Common use of Actual Operating Expenses Clause in Contracts

Actual Operating Expenses. Within ninety (90) days after the close of each Operating Year (including the Base Year) during the Term, Landlord shall deliver to Tenant a written statement setting forth the 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 date of such statement or, at Landlord’s option, 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 Tenant with a written statement 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 Base Year Landlord determines that the amount paid by Tenant pursuant to this Section 4 for any Operating Year was less than the amount owed by Tenant for such Operating Year, Tenant shall pay to Landlord the amount of such shortfall within thirty (30) days after the date of Tenant’s receipt of such statement, and if, as a result of Landlord’s recalculation of the Actual Operating Expenses for the Base Year Landlord determines that amounts paid by Tenant pursuant to this Section 4 for any Operating Year exceeded the amount owed by Tenant for such Operating Year, 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. 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 written results of Tenant’s Audit which states that Actual Operating Expenses are 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 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 event the Discrepancy is greater than five percent (5%) 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 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 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 event the Discrepancy is greater than five percent (5%).

Actual Operating Expenses. Within ninety (90) days after the close of each Operating Year (including except the Base Year) during the Term, Landlord shall deliver to Tenant a written statement (the “Statement”) setting forth the Actual Operating Expenses during the preceding Operating Year and the amount by which the Actual Operating Expenses exceed the Base Amount 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 such statementthe Statement. If such statement 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 date of such statement or, at Landlord’s option, 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 Tenant with a written statement 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 Base Year Landlord determines that the amount paid by Tenant pursuant to this Section 4 for any Operating Year was less than the amount owed by Tenant for such Operating Year, Tenant shall pay to Landlord the amount of such shortfall within thirty (30) days after the date of Tenant’s receipt of such statement, and if, as a result of Landlord’s recalculation of the Actual Operating Expenses for the Base Year Landlord determines that amounts paid by Tenant pursuant to this Section 4 for any Operating Year exceeded the amount owed by Tenant for such Operating Year, then the amount of such overpayment shall be paid by Landlord to Tenant within thirty (30) days following the date of such statement Statement or, at Landlord’s option, credited by Landlord to the payment of rent next due. Prior to the date that is one sixty (160) year days after Tenant’s receipt of Landlord’s statement of Actual Operating Expenses for any Operating Yearthe Statement, Landlord shall provide Tenant with reasonable access, upon reasonable prior notice amid 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 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 officer of Tenant or certified, certified public accountant who is paid by the hour and 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 TenantLandlord, (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 ninety (6090) days after Landlord gives Tenant access to its books and recordsday period. If, within such sixty ninety (6090) day period, Tenant delivers to Landlord the written results of Tenant’s Audit 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 the amount of any overpayment made by Tenant to Landlord pursuant to this Section 4(b(1) and for Tenant’s reasonable out-of-pocket costs and expenses incurred in performing the Tenant’s Audit in (not to exceed an amount equal to $3,000.00) and (2) the event the Discrepancy is greater than five percent (5%) 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 year in question which shall be binding on both Landlord and Tenant, and if such accountant determines that there the Discrepancy is a Discrepancygreater than five percent (5%), Landlord, promptly after its receipt of such final determination, shall 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 (not to exceed an amount equal to $3,000.00) and the event the Discrepancy is greater than five percent (5%amount of any overpayment made by Tenant to Landlord pursuant to this Section 4(b).

Actual Operating Expenses. Within ninety (90) days after the close end of each Operating Year (including the Base Lease Year) during the Term, Landlord shall deliver submit a statement to Tenant a written statement setting forth showing the Actual actual Operating Expenses for such Lease Year and Tenant's Proportionate Share of the amount by which such Operating Expenses exceed Operating Expenses during the preceding Operating Year and Base Year. If for any Lease Year, Tenant's estimated monthly payments exceed Tenant's Proportionate Share of the amount by which the Actual actual Operating Expenses 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 Expenses. If for any Lease Year Tenant's estimated monthly payments are less than Tenant's Proportionate Share of the amount by which the actual Operating Expenses for such Lease Year 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)Year, then Tenant shall pay the total amount of such excess deficiency to Landlord as additional rent within thirty (30) days after receipt by Tenant of such statementthe statement from Landlord. If Tenant fails to pay 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 deficiency 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. Additionally, promptly following the reassessment from receipt 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 Tenant with a written statement reflecting the adjusted Actual Operating Expenses for the Base Year. If, as a result of from Landlord’s recalculation of the Actual Operating Expenses for the Base Year Landlord determines that the amount paid by Tenant pursuant to this Section 4 for any Operating Year was less than the amount owed by Tenant for such Operating Year, Tenant shall pay to Landlord the amount a late charge of such shortfall within thirty (30) days after the date of Tenant’s receipt of such statement, and if, as a result of Landlord’s recalculation of the Actual Operating Expenses for the Base Year Landlord determines that amounts paid by Tenant pursuant to this Section 4 for any Operating Year exceeded the amount owed by Tenant for such Operating Year, 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. 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 written results of Tenant’s Audit which states that Actual Operating Expenses are 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 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 event the Discrepancy is greater than five percent (5%) 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 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 amount of such deficiency and any such deficiency shall bear interest, at the Interest Rate, from the thirty-first (31st) day to the date of payment thereof by Tenant. Landlord's and Tenant's obligations with respect to any overpayment made by Tenant to Landlord pursuant to or underpayment of Operating Expenses shall survive the expiration or termination of this Section 4(bLease for a period of one (1) and for Tenant’s reasonable out-of-pocket costs and expenses incurred in performing the Tenant’s Audit in the event the Discrepancy is greater than five percent (5%)year.

Actual Operating Expenses. Within ninety one hundred twenty (90120) days after the close of each Operating Year (including the Base Year) during the Term, Landlord shall deliver to Tenant a reasonably detailed written statement setting forth the Actual Operating Expenses during the preceding Operating Year and the amount by which the Year. Any such written statement shall describe in reasonable detail any gross up of Actual Operating Expenses exceed Expenses. For each Operating Year following the Base Amount . If Year, if such expenses for any such Operating Year exceed the Estimated Operating Expenses paid by Tenant to Landlord pursuant to Section 4(a5(a), Tenant shall pay Tenant’s Proportionate Share of 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 such expenses to be less than the amount paid by Tenant to Landlord pursuant to Section 4(a5(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 duedue (which amount, if credited, shall be communicated to Tenant in writing). AdditionallyLandlord’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, promptly following however, that Landlord’s failure to give such notice or statement within one hundred eighty (180) days after the reassessment close of the value of the Project by any such governmental authority subsequent Operating Year shall be deemed to the leasing and occupancy of a substantial portion of the Project, Landlord shall provide Tenant with a written statement reflecting the adjusted Actual Operating Expenses for the Base Year. If, as a result be an unconditional waiver of Landlord’s recalculation of right to collect the Actual Operating Expenses adjustment provided for the Base Year Landlord determines that the amount paid by Tenant pursuant to in this Section 4 for any Operating Year was less than the amount owed by Tenant 5(b) for such Operating Year, Tenant shall pay to Landlord the amount of such shortfall within thirty (30) days after the date of Tenant’s receipt of such statement, and if, as a result of Landlord’s recalculation of the Actual Operating Expenses for the Base Year Landlord determines that amounts paid by Tenant pursuant to this Section 4 for any Operating Year exceeded the amount owed by Tenant for such Operating Year, 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. 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 except with respect to the Actual items of Operating Expenses or Property Taxes the exact and final amount 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 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 made when the exact and expense unless otherwise provided herein and (vi) Tenant’s Audit shall final amount of such items can be completed within such sixty (60) days after Landlord gives Tenant access to its books and recordsascertained. If, within such sixty (60) day period, Tenant delivers to Landlord the written results of Tenant’s Audit which states that Actual Operating Expenses are less than Landlord’s The 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 the amount of any overpayment and Estimated Operating Expenses shall be 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 event the Discrepancy is greater than five percent (5%) 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 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 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 event the Discrepancy is greater than five percent (5%).

Actual Operating Expenses. Within ninety (90) days after the close By May 1 of each Operating Year (including the Base Year) year during the TermTerm or the year following the termination of this Lease, Landlord or as soon as possible thereafter, Lessor shall deliver to Tenant provide Lessee a written statement setting forth showing: (i) the Actual Operating Expenses during for the preceding 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 the amount (iii); and (v) a statement prepared by which the Lessor comparing Forecast Additional Rental with actual Additional Rental based on such Actual Operating Expenses exceed (collectively the Base Amount “Operating Cost Report”). If such expenses In the event that Forecast Additional Rental exceeds Additional Rental for any Operating Year exceed the Estimated Operating Expenses paid by Tenant to Landlord pursuant to Section 4(a)said calendar year, Tenant Lessor shall pay Lessee (in the form of a credit against such rentals next due if during the Term) an amount of equal to such excess to Landlord as additional rent excess. In the event that the Additional Rental exceeds Forecast Additional Rental for said calendar year, Lessee shall pay Lessor, within thirty (30) days after 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 Tenant 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 statementreport 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 such statement shows such expenses to 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 less than the made between parties, and any amount paid by Tenant to Landlord pursuant to Section 4(a), then the amount of such overpayment owed shall be paid by Landlord to Tenant within thirty (30) days following the date owing party promptly. Lessee shall pay the cost of such statement or, at Landlord’s option, credited by Landlord to audit. If the payment of rent next due. Additionally, promptly following audit reveals an error in 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 Tenant with a written statement reflecting the adjusted Actual Total Operating Expenses for the Base Year. If, as a result of Landlord’s recalculation of the Actual Operating Expenses for the Base Year Landlord determines that the amount paid by Tenant pursuant to this Section 4 for any Operating Year was less than the amount owed by Tenant for such Operating Year, Tenant shall pay to Landlord the amount of such shortfall within thirty (30) days after the date of Tenant’s receipt of such statement, and if, as a result of Landlord’s recalculation of the Actual Operating Expenses for the Base Year Landlord determines that amounts paid by Tenant pursuant to this Section 4 for any Operating Year exceeded the amount owed by Tenant for such Operating Year, 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. 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 5.0% 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 written results of Tenant’s Audit which states that Actual Operating Expenses are 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 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 event the Discrepancy is greater than five percent (5%) or (B) notify Tenant in writing that Landlord disagrees with the result of Tenant’s Auditmore, in which event case the Landlord and Tenant shall submit their respective calculations Lessor will reimburse Lessee for the cost of the Actual Operating Expenses audit up to a neutral certified public accountant appointed with the consent maximum of both Landlord $1,000. Lessor 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 year in question which shall be binding on both Landlord and Tenant, and if such accountant determines Xxxxxx hereby agree that there is a Discrepancy, Landlord, promptly after its receipt of such final determination, shall 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 shall survive the Tenant’s Audit in the event the Discrepancy is greater than five percent (5%)termination hereof.

Actual Operating Expenses. Within ninety (90) days after the close of each Operating Year (including the Base Year) during the Term, Landlord shall deliver to Tenant a written statement setting forth the Actual Operating Expenses during the preceding Operating Year and the amount by which the such Actual Operating Expenses exceed the Base Amount (the“Operating Expense Increase”). If such expenses Tenant’s Proportionate Share of the Operating Expense Increase for any Operating Year exceed 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 such expenses 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 date of such statement or, at Landlord’s option, 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 Tenant with a written statement 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 Base Year Landlord determines that the amount paid by Tenant pursuant to this Section 4 for any Operating Year was less than the amount owed by Tenant for such Operating Year, Tenant shall pay to Landlord the amount of such shortfall within thirty (30) days after the date of Tenant’s receipt of such statement, and if, as a result of Landlord’s recalculation of the Actual Operating Expenses for the Base Year Landlord determines that amounts paid by Tenant pursuant to this Section 4 for any Operating Year exceeded the amount owed by Tenant for such Operating Year, 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. Prior to the date that is one (1) year 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 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 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 written results of Tenant’s Audit which states that Actual Operating Expenses are 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 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 event the Discrepancy is greater than five percent (5%) 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 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 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 event the Discrepancy is greater than five percent (5%).,