Health Net 2009 Annual Report Download - page 377

6. TENANT’S RIGHT TO INSPECT RECORDS. If Tenant objects in writing to an annual written statement from Landlord
given pursuant to Section 5(b) within one hundred eighty (180) days of the receipt of such statement by Tenant, Landlord shall permit
Tenant to examine, at the sole expense of Tenant for a period of one hundred eighty (180) days following the date of such written
objection notice, at the offices of Landlord and during regular business hours, such of Landlord’s books and records pertaining
directly to the determination of Actual Operating Expenses as are relevant to the Landlord’s statement in question. In making such
examination, Tenant agrees, and shall cause its agents and employees conducting the examination to agree in writing, to keep
confidential any and all information contained in such books and records, save and except that Tenant may disclose such information
to its attorneys and accountants and to a trier of fact in the event of any dispute between Tenant and Landlord with regard to Actual
Operating Expenses or as otherwise required by law; provided, however, that Tenant shall stipulate to such protective or other orders
in any proceeding as may be reasonably required to preserve the confidentiality of such information. Such inspection may be made
either by employees of Tenant or by a nationally recognized certified public accounting firm that is not compensated on a contingent
fee basis; provided, however, that Tenant may utilize BDO Seidman, LLP or any similar national company, taking into consideration,
without limitation, reputation and market size (“Lease Auditor”) for such inspection notwithstanding any contingent fee arrangement
between Tenant and such Lease Auditor. Tenant shall have the right to copy and duplicate such information as Tenant may require;
provided, however, that Tenant agrees, and shall cause its agents and employees conducting the examination to agree in writing, to
keep confidential any and all information contained in such copies or duplicates, save and except that Tenant may disclose such
information to its attorneys and accountants and to a trier of fact in the event of any dispute between Tenant and Landlord with regard
to Actual Operating Expenses or as otherwise required by law. If Tenant fails to give such objection notice within the one hundred
eighty (180) day period provided herein or fails to complete such examination within the one hundred eighty (180) day period
following the date of such objection notice, then the Landlord’s statement, as furnished by Landlord, shall be conclusive and binding
upon Tenant for all purposes as to the Actual Operating Expenses shown thereon. All costs and expenses of any such examination or
audit shall be paid by Tenant, except if it is finally established that the amounts billed to Tenant by Landlord exceeded the amounts to
which Landlord was entitled by more than five percent (5%), Landlord shall promptly reimburse Tenant for the reasonable costs and
expenses incurred by Tenant for such examination or audit. If it is finally determined that the amount of Actual Operating Expenses,
as shown on Landlord’s statement for the year as to which the inspection is undertaken, was overstated, and, as a result thereof,
Tenant overpaid Tenant’s Proportionate Share of Actual Operating Expenses in respect of such year, then Landlord shall refund to
Tenant the amount of such overpayment within thirty (30) days of such final determination. If it is finally determined (within all
applicable time periods) that the amount of Actual Operating Expenses, as shown on Landlord’s statement for the year as to which the
inspection is undertaken, was understated, and, as a result thereof, Tenant underpaid Tenant’s Proportionate Share of Actual
Operating Expenses in respect of such year, then Tenant shall pay to Landlord the amount of such underpayment within thirty
(30) days of such final determination. The foregoing notwithstanding, Tenant shall not have the right to inspect such books and
records during any period when there exists an Event of Default under this Lease.
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