Common use of Tenant’s Monthly Statements Clause in Contracts

Tenant’s Monthly Statements. Landlord and/or such independent certified public accountant as Landlord may designate shall have reasonable access, including online read only access, to inspect and examine the books and records of Tenant that relate to or have any bearing upon the Percentage Rent for the purpose of verifying the information in each Monthly Statement. The payment of any monthly Rent under this Article without such examination and inspection shall not be deemed a waiver of any error revealed by such examination and inspection for the preceding month for which payment shall have been made; provided, however, each Monthly Statement given by Tenant to Landlord pursuant to this Article shall be conclusive and binding upon Landlord unless within one hundred eighty (180) days after receipt of the Monthly Statement Landlord shall notify Tenant that it disputes the correctness of the statement, specifying the particular respects in which it is claimed to be incorrect. Pending resolution of the dispute, Tenant shall pay the Percentage Rent in accordance with the statement but such payment shall be without prejudice to Landlord’s position. Any such dispute investigations shall be conducted (i) at Landlord’s sole cost and expense, (ii) at the place Tenant normally maintains such records, (ii) during Tenant’s normal business hours, and (iii) only after Landlord has given Tenant at least seven (7) days advance written notice. Landlord shall deliver to Tenant a copy of the results of such dispute within fifteen (15) days after its receipt by Landlord. No dispute investigation shall be conducted at any time that Landlord is in default, beyond any applicable cure period, of any of the provisions of this Lease. (a) If the dispute investigation is determined in Landlord’s favor, Tenant shall pay to Landlord any under payment of Percentage Rent; provided, however, if such underpayment is less than the amount actually due by more than five percent (5%), Tenant shall (i) pay all of Landlord’s reasonable and necessary third party costs and expenses associated with any audit and the dispute, and (ii) also pay interest to Landlord on the amount by which such underpayment is less than the actual amount due at the prime rate as published by the Wall Street Journal for commercial loans (or a successor publication selected by Tenant if such is no longer published). If resolution of the dispute indicates that Tenant overpaid, Landlord shall pay Tenant the amount of such overpayment within thirty (30) days of the date on which the dispute is resolved. (b) Landlord acknowledges and agrees that any records reviewed as provided above constitute confidential information of Tenant, which shall not be disclosed to anyone other than the persons performing the investigation, those with a reasonable need for such information to complete the investigation, and the principals of Landlord who receive the results of the investigation. Landlord further acknowledges and agrees that the disclosure of information to any other person, other than Landlord’s attorneys, accountants and auditors, and except as required to be disclosed by court order or by law, whether by Landlord or anyone acting on behalf of Landlord, shall constitute a breach of this Lease. (c) Tenant may not amend any Monthly Statement previously furnished to Landlord for any item of Percentage Rent from those shown in such Monthly Statement unless such amendment is made within one (1) year after Landlord’s receipt of the Monthly Statement.