Common use of Actual Operating Expenses Clause in Contracts

Actual Operating Expenses. By May 1 of each year during the Term or the year following the termination of this Lease, or as soon as possible thereafter, Lessor shall provide Lessee a statement showing: (i) the Actual Operating Expenses for the prior calendar year then ended (ii) the Operating Expense Amount for the prior calendar year then ended; (iii) the Base Year Operating Expense Amount; (iv) the difference between subparts (ii) and (iii); and (v) a statement prepared by Lessor comparing Forecast Additional Rental with actual Additional Rental based on such Actual Operating Expenses (collectively the “Operating Cost Report”). In the event that Forecast Additional Rental exceeds Additional Rental for said calendar year, Lessor shall pay Lessee (in the form of a credit against such rentals next due if during the Term) an amount equal to such excess. In the event that the Additional Rental exceeds Forecast Additional Rental for said calendar year, Lessee shall pay Lessor, within thirty (30) days of receipt of the statement, an amount equal to such difference. Lessor shall maintain books and records reflecting the Actual Operating Expenses and Lessee shall have the right to inspect and audit Lessor’s records at Lessor’s office upon at least five (5) business days’ prior written notice during normal business hours during the 365 days following the delivery of an Operating Cost Report. The results of any such inspection shall be kept strictly confidential by Xxxxxx and its agents, and Lessee and its agents must agree, in their contract for such services, to such confidentiality restrictions and shall specifically agree that the results shall not be made available to any other lessee of the Building. Unless Lessee sends to Lessor any written exception to Operating Cost Report within said 365-day period, such report shall be deemed final and accepted by Xxxxxx. Lessee or Lessor (as the case may be depending on the difference between Forecast Additional Rental and Additional Rental) shall pay the amount shown on the Operating Cost Report for such calendar year in the manner prescribed in this Lease, whether or not Lessee takes any such written exception, without any prejudice to such exception. If Xxxxxx makes a timely exception, Lessee or their qualified professional can audit the books and records reflecting actual operating expenses. Lessee cannot use contingent fee auditors. Lessee’s exception and reconciliation, if necessary, shall be made between parties, and any amount owed shall be paid by the owing party promptly. Lessee shall pay the cost of such audit. If the audit reveals an error in the Total Operating Expenses of 5.0% or more, in which case the Lessor will reimburse Lessee for the cost of the audit up to a maximum of $1,000. Lessor and Xxxxxx hereby agree that this Section shall survive the termination hereof.

Actual Operating Expenses. By May 1 Within one hundred twenty (120) days after the close of each year Operating Year (including the Base Year) during the Term or the year following the termination of this LeaseTerm, or as soon as possible thereafter, Lessor Landlord shall provide Lessee deliver to Tenant a reasonably detailed written statement showing: (i) setting forth the Actual Operating Expenses for during the prior calendar year then ended (ii) the preceding Operating Expense Amount for the prior calendar year then ended; (iii) Year. Any such written statement shall describe in reasonable detail any gross up of Actual Operating Expenses. For each Operating Year following the Base Year, if such expenses for such Operating Year Operating Expense Amount; (iv) exceed the difference between subparts (ii) and (iii); and (v) a statement prepared by Lessor comparing Forecast Additional Rental with actual Additional Rental based on such Actual Estimated Operating Expenses (collectively the “Operating Cost Report”paid by Tenant to Landlord pursuant to Section 5(a). In the event that Forecast Additional Rental exceeds Additional Rental for said calendar year, Lessor Tenant shall pay Lessee (in Tenant’s Proportionate Share of the form amount of a credit against such rentals next due if during the Term) an amount equal excess to such excess. In the event that the Additional Rental exceeds Forecast Additional Rental for said calendar year, Lessee shall pay Lessor, Landlord as additional rent within thirty (30) days after receipt by Tenant of receipt such statement. If such statement shows Tenant’s Proportionate Share of such expenses to be less than the statementamount paid by Tenant to Landlord pursuant to Section 5(a), then the amount of such overpayment shall be paid by Landlord to Tenant within thirty (30) days following the date of such statement or, at Landlord’s option, credited by Landlord to the payment of rent next due (which amount, if credited, shall be communicated to Tenant in writing). Landlord’s failure to give such notice and statement within one hundred twenty (120) days after the close of any Operating Year shall not release either party from the obligation to make the adjustment provided for in this Section 5(b); provided, however, that Landlord’s failure to give such notice or statement within one hundred eighty (180) days after the close of any Operating Year shall be deemed to be an unconditional waiver of Landlord’s right to collect the adjustment provided for in this Section 5(b) for such Operating Year, except with respect to items of Operating Expenses or Property Taxes the exact and final amount equal of which could not be ascertained through the exercise of reasonable diligence within such one hundred eighty (180) day period, as to which items the adjustment provided for in this Section 5(b) for such differenceOperating Year shall be made when the exact and final amount of such items can be ascertained. Lessor shall maintain books and records reflecting the The determination of Actual Operating Expenses and Lessee shall have the right to inspect and audit Lessor’s records at Lessor’s office upon at least five (5) business days’ prior written notice during normal business hours during the 365 days following the delivery of an Estimated Operating Cost Report. The results of any such inspection shall be kept strictly confidential by Xxxxxx and its agents, and Lessee and its agents must agree, in their contract for such services, to such confidentiality restrictions and shall specifically agree that the results shall not be made available to any other lessee of the Building. Unless Lessee sends to Lessor any written exception to Operating Cost Report within said 365-day period, such report shall be deemed final and accepted by Xxxxxx. Lessee or Lessor (as the case may be depending on the difference between Forecast Additional Rental and Additional Rental) shall pay the amount shown on the Operating Cost Report for such calendar year in the manner prescribed in this Lease, whether or not Lessee takes any such written exception, without any prejudice to such exception. If Xxxxxx makes a timely exception, Lessee or their qualified professional can audit the books and records reflecting actual operating expenses. Lessee cannot use contingent fee auditors. Lessee’s exception and reconciliation, if necessary, Expenses shall be made between parties, and any amount owed shall be paid by the owing party promptly. Lessee shall pay the cost of such audit. If the audit reveals an error in the Total Operating Expenses of 5.0% or more, in which case the Lessor will reimburse Lessee for the cost of the audit up to a maximum of $1,000. Lessor and Xxxxxx hereby agree that this Section shall survive the termination hereofLandlord.

Actual Operating Expenses. By May 1 Within ninety (90) days after the end of each year during the Term or the year following the termination of this LeaseLease Year, or as soon as possible thereafter, Lessor Landlord shall provide Lessee submit a statement showing: (i) to Tenant showing the Actual actual Operating Expenses for such Lease Year and Tenant's Proportionate Share of the prior calendar year then ended (ii) the amount by which such Operating Expense Amount for the prior calendar year then ended; (iii) Expenses exceed Operating Expenses during the Base Year Operating Expense Amount; (iv) Year. If for any Lease Year, Tenant's estimated monthly payments exceed Tenant's Proportionate Share of the difference between subparts (ii) and (iii); and (v) a statement prepared amount by Lessor comparing Forecast Additional Rental with which the actual Additional Rental based on such Actual Operating Expenses (collectively for such Lease Year exceed Operating Expenses during the “Base Year, then Landlord shall give Tenant a credit in the amount of the overpayment toward Tenant's next monthly payments of estimated Operating Cost Report”)Expenses. In If for any Lease Year Tenant's estimated monthly payments are less than Tenant's Proportionate Share of the event that Forecast Additional Rental exceeds Additional Rental amount by which the actual Operating Expenses for said calendar yearsuch Lease Year exceed the Base Year, Lessor then Tenant shall pay Lessee (in the form total amount of a credit against such rentals next due if during the Term) an amount equal deficiency to such excess. In the event that the Additional Rental exceeds Forecast Additional Rental for said calendar year, Lessee shall pay Lessor, Landlord within thirty (30) days of after receipt of the statementstatement from Landlord. If Tenant fails to pay such deficiency within thirty (30) days from receipt of the statement from Landlord, an Tenant shall pay Landlord a late charge of five percent (5%) of the amount equal of such deficiency and any such deficiency shall bear interest, at the Interest Rate, from the thirty-first (31st) day to such differencethe date of payment thereof by Tenant. Lessor shall maintain books Landlord's and records reflecting the Actual Tenant's obligations with respect to any overpayment or underpayment of Operating Expenses and Lessee shall have the right to inspect and audit Lessor’s records at Lessor’s office upon at least five (5) business days’ prior written notice during normal business hours during the 365 days following the delivery of an Operating Cost Report. The results of any such inspection shall be kept strictly confidential by Xxxxxx and its agents, and Lessee and its agents must agree, in their contract for such services, to such confidentiality restrictions and shall specifically agree that the results shall not be made available to any other lessee of the Building. Unless Lessee sends to Lessor any written exception to Operating Cost Report within said 365-day period, such report shall be deemed final and accepted by Xxxxxx. Lessee or Lessor (as the case may be depending on the difference between Forecast Additional Rental and Additional Rental) shall pay the amount shown on the Operating Cost Report for such calendar year in the manner prescribed in this Lease, whether or not Lessee takes any such written exception, without any prejudice to such exception. If Xxxxxx makes a timely exception, Lessee or their qualified professional can audit the books and records reflecting actual operating expenses. Lessee cannot use contingent fee auditors. Lessee’s exception and reconciliation, if necessary, shall be made between parties, and any amount owed shall be paid by the owing party promptly. Lessee shall pay the cost of such audit. If the audit reveals an error in the Total Operating Expenses of 5.0% or more, in which case the Lessor will reimburse Lessee for the cost of the audit up to a maximum of $1,000. Lessor and Xxxxxx hereby agree that this Section shall survive the expiration or termination hereofof this Lease for a period of one (1) year.

Actual Operating Expenses. By May 1 Within ninety (90) days after the close of each year Operating Year (except the Base Year) during the Term or Term, Landlord shall deliver to Tenant a written statement (the year “Statement”) setting forth the Actual Operating Expenses during the preceding Operating Year. If such expenses for any Operating Year exceed the Estimated Operating Expenses paid by Tenant to Landlord pursuant to Section 4(a), Tenant shall pay the amount of such excess to Landlord as additional rent within thirty (30) days after receipt by Tenant of the Statement. If the Statement shows such expenses to be less than the amount paid by Tenant to Landlord pursuant to Section 4(a), then the amount of such overpayment shall be paid by Landlord to Tenant within thirty (30) days following the termination date of this Leasethe Statement or, or as soon as possible thereafterat Landlord’s option, Lessor credited by Landlord to the payment of rent next due. Prior to the date that is sixty (60) days after Tenant’s receipt of the Statement, Landlord shall provide Lessee a statement showingTenant with reasonable access, upon reasonable prior notice and during normal business hours, to inspect Landlord’s books and records with respect to the Actual Operating Expenses (“Tenant’s Audit”), provided: (i) Tenant is not in default under any of the material provisions of the Lease, (ii) Tenant shall pay any amounts owing hereunder when due, (iii) Tenant’s Audit is performed by an officer of Tenant or certified public accountant who is paid by the hour and not on a contingency fee basis, (iv) Tenant and any Tenant Party (as defined in Section 6(c) hereof) performing Tenant’s Audit execute a confidentiality agreement in a form reasonably acceptable to Landlord, (v) Tenant’s Audit shall be performed at Tenant’s sole cost and expense unless otherwise provided herein and (vi) Tenant’s Audit shall be completed within such ninety (90) day period. If, within such ninety (90) day period, Tenant delivers to Landlord the written results of Tenant’s Audit, certified by an officer of Tenant as being true and correct, which states that Actual Operating Expenses are more than five percent (5%) less than Landlord’s determination of Actual Operating Expenses (the “Discrepancy”), Landlord shall, promptly after its receipt of the written results of Tenant’s Audit either (A) reimburse Tenant for (1) Tenant’s reasonable out-of-pocket costs and expenses incurred in performing the Tenant’s Audit (not to exceed an amount equal to $3,000.00) and (2) the amount of any overpayment made by Tenant to Landlord pursuant to this Section 4(b), or (B) notify Tenant in writing that Landlord disagrees with the result of Tenant’s Audit, in which event the Landlord and Tenant shall submit their respective calculations of the Actual Operating Expenses to a neutral certified public accountant appointed with the consent of both Landlord and Tenant, who shall review the respective determinations of Actual Operating Expenses, and shall make a final determination of the Actual Operating Expenses for the prior calendar year then ended in question which shall be binding on both Landlord and Tenant, and if such accountant determines that the Discrepancy is greater than five percent (ii) 5%), Landlord, promptly after its receipt of such final determination, shall reimburse Tenant for Tenant’s reasonable out-of-pocket costs and expenses incurred in performing the Operating Expense Amount for the prior calendar year then ended; Tenant’s Audit (iii) the Base Year Operating Expense Amount; (iv) the difference between subparts (ii) and (iii); and (v) a statement prepared by Lessor comparing Forecast Additional Rental with actual Additional Rental based on such Actual Operating Expenses (collectively the “Operating Cost Report”). In the event that Forecast Additional Rental exceeds Additional Rental for said calendar year, Lessor shall pay Lessee (in the form of a credit against such rentals next due if during the Term) not to exceed an amount equal to such excess. In $3,000.00) and the event that the Additional Rental exceeds Forecast Additional Rental for said calendar year, Lessee shall pay Lessor, within thirty (30) days of receipt of the statement, an amount equal to such difference. Lessor shall maintain books and records reflecting the Actual Operating Expenses and Lessee shall have the right to inspect and audit Lessor’s records at Lessor’s office upon at least five (5) business days’ prior written notice during normal business hours during the 365 days following the delivery of an Operating Cost Report. The results of any such inspection shall be kept strictly confidential overpayment made by Xxxxxx and its agents, and Lessee and its agents must agree, in their contract for such services, Tenant to such confidentiality restrictions and shall specifically agree that the results shall not be made available Landlord pursuant to any other lessee of the Building. Unless Lessee sends to Lessor any written exception to Operating Cost Report within said 365-day period, such report shall be deemed final and accepted by Xxxxxx. Lessee or Lessor (as the case may be depending on the difference between Forecast Additional Rental and Additional Rental) shall pay the amount shown on the Operating Cost Report for such calendar year in the manner prescribed in this Lease, whether or not Lessee takes any such written exception, without any prejudice to such exception. If Xxxxxx makes a timely exception, Lessee or their qualified professional can audit the books and records reflecting actual operating expenses. Lessee cannot use contingent fee auditors. Lessee’s exception and reconciliation, if necessary, shall be made between parties, and any amount owed shall be paid by the owing party promptly. Lessee shall pay the cost of such audit. If the audit reveals an error in the Total Operating Expenses of 5.0% or more, in which case the Lessor will reimburse Lessee for the cost of the audit up to a maximum of $1,000. Lessor and Xxxxxx hereby agree that this Section shall survive the termination hereof4(b).

Actual Operating Expenses. By May 1 Within ninety (90) days after the close of each year Operating Year (including the Base Year) during the Term or Term, Landlord shall deliver to Tenant a written statement setting forth the year Actual Operating Expenses during the preceding Operating Year and the amount by which such Actual Operating Expenses exceed the Base Amount (the“Operating Expense Increase”). If Tenant’s Proportionate Share of the Operating Expense Increase for any Operating Year exceeds the Estimated Operating Expenses paid by Tenant to Landlord pursuant to Section 4(a) Tenant shall pay the amount of such excess to Landlord as additional rent within thirty (30) days after receipt by Tenant of such statement. If such statement shows Tenant’s Proportionate Share of the Operating Expense Increase to be less than the amount paid by Tenant to Landlord pursuant to Section 4(a), then the amount of such overpayment shall be paid by Landlord to Tenant within thirty (30) days following the termination date of this Leasesuch statement or, or as soon as possible thereafterat Landlord’s option, Lessor credited by Landlord to the payment of rent next due. Additionally, promptly following the reassessment of the value of the Project by any such governmental authority subsequent to the leasing and occupancy of a substantial portion of the Project, Landlord shall provide Lessee Tenant with a written statement showing: (i) reflecting the adjusted Actual Operating Expenses for the Base Year. If, as a result of Landlord’s recalculation of the Actual Operating Expenses for the prior calendar year then ended (ii) the Operating Expense Amount for the prior calendar year then ended; (iii) the Base Year Landlord determines that the amount paid by Tenant pursuant to this Section 4 for any Operating Expense Amount; (iv) Year was less than the difference between subparts (ii) and (iii); and (v) a statement prepared amount owed by Lessor comparing Forecast Additional Rental with actual Additional Rental based on Tenant for such Actual Operating Expenses (collectively the “Operating Cost Report”). In the event that Forecast Additional Rental exceeds Additional Rental for said calendar yearYear, Lessor Tenant shall pay Lessee (in to Landlord the form amount of a credit against such rentals next due if during the Term) an amount equal to such excess. In the event that the Additional Rental exceeds Forecast Additional Rental for said calendar year, Lessee shall pay Lessor, shortfall within thirty (30) days after the date of Tenant’s receipt of the such statement, an amount equal to such difference. Lessor shall maintain books and records reflecting if, as a result of Landlord’s recalculation of the Actual Operating Expenses and Lessee shall have for the right Base Year Landlord determines that amounts paid by Tenant pursuant to inspect and audit Lessor’s records at Lessor’s office upon at least five (5) business days’ prior written notice during normal business hours during this Section 4 for any Operating Year exceeded the 365 days following the delivery of an Operating Cost Report. The results of any such inspection shall be kept strictly confidential amount owed by Xxxxxx and its agents, and Lessee and its agents must agree, in their contract Tenant for such servicesOperating Year, to such confidentiality restrictions and shall specifically agree that the results shall not be made available to any other lessee of the Building. Unless Lessee sends to Lessor any written exception to Operating Cost Report within said 365-day period, such report shall be deemed final and accepted by Xxxxxx. Lessee or Lessor (as the case may be depending on the difference between Forecast Additional Rental and Additional Rental) shall pay then the amount shown on the Operating Cost Report for of such calendar year in the manner prescribed in this Lease, whether or not Lessee takes any such written exception, without any prejudice to such exception. If Xxxxxx makes a timely exception, Lessee or their qualified professional can audit the books and records reflecting actual operating expenses. Lessee cannot use contingent fee auditors. Lessee’s exception and reconciliation, if necessary, shall be made between parties, and any amount owed overpayment shall be paid by Landlord to Tenant within thirty (30) days following the owing party promptly. Lessee shall pay the cost date of such auditstatement or, at Landlord’s option, credited by Landlord to the payment of rent next due. If Prior to the audit reveals an error in the Total date that is one (1)year after Tenant’s receipt of Landlord’s statement of Actual Operating Expenses of 5.0% or morefor any Operating Year, Landlord shall provide Tenant with reasonable access, upon reasonable prior notice and during normal business hours, to inspect and photocopy Landlord’s books and records with respect to the Actual Operating Expenses for such Operating Year (“Tenant’s Audit”), provided: (i) Tenant is not in which case the Lessor will reimburse Lessee for the cost default under any of the audit up to a maximum material provisions of $1,000. Lessor and Xxxxxx hereby agree that the Lease (remaining uncured following the expiration of any applicable period for cure under this Section shall survive the termination hereof.Lease),

Actual Operating Expenses. By May 1 Within ninety (90) days after the close of each year Operating Year (including the Base Year) during the Term or Term, Landlord shall deliver to Tenant a written statement setting forth the year Actual Operating Expenses during the preceding Operating Year and the amount by which the Actual Operating Expenses exceed the Base Amount . If such expenses for any Operating Year exceed the Estimated Operating Expenses paid by Tenant to Landlord pursuant to Section 4(a), Tenant shall pay the amount of such excess to Landlord as additional rent within thirty (30) days after receipt by Tenant of such statement. If such statement shows such expenses to be less than the amount paid by Tenant to Landlord pursuant to Section 4(a), then the amount of such overpayment shall be paid by Landlord to Tenant within thirty (30) days following the termination date of this Leasesuch statement or, or as soon as possible thereafterat Landlord’s option, Lessor credited by Landlord to the payment of rent next due. Additionally, promptly following the reassessment of the value of the Project by any such governmental authority subsequent to the leasing and occupancy of a substantial portion of the Project, Landlord shall provide Lessee Tenant with a written statement showing: (i) reflecting the adjusted Actual Operating Expenses for the Base Year. If, as a result of Landlord’s recalculation of the Actual Operating Expenses for the prior calendar year then ended (ii) the Operating Expense Amount for the prior calendar year then ended; (iii) the Base Year Landlord determines that the amount paid by Tenant pursuant to this Section 4 for any Operating Expense Amount; (iv) Year was less than the difference between subparts (ii) and (iii); and (v) a statement prepared amount owed by Lessor comparing Forecast Additional Rental with actual Additional Rental based on Tenant for such Actual Operating Expenses (collectively the “Operating Cost Report”). In the event that Forecast Additional Rental exceeds Additional Rental for said calendar yearYear, Lessor Tenant shall pay Lessee (in to Landlord the form amount of a credit against such rentals next due if during the Term) an amount equal to such excess. In the event that the Additional Rental exceeds Forecast Additional Rental for said calendar year, Lessee shall pay Lessor, shortfall within thirty (30) days after the date of Tenant’s receipt of the such statement, an amount equal to such difference. Lessor shall maintain books and records reflecting if, as a result of Landlord’s recalculation of the Actual Operating Expenses and Lessee shall have for the right Base Year Landlord determines that amounts paid by Tenant pursuant to inspect and audit Lessor’s records at Lessor’s office upon at least five (5) business days’ prior written notice during normal business hours during this Section 4 for any Operating Year exceeded the 365 days following the delivery of an Operating Cost Report. The results of any such inspection shall be kept strictly confidential amount owed by Xxxxxx and its agents, and Lessee and its agents must agree, in their contract Tenant for such servicesOperating Year, to such confidentiality restrictions and shall specifically agree that the results shall not be made available to any other lessee of the Building. Unless Lessee sends to Lessor any written exception to Operating Cost Report within said 365-day period, such report shall be deemed final and accepted by Xxxxxx. Lessee or Lessor (as the case may be depending on the difference between Forecast Additional Rental and Additional Rental) shall pay then the amount shown on the Operating Cost Report for of such calendar year in the manner prescribed in this Lease, whether or not Lessee takes any such written exception, without any prejudice to such exception. If Xxxxxx makes a timely exception, Lessee or their qualified professional can audit the books and records reflecting actual operating expenses. Lessee cannot use contingent fee auditors. Lessee’s exception and reconciliation, if necessary, shall be made between parties, and any amount owed overpayment shall be paid by Landlord to Tenant within thirty (30) days following the owing party promptlydate of such statement or, at Landlord’s option, credited by Landlord to the payment of rent next due. Lessee Prior to the date that is one (1) year after Tenant’s receipt of Landlord’s statement of Actual Operating Expenses for any Operating Year, Landlord shall provide Tenant with reasonable access, upon reasonable prior notice amid during normal business hours, to inspect and photocopy Landlord’s books and records with respect to the Actual Operating Expenses for such Operating Year (“Tenant’s Audit”), provided: (i) Tenant is not in default under any of the material provisions of the Lease (remaining uncured following the expiration of any applicable period for cure under this Lease), (ii) Tenant shall pay any amounts owing hereunder when due, (iii) Tenant’s Audit is performed by an employee of Tenant or certified, public accountant who is not paid on a contingency fee basis, (iv) Tenant and any Tenant Party (as defined in Section 6(c) hereof) performing Tenant’s Audit execute a confidentiality agreement in a form reasonably acceptable to Landlord and Tenant, (v) Tenant’s Audit shall be performed at Tenant’s sole cost and expense unless otherwise provided herein and (vi) Tenant’s Audit shall be completed within such sixty (60) days after Landlord gives Tenant access to its books and records. If, within such sixty (60) day period, Tenant delivers to Landlord the cost written results of such audit. If Tenant’s Audit which states that Actual Operating Expenses are less than Landlord’s determination of Actual Operating Expenses (the audit reveals an error “Discrepancy”), Landlord shall, promptly after its receipt of the written results of Tenant’s Audit either (A) reimburse Tenant for the amount of any overpayment made by Tenant to Landlord pursuant to this Section 4(b) and for Tenant’s reasonable out-of-pocket costs and expenses incurred in performing the Tenant’s Audit in the Total Operating Expenses event the Discrepancy is greater than five percent (5%) or (B) notify Tenant in writing that Landlord disagrees with the result of 5.0% or moreTenant’s Audit, in which case event the Lessor will reimburse Lessee Landlord and Tenant shall submit their respective calculations of the Actual Operating Expenses to a neutral certified public accountant appointed with the consent of both Landlord and Tenant, who shall review the respective determinations of Actual Operating Expenses, and shall make a final determination of the Actual Operating Expenses for the cost year in question which shall be binding on both Landlord and Tenant, and if such accountant determines that there is a Discrepancy, Landlord, promptly after its receipt of such final determination, shall reimburse Tenant for the audit up amount of any overpayment made by Tenant to a maximum of $1,000. Lessor and Xxxxxx hereby agree that Landlord pursuant to this Section shall survive 4(b) and for Tenant’s reasonable out-of-pocket costs and expenses incurred in performing the termination hereofTenant’s Audit in the event the Discrepancy is greater than five percent (5%).