WHICH LANDLORD SHALL
PAY OR BECOME OBLIGATED TO PAY BECAUSE OF OR IN CONNECTION WITH THE MANAGEMENT,
OWNERSHIP, MAINTENANCE, REPAIR, PRESERVATION AND OPERATION OF THE PROJECT AND
ITS SUPPORTING FACILITIES DIRECTLY SERVICING THE PROJECT (INCLUDING PURSUANT TO
THE LOBBY EASEMENT) INCLUDING, BUT NOT LIMITED TO, THE FOLLOWING:
(1)
WAGES, SALARIES AND RELATED EXPENSES AND BENEFITS OF ALL ON-SITE
AND OFF-SITE EMPLOYEES AND PERSONNEL ENGAGED IN THE OPERATION, MAINTENANCE,
REPAIR AND SECURITY OF THE PROJECT, TO THE EXTENT SUCH CHARGES ARE DIRECTLY
ALLOCABLE TO SERVICES RENDERED BY THE EMPLOYEES AND PERSONNEL FOR THE BENEFIT OF
THE PROJECT (EXCLUDING SUCH SUMS, IF ANY, PAID TO PERSONNEL EMPLOYED BY
SUBSIDIARIES OR AFFILIATES OF LANDLORD TO THE EXTENT THAT THE WAGES, SALARIES OR
BENEFITS MATERIALLY EXCEED THE AMOUNTS NORMALLY PAYABLE FOR SIMILAR SERVICES
UNDER SIMILAR CIRCUMSTANCES (TAKING INTO ACCOUNT THE MARKET FACTORS IN EFFECT ON
THE DATE ANY RELEVANT CONTRACTS WERE NEGOTIATED) IN COMPARABLE BUILDINGS WITHIN
THE GEOGRAPHIC AREA IN WHICH THE PROJECT IS LOCATED, AND IN ALL EVENTS EXCLUDING
EXECUTIVES' SALARIES.
(2)
REASONABLE COSTS OF LANDLORD'S PROPERTY MANAGEMENT OFFICE IN