Audit Rights. (i) Provided that no Event of Default has occurred, Tenant shall have the right (“Audit Right”) to, one time per calendar year during the Lease Term, audit Landlord’s records and books used by Landlord in determining the amount of Direct Expenses Tenant is obligated to pay to Landlord for the sole purpose of verifying the accuracy of same (the “Audit”). Any Audit shall cover only one (1) calendar year during the Term of the Lease. Tenant shall provide Landlord at least thirty (30) days prior written notice requesting the Audit, provided, however, that Tenant’s right, if any, to exercise its Audit Right for any subject year shall expire sixty (60) days after the delivery to Tenant of the Direct Expense Statement for the calendar year, including the last year of the Lease Term, which Tenant desires to audit and, unless such right is exercised prior to such time, Tenant shall have waived its right to request such an Audit. Landlord shall make said books and records relevant to such Audit available to Tenant during Landlord’s customary business hours at the office of the property manager of the Project or at such other location designated by Landlord in writing. (ii) Tenant shall pay all reasonable and necessary third party out-of-pocket costs for the Audit, including, without limitation, all of Landlord’s costs and expenses, including reasonable attorney and accountant fees. (iii) The Audit shall only be conducted by a reputable accounting firm (“Accounting Firm”) approved in writing by Landlord. As a condition precedent to any such Audit, Tenant shall deliver to Landlord a copy of Tenant’s written agreement with such Accounting Firm, which agreement shall include provisions which state that: (A) Landlord is an intended third-party beneficiary of such agreement, (B) such Accounting Firm is not being engaged as a contingency or other incentive based auditor; (C) such Accounting Firm will not in any manner solicit or agree to represent any other tenant of the Project with respect to an audit or other review of Landlord’s accounting records at the Project, and (D) such Accounting Firm shall maintain in strict confidence any and all information obtained in connection with the Audit and shall not disclose such information to any person or entity other than to the management personnel of Tenant. The Accounting Firm, Landlord and Tenant shall enter into a confidentiality agreement in form and substance acceptable to Landlord whereby the Accounting Firm and Tenant shall covenant, among other things, that the Accounting Firm and the Tenant shall keep the books and records of Landlord in strict confidence. (iv) In the event that the amount of Direct Expenses paid by Tenant to Landlord exceed the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, and after such Audit is confirmed and accepted by Landlord, in Landlord’s reasonable discretion, such difference shall be applied to the next succeeding payment of Direct Expenses due by Tenant to Landlord. In the event that the amount of Direct Expenses paid by Tenant to Landlord is less than the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, Tenant shall pay such difference to Landlord within ten (10) days of such determination. (v) Nothing contained herein shall be construed as providing Tenant with any right or option to examine any other books and records of Landlord or any of Landlord’s affiliated entities. Notwithstanding anything to the contrary contained herein, the Audit Right granted herein is personal to the originally named Tenant, shall be exercisable only by such originally named Tenant and may not be assigned or exercised by any assignee, sublessee or transferee of Tenant’s interest in this Lease or any successor in interest to Tenant.
Appears in 1 contract
Samples: Lease Agreement (Macrovision Corp)
Audit Rights. Licensee shall keep detailed, accurate and complete books and records as they relate hereto for not less than four (i4) Provided that years from the termination or expiration of the Term. At least once during each calendar year, and no Event later than fifteen (15) days of Default has occurredreceipt of written notice, Tenant Licensor’s duly authorized representative shall have the right (“Audit Right”) to, one time per calendar year during the Lease Term, audit Landlord’s records and books used by Landlord in determining the amount of Direct Expenses Tenant is obligated to pay to Landlord for the sole purpose of verifying the accuracy of same (the “Audit”). Any Audit shall cover only one (1) calendar year during the Term of the Lease. Tenant shall provide Landlord at least thirty (30) days prior written notice requesting the Audit, provided, however, that Tenant’s right, if any, to exercise its Audit Right for any subject year shall expire sixty (60) days after the delivery to Tenant of the Direct Expense Statement for the calendar year, including the last year of the Lease Term, which Tenant desires to audit and, unless such right is exercised prior to such time, Tenant shall have waived its right to request such an Audit. Landlord shall make examine said books and records relevant during reasonable business hours, and to make copies and summaries of such books and records as they apply to the Licensed Articles and all transactions under this Agreement, and if any deficiency in Royalties paid to Licensor, or shortfall of expenditures applicable to the Minimum Advertising Guarantee, for any period under audit (“Audit Deficiency”) is discovered, Licensee shall promptly pay such Audit Deficiency and any interest thereon to Licensor. If Licensee fails to provide or make available all invoices billed to Tenant its customers, or if such invoices are incomplete, Licensee shall pay a Royalty on such sales equal to the highest price charged to any of Licensee’s retail customer for the Licensed Articles. If any Audit Deficiency exceeds five percent (5%) or more of Royalties paid during Landlord’s customary business hours at any accounting period plus any amounts not spent by Licensee to fulfill its Minimum Advertising Guaranteecommitment, Licensee shall pay the office audit costs. If such Audit Deficiency is more than fifteen percent (15%) in book inventory versus physical inventory, Licensee shall be required to pay Licensor a Royaltyon the missing Licensed Articles. If such Audit Deficiency is twenty percent (20%) or more of the property manager Royalties paid to Licensor for such audit period, then in addition to the above, Licensor may, at its sole option, immediately terminate the Agreement upon notice to Licensee, even if Licensee tenders the audit deficiency and associated costs and expenses to Licensor. Should Licensee fail to maintain auditable books and records, Licensee shall pay Licensor a penalty equal to the greater of: (i) twenty- five percent (25%) of the Project Guarantee; or at such other location designated by Landlord in writing.
(ii) Tenant shall pay twenty-five percent (25%) of all reasonable and necessary third party out-of-pocket costs for the Audit, including, without limitation, all of Landlord’s costs and expensesRoyalties paid (or owed) to Licensor, including reasonable attorney and accountant fees.
(iii) The Audit shall only be conducted by a reputable accounting firm (“Accounting Firm”) approved in writing by Landlordthe Advance from the commencement of the Term through the period subject to audit. As a condition precedent to any such Audit, Tenant shall deliver to Landlord a copy of Tenant’s written agreement with such Accounting Firm, which agreement shall include provisions which state that: (A) Landlord is an intended third-party beneficiary Payment of such agreementpenalty shall not waive, (B) such Accounting Firm is not being engaged as a contingency limit or other incentive based auditor; (C) such Accounting Firm will not in any manner solicit or agree to represent restrict any other tenant of the Project with respect rights or remedies that Licensor may have in law or equity. Licensor’s right to an audit or other review of LandlordLicensee’s accounting records at the Project, and (D) such Accounting Firm shall maintain in strict confidence any and all information obtained in connection with the Audit and shall not disclose such information to any person or entity other than to the management personnel of Tenant. The Accounting Firm, Landlord and Tenant shall enter into a confidentiality agreement in form and substance acceptable to Landlord whereby the Accounting Firm and Tenant shall covenant, among other things, that the Accounting Firm and the Tenant shall keep the books and records shall survive the expiration or earlier termination of Landlord in strict confidencethis Agreement.
(iv) In the event that the amount of Direct Expenses paid by Tenant to Landlord exceed the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, and after such Audit is confirmed and accepted by Landlord, in Landlord’s reasonable discretion, such difference shall be applied to the next succeeding payment of Direct Expenses due by Tenant to Landlord. In the event that the amount of Direct Expenses paid by Tenant to Landlord is less than the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, Tenant shall pay such difference to Landlord within ten (10) days of such determination.
(v) Nothing contained herein shall be construed as providing Tenant with any right or option to examine any other books and records of Landlord or any of Landlord’s affiliated entities. Notwithstanding anything to the contrary contained herein, the Audit Right granted herein is personal to the originally named Tenant, shall be exercisable only by such originally named Tenant and may not be assigned or exercised by any assignee, sublessee or transferee of Tenant’s interest in this Lease or any successor in interest to Tenant.
Appears in 1 contract
Samples: Merchandising License Agreement
Audit Rights. (i) Provided that no Event of Default has occurredAt any time during normal business hours and upon reasonable notice, Tenant ThermoLase, or an independent certified public accountant designated by ThermoLase, shall have the right (“Audit Right”) toright, one time per calendar year during at ThermoLase's expense, to audit and inspect the Lease TermFinancial Records at the Facilities, audit Landlord’s records and books used including those operated by Landlord in determining the amount of Direct Expenses Tenant is obligated to pay to Landlord a sublicensee, for the sole purpose of verifying the accuracy thereof and of same the payment of rent required to be made by Lessee under the terms of this Agreement. If, as a result of such audit or inspection, ThermoLase shall determine that the rent paid by Lessee to ThermoLase with respect to the period covered by such audit or inspection is less than the rent payable hereunder by Lessee to ThermoLase with respect to said period, ThermoLase shall promptly furnish to Lessee a copy of such audit or inspection report (the “Audit”). Any Audit shall cover only one (1"Deficiency Report") calendar year during setting forth the Term amount of the Leasedeficiency (the "Deficiency") and showing, in reasonable detail, the basis upon which the Deficiency was determined. Tenant If Lessee disagrees with the Deficiency Report, it shall provide Landlord at least have thirty (30) days prior written notice requesting within which to initiate arbitration pursuant to Section 13.6 below. If Lessee does not initiate arbitration, or the Auditarbitrators determine that the Deficiency is correct or that Lessee owes ThermoLase a different amount (the "Modified Deficiency"), then Lessee shall pay to ThermoLase, within thirty (30) days following receipt of the Deficiency Report, or the arbitrators' decision, as the case may be, a sum equal to the Deficiency, or the Modified Deficiency, together with a late fee thereon at the lesser of one and one-half percent (1-1/2%) per month or the maximum rate allowed by applicable law, calculated from the date when such amount was originally due through the date of payment. If the Deficiency or Modified Deficiency is an amount equal to or greater than five percent (5%) of the rent payable by Lessee to ThermoLase with respect to the period covered by such audit or inspection, Lessee shall promptly reimburse ThermoLase upon demand for the reasonable cost of such audit or inspection. ThermoLase shall exercise the same degree of care to safeguard the confidentiality of the Financial Records as ThermoLase would exercise in safeguarding its own similar confidential information; provided, however, that Tenant’s right, if any, ThermoLase shall be entitled to exercise its Audit Right for any subject year shall expire sixty (60) days after use the delivery to Tenant of the Direct Expense Statement for the calendar year, including the last year of the Lease Term, which Tenant desires to audit and, unless such right is exercised prior to such time, Tenant shall have waived its right to request such an Audit. Landlord shall make said books and records relevant to such Audit available to Tenant during Landlord’s customary business hours at the office of the property manager of the Project or at such other location designated by Landlord in writing.
(ii) Tenant shall pay all reasonable and necessary third party out-of-pocket costs for the Audit, including, without limitation, all of Landlord’s costs and expenses, including reasonable attorney and accountant fees.
(iii) The Audit shall only be conducted by a reputable accounting firm (“Accounting Firm”) approved in writing by Landlord. As a condition precedent to any such Audit, Tenant shall deliver to Landlord a copy of Tenant’s written agreement with such Accounting Firm, which agreement shall include provisions which state that: (A) Landlord is an intended third-party beneficiary of such agreement, (B) such Accounting Firm is not being engaged as a contingency or other incentive based auditor; (C) such Accounting Firm will not Financial Records in any manner solicit proceeding to enforce its rights pursuant to this Agreement or agree to represent any other tenant of the Project with respect to an audit or other review of Landlord’s accounting records at the Project, and (D) such Accounting Firm shall maintain in strict confidence any and all information obtained in connection with the Audit and shall not disclose such information to any person or entity other than to the management personnel of Tenantas may be otherwise required by law. The Accounting Firm, Landlord and Tenant shall enter into a confidentiality agreement in form and substance acceptable to Landlord whereby the Accounting Firm and Tenant shall covenant, among other things, that the Accounting Firm and the Tenant shall keep the books and records of Landlord in strict confidence.
(iv) In the event that the amount of Direct Expenses paid by Tenant to Landlord exceed the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, and after such Audit is confirmed and accepted by Landlord, in Landlord’s reasonable discretion, such difference shall be applied to the next succeeding payment of Direct Expenses due by Tenant to Landlord. In the event that the amount of Direct Expenses paid by Tenant to Landlord is less than the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, Tenant shall pay such difference to Landlord within ten (10) days of such determination.
(v) Nothing contained herein shall be construed as providing Tenant with any right or option to examine any other books and records of Landlord or any of Landlord’s affiliated entities. Notwithstanding anything to the contrary contained herein, the Audit Right granted herein is personal to the originally named Tenant, shall be exercisable only by such originally named Tenant and may not be assigned or exercised by any assignee, sublessee or transferee of Tenant’s interest in this Lease or any successor in interest to Tenant.7PAGE
Appears in 1 contract
Audit Rights. Tenant shall have the right, at Tenant's cost, after reasonable notice to Landlord, to have Tenant's authorized employees or agents inspect, at Landlord's main corporate office during normal business hours, Landlord's books, records and supporting documents concerning the Operating Expenses, Tax Expenses and Utilities Costs set forth in any Statement delivered by Landlord to Tenant for a particular Expense Year pursuant to Section 4.3.2 above; provided, however, Tenant shall have no right to conduct such inspection or object to or otherwise dispute the amount of the Operating Expenses, Tax Expenses and Utilities Costs set forth in any such Statement, unless Tenant notifies Landlord of such inspection objection and dispute, completes such inspection within three (i3) Provided months immediately following Landlord's delivery of a Statement (the "Review Period"); provided, further, that no Event notwithstanding any such timely inspection, objection, dispute, and/or audit, and as a condition precedent to Tenant's exercise of Default has occurredits right of inspection, objection, dispute, and/or audit as set forth in this Section 4.6, Tenant shall not be permitted to withhold payment of, and Tenant shall timely pay to Landlord, the full amounts as required by the provisions of this Article 4 in accordance with such Statement. However, such payment may be made under protest pending the outcome of any audit. In connection with any such inspection by Tenant, Landlord and Tenant shall reasonably cooperate with each other so that such inspection can be performed pursuant to a mutually acceptable schedule, in an expeditious manner and without undue interference with Landlord's operation and management of the Project. If after such inspection and/or request for documentation, Tenant disputes the amount of the Operating Expenses, Tax Expenses and Utilities Costs set forth in the Statement, Tenant shall have the right (“Audit Right”) toright, one time per calendar year during but not the Lease Termobligation, audit Landlord’s records within the Review Period, to cause an independent certified public accountant which is not paid on a contingency basis and books used which is mutually approved by Landlord in determining and Tenant (the "Accountant") to complete an audit of Landlord's books and records to determine the proper amount of Direct the Operating Expenses, Tax Expenses and Utilities Costs incurred and amounts payable by Tenant is obligated to pay to Landlord for the sole purpose Expense Year which is the subject of verifying such Statement. Such audit by the accuracy of same (Accountant shall be final and binding upon Landlord and Tenant. If Landlord and Tenant cannot mutually agree as to the “Audit”). Any Audit shall cover only one (1) calendar year during the Term identity of the Lease. Tenant shall provide Landlord at least Accountant within thirty (30) days prior written notice requesting after Tenant notifies Landlord that Tenant desires an audit to be performed, then the AuditAccountant shall be one of the "Big 4" accounting firms selected by Landlord, providedwhich is not paid on a contingency basis and is not, howeverand has not been, otherwise employed or retained by Landlord. If such audit reveals that Landlord has over-charged Tenant’s right, if any, to exercise its Audit Right for any subject year shall expire sixty then within thirty (6030) days after the delivery results of such audit are made available to Landlord, Landlord shall reimburse to Tenant the amount of such over-charge. If the Direct Expense Statement for audit reveals that the calendar yearTenant was under-charged, including then within thirty (30) days after the last year results of the Lease Term, which Tenant desires such audit are made available to audit and, unless such right is exercised prior to such timeTenant, Tenant shall have waived its right reimburse to request Landlord the amount of such an Auditunder-charge. Tenant agrees to pay the cost of such audit unless it is subsequently determined that Landlord's original Statement which was the subject of such audit was in error to Tenant's disadvantage by five percent (5%) or more of the total Operating Expenses, Tax Expenses and Utilities Costs which was the subject of the audit (in which case Landlord shall make said books pay the cost of such audit). The payment by Tenant of any amounts pursuant to this Article 4 shall not preclude Tenant from questioning the correctness of any Statement provided by Landlord at any time during the Review Period, but the failure of Tenant to object thereto, conduct and records relevant complete its inspection and have the Accountant conduct and complete the audit as described above prior to such Audit available to Tenant during Landlord’s customary business hours at the office expiration of the property manager Review Period shall be conclusively deemed Tenant's approval of the Project or at such other location designated Statement in question and the amount of Operating Expenses, Tax Expenses and Utilities Costs shown thereon. In connection with any inspection and/or audit conducted by Landlord in writing.
(ii) Tenant shall pay pursuant to this Section 4.6, Tenant agrees to keep, and to cause all reasonable of Tenant's employees and necessary third party out-of-pocket costs for consultants and the Audit, including, without limitationAccountant to keep, all of Landlord’s costs 's books and expensesrecords and the audit, including reasonable attorney and accountant fees.
(iii) The Audit shall only be conducted by a reputable accounting firm (“Accounting Firm”) approved all information pertaining thereto and the results thereof, strictly confidential, and in writing by Landlord. As a condition precedent to any such Auditconnection therewith, Tenant shall deliver to Landlord a copy of Tenant’s written agreement with cause such Accounting Firmemployees, which agreement shall include provisions which state that: (A) Landlord is an intended third-party beneficiary of such agreement, (B) such Accounting Firm is not being engaged as a contingency or other incentive based auditor; (C) such Accounting Firm will not in any manner solicit or agree to represent any other tenant of the Project with respect to an audit or other review of Landlord’s accounting records at the Project, and (D) such Accounting Firm shall maintain in strict confidence any and all information obtained in connection with the Audit and shall not disclose such information to any person or entity other than to the management personnel of Tenant. The Accounting Firm, Landlord and Tenant shall enter into a confidentiality agreement in form and substance acceptable to Landlord whereby the Accounting Firm and Tenant shall covenant, among other things, that the Accounting Firm consultants and the Tenant shall keep the books and records of Accountant to execute such reasonable confidentiality agreements as Landlord in strict confidencemay require prior to conducting any such inspections and/or audits.
(iv) In the event that the amount of Direct Expenses paid by Tenant to Landlord exceed the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, and after such Audit is confirmed and accepted by Landlord, in Landlord’s reasonable discretion, such difference shall be applied to the next succeeding payment of Direct Expenses due by Tenant to Landlord. In the event that the amount of Direct Expenses paid by Tenant to Landlord is less than the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, Tenant shall pay such difference to Landlord within ten (10) days of such determination.
(v) Nothing contained herein shall be construed as providing Tenant with any right or option to examine any other books and records of Landlord or any of Landlord’s affiliated entities. Notwithstanding anything to the contrary contained herein, the Audit Right granted herein is personal to the originally named Tenant, shall be exercisable only by such originally named Tenant and may not be assigned or exercised by any assignee, sublessee or transferee of Tenant’s interest in this Lease or any successor in interest to Tenant.
Appears in 1 contract
Samples: Lease (Kura Oncology, Inc.)
Audit Rights. (i) Provided that no Event of Default has occurred, Tenant shall have the right (“Audit Right”) to, one time per calendar year Ascletis will keep and maintain accurate and complete records regarding its payment obligations during the Lease Term, audit Landlord’s records and books used by Landlord in determining the amount of Direct Expenses Tenant is obligated to pay to Landlord for the sole purpose of verifying the accuracy of same (the “Audit”)three preceding years. Any Audit shall cover only one (1) calendar year during the Term of the Lease. Tenant shall provide Landlord Upon at least thirty (30) days [***] days’ prior written notice requesting the Auditfrom 3-V, providedAxxxxxxx will permit an independent certified public accounting firm of internationally recognized standing, however, that Tenant’s right, if anyselected by 3-V and reasonably acceptable to Axxxxxxx, to exercise its Audit Right for any subject year shall expire sixty (60) days after examine the delivery to Tenant of the Direct Expense Statement for the calendar year, including the last year of the Lease Term, which Tenant desires to audit and, unless such right is exercised prior to such time, Tenant shall have waived its right to request such an Audit. Landlord shall make said relevant books and records relevant of Axxxxxxx as may be reasonably necessary to verify the payments due under this ARTICLE 7. An examination by 3-V under this Section 7.6(d) will occur not more than [***]. The accounting firm will be provided access to such Audit available books and records at Ascletis’ facility or facilities where such books and records are normally kept and such examination will be conducted during Ascletis’ normal business hours. Ascletis may require the accounting firm to Tenant during Landlord’s customary business hours at sign a standard non-disclosure agreement before providing the office accounting firm access to Ascletis’ facilities or records. Upon completion of the property manager audit, the accounting firm will provide both Parties a written report disclosing whether the reports submitted or payments made by Axxxxxxx are correct or incorrect and the specific details concerning any discrepancies. No other information will be provided to 3-V. If the accountant determines that the report submitted or payments made by Ascletis understated the amount due to 3-V, then Ascletis will promptly pay such understated amount, and, if, during any year, the understated amount is more than [***] of the Project or at such other location designated by Landlord in writing.
(ii) Tenant amount that was owed to 3-V, Axxxxxxx shall pay all reasonable and necessary third party outreimburse 3-of-pocket costs V for the Audit, including, without limitation, all of Landlord’s costs and expenses, including reasonable attorney and accountant fees.
(iii) The Audit shall only be conducted expenses incurred by a reputable accounting firm (“Accounting Firm”) approved in writing by Landlord. As a condition precedent to any such Audit, Tenant shall deliver to Landlord a copy of Tenant’s written agreement with such Accounting Firm, which agreement shall include provisions which state that: (A) Landlord is an intended third3-party beneficiary of such agreement, (B) such Accounting Firm is not being engaged as a contingency or other incentive based auditor; (C) such Accounting Firm will not in any manner solicit or agree to represent any other tenant of the Project with respect to an audit or other review of Landlord’s accounting records at the Project, and (D) such Accounting Firm shall maintain in strict confidence any and all information obtained V in connection with the Audit audit; otherwise, 3-V shall bear the cost of such audit. Any overpayment discovered by such audit shall be credited against future payments owed by Axxxxxxx (or reimbursed to Ascletis if no future payment are expected). Ascletis shall include in its sublicense agreements with its applicable Sublicensees an audit provision no less stringent than this provision and shall not disclose such information that permits 3-V to any person or entity other than to verify the management personnel accuracy of Tenant. The Accounting Firm, Landlord and Tenant shall enter into a confidentiality agreement in form and substance acceptable to Landlord whereby the Accounting Firm and Tenant shall covenant, among other things, that the Accounting Firm and the Tenant shall keep the books and records of Landlord in strict confidence.
(iv) In the event that the amount of Direct Expenses amounts paid by Tenant to Landlord exceed the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, and after such Audit is confirmed and accepted by Landlord, in Landlord’s reasonable discretion, such difference shall be applied to the next succeeding payment of Direct Expenses due by Tenant to Landlord. In the event that the amount of Direct Expenses paid by Tenant to Landlord is less than the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, Tenant shall pay such difference to Landlord within ten (10) days of such determinationAxxxxxxx under this Article 7.
(v) Nothing contained herein shall be construed as providing Tenant with any right or option to examine any other books and records of Landlord or any of Landlord’s affiliated entities. Notwithstanding anything to the contrary contained herein, the Audit Right granted herein is personal to the originally named Tenant, shall be exercisable only by such originally named Tenant and may not be assigned or exercised by any assignee, sublessee or transferee of Tenant’s interest in this Lease or any successor in interest to Tenant.
Appears in 1 contract
Samples: Exclusive License and Development Agreement (Sagimet Biosciences Inc.)
Audit Rights. Provided Tenant notifies Landlord in accordance with the terms of paragraph (ie) Provided above that no Event of Default has occurredTenant disputes a statement received from Landlord, Tenant or its CPA (as defined below) shall have the right (“Audit Right”) toright, one time per calendar year during the Lease Termat Tenant’s sole cost and expense, audit Landlord’s records and books used by Landlord in determining the amount of Direct Expenses provided Tenant is obligated to pay to Landlord for the sole purpose of verifying the accuracy of same utilizes a Certified Public Accountant (the “AuditCPA”). Any Audit shall cover only one (1) calendar year during the Term of the Lease. Tenant shall provide Landlord compensated on an hourly basis, upon at least thirty (30) days prior written notice requesting to Landlord at any time during regular business hours to audit, review and photocopy Landlord’s records pertaining to Operating Expenses for the Audit, immediately previous calendar year only; provided, however, to the extent that Tenant’s right, if any, to exercise its Audit Right for any subject year shall expire sixty (60) days after the delivery to Tenant of the Direct Expense Statement for the calendar year, including the last year of the Lease Term, which Tenant desires to audit and, unless such right is exercised prior to such timeidentifies one or more material discrepancies, Tenant shall have waived its right to request such an Audit. Landlord shall make said may audit the books and records relevant for the previous two (2) years with respect to such Audit available those discrepancies. Tenant shall complete the audit and present any disputed charges to Tenant during Landlord’s customary business hours at the office of the property manager of the Project or at such other location designated by Landlord , in writing.
(ii) Tenant shall pay all reasonable and necessary third party out-of-pocket costs for the Audit, including, without limitation, all within six months of receipt of Landlord’s costs and expensesstatement pursuant to Paragraph (c) of this Paragraph 4. If, including reasonable attorney and accountant fees.
(iii) The Audit shall only be conducted by a reputable accounting firm (“Accounting Firm”) approved in writing by following Landlord. As a condition precedent to any such Audit, Tenant shall deliver to Landlord a copy of Tenant’s written agreement with such Accounting Firm, which agreement shall include provisions which state that: (A) Landlord is an intended third-party beneficiary of such agreement, (B) such Accounting Firm is not being engaged as a contingency or other incentive based auditor; (C) such Accounting Firm will not in any manner solicit or agree to represent any other tenant receipt of the Project with respect to an audit or other review of Landlord’s accounting records at and any disputed charges (the Project“Report Date”), Landlord disputes the findings contained therein, and Landlord and Tenant are not able to resolve their differences within thirty (D30) such Accounting Firm days following the Report Date, the dispute shall maintain in strict confidence any and all information obtained in connection with the Audit and shall not disclose such information to any person or entity other than to the management personnel of Tenant. The Accounting Firm, be resolved by binding arbitration as follows: Landlord and Tenant shall enter into each designate an independent certified public accountant, which shall in turn jointly select a confidentiality agreement third independent Certified Public Accountant (the “Third CPA”). The Third CPA, within thirty (30) days of selection, shall, at Tenant’s sole expense (unless the Third CPA resolves the difference in form Tenant’s favor, in which event Landlord shall pay the cost of the Third CPA in an amount not to exceed $2,000.00), audit the relevant records and substance acceptable to Landlord whereby certify the Accounting Firm proper amount within. That certification shall be final and Tenant shall covenant, among other things, that conclusive. If the Accounting Firm and the Tenant shall keep the books and records of Landlord in strict confidence.
(iv) In the event Third CPA determines that the amount of Direct Operating Expenses paid billed to Tenant was incorrect, the appropriate party shall pay to the other party the deficiency or overpayment, as applicable, within thirty (30) days following delivery of the Third Party CPA’s decision, without interest. Tenant agrees to keep all information thereby obtained by Tenant confidential and to obtain the agreement of its CPA and Third CPA to keep all such information confidential. Tenant shall provide a copy of such CPA agreements to Landlord exceed the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, and after such Audit is confirmed and accepted by Landlord, in Landlord’s reasonable discretion, such difference shall be applied to the next succeeding payment of Direct Expenses due by Tenant to Landlord. In the event that the amount of Direct Expenses paid by Tenant to Landlord is less than the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, Tenant shall pay such difference to Landlord within ten (10) days of such determinationpromptly upon request.
(v) Nothing contained herein shall be construed as providing Tenant with any right or option to examine any other books and records of Landlord or any of Landlord’s affiliated entities. Notwithstanding anything to the contrary contained herein, the Audit Right granted herein is personal to the originally named Tenant, shall be exercisable only by such originally named Tenant and may not be assigned or exercised by any assignee, sublessee or transferee of Tenant’s interest in this Lease or any successor in interest to Tenant.
Appears in 1 contract
Audit Rights. Parent and Buyer hereby grant, and shall cause any of their respective Affiliates involved in activities producing CTM Revenue for the Subsidiary (icollectively with Parent, Buyer and the Subsidiary following the Closing, the “Buyer Group”) Provided that no Event of Default has occurredto grant, Tenant shall have to the Shareholder Representative Committee the right (“Audit Right”) to, one time once per calendar year during each of 2014, 2015 and 2016) to examine and have reasonable access during normal business hours to all books of account and records specifically pertaining to CTM Revenue (subject to applicable law) for calendar years 2013, 2014 and 2015 (each, a “Contingent Payment Year”) at the Lease Term, audit Landlord’s location of such records and books used by Landlord in determining the amount on prior written notice of Direct Expenses Tenant is obligated to pay to Landlord for the sole purpose of verifying the accuracy of same (the “Audit”). Any Audit shall cover only one (1) calendar year during the Term of the Lease. Tenant shall provide Landlord at least thirty (30) days prior written notice requesting days, for the purpose of verifying the amount of CTM Revenue for such year (each such review shall be referred to herein as a “Contingent Payment Audit”). For the purpose of conducting a Contingent Payment Audit, the Shareholder Representative Committee may hire, at its expense, one or more auditors or attorneys of the Shareholder Representative Committee’s choosing to assist in such examination, provided, howeverthat such auditors or attorneys have entered into customary confidentiality agreements with Parent in form and substance reasonably acceptable to Parent. The Shareholder Representative Committee and such representatives shall have reasonable access to all of the books and records required to perform any Contingent Payment Audit for a thirty (30) day period, that Tenant’s rightbeginning on the date on which access to substantially all of such books and records is first given to the Shareholder Representative Committee. In no case shall any member of the Buyer Group dispose of any books of account or records specifically pertaining to CTM Revenue with respect to any Contingent Payment Year earlier than the date one hundred and eighty (180) days following the last day of the subsequent Contingent Payment Year or, if such Contingent Payment Year is the last Contingent Payment Year, the last day of such Contingent Payment Year. Parent shall deliver to the Shareholder Representative Committee, by no later than forty five (45) days following the end of each Contingent Payment Year, a certificate describing the amount of CTM Revenue, if any, received during such Contingent Payment Year (each a “Contingent Payment Certificate”). In the event that the Shareholder Representative Committee does not agree with the amount of CTM Revenue set forth on any Contingent Payment Certificate, the Shareholder Representative Committee shall be entitled, during the period commencing on the date of delivery of such Contingent Payment Certificate and ending on the sixty fifth (65th) day after delivery of such Contingent Payment Certificate (the “Dispute Period”), to exercise its Audit Right give Parent written notice (a “Dispute Notice”), of such disagreement. In the event that the Shareholder Representative Committee does not deliver a Dispute Notice during the Dispute Period, the CTM Revenue amount set forth on such Contingent Payment Certificate shall irrevocably be deemed to be the final CTM Revenue amount for any subject year such Contingent Payment Year and all purposes of this Agreement, absent fraud or intentional misconduct. In the event that the Shareholder Representative Committee delivers a Dispute Notice within the Dispute Period, the Shareholder Representative Committee, Parent and Buyer shall expire sixty for a period of not less than thirty (6030) days after the delivery to Tenant of the Direct Expense Statement for Dispute Notice attempt in good faith to resolve the calendar yearCTM Revenue amount that is in dispute (the “Disputed Revenue Amount”), including the last year of the Lease Term, which Tenant desires to audit and, unless such right is exercised prior and mutually determine any adjustments to such timeCTM Revenue amount (the “Agreed Revenue Amount”). Parent, Tenant shall have waived its right to request such an Audit. Landlord shall make said books Buyer and records relevant to such Audit available to Tenant during Landlord’s customary business hours at the office of the property manager of the Project or at such other location designated by Landlord in writing.
(ii) Tenant shall pay all reasonable and necessary third party out-of-pocket costs for the AuditShareholder Representative Committee shall, including, without limitation, all of Landlord’s costs and expenses, including reasonable attorney and accountant fees.
(iii) The Audit shall only be conducted by a reputable accounting firm (“Accounting Firm”) approved in writing by Landlord. As a condition precedent to any such Audit, Tenant shall deliver to Landlord a copy of Tenant’s written agreement with such Accounting Firm, which agreement shall include provisions which state that: (A) Landlord is an intended third-party beneficiary of such agreement, (B) such Accounting Firm is not being engaged as a contingency or other incentive based auditor; (C) such Accounting Firm will not in any manner solicit or agree to represent any other tenant of the Project with respect to an audit or other review of Landlord’s accounting records at the Project, and (D) such Accounting Firm shall maintain in strict confidence any and all information obtained in connection with the Audit and shall not disclose such information to any person or entity other than subject to the management personnel execution of Tenant. The Accounting Firm, Landlord and Tenant shall enter into a confidentiality agreement in form and substance acceptable reasonably satisfactory to Landlord whereby the Accounting Firm delivering party, provide each other with such information, records and Tenant shall covenantmaterial kept in the ordinary course of business in such party’s possession and which such party may disclose without violating confidentiality obligations to third parties, among other thingsas is reasonably necessary and appropriate in attempting to resolve such Disputed Revenue Amount, including the delivery of a copy to the Shareholder Representative Committee of any such information, records and material, to the extent then available, that the Accounting Firm and the Tenant shall keep the books and records of Landlord in strict confidence.
(iv) In the event that was used to calculate the amount of Direct Expenses paid CTM Revenue set forth on the relevant Contingent Payment Certificate. Notwithstanding anything to contrary herein, if the final Agreed Revenue Amount determined pursuant to this Section 1.2(e) is greater than the CTM Revenue amount set forth on the relevant Contingent Payment Certificate by Tenant an amount equal to Landlord exceed more than ten percent (10%) of the actual CTM Revenue amount set forth in the relevant Contingent Payment Certificate, Parent shall pay all of Direct Expenses owed by Tenant to Landlord as disclosed the reasonable out-of-pocket costs and expenses actually incurred by the Shareholder Representative Committee in connection with such Contingent Payment Audit. If Parent, Buyer and the Shareholder Representative Committee cannot resolve any such dispute within thirty (30) days after such Audit is confirmed and accepted by Landlord, in Landlord’s reasonable discretiondelivery of a Dispute Notice, such difference dispute shall be applied promptly referred to and resolved by an Independent Accounting Firm. The determination of such Independent Accounting Firm shall be made as promptly as practicable and shall be final and binding on Parent, Buyer and the next succeeding payment of Direct Expenses due by Tenant to LandlordShareholder Representative Committee. In the event that of a dispute, the amount of Direct Expenses paid Disputed Revenue Amount, as modified by Tenant to Landlord is less than resolution by Parent, Buyer and the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed Shareholder Representative Committee, or by the AuditIndependent Accounting Firm, Tenant shall pay such difference to Landlord within ten (10) days of such determination.
(v) Nothing contained herein shall be construed as providing Tenant with any right or option to examine any other books and records of Landlord or any of Landlord’s affiliated entities. Notwithstanding anything to the contrary contained herein, the Audit Right granted herein is personal to the originally named Tenantapplicable, shall be exercisable only the “Agreed Revenue Amount.” The Selling Shareholders hereby agree not to trade any securities of Parent (or its successor) based on information furnished by such originally named Tenant and may this Section which is not be assigned or exercised by any assignee, sublessee or transferee of Tenant’s interest in this Lease or any successor in interest to Tenantotherwise publicly available.
Appears in 1 contract
Audit Rights. Tenant shall have the one time right to audit the Operating Costs for the Base Year upon Tenant’s written request given not more than one hundred eighty (i180) Provided days after receipt of a Statement for the Base Year and the right to audit subsequent years upon Tenant’s written request given not more than two (2) years after Tenant’s receipt of a Statement for a particular calendar year, provided that no Event of Default exists at the time of the request, and Landlord shall furnish Tenant with such reasonable supporting documentation pertaining to the calculation of Operating Costs for the Base Year or Tenant’s Allocated Share for a subsequent year as Tenant may reasonably request (the “Statement Documentation”). Landlord shall provide the Statement Documentation within thirty (30) days after Tenant’s written request therefor. Within one hundred eighty (180) days after receipt of the Statement Documentation by Tenant (the “Audit Period”), if Tenant disputes the amount of the Base Year or Tenant’s Allocated Share as supported by the Statement Documentation, an independent certified public accountant selected, designated and paid for by Tenant (which accountant (A) is a member of a nationally or regionally recognized certified public accounting firm which has occurredprevious experience in auditing financial operating records of landlords of office buildings, (B) shall not already be providing primary accounting and/or lease administration services to Tenant and shall not have provided primary accounting and/or lease administration services to Tenant in the past three (3) years, (C) is not working on a contingency fee basis [i.e., Tenant must be billed based on the actual time and materials that are incurred by the certified public accounting firm in the performance of the audit], and (D) shall have not disclose the right (“Audit Right”existence of the audit or its results to any other Tenant at the Building and shall execute a confidentiality agreement reasonably acceptable to Landlord) to, one time per calendar year during the Lease Termmay, audit Landlord’s records with respect to the Base Year Operating Costs or Tenant’s Allocated Share set forth in the Statement Documentation at Landlord’s corporate offices located within 100 miles of the Building or in New York City, provided that (i) no uncured Event of Default exists, (ii) Tenant has paid all amounts required to be paid under Section 8.03 (which payment shall not be deemed a waiver of Tenant’s rights to audit and books used by contest), and (iii) Tenant certifies to Landlord, at Landlord’s request, the Tenant’s accountant is not paid on a contingency fee basis. In connection with such audit, Tenant and Tenant’s certified public accounting firm must agree in advance to follow Landlord’s reasonable rules and procedures consistently applied to tenants at the Building regarding an audit of the aforementioned Landlord in determining the amount of Direct Expenses Tenant is obligated to pay to Landlord for the sole purpose of verifying the accuracy of same records. Any audit report (the “AuditAudit Report”)) prepared by Tenant’s certified public accounting firm shall be delivered concurrently to Landlord and Tenant within the Audit Period. Any If the Audit Report proves that the Operating Expenses in the Base Year were overstated in the Base Year by more than four (4%) percent or that Operating Expenses in the subject expense year were overstated by more than four (4%) percent, then the cost of Tenant’s certified public accounting firm and the cost of such audit shall cover only one (1) calendar year during the Term of the Lease. Tenant shall provide be paid for by Landlord at least within thirty (30) days prior written notice requesting of invoice. Tenant’s failure to audit the Auditamount of the Tenant’s Allocated Share within the Audit Period shall be deemed to be Tenant’s approval of such costs and Tenant, providedthereafter, howeverwaives the right or ability to audit the amounts set forth for that particular Operating Cost expense year. To the extent that Tenant has made payments of Operating Expenses to Landlord in excess of the actual Operating Expenses, then Tenant shall receive a credit against future Operating Expenses in the amount of such overpayment. Tenant hereby acknowledges that Tenant’s right, if any, to exercise its Audit Right for any subject year shall expire sixty (60) days after the delivery to Tenant of the Direct Expense Statement for the calendar year, including the last year of the Lease Term, which Tenant desires sole right to audit and, unless such right is exercised prior to such time, Tenant shall have waived its right to request such an Audit. Landlord shall make said books and records relevant to such Audit available to Tenant during Landlord’s customary business hours at the office of the property manager of the Project or at such other location designated by Landlord in writing.
(ii) Tenant shall pay all reasonable records and necessary third party out-of-pocket costs for the Audit, including, without limitation, all of Landlord’s costs and expenses, including reasonable attorney and accountant fees.
(iii) The Audit shall only be conducted by a reputable accounting firm (“Accounting Firm”) approved in writing by Landlord. As a condition precedent to any such Audit, Tenant shall deliver to Landlord a copy of Tenant’s written agreement with such Accounting Firm, which agreement shall include provisions which state that: (A) Landlord is an intended third-party beneficiary of such agreement, (B) such Accounting Firm is not being engaged as a contingency or other incentive based auditor; (C) such Accounting Firm will not in any manner solicit or agree to represent any other tenant of the Project with respect to an audit or other review of Landlord’s accounting records at the Project, and (D) such Accounting Firm shall maintain in strict confidence any and all information obtained in connection with the Audit and shall not disclose such information to any person or entity other than to the management personnel of Tenant. The Accounting Firm, Landlord and Tenant shall enter into a confidentiality agreement in form and substance acceptable to Landlord whereby the Accounting Firm and Tenant shall covenant, among other things, that the Accounting Firm and the Tenant shall keep the books and records of Landlord in strict confidence.
(iv) In the event that contest the amount of Direct Expenses paid Operating Costs payable by Tenant to Landlord exceed the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, and after such Audit is confirmed and accepted by Landlord, in Landlord’s reasonable discretion, such difference shall be applied to the next succeeding payment of Direct Expenses due by Tenant to Landlord. In the event that the amount of Direct Expenses paid by Tenant to Landlord is less than the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, Tenant shall pay such difference to Landlord within ten (10) days of such determination.
(v) Nothing contained herein shall be construed as providing Tenant with any right or option to examine any other books and records of Landlord or any of Landlord’s affiliated entities. Notwithstanding anything to the contrary contained herein, the Audit Right granted herein is personal to the originally named Tenant, shall be exercisable only by such originally named Tenant and may not be assigned or exercised by any assignee, sublessee or transferee of Tenant’s interest set forth in this Lease or any successor in interest to TenantSection 8.04.
Appears in 1 contract
Audit Rights. Tenant or its agent shall have the right, for a period of ninety (90) days after Tenant's receipt of the statement of actual Operating Expenses for each Calendar Year, and upon giving reasonable notice to Landlord and during normal business hours, to audit, review and inspect at Landlord's offices Landlord's bills, invoices and records applicable to the actual Operating Expenses for that particular Calendar Year to verify the Operating Expenses. Such audit, review and inspection shall be at Tenant's sole cost, except as otherwise provided below. Unless otherwise mutually agreed, should such audit, review or inspection result in a dispute by Tenant as to the Operating Expenses charged by Landlord, such dispute shall be determined by arbitration, in the jurisdiction in which the Building is located, in accordance with the then current commercial rules of the American Arbitration Association. The costs of the arbitration shall be divided equally between Landlord and Tenant, except that each party shall bear the cost of its own legal fees, unless (i) Provided the arbitration results in a determination that no Event Landlord's statement contained a discrepancy of Default has occurredless than five percent (5%) in Landlord's favor, in which event Tenant shall have the right (“Audit Right”) to, one time per calendar year during the Lease Term, audit Landlord’s records and books used by Landlord bear all costs incurred in determining the amount of Direct Expenses Tenant is obligated to pay to Landlord for the sole purpose of verifying the accuracy of same (the “Audit”). Any Audit shall cover only one (1) calendar year during the Term of the Lease. Tenant shall provide Landlord at least thirty (30) days prior written notice requesting the Audit, provided, however, that Tenant’s right, if any, to exercise its Audit Right for any subject year shall expire sixty (60) days after the delivery to Tenant of the Direct Expense Statement for the calendar year, including the last year of the Lease Term, which Tenant desires to audit and, unless connection with such right is exercised prior to such time, Tenant shall have waived its right to request such an Audit. Landlord shall make said books and records relevant to such Audit available to Tenant during Landlord’s customary business hours at the office of the property manager of the Project or at such other location designated by Landlord in writing.
(ii) Tenant shall pay all reasonable and necessary third party out-of-pocket costs for the Auditarbitration, including, without limitation, reasonable legal fees, or (ii) the arbitration results in a determination that Landlord's statement contained a discrepancy of at least five percent (5%) in Landlord's favor, in which event Landlord shall bear all of Landlord’s costs and expenses, including reasonable attorney and accountant fees.
(iii) The Audit shall only be conducted by a reputable accounting firm (“Accounting Firm”) approved in writing by Landlord. As a condition precedent to any such Audit, Tenant shall deliver to Landlord a copy of Tenant’s written agreement with such Accounting Firm, which agreement shall include provisions which state that: (A) Landlord is an intended third-party beneficiary of such agreement, (B) such Accounting Firm is not being engaged as a contingency or other incentive based auditor; (C) such Accounting Firm will not in any manner solicit or agree to represent any other tenant of the Project with respect to an audit or other review of Landlord’s accounting records at the Project, and (D) such Accounting Firm shall maintain in strict confidence any and all information obtained incurred in connection with such arbitration, including, without limitation, reasonable legal fees. If such review, audit or inspection reveals that Landlord overstated Tenant's obligation for Operating Expenses in any Calendar Year, the Audit and shall not disclose such information to any person or entity other than to the management personnel of Tenant. The Accounting Firm, Landlord and Tenant shall enter into a confidentiality agreement in form and substance acceptable to Landlord whereby the Accounting Firm and Tenant shall covenant, among other things, that the Accounting Firm and the Tenant shall keep the books and records of Landlord in strict confidence.
(iv) In the event that the amount of Direct Expenses paid by Tenant to Landlord exceed the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, and after such Audit is confirmed and accepted by Landlord, in Landlord’s reasonable discretion, such difference excess shall be applied to the credited against Tenant's next succeeding payment monthly payments of Direct Operating Expenses. If such review, audit or inspection reveals that Landlord understated Tenant's obligation for Operating Expenses due by Tenant to Landlord. In the event that the amount of Direct Expenses paid by Tenant to Landlord is less than the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Auditin any Calendar Year, Tenant shall pay the total amount of such difference deficiency to Landlord within ten thirty (1030) days of after such determination.
(v) Nothing contained herein shall be construed . During the pendency of any audit or arbitration proceedings as providing Tenant with any right or option to examine any other books and records of Landlord or any of Landlord’s affiliated entities. Notwithstanding anything to the contrary contained herein, the Audit Right granted herein is personal to the originally named Tenant, shall be exercisable only by such originally named Tenant and may not be assigned or exercised by any assignee, sublessee or transferee of Tenant’s interest provided for in this Lease or any successor in interest Section, Tenant shall continue to Tenantmake payments of Operating Expenses as required by this Lease.
Appears in 1 contract
Samples: Lease Agreement (Gene Logic Inc)
Audit Rights. (iThe following provisions are hereby added to the end of Section 4.2(c) of the Lease: "Provided that no Event of Default default by Tenant has occurredoccurred beyond any applicable notice and cure periods, Tenant shall have the right (“Audit Right”) toto cause a certified public accountant, one time per calendar year engaged on a non-contingency fee basis, to audit Operating Expenses by inspecting Landlord's general ledger of expenses not more than once during any Expense Recovery Period. However, to the Lease Term, audit Landlord’s records and books used extent that insurance premiums or deductibles to be included in Operating Expenses is determined by Landlord on the basis of an internal allocation of costs utilizing information Landlord in determining good fxxxx xxxxx proprietary, such expense component shall not be subject to audit so long as it does not exceed the amount per square foot typically imposed by landlords of Direct Expenses Tenant is obligated to pay to Landlord for the sole purpose of verifying the accuracy of same (the “Audit”). Any Audit shall cover only one (1) calendar year during the Term of the Leaseother first class business parks in Orange County, California. Tenant shall provide give notice to Landlord at least thirty of Tenant's intent to audit within one hundred eighty (30) days prior written notice requesting the Audit, provided, however, that Tenant’s right, if any, to exercise its Audit Right for any subject year shall expire sixty (60180) days after the delivery to Tenant Tenant's receipt of the Direct Expense Statement for the calendar year, including the last year Landlord's expense statement which sets forth Tenant's Share of the Lease Term, which Tenant desires to Landlord's actual Operating Expenses. Such audit and, unless such right is exercised prior to such time, Tenant shall have waived its right to request such an Audit. Landlord shall make said books and records relevant to such Audit available to Tenant be conducted at a mutually agreeable time during Landlord’s customary normal business hours at the office of Landlord or its management agent where such accounts are maintained. If Tenant's audit determines that actual Operating Expenses have been overstated by more than five percent (5%), then subject to Landlord's right to review and/or contest the property manager of audit results, Landlord shall reimburse Tenant for the Project or at such other location designated by Landlord in writing.
(ii) Tenant shall pay all reasonable and necessary third party out-of-pocket costs for of such audit. Tenant's rent shall be approximately adjusted to reflect any overstatement in Operating Expenses. In the Auditevent of a dispute between Landlord and Tenant regarding such audit, such dispute shall be submitted and resolved by binding arbitration pursuant to the provisions of Article III of the Work Letter attached to this Amendment. All of the information obtained by Tenant and/or its auditor in connection with such audit, including, without limitation, all any photo copies of any of Landlord’s costs 's general ledger of expenses obtained by Tenant, as well as any compromise, settlement, or adjustment reached between Landlord and expensesTenant as a result thereof, including reasonable attorney and accountant fees.
(iii) The Audit shall only be conducted held in strict confidence and, except as may be required pursuant to litigation, shall not be disclosed to any third party, directly or indirectly, by Tenant or its auditor or any of their officers, agents or employers. Landlord may require Tenant's auditor to execute a reputable accounting firm (“Accounting Firm”) approved in writing by Landlord. As separate confidentiality agreement affirming the foregoing as a condition precedent to any such Audit, Tenant shall deliver to Landlord a copy of Tenant’s written agreement with such Accounting Firm, which agreement shall include provisions which state that: (A) Landlord is an intended third-party beneficiary of such agreement, (B) such Accounting Firm is not being engaged as a contingency or other incentive based auditor; (C) such Accounting Firm will not in any manner solicit or agree to represent any other tenant of the Project with respect to an audit or other review of Landlord’s accounting records at the Project, and (D) such Accounting Firm shall maintain in strict confidence any and all information obtained in connection with the Audit and shall not disclose such information to any person or entity other than to the management personnel of Tenant. The Accounting Firm, Landlord and Tenant shall enter into a confidentiality agreement in form and substance acceptable to Landlord whereby the Accounting Firm and Tenant shall covenant, among other things, that the Accounting Firm and the Tenant shall keep the books and records of Landlord in strict confidence.
(iv) In the event that the amount of Direct Expenses paid by Tenant to Landlord exceed the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, and after such Audit is confirmed and accepted by Landlord, in Landlord’s reasonable discretion, such difference shall be applied to the next succeeding payment of Direct Expenses due by Tenant to Landlordaudit. In the event that the amount of Direct Expenses paid by Tenant a violation of this confidentiality covenant in connection with any audit, then in addition to Landlord is less than the actual amount of Direct Expenses owed by Tenant any other legal or equitable remedy available to Landlord as disclosed by the AuditLandlord, Tenant shall pay forfeit its right to any reconciliation or cost reimbursement payment from Landlord due to said audit (and any such difference to payment theretofore made by and Landlord within ten (10) days of such determination.
(v) Nothing contained herein shall be construed as providing promptly returned by Tenant), and Tenant with any right or option to examine any other books and records of Landlord or any of Landlord’s affiliated entities. Notwithstanding anything to the contrary contained herein, the Audit Right granted herein is personal to the originally named Tenant, shall be exercisable only by such originally named Tenant and may not be assigned or exercised by any assignee, sublessee or transferee of Tenant’s interest in have no further audit rights under this Lease or any successor in interest to TenantLease."
Appears in 1 contract
Samples: Lease (Lantronix Inc)
Audit Rights. Within 60 days (ithe “Audit Election Period”) Provided that after Landlord furnishes its statement of actual Operating Expenses for any calendar year (including the Base Year), Tenant may, at its expense during Landlord’s normal business hours, elect to audit Landlord’s Operating Expenses for such calendar year only, subject to the following conditions: (1) there is no Event uncured event of Default has occurreddefault under this Lease; (2) the audit shall be prepared by an independent certified public accounting firm of recognized national standing; (3) in no event shall any audit be performed by a firm retained on a “contingency fee” basis; (4) the audit shall commence within 30 days after Landlord makes Landlord’s books and records available to Tenant’s auditor and shall conclude within 60 days after commencement; (5) the audit shall be conducted where Landlord maintains its books and records and shall not unreasonably interfere with the conduct of Landlord’s business; (6) Tenant and its accounting firm shall treat any audit in a confidential manner and shall each execute Landlord’s confidentiality agreement for Landlord’s benefit prior to commencing the audit; and (7) the accounting firm’s audit report shall, at no charge to Landlord, be submitted in draft form for Landlord’s review and comment before the final approved audit report is delivered to Landlord, and any reasonable comments by Landlord shall be incorporated into the final audit report. Notwithstanding the foregoing, Tenant shall have the no right (“Audit Right”) to, one time per calendar year during the Lease Term, to conduct an audit Landlord’s records and books used by if Landlord in determining the amount of Direct Expenses Tenant is obligated to pay to Landlord for the sole purpose of verifying the accuracy of same (the “Audit”). Any Audit shall cover only one (1) calendar year during the Term of the Lease. Tenant shall provide Landlord at least thirty (30) days prior written notice requesting the Audit, provided, however, that Tenant’s right, if any, to exercise its Audit Right for any subject year shall expire sixty (60) days after the delivery furnishes to Tenant of the Direct Expense Statement an audit report for the calendar yearyear in question prepared by an independent certified public accounting firm of recognized national standing (whether originally prepared for Landlord or another party). This paragraph shall not be construed to limit, suspend, or axxxx Tenant’s obligation to pay Rent when due, including the last year of the Lease Term, which Tenant desires to audit and, unless such right is exercised prior to such time, Tenant shall have waived its right to request such an Auditestimated Excess Operating Expenses. Landlord shall make said books credit any overpayment determined by the final approved audit report against the next Rent due and records relevant to owing by Tenant or, if no further Rent is due, refund such Audit available overpayment directly to Tenant during Landlord’s customary business hours at the office within 30 days of the property manager of the Project or at such other location designated by Landlord in writing.
(ii) Tenant shall pay all reasonable and necessary third party out-of-pocket costs for the Audit, including, without limitation, all of Landlord’s costs and expenses, including reasonable attorney and accountant fees.
(iii) The Audit shall only be conducted by a reputable accounting firm (“Accounting Firm”) approved in writing by Landlorddetermination. As a condition precedent to any such Audit, Tenant shall deliver to Landlord a copy of Tenant’s written agreement with such Accounting Firm, which agreement shall include provisions which state that: (A) Landlord is an intended third-party beneficiary of such agreement, (B) such Accounting Firm is not being engaged as a contingency or other incentive based auditor; (C) such Accounting Firm will not in any manner solicit or agree to represent any other tenant of the Project with respect to an audit or other review of Landlord’s accounting records at the Project, and (D) such Accounting Firm shall maintain in strict confidence any and all information obtained in connection with the Audit and shall not disclose such information to any person or entity other than to the management personnel of Tenant. The Accounting Firm, Landlord and Tenant shall enter into a confidentiality agreement in form and substance acceptable to Landlord whereby the Accounting Firm and Tenant shall covenant, among other things, that the Accounting Firm and the Tenant shall keep the books and records of Landlord in strict confidence.
(iv) In the event that the amount of Direct Expenses paid by Tenant to Landlord exceed the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, and after such Audit is confirmed and accepted by Landlord, in Landlord’s reasonable discretion, such difference shall be applied to the next succeeding payment of Direct Expenses due by Tenant to Landlord. In the event that the amount of Direct Expenses paid by Tenant to Landlord is less than the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the AuditLikewise, Tenant shall pay such difference to Landlord any underpayment determined by the final approved audit report within ten (10) 30 days of such determination.
(v) Nothing contained herein . The foregoing obligations shall survive the Expiration Date. If Tenant does not give written notice of its election to audit Landlord’s Operating Expenses during the Audit Election Period, Landlord’s Operating Expenses for the applicable calendar year shall be construed as providing deemed approved for all purposes, and Tenant with any shall have no further right to review or option to examine any other books and records of Landlord or any of Landlord’s affiliated entities. Notwithstanding anything to contest the contrary contained herein, the Audit Right granted herein is personal to the originally named Tenant, shall be exercisable only by such originally named Tenant and may not be assigned or exercised by any assignee, sublessee or transferee of Tenant’s interest in this Lease or any successor in interest to Tenant.same.12
Appears in 1 contract
Samples: Office Lease (Gainsco Inc)
Audit Rights. (i) Provided that no Event of Default has occurred, Tenant Each party shall have the right to have mutually ------------ acceptable independent CPA auditors (“Audit Right”which auditors shall not be compensated on a contingency basis and shall be bound to keep all information confidential except as necessary to disclose discrepancies to the auditing party) to, one time per calendar year during audit and * CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO CERTAIN INFORMATION CONTAINED IN THIS EXHIBIT. THROUGHOUT THIS EXHIBIT CONFIDENTIAL PORTIONS HAVE BEEN OMITTED FROM THE PUBLIC FILING AND HAVE BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. analyze the Lease Term, audit Landlord’s other party's relevant accounting records and books used by Landlord in determining to ensure compliance with the amount of Direct Expenses Tenant is obligated to pay to Landlord for the sole purpose of verifying the accuracy of same (the “Audit”)other party's payment obligations under this Section 6. Any Audit such audit shall cover only one (1) calendar year during the Term of the Lease. Tenant shall provide Landlord at least be permitted within thirty (30) days prior of receipt by the audited party of a written notice requesting request from the Auditauditing party to audit, during normal business hours, at a time mutually agreed upon; provided, however, that Tenant’s rightno audit of ICQ's accounting records may be conducted during the months of June through September. The cost of such an audit shall be borne by the auditing party unless a material discrepancy is found, if any, to exercise its Audit Right for any subject year shall expire sixty (60) days after in which case the delivery to Tenant cost of the Direct Expense Statement for audit shall be borne by the calendar year, including the last year audited party. A discrepancy shall be deemed material if it involves a payment or adjustment of more than five percent (5%) of the Lease Termamount actually due from the audited party in any given quarterly period. Neither party shall be audited more frequently than annually. Audits shall not interfere unreasonably with the audited party's business activities and shall be conducted in the audited party's facilities during normal business hours, which Tenant desires to at a time mutually agreed upon. An audit and, unless such right is exercised prior to such time, Tenant shall have waived its right to request such an Audit. Landlord shall make said books may cover any period; provided that: (i) the period has not been previously audited; and records relevant to such Audit available to Tenant during Landlord’s customary business hours at the office of the property manager of the Project or at such other location designated by Landlord in writing.
(ii) Tenant shall pay all reasonable and necessary third party out-of-pocket costs for the Audit, including, without limitation, all of Landlord’s costs and expenses, including reasonable attorney and accountant fees.
(iii) The Audit shall only be conducted by period under audit is within a reputable accounting firm (“Accounting Firm”) approved in writing by Landlord. As a condition precedent to any such Audit, Tenant shall deliver to Landlord a copy of Tenant’s written agreement with such Accounting Firm, which agreement shall include provisions which state that: (A) Landlord is an intended third-party beneficiary of such agreement, (B) such Accounting Firm is not being engaged as a contingency or other incentive based auditor; (C) such Accounting Firm will not in any manner solicit or agree to represent any other tenant three year period immediately preceding the commencement of the Project with respect to an audit or other review of Landlord’s accounting records at the Project, and (D) such Accounting Firm shall maintain in strict confidence any and all information obtained in connection with the Audit and shall not disclose such information to any person or entity other than to the management personnel of Tenantaudit. The Accounting Firm, Landlord and Tenant audited party shall enter into a confidentiality agreement in form and substance acceptable to Landlord whereby promptly reimburse the Accounting Firm and Tenant shall covenant, among other things, that the Accounting Firm and the Tenant shall keep the books and records of Landlord in strict confidence.
(iv) In the event that auditing party for the amount of Direct Expenses paid by Tenant to Landlord exceed the actual amount any discrepancy arising out of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, and after such Audit is confirmed and accepted by Landlord, in Landlord’s reasonable discretion, such difference shall be applied to the next succeeding payment of Direct Expenses due by Tenant to Landlord. In the event audit which indicates that the amount auditing party is owed amounts hereunder as well as the costs of Direct Expenses paid by Tenant to Landlord is less than the actual amount of Direct Expenses owed by Tenant to Landlord audit, if applicable, as disclosed by the Audit, Tenant shall pay such difference to Landlord within ten (10) days of such determinationprovided above.
(v) Nothing contained herein shall be construed as providing Tenant with any right or option to examine any other books and records of Landlord or any of Landlord’s affiliated entities. Notwithstanding anything to the contrary contained herein, the Audit Right granted herein is personal to the originally named Tenant, shall be exercisable only by such originally named Tenant and may not be assigned or exercised by any assignee, sublessee or transferee of Tenant’s interest in this Lease or any successor in interest to Tenant.
Appears in 1 contract
Audit Rights. (i) Provided that no Event At the request of Default has occurred, Tenant shall have the right (“Audit Right”) to, one at any time per calendar year during the Lease Term, audit Landlord’s records and books used by Landlord in determining the amount of Direct Expenses Tenant is obligated to pay to Landlord for the sole purpose of verifying the accuracy of same (the “Audit”). Any Audit shall cover only one (1) calendar year during the Term of the Lease. Tenant shall provide Landlord at least thirty (30) days prior written notice requesting the Audit, provided, however, that Tenant’s right, if any, to exercise its Audit Right for any subject year shall expire within sixty (60) days after Landlord delivers the delivery Total Operating Cost Statement to Tenant of the Direct Expense Statement for the calendar year, including the last year of the Lease Term, which Tenant desires to audit and, unless such right is exercised prior to such timeTenant, Tenant (at Tenant’s expense) shall have waived its the right to request such an Audit. Landlord shall make said examine Landlord’s books and records relevant applicable to Total Operating Costs for such Audit available year. Such right to Tenant examine Landlord’s records shall be exercisable: (i) upon reasonable advance notice to Landlord and at reasonable times during Landlord’s customary business hours at the office of the property manager of the Project or at such other location designated by Landlord in writing.
hours; (ii) Tenant shall pay all reasonable and necessary third party outonly during the sixty-of-pocket costs for the Audit, including, without limitation, all day period following Tenant’s receipt of Landlord’s costs statement of the actual amount of Total Operating Costs for the applicable calendar year; and expenses, including reasonable attorney and accountant fees.
(iii) The Audit shall only be conducted by a reputable accounting firm (“Accounting Firm”) approved in writing by Landlordnot more than once each calendar year. As a condition precedent to any such Audit, Tenant shall deliver to Landlord a copy of At Tenant’s written agreement with option, the audit may be performed by Tenant’s in house accountant, and if such Accounting Firm, which agreement shall include provisions which state that: (A) Landlord is an intended third-party beneficiary of such agreement, (B) such Accounting Firm is not being engaged as a contingency or other incentive based auditor; (C) such Accounting Firm will not in accountant finds any manner solicit or agree to represent any other tenant of inconsistencies between the Project with respect to an audit or other Total Operating Cost Statement and its review of Landlord’s accounting records at the Project, books and (D) such Accounting Firm shall maintain in strict confidence any and all information obtained in connection with the Audit and shall not disclose such information to any person or entity other than to the management personnel of Tenant. The Accounting Firmrecords, Landlord and Tenant shall enter into a confidentiality agreement in form discuss and substance acceptable attempt to resolve any issues raised by such Tenant’s accountant within the thirty (30) day period following the conclusion of such accountant’s review. If after thirty (30) days Landlord whereby the Accounting Firm and Tenant shall covenanthave not resolved such issues, among other thingsat Tenant’s option, Tenant, at Tenant’s cost, may engage an independent certified public accountant (that the Accounting Firm and the Tenant shall keep the books and records of Landlord in strict confidence.
(iv) In the event that the amount of Direct Expenses paid by Tenant to Landlord exceed the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Auditis not compensated on a contingency basis, and after with which Tenant has not had any business relationship within the five (5) year period preceding the time of such Audit is confirmed review, and accepted who has been reasonably approved by Landlord, in Landlord’s reasonable discretion, such difference ) to conduct an audit of Total Operating Costs (which shall be applied to completed within the next succeeding payment of Direct Expenses due by Tenant to Landlordsixty (60) day time period referenced above, and otherwise in accordance with the terms hereof). In If the event that the amount of Direct Expenses paid by Tenant to Landlord is less than the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, Tenant shall pay such difference to Landlord within ten (10) days of such determination.
(v) Nothing contained herein shall be construed as providing Tenant with any right or option to examine any other books and records of Landlord or any of Landlord’s affiliated entities. Notwithstanding anything to the contrary contained herein, the Audit Right granted herein is personal to the originally named Tenant, shall be exercisable only audit conducted by such originally named Tenant and may not be assigned or exercised by any assigneeindependent certified public accountant indicates that certain items were improperly included in Total Operating Costs, sublessee or transferee of Tenant’s interest in this Lease or any successor in interest then Landlord shall, within thirty (30) days, refund the overage to Tenant.
Appears in 1 contract
Samples: Lease Agreement (Urologix Inc)
Audit Rights. (i) Provided that Landlord agrees to maintain complete and accurate records of all costs, expenses and disbursements which are incurred by Landlord, its employees, agents and/or contractors, with respect to Operating Expenses for the Project and the constituent components thereof. Tenant and/or its employees or a nationally recognized CPA firm, at Tenant's sole cost and expense and with no Event of Default has occurredcontingency fee, Tenant shall have the right to perform an audit of Landlord's books and records pertaining to Operating Expenses, subject, however, to the following conditions: (“Audit Right”a) to, one time per an audit may not be conducted for any calendar year during the Lease Termpreceding 2006, audit Landlord’s records and books used by Landlord in determining the amount of Direct Expenses Tenant is obligated to pay to Landlord for the sole purpose of verifying the accuracy of same (the “Audit”). Any Audit shall cover only one (1b) no calendar year during the Term of the Lease. may be audited more than once, (c) Tenant shall provide have no right to audit any calendar year if the audit is to be commenced more than two (2) years after the end of such calendar year, (d) no such audit may be conducted unless Landlord receives at least thirty (30) days prior written notice requesting setting forth the Auditproposed dates for the audit and the year or years for which the audit will be conducted, providedand (e) the activities of the auditor shall be conducted in an area designated by Landlord within the continental United States and then only during normal business hours. Landlord agrees to reimburse Tenant for the professional or accounting costs and expenses incurred by Tenant in connection with any such inspection and/or audit conducted by or for Tenant, but only if said inspection and/or audit shall prove that Operating Expenses for the period of time covered by such inspection and/or audit shall have been overstated by five percent (5%) or more. The right of Tenant to audit and any audit by Tenant of Landlord's books and records pertaining to Operating Expenses shall not affect the obligation of Tenant to pay, in accordance with the terms hereof, estimated Additional Rent subject, however, that Tenant’s right, if any, to exercise Landlord's reimbursement and/or reconciliation obligations set forth herein. Tenant and its Audit Right for any subject year authorized representatives shall expire sixty (60) days after the delivery to Tenant of the Direct Expense Statement for the calendar year, including the last year of the Lease Term, which Tenant desires to audit and, unless such right is exercised prior to such time, Tenant shall have waived its right to request such an Audit. Landlord shall make said books and records relevant to such Audit available to Tenant during Landlord’s customary business hours at the office of the property manager of the Project or at such other location designated by Landlord in writing.
(ii) Tenant shall pay all reasonable and necessary third party out-of-pocket costs for the Audit, including, without limitation, all of Landlord’s costs and expenses, including reasonable attorney and accountant fees.
(iii) The Audit shall only be conducted by a reputable accounting firm (“Accounting Firm”) approved in writing by Landlord. As a condition precedent to keep any such Auditaudit confidential and shall sign appropriate confidentiality agreements except as such disclosure is required by judicial proceedings or compliance with regulatory requirements or as necessary for Tenant's attorneys, Tenant shall deliver to Landlord a copy of accountants, employees and consultants in undertaking such audit and performing Tenant’s written agreement with such Accounting Firm's usual business, which agreement shall include provisions which state that: (A) Landlord is an intended third-party beneficiary but any disclosure of such agreement, (B) such Accounting Firm audit to another tenant or sublessee in the Complex is not being engaged as a contingency or other incentive based auditor; (C) such Accounting Firm will not in any manner solicit or agree to represent any other tenant of the Project with respect to an audit or other review of Landlord’s accounting records at the Project, and (D) such Accounting Firm shall maintain in strict confidence any and all information obtained in connection with the Audit and shall not disclose such information to any person or entity other than to the management personnel of Tenantprohibited. The Accounting Firm, Landlord and Tenant shall enter into a confidentiality agreement in form and substance acceptable to Landlord whereby the Accounting Firm and Tenant shall covenant, among other things, that the Accounting Firm and the Tenant shall keep the books and records of Landlord in strict confidence.
(iv) In the event that the amount of Direct Expenses paid by Tenant to Landlord exceed the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, and after such Audit is confirmed and accepted by Landlord, in Landlord’s reasonable discretion, such difference shall be applied to the next succeeding payment of Direct Expenses due by Tenant to Landlord. In the event that the amount of Direct Expenses paid by Tenant to Landlord is less than the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, Tenant shall pay such difference to Landlord within ten (10) days of such determination.
(v) Nothing contained herein shall be construed as providing Tenant with any right or option to examine any other books and records of Landlord or any of Landlord’s affiliated entities. Notwithstanding anything to the contrary contained herein, the Audit Right granted herein is personal to the originally named Tenant, shall be exercisable only by such originally named Tenant and may not be assigned or exercised by any assignee, sublessee or transferee of Tenant’s interest in this Lease or any successor in interest to Tenant.ARTICLE
Appears in 1 contract
Samples: Agreement to Sell and Purchase (Sabre Holdings Corp)
Audit Rights. (i) Provided that no Event of Default has occurred, Tenant AccuMed shall have the right to have periodic audits of Licensee performed on not less than fifteen (“Audit Right”15) to, one time per calendar year during the Lease Term, audit Landlord’s records and books used days' advance written notice by Landlord in determining the amount of Direct Expenses Tenant is obligated AccuMed to pay to Landlord Licensee for the sole purpose purposes of verifying royalty payments under this Agreement. AccuMed shall be permitted to perform such audits not more often than once in any calendar year. AccuMed may, in its discretion, retain the accuracy services of same an independent certified public accountant to perform any such audit. AccuMed shall pay for the services of any such independent certified public accountant, except as provided in this Section below. AccuMed will notify Licensee if AccuMed's independent certified public accountant determines that Licensee has understated the royalties due AccuMed by five percent (the “Audit”5%) or more over a calendar quarter (a "Royalty Understatement"). Any Audit shall cover only one If Licensee notifies AccuMed within fifteen (1) calendar year during the Term of the Lease. Tenant shall provide Landlord at least thirty (30) days prior written notice requesting the Audit, provided, however, that Tenant’s right, if any, to exercise its Audit Right for any subject year shall expire sixty (60) days after the delivery to Tenant of the Direct Expense Statement for the calendar year, including the last year of the Lease Term, which Tenant desires to audit and, unless such right is exercised prior to such time, Tenant shall have waived its right to request such an Audit. Landlord shall make said books and records relevant to such Audit available to Tenant during Landlord’s customary business hours at the office of the property manager of the Project or at such other location designated by Landlord in writing.
(ii) Tenant shall pay all reasonable and necessary third party out-of-pocket costs for the Audit, including, without limitation, all of Landlord’s costs and expenses, including reasonable attorney and accountant fees.
(iii) The Audit shall only be conducted by a reputable accounting firm (“Accounting Firm”) approved in writing by Landlord. As a condition precedent to any such Audit, Tenant shall deliver to Landlord a copy of Tenant’s written agreement with such Accounting Firm, which agreement shall include provisions which state that: (A) Landlord is an intended third-party beneficiary of such agreement, (B) such Accounting Firm is not being engaged as a contingency or other incentive based auditor; (C) such Accounting Firm will not in any manner solicit or agree to represent any other tenant of the Project with respect to an audit or other review of Landlord’s accounting records at the Project, and (D) such Accounting Firm shall maintain in strict confidence any and all information obtained in connection with the Audit and shall not disclose such information to any person or entity other than to the management personnel of Tenant. The Accounting Firm, Landlord and Tenant shall enter into a confidentiality agreement in form and substance acceptable to Landlord whereby the Accounting Firm and Tenant shall covenant, among other things, that the Accounting Firm and the Tenant shall keep the books and records of Landlord in strict confidence.
(iv) In the event that the amount of Direct Expenses paid by Tenant to Landlord exceed the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, and after such Audit is confirmed and accepted by Landlord, in Landlord’s reasonable discretion, such difference shall be applied to the next succeeding payment of Direct Expenses due by Tenant to Landlord. In the event that the amount of Direct Expenses paid by Tenant to Landlord is less than the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, Tenant shall pay such difference to Landlord within ten (1015) days of such determination.
notice that Licensee's own independent certified public accountant disputes the determination of AccuMed's certified public accountant as to any Royalty Understatement (v) Nothing contained herein a "Licensee Dispute Notice"), then the parties shall mutually designate a third independent certified public accountant to audit the royalty payments hereunder. The determination of such third accountant shall be construed binding on the parties. If Licensee does not make a Licensee Dispute Notice or if any such third accountant also determines that there has been a Royalty Understatement, then Licensee shall pay to AccuMed, within fifteen (15) days after notice of a Royalty Understatement by AccuMed or such third accountant, as providing Tenant with any right or option to examine any other books and records applicable, (i) the balance of Landlord or any of Landlord’s affiliated entities. Notwithstanding anything to the contrary contained hereinsuch Royalty Understatement as determined by AccuMed's accountant, the Audit Right granted herein but if there is personal to the originally named Tenanta third accountant, shall be exercisable only as determined by such originally named Tenant third accountant, (ii) a penalty fee equal to five percent (5%) of any such Royalty Understatement plus interest thereon at a rate equal to one percent (1%) per month or such lesser amount as required by law, computed from the day on which such royalties were due and may owing to AccuMed, and (iii) the reasonable fees of AccuMed's accountant for its services and, if applicable, any third accountant for its services. If any such third accountant determines that there has not be assigned or exercised by any assigneebeen a Royalty Understatement, sublessee or transferee then AccuMed shall pay the reasonable fees for the services of Tenant’s interest in this Lease or any successor in interest to Tenantsuch third accountant.
Appears in 1 contract
Samples: Patent and Technology License and Registration Rights Agreement (Accumed International Inc)
Audit Rights. (i) Provided that Tenant has paid the amounts set forth in an Annual Statement and no Event of Default (as hereinafter defined) is outstanding under this Lease, Tenant has occurredgiven timely written to notice of objection to Landlord as required under Section 3 above (“Tenant’s Audit Notice”), then Tenant may, upon 30 days’ prior written notice to Landlord, examine Landlord’s books and records pertaining to Operating Expenses covered by the disputed Annual Statement (an “Audit”), provided that: (i) the Audit shall not be conducted by a person or entity being compensated on a percentage of recovery or other contingency fee basis, (ii) the Audit will be conducted during Landlord’s regular business hours at the office where Landlord maintains Operating Expenses records (or Landlord shall provide Tenant with electronic copies of such records), (iii) Tenant agrees to maintain any books and records obtained from Landlord and the results of any review or audit performed in accordance with this provision confidential, and will not disclose such information except to its consultants performing the review/audit, its lawyers, and accountants, and consultants, and Tenant shall inform such parties of the confidential nature of such information; provided that such information may be disclosed in connection with any judicial or administrative proceeding; when such information is subpoenaed or otherwise required by law or a court order; in connection with any litigation concerning the rights and obligations of the parties; or to any governmental or quasi-governmental agency, or as to any information which becomes generally available to the public, except as a result of a disclosure by either party in violation of this provision, and (iv) the Audit must be completed within 120 days after the date of Tenant’s Audit Notice, pertain to only that Annual Statement and be conducted no more than once per year. Notwithstanding the foregoing, Tenant may defer its Audit of Operating Expenses for the Base Year until its first Audit of Operating Expenses for any Adjustment Year. Within thirty (30) days after Tenant's Audit Notice, Landlord shall afford Tenant or any of Tenant’s employees or consultants designated by Tenant, full access to such documents (including documents which may be stored in an electronic medium) as are in Landlord's possession or control (whether or not such documents are located in the Building) and which are necessary to conduct the audit including, without limitation, canceled checks, invoices, and such other documents as may be reasonably requested by Tenant, all of which documents shall be maintained in accordance with GAAP. In the event that it is ultimately determined that Landlord has overcharged any amount paid by Tenant in respect of Operating Expenses for which a refund would be due Tenant which exceeds five percent (5%) of the total so paid by Tenant for an Adjustment Year and Tenant has not previously conducted an Audit for two (2) years preceding the Adjustment Year for which the Audit is being conducted, Tenant shall have the right (“to conduct an Audit Right”) tofor any prior Adjustment Years for which Tenant had not previously conducted an Audit to determine whether refunds are due for any such prior Adjustment Years. Landlord shall reasonably cooperate with Tenant as to facilitate the performance of Tenant's Audit. If Landlord and Tenant determine that Operating Expenses are more or less than reported, one time per calendar year during Tenant shall promptly pay the Lease Termdifference to Landlord, audit Landlord’s records and books used by or Landlord shall promptly pay to Tenant, or provide Tenant with a credit against future Rent in determining the amount of Direct Expenses the difference, as the case may be; provided, that if the Lease has expired or terminated, Landlord shall promptly refund such overpayment to Tenant. Tenant is obligated to pay to shall reimburse Landlord for the sole purpose actual and reasonable costs of verifying photocopying or transferring to digital media any books and records requested by Tenant in an amount equal to the accuracy actual cost charged to Landlord by third party copy services or $.25 per page should the copies be made with Landlord’s photocopying equipment. If it is finally determined that the disputed Annual Statement contains an error in excess of same five percent (the “Audit”). Any Audit shall cover only one (15%) calendar year during the Term of the Leasetotal amount of the amount set forth in the Annual Statement, Landlord shall pay Tenant’s reasonable out of pocket costs and expenses to conduct the Audit. Tenant shall provide Landlord at least If the parties cannot resolve any dispute as to Operating Expenses within thirty (30) days prior written notice requesting after Tenant submits the Audit, provided, however, that Tenant’s right, if any, results of an Audit to exercise its Audit Right for any subject year shall expire sixty (60) days after the delivery to Tenant of the Direct Expense Statement for the calendar year, including the last year of the Lease Term, which Tenant desires to audit and, unless such right is exercised prior to such time, Tenant shall have waived its right to request such an Audit. Landlord shall make said books and records relevant to such Audit available to Tenant during Landlord’s customary business hours at the office of the property manager of the Project or at such other location designated by Landlord in writing.
(ii) Tenant shall pay all reasonable and necessary third party out-of-pocket costs for the Audit, including, without limitation, all of Landlord’s costs and expenses, including reasonable attorney and accountant fees.
(iii) The Audit shall only be conducted by a reputable accounting firm (“Accounting Firm”) approved in writing by Landlord. As a condition precedent to any such Audit, Tenant shall deliver to Landlord a copy of Tenant’s written agreement with such Accounting Firm, which agreement shall include provisions which state that: (A) Landlord is an intended third-party beneficiary of such agreement, (B) such Accounting Firm is not being engaged as a contingency or other incentive based auditor; (C) such Accounting Firm will not in any manner solicit or agree to represent any other tenant of the Project with respect to an audit or other review of Landlord’s accounting records at the Project, and (D) such Accounting Firm shall maintain in strict confidence any and all information obtained in connection with the Audit and shall not disclose such information to any person or entity other than to the management personnel of Tenant. The Accounting Firm, Landlord and Tenant shall enter into a confidentiality agreement in form and substance acceptable to Landlord whereby the Accounting Firm and Tenant shall covenant, among other things, that the Accounting Firm and the Tenant shall keep the books and records of Landlord in strict confidence.
(iv) In the event that the amount of Direct Expenses paid by Tenant to Landlord exceed the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, and after such Audit is confirmed and accepted by Landlord, in Landlord’s reasonable discretion, the such difference dispute shall be applied submitted to the next succeeding payment of Direct Expenses due by Tenant to Landlord. In the event that the amount of Direct Expenses paid by Tenant to Landlord is less than the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, Tenant shall pay such difference to Landlord arbitration within ten (10) days after the expiration of such determination.
thirty (v30) Nothing contained herein day period and shall be construed as providing Tenant settled in accordance with the Commercial Arbitration Rules of the American Arbitration Association then in force with the following exceptions: There shall be a single arbitrator selected by the American Arbitration Association. The arbitrator shall have at least ten years’ experience in accounting and the supervision of the operation and management of Comparable Buildings, and shall not have been previously retained by either party or their respective affiliates. The determination of the arbitrator shall be final, binding, and conclusive on all the parties, and judgment may be rendered on it by any right or option to examine any other books and records court having jurisdiction, upon application of either Landlord or any Tenant. In the event that it is finally determined, by settlement or arbitration, that Tenant overpaid Operating Expenses for the Adjustment Year(s) which are the subject of Landlord’s affiliated entitiesdispute, then Landlord shall within thirty (30) days after such final determination, refund such amount, together with interest thereon at the Interest Rate, provided that if Landlord fails to refund such amount to Tenant within such thirty (30) days, then Tenant may offset the amount of the overpayment as finally determined by settlement or arbitration (including interest) against Rent coming due under the Lease until the unpaid amounts are refunded in full. Notwithstanding anything The fees and expenses of the arbitration shall be shared equally by the parties; provided, however, that if it is finally determined (through settlement or arbitration) that the Annual Statement with respect to the contrary contained herein, the Audit Right granted herein is personal to the originally named Tenant, shall be exercisable only by such originally named Tenant and may not be assigned or exercised by any assignee, sublessee or transferee Adjustment Year(s) in question is/are greater than one hundred five percent (105%) of Tenant’s interest in this Lease or liability for Operating Expenses for such Adjustment Year(s), Landlord shall also be solely responsible for any successor in interest fees and expenses that are payable to Tenantthe arbitrator. Each party shall pay its own attorney’s fees and costs.
Appears in 1 contract
Samples: Office Lease Agreement (Twinlab Consolidated Holdings, Inc.)
Audit Rights. Upon written notice to Landlord by Tenant (i) Provided that no Event of Default has occurredthe “Audit Notice”), Tenant shall have the right to audit (the “Audit RightAudit”) toLandlord’s books, one time per accounts and records relating to the Property Taxes, Insurance, Utilities and Operating Expenses for a particular calendar year during the Lease Term, audit Landlord’s records and books used by Landlord in determining the amount of Direct Expenses Tenant is obligated to pay to Landlord for the sole purpose of verifying Landlord’s calculation of the accuracy amount of same Tenant’s Pro Rata Share of Property Taxes, Insurance, Utilities and Operating Expenses for that calendar year. If Tenant wishes to Audit the Landlord’s books, accounts and records relating to Property Taxes, Insurance, Utilities and Operating Expenses for a particular calendar year, then Tenant must deliver Tenant’s Audit Notice within nine (9) months after Tenant’s receipt of Landlord’s annual statement of Tenant’s Pro Rata Share of the actual Property Taxes, Insurance, Utilities and Operating Expenses for that calendar year as contemplated herein (the “AuditStatements”). Any Tenant must: (i) complete Tenant’s Audit, and (ii) send any written exceptions to the Statements to Landlord, within ninety (90) days after Landlord provides Tenant with full access to its books, accounts and records. Landlord shall provide Tenant access to its books, accounts and records at all reasonable times and in a reasonable manner at a location where Landlord’s books, accounts and records are kept in the normal course of business. The Audit shall cover only one (1) calendar year during be at Tenant’s sole cost and expense, except as hereinafter provided. In the Term event the Audit reveals an overpayment by Tenant of Tenant’s Pro Rata Share of the Leaseactual Property Taxes, Insurance, Utilities and Operating Expenses for that calendar year, such overpayment shall be credited to the next installment of Rent becoming due under the Lease (provided, if the Lease has expired or terminated, Landlord shall refund to Tenant the amount of the overpayment by direct reimbursement). Tenant shall provide Landlord at least thirty (30) days prior written notice requesting Pending the conclusion of the Audit, providedTenant shall timely pay to Landlord, howeverwithin the timeframes set forth herein, any and all amounts that are set forth on Landlord’s annual Statements as being payable by Tenant’s right. In the event the Audit, if anyreveals an overpayment by Tenant in excess of four percent (4%), to exercise its Audit Right for any subject year Landlord shall expire sixty (60) days after the delivery reimburse to Tenant of the Direct Expense Statement for the calendar year, including the last year of the Lease Term, which Tenant desires to audit and, unless such right is exercised prior to such time, Tenant shall have waived its right to request such an Audit. Landlord shall make said books and records relevant to such Audit available to Tenant during Landlord’s customary business hours at the office of the property manager of the Project or at such other location designated by Landlord in writing.
(ii) Tenant shall pay all reasonable and necessary third party out-of-pocket costs for the Audit, including, without limitation, all of Landlord’s costs and expenses, including reasonable attorney and accountant fees.
(iii) The Audit shall only be conducted incurred by a reputable accounting firm (“Accounting Firm”) approved in writing by Landlord. As a condition precedent to any Tenant associated with such Audit, . Tenant shall deliver to Landlord a copy of Tenant’s written agreement with such Accounting Firm, which agreement shall include provisions which state that: (A) Landlord is an intended third-party beneficiary of such agreement, (B) such Accounting Firm is not being engaged as a contingency or other incentive based auditor; (C) such Accounting Firm will not in any manner solicit or agree to represent any other tenant of the Project with respect to an audit or other review of Landlord’s accounting records at the Projectshall, and (D) such Accounting Firm shall cause its consultants, employees, agents and representatives to, maintain the confidentiality of any information set forth in strict confidence any the books, accounts and all information obtained records reviewed in connection with the Audit and shall not disclose such information to any person or entity other than to the management personnel of Tenant. The Accounting Firm, Landlord and Tenant shall enter into a confidentiality agreement in form and substance acceptable to Landlord whereby the Accounting Firm and Tenant shall covenant, among other things, that the Accounting Firm and the Tenant shall keep the books and records of Landlord in strict confidenceAudit.
(iv) In the event that the amount of Direct Expenses paid by Tenant to Landlord exceed the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, and after such Audit is confirmed and accepted by Landlord, in Landlord’s reasonable discretion, such difference shall be applied to the next succeeding payment of Direct Expenses due by Tenant to Landlord. In the event that the amount of Direct Expenses paid by Tenant to Landlord is less than the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, Tenant shall pay such difference to Landlord within ten (10) days of such determination.
(v) Nothing contained herein shall be construed as providing Tenant with any right or option to examine any other books and records of Landlord or any of Landlord’s affiliated entities. Notwithstanding anything to the contrary contained herein, the Audit Right granted herein is personal to the originally named Tenant, shall be exercisable only by such originally named Tenant and may not be assigned or exercised by any assignee, sublessee or transferee of Tenant’s interest in this Lease or any successor in interest to Tenant.
Appears in 1 contract
Samples: Lease (Ener1 Inc)
Audit Rights. Without limiting the generality of Section 2.10 and in addition thereto, Cronos or its professional accountant representatives, upon thirty (i30) Provided that no Event of Default has occurreddays’ prior written notice to Ginkgo, Tenant shall have the right right, from time to time and during regular business hours and for a duration not exceeding two (“Audit Right”2) to, one time per calendar year Business Days during the Lease TermTerm of this Agreement, but no more than once in any rolling twelve (12)-month period and once following the termination of this Agreement (notwithstanding the foregoing twelve (12)-month restriction), to audit Landlord’s records Ginkgo's performance with respect to the delivery of the Technical Services and books used by Landlord in determining the amount of Direct Expenses Tenant is obligated amounts charged pursuant to pay to Landlord for the sole purpose of verifying the accuracy of same its invoices (the each, an “Audit”). Any Audit shall cover only one (1) calendar year during the Term of the Lease. Tenant shall provide Landlord at least thirty (30) days prior written notice requesting the , and, as reasonably necessary to perform such Audit, providedGinkgo shall allow reasonable access by Cronos, howeverits Affiliates and its and their respective representatives to Ginkgo's and its Affiliates’ (solely to the extent such Affiliate has provided Technical Services to Cronos) facilities, that Tenant’s right, if any, to exercise its Audit Right for any subject year shall expire sixty (60) days after the delivery to Tenant of the Direct Expense Statement for the calendar year, including the last year of the Lease Term, which Tenant desires to audit and, unless such right is exercised prior to such time, Tenant shall have waived its right to request such an Audit. Landlord shall make said books and records relevant to the delivery of such Technical Services and personnel in charge of audits. Ginkgo will use commercially reasonable efforts to enable access to Ginkgo's Subcontractors' books and records. In the event of an Audit, (a) Cronos shall prepare and deliver to Ginkgo a reasonably detailed written statement documenting its findings, and in the event an Audit available reveals a discrepancy in the amounts paid by Cronos to Tenant during LandlordGinkgo from what was actually required to be paid, Cronos shall prepare and deliver to Ginkgo a reasonably detailed written statement documenting such discrepancy and any calculations performed in connection with the discovery of such discrepancy (each, an “Audit Statement”) and (b) Cronos shall permit Ginkgo, its Affiliates and its and their respective representatives to review Cronos’ and its representatives’ and Affiliates’ working papers relating to the Audit and preparation of any Audit Statement for fifteen (15) Business Days upon Ginkgo’s customary business hours at request therefor. Following Ginkgo’s review and confirmation that the office Audit was performed properly and to its satisfaction and, if applicable, that the Audit Statement is materially accurate, Ginkgo shall refund Cronos such overpayment, or Cronos shall reimburse Ginkgo for such underpayment, as applicable. The costs of the property manager of Audit shall be borne by Cronos, unless the Project or at Audit evidences a difference above five percent (5%) between the reported figures by Ginkgo and those which result from such other location designated by Landlord Audit, in writing.
(ii) Tenant shall pay all which event such reasonable and necessary third party actually incurred out-of-pocket costs for the Audit, including, without limitation, all of Landlord’s costs and expenses, including reasonable attorney and accountant fees.
(iii) The such Audit shall only be conducted borne by a reputable accounting firm (“Accounting Firm”) approved in writing Ginkgo. Any information disclosed to or learned by Landlord. As a condition precedent to any such AuditCronos, Tenant shall deliver to Landlord a copy of Tenant’s written agreement with such Accounting Firmits Affiliates, which agreement shall include provisions which state that: (A) Landlord is an intended third-party beneficiary of such agreement, (B) such Accounting Firm is not being engaged as a contingency or other incentive based auditor; (C) such Accounting Firm will not in any manner solicit or agree to represent any other tenant of the Project with respect to an audit or other review of Landlord’s accounting records at the Project, and (D) such Accounting Firm shall maintain in strict confidence any and all information obtained its representatives in connection with the any Audit and shall not disclose such information pursuant to any person or entity other than to the management personnel of Tenant. The Accounting Firm, Landlord and Tenant shall enter into a confidentiality agreement in form and substance acceptable to Landlord whereby the Accounting Firm and Tenant shall covenant, among other things, that the Accounting Firm and the Tenant shall keep the books and records of Landlord in strict confidence.
(iv) In the event that the amount of Direct Expenses paid by Tenant to Landlord exceed the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, and after such Audit is confirmed and accepted by Landlord, in Landlord’s reasonable discretion, such difference this Section 2.15 shall be applied to the next succeeding payment considered Confidential Information of Direct Expenses due by Tenant to Landlord. In the event that the amount of Direct Expenses paid by Tenant to Landlord is less than the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, Tenant shall pay such difference to Landlord within ten (10) days of such determination.
(v) Nothing contained herein shall be construed as providing Tenant with any right or option to examine any other books and records of Landlord or any of Landlord’s affiliated entities. Notwithstanding anything to the contrary contained herein, the Audit Right granted herein is personal to the originally named Tenant, shall be exercisable only by such originally named Tenant Ginkgo and may not be assigned or exercised by any assignee, sublessee or transferee of Tenant’s interest used only in this Lease or any successor in interest to Tenantconnection with such Audit.
Appears in 1 contract
Samples: Collaboration and License Agreement (Cronos Group Inc.)
Audit Rights. To the extend the Products supplied under these Terms and Conditions are private label Products, Vendor shall either (i) Provided provide XXX with evidence and full audit of its GFSI Audit Certification to the equivalent of SQF Level II compliance for each of Vendor’s location or (ii) before any Product ships and on an annual basis thereafter. Vendor shall allow XXX to audit any of the Vendor’s manufacturing facilities that have not been audited by XXX. On and on-going basis, Vendor’s facilities shall remain in good standing with SAL’s Quality Assurance group and will be subject to periodic on-site audits to ensure Vendor’s facilities remain compliant with SAL’s quality specifications governing production of Product for XXX and all applicable local, state and federal law and regulations. Notwithstanding anything herein to the contrary, continuation of this relationship is contingent upon Vendor’s ability to maintain quality standards and the successful passing of SAL’s periodic on-site audits. Xxxxx Foods Terms and Conditions (12/2018) XXX has the following expectations with respect to the shipment and delivery of any Product or Purchase Order:
(a) On-time deliveries must be a shared objective for Vendor and XXX.
(b) Unless otherwise specified in the Purchase Order, Vendor or their carrier shall schedule all inbound deliveries a minimum of [*****] hours in advance for grocery, general merchandise, frozen Products and dairy Products prior to the Purchase Order arrival date.
(c) Unless otherwise specified in the Purchase Order, Vendor or their carrier shall schedule all inbound deliveries a minimum of [*****] in advance hours for fresh meat and produce Products prior to the Purchase Order arrival date.
(d) All Purchase Orders must be delivered within the delivery window specified within the Purchase Order, unless otherwise necessitated and coordinated by the receiving distribution center.
(e) Vendor or their carrier may change or cancel their delivery appointments no Event earlier than [*****] hours prior to their scheduled delivery appointment, provided that any such change or cancellation must be made using SAL’S “C3 Dock Scheduling” system.
(f) Vendor or their carrier must be prepared to begin unloading their delivery [*****] hour prior to their scheduled delivery appointment.
(g) Any delivery appointment that is missed by less than [*****] hours (“LTF”), or any delivery made without an appointment (“DNA”) will either be received by the receiving distribution center or held over to the next receiving day, which shall be determined at the sole discretion of Default has occurredthe receiving distribution center. In the event of any LTF or DNA, Tenant Vendor or carrier shall not have the right to pursue any detention recovery against XXX.
(h) For purposes of the Save-A-Lot Delivery Appointment Policy, “delivery” shall be measured as of the time and date at which the driver completes any appiable check-in policies or processes dictated by the receiving distribution center, to include, where available, electronic check-in.
(i) XXX shall have the right (“Audit Right”) toto assess fines based upon the Fee Schedule below for deliveries made without an appointment, one time per calendar year during the Lease Termlate deliveries, audit Landlord’s records and books used by Landlord in determining the amount of Direct Expenses Tenant is obligated to pay to Landlord for the sole purpose of verifying the accuracy of same (the “Audit”). Any Audit shall cover only one (1) calendar year during the Term of the Lease. Tenant shall provide Landlord at least thirty (30) days prior written notice requesting the Audit, provided, however, that Tenant’s right, if any, to exercise its Audit Right for any subject year shall expire sixty (60) days after the delivery to Tenant of the Direct Expense Statement for the calendar year, including the last year of the Lease Term, which Tenant desires to audit and, unless such right is exercised prior to such time, Tenant shall have waived its right to request such an Audit. Landlord shall make said books and records relevant to such Audit available to Tenant during Landlord’s customary business hours at the office of the property manager of the Project or at such other location designated by Landlord in writingmissed deliveries.
(ii) Tenant shall pay all reasonable and necessary third party out-of-pocket costs for the Audit, including, without limitation, all of Landlord’s costs and expenses, including reasonable attorney and accountant fees.
(iii) The Audit shall only be conducted by a reputable accounting firm (“Accounting Firm”) approved in writing by Landlord. As a condition precedent to any such Audit, Tenant shall deliver to Landlord a copy of Tenant’s written agreement with such Accounting Firm, which agreement shall include provisions which state that: (A) Landlord is an intended third-party beneficiary of such agreement, (B) such Accounting Firm is not being engaged as a contingency or other incentive based auditor; (C) such Accounting Firm will not in any manner solicit or agree to represent any other tenant of the Project with respect to an audit or other review of Landlord’s accounting records at the Project, and (D) such Accounting Firm shall maintain in strict confidence any and all information obtained in connection with the Audit and shall not disclose such information to any person or entity other than to the management personnel of Tenant. The Accounting Firm, Landlord and Tenant shall enter into a confidentiality agreement in form and substance acceptable to Landlord whereby the Accounting Firm and Tenant shall covenant, among other things, that the Accounting Firm and the Tenant shall keep the books and records of Landlord in strict confidence.
(iv) In the event that the amount of Direct Expenses paid by Tenant to Landlord exceed the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, and after such Audit is confirmed and accepted by Landlord, in Landlord’s reasonable discretion, such difference shall be applied to the next succeeding payment of Direct Expenses due by Tenant to Landlord. In the event that the amount of Direct Expenses paid by Tenant to Landlord is less than the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, Tenant shall pay such difference to Landlord within ten (10) days of such determination.
(v) Nothing contained herein shall be construed as providing Tenant with any right or option to examine any other books and records of Landlord or any of Landlord’s affiliated entities. Notwithstanding anything to the contrary contained herein, the Audit Right granted herein is personal to the originally named Tenant, shall be exercisable only by such originally named Tenant and may not be assigned or exercised by any assignee, sublessee or transferee of Tenant’s interest in this Lease or any successor in interest to Tenant.
Appears in 1 contract
Audit Rights. (i) Provided To the extent that no Event Sublandlord has such rights under ------------ the Prime Lease, on reasonable advance notice and provided Subtenant is not in then in default beyond any applicable cure period, Sublandlord shall make available for a reasonable period of Default has occurredtime to Subtenant, Tenant shall have the right (“Audit Right”) to, one time per calendar year during the Lease Termninety (90) days following Subtenant's receipt from Sublandlord of the final statement of the Building operating expenses for a calendar year, audit Landlord’s Sublandlord's books and records and books used by Landlord in determining maintained with respect to the amount of Direct Expenses Tenant is obligated to pay to Landlord operating expenses for the sole applicable calendar year. Such audit shall be conducted only during regular business hours at the office where Sublandlord maintains expense records, and shall be conducted by an independent accounting firm. Subtenant shall use the information contained in Sublandlord's books and records solely for the purpose of verifying determining the accuracy of same (the “Audit”). Any Audit shall cover only one (1) calendar year during the Term final statement of the Leaseoperating expenses in question and shall keep such information and the fact that Subtenant is examining Sublandlord's books and records confidential and shall not disclose any of such information in any manner whatsoever. Tenant If Subtenant wishes to contest any item within any such final operating expense statement, Subtenant shall provide Landlord at least thirty do so in a written notice received by Sublandlord within sixty (3060) days prior written following the commencement of Subtenant's actual access to Sublandlord's books and records as aforesaid, which notice requesting shall specify in detail the Audititem or items being contested and specific grounds therefor. However, the giving of notice shall not relieve Subtenant from the obligation to pay any deficiency in such statement in accordance with this Sublease, provided, however, that Tenant’s right, if any, to exercise its Audit Right for any subject year the payment of such amount itself shall expire sixty (60) days after the delivery to Tenant not constitute an acceptance by Subtenant of the Direct Expense Statement for accuracy of such statement until a final determination as herein provided, or until Subtenant fails to timely give any notice to Sublandlord of the calendar yearcontest of any item of the operating expenses as herein provided. If Subtenant timely gives such a notice to contest to Sublandlord, any dispute with respect to any item or items in such statement, including any calculations therein, shall be submitted to binding arbitration, in accordance with the last year standards and rules established by the American Arbitration Association, whose decision shall be binding on the parties. Only in the event that Subtenant retains a non- contingent fee based auditor and such review by an arbitration panel discloses an error on the part of Sublandlord of five percent (5%) or more of total operating expenses shall Sublandlord pay the fees of the Lease Term, which Tenant desires to audit and, unless such right is exercised prior to such time, Tenant shall have waived its right to request such an Audit. Landlord shall make said books and records relevant to such Audit available to Tenant during Landlord’s customary business hours at the office of the property manager of the Project or at such other location designated by Landlord in writing.
(ii) Tenant shall pay all reasonable and necessary third party out-of-pocket costs for the Audit, including, without limitation, all of Landlord’s costs and expenses, including reasonable attorney and accountant fees.
(iii) The Audit shall only be conducted by a reputable accounting firm (“Accounting Firm”) approved in writing by Landlord. As a condition precedent arbitrators with respect to any such Auditdispute, Tenant otherwise, the fees shall deliver to Landlord a copy of Tenant’s written agreement with such Accounting Firm, which agreement shall include provisions which state that: (A) Landlord is an intended third-party beneficiary of such agreement, (B) such Accounting Firm is not being engaged as a contingency or other incentive based auditor; (C) such Accounting Firm will not in any manner solicit or agree to represent any other tenant of the Project with respect to an audit or other review of Landlord’s accounting records at the Project, and (D) such Accounting Firm shall maintain in strict confidence any and all information obtained in connection with the Audit and shall not disclose such information to any person or entity other than to the management personnel of Tenant. The Accounting Firm, Landlord and Tenant shall enter into a confidentiality agreement in form and substance acceptable to Landlord whereby the Accounting Firm and Tenant shall covenant, among other things, that the Accounting Firm and the Tenant shall keep the books and records of Landlord in strict confidence.
(iv) In the event that the amount of Direct Expenses be paid by Tenant to Landlord exceed the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, and after such Audit is confirmed and accepted by Landlord, in Landlord’s reasonable discretion, such difference shall be applied to the next succeeding payment of Direct Expenses due by Tenant to Landlord. In the event that the amount of Direct Expenses paid by Tenant to Landlord is less than the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, Tenant shall pay such difference to Landlord within ten (10) days of such determination.
(v) Nothing contained herein shall be construed as providing Tenant with any right or option to examine any other books and records of Landlord or any of Landlord’s affiliated entitiesSubtenant. Notwithstanding anything else to the contrary contained hereincontrary, if Subtenant fails to timely pay any deficiency in such statement in accordance with the Audit Right granted Sublease, whether or not contested, or if Subtenant fails to timely give notice to audit or contest as herein is personal provided, Subtenant shall have no further right to the originally named Tenant, contest any item or items in such statement and Subtenant shall be exercisable only by deemed to have accepted such originally named Tenant and may not be assigned or exercised by any assignee, sublessee or transferee of Tenant’s interest in this Lease or any successor in interest to Tenantstatement.
Appears in 1 contract
Samples: Sublease (Focal Communications Corp)
Audit Rights. Within two hundred seventy (i270) Provided that no Event days of Default has occurredreceipt of the Statement, Tenant shall have the right right, upon at least ten (“Audit Right”10) todays’ prior written notice to Landlord, one time per calendar year during the Lease Term, to audit at Landlord’s local offices, at Tenant’s expense, Landlord’s accounts and records relating to Additional Rent. Such audit shall be conducted by a certified public accountant (not billing on a contingency fee basis) selected by Tenant, which certified public accountant may be an employee of Tenant. If Landlord and books used by Tenant agree that Landlord in determining has overcharged Tenant, then the amount of Direct Expenses overcharged shall be paid to Tenant is obligated to pay to Landlord for the sole purpose of verifying the accuracy of same (the “Audit”). Any Audit shall cover only one (1) calendar year during the Term of the Lease. Tenant shall provide Landlord at least within thirty (30) days prior after the audit is concluded, together with interest thereon at the rate of ten percent (10%) per annum, from the date the Statement was delivered to Tenant until payment of the overcharge is made to Tenant. If Tenant provides Landlord with written notice requesting disputing the Auditcorrectness of Landlord’s statement, provided, however, that Tenant’s right, and if any, to exercise its Audit Right for any subject year such dispute shall expire sixty have not been settled by agreement between Landlord and Tenant within thirty (6030) days after the delivery to Tenant of the Direct Expense Statement for the calendar year, including the last year of the Lease Term, which Tenant desires to audit and, unless provides Landlord with such right is exercised prior to such timewritten notice, Tenant may submit the dispute to a reputable firm of independent certified public accountants selected by Tenant and approved by Landlord, such approval not to be unreasonably withheld, and the decision of such accountants shall have waived its right to request be [ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT OF 1933, AS AMENDED. conclusive and binding upon the parties. If such accountant decides that there was an Audit. error, Landlord shall will make said books a correcting payment if Tenant overpaid such amount, and records relevant to such Audit available to Tenant during Landlord’s customary business hours at the office of the property manager of the Project or at such other location designated by Landlord in writing.
(ii) Tenant shall pay all reasonable and necessary third party out-of-pocket costs for Landlord if Tenant underpaid such amount. In addition, if the AuditStatement exceeds the actual Additional Rent which should have been charged to Tenant by more than five percent (5%), then the cost of the audit shall be paid by Landlord. All of the information obtained through Tenant’s inspection with respect to financial matters (including, without limitation, all of Landlord’s costs costs, expenses and expenses, including reasonable attorney income) and accountant fees.
(iii) The Audit shall only be conducted by a reputable accounting firm (“Accounting Firm”) approved in writing by Landlord. As a condition precedent to any such Audit, Tenant shall deliver to Landlord a copy of Tenant’s written agreement with such Accounting Firm, which agreement shall include provisions which state that: (A) Landlord is an intended third-party beneficiary of such agreement, (B) such Accounting Firm is not being engaged as a contingency or other incentive based auditor; (C) such Accounting Firm will not in any manner solicit or agree to represent any other tenant of matters pertaining to Landlord, the Project with respect to an audit Leased Premises, the Building and/or the Park as well as any compromise, settlement or other review of Landlord’s accounting records at the Project, and (D) such Accounting Firm shall maintain in strict confidence any and all information obtained in connection with the Audit and shall not disclose such information to any person or entity other than to the management personnel of Tenant. The Accounting Firm, adjustment reached between Landlord and Tenant shall enter into a confidentiality agreement in form and substance acceptable relative to Landlord whereby the Accounting Firm and Tenant shall covenant, among other things, that results of the Accounting Firm and the Tenant shall keep the books and records of Landlord in strict confidence.
(iv) In the event that the amount of Direct Expenses paid by Tenant to Landlord exceed the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, and after such Audit is confirmed and accepted by Landlord, in Landlord’s reasonable discretion, such difference inspection shall be applied subject to the next succeeding payment of Direct Expenses due by Tenant to Landlord. In the event that the amount of Direct Expenses paid by Tenant to Landlord is less than the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, Tenant shall pay such difference to Landlord within ten (10) days of such determinationconfidentiality restrictions set forth in Section 17.15 below.
(v) Nothing contained herein shall be construed as providing Tenant with any right or option to examine any other books and records of Landlord or any of Landlord’s affiliated entities. Notwithstanding anything to the contrary contained herein, the Audit Right granted herein is personal to the originally named Tenant, shall be exercisable only by such originally named Tenant and may not be assigned or exercised by any assignee, sublessee or transferee of Tenant’s interest in this Lease or any successor in interest to Tenant.
Appears in 1 contract
Audit Rights. Entity Seller and its representatives shall be afforded the opportunity during normal business hours on business days upon three (i3) Provided that no Event business days prior notice, and not more than two (2) times in any individual Prorations Calculation Period, to review all underlying financial records pertaining to any Post-Closing Prorations Recalculation, and Purchaser shall promptly respond to Entity Seller’s reasonable written inquiries for information and shall permit Entity Seller and its representatives, to the extent relevant to such Post-Closing Prorations Recalculation, to have full access to the books and records in the possession of Default Purchaser, the Venture, Price Legacy, the Kimco Parties and Owner or any party to whom Purchaser, the Venture, Price Legacy, the Kimco Parties or Owner has occurred, Tenant shall have given custody of the right (“Audit Right”) to, one time per calendar year during same relating to the Lease Term, audit Landlord’s records and books used by Landlord in determining the amount of Direct Expenses Tenant is obligated to pay to Landlord for the sole purpose of verifying the accuracy of same (the “Audit”)Property. Any Audit Post-Closing Prorations Recalculation prepared by Purchaser shall cover only one (1) calendar year during be final and binding for purposes of this Agreement unless Entity Seller shall give written notice to Purchaser of disagreement with the Term of the Lease. Tenant shall provide Landlord at least recalculation contained therein within thirty (30) days prior written notice requesting the Audit, provided, however, that Tenantfollowing Entity Seller’s right, if any, to exercise its Audit Right for any subject year shall expire sixty (60) days after the delivery to Tenant of the Direct Expense Statement for the calendar year, including the last year of the Lease Term, which Tenant desires to audit and, unless such right is exercised prior to such time, Tenant shall have waived its right to request such an Audit. Landlord shall make said books and records relevant to such Audit available to Tenant during Landlord’s customary business hours at the office of the property manager of the Project or at such other location designated by Landlord in writing.
(ii) Tenant shall pay all reasonable and necessary third party out-of-pocket costs for the Audit, including, without limitation, all of Landlord’s costs and expenses, including reasonable attorney and accountant fees.
(iii) The Audit shall only be conducted by a reputable accounting firm (“Accounting Firm”) approved in writing by Landlord. As a condition precedent to any such Audit, Tenant shall deliver to Landlord a copy of Tenant’s written agreement with such Accounting Firm, which agreement shall include provisions which state that: (A) Landlord is an intended third-party beneficiary receipt of such agreementrecalculation, (B) specifying in reasonable detail the nature and extent of such Accounting Firm is not being engaged as a contingency or other incentive based auditor; (C) such Accounting Firm will not in disagreement. If Purchaser and Entity Seller are unable to resolve any manner solicit or agree to represent any other tenant of the Project disagreement with respect to an audit or any Post-Closing Prorations Recalculation within thirty (30) days following receipt by Purchaser of the notice referred to above, the matters in dispute shall be referred to PricewaterhouseCoopers or, if they are not available, any of the other review so-called “Big Four” accounting firms selected by Purchaser, for final determination, with the costs of Landlord’s accounting records at the Projectsuch accountant to be paid 50% by Entity Seller and 50% by Purchaser, and (D) such Accounting Firm shall maintain in strict confidence any and all information obtained in connection with the Audit and shall not disclose such information to any person or entity other than to the management personnel of Tenant. The Accounting Firm, Landlord and Tenant shall enter into a confidentiality agreement in form and substance acceptable to Landlord whereby the Accounting Firm and Tenant shall covenant, among other things, that the Accounting Firm and the Tenant shall keep the books and records of Landlord in strict confidence.
(iv) In the event that the amount of Direct Expenses paid by Tenant to Landlord exceed the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, and after such Audit is confirmed and accepted by Landlord, in Landlord’s reasonable discretion, such difference Post-Closing Adjustment Period shall be applied deemed extended solely with respect to the next succeeding payment of Direct Expenses due by Tenant to Landlord. In the event that the amount of Direct Expenses paid by Tenant to Landlord is less than the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, Tenant shall pay such difference to Landlord within ten (10) days of such determination.
(v) Nothing contained herein shall be construed as providing Tenant with any right or option to examine any other books and records of Landlord or any of Landlord’s affiliated entitiesmatters in dispute. Notwithstanding anything in this Agreement to the contrary contained hereincontrary, but subject to Section 10.1.4(c), the Audit Right granted herein is personal Purchaser shall have the right to settle all tenant claims under the originally named Tenant, shall be exercisable only by such originally named Tenant and may not be assigned Leases for overcharges or exercised by any assignee, sublessee or transferee of Tenant’s interest in this Lease or any successor in interest landlord defaults without Entity Seller's consent for each individual tenant claim up to Tenant$200,000.
Appears in 1 contract
Samples: Entity Purchase and Sale Agreement (Kimco Realty Corp)
Audit Rights. (i) Provided that no Event of Default has occurred, Tenant shall have the right right, at its expense (except as expressly set forth below), to have its “Audit Right”REPRESENTATIVES” (hereinafter defined) to, one time per calendar year during the Lease Term, audit Landlord’s accounting records relative to Expenses and books used by Landlord in determining Taxes during normal business hours at any time within three (3) years following the amount of Direct Expenses Tenant is obligated to pay to Landlord for the sole purpose of verifying the accuracy of same (the “Audit”). Any Audit shall cover only one (1) calendar year during the Term of the Lease. Tenant shall provide Landlord at least thirty (30) days prior written notice requesting the Audit, provided, however, that Tenant’s right, if any, to exercise its Audit Right for any subject year shall expire sixty (60) days after the delivery furnishing to Tenant of the Direct Expense Statement annual statement(s) of Expenses or Taxes (as the case may be). Unless Tenant shall take written exception to any item of Taxes or Expenses, specifying in detail the reasons for the exception as to a particular item within three (3) years after Tenant’s receipt of Landlord’s annual statement covering Expenses or Taxes (as the case may be), Landlord’s statement of Expenses or Taxes, as applicable, shall be considered as final and accepted by Tenant. For purposes of this Lease, the term “REPRESENTATIVES” shall mean either a nationally recognized independent certified public accounting firm licensed to do business in the State of Illinois, or another accounting firm reasonably acceptable to Landlord, or any other real estate professionals (with one or more certified public accountant(s) on staff ) experienced in management of first-class office buildings and reasonably acceptable to Landlord. If any audit determines that Landlord’s annual statement of Expenses or Taxes overstated Tenant’s Additional Rent attributable to Expenses or Taxes from the actual amount so required hereunder for any calendar yearyear by an amount in excess of three percent (3%), including Landlord shall be responsible for the last year prompt payment of reasonable audit fees incurred by Tenant under this Section 5.D.; otherwise, Tenant shall be responsible for the costs of the Lease Term, which Tenant desires to audit and, unless such right is exercised prior to such timein addition, Tenant shall have waived its right to request such an Audit. Landlord shall make said books and records relevant to such Audit available to Tenant during pay Landlord, within five (5) business days after Landlord’s customary business hours at the office of the property manager of the Project or at such other location designated by Landlord in writing.
(ii) Tenant shall pay all reasonable and necessary third party out-of-pocket costs for the Auditdemand therefor, including, without limitation, an amount equal to all of Landlord’s reasonable costs and expenses, including reasonable attorney and accountant fees.
(iii) The Audit shall only be conducted expenses incurred relative to the audit performed by a reputable accounting firm (“Accounting Firm”) approved in writing by LandlordTenant. As a condition precedent to any such Audit, Tenant shall deliver to Landlord a copy of Tenant’s written agreement with such Accounting Firm, which agreement shall include provisions which state that: (A) Landlord is an intended third-party beneficiary of such agreement, (B) such Accounting Firm is not being engaged as a contingency or other incentive based auditor; (C) such Accounting Firm will not in any manner solicit or agree to represent any other tenant of the Project with respect to an audit or other review of Landlord’s accounting records at the Project, and (D) such Accounting Firm shall maintain in strict confidence any and all information obtained in connection with the Audit and shall not disclose such information to any person or entity other than to the management personnel of Tenant. The Accounting Firm, Landlord and Tenant shall enter into a confidentiality agreement in form and substance acceptable to Landlord whereby the Accounting Firm and Tenant shall covenant, among other things, that the Accounting Firm and the Tenant shall keep the its books and records of in Chicago, Illinois (or such other location in the Chicago metropolitan area as Landlord in strict confidence.
(iv) In the event that the amount of Direct Expenses paid by Tenant to Landlord exceed the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Auditmay designate), showing Taxes and after such Audit is confirmed and accepted by LandlordExpenses, in Landlord’s reasonable discretion, such difference shall be applied to the next succeeding payment of Direct Expenses due by Tenant to Landlord. In the event that the amount of Direct Expenses paid by Tenant to Landlord is less than the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, Tenant shall pay such difference to Landlord within ten (10) days of such determination.
(v) Nothing contained herein shall be construed as providing Tenant with any right or option to examine any other which books and records of Landlord or any of Landlord’s affiliated entities. Notwithstanding anything to the contrary contained herein, the Audit Right granted herein is personal to the originally named Tenant, shall be exercisable only maintained for a period of not less than three (3) years following the date Landlord delivers to Tenant its annual statement(s) of Taxes and Expenses for the applicable year. The books and records shall be available for review by such originally named Tenant and may not be assigned or exercised by any assignee, sublessee or transferee of and/or Tenant’s interest in this Lease or any successor in interest Representatives at all reasonable times within the foregoing three (3) year period, upon Tenant’s reasonable prior request therefor to TenantLandlord.
Appears in 1 contract
Samples: Office Lease (Houghton Mifflin Co)
Audit Rights. 12.1 The Company shall keep books and records accurately showing all the details of all Vaccine Sales (iincluding the Net Sales Proceeds and the amounts due to be paid to the Board pursuant to Clause 10.2 above) Provided that no Event of Default has occurredby the Company and its Affiliates for so long as any amount remains outstanding under this Agreement.
12.2 Such books and records shall be preserved for so long as any amount remains outstanding under this Agreement, Tenant during which time the Board shall have the right (“Audit Right”) toright, one time per calendar year during the Lease Term, audit Landlord’s records and books used by Landlord in determining the amount of Direct Expenses Tenant is obligated to pay to Landlord for the sole purpose of verifying the accuracy of same (the “Audit”). Any Audit shall cover only one (1) calendar year during the Term of the Lease. Tenant shall provide Landlord at least after giving thirty (30) days prior written notice requesting to the Audit, provided, however, that Tenant’s right, if anyCompany, to exercise its Audit Right cause an independent, certified public accountant or auditor reasonably acceptable to the Company to inspect such records during normal business hours for the purposes of verifying the accuracy of any subject year payments delivered under this Agreement. The Company shall expire sixty be deemed to be in compliance with this Clause 12.2 if (60a) days after the delivery accuracy of any payments delivered under this Agreement is audited pursuant to Tenant the annual independent audit of the Direct Expense Statement for financial statements of the Company’s parent company, Arcturus Therapeutics Holdings Inc., by Ernst and Young LLP (or such other independent, certified public accountant or auditor reasonably acceptable to Board), (b) such audited financial statements are accompanied by a signed report of the independent, certified public accountant or auditor and (c) such audited financial statements include a note which specifically identifies the total revenue generated from the Vaccine Sales in the relevant year, the aggregate Net Sales Proceeds in the relevant year and the aggregate amount of Net Sales Proceeds to be paid by the Company to the Board pursuant to Clause 10.2(c) in the relevant year.
12.3 Such accountant or other auditor, as applicable, shall not disclose to the Board any information other than information relating to the accuracy of the amounts paid or due to be paid to the Board pursuant to Clause 10.2 above.
12.4 The Company shall also confirm to the Board that the Company remains solvent as at the date of the certificate delivered pursuant to Clause 14(i) and that this conclusion is consistent with Arcturus Manufacturing Support Agreement (exe) the audit report of an independent certified public accountant of Arcturus Therapeutics Holdings Inc. set out in the financial statements referred to in Clause 12.2 above.
12.5 The Company shall bear the costs of performing such inspection once every calendar year and the Board shall bear the costs of performing any subsequent inspections thereafter in that calendar year, including provided that:
(a) if the last year inspection reveals any underpayment error in excess of three percent (3%) of the Lease TermNet Sales Proceeds the Board is supposed to receive pursuant to Clause 10.2(c), which Tenant desires the Company shall bear the costs of that inspection and pay such additional amounts to audit the Board equal to the amount underpaid subject to Clause 10.3; and, unless such right is exercised prior to such time, Tenant
(b) the Company shall have waived its right to request such an Audit. Landlord shall make said books and records relevant to such Audit available to Tenant during Landlord’s customary business hours at bear the office costs of one further inspection:
(i) no earlier than thirty (30) days before the property manager of the Project or at such other location designated by Landlord in writing.Final Repayment Date; and
(ii) Tenant shall pay all reasonable and necessary third party out-of-pocket costs for the Audit, including, without limitation, all of Landlord’s costs and expenses, including reasonable attorney and accountant fees.
within thirty (iii) The Audit shall only be conducted by a reputable accounting firm (“Accounting Firm”) approved in writing by Landlord. As a condition precedent to any such Audit, Tenant shall deliver to Landlord a copy of Tenant’s written agreement with such Accounting Firm, which agreement shall include provisions which state that: (A) Landlord is an intended third-party beneficiary of such agreement, (B) such Accounting Firm is not being engaged as a contingency or other incentive based auditor; (C) such Accounting Firm will not in any manner solicit or agree to represent any other tenant of the Project with respect to an audit or other review of Landlord’s accounting records at the Project, and (D) such Accounting Firm shall maintain in strict confidence any and all information obtained in connection with the Audit and shall not disclose such information to any person or entity other than to the management personnel of Tenant. The Accounting Firm, Landlord and Tenant shall enter into a confidentiality agreement in form and substance acceptable to Landlord whereby the Accounting Firm and Tenant shall covenant, among other things, that the Accounting Firm and the Tenant shall keep the books and records of Landlord in strict confidence.
(iv) In the event that the amount of Direct Expenses paid by Tenant to Landlord exceed the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, and after such Audit is confirmed and accepted by Landlord, in Landlord’s reasonable discretion, such difference shall be applied to the next succeeding payment of Direct Expenses due by Tenant to Landlord. In the event that the amount of Direct Expenses paid by Tenant to Landlord is less than the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, Tenant shall pay such difference to Landlord within ten (1030) days of such determinationthe commencement of discussions pursuant to Clause 11 provided that there has been at least one Vaccine Sale during the relevant fiscal year, in each case, notwithstanding an inspection may have already been done earlier that calendar year.
(v) Nothing contained herein shall be construed as providing Tenant with any right or option to examine any other books and records of Landlord or any of Landlord’s affiliated entities. Notwithstanding anything to the contrary contained herein, the Audit Right granted herein is personal to the originally named Tenant, shall be exercisable only by such originally named Tenant and may not be assigned or exercised by any assignee, sublessee or transferee of Tenant’s interest in this Lease or any successor in interest to Tenant.
Appears in 1 contract
Samples: Manufacturing Support Agreement (Arcturus Therapeutics Holdings Inc.)
Audit Rights. (a) For the purpose of the audit rights described herein, the individual Party subject to an audit in any given year will be referred to as the “Auditee” and the other Party who has certain and respective rights to audit the books and records of the Auditee pursuant to this Article 7.3 will be referred to as the “Audit Rights Holder” .
(b) Each Party may, upon request and at its expense (except as provided for herein), cause an internationally-recognized independent accounting firm selected by it (except one to whom the Auditee has some reasonable objection) (“Audit Team”) to audit the books and records of the other Party during ordinary business hours the correctness of any payment made or required to be made to or by such Party, and any report underlying such payment (or lack thereof), pursuant to the terms of this Agreement. The Audit Team shall execute an appropriate and customary confidentiality agreement with the Auditee.
(c) In respect of each audit of an Auditee’s books and records, the Audit Rights Holder must exercise its audit right such that all of the following conditions are met: (i) Provided that each Auditee is audited only once per year by a single Audit Team appointed by the Audit Rights Holder, (ii) no Event records for any given year for an Auditee may be audited more than once and (iii) an Audit Rights Holder shall only be entitled to audit books and records of Default has occurredthe Auditee from the *** calendar years prior to the calendar year in which the audit request is made.
(d) In order to initiate an audit for a particular calendar year, Tenant an Audit Right Holder must provide written notice to the Auditee. The Audit Rights Holder exercising its audit rights shall provide the Auditee with notice of one or more proposed dates of the audit not less than forty-five (45) days prior to the first proposed date. The Auditee will reasonably accommodate the scheduling of such audit. The Auditee shall provide such audit team with full and complete access to the applicable books and records and otherwise reasonably co-operate with such audit.
(e) The audit report and basis for any determination by an Audit Team under this Article 7.3 shall be made available for review and comment by the Auditee, and the Auditee shall have the right right, at its expense, to request a further determination by such Audit Team as to matters which the Auditee disputes (“Audit Right”) to, one time per calendar year during the Lease Term, audit Landlord’s records and books used by Landlord in determining the amount of Direct Expenses Tenant is obligated to pay to Landlord for the sole purpose of verifying the accuracy of same (the “Audit”). Any Audit shall cover only one (1) calendar year during the Term of the Lease. Tenant shall provide Landlord at least be completed no more than thirty (30) days prior written notice requesting after the Auditfirst determination is provided to such Auditee and to be limited to the disputed matters). If the Parties disagree as to such further determination, provided, however, that Tenant’s right, if any, to exercise its the Audit Right for Holder and the Auditee shall mutually select an internationally-recognized independent accounting firm that shall make a final determination as to the remaining matters in dispute that shall be binding upon the Parties. Such accountants shall not disclose to the Audit Rights Holder any subject year shall expire sixty (60) days after information relating to the delivery to Tenant business of the Direct Expense Statement for Auditee except that which should properly have been contained in any report required hereunder or otherwise required to be disclosed to it to the calendar year, including extent necessary to verify the last year payments required to be made pursuant to the terms of this Agreement. *** - indicates material omitted pursuant to a Confidential Treatment Request and filed separately with the Lease Term, which Tenant desires to audit and, unless such right is exercised prior to such time, Tenant shall have waived its right to request such an Audit. Landlord shall make said books Securities and records relevant to such Audit available to Tenant during Landlord’s customary business hours at the office of the property manager of the Project or at such other location designated by Landlord in writingExchange Commission.
(iif) Tenant If the audit shows any under-reporting or underpayment, or overcharging by any Party, the underpaying or overcharging Party shall pay all remit such underpayment or reimburse such overcompensation (together with interest as provided below with respect to any underpayment or overcharge) to the underpaid or overcharged Party(s) within 15 days of receiving the audit report. Further, if the audit for an annual period shows an under-reporting or underpayment or an overcharge by any Party for that period of (i) in excess of *** of the amounts properly determined, the underpaying or overcharging Party, as the case may be, shall reimburse the applicable underpaid or overcharged Audit Rights Holder conducting the audit for its respective audit fees and reasonable and necessary third party out-of-pocket costs for the Audit, including, without limitation, all of Landlord’s costs and expenses, including reasonable attorney and accountant fees.
(iii) The Audit shall only be conducted by a reputable accounting firm (“Accounting Firm”) approved in writing by Landlord. As a condition precedent to any such Audit, Tenant shall deliver to Landlord a copy of Tenant’s written agreement with such Accounting Firm, which agreement shall include provisions which state that: (A) Landlord is an intended third-party beneficiary of such agreement, (B) such Accounting Firm is not being engaged as a contingency or other incentive based auditor; (C) such Accounting Firm will not in any manner solicit or agree to represent any other tenant of the Project with respect to an audit or other review of Landlord’s accounting records at the Project, and (D) such Accounting Firm shall maintain in strict confidence any and all information obtained expenses in connection with the Audit and shall not disclose such information to any person or entity other than to the management personnel of Tenant. The Accounting Firmsaid audit, Landlord and Tenant shall enter into a confidentiality agreement in form and substance acceptable to Landlord whereby the Accounting Firm and Tenant shall covenant, among other things, that the Accounting Firm and the Tenant shall keep the books and records of Landlord in strict confidence.
(iv) In the event that the amount of Direct Expenses paid by Tenant to Landlord exceed the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, and after such Audit is confirmed and accepted by Landlord, in Landlord’s reasonable discretion, such difference which reimbursement shall be applied to the next succeeding payment of Direct Expenses due by Tenant to Landlord. In the event that the amount of Direct Expenses paid by Tenant to Landlord is less than the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, Tenant shall pay such difference to Landlord made within ten fifteen (1015) days of receiving appropriate invoices and other support for such determinationaudit-related costs.
(v) Nothing contained herein shall be construed as providing Tenant with any right or option to examine any other books and records of Landlord or any of Landlord’s affiliated entities. Notwithstanding anything to the contrary contained herein, the Audit Right granted herein is personal to the originally named Tenant, shall be exercisable only by such originally named Tenant and may not be assigned or exercised by any assignee, sublessee or transferee of Tenant’s interest in this Lease or any successor in interest to Tenant.
Appears in 1 contract
Samples: Research Collaboration Option and License Agreement (Emisphere Technologies Inc)
Audit Rights. Tenant, within sixty (i60) Provided days after receiving Landlord’s statement of Expenses, may give Landlord written notice (“Review Notice”) that no Event Tenant intends to review Landlord’s records of Default has occurredthe Expenses for the calendar year to which the statement applies. Within a reasonable time after receipt of the Review Notice, Landlord shall make all pertinent records available for inspection that are reasonably necessary for Tenant to conduct its review. If any records are maintained at a location other than the management office for the Building, Tenant may either inspect the records at such other location or pay for the reasonable cost of copying and shipping the records. If Tenant retains an agent to review Landlord’s records, the agent must be with a CPA firm licensed to do business in the state or commonwealth where the Property is located and may not be an examiner of Tenant who is being paid by Tenant on a contingent fee basis. Tenant shall be solely responsible for all costs, expenses and fees incurred for the audit. Within ninety (90) days after the records are made available to Tenant, Tenant shall have the right to give Landlord written notice (an “Audit RightObjection Notice”) tostating in reasonable detail any objection to Landlord’s statement of Expenses for that year. If Tenant fails to give Landlord an Objection Notice within the ninety-(90)-day period or fails to provide Landlord with a Review Notice within the sixty-(60)-day period described above, one time per calendar year during Tenant shall be deemed to have approved Landlord’s statement of Expenses and shall be barred from raising any claims regarding the Lease Term, audit Expenses for that year. The records obtained by Tenant shall be treated as confidential. In no event shall Tenant be permitted to examine Landlord’s records or to dispute any statement of Expenses unless Tenant has paid and books used by Landlord in determining the amount of Direct Expenses Tenant is obligated continues to pay to all Rent when due. However, notwithstanding the foregoing, if Landlord and Tenant determine that Expenses for the sole purpose of verifying Building for the accuracy of same year in question were less than stated by more than five percent (the “Audit”5%). Any Audit shall cover only one (1) calendar year during the Term of the Lease. Tenant shall provide Landlord at least , Landlord, within thirty (30) days prior written notice requesting the Auditafter its receipt of paid invoices therefor from Tenant, provided, however, that Tenant’s right, if any, to exercise its Audit Right for any subject year shall expire sixty (60) days after the delivery to reimburse Tenant of the Direct Expense Statement for the calendar year, including the last year of the Lease Term, which Tenant desires to audit and, unless such right is exercised prior to such time, Tenant shall have waived its right to request such an Audit. Landlord shall make said books and records relevant to such Audit available to Tenant during Landlord’s customary business hours at the office of the property manager of the Project or at such other location designated by Landlord in writing.
(ii) Tenant shall pay all reasonable and necessary third party out-of-pocket costs for the Audit, including, without limitation, all of Landlord’s costs and expenses, including reasonable attorney and accountant fees.
(iii) The Audit shall only be conducted by a reputable accounting firm (“Accounting Firm”) approved in writing by Landlord. As a condition precedent to any such Audit, Tenant shall deliver to Landlord a copy of Tenant’s written agreement with such Accounting Firm, which agreement shall include provisions which state that: (A) Landlord is an intended third-party beneficiary of such agreement, (B) such Accounting Firm is not being engaged as a contingency or other incentive based auditor; (C) such Accounting Firm will not in any manner solicit or agree to represent any other tenant of the Project with respect to an audit or other review of Landlord’s accounting records at the Project, and (D) such Accounting Firm shall maintain in strict confidence any and all information obtained in connection with the Audit and shall not disclose such information to any person or entity other than to the management personnel of Tenant. The Accounting Firm, Landlord and Tenant shall enter into a confidentiality agreement in form and substance acceptable to Landlord whereby the Accounting Firm and Tenant shall covenant, among other things, that the Accounting Firm and the Tenant shall keep the books and records of Landlord in strict confidence.
(iv) In the event that the amount of Direct Expenses amounts paid by Tenant to Landlord exceed the actual amount of Direct Expenses owed third parties in connection with such review by Tenant. Any overpayment by Tenant to will be refunded by Landlord as disclosed by the Audit, and after such Audit is confirmed and accepted by Landlord, in Landlord’s reasonable discretion, such difference shall be applied to or credited against the next succeeding payment installment of Direct Expenses due Base Rent and Additional Rent. This Exhibit is attached to and made a part of the Lease by Tenant to and between XX XXXXX ACQUISITION LLC, a Delaware limited liability company (“Landlord. In ”) and KARYOPHARM THERAPEUTICS INC., a Delaware corporation (“Tenant”) for space in the event that the amount of Direct Expenses paid by Tenant to Landlord is less than the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the AuditBuilding located at 00 Xxxxx Xxxxxx, Tenant shall pay such difference to Landlord within ten (10) days of such determinationNewton, Massachusetts.
(v) Nothing contained herein shall be construed as providing Tenant with any right or option to examine any other books and records of Landlord or any of Landlord’s affiliated entities. Notwithstanding anything to the contrary contained herein, the Audit Right granted herein is personal to the originally named Tenant, shall be exercisable only by such originally named Tenant and may not be assigned or exercised by any assignee, sublessee or transferee of Tenant’s interest in this Lease or any successor in interest to Tenant.
Appears in 1 contract
Samples: Office Lease Agreement (Karyopharm Therapeutics Inc.)
Audit Rights. Landlord shall keep books and records regarding Total Operating Costs for each year during the Term. All records shall be retained for at least three (i3) Provided that no Event years after the end of Default has occurredthe applicable year. At the request of Tenant (“Tenant’s Audit Notice”) given within one hundred twenty (120) days after Landlord delivers Landlord’s final statement of Total Operating Costs with respect to any calendar year during the Term, Tenant shall have the right to examine Landlord’s books and records regarding Total Operating Costs for such year. Such right to examine the records shall be exercisable (“Audit Right”a) toupon reasonable advance notice to Landlord and at reasonable times during Landlord’s business hours, one time per calendar year (b) only during the Lease Term, audit Landlord’s records and books used by Landlord in determining the amount of Direct Expenses Tenant is obligated to pay to Landlord for the sole purpose of verifying the accuracy of same ninety-(90)-day period (the “AuditAudit Period”). Any Audit shall cover only one (1) calendar year during the Term of the Lease. Tenant shall provide Landlord at least thirty (30) days prior written notice requesting the Audit, provided, however, that following Tenant’s rightAudit Notice, and (c) only if any, to exercise its Audit Right for any subject year shall expire sixty (60) days after the delivery to Tenant no Material Event of the Direct Expense Statement for the calendar year, including the last year of the Lease Term, which Tenant desires to audit and, unless such right is exercised prior to such time, Tenant shall have waived its right to request such an AuditDefault then exists. Landlord shall make said such books and records relevant to such Audit available to Tenant during at Landlord’s customary business hours office in Massachusetts or at the Project, or in electronically accessible form. The audit of Landlord’s Total Operating Costs for such year may be conducted, at Tenant’s election, either by members of Tenant’s internal financial staff or by a certified public accountant experienced in suburban Boston office lease audits as to which Landlord does not reasonably object. If Tenant reasonably requests copies of the property manager of the Project or at any such other location designated by Landlord in writing.
(ii) materials, Tenant shall pay all reasonable and necessary third party reimburse Landlord for the out-of-pocket costs for the Audit, including, without limitation, all thereof. Tenant shall not engage any such accountant or any other party on a contingency fee basis in connection with any examination of Landlord’s costs books and expenses, including reasonable attorney and accountant fees.
(iii) The Audit shall only be conducted by a reputable accounting firm (“Accounting Firm”) approved in writing by Landlordrecords hereunder. As a condition precedent to performing any such Auditexamination of Landlord’s books and records, Tenant’s examiners shall be required to execute and deliver to Landlord an agreement in form reasonably acceptable to Landlord agreeing to keep confidential any non-public, confidential information about Landlord, the Building, or the Project in connection with such examination and not to disclose the results of such examination except as required by law. If the Additional Rent due as finally determined for such year is less than the Additional Rent paid by Tenant, Landlord shall credit the excess against Additional Rent next due from Tenant (or, if the Term has expired, promptly refund such amount to Tenant, after deduction of any amounts due to Landlord for unsatisfied Tenant obligations under the Lease). Notwithstanding the foregoing, Tenant’s request to audit Landlord’s books and records shall not extend the time within which Tenant is obligated to pay the amounts shown on Landlord’s statement of Total Operating Costs, and Tenant may not make any request to audit Landlord’s books and records at any time when Tenant is in default of such payments. In the event that, as a result of such an audit, Tenant has been overcharged by five percent (5%) or more of the Additional Rent actually due for Total Operating Costs for such year, Landlord shall (in addition to refunding or crediting the amount overcharged as provided above) reimburse Tenant for the reasonable third-party costs of engaging its auditor, not to exceed $20,000. In all other cases, Tenant shall deliver pay for the cost of such audit. If requested by Tenant from time to time, Landlord a copy shall authorize Tenant, under Article 9 of the by-laws of the Project’s condominium association and at Tenant’s written agreement with such Accounting Firmexpense, which agreement shall include provisions which state that: (A) Landlord is an intended third-party beneficiary of such agreement, (B) such Accounting Firm is not being engaged as a contingency to inspect or other incentive based auditor; (C) such Accounting Firm will not in any manner solicit or agree to represent any other tenant of the Project with respect to an audit or other review of Landlord’s accounting records at the Project, and (D) such Accounting Firm shall maintain in strict confidence any and all information obtained in connection with the Audit and shall not disclose such information to any person or entity other than to the management personnel of Tenant. The Accounting Firm, Landlord and Tenant shall enter into a confidentiality agreement in form and substance acceptable to Landlord whereby the Accounting Firm and Tenant shall covenant, among other things, that the Accounting Firm and the Tenant shall keep examine the books and records of Landlord in strict confidence.
(iv) In the event Project condominium association with respect of the Project Facilities Expenses allocated to Tenant hereunder. If Tenant reasonably determines that the amount Project condominium association has improperly allocated to the Building any element of Direct Project Facilities Expenses paid by that are in turn charged to Tenant under the provisions of this Lease, Tenant may from time to time so notify Landlord exceed the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Auditsuch claimed improper allocation, and after if requested by Tenant, Landlord shall use reasonable efforts at Tenant’s expense (which may but need not include pursuing arbitration under Article 13 of the condominium association’s by-laws) to correct any such Audit is confirmed and accepted by Landlordmisallocation under the applicable provisions of the Project Condominium Documents or, in if such Landlord efforts are unavailing or if Landlord determines not to pursue such remedies, to permit Tenant, as Landlord’s reasonable discretiondesignated agent, to pursue the correction of such difference misallocation under the applicable provisions of the Project Condominium Documents, provided that Tenant shall be applied responsible for all costs thereof (including any late charges or interest assessed under Section 3.11 of the by-laws of the condominium association in respect to the next succeeding disputed amounts in question) and the payment of Direct Expenses all amounts due by Tenant under the Lease in order to Landlord. In the event ensure that the amount Property remains free of Direct Expenses paid by Tenant to Landlord is less than all liens, including without limitation any liens arising under the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by Project Condominium Documents from the Audit, Tenant shall pay such difference to Landlord within ten (10) days of such determinationdisputed amounts in question.
(v) Nothing contained herein shall be construed as providing Tenant with any right or option to examine any other books and records of Landlord or any of Landlord’s affiliated entities. Notwithstanding anything to the contrary contained herein, the Audit Right granted herein is personal to the originally named Tenant, shall be exercisable only by such originally named Tenant and may not be assigned or exercised by any assignee, sublessee or transferee of Tenant’s interest in this Lease or any successor in interest to Tenant.
Appears in 1 contract
Audit Rights. Tenant may, within one hundred eighty (i180) Provided days after receiving Landlord’s statement of Expenses, give Landlord written notice (“Review Notice”) that Tenant intends to review Landlord’s records of the Expenses for that calendar year. Within sixty (60) days after receipt of the Review Notice, Landlord shall make all pertinent records available for inspection that are reasonably necessary for Tenant to conduct its review. If any records are maintained at a location other than the office of the Building, Tenant may either inspect the records at such other location or pay for the actual and reasonable cost of copying and shipping the records. If Tenant retains an agent to review Landlord’s records, the agent must be with a licensed CPA firm. Notwithstanding the foregoing, Landlord agrees that Tenant may retain a third party agent to review Landlord’s books and records which third party agent is not a CPA firm, so long as the third party agent retained by Tenant shall have expertise in and familiarity with general industry practice with respect to the operation of and accounting for a first class office building and whose compensation shall in no Event way be contingent upon or correspond to the financial impact on Tenant resulting from the review. Notwithstanding the foregoing, if Tenant elects to conduct an audit pursuant to the terms of Default has occurredthis section, Tenant shall be permitted to utilize the services of (1) its existing auditing firm, Kislak Lease Services (“Kislak”), to conduct the audit and that Tenant may elect to compensate Kislak on a contingency basis, or (2) if Tenant terminates its relationship with Kislak, any other qualified auditing firm which does not satisfy all the requirements set forth above so long as Tenant obtains Landlord’s prior written approval of such firm, which consent Landlord may withhold in its sole discretion. Tenant shall be solely responsible for all costs, expenses and fees incurred for the audit. Within ninety (90) days after the records are made available to Tenant, Tenant shall have the right to give Landlord written notice (an “Audit RightObjection Notice”) to, one time per calendar year during the Lease Term, audit stating in reasonable detail any objection to Landlord’s records and books used by statement of Expenses for that year. If Tenant fails to give Landlord in determining an Objection Notice within the amount of Direct Expenses Tenant is obligated 90 day period or fails to pay to Landlord for the sole purpose of verifying the accuracy of same (the “Audit”). Any Audit shall cover only one (1) calendar year during the Term of the Lease. Tenant shall provide Landlord at least thirty (30) days prior written notice requesting with a Review Notice within the Audit, provided, however, that Tenant’s right, if any, to exercise its Audit Right for any subject year shall expire sixty (60) days after the delivery to Tenant of the Direct Expense Statement for the calendar year, including the last year of the Lease Term, which Tenant desires to audit and, unless such right is exercised prior to such time180 day period described above, Tenant shall be deemed to have waived its right to request such an Audit. Landlord shall make said books and records relevant to such Audit available to Tenant during approved Landlord’s customary business hours at the office statement of the property manager of the Project or at such other location designated by Landlord in writing.
(ii) Tenant shall pay all reasonable and necessary third party out-of-pocket costs for the Audit, including, without limitation, all of Landlord’s costs and expenses, including reasonable attorney and accountant fees.
(iii) The Audit shall only be conducted by a reputable accounting firm (“Accounting Firm”) approved in writing by Landlord. As a condition precedent to any such Audit, Tenant shall deliver to Landlord a copy of Tenant’s written agreement with such Accounting Firm, which agreement shall include provisions which state that: (A) Landlord is an intended third-party beneficiary of such agreement, (B) such Accounting Firm is not being engaged as a contingency or other incentive based auditor; (C) such Accounting Firm will not in any manner solicit or agree to represent any other tenant of the Project with respect to an audit or other review of Landlord’s accounting records at the Project, and (D) such Accounting Firm shall maintain in strict confidence any and all information obtained in connection with the Audit Expenses and shall not disclose such information to be barred from raising any person or entity other than to claims regarding the management personnel of TenantExpenses for that year. The Accounting FirmIf Tenant provides Landlord with a timely Objection Notice, Landlord and Tenant shall enter into a confidentiality agreement work together in form and substance acceptable good faith to resolve any issues raised in Tenant’s Objection Notice. If Landlord whereby the Accounting Firm and Tenant determine that Expenses for the calendar year are less than reported, Landlord shall covenant, among other things, that provide Tenant with a credit against the Accounting Firm and the Tenant shall keep the books and records next installment of Landlord Rent in strict confidence.
(iv) In the event that the amount of Direct the overpayment by Tenant. Likewise, if Landlord and Tenant determine that Expenses paid by Tenant to Landlord exceed for the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, and after such Audit is confirmed and accepted by Landlord, in Landlord’s reasonable discretion, such difference shall be applied to the next succeeding payment of Direct Expenses due by Tenant to Landlord. In the event that the amount of Direct Expenses paid by Tenant to Landlord is less calendar year are greater than the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Auditreported, Tenant shall pay such difference to Landlord the amount of any underpayment within ten (10) 30 days after receipt of such determination.
(v) Nothing contained herein an invoice from Landlord. The records obtained by Tenant shall be construed treated as providing confidential. In no event shall Tenant with any right or option be permitted to examine any other books and records of Landlord or any of Landlord’s affiliated entities. Notwithstanding anything records or to the contrary contained herein, the Audit Right granted herein is personal dispute any statement of Expenses unless Tenant has paid and continues to the originally named Tenant, shall be exercisable only by such originally named Tenant and may not be assigned or exercised by any assignee, sublessee or transferee of Tenant’s interest in this Lease or any successor in interest to Tenantpay all Rent when due.
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Samples: Sublease Agreement (Homebanc Corp)
Audit Rights. Tenant shall have the right, at Tenant’s cost, after reasonable notice to Landlord, to have Tenant’s authorized employees or agents or auditors inspect, at Landlord’s office during normal business hours, Landlord’s books, records and supporting documents concerning the Operating Expenses, set forth in any Operating Statement delivered by Landlord to Tenant for a particular calendar year; provided, however, Tenant shall have no right to conduct such inspection, have an audit performed by the Accountant as described below, or object to or otherwise dispute the amount of the Operating Expenses, set forth in any such Operating Statement, unless Tenant notifies Landlord of its desire to conduct such inspection within nine (i9) Provided months immediately following Landlord’s delivery to Tenant of the particular Operating Statement in question (the “Review Period”); provided, further, that no Event notwithstanding any such timely notice and as a condition precedent to Tenant’s exercise of Default has occurredits right of inspection, objection, dispute, and/or audit as set forth in this Paragraph 6(f), Tenant shall not be permitted to withhold payment of, and Tenant shall timely pay to Landlord, the full amounts as required by the provisions of this Paragraph 6 in accordance with such Operating Statement. However, such payment may be made under protest pending the outcome of any inspection and/or audit which may be performed by or on behalf of Tenant or by the Accountant as described below. In connection with any such inspection by Tenant, Landlord and Tenant shall reasonably cooperate with each other so that such inspection can be performed pursuant to a mutually acceptable schedule, in an expeditious manner and without undue interference with Landlord’s operation and management of the Building. If after such inspection and/or request for documentation, Tenant disputes the amount of the Operating Expenses set forth in the Operating Statement, Tenant shall have the right (“Audit Right”) toright, one time per calendar year during but not the Lease Termobligation, audit Landlord’s records to cause an independent certified public accountant which is not paid on a contingency basis and books used which is selected by Tenant and reasonably approved by Landlord in determining the amount of Direct Expenses Tenant is obligated to pay to Landlord for the sole purpose of verifying the accuracy of same (the “AuditAccountant”). Any Audit shall cover only one (1) to complete an audit of Landlord’s books and records to determine the proper amount of the Operating Expenses incurred and amounts payable by Tenant for the calendar year during or calendar years which is the Term subject of such Operating Statement. Such audit by the Accountant shall be final and binding upon Landlord and Tenant. If Landlord and Tenant cannot mutually agree as to the identity of the Lease. Tenant shall provide Landlord at least Accountant within thirty (30) days after Tenant notifies Landlord that Tenant desires an audit to be performed, then the Accountant shall be one of the “Big 4” accounting firms selected by Tenant, which is not paid on a contingency basis and who has not been engaged by Tenant in the twenty-four (24) month period preceding the Review Period. If such audit reveals that Landlord has over-charged Tenant, then within thirty (30) days after the results of such audit are made available to Landlord, Landlord shall reimburse to Tenant the amount of such over-charge. If the audit reveals that the Tenant was under-charged, then within thirty (30) days after the results of such audit are made available to Tenant, Tenant shall reimburse to Landlord the amount of such under-charge. Tenant agrees to pay the cost of such audit unless it is subsequently determined that Landlord’s original Operating Statement which was the subject of such audit was in error to Tenant’s disadvantage by five percent (5%) or more of the total Operating Expenses which was the subject of such audit, in which event Landlord shall pay the cost of such audit. The payment by Tenant of any amounts pursuant to this Paragraph 6(f) at any time during the applicable Review Period shall not preclude Tenant from questioning the correctness of any Operating Statement provided by Landlord at any time during the Review Period, but the failure of Tenant to dispute such Operating Statement prior written notice requesting to the Auditexpiration of the applicable Review Period shall be conclusively deemed Tenant’s approval of the Operating Statement in question and the amount of Operating Expenses shown thereon. In connection with any inspection and/or audit conducted by Tenant pursuant to this Paragraph 6(f), Tenant agrees to use reasonable efforts to keep, and to cause all of Tenant’s employees and consultants and the Accountant to keep, all of Landlord’s books and records and the audit, and all information pertaining thereto and the results thereof, strictly confidential, provided, however, that nothing herein shall prohibit the disclosure or dissemination of such books, records, audit and/or information to Tenant’s right, if any, to exercise its Audit Right for any subject year shall expire sixty (60) days after the delivery to Tenant of the Direct Expense Statement for the calendar year, including the last year of the Lease Term, which Tenant desires to audit and, unless such right is exercised prior to such time, Tenant shall have waived its right to request such an Audit. Landlord shall make said books and records relevant to such Audit available to Tenant during Landlord’s customary business hours at the office of the property manager of the Project or at such other location designated by Landlord in writing.
(ii) Tenant shall pay all reasonable and necessary third party out-of-pocket costs for the Audit, including, without limitation, all of Landlord’s costs and expenses, including reasonable attorney and accountant fees.
(iii) The Audit shall only be conducted by a reputable accounting firm (“Accounting Firm”) approved in writing by Landlord. As a condition precedent to any such Audit, Tenant shall deliver to Landlord a copy of Tenant’s written agreement with such Accounting Firmaccountant’s attorneys, which agreement shall include provisions which state that: (A) Landlord is an intended third-party beneficiary of such agreementaccountants, (B) such Accounting Firm is not being engaged as a contingency auditors, investors, lenders or other incentive based auditor; (C) such Accounting Firm will not in any manner solicit partners or agree to represent any other tenant of the Project with respect to an audit or other review of Landlord’s accounting records at the Project, and (D) such Accounting Firm shall maintain in strict confidence any and all information obtained in connection with the Audit and shall not disclose such information to any person or entity other than to the management personnel of extent required by law or legal process or in connection with any dispute, suit or preceding between Landlord and Tenant. The Accounting Firm, Landlord and Tenant shall enter into Within a confidentiality agreement in form and substance acceptable to Landlord whereby the Accounting Firm and Tenant shall covenant, among other things, that the Accounting Firm and the Tenant shall keep the books and records of Landlord in strict confidence.
(iv) In the event that the amount of Direct Expenses paid by Tenant to Landlord exceed the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, and reasonable period after such Audit is confirmed and accepted by Landlord, in Landlord’s reasonable discretion, such difference shall be applied to the next succeeding payment of Direct Expenses due by Tenant to Landlord. In the event that the amount of Direct Expenses paid by Tenant to Landlord is less than the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Auditrequest, Tenant shall pay such difference to Landlord within ten (10) days of such determination.
(v) Nothing contained herein shall be construed as providing Tenant with any right or option to examine any other books cause its employees and records of Landlord or any of Landlord’s affiliated entities. Notwithstanding anything to the contrary contained herein, consultants performing the Audit Right granted herein is personal and the Accountant to the originally named Tenant, shall be exercisable only by execute such originally named Tenant and reasonable confidentiality agreements as Landlord may not be assigned or exercised by reasonably require prior to conducting any assignee, sublessee or transferee of Tenant’s interest in this Lease or any successor in interest to Tenantsuch inspections and/or audits.
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Audit Rights. (i) Provided that no Event of Default has occurred, Tenant ExpeData shall have maintain complete and accurate financial records in accordance with GAAP relating to the right (“Audit Right”) to, one time per calendar year Digital Pen and Paper Systems and associated Online Services rendered to International Associates. At all times during the Lease Termterm of this Agreement and for two (2) years after the expiration or termination hereof for any reason, audit LandlordExpeData shall maintain and furnish to Standard, on request, complete, accurate and current records reasonably required by Standard to evaluate ExpeData’s performance of, and compliance with, its obligations under this Agreement. At all times during the term of this Agreement and for two (2) years after the expiration or termination hereof for any reason, ExpeData shall permit Standard, its agents and representatives to inspect ExpeData’s facilities and records and books used by Landlord in determining the amount of Direct Expenses Tenant is obligated to pay to Landlord during regular business hours on five business days’ notice for the sole purpose of verifying the accuracy ascertaining ExpeData’s performance of same (the “Audit”). Any Audit shall cover only one (1) calendar year during the Term of the Lease. Tenant shall provide Landlord at least thirty (30) days prior written notice requesting the Audit, provided, however, that Tenant’s right, if any, to exercise and compliance with its Audit Right for any subject year shall expire sixty (60) days after the delivery to Tenant of the Direct Expense Statement for the calendar year, including the last year of the Lease Term, which Tenant desires to audit and, unless such right is exercised prior to such time, Tenant shall have waived its right to request such an Audit. Landlord shall make said books and records relevant to such Audit available to Tenant during Landlord’s customary business hours at the office of the property manager of the Project or at such other location designated by Landlord in writing.
(ii) Tenant shall pay all reasonable and necessary third party out-of-pocket costs for the Audit, including, without limitation, all of Landlord’s costs and expenses, including reasonable attorney and accountant fees.
(iii) The Audit shall only be conducted by a reputable accounting firm (“Accounting Firm”) approved in writing by Landlord. As a condition precedent to any such Audit, Tenant shall deliver to Landlord a copy of Tenant’s written agreement with such Accounting Firm, which agreement shall include provisions which state that: (A) Landlord is an intended third-party beneficiary of such agreement, (B) such Accounting Firm is not being engaged as a contingency or other incentive based auditor; (C) such Accounting Firm will not in any manner solicit or agree to represent any other tenant of the Project with respect to an audit or other review of Landlord’s accounting records at the Project, and (D) such Accounting Firm shall maintain in strict confidence any and all information obtained in connection with the Audit and shall not disclose such information to any person or entity other than to the management personnel of Tenant. The Accounting Firm, Landlord and Tenant shall enter into a confidentiality agreement in form and substance acceptable to Landlord whereby the Accounting Firm and Tenant shall covenant, among other things, that the Accounting Firm and the Tenant shall keep the books and records of Landlord in strict confidence.
(iv) In the event that the amount of Direct Expenses paid by Tenant to Landlord exceed the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, and after such Audit is confirmed and accepted by Landlord, in Landlord’s reasonable discretion, such difference shall be applied to the next succeeding payment of Direct Expenses due by Tenant to Landlordobligations under this Agreement. In the event that any such audit reveals any shortfall in payment by ExpeData, ExpeData shall promptly pay any shortfall with interest as provided herein. In the amount of Direct Expenses paid event any such audit reveals any overpayment by Tenant ExpeData to Landlord Standard, Standard shall promptly reimburse ExpeData for such overpayment with interest as provided herein. In the event any such audit reveals an under payment by ExpeData which is less than the actual amount of Direct Expenses owed in error by Tenant 10% or more, in addition to Landlord as disclosed by the Auditpaying any such shortfall, Tenant ExpeData promptly shall pay reimburse Standard fully for all reasonable costs related to such difference to Landlord within ten (10) days of such determination.
(v) Nothing contained herein shall be construed as providing Tenant with any right or option to examine any other books and records of Landlord or any of Landlord’s affiliated entitiesaudit. Notwithstanding anything to the contrary contained hereinTHE PROVISIONS OF THIS EXHIBIT E SHALL ONLY APPLY IN THE EVENT THAT STANDARD REFERS THE REFERRAL CUSTOMER TO EXPEDATA FOR THE SALE AND LICENSE OF THE DIGITAL PEN AND PAPER SYSTEM DIRECTLY FROM EXPEDATA TO THE REFERRAL CUSTOMER. IN THE EVENT STANDARD RESELLS THE DIGITAL PEN AND PAPER SYSTEM TO THE REFERRAL CUSTOMER AS PERMITTED PURSUANT TO THE PROVISIONS OF THIS EXHIBIT E, the Audit Right granted herein is personal to the originally named Tenant, shall be exercisable only by such originally named Tenant and may not be assigned or exercised by any assignee, sublessee or transferee of Tenant’s interest in this Lease or any successor in interest to Tenant.THEN THE REMAINING PROVISIONS OF THIS EXHIBIT E SHALL NOT APPLY WITH RESPECT TO THAT REFERRAL CUSTOMER. {00295508.DOC;}- 24 - EXHIBIT F EXPEDATA DIGITAL PEN AND PAPER PRICING AND DISCOUNTS EXHIBIT G INSURANCE REQUIREMENTS Commercial General Liability:
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Audit Rights. If Tenant disputes the amount of the actual Escalation Rent set forth in any Annual Statement delivered by Landlord to Tenant pursuant to Section 5.2, Landlord shall provide to Tenant in reasonable detail for the year in dispute the calculations performed to determine the Escalation Rent in accordance with the applicable provisions of this Lease. Landlord shall show by account the total of Operating Expenses and Real Property Taxes and all adjustments corresponding to the requirements as set forth herein. Landlord shall also provide details of the Building occupancy throughout such year. Landlord shall provide or otherwise make available to Tenant (ivia email or electronic sharing site and/or by providing access to such documentation at the office of Landlord or its property manager in San Francisco or Oakland), upon thirty (30) Provided that no Event days written notice to Landlord, reasonable back-up detail, including calculations, invoice copies etc. to substantiate the amount of Default has occurredEscalation Rent. If such procedure does not resolve any dispute, Tenant shall have the right (“Audit Right”) toright, one time per calendar year during the Lease Termat Tenant’s sole cost, audit Landlord’s records and books used by Landlord in determining the amount of Direct Expenses Tenant is obligated to pay to Landlord for the sole purpose of verifying the accuracy of same (the “Audit”). Any Audit shall cover only one (1) calendar year during the Term of the Lease. Tenant shall provide Landlord at least after thirty (30) days prior written notice requesting the Audit, provided, however, that Tenant’s right, if anyto Landlord, to exercise its Audit Right for any subject year shall expire sixty (60) days after the delivery to Tenant of the Direct Expense Statement for the calendar yearinspect at Landlord’s property management office or other location in San Francisco or Oakland as determined by Landlord, including the last year of the Lease Termduring normal business hours, which Tenant desires to audit and, unless such right is exercised prior to such time, Tenant shall have waived its right to request such an Audit. Landlord shall make said Landlord’s books and records relevant to such Audit available to Tenant during Landlord’s customary business hours at concerning the office of the property manager of the Project or at such other location designated by Landlord in writing.
Escalation Rent (ii) Tenant shall pay all reasonable and necessary third party out-of-pocket costs for the Audit, including, without limitation, all reasonable back-up details provided including calculations and invoices) set forth in such Annual Statement, for the calendar year in question (and, with respect to the first year following the Base Year for Escalation Rent disputes, Landlord shall also provide such information for the Base Year); provided, however, Tenant shall have no right to conduct such inspection, have an inspection performed by the Accountant (as defined below) or otherwise dispute the amount of the Operating Expenses or Real Estate Taxes set forth in any Annual Statement unless Tenant does so within twelve (12) months following Landlord’s costs delivery of the Annual Statement in question (the “Review Period”); provided, further, that notwithstanding any such timely objection, dispute, and/or inspection, and expenses, including reasonable attorney and accountant fees.
(iii) The Audit shall only be conducted by a reputable accounting firm (“Accounting Firm”) approved in writing by Landlord. As as a condition precedent to any such AuditTenant’s exercise of its right of objection, dispute, and/or inspection as set forth in this Section 5.3, Tenant shall deliver not be permitted to withhold payment of, and Tenant shall timely pay to Landlord, the full amounts as required by the provisions of this Article 5 in accordance with such Annual Statement. If, after such inspection, Tenant still disputes the amount of the Escalation Rent set forth in the Annual Statement, Tenant shall have the right, within ninety (90) days thereafter, to cause an independent certified public accountant with commercial real estate audit experience who is an employee of Tenant or who is a consultant not being retained on a contingency basis (the “Accountant”) to commence and complete an inspection of Landlord’s books and records to determine the proper amount of the Escalation Rent incurred and amounts payable by Tenant for the calendar year that is the subject of such Annual Statement, and to provide the results of such inspection to Landlord a copy of and Tenant. Such Accountant shall be engaged by Tenant, at Tenant’s written agreement with cost. If such Accounting Firminspection reveals that Landlord has over-charged Tenant, which agreement then Landlord shall include provisions which state that: (A) Landlord is an intended third-party beneficiary credit against Tenant’s rental obligations next falling due the amount of such agreementover-charge. If the inspection reveals that the Tenant was undercharged, then within forty-five (B45) days after the results of such Accounting Firm is inspection are made available to Tenant, Tenant shall reimburse to Landlord the amount of such under-charge. The payment by Tenant of any amounts pursuant to this Article 5 shall not being engaged preclude Tenant from questioning the correctness of any Annual Statement provided by Landlord at any time during the Review Period, but the failure of Tenant to object in writing thereto, conduct and complete its inspection and request that Landlord have the Accountant conduct the inspection as a contingency or other incentive based auditor; (C) described above prior to the expiration of the Review Period shall be conclusively deemed Tenant’s approval of the Annual Statement in question and the amount of Escalation Rent shown thereon. The results of any such Accounting Firm will inspection shall be kept strictly confidential by Tenant and the Accountant, and Tenant and the Accountant must agree in their contract for such services, to such confidentiality restrictions and shall specifically agree that the results shall not in any manner solicit or agree be made available to represent any other tenant of the Project Project. If Tenant’s inspection reveals that Landlord’s Annual Statement overstated the amount of the Operating Expenses or Real Property Taxes by more than five percent (5%), Landlord shall reimburse Tenant for any and all reasonable costs incurred by Tenant in connection with respect to an audit or other Tenant’s review of Landlord’s accounting records at the Project, and (D) such Accounting Firm shall maintain in strict confidence any and all information obtained in connection with the Audit and shall not disclose such information to any person or entity other than to the management personnel of Tenant. The Accounting Firm, Landlord and Tenant shall enter into a confidentiality agreement in form and substance acceptable to Landlord whereby the Accounting Firm and Tenant shall covenant, among other things, that the Accounting Firm and the Tenant shall keep the books and records of Landlord in strict confidence.
within thirty (iv) In the event that the amount of Direct Expenses paid by Tenant to Landlord exceed the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, and after such Audit is confirmed and accepted by Landlord, in Landlord’s reasonable discretion, such difference shall be applied to the next succeeding payment of Direct Expenses due by Tenant to Landlord. In the event that the amount of Direct Expenses paid by Tenant to Landlord is less than the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, Tenant shall pay such difference to Landlord within ten (1030) days of such determination.
(v) Nothing contained herein shall be construed as providing Tenant with any right or option to examine any other books and records of Landlord or any of Landlord’s affiliated entities. Notwithstanding anything to receipt of request for payment from Tenant; provided, however, if Landlord reasonably disputes the contrary contained herein, the Audit Right granted herein is personal to the originally named Tenant, shall be exercisable only by such originally named Tenant and may not be assigned or exercised by any assignee, sublessee or transferee outcome of Tenant’s interest in this Lease or review, Tenant and Landlord shall reasonably resolve any successor in interest to Tenantsuch dispute.
Appears in 1 contract
Samples: Agreement to Enter Into Lease and Purchase Option (PACIFIC GAS & ELECTRIC Co)
Audit Rights. Following Tenant’s request, Landlord shall provide Tenant with any supporting documentation in Landlord’s possession for any specific item of Operating Expenses, Tax Expenses and/or Utilities Costs. If Tenant disputes the amount of the Operating Expenses, Tax Expenses and Utilities Costs set forth in the Statement for the particular Expense Year delivered by Landlord to Tenant pursuant to Section 4.3.2 above (i) Provided that no Event of Default has occurredincluding, without limitation, the applicable Base Year), Tenant shall have the right, at Tenant’s cost, after reasonable notice to Landlord, to have Tenant’s authorized employees (or the Accountant, as defined below) inspect, at Landlord’s office in Los Angeles and/or Orange Counties during normal business hours, Landlord’s books, records and supporting documents concerning the Operating Expenses, Tax Expenses and Utilities Costs for such Expense Year set forth in such Statement; provided, however, Tenant shall have no right to conduct such inspection, have an audit performed by the Accountant as described below, or object to or otherwise dispute the amount of the Operating Expenses, Tax Expenses and Utilities Costs set forth in any such Statement unless Tenant notifies Landlord of such objection and dispute, completes such inspection, and has the Accountant commence and complete such audit within twenty-four (24) months immediately following Landlord’s delivery of the particular Statement in question (the “Audit RightReview Period”), which Review Period shall also be twenty-four (24) tomonths after Tenant receives the first Statement of Operating Expenses, one Tax Expenses and Utilities Costs with respect to Tenant’s right to object, dispute, inspect and audit the Operating Expenses included in the Expense Base Year, the Tax Expenses included in the Tax Expense Base Year and the Utilities Costs included in the Utilities Base Year (except that Tenant shall have the right at any time per calendar year during the Lease TermTerm to inspect the Operating Expenses included in the Expense Base Year, the Tax Expenses included in the Tax Expense Base Year and the Utilities Costs included in the Utilities Base Year in connection with any objection, dispute, inspection and/or audit of the Operating Expenses, Tax Expenses and/or the Utilities Costs included in any Expense Year after the Expense Base Year, Tax Expense Base Year and Utilities Base Year, it being agreed, however, that Tenant shall only have the right to object to, dispute and/or conduct the audit described hereinbelow of the Operating Expenses included in the Expense Base Year, the Tax Expenses included in the Tax Expense Base Year and the Utilities Costs included in the Utilities Base Year during the first 24-month Review Period described hereinabove); provided, further, that notwithstanding any such timely objection, dispute, inspection, and/or audit, and as a condition precedent to Tenant’s exercise of its right of objection, dispute, inspection and/or audit as set forth in this Section 4.7, Tenant shall not be permitted to withhold payment of, and Tenant shall timely pay to Landlord, the full amounts as required by the provisions of this Article 4 in accordance with such Statement. Any payments made by Tenant pertaining to any Operating Expenses, Tax Expenses and Utilities Costs that are timely disputed by Tenant pursuant to this Section 4.7 shall be deemed to be made (or have been made) under protest (but does not need to be specifically designated as being made under protest) pending the outcome of any audit of such disputed item which may be performed by the Accountant as described below. In connection with any such inspection by Tenant and/or audit performed by the Accountant as described below, Landlord and Tenant shall reasonably cooperate with each other so that such inspection and/or audit can be performed pursuant to a mutually acceptable schedule, in an expeditious manner and without undue interference with Landlord’s records operation and books used by Landlord in determining management of the Project. If after such inspection and/or request for documentation, Tenant still disputes the amount of Direct the Operating Expenses, Tax Expenses and Utilities Costs set forth in the Statement, Tenant shall have the right, within the Review Period, to cause an independent certified public accountant (which is obligated to pay to not paid on a commission or contingency basis) selected by Tenant and reasonably approved by Landlord for the sole purpose of verifying the accuracy of same (the “AuditAccountant”). Any Audit shall cover only one (1) calendar year during to complete an audit of Landlord’s books and records to determine the Term proper amount of the LeaseOperating Expenses, Tax Expenses and Utilities Costs incurred and amounts payable by Tenant for the Expense Year which is the subject of such Statement. Such audit by the Accountant shall be final and binding upon Landlord and Tenant. If Landlord and Tenant cannot mutually agree as to the identity of the Accountant within fifteen (15) days after Tenant notifies Landlord that Tenant desires an audit to be performed, then the Accountant shall provide be one of the “Big 4” accounting firms (which is not paid on a commission or contingency basis and is not representing or engaged by Tenant or Landlord at least in other matters, and has not represented or been engaged by Tenant or Landlord for any matter for the 5-year period preceding the audit), as selected by Tenant and reasonably approved by Landlord. If such audit reveals that Landlord has over-charged Tenant, then within thirty (30) days prior written notice requesting after the Auditresults of such audit are made available to Landlord, providedLandlord shall reimburse to Tenant the amount of such over-charge, howevertogether with interest at the Interest Rate on the amount of the over-charge. If the audit reveals that the Tenant was under-charged, that Tenant’s right, if any, to exercise its Audit Right for any subject year shall expire sixty then within thirty (6030) days after the delivery results of such audit are made available to Tenant of the Direct Expense Statement for the calendar year, including the last year of the Lease Term, which Tenant desires to audit and, unless such right is exercised prior to such timeTenant, Tenant shall reimburse to Landlord the amount of such under-charge. Tenant agrees to pay the cost of such audit unless it is subsequently determined that Landlord’s original Statement which was the subject of such audit overstated Operating Expenses, Tax Expenses and Utilities Costs by three percent (3%) or more of the actual Operating Expenses, Tax Expenses and Utilities Costs which was the subject of such audit, in which case all reasonable and documented costs incurred by Tenant in connection with said audit (but not in excess of twice the over-charge) shall be reimbursed by Landlord within thirty (30) days after demand therefor. The payment by Tenant of any amounts pursuant to this Article 4 shall not preclude Tenant from questioning, during the Review Period, the correctness of the particular Statement in question provided by Landlord, but the failure of Tenant to object thereto, conduct and complete its inspection and have waived its right the Accountant conduct the audit as described above prior to the expiration of the Review Period for such Statement shall be conclusively deemed Tenant’s approval of the Statement in question and the amount of Operating Expenses, Tax Expenses and Utilities Costs shown thereon. If following Tenant’s delivery to Landlord of a written request such an Audit. Landlord shall to make said Landlord’s books and records relevant to such Audit regarding the Operating Expenses, Tax Expenses and Utilities Costs reasonably available to Tenant and/or the Accountant to conduct any such inspection and/or audit described above in this Section 4.7, Landlord fails to make Landlord’s books reasonably available for such purposes during Landlord’s customary normal business hours at hours, and such failure continues for one (1) business day after Tenant notifies Landlord thereof, then the office Review Period shall be extended one (1) day for each such day that Tenant and/or the Accountant, as the case may be, is so prevented from accessing such books and records. In connection with any inspection and/or audit conducted by Tenant pursuant to this Section 4.7, Tenant agrees to keep, and to cause all of Tenant’s employees and consultants and the property manager of the Project or at such other location designated by Landlord in writing.
(ii) Tenant shall pay all reasonable and necessary third party out-of-pocket costs for the Audit, including, without limitationAccountant to keep, all of Landlord’s costs books and expensesrecords and the audit, including reasonable attorney and accountant fees.
all information pertaining thereto and the results thereof, strictly confidential (iii) The Audit shall only be conducted except if required by a reputable accounting firm (“Accounting Firm”) approved any court to disclose such information or if such information is available from an inspection of public records), and in writing by Landlord. As a condition precedent to any such Auditconnection therewith, Tenant shall deliver to Landlord a copy of Tenant’s written agreement with cause such Accounting Firmemployees, which agreement shall include provisions which state that: (A) Landlord is an intended third-party beneficiary of such agreement, (B) such Accounting Firm is not being engaged as a contingency or other incentive based auditor; (C) such Accounting Firm will not in any manner solicit or agree to represent any other tenant of consultants and the Project with respect to an audit or other review of Accountant reviewing Landlord’s accounting records at the Project, and (D) such Accounting Firm shall maintain in strict confidence any and all information obtained in connection with the Audit and shall not disclose such information to any person or entity other than to the management personnel of Tenant. The Accounting Firm, Landlord and Tenant shall enter into a confidentiality agreement in form and substance acceptable to Landlord whereby the Accounting Firm and Tenant shall covenant, among other things, that the Accounting Firm and the Tenant shall keep the books and records of to execute such commercially reasonable confidentiality agreements as Landlord in strict confidencemay require prior to conducting any such inspections and/or audits.
(iv) In the event that the amount of Direct Expenses paid by Tenant to Landlord exceed the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, and after such Audit is confirmed and accepted by Landlord, in Landlord’s reasonable discretion, such difference shall be applied to the next succeeding payment of Direct Expenses due by Tenant to Landlord. In the event that the amount of Direct Expenses paid by Tenant to Landlord is less than the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, Tenant shall pay such difference to Landlord within ten (10) days of such determination.
(v) Nothing contained herein shall be construed as providing Tenant with any right or option to examine any other books and records of Landlord or any of Landlord’s affiliated entities. Notwithstanding anything to the contrary contained herein, the Audit Right granted herein is personal to the originally named Tenant, shall be exercisable only by such originally named Tenant and may not be assigned or exercised by any assignee, sublessee or transferee of Tenant’s interest in this Lease or any successor in interest to Tenant.
Appears in 1 contract
Samples: Office Lease (United Online Inc)
Audit Rights. At the request of Tenant at any time within twelve (i12) Provided that no Event months after Landlord delivers Landlord's statement of Default has occurredLandlord's Operating Expenses and Taxes to Tenant, Tenant (at Tenant's expense) shall have the right (“Audit Right”) to, one time per calendar year during the Lease Term, audit to examine Landlord’s records and books used by Landlord in determining the amount of Direct Expenses Tenant is obligated to pay to Landlord for the sole purpose of verifying the accuracy of same (the “Audit”). Any Audit shall cover only one (1) calendar year during the Term of the Lease. Tenant shall provide Landlord at least thirty (30) days prior written notice requesting the Audit, provided, however, that Tenant’s right, if any, to exercise its Audit Right for any subject year shall expire sixty (60) days after the delivery to Tenant of the Direct Expense Statement for the calendar year, including the last year of the Lease Term, which Tenant desires to audit and, unless such right is exercised prior to such time, Tenant shall have waived its right to request such an Audit. Landlord shall make said 's books and records relevant applicable to such Audit Landlord's Operating Expenses and Taxes. Such right to examine the records shall be exercisable: (a) upon reasonable advance notice to Landlord and at reasonable times during Landlord's business hours; (b) only during the twelve (12) month period following Tenant's receipt of Landlord's statement of the actual amount of Landlord's Operating Expenses and Taxes for the applicable calendar year; and (c) not more than once each calendar year. Landlord's statement of Operating Expenses and Taxes shall be deemed conclusive except as to items specifically disputed in writing by notice from Landlord to Tenant given within two (2) months after Landlord makes its books and records available to Tenant during Landlord’s customary business hours at the office of the property manager of the Project or at such other location designated by Landlord in writing.
(ii) pursuant to this Section 2.6.5. Tenant shall pay all reasonable costs of the audit unless Tenant is found to have overpaid Additional Rent for Operating Expenses and necessary third party out-of-pocket costs Taxes by more than 5% for the Audit, including, without limitation, all year in question. In any event any audit of Landlord’s costs 's Operating Expenses and expenses, including reasonable attorney and accountant fees.
(iii) The Audit Taxes shall only be conducted by an independent certified public accountant retained by Tenant or an auditing firm approved by Landlord for such purpose (each, an "examiner"). In no event shall Tenant propose, nor shall Landlord ever be required to approve, any examiner of Tenant who is being paid on a reputable accounting firm (“Accounting Firm”) approved in writing by Landlordcontingent fee basis. As a condition precedent to performing any such Auditexamination of Landlord's books and records, Tenant and its examiners shall be required to execute and deliver to Landlord a copy of Tenant’s written an agreement in form acceptable to Landlord agreeing to keep confidential any information that they discover about Landlord or the Building in connection with such Accounting Firmexamination. Without limiting the foregoing, which agreement such examiners shall include provisions which state that: (A) Landlord is an intended third-party beneficiary of such agreement, (B) such Accounting Firm is not being engaged as a contingency or other incentive based auditor; (C) such Accounting Firm also be required to agree that they will not in any manner solicit or agree to represent any other tenant of in the Project with respect to an audit or other review of Landlord’s accounting records at the Project, and (D) such Accounting Firm shall maintain in strict confidence any and all information obtained Building in connection with examinations of Landlord's books and records for the Audit and shall not disclose such information to any person or entity other than Building Complex unless said tenant(s) have retained said examiners prior to the management personnel date of Tenantthe first examination of Landlord's books and records conducted by Tenant pursuant to this Section 2.6.5 and have been continuously represented by such examiners since that time. The Accounting FirmNotwithstanding any prior approval of any examiners by Landlord, Landlord shall have the right to rescind such approval at any time if in Landlord's reasonable judgment the examiners have breached any confidentiality undertaking to Landlord or any other landlord or cannot provide acceptable assurances and procedures to maintain confidentiality. Upon the first examination by Tenant, if any, of Landlord's books and records pursuant to this Section 2.6.5, Landlord shall also provide Tenant with a statement of Landlord's Operating Expenses and Taxes for the calendar year 2005, and Tenant shall enter into a confidentiality agreement in form and substance acceptable have the right to Landlord whereby the Accounting Firm and Tenant shall covenant, among other things, that the Accounting Firm and the Tenant shall keep the examine Landlord's books and records of Landlord in strict confidencefor such calendar year pursuant to this Section 2.6.5.
(iv) In the event that the amount of Direct Expenses paid by Tenant to Landlord exceed the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, and after such Audit is confirmed and accepted by Landlord, in Landlord’s reasonable discretion, such difference shall be applied to the next succeeding payment of Direct Expenses due by Tenant to Landlord. In the event that the amount of Direct Expenses paid by Tenant to Landlord is less than the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, Tenant shall pay such difference to Landlord within ten (10) days of such determination.
(v) Nothing contained herein shall be construed as providing Tenant with any right or option to examine any other books and records of Landlord or any of Landlord’s affiliated entities. Notwithstanding anything to the contrary contained herein, the Audit Right granted herein is personal to the originally named Tenant, shall be exercisable only by such originally named Tenant and may not be assigned or exercised by any assignee, sublessee or transferee of Tenant’s interest in this Lease or any successor in interest to Tenant.
Appears in 1 contract
Samples: Office Lease (Mac-Gray Corp)
Audit Rights. Construction Manager's records, which shall include, but not be limited to, accounting records, payroll time sheets, written policies and procedures, computer records, disks and software, videos, photographs, subcontract files (iincluding proposals of successful and unsuccessful bidders), original estimates, estimating worksheets, correspondence, change order files, (including documentation covering negotiated settlements), and other supporting evidence necessary to substantiate charges related to this Agreement(all the foregoing hereinafter referred to as "records”) Provided that no Event shall be open to inspection and subject to audit and/or reproduction, during normal working hours, by Owner's agent or its authorized representative to the extent necessary to adequately permit evaluation and verification of Default has occurredany invoices, Tenant payments or claims submitted by the Construction Manager or any of his payees pursuant to the execution of this Agreement. Such records subject to examination shall also include, but not be limited to, those records necessary to evaluate and verify direct and indirect costs as they may apply to reimbursable costs associated with this Agreement. All records shall be provided by Construction Manager within a reasonable period of time not to exceed 30 days following receipt of Owner’s written request. Construction Manager shall keep all records and supporting documentation which concern or relate to the work hereunder for a minimum of three (3) years from the date of termination of this Agreement or the date the Project is completed, whichever is later or such longer period of time as may be required by law. Construction Manager shall require all of its subcontractors to likewise retain all of their Project records and supporting documentation. Owner and any duly authorized agents or representatives of Owner, shall be provided access to all such records and supporting documentation at any and all times during normal business hours upon request by Owner. Further, Owner, and any duly authorized agents or representatives of Owner, shall have the right (“Audit Right”) toto audit, one time per calendar year during inspect and copy all of Construction Manager’s and any subcontractor’s Project records and documentation as often as they deem necessary and Construction Manager shall cooperate in any audit, inspection, or copying of the Lease Termdocuments. If at any time, Owner conducts such an audit Landlordof Construction Manager’s records and books used by Landlord documentation and finds that Construction Manager overcharged Owner for any compensation or costs incurred in determining the amount of Direct Expenses Tenant is obligated to Project, Construction Manager shall pay to Landlord for Owner the sole purpose Overcharged Amount which is defined as the total aggregate overcharged amount together with interest thereon (such interest to be established at the rate of verifying the accuracy of same (the “Audit”12% annum). Any If the Overcharged Amount is equal to or greater than $85,000, Construction Manager shall pay to Owner the Overcharged Amount and the Audit shall cover only one (1) calendar year during Amount which is defined as the Term total aggregate of Owner’s reasonable audit costs incurred as a result of its audit of Construction Manager. Owner may recover the Lease. Tenant shall provide Landlord at least thirty (30) days prior written notice requesting Overcharged Amount and the AuditAudit Amount, providedas applicable, however, that Tenant’s right, if any, from any amount due or owing Construction Manager with regard to exercise its Audit Right for any subject year shall expire sixty (60) days after the delivery to Tenant of the Direct Expense Statement for the calendar year, including the last year of the Lease Term, which Tenant desires to audit and, unless such right is exercised prior to such time, Tenant shall have waived its right to request such an Audit. Landlord shall make said books and records relevant to such Audit available to Tenant during Landlord’s customary business hours at the office of the property manager of the Project or at such other location designated by Landlord in writing.
(ii) Tenant shall pay all reasonable and necessary third party out-of-pocket costs for the Audit, including, without limitation, all of Landlord’s costs and expenses, including reasonable attorney and accountant fees.
(iii) The Audit shall only be conducted by a reputable accounting firm (“Accounting Firm”) approved in writing by Landlord. As a condition precedent to any such Audit, Tenant shall deliver to Landlord a copy of Tenant’s written agreement with such Accounting Firm, which agreement shall include provisions which state that: (A) Landlord is an intended third-party beneficiary of such agreement, (B) such Accounting Firm is not being engaged as a contingency or other incentive based auditor; (C) such Accounting Firm will not in any manner solicit or agree to represent under any other tenant of agreement between Construction Manager and Owner. If such amounts owed Construction Manager is insufficient to cover the Project with respect to an audit or other review of Landlord’s accounting records at the ProjectOvercharged Amount and Audit Amount, as applicable, then Construction Manager hereby acknowledges and (D) such Accounting Firm shall maintain in strict confidence any and all information obtained in connection with the Audit and shall not disclose such information to any person or entity other than to the management personnel of Tenant. The Accounting Firm, Landlord and Tenant shall enter into a confidentiality agreement in form and substance acceptable to Landlord whereby the Accounting Firm and Tenant shall covenant, among other things, agrees that the Accounting Firm and the Tenant shall keep the books and records of Landlord in strict confidence.
(iv) In the event that the amount of Direct Expenses paid by Tenant to Landlord exceed the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, and after such Audit is confirmed and accepted by Landlord, in Landlord’s reasonable discretion, such difference shall be applied to the next succeeding payment of Direct Expenses due by Tenant to Landlord. In the event that the amount of Direct Expenses paid by Tenant to Landlord is less than the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, Tenant it shall pay such difference remaining amounts to Landlord Owner within ten seven (107) business days of its receipt of Owner’s invoice for such determination.
(v) Nothing contained herein remaining amounts. In no event shall be construed as providing Tenant with any right the Overcharged Amount or option to examine any other books and records of Landlord or any of Landlord’s affiliated entities. Notwithstanding anything to the contrary contained herein, the Audit Right granted herein is personal Amount be deemed reimbursable to the originally named Tenant, shall be exercisable only by such originally named Tenant and may not be assigned or exercised by any assignee, sublessee or transferee of Tenant’s interest in this Lease or any successor in interest to TenantConstruction Manager.
Appears in 1 contract
Samples: Construction Manager Agreement
Audit Rights. Within 60 days after Landlord furnishes its statement of actual Operating Expenses for any calendar year (iincluding the Base Year) Provided that no Event of Default has occurredduring the Term (the “Audit Election Period”), Tenant shall have the right (“Audit Right”) tomay, one time per calendar year during the Lease Termat its expense, elect to audit Landlord’s records and books used by Landlord in determining Operating Expenses for such calendar year only, subject to the amount of Direct Expenses Tenant is obligated to pay to Landlord for the sole purpose of verifying the accuracy of same (the “Audit”). Any Audit shall cover only one following conditions: (1) calendar year during there is no uncured event of default under this Lease; (2) the Term audit shall be prepared by an independent certified public accounting firm of recognized national standing; (3) in no event shall any audit be performed by a firm compensated in any material respect on a “contingency fee” basis; (4) the Lease. Tenant audit shall provide Landlord at least thirty (30) days prior written notice requesting the Audit, provided, however, that Tenant’s right, if any, to exercise its Audit Right for any subject year shall expire sixty (60) commence within 30 days after the delivery to Tenant of the Direct Expense Statement for the calendar year, including the last year of the Lease Term, which Tenant desires to audit and, unless such right is exercised prior to such time, Tenant shall have waived its right to request such an Audit. Landlord shall make said makes Landlord’s books and records relevant to such Audit available to Tenant Tenant’s auditor and shall conclude within 60 days after commencement; (5) the audit shall be conducted during Landlord’s customary normal business hours at the office of location where Landlord maintains its books and records and shall not unreasonably interfere with the property manager of the Project or at such other location designated by Landlord in writing.
(ii) Tenant shall pay all reasonable and necessary third party out-of-pocket costs for the Audit, including, without limitation, all conduct of Landlord’s costs business; and expenses(6) Tenant and its accounting firm shall treat any audit in a confidential manner and shall each execute Landlord’s confidentiality agreement for Landlord’s benefit prior to commencing the audit. This paragraph shall not be construed to limit, suspend, or xxxxx Tenant’s obligation to pay Rent when due, including reasonable attorney estimated Excess Operating Expenses. Landlord shall credit any overpayment determined by the final approved audit report against the next Rent due and accountant fees.
(iii) The Audit shall only be conducted by a reputable accounting firm (“Accounting Firm”) approved in writing by Landlord. As a condition precedent to any such Audit, Tenant shall deliver to Landlord a copy of Tenant’s written agreement with such Accounting Firm, which agreement shall include provisions which state that: (A) Landlord is an intended third-party beneficiary of such agreement, (B) such Accounting Firm is not being engaged as a contingency or other incentive based auditor; (C) such Accounting Firm will not in any manner solicit or agree to represent any other tenant of the Project with respect to an audit or other review of Landlord’s accounting records at the Project, and (D) such Accounting Firm shall maintain in strict confidence any and all information obtained in connection with the Audit and shall not disclose such information to any person or entity other than to the management personnel of Tenant. The Accounting Firm, Landlord and Tenant shall enter into a confidentiality agreement in form and substance acceptable to Landlord whereby the Accounting Firm and Tenant shall covenant, among other things, that the Accounting Firm and the Tenant shall keep the books and records of Landlord in strict confidence.
(iv) In the event that the amount of Direct Expenses paid owing by Tenant or, if no further Rent is due, refund such overpayment directly to Landlord exceed the actual amount Tenant within 30 days of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, and after such Audit is confirmed and accepted by Landlord, in Landlord’s reasonable discretion, such difference shall be applied to the next succeeding payment of Direct Expenses due by Tenant to Landlorddetermination. In the event that the amount of Direct Expenses paid by Tenant to Landlord is less than the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the AuditLikewise, Tenant shall pay such difference to Landlord any underpayment determined by the final approved audit report within ten (10) 30 days of such determination.
(v) Nothing contained herein . The foregoing obligations shall survive the expiration or termination of this Lease. If Tenant does not give written notice of its election to audit Landlord’s Operating Expenses during the Audit Election Period, Landlord’s Operating Expenses for the applicable calendar year shall be construed as providing deemed approved for all purposes, and Tenant with any shall have no further right to review or option contest the same. The right to examine any other books and records of Landlord or any of Landlord’s affiliated entities. Notwithstanding anything to the contrary contained herein, the Audit Right audit granted herein hereunder is personal to the originally initial Tenant named Tenant, shall be exercisable only by such originally named Tenant and may not be assigned or exercised by any assignee, sublessee or transferee of Tenant’s interest in this Lease or and to any successor in interest assignee under a Permitted Transfer (defined below) and shall not be available to Tenantany subtenant under a sublease of the Premises.
Appears in 1 contract
Audit Rights. Tenant or its agent shall have the right, for a period of ninety (90) days after Tenant's receipt of the statement of actual CAM Costs for each Calendar Year, and upon giving reasonable notice to Landlord and during normal business hours, to audit, review and inspect at Landlord's offices Landlord's bills, invoices and records applicable to the actual CAM Costs for that particular Calendar Year to verify the CAM Costs. Such audit, review and inspection shall be at Tenant's sole cost, except as otherwise provided below. Unless otherwise mutually agreed, should such audit, review or inspection result in a dispute by Tenant as to the CAM Costs charged by Landlord, such dispute shall be determined by arbitration, in the jurisdiction in which the Building is located, in accordance with the then current commercial rules of the American Arbitration Association. The costs of the arbitration shall be divided equally between Landlord and Tenant, except that each party shall bear the cost of its own legal fees, unless (i) Provided the arbitration results in a determination that no Event Landlord's statement contained a discrepancy of Default has occurredless than five percent (5%) in Landlord's favor, in which event Tenant shall have the right (“Audit Right”) to, one time per calendar year during the Lease Term, audit Landlord’s records and books used by Landlord bear all costs incurred in determining the amount of Direct Expenses Tenant is obligated to pay to Landlord for the sole purpose of verifying the accuracy of same (the “Audit”). Any Audit shall cover only one (1) calendar year during the Term of the Lease. Tenant shall provide Landlord at least thirty (30) days prior written notice requesting the Audit, provided, however, that Tenant’s right, if any, to exercise its Audit Right for any subject year shall expire sixty (60) days after the delivery to Tenant of the Direct Expense Statement for the calendar year, including the last year of the Lease Term, which Tenant desires to audit and, unless connection with such right is exercised prior to such time, Tenant shall have waived its right to request such an Audit. Landlord shall make said books and records relevant to such Audit available to Tenant during Landlord’s customary business hours at the office of the property manager of the Project or at such other location designated by Landlord in writing.
(ii) Tenant shall pay all reasonable and necessary third party out-of-pocket costs for the Auditarbitration, including, without limitation, reasonable legal fees, or (ii) the arbitration results in a determination that Landlord's statement contained a discrepancy of at least five percent (5%) in Landlord's favor, in which event Landlord shall bear all of Landlord’s costs and expenses, including reasonable attorney and accountant fees.
(iii) The Audit shall only be conducted by a reputable accounting firm (“Accounting Firm”) approved in writing by Landlord. As a condition precedent to any such Audit, Tenant shall deliver to Landlord a copy of Tenant’s written agreement with such Accounting Firm, which agreement shall include provisions which state that: (A) Landlord is an intended third-party beneficiary of such agreement, (B) such Accounting Firm is not being engaged as a contingency or other incentive based auditor; (C) such Accounting Firm will not in any manner solicit or agree to represent any other tenant of the Project with respect to an audit or other review of Landlord’s accounting records at the Project, and (D) such Accounting Firm shall maintain in strict confidence any and all information obtained incurred in connection with such arbitration, including, without limitation, reasonable legal fees. If such review, audit or inspection reveals that Landlord overstated Tenant's obligation for CAM Costs in any Calendar Year, the Audit and shall not disclose such information to any person or entity other than to the management personnel of Tenant. The Accounting Firm, Landlord and Tenant shall enter into a confidentiality agreement in form and substance acceptable to Landlord whereby the Accounting Firm and Tenant shall covenant, among other things, that the Accounting Firm and the Tenant shall keep the books and records of Landlord in strict confidence.
(iv) In the event that the amount of Direct Expenses paid by Tenant to Landlord exceed the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, and after such Audit is confirmed and accepted by Landlord, in Landlord’s reasonable discretion, such difference excess shall be applied to the credited against Tenant's next succeeding payment monthly payments of Direct Expenses due by Tenant to LandlordCAM Costs. In the event If such review, audit or inspection reveals that the amount of Direct Expenses paid by Tenant to Landlord is less than the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Auditunderstated Tenant's obligation for CAM Costs in any Calendar Year, Tenant shall pay the total amount of such difference deficiency to Landlord within ten thirty (1030) days of after such determination.
(v) Nothing contained herein shall be construed . During the pendency of any audit or arbitration proceedings as providing Tenant with any right or option to examine any other books and records of Landlord or any of Landlord’s affiliated entities. Notwithstanding anything to the contrary contained herein, the Audit Right granted herein is personal to the originally named Tenant, shall be exercisable only by such originally named Tenant and may not be assigned or exercised by any assignee, sublessee or transferee of Tenant’s interest provided for in this Lease or any successor in interest Section, Tenant shall continue to Tenantmake payments of CAM Costs as required by this Lease.
Appears in 1 contract
Samples: Lease Agreement (Gene Logic Inc)
Audit Rights. (i) Provided that no Event If Tenant disputes the amount of Default has occurredthe Operating Expenses set forth in the Statement for the particular calendar year delivered by Landlord to Tenant pursuant to Section 3.2. I .2 above, Tenant shall have the right right, at Tenant’s cost, after reasonable notice to Landlord, to have Tenant’s authorized employees inspect, at Landlord’s office (“Audit Right”or property manager’s office) toin Bexar County during normal business hours, one time per Landlord’s books, records and supporting documents concerning the Operating Expenses for such calendar year during set forth in such Statement (but not for any prior calendar year); provided, however, Tenant shall have no right to conduct such inspection, have an audit performed by the Lease TermAccountant as described hereinbelow, audit Landlord’s records and books used by Landlord in determining or object to or otherwise dispute the amount of Direct the Operating Expenses set forth in any such Statement unless Tenant is obligated to pay to notifies Landlord for of such objection and dispute, completes such inspection, and has the sole purpose Accountant commence and complete such audit within six (6) months _immediately following Landlord’s delivery of verifying the accuracy of same particular Statement in question (the “AuditReview Period”); provided, further, that notwithstanding any such timely objection, dispute, inspection, and/or audit, and as a condition precedent to Tenant’s exercise of its right of objection, dispute, inspection and/or audit as set forth in this Section 3.2.4, Tenant shall not be permitted to withhold payment of, and Tenant shall timely pay to Landlord, the full amounts as required by the provisions of this Article 3 in accordance with such Statement. Any Audit However, such payment may be made under protest pending the outcome of any audit which may be performed by the Accountant as described below. In connection with any such inspection by Tenant, Landlord and Tenant shall cover only one reasonably cooperate with each other so that such inspection can be performed pursuant to a mutually acceptable schedule, in an expeditious manner and without undue interference with Lxxxxxxx’s operation and management of the Building Complex. If after such inspection and/or request for documentation, Tenant still disputes the amount of the Operating Expenses set forth in the Statement, Tenant shall have the right, within the Review Period, to cause an independent certified public accountant (1which is not paid on a commission or contingency basis) selected by Tenant and reasonably approved by Landlord (the “Accountant”) to complete an audit of Landlord’s books and records to determine the proper amount of the Operating Expenses incurred and amounts payable by Tenant for the calendar year during which is the Term subject of such Statement (but not for any prior calendar year). Such audit by the Accountant shall be final and binding upon Landlord and Tenant. If Landlord and Txxxxx cannot mutually agree as to the identity of the LeaseAccountant within fifteen (15) days after Tenant notifies Landlord that Tenant desires an audit to be performed, then the Accountant shall be of the “Big 4” accounting firms (which is not paid on a commission or contingency basis), as selected by Tenant and reasonably approved by Landlord. Tenant shall provide Landlord at least If such audit reveals that Lxxxxxxx has over-charged Txxxxx, then within thirty (30) days prior written notice requesting after the Auditresults of such audit are made available to Landlord, providedLandlord shall reimburse to Tenant the amount of such over-charge, howevertogether with interest on the amount of the over-charge. If the audit reveals that the Tenant was under-charged, that Tenant’s right, if any, to exercise its Audit Right for any subject year shall expire sixty then within thirty (6030) days after the delivery results of such audit are made available to Tenant of the Direct Expense Statement for the calendar year, including the last year of the Lease Term, which Tenant desires to audit and, unless such right is exercised prior to such timeTenant, Tenant shall have waived its right reimburse to request Landlord the amount of such an Auditunder-charge. Landlord shall make said books and records relevant Tenant agrees to pay the cost of such Audit available to Tenant during Landlordaudit unless it is subsequently determined that Lxxxxxxx’s customary business hours at original Statement which was the office subject of such audit overstated Operating Expenses by six percent (6%) or more of the property manager actual Operating Expenses which was the subject of the Project or at such other location designated by Landlord audit, in writing.
(ii) Tenant shall pay which case all reasonable and necessary third party outdocumented costs incurred by Tenant in connection with said audit (but not in excess of the over-of-pocket costs charge) shall be reimbursed by Landlord within thirty (30) days after demand therefor. The payment by Tenant of any amounts pursuant to this Article 3 shall not preclude Tenant from questioning, during the Review Period, the correctness of the particular Statement in question provided by Landlord, but the failure of Tenant to object thereto, conduct and complete its inspection and have the Accountant conduct the audit as described above prior to the expiration of the Review Period for such Statement shall be conclusively deemed Tenant’s approval of the AuditStatement in question and the amount of Operating Expenses shown thereon. In connection with any inspection and/or audit conducted by Tenant pursuant to this Section 3.2.4, includingTxxxxx agrees to keep, without limitationand to cause all of Tenant’s employees and consultants and the Accountant to keep, all of Landlord’s costs books and expensesrecords and the audit, including reasonable attorney and accountant fees.
all information pertaining thereto and the results thereof, strictly confidential (iii) The Audit shall only be conducted except if required by a reputable accounting firm (“Accounting Firm”) approved any court to disclose such information or if such information is available from an inspection of public records), and in writing by Landlord. As a condition precedent to any such Auditconnection therewith, Tenant shall deliver to Landlord a copy of Tenant’s written agreement with cause such Accounting Firmemployees, which agreement shall include provisions which state that: (A) Landlord is an intended third-party beneficiary of such agreement, (B) such Accounting Firm is not being engaged as a contingency or other incentive based auditor; (C) such Accounting Firm will not in any manner solicit or agree to represent any other tenant of the Project with respect to an audit or other review of Landlord’s accounting records at the Project, and (D) such Accounting Firm shall maintain in strict confidence any and all information obtained in connection with the Audit and shall not disclose such information to any person or entity other than to the management personnel of Tenant. The Accounting Firm, Landlord and Tenant shall enter into a confidentiality agreement in form and substance acceptable to Landlord whereby the Accounting Firm and Tenant shall covenant, among other things, that the Accounting Firm consultants and the Tenant shall keep the books and records of Accountant to execute such reasonable confidentiality agreements as Landlord in strict confidencemay require prior to conducting any such inspections and/or audits.
(iv) In the event that the amount of Direct Expenses paid by Tenant to Landlord exceed the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, and after such Audit is confirmed and accepted by Landlord, in Landlord’s reasonable discretion, such difference shall be applied to the next succeeding payment of Direct Expenses due by Tenant to Landlord. In the event that the amount of Direct Expenses paid by Tenant to Landlord is less than the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, Tenant shall pay such difference to Landlord within ten (10) days of such determination.
(v) Nothing contained herein shall be construed as providing Tenant with any right or option to examine any other books and records of Landlord or any of Landlord’s affiliated entities. Notwithstanding anything to the contrary contained herein, the Audit Right granted herein is personal to the originally named Tenant, shall be exercisable only by such originally named Tenant and may not be assigned or exercised by any assignee, sublessee or transferee of Tenant’s interest in this Lease or any successor in interest to Tenant.
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Audit Rights. (i) Provided that no Event of Default has occurred, Tenant shall have the right (“Audit Right”) to, one time per calendar year during the Lease Term, audit Landlord’s records and books used by Landlord in determining the amount of Direct Expenses Tenant is obligated to pay to Landlord for the sole purpose of verifying the accuracy of same (the “Audit”). Any Audit shall cover only one (1) calendar year during the Term of the Lease. Tenant shall provide Landlord at least thirty (30) days prior written notice requesting the Audit, provided, however, that Tenant’s right, if any, to exercise its Audit Right for any subject year shall expire sixty (60) days after the delivery to Tenant of the Direct Expense Statement for the calendar year, including the last year of the Lease Term, which Tenant desires to audit and, unless such right is exercised prior to such time, Tenant shall have waived its right to request such an Audit. Landlord shall make said books and records relevant to such Audit available to Tenant during Landlord’s customary business hours at the office of the property manager of the Project or at such other location designated by Landlord in writing.
(ii) Tenant shall pay all reasonable and necessary third party out-of-pocket costs for the Audit, including, without limitation, all of Landlord’s costs and expenses, including reasonable attorney and accountant fees.
(iii) The Audit shall only be conducted by a reputable accounting firm (“Accounting Firm”) approved in writing by Landlord. As a condition precedent to any such Audit, Tenant shall deliver to Landlord a copy of Tenant’s written agreement with such Accounting Firm, which agreement shall include provisions which state that: (A) Landlord is an intended third-party beneficiary of such agreement, (B) such Accounting Firm is not being engaged as a contingency or other incentive based auditor; (C) such Accounting Firm will not in any manner solicit or agree to represent any other tenant of the Project with respect to an audit or other review of Landlord’s accounting records at the Project, and (D) such Accounting Firm shall maintain in strict confidence any and all information obtained in connection with the Audit and shall not disclose such information to any person or entity other than to the management personnel of Tenant. The Accounting Firm, Landlord and Tenant shall enter into a confidentiality agreement in form and substance acceptable to Landlord whereby the Accounting Firm and Tenant shall covenant, among other things, that the Accounting Firm and the Tenant shall keep the books and records of Landlord in strict confidence.
(iv) In the event that the amount of Direct Expenses paid by Tenant to Landlord exceed the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, and after such Audit is confirmed and accepted by Landlord, in Landlord’s reasonable discretion, such difference shall be applied to the next succeeding payment of Direct Expenses due by Tenant to Landlord. In the event that the amount of Direct Expenses paid by Tenant to Landlord is less than the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, Tenant shall pay such difference to Landlord within ten (10) days of such determination.
(v) Nothing contained herein shall be construed as providing Tenant with any right or option to examine any other books and records of Landlord or any of Landlord’s affiliated entities. Notwithstanding anything to the contrary contained hereinin this Section 4 or elsewhere in this Lease, if Tenant reasonably disputes any amount set forth in any Actual Statement described above in Section 4.9, Tenant will have the Audit Right granted herein is personal right not later than sixty (60) days following receipt of an Actual Statement and upon no less than ten (10) days notice to Landlord, to cause Landlord’s books and records with respect to the originally named Tenantpreceding calendar year only to be audited, at no cost or expense to Landlord, by Tenant or its CPA (defined herein). Any Certified Public Accountant (“CPA”) engaged by Tenant to inspect Landlord’s records shall be exercisable only by such originally named Tenant compensated on an hourly basis and may shall be subject to Landlord’s prior written approval, which approval shall not be assigned unreasonably withheld or exercised delayed. Any audit conducted by or on behalf of Tenant shall be performed at Landlord’s office during Landlord’s normal business hours and in a manner so as to minimize interference with Landlord’s business operations. Landlord shall have no obligation and Tenant shall have no right to make photocopies of any of Landlord’s ledgers, invoices or other items; Tenant’s audit to be limited to an on-site review of Landlord’s books and records respecting the accounting for the items comprising the Operating Expenses, Real Property Taxes and Assessments, Insurance Costs and Utilities Costs. Pending completion of any such audit, Tenant agrees to pay Landlord any such disputed Operating Expenses, Real Property Taxes and Assessments, Insurance Costs and Utilities Costs amounts. Tenant agrees to keep, and to cause its CPA and employees to keep, all information revealed by any assignee, sublessee audit of Landlord’s books and records strictly confidential and not to disclose any such information or transferee of permit any such information to be disclosed to anyone other than Landlord or Tenant’s interest auditors or attorneys, unless compelled to do so by a court of law or in this Lease connection with any litigation between Landlord and Tenant with respect to same. The inspection of Landlord’s records must be completed within five (5) days after such records are made available to Tenant or any successor in interest to Tenantits CPA.
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Audit Rights. Purchaser has advised Seller that Purchaser must cause to be prepared up to three (i3) Provided that no Event years of Default has occurred, Tenant shall have the right (“Audit Right”) to, one time per calendar year during the Lease Term, audit Landlord’s records and books used by Landlord audited financial statements in determining the amount of Direct Expenses Tenant is obligated to pay to Landlord for the sole purpose of verifying the accuracy of same (the “Audit”). Any Audit shall cover only one (1) calendar year during the Term respect of the Lease. Tenant shall provide Landlord at least thirty (30) days prior written notice requesting Property in compliance with the Audit, provided, however, that Tenant’s right, if any, to exercise its Audit Right for any subject year shall expire sixty (60) days after the delivery to Tenant policies of the Direct Expense Statement for the calendar year, including the last year of the Lease Term, which Tenant desires to audit and, unless such right is exercised prior to such time, Tenant shall have waived its right to request such an Audit. Landlord shall make said books Purchaser and records relevant to such Audit available to Tenant during Landlord’s customary business hours at the office of the property manager of the Project or at such other location designated by Landlord in writing.
(ii) Tenant shall pay all reasonable certain laws and necessary third party out-of-pocket costs for the Auditregulations, including, without limitation, all Securities and Exchange Commission Regulation S-X. Seller agrees to use reasonable efforts to cooperate with Purchaser’s auditors in the preparation of Landlordsuch audited financial statements (it being understood and agreed that the foregoing covenant shall survive the Closing). Without limiting the generality of the preceding sentence (i) Seller shall, during normal business hours, allow Purchaser’s costs auditors reasonable access to such books and expenses, including records maintained by Seller (and Seller’s manager of the Property) in respect of the Property as necessary to prepare such audited financial statements; (ii) Seller shall use reasonable attorney efforts (at no material cost to Seller) to provide to Purchaser such financial information and accountant fees.
supporting documentation as are necessary for Purchaser’s auditors to prepare audited financial statements; (iii) The Audit if Purchaser or its auditors require any information that is in the possession of the party from which Seller purchased the Property, Seller shall only be conducted contact such prior owner of the Property and use commercially reasonable efforts (at no material cost to Seller) to obtain from such party the information requested by a reputable accounting firm Purchaser; (“Accounting Firm”iv) approved in writing Seller will make available for interview by Landlord. As a condition precedent to any such Audit, Tenant shall deliver to Landlord a copy Purchaser and Purchaser’s auditors the manager of Tenant’s written agreement with such Accounting Firm, which agreement shall include provisions which state that: (A) Landlord is an intended third-party beneficiary of such agreement, (B) such Accounting Firm is not being engaged as a contingency the Property or other incentive based auditor; (C) such Accounting Firm will not in any manner solicit agents or agree to represent any other tenant representatives of Seller responsible for the day-to-day operation of the Project with respect to an audit or other review of Landlord’s accounting records at the Project, and (D) such Accounting Firm shall maintain in strict confidence any and all information obtained in connection with the Audit and shall not disclose such information to any person or entity other than to the management personnel of Tenant. The Accounting Firm, Landlord and Tenant shall enter into a confidentiality agreement in form and substance acceptable to Landlord whereby the Accounting Firm and Tenant shall covenant, among other things, that the Accounting Firm Property and the Tenant shall keep keeping of the books and records in respect of Landlord in strict confidence.
(iv) In the event that operation of the amount of Direct Expenses paid by Tenant to Landlord exceed the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, Property; and after such Audit is confirmed and accepted by Landlord, in Landlord’s reasonable discretion, such difference shall be applied to the next succeeding payment of Direct Expenses due by Tenant to Landlord. In the event that the amount of Direct Expenses paid by Tenant to Landlord is less than the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, Tenant shall pay such difference to Landlord within ten (10) days of such determination.
(v) Nothing contained herein shall be construed as providing Tenant if Seller has audited financial statements with any right or option to examine any other books and records of Landlord or any of Landlord’s affiliated entities. Notwithstanding anything respect to the contrary contained hereinProperty specifically (as opposed to audited consolidated financials for Seller and its affiliates), Seller shall promptly provide Purchaser’s auditors with a copy of such audited financial statements for the Audit Right granted herein is personal Property specifically. If after the Closing Date Seller obtains an audited financial statement in respect of the Property specifically (as opposed to audited consolidated financials for Seller and its affiliates) for a fiscal period prior to the originally named TenantClosing Date that was not completed as of the Closing Date, then upon Purchaser’s written request Seller shall be exercisable only by promptly provide Purchaser with a copy of such originally named Tenant audited financial statement, and may not be assigned or exercised by any assignee, sublessee or transferee the foregoing covenant shall survive Closing. The provisions of Tenant’s interest in this Lease or any successor in interest to TenantSection 15.18 shall survive the Closing.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Behringer Harvard Reit I Inc)
Audit Rights. Seller agrees to make available to Buyer during normal business hours prior to and for a period of twelve (i12) Provided that no Event of Default has occurred, Tenant shall have the right (“Audit Right”) to, one time per calendar year during the Lease Term, audit Landlord’s records and books used by Landlord in determining the amount of Direct Expenses Tenant is obligated to pay to Landlord for the sole purpose of verifying the accuracy of same months following Closing (the “AuditRecords Period”). Any Audit shall cover only one (1) calendar year during any and all existing information and documents in the Term possession of the Lease. Tenant shall provide Landlord at least thirty (30) days prior written notice requesting the Audit, provided, however, Seller that TenantBuyer may reasonably require to comply with Buyer’s right, if any, to exercise its Audit Right for any subject year shall expire sixty (60) days after the delivery to Tenant of the Direct Expense Statement for the calendar year, including the last year of the Lease Term, which Tenant desires to audit and, unless such right is exercised prior to such time, Tenant shall have waived its right to request such an Audit. Landlord shall make said books or Buyer’s Affiliates tax and records relevant to such Audit available to Tenant during Landlord’s customary business hours at the office of the property manager of the Project or at such other location designated by Landlord in writing.
(ii) Tenant shall pay all reasonable financial reporting requirements and necessary third party out-of-pocket costs for the Auditaudits, including, without limitation, all filings with governmental authorities and filings that may be required by the Securities and Exchange Commission under the Securities Act of Landlord’s costs and expenses1933 and/or the Securities Exchange Act of 1934. Without limiting the generality of the foregoing, including Seller will use its commercially reasonable attorney and accountant fees.
(iii) The Audit shall only be conducted efforts during the Records Period to cooperate with the independent auditors chosen by a reputable accounting firm Buyer (“Accounting FirmBuyer’s Auditor”) approved in writing by Landlord. As a condition precedent connection with their audit or review of any revenue and expense statements of the Assets that Buyer or any of its Affiliates requires to comply with their tax, financial and other reporting requirements, and their review of any such Audit, Tenant shall deliver interim quarterly revenue and expense statements of the Assets that Buyer requires to Landlord a copy of Tenant’s written agreement comply with such Accounting Firmreporting requirements. Seller’s cooperation will include (i) such reasonable access during normal business hours to Seller’s employees, which agreement shall include provisions which state that: (A) Landlord is an intended third-party beneficiary representatives and agents who were responsible for preparing the revenue and expense statements and work papers and other supporting documents used in the preparation of such agreementfinancial statements as may be required by Buyer’s Auditor to perform an audit in accordance with generally accepted auditing standards or to otherwise verify such financial statements, and (Bii) delivery of one or more customary representation letters from Seller to Buyer’s Auditor that are requested by Buyer to allow such Accounting Firm auditors to complete an audit (or review of any interim quarterly financials), and to issue an opinion that in Buyer’s experience is not being engaged as a contingency or other incentive based auditor; (C) such Accounting Firm will not in any manner solicit or agree to represent any other tenant of the Project acceptable with respect to an its audit or other review review. By making available existing information and documents in the possession of Landlord’s accounting records at Seller during the ProjectRecords Period, and (D) Seller in no way represents or warrants the accuracy or completeness of such Accounting Firm shall maintain in strict confidence any and all information. If Buyer discovers there is information obtained in connection missing, Seller agrees to cooperate reasonably with the Audit and shall not disclose Buyer to request such information from third parties. Seller is under no obligation to any person update or entity correct such historical information or to assemble, create or produce additional financial, reserve or other than to the management personnel of Tenantinformation or analysis. The Accounting FirmBuyer will reimburse Seller, Landlord and Tenant shall enter into a confidentiality agreement in form and substance acceptable to Landlord whereby the Accounting Firm and Tenant shall covenant, among other things, that the Accounting Firm and the Tenant shall keep the books and records of Landlord in strict confidence.
(iv) In the event that the amount of Direct Expenses paid by Tenant to Landlord exceed the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, and after such Audit is confirmed and accepted by Landlord, in Landlord’s reasonable discretion, such difference shall be applied to the next succeeding payment of Direct Expenses due by Tenant to Landlord. In the event that the amount of Direct Expenses paid by Tenant to Landlord is less than the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, Tenant shall pay such difference to Landlord within ten (10) days Business Days after demand therefor, for any reasonable out-of-pocket and overhead costs with respect to any costs incurred by Seller in complying with the provisions of such determinationthis Section 9.5.
(v) Nothing contained herein shall be construed as providing Tenant with any right or option to examine any other books and records of Landlord or any of Landlord’s affiliated entities. Notwithstanding anything to the contrary contained herein, the Audit Right granted herein is personal to the originally named Tenant, shall be exercisable only by such originally named Tenant and may not be assigned or exercised by any assignee, sublessee or transferee of Tenant’s interest in this Lease or any successor in interest to Tenant.
Appears in 1 contract
Audit Rights. (ia) Provided that no Event of Default has occurredPrimo may audit (a) DSW’s books and records, Tenant shall have at its sole cost and expense except as otherwise set forth below, to verify the right (“Audit Right”) to, one time per calendar year delivered Product volumes on which payments are based during the Lease TermTerm and for three (3) years thereafter, audit Landlordand (b) DSW’s records inventory of Products, Bottles and books used by Landlord in determining Primo Display and Return Equipment and Materials during the amount of Direct Expenses Tenant is obligated to pay to Landlord Term and for the sole purpose of verifying the accuracy of same (the “Audit”). Any Audit shall cover only one (1) calendar year thereafter, at its sole cost and expense, to verify such inventories during the Term Term; provided Primo provides DSW with reasonable advance notice of the Leasesuch audit and such audit is conducted during normal business hours. Tenant Primo shall provide Landlord at least thirty (30) days prior written notice requesting DSW with a report in good faith setting forth the Audit, provided, however, that Tenant’s right, if any, to exercise its Audit Right for any subject year shall expire sixty (60) days after the delivery to Tenant results of the Direct Expense Statement for the calendar year, including the last year of the Lease Term, which Tenant desires to audit and, unless such right is exercised prior to such time, Tenant shall have waived its right to request such an Audit. Landlord shall make said books and records relevant to such Audit available to Tenant during Landlord’s customary business hours at the office of the property manager of the Project or at such other location designated by Landlord in writing.
(ii) Tenant shall pay all reasonable and necessary third party out-of-pocket costs for the Audit, including, without limitation, all of Landlord’s costs and expenses, including reasonable attorney and accountant fees.
(iii) The Audit shall only be conducted by a reputable accounting firm (“Accounting Firm”) approved in writing by Landlord. As a condition precedent to any such Audit, Tenant shall deliver to Landlord a copy of Tenant’s written agreement with such Accounting Firm, which agreement shall include provisions which state that: (A) Landlord is an intended third-party beneficiary of such agreement, (B) such Accounting Firm is not being engaged as a contingency or other incentive based auditor; (C) such Accounting Firm will not in any manner solicit or agree to represent any other tenant of the Project with respect to an audit or other review of Landlord’s accounting records at the Project, and (D) such Accounting Firm shall maintain in strict confidence any and all information obtained in connection with the Audit and shall not disclose such information to any person or entity other than to the management personnel of Tenant. The Accounting Firm, Landlord and Tenant shall enter into a confidentiality agreement in form and substance acceptable to Landlord whereby the Accounting Firm and Tenant shall covenant, among other things, that the Accounting Firm and the Tenant shall keep the books and records of Landlord in strict confidence.
(iv) In the event that the amount of Direct Expenses paid by Tenant to Landlord exceed the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, and after such Audit is confirmed and accepted by Landlord, in Landlord’s reasonable discretion, such difference shall be applied to the next succeeding payment of Direct Expenses due by Tenant to Landlordaudit. In the event such audit shows that the amount of Direct Expenses paid by Tenant to Landlord actual delivered Product volume is more or less than the actual amount of Direct Expenses owed by Tenant to Landlord delivered Product volume upon which payments made hereunder were based, Primo or DSW, as disclosed by the Auditapplicable, Tenant shall pay to the other party such difference difference. In addition, if the magnitude of any overpayment or underpayment is more than three percent (3%), then DSW (in the case of an overpayment) shall be required to Landlord within ten reimburse Primo for the costs of the audit or Primo (10in the case of an underpayment) days shall be solely responsible for the costs of the audit and shall be required to reimburse DSW for any costs or expenses it has incurred in connection with such determinationaudit.
(vb) Nothing contained herein DSW anticipates that it will begin publicly filing, via the SEC’s XXXXX website, financial information as required by Applicable Laws relating to its public debt for fiscal periods commencing in 2014 (“DSW Public Fillings”). If DSW does not commence making the DSW Public Filings by April 30, 2014, or subsequently ceases to make DSW Public Filings for any annual fiscal period, DSW agrees to provide Primo, from time to time upon Primo’s reasonable request, DSW’s audited financial statements, which audited financial statements will be treated at Confidential Information of DSW pursuant to Section 9. In addition, DSW shall be construed as providing Tenant with promptly notify Primo of any right material weakness or option to examine deterioration in its financial position, including without limitation the occurrence of any other books and records of Landlord or default under any of Landlord’s affiliated entities. Notwithstanding anything to the contrary contained herein, the Audit Right granted herein is personal to the originally named Tenant, shall be exercisable only by such originally named Tenant and may not be assigned or exercised by any assignee, sublessee or transferee of Tenant’s interest in this Lease or any successor in interest to Tenantits material debt obligations.
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Audit Rights. In the event of any dispute as to the amount of Tenant's Share of Operating Expenses, Tenant will have the right, by prior written notice ("Audit Notice") given within ninety (90) days ("Audit Period") following receipt of an actual statement of Operating Expenses ("Actual Statement"), to audit Landlord's accounting records with respect to Operating Expenses relative to the year to which such Actual Statement relates. The audit shall be conducted by an accounting firm engaged by Xxxxxx and shall be conducted at the office of Landlord at which records are kept or, at Landlord's election, the office of Landlord's property manager (if any). The audit shall be conducted at reasonable times during normal business hours. In no event will Landlord or its property manager be required to (i) Provided photocopy any accounting records or other items or contracts (but Tenant and its agents will be permitted to make photocopies, at their expense), (ii) create any ledgers or schedules not already in existence, (iii) incur any costs or expenses relative to such inspection, or (iv) perform any other tasks other than making available such accounting records as aforesaid. Neither Tenant nor its auditor may leave the office of Landlord with originals of any materials supplied by Landlord, but they may take photocopies (and Landlord shall make photocopy equipment available for that no Event of Default has occurred, Tenant shall have the right (“Audit Right”) to, one time per calendar year during the Lease Term, audit Landlord’s records and books used by Landlord in determining the amount of Direct Expenses Tenant is obligated to pay to Landlord for the sole purpose of verifying the accuracy of same (the “Audit”purpose). Any Audit shall cover only one (1) calendar year during Tenant must pay Xxxxxx's Share of Operating Expenses when due pursuant to the Term terms of this Lease and may not withhold payment of Operating Expenses or any other rent pending results of the Leaseaudit. Tenant shall provide Landlord at least The audit must be completed within thirty (30) days prior written notice requesting of the Auditdate Landlord makes such accounting records available to Tenant and the results of such audit shall be delivered to Landlord within fifteen (15) days after such audit completion. If such audit or review reveals that Xxxxxxxx has overcharged Tenant, provided, however, that Tenant’s right, if any, to exercise its Audit Right for any subject year shall expire sixty then within thirty (6030) days after the delivery results of such audit are made available to Landlord, Landlord shall refund to Tenant the amount of such overcharge. If the audit reveals that Xxxxxx was undercharged, then within thirty (30) days after the results of the Direct Expense audit are made available to Tenant, Xxxxxx agrees to reimburse Landlord the amount of such undercharge. Xxxxxx agrees to pay the cost of such audit, provided that if the audit reveals that Xxxxxxxx's determination of Xxxxxx's Share of Operating Expenses as set forth in the relevant Actual Statement for the calendar year, including the last year was in error in Landlord's favor by more than five percent (5%) of the Lease Term, which amount charged by Landlord to Tenant desires to audit and, unless such right is exercised prior pursuant to such timeActual Statement, Tenant shall have waived its right then Xxxxxxxx agrees to request such an Audit. Landlord shall make said books and records relevant to such Audit available to Tenant during Landlord’s customary business hours at pay the office of the property manager of the Project or at such other location designated by Landlord in writing.
(ii) Tenant shall pay all reasonable and necessary third party out-of-pocket costs for the Auditreasonable, including, without limitation, all of Landlord’s costs and expenses, including reasonable attorney and accountant fees.
(iii) The Audit shall only be conducted by a reputable accounting firm (“Accounting Firm”) approved in writing by Landlord. As a condition precedent to any such Audit, Tenant shall deliver to Landlord a copy of Tenant’s written agreement with such Accounting Firm, which agreement shall include provisions which state that: (A) Landlord is an intended third-party beneficiary cost of such agreementaudit incurred by Xxxxxx. To the extent Landlord must pay the cost of such audit, (B) such Accounting Firm is cost shall not being engaged as exceed a contingency or other incentive based auditor; (C) reasonable hourly charge for a reasonable amount of hours spent by such Accounting Firm will not in any manner solicit or agree to represent any other tenant of the Project with respect to an audit or other review of Landlord’s accounting records at the Project, and (D) such Accounting Firm shall maintain in strict confidence any and all information obtained third -party in connection with the Audit audit, and shall not disclose such information in no event will the costs which Landlord is so obligated to any person or entity other than to the management personnel of Tenant. The Accounting Firm, Landlord and Tenant shall enter into a confidentiality agreement in form and substance acceptable to Landlord whereby the Accounting Firm and Tenant shall covenant, among other things, that the Accounting Firm and the Tenant shall keep the books and records of Landlord in strict confidence.
(iv) In the event that pay exceed the amount of Direct Expenses paid by the error. Tenant agrees to keep the results of the audit confidential and will cause its agents, employees and contractors to keep such results confidential. To that end, Landlord exceed the actual amount may require Tenant and its auditor to execute a commercially reasonable form of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, and after such Audit is confirmed and accepted confidentiality agreement provided by Landlord, in Landlord’s reasonable discretion, such difference shall be applied to the next succeeding payment of Direct Expenses due by Tenant to Landlord. In the event that the amount of Direct Expenses paid by Tenant to Landlord is less than the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, Tenant shall pay such difference to Landlord within ten (10) days of such determination.
(v) Nothing contained herein shall be construed as providing Tenant with any right or option to examine any other books and records of Landlord or any of Landlord’s affiliated entities. Notwithstanding anything to the contrary contained herein, the Audit Right granted herein is personal to the originally named Tenant, shall be exercisable only by such originally named Tenant and may not be assigned or exercised by any assignee, sublessee or transferee of Tenant’s interest in this Lease or any successor in interest to Tenant.
Appears in 1 contract
Samples: Multi Tenant Industrial Triple Net Lease (Standard Register Co)
Audit Rights. (i) Provided that no Event of Default has occurred, Tenant shall have the right (“Audit Right”) toto examine, one time per calendar year during the Lease Term, copy and audit Landlord’s books and records and books used by Landlord in determining the amount establishing Operating Expenses for any Operating Year for a period of Direct Expenses Tenant is obligated to pay to Landlord for the sole purpose of verifying the accuracy of same (the “Audit”). Any Audit shall cover only one (1) calendar year during following the date that Tenant receives the statement of Operating Expenses for such Operating Year from Landlord. Tenant shall give Landlord not less than thirty (30) days’ prior notice of its intention to examine and audit such books and records, and such examination and audit shall take place at such place within the continental United States as Landlord routinely maintains such books and records, unless Landlord elects to have such examination and audit take place in another location designated by Landlord in the city and state in which the Property is located. Any such audit shall be conducted by a certified public accountant, and all costs of the examination and audit shall be borne by Tenant; provided, however, that if such examination and audit establishes that the actual Operating Expenses for the Operating Year in question are less than the amount set forth as the annual Operating Expenses on the annual statement delivered to Tenant by at least five percent (5%), then Landlord shall pay the reasonable costs of such examination and audit. If, pursuant to the audit, the payments made for such Operating Year by Tenant exceed Tenant’s required payment on account thereof for such Operating Year, Landlord shall credit the amount of overpayment against subsequent obligations of Tenant with respect to Operating Expenses (or promptly refund such overpayment if the Term of this Lease has ended and Tenant has no further obligation to Landlord); but, if the Lease. payments made by Tenant for such Operating Year are less than Tenant’s required payment as established by the examination and audit, Tenant shall provide pay the deficiency to Landlord at least within thirty (30) days prior written notice requesting after conclusion of the Auditexamination and audit, provided, however, that Tenant’s right, if any, and the obligation to exercise its Audit Right make such payment for any subject year period within the Term shall expire sixty (60) days after the delivery to Tenant survive expiration of the Direct Expense Statement for the calendar year, including the last year of the Lease Term, which Tenant desires to audit and, unless such right is exercised prior to such time, . Tenant shall have waived its right be required to request such an Audit. Landlord shall make said books and records relevant to such Audit available to Tenant during Landlord’s customary business hours at the office of the property manager of the Project or at such other location designated by Landlord in writing.
(ii) Tenant shall pay all reasonable and necessary third party out-of-pocket costs for the Audit, including, without limitation, all of Landlord’s costs and expenses, including reasonable attorney and accountant fees.
(iii) The Audit shall only be conducted by a reputable accounting firm (“Accounting Firm”) approved in writing by Landlord. As a condition precedent to any such Audit, Tenant shall deliver to Landlord a copy of Tenant’s written agreement its contract with such Accounting Firmits auditor and a copy of all reports produced by its auditor, and Tenant shall not be permitted to engage an auditor which agreement shall include provisions which state that: (A) Landlord is an intended third-party beneficiary of such agreement, (B) such Accounting Firm is not being engaged as paid on a contingency or other incentive based auditor; (C) such Accounting Firm will percentage basis. If Tenant does not in any manner solicit or agree elect to represent any other tenant of the Project with respect exercise its right to an examine and audit or other review of Landlord’s accounting records at the Project, and (D) such Accounting Firm shall maintain in strict confidence any and all information obtained in connection with the Audit and shall not disclose such information to any person or entity other than to the management personnel of Tenant. The Accounting Firm, Landlord and Tenant shall enter into a confidentiality agreement in form and substance acceptable to Landlord whereby the Accounting Firm and Tenant shall covenant, among other things, that the Accounting Firm and the Tenant shall keep the books and records of Landlord in strict confidence.
(iv) In for any Operating Year within the event that the amount of Direct Expenses paid time period provided for by Tenant to Landlord exceed the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, and after such Audit is confirmed and accepted by Landlord, in Landlord’s reasonable discretion, such difference shall be applied to the next succeeding payment of Direct Expenses due by Tenant to Landlord. In the event that the amount of Direct Expenses paid by Tenant to Landlord is less than the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Auditthis paragraph, Tenant shall pay such difference have no further right to Landlord within ten (10) days of such determination.
(v) Nothing contained herein shall be construed as providing Tenant with any right or option to examine any other books and records of Landlord or any of challenge Landlord’s affiliated entities. Notwithstanding anything statement of Operating Expenses for that particular Operating Year for which Tenant gave such audit notice to the contrary contained herein, the Audit Right granted herein is personal to the originally named Tenant, shall be exercisable only by such originally named Tenant and may not be assigned or exercised by any assignee, sublessee or transferee of Tenant’s interest in this Lease or any successor in interest to TenantLandlord.
Appears in 1 contract
Samples: Lease Agreement (Chiasma, Inc)
Audit Rights. (i) Provided that no Event of Default has occurredIf Xxxxxx wishes to dispute an amount shown on the annual statement, Tenant shall have the right (“Audit Right”) to, one time per calendar year during the Lease Term, audit Landlord’s records and books used by give Landlord in determining the amount of Direct Expenses Tenant is obligated to pay to Landlord for the sole purpose of verifying the accuracy of same (the “Audit”). Any Audit shall cover only one (1) calendar year during the Term of the Lease. Tenant shall provide Landlord at least thirty (30) days prior written notice requesting the Audit, provided, however, that Tenant’s right, if any, to exercise its Audit Right for any subject year shall expire sixty of such dispute within one hundred eighty (60180) days after the delivery to Tenant Xxxxxx’s receipt of the Direct Expense Statement for the calendar year, including the last year of the Lease Term, which annual statement. If Tenant desires to audit and, unless does not give Landlord such right is exercised prior to notice within such time, Tenant shall have waived its right to request dispute the annual statement. Promptly after the receipt of such written notice from Tenant, Landlord and Tenant shall endeavor in good faith to resolve such dispute. If such efforts do not succeed, Xxxxxx shall have the right to cause a nationally recognized independent certified public accountant designated by Tenant, to be paid on an Audithourly and not a contingent fee basis, to audit the items questioned by Tenant in its original notice contesting the annual statement, provided that Tenant (i) notifies Landlord in writing of Tenant’s intention to exercise such audit right within one hundred eighty (180) days after the relevant initial written notice from Tenant to Landlord with respect to such dispute, (ii) actually begins such audit within thirty (30) days after the notice from Tenant to Landlord advising Landlord that Tenant will require an audit (provided that such 30-day period within which the audit must be commenced shall be extended by the length of any delay in the commencement of the audit that is caused by Landlord) and (iii) diligently pursues such audit to completion as quickly as reasonably possible. Landlord shall Xxxxxxxx agrees to make said available to Tenant’s auditors, at Landlord’s office in the San Francisco Bay Area and/or at Landlord’s office in the Building (at Landlord’s sole option), the books and records relevant to the audit for review and copying, but such Audit available to Tenant during books and records may not be removed from Landlord’s customary business hours at the office of the property manager of the Project or at such other location designated by Landlord in writing.
(ii) offices. Tenant shall pay bear all reasonable costs of such audit, including Landlord’s actual, reasonable, out of pocket copying costs and necessary third party out-of-pocket personnel costs, if any, incurred in connection with such audit (provided that, prior to incurring any personnel costs for the Auditin connection with any such audit, including, without limitation, all Landlord shall advise Tenant of Landlord’s anticipated personnel costs so that Tenant may, at Tenant’s option, modify Tenant’s activities with regard to such audit in order to preclude the need for Landlord to incur such personnel costs), except that, if the audit (as conducted and expensescertified by the auditor) shows an aggregate overstatement of Operating Expenses and/or Tax Expenses of five percent (5%) or more, including reasonable attorney and accountant fees.
Landlord’s auditors concur in such findings (iii) The Audit shall only be conducted or, in the absence of such concurrence, such overstatement is confirmed by a reputable accounting firm (“Accounting Firm”) approved in writing by Landlord. As a condition precedent to any court of competent jurisdiction or such Auditother dispute resolution mechanism as described below), Tenant then Landlord shall deliver to Landlord a copy of Tenant’s written agreement with such Accounting Firm, which agreement shall include provisions which state that: (A) Landlord is an intended third-party beneficiary of such agreement, (B) such Accounting Firm is not being engaged as a contingency or other incentive based auditor; (C) such Accounting Firm will not in any manner solicit or agree to represent any other tenant bear all costs of the Project with respect to audit. If the agreed or confirmed audit shows an audit or other review underpayment of Landlord’s accounting records at the Project, and (D) such Accounting Firm shall maintain in strict confidence any and all information obtained in connection with the Audit and shall not disclose such information to any person or entity other than to the management personnel of Operating Expenses and/or Tax Expenses by Tenant. The Accounting Firm, Landlord and Tenant shall enter into a confidentiality agreement in form and substance acceptable to Landlord whereby the Accounting Firm and Tenant shall covenant, among other things, that the Accounting Firm and the Tenant shall keep the books and records of Landlord in strict confidence.
(iv) In the event that the amount of Direct Expenses paid by Tenant to Landlord exceed the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, and after such Audit is confirmed and accepted by Landlord, in Landlord’s reasonable discretion, such difference shall be applied to the next succeeding payment of Direct Expenses due by Tenant to Landlord. In the event that the amount of Direct Expenses paid by Tenant to Landlord is less than the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, Tenant shall pay to Landlord, within thirty (30) days after the audit is agreed to or confirmed, the amount owed to Landlord, and, if the agreed or confirmed audit shows an overpayment of Operating Expenses and/or Tax Expenses by Tenant, Landlord shall reimburse Tenant for such difference overpayment within thirty (30) days after the audit. 4885-9329-8068.6391320.00007/5-29-24/arb/bwt (12) If Landlord and/or Xxxxxxxx's accountants reasonably and in good faith do not concur with the findings of Xxxxxx's audit results and Landlord desires to contest such audit results, Landlord may do so by submitting the results of the audit within twenty (20) days of receipt of the results of the audit for expedited arbitration as follows: the dispute shall be resolved by a single arbitrator before the American Arbitration Association ("AAA") under the Commercial Arbitration Rules of the AAA modified as follows: (i) the total time from date of demand for arbitration to final award shall not exceed forty-five (45) days; (ii) all notices may be by telephone or other electronic communication with later confirmation in writing; (iii) the time, date, and place of the hearing shall be set by the arbitrator in his or her sole discretion, provided that there shall be at least ten (10) business days prior notice of the hearing; (iv) there shall be no post-hearing briefs; (v) there shall be no discovery except by order of the arbitrator; and (vi) the arbitrator shall issue his or her award within ten (10) business days after the close of such determination.
(v) Nothing contained herein the hearing. The arbitration shall be construed as providing Tenant with held in the county in which the Premises are located. The decision of the arbitrator shall be final and binding on the parties and judgment on the award rendered by the arbitrator may be entered in any right or option to examine any other books court of competent jurisdiction. The fees and records expenses of Landlord or any of Landlord’s affiliated entities. Notwithstanding anything the arbitrator shall be shared by the parties in proportion to the contrary contained hereindegree by which each party calculation of the Operating Expenses and/or Taxes Expenses was incorrect, the Audit Right granted herein is personal to the originally named Tenant, which proportion shall be exercisable only determined by such originally named Tenant and may not be assigned or exercised by any assignee, sublessee or transferee of Tenant’s interest in this Lease or any successor in interest to Tenantthe auditor.
Appears in 1 contract
Samples: Office Lease (e.l.f. Beauty, Inc.)
Audit Rights. (i) Provided that no Event of Default has occurred, Tenant shall have the right (“Audit Right”) to, one time per calendar year during the Lease Term, to audit Landlord’s 's records and books used by Landlord in determining accounts as the amount same relates to Tenant's Proportionate Share of Direct Expenses Tenant is obligated to pay to Landlord for the sole purpose Common Area Maintenance Cost and Tenant's Proportionate Share of verifying the accuracy of same (the “Audit”). Any Audit shall cover only one (1) calendar year during the Term of the LeaseTaxes. Tenant shall provide Landlord at least exercise its audit rights as follows; within thirty (30) days prior written of Tenant's receipt of notice requesting for Landlord of knowledge of a pending increase in Tenant's Proportionate Share or a bill from Landlord with respect to the Audit, provided, however, that Tenant’s right, if any, to exercise its Audit Right for any subject year shall expire sixty (60) days after the delivery to Tenant of the Direct Expense Statement for the calendar year, including the last year of the Lease Term, which Tenant desires to audit and, unless such right is exercised prior to such timesame, Tenant shall have waived notify the Xxxdlord of its right intent to request examine, within thirty (30) days of Landlord's receipt of such an Auditnotice, the records and accounts of Landlord relevant to the amount and year set forth on the statement in question. As soon as is practical thereafter, Landlord shall make said books such records and records relevant to such Audit accounts available to Tenant at Landlord's principal place of business during Landlord’s customary normal business hours at the office of the property manager of the Project or at hours. If such other location designated audit discloses an error by Landlord resulting in writing.
(ii) Tenant having overpaid Tenant's Proportionate Share, Landlord shall pay all reasonable and necessary third party out-of-pocket costs for the Audit, including, without limitation, all of Landlord’s costs and expenses, including reasonable attorney and accountant fees.
(iii) The Audit shall only be conducted immediately refund such overpayment to Tenant. If such audit discloses an error by a reputable accounting firm (“Accounting Firm”) approved Landlord resulting in writing by Landlord. As a condition precedent to any such AuditTenant having underpaid Tenant's Proportionate Share, Tenant shall deliver to Landlord a copy of Tenant’s written agreement with immediately pay such Accounting Firm, which agreement shall include provisions which state that: (A) Landlord is an intended third-party beneficiary of such agreement, (B) such Accounting Firm is not being engaged as a contingency or other incentive based auditor; (C) such Accounting Firm will not in any manner solicit or agree to represent any other tenant of the Project with respect to an audit or other review of Landlord’s accounting records at the Project, and (D) such Accounting Firm shall maintain in strict confidence any and all information obtained in connection with the Audit and shall not disclose such information to any person or entity other than to the management personnel of Tenant. The Accounting Firm, Landlord and Tenant shall enter into a confidentiality agreement in form and substance acceptable to Landlord whereby the Accounting Firm and Tenant shall covenant, among other things, that the Accounting Firm and the Tenant shall keep the books and records of Landlord in strict confidence.
(iv) In the event that the amount of Direct Expenses paid by Tenant to Landlord exceed the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, and after such Audit is confirmed and accepted by Landlord, in Landlord’s reasonable discretion, such difference shall be applied to the next succeeding payment of Direct Expenses due by Tenant deficiency to Landlord. In If any error by the event that Landlord is greater than five percent (5%) of the amount of Direct Expenses paid actually due and payable by Tenant, as shown by such audit, Landlord shall reimburse Tenant to Landlord is less than for the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, Tenant shall pay such difference to Landlord within ten (10) days cost of such determinationaudit.
(v) Nothing contained herein shall be construed as providing Tenant with any right or option to examine any other books and records of Landlord or any of Landlord’s affiliated entities. Notwithstanding anything to the contrary contained herein, the Audit Right granted herein is personal to the originally named Tenant, shall be exercisable only by such originally named Tenant and may not be assigned or exercised by any assignee, sublessee or transferee of Tenant’s interest in this Lease or any successor in interest to Tenant.
Appears in 1 contract
Audit Rights. (ia) Provided that no Event Cerulean may, upon written notice to Novartis, appoint an internationally recognized independent certified accounting firm possessing experience and expertise in the Accounting Standards (which is reasonably acceptable to Novartis) (the “Auditor”) to inspect the relevant reports, statements, records or books of Default has occurredaccounts (as applicable) of Novartis and its Affiliates to verify the accuracy of any Sales & Royalty Report. Before beginning its audit, Tenant shall the Auditor will execute an undertaking reasonably acceptable to Novartis by which the Auditor will keep confidential all information reviewed during such audit. The Auditor will have the right to disclose to Cerulean its conclusions regarding any payments owed under this Agreement.
(“Audit Right”b) toNovartis and its Affiliates will make their records available for inspection by such Auditor during regular business hours at such place or places where such records are customarily kept, one time per calendar year during the Lease Term, audit Landlord’s upon receipt of reasonable advance notice from Cerulean. The records and books used by Landlord in determining the amount of Direct Expenses Tenant is obligated will be reviewed solely to pay to Landlord for the sole purpose of verifying verify the accuracy of same (the “Audit”)Sales & Royalty Reports. Any Audit shall cover only one (1) calendar year during the Term of the Lease. Tenant shall provide Landlord at least thirty (30) days prior written notice requesting the Audit, provided, however, that Tenant’s right, if any, to exercise its Audit Right for any subject year shall expire sixty (60) days after the delivery to Tenant of the Direct Expense Statement for the calendar year, including the last year of the Lease Term, which Tenant desires to audit and, unless such Such inspection right is exercised prior to such time, Tenant shall have waived its right to request such an Audit. Landlord shall make said books and records relevant to such Audit available to Tenant during Landlord’s customary business hours at the office of the property manager of the Project or at such other location designated by Landlord in writing.
(ii) Tenant shall pay all reasonable and necessary third party out-of-pocket costs for the Audit, including, without limitation, all of Landlord’s costs and expenses, including reasonable attorney and accountant fees.
(iii) The Audit shall only be conducted by a reputable accounting firm (“Accounting Firm”) approved in writing by Landlord. As a condition precedent to any such Audit, Tenant shall deliver to Landlord a copy of Tenant’s written agreement with such Accounting Firm, which agreement shall include provisions which state that: (A) Landlord is an intended third-party beneficiary of such agreement, (B) such Accounting Firm is not being engaged as a contingency or other incentive based auditor; (C) such Accounting Firm will not be exercised more than [**] in any manner solicit or agree to represent any other tenant of the Project Calendar Year and not more frequently than [**] with respect to an records covering any specific period of time. In addition, Cerulean will only be entitled to audit or other review of Landlord’s accounting records at the Project, and (D) such Accounting Firm shall maintain in strict confidence any and all information obtained in connection with the Audit and shall not disclose such information to any person or entity other than to the management personnel of Tenant. The Accounting Firm, Landlord and Tenant shall enter into a confidentiality agreement in form and substance acceptable to Landlord whereby the Accounting Firm and Tenant shall covenant, among other things, that the Accounting Firm and the Tenant shall keep the relevant books and records of Landlord Novartis and its Affiliates relating to a Sales & Royalty Report for a period covering the then-current Calendar Year and the [**] most recently completed Calendar Years after receipt of the applicable Sales & Royalty Report. Cerulean will hold in strict confidenceconfidence all information received and all information learned in the course of any audit or inspection, except to the extent necessary to enforce its rights under this Agreement or if disclosure is required by law, regulation or judicial order.
(ivc) In The Auditor will provide its audit report and basis for any determination to Novartis at the event that time such report is provided to Cerulean, before it is considered final. Novartis will have the amount right to request a further determination by such Auditor as to matters which Novartis disputes within [**] days following receipt of Direct Expenses paid by Tenant such report. Novartis will provide Cerulean and the Auditor with a reasonably detailed statement of the grounds upon which it disputes any findings in the audit report and the Auditor will undertake to Landlord exceed complete such further determination within [**] days after the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Auditdispute notice is provided, and after such Audit is confirmed and accepted by Landlord, in Landlord’s reasonable discretion, such difference shall which determination will be applied limited to the next succeeding payment of Direct Expenses due by Tenant to Landlorddisputed matters. In Any matter that remains unresolved will be resolved in accordance with the event that the amount of Direct Expenses paid by Tenant to Landlord is less than the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, Tenant shall pay such difference to Landlord within ten (10) days of such determinationdispute resolution procedures contained in Article IX.
(vd) Nothing contained herein shall be construed as providing Tenant with any right If the final result of the inspection reveals an undisputed underpayment or option to examine any other books and records of Landlord or any of Landlord’s affiliated entities. Notwithstanding anything to the contrary contained hereinoverpayment by Novartis, the Audit Right granted herein underpaid or overpaid amount will be settled promptly.
(e) Cerulean will pay for such audits, as well as its own expenses associated with enforcing its rights with respect to any payments hereunder, except that in the event there is personal to the originally named Tenant, shall be exercisable only any upward adjustment in aggregate amounts payable for any year shown by such originally named Tenant audit of more than [**]% of the amount paid, Novartis will pay for such audit and may not be assigned or exercised by any assignee, sublessee or transferee of Tenant’s interest in this Lease or any successor in interest to Tenantexpenses.
Appears in 1 contract
Samples: Research Collaboration Agreement (Cerulean Pharma Inc.)
Audit Rights. Within two (i2) Provided years after receipt of Landlord’s statement of Common Area Expenses for any year, Tenant may audit all the accounting books, documents, records and files related to Common Area Expenses for such year. Landlord shall make all such records available at the Center or at Landlord’s principal business office for examination by Tenant or any designated representative within fifteen (15) business days of Tenant’s request to audit the records. Tenant must exercise its audit rights (if at all) within two (2) years following the submission by Landlord of the statement described in Section 5.5 for the year that no Event Tenant desires to audit. If Tenant fails to notify Landlord of Default has occurredTenant’s intention to audit Landlord Common Area Expense records for a particular year within the period described in the previous sentence (or if Tenant notifies Landlord of Tenant’s intention to audit but fails to pursue the audit diligently), then Tenant may not seek to recover any deficiencies in the amount paid. All audits shall be performed during Landlord’s usual business hours and without interference with the conduct of business at the place where the audit is made. If the audit establishes an overstatement of the Common Area Expenses for any year by more than five percent (5%), then Landlord shall pay to Tenant the reasonable cost of such audit. Landlord shall pay the amount of the overage (if any) to Tenant within thirty (30) days after Landlord and its lender have received a copy of Tenant’s audit and, if not so timely paid or timely submitted to arbitration in accordance with Section 5.7 of this Lease, Tenant shall have the right (“Audit Right”) toto offset such amount against Rent and other amounts next becoming due by Tenant hereunder. To the extent that the audit described in this Section 5.6 discloses that Tenant underpaid Tenant’s CAM Contribution, one time per calendar year during the Lease Term, audit Landlord’s records and books used by Tenant shall pay to Landlord in determining the amount of Direct Expenses Tenant is obligated to pay to Landlord for the sole purpose of verifying the accuracy of same unpaid balance (the “Audit”). Any Audit shall cover only one (1) calendar year during the Term net of the Lease. Tenant shall provide Landlord at least thirty (30) days prior written notice requesting the Audit, provided, however, that Tenant’s right, if any, to exercise its Audit Right for any subject year shall expire sixty (60) days after the delivery to Tenant of the Direct Expense Statement for the calendar year, including the last year of the Lease Term, which Tenant desires to audit and, unless such right is exercised prior to such time, Tenant shall have waived its right to request such an Audit. Landlord shall make said books and records relevant to such Audit available to Tenant during Landlord’s customary business hours at the office of the property manager of the Project or at such other location designated by Landlord in writing.
(ii) Tenant shall pay all reasonable and necessary third party out-of-pocket costs for the Audit, including, without limitation, all of Landlord’s costs and expenses, including reasonable attorney and accountant fees.
(iii) The Audit shall only be conducted incurred by a reputable accounting firm (“Accounting Firm”) approved in writing by Landlord. As a condition precedent to any such Audit, Tenant shall deliver to Landlord a copy of Tenant’s written agreement with such Accounting Firm, which agreement shall include provisions which state that: (A) Landlord is an intended third-party beneficiary of such agreement, (B) such Accounting Firm is not being engaged as a contingency or other incentive based auditor; (C) such Accounting Firm will not in any manner solicit or agree to represent any other tenant of the Project with respect to an audit or other review of Landlord’s accounting records at the Project, and (D) such Accounting Firm shall maintain in strict confidence any and all information obtained in connection with such audit) within twenty (20) business days following the Audit and shall not disclose such information to any person or entity other than to the management personnel of Tenant. The Accounting Firm, Landlord and Tenant shall enter into a confidentiality agreement in form and substance acceptable to Landlord whereby the Accounting Firm and Tenant shall covenant, among other things, that the Accounting Firm and the Tenant shall keep the books and records of Landlord in strict confidence.
(iv) In the event that the amount of Direct Expenses paid by Tenant to Landlord exceed the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, and after such Audit is confirmed and accepted by Landlord, in Landlord’s reasonable discretion, such difference shall be applied to the next succeeding payment of Direct Expenses due by Tenant to Landlord. In the event that the amount of Direct Expenses paid by Tenant to Landlord is less than the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, Tenant shall pay such difference to Landlord within ten (10) days completion of such determinationaudit.
(v) Nothing contained herein shall be construed as providing Tenant with any right or option to examine any other books and records of Landlord or any of Landlord’s affiliated entities. Notwithstanding anything to the contrary contained herein, the Audit Right granted herein is personal to the originally named Tenant, shall be exercisable only by such originally named Tenant and may not be assigned or exercised by any assignee, sublessee or transferee of Tenant’s interest in this Lease or any successor in interest to Tenant.
Appears in 1 contract
Audit Rights. (i) Provided that no Event of Default has occurred, Tenant shall have the right (“Audit Right”) to, one time per calendar year during the Lease Term, to audit Landlord’s records Annual Operating Expenses Statement as set forth in this Section 5.4. In order to exercise Tenant’s right to review the Annual Operating Expenses Statement, Tenant must provide written notice to Landlord of Tenant’s intention to conduct such audit within ninety (90) days after Landlord delivers the Annual Operating Expenses Statement for the applicable calendar year to Tenant and books used by the review will cover only the most recently expired calendar year, and Landlord in determining the amount of Direct Expenses Tenant is will not be obligated to pay provide information with respect to previous calendar years. If Tenant delivers to Landlord for a notice pursuant to the sole purpose of verifying the accuracy of same preceding sentence, then upon five (the “Audit”). Any Audit shall cover only one (1) calendar year during the Term of the Lease. Tenant shall provide Landlord at least thirty (305) days prior written notice requesting the Audit, provided, however, that Tenantand during normal business hours at Landlord’s right, if any, to exercise its Audit Right for any subject year office or such other place as Landlord shall expire sixty (60) days after the delivery to Tenant of the Direct Expense Statement for the calendar year, including the last year of the Lease Term, which Tenant desires to audit and, unless such right is exercised prior to such timereasonably designate, Tenant shall have waived its right be entitled to request such an Audit. Landlord shall make said books inspect and records relevant to such Audit available to Tenant during Landlord’s customary business hours at the office of the property manager of the Project or at such other location designated by Landlord in writing.
(ii) Tenant shall pay all reasonable and necessary third party out-of-pocket costs for the Audit, including, without limitation, all of Landlord’s costs and expenses, including reasonable attorney and accountant fees.
(iii) The Audit shall only be conducted by a reputable accounting firm (“Accounting Firm”) approved in writing by Landlord. As a condition precedent to any such Audit, Tenant shall deliver to Landlord a copy of Tenant’s written agreement with such Accounting Firm, which agreement shall include provisions which state that: (A) Landlord is an intended third-party beneficiary of such agreement, (B) such Accounting Firm is not being engaged as a contingency or other incentive based auditor; (C) such Accounting Firm will not in any manner solicit or agree to represent any other tenant of the Project with respect to an audit or other review of Landlord’s accounting records at the Project, and (D) such Accounting Firm shall maintain in strict confidence any and all information obtained in connection with the Audit and shall not disclose such information to any person or entity other than to the management personnel of Tenant. The Accounting Firm, Landlord and Tenant shall enter into a confidentiality agreement in form and substance acceptable to Landlord whereby the Accounting Firm and Tenant shall covenant, among other things, that the Accounting Firm and the Tenant shall keep the examine those books and records of Landlord in strict confidence.
(iv) In relating to the event that the amount determination of Direct any item of Operating Expenses paid by in the subject calendar year. If, after inspection and examination of such books and records, Tenant to Landlord exceed disputes the actual amount amounts of Direct Operating Expenses owed by Tenant to Landlord as disclosed by the Audit, and after such Audit is confirmed and accepted charged by Landlord, in Tenant, by written notice to Landlord’s reasonable discretion, may request an independent audit of such difference books and records. The independent audit of the books and records shall be applied conducted by a certified public accountant designated by Tenant and reasonably acceptable to Landlord (such accountant may not be compensated on a contingency fee or similar basis relating to the next succeeding payment results of Direct Expenses due by Tenant to Landlordsuch audit). In the event that the amount of Direct Expenses paid by Tenant to Landlord is less than the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the AuditIf, Tenant shall pay such difference to Landlord within ten (10) days after Landlord’s receipt of Tenant’s notice requesting an audit, Landlord and Tenant are unable to agree upon a certified public accountant to conduct such determination.
(v) Nothing contained herein shall be construed as providing audit, then Tenant with may designate a national or regional firm of certified public accountants not then employed by Landlord or Tenant to conduct such audit. Tenant acknowledges and agrees that any right or option to examine any other books and records of Landlord or any reviewed under this Section 5.4 (and the information contained therein) constitute confidential information of Landlord, which Tenant shall not disclose, nor permit to be disclosed by Tenant or it’s affiliated entitiesaccountant, to anyone other than the Tenant’s accountants performing the review and the principals, employees and representatives of Tenant who receive the results of the review. Notwithstanding anything Any accounting firm engaged to perform such an audit will be required to sign a nondisclosure agreement reasonably acceptable to Landlord. If the contrary contained hereinaudit discloses that any item of Operating Expenses billed to Tenant was incorrect, the Audit Right granted herein is personal to appropriate party shall pay the originally named Tenantother party the deficiency or overpayment, as applicable. All costs and expenses of the audit shall be exercisable only paid by such originally named the Tenant unless the audit shows that Landlord overstated Operating Expenses by more than five percent (5%) for the applicable calendar year, in which case Landlord shall pay all costs and may not be assigned or exercised by any assignee, sublessee or transferee expenses of Tenant’s interest in this Lease or any successor in interest to Tenantthe audit.
Appears in 1 contract
Samples: Office Lease (Sailpoint Technologies Holdings, Inc.)
Audit Rights. (i) Provided that no Event of Default has occurred, Tenant shall have the right (“Audit Right”) to, one time per calendar year during the Lease Term, audit Landlord’s records and books used by Landlord in determining the amount of Direct Expenses Tenant is obligated to pay to Landlord for the sole purpose of verifying the accuracy of same (the “Audit”). Any Audit shall cover only one (1) calendar year during the Term of the Lease. Tenant shall provide Landlord at least thirty (30) days prior written notice requesting the Audit, provided, however, that Tenant’s right, if any, to exercise its Audit Right for any subject year shall expire Within sixty (60) days after the delivery to Tenant Landlord furnishes its statement of the Direct Expense Statement actual Operating Expenses for the calendar year, any Lease Year (including the last year of Base Year) (the Lease Term“Audit Election Period”), which Tenant desires may, at its expense, elect to audit andLandlord’s Operating Expenses for such Lease Year only, unless subject to the following conditions: (1) there is no uncured event of default under this Lease after the expiration of any applicable cure period; (2) if a third party conducts the audit, such right is exercised prior to such time, Tenant audit shall have waived its right to request such be prepared by an Audit. independent certified public accounting firm of recognized regional standing; (3) in no event shall any audit be performed by a firm retained on a “contingency fee” basis; (4) the audit shall commence within thirty (30) days after Landlord shall make said makes Landlord’s books and records relevant to such Audit available to Tenant Tenant’s auditor and shall conclude within sixty (60) days after commencement; (5) the audit shall be conducted during Landlord’s customary normal business hours at the office location where Landlord maintains its books and records; (6) Tenant and its accounting firm shall treat any audit in a confidential manner (except as required by law or to the extent necessary to enforce Tenant’s rights hereunder) and shall each execute Landlord’s reasonable confidentiality agreement for Landlord’s benefit prior to commencing the audit; and (7) the accounting firm’s audit report shall, at no charge to Landlord, be submitted in draft form for Landlord’s review and comment before the final approved audit report is delivered to Landlord, and Landlord shall have the right to point out errors or make suggestions with respect to such audit report, and any appropriate comments or clarifications by Landlord which are accepted by Tenant’s auditor shall be incorporated into the final audit report, it being the intention of the property manager parties that Landlord’s right to review is intended to prevent errors and not to unduly influence Tenant’s auditor in the preparation of the Project final audit report. This paragraph shall not be construed to limit, suspend, or at xxxxx Tenant’s obligation to pay Rent when due, including estimated Excess Operating Expenses in accordance with Section 4.B above. Landlord shall credit any overpayment determined by the final approved audit report against the next Rent due and owing by Tenant or, if no further Rent is due, refund such other location designated by Landlord in writing.
overpayment directly to Tenant within thirty (ii30) days of determination. Likewise, Tenant shall pay all Landlord any underpayment determined by the final approved audit report within thirty (30) days of determination. If the audit reveals that Landlord’s calculation of Operating Expenses for the Lease Year under inspection was overstated by more than five percent (5%), then Landlord shall pay Tenant’s actual reasonable and necessary third party out-of-pocket costs for audit and inspection fees (specifically including any reasonable travel and lodging expenses) applicable to the Audit, including, without limitation, all review of Landlord’s costs and expenses, including reasonable attorney and accountant fees.
said Lease Year statement within thirty (iii30) The Audit shall only be conducted by a reputable accounting firm (“Accounting Firm”) approved in writing by Landlord. As a condition precedent to any such Audit, Tenant shall deliver to Landlord a copy days after receipt of Tenant’s invoice therefor. The foregoing obligations shall survive the expiration or termination of this Lease. If Tenant does not give written agreement with such Accounting Firm, which agreement shall include provisions which state that: (A) Landlord is an intended third-party beneficiary notice of such agreement, (B) such Accounting Firm is not being engaged as a contingency or other incentive based auditor; (C) such Accounting Firm will not in any manner solicit or agree its election to represent any other tenant of the Project with respect to an audit or other review of Landlord’s accounting records at the Project, and (D) such Accounting Firm shall maintain in strict confidence any and all information obtained in connection with Operating Expenses during the Audit and Election Period, Landlord’s Operating Expenses for the applicable Lease Year shall not disclose such information to any person or entity other than to the management personnel of Tenant. The Accounting Firmbe deemed approved for all purposes, Landlord and Tenant shall enter into a confidentiality agreement in form and substance acceptable have no further right to Landlord whereby review or contest the Accounting Firm and Tenant shall covenant, among other things, that the Accounting Firm and the Tenant shall keep the books and records of Landlord in strict confidence.
(iv) In the event that the amount of Direct Expenses paid by Tenant same. The right to Landlord exceed the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, and after such Audit is confirmed and accepted by Landlord, in Landlord’s reasonable discretion, such difference shall be applied to the next succeeding payment of Direct Expenses due by Tenant to Landlord. In the event that the amount of Direct Expenses paid by Tenant to Landlord is less than the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, Tenant shall pay such difference to Landlord within ten (10) days of such determination.
(v) Nothing contained herein shall be construed as providing Tenant with any right or option to examine any other books and records of Landlord or any of Landlord’s affiliated entities. Notwithstanding anything to the contrary contained herein, the Audit Right audit granted herein hereunder is personal to the originally initial Tenant named Tenant, shall be exercisable only by such originally named Tenant and may not be assigned or exercised by any assignee, sublessee or transferee of Tenant’s interest in this Lease or and to any successor in interest assignee under a Permitted Transfer (defined below) and shall not be available to Tenantany subtenant under a sublease of the Premises.
Appears in 1 contract
Samples: Office Lease (Pier 1 Imports Inc/De)
Audit Rights. (i) Provided that no Event Tenant timely delivers to Landlord Tenant’s Dispute Notice in accordance with the terms of Default has occurredSection 3.3(c), Tenant or its representative shall have the right (“Audit Right”) toright, one time per calendar year during the Lease Termat LEASE AGREEMENT 11 Tenant’s sole cost and expense, audit Landlord’s records and books used by Landlord in determining the amount of Direct Expenses Tenant is obligated to pay to Landlord for the sole purpose of verifying the accuracy of same (the “Audit”). Any Audit shall cover only one (1) calendar year during the Term of the Lease. Tenant shall provide Landlord upon at least thirty (30) days prior written notice requesting the Auditto Landlord, provided, however, that Tenant’s right, if anyat any time during regular business hours, to exercise its Audit Right audit Landlord’s records pertaining to the OpEx and Taxes Payment for any subject year shall expire sixty the Computation Year to which such disputed statement is applicable. Such audit must be completed within ninety (6090) days after Tenant’s receipt of Landlord’s Statement. If it is conclusively determined (as evidenced by the delivery mutual written agreement of Landlord and Tenant or by a final unappealable court order) that Landlord overbilled Tenant by more than five percent (5%) for the OpEx and Taxes Payment for such Computation Year, then Landlord shall reimburse Tenant for the actual, documented out of pocket costs (not to exceed Five Thousand Dollars ($5,000)) paid by Tenant for such audit of the Direct Expense Statement OpEx and Taxes Payment for such Computation Year, in addition to refunding the amount of such overbilling to Tenant. If it is conclusively determined (as evidenced by the mutual written agreement of Landlord and Tenant or by a final unappealable court order) that Landlord underbilled Tenant for the calendar yearOpEx and Taxes Payment for such Computation Year, including the last year of the Lease Term, which Tenant desires to audit and, unless such right is exercised prior to such time, Tenant shall have waived its right to request such an Audit. Landlord shall make said books and records relevant to such Audit available to Tenant during Landlord’s customary business hours at the office of the property manager of the Project or at such other location designated by Landlord in writing.
(ii) then Tenant shall pay all reasonable Landlord the underbilled amount within thirty (30) days after such determination. Landlord, Tenant, its auditor, and necessary third party out-of-pocket costs for the Auditofficers, includingemployees and agents of each, without limitation, all of Landlord’s costs and expensesshall treat such audit, including reasonable attorney any compromise, settlement or adjustment between Landlord and accountant fees.
(iii) The Audit shall only be conducted by a reputable accounting firm (“Accounting Firm”) approved in writing by Landlord. As a condition precedent to any such AuditTenant, Tenant shall deliver to Landlord a copy of Tenant’s written agreement with such Accounting Firm, which agreement shall include provisions which state that: (A) Landlord is an intended third-party beneficiary of such agreement, (B) such Accounting Firm is not being engaged as a contingency or other incentive based auditor; (C) such Accounting Firm will not in any manner solicit or agree to represent any other tenant of the Project with respect to an audit or other review of Landlord’s accounting records at the Project, and (D) such Accounting Firm shall maintain in strict confidence any and all information obtained in connection with the Audit and shall not disclose divulge the information contained in such information records or the results of such audit to any person person, entity, tenant or entity occupant of the Building other than Tenant’s attorneys, accountants and consultants, unless disclosure is required pursuant to the management personnel of Tenant. The Accounting Firm, any litigation between Landlord and Tenant shall enter into a confidentiality agreement in form and substance acceptable to Landlord whereby which the Accounting Firm and Tenant shall covenant, among other things, that subject matter of the Accounting Firm and the Tenant shall keep the books and litigation involves such records of Landlord in strict confidence.
(iv) In the event that the amount of Direct Expenses paid by Tenant to Landlord exceed the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, and after or such Audit is confirmed and accepted by Landlord, in Landlord’s reasonable discretion, such difference shall be applied to the next succeeding payment of Direct Expenses due by Tenant to Landlord. In the event that the amount of Direct Expenses paid by Tenant to Landlord is less than the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, Tenant shall pay such difference to Landlord within ten (10) days audit of such determinationrecords, or if required by Law.
(v) Nothing contained herein shall be construed as providing Tenant with any right or option to examine any other books and records of Landlord or any of Landlord’s affiliated entities. Notwithstanding anything to the contrary contained herein, the Audit Right granted herein is personal to the originally named Tenant, shall be exercisable only by such originally named Tenant and may not be assigned or exercised by any assignee, sublessee or transferee of Tenant’s interest in this Lease or any successor in interest to Tenant.
Appears in 1 contract
Samples: Lease Agreement (Laclede Group Inc)
Audit Rights. (i) Provided that no Event of Default has occurredEach Party, Tenant through an independent, internationally recognized certified public accountant reasonably acceptable to the other Party, shall have the right (“Audit Right”) to, one time per calendar year during to access and audit the Lease Term, audit Landlordother Party’s relevant books and records and books used by Landlord in determining the amount of Direct Expenses Tenant is obligated to pay to Landlord for the sole purpose of (a) with respect to Teva’s right to audit, verifying Licensee’s milestone and royalty payments to Teva due under this Agreement and the calculation of Net Sales upon which such milestone and royalty payments are calculated, and (b) with respect to Licensee’s right to audit, verifying the accuracy of same (Supply Price charged by Teva pursuant to Section 7.4; such access shall be conducted after reasonable prior notice by the “Audit”). Any Audit shall cover only one (1) calendar year auditing Party to the audited Party during the Term of the Lease. Tenant audited Party’s ordinary business hours, shall provide Landlord at least thirty (30) days prior written notice requesting the Audit, provided, however, that Tenant’s right, if any, to exercise its Audit Right for not be more frequent than once during any subject year shall expire sixty (60) days after the delivery to Tenant of the Direct Expense Statement for the calendar year, including the last year of the Lease Term, which Tenant desires to audit and, unless such right is exercised prior to such time, Tenant and shall have waived its right to request such an Audit. Landlord shall make said not include any books and records relevant that were previously accessed pursuant to this Section 8.7. Such accountant shall execute a confidentiality agreement with the audited Party in customary form and shall only disclose to the auditing Party whether, in the case of Teva as the auditing Party, Licensee paid Teva the correct milestone and royalty payments due under this Agreement during the audit period and, in the case of Licensee as the auditing Party, Teva charged the correct Supply Price during the audit period and if not, any information necessary to explain the source of the discrepancy. If such audit determines that the audited Party underpaid any amount properly due and such determination is not subject to a good faith dispute, then the audited Party shall promptly pay the other Party an amount equal to such Audit available underpayment. If such audit determines that the audited Party overpaid the other Party, then the other Party shall promptly issue a refund to Tenant during Landlord’s customary business hours at the office audited Party in the amount of such overpayment. The auditing Party shall bear the full cost of such audit unless such audit discloses (i) in the case of Teva as the auditing Party, an underpayment of milestones or royalties by Licensee of more than ten percent (10%) of the property manager of amount due for the Project audited period, or at such other location designated by Landlord in writing.
(ii) Tenant shall pay all reasonable and necessary third party out-of-pocket costs in the case of Licensee as the auditing party, an overcharge of the Supply Price by Teva of more than ten percent (10%) of the amount due for the Auditaudited period, including, without limitation, all of Landlord’s costs and expenses, including reasonable attorney and accountant fees.
(iii) The Audit in which case the audited Party shall only be conducted by a reputable accounting firm (“Accounting Firm”) approved in writing by Landlord. As a condition precedent to any such Audit, Tenant shall deliver to Landlord a copy of Tenant’s written agreement with such Accounting Firm, which agreement shall include provisions which state that: (A) Landlord is an intended third-party beneficiary bear the full cost of such agreement, (B) such Accounting Firm is not being engaged as a contingency or other incentive based auditor; (C) such Accounting Firm will not in any manner solicit or agree to represent any other tenant of the Project with respect to an audit or other review of Landlord’s accounting records at the Project, and (D) such Accounting Firm shall maintain in strict confidence any and all information obtained in connection with the Audit and shall not disclose such information to any person or entity other than to the management personnel of Tenant. The Accounting Firm, Landlord and Tenant shall enter into a confidentiality agreement in form and substance acceptable to Landlord whereby the Accounting Firm and Tenant shall covenant, among other things, that the Accounting Firm and the Tenant shall keep the books and records of Landlord in strict confidenceaudit.
(iv) In the event that the amount of Direct Expenses paid by Tenant to Landlord exceed the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, and after such Audit is confirmed and accepted by Landlord, in Landlord’s reasonable discretion, such difference shall be applied to the next succeeding payment of Direct Expenses due by Tenant to Landlord. In the event that the amount of Direct Expenses paid by Tenant to Landlord is less than the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, Tenant shall pay such difference to Landlord within ten (10) days of such determination.
(v) Nothing contained herein shall be construed as providing Tenant with any right or option to examine any other books and records of Landlord or any of Landlord’s affiliated entities. Notwithstanding anything to the contrary contained herein, the Audit Right granted herein is personal to the originally named Tenant, shall be exercisable only by such originally named Tenant and may not be assigned or exercised by any assignee, sublessee or transferee of Tenant’s interest in this Lease or any successor in interest to Tenant.
Appears in 1 contract
Audit Rights. (i) Provided that As Optionor reasonably deems appropriate and at Optionor’s reasonable request, but in no Event of Default has occurredevent more often than once per calendar year, Tenant and only after Optionor and its independent auditors shall have entered into an appropriate confidentiality agreement with Pabst, the right independent auditors of Pabst will examine the relevant books and records of Pabst to verify its compliance with the provisions of this Section 1.10 or that an Excluded Transaction has occurred (“Audit Right”) to, one time per calendar year during the Lease Term, audit Landlord’s records and books used by Landlord in determining the amount of Direct Expenses Tenant is obligated to pay to Landlord for the sole purpose of verifying the accuracy of same (the “AuditCompliance”). Any Audit shall cover only one (1) calendar year during Pabst’s auditors will promptly thereafter disclose the Term results of the Lease. Tenant shall provide Landlord at least thirty (30) days prior written notice requesting audit and their work product to the Auditindependent auditors of Optionor, provided, however, provided that Tenant’s right, if any, the independent auditors of Optionor have entered into the appropriate confidentiality agreements prohibiting them from disclosing the details of such audit to exercise its Audit Right for any subject year shall expire sixty (60) days after the delivery to Tenant of the Direct Expense Statement for the calendar year, including the last year of the Lease Term, which Tenant desires to audit and, unless such right is exercised prior to such time, Tenant shall have waived its right to request such an Audit. Landlord shall make said books and records relevant to such Audit available to Tenant during Landlord’s customary business hours at the office of the property manager of the Project or at such other location designated by Landlord in writingOptionor.
(ii) Tenant shall pay all reasonable As to any Dispute arising between the Parties pertaining to Compliance, both parties agree to be bound by any mutual resolution of that Dispute reached by Optionor’s and necessary third party out-of-pocket costs for the Audit, including, without limitation, all of LandlordPabst’s costs and expenses, including reasonable attorney and accountant feesrespective auditors.
(iii) The Audit details of each audit shall remain confidential to the respective auditors and only the ultimate result of the audit will be conducted by communicated to Optionor, except that if a reputable accounting firm (“Accounting Firm”) approved in writing by Landlord. As a condition precedent to any such Audit, Tenant shall deliver to Landlord a copy of Tenant’s written agreement with such Accounting Firm, which agreement shall include provisions which state that: (A) Landlord is an intended third-party beneficiary of such agreement, (B) such Accounting Firm Dispute regarding Compliance is not being engaged as a contingency or other incentive based auditor; (C) such Accounting Firm will not in any manner solicit or agree to represent any other tenant mutually resolved by the parties’ respective independent auditors, then Optionor’s auditors may disclose the details of the Project with respect audit to an audit or other review of Landlord’s accounting records at the Project, and (D) such Accounting Firm shall maintain in strict confidence any and all information obtained in connection with the Audit and shall not disclose such information to any person or entity other than Optionor to the management personnel extent necessary to fully apprise Optionor of Tenant. The Accounting Firm, Landlord and Tenant the issues underlying the Dispute; provided that in no event shall enter into a confidentiality agreement in form and substance acceptable any competitively sensitive information (including details regarding bills of materials) be disclosed to Landlord whereby the Accounting Firm and Tenant shall covenant, among other things, that the Accounting Firm and the Tenant shall keep the books and records of Landlord in strict confidence.
(iv) In the event that the amount of Direct Expenses paid by Tenant to Landlord exceed the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, and after such Audit is confirmed and accepted by Landlord, in Landlord’s reasonable discretion, such difference shall be applied to the next succeeding payment of Direct Expenses due by Tenant to Landlord. In the event that the amount of Direct Expenses paid by Tenant to Landlord is less than the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, Tenant shall pay such difference to Landlord within ten (10) days of such determination.
(v) Nothing contained herein shall be construed as providing Tenant with Optionor for any right or option to examine any other books and records of Landlord or any of Landlord’s affiliated entitiesreason whatsoever. Notwithstanding anything to the contrary contained hereinin the Agreement, (i) neither Pabst nor any of its Affiliates shall be required to transfer or make available to MillerCoors any tax returns or information with respect to Taxes of Pabst or any of its Affiliates, and (ii) Optionor’s SC1:4886116.33 auditors may not disclose to any Person any tax returns or information with respect to Taxes of Pabst or any of its Affiliates; provided that Optionor’s auditors may disclose to MillerCoors information with respect to Taxes of Pabst or its Affiliates solely and specifically relating to the consideration received by Pabst in exchange for the Pits in a Qualifying Transaction (other than any Excluded Transaction).
(iv) Thereafter, at either Party’s request, the Audit Right granted herein is personal Dispute will be submitted to the originally named Tenant, Independent Accountants as set forth in Section 12.5. Optionor and Pabst hereby agree to be bound by the decision of such third party accounting firm. Such third party accounting firm may be required by either party to execute an appropriate confidentiality agreement.
(v) The cost of the original audit conducted by Optionor shall be exercisable only borne by Optionor; provided that Pabst shall reimburse Optionor the amount of the fee up to and including the net amount found by the auditor to be due to Optionor pursuant to this Section 1.10(d) and Section 12.5, as applicable. The Independent Accountants shall determine the percentage of its fees and expenses to be paid by Pabst and the Optionor Parties, with such originally named Tenant fees and may not expenses being borne in inverse proportion to the degree to which the accountants accepted the positions of the respective parties. Payment of any such reimbursements will be assigned or exercised by any assignee, sublessee or transferee due within eleven (11) Business Days of Tenant’s interest in this Lease or any successor in interest to Tenant.the Independent Accountants’ final determination. SC1:4886116.33
Appears in 1 contract
Audit Rights. If Tenant objects to any Actual Statement and provides written notice to Landlord within ninety (i90) Provided that no Event days after its receipt of Default has occurredsuch Actual Statement, Tenant Tenant’s Auditor (as defined below) shall have the right (“Audit Right”) toright, one time per calendar year during the Lease Termat Tenant’s sole cost and expense, audit Landlord’s records and books used by Landlord in determining the amount of Direct Expenses Tenant is obligated to pay to Landlord for the sole purpose of verifying the accuracy of same (the “Audit”). Any Audit shall cover only one (1) calendar year during the Term of the Lease. Tenant shall provide Landlord upon at least thirty (30) days’ prior notice to Landlord (which notice must be delivered within such ninety (90)-day period), at any time during regular business hours, to review and photocopy (or electronically copy) Landlord’s records pertaining to Operating Expenses for the immediately preceding year only, and only to the extent reasonably necessary to evaluate Tenant’s objections. The inspection of Landlord’s records must be completed within thirty (30) days after such records are made available to Tenant’s Auditor, and the written determination of Tenant’s Auditor must be delivered to Landlord within six (6) months after Txxxxx delivers written notice of its objection to the Actual Statement at issue. If Txxxxx fails to deliver the written determination of Tenant’s Auditor within said time period, Tenant shall forfeit any right to claim a refund, rebate, or return of Operating Expenses set forth in the applicable Actual Statement, except in the event of fraud or intentional misrepresentation. Tenant may engage a qualified employee in Tenant’s finance or accounting department or an independent contractor who (i) is hired by Txxxxx on a non-contingent fee basis, and (ii) specializes in real estate audits, to perform the audit (“Tenant’s Auditor”) to inspect Landlord’s records, subject to Landlord’s prior written notice requesting approval, which approval shall not be unreasonably withheld or delayed. If, following the Audit, provided, however, that date Landlord receives the written report of Tenant’s rightAuditor (the “Report Date”), if anyLandlord disputes the findings therein, and Landlord and Tenant are not able to exercise its Audit Right for any subject year resolve their differences within thirty (30) days following the Report Date, the dispute shall expire be resolved by binding arbitration as follows: Landlord and Tenant shall each designate an independent certified public accountant, who shall in turn jointly select an independent certified public accountant (the “Independent CPA”). Within sixty (60) days after selection, the delivery to Independent CPA shall review the relevant records and determine the proper amount of Operating Expenses payable by Tenant of the Direct Expense Statement for the calendar year, including the last year of the Lease Termin question, which Tenant desires to audit and, unless such right is exercised prior to such time, Tenant determination shall have waived its right to request such an Auditbe final and binding upon the parties. Landlord shall make said books and records relevant to such Audit available to Tenant during Landlord’s customary business hours at If the office of the property manager of the Project or at such other location designated by Landlord in writing.
(ii) Tenant shall pay all reasonable and necessary third party out-of-pocket costs for the Audit, including, without limitation, all of Landlord’s costs and expenses, including reasonable attorney and accountant fees.
(iii) The Audit shall only be conducted by a reputable accounting firm (“Accounting Firm”) approved in writing by Landlord. As a condition precedent to any such Audit, Tenant shall deliver to Landlord a copy of Tenant’s written agreement with such Accounting Firm, which agreement shall include provisions which state that: (A) Landlord is an intended third-party beneficiary of such agreement, (B) such Accounting Firm is not being engaged as a contingency or other incentive based auditor; (C) such Accounting Firm will not in any manner solicit or agree to represent any other tenant of the Project with respect to an audit or other review of Landlord’s accounting records at the Project, and (D) such Accounting Firm shall maintain in strict confidence any and all information obtained in connection with the Audit and shall not disclose such information to any person or entity other than to the management personnel of Tenant. The Accounting Firm, Landlord and Tenant shall enter into a confidentiality agreement in form and substance acceptable to Landlord whereby the Accounting Firm and Tenant shall covenant, among other things, that the Accounting Firm and the Tenant shall keep the books and records of Landlord in strict confidence.
(iv) In the event Independent CPA determines that the amount of Direct Operating Expenses billed to Tenant was incorrect, the appropriate party shall pay to the other party the deficiency or overpayment, as applicable, within thirty (30) days following delivery of the Independent CPA’s decision, without interest. The fees and costs of the Independent CPA shall be paid by Tenant unless the Independent CPA determines that Tenant has overpaid Operating Expenses for the applicable year, in the aggregate, by more than three percent (3%), in which case Landlord shall pay the fees and costs of the Independent CPA, up to a maximum amount of Ten Thousand and No/100 Dollars ($10,000), and Tenant shall pay any remaining balance owing to the Independent CPA. Tenant shall keep all information obtained by Tenant in connection with its review of Lxxxxxxx’s records confidential and obtain the agreement of Txxxxx’s Auditor and the Independent CPA to keep all such information confidential. Landlord may condition inspection of Landlord’s records by Txxxxx’s Auditor or the Independent CPA upon receipt of an executed confidentiality agreement acceptable to Landlord. Txxxxx agrees that Txxxxx’s sole right to inspect Landlord’s books and records and to contest the amount of Operating Expenses payable by Tenant shall be as set forth in this Section 5. Notwithstanding the foregoing, if, as a result of Tenant’s timely audit of Operating Expenses and real estate Taxes for a given calendar year it is determined that the amounts paid by Tenant to Landlord on account of certain line items for Operating Expenses exceed the actual amount of Direct Expenses owed amounts to which Landlord was entitled by more than three percent (3%), then Tenant shall have the right to Landlord as disclosed by the Audit, and after such Audit is confirmed and accepted by Landlord, in examine Landlord’s reasonable discretion, such difference shall be applied to the next succeeding payment of Direct Expenses due by Tenant to Landlord. In the event that the amount of Direct Expenses paid by Tenant to Landlord is less than the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, Tenant shall pay such difference to Landlord within ten (10) days of such determination.
(v) Nothing contained herein shall be construed as providing Tenant with any right or option to examine any other books and records of Landlord or any of Landlord’s affiliated entities. Notwithstanding anything for the two (2) previous calendar years as to the contrary contained herein, the Audit Right granted herein is personal to the originally named Tenant, shall be exercisable only by such originally named Tenant and may not be assigned or exercised by any assignee, sublessee or transferee of Tenant’s interest in this Lease or any successor in interest to Tenantline items.
Appears in 1 contract
Audit Rights. Within 60 days after Landlord furnishes its statement of actual Operating Expenses for any calendar year (iincluding the Base Year) Provided that (the “Audit Election Period”), Tenant may, at its expense, elect to audit Landlord’s Operating Expenses for such calendar year only, subject to the following conditions: (1) there is no Event uncured event of Default has occurreddefault, under this Lease; (2) the audit shall be prepared by an independent certified public accounting firm of recognized national standing; (3) in no event shall any audit be performed by a firm retained on a “contingency fee” basis; (4) the audit shall commence within 30 days after Landlord makes Landlord’s books and records available to Tenant’s auditor and shall conclude within 60 days after commencement; (5) the audit shall be conducted during Landlord’s normal business hours at the location where Landlord maintains its books and records and shall not unreasonably interfere with the conduct of Landlord’s business; (6) Tenant and its accounting firm shall treat any audit in a confidential manner and shall each execute Landlord’s confidentiality agreement for Landlord’s benefit prior to commencing the audit; and (7) the accounting firm’s audit report shall, at no charge to Landlord, be submitted in draft form for Landlord’s review and comment before the final approved audit report is delivered to Landlord, and any reasonable comments by Landlord shall be incorporated into the final audit report. Notwithstanding the foregoing, Tenant shall have the no right (“Audit Right”) to, one time per calendar year during the Lease Term, to conduct an audit Landlord’s records and books used by if Landlord in determining the amount of Direct Expenses Tenant is obligated to pay to Landlord for the sole purpose of verifying the accuracy of same (the “Audit”). Any Audit shall cover only one (1) calendar year during the Term of the Lease. Tenant shall provide Landlord at least thirty (30) days prior written notice requesting the Audit, provided, however, that Tenant’s right, if any, to exercise its Audit Right for any subject year shall expire sixty (60) days after the delivery furnishes to Tenant of the Direct Expense Statement an audit report for the calendar yearyear in question prepared by an independent certified public accounting firm of recognized national standing (whether originally prepared for Landlord or another party). This paragraph shall not be construed to limit, suspend, or xxxxx Tenant’s obligation to pay Rent when due, including the last year of the Lease Term, which Tenant desires to audit and, unless such right is exercised prior to such time, Tenant shall have waived its right to request such an Auditestimated Operating Expenses. Landlord shall make said books credit any overpayment determined by the final approved audit report against the next Rent due and records relevant to owing by Tenant or, if no further Rent is due, refund such Audit available overpayment directly to Tenant during Landlord’s customary business hours at the office within 30 days of the property manager of the Project or at such other location designated by Landlord in writing.
(ii) Tenant shall pay all reasonable and necessary third party out-of-pocket costs for the Audit, including, without limitation, all of Landlord’s costs and expenses, including reasonable attorney and accountant fees.
(iii) The Audit shall only be conducted by a reputable accounting firm (“Accounting Firm”) approved in writing by Landlorddetermination. As a condition precedent to any such Audit, Tenant shall deliver to Landlord a copy of Tenant’s written agreement with such Accounting Firm, which agreement shall include provisions which state that: (A) Landlord is an intended third-party beneficiary of such agreement, (B) such Accounting Firm is not being engaged as a contingency or other incentive based auditor; (C) such Accounting Firm will not in any manner solicit or agree to represent any other tenant of the Project with respect to an audit or other review of Landlord’s accounting records at the Project, and (D) such Accounting Firm shall maintain in strict confidence any and all information obtained in connection with the Audit and shall not disclose such information to any person or entity other than to the management personnel of Tenant. The Accounting Firm, Landlord and Tenant shall enter into a confidentiality agreement in form and substance acceptable to Landlord whereby the Accounting Firm and Tenant shall covenant, among other things, that the Accounting Firm and the Tenant shall keep the books and records of Landlord in strict confidence.
(iv) In the event that the amount of Direct Expenses paid by Tenant to Landlord exceed the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, and after such Audit is confirmed and accepted by Landlord, in Landlord’s reasonable discretion, such difference shall be applied to the next succeeding payment of Direct Expenses due by Tenant to Landlord. In the event that the amount of Direct Expenses paid by Tenant to Landlord is less than the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the AuditLikewise, Tenant shall pay such difference to Landlord any underpayment determined by the final approved audit report within ten (10) 30 days of such determination.
(v) Nothing contained herein . The foregoing obligations shall survive the expiration or termination of this Lease. If Tenant does not give written notice of its election to audit Landlord’s Operating Expenses during the Audit Election Period, Landlord’s Operating Expenses for the applicable calendar year shall be construed as providing deemed approved for all purposes, and Tenant with any shall have no further right to review or option contest the same. The right to examine any other books and records of Landlord or any of Landlord’s affiliated entities. Notwithstanding anything to the contrary contained herein, the Audit Right audit granted herein hereunder is personal to the originally initial Tenant named Tenant, shall be exercisable only by such originally named Tenant and may not be assigned or exercised by any assignee, sublessee or transferee of Tenant’s interest in this Lease or and to any successor in interest assignee under a Permitted Transfer (defined below) and shall not be available to Tenantany subtenant under a sublease of the Premises.
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Audit Rights. 4.01 Within ninety (i90) Provided days after receiving Landlord’s annual reconciliation statement of Expenses (or, at any time during the Term with respect to the Base Year for Expenses; provided, that, such review by Tenant of the Base Year for Expenses shall only occur once during the Term) (each such period is referred to as the “Review Notice Period”), Tenant may give Landlord written notice (a “Review Notice”) that no Event Tenant intends to review Landlord’s records of Default has occurredthe Expenses for the calendar year (or Base Year for Expenses, as applicable) to which the statement applies, identifying, with a reasonable degree of specificity, the information that Tenant desires to review (the “Request for Information”). Within a reasonable time after Landlord’s receipt of a timely Request for Information and executed Audit Confidentiality Agreement (as defined below), Landlord, as determined by Landlord, shall make available for inspection on site at such location deemed reasonably appropriate by Landlord, such records (or copies thereof) for the applicable calendar year (or Base Year for Expenses, as applicable) that are reasonably necessary for Tenant to conduct its review of the information appropriately identified in the Request for Information. Within sixty (60) days after any particular records are made available to Tenant (such period is referred to as the “Objection Period”), Tenant shall have the right to give Landlord written notice (an “Audit RightObjection Notice”) to, one time per stating in reasonable detail any objection to Landlord’s statement of Expenses for that calendar year during which relates to the Lease Termrecords that have been made available to Tenant. If Tenant provides Landlord with a timely Objection Notice and the parties agree that Expenses for the calendar year are less than reported, audit Landlord’s records and books used by then Landlord shall provide Tenant with a credit against the next installment of Additional Rent in determining the amount of Direct the overpayment by Tenant. If the parties agree that Expenses Tenant is obligated to pay to Landlord for the sole purpose of verifying the accuracy of same (the “Audit”). Any Audit shall cover only one (1) calendar year during are greater than reported, then Tenant shall pay Landlord the Term amount of any underpayment within thirty (30) days. If Tenant fails to give Landlord an Objection Notice with respect to any records that have been made available to Tenant prior to the expiration of the Lease. Objection Period applicable to the records which have been provided to Tenant, then Tenant shall be deemed to have approved Landlord’s statement of Expenses with respect to the matters reflected in such records and shall be barred from raising any claims regarding the Expenses relating to such records for that calendar year. If Tenant fails to timely provide Landlord at least with a Review Notice and the Request for Information Period described above, then Tenant shall be deemed to have approved Landlord’s statement of Expenses and shall be barred from raising any claims regarding the Expenses for that calendar year. In the event that any audit of Expenses by Tenant hereunder discloses that Landlord’s annual statement of such Expenses overstated such Expenses actually due from Tenant hereunder by five percent (5%) or more in the aggregate, then Landlord shall reimburse Tenant for Tenant’s reasonable and actual costs of Tenant’s Auditors (as defined below), not to exceed $5,000.00 in the aggregate, within thirty (30) days prior written notice requesting the Audit, provided, however, that following Landlord’s receipt of Tenant’s rightinvoices therefor.
4.02 If Tenant retains an agent to review Landlord’s records, if anythe agent must be a certified public accountant employed by (a) a regional or nationally recognized certified public accounting firm licensed to do business in the Commonwealth of Massachusetts, to exercise its Audit Right (b) Cxxxxxx & Wxxxxxxxx, or (c) another nationally recognized commercial leasing brokerage firm. Tenant shall be solely responsible for any subject year shall expire sixty (60) days after the delivery to Tenant of the Direct Expense Statement all costs, expenses and fees incurred for the calendar yearaudit, including and Tenant shall not directly or indirectly engage such agent or any other party in connection with such review whose compensation or fees are charged in whole or in part on a contingency basis. The records and related information obtained by Tenant shall be treated as confidential, and applicable only to the last year Building, by Tenant and its auditors, consultants and other parties reviewing such records on behalf of the Lease TermTenant (collectively, which Tenant desires to audit “Tenant’s Auditors”), and, unless such right is exercised prior to such time, Tenant shall have waived its right to request such an Audit. Landlord shall make said books and making any records relevant to such Audit available to Tenant during Landlord’s customary business hours at the office of the property manager of the Project or at such other location designated by Landlord in writing.
(ii) Tenant shall pay all reasonable and necessary third party out-of-pocket costs for the Audit, including, without limitation, all of Landlord’s costs and expenses, including reasonable attorney and accountant fees.
(iii) The Audit shall only be conducted by a reputable accounting firm (“Accounting Firm”) approved in writing by Landlord. As a condition precedent to any such Audit, Tenant shall deliver to Landlord a copy of Tenant’s written agreement with such Accounting Firm, which agreement shall include provisions which state that: (A) Landlord is an intended third-party beneficiary of such agreement, (B) such Accounting Firm is not being engaged as a contingency or other incentive based auditor; (C) such Accounting Firm will not in any manner solicit or agree to represent any other tenant of the Project with respect to an audit or other review of Landlord’s accounting records at the Project, and (D) such Accounting Firm shall maintain in strict confidence any and all information obtained in connection with the Audit and shall not disclose such information to any person or entity other than to the management personnel of Tenant. The Accounting FirmAuditors, Landlord may require Tenant and Tenant shall enter into Tenant’s Auditors to each execute a confidentiality agreement in a form reasonably provided by Landlord (“Audit Confidentiality Agreement”) in accordance with the foregoing. In no event shall Tenant be permitted to examine Landlord’s records or to dispute any statement of Expenses unless Tenant has paid and substance acceptable continues to pay all Rent when due.
1. This Work Letter shall set forth the obligations of Landlord whereby the Accounting Firm and Tenant with respect to the preparation of the Premises for Tenant's occupancy. As used herein, "Landlord Work" shall covenant, among other things, that mean the Accounting Firm and the Tenant shall keep the books and records of Landlord in strict confidence.
(iv) In the event that the amount of Direct Expenses paid by Tenant work to Landlord exceed the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, and after such Audit is confirmed and accepted be completed by Landlord, in a good and workmanlike manner, and in accordance with applicable Laws, to prepare the Premises for Tenant’s occupancy utilizing the methods and materials more particularly set forth in the Construction Documents (as defined below), as described in the plans and specifications to be prepared by Landlord using Landlord’s reasonable discretionarchitect, such difference shall be applied OTJ Architects (the “Architect”), based on the concept plan attached hereto as Exhibit C-1 (the “Concept Plan”), which Concept Plan has been provided to Landlord by Tenant at Tenant’s sole cost and expense subject to the next succeeding payment of Direct Expenses due Concept Plan Allowance (the “Plans and Specifications,” and together with the Concept Plan, collectively, the “Construction Documents”), which are incorporated herein by Tenant reference, all at Landlord’s sole cost and expense up to Landlord. In the event that the amount of Direct Expenses paid by the Allowance, and which shall include delivering the Premises to Tenant to Landlord is less than on the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by Substantial Completion Date with all HVAC, mechanical, electrical, lighting, plumbing and life safety systems serving the AuditPremises in good working order, condition and repair. Notwithstanding the foregoing, Tenant shall pay such difference to Landlord within ten (10) days of such determination.
(v) Nothing contained herein shall be construed as providing Tenant with any right or option to examine any other books solely responsible for the cost, expense and records of Landlord or any of Landlord’s affiliated entities. Notwithstanding anything to the contrary contained herein, the Audit Right granted herein is personal to the originally named Tenant, shall be exercisable only by such originally named Tenant and may not be assigned or exercised by any assignee, sublessee or transferee installation of Tenant’s interest Tel/Data, Fixtures and Furniture, which shall not be part of the Landlord Work nor subject to reimbursement from the Allowance. Landlord shall (a) enter into a direct contract for the Landlord Work with a general contractor selected by Landlord in this Lease or any successor in interest its sole discretion (the “General Contractor”), which may be Cxxxxxxx Construction, an affiliate of Landlord, and (b) require that the General Contractor competitively bid each major trade performing the Landlord Work to Tenantat least three (3) subcontractors.
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Audit Rights. Tenant shall have the right, at Tenant's cost, after reasonable notice to Landlord, to have Tenant's authorized employees or agents inspect, at Landlord's main corporate office during normal business hours, Landlord's books, records and supporting documents concerning the Operating Expenses, Tax Expenses and Utilities Costs set forth in any Statement delivered by Landlord to Tenant for a particular Expense Year pursuant to Section 4.3.2 above; provided, however, Tenant shall have no right to conduct such inspection or object to or otherwise dispute the amount of the Operating Expenses, Tax Expenses and Utilities Costs set forth in any such Statement, unless Tenant notifies Landlord of such inspection objection and dispute, completes such inspection within six (i6) Provided months immediately following Landlord's delivery of a Statement (the "Review Period"); provided, further, that no Event notwithstanding any such timely inspection, objection, dispute, and/or audit, and as a condition precedent to Tenant's exercise of Default has occurredits right of inspection, objection, dispute, and/or audit as set forth in this Section 4.6, Tenant shall not be permitted to withhold payment of, and Tenant shall timely pay to Landlord, the full amounts as required by the provisions of this Article 4 in accordance with such Statement. However, such payment may be made under protest pending the outcome of any audit. In connection with any such inspection by Tenant, Landlord and Tenant shall reasonably cooperate with each other so that such inspection can be performed pursuant to a mutually acceptable schedule, in an expeditious manner and without undue interference with Landlord's operation and management of the Project. If after such inspection and/or request for documentation, Tenant disputes the amount of the Operating Expenses, Tax Expenses and Utilities Costs set forth in the Statement, Tenant shall have the right (“Audit Right”) toright, one time per calendar year during but not the Lease Termobligation, audit Landlord’s records within the Review Period, to cause an independent certified public accountant which is not paid on a contingency basis and books used which is mutually approved by Landlord in determining and Tenant (the "Accountant") to complete an audit of Landlord's books and records to determine the proper amount of Direct the Operating Expenses, Tax Expenses and Utilities Costs incurred and amounts payable by Tenant is obligated to pay to Landlord for the sole purpose Expense Year which is the subject of verifying such Statement. Such audit by the accuracy of same (Accountant shall be final and binding upon Landlord and Tenant. If Landlord and Tenant cannot mutually agree as to the “Audit”). Any Audit shall cover only one (1) calendar year during the Term identity of the Lease. Tenant shall provide Landlord at least Accountant within thirty (30) days prior written notice requesting after Tenant notifies Landlord that Tenant desires an audit to be performed, then the AuditAccountant shall be one of the "Big 4" accounting firms selected by Landlord, providedwhich is not paid on a contingency basis and is not, howeverand has not been, otherwise employed or retained by Landlord. If such audit reveals that Landlord has over-charged Tenant’s right, if any, to exercise its Audit Right for any subject year shall expire sixty then within thirty (6030) days after the delivery results of such audit are made available to Landlord, Landlord shall reimburse to Tenant the amount of such over-charge. If the Direct Expense Statement for audit reveals that the calendar yearTenant was under-charged, including then within thirty (30) days after the last year results of the Lease Term, which Tenant desires such audit are made available to audit and, unless such right is exercised prior to such timeTenant, Tenant shall reimburse to Landlord the amount of such under-charge. Tenant agrees to pay the cost of such audit unless it is subsequently determined that Landlord's original Statement which was the subject of such audit was in error to Tenant's disadvantage by five percent (5%) or more of the total Operating Expenses, Tax Expenses and Utilities Costs which was the subject of the audit (in which case Landlord shall pay the cost of such audit). The payment by Tenant of any amounts pursuant to this Article 4 shall not preclude Tenant from questioning the correctness of any Statement provided by Landlord at any time during the Review Period, but the failure of Tenant to object thereto, conduct and complete its inspection and have waived its the Accountant conduct and complete the audit as described above prior to the expiration of the Review Period shall be conclusively deemed Tenant's approval of the Statement in question and the amount of Operating Expenses, Tax Expenses and Utilities Costs shown thereon, subject to Tenant's right to request such an Audit. Landlord shall make said books and records relevant to such Audit available to Tenant during Landlord’s customary business hours at the office of the property manager of the Project or at such other location designated by Landlord in writing.
(ii) Tenant shall pay all reasonable and necessary third party out-of-pocket costs review Statements for the Auditprior twelve (12) months. In connection with any inspection and/or audit conducted by Tenant pursuant to this Section 4.6, includingTenant agrees to keep, without limitationand to cause all of Tenant's employees and consultants and the Accountant to keep, all of Landlord’s costs 's books and expensesrecords and the audit, including reasonable attorney and accountant fees.
(iii) The Audit shall only be conducted by a reputable accounting firm (“Accounting Firm”) approved all information pertaining thereto and the results thereof, strictly confidential, and in writing by Landlord. As a condition precedent to any such Auditconnection therewith, Tenant shall deliver to Landlord a copy of Tenant’s written agreement with cause such Accounting Firmemployees, which agreement shall include provisions which state that: (A) Landlord is an intended third-party beneficiary of such agreement, (B) such Accounting Firm is not being engaged as a contingency or other incentive based auditor; (C) such Accounting Firm will not in any manner solicit or agree to represent any other tenant of the Project with respect to an audit or other review of Landlord’s accounting records at the Project, and (D) such Accounting Firm shall maintain in strict confidence any and all information obtained in connection with the Audit and shall not disclose such information to any person or entity other than to the management personnel of Tenant. The Accounting Firm, Landlord and Tenant shall enter into a confidentiality agreement in form and substance acceptable to Landlord whereby the Accounting Firm and Tenant shall covenant, among other things, that the Accounting Firm consultants and the Tenant shall keep the books and records of Accountant to execute such reasonable confidentiality agreements as Landlord in strict confidence.
(iv) In the event that the amount of Direct Expenses paid by Tenant may require prior to Landlord exceed the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Auditconducting any such inspections and/or audits. 843078.08/SD374622-00033/8-4-16/MLT/dek -14- GENESIS SSF - ONE TOWER PLACE[Achaogen, and after such Audit is confirmed and accepted by Landlord, in Landlord’s reasonable discretion, such difference shall be applied to the next succeeding payment of Direct Expenses due by Tenant to Landlord. In the event that the amount of Direct Expenses paid by Tenant to Landlord is less than the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, Tenant shall pay such difference to Landlord within ten (10) days of such determination.
(v) Nothing contained herein shall be construed as providing Tenant with any right or option to examine any other books and records of Landlord or any of Landlord’s affiliated entities. Notwithstanding anything to the contrary contained herein, the Audit Right granted herein is personal to the originally named Tenant, shall be exercisable only by such originally named Tenant and may not be assigned or exercised by any assignee, sublessee or transferee of Tenant’s interest in this Lease or any successor in interest to Tenant.Inc.]
Appears in 1 contract
Samples: Lease (Achaogen Inc)
Audit Rights. Construction Manager's records, which shall include, but not be limited to, accounting records, payroll time sheets, written policies and procedures, computer records, disks and software, videos, photographs, subcontract files (iincluding proposals of successful and unsuccessful bidders), original estimates, estimating worksheets, correspondence, change order files, (including documentation covering negotiated settlements), and other supporting evidence necessary to substantiate charges related to this Agreement(all the foregoing hereinafter referred to as "records”) Provided that no Event shall be open to inspection and subject to audit and/or reproduction, during normal working hours, by Owner's agent or its authorized representative to the extent necessary to adequately permit evaluation and verification of Default has occurredany invoices, Tenant payments or claims submitted by the Construction Manager or any of his payees pursuant to the execution of this Agreement. Such records subject to examination shall also include, but not be limited to, those records necessary to evaluate and verify direct and indirect costs as they may apply to reimbursable costs associated with this Agreement. All records shall be provided by Construction Manager within a reasonable period of time not to exceed 30 days following receipt of Owner’s written request. Construction Manager shall keep all records and supporting documentation which concern or relate to the work hereunder for a minimum of three (3) years from the date of termination of this Agreement or the date the Project is completed, whichever is later or such longer period of time as may be required by law. Construction Manager shall require all of its subcontractors to likewise retain all of their Project records and supporting documentation. Owner and any duly authorized agents or representatives of Owner, shall be provided access to all such records and supporting documentation at any and all times during normal business hours upon request by Owner. Further, Owner, and any duly authorized agents or representatives of Owner, shall have the right (“Audit Right”) toto audit, one time per calendar year during inspect and copy all of Construction Manager’s and any subcontractor’s Project records and documentation as often as they deem necessary and Construction Manager shall cooperate in any audit, inspection, or copying of the Lease Termdocuments. If at any time, Owner conducts such an audit Landlordof Construction Manager’s records and books used by Landlord documentation and finds that Construction Manager overcharged Owner for any compensation or costs incurred in determining the amount of Direct Expenses Tenant is obligated to Project, Construction Manager shall pay to Landlord for Owner the sole purpose Overcharged Amount which is defined as the total aggregate overcharged amount together with interest thereon (such interest to be established at the rate of verifying the accuracy of same (the “Audit”12% annum). Any If the Overcharged Amount is equal to or greater than $ 60,000, Construction Manager shall pay to Owner the Overcharged Amount and the Audit shall cover only one (1) calendar year during Amount which is defined as the Term total aggregate of Owner’s reasonable audit costs incurred as a result of its audit of Construction Manager. Owner may recover the Lease. Tenant shall provide Landlord at least thirty (30) days prior written notice requesting Overcharged Amount and the AuditAudit Amount, providedas applicable, however, that Tenant’s right, if any, from any amount due or owing Construction Manager with regard to exercise its Audit Right for any subject year shall expire sixty (60) days after the delivery to Tenant of the Direct Expense Statement for the calendar year, including the last year of the Lease Term, which Tenant desires to audit and, unless such right is exercised prior to such time, Tenant shall have waived its right to request such an Audit. Landlord shall make said books and records relevant to such Audit available to Tenant during Landlord’s customary business hours at the office of the property manager of the Project or at such other location designated by Landlord in writing.
(ii) Tenant shall pay all reasonable and necessary third party out-of-pocket costs for the Audit, including, without limitation, all of Landlord’s costs and expenses, including reasonable attorney and accountant fees.
(iii) The Audit shall only be conducted by a reputable accounting firm (“Accounting Firm”) approved in writing by Landlord. As a condition precedent to any such Audit, Tenant shall deliver to Landlord a copy of Tenant’s written agreement with such Accounting Firm, which agreement shall include provisions which state that: (A) Landlord is an intended third-party beneficiary of such agreement, (B) such Accounting Firm is not being engaged as a contingency or other incentive based auditor; (C) such Accounting Firm will not in any manner solicit or agree to represent under any other tenant of agreement between Construction Manager and Owner. If such amounts owed Construction Manager is insufficient to cover the Project with respect to an audit or other review of Landlord’s accounting records at the ProjectOvercharged Amount and Audit Amount, as applicable, then Construction Manager hereby acknowledges and (D) such Accounting Firm shall maintain in strict confidence any and all information obtained in connection with the Audit and shall not disclose such information to any person or entity other than to the management personnel of Tenant. The Accounting Firm, Landlord and Tenant shall enter into a confidentiality agreement in form and substance acceptable to Landlord whereby the Accounting Firm and Tenant shall covenant, among other things, agrees that the Accounting Firm and the Tenant shall keep the books and records of Landlord in strict confidence.
(iv) In the event that the amount of Direct Expenses paid by Tenant to Landlord exceed the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, and after such Audit is confirmed and accepted by Landlord, in Landlord’s reasonable discretion, such difference shall be applied to the next succeeding payment of Direct Expenses due by Tenant to Landlord. In the event that the amount of Direct Expenses paid by Tenant to Landlord is less than the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, Tenant it shall pay such difference remaining amounts to Landlord Owner within ten seven (107) business days of its receipt of Owner’s invoice for such determination.
(v) Nothing contained herein remaining amounts. In no event shall be construed as providing Tenant with any right the Overcharged Amount or option to examine any other books and records of Landlord or any of Landlord’s affiliated entities. Notwithstanding anything to the contrary contained herein, the Audit Right granted herein is personal Amount be deemed reimbursable to Construction Manager. Construction Manager shall require all subcontractors, insurance agents, and material suppliers (payees) to comply with the originally named Tenantprovisions of this Article by insertion of the requirements hereof in any written contract agreement. Failure to obtain such written contracts, which include such provisions, shall be exercisable only by such originally named Tenant reason to exclude some or all of the related payees' costs from amounts payable to the Construction Manager pursuant to this Agreement. This Article, including all access, inspection, copying, auditing, reimbursement and may not be assigned or exercised by any assigneerepayment rights, sublessee or transferee shall survive the termination of Tenant’s interest in this Lease or any successor in interest to TenantAgreement.
Appears in 1 contract
Samples: Construction Manager Agreement
Audit Rights. At the request of Tenant (i“Tenant’s Audit Notice”) Provided that given no Event later than six (6) months after Landlord delivers Landlord’s annual statement of Default has occurredTotal Operating Costs with respect to any calendar year during the Term, Tenant shall have the right (“Audit Right”) to, one time per calendar year during the Lease Term, audit to examine Landlord’s books and records regarding Total Operating Costs for such year. (For the avoidance of doubt, the references herein to “books and records” regarding Total Operating Costs shall refer to the books used and records maintained by Landlord in determining or its property manager that are reasonably required to substantiate the amount of Direct Expenses Tenant is obligated Total Operating Costs for the applicable year hereunder, such as property management ledger books or electronic summaries evidencing expenditures and need not include the actual receipts or payment records for each individual expenditure.) Tenant’s right to pay examine such books and records shall be exercisable upon reasonable advance notice to Landlord for and at reasonable times during Landlord’s business hours commencing on or after a date specified by Landlord that is within the sole purpose sixty-(60)-day period following the delivery of verifying the accuracy of same (the “Audit”). Any Audit shall cover only one (1) calendar year during the Term of the Lease. Tenant shall provide Landlord at least thirty (30) days prior written notice requesting the Audit, provided, however, that Tenant’s rightAudit Notice, and only if any, to exercise its Audit Right for any subject year shall expire sixty (60) days after the delivery to Tenant no Event of the Direct Expense Statement for the calendar year, including the last year of the Lease Term, which Tenant desires to audit and, unless such right Default has occurred and is exercised prior to such time, Tenant shall have waived its right to request such an Auditcontinuing. Landlord shall make said such books and records relevant to available for such Audit available to examination by Tenant during either (at Landlord’s customary business hours election) at Landlord’s office in Massachusetts or at the office Building or elsewhere at the Project, or in electronically accessible form. (If so requested in Tenant’s request to review the books and records for the subject calendar year, Landlord shall make such books and records for the immediately prior calendar year (if any) available for Tenant’s examination, for reference purposes only in connection with its examination of the property manager books and records for the subject calendar year, and not for the purpose of auditing or objecting to Total Operating Costs for any such immediately preceding calendar year.) Any such examination of Landlord’s Total Operating Costs for the subject calendar year shall be conducted, at Tenant’s election, either by members of Tenant’s internal financial staff or by a certified public accounting firm or other professional consultant or tax advisor (any of the Project or at foregoing being referred to as Tenant’s “examiners”). If Tenant reasonably requests copies of any such other location designated by Landlord in writing.
(ii) books and records, Tenant shall pay all reasonable and necessary third party reimburse Landlord for the out-of-pocket costs for the Audit, including, without limitation, all thereof. Tenant shall not engage any such examiner(s) or any other party on a contingency fee basis in connection with any examination of Landlord’s costs books and expensesrecords hereunder. Before commencing any such examination of Landlord’s books and records, including reasonable attorney Tenant and accountant fees.
its examiners shall execute and deliver to Landlord an agreement in form reasonably acceptable to Landlord agreeing to keep confidential any non-public, confidential information about Landlord, the Building, or the Project in connection with such examination and not to disclose such information or the results of such examination to any other party (iiiother than Tenant’s attorneys and accountants who are engaged in connection with such examination and agree to abide by such non-disclosure agreement), except to the extent required by law or applicable judicial proceeding with respect to the enforcement of the provisions hereof, all as more particularly set forth in such non-disclosure agreement. Tenant shall have a period of one hundred twenty (120) The Audit shall only be conducted by a reputable accounting firm days after the date Landlord’s books and records regarding Total Operating Costs for the subject calendar year as set forth herein are first made available to Tenant (the “Accounting FirmReview Period”) approved in writing which to complete its audit and submit to Landlord, if Tenant has any objection to Landlord’s statement for the subject calendar year, an auditor’s report or other description of any such objections (if any) to particular items in reasonable detail. Any items as to which no such objection is made within the Review Period shall be deemed accepted, it being the parties’ mutual intention to identify any such items within the Review Period and resolve any such objections promptly in order to close their respective books for such year. If the Additional Rent as finally determined for such year is less than the Additional Rent paid by Landlord. As a condition precedent Tenant, Landlord shall either promptly credit such excess against the Rent next due from Tenant or refund such amount to Tenant (including, if applicable, with respect to any such Audityear-end reconciliation occurring after the expiration or earlier termination of the Term), Tenant shall deliver after deduction (if an Event of Default has occurred and is then continuing) of any delinquent amounts due to Landlord a copy of under the Lease. Tenant’s written agreement with such Accounting Firm, which agreement shall include provisions which state that: (A) Landlord is an intended third-party beneficiary of such agreement, (B) such Accounting Firm is not being engaged as a contingency or other incentive based auditor; (C) such Accounting Firm will not in any manner solicit or agree request to represent any other tenant of the Project with respect to an audit or other review of examine Landlord’s accounting records at the Project, and (D) such Accounting Firm shall maintain in strict confidence any and all information obtained in connection with the Audit and shall not disclose such information to any person or entity other than to the management personnel of Tenant. The Accounting Firm, Landlord and Tenant shall enter into a confidentiality agreement in form and substance acceptable to Landlord whereby the Accounting Firm and Tenant shall covenant, among other things, that the Accounting Firm and the Tenant shall keep the books and records of Landlord in strict confidence.
(iv) In shall not extend the event that time within which Tenant is obligated to pay the amount of Direct Expenses paid by Tenant to Landlord exceed the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, and after such Audit is confirmed and accepted by Landlord, in amounts shown on Landlord’s reasonable discretion, such difference shall be applied to the next succeeding payment statement of Direct Expenses due by Tenant to LandlordTotal Operating Costs. In the event that that, as a result of such examination, Tenant has been overcharged by five percent (5%) or more of the Additional Rent actually due for Total Operating Costs for such year, Landlord shall (in addition to refunding or crediting the amount overcharged as provided above) reimburse Tenant for the reasonable third-party costs of Direct Expenses paid engaging its third-party examiner, not to exceed $15,000.00 (which amount shall be increased by Tenant to Landlord is less than three percent (3%) on each anniversary of the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the AuditCommencement Date). In all other cases, Tenant shall pay for the cost of such difference examination. If Tenant fails to timely request an examination hereunder or, after timely requesting an examination hereunder, Tenant fails to object within the Review Period to specific items in the annual statement by written notice to Landlord within ten (10) days of reasonably setting forth the grounds, then the terms in such determination.
(v) Nothing contained herein annual statement shall be construed as providing Tenant with any right or option to examine any other books and records of Landlord or any of Landlord’s affiliated entities. Notwithstanding anything to the contrary contained herein, the Audit Right granted herein is personal to the originally named Tenant, shall be exercisable only by such originally named Tenant and may not be assigned or exercised by any assignee, sublessee or transferee of Tenant’s interest in this Lease or any successor in interest to Tenantdeemed accepted.
Appears in 1 contract
Samples: Lease Agreement (Cerevel Therapeutics Holdings, Inc.)
Audit Rights. (i) Provided that no Event of Default has occurredIf Tenant wishes to dispute an amount shown on the annual statement, Tenant shall have the right (“Audit Right”) to, one time per calendar year during the Lease Term, audit Landlord’s records and books used by give Landlord in determining the amount of Direct Expenses Tenant is obligated to pay to Landlord for the sole purpose of verifying the accuracy of same (the “Audit”). Any Audit shall cover only one (1) calendar year during the Term of the Lease. Tenant shall provide Landlord at least thirty (30) days prior written notice requesting the Audit, provided, however, that Tenant’s right, if any, to exercise its Audit Right for any subject year shall expire of such dispute within sixty (60) days after the delivery to Tenant Tenant’s receipt of the Direct Expense Statement for the calendar year, including the last year of the Lease Term, which annual statement. If Tenant desires to audit and, unless does not give Landlord such right is exercised prior to notice within such time, Tenant shall have waived its right to request dispute the annual statement. Promptly after the receipt of such written notice from Tenant, Landlord and Tenant shall endeavor in good faith to resolve such dispute. If such efforts do not succeed, Tenant shall have the right to cause a nationally or regionally recognized independent certified public accountant designated by Tenant, to be paid on an Audithourly or fixed fee basis and not a contingent fee basis, to audit the items questioned by Tenant in its original notice contesting the annual statement, provided that Tenant (i) notifies Landlord in writing of Tenant’s intention to exercise such audit right within 30 days after the relevant initial written notice from Tenant to Landlord with respect to such dispute, (ii) actually begins such audit within 45 days after the notice from Tenant to Landlord advising Landlord that Tenant will require an audit (provided that such 45-day period within which the audit must be commenced shall be extended by the length of any delay in the commencement of the audit that is caused by Landlord) and (iii) diligently pursues such audit to completion as quickly as reasonably possible. Landlord shall agrees to make said available to Tenant’s auditors, at Landlord’s office in Seattle Washington and/or at Landlord’s office in the Building (at Landlord’s sole option), the books and records relevant to the audit for review and copying, but such Audit available to Tenant during books and records may not be removed from Landlord’s customary business hours offices. Tenant shall bear all costs of such audit, including Landlord’s actual copying costs and personnel costs, if any incurred in connection with such audit (provided that, prior to incurring any personnel costs in connection with any such audit, Landlord shall advise Tenant of Landlord’s anticipated personnel costs so that Tenant may, at Tenant’s option, modify Tenant’s activities with regard to such audit in order to preclude the office need for Landlord to incur such personnel costs), except that, if the audit (as conducted and certified by the auditor) shows an aggregate overstatement of the property manager Taxes and Expenses payable by Tenant of 5% or more, and Landlord’s auditors concur in such findings (or, in the absence of such concurrence, such overstatement is confirmed by a court of competent jurisdiction or such other dispute resolution mechanism as to which the parties mutually agree in writing), then Landlord shall bear all costs of the Project audit. If the agreed or at such other location designated confirmed audit shows an aggregate underpayment of Taxes Expenses payable by Landlord in writing.
(ii) Tenant, Tenant shall pay all reasonable and necessary third party out-of-pocket costs to Landlord, within 30 days after the audit is agreed to or confirmed, the amount owed to Landlord, and, if the agreed or confirmed audit shows an aggregate overpayment of Taxes Expenses payable by Tenant, Landlord shall reimburse Tenant for such overpayment within 30 days after the Auditaudit is agreed to or confirmed. Notwithstanding anything to the contrary set forth above, Tenant’s audit rights under this Section 4 shall be conditioned upon (i) Tenant having paid the total amounts billed by Landlord under this Exhibit B within the time stipulated herein for payment (including, without limitation, all of Landlord’s costs the contested amounts) and expenses(ii) Tenant executing, including reasonable attorney and accountant fees.
(iii) The Audit shall only be conducted by a reputable accounting firm (“Accounting Firm”) approved in writing by Landlord. As a condition precedent prior to any such Audit, Tenant shall deliver to Landlord a copy of Tenant’s written agreement with such Accounting Firm, which agreement shall include provisions which state that: (A) Landlord is an intended third-party beneficiary of such agreement, (B) such Accounting Firm is not being engaged as a contingency or other incentive based auditor; (C) such Accounting Firm will not in any manner solicit or agree to represent any other tenant the commencement of the Project with respect to an audit or other review of Landlord’s accounting records at the Projectaudit, and (D) such Accounting Firm shall maintain in strict confidence any and all information obtained in connection with the Audit and shall not disclose such information to any person or entity other than to the management personnel of Tenant. The Accounting Firm, Landlord and Tenant shall enter into a confidentiality agreement in form and substance acceptable reasonably satisfactory to Landlord whereby the Accounting Firm and in which Tenant shall covenantagree to keep confidential, among and not disclose to any other thingsparty, that the Accounting Firm and the Tenant shall keep the books and records results of any such audit or any action taken by Landlord in strict confidence.
(iv) In the event that the amount of Direct Expenses paid by Tenant to Landlord exceed the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, and after such Audit is confirmed and accepted by Landlord, in Landlord’s reasonable discretion, such difference shall be applied to the next succeeding payment of Direct Expenses due by Tenant to Landlord. In the event that the amount of Direct Expenses paid by Tenant to Landlord is less than the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, Tenant shall pay such difference to Landlord within ten (10) days of such determination.
(v) Nothing contained herein shall be construed as providing Tenant with any right or option to examine any other books and records of Landlord or any of Landlord’s affiliated entities. Notwithstanding anything to the contrary contained herein, the Audit Right granted herein is personal to the originally named Tenant, shall be exercisable only by such originally named Tenant and may not be assigned or exercised by any assignee, sublessee or transferee of Tenant’s interest in this Lease or any successor in interest to Tenant.response thereto
Appears in 1 contract
Audit Rights. Tenant shall have the right, at Tenant’s cost, after reasonable notice to Landlord, to have Tenant’s authorized employees or agents inspect, at Landlord’s California office during normal business hours, Landlord’s books, records and supporting documents concerning the Direct Expenses set forth in any statement delivered by Landlord to Tenant for a particular calendar year pursuant to Section 4.4.1 above; provided, however, Tenant shall have no right to conduct such inspection or object to or otherwise dispute the amount of the Direct Expenses set forth in any such statement, unless Tenant notifies Landlord of such inspection request, completes such inspection, and demands an audit as set forth below within six (i6) Provided months immediately following Landlord’s delivery of the particular statement in question (the “Review Period”); provided, further, that no Event notwithstanding any such timely inspection, objection, dispute, and/or audit, and as a condition precedent to Tenant’s exercise of Default has occurredits right of inspection, objection, dispute, and/or audit as set forth in this Section 4.6 Tenant shall not be permitted to withhold payment of, and Tenant shall timely pay to Landlord, the full amounts as required by the provisions of this Article 4 in accordance with such statement. However, such payment may be made under protest pending the outcome of any audit. In connection with any such inspection by Tenant, Landlord and Tenant shall reasonably cooperate with each other so that such inspection can be performed pursuant to a mutually acceptable schedule, in an expeditious manner and without undue interference with Landlord’s operation and management of the Project. If after such inspection and/or request for documentation, Tenant disputes the amount of the Direct Expenses set forth in the statement, Tenant shall have the right right, but not the obligation, within the Review Period, to cause an independent certified public accountant which is not paid on a contingency basis and which is mutually agreed upon by Landlord and Tenant (the “Audit RightAccountant”) to, one time per to complete an audit of Landlord’s books and records to determine the proper amount of the Direct Expenses incurred and amounts payable by Tenant for the calendar year which is the subject of such statement. Such audit by the Accountant shall be final and binding upon Landlord and Tenant. If Landlord and Tenant cannot mutually agree as to the identity of the Accountant within thirty (30) days after Tenant notifies Landlord that Tenant desires an audit to be performed, then the Accountant shall be one of the “Big 4” accounting firms selected by Tenant, which is not paid on a contingency basis. If such audit reveals that Landlord has over-charged Tenant, then within thirty (30) days after the results of such audit are made available to Landlord, Landlord shall reimburse to Tenant the amount of such over-charge. If the audit reveals that the Tenant was under-charged, then within thirty (30) days after the results of such audit are made available to Tenant, Tenant shall reimburse to Landlord the amount of such under-charge. Tenant agrees to pay the cost of such audit unless it is subsequently determined that Landlord’s original statement which was the subject of such audit was in error to Tenant’s disadvantage by five percent (5%) or more of the total Direct Expenses which was the subject of such audit (but in such an event, Landlord’s obligation to pay for such audit shall not exceed the sum of $6,000). The payment by Tenant of any amounts pursuant to this Article 4 shall not preclude Tenant from questioning the correctness of any statement provided by Landlord at any time during the Lease TermReview Period, but the failure of Tenant to object thereto, conduct and complete its inspection and have the Accountant conduct and complete the audit Landlordas described above prior to the expiration of the Review Period shall be conclusively deemed Tenant’s records approval of the statement in question and books used by Landlord in determining the amount of Direct Expenses shown thereon. In connection with any inspection and/or audit conducted by Tenant is obligated pursuant to pay this Section 4.6, Tenant agrees to Landlord for the sole purpose keep, and to cause all of verifying the accuracy of same (the “Audit”). Any Audit shall cover only one (1) calendar year during the Term of the Lease. Tenant shall provide Landlord at least thirty (30) days prior written notice requesting the Audit, provided, however, that Tenant’s right, if any, employees and consultants and the Accountant to exercise its Audit Right for any subject year shall expire sixty (60) days after the delivery to Tenant of the Direct Expense Statement for the calendar year, including the last year of the Lease Term, which Tenant desires to audit and, unless such right is exercised prior to such time, Tenant shall have waived its right to request such an Audit. Landlord shall make said books and records relevant to such Audit available to Tenant during Landlord’s customary business hours at the office of the property manager of the Project or at such other location designated by Landlord in writing.
(ii) Tenant shall pay all reasonable and necessary third party out-of-pocket costs for the Audit, including, without limitationkeep, all of Landlord’s costs books and expensesrecords and the audit, including reasonable attorney and accountant fees.
all information pertaining thereto and the results thereof, strictly confidential (iii) The Audit shall only be conducted by a reputable accounting firm (“Accounting Firm”) approved except to the extent disclosure is required in writing by Landlord. As a condition precedent to any such Auditaccordance with applicable law), and in connection therewith, Tenant shall deliver to Landlord a copy of Tenant’s written agreement with cause such Accounting Firmemployees, which agreement shall include provisions which state that: (A) Landlord is an intended third-party beneficiary of such agreement, (B) such Accounting Firm is not being engaged as a contingency or other incentive based auditor; (C) such Accounting Firm will not in any manner solicit or agree to represent any other tenant of the Project with respect to an audit or other review of Landlord’s accounting records at the Project, and (D) such Accounting Firm shall maintain in strict confidence any and all information obtained in connection with the Audit and shall not disclose such information to any person or entity other than to the management personnel of Tenant. The Accounting Firm, Landlord and Tenant shall enter into a confidentiality agreement in form and substance acceptable to Landlord whereby the Accounting Firm and Tenant shall covenant, among other things, that the Accounting Firm consultants and the Tenant shall keep the books and records of Accountant to execute such reasonable confidentiality agreements as Landlord in strict confidencemay require prior to conducting any such inspections and/or audits.
(iv) In the event that the amount of Direct Expenses paid by Tenant to Landlord exceed the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, and after such Audit is confirmed and accepted by Landlord, in Landlord’s reasonable discretion, such difference shall be applied to the next succeeding payment of Direct Expenses due by Tenant to Landlord. In the event that the amount of Direct Expenses paid by Tenant to Landlord is less than the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, Tenant shall pay such difference to Landlord within ten (10) days of such determination.
(v) Nothing contained herein shall be construed as providing Tenant with any right or option to examine any other books and records of Landlord or any of Landlord’s affiliated entities. Notwithstanding anything to the contrary contained herein, the Audit Right granted herein is personal to the originally named Tenant, shall be exercisable only by such originally named Tenant and may not be assigned or exercised by any assignee, sublessee or transferee of Tenant’s interest in this Lease or any successor in interest to Tenant.
Appears in 1 contract
Samples: Lease (Conatus Pharmaceuticals Inc.)
Audit Rights. (i) Provided that no Event If Tenant disputes the amount of Default has occurredthe Operating Expenses, Tax Expenses and Utilities Costs set forth in the Statement for the particular Expense Year delivered by Landlord to Tenant pursuant to Section 4.3.2 above, Tenant shall have the right right, at Tenant’s cost, upon thirty (“Audit Right”30) todays’ prior written notice to Landlord, one time per calendar year during the Lease Termto have Tenant’s authorized employees inspect, audit at Landlord’s offices during normal business hours, Landlord’s books, records and books used supporting documents concerning the Operating Expenses, Tax Expenses and Utilities Costs set forth in such Statement; provided, however, Tenant shall have no right to conduct such inspection, have an audit performed by Landlord in determining the Accountant (as defined and described hereinbelow), or object to or otherwise dispute the amount of Direct the Operating Expenses, Tax Expenses and Utilities Costs set forth in any such Statement unless Tenant is obligated to pay to notifies Landlord for of such objection and dispute, completes such inspection, and has the sole purpose Accountant commence and complete such audit within the one hundred eighty (180) days immediately following Landlord’s delivery of verifying the accuracy of same particular Statement in question (the “AuditReview Period”); provided, further, that notwithstanding any such timely objection, dispute, inspection, and/or audit, and as a condition precedent to Tenant’s exercise of its right of objection, dispute, inspection and/or audit as set forth in this Section 4.6, Tenant shall not be permitted to withhold payment of, and Tenant shall timely pay to Landlord, the full amounts as required by the provisions of this Article 4 in accordance with such Statement. Any Audit However, such payment may be made under protest pending the outcome of any audit which may be performed by the Accountant as described below. In connection with any such inspection by Tenant, Landlord and Tenant shall cover only one (1) calendar year during the Term reasonably cooperate with each other so that such inspection can be performed pursuant to a mutually acceptable schedule, in an expeditious manner and without undue interference with Landlord’s operation and management of the LeaseProject. If after such inspection and/or request for documentation, Tenant still disputes the amount of the Operating Expenses, Tax Expenses and Utilities Costs set forth in the Statement, Tenant shall provide have the right, within the Review Period, to cause a nationally recognized independent certified public accountant (which is not paid on a commission or contingency basis) mutually approved by Landlord at least and Tenant, which approval shall not be unreasonably withheld or delayed (the “Accountant”) to complete an audit of Landlord’s books and records to determine the proper amount of the Operating Expenses, Tax Expenses and Utilities Costs incurred and amounts payable by Tenant for the Expense Year which is the subject of such Statement. Such audit by the Accountant shall be final and binding upon Landlord and Tenant. If Landlord and Tenant cannot mutually agree as to the identity of the Accountant within thirty (30) days prior written notice requesting after Tenant notifies Landlord that Tenant desires an audit to be performed, then the AuditAccountant shall be one of the “Big 4” accounting firms (which is not paid on a commission or contingency basis), providedas selected by Tenant. If such audit reveals that Landlord has over-charged Tenant, however, that Tenant’s right, if any, to exercise its Audit Right for any subject year shall expire sixty then within thirty (6030) days after the delivery results of such audit are made available to Landlord, Landlord shall reimburse to Tenant the amount of such over-charge, together with interest on the amount of the Direct Expense Statement for over-charge at the calendar yearInterest Rate. If the audit reveals that the Tenant was under-charged, including then within thirty (30) days after the last year results of the Lease Term, which Tenant desires such audit are made available to audit and, unless such right is exercised prior to such timeTenant, Tenant shall have waived its right reimburse to request Landlord the amount of such an Auditunder-charge. Tenant agrees to pay the cost of such audit unless it is subsequently determined that Landlord’s original Statement which was the subject of such audit overstated Operating Expenses, Tax Expenses and Utilities Costs by five percent (5%) or more of the actual Operating Expenses, Tax Expenses and Utilities Costs verified by such audit, in which case Landlord shall make said books and records relevant to reimburse Tenant for the reasonable cost of such Audit available to Tenant during Landlord’s customary business hours at the office audit (but not in excess of the property manager amount of the Project or at Operating Expenses, Tax Expenses and Utilities Costs so overstated). The payment by Tenant of any amounts pursuant to this Article 4 shall not preclude Tenant from questioning, during the Review Period, the correctness of the particular Statement in question provided by Landlord, but the failure of Tenant to object thereto, conduct and complete its inspection and have the Accountant conduct the audit as described above prior to the expiration of the Review Period for such other location designated Statement shall be conclusively deemed Tenant’s approval of the Statement in question and the amount of Operating Expenses, Tax Expenses and Utilities Costs shown thereon. In connection with any inspection and/or audit conducted by Landlord in writing.
(ii) Tenant shall pay pursuant to this Section 4.6, Tenant agrees to keep, and to cause all reasonable of Tenant’s employees and necessary third party out-of-pocket costs for consultants and the Audit, including, without limitationAccountant to keep, all of Landlord’s costs books and expensesrecords and the audit, including reasonable attorney and accountant fees.
(iii) The Audit shall only be conducted by a reputable accounting firm (“Accounting Firm”) approved all information pertaining thereto and the results thereof, strictly confidential, and in writing by Landlord. As a condition precedent to any such Auditconnection therewith, Tenant shall deliver to Landlord a copy of Tenant’s written agreement with cause such Accounting Firmemployees, which agreement shall include provisions which state that: (A) Landlord is an intended third-party beneficiary of such agreement, (B) such Accounting Firm is not being engaged as a contingency or other incentive based auditor; (C) such Accounting Firm will not in any manner solicit or agree to represent any other tenant of the Project with respect to an audit or other review of Landlord’s accounting records at the Project, and (D) such Accounting Firm shall maintain in strict confidence any and all information obtained in connection with the Audit and shall not disclose such information to any person or entity other than to the management personnel of Tenant. The Accounting Firm, Landlord and Tenant shall enter into a confidentiality agreement in form and substance acceptable to Landlord whereby the Accounting Firm and Tenant shall covenant, among other things, that the Accounting Firm consultants and the Tenant shall keep the books and records of Accountant to execute such reasonable confidentiality agreements as Landlord in strict confidencemay require prior to conducting any such inspections and/or audits.
(iv) In the event that the amount of Direct Expenses paid by Tenant to Landlord exceed the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, and after such Audit is confirmed and accepted by Landlord, in Landlord’s reasonable discretion, such difference shall be applied to the next succeeding payment of Direct Expenses due by Tenant to Landlord. In the event that the amount of Direct Expenses paid by Tenant to Landlord is less than the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, Tenant shall pay such difference to Landlord within ten (10) days of such determination.
(v) Nothing contained herein shall be construed as providing Tenant with any right or option to examine any other books and records of Landlord or any of Landlord’s affiliated entities. Notwithstanding anything to the contrary contained herein, the Audit Right granted herein is personal to the originally named Tenant, shall be exercisable only by such originally named Tenant and may not be assigned or exercised by any assignee, sublessee or transferee of Tenant’s interest in this Lease or any successor in interest to Tenant.
Appears in 1 contract
Samples: Lease (Aqua Metals, Inc.)
Audit Rights. (ia) Provided that no Event At any time during the period in which such books and records must be maintained, upon the written request of Default has occurredSeller, Tenant and upon reasonable advance written notice, Buyer shall, and shall have the right (“Audit Right”) cause its Affiliates and sublicensees to, one time up to [***] per calendar year Calendar Year, provide the Accounting Firm with access during normal business hours to such of the records of Buyer and its Affiliates and sublicensees as may be necessary to verify whether any of the Milestones have been achieved, including confirming the accuracy of any Milestone Payments or Royalty Payment due hereunder and the accuracy of the statements set forth in the Royalty Reports and the figures underlying the calculations set forth therein. The fees charged by the Accounting Firm shall be borne by Seller, unless such audit reveals an underpayment by Buyer of more than the [***] for the audited period, in which case Buyer shall reimburse Seller for the reasonable costs of such audit. The Accounting Firm shall disclose to Seller and Buyer any matters directly related to its findings and shall disclose whether it has determined that any statements set forth in the Royalty Reports are inaccurate. Before beginning its audit, the Accounting Firm shall execute an undertaking acceptable to Buyer by which the Accounting Firm agrees to keep confidential all information reviewed during the Lease Termaudit.
(b) The initiation of a review by Seller as contemplated by this Section 3.8 shall not relieve Buyer of its obligation to pay any Milestone Payment relating to any Milestone for which notice of achievement has been given pursuant to Section 3.2(a) or Section 3.2(b), audit Landlord’s records and books used by Landlord in determining the amount of Direct Expenses Tenant is as applicable, it being understood that Buyer shall also be obligated to pay to Landlord for the sole purpose of verifying the accuracy of same (the “Audit”). Any Audit shall cover only one (1) calendar year during the Term full amount of the Lease. Tenant shall provide Landlord at least thirty (30) days prior written notice requesting the Audit, provided, however, that Tenant’s rightMilestone Payment Shortfall, if any, to exercise its Audit Right for any subject year shall expire sixty (60) days after the delivery to Tenant of the Direct Expense Statement for the calendar year, including the last year of the Lease Term, which Tenant desires to audit and, unless such right is exercised prior to such time, Tenant shall have waived its right to request such an Audit. Landlord shall make said books and records relevant to such Audit available to Tenant during Landlord’s customary business hours at the office of the property manager of the Project or at such other location designated by Landlord in writingaccordance with Section 3.8(c).
(iic) Tenant If the Accounting Firm concludes that any Milestone Payment should have been paid but was not paid when due, or was not paid in full, then, within [***] of the date the Accounting Firm delivers its written report to Seller and Buyer, Buyer shall pay all reasonable and necessary third party out-of-pocket costs for the Auditamount of such Milestone Payment (to the extent not paid on a subsequent date), includingplus interest on such Milestone Payment at a rate per annum equal to the prime rate of interest reported from time to time in The Wall Street Journal, without limitation, all plus [***] with the total interest amount calculated on the basis of Landlord’s costs and expensesthe actual number of days elapsed over [***] from the date such Milestone Payment should have occurred (if Buyer had given notice of achievement of such Milestone pursuant to the terms of this Agreement) to the date of actual payment (such amount, including reasonable attorney and accountant feesinterest, being the “Milestone Payment Shortfall”).
(iiid) The Audit shall only be conducted by a reputable accounting firm (“Accounting Firm”) approved in writing by Landlord. As a condition precedent to any such Audit, Tenant shall deliver to Landlord a copy decision of Tenant’s written agreement with such Accounting Firm, which agreement shall include provisions which state that: (A) Landlord is an intended third-party beneficiary of such agreement, (B) such Accounting Firm is not being engaged as a contingency or other incentive based auditor; (C) such Accounting Firm will not in any manner solicit or agree to represent any other tenant of the Project with respect to an audit or other review of Landlord’s accounting records at the Project, and (D) such Accounting Firm shall maintain be final and binding (other than in strict confidence the case of manifest error or fraud), and any order or judgment may be entered upon such determination in any court having jurisdiction over the Party against which such determination is to be enforced.
(e) The covenants and all information obtained obligations set forth in connection with this Section 3.8 shall survive until [***] after Buyer delivers the Audit last Milestone Update Report, or Royalty Report, as applicable, required to be delivered pursuant to this Agreement, upon which date the calculations set forth in the Royalty Report shall be conclusive and binding on Seller unless a Milestone Payment Shortfall has been determined to exist pursuant to this Section 3.8.
(f) Buyer shall not, and shall cause its Affiliates and sublicensees not disclose such information to, enter into any license or distribution agreement or other similar Contract with any Third Party with respect to any person Product unless such agreement contains provisions that would allow Buyer or entity other than its Affiliates and sublicensees to the management personnel of Tenant. The Accounting Firm, Landlord obtain and Tenant shall enter into a confidentiality agreement in form and substance acceptable provide to Landlord whereby the Accounting Firm such access to the records of the other Party to such license or distribution agreement as may be necessary to perform its duties pursuant to this Section 3.8. If Seller requests an audit under this Section 3.8, then Buyer shall, and Tenant shall covenantcause its Affiliates and sublicensees to, among other things, that obtain and provide to the Accounting Firm and such access to the Tenant shall keep the books and records of Landlord in strict confidence.
(iv) In the event that the amount of Direct Expenses paid by Tenant other Party to Landlord exceed the actual amount of Direct Expenses owed by Tenant to Landlord such license or distribution agreement as disclosed may be requested by the AuditAccounting Firm to perform its duties pursuant to this Section 3.8, and after such Audit is confirmed and accepted including by Landlord, exercising any contractual rights of the type described in Landlord’s reasonable discretion, such difference shall be applied to the next succeeding payment of Direct Expenses due by Tenant to Landlord. In the event that the amount of Direct Expenses paid by Tenant to Landlord is less than the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, Tenant shall pay such difference to Landlord within ten (10) days of such determinationimmediately preceding sentence.
(v) Nothing contained herein shall be construed as providing Tenant with any right or option to examine any other books and records of Landlord or any of Landlord’s affiliated entities. Notwithstanding anything to the contrary contained herein, the Audit Right granted herein is personal to the originally named Tenant, shall be exercisable only by such originally named Tenant and may not be assigned or exercised by any assignee, sublessee or transferee of Tenant’s interest in this Lease or any successor in interest to Tenant.
Appears in 1 contract
Samples: Asset Purchase Agreement (Eliem Therapeutics, Inc.)
Audit Rights. (i) Provided that no Event For a period of Default has occurred, Tenant shall have the right (“Audit Right”) to, one time per calendar year during the Lease Term, audit Landlord’s records and books used by Landlord in determining the amount of Direct Expenses Tenant is obligated to pay to Landlord for the sole purpose of verifying the accuracy of same (the “Audit”). Any Audit shall cover only one (1) calendar year during the Term of the Lease. Tenant shall provide Landlord at least thirty (30) days prior written notice requesting the Audit, provided, however, that Tenant’s right, if any, to exercise its Audit Right for any subject year shall expire sixty (60) days after the delivery to Tenant of the Direct Expense Statement for the calendar year, including the last year of the Lease Term, which Tenant desires to audit and, unless such right is exercised prior to such timeReconciliation Statement, Tenant shall have waived its the right to request audit Landlord’s books with respect to Operating Expenses and Direct Taxes incurred during the Base Year and the applicable calendar year, upon ten (10) business days’ prior written notice to Landlord (which notice may be given at any time within said 60 day period). Such audit shall be made at Landlord’s offices during normal business hours. During such an Audit. inspection, Landlord shall will make said such books and records relevant to such Audit and any reasonably appropriate supporting documentation available to Tenant during Landlord’s customary business hours at the office of the property manager of the Project or at such other location designated by Landlord in writing.
(ii) Tenant shall pay all reasonable and necessary third party out-of-pocket costs for the Audit, including, without limitation, all of Landlord’s costs and expenses, including reasonable attorney and accountant fees.
(iii) The Audit shall only be conducted by a reputable accounting firm (“Accounting Firm”) approved in writing by Landlord. As a condition precedent to any such Audit, Tenant shall deliver to Landlord a copy of Tenant’s written agreement with such Accounting Firm, which agreement shall include provisions which state that: (A) Landlord is an intended third-party beneficiary of such agreement, (B) such Accounting Firm is not being engaged as a contingency or other incentive based auditor; (C) such Accounting Firm will not in any manner solicit or agree to represent any other tenant of the Project with respect to an audit or other review of Landlord’s accounting records at the Project, and (D) such Accounting Firm shall maintain in strict confidence any and all information obtained in connection with the Audit and review. Tenant shall not disclose such information audit results to any other person (Tenants’ employees and agents excluded). In no event shall any such audit or inspection be performed by a person or entity other than to the management personnel being compensated on a contingency fee basis or based upon a share of any refund obtained by Tenant. The Accounting Firm, Landlord and Tenant shall enter into a confidentiality agreement in form and substance acceptable agrees to Landlord whereby the Accounting Firm and Tenant shall covenant, among other things, that the Accounting Firm and the Tenant shall keep the books and records of Landlord in strict confidence.
(iv) In the event that the amount of Direct Expenses paid by Tenant deliver to Landlord exceed the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, and after such Audit is confirmed and accepted by Landlord, in Landlord’s reasonable discretionwithin thirty (30) days after conclusion of each such audit and inspection, such difference shall be applied to a true and complete copy of the next succeeding payment of Direct Expenses due by Tenant to Landlordresults thereof. In the event that the amount audit and inspection reveals an error in the calculation of Operating Expenses or Direct Expenses paid Taxes, and Landlord does not dispute the results of such audit and inspection by giving Tenant to Landlord is less than the actual amount written notice of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, Tenant shall pay such difference to Landlord Landlord’s dispute within ten (10) days after Landlord’s receipt of the results thereof, then adjustment will be made by appropriate payment or refund within fifteen (15) days after such audit and inspection results are delivered to Landlord. If Landlord timely disputes the results of any audit and inspection, Landlord and Tenant shall mutually designate a disinterested certified public accountant (the “CPA”) located in San Francisco, California, to conduct an audit of the Operating Expenses and Direct Taxes for the Base year and the applicable calendar year, and the results of such determination.
(v) Nothing contained herein audit shall be construed as providing binding upon Landlord and Tenant with and any right underpayment or option to examine any other books and records of Landlord or any of Landlord’s affiliated entities. Notwithstanding anything to the contrary contained herein, the Audit Right granted herein is personal to the originally named Tenant, overpayment shall be exercisable only made within fifteen (15) days after both parties have received a copy of the results of such audit. The cost of the CPA shall be paid one-half by such originally named Tenant Landlord and may not be assigned or exercised one-half by any assignee, sublessee or transferee of Tenant’s interest in this Lease or any successor in interest to Tenant.
Appears in 1 contract
Samples: Lease (Trulia, Inc.)
Audit Rights. (i) Provided that no Event of Default has occurred, Tenant Astellas shall have the right (“Audit Right”to inspect and audit CPC’s books and records, at the location(s) towhere the books and records are maintained by CPC, one time per calendar year during relating to the Lease Term, audit Landlord’s records and books used by Landlord in determining the amount Other Programs for purposes of Direct Expenses Tenant is obligated to pay to Landlord for the sole purpose of verifying ascertaining the accuracy of same Astellas’ payments to CPC under this Article 4, provided that any (the “Audit”). Any Audit i) such audit shall cover only take place by (and no later than) one (1) calendar year after the expiration or termination of this Agreement, (ii) once such an inspection and audit of the books and records of CPC for a given time period has been completed and any discrepancies or potential discrepancies identified in such audit with respect to payments, reimbursements or sharing under this Agreement have either been resolved or determined in reasonable detail in connection with such audit, the books and records for such time period will not be subject to re-audit under this Section 4.5 (for the avoidance of doubt, the books and records for a given time period may be reviewed more than once during an audit to verify the accuracy of the relevant payments), and (iii) such inspection and audits shall be performed on behalf of Astellas by an independent Third Party auditor selected by Astellas and reasonably acceptable to CPC. Such audits shall be conducted during the Term normal business hours of the Lease. Tenant shall provide Landlord CPC upon at least thirty (30) days advance notice to CPC and shall be made no more than once each four consecutive calendar quarters. The auditor selected by Astellas shall be required to execute a reasonable confidentiality agreement prior written notice requesting to commencing any such audit and shall only disclose to Astellas (a) whether or not the Auditrelevant payments were accurate, provided, however, that Tenant’s right, if any, to exercise its Audit Right for any subject year shall expire sixty (60) days after or the delivery to Tenant reasons why the accuracy of the Direct Expense Statement relevant payments could not be determined, and any recommended actions needed to ensure the accuracy of relevant future payments, and (b) if the payments were not accurate, the amount of any under- or over-payment, as well as detail concerning the nature, scope and circumstances of the discrepancy so that such discrepancy can be equitably resolved. With respect to audits of financial and accounting records, the results of such audits shall be delivered in writing to Astellas and CPC. Astellas shall bear the costs and expenses of audits conducted under this Section 4.5, unless a variation or error producing an overpayment exceeding five percent (5%) of the amount paid for the calendar yearperiod covered by the audit, including the last year of the Lease Term, which Tenant desires to audit and, unless such right is exercised prior to such time, Tenant shall have waived its right to request such an Audit. Landlord shall make said books and records relevant to such Audit available to Tenant during Landlord’s customary business hours at the office of the property manager of the Project or at such other location designated by Landlord in writing.
(ii) Tenant shall pay whereupon all reasonable and necessary third party out-of-pocket costs for the Audit, including, without limitation, all of Landlord’s costs and expenses, including reasonable attorney and accountant fees.
(iii) The Audit paid to Third Parties relating to such audit shall only be conducted by a reputable accounting firm (“Accounting Firm”) approved in writing by Landlord. As a condition precedent to any such Audit, Tenant shall deliver to Landlord a copy of Tenant’s written agreement with such Accounting Firm, which agreement shall include provisions which state that: (A) Landlord is an intended third-party beneficiary of such agreement, (B) such Accounting Firm is not being engaged as a contingency or other incentive based auditor; (C) such Accounting Firm will not in any manner solicit or agree to represent any other tenant of the Project with respect to an audit or other review of Landlord’s accounting records at the Project, and (D) such Accounting Firm shall maintain in strict confidence any and all information obtained in connection with the Audit and shall not disclose such information to any person or entity other than to the management personnel of Tenant. The Accounting Firm, Landlord and Tenant shall enter into a confidentiality agreement in form and substance acceptable to Landlord whereby the Accounting Firm and Tenant shall covenant, among other things, that the Accounting Firm and the Tenant shall keep the books and records of Landlord in strict confidence.
(iv) In the event that the amount of Direct Expenses paid by Tenant to Landlord exceed the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, and after such Audit is confirmed and accepted by Landlord, in Landlord’s reasonable discretion, such difference shall be applied to the next succeeding payment of Direct Expenses due by Tenant to Landlord. In the event that the amount of Direct Expenses paid by Tenant to Landlord is less than the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, Tenant shall pay such difference to Landlord within ten (10) days of such determinationCPC.
(v) Nothing contained herein shall be construed as providing Tenant with any right or option to examine any other books and records of Landlord or any of Landlord’s affiliated entities. Notwithstanding anything to the contrary contained herein, the Audit Right granted herein is personal to the originally named Tenant, shall be exercisable only by such originally named Tenant and may not be assigned or exercised by any assignee, sublessee or transferee of Tenant’s interest in this Lease or any successor in interest to Tenant.
Appears in 1 contract
Samples: Other Products Collaboration Agreement (Maxygen Inc)
Audit Rights. 10.1 At any time during normal business hours on a Business Day, and on not less than 90 days' prior written notice, and not more than once a year the Audit Party shall be entitled, and the Vendor shall permit or procure the relevant permission from any Authorised Vendor other than the Vendor or a Subscriber, (i) Provided that no Event all of Default has occurredthe foregoing being an "Audited Party"), Tenant shall to have access to the right (“premises of the relevant Audited Party at which the Audited Party receives or processes Pricing Data, and/or the premises from which the Vendor generates Reports sent to ICE Data, and the Audit Right”) toParty shall, one time per calendar year during on the Lease Termsame basis, audit Landlord’s be entitled to have access to and inspect the accounts and records of the relevant Audited Party and books all instruments and apparatus used by Landlord it in determining connection with or relating to Pricing Data and this Agreement.
10.2 Such accounts and records shall include (as applicable), without limitation: lists of Authorised Vendors and Subscribers; billing invoices covering all services provided by the amount Vendor to Authorised Vendors and Subscribers; cash receipts; registers and accounting ledgers; Vendor data distribution agreements under the terms of Direct Expenses Tenant which Pricing Data is obligated distributed; and, any other documentation or computerised or other records as may be requested by ICE Data. The Vendor, an Authorised Vendor other than the Vendor, or Subscriber (as applicable) may redact information which in the reasonable view of that party is commercially sensitive information (which does not impact on the ability of ICE Data to pay perform an Audit) from such accounts and records which are accessed and/or inspected by ICE Data in accordance with its rights under the terms of Clause 10.1. All information made available to Landlord for the sole purpose Audit Party shall remain confidential between the Audit Party, Authorised Vendor, Subscriber and ICE Data, and any agent acting on behalf of verifying these parties, where applicable.
10.3 In the accuracy of same event that ICE Data has a reasonable belief that any Authorised Vendor or any Subscriber (as applicable) is not in compliance with the “Audit”). Any Audit Pricing Data Policy or this Agreement, the Authorised Vendor shall cover only one (1) calendar year during the Term of the Lease. Tenant carry out its obligations and ICE Data shall provide Landlord at least thirty (30) days prior written notice requesting the Audit, provided, however, that Tenant’s right, if any, be entitled to exercise its Audit Right for any subject year shall expire sixty (60) days after the delivery to Tenant of the Direct Expense Statement for the calendar year, including the last year of the Lease Term, which Tenant desires to audit and, unless such right is exercised prior to such time, Tenant shall have waived its right to request such an Audit. Landlord shall make said books rights under Clause 10.1 above immediately and records relevant to such Audit available to Tenant during Landlord’s customary business hours at the office of the property manager of the Project or at such other location designated by Landlord in writingwithout notice.
(ii) Tenant shall pay all reasonable and necessary third party out-of-pocket costs for the Audit, including, without limitation, all of Landlord’s costs and expenses, including reasonable attorney and accountant fees.
(iii) The Audit shall only be conducted by a reputable accounting firm (“Accounting Firm”) approved in writing by Landlord. As a condition precedent to any such Audit, Tenant shall deliver to Landlord a copy of Tenant’s written agreement with such Accounting Firm, which agreement shall include provisions which state that: (A) Landlord is an intended third-party beneficiary of such agreement, (B) such Accounting Firm is not being engaged as a contingency or other incentive based auditor; (C) such Accounting Firm will not in any manner solicit or agree to represent any other tenant of the Project with respect to an audit or other review of Landlord’s accounting records at the Project, and (D) such Accounting Firm shall maintain in strict confidence any and all information obtained in connection with the Audit and shall not disclose such information to any person or entity other than to the management personnel of Tenant. The Accounting Firm, Landlord and Tenant shall enter into a confidentiality agreement in form and substance acceptable to Landlord whereby the Accounting Firm and Tenant shall covenant, among other things, that the Accounting Firm and the Tenant shall keep the books and records of Landlord in strict confidence.
(iv) 10.4 In the event that the amount of Direct Expenses Audit reveals that the Charges paid by Tenant the Vendor to Landlord exceed ICE Data in any Charge Period were less than those properly payable the actual following provisions shall apply:-
10.4.1 ICE Data shall invoice the Vendor in respect of any outstanding Charges and any interest which may be payable thereon and the amount of Direct Expenses owed by Tenant to Landlord as disclosed specified in such invoice shall be paid by the Audit, and after such Audit is confirmed and accepted by Landlord, Vendor in Landlord’s reasonable discretion, such difference shall be applied to the next succeeding payment of Direct Expenses due by Tenant to Landlord. accordance with Clause 6.
10.4.2 In the event that the amount of Direct Expenses Charges paid by Tenant the Vendor to Landlord is ICE Data in any Charge Period were less than the actual amount 90% of Direct Expenses owed by Tenant to Landlord as disclosed those properly payable by the Audit, Tenant shall pay such difference to Landlord within ten (10) days Vendor as a result of such determination.
(v) Nothing contained herein shall be construed as providing Tenant with any right or option to examine any other books and records of Landlord or any of Landlord’s affiliated entities. Notwithstanding anything to inaccurate reporting by the contrary contained hereinVendor, the Audit Right granted herein is personal Vendor shall reimburse to ICE Data on demand all costs and expenses whatsoever incurred in carrying out the originally named Tenant, shall be exercisable only by such originally named Tenant and may not be assigned or exercised by any assignee, sublessee or transferee of Tenant’s interest in this Lease or any successor in interest to Tenantrelevant Audit.
Appears in 1 contract
Samples: Vendor Agreement
Audit Rights. (i) Provided that no Event If Tenant timely exercised its right to contest an annual statement under the second grammatical paragraph of Default has occurredParagraph 7.f. above, Tenant shall have the right to cause a nationally recognized independent certified public accountant designated by Tenant, to be paid on an hourly and not a contingent fee basis, to audit the items questioned by Tenant in its original notice contesting the annual statement, provided that Tenant (“Audit Right”i) to, one time per calendar year during the Lease Term, audit Landlord’s records and books used by notifies Landlord in determining the amount writing of Direct Expenses Tenant is obligated Tenant's intention to pay to Landlord for the sole purpose of verifying the accuracy of same (the “Audit”). Any Audit shall cover only one (1) calendar year during the Term of the Lease. Tenant shall provide Landlord at least exercise such audit right within thirty (30) days prior written notice requesting following the Auditexpiration of the time period provided for in the second grammatical paragraph of Paragraph 7.f. above for Tenant to contest the annual statement, provided, however, that Tenant’s right, if any, to exercise its Audit Right for any subject year shall expire sixty (60ii) actually begins such audit within thirty (30) days after the delivery notice from Tenant to Landlord advising Landlord that Tenant will require an audit (provided that such 30-day period within which the audit must be commenced shall be extended by the length of any delay in the commencement of the Direct Expense Statement for the calendar year, including the last year of the Lease Term, which Tenant desires audit that is caused by Landlord) and (iii) diligently pursues such audit to audit and, unless such right is exercised prior to such time, Tenant shall have waived its right to request such an Auditcompletion as quickly as reasonably possible. Landlord shall agrees to make said available to Tenant's auditors, at Landlord's office in San Francisco and/or at Landlord's office in the Building (at Landlord's sole option), the books and records relevant to the audit for review and copying, but such Audit available books and records may not be removed from Landlord's offices. Tenant shall bear all costs of such audit, including Landlord's actual copying costs and personnel costs, if any incurred in connection with such audit (provided that, prior to incurring any personnel costs in connection with any such audit, Landlord shall advise Tenant during of Landlord’s customary business hours 's anticipated personnel costs so that Tenant may, at Tenant's option, modify Tenant's activities with regard to such audit in order to preclude the office need for Landlord to incur such personnel costs), except that, if the audit (as conducted and certified by the auditor) shows an aggregate overstatement of Operating Expenses of five (5%) or more, and Landlord's auditors concur in such findings (or, in the absence of such concurrence, such overstatement is confirmed by a court of competent jurisdiction or such other dispute resolution mechanism as to which the parties mutually agree in writing), then Landlord shall bear all costs of the property manager audit. If the agreed or confirmed audit shows an underpayment of the Project or at such other location designated Operating Expenses by Landlord in writing.
(ii) Tenant, Tenant shall pay all reasonable and necessary third party out-of-pocket costs to Landlord, within thirty (30) days after the audit is agreed to or confirmed, the amount owed to Landlord, and, if the agreed or confirmed audit shows an overpayment of Operating Expenses by Tenant, Landlord shall reimburse Tenant for such overpayment within thirty (30) days after the Auditaudit is agreed to or confirmed. Notwithstanding anything to the contrary set forth above, Tenant's audit rights under this Paragraph 7.g. shall be conditioned upon (i) Tenant having paid the total amounts billed by Landlord under this Paragraph 7 within the time stipulated in Paragraph 7.e. for payment (including, without limitation, all of Landlord’s costs the contested amounts) and expenses(ii) Tenant executing, including reasonable attorney and accountant fees.
(iii) The Audit shall only be conducted by a reputable accounting firm (“Accounting Firm”) approved in writing by Landlord. As a condition precedent prior to any such Audit, Tenant shall deliver to Landlord a copy of Tenant’s written agreement with such Accounting Firm, which agreement shall include provisions which state that: (A) Landlord is an intended third-party beneficiary of such agreement, (B) such Accounting Firm is not being engaged as a contingency or other incentive based auditor; (C) such Accounting Firm will not in any manner solicit or agree to represent any other tenant the commencement of the Project with respect to an audit or other review of Landlord’s accounting records at the Projectaudit, and (D) such Accounting Firm shall maintain in strict confidence any and all information obtained in connection with the Audit and shall not disclose such information to any person or entity other than to the management personnel of Tenant. The Accounting Firm, Landlord and Tenant shall enter into a confidentiality agreement in form and substance acceptable reasonably satisfactory to Landlord whereby the Accounting Firm and in which Tenant shall covenantagree to keep confidential, among and not disclose to any other thingsparty, that the Accounting Firm and the Tenant shall keep the books and records results of any such audit or any action taken by Landlord in strict confidenceresponse thereto.
(iv) In the event that the amount of Direct Expenses paid by Tenant to Landlord exceed the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, and after such Audit is confirmed and accepted by Landlord, in Landlord’s reasonable discretion, such difference shall be applied to the next succeeding payment of Direct Expenses due by Tenant to Landlord. In the event that the amount of Direct Expenses paid by Tenant to Landlord is less than the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, Tenant shall pay such difference to Landlord within ten (10) days of such determination.
(v) Nothing contained herein shall be construed as providing Tenant with any right or option to examine any other books and records of Landlord or any of Landlord’s affiliated entities. Notwithstanding anything to the contrary contained herein, the Audit Right granted herein is personal to the originally named Tenant, shall be exercisable only by such originally named Tenant and may not be assigned or exercised by any assignee, sublessee or transferee of Tenant’s interest in this Lease or any successor in interest to Tenant.
Appears in 1 contract
Samples: Office Lease (Ask Jeeves Inc)
Audit Rights. Section 9.2(d) of the Lease is deleted in its entirety and the following substituted therefor: “Within thirteen (i13) Provided months after receiving Landlord’s annual statement of Operating Expenses (the “Review Notice Period”), Tenant may give Landlord written notice (“Review Notice”) that no Event Tenant intends to review Landlord’s records of Default has occurredthe Operating Expenses for the calendar year to which the statement applies, and within six (6) months after sending the Review Notice to Landlord (such period is referred to as the “Request for Information Period”), Tenant shall send Landlord a written request identifying the information that Tenant desires to review (the “Request for Information”), provided that Tenant may update the Request for Information so long as any such update does not delay the audit process. Within a reasonable time after Landlord’s receipt of a timely Request for Information and executed Audit Confidentiality Agreement (referenced below), Landlord shall forward to Tenant, or make available for inspection in the Boston metropolitan area such records (or copies thereof) for the applicable calendar year that are reasonably necessary for Tenant to conduct its review of the information appropriately identified in the Request for Information, as may be updated. Within six (6) months after any particular records are made available to Tenant (such period is referred to as the “Objection Period”), Tenant shall have the right to give Landlord with notice (an “Audit RightObjection Notice”) tostating in reasonable detail any objection to Landlord’s statement of Operating Expenses for that year which relates to the records that have been made available to Tenant. If Tenant provides Landlord with a timely Objection Notice, one time per Landlord and Tenant shall work together in good faith to resolve any issues raised in Tenant’s Objection Notice. If Landlord and Tenant determine that Operating Expenses for the calendar year during are less than reported. Landlord shall provide Tenant with a credit against the Lease Term, audit Landlord’s records and books used by Landlord next installment of Rent in determining the amount of Direct Expenses the overpayment by Tenant is obligated to pay to Landlord for the sole purpose or, upon request of verifying the accuracy of same (the “Audit”). Any Audit shall cover only one (1) calendar year during the Term of the Lease. Tenant, give Tenant shall provide Landlord at least a refund within thirty (30) days prior written notice requesting the Audit, provided, however, that Tenant’s rightof such determination. Likewise, if any, to exercise its Audit Right for any subject year shall expire sixty (60) days after the delivery to landlord and Tenant of the Direct Expense Statement determine that Operating Expenses for the calendar year, including the last year of the Lease Term, which Tenant desires to audit and, unless such right is exercised prior to such time, Tenant shall have waived its right to request such an Audit. Landlord shall make said books and records relevant to such Audit available to Tenant during Landlord’s customary business hours at the office of the property manager of the Project or at such other location designated by Landlord in writing.
(ii) Tenant shall pay all reasonable and necessary third party out-of-pocket costs for the Audit, including, without limitation, all of Landlord’s costs and expenses, including reasonable attorney and accountant fees.
(iii) The Audit shall only be conducted by a reputable accounting firm (“Accounting Firm”) approved in writing by Landlord. As a condition precedent to any such Audit, Tenant shall deliver to Landlord a copy of Tenant’s written agreement with such Accounting Firm, which agreement shall include provisions which state that: (A) Landlord is an intended third-party beneficiary of such agreement, (B) such Accounting Firm is not being engaged as a contingency or other incentive based auditor; (C) such Accounting Firm will not in any manner solicit or agree to represent any other tenant of the Project with respect to an audit or other review of Landlord’s accounting records at the Project, and (D) such Accounting Firm shall maintain in strict confidence any and all information obtained in connection with the Audit and shall not disclose such information to any person or entity other are greater than to the management personnel of Tenant. The Accounting Firm, Landlord and Tenant shall enter into a confidentiality agreement in form and substance acceptable to Landlord whereby the Accounting Firm and Tenant shall covenant, among other things, that the Accounting Firm and the Tenant shall keep the books and records of Landlord in strict confidence.
(iv) In the event that the amount of Direct Expenses paid by Tenant to Landlord exceed the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, and after such Audit is confirmed and accepted by Landlord, in Landlord’s reasonable discretion, such difference shall be applied to the next succeeding payment of Direct Expenses due by Tenant to Landlord. In the event that the amount of Direct Expenses paid by Tenant to Landlord is less than the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Auditreported, Tenant shall pay such difference to Landlord the amount of any underpayment within ten thirty (1030) days of such determination.
(v) Nothing contained herein . If Tenant fails to give Landlord an Objection Notice with respect to any records that have been made available to Tenant prior to expiration of the Objection Period applicable to the records which have been provided to Tenant, Tenant shall be construed deemed to have approved Landlord’s statement of Operating Expenses with respect to the matters reflected in such records and shall be barred from raising any claims regarding the Operating Expenses relating to such records for that year. If Tenant fails to provide Landlord with a Review Notice prior to expiration of the Review Notate Period or fails to provide Landlord with a Request for information prior to expiration of the Request for Information Period described above, Tenant shall be deemed to have approved landlord’s statement of Expenses and shall be barred from raising any claims regarding the Operating Expenses for that year Tenant shall be solely responsible for all Casts, expenses and tees incurred for the audit, and the fees charged cannot be based in whole or in part on a contingency basis. If it is determined that Tenant has overpaid Operating Expenses by more than five percent (5%), Landlord shall be responsible for the costs, expenses and fees incurred for the audit. The records and related information obtained by Tenant shall be treated as providing confidential, and applicable only to the Building, by Tenant and its auditors, consultants and other parties reviewing such records on behalf of Tenant {collectively, ‘Tenant’s Auditors’}, and prior to making any records available to Tenant or Tenant’s Auditors, Landlord may require Tenant and Tenants Auditors to each execute a reasonable confidentiality agreement (‘Audit Confidentiality Agreement’) in accordance with any right or option the foregoing. In no event shall Tenant be permitted to examine Landlords records or to dispute any other books statement of Operating Expenses unless Tenant has paid and records of Landlord or any of Landlord’s affiliated entities. Notwithstanding anything continues to the contrary contained herein, the Audit Right granted herein is personal to the originally named Tenant, shall be exercisable only by such originally named Tenant and may not be assigned or exercised by any assignee, sublessee or transferee of Tenant’s interest in this Lease or any successor in interest to Tenantpay all Rent when due.”
Appears in 1 contract
Samples: Fourth Lease Amendment and Landlord Consent to Sublease (Aspen Technology Inc /De/)
Audit Rights. (ia) Provided that no Event Fresh Cut may engage, at its own cost and expense, subject to this Section 3.7, an Independent Accounting Firm to conduct an audit of Default has occurredPurchaser (or, Tenant shall have the right (“Audit Right”if applicable, its Affiliates or sublicensees) to, one time per calendar year during the Lease Term, audit Landlord’s records and books used by Landlord in determining the amount of Direct Expenses Tenant is obligated to pay to Landlord for the sole purpose of verifying confirming the accuracy amount of same Royalties and the portion of Licensing Revenue due to Fresh Cut pursuant to the provisions of this Agreement.
(b) Not later than [*] days following Fresh Cut’s request of an audit pursuant to this Section 3.7, Purchaser shall afford, or cause its Affiliates or sublicensees to afford, the “Audit”). Any Audit shall cover only one (1) calendar year during Independent Accounting Firm access to and an opportunity to examine the Term of the Lease. Tenant shall provide Landlord at least thirty (30) days prior written notice requesting the Audit, provided, however, that Tenant’s right, if any, to exercise its Audit Right for any subject year shall expire sixty (60) days after the delivery to Tenant of the Direct Expense Statement for the calendar year, including the last year of the Lease Term, which Tenant desires to audit and, unless such right is exercised prior to such time, Tenant shall have waived its right to request such an Audit. Landlord shall make said pertinent books and records relevant of Purchaser or, if applicable, its Affiliates or sublicensees, as it reasonably requests, during regular business hours, subject to such Audit available Independent Accounting Firm executing and delivering to Tenant during Landlord’s customary business hours at the office of the property manager of the Project or at such other location designated by Landlord in writingPurchaser a reasonable confidentiality agreement.
(iic) Tenant shall Each of Fresh Cut and Purchaser will be entitled to receive (substantially simultaneously) a full written report of the Independent Accounting Firm with respect to its findings directly from the Independent Accounting Firm. Within [*] Business Days after completion of the Independent Accounting Firm’s audit, Purchaser will pay all reasonable to Fresh Cut any deficiency in the Royalty amount or portion of Licensing Revenue determined by the Independent Accounting Firm. If the report of the Independent Accounting Firm shows that Purchaser overpaid, then Purchaser will be entitled to off-set such overpayment against any Royalties or portion of Licensing Revenue then owed to Fresh Cut or against any amount subsequently owed to Fresh Cut. If the report of the Independent Accounting Firm shows a discrepancy between the amount of the Royalty or portion of Licensing Revenues to which Fresh Cut is entitled and necessary third party out-of-pocket costs for the AuditRoyalty amount or portion of Licensing Revenues reflected by Purchaser in the Royalty Statement in Fresh Cut’s favor, includingthen in addition to the payment of the shortfall in the Royalty amount or portion of Licensing Revenue, without limitationand if such discrepancy exceeds [*]% of the Royalty amount or portion of Licensing Revenues, all as applicable, payable with respect to the period covered by the audit, then the fees and expenses of Landlord’s costs and expenses, including reasonable attorney and accountant feesthe Independent Accounting Firm in performing such audit will be paid by Purchaser.
(iiid) The Audit shall only be conducted by a reputable accounting firm (“Accounting Firm”) approved in writing by Landlord. As a condition precedent to any such Audit, Tenant shall deliver to Landlord a copy Fresh Cut’s exercise of Tenant’s written agreement with such Accounting Firm, which agreement shall include provisions which state that: its audit rights under this Section 3.7 may not (A) Landlord is an intended third-party beneficiary be conducted for any Calendar Quarter more than [*] ([*]) years after the end of such agreementCalendar Quarter to which such books and records pertain, (B) be conducted more than once in any twelve (12) month period (unless a previous audit during such Accounting Firm is not being engaged as twelve (12) month period revealed a contingency material underpayment with respect to such period), or other incentive based auditor; (C) such Accounting Firm will not in be repeated for any manner solicit or agree to represent any other tenant of the Project with respect to an audit or other review of Landlord’s accounting records at the Project, and (D) such Accounting Firm shall maintain in strict confidence any and all information obtained in connection with the Audit and shall not disclose such information to any person or entity other than to the management personnel of Tenant. The Accounting Firm, Landlord and Tenant shall enter into a confidentiality agreement in form and substance acceptable to Landlord whereby the Accounting Firm and Tenant shall covenant, among other things, that the Accounting Firm and the Tenant shall keep the books and records of Landlord in strict confidenceCalendar Quarter.
(iv) In the event that the amount of Direct Expenses paid by Tenant to Landlord exceed the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, and after such Audit is confirmed and accepted by Landlord, in Landlord’s reasonable discretion, such difference shall be applied to the next succeeding payment of Direct Expenses due by Tenant to Landlord. In the event that the amount of Direct Expenses paid by Tenant to Landlord is less than the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, Tenant shall pay such difference to Landlord within ten (10) days of such determination.
(v) Nothing contained herein shall be construed as providing Tenant with any right or option to examine any other books and records of Landlord or any of Landlord’s affiliated entities. Notwithstanding anything to the contrary contained herein, the Audit Right granted herein is personal to the originally named Tenant, shall be exercisable only by such originally named Tenant and may not be assigned or exercised by any assignee, sublessee or transferee of Tenant’s interest in this Lease or any successor in interest to Tenant.
Appears in 1 contract
Audit Rights. (i) Provided that no Event of Default has occurred, Tenant shall have the right (“Audit Right”) toright, one time per calendar year during the Lease Termat Tenant's sole ------------ cost and expense, to audit Landlord’s 's records and books used by Landlord in determining the amount of Direct Expenses Tenant is obligated to pay to Landlord for the sole purpose Building provided that all of verifying the accuracy of same (the “Audit”). Any Audit shall cover only one following criteria have been met: (1) no audit shall be conducted during the months of January, February or March of any calendar year during (Tenant's auditor shall make an appointment with the Term of the LeaseLandlord's audit supervisor designated by Landlord. Landlord and Tenant shall provide Landlord at least thirty (30) days prior written notice requesting the Audit, provided, however, that Tenant’s right, if any, reasonably cooperate to exercise its Audit Right for any subject year shall expire arrange a mutually acceptable time within sixty (60) days after of Tenant's request. Notwithstanding the delivery foregoing, Landlord shall not be required to accommodate Tenant's auditors if other tenants have scheduled audits prior to Tenant's request on the date proposed by Tenant); (2) before conducting any audit, Tenant must pay the full amount of Expenses billed and must not be in default of any other provision of this Lease; (3) Tenant may review only those records of Landlord that are specifically related to Expenses. (Without limiting the generality of the Direct Expense Statement for the calendar yearforegoing, including the last year of the Lease TermTenant may not review any other leases, which Tenant desires to audit and, unless such right is exercised prior to such timecross easement agreements or Landlord's tax returns or financial statements.); (4) in conducting an audit, Tenant shall have waived its right utilize an independent certified public accountant experienced in auditing office building records, subject to request such an Audit. Landlord Landlord's reasonable prior approval; (5) the audit shall make said books and records relevant to such Audit available to Tenant during be conducted in St. Louis at a location determined by Landlord’s customary business hours , which shall be, at Landlord's discretion, at the principal office of the Landlord or its property manager of the Project or at such other location designated by Landlord in writing.
manager; (ii6) Tenant shall pay all reasonable and necessary third party out-of-pocket costs for the Audit, including, without limitation, all of Landlord’s costs and expenses, including reasonable attorney and accountant fees.
(iii) The Audit shall only be conducted by a reputable accounting firm (“Accounting Firm”) approved in writing by Landlord. As a condition precedent to any such Auditupon receipt thereof, Tenant shall deliver to Landlord a copy of the audit report and all accompanying data; (7) Tenant shall keep confidential all agreements involving the rights provided in this section and the results of any audits conducted hereunder. (Notwithstanding the foregoing, Tenant shall be permitted to furnish the foregoing information to its auditors to the extent that this information is required to perform their audit services for Tenant but whom shall also agree with Landlord in writing to be bound to confidentiality as hereinabove provided.); (8) the audit shall be conducted in accordance with generally accepted rules of auditing practices; (9) Tenant may not conduct an audit more often than once each calendar year; (10) Tenant may audit records with respect to each Lease Year only once; and (11) no audit shall cover a period of time in excess of the three (3) Lease Years immediately preceding the audit. If Tenant objects to Landlord's determination of Expenses, Tenant shall so advise Landlord, stating with specificity its reasons therefor. If Landlord and Tenant are unable, despite their good faith reasonable efforts, to agree upon the amount of Expenses, then, within thirty (30) days of Landlord's receipt of Tenant’s written agreement 's objections thereto, either party may submit the matter to arbitration with such Accounting Firm, which agreement shall include provisions which state that: (A) Landlord is an intended a mutually acceptable third-party beneficiary of such agreementarbitration service. Tenant shall be entitled, upon three (B5) such Accounting Firm is not being engaged as a contingency or other incentive based auditor; (C) such Accounting Firm will not in any manner solicit or agree to represent any other tenant of the Project with respect to an audit or other review of Landlord’s accounting records at the Projectdays prior written notice, and (D) during normal business hours at Landlord's office or such Accounting Firm shall maintain other place in strict confidence any the area in which the Building is located as Landlord may reasonably designate, to inspect and all information obtained in connection with the Audit and shall not disclose such information to any person examine and/or have a reputable independent CPA or entity other than to the management personnel of Tenant. The Accounting Firm, Landlord and consultant selected by Tenant shall enter into a confidentiality agreement in form and substance acceptable to Landlord whereby the Accounting Firm and Tenant shall covenant, among other things, that the Accounting Firm and the Tenant shall keep audit the books and records of Landlord in strict confidence.
(iv) In relating to the event determination of Expenses. If the audit discloses that the amount of Direct Expenses billed to Tenant was incorrect, the appropriate party shall pay to the other party the deficiency or overpayment, as applicable. All costs and expenses of the audit shall be paid by Tenant to unless the audit shows that Landlord exceed overstated or understated Expenses for the actual amount of Direct Expenses owed subject calendar year by Tenant to Landlord as disclosed by the Audit, and after such Audit is confirmed and accepted by Landlordmore than three percent (3%), in Landlord’s reasonable discretionwhich case, such difference shall be applied to the next succeeding payment of Direct Expenses due by Tenant to Landlord. In the event that the amount of Direct Expenses paid by Tenant to Landlord is less than the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, Tenant shall pay such difference all costs and expenses of the audit (not to exceed $2,000.00). Landlord within ten (10) days of such determination.
(v) Nothing contained herein shall be construed as providing Tenant with any right or option to examine any other maintain accurate and complete books and records evidencing Expenses for a period of not less than five (5) years after Landlord or issues a statement for any of Landlord’s affiliated entitiescalendar year. Notwithstanding anything to the contrary contained herein, the Audit Right granted herein is personal to the originally named Tenant, The books and records shall be exercisable only by such originally named Tenant and may not be assigned located in the Building or exercised by any assignee, sublessee or transferee of Tenant’s interest another reasonable location in this Lease or any successor the area in interest to Tenantwhich the Building is located.
Appears in 1 contract
Samples: Office Lease (Stereotaxis, Inc.)
Audit Rights. Construction Manager's records, which shall include, but not be limited to, accounting records, payroll time sheets, written policies and procedures, computer records, disks and software, videos, photographs, subcontract files (iincluding proposals of successful and unsuccessful bidders), original estimates, estimating worksheets, correspondence, change order files, (including documentation covering negotiated settlements), and other supporting evidence necessary to substantiate charges related to this Agreement(all the foregoing hereinafter referred to as "records”) Provided that no Event shall be open to inspection and subject to audit and/or reproduction, during normal working hours, by Owner's agent or its authorized representative to the extent necessary to adequately permit evaluation and verification of Default has occurredany invoices, Tenant payments or claims submitted by the Construction Manager or any of his payees pursuant to the execution of this Agreement. Such records subject to examination shall also include, but not be limited to, those records necessary to evaluate and verify direct and indirect costs as they may apply to reimbursable costs associated with this Agreement. All records shall be provided by Construction Manager within a reasonable period of time not to exceed 30 days following receipt of Owner’s written request. Construction Manager shall keep all records and supporting documentation which concern or relate to the work hereunder for a minimum of three (3) years from the date of termination of this Agreement or the date the Project is completed, whichever is later or such longer period of time as may be required by law. Construction Manager shall require all of its subcontractors to likewise retain all of their Project records and supporting documentation. Owner and any duly authorized agents or representatives of Owner, shall be provided access to all such records and supporting documentation at any and all times during normal business hours upon request by Owner. Further, Owner, and any duly authorized agents or representatives of Owner, shall have the right (“Audit Right”) toto audit, one time per calendar year during inspect and copy all of Construction Manager’s and any subcontractor’s Project records and documentation as often as they deem necessary and Construction Manager shall cooperate in any audit, inspection, or copying of the Lease Termdocuments. If at any time, Owner conducts such an audit Landlordof Construction Manager’s records and books used by Landlord documentation and finds that Construction Manager overcharged Owner for any compensation or costs incurred in determining the amount of Direct Expenses Tenant is obligated to Project, Construction Manager shall pay to Landlord for Owner the sole purpose Overcharged Amount which is defined as the total aggregate overcharged amount together with interest thereon (such interest to be established at the rate of verifying the accuracy of same (the “Audit”12% annum). Any If the Overcharged Amount is equal to or greater than $11,700 , Construction Manager shall pay to Owner the Overcharged Amount and the Audit shall cover only one (1) calendar year during Amount which is defined as the Term total aggregate of Owner’s reasonable audit costs incurred as a result of its audit of Construction Manager. Owner may recover the Lease. Tenant shall provide Landlord at least thirty (30) days prior written notice requesting Overcharged Amount and the AuditAudit Amount, providedas applicable, however, that Tenant’s right, if any, from any amount due or owing Construction Manager with regard to exercise its Audit Right for any subject year shall expire sixty (60) days after the delivery to Tenant of the Direct Expense Statement for the calendar year, including the last year of the Lease Term, which Tenant desires to audit and, unless such right is exercised prior to such time, Tenant shall have waived its right to request such an Audit. Landlord shall make said books and records relevant to such Audit available to Tenant during Landlord’s customary business hours at the office of the property manager of the Project or at such other location designated by Landlord in writing.
(ii) Tenant shall pay all reasonable and necessary third party out-of-pocket costs for the Audit, including, without limitation, all of Landlord’s costs and expenses, including reasonable attorney and accountant fees.
(iii) The Audit shall only be conducted by a reputable accounting firm (“Accounting Firm”) approved in writing by Landlord. As a condition precedent to any such Audit, Tenant shall deliver to Landlord a copy of Tenant’s written agreement with such Accounting Firm, which agreement shall include provisions which state that: (A) Landlord is an intended third-party beneficiary of such agreement, (B) such Accounting Firm is not being engaged as a contingency or other incentive based auditor; (C) such Accounting Firm will not in any manner solicit or agree to represent under any other tenant of agreement between Construction Manager and Owner. If such amounts owed Construction Manager are insufficient to cover the Project with respect to an audit or other review of Landlord’s accounting records at the ProjectOvercharged Amount and Audit Amount, as applicable, then Construction Manager hereby acknowledges and (D) such Accounting Firm shall maintain in strict confidence any and all information obtained in connection with the Audit and shall not disclose such information to any person or entity other than to the management personnel of Tenant. The Accounting Firm, Landlord and Tenant shall enter into a confidentiality agreement in form and substance acceptable to Landlord whereby the Accounting Firm and Tenant shall covenant, among other things, agrees that the Accounting Firm and the Tenant shall keep the books and records of Landlord in strict confidence.
(iv) In the event that the amount of Direct Expenses paid by Tenant to Landlord exceed the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, and after such Audit is confirmed and accepted by Landlord, in Landlord’s reasonable discretion, such difference shall be applied to the next succeeding payment of Direct Expenses due by Tenant to Landlord. In the event that the amount of Direct Expenses paid by Tenant to Landlord is less than the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, Tenant it shall pay such difference remaining amounts to Landlord Owner within ten seven (107) business days of its receipt of Owner’s invoice for such determination.
(v) Nothing contained herein remaining amounts. In no event shall be construed as providing Tenant with any right the Overcharged Amount or option to examine any other books and records of Landlord or any of Landlord’s affiliated entities. Notwithstanding anything to the contrary contained herein, the Audit Right granted herein is personal Amount be deemed reimbursable to Construction Manager. . Construction Manager shall require all subcontractors, insurance agents, and material suppliers (payees) to comply with the originally named Tenantprovisions of this Article by insertion of the requirements hereof in any written contract agreement. Failure to obtain such written contracts, which include such provisions, shall be exercisable only by such originally named Tenant reason to exclude some or all of the related payees' costs from amounts payable to the Construction Manager pursuant to this Agreement. This Article, including all access, inspection, copying, auditing, reimbursement and may not be assigned or exercised by any assigneerepayment rights, sublessee or transferee shall survive the termination of Tenant’s interest in this Lease or any successor in interest to TenantAgreement.
Appears in 1 contract
Samples: Construction Manager Agreement
Audit Rights. Licensee shall keep detailed, accurate and complete books and records as they relate hereto for not less than four (i4) Provided that years from the termination or expiration ofthe Term. At least once during each calendar year, and no Event later than fifteen (15) days of Default has occurredreceipt of written notice, Tenant Licensor’s duly authorized representative shall have the right (“Audit Right”) to, one time per calendar year during the Lease Term, audit Landlord’s records and books used by Landlord in determining the amount of Direct Expenses Tenant is obligated to pay to Landlord for the sole purpose of verifying the accuracy of same (the “Audit”). Any Audit shall cover only one (1) calendar year during the Term of the Lease. Tenant shall provide Landlord at least thirty (30) days prior written notice requesting the Audit, provided, however, that Tenant’s right, if any, to exercise its Audit Right for any subject year shall expire sixty (60) days after the delivery to Tenant of the Direct Expense Statement for the calendar year, including the last year of the Lease Term, which Tenant desires to audit and, unless such right is exercised prior to such time, Tenant shall have waived its right to request such an Audit. Landlord shall make examine said books and records relevant during reasonable business hours, and to make copies and summaries of suchbooks and records as they apply to the Licensed Articles and all transactions under this Agreement, and if any deficiency in Royalties paid to Licensor, or shortfall of expenditures applicable to the Minimum Advertising Guarantee, for any period under audit (“Audit Deficiency”)is discovered, Licensee shall promptly pay such Audit Deficiency and any interest thereon to Licensor. If Licensee fails to provide or make available all invoices billed to Tenant its customers, or if such invoices are incomplete, Licensee shall pay a Royalty on such sales equal to the highest price charged to any of Licensee’s retail customer for the Licensed Articles. If any Audit Deficiency exceeds five percent (5%) or more of Royalties paid during Landlord’s customary business hours any accounting period plusany amounts not spent by Licensee to fulfill its Minimum Advertising Guarantee commitment, Licensee shall pay the audit costs. If such Audit Deficiency is more than fifteen percent (15%) in book inventory versus physical inventory, Licensee shall be required to pay Licensor a Royalty on the missing Licensed Articles. If such Audit Deficiency is twenty percent (20%) or more of theRoyalties paid to Licensor for such audit period, then in addition to the above, Licensor may, at its sole option, immediately terminate the office Agreement upon notice to Licensee, even if Licensee tenders the audit deficiency and associated costs and expenses to Licensor. Should Licensee fail to maintain auditable books and records, Licensee shall pay Licensor a penalty equal to the greater of: (i) twenty-five percent (25%) of the property manager of the Project Guarantee; or at such other location designated by Landlord in writing.
(ii) Tenant shall pay twenty-five percent (25%) of all reasonable and necessary third party out-of-pocket costs for the Audit, including, without limitation, all of Landlord’s costs and expensesRoyalties paid (or owed) to Licensor, including reasonable attorney and accountant fees.
(iii) The Audit shall only be conducted by a reputable accounting firm (“Accounting Firm”) approved in writing by Landlordthe Advance from the commencement of the Termthrough the period subject to audit. As a condition precedent to any such Audit, Tenant shall deliver to Landlord a copy of Tenant’s written agreement with such Accounting Firm, which agreement shall include provisions which state that: (A) Landlord is an intended third-party beneficiary Payment of such agreement, (B) such Accounting Firm is not being engaged as a contingency or other incentive based auditor; (C) such Accounting Firm will not in any manner solicit or agree to represent any other tenant of the Project with respect to an audit or other review of Landlord’s accounting records at the Project, and (D) such Accounting Firm shall maintain in strict confidence any and all information obtained in connection with the Audit and penalty shall not disclose such information waive, limit or restrict anyother rights or remedies that Licensor may have in law or equity. Licensor’s right to any person or entity other than to the management personnel of Tenant. The Accounting Firm, Landlord and Tenant shall enter into a confidentiality agreement in form and substance acceptable to Landlord whereby the Accounting Firm and Tenant shall covenant, among other things, that the Accounting Firm and the Tenant shall keep the audit Licensee’s books and records shall survive the expiration or earlier termination of Landlord in strict confidencethis Agreement.
(iv) In the event that the amount of Direct Expenses paid by Tenant to Landlord exceed the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, and after such Audit is confirmed and accepted by Landlord, in Landlord’s reasonable discretion, such difference shall be applied to the next succeeding payment of Direct Expenses due by Tenant to Landlord. In the event that the amount of Direct Expenses paid by Tenant to Landlord is less than the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, Tenant shall pay such difference to Landlord within ten (10) days of such determination.
(v) Nothing contained herein shall be construed as providing Tenant with any right or option to examine any other books and records of Landlord or any of Landlord’s affiliated entities. Notwithstanding anything to the contrary contained herein, the Audit Right granted herein is personal to the originally named Tenant, shall be exercisable only by such originally named Tenant and may not be assigned or exercised by any assignee, sublessee or transferee of Tenant’s interest in this Lease or any successor in interest to Tenant.
Appears in 1 contract
Samples: Merchandising License Agreement
Audit Rights. (i) Provided that Regen BioPharma shall permit an independent public accountant designated by Benitec Australia and reasonably acceptable to Regen BioPharma, to have access, no Event of Default has occurred, Tenant shall have the right (“Audit Right”) to, one time per calendar year during the Lease Term, audit Landlord’s records and books used by Landlord more than once in determining the amount of Direct Expenses Tenant is obligated to pay to Landlord for the sole purpose of verifying the accuracy of same (the “Audit”). Any Audit shall cover only one (1) each calendar year during the Term and no more than twice during the three (3) calendar years following the expiration or termination of the Lease. Tenant shall provide Landlord this Agreement, during regular business hours and upon at least thirty (30) days prior written notice requesting the Audit, provided, however, that Tenant’s right, if any, to exercise its Audit Right for any subject year shall expire sixty (60) days after written notice, to Regen BioPharma’s records and books to the delivery extent necessary to Tenant determine the accuracy of Net Sales reported, and payments made, by Regen BioPharma to Benitec Australia within the three (3) year period immediately preceding such an audit. The independent public accountant shall be under a confidentiality obligation to Regen BioPharma to disclose to Benitec Australia only (a) the accuracy of Net Sales reported and the basis for royalty and other payments made to Benitec Australia under this Agreement and (b) the difference, if any, such reported and paid amounts vary from amounts determined as a result of the Direct Expense Statement for audit. If such examination results in a determination that Net Sales or payments have been misstated, over or under paid amounts due shall be paid promptly to the calendar yearappropriate Party. If Net Sales are understated by greater than five percent (5%), including the last year fees and expenses of such accountant shall be paid by Regen BioPharma; otherwise the Lease Termfees and expenses of such accountant shall be paid by Benitec. All matters reviewed by such independent public accountant shall be deemed Confidential Information of Regen BioPharma and shall be subject to Section 9 (Confidentiality). Regen BioPharma shall use commercially reasonable efforts to reserve the right to conduct audits of its sublicensees in a comparable manner to this Section 3.10 and if requested by Benitec Australia shall appoint an independent public accountant to conduct such audit, which Tenant desires to audit andat Benitec Australia’s expense, unless the Net Sale of sublicensee are understated by greater than five percent (5%), in which case Regen BioPharma shall ensure that the fees and expenses of such right is exercised prior to such time, Tenant accountant shall have waived its right to request such an Auditbe paid by the sublicensee. Landlord Regen BioPharma shall make said books and records relevant to such Audit available to Tenant during Landlord’s customary business hours at the office of the property manager of the Project or at such other location designated by Landlord in writing.
(ii) Tenant shall pay all reasonable and necessary third party out-of-pocket costs for the Audit, including, without limitation, all of Landlord’s costs and expenses, including reasonable attorney and accountant fees.
(iii) The Audit shall only be conducted by a reputable accounting firm (“Accounting Firm”) approved in writing by Landlord. As a condition precedent to any such Audit, Tenant shall deliver to Landlord provide Benitec Australia with a copy of Tenant’s written agreement with all audit reports of sublicensees under this Section 3.10, such Accounting Firm, which agreement reports shall include provisions which state that: (A) Landlord is an intended third-party beneficiary be deemed Confidential Information of such agreement, (B) such Accounting Firm is not being engaged as a contingency or other incentive based auditor; (C) such Accounting Firm will not in any manner solicit or agree to represent any other tenant of the Project with respect to an audit or other review of Landlord’s accounting records at the Project, and (D) such Accounting Firm shall maintain in strict confidence any and all information obtained in connection with the Audit Regen BioPharma and shall not disclose such information be subject to any person or entity other than to the management personnel of Tenant. The Accounting Firm, Landlord and Tenant shall enter into a confidentiality agreement in form and substance acceptable to Landlord whereby the Accounting Firm and Tenant shall covenant, among other things, that the Accounting Firm and the Tenant shall keep the books and records of Landlord in strict confidenceSection 9(Confidentiality).
(iv) In the event that the amount of Direct Expenses paid by Tenant to Landlord exceed the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, and after such Audit is confirmed and accepted by Landlord, in Landlord’s reasonable discretion, such difference shall be applied to the next succeeding payment of Direct Expenses due by Tenant to Landlord. In the event that the amount of Direct Expenses paid by Tenant to Landlord is less than the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, Tenant shall pay such difference to Landlord within ten (10) days of such determination.
(v) Nothing contained herein shall be construed as providing Tenant with any right or option to examine any other books and records of Landlord or any of Landlord’s affiliated entities. Notwithstanding anything to the contrary contained herein, the Audit Right granted herein is personal to the originally named Tenant, shall be exercisable only by such originally named Tenant and may not be assigned or exercised by any assignee, sublessee or transferee of Tenant’s interest in this Lease or any successor in interest to Tenant.
Appears in 1 contract
Audit Rights. (i) Provided that no Event of Default has occurredTenant timely delivers an Expense Claim to Landlord, Tenant Tenant’s CPA (as hereinafter defined) shall have the right (“Audit Right”) toright, one time per calendar year during the Lease Termat Tenant’s sole cost and expense, audit Landlord’s records and books used by Landlord in determining the amount of Direct Expenses Tenant is obligated to pay to Landlord for the sole purpose of verifying the accuracy of same (the “Audit”). Any Audit shall cover only one (1) calendar year during the Term of the Lease. Tenant shall provide Landlord upon at least thirty (30) days’ prior notice to Landlord, at any time during regular business hours, to review and photocopy Landlord’s records pertaining to Expenses for the immediately preceding Computation Year and for the Base Year, as set forth above. The inspection of Landlord’s records must be completed within thirty (30) days after such records are made available to Tenant’s CPA, and the written determination of Tenant’s CPA must be delivered to Landlord within nine (9) months after Tenant’s receipt of the applicable Annual Statement. If Tenant fails to deliver the written determination of Tenant’s CPA within said nine (9) month period, Tenant shall forfeit any right to claim a refund, rebate, or return of Expenses set forth in the applicable Annual Statement. Any certified public accountant engaged by Tenant (“Tenant’s CPA”) to inspect Landlord’s records shall not be compensated on a contingency basis, in whole or in part, and shall be subject to Landlord’s prior written notice requesting approval, which approval Landlord shall not unreasonably withhold, condition or delay. If, following the Audit, provided, however, that date Landlord receives the written report of Tenant’s rightCPA (the “Report Date”), if anyLandlord disputes the findings therein, and Landlord and Tenant are not able to exercise its Audit Right for any subject year resolve their differences within thirty (30) days following the Report Date, which the parties agree to attempt to do reasonably and in good faith, the dispute shall expire be resolved by binding arbitration as follows: Landlord and Tenant shall each designate an independent certified public accountant, who shall in turn jointly select a third, independent certified public accountant (the “Independent CPA”). Within sixty (60) days after selection, the delivery Independent CPA shall review the relevant records relating to Tenant’s Expense Claim and determine the proper amount payable by Tenant, which determination shall be final and binding upon the parties. If the Independent CPA determines that the amount of Expenses billed to Tenant was incorrect, the appropriate party shall pay to the other party the deficiency or overpayment, as applicable, within thirty (30) days following delivery of the Direct Expense Statement Independent CPA’s decision, without interest. The fees and costs of the Independent CPA shall be paid by Tenant unless the Independent CPA determines that Tenant has overpaid Expenses for the calendar yearapplicable Computation Year, including in the last year aggregate, by more than five percent (5%), in which case Landlord shall pay the fees and costs of the Lease TermIndependent CPA, which Tenant desires up to audit anda maximum amount of Five Thousand Dollars ($5,000.00), unless such right is exercised prior to such time, Tenant shall have waived its right to request such an Audit. Landlord shall make said books and records relevant to such Audit available to Tenant during Landlord’s customary business hours at the office of the property manager of the Project or at such other location designated by Landlord in writing.
(ii) Tenant shall pay all reasonable and necessary third party out-of-pocket costs for any remaining balance owing to the Audit, including, without limitation, all of Landlord’s costs and expenses, including reasonable attorney and accountant fees.
(iii) The Audit shall only be conducted by a reputable accounting firm (“Accounting Firm”) approved in writing by LandlordIndependent CPA. As a condition precedent to any such Audit, Tenant shall deliver to Landlord a copy of Tenant’s written agreement keep all information obtained by Tenant in connection with such Accounting Firm, which agreement shall include provisions which state that: (A) Landlord is an intended third-party beneficiary of such agreement, (B) such Accounting Firm is not being engaged as a contingency or other incentive based auditor; (C) such Accounting Firm will not in any manner solicit or agree to represent any other tenant of the Project with respect to an audit or other its review of Landlord’s accounting records at confidential and shall use reasonable diligence to obtain the Projectagreement of Tenant’s CPA and the Independent CPA to keep all such information confidential. Landlord may condition inspection of Landlord’s records by Tenant’s CPA or the Independent CPA upon receipt of an executed confidentiality agreement reasonably acceptable to Landlord. Tenant agrees that Tenant’s sole right to inspect Landlord’s books and records and to contest the amount of Expenses payable by Tenant shall be as set forth in this Paragraph 4(h), and (D) such Accounting Firm shall maintain in strict confidence Tenant hereby waives any and all information obtained in connection with the Audit and shall not disclose other rights pursuant to Laws to inspect such information to any person or entity other than to the management personnel of Tenant. The Accounting Firm, Landlord and Tenant shall enter into a confidentiality agreement in form and substance acceptable to Landlord whereby the Accounting Firm and Tenant shall covenant, among other things, that the Accounting Firm and the Tenant shall keep the books and records of Landlord in strict confidence.
(iv) In the event that and/or to contest the amount of Direct Expenses paid payable by Tenant to Landlord exceed the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, and after such Audit is confirmed and accepted by Landlord, in Landlord’s reasonable discretion, such difference shall be applied to the next succeeding payment of Direct Expenses due by Tenant to Landlord. In the event that the amount of Direct Expenses paid by Tenant to Landlord is less than the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, Tenant shall pay such difference to Landlord within ten (10) days of such determination.
(v) Nothing contained herein shall be construed as providing Tenant with any right or option to examine any other books and records of Landlord or any of Landlord’s affiliated entities. Notwithstanding anything to the contrary contained herein, the Audit Right granted herein is personal to the originally named Tenant, shall be exercisable only by such originally named Tenant and may not be assigned or exercised by any assignee, sublessee or transferee of Tenant’s interest in this Lease or any successor in interest to Tenant.
Appears in 1 contract
Audit Rights. (a) For the purpose of the audit rights described herein, the individual Party subject to an audit in any given year will be referred to as the “Auditee” and the other Party who has certain and respective rights to audit the books and records of the Auditee pursuant to this Article 7.3 will be referred to as the “Audit Rights Holder” .
(b) Each Party may, upon request and at its expense (except as provided for herein), cause an internationally-recognized independent accounting firm selected by it (except one to whom the Auditee has some reasonable objection) (“Audit Team”) to audit the books and records of the other Party during ordinary business hours the correctness of any payment made or required to be made to or by such Party, and any report underlying such payment (or lack thereof), pursuant to the terms of this Agreement. The Audit Team shall execute an appropriate and customary confidentiality agreement with the Auditee.
(c) In respect of each audit of an Auditee’s books and records, the Audit Rights Holder must exercise its audit right such that all of the following conditions are met: (i) Provided that each Auditee is audited only once per year by a single Audit Team appointed by the Audit Rights Holder, (ii) no Event records for any given year for an Auditee may be audited more than once and (iii) an Audit Rights Holder shall only be entitled to audit books and records of Default has occurredthe Auditee from the *** calendar years prior to the calendar year in which the audit request is made.
(d) In order to initiate an audit for a particular calendar year, Tenant an Audit Right Holder must provide written notice to the Auditee. The Audit Rights Holder exercising its audit rights shall provide the Auditee with notice of one or more proposed dates of the audit not less than forty-five (45) days prior to the first proposed date. The Auditee will reasonably accommodate the scheduling of such audit. The Auditee shall provide such audit team with full and complete access to the applicable books and records and otherwise reasonably co-operate with such audit.
(e) The audit report and basis for any determination by an Audit Team under this Article 7.3 shall be made available for review and comment by the Auditee, and the Auditee shall have the right right, at its expense, to request a further determination by such Audit Team as to matters which the Auditee disputes (“Audit Right”) to, one time per calendar year during the Lease Term, audit Landlord’s records and books used by Landlord in determining the amount of Direct Expenses Tenant is obligated to pay to Landlord for the sole purpose of verifying the accuracy of same (the “Audit”). Any Audit shall cover only one (1) calendar year during the Term of the Lease. Tenant shall provide Landlord at least be completed no more than thirty (30) days prior written notice requesting the Audit, provided, however, that Tenant’s right, if any, to exercise its Audit Right for any subject year shall expire sixty (60) days after the delivery to Tenant of the Direct Expense Statement for the calendar year, including the last year of the Lease Term, which Tenant desires to audit and, unless such right first determination is exercised prior provided to such time, Tenant shall have waived its right Auditee and to request such an Auditbe limited to the disputed matters). Landlord shall make said books and records relevant If the Parties disagree as to such Audit available to Tenant during Landlord’s customary business hours at the office of the property manager of the Project or at such other location designated by Landlord in writing.
(ii) Tenant shall pay all reasonable and necessary third party out-of-pocket costs for the Audit, including, without limitation, all of Landlord’s costs and expenses, including reasonable attorney and accountant fees.
(iii) The Audit shall only be conducted by a reputable accounting firm (“Accounting Firm”) approved in writing by Landlord. As a condition precedent to any such Audit, Tenant shall deliver to Landlord a copy of Tenant’s written agreement with such Accounting Firm, which agreement shall include provisions which state that: (A) Landlord is an intended third-party beneficiary of such agreement, (B) such Accounting Firm is not being engaged as a contingency or other incentive based auditor; (C) such Accounting Firm will not in any manner solicit or agree to represent any other tenant of the Project with respect to an audit or other review of Landlord’s accounting records at the Project, and (D) such Accounting Firm shall maintain in strict confidence any and all information obtained in connection with the Audit and shall not disclose such information to any person or entity other than to the management personnel of Tenant. The Accounting Firm, Landlord and Tenant shall enter into a confidentiality agreement in form and substance acceptable to Landlord whereby the Accounting Firm and Tenant shall covenant, among other things, that the Accounting Firm and the Tenant shall keep the books and records of Landlord in strict confidence.
(iv) In the event that the amount of Direct Expenses paid by Tenant to Landlord exceed the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, and after such Audit is confirmed and accepted by Landlord, in Landlord’s reasonable discretion, such difference shall be applied to the next succeeding payment of Direct Expenses due by Tenant to Landlord. In the event that the amount of Direct Expenses paid by Tenant to Landlord is less than the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, Tenant shall pay such difference to Landlord within ten (10) days of such further determination.
(v) Nothing contained herein shall be construed as providing Tenant with any right or option to examine any other books and records of Landlord or any of Landlord’s affiliated entities. Notwithstanding anything to the contrary contained herein, the Audit Right granted herein is personal Holder and the Auditee shall *** - indicates material omitted pursuant to a Confidential Treatment Request and filed separately with the originally named Tenant, shall be exercisable only by such originally named Tenant Securities and may not be assigned or exercised by any assignee, sublessee or transferee of Tenant’s interest in this Lease or any successor in interest to TenantExchange Commission.
Appears in 1 contract
Samples: Research Collaboration License Agreement (Emisphere Technologies Inc)
Audit Rights. (i) Provided that no Event Tenant may, at Tenant’s sole and absolute discretion, subject to the terms and conditions of Default has occurredany Mortgage Documents, contest, or review, by legal proceedings, or in such other manner as Tenant deems suitable, which proceedings if instituted shall be conducted promptly, at Tenant’s own expense, and free of expense to Landlord, any Taxes or sewer or water rents or charges imposed upon or against the Premises, and attempt to obtain a reduction in the assessed valuation of the Premises for the purpose of reducing any such tax assessment. In case any Taxes or sewer or water rents or charges shall, as a result of such proceedings or otherwise, be reduced, canceled, set aside or to any extent discharges, there shall be a subsequent reduction in Tenant’s payments to Landlord attributable to Taxes or sewer or water rents or charges for such year and Landlord shall promptly pay over to any excess payments made by Tenant, when all refunds or credits to which Landlord is entitled from the taxing authority with respect to such year have the right (“Audit Right”) to, one time per calendar year during the Lease Term, audit been received or applied by Landlord. Landlord’s records obligation to refund any such overpayment shall survive such expiration or earlier termination. Landlord will, at the request of Tenant and books used by Landlord without expense to Landlord, cooperate with Tenant in determining the amount of Direct Expenses Tenant is obligated to pay to Landlord for the sole purpose of verifying the accuracy of same (the “Audit”)effecting such a reduction. Any Audit reduction or tax refund payable as a result of any proceeding Tenant may institute for that purpose or otherwise shall cover only one (1) calendar year during be the Term property of Tenant to the Leaseextent to which it may be based on a payment made by Tenant. Landlord shall not be required to join in any such action or proceeding, unless required by law or any rule or regulation in order to make such action or proceeding effective, in which event any such action or proceeding shall be taken by the Tenant shall provide Landlord at least thirty (30) days prior written notice requesting in the Auditname of, providedbut without expense to Landlord. Landlord, however, that Tenant’s right, if any, will cooperate to exercise its Audit Right for any subject year shall expire sixty the extent reasonably necessary (60without liability) days after the delivery to Tenant of the Direct Expense Statement and supply such data and execute such documents required for the calendar yearpurpose of obtaining a decision thereon, including the last year either through litigation, settlement or otherwise. Landlord shall, however, upon demand of the Lease TermTenant join in any such proceeding, provided Tenant indemnifies Landlord against any costs or expenses in connection therewith, which Tenant desires to audit and, unless such right is exercised prior to such time, Tenant indemnification shall have waived its right to request such an Audit. Landlord shall make said books and records relevant to such Audit available to Tenant during Landlord’s customary business hours at survive the office expiration or termination of the property manager of the Project or at such other location designated by Landlord in writingthis Lease.
(ii) Tenant shall pay all reasonable and necessary third party out-of-pocket costs for the Audit, including, without limitation, all of Landlord’s costs and expenses, including reasonable attorney and accountant fees.
(iii) The Audit shall only be conducted by a reputable accounting firm (“Accounting Firm”) approved in writing by Landlord. As a condition precedent to any such Audit, Tenant shall deliver to Landlord a copy of Tenant’s written agreement with such Accounting Firm, which agreement shall include provisions which state that: (A) Landlord is an intended third-party beneficiary of such agreement, (B) such Accounting Firm is not being engaged as a contingency or other incentive based auditor; (C) such Accounting Firm will not in any manner solicit or agree to represent any other tenant of the Project with respect to an audit or other review of Landlord’s accounting records at the Project, and (D) such Accounting Firm shall maintain in strict confidence any and all information obtained in connection with the Audit and shall not disclose such information to any person or entity other than to the management personnel of Tenant. The Accounting Firm, Landlord and Tenant shall enter into a confidentiality agreement in form and substance acceptable to Landlord whereby the Accounting Firm and Tenant shall covenant, among other things, that the Accounting Firm and the Tenant shall keep the books and records of Landlord in strict confidence.
(iv) In the event that the amount of Direct Expenses paid by Tenant to Landlord exceed the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, and after such Audit is confirmed and accepted by Landlord, in Landlord’s reasonable discretion, such difference shall be applied to the next succeeding payment of Direct Expenses due by Tenant to Landlord. In the event that the amount of Direct Expenses paid by Tenant to Landlord is less than the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, Tenant shall pay such difference to Landlord within ten (10) days of such determination.
(v) Nothing contained herein shall be construed as providing Tenant with any right or option to examine any other books and records of Landlord or any of Landlord’s affiliated entities. Notwithstanding anything to the contrary contained herein, the Audit Right granted herein is personal to the originally named Tenant, shall be exercisable only by such originally named Tenant and may not be assigned or exercised by any assignee, sublessee or transferee of Tenant’s interest in this Lease or any successor in interest to Tenant.
Appears in 1 contract
Audit Rights. (i) Provided Symantec may audit Your use of the Licensed Software and Maintenance to verify that no Event Your usage complies with applicable Entitlement Confirmation(s), including without limitation through collection and use of Default has occurredCollected Data, Tenant shall have self-certifications, on-site audits and/or audits done using a third party auditor. An audit will be done upon reasonable notice and during normal business hours, but not more often than once each year unless a material discrepancy was identified during the right (“Audit Right”) course of a prior review. You agree to implement internal safeguards to prevent any unauthorized copying, distribution, installation, or use of, or access to, one time per calendar year during the Lease TermLicensed Software. You further agree to keep records sufficient to certify Your compliance with this License Agreement, audit Landlord’s and, upon request of Symantec, provide and certify metrics and/or reports based upon such records and books used accounting for both numbers of copies (by Landlord product and version) and network architectures as they may reasonably relate to Your licensing and deployment of the Licensed Software. If Your usage of the Licensed Software or Maintenance is not compliant, You will promptly submit an order within thirty (30) days, at Manufacturer’s Suggested Reseller Price (MSRP), or as mutually agreed upon with Symantec, applicable to Your use of the Licensed Software or Maintenance in determining the amount excess of Direct Expenses Tenant is obligated Your entitlement rights including, but not limited to pay to Landlord for the sole purpose software license fees , new and lapsed Maintenance fees, and reinstatement costs. Lapsed Maintenance or excess subscription fees will be calculated at a minimum of verifying the accuracy of same (the “Audit”). Any Audit shall cover only one (1) calendar year during year, unless an accurate calculation can be determined. Symantec reserves the Term right to charge interest at the rate of one and one-half percent (1½%) per month or the highest interest rate allowed by law, whichever is lower, from the date on which such amount became due. Symantec shall bear the costs of any such audit, except where the audit demonstrates that the MSRP value of Your non- compliant usage exceeds five percent (5%) of the LeaseMSRP value of Your compliant deployments. Tenant shall provide Landlord at least thirty (30) days prior written notice requesting the AuditIn such case, provided, however, that Tenant’s right, if any, in addition to exercise its Audit Right purchasing appropriate licenses and Maintenance for any subject year over-deployed Licensed Software, You shall expire sixty (60) days after the delivery to Tenant of the Direct Expense Statement reimburse Symantec for the calendar year, including the last year of the Lease Term, which Tenant desires to audit and, unless such right is exercised prior to such time, Tenant shall have waived its right to request such an Audit. Landlord shall make said books and records relevant to such Audit available to Tenant during Landlord’s customary business hours at the office of the property manager of the Project or at such other location designated by Landlord in writing.
(ii) Tenant shall pay all reasonable and necessary third party out-of-pocket costs for the Audit, including, without limitation, all of Landlord’s costs and expenses, including reasonable attorney and accountant feesaudit.
(iii) The Audit shall only be conducted by a reputable accounting firm (“Accounting Firm”) approved in writing by Landlord. As a condition precedent to any such Audit, Tenant shall deliver to Landlord a copy of Tenant’s written agreement with such Accounting Firm, which agreement shall include provisions which state that: (A) Landlord is an intended third-party beneficiary of such agreement, (B) such Accounting Firm is not being engaged as a contingency or other incentive based auditor; (C) such Accounting Firm will not in any manner solicit or agree to represent any other tenant of the Project with respect to an audit or other review of Landlord’s accounting records at the Project, and (D) such Accounting Firm shall maintain in strict confidence any and all information obtained in connection with the Audit and shall not disclose such information to any person or entity other than to the management personnel of Tenant. The Accounting Firm, Landlord and Tenant shall enter into a confidentiality agreement in form and substance acceptable to Landlord whereby the Accounting Firm and Tenant shall covenant, among other things, that the Accounting Firm and the Tenant shall keep the books and records of Landlord in strict confidence.
(iv) In the event that the amount of Direct Expenses paid by Tenant to Landlord exceed the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, and after such Audit is confirmed and accepted by Landlord, in Landlord’s reasonable discretion, such difference shall be applied to the next succeeding payment of Direct Expenses due by Tenant to Landlord. In the event that the amount of Direct Expenses paid by Tenant to Landlord is less than the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, Tenant shall pay such difference to Landlord within ten (10) days of such determination.
(v) Nothing contained herein shall be construed as providing Tenant with any right or option to examine any other books and records of Landlord or any of Landlord’s affiliated entities. Notwithstanding anything to the contrary contained herein, the Audit Right granted herein is personal to the originally named Tenant, shall be exercisable only by such originally named Tenant and may not be assigned or exercised by any assignee, sublessee or transferee of Tenant’s interest in this Lease or any successor in interest to Tenant.
Appears in 1 contract
Samples: Software License Agreement
Audit Rights. (ia) Provided that no Event RegeneRx, at its discretion, shall be permitted either: to perform, at its expense, yearly audits of Default has occurred, Tenant shall have the right (“Audit Right”) to, one time per calendar year during the Lease Term, audit Landlord’s Defiante's records and books used by Landlord in determining related to the amount Bulk Active Material and Finished Products provided such audits are reasonably conducted at Defiante's convenience and during Defiante's regular business hours; or to request of Direct Expenses Tenant is obligated Defiante an annual certified statement from Defiante's auditors that all royalty payments and fees due and owing hereunder have been accounted for under Generally Accepted Accounting Principles or the equivalent Territory applicable accounting principles or methods. RegeneRx acknowledges that any information acquired under the audit shall be considered Information under Article 7, Section 7.
1. In the event that a discrepancy arises between the royalties and fees paid to pay to Landlord for the sole purpose of verifying the accuracy of same (the “Audit”). Any Audit RegeneRx and Defiante's records and books, Defiante shall cover only one (1) calendar year during the Term of the Lease. Tenant shall provide Landlord at least be given thirty (30) days prior from the receipt of the notice to either explain such discrepancy and/or remedy such discrepancy, as appropriate. Further, in the event of a discrepancy of more than five percent (5%) between the amount owed and the actual amount received by RegeneRx, Defiante shall reimburse all the actual expenses and costs incurred by RegeneRx in performing such audit. Additionally, Defiante shall pay RegeneRx interest charges equal to the prime United States Treasury rate as published in The Wall Street Journal on the original royalty payment due dates on the delinquent cumulative sum plus two percent (2%) per annum on all outstanding amounts due and owing as determined by the foregoing audit. CERTAIN PORTIONS OF THIS DOCUMENT INDICATED BY *** HAVE BEEN REDACTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT
(b) RegeneRx shall consider Defiante in material breach of this Agreement if Defiante fails to pay RegeneRx the required royalty and fee payments specified hereunder or does not meet its audit obligations as defined herein provided that Defiante receives written notice requesting the Audit, provided, however, that Tenant’s right, if any, to exercise its Audit Right for any subject year shall expire of such breach and is permitted sixty (60) days after from the delivery to Tenant date of the Direct Expense Statement for the calendar year, including the last year receipt of the Lease Termnotice to cure such breach, which Tenant desires as permitted under Article 9, Section 9.3. The right to audit and, unless such right is exercised prior to such time, Tenant shall have waived its right to request such an Audit. Landlord shall make said books and records relevant to such Audit available to Tenant during Landlord’s customary business hours at the office of the property manager of the Project or at such other location designated by Landlord in writing.
(ii) Tenant shall pay all reasonable and necessary third party out-of-pocket costs for the Audit, including, without limitation, all of Landlord’s costs and expenses, including reasonable attorney and accountant fees.
(iii) The Audit shall only be conducted by a reputable accounting firm (“Accounting Firm”) approved in writing by Landlord. As a condition precedent to any such Audit, Tenant shall deliver to Landlord a copy of Tenant’s written agreement with such Accounting Firm, which agreement shall include provisions which state that: (A) Landlord is an intended third-party beneficiary of such agreement, (B) such Accounting Firm is not being engaged as a contingency or other incentive based auditor; (C) such Accounting Firm will not in any manner solicit or agree to represent any other tenant of the Project with respect to an audit or other review of Landlord’s accounting records at the Project, and (D) such Accounting Firm shall maintain in strict confidence any and all information obtained in connection with the Audit and shall not disclose such information to any person or entity other than to the management personnel of Tenant. The Accounting Firm, Landlord and Tenant shall enter into a confidentiality agreement in form and substance acceptable to Landlord whereby the Accounting Firm and Tenant shall covenant, among other things, that the Accounting Firm RegeneRx and the Tenant shall keep the books and records of Landlord in strict confidenceobligations hereunder extend to Sub-Licensees.
(iv) In the event that the amount of Direct Expenses paid by Tenant to Landlord exceed the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, and after such Audit is confirmed and accepted by Landlord, in Landlord’s reasonable discretion, such difference shall be applied to the next succeeding payment of Direct Expenses due by Tenant to Landlord. In the event that the amount of Direct Expenses paid by Tenant to Landlord is less than the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, Tenant shall pay such difference to Landlord within ten (10) days of such determination.
(v) Nothing contained herein shall be construed as providing Tenant with any right or option to examine any other books and records of Landlord or any of Landlord’s affiliated entities. Notwithstanding anything to the contrary contained herein, the Audit Right granted herein is personal to the originally named Tenant, shall be exercisable only by such originally named Tenant and may not be assigned or exercised by any assignee, sublessee or transferee of Tenant’s interest in this Lease or any successor in interest to Tenant.
Appears in 1 contract
Samples: License and Supply Agreement (Regenerx Biopharmaceuticals Inc)
Audit Rights. (i) Provided that no Event of Default has occurred, Tenant shall have the right right, at Tenant's sole cost and expense, provided Tenant utilizes a Certified Public Accountant (“Audit Right”) to"CPA"), one time per calendar year during the Lease Term, audit Landlord’s records and books used by Landlord in determining the amount of Direct Expenses Tenant is obligated to pay to Landlord for the sole purpose of verifying the accuracy of same (the “Audit”). Any Audit shall cover only one (1) calendar year during the Term of the Lease. Tenant shall provide Landlord upon at least thirty (30) days prior written notice requesting to Landlord at any time during regular business hours, and no more frequently than twice per calendar year, to audit Landlord's records pertaining to Operating Expenses for the Auditimmediately previous calendar year only. Any disputes between Landlord and ***** Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission. Confidential Treatement Requested Tenant concerning Landlord's accounting of Additional Rent shall be resolved using generally accepted accounting principles ("GAAP"). If it is determined from Tenant's audit of such operating expenses that Tenant was overcharged by more than three percent (3%), provided, however, that Tenant’s rightsuch overcharge shall entitle Tenant to credit against its next payment of Reimbursable Operations Costs the amount of the overcharge and the costs incurred by Tenant with the audit (and, if anysuch credit occurs following the expiration of the Term, Landlord shall pay the amount of such credit to exercise its Audit Right for any subject year shall expire sixty Tenant within thirty (6030) days after Landlord's receipt of an invoice from Tenant). If the delivery audit determines that the Tenant was overcharged less than three percent (3%), such overcharge shall entitle Tenant to Tenant credit against its next payment of Reimbursable Operations Costs the amount of the Direct Expense Statement overcharge and Tenant shall pay for all costs incurred by Tenant with the audit. If the audit shall determine that Tenant was undercharged for the calendar year, including the last year of the Lease Term, which Tenant desires to audit and, unless such right is exercised prior to such timeReimbursable Operations Costs, Tenant shall have waived its right to request such an Audit. Landlord shall make said books and records relevant to such Audit available to Tenant during Landlord’s customary business hours at promptly pay the office of the property manager of the Project or at such other location designated by Landlord in writing.
(ii) Tenant shall pay all reasonable and necessary third party out-of-pocket costs for the Audit, including, without limitation, all of Landlord’s costs and expenses, including reasonable attorney and accountant fees.
(iii) The Audit shall only be conducted by a reputable accounting firm (“Accounting Firm”) approved in writing by Landlord. As a condition precedent to any such Audit, Tenant shall deliver to Landlord a copy of Tenant’s written agreement with such Accounting Firm, which agreement shall include provisions which state that: (A) Landlord is an intended third-party beneficiary amount of such agreement, (B) such Accounting Firm is not being engaged as a contingency or other incentive based auditor; (C) such Accounting Firm will not in any manner solicit or agree undercharge to represent any other tenant of the Project with respect to an audit or other review of Landlord’s accounting records at the Project, and (D) such Accounting Firm shall maintain in strict confidence any and all information obtained in connection with the Audit and shall not disclose such information to any person or entity other than to the management personnel of Tenant. The Accounting Firm, Landlord and Tenant shall enter into a confidentiality agreement in form and substance acceptable to Landlord whereby the Accounting Firm and Tenant shall covenant, among other things, that the Accounting Firm and the Tenant shall keep the books and records of Landlord in strict confidence.
(iv) In the event that the amount of Direct Expenses paid pay for all costs incurred by Tenant with the audit. Permitted Assignees of Tenant may only audit periods for which they occupy the Premises and subtenants of Tenant are not entitled to Landlord exceed the actual amount of Direct Expenses owed any audit rights. Xxxxxx agrees to keep all information thereby obtained by Tenant to Landlord as disclosed by the Audit, and after such Audit is confirmed and accepted by Landlord, in Landlord’s reasonable discretion, such difference shall be applied to the next succeeding payment of Direct Expenses due by Tenant to Landlord. In the event that the amount of Direct Expenses paid by Tenant to Landlord is less than the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, Tenant shall pay such difference to Landlord within ten (10) days of such determinationconfidential.
(v) Nothing contained herein shall be construed as providing Tenant with any right or option to examine any other books and records of Landlord or any of Landlord’s affiliated entities. Notwithstanding anything to the contrary contained herein, the Audit Right granted herein is personal to the originally named Tenant, shall be exercisable only by such originally named Tenant and may not be assigned or exercised by any assignee, sublessee or transferee of Tenant’s interest in this Lease or any successor in interest to Tenant.
Appears in 1 contract
Samples: Lease Agreement (Scios Inc)
Audit Rights. Construction Manager's records, which shall include, but not be limited to, accounting records, payroll time sheets, written policies and procedures, computer records, disks and software, videos, photographs, subcontract files (iincluding proposals of successful and unsuccessful bidders), original estimates, estimating worksheets, correspondence, change order files, (including documentation covering negotiated settlements), and other supporting evidence necessary to substantiate charges related to this Agreement(all the foregoing hereinafter referred to as "records”) Provided that no Event shall be open to inspection and subject to audit and/or reproduction, during normal working hours, by Owner's agent or its authorized representative to the extent necessary to adequately permit evaluation and verification of Default has occurredany invoices, Tenant payments or claims submitted by the Construction Manager or any of his payees pursuant to the execution of this Agreement. Such records subject to examination shall also include, but not be limited to, those records necessary to evaluate and verify direct and indirect costs as they may apply to reimbursable costs associated with this Agreement. All records shall be provided by Construction Manager within a reasonable period of time not to exceed 30 days following receipt of Owner’s written request. Construction Manager shall keep all records and supporting documentation which concern or relate to the work hereunder for a minimum of three (3) years from the date of termination of this Agreement or the date the Project is completed, whichever is later or such longer period of time as may be required by law. Construction Manager shall require all of its subcontractors to likewise retain all of their Project records and supporting documentation. Owner and any duly authorized agents or representatives of Owner, shall be provided access to all such records and supporting documentation at any and all times during normal business hours upon request by Owner. Further, Owner, and any duly authorized agents or representatives of Owner, shall have the right (“Audit Right”) toto audit, one time per calendar year during inspect and copy all of Construction Manager’s and any subcontractor’s Project records and documentation as often as they deem necessary and Construction Manager shall cooperate in any audit, inspection, or copying of the Lease Termdocuments. If at any time, Owner conducts such an audit Landlordof Construction Manager’s records and books used by Landlord documentation and finds that Construction Manager overcharged Owner for any compensation or costs incurred in determining the amount of Direct Expenses Tenant is obligated to Project, Construction Manager shall pay to Landlord for Owner the sole purpose Overcharged Amount which is defined as the total aggregate overcharged amount together with interest thereon (such interest to be established at the rate of verifying the accuracy of same (the “Audit”12% annum). Any Audit shall cover only one (1) calendar year during If the Term Overcharged Amount is equal to or greater than 3/8 of I% of the Leaseconstruction value, Construction Manager shall pay to Owner the Overcharged Amount and the Audit Amount which is defined as the total aggregate of Owner’s reasonable audit costs incurred as a result of its audit of Construction Manager. Tenant shall provide Landlord at least thirty (30) days prior written notice requesting Owner may recover the AuditOvercharged Amount and the Audit Amount, providedas applicable, however, that Tenant’s right, if any, from any amount due or owing Construction Manager with regard to exercise its Audit Right for any subject year shall expire sixty (60) days after the delivery to Tenant of the Direct Expense Statement for the calendar year, including the last year of the Lease Term, which Tenant desires to audit and, unless such right is exercised prior to such time, Tenant shall have waived its right to request such an Audit. Landlord shall make said books and records relevant to such Audit available to Tenant during Landlord’s customary business hours at the office of the property manager of the Project or at such other location designated by Landlord in writing.
(ii) Tenant shall pay all reasonable and necessary third party out-of-pocket costs for the Audit, including, without limitation, all of Landlord’s costs and expenses, including reasonable attorney and accountant fees.
(iii) The Audit shall only be conducted by a reputable accounting firm (“Accounting Firm”) approved in writing by Landlord. As a condition precedent to any such Audit, Tenant shall deliver to Landlord a copy of Tenant’s written agreement with such Accounting Firm, which agreement shall include provisions which state that: (A) Landlord is an intended third-party beneficiary of such agreement, (B) such Accounting Firm is not being engaged as a contingency or other incentive based auditor; (C) such Accounting Firm will not in any manner solicit or agree to represent under any other tenant of agreement between Construction Manager and Owner. If such amounts owed Construction Manager are insufficient to cover the Project with respect to an audit or other review of Landlord’s accounting records at the ProjectOvercharged Amount and Audit Amount, as applicable, then Construction Manager hereby acknowledges and (D) such Accounting Firm shall maintain in strict confidence any and all information obtained in connection with the Audit and shall not disclose such information to any person or entity other than to the management personnel of Tenant. The Accounting Firm, Landlord and Tenant shall enter into a confidentiality agreement in form and substance acceptable to Landlord whereby the Accounting Firm and Tenant shall covenant, among other things, agrees that the Accounting Firm and the Tenant shall keep the books and records of Landlord in strict confidence.
(iv) In the event that the amount of Direct Expenses paid by Tenant to Landlord exceed the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, and after such Audit is confirmed and accepted by Landlord, in Landlord’s reasonable discretion, such difference shall be applied to the next succeeding payment of Direct Expenses due by Tenant to Landlord. In the event that the amount of Direct Expenses paid by Tenant to Landlord is less than the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, Tenant it shall pay such difference remaining amounts to Landlord Owner within ten seven (107) business days of its receipt of Owner’s invoice for such determination.
(v) Nothing contained herein remaining amounts. In no event shall be construed as providing Tenant with any right the Overcharged Amount or option to examine any other books and records of Landlord or any of Landlord’s affiliated entities. Notwithstanding anything to the contrary contained herein, the Audit Right granted herein is personal Amount be deemed reimbursable to Construction Manager. . Construction Manager shall require all subcontractors, insurance agents, and material suppliers (payees) to comply with the originally named Tenantprovisions of this Article by insertion of the requirements hereof in any written contract agreement. Failure to obtain such written contracts, which include such provisions, shall be exercisable only by such originally named Tenant reason to exclude some or all of the related payees' costs from amounts payable to the Construction Manager pursuant to this Agreement. This Article, including all access, inspection, copying, auditing, reimbursement and may not be assigned or exercised by any assigneerepayment rights, sublessee or transferee shall survive the termination of Tenant’s interest in this Lease or any successor in interest to TenantAgreement.
Appears in 1 contract
Samples: Construction Manager Agreement
Audit Rights. Within 120 days after Landlord furnishes its statement of actual Operating Expenses for any calendar year (i) Provided that no Event of Default has occurredthe “Audit Election Period“), Tenant shall have the right (“Audit Right”) tomay, one time per calendar year during the Lease Termat its expense, elect to audit Landlord’s records and books used by Landlord in determining Operating Expenses for such calendar year only, subject to the amount of Direct Expenses Tenant is obligated to pay to Landlord for the sole purpose of verifying the accuracy of same (the “Audit”). Any Audit shall cover only one following conditions: (1) there is no uncured event of default under this Lease; (2) the audit shall be prepared by an independent certified public accounting firm of recognized local, regional, or national standing; (3) in no event shall any audit be performed by a firm retained on a “contingency fee” basis; (4) the audit shall commence within 30 days after Landlord makes Landlord’s books and records available to Tenant’s auditor at Landlord’s management office in the Building and shall conclude within 90 days after commencement, provided that Landlord has cooperated with Tenant and Tenant’s auditor’s reasonable requests; (5) the audit shall be conducted during Landlord’s normal business hours at the location where Landlord maintains its books and records and shall not unreasonably interfere with the conduct of Landlord’s business; and (6) Tenant and its accounting firm shall treat any audit in a confidential manner and shall each execute Landlord’s confidentiality agreement for Landlord’s benefit prior to commencing the audit. This paragraph shall not be construed to limit, suspend, or xxxxx Tenant’s obligation to pay Rent when due, including the OE Payment. If the audit proves that Landlord’s calculation of Tenant’s Pro Rata Share of Operating Expenses for the calendar year during under inspection was overstated by more than five percent (5%), then, after verification, Landlord shall pay Tenant’s actual reasonable out-of-pocket audit and inspection fees applicable to the Term review of the Lease. Tenant shall provide Landlord at least said calendar year statement within thirty (30) days prior written notice requesting the Audit, provided, however, that after receipt of Tenant’s right, if any, to exercise its Audit Right for any subject year shall expire sixty (60) days after the delivery to Tenant of the Direct Expense Statement for the calendar year, including the last year of the Lease Term, which Tenant desires to audit and, unless such right is exercised prior to such time, Tenant shall have waived its right to request such an Auditinvoice therefor. Landlord shall make said books credit any overpayment determined by the final approved audit report against the next Rent due and records relevant to owing by Tenant or, if no further Rent is due, refund such Audit available overpayment directly to Tenant during Landlord’s customary business hours at the office within 30 days of the property manager of the Project or at such other location designated by Landlord in writing.
(ii) Tenant shall pay all reasonable and necessary third party out-of-pocket costs for the Audit, including, without limitation, all of Landlord’s costs and expenses, including reasonable attorney and accountant fees.
(iii) The Audit shall only be conducted by a reputable accounting firm (“Accounting Firm”) approved in writing by Landlorddetermination. As a condition precedent to any such Audit, Tenant shall deliver to Landlord a copy of Tenant’s written agreement with such Accounting Firm, which agreement shall include provisions which state that: (A) Landlord is an intended third-party beneficiary of such agreement, (B) such Accounting Firm is not being engaged as a contingency or other incentive based auditor; (C) such Accounting Firm will not in any manner solicit or agree to represent any other tenant of the Project with respect to an audit or other review of Landlord’s accounting records at the Project, and (D) such Accounting Firm shall maintain in strict confidence any and all information obtained in connection with the Audit and shall not disclose such information to any person or entity other than to the management personnel of Tenant. The Accounting Firm, Landlord and Tenant shall enter into a confidentiality agreement in form and substance acceptable to Landlord whereby the Accounting Firm and Tenant shall covenant, among other things, that the Accounting Firm and the Tenant shall keep the books and records of Landlord in strict confidence.
(iv) In the event that the amount of Direct Expenses paid by Tenant to Landlord exceed the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, and after such Audit is confirmed and accepted by Landlord, in Landlord’s reasonable discretion, such difference shall be applied to the next succeeding payment of Direct Expenses due by Tenant to Landlord. In the event that the amount of Direct Expenses paid by Tenant to Landlord is less than the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the AuditLikewise, Tenant shall pay such difference to Landlord any underpayment determined by the final approved audit report within ten (10) 30 days of such determination.
(v) Nothing contained herein . The foregoing obligations shall survive the expiration or termination of this Lease. If Tenant does not give written notice of its election to audit Landlord’s Operating Expenses during the Audit Election Period, Landlord’s Operating Expenses for the applicable calendar year shall be construed as providing deemed approved for all purposes, and Tenant with shall have no further right to review or contest the same. Provided however, if any audit determines that Tenant has been overcharged by more than five percent (5%), Tenant’s audit rights shall extend back to previous two lease years. The right or option to examine any other books and records of Landlord or any of Landlord’s affiliated entities. Notwithstanding anything to the contrary contained herein, the Audit Right audit granted herein hereunder is personal to the originally initial Tenant named Tenant, shall be exercisable only by such originally named Tenant and may not be assigned or exercised by any assignee, sublessee or transferee of Tenant’s interest in this Lease or and to any successor in interest assignee under a Permitted Transfer (defined below) and shall not be available to Tenantany subtenant under a sublease of the Premises.
Appears in 1 contract
Audit Rights. Within 60 days after Landlord furnishes its statement of actual Operating Expenses for any calendar year (iincluding the Base Year) Provided that (the “Audit Election Period”), Tenant may, at its expense (except as otherwise set forth below), elect to audit Landlord’s Operating Expenses for such calendar year only, subject to the following conditions: (1) there is no Event uncured event of Default has occurreddefault under this Lease; (2) the audit shall be prepared by an independent certified public accounting firm of recognized national standing; (3) in no event shall any audit be performed by a firm retained on a “contingency fee” basis; (4) the audit shall commence within 60 days after Landlord makes Landlord’s books and records available to Tenant’s auditor and shall conclude within 90 days after commencement; (5) the audit shall be conducted during Landlord’s normal business hours at the location where Landlord maintains its books and records and shall not unreasonably interfere with the conduct of Landlord’s business; (6) Tenant and its accounting firm shall treat any audit in a confidential manner and shall each execute Landlord’s confidentiality agreement for Landlord’s benefit prior to commencing the audit; and (7) the accounting firm’s audit report shall, at no charge to Landlord, be submitted in draft form for Landlord’s review and comment before the final approved audit report is delivered to Landlord, and any reasonable comments by Landlord shall accompany the final audit report. This paragraph shall not be construed to limit, suspend, or xxxxx Tenant’s obligation to pay Rent when due, including estimated Excess Operating Expenses. Landlord shall credit any overpayment determined by the final approved audit report against the next Rent due and owing by Tenant or, if no further Rent is due, refund such overpayment directly to Tenant within 30 days of determination. Likewise, Tenant shall have pay Landlord any underpayment determined by the right (“Audit Right”) to, one time per calendar year during final approved audit report within 30 days of determination. The foregoing obligations shall survive the Lease Term, expiration or termination of this Lease. If Tenant does not give written notice of its election to audit Landlord’s records and books used by Landlord in determining Operating Expenses during the amount of Direct Audit Election Period, Landlord’s Operating Expenses Tenant is obligated to pay to Landlord for the sole purpose of verifying the accuracy of same (the “Audit”). Any Audit shall cover only one (1) applicable calendar year during shall be deemed approved for all purposes, and Tenant shall have no further right to review or contest the Term same. The right to audit granted hereunder is personal to the initial Tenant named in this Lease and to any assignee under a Permitted Transfer (defined below) and shall not be available to any subtenant under a sublease of the LeasePremises. Tenant If the audit proves that Landlord’s calculation of Operating Expenses for the calendar year under inspection was overstated by more than five percent (5%), then, after verification, Landlord shall provide Landlord at least pay Tenant’s actual reasonable out-of-pocket audit and inspection fees applicable to the review of said calendar year statement within thirty (30) days prior written notice requesting the Audit, provided, however, that Tenant’s right, if any, to exercise its Audit Right for any subject year shall expire sixty (60) days after the delivery to Tenant of the Direct Expense Statement for the calendar year, including the last year of the Lease Term, which Tenant desires to audit and, unless such right is exercised prior to such time, Tenant shall have waived its right to request such an Audit. Landlord shall make said books and records relevant to such Audit available to Tenant during Landlord’s customary business hours at the office of the property manager of the Project or at such other location designated by Landlord in writing.
(ii) Tenant shall pay all reasonable and necessary third party out-of-pocket costs for the Audit, including, without limitation, all of Landlord’s costs and expenses, including reasonable attorney and accountant fees.
(iii) The Audit shall only be conducted by a reputable accounting firm (“Accounting Firm”) approved in writing by Landlord. As a condition precedent to any such Audit, Tenant shall deliver to Landlord a copy receipt of Tenant’s written agreement with such Accounting Firm, which agreement shall include provisions which state that: (A) Landlord is an intended third-party beneficiary of such agreement, (B) such Accounting Firm is not being engaged as a contingency or other incentive based auditor; (C) such Accounting Firm will not in any manner solicit or agree to represent any other tenant of the Project with respect to an audit or other review of Landlord’s accounting records at the Project, and (D) such Accounting Firm shall maintain in strict confidence any and all information obtained in connection with the Audit and shall not disclose such information to any person or entity other than to the management personnel of Tenant. The Accounting Firm, Landlord and Tenant shall enter into a confidentiality agreement in form and substance acceptable to Landlord whereby the Accounting Firm and Tenant shall covenant, among other things, that the Accounting Firm and the Tenant shall keep the books and records of Landlord in strict confidenceinvoice therefor.
(iv) In the event that the amount of Direct Expenses paid by Tenant to Landlord exceed the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, and after such Audit is confirmed and accepted by Landlord, in Landlord’s reasonable discretion, such difference shall be applied to the next succeeding payment of Direct Expenses due by Tenant to Landlord. In the event that the amount of Direct Expenses paid by Tenant to Landlord is less than the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, Tenant shall pay such difference to Landlord within ten (10) days of such determination.
(v) Nothing contained herein shall be construed as providing Tenant with any right or option to examine any other books and records of Landlord or any of Landlord’s affiliated entities. Notwithstanding anything to the contrary contained herein, the Audit Right granted herein is personal to the originally named Tenant, shall be exercisable only by such originally named Tenant and may not be assigned or exercised by any assignee, sublessee or transferee of Tenant’s interest in this Lease or any successor in interest to Tenant.
Appears in 1 contract
Audit Rights. (i) Provided that no Event In the event of Default has occurredany dispute as to the amount of Tenant’s Proportionate Share of Operating Costs and Real Property Taxes, Tenant shall have the right may, by prior written notice (“Audit RightNotice”) to, one time per calendar year during the Lease Termgiven ninety (90) days following receipt of a Landlord’s reconciliation statement (“Audit Period”), audit Landlord’s accounting records with respect to Operating Expenses and books used Real Property Taxes relative to the year to which such statement relates. The audit shall be conducted by Landlord in determining the amount of Direct Expenses Tenant, or an accounting firm engaged by Tenant is obligated to pay and reasonably satisfactory to Landlord for the sole purpose of verifying the accuracy of same (the billing hourly and not on a contingency fee basis) (“AuditThird Party Auditor”), and shall be conducted at the office of Landlord at which its records are kept or, at Landlord’s election, the office of Landlord’s property manager (if any). Any Audit The audit shall cover only one be conducted at reasonable times during normal business hours. In no event will Landlord or its property manager be required to (1i) calendar year during photocopy any accounting records or other items or contracts, (ii) create any ledgers or schedules not already in existence, (iii) incur any costs or expenses relative to such inspection, or (iv) perform any other tasks other than making available such accounting records as aforesaid. Neither Tenant nor its auditor may leave the Term office of Landlord with originals of any materials supplied by Landlord. Tenant must pay Tenant’s Proportionate Share of Operating Costs and Real Property Taxes when due pursuant to the terms of this Lease and may not withhold payment of Operating Costs, Real Property Taxes or any other Rent pending results of the Leaseaudit or during a dispute regarding Operating Costs and Real Property Taxes. The audit must be completed within ninety (90) days of the date of Tenant’s Audit Notice and the results of such audit shall be delivered to Landlord within forty-five (45) days of the date of Tenant’s Audit Notice. If Tenant shall provide does not substantially comply with any of the aforementioned time frames, then the Landlord’s statement will be conclusively binding on Tenant. If such audit or review correctly reveals that Landlord at least has overcharged Tenant, then within thirty (30) days prior written notice requesting after the Auditresults of such audit are made available to Landlord, provided, however, that the amount of such overcharge shall be deducted from the installments of Tenant’s rightShare of Operating Costs and Real Property Taxes next becoming due. If the audit reveals that Tenant was undercharged, if any, to exercise its Audit Right for any subject year shall expire sixty then within thirty (6030) days after the delivery to Tenant results of the Direct Expense Statement for the calendar year, including the last year of the Lease Term, which Tenant desires audit are made available to audit and, unless such right is exercised prior to such timeTenant, Tenant shall have waived its right agrees to request such an Audit. reimburse Landlord shall make said books and records relevant to such Audit available to Tenant during Landlord’s customary business hours at the office of the property manager of the Project or at such other location designated by Landlord in writing.
(ii) Tenant shall pay all reasonable and necessary third party out-of-pocket costs for the Audit, including, without limitation, all of Landlord’s costs and expenses, including reasonable attorney and accountant fees.
(iii) The Audit shall only be conducted by a reputable accounting firm (“Accounting Firm”) approved in writing by Landlord. As a condition precedent to any such Audit, Tenant shall deliver to Landlord a copy of Tenant’s written agreement with such Accounting Firm, which agreement shall include provisions which state that: (A) Landlord is an intended third-party beneficiary of such agreement, (B) such Accounting Firm is not being engaged as a contingency or other incentive based auditor; (C) such Accounting Firm will not in any manner solicit or agree to represent any other tenant of the Project with respect to an audit or other review of Landlord’s accounting records at the Project, and (D) such Accounting Firm shall maintain in strict confidence any and all information obtained in connection with the Audit and shall not disclose such information to any person or entity other than to the management personnel of Tenant. The Accounting Firm, Landlord and Tenant shall enter into a confidentiality agreement in form and substance acceptable to Landlord whereby the Accounting Firm and Tenant shall covenant, among other things, that the Accounting Firm and the Tenant shall keep the books and records of Landlord in strict confidence.
(iv) In the event that the amount of Direct Expenses paid by such undercharge. Tenant agrees to keep the results of the audit confidential and will cause its agents, employees and contractors to keep such results confidential. To that end, Landlord exceed the actual amount of Direct Expenses owed by may require Tenant and its auditor to Landlord as disclosed by the Audit, and after such Audit is confirmed and accepted execute a commercially reasonable confidentiality agreement provided by Landlord, in Landlord’s reasonable discretion, such difference shall be applied to the next succeeding payment of Direct Expenses due by Tenant to Landlord. In the event that the amount of Direct Expenses paid by Tenant to Landlord is less than the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, Tenant shall pay such difference to Landlord within ten (10) days of such determination.
(v) Nothing contained herein shall be construed as providing Tenant with any right or option to examine any other books and records of Landlord or any of Landlord’s affiliated entities. Notwithstanding anything to the contrary contained herein, the Audit Right granted herein is personal to the originally named Tenant, shall be exercisable only by such originally named Tenant and may not be assigned or exercised by any assignee, sublessee or transferee of Tenant’s interest in this Lease or any successor in interest to Tenant.
Appears in 1 contract
Samples: Office Lease Agreement (Cognition Therapeutics Inc)
Audit Rights. Every statement given by Landlord pursuant to Section 4.3 shall be conclusive and binding upon Tenant unless within twenty-four (i24) Provided that no Event months after the receipt of Default has occurred, such statement Tenant shall have notify Landlord that it disputes the right correctness thereof. During the period of twenty-four (“Audit Right”24) to, one time per calendar year during the Lease Term, audit months after receipt of Landlord’s records and books used by Landlord in determining the amount of Direct Expenses Tenant Statement, Tenant’s advisor, which is obligated to pay to Landlord not compensated on a contingency basis may, for the sole purpose of verifying the accuracy of same (Common Area Expenses, inspect the “Audit”). Any Audit shall cover only one (1) calendar year during the Term records of the Leasematerial reflected in Landlord’s Statement, including such materials and statements for previous years, as applicable, at a reasonable time mutually-agreeable to Landlord and Tenant. Tenant The parties recognize the confidential nature of Landlord’s books and records and hence agree that before Landlord shall provide Landlord at least thirty (30) days prior written notice requesting the Audit, provided, however, that afford Tenant’s right, if any, advisor reasonable access to exercise its Audit Right for any subject year shall expire sixty (60) days after the delivery to Tenant of the Direct Expense Statement for the calendar yearLandlord’s books and records, including the last year copying of said material in order to complete a thorough analysis of the Lease Term, which Tenant desires to audit and, unless such right is exercised prior to such timeexpenses, Tenant shall have waived and its right to request such an Audit. Landlord shall make said books and records relevant to such Audit available to Tenant during Landlord’s customary business hours at the office of the property manager of the Project or at such other location designated by Landlord in writing.
(ii) Tenant shall pay all reasonable and necessary third party out-of-pocket costs for the Audit, including, without limitation, all of Landlord’s costs and expenses, including reasonable attorney and accountant fees.
(iii) The Audit shall only be conducted by a reputable accounting firm (“Accounting Firm”) approved in writing by Landlord. As a condition precedent to any such Audit, Tenant shall deliver to Landlord a copy of Tenant’s written agreement with such Accounting Firm, which agreement shall include provisions which state that: (A) Landlord is an intended third-party beneficiary of such agreement, (B) such Accounting Firm is not being engaged as a contingency or other incentive based auditor; (C) such Accounting Firm will not in any manner solicit or agree to represent any other tenant of the Project with respect to an audit or other review of Landlord’s accounting records at the Project, and (D) such Accounting Firm shall maintain in strict confidence any and all information obtained in connection with the Audit and shall not disclose such information to any person or entity other than to the management personnel of Tenant. The Accounting Firm, Landlord and Tenant advisor shall enter into a confidentiality agreement in form and substance acceptable reasonably satisfactory to Landlord Landlord, whereby the Accounting Firm Tenant and Tenant its advisor shall covenantagree, among other things, that the Accounting Firm and the Tenant shall keep the as a condition precedent to their review of such books and records records, not to disclose any of Landlord the information disclosed in strict confidence.
connection with such review to any third person or entity (iv) In the event that the amount subject to standard nondisclosure exceptions, including without limitation, disclosures ordered by a court or otherwise required to comply with Applicable Laws). Failure of Direct Expenses paid by Tenant to Landlord exceed the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, and after such Audit is confirmed and accepted by Landlord, challenge any item in Landlord’s reasonable discretion, such difference Statement within twenty four (24) months after Tenant’s receipt of Landlord’s Statement shall be applied construed as a waiver of Tenant’s right to the next succeeding payment of Direct Expenses due by Tenant to Landlordchallenge such items. In the event Tenant’s audit of Landlord’s Statement discloses discrepancies, Tenant shall disclose the results of such audit to Landlord. Landlord shall have a period of sixty (60) days to review Tenant’s audit reports and determine if Landlord disputes such reports. If Landlord disputes the results of Tenant’s audit reports, Landlord shall give written notice of such disputes within such sixty (60) day period. Landlord and Tenant shall work in good faith to resolve any disagreements resulting from Tenant’s audit. If Landlord and Tenant cannot resolve such disputes within thirty (30) days of the date Landlord gives notice to Tenant of Landlord’s dispute, either Party may refer the decision of the issues raised, if any, to a reputable, nationally-recognized independent firm of certified public accountants (or other organization whose core competency is deemed to be within this specialty area) selected by Tenant and reasonably approved by Landlord. The selected firm shall be deemed to be acting as an expert and not as an arbitrator, and a determination signed by the selected expert shall be final and binding on both Landlord and Tenant. Landlord shall afford such expert reasonable access to Landlord’s books and records to the extent such expert deems necessary in order to reach their decision, which decision shall be rendered by the expert within thirty (30) days of the date the expert is retained. In connection therewith, Tenant and such expert shall execute and deliver to Landlord a confidentiality agreement, in form and substance reasonably satisfactory to Landlord, whereby such parties shall agree not to disclose any of the information disclosed in connection with such review to any third person or entity (subject to standard nondisclosure exceptions, including without limitation, disclosures ordered by a court or otherwise required to comply with Applicable Laws). Notwithstanding the foregoing, in the event Tenant’s advisor shall determine (and such determination is not successfully challenged by Landlord within thirty (30) days following Landlord’s receipt of written notice of such determination), or the expert mutually selected by Landlord and Tenant as provided above shall determine, that Landlord’s Statement for the subject year or any previous years, if applicable, has overcharged Tenant for Common Area Expenses, then Landlord shall refund or credit to Tenant the amount of Direct the overcharge. If such audit shall determine that Landlord has overstated actual Common Area Expenses paid by more than five percent (5%), Landlord shall, in addition, reimburse Tenant for the reasonable out-of-pocket expenses incurred by Tenant to in connection with such audit (including the out of pocket costs of retaining its advisor) and, if applicable, expert review. If such audit and, if applicable, expert review, shall determine that (1) Landlord is has not overstated actual Common Area Expenses, or (2) has overstated actual Common Area Expenses by less than the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Auditfive percent (5%) then, Tenant shall pay such difference to Landlord within ten (10) days the costs of such determination.
audit (vincluding the out of pocket costs of retaining its advisor) Nothing contained herein shall be construed as providing Tenant with any right or option to examine any other books and records of Landlord or any of Landlord’s affiliated entities. Notwithstanding anything to the contrary contained hereinand, if applicable, the Audit Right granted herein is personal to the originally named Tenant, shall be exercisable only by such originally named Tenant and may not be assigned or exercised by any assignee, sublessee or transferee of Tenant’s interest in this Lease or any successor in interest to Tenantexpert review.
Appears in 1 contract
Samples: Lease Agreement (Skullcandy, Inc.)
Audit Rights. Within ninety (i90) Provided that no Event days after receipt of Default has occurredany Landlord’s Expense Statement or Landlord’s Tax Statement, Tenant shall have the right (“Audit Right”) toto audit, one time per calendar year during the Lease Term, audit at Landlord’s office located in the San Francisco Bay Area, at Tenant’s expense, Landlord’s accounts and records relating to Expenses and books used Real Estate Taxes. Such audit shall be conducted by an independent certified public accountant approved by Landlord, which approval shall not be unreasonably withheld so long as such accountant is not being paid on a contingency fee or similar basis. If such audit reveals that Landlord has overcharged Tenant, Tenant shall notify Landlord within one hundred twenty (120) days after the date the applicable Landlord’s Expense Statement or Landlord’s Tax Statement was received by Tenant. Landlord may dispute such audit by arbitration pursuant to Paragraph 40 [Arbitration of Disputes]. If Landlord does not dispute such amount, or if Tenant prevails in determining any such arbitration, the amount of Direct Expenses overcharged shall be paid to Tenant is obligated to pay to Landlord for the sole purpose of verifying the accuracy of same (the “Audit”). Any Audit shall cover only one (1) calendar year during the Term of the Lease. Tenant shall provide Landlord at least within thirty (30) days prior written notice requesting thereafter, together with interest thereon at the Audit, provided, however, that Tenant’s right“prime rate” of interest announced by the Wall Street Journal for Xxxxx Fargo Bank (or, if anyXxxxx Fargo Bank ceases to exist, by another bank mutually acceptable to exercise its Audit Right for Landlord and Tenant), from the date Landlord’s Expense Statement or Landlord’s Tax Statement, as applicable, was delivered to Tenant until payment of the overcharge is made to Tenant. In addition, if Landlord’s Expense Statement or Landlord’s Tax Statement, as applicable, exceeds the actual Expenses and Real Estate Taxes which should have been charged to Tenant by more than five percent (5%), the cost of the audit shall be paid by Landlord. If Tenant fails to object to any subject year shall expire sixty Landlord’s Expense Statement or Landlord’s Tax Statement within one hundred twenty (60120) days after the delivery to Tenant of the Direct Expense Statement for the calendar yearreceipt thereof, including the last year of the Lease Term, which Tenant desires to audit and, unless such right is exercised prior to such time, Tenant statement shall have waived its right to request such an Audit. Landlord shall make said books and records relevant to such Audit available to Tenant during Landlord’s customary business hours at the office of the property manager of the Project or at such other location designated by Landlord in writing.
(ii) Tenant shall pay all reasonable and necessary third party out-of-pocket costs for the Audit, including, without limitation, all of Landlord’s costs and expenses, including reasonable attorney and accountant fees.
(iii) The Audit shall only be conducted by a reputable accounting firm (“Accounting Firm”) approved in writing by Landlord. As a condition precedent to any such Audit, Tenant shall deliver to Landlord a copy of Tenant’s written agreement with such Accounting Firm, which agreement shall include provisions which state that: (A) Landlord is an intended third-party beneficiary of such agreement, (B) such Accounting Firm is not being engaged as a contingency or other incentive based auditor; (C) such Accounting Firm will not in any manner solicit or agree to represent any other tenant of the Project with respect to an audit or other review of Landlord’s accounting records at the Project, and (D) such Accounting Firm shall maintain in strict confidence any and all information obtained in connection with the Audit final and shall not disclose such information be subject to any person audit, challenge or entity other than to the management personnel of Tenant. The Accounting Firm, Landlord and Tenant shall enter into a confidentiality agreement in form and substance acceptable to Landlord whereby the Accounting Firm and Tenant shall covenant, among other things, that the Accounting Firm and the Tenant shall keep the books and records of Landlord in strict confidenceadjustment.
(iv) In the event that the amount of Direct Expenses paid by Tenant to Landlord exceed the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, and after such Audit is confirmed and accepted by Landlord, in Landlord’s reasonable discretion, such difference shall be applied to the next succeeding payment of Direct Expenses due by Tenant to Landlord. In the event that the amount of Direct Expenses paid by Tenant to Landlord is less than the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, Tenant shall pay such difference to Landlord within ten (10) days of such determination.
(v) Nothing contained herein shall be construed as providing Tenant with any right or option to examine any other books and records of Landlord or any of Landlord’s affiliated entities. Notwithstanding anything to the contrary contained herein, the Audit Right granted herein is personal to the originally named Tenant, shall be exercisable only by such originally named Tenant and may not be assigned or exercised by any assignee, sublessee or transferee of Tenant’s interest in this Lease or any successor in interest to Tenant.
Appears in 1 contract
Audit Rights. During the Term or any extension thereof, but not more than one (i1) Provided that no Event of Default has occurredtime per year, Tenant shall have the right to cause Landlord's books and records with respect to Operating Expenses to be audited by an independent certified public accountant or a lease auditing firm of Tenant's choosing and reasonably acceptable to Landlord. Landlord shall cause such books and records to be made available for such inspection during such normal business hours and at such location where Landlord regularly keeps its books and records, upon ten (“Audit Right”10) todays' prior notification to Landlord. Such audit shall be done in accordance with generally accepted accounting principles, one time per calendar consistently applied. If, c-2 at the conclusion of such audit, Tenant's audit of such expenses for the preceding year during the Lease Termindicates that Tenant made an overpayment to Landlord for such preceding year, audit Landlord’s records and books used by Landlord in determining shall remit the amount of Direct Expenses such overpayment to Tenant is obligated to pay to Landlord for the sole purpose of verifying the accuracy of same (the “Audit”). Any Audit shall cover only one (1) calendar year during the Term of the Lease. Tenant shall provide Landlord at least within thirty (30) days prior written after receipt of notice requesting the Audit, provided, however, that Tenant’s right, if any, to exercise its Audit Right for any subject year shall expire sixty (60) days after the delivery to from Tenant of the Direct Expense Statement for amount of such overpayment in no Event of Default is then continuing. Should Landlord disagree with the calendar yearresults of Tenant's audit, including the last year of the Lease Term, which Tenant desires to audit and, unless such right is exercised prior to such time, Landlord and Tenant shall have waived its right refer the matter to request a mutually acceptable independent certified public accountant, who shall work in good faith with Landlord and Tenant to resolve the discrepancy. The fees and costs of such an Auditindependent accountant to which such dispute is referred shall be borne by the unsuccessful party and shall be shared pro rata to the extent each party is unsuccessful as determined by such independent certified public account, whose decision shall be final and binding. Landlord shall make said books pay the cost of Tenant's initial audit if Tenant's overpayment of such expenses exceeded seven and records relevant to such Audit available to Tenant during Landlord’s customary business hours at the office one-half percent (7.5%) or more of the property manager payment that should properly have been made. All of the Project or at such other location designated by Landlord in writing.
information obtained through Tenant's inspection with respect to financial matters (ii) Tenant shall pay all reasonable and necessary third party out-of-pocket costs for the Audit, including, without limitation, all of Landlord’s costs and costs, expenses, including reasonable attorney income) and accountant fees.
(iii) The Audit shall only be conducted by a reputable accounting firm (“Accounting Firm”) approved in writing by Landlord. As a condition precedent to any such Audit, Tenant shall deliver to Landlord a copy of Tenant’s written agreement with such Accounting Firm, which agreement shall include provisions which state that: (A) Landlord is an intended third-party beneficiary of such agreement, (B) such Accounting Firm is not being engaged as a contingency or other incentive based auditor; (C) such Accounting Firm will not in any manner solicit or agree to represent any other tenant matters pertaining to Landlord, the Demised Premises, the Building and/or the Project as well as any compromise, settlement, or adjustment reached between Landlord and Tenant relative to the results of the Project with respect to an audit or other review of Landlord’s accounting records at the Project, and (D) such Accounting Firm inspection shall maintain be held in strict confidence any by Tenant and all information obtained in connection with the Audit its officers, agents, and shall not disclose such information to any person or entity other than to the management personnel of Tenant. The Accounting Firm, Landlord employees; and Tenant shall enter into a confidentiality agreement in form use its best efforts to cause its independent professionals and substance acceptable to Landlord whereby the Accounting Firm and Tenant shall covenant, among other things, that the Accounting Firm and the Tenant shall keep the books and records of Landlord in strict confidence.
(iv) In the event that the amount of Direct Expenses paid by Tenant to Landlord exceed the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, and after such Audit is confirmed and accepted by Landlord, in Landlord’s reasonable discretion, such difference shall be applied to the next succeeding payment of Direct Expenses due by Tenant to Landlord. In the event that the amount of Direct Expenses paid by Tenant to Landlord is less than the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, Tenant shall pay such difference to Landlord within ten (10) days of such determination.
(v) Nothing contained herein shall be construed as providing Tenant with any right or option to examine any other books and records of Landlord or any of Landlord’s affiliated entities. Notwithstanding anything its officers, agents or employees to the contrary contained herein, the Audit Right granted herein is personal to the originally named Tenant, shall be exercisable only by such originally named Tenant and may not be assigned or exercised by any assignee, sublessee or transferee of Tenant’s interest in this Lease or any successor in interest to Tenantsimilarly bound.
Appears in 1 contract
Audit Rights. Seller agrees to make available to Buyer during normal business hours prior to and for a period of twelve (i12) Provided that no Event of Default has occurred, Tenant shall have the right (“Audit Right”) to, one time per calendar year during the Lease Term, audit Landlord’s records and books used by Landlord in determining the amount of Direct Expenses Tenant is obligated to pay to Landlord for the sole purpose of verifying the accuracy of same months following Closing (the “AuditRecords Period”). Any Audit shall cover only one (1) calendar year during any and all existing information and documents in the Term possession of the Lease. Tenant shall provide Landlord at least thirty (30) days prior written notice requesting the Audit, provided, however, Seller that TenantBuyer may reasonably require to comply with Buyer’s right, if any, to exercise its Audit Right for any subject year shall expire sixty (60) days after the delivery to Tenant of the Direct Expense Statement for the calendar year, including the last year of the Lease Term, which Tenant desires to audit and, unless such right is exercised prior to such time, Tenant shall have waived its right to request such an Audit. Landlord shall make said books or Buyer’s Affiliates tax and records relevant to such Audit available to Tenant during Landlord’s customary business hours at the office of the property manager of the Project or at such other location designated by Landlord in writing.
(ii) Tenant shall pay all reasonable financial reporting requirements and necessary third party out-of-pocket costs for the Auditaudits, including, without limitation, all filings with governmental authorities and filings that may be required by the Securities and Exchange Commission under the Securities Act of Landlord’s costs and expenses1933 and/or the Securities Exchange Act of 1934. Without limiting the generality of the foregoing, including Seller will use its commercially reasonable attorney and accountant fees.
(iii) The Audit shall only be conducted efforts during the Records Period to cooperate with the independent auditors chosen by a reputable accounting firm Buyer (“Accounting FirmBuyer’s Auditor”) approved in writing by Landlord. As a condition precedent connection with their audit or review of any revenue and expense statements of the Assets that Buyer or any of its Affiliates requires to comply with their tax, financial and other reporting requirements, and their review of any such Audit, Tenant shall deliver interim quarterly revenue and expense statements of the Assets that Buyer requires to Landlord a copy of Tenant’s written agreement comply with such Accounting Firmreporting requirements. Seller’s cooperation will include (i) such reasonable access during normal business hours to Seller’s employees, which agreement shall include provisions which state that: (A) Landlord is an intended third-party beneficiary representatives and agents who were responsible for preparing the revenue and expense statements and work papers and other supporting documents used in the preparation of such agreementfinancial statements as may be required by Buyer’s Auditor to perform an audit in accordance with generally accepted auditing standards or to otherwise verify such financial statements, and (Bii) delivery of one or more customary representation letters from Seller to Buyer’s Auditor that are requested by Buyer to allow such Accounting Firm auditors to complete an audit (or review of any interim quarterly financials), and to issue an opinion that in Buyer’s experience is not being engaged as a contingency or other incentive based auditor; (C) such Accounting Firm will not in any manner solicit or agree to represent any other tenant of the Project acceptable with respect to an its audit or other review review. By making available existing information and documents in the possession of Landlord’s accounting records at Seller during the ProjectRecords Period, and (D) Seller in no way represents or warrants the accuracy or completeness of such Accounting Firm shall maintain in strict confidence any and all information. If Buyer discovers there is information obtained in connection missing, Seller agrees to cooperate reasonably with the Audit and shall not disclose Buyer to request such information from third parties. Seller is under no obligation to any person update or entity correct such historical information or to assemble, create or produce additional financial, reserve or other than to the management personnel of Tenantinformation or analysis. The Accounting FirmBuyer will reimburse Seller, Landlord and Tenant shall enter into a confidentiality agreement in form and substance acceptable to Landlord whereby the Accounting Firm and Tenant shall covenant, among other things, that the Accounting Firm and the Tenant shall keep the books and records of Landlord in strict confidence.
(iv) In the event that the amount of Direct Expenses paid by Tenant to Landlord exceed the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, and after such Audit is confirmed and accepted by Landlord, in Landlord’s reasonable discretion, such difference shall be applied to the next succeeding payment of Direct Expenses due by Tenant to Landlord. In the event that the amount of Direct Expenses paid by Tenant to Landlord is less than the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, Tenant shall pay such difference to Landlord within ten (10) days of such determination.
(v) Nothing contained herein shall be construed as providing Tenant with any right or option to examine any other books and records of Landlord or any of Landlord’s affiliated entities. Notwithstanding anything to the contrary contained herein, the Audit Right granted herein is personal to the originally named Tenant, shall be exercisable only by such originally named Tenant and may not be assigned or exercised by any assignee, sublessee or transferee of Tenant’s interest in this Lease or any successor in interest to Tenant.ten
Appears in 1 contract
Samples: Purchase and Sale Agreement
Audit Rights. (ia) Provided that no Event of Default has occurredBioMedica may, Tenant shall have upon written notice to Orchard, appoint an internationally-recognised independent accounting firm (which is reasonably acceptable to Orchard (the right (“Audit RightAuditor”) to, one time per calendar year during the Lease Term, audit Landlord’s records and books used by Landlord in determining the amount of Direct Expenses Tenant is obligated to pay to Landlord for the sole purpose of verifying the accuracy of same any statement or report given to BioMedica under this Agreement. Before beginning its audit, the Auditor shall execute an undertaking acceptable to Orchard by which the Auditor shall keep confidential all information reviewed during such audit. [***].
(the “Audit”). Any Audit shall cover only one (1b) calendar year during the Term of the Lease. Tenant shall provide Landlord at least thirty (30) days prior written notice requesting the Audit, provided, however, that Tenant’s right, if any, to exercise Orchard and its Audit Right for any subject year shall expire sixty (60) days after the delivery to Tenant of the Direct Expense Statement for the calendar year, including the last year of the Lease Term, which Tenant desires to audit and, unless such right is exercised prior to such time, Tenant shall have waived its right to request such an Audit. Landlord Affiliates and sublicensees shall make said books and their records relevant to available for inspection by such Audit available to Tenant Auditor during Landlord’s customary regular business hours at such place or places where such records are customarily kept, upon receipt of reasonable advance notice from BioMedica. The records shall be reviewed solely to verify the office accuracy of the property manager of the Project any statement or at such other location designated by Landlord in writing.
(ii) Tenant shall pay all reasonable and necessary third party out-of-pocket costs for the Auditreport given to BioMedica under this Agreement. [***]. In addition, including, without limitation, all of Landlord’s costs and expenses, including reasonable attorney and accountant fees.
(iii) The Audit BioMedica shall only be conducted by a reputable accounting firm (“Accounting Firm”) approved in writing by Landlord. As a condition precedent entitled to any such Audit, Tenant shall deliver to Landlord a copy of Tenant’s written agreement with such Accounting Firm, which agreement shall include provisions which state that: (A) Landlord is an intended third-party beneficiary of such agreement, (B) such Accounting Firm is not being engaged as a contingency or other incentive based auditor; (C) such Accounting Firm will not in any manner solicit or agree to represent any other tenant of audit the Project with respect to an audit or other review of Landlord’s accounting records at the Project, and (D) such Accounting Firm shall maintain in strict confidence any and all information obtained in connection with the Audit and shall not disclose such information to any person or entity other than to the management personnel of Tenant. The Accounting Firm, Landlord and Tenant shall enter into a confidentiality agreement in form and substance acceptable to Landlord whereby the Accounting Firm and Tenant shall covenant, among other things, that the Accounting Firm and the Tenant shall keep the relevant books and records of Landlord Orchard, its Affiliates and sublicensees for a period of [***] after receipt of the applicable report or statement. BioMedica agrees to hold in strict confidenceconfidence all information received and all information learned in the course of any audit or inspection, except to the extent necessary to enforce its rights under this Agreement or if disclosure is required by law, regulation or judicial order.
(ivc) The Auditor shall provide its audit report and basis for any determination to Orchard at the time such report is provided to BioMedica, before it is considered final. Orchard shall have the right to request a further determination by such Auditor as to matters which Orchard disputes within [***] following ***Confidential Treatment Requested*** Page | 20 28.11.2016 CONFIDENTIAL receipt of such report. Orchard will provide BioMedica and the Auditor with a reasonably detailed statement of the grounds upon which it disputes any findings in the audit report and the Auditor shall undertake to complete such further determination within [***] after the dispute notice is provided, which determination shall be limited to the disputed matters. The Parties agree that they shall use reasonable efforts, through the participation of finance representatives of both companies, to resolve any remaining dispute arising in relation to the Audit by good faith discussion.
(d) In the event that the final result of the inspection reveals an undisputed underpayment or overpayment by either Party, the underpaid or overpaid amount of Direct Expenses paid by Tenant to Landlord exceed the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, and after such Audit is confirmed and accepted by Landlord, in Landlord’s reasonable discretion, such difference shall be applied to the next succeeding payment of Direct Expenses due by Tenant to Landlord. In the event that the amount of Direct Expenses paid by Tenant to Landlord is less than the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, Tenant shall pay such difference to Landlord within ten (10) days of such determinationsettled promptly [***].
(ve) Nothing contained herein BioMedica shall be construed as providing Tenant with responsible for the Auditor’s charges unless the Auditor certifies that there is an overcharge, or under-reporting and underpayment, of more than [***] in aggregate amounts payable for any right or option to examine any other books and records Year, in which case Orchard shall pay the Auditor’s charges in respect of Landlord or any of Landlord’s affiliated entities. Notwithstanding anything to the contrary contained herein, the Audit Right granted herein is personal to the originally named Tenant, shall be exercisable only by such originally named Tenant and may not be assigned or exercised by any assignee, sublessee or transferee of Tenant’s interest in this Lease or any successor in interest to Tenantthat inspection.
Appears in 1 contract
Samples: Licence and Development Agreement
Audit Rights. (i) Provided that no Event Tenant notifies Landlord in accordance with the terms of Default has occurredParagraph 4(f) above that Tenant disputes a statement received from Landlord, Tenant or its CPA (as defined below) shall have the right (“Audit Right”) toright, one time per calendar year during the Lease Termat Tenant’s sole cost and expense, audit Landlord’s records and books used by Landlord in determining the amount of Direct Expenses provided that Tenant is obligated to pay to Landlord for the sole purpose of verifying the accuracy of same utilizes a Certified Public Accountant (the “AuditCPA”). Any Audit shall cover only one (1) calendar year during the Term of the Lease. Tenant shall provide Landlord , upon at least thirty (30) days’ prior notice to Landlord at any time during regular business hours to audit, to review and photocopy Landlord’s records pertaining to Expenses for the immediately previous calendar year only. Tenant shall retain a CPA who calculates its fees based upon hours actually worked (as opposed to any incentive, contingency or fee arrangement). Tenant shall complete the audit and present any disputed charges to Landlord, in writing, within six months of receipt of Landlord’s statement pursuant to Paragraph 4(d). If, following Landlord’s receipt of the audit and any disputed charges (the “Report Date”), Landlord disputes the findings contained therein, and Landlord and Tenant are not able to resolve their differences within thirty (30) days prior written notice requesting following the AuditReport Date, providedthe dispute shall be resolved by binding arbitration as follows: Landlord and Tenant shall each designate an independent certified public accountant, howeverwhich shall in turn jointly select a third independent Certified Public Accountant (the “Third CPA”). The Third CPA, that within thirty (30) days of selection, shall, at Tenant’s rightsole expense, audit the relevant records and certify the proper amount within. That certification shall be final and conclusive. If the Third CPA determines that the amount of Expenses billed to Tenant was incorrect, the appropriate party shall pay to the other party the deficiency or overpayment, as applicable, within thirty (30) days following delivery of the Third CPA’s decision, without interest. Tenant agrees to keep all information thereby obtained by Tenant confidential and to obtain the agreement of its CPA and the Third CPA to keep all such information confidential. Tenant shall provide a copy of such CPA agreements to Landlord promptly upon request. Notwithstanding anything herein to the contrary, if anysuch refund owing exceeds the aggregate amount properly payable by Tenant pursuant to the terms of this Lease by five percent (5%) or more, to exercise its Audit Right for any subject year shall expire sixty (60) days after the delivery to Tenant of the Direct Expense Statement for the calendar year, including the last year of the Lease Term, which Tenant desires to audit and, unless such right is exercised prior to such time, Tenant shall have waived its right to request such an Audit. then Landlord shall make said books and records relevant to such Audit available to Tenant during Landlord’s customary business hours at the office of the property manager of the Project or pay at such other location designated by Landlord in writing.
(ii) Tenant shall pay all time any reasonable and necessary third party out-of-pocket costs for audit expenses. For purposes of determining whether the Audit, including, without limitation, all of Landlord’s costs and expenses, including reasonable attorney and accountant fees.
(iii) The Audit shall only be conducted by a reputable accounting firm (“Accounting Firm”) approved in writing by Landlord. As a condition precedent to any such Audit, Tenant shall deliver to Landlord a copy of Tenant’s written agreement with such Accounting Firm, which agreement shall include provisions which state that: (A) Landlord is an intended third-party beneficiary of such agreement, (B) such Accounting Firm is not being engaged as a contingency or other incentive based auditor; (C) such Accounting Firm will not in any manner solicit or agree to represent any other tenant of the Project with respect to an audit or other review of Landlord’s accounting records at the Project, and (D) such Accounting Firm shall maintain in strict confidence any and all information obtained in connection with the Audit and shall not disclose such information to any person or entity other than to the management personnel of Tenant. The Accounting Firm, Landlord and Tenant shall enter into a confidentiality agreement in form and substance acceptable to Landlord whereby the Accounting Firm and Tenant shall covenant, among other things, that the Accounting Firm and the Tenant shall keep the books and records of Landlord in strict confidence.
(iv) In the event that the actual amount of Direct Expenses paid by Tenant to Landlord exceed during a calendar year exceeds the actual amount of Direct Expenses owed properly payable by Tenant hereunder by more than five percent (5%), the parties shall take into account amounts improperly included by Landlord in the calculation of Expenses, but shall exclude any amount attributable to Landlord as disclosed by a disagreement over or an improper determination of an amortization period. By way of example only, the Auditparties shall take into account an amount charged to Tenant but specifically excluded under the terms of this Lease, and after such Audit is confirmed and accepted by Landlord, in but shall disregard any excess amount improperly included within Expenses attributable to Landlord’s reasonable discretion, such difference shall be applied to the next succeeding payment utilization of Direct Expenses due by Tenant to Landlord. In the event that the amount of Direct Expenses paid by Tenant to Landlord is less than the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, Tenant shall pay such difference to Landlord within ten (10) days of such determinationan incorrect amortization period for capital expenses.
(v) Nothing contained herein shall be construed as providing Tenant with any right or option to examine any other books and records of Landlord or any of Landlord’s affiliated entities. Notwithstanding anything to the contrary contained herein, the Audit Right granted herein is personal to the originally named Tenant, shall be exercisable only by such originally named Tenant and may not be assigned or exercised by any assignee, sublessee or transferee of Tenant’s interest in this Lease or any successor in interest to Tenant.
Appears in 1 contract
Samples: Lease Agreement (Alliance Fiber Optic Products Inc)
Audit Rights. (a) For the purpose of the audit rights described herein, the individual Party subject to an audit in any given year will be referred to as the “Auditee” and the other Party who has certain and respective rights to audit the books and records of the Auditee pursuant to this Article 7.3 will be referred to as the “Audit Rights Holder” .
(b) Each Party may, upon request and at its expense (except as provided for herein), cause an internationally-recognized independent accounting firm selected by it (except one to whom the Auditee has some reasonable objection) (“Audit Team”) to audit the books and records of the other Party during ordinary business hours the correctness of any payment made or required to be made to or by such Party, and any report underlying such payment (or lack thereof), pursuant to the terms of this Agreement. The Audit Team shall execute an appropriate and customary confidentiality agreement with the Auditee.
(c) In respect of each audit of an Auditee’s books and records, the Audit Rights Holder must exercise its audit right such that all of the following conditions are met: (i) Provided that each Auditee is audited only once per year by a single Audit Team appointed by the Audit Rights Holder, (ii) no Event records for any given year for an Auditee may be audited more than once and (iii) an Audit Rights Holder shall only be entitled to audit books and records of Default has occurredthe Auditee from the *** calendar years prior to the calendar year in which the audit request is made.
(d) In order to initiate an audit for a particular calendar year, Tenant an Audit Right Holder must provide written notice to the Auditee. The Audit Rights Holder exercising its audit rights shall provide the Auditee with notice of one or more proposed dates of the audit not less than ***days prior to the first proposed date. The Auditee will reasonably accommodate the scheduling of such audit. The Auditee shall provide such audit team with full and complete access to the applicable books and records and otherwise reasonably co-operate with such audit.
(e) The audit report and basis for any determination by an Audit Team under this Article 7.3 shall be made available for review and comment by the Auditee, and the Auditee shall have the right right, at its expense, to request a further determination by such Audit Team as to matters which the Auditee disputes (“Audit Right”) to, one time per calendar year during the Lease Term, audit Landlord’s records and books used by Landlord in determining the amount of Direct Expenses Tenant is obligated to pay to Landlord for the sole purpose of verifying the accuracy of same (the “Audit”). Any Audit shall cover only one (1) calendar year during the Term of the Lease. Tenant shall provide Landlord at least be completed no more than thirty (30) days prior written notice requesting after the Auditfirst determination is provided to such Auditee and to be limited to the disputed matters). If the Parties disagree as to such further determination, provided, however, that Tenant’s right, if any, to exercise its the Audit Right for Holder and the Auditee shall mutually select an internationally-recognized independent accounting firm that shall make a final determination as to the remaining matters in dispute that shall be binding upon the Parties. Such accountants shall not disclose to the Audit Rights Holder any subject year shall expire sixty (60) days after information relating to the delivery to Tenant business of the Direct Expense Statement for Auditee except that which should properly have been contained in any report required hereunder or otherwise required to be disclosed to it to the calendar year, including extent necessary to verify the last year payments required to be made pursuant to the terms of the Lease Term, which Tenant desires to audit and, unless such right is exercised prior to such time, Tenant shall have waived its right to request such an Audit. Landlord shall make said books and records relevant to such Audit available to Tenant during Landlord’s customary business hours at the office of the property manager of the Project or at such other location designated by Landlord in writingthis Agreement.
(iif) Tenant If the audit shows any under-reporting or underpayment, or overcharging by any Party, that under-reporting, underpayment or overcharging shall pay all be reported to the Steering Committee and the underpaying or overcharging Party shall remit such underpayment or reimburse such overcompensation (together with interest as provided below with respect to any underpayment or overcharge) to the underpaid or overcharged Party(s) within 15 days of receiving the audit report. Further, if the audit for an annual period shows an under-reporting or underpayment or an overcharge by any Party for that period of (i) in excess of *** of the amounts properly determined, the underpaying or overcharging Party, as the case may be, shall reimburse the applicable underpaid or overcharged Audit Rights Holder conducting the audit for its respective audit fees and reasonable and necessary third party out-of-pocket costs for the Audit, including, without limitation, all of Landlord’s costs and expenses, including reasonable attorney and accountant fees.
(iii) The Audit shall only be conducted by a reputable accounting firm (“Accounting Firm”) approved in writing by Landlord. As a condition precedent to any such Audit, Tenant shall deliver to Landlord a copy of Tenant’s written agreement with such Accounting Firm, which agreement shall include provisions which state that: (A) Landlord is an intended third-party beneficiary of such agreement, (B) such Accounting Firm is not being engaged as a contingency or other incentive based auditor; (C) such Accounting Firm will not in any manner solicit or agree to represent any other tenant of the Project with respect to an audit or other review of Landlord’s accounting records at the Project, and (D) such Accounting Firm shall maintain in strict confidence any and all information obtained expenses in connection with the Audit and shall not disclose such information to any person or entity other than to the management personnel of Tenant. The Accounting Firmsaid audit, Landlord and Tenant shall enter into a confidentiality agreement in form and substance acceptable to Landlord whereby the Accounting Firm and Tenant shall covenant, among other things, that the Accounting Firm and the Tenant shall keep the books and records of Landlord in strict confidence.
(iv) In the event that the amount of Direct Expenses paid by Tenant to Landlord exceed the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, and after such Audit is confirmed and accepted by Landlord, in Landlord’s reasonable discretion, such difference which reimbursement shall be applied to the next succeeding payment of Direct Expenses due by Tenant to Landlord. In the event that the amount of Direct Expenses paid by Tenant to Landlord is less than the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, Tenant shall pay such difference to Landlord made within ten fifteen (1015) days of receiving appropriate invoices and other support for such determinationaudit-related costs.
(v) Nothing contained herein shall be construed as providing Tenant with any right or option to examine any other books and records of Landlord or any of Landlord’s affiliated entities. Notwithstanding anything to the contrary contained herein, the Audit Right granted herein is personal to the originally named Tenant, shall be exercisable only by such originally named Tenant and may not be assigned or exercised by any assignee, sublessee or transferee of Tenant’s interest in this Lease or any successor in interest to Tenant.
Appears in 1 contract
Samples: Research Collaboration License Agreement (Emisphere Technologies Inc)
Audit Rights. Tenant, within sixty (i60) Provided days after receiving Landlord’s statement of Expenses, may give Landlord written notice (“Review Notice”) that no Event Tenant intends to review Landlord’s records of Default has occurredthe Expenses for the calendar year to which the statement applies. Within a reasonable time after receipt of the Review Notice, Landlord shall make all pertinent records available for inspection that are reasonably necessary for Tenant to conduct its review. If any records are maintained at a location other than the management office for the Building, Tenant may either inspect the records at such other location or pay for the reasonable cost of copying and shipping the records. If Tenant retains an agent to review Landlord’s records, the agent must be with a CPA firm licensed to do business in the state or commonwealth where the Property is located and may not be an examiner of Tenant who is being paid by Tenant on a contingent fee basis. Tenant shall be solely responsible for all costs, expenses and fees incurred for the audit. Within ninety (90) days after the records are made available to Tenant, Tenant shall have the right to give Landlord written notice (an “Audit RightObjection Notice”) tostating in reasonable detail any objection to Landlord’s statement of Expenses for that year. If Tenant fails to give Landlord an Objection Notice within the ninety-(90)-day period or fails to provide Landlord with a Review Notice within the sixty-(60)-day period described above, one time per calendar year during Tenant shall be deemed to have approved Landlord’s statement of Expenses and shall be barred from raising any claims regarding the Lease Term, audit Expenses for that year. The records obtained by Tenant shall be treated as confidential. In no event shall Tenant be permitted to examine Landlord’s records or to dispute any statement of Expenses unless Tenant has paid and books used by Landlord in determining the amount of Direct Expenses Tenant is obligated continues to pay to Landlord for the sole purpose of verifying the accuracy of same (the “Audit”). Any Audit shall cover only one (1) calendar year during the Term of the Lease. Tenant shall provide Landlord at least thirty (30) days prior written notice requesting the Audit, provided, however, that Tenant’s right, if any, to exercise its Audit Right for any subject year shall expire sixty (60) days after the delivery to Tenant of the Direct Expense Statement for the calendar year, including the last year of the Lease Term, which Tenant desires to audit and, unless such right is exercised prior to such time, Tenant shall have waived its right to request such an Audit. Landlord shall make said books and records relevant to such Audit available to Tenant during Landlord’s customary business hours at the office of the property manager of the Project or at such other location designated by Landlord in writingall Rent when due.
(ii) Tenant shall pay all reasonable and necessary third party out-of-pocket costs for the Audit, including, without limitation, all of Landlord’s costs and expenses, including reasonable attorney and accountant fees.
(iii) The Audit shall only be conducted by a reputable accounting firm (“Accounting Firm”) approved in writing by Landlord. As a condition precedent to any such Audit, Tenant shall deliver to Landlord a copy of Tenant’s written agreement with such Accounting Firm, which agreement shall include provisions which state that: (A) Landlord is an intended third-party beneficiary of such agreement, (B) such Accounting Firm is not being engaged as a contingency or other incentive based auditor; (C) such Accounting Firm will not in any manner solicit or agree to represent any other tenant of the Project with respect to an audit or other review of Landlord’s accounting records at the Project, and (D) such Accounting Firm shall maintain in strict confidence any and all information obtained in connection with the Audit and shall not disclose such information to any person or entity other than to the management personnel of Tenant. The Accounting Firm, Landlord and Tenant shall enter into a confidentiality agreement in form and substance acceptable to Landlord whereby the Accounting Firm and Tenant shall covenant, among other things, that the Accounting Firm and the Tenant shall keep the books and records of Landlord in strict confidence.
(iv) In the event that the amount of Direct Expenses paid by Tenant to Landlord exceed the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, and after such Audit is confirmed and accepted by Landlord, in Landlord’s reasonable discretion, such difference shall be applied to the next succeeding payment of Direct Expenses due by Tenant to Landlord. In the event that the amount of Direct Expenses paid by Tenant to Landlord is less than the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, Tenant shall pay such difference to Landlord within ten (10) days of such determination.
(v) Nothing contained herein shall be construed as providing Tenant with any right or option to examine any other books and records of Landlord or any of Landlord’s affiliated entities. Notwithstanding anything to the contrary contained herein, the Audit Right granted herein is personal to the originally named Tenant, shall be exercisable only by such originally named Tenant and may not be assigned or exercised by any assignee, sublessee or transferee of Tenant’s interest in this Lease or any successor in interest to Tenant.
Appears in 1 contract
Audit Rights. (i) Provided that no Event of Default has occurred, Tenant shall have the right (“Audit Right”) to, one time per to inspect records of Landlord which are reasonably necessary for Tenant to conduct a review of the Operating Expenses for the Base Year and for each calendar year during the Lease Term, audit Landlord’s records and books used by Landlord in determining the amount of Direct Expenses Tenant is obligated to pay to Landlord for the sole purpose of verifying the accuracy of same (the “Audit”). Any Audit shall cover only one (1) calendar year during the Term of the Lease. Tenant shall provide Landlord at least thirty (30) days prior written notice requesting the Audit, provided, however, that Tenant’s right, if any, to exercise its Audit Right for any subject year shall expire sixty (60) days after the delivery to Tenant of the Direct Expense Statement for the calendar year, including the last year of the Lease Term, which Tenant desires to audit and, unless such right is exercised prior to such time, Tenant shall have waived its right to request such an Auditthereafter. Landlord shall make said books such records for the Base Year and records relevant to such Audit each calendar year thereafter available to Tenant and its representatives electronically or during Landlord’s customary normal business hours at the office of the property manager of the Project or at such other location designated by Landlord in writing.
(which shall be within a reasonable vicinity of the Building). Subject to the foregoing, any such inspection shall be subject to the following conditions: (i) such inspection must be commenced within one hundred and eighty (180) days following Tenant’s receipt of an Annual Operating Expense Adjustment (or Tenant’s right to such inspection shall be waived) except that for the Operating Statement for the Base Year, such inspection must be commenced within one hundred eighty (180) days following Tenant’s receipt of the Operating Statement for the second (2nd) calendar year after the Base Year, and only one (1) such inspection may be performed with respect to any calendar year, (ii) Tenant shall pay all reasonable and necessary third party out-of-pocket costs for the Auditprovide Landlord with at least fifteen (15) days’ prior written notice of such inspection, including, without limitation, all of Landlord’s costs and expenses, including reasonable attorney and accountant fees.
(iii) The Audit any such inspection shall only be performed on a non-contingency basis, (iv) any such inspection shall be conducted at the office of the property manager designated by a reputable accounting firm Landlord and shall be conducted during normal business hours, (“Accounting Firm”v) approved in writing by Landlord. As a condition precedent to any such Auditinspection shall be at the sole cost and expense of Tenant (provided, however, that if Tenant’s inspection (or the below audit) reveals that Tenant has been overcharged by more than four percent (4%), then (a) Landlord shall deliver pay up to Landlord a copy $2,000.00 of Tenant’s written agreement reasonable third party costs and expenses actually incurred in connection with such Accounting Firmreview) and (b) Tenant shall be entitled to inspect and review Operating Expenses for any of the immediately preceding three (3) calendar years to the extent same have not been previously inspected, which agreement shall include provisions which state that: notwithstanding the limitations otherwise set forth in sub-section (Ai) Landlord is an intended third-party beneficiary of such agreementabove, (Bvi) such Accounting Firm is not being engaged in no event shall Tenant’s rights hereunder relieve Tenant of its obligation to pay all amounts due as a contingency or other incentive based auditor; and when provided in this Lease, (Cvii) such Accounting Firm Tenant agrees that it will not disclose, but will keep in any manner solicit strict confidence, the information furnished to Tenant by Landlord, but nothing herein shall prohibit Tenant from making such disclosures as necessary to Tenant’s employees, agents, attorneys, accountants, subtenants (and prospective subtenants) and assignees (and prospective assignees) and otherwise as necessary to prosecute its claim or agree to represent any other tenant of the Project comply with Applicable Laws; and (viii) in no event shall Tenant be entitled to conduct such inspection if Tenant is then in Default with respect to an audit or other review of Landlord’s accounting records at the Project, and (D) such Accounting Firm shall maintain in strict confidence any and all information obtained in connection with the Audit and shall not disclose such information to any person or entity other than to the management personnel of Tenant. The Accounting Firm, Landlord and Tenant shall enter into a confidentiality agreement in form and substance acceptable to Landlord whereby the Accounting Firm and Tenant shall covenant, among other things, that the Accounting Firm and the Tenant shall keep the books and records of Landlord in strict confidence.
(iv) In the event that the amount of Direct Expenses paid by Tenant to Landlord exceed the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, and after such Audit is confirmed and accepted by Landlord, in Landlord’s reasonable discretion, such difference shall be applied to the next succeeding payment of Direct Expenses due by Tenant to Landlordits obligations under this Lease. In the event that Landlord disputes the amount results of Direct Expenses paid by Tenant Tenant’s inspection, and the parties cannot in good faith agree upon the actual applicable charges, such matter shall be submitted to an independent certified public accountant mutually acceptable to Landlord is less than and Tenant, whose determination of the actual amount charges shall be binding. The cost of Direct Expenses owed by Tenant to Landlord as disclosed such independent audit shall be borne by the Auditparty whose determination of Operating Expenses was further from the determination made by the independent auditor. Following the final resolution of Tenant’s inspection, Tenant shall pay such difference to Landlord or Landlord shall credit Tenant’s account (or, if such adjustment occurs at the end of the Lease Term, pay to Tenant), as the case may be, within ten thirty (1030) days of such determination.
(v) Nothing contained herein the final resolution, the amount of any excess or deficiency. This Section 3.05 shall be construed as providing Tenant with any right or option to examine any other books and records of Landlord survive the expiration or any earlier termination of Landlord’s affiliated entities. Notwithstanding anything to the contrary contained herein, the Audit Right granted herein is personal to the originally named Tenant, shall be exercisable only by such originally named Tenant and may not be assigned or exercised by any assignee, sublessee or transferee of Tenant’s interest in this Lease or any successor in interest to TenantLease.
Appears in 1 contract
Samples: Office Lease (Channeladvisor Corp)
Audit Rights. (i) Provided that no Event of Default has occurredIf Tenant disputes the amount set forth in a given Operating Costs and Tax Statement, Tenant shall have the right (“Audit Right”) toright, one time per at Tenant’s sole expense, to cause Landlord’s books and records with respect to the particular calendar year during that is the Lease Termsubject of that particular Operating Costs and Tax Statement to be audited by a certified accountant selected by Tenant from a certified public accounting firm licensed in the state of Texas, audit Landlord’s records provided (i) there is no Event of Default, and books used by Landlord in determining the amount of Direct Expenses (ii) Tenant is obligated to pay to Landlord for the sole purpose of verifying the accuracy of same delivers written notice (the “AuditAudit Notice”) to Landlord on or prior to the date that is ninety (90) days after Landlord delivers the Operating Costs and Tax Statement in question to Tenant (such 90-day period, the “Response Period”). Any If Tenant fails to timely deliver an Audit shall cover only one (1) Notice with respect to a given Operating Costs and Tax Statement, then Tenant’s right to undertake an Audit with respect to that Operating Costs and Tax Statement and the calendar year during to which that particular Operating Costs and Tax Statement relates shall be automatically waived. If such audit reveals that an error was made in the Term amounts previously charged to Tenant, then Landlord shall credit such excess to future Basic Rent or other monetary obligations provided that such amount shall be promptly paid to Tenant upon the expiration of the LeaseTerm. If Tenant’s audit of the amounts reveals an overcharge of five percent (5.0%) or more, Landlord promptly shall reimburse Tenant for the reasonable costs of the audit. If Tenant retains an agent to review Landlord’s records, the agent must be with a nationally or regionally recognized licensed CPA firm; the audit may not be conducted by an auditor retained on a contingent fee basis. Tenant shall provide Landlord at least thirty with a copy of any report prepared in connection with such review or audit within seven (307) business days prior written notice requesting the Audit, provided, however, that after Tenant’s right, if any, receipt of such report. In the event Landlord shall fail to exercise its Audit Right invoice Tenant for any subject year Additional Rent pursuant to this section within two (2) years, then Landlord shall expire sixty (60) days after the delivery be deemed to Tenant of the Direct Expense Statement for the calendar year, including the last year of the Lease Term, which Tenant desires to audit and, unless such right is exercised prior to such time, Tenant shall have waived its right to request collect such an AuditAdditional Rent. Landlord shall make said books and records relevant to such Audit available to Tenant during Landlord’s customary business hours at the office of the property manager of the Project or at such other location designated by Landlord In addition, in writing.
(ii) Tenant shall pay all reasonable and necessary third party out-of-pocket costs for the Audit, including, without limitation, all of Landlord’s costs and expenses, including reasonable attorney and accountant fees.
(iii) The Audit shall only be conducted by a reputable accounting firm (“Accounting Firm”) approved in writing by Landlord. As a condition precedent to any such Audit, Tenant shall deliver to Landlord a copy of Tenant’s written agreement with such Accounting Firm, which agreement shall include provisions which state that: (A) Landlord is an intended third-party beneficiary of such agreement, (B) such Accounting Firm is not being engaged as a contingency or other incentive based auditor; (C) such Accounting Firm will not in any manner solicit or agree to represent any other tenant of the Project with respect to an audit or other review of Landlord’s accounting records at the Project, and (D) such Accounting Firm shall maintain in strict confidence any and all information obtained in connection with the Audit and shall not disclose such information to any person or entity other than to the management personnel of Tenant. The Accounting Firm, Landlord and Tenant shall enter into a confidentiality agreement in form and substance acceptable to Landlord whereby the Accounting Firm and Tenant shall covenant, among other things, that the Accounting Firm and the Tenant shall keep the books and records of Landlord in strict confidence.
(iv) In the event that Landlord shall fail to invoice Tenant for any Additional Rent pursuant to this section within six (6) months following the amount expiration or termination of Direct Expenses paid by Tenant to the Term of this Lease, then Landlord exceed the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, and after such Audit is confirmed and accepted by Landlord, in Landlord’s reasonable discretion, such difference shall be applied deemed to the next succeeding payment of Direct Expenses due by Tenant have waived its right to Landlord. In the event that the amount of Direct Expenses paid by Tenant to Landlord is less than the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, Tenant shall pay collect such difference to Landlord within ten (10) days of such determinationAdditional Rent.
(v) Nothing contained herein shall be construed as providing Tenant with any right or option to examine any other books and records of Landlord or any of Landlord’s affiliated entities. Notwithstanding anything to the contrary contained herein, the Audit Right granted herein is personal to the originally named Tenant, shall be exercisable only by such originally named Tenant and may not be assigned or exercised by any assignee, sublessee or transferee of Tenant’s interest in this Lease or any successor in interest to Tenant.
Appears in 1 contract
Audit Rights. Landlord shall provide, upon written request of Tenant, an accounting of the Expenses and Taxes for the preceding calendar year and, provided Tenant is not in default under the terms and conditions of this Lease (i) Provided that no Event of Default has occurredis continuing after notice and any applicable cure period), Tenant shall have the right within one hundred twenty (120) days after Landlord delivers the Final Statement, at Tenant’s sole cost and expense, to conduct an audit of Landlord’s books and records regarding the Expenses and Taxes reflected in such accounting (“Audit RightEligible Charges”) to, one time per calendar year during to confirm the Lease Term, audit accuracy of Landlord’s records accounting; provided, however: (A) such audit shall be conducted during Landlord’s regular business hours; (B) a national or regional certified public accountant or other qualified professional firm not retained on a contingency fee basis; and books used by Landlord (C) Eligible Charges shall not include Expenses and Taxes for prior periods or reflected in determining prior accountings. If the audit discloses an overcharge of Eligible Charges, the amount of Direct Expenses Tenant is obligated to pay the overpayment shall be credited against the next payment of Rent due to Landlord for until such overpayment is reimbursed to Tenant in full. In the sole purpose event no Rent is due Landlord, the amount of verifying the accuracy of same (the “Audit”). Any Audit any overpayment shall cover only one (1) calendar year during the Term of the Lease. be reimbursed to Tenant shall provide Landlord at least within thirty (30) days prior written notice requesting after the Auditaudit completion date. If the audit discloses an underpayment, provided, however, that Tenant’s right, if any, then the total amount of such underpayment shall be paid to exercise its Audit Right for any subject year shall expire sixty Landlord within thirty (6030) days after the delivery audit completion date. If the audit discloses the amount of Eligible Charges paid by Tenant was overstated by more than five percent (5%), then, in addition to Tenant of the Direct Expense Statement for the calendar yearcrediting or repaying such overpayment to Tenant, including the last year of the Lease Term, which Tenant desires to audit and, unless such right is exercised prior to such time, Tenant shall have waived its right to request such an Audit. Landlord shall make said books and records relevant to such Audit available to also pay the reasonable costs incurred by Tenant during Landlord’s customary business hours at the office of the property manager of the Project or at such other location designated by Landlord in writing.
(ii) Tenant shall pay all reasonable and necessary third party out-of-pocket costs for the Audit, including, without limitation, all of Landlord’s costs and expenses, including reasonable attorney and accountant fees.
(iii) The Audit shall only be conducted by a reputable accounting firm (“Accounting Firm”) approved in writing by Landlord. As a condition precedent to any such Audit, Tenant shall deliver to Landlord a copy of Tenant’s written agreement with such Accounting Firm, which agreement shall include provisions which state that: (A) Landlord is an intended third-party beneficiary of such agreement, (B) such Accounting Firm is not being engaged as a contingency or other incentive based auditor; (C) such Accounting Firm will not in any manner solicit or agree to represent any other tenant of the Project with respect to an audit or other review of Landlord’s accounting records at the Project, and (D) such Accounting Firm shall maintain in strict confidence any and all information obtained in connection with the Audit and shall not disclose such information to any person or entity other audit, but in no event greater than to the management personnel of Tenant. The Accounting Firm, Landlord and Tenant shall enter into a confidentiality agreement in form and substance acceptable to Landlord whereby the Accounting Firm and Tenant shall covenant, among other things, that the Accounting Firm and the Tenant shall keep the books and records of Landlord in strict confidence.
(iv) In the event that the amount of Direct Expenses paid by Tenant to Landlord exceed the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, and after such Audit is confirmed and accepted by Landlord, in Landlord’s reasonable discretion, such difference shall be applied to the next succeeding payment of Direct Expenses due by Tenant to Landlord. In the event that the amount of Direct Expenses paid by Tenant to Landlord is less than the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, Tenant shall pay such difference to Landlord within ten (10) days of such determinationoverstated.
(v) Nothing contained herein shall be construed as providing Tenant with any right or option to examine any other books and records of Landlord or any of Landlord’s affiliated entities. Notwithstanding anything to the contrary contained herein, the Audit Right granted herein is personal to the originally named Tenant, shall be exercisable only by such originally named Tenant and may not be assigned or exercised by any assignee, sublessee or transferee of Tenant’s interest in this Lease or any successor in interest to Tenant.
Appears in 1 contract
Audit Rights. (i) Provided that no Event of Default has occurred, Tenant and its duly authorized representatives or any certified public accountant selected by Tenant shall have the right to audit the records of Landlord related to Operating Expenses, Real Property Taxes and Assessments with respect to the Base Year or any subsequent calendar year. Any such audit shall be performed, if at all, (“Audit Right”i) to, one time per for the Base Year within thirty (30) months after the delivery of the Reconciliation Statement for the Base Year and (ii) for any subsequent calendar year during the Lease Term, audit Landlord’s records and books used by Landlord in determining the amount of Direct Expenses Tenant is obligated to pay to Landlord for the sole purpose of verifying the accuracy of same (the “Audit”). Any Audit shall cover only within one (1) year after receipt of the applicable Reconciliation Statement for such calendar year. Notwithstanding the foregoing, if any audit reveals that Operating Expenses have been overcharged by Landlord for any measurement year, Tenant shall, for a period of one year after receipt of such audit, have the right to audit Operating Expenses, Real Property Taxes and Assessments for all prior years, provided that once either (a) the period for review of the Base Year has passed without an audit or (b) a Base Year audit has been completed and agreed upon, the Base Year shall be deemed fixed and shall not be subject to further adjustment or audit. Any audit hereunder shall be upon not less then ten (10) days’ prior written notice to Landlord, during normal business hours at management office of the Project or an alternate location designated by Landlord in Orange County, California. Tenant’s audit to be limited to an on-site review of Landlord’s general ledger of accounts and Tenant may photocopy, at Tenant’s expense, Landlord’s ledgers and reasonable documentation supporting Operating Expense items under review. If Tenant’s Percentage of actual Operating Expenses are determined to have been overstated by Landlord for any calendar year during in excess of four percent (4%), Landlord shall reimburse Tenant for the Term reasonable cost of the Lease. Tenant shall provide Landlord at least Tenant’s audit within thirty (30) days prior written notice requesting following Tenant’s submission to Landlord of reasonable evidence of the Auditamount of such costs. Tenant’s payment of Operating Expenses, providedReal Property Taxes and Assessments in accordance with Landlord’s Estimate Statements or Reconciliation Statements shall not constitute a waiver of any right to audit and/or dispute such expenses as set forth herein. Tenant agrees to keep, howeverand to request that its accountant(s) and employees keep, all information revealed by any audit of Landlord’s books and records strictly confidential and not to disclose any such information or permit any such information to be disclosed to anyone other than Landlord, unless compelled to do so by a court of law or in connection with the resolution of any dispute with Landlord regarding Common Area Expenses. Landlord shall have the right to require that Tenant’s rightaccountants and employees execute reasonable written confidentiality agreements as a condition to reviewing Landlord’s books and records. Regardless of the outcome of any such audit, if any, to exercise its Audit Right for any subject year shall expire sixty (60) days after the delivery to Tenant of the Direct Expense Statement for the calendar year, including the last year of the Lease Term, which Tenant desires to audit and, unless such right is exercised prior to such time, Tenant shall have waived its right to request such an Audit. Landlord shall make said books and records relevant to such Audit available to Tenant during Landlord’s customary business hours at the office of the property manager of the Project or at such other location designated by Landlord in writing.
(ii) Tenant shall pay all reasonable and necessary third party out-of-pocket costs for the Audit, including, without limitation, all of Landlord’s costs and expenses, including reasonable attorney and accountant fees.
(iii) The Audit shall only be conducted by a reputable accounting firm (“Accounting Firm”) approved in writing by Landlord. As a condition precedent to any such Auditconducted, Tenant shall deliver to Landlord a copy of Tenant’s written agreement with such Accounting Firm, which agreement shall include provisions which state that: (A) Landlord is an intended third-party beneficiary of such agreement, (B) such Accounting Firm is not being engaged as a contingency or other incentive based auditor; (C) such Accounting Firm will not in any manner solicit or agree to represent any other tenant of the Project with respect to an audit or other review of Landlord’s accounting records at the Project, and (D) such Accounting Firm shall maintain in strict confidence any and all information obtained in connection with the Audit and shall not disclose such information to any person or entity other than to the management personnel of Tenant. The Accounting Firm, Landlord and Tenant shall enter into a confidentiality agreement in form and substance acceptable to Landlord whereby the Accounting Firm and Tenant shall covenant, among other things, that the Accounting Firm and the Tenant shall keep the books and records of Landlord in strict confidence.
(iv) In the event that the amount of Direct Expenses paid by Tenant to Landlord exceed the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, and after such Audit is confirmed and accepted by Landlord, in Landlord’s reasonable discretion, such difference shall be applied to the next succeeding payment of Direct Expenses due by Tenant results thereof to Landlord. In the event that the amount of Direct Expenses paid by Tenant elects to Landlord is less than the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Auditconduct an audit, Tenant shall pay will not hire an auditor who conducts such difference to Landlord within ten (10) days audit on a contingency basis or is otherwise compensated based upon a percentage of alleged overcharges, discrepancies or errors discovered unless such determinationauditor is a member of a public accounting firm that does not conduct operating expense audits as its primary business.
(v) Nothing contained herein shall be construed as providing Tenant with any right or option to examine any other books and records of Landlord or any of Landlord’s affiliated entities. Notwithstanding anything to the contrary contained herein, the Audit Right granted herein is personal to the originally named Tenant, shall be exercisable only by such originally named Tenant and may not be assigned or exercised by any assignee, sublessee or transferee of Tenant’s interest in this Lease or any successor in interest to Tenant.
Appears in 1 contract
Audit Rights. If Tenant disputes any amounts set forth in any Actual Statement, Tenant will have the right no later than one hundred twenty (120) days following receipt of that Actual Statement to cause Landlord’s books and records regarding the particular amount(s) being disputed by Tenant to be reviewed, copied, and/or audited by Tenant, by Tenant’s internal accountant or by another certified public accounting firm or other auditing firm which has prior experience in the review of operating expenses and which is not being compensated on a contingent fee basis; provided, however, that any such audit shall be subject to the following: (i) Provided that no Event of Default has occurred, Tenant shall not have the right to perform any such audit more than one (“Audit Right”1) to, one time per for any calendar year during the Lease Term, (ii) Tenant’s audit Landlord’s records and books used by Landlord in determining the amount shall be limited to a review of Direct those Operating Expenses Tenant is obligated to pay to Landlord for the sole purpose of verifying the accuracy of same (the “Audit”). Any Audit shall cover only one (1) calendar year during the Term of the Lease. Tenant shall provide Landlord at least thirty (30) days prior written notice requesting the Audit, provided, however, that Tenant’s right, if any, to exercise its Audit Right for any subject year shall expire sixty (60) days after the delivery to Tenant of the Direct Expense Statement for the calendar immediately preceding year, including the last year of the Lease Term, which Tenant desires to audit and, unless such right is exercised prior to such time, it being understood that Tenant shall have waived its right to request audit Operating Expenses for the year to which an Actual Statement relates unless Tenant delivers notice to Landlord of its intent to audit such Operating Expenses within ninety (90) days after receipt of an AuditActual Statement. Landlord Any audit conducted by or on behalf of Tenant shall make said be conducted at Landlord’s office in the Project during Landlord’s normal business hours and in the manner so as to minimize interference with Landlord’s business operations. Tenant’s audit shall be limited to an on-site audit, review and/or copying of Landlord’s books and records relevant with respect to such Audit available to Tenant during Landlordonly the calendar year being audited by Tenant, the Project, the Building and the particular amount(s) being disputed by Tenant. Upon completion of Tenant’s customary business hours at the office of the property manager of the Project or at such other location designated by Landlord in writing.
(ii) Tenant shall pay all reasonable and necessary third party out-of-pocket costs for the Audit, including, without limitation, all of Landlord’s costs and expenses, including reasonable attorney and accountant fees.
(iii) The Audit shall only be conducted by a reputable accounting firm (“Accounting Firm”) approved in writing by Landlord. As a condition precedent to any such Auditaudit, Tenant shall deliver to provide Landlord with a copy of such audit and the results resulting from that audit. If Landlord agrees with the results of Tenant’s written agreement with such Accounting Firmaudit, which agreement shall include provisions which state that: (A) the amounts payable under Sections 3.4 and 3.5 hereof by Landlord is an intended third-party beneficiary of such agreement, (B) such Accounting Firm is not being engaged as a contingency to Tenant or other incentive based auditor; (C) such Accounting Firm will not in any manner solicit or agree to represent any other tenant of the Project with respect to an audit or other review of Landlord’s accounting records at the Project, and (D) such Accounting Firm shall maintain in strict confidence any and all information obtained in connection with the Audit and shall not disclose such information to any person or entity other than to the management personnel of Tenant. The Accounting Firm, Landlord and Tenant shall enter into a confidentiality agreement in form and substance acceptable to Landlord whereby the Accounting Firm and Tenant shall covenant, among other things, that the Accounting Firm and the Tenant shall keep the books and records of Landlord in strict confidence.
(iv) In the event that the amount of Direct Expenses paid by Tenant to Landlord exceed the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, and after such Audit is confirmed and accepted by Landlord, in Landlord’s reasonable discretion, such difference shall be applied to the next succeeding payment of Direct Expenses due by Tenant to Landlord, as the case may be, will be appropriately adjusted on the basis of such audit. In If Landlord disagrees with the event that results of Tenant’s audit, Landlord shall have the right to cause another review to be made by an independent auditor selected by Landlord and reasonably approved by Tenant, in which case, the results of Landlord’s audit shall be binding upon the parties. If Tenant’s audit (or Landlord’s audit if applicable) discloses an overstatement of Operating Expenses in excess of five percent (5%) for such calendar year, Tenant will receive a credit against Tenant’s future Operating Expense obligations for the reasonable costs of Tenant’s audit not to exceed the amount of Direct Expenses paid by Tenant to Landlord is less than the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by overcharge; otherwise the Audit, Tenant shall pay such difference to Landlord within ten (10) days cost of such determination.
(v) Nothing contained herein shall be construed as providing Tenant with any right or option to examine any other books and records of Landlord or any of audit, including Landlord’s affiliated entities. Notwithstanding anything to the contrary contained herein, the Audit Right granted herein is personal to the originally named Tenantcosts incurred in complying with such audit, shall be exercisable only borne by such originally named Tenant and may not be assigned or exercised by any assignee, sublessee or transferee of Tenant’s interest in this Lease or any successor in interest to Tenant.
Appears in 1 contract
Samples: Lease Agreement (First California Financial Group, Inc.)
Audit Rights. Tenant shall have the right, at Tenant's cost, after reasonable notice to Landlord, to have Tenant's authorized employees or agents inspect, at Landlord's main corporate office during normal business hours, Landlord's books, records and supporting documents concerning the Operating Expenses, Tax Expenses and Utilities Costs set forth in any Statement delivered by Landlord to Tenant for a particular Expense Year pursuant to Section 4.3.2 above; provided, however, Tenant shall have no right to conduct such inspection or object to or otherwise dispute the amount of the Operating Expenses, Tax Expenses and Utilities Costs set forth in any such Statement, unless Tenant notifies Landlord of such inspection objection and dispute, completes such inspection within six (i6) Provided months immediately following Landlord's delivery of a Statement (the "Review Period"); provided, further, that no Event notwithstanding any such timely inspection, objection, dispute, and/or audit, and as a condition precedent to Tenant exercise of Default has occurredits right of inspection, objection, dispute, and/or audit as set forth in this Section 4.6, Tenant shall not be permitted to withhold payment of, and Tenant shall timely pay to Landlord, the full amounts as required by the provisions of this Article 4 in accordance with such Statement. However, such payment may be made under protest pending the outcome of any audit. In connection with any such inspection by Tenant, Landlord and Tenant shall reasonably cooperate with each other so that such inspection can be performed pursuant to a mutually acceptable schedule, in an expeditious manner and without undue interference with Landlord's operation and management of the Project. If after such inspection and/or request for documentation, Tenant disputes the amount of the Operating Expenses, Tax Expenses and Utilities Costs set forth in the Statement, Tenant shall have the right (“Audit Right”) toright, one time per calendar year during but not the Lease Termobligation, audit Landlord’s records within the Review Period, to cause an independent certified public accountant which is not paid on a contingency basis and books used which is mutually approved by Landlord in determining and Tenant (the "Accountant") to complete an audit of Landlord's books and records to determine the proper amount of Direct the Operating Expenses, Tax Expenses and Utilities Costs incurred and amounts payable by Tenant is obligated to pay to Landlord for the sole purpose Expense Year which is the subject of verifying such Statement. Such audit by the accuracy of same (Accountant shall be final and binding upon Landlord and Tenant. If Landlord and Tenant cannot mutually agree as to the “Audit”). Any Audit shall cover only one (1) calendar year during the Term identity of the Lease. Tenant shall provide Landlord at least Accountant within thirty (30) days prior written notice requesting after Tenant notifies Landlord that Tenant desires an audit to be performed, then the AuditAccountant shall be one of the "Big 4" accounting firms selected by Landlord, providedwhich is not paid on a contingency basis and is not, howeverand has not been, otherwise employed or retained by Landlord. If such audit reveals that Landlord has over-charged Tenant’s right, if any, to exercise its Audit Right for any subject year shall expire sixty then within thirty (6030) days after the delivery results of such audit are made available to Landlord, Landlord shall reimburse to Tenant the amount of such over-charge. If the Direct Expense Statement for audit reveals that the calendar yearTenant was under-charged, including then within thirty (30) days after the last year results of the Lease Term, which Tenant desires such audit are made available to audit and, unless such right is exercised prior to such timeTenant, Tenant shall reimburse to Landlord the amount of such under-charge. Tenant agrees to 879352.05/SD374622-00001/3-28-19/MLT/bp -11- GENESIS SSF - TWO TOWER PLACE[Fluidigm Corporation] pay the cost of such audit unless it is subsequently determined that Landlord's original Statement which was the subject of such audit was in error to Tenant's disadvantage by five percent (5%) or more of the total Operating Expenses, Tax Expenses and Utilities Costs which was the subject of the audit (in which case Landlord shall pay the cost of such audit). The payment by Tenant of any amounts pursuant to this Article 4 shall not preclude Tenant from questioning the correctness of any Statement provided by Landlord at any time during the Review Period, but the failure of Tenant to object thereto, conduct and complete its inspection and have waived its the Accountant conduct and complete the audit as described above prior to the expiration of the Review Period shall be conclusively deemed Tenant's approval of the Statement in question and the amount of Operating Expenses, Tax Expenses and Utilities Costs shown thereon, subject to Tenant's right to request such an Audit. Landlord shall make said books and records relevant to such Audit available to Tenant during Landlord’s customary business hours at the office of the property manager of the Project or at such other location designated by Landlord in writing.
(ii) Tenant shall pay all reasonable and necessary third party out-of-pocket costs review Statements for the Auditprior twelve (12) months. In connection with any inspection and/or audit conducted by Tenant pursuant to this Section 4.6, includingTenant agrees to keep, without limitationand to cause all of Tenant's employees and consultants and the Accountant to keep, all of Landlord’s costs 's books and expensesrecords and the audit, including reasonable attorney and accountant fees.
(iii) The Audit shall only be conducted by a reputable accounting firm (“Accounting Firm”) approved all information pertaining thereto and the results thereof, strictly confidential, and in writing by Landlord. As a condition precedent to any such Auditconnection therewith, Tenant shall deliver to Landlord a copy of Tenant’s written agreement with cause such Accounting Firmemployees, which agreement shall include provisions which state that: (A) Landlord is an intended third-party beneficiary of such agreement, (B) such Accounting Firm is not being engaged as a contingency or other incentive based auditor; (C) such Accounting Firm will not in any manner solicit or agree to represent any other tenant of the Project with respect to an audit or other review of Landlord’s accounting records at the Project, and (D) such Accounting Firm shall maintain in strict confidence any and all information obtained in connection with the Audit and shall not disclose such information to any person or entity other than to the management personnel of Tenant. The Accounting Firm, Landlord and Tenant shall enter into a confidentiality agreement in form and substance acceptable to Landlord whereby the Accounting Firm and Tenant shall covenant, among other things, that the Accounting Firm consultants and the Tenant shall keep the books and records of Accountant to execute such reasonable confidentiality agreements as Landlord in strict confidencemay require prior to conducting any such inspections and/or audits.
(iv) In the event that the amount of Direct Expenses paid by Tenant to Landlord exceed the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, and after such Audit is confirmed and accepted by Landlord, in Landlord’s reasonable discretion, such difference shall be applied to the next succeeding payment of Direct Expenses due by Tenant to Landlord. In the event that the amount of Direct Expenses paid by Tenant to Landlord is less than the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, Tenant shall pay such difference to Landlord within ten (10) days of such determination.
(v) Nothing contained herein shall be construed as providing Tenant with any right or option to examine any other books and records of Landlord or any of Landlord’s affiliated entities. Notwithstanding anything to the contrary contained herein, the Audit Right granted herein is personal to the originally named Tenant, shall be exercisable only by such originally named Tenant and may not be assigned or exercised by any assignee, sublessee or transferee of Tenant’s interest in this Lease or any successor in interest to Tenant.
Appears in 1 contract
Samples: Lease (Fluidigm Corp)
Audit Rights. Anthera shall keep (iand, as applicable, shall cause its Affiliates and require its sublicensees to keep) Provided that no Event complete and accurate books and records as are necessary to ascertain Anthera’s compliance with this Agreement, including such records as are necessary to verify royalty payments owed. Upon the written request of Default has occurredLilly and not more than once in each calendar year, Tenant Anthera shall permit an independent certified public accounting firm of nationally recognized standing selected by Lilly and acceptable to Anthera, such acceptance not to be unreasonably withheld or delayed, at Lilly’s expense, to have access upon prior written notice during normal business hours to such of the right (“Audit Right”) to, one time per calendar year during the Lease Term, audit Landlord’s records and books used by Landlord in determining the amount of Direct Expenses Tenant is obligated Anthera as may be reasonably necessary to pay to Landlord for the sole purpose of verifying verify the accuracy of same (the “Audit”)royalty reports hereunder for any year ending not more than [***] prior to the date of such request. Any Audit Lilly shall cover only one (1) calendar year during the Term of the Lease. Tenant shall provide Landlord submit an audit plan, including audit scope, to Anthera at least thirty (30) days prior written notice requesting to the Auditcommencement of such audit. The accounting firm shall disclose to Lilly only whether the reports are correct and the specific details concerning any discrepancies. No other information shall be shared. Lilly shall treat all financial information subject to review under this Section 3.8 as confidential, provided, however, that Tenant’s right, if any, and shall cause its accounting firm to exercise its Audit Right for any subject year retain all such financial information in confidence. All amounts due as shown by the audit shall expire sixty be paid within thirty (6030) days after following the delivery to Tenant receipt of the Direct Expense Statement final audit report. If the audit shows that the royalty amounts paid by Anthera for the calendar yearperiod audited are [***] less than the amount actually due for such period, including Anthera shall pay [***] reasonable expenses of Lilly in conducting the last year audit. Anthera will include in all sublicenses granted in accordance herewith, and any other agreements enabling a Third Person to be a seller of Licensed Products, an audit provision substantially similar to the Lease Term, which Tenant desires foregoing requiring such seller to audit and, unless such right is exercised prior to such time, Tenant shall have waived its right to request such an Audit. Landlord shall make said keep full and accurate books and records relevant relating to such Audit available the Licensed Products and granting Lilly the right to Tenant during Landlord’s customary business hours at audit the office accuracy of the property manager of information reported by the Project or at such other location designated by Landlord in writing.
(ii) Tenant shall pay all reasonable and necessary third party out-of-pocket costs for the Audit, including, without limitation, all of Landlord’s costs and expenses, including reasonable attorney and accountant fees.
(iii) The Audit shall only be conducted by a reputable accounting firm (“Accounting Firm”) approved in writing by Landlord. As a condition precedent to any such Audit, Tenant shall deliver to Landlord a copy of Tenant’s written agreement with such Accounting Firm, which agreement shall include provisions which state that: (A) Landlord is an intended third-party beneficiary of such agreement, (B) such Accounting Firm is not being engaged as a contingency or other incentive based auditor; (C) such Accounting Firm will not in any manner solicit or agree to represent any other tenant of the Project with respect to an audit or other review of Landlord’s accounting records at the Project, and (D) such Accounting Firm shall maintain in strict confidence any and all information obtained sublicensee in connection therewith. * Confidential Information, indicated by [***], has been omitted from this filing and filed separately with the Audit Securities and shall not disclose such information to any person or entity other than to the management personnel of Tenant. The Accounting Firm, Landlord and Tenant shall enter into a confidentiality agreement in form and substance acceptable to Landlord whereby the Accounting Firm and Tenant shall covenant, among other things, that the Accounting Firm and the Tenant shall keep the books and records of Landlord in strict confidenceExchange Commission.
(iv) In the event that the amount of Direct Expenses paid by Tenant to Landlord exceed the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, and after such Audit is confirmed and accepted by Landlord, in Landlord’s reasonable discretion, such difference shall be applied to the next succeeding payment of Direct Expenses due by Tenant to Landlord. In the event that the amount of Direct Expenses paid by Tenant to Landlord is less than the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, Tenant shall pay such difference to Landlord within ten (10) days of such determination.
(v) Nothing contained herein shall be construed as providing Tenant with any right or option to examine any other books and records of Landlord or any of Landlord’s affiliated entities. Notwithstanding anything to the contrary contained herein, the Audit Right granted herein is personal to the originally named Tenant, shall be exercisable only by such originally named Tenant and may not be assigned or exercised by any assignee, sublessee or transferee of Tenant’s interest in this Lease or any successor in interest to Tenant.
Appears in 1 contract
Audit Rights. Landlord shall maintain books and records showing Expenses and Taxes in accordance with generally accepted accounting principles in the commercial real estate industry, consistently applied, as adjusted based on the specific terms of this Lease (i) Provided that no Event as applicable), and as customarily adjusted for the operation of Default has occurred, “Comparable Buildings” in the “Submarket” (as such terms are defined in Section 8.A. below). Tenant shall have the right right, at its expense (“Audit Right”except as expressly set forth below), to examine or to have its "Representatives" (hereinafter defined) to, one time per audit Landlord's accounting records relative to Expenses and Taxes for any calendar year falling in whole or in part during the Lease Term, during normal business hours, at any time within one hundred twenty (120) days following the furnishing to Tenant of the annual statement(s) of such Expenses or Taxes (as the case may be) for the applicable calendar year. Unless Tenant shall take written exception to any item of Taxes or Expenses, specifying in detail the reasons for such exception as to a particular item within one hundred twenty (120) days after Tenant's receipt of Landlord's annual statement covering Expenses or Taxes (as the case may be), Landlord's statement of Expenses or Taxes, as applicable, shall be considered as final and accepted by Tenant. For purposes hereof, the term "Representatives" shall mean a nationally or regionally recognized independent certified public accounting firm licensed to do business in the State of Illinois. If and to the extent that Tenant engages a Representative to audit Landlord’s 's records pursuant to this Section 5.E., then, prior to such audit, Tenant shall cause such Representative to execute and books used by Landlord in determining the amount of Direct Expenses Tenant is obligated to pay deliver to Landlord for a commercially reasonable form of confidentiality agreement relative to maintaining the sole purpose confidentiality of verifying all information obtained in the accuracy course of same any such audit. Further, prior to Tenant examining Landlord's records or engaging any Representative to conduct any such audit, Tenant shall execute and deliver to Landlord a commercially reasonable form of confidentiality agreement relative to maintaining the confidentiality of all information obtained in the course of any such examination or audit. Tenant shall not retain its Representatives on a contingent fee basis. In the event any such audit conducted by Tenant's Representatives (the “herein, a "Tenant Audit”). Any Audit shall cover only one ") determines that either (1) Landlord's statement of Expenses overstated Tenant's Additional Rent attributable to such items from the actual amount so required hereunder for any calendar year during by an amount in excess of five percent (5%), or (2) Landlord's statement of Taxes overstated Tenant's Additional Rent attributable to such items from the Term actual amount so required hereunder for any calendar year by an amount in excess of five percent (5%), then Landlord shall be responsible for the Lease. payment of reasonable out-of-pocket audit fees incurred by Tenant under this Section 5.E. relative to the audit of such Landlord's Expense statement or Landlord's Tax statement (as the case may be), which payment shall provide Landlord at least be due within thirty (30) days prior written notice requesting after Tenant's demand therefor. In the Auditevent any such Tenant Audit does not result in such a determination that Landlord's Expense statement or Landlord's Tax statement, providedas the case may be, however, that overstated Tenant’s right, if any, to exercise its Audit Right for any subject year shall expire sixty (60) days after the delivery to Tenant of the Direct Expense Statement for the calendar year, including the last year of the Lease Term, which Tenant desires to audit and, unless such right is exercised prior 's Additional Rent attributable to such timeitems for such calendar year by more than five percent (5%), then Tenant shall have waived its right to request be responsible for all such an Audit. Landlord shall make said books and records relevant to such Audit available to fees incurred by Tenant during Landlord’s customary business hours at the office of the property manager of the Project or at such other location designated by Landlord in writing.
(ii) Tenant shall pay all reasonable and necessary third party out-of-pocket costs for the Audit, including, without limitation, all of Landlord’s costs and expenses, including reasonable attorney and accountant fees.
(iii) The Audit shall only be conducted by a reputable accounting firm (“Accounting Firm”) approved in writing by Landlord. As a condition precedent to any such Audit, Tenant shall deliver to Landlord a copy of Tenant’s written agreement with such Accounting Firm, which agreement shall include provisions which state that: (A) Landlord is an intended third-party beneficiary of such agreement, (B) such Accounting Firm is not being engaged as a contingency or other incentive based auditor; (C) such Accounting Firm will not in any manner solicit or agree to represent any other tenant of the Project with respect to an audit or other review of Landlord’s accounting records at the Project, and (D) such Accounting Firm shall maintain in strict confidence any and all information obtained in connection with the Audit and shall not disclose such information to Tenant Audit. Notwithstanding any person or entity other than to the management personnel of exception made by Tenant. The Accounting Firm, Landlord and Tenant shall enter into a confidentiality agreement in form and substance acceptable to pay Landlord whereby the Accounting Firm and Tenant shall covenant, among other things, that the Accounting Firm and the Tenant shall keep the books and records of Landlord in strict confidence.
(iv) In the event that the full amount of Direct Expenses paid by Tenant to Landlord exceed the actual amount of Direct Expenses owed by Tenant to Landlord its Additional Rent as disclosed by the Audit, and after such Audit is confirmed and accepted determined by Landlord, subject to readjustment at such time as any such exception may be resolved (i.e., either by agreement of Landlord or by final determination of a court of competent jurisdiction in Landlord’s reasonable discretion, such difference shall be applied to the next succeeding payment favor of Direct Expenses due by Tenant to LandlordTenant). In the event any such Tenant Audit determines that Landlord’s statement of Expenses or Taxes overstated Tenant’s Additional Rent attributable to such items from the actual amount so required hereunder for any calendar year by an amount in excess of five percent (5%), and if Landlord does not accept the results of such Tenant Audit and thereupon refund (or commence credit against Additional Rent thereafter due and owing hereunder), within thirty (30) days after Tenant delivery of such Tenant Audit to Landlord and Tenant’s demand for such refund or credit, the amount of Direct Expenses paid such overpayment as determined by Tenant to Landlord is less than the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Tenant’s Audit, then, if it is finally determined, as provided in the preceding sentence, that Tenant was overbilled with respect to Expenses or Taxes by more than five percent (5%), Landlord shall promptly reimburse Tenant an amount equal to the amount that Tenant was so overbilled, and, in addition, Landlord shall pay Tenant interest at the Prime Rate (as defined in Section 5.C. above) on the amount so overbilled, accruing for the period commencing on the date when such difference to final determination is made and ending on the date on which Tenant is fully reimbursed for Tenant's overpayment thereof. Landlord within ten (10) days of such determination.
(v) Nothing contained herein shall be construed as providing Tenant with any right or option to examine any other maintain its books and records showing Taxes and Expenses for a period of not less than two (2) years following the date Landlord or any delivers to Tenant its annual statement(s) of Landlord’s affiliated entitiesTaxes and Expenses for the applicable year. Notwithstanding anything to the contrary contained herein, the Audit Right granted herein is personal to the originally named Tenant, The books and records shall be exercisable only available for review by such originally named Tenant and may not be assigned or exercised by any assigneeand/or Tenant's Representatives at all reasonable times within the foregoing 120-day period, sublessee or transferee of upon Tenant’s interest in this Lease or any successor in interest 's reasonable prior request therefor to TenantLandlord.
Appears in 1 contract
Samples: Office Lease (Vivid Seats Inc.)
Audit Rights. Anthera shall keep (iand, as applicable, shall cause its Affiliates and require its sublicensees to keep) Provided that no Event complete and accurate books and records as are necessary to ascertain Anthera’s compliance with this Agreement, including such records as are necessary to verify royalty payments owed. Upon the written request of Default has occurredLilly and not more than once in each calendar year, Tenant Anthera shall permit an independent certified public accounting firm of nationally recognized standing selected by Lilly and acceptable to Anthera, such acceptance not to be unreasonably withheld or delayed, at Lilly’s expense, to have access upon prior written notice during normal business hours to such of the right (“Audit Right”) to, one time per calendar year during the Lease Term, audit Landlord’s records and books used by Landlord in determining the amount of Direct Expenses Tenant is obligated Anthera as may be reasonably necessary to pay to Landlord for the sole purpose of verifying verify the accuracy of same (the “Audit”)royalty reports hereunder for any year ending not more than [***] prior to the date of such request. Any Audit Lilly shall cover only one (1) calendar year during the Term of the Lease. Tenant shall provide Landlord submit an audit plan, including audit scope, to Anthera at least thirty (30) days prior written notice requesting to the Auditcommencement of such audit. The accounting firm shall disclose to Lilly only whether the reports are correct and the specific details concerning any discrepancies. No other information shall be shared. Lilly shall treat all financial information subject to review under this Section 3.8 as confidential, provided, however, that Tenant’s right, if any, and shall cause its accounting firm to exercise its Audit Right for any subject year retain all such financial information in confidence. All amounts due as shown by the audit shall expire sixty be paid within thirty (6030) days after following the delivery to Tenant receipt of the Direct Expense Statement final audit report. If the audit shows that the royalty amounts paid by Anthera for the calendar yearperiod audited are [***] less than the amount actually due for such period, including Anthera shall pay [***] reasonable expenses of Lilly in conducting the last year audit. Anthera will include in all sublicenses granted in accordance herewith, and any other agreements enabling a Third Person to be a seller of Licensed Products, an audit provision substantially similar to the Lease Term, which Tenant desires foregoing requiring such seller to audit and, unless such right is exercised prior to such time, Tenant shall have waived its right to request such an Audit. Landlord shall make said keep full and accurate books and records relevant relating to such Audit available the Licensed Products and granting Lilly the right to Tenant during Landlord’s customary business hours at audit the office accuracy of the property manager of information reported by the Project or at such other location designated by Landlord in writing.
(ii) Tenant shall pay all reasonable and necessary third party out-of-pocket costs for the Audit, including, without limitation, all of Landlord’s costs and expenses, including reasonable attorney and accountant fees.
(iii) The Audit shall only be conducted by a reputable accounting firm (“Accounting Firm”) approved in writing by Landlord. As a condition precedent to any such Audit, Tenant shall deliver to Landlord a copy of Tenant’s written agreement with such Accounting Firm, which agreement shall include provisions which state that: (A) Landlord is an intended third-party beneficiary of such agreement, (B) such Accounting Firm is not being engaged as a contingency or other incentive based auditor; (C) such Accounting Firm will not in any manner solicit or agree to represent any other tenant of the Project with respect to an audit or other review of Landlord’s accounting records at the Project, and (D) such Accounting Firm shall maintain in strict confidence any and all information obtained sublicensee in connection with the Audit and shall not disclose such information to any person or entity other than to the management personnel of Tenant. The Accounting Firm, Landlord and Tenant shall enter into a confidentiality agreement in form and substance acceptable to Landlord whereby the Accounting Firm and Tenant shall covenant, among other things, that the Accounting Firm and the Tenant shall keep the books and records of Landlord in strict confidencetherewith.
(iv) In the event that the amount of Direct Expenses paid by Tenant to Landlord exceed the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, and after such Audit is confirmed and accepted by Landlord, in Landlord’s reasonable discretion, such difference shall be applied to the next succeeding payment of Direct Expenses due by Tenant to Landlord. In the event that the amount of Direct Expenses paid by Tenant to Landlord is less than the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, Tenant shall pay such difference to Landlord within ten (10) days of such determination.
(v) Nothing contained herein shall be construed as providing Tenant with any right or option to examine any other books and records of Landlord or any of Landlord’s affiliated entities. Notwithstanding anything to the contrary contained herein, the Audit Right granted herein is personal to the originally named Tenant, shall be exercisable only by such originally named Tenant and may not be assigned or exercised by any assignee, sublessee or transferee of Tenant’s interest in this Lease or any successor in interest to Tenant.
Appears in 1 contract
Audit Rights. Licensor shall be entitled, upon no less than five (i) Provided that no Event of Default has occurred, Tenant shall have the right (“Audit Right”) to, one time per calendar year during the Lease Term, audit Landlord’s records and books used by Landlord in determining the amount of Direct Expenses Tenant is obligated to pay to Landlord for the sole purpose of verifying the accuracy of same (the “Audit”). Any Audit shall cover only one (1) calendar year during the Term of the Lease. Tenant shall provide Landlord at least thirty (305) days prior written notice requesting the Audit, provided, however, that Tenant’s right, if any, to exercise its Audit Right for any subject year shall expire sixty (60) days after the delivery to Tenant of the Direct Expense Statement for the calendar year, including the last year of the Lease Term, which Tenant desires to audit and, unless such right is exercised prior to such time, Tenant shall have waived its right to request such an Audit. Landlord shall make said books Licensee and records relevant to such Audit available to Tenant during Landlord’s customary business hours at the Licensee’s office of the property manager of the Project or at such other location designated by Landlord in writing.
(ii) Tenant place as Licensee shall pay all reasonable designate within the state of California, to inspect and necessary third party out-of-pocket costs for the Audit, including, without limitation, all of Landlord’s costs and expenses, including reasonable attorney and accountant fees.
(iii) The Audit shall only be conducted by a reputable accounting firm (“Accounting Firm”) approved in writing by Landlord. As a condition precedent to any such Audit, Tenant shall deliver to Landlord a copy of Tenant’s written agreement with such Accounting Firm, which agreement shall include provisions which state that: (A) Landlord is an intended third-party beneficiary of such agreement, (B) such Accounting Firm is not being engaged as a contingency or other incentive based auditor; (C) such Accounting Firm will not in any manner solicit or agree to represent any other tenant of the Project with respect to an audit or other review of Landlord’s accounting records at the Project, and (D) such Accounting Firm shall maintain in strict confidence any and all information obtained in connection with the Audit and shall not disclose such information to any person or entity other than to the management personnel of Tenant. The Accounting Firm, Landlord and Tenant shall enter into a confidentiality agreement in form and substance acceptable to Landlord whereby the Accounting Firm and Tenant shall covenant, among other things, that the Accounting Firm and the Tenant shall keep the examine those books and records of Landlord Licensee relating to the determination of Royalties or Sublicense Fees set forth in strict confidence.
(iv) In the event that the amount any Royalty Report. The inspection of Direct Expenses paid by Tenant to Landlord exceed the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, and after such Audit is confirmed and accepted by Landlord, in LandlordLicensee’s reasonable discretion, such difference records shall be applied to the next succeeding payment of Direct Expenses due performed by Tenant to Landlorda national public accounting firm (a “Qualified Firm”). In the event that the amount of Direct Expenses paid by Tenant to Landlord is less than the actual amount of Direct Expenses owed by Tenant to Landlord as disclosed by the Audit, Tenant shall pay such difference to Landlord The examination must be conducted within ten (10) days of such determination.
(v) Nothing contained herein shall be construed as providing Tenant with any right or option to examine any other books and records being made available to Licensor (“Examination Period”). The Qualified Firm shall prepare a report indicating the results of Landlord the review (the “Audit Report”). If the Audit Report discloses that the amount of Royalties or any Sublicense Fees reported to Licensor was incorrect, Licensee shall pay to Licensor the deficiency, unless Licensee disputes the Report within thirty (30) days after the receipt of Landlord’s affiliated entitiesthe Report by Licensee. If Licensee disputes the Report within this thirty (30) day period, Licensee and Licensor shall agree upon another of the national independent accounting firms to review and verify the Royalties and Sublicense Fees, and provide the results thereof to Licensee and Licensor (the “Reconciliation Audit”) and the determination as set forth in the Reconciliation Audit shall be binding upon Licensee and Licensor. All costs and expenses of the auditor generating the Report shall be paid by Licensor unless the audit shows that Licensee understated Royalties or Sublicense Fees in the Royalty Report by more than five percent (5%), in which case Licensee shall pay the cost and expenses of such audit. Notwithstanding anything the foregoing, in the event the Reconciliation Audit is performed, Licensee and Licensor shall each pay on-half (1/2) of the cost of the Reconciliation Audit. The exercise by Licensor of its audit rights hereunder shall not relieve Licensee of its obligations to pay prior to the contrary contained herein, request for and inspection and examination of Licensee’s books and records or permit Licensor the right to audit any other sums with the exception of the amounts set forth in this Royalty Report. If Licensor does not elect to exercise its rights to audit during the Audit Right granted herein is personal Period, and/or does not elect to examine the originally named Tenantbooks and records during the Examination Period, then Licensee’s Royalty Report shall conclusively be deemed to be correct and Licensor shall be exercisable only bound by such originally named Tenant Licensee's determination. Additionally, Licensor agrees and acknowledges that the audit right as set forth herein and the review of books and records shall be confidential and, with the exception of Licensor’s auditors, Licensor may not be assigned disclose or exercised by discuss the audit or the results of the audit to any assignee, sublessee or transferee of Tenant’s interest in this Lease or any successor in interest to Tenantother parties.
Appears in 1 contract
Samples: License Agreement (Biolargo, Inc.)
