Common use of Books and Records; Audit Clause in Contracts

Books and Records; Audit. Landlord shall maintain books and records of the Operating Expenses in accordance with sound accounting and management practices. If Tenant wishes to audit the amount of Operating Expenses or any component thereof as to a particular year, Tenant must deliver to Landlord written notice of Tenant's desire to audit Landlord's books and records ("AUDIT NOTICE"). Such audit will be conducted (i) within sixty (60) days following delivery of the 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 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 payment shall not waive any right to audit and/or dispute by Tenant as set forth herein. Tenant agrees to deliver to Landlord the results 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, then such Actual Statement will be conclusively binding on Tenant.

Books and Records; Audit. Landlord During the Earn-Out Period and for six (6) months thereafter, Buyer shall keep and maintain reasonably detailed books and records of Net Sales and each deduction included in the Operating Expenses in accordance with sound accounting definition of Net Sales. Sellers’ Representative shall have the right to examine and management practices. If Tenant wishes to audit the amount of Operating Expenses or any component thereof as to a particular year, Tenant must deliver to Landlord written notice of Tenant's desire to audit Landlord's Buyer’s relevant books and records to verify the accuracy of Net Sales Reports delivered by Buyer pursuant to this Agreement. Any such audit shall be on at least ten ("AUDIT NOTICE"10) Business Days’ prior written notice. Sellers’ Representative’s right to perform an audit under this Section 2.8(d) shall be limited to not more than one (1) such audit in any calendar year and shall not be exercised for any calendar quarter more than three (3) years after the end of such calendar quarter. The audit shall be performed at Sellers’ Representative’s sole expense by 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). Such audit will The accounting firm shall be conducted (i) within sixty (60) days following delivery 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 Audit Notice, (ii) relevant books and records reasonably available during normal business hours at Landlord's business offices 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 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 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)electronic means. Tenant shall pay in a timely manner as required by this Lease any amounts stated as due on the Actual Statement, provided that such payment shall not waive any right to audit and/or dispute by Tenant as set forth herein. Tenant agrees to deliver to Landlord the results of any such audit within ninety (90) days of Upon completion of the audit, the accounting firm shall provide both Buyer and Sellers’ Representative a written report disclosing whether or not the relevant Net Sales Report(s) are correct, and the specific details concerning any discrepancies. If Tenant does the accounting firm conducting an audit pursuant to this Section 2.8 concludes, as a result of such audit, that a Milestone Event was achieved, but the corresponding Earn-Out Payment was not deliver an Audit Notice paid to Sellers, unless such conclusion is disputed by Buyer as to any Actual Statement within the time frames set forth hereinabovebelow in this Section 2.8(d), then Buyer shall (x) pay such Actual Statement will *** 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 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 the 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 dispute within thirty (30) days, such dispute shall be conclusively binding 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 dispute resolution as well as the initial audit shall be borne between the parties in such manner as the Independent Accounting Firm shall determine. If the Independent Accounting Firm concludes, as a result of such review, that a Milestone Event was achieved, 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 (1) pay to Sellers the applicable Earn-Out Payment together with interest thereon at a rate of [***] per annum from the date on Tenantwhich such Earn-Out Payment was originally due until the date of payment thereof and (2) reimburse Sellers’ Representative for the 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 such dispute resolution.

Books and Records; Audit. Landlord shall maintain books and records of the Operating Expenses in accordance with sound accounting and management practices. If Tenant wishes to audit the amount of Operating Expenses or any component thereof as to a particular year, Tenant must deliver to Landlord written notice of Tenant's ’s desire to audit Landlord's ’s books and records ("AUDIT NOTICE"“Audit Notice”). Such audit will be conducted (i) within sixty (60) days following delivery of the Audit Notice, (ii) during normal business hours at Landlord's ’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 ’s books and records at Tenant's ’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 payment shall not waive any right to audit and/or dispute by Tenant as set forth herein. Tenant agrees to deliver to Landlord the results 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, then such Actual Statement will be conclusively binding on Tenant. If Tenant’s audit reveals that Landlord has overcharged Tenant, then within thirty (30) days after the results of such audit are made available to Landlord, Landlord shall reimburse Tenant the amount of such overcharge. If the audit reveals that Tenant was undercharged, then within thirty (30) days after the results of the audit are made available to Tenant, 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 reasonable hourly charge for a reasonable amount of hours spent by such third-party in connection with the audit. Landlord shall not be liable for any contingency fee payments to any consultants of Tenant. Tenant agrees to keep the results of the audit and any settlement resulting therefrom confidential and will cause its agents, employees and contractors to keep the same confidential.

Books and Records; Audit. Landlord shall agrees to maintain its books and records in connection with the performance of the Operating Expenses its duties hereunder in accordance with sound generally accepted accounting principles, consistently applied, and management practicesto maintain copies of all contracts, invoices, canceled checks and other documentation reasonably required to support the xxxxxxxx for CAM Charges for a period of at least three (3) years after the conclusion of each fiscal year. If The failure of Landlord to include any expenditure in the Statement delivered to Tenant wishes shall be deemed a waiver by Landlord of Landlord's right to audit the amount of Operating Expenses or any component thereof as to a particular year, demand payment from Tenant must deliver to Landlord written notice of for Tenant's desire Pro Rata Share thereof unless Tenant shall seek a recalculation of its Pro Rata Share as provided below in which case Landlord may adjust its statement. Tenant shall have the right to audit audit, at Landlord's place of business and at reasonable time, Landlord's books and records ("AUDIT NOTICE")including receipted invoices, canceled checks and other supporting materials and documentation necessary to evidence Landlord's payment of CAM Charges as described above) pertaining to CAM Charges, Taxes and the operation and maintenance of the Common Areas. Such If such audit will be conducted discloses any error in the determination of CAM Charges or Taxes, or in calculating Tenant's Pro Rata Share thereof, Landlord shall refund to Tenant any overcharge or xxxx Tenant for any undercharge within thirty (i) within sixty (6030) days following delivery of receipt of notice of the Audit Noticenecessary adjustment from Tenant. The cost of such audit shall be paid by Tenant, (ii) during normal business hours at Landlord's business offices or at the management office unless Tenant shall be entitled to a refund in excess of five percent of the Building; amount calculated by Landlord, in which case Landlord shall reimburse Tenant for the reasonable costs of such audit (iii) on consecutive business days until completed; (iv) in an expeditious manner so as to minimize interference with Landlord's books and records at Tenant's sole cost and expense; and (v) whether such audit was performed 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 or by a contingency fee basisthird party). Tenant shall pay in a timely manner as required by this Lease any amounts stated as due on the Actual Statement, provided that such payment shall not waive any right to audit and/or dispute by Tenant as set forth herein. Tenant agrees to deliver to Landlord keep the results of any such the audit within ninety (90) days of completion of confidential, in the audit. If Tenant does not deliver an Audit Notice same manner as to any Actual Statement within the time frames set forth hereinabove, then such Actual Statement will be conclusively binding on Tenantit treats its own confidential information.

Books and Records; Audit. Landlord shall maintain books and records of the 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 or 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 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 wishes does not object in writing to audit the Operating Expense Statement within 180 days after Landlord’s delivery thereof, specifying the nature of 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 of Operating Expenses or any component thereof as to a particular year, Tenant must deliver due to Landlord as shown on the Operating Expense Statement, whether or not disputed by Tenant as provided herein shall be paid by Tenant when due as provided above, without prejudice to any such written notice of Tenant's desire to audit exception. Each Audit must be performed (1) at the location(s) where Landlord's ’s books and records ("AUDIT NOTICE"). Such audit will be conducted (i) within sixty (60) days following delivery of the Audit Noticeare maintained, (ii2) during normal business hours at Landlord's business offices or at the management office of the Building; and (iii) on consecutive business days until completed; (iv3) in an expeditious a manner so as to minimize interference that will not unreasonably interfere with Landlord's books and records at Tenant's sole cost and expense; and (v) by ’s business activities. Unless Landlord, in good faith, disputes the results of such Audit, an auditor reasonably acceptable to appropriate adjustment shall be made between Landlord and Tenant to reflect any overpayment of Operating Expenses for the Calendar Year in question within thirty (without limiting other reasons30) days. Tenant agrees to pay the cost of any Audit; provided, it will be reasonable however, that if the Audit reveals that Landlord’s determination of the total Operating Expenses for Landlord to disapprove an auditor on the Project that was used as the basis that of the auditor is paid relevant Operating Expense Statement was in error in Landlord’s favor by more than five percent (5%), 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 contingency reasonable hourly basis, and not a percentage or contingent fee basis). Notwithstanding anything in this Lease to the contrary, Tenant shall pay have no right to conduct an Audit if Landlord furnishes to Tenant an audit report for the Calendar Year in question prepared by an independent certified public accounting firm of recognized regional or national standing (whether originally prepared for Landlord or another party). Tenant’s rights under this Section 6.4 are subject to the following additional conditions: (a) There is no uncured event of default under this Lease then in existence; (b) Each Audit shall be prepared by an independent certified public accounting firm of recognized national or regional standing using Generally Accepted Auditing Standards and auditing or attestation standards published by the American Institute of CPAs (“AICPA”); (c) Each Audit shall commence within forty-five (45) days after Landlord makes Landlord’s books and records available to Tenant’s auditor and shall conclude within seventy-five (75) days after commencement; (d) Tenant and its accounting firm shall treat any Audit in a timely confidential manner as required and shall each execute a commercially reasonable confidentiality agreement for Landlord’s benefit prior to commencing the Audit; (e) 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 this Lease any amounts stated as due on Landlord shall be incorporated into the Actual Statement, provided final audit report (it being the intention of the parties that such payment shall not waive any Landlord’s right to review is intended to prevent errors and avoid disputes and not to unduly influence Tenant’s auditor in the preparation of the final audit and/or dispute by Tenant as set forth herein. Tenant agrees to deliver to Landlord the results of any report, and Landlord’s review shall in no event be deemed an endorsement of, or agreement with, such audit within ninety report); (90f) days of completion of the audit. If Tenant does not deliver an give written notice of its election to Audit Notice as Landlord’s Operating Expenses during the Audit Election Period, Landlord’s Operating Expenses for the applicable Calendar Year shall be deemed approved for all purposes, and Tenant shall have no further right to review or contest the same; (g) If Tenant elects to Audit, the Audit shall be the Tenant’s exclusive remedy with respect to disputing Operating Expenses for the applicable Calendar Year, provided that this sentence shall not diminish Tenant’s right to any Actual Statement within refunds of overpayments of Operating Expenses that may be owed after final resolution of any audit); (h) At the time frames set forth hereinaboveconclusion of any Audit, then Tenant and its employees, auditors and agents shall return all copies of supporting documentation made in connection with such Actual Statement will Audit; and (i) 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 conclusively binding on Tenantavailable to any subtenant under a sublease of the Leased Premises.