Common use of Books and Records; Audit Clause in Contracts

Books and Records; Audit. Tenant covenants that, for the purpose of ascertaining the amount payable to Landlord as percentage rent, Tenant will keep in accordance with generally accepted accounting principles consistently applied, accurate books and records containing all gross sales during each month of the term hereof and all supporting records such as excise tax reports, state sales tax"(business and occupation tax and gross income tax reports and receipts, including ST-1 gross receipts tax reporting forms filed by Tenant during the most recent Lease Year, at its headquarters office currently located at Denver, Colorado, which shall, for the purpose of verifying the percentage rent, be subject to examination by Landlord, its authorized representatives or accountants at reasonable times during business hours upon at least fourteen (14) days written notice, and in a manner which does not unreasonably interfere with the conduct of business. Such records shall be retained for at least three (3) years after receipt by Landlord of the yearly statement (hereinafter referred to) certified by the chief financial officer or President or Treasurer of Tenant. Tenant shall retain for at least one (1) year after the expiration of each Lease Year all original sales records and sales slips. At the expiration of such three (3) year period Tenant may dispose of such records unless Landlord shall have asserted a claim against Tenant with respect to percentage rent for such year, in which event such records shall be retained until disposition of such claim: Any claim by Landlord for a revision of any statement of Gross Sales which is not made to Tenant within three (3) years after receipt of the yearly statement shall be deemed and hereby is waived by Landlord. If any such examination discloses that Gross Sales transacted by Tenant exceed those reported, Tenant shall immediately pay to Landlord such additional percentage rent as may be so shown to be payable by said examination, and interest on such deficiency at the Default Rate, from the date of underpayment to the date such deficiency is paid. If such examination discloses that Gross Sales transacted by Tenant are less than those reported, Tenant shall be entitled to a credit against rent next owing. All examinations of Tenant's books and records shall be solely at Landlord's expense; provided, however, that if Tenant's statement of Gross Sales shall be understated by three percent (3%) or more, Tenant shall promptly reimburse Landlord for Landlord's reasonable expenses of examination. Landlord agrees to hold in confidence all sales figures and other information obtained from Tenant's records and yearly statement except to the extent that it may be necessary to divulge them to prospective purchasers, for the purpose of obtaining financing, in compliance with subpoenas or judicial orders, or to enforce Landlord's rights hereunder.

Books and Records; Audit. Tenant covenants that(a) Licensee, at its sole cost and expense, shall prepare and maintain, in accordance with Generally Accepted Accounting Principles consistently applied, complete and accurate books of account and records (including, without limitation, the originals or copies of documents supporting entries in the books of account) covering all transactions relating to the license hereby granted and to this Agreement. Licensor and any duly authorized representative of Licensor shall have the right, at least once during each quarterly period for the duration of this Agreement and for three (3) years thereafter, upon reasonable notice and during regular business hours, to examine such books of account and records and all other documents and materials in the possession or under the control of Licensee with respect to the subject matter and the terms of this Agreement including, but not limited to invoices, credits and shipping documents and Licensor shall have free and full access thereto for such purposes and for the purpose of ascertaining the amount payable to Landlord as percentage rentmaking extracts therefrom. All such books of account, Tenant will keep in accordance with generally accepted accounting principles consistently applied, accurate books and records containing all gross sales during each month of the term hereof and all supporting records such as excise tax reports, state sales tax"(business and occupation tax and gross income tax reports and receipts, including ST-1 gross receipts tax reporting forms filed by Tenant during the most recent Lease Year, at its headquarters office currently located at Denver, Colorado, which shall, for the purpose of verifying the percentage rent, be subject to examination by Landlord, its authorized representatives or accountants at reasonable times during business hours upon at least fourteen (14) days written noticerecords, and in a manner which does not unreasonably interfere with the conduct of business. Such records documents shall be retained for kept available by Licensee at least three (3) years after receipt by Landlord of the yearly statement Annual Period to which they relate. (hereinafter referred tob) certified by the chief financial officer or President or Treasurer of Tenant. Tenant shall retain for at least one (1) year after the expiration of each Lease Year all original sales records and sales slips. At the expiration of such three (3) year period Tenant may dispose of such records unless Landlord shall have asserted If, as a claim against Tenant with respect to percentage rent for such year, in which event such records shall be retained until disposition of such claim: Any claim by Landlord for a revision result of any statement examination of Gross Sales which is not made to Tenant within three (3) years after receipt of the yearly statement shall be deemed and hereby is waived by Landlord. If any such examination discloses that Gross Sales transacted by Tenant exceed those reported, Tenant shall immediately pay to Landlord such additional percentage rent as may be so shown to be payable by said examination, and interest on such deficiency at the Default Rate, from the date of underpayment to the date such deficiency is paid. If such examination discloses that Gross Sales transacted by Tenant are less than those reported, Tenant shall be entitled to a credit against rent next owing. All examinations of TenantLicensee's books and records records, it is established that Licensee's Percentage Royalty payments for any period were less than the amount which should have been paid for such period by an amount equal to two (2%) percent or more of the payments actually paid for such period, Licensee promptly shall reimburse Licensor for the reasonable costs of such examination. All payments required to be made to eliminate any discrepancy as revealed by such examination shall be solely at Landlord's expense; providedmade immediately upon demand. (c) Licensee shall deliver, howeverwithin 90 days after each Annual Period, that if Tenant's statement annual audited financial statements setting forth fairly the financial position of Gross Sales shall be understated by three percent (3%) or more, Tenant Licensee. Licensee shall promptly reimburse Landlord for Landlord's reasonable expenses notify Licensor of examinationany material adverse change in the financial condition of Licensee. Landlord Licensor agrees to hold in confidence all sales figures maintain Licensee's audited financial statements and other non-public business or financial information obtained from Tenant's records of Licensee provided to Licensor pursuant to this Agreement confidential and yearly statement except not to the extent that it may be necessary disclose such information to divulge them any third party and not to prospective purchasers, use such information for the any purpose of obtaining financing, in other than to verify compliance with subpoenas this Agreement. Likewise, Licensee agrees to maintain any nonpublic business or judicial orders, or financial information of Licensor provided to enforce Landlord's rights hereunderLicensee pursuant to this Agreement confidential and not disclose such information to any third party and not to use such information other than in furtherance of the provisions of this Agreement.

Books and Records; Audit. Tenant covenants that, for the purpose of ascertaining the amount payable to Landlord as percentage rent, Tenant will keep in accordance with generally accepted accounting principles consistently applied, accurate books and records containing all gross sales during each month of the term hereof and all supporting records such as excise tax reports, state sales tax"(business and occupation tax and gross income tax reports and receipts, including ST-1 gross receipts tax reporting forms filed by Tenant Each party shall maintain during the most recent Lease Year, at its headquarters office currently located at Denver, Colorado, which shall, Term and for the purpose of verifying the percentage rent, be subject to examination by Landlord, its authorized representatives or accountants at reasonable times during business hours upon at least fourteen (14) days written notice, and in a manner which does not unreasonably interfere with the conduct of business. Such records shall be retained for at least three (3) years after receipt thereafter, complete and accurate books and records sufficient to determine the Residual Rights Fee payments due hereunder. In the event that the other party does not agree with the determination by Landlord the paying party of the yearly statement Residual Rights Fee payments due hereunder, the parties shall use their reasonable efforts to reach agreement on the disputed items or amounts. At the request of the non-paying party, the paying party shall allow a reputable independent public accounting firm or representatives of the non-paying party, at the non-paying party’s expense, to verify the accuracy of any Residual Rights Fee calculations. The non-paying party shall give the paying party thirty (hereinafter referred to30) certified days written notice prior to beginning such audit. Such audit shall be reasonably conducted during regular business hours in a non-disruptive manner, and the party performing such audit must agree to be bound to a reasonable non-disclosure agreement. The only information to be reviewed during the course of such an audit shall be that necessary to verify the Residual Rights Fee due hereunder. Such audit may review the Licensee Group’s Sales, the direct material and labor costs, and that the applicable DCAA approved rates or equivalent rates per Section 4.2(b)(iii) were applied to the calculation of the Residual Rights Fee. The audit shall specifically not review the data that makes up VISTA’s overhead, sales, general or administrative rates. If any such audit discloses that any Residual Rights Fees were understated, the paying party shall pay the amount of such understated Residual Rights Fees plus interest as set forth above and if the audit discloses that the amounts paid hereunder were understated by more than five percent (5%) in any calendar quarter, the chief financial officer or President or Treasurer of Tenantpaying party shall reimburse the nonpaying party for its reasonable and actual costs and expenses incurred in connection with performing such audit. Tenant shall retain for at least No more than one audit may be performed within a one (1) year after period, except if the expiration of each Lease Year all original sales records and sales slips. At the expiration of such three (3) year period Tenant may dispose of such records unless Landlord shall have asserted a claim against Tenant with respect to percentage rent for such yearpreceding audit discloses an understated, in which event such records shall be retained until disposition of such claim: Any claim by Landlord for a revision of any statement of Gross Sales which is not made to Tenant within three (3) years after receipt of even the yearly statement shall be deemed and hereby is waived by Landlord. If any such examination discloses that Gross Sales transacted by Tenant exceed those reported, Tenant shall immediately pay to Landlord such additional percentage rent as may be so shown to be payable by said examination, and interest on such deficiency at the Default Rate, from the date of underpayment to the date such deficiency is paid. If such examination discloses that Gross Sales transacted by Tenant are less than those reported, Tenant nonpaying party shall be entitled to perform a credit against rent next owing. All examinations of Tenant's books and records shall be solely at Landlord's expense; provided, however, that if Tenant's statement of Gross Sales shall be understated by three percent (3%) or more, Tenant shall promptly reimburse Landlord for Landlord's reasonable expenses of examination. Landlord agrees to hold in confidence all sales figures and other information obtained from Tenant's records and yearly statement except to quarterly audit during the extent that it may be necessary to divulge them to prospective purchasers, for the purpose of obtaining financing, in compliance with subpoenas or judicial orders, or to enforce Landlord's rights hereundersuccessive one year period.

Books and Records; Audit. Tenant covenants thatDuring the Earn-Out Period and for six (6) months thereafter, for the purpose of ascertaining the amount payable to Landlord as percentage rent, Tenant will Buyer shall keep in accordance with generally accepted accounting principles consistently applied, accurate and maintain reasonably detailed books and records containing all gross sales during of Net Sales and each month deduction included in the definition of Net Sales. Sellers’ Representative shall have the term hereof right to examine and all supporting audit Buyer’s relevant books and records to verify the accuracy of Net Sales Reports delivered by Buyer pursuant to this Agreement. Any such as excise tax reports, state sales tax"(business and occupation tax and gross income tax reports and receipts, including ST-1 gross receipts tax reporting forms filed by Tenant during the most recent Lease Year, at its headquarters office currently located at Denver, Colorado, which shall, for the purpose of verifying the percentage rent, audit shall be subject to examination by Landlord, its authorized representatives or accountants at reasonable times during business hours upon on at least fourteen ten (1410) days Business Days’ prior written notice, and in a manner which does not unreasonably interfere with the conduct of business. Such records Sellers’ Representative’s right to perform an audit under this Section 2.8(d) shall be retained limited to not more than one (1) such audit in any calendar year and shall not be exercised for at least any calendar quarter more than three (3) years after receipt the end of such calendar quarter. The audit shall be performed at Sellers’ Representative’s sole expense by Landlord an independent certified public accounting firm of internationally recognized standing that is selected by Sellers’ Representative and approved by Buyer (such approval not to be unreasonably withheld, conditioned or delayed). The accounting firm shall be required to enter into a reasonable and customary confidentiality agreement with Buyer to protect the confidentiality of its books and records. Buyer shall make the relevant books and records reasonably available during normal business hours for examination by the accounting firm, including, upon the accounting firm’s request and, to the extent practicable, via an Internet-based electronic dataroom or other electronic means. Upon completion of the yearly statement (hereinafter referred toaudit, the accounting firm shall provide both Buyer and Sellers’ Representative a written report disclosing whether or not the relevant Net Sales Report(s) certified by are correct, and the chief financial officer or President or Treasurer of Tenantspecific details concerning any discrepancies. Tenant shall retain for at least one (1) year after If the expiration of each Lease Year all original sales records and sales slips. At the expiration accounting firm conducting an audit pursuant to this Section 2.8 concludes, as a result of such three audit, that a Milestone Event was achieved, but the corresponding Earn-Out Payment was not paid to Sellers, unless such conclusion is disputed by Buyer as set forth below in this Section 2.8(d), Buyer shall (3x) year period Tenant may dispose of pay such records unless Landlord shall have asserted a claim against Tenant *** Certain information on this page has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to percentage rent the omitted portions. Earn-Out Payment to Sellers in accordance with Section 2.8(a) within ten (10) Business Days of the date that the parties receive such accountant’s written report, together with interest thereon at a rate of [***] per annum from the date on which such Earn-Out Payment was originally due until the date of payment and (y) reimburse Sellers’ Representative for such yearthe documented out-of-pocket expenses incurred in conducting the audit. In the event that Buyer disputes the finding of any audit conducted pursuant to this Section 2.8, Buyer shall so notify Seller’s Representative within [***] after the date on which the parties receive the accountant’s written report, in which event Buyer and Sellers’ Representative shall work in good faith to resolve the dispute. If Buyer and Sellers’ Representative are unable to reach a mutually acceptable resolution of any such records dispute within thirty (30) days, such dispute shall be retained until disposition submitted for resolution to an Independent Accounting Firm. The decision of the Independent Accounting Firm shall be final and, if the Independent Accounting Firm concludes that no Milestone Event was achieved, the costs of such claim: Any claim by Landlord for a revision of any statement of Gross Sales which is not made to Tenant within three (3) years after receipt of dispute resolution as well as the yearly statement initial audit shall be deemed and hereby is waived by Landlordborne between the parties in such manner as the Independent Accounting Firm shall determine. If any the Independent Accounting Firm concludes, as a result of such examination discloses review, that Gross Sales transacted by Tenant exceed those reporteda Milestone Event was achieved, Tenant but the corresponding Earn-Out Payment was not paid to Sellers, not later than [***] after such decision and in accordance with such decision, Buyer shall immediately (1) pay to Landlord such additional percentage rent as may be so shown to be payable by said examination, and Sellers the applicable Earn-Out Payment together with interest on such deficiency thereon at the Default Rate, a rate of [***] per annum from the date of underpayment to on which such Earn-Out Payment was originally due until the date such deficiency is paid. If such examination discloses that Gross Sales transacted by Tenant are less than those reported, Tenant shall be entitled to a credit against rent next owing. All examinations of Tenant's books payment thereof and records shall be solely at Landlord's expense; provided, however, that if Tenant's statement of Gross Sales shall be understated by three percent (3%2) or more, Tenant shall promptly reimburse Landlord for Landlord's reasonable expenses of examination. Landlord agrees to hold in confidence all sales figures and other information obtained from Tenant's records and yearly statement except to the extent that it may be necessary to divulge them to prospective purchasers, Sellers’ Representative for the purpose documented out-of-pocket expenses incurred in conducting the initial audit conducted pursuant to this Section 2.8, as well as those incurred in respect of obtaining financing, in compliance with subpoenas or judicial orders, or to enforce Landlord's rights hereundersuch dispute resolution.

Books and Records; Audit. Tenant covenants thatOcugen and its Affiliates and Sublicensees shall keep and maintain for [***] from the end of the Calendar Year in which such Net Sales occur (the “Retention Period”) materially complete and accurate records of gross Sales and Net Sales of the Product in the Ocugen Territory by, for as applicable, Ocugen, its Affiliates and Sublicensees, in sufficient detail to allow Operating Profit and the purpose Profit Share to be determined accurately. BBIL shall have the right during the applicable Retention Period, and at its cost, through an independent certified public accountant reasonably acceptable to Ocugen, to audit the relevant records of ascertaining Ocugen, its Affiliates and Sublicensees to verify that the amount payable to Landlord as percentage rentof such payment was correctly determined. Ocugen, Tenant will keep its Affiliates and Sublicensees shall each make its records reasonably available for audit by such independent certified public accountant during regular business hours at such place or places where such records are customarily kept, upon [***] written notice from BBIL. Such audit right shall not be exercised by BBIL more than [***] or more than [***]. All records made available for audit shall be the Confidential Information of Ocugen. The results of each audit, if any, shall be binding on both Parties absent manifest error. In the event there was an underpayment by Ocugen hereunder, Ocugen shall promptly (but in accordance with generally accepted accounting principles consistently applied, accurate books and records containing all gross sales during each month any event no later than [***] after Ocugen’s receipt of the term hereof and all supporting records report so concluding) make payment to BBIL of any shortfall. BBIL shall bear the full cost of such as excise tax reportsaudit unless such audit discloses an underreporting by Ocugen of the higher of (a) [***], state sales tax"(business and occupation tax and gross income tax reports and receipts, including ST-1 gross receipts tax reporting forms filed by Tenant or (b) [***] during the most recent Lease Year, at its headquarters office currently located at Denver, Colorado, which shall, for the purpose of verifying the percentage rent, be subject to examination by Landlord, its authorized representatives or accountants at reasonable times during business hours upon at least fourteen (14) days written notice, and in a manner which does not unreasonably interfere with the conduct of business. Such records shall be retained for at least three (3) years after receipt by Landlord of the yearly statement (hereinafter referred to) certified by the chief financial officer or President or Treasurer of Tenant. Tenant shall retain for at least one (1) year after the expiration of each Lease Year all original sales records and sales slips. At the expiration of such three (3) year period Tenant may dispose of such records unless Landlord shall have asserted a claim against Tenant with respect to percentage rent for such yearaudited, in which case Ocugen shall reimburse BBIL for all reasonable costs incurred by BBIL in connection with such audit. In the event the auditor finds an overpayment by Ocugen, Ocugen shall have the right to deduct the overpayment from any Profit Share payment due to BBIL by Ocugen or, if no such records future Profit Share payments are payable, then BBIL shall be retained until disposition of such claim: Any claim by Landlord for a revision of any statement of Gross Sales which is not made refund the overpayment to Tenant Ocugen within three (3) years [***] after receipt of BBIL receives the yearly statement shall be deemed and hereby is waived by Landlord. If any such examination discloses that Gross Sales transacted by Tenant exceed those reported, Tenant shall immediately pay to Landlord such additional percentage rent as may be so shown to be payable by said examination, and interest on such deficiency at the Default Rate, from the date of underpayment to the date such deficiency is paid. If such examination discloses that Gross Sales transacted by Tenant are less than those reported, Tenant shall be entitled to a credit against rent next owing. All examinations of Tenant's books and records shall be solely at Landlord's expense; provided, however, that if Tenant's statement of Gross Sales shall be understated by three percent (3%) or more, Tenant shall promptly reimburse Landlord for Landlord's reasonable expenses of examination. Landlord agrees to hold in confidence all sales figures and other information obtained from Tenant's records and yearly statement except to the extent that it may be necessary to divulge them to prospective purchasers, for the purpose of obtaining financing, in compliance with subpoenas or judicial orders, or to enforce Landlord's rights hereunderaudit report.

Books and Records; Audit. Tenant covenants that, for the purpose of ascertaining the amount payable to Landlord as percentage rent, Tenant will keep in accordance with generally accepted accounting principles consistently applied, accurate books and records containing all gross sales during each month of the term hereof and all supporting records such as excise tax reports, state sales tax"(business and occupation tax and gross income tax reports and receipts, including ST-1 gross receipts tax reporting forms filed by Tenant Each party shall maintain during the most recent Lease Year, at its headquarters office currently located at Denver, Colorado, which shall, Term and for the purpose of verifying the percentage rent, be subject to examination by Landlord, its authorized representatives or accountants at reasonable times during business hours upon at least fourteen (14) days written notice, and in a manner which does not unreasonably interfere with the conduct of business. Such records shall be retained for at least three (3) years after receipt thereafter, complete and accurate books and records sufficient to determine the Residual Rights Fee payments due hereunder. In the event that the other party does not agree with the determination by Landlord the paying party of the yearly statement Residual Rights Fee payments due hereunder, the parties shall use their reasonable efforts to reach agreement on the disputed items or amounts. At the request of the non-paying party, the paying party shall allow a reputable independent public accounting firm or representatives of the non-paying party, at the non-paying party's expense, to verify the accuracy of any Residual Rights Fee calculations. The non-paying party shall give the paying party thirty (hereinafter referred to30) certified days written notice prior to beginning such audit. Such audit shall be reasonably conducted during regular business hours in a non-disruptive manner, and the party performing such audit must agree to be bound to a reasonable non-disclosure agreement. The only information to be reviewed during the course of such an audit shall be that necessary to verify the Residual Rights Fee due hereunder. Such audit may review the Licensee Group's Sales, the direct material and labor costs, and that the applicable DCAA approved rates or equivalent rates per Section 4.2(b)(iii) were applied to the calculation of the Residual Rights Fee. The audit shall specifically not review the data that makes up VISTA's overhead, sales, general or administrative rates. If any such audit discloses that any Residual Rights Fees were understated, the paying party shall pay the amount of such understated Residual Rights Fees plus interest as set forth above and if the audit discloses that the amounts paid hereunder were understated by more than five percent (5%) in any calendar quarter, the chief financial officer or President or Treasurer of Tenantpaying party shall reimburse the nonpaying party for its reasonable and actual costs and expenses incurred in connection with performing such audit. Tenant shall retain for at least No more than one audit may be performed within a one (1) year after period, except if the expiration of each Lease Year all original sales records and sales slips. At the expiration of such three (3) year period Tenant may dispose of such records unless Landlord shall have asserted a claim against Tenant with respect to percentage rent for such yearpreceding audit discloses an understated, in which event such records shall be retained until disposition of such claim: Any claim by Landlord for a revision of any statement of Gross Sales which is not made to Tenant within three (3) years after receipt of even the yearly statement shall be deemed and hereby is waived by Landlord. If any such examination discloses that Gross Sales transacted by Tenant exceed those reported, Tenant shall immediately pay to Landlord such additional percentage rent as may be so shown to be payable by said examination, and interest on such deficiency at the Default Rate, from the date of underpayment to the date such deficiency is paid. If such examination discloses that Gross Sales transacted by Tenant are less than those reported, Tenant nonpaying party shall be entitled to perform a credit against rent next owing. All examinations of Tenant's books and records shall be solely at Landlord's expense; provided, however, that if Tenant's statement of Gross Sales shall be understated by three percent (3%) or more, Tenant shall promptly reimburse Landlord for Landlord's reasonable expenses of examination. Landlord agrees to hold in confidence all sales figures and other information obtained from Tenant's records and yearly statement except to quarterly audit during the extent that it may be necessary to divulge them to prospective purchasers, for the purpose of obtaining financing, in compliance with subpoenas or judicial orders, or to enforce Landlord's rights hereundersuccessive one year period.

Books and Records; Audit. Tenant covenants thatBuyer shall keep full, true and accurate books of account and supporting data containing all particulars that may be necessary for the purpose of ascertaining calculating Net Sales of the amount Products forming the basis for amounts payable to Landlord as percentage rent, Tenant will keep in accordance with generally accepted accounting principles consistently applied, accurate Sellers under this Section 2.9. Such books and records containing all gross sales the supporting data shall be open, on ten (10) Business Days’ prior written notice during each month of the term hereof and all supporting records such as excise tax reports, state sales tax"(business and occupation tax and gross income tax reports and receipts, including ST-1 gross receipts tax reporting forms filed by Tenant during the most recent Lease Year, at its headquarters office currently located at Denver, Colorado, which shall, for the purpose of verifying the percentage rent, be subject to examination by Landlord, its authorized representatives or accountants at reasonable times during normal business hours upon at least fourteen (14) days written notice, and in a manner which does so as not to unreasonably interfere with Buyer’s normal business operations, to the conduct inspection by a firm of business. Such records shall be retained for at least three (3) years after receipt certified public accountants selected by Landlord of the yearly statement (hereinafter referred to) certified by the chief financial officer or President or Treasurer of Tenant. Tenant shall retain for at least one (1) year after the expiration of each Lease Year all original sales records Sellers and sales slips. At the expiration of such three (3) year period Tenant may dispose of such records unless Landlord reasonably acceptable to Buyer who shall have asserted executed a claim against Tenant with respect to percentage rent customary confidentiality agreement, for such year, in which event such records shall be retained until disposition the limited purpose of such claim: Any claim by Landlord for a revision of any statement of Gross verifying Buyer’s Net Sales which is not made to Tenant within three (3) years after receipt of the yearly statement shall be deemed and hereby is waived by Landlord. If any such examination discloses that Gross Sales transacted by Tenant exceed those reported, Tenant shall immediately pay to Landlord such additional percentage rent as may be so shown to be payable by said examination, and interest on such deficiency at the Default Rate, from the date of underpayment to the date such deficiency is paid. If such examination discloses that Gross Sales transacted by Tenant are less than those reported, Tenant shall be entitled to a credit against rent next owing. All examinations of Tenant's books and records shall be solely at Landlord's expenseReports; provided, however, that if Tenant's statement such examinations shall not take place more often than once during any twenty four (24) month-period and shall not cover more than the preceding two (2) years. Except as otherwise provided in this Section 2.9(d), the cost of Gross Sales any such examination shall be understated paid by three Sellers. In the event that any such inspection reveals a deficiency in excess of seven percent (37%) or moreof the reported payments under Section 2.9 for the period covered by the inspection, Tenant Buyer shall promptly reimburse Landlord for Landlord's reasonable expenses of examination. Landlord agrees to hold in confidence all sales figures and other information obtained from Tenant's records and yearly statement except pay Sellers the deficiency, plus interest at an annual rate equal to the extent that it may be necessary to divulge them to prospective purchasersApplicable Rate as of the date on which such deficient amount was first due from the date first due until the date paid, and shall reimburse Seller for the purpose fees and expenses paid to such accountants in connection with such inspection. In the event that any such inspection reveals a deficiency that is less than or equal to seven percent (7%) of obtaining financingthe reported payments under this Section 2.9 for the period covered by the inspection, in compliance with subpoenas or judicial orders, or Buyer shall promptly pay Sellers the deficiency plus interest at an annual rate equal to enforce Landlord's rights hereunderthe Applicable Rate as of the date on which such deficient amount was first due from the date first due until the date paid. In the event that any such inspection reveals an overpayment by the Buyer such overpayment shall be set-off against the following future payment payable by the Buyer to the Sellers under this Section 2.9.

Books and Records; Audit. Landlord shall maintain books and records showing Operating Expenses in accordance with sound accounting and management practices, consistently applied. Subject to the terms and conditions of this Section 6.4, Tenant covenants thator its representative (which representative shall be a certified public accountant licensed to do business in the State of Colorado and whose primary business is certified public accounting) shall have the right, for a period of 180 days following the purpose date upon which the Operating Expense Statement is delivered to Tenant (the “Audit Election Period”), to examine and audit (each, an “Audit”) Landlord’s books and records with respect to the items in such Operating Expense Statement during normal business hours, upon written notice, delivered at least ten (10) business days in advance. If Tenant does not object in writing to the Operating Expense Statement within 180 days after Landlord’s delivery thereof, specifying the nature of ascertaining the item in dispute and the reasons therefor, then the Operating Expense Statement shall be considered final and accepted by Tenant and Landlord. Any amount payable due to Landlord as percentage rentshown on the Operating Expense Statement, whether or not disputed by Tenant will keep in accordance with generally accepted accounting principles consistently appliedas provided herein shall be paid by Tenant when due as provided above, accurate without prejudice to any such written exception. Each Audit must be performed (1) at the location(s) where Landlord’s books and records containing all gross sales are maintained, (2) during each month of the term hereof and all supporting records such as excise tax reports, state sales tax"(business and occupation tax and gross income tax reports and receipts, including ST-1 gross receipts tax reporting forms filed by Tenant during the most recent Lease Year, at its headquarters office currently located at Denver, Colorado, which shall, for the purpose of verifying the percentage rent, be subject to examination by Landlord, its authorized representatives or accountants at reasonable times during normal business hours upon at least fourteen and (143) days written notice, and in a manner which does that will not unreasonably interfere with Landlord’s business activities. Unless Landlord, in good faith, disputes the conduct results of business. Such records such Audit, an appropriate adjustment shall be retained made between Landlord and Tenant to reflect any overpayment of Operating Expenses for at least three the Calendar Year in question within thirty (330) years after receipt by Landlord of the yearly statement (hereinafter referred to) certified by the chief financial officer or President or Treasurer of Tenantdays. Tenant shall retain for at least one (1) year after agrees to pay the expiration of each Lease Year all original sales records and sales slips. At the expiration of such three (3) year period Tenant may dispose of such records unless Landlord shall have asserted a claim against Tenant with respect to percentage rent for such year, in which event such records shall be retained until disposition of such claim: Any claim by Landlord for a revision cost of any statement of Gross Sales which is not made to Tenant within three (3) years after receipt of the yearly statement shall be deemed and hereby is waived by Landlord. If any such examination discloses that Gross Sales transacted by Tenant exceed those reported, Tenant shall immediately pay to Landlord such additional percentage rent as may be so shown to be payable by said examination, and interest on such deficiency at the Default Rate, from the date of underpayment to the date such deficiency is paid. If such examination discloses that Gross Sales transacted by Tenant are less than those reported, Tenant shall be entitled to a credit against rent next owing. All examinations of Tenant's books and records shall be solely at Landlord's expenseAudit; provided, however, that if Tenant's statement the Audit reveals that Landlord’s determination of Gross Sales shall be understated the total Operating Expenses for the Project that was used as the basis of the relevant Operating Expense Statement was in error in Landlord’s favor by three more than five percent (35%) ), then Landlord agrees to pay up to $5,000.00 of the actual, out-of-pocket costs of such Audit incurred by Tenant (which costs must be determined on a reasonable hourly basis, and not a percentage or morecontingent fee basis). Notwithstanding anything in this Lease to the contrary, Tenant shall promptly reimburse have no right to conduct an Audit if Landlord furnishes to Tenant an audit report for Landlord's reasonable expenses the Calendar Year in question prepared by an independent certified public accounting firm of examinationrecognized regional or national standing (whether originally prepared for Landlord or another party). Landlord agrees to hold in confidence all sales figures and other information obtained from Tenant's records and yearly statement except ’s rights under this Section 6.4 are subject to the extent that it may be necessary to divulge them to prospective purchasers, for the purpose of obtaining financing, in compliance with subpoenas or judicial orders, or to enforce Landlord's rights hereunder.following additional conditions:

Books and Records; Audit. Tenant covenants that, for Landlord shall maintain books and records of the purpose of ascertaining the amount payable to Landlord as percentage rent, Tenant will keep Operating Expenses in accordance with generally accepted sound accounting principles consistently appliedand management practices. If Tenant wishes to audit the amount of Operating Expenses or any component thereof as to a particular year, accurate Tenant must deliver to Landlord written notice of Tenant’s desire to audit Landlord’s books and records containing all gross sales during each month (“Audit Notice”). Such audit will be conducted (i) within sixty (60) days following delivery of the term hereof Audit Notice, (ii) during normal business hours at Landlord’s business offices or at the management office of the Building; (iii) on consecutive business days until completed; (iv) in an expeditious manner so as to minimize interference with Landlord’s books and all supporting records at Tenant’s sole cost and expense; and (v) by an auditor reasonably acceptable to Landlord and Tenant (without limiting other reasons, it will be reasonable for Landlord to disapprove an auditor on the basis that the auditor is paid on a contingency fee basis). Tenant shall pay in a timely manner as required by this Lease any amounts stated as due on the Actual Statement, provided that such as excise tax reports, state sales tax"(business and occupation tax and gross income tax reports and receipts, including ST-1 gross receipts tax reporting forms filed payment shall not waive any right to audit and/or dispute by Tenant during as set forth herein. Tenant agrees to deliver to Landlord the most recent Lease Yearresults of any such audit within ninety (90) days of completion of the audit. If Tenant does not deliver an Audit Notice as to any Actual Statement within the time frames set forth hereinabove, at its headquarters office currently located at Denverthen such Actual Statement will be conclusively binding on Tenant. If Tenant’s audit reveals that Landlord has overcharged Tenant, Colorado, which shall, for then within thirty (30) days after the purpose results of verifying the percentage rent, be subject such audit are made available to examination by Landlord, its authorized representatives or accountants at reasonable times during business hours upon at least fourteen Landlord shall reimburse Tenant the amount of such overcharge. If the audit reveals that Tenant was undercharged, then within thirty (1430) days written noticeafter the results of the audit are made available to Tenant, and Tenant shall reimburse Landlord the amount of such undercharge. Tenant shall pay the cost of such audit, provided that if the audit reveals that Landlord’s determination of Tenant’s Share of Operating Expenses as set forth in an Actual Statement was in error in Landlord’s favor by more than five percent (5%) of the amount paid by Tenant prior to delivering the Audit Notice, then Landlord shall pay the reasonable, third-party cost of such audit incurred by Tenant within thirty (30) days of demand by Tenant. To the extent Landlord must pay the cost of such audit, such cost shall not exceed a manner which does not unreasonably interfere reasonable hourly charge for a reasonable amount of hours spent by such third-party in connection with the conduct of businessaudit. Such records Landlord shall not be retained liable for at least three (3) years after receipt by Landlord of the yearly statement (hereinafter referred to) certified by the chief financial officer or President or Treasurer any contingency fee payments to any consultants of Tenant. Tenant shall retain for at least one (1) year after agrees to keep the expiration of each Lease Year all original sales records and sales slips. At the expiration of such three (3) year period Tenant may dispose of such records unless Landlord shall have asserted a claim against Tenant with respect to percentage rent for such year, in which event such records shall be retained until disposition of such claim: Any claim by Landlord for a revision of any statement of Gross Sales which is not made to Tenant within three (3) years after receipt results of the yearly statement shall be deemed audit and hereby is waived by Landlord. If any such examination discloses that Gross Sales transacted by Tenant exceed those reportedsettlement resulting therefrom confidential and will cause its agents, Tenant shall immediately pay employees and contractors to Landlord such additional percentage rent as may be so shown to be payable by said examination, and interest on such deficiency at keep the Default Rate, from the date of underpayment to the date such deficiency is paid. If such examination discloses that Gross Sales transacted by Tenant are less than those reported, Tenant shall be entitled to a credit against rent next owing. All examinations of Tenant's books and records shall be solely at Landlord's expense; provided, however, that if Tenant's statement of Gross Sales shall be understated by three percent (3%) or more, Tenant shall promptly reimburse Landlord for Landlord's reasonable expenses of examination. Landlord agrees to hold in confidence all sales figures and other information obtained from Tenant's records and yearly statement except to the extent that it may be necessary to divulge them to prospective purchasers, for the purpose of obtaining financing, in compliance with subpoenas or judicial orders, or to enforce Landlord's rights hereundersame confidential.