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NEGOTIATING KEY LEASE PROVISIONS A Landlord's Point of View - page 30 / 60





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including vending machines for the sale of food, beverages, water or other customary market merchandise;

  • (vi)

    Deposits made by customers upon returnable containers:

  • (vii)

    Sale of banana boxes, merchandise crates and containers, and waste suet, bones, fat, meat

scraps and meat and produce offal and other similar refuse, where such sales are made to commercial users, as distinguished from retail customers;


Delivery charges, charges for gift wrapping or boxing of merchandise purchases, and

incidental items or services which are not sold for a profit;


Sale of inventory sold in connection with the sale of the business conducted in the



Sale of trade fixtures or equipment located in the Market sold out of the ordinary course

of business; and


Direct receipts from the sale of lottery tickets shall be excluded from Gross Sales but all

commissions paid to or retained by Tenant on the sale of lottery tickets shall be included in Gross Sales for the purpose of calculating percentage rent payable by Tenant to Landlord pursuant to this Lease.

Books and Records: Inspection and Audit. Tenant shall keep accurate books and records showing a all its Gross Sales and require its subtenants, licensees and concessionaires to keep like books and records. The books and records shall, at reasonable times on ten (10) days' prior written notice, be open to inspection or audit by Landlord or its duly authorized representatives during regular business hours of Tenant, either, at Tenant's option, in the Market or Tenants principal office or such other place as Tenant regularly keeps such books and records so long as such place is not outside of Washington; provided, however, that Landlord shall have the right to conduct only one inspection or audit, which shall be conducted as expeditiously as reasonably possible, in any twelve (12) month period. If an audit by an independent Certified Public Accountant discloses that Tenant has paid an incorrect amount of percentage rent for the period covered by such inspection, the difference between the correct amount and the actual amount of percentage rent theretofore paid by Tenant shall be paid immediately by Tenant to Landlord or by Landlord to Tenant, as the case may be, provided, however, that each party shall have the right to challenge the results of such audit in an appropriate judicial proceeding. If an audit by an independent Certified Public Accountant discloses that Tenant had understated its Gross Sales by an amount in excess of three (3) percent of Gross Sales, and if a correct statement of Tenant's Gross Sales would have required the payment of percentage rent, Tenant shall promptly pay (subject to the aforesaid judicial challenge) Landlord's reasonable expenses actually incurred by the Certified Public Accountant's audit. Landlord must object in writing to Tenant's Gross Sales statement for any Lease Year within two (2) years from the date such statement is actually

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