Common use of Disputes/Audit Rights Clause in Contracts

Disputes/Audit Rights. (i) Any statement furnished to Tenant by Landlord under the preceding paragraph or other provisions of this Article shall constitute a final determination as between Landlord and Tenant of the additional rent due from Tenant for the period represented thereby unless Tenant, within one hundred twenty (120) days after a statement is furnished, shall have given a notice to Landlord that Tenant disputes the correctness of the statement, specifying in detail the basis for such assertion. Pending resolution of such a dispute, Tenant shall pay the additional rent in accordance with the statement furnished by Landlord. (ii) Within one hundred twenty (120) days after receipt of Landlord’s statement seeking payment of Tenant’s proportionate share of increases in Annual Operating Costs and/or Tenant proportionate share of Tenant Energy Costs, Tenant or its staff employees or an independent certified public accountant shall have the right upon at least five (5) days’ notice to Landlord, at any time during regular business hours, at Landlord’s offices at the address set forth in the heading of this Lease, to audit and review Landlord’s records relating to Base Operating Costs and Annual Operating Costs and/or Tenant Energy Costs for the period covered by such Landlord statement. If after such inspection, and audit, Tenant disagrees with Landlord’s calculation of additional rent, Tenant shall so advise Landlord in writing and shall specify the reasons for such disagreement. If Landlord and Tenant are unable to resolve such disagreement within sixty (60) day of Landlord’s receipt of such notice, then Landlord and Tenant shall select a mutually agreeable third party, either an accountant, consultant or real estate professional (the “Expert”), who will review all information supplied to Tenant in connection with said disputed item(s) and determine the amount of the overpayment, if any. The findings of such Expert shall be binding on both parties and not subject to appeal. If the Expert determines that Tenant has overpaid Tenant’s proportionate share of increases in Annual Operating Costs or Tenant’s proportionate share of Tenant Energy Costs. Landlord shall refund said overpayment to Tenant within thirty (30) days from the date of the Expert’s findings and shall promptly adjust Tenant’s estimated payments of Annual Operating Costs if necessary. (iii) Except as set forth in the next succeeding sentence, Landlord and Tenant shall each be responsible for one-half the costs and expenses of any Expert agreed to as aforesaid. If the Expert determines that Tenant’s proportionate share of increases in Annual Operating Costs or Tenant’s proportionate share of Tenant Energy Costs was overstated by five percent (5%) or more, then Landlord shall reimburse Tenant for all of Tenant’s reasonable expenses and fees incurred for the audit at the time such overpayment is returned to Tenant and Landlord shall be responsible for all of the costs and expenses of any Expert agreed to as aforesaid. Landlord’s obligation to reimburse Tenant for such audit costs shall not exceed the average amount which would be paid to anyone of the “big 4” national accounting firms (a “Big 4 Firm”) operating in the United States. Tenant may engage only a national reputable auditing firm to conduct the above described audit at a fee which would not be calculated in whole or in part on savings to be realized by Tenant. (iv) All of the information obtained through Tenant’s inspection with respect to financial matters (including, without limitation, costs, expenses, income), as well as any compromise, settlement, or adjustment reached between Landlord and Tenant relative to the results of the inspection shall be held in confidence by Tenant and its officers, agents, and employees and, except as may be required by applicable law or in connection with any court proceeding, arbitration, mediation or other proceeding where such information is relevant, shall not be divulged to any other person, firm, corporation, business organization, consultant, entity or occupant or tenant of Chesterbrook Corporate Center® or Glenhardie Corporate Center® at any time; and Tenant shall cause its accountant or consultant and any of its officers, agents and employees to be similarly bound. (v) As a condition precedent to Tenant’s exercise of its rights to audit under this Article 4 (Ii), Tenant must deliver to Landlord a signed agreement from Tenant’s representatives who will perform such audit acknowledging that all of the results of such audit as well as any compromise, settlement, or adjustment reached by Landlord and Tenant shall be held in strict confidence and not be revealed in any manner to any person except (A) with the prior written consent of Landlord, (B) as may be required by applicable law or in connection with any court proceeding, arbitration, mediation or other proceeding where such information is relevant, and (C) to accountants and other persons who prepare or otherwise deal with the financial statements of Tenant.

Disputes/Audit Rights. (i) Any statement furnished to Tenant by Landlord under the preceding paragraph or other provisions of this Article shall constitute a final determination as between Landlord and Tenant of the additional rent due from Tenant for the period represented thereby unless Tenant, within one hundred twenty (120) days after a statement is furnished, shall have given a notice to Landlord that Tenant disputes the correctness of the statement, specifying in detail the basis for such assertion. Pending resolution of such a dispute, Tenant shall pay the additional rent in accordance with the statement furnished by Landlord. (ii) Within one hundred twenty (120) days after receipt of Landlord’s statement seeking payment of Tenant’s proportionate share of increases in Annual Operating Costs and/or Tenant proportionate share of Tenant Energy Costs, Tenant or its staff employees or an independent certified public accountant shall have the right upon at least five (5) days’ notice to Landlord, at any time during regular business hours, at Landlord’s offices at the address set forth in the heading of this Lease, to audit and review Landlord’s records relating to Base Operating Costs and ‘Annual Operating Costs and/or Tenant Energy Costs for the period covered by such Landlord statement. If after such inspection, and audit, Tenant disagrees with Landlord’s calculation of additional rent, Tenant shall so advise Landlord in writing and shall specify the reasons for such disagreement. If Landlord and Tenant are unable to resolve such disagreement within sixty (60) day of Landlord’s receipt of such notice, then Landlord and Tenant shall select a mutually agreeable third party, either an accountant, consultant or real estate professional (the “Expert”), who will review all information supplied to Tenant in connection with said disputed item(s) and determine the amount of the overpayment, if any. The findings of such Expert shall be binding on both parties and not subject to appeal. If the Expert determines that Tenant has overpaid Tenant’s proportionate share of increases in Annual Operating Costs or Tenant’s proportionate share of Tenant Energy Costs. Landlord shall refund said overpayment to Tenant within thirty (30) days from the date of the Expert’s findings and shall promptly adjust Tenant’s estimated payments of Annual Operating Costs if necessary. (iii) Except as set forth in the next succeeding sentence, Landlord and Tenant shall each be responsible for one-half the costs and expenses of any Expert agreed to as aforesaid. If the Expert determines that Tenant’s proportionate share of increases in Annual Operating Costs or Tenant’s proportionate share of Tenant Energy Costs was overstated by five percent (5%) or more, then Landlord shall reimburse Tenant for all of Tenant’s reasonable expenses and fees incurred for the audit at the time such overpayment is returned to Tenant and Landlord shall be responsible for all of the costs and expenses of any Expert agreed to as aforesaid. Landlord’s obligation to reimburse Tenant for such audit costs shall not exceed the average amount which would be paid to anyone of the “big 4” national accounting firms (a “Big 4 Firm”) operating in the United States. Tenant may engage only a national reputable auditing firm to conduct the above described audit at a fee which would not be calculated in whole or in part on savings to be realized by Tenant. (iv) All of the information obtained through Tenant’s inspection with respect to financial matters (including, without limitation, costs, expenses, income), as well as any compromise, settlement, or adjustment reached between Landlord and Tenant relative to the results of the inspection shall be held in confidence by Tenant and its officers, agents, and employees and, except as may be required by applicable law or in connection with any court proceeding, arbitration, mediation or other proceeding where such information is relevant, shall not be divulged to any other person, firm, corporation, business organization, consultant, entity or occupant or tenant of Chesterbrook Corporate Center® or Glenhardie Corporate Center® at any time; and Tenant shall cause its accountant or consultant and any of its officers, agents and employees to be similarly bound. (v) As a condition precedent to Tenant’s exercise of its rights to audit under this Article 4 (Iih), Tenant must deliver to Landlord a signed agreement from Tenant’s representatives who will perform such audit acknowledging that all of the results of such audit as well as any compromise, settlement, or adjustment reached by Landlord and Tenant shall be held in strict confidence and not be revealed in any manner to any person except (A) with the prior written consent of Landlord, (B) as may be required by applicable law or in connection with any court proceeding, arbitration, mediation or other proceeding where such information is relevant, and (C) to accountants and other persons who prepare or otherwise deal with the financial statements of Tenant.

Disputes/Audit Rights. (i) Any statement furnished to Tenant by Landlord under the preceding paragraph or other provisions of this Article shall constitute a final determination as between Landlord and Tenant of the additional rent due from Tenant for the period represented thereby unless Tenant, within one hundred twenty (120) days after a statement is furnished, shall have given a notice to Landlord that Tenant disputes the correctness of the statement, specifying in detail the basis for such assertion. Pending resolution of such a dispute, Tenant shall pay the additional rent in accordance with the statement furnished by Landlord. (ii) Within one hundred twenty (120) days after receipt of Landlord’s statement seeking payment of Tenant’s proportionate share of increases in Annual Operating Costs and/or Tenant proportionate share of Tenant Energy Costs, Tenant or its staff employees or an independent certified public accountant shall have the right upon at least five (5) days’ notice to Landlord, at any time during regular business hours, at Landlord’s offices at the address set forth in the heading of this Lease, to audit and review Landlord’s records relating to Base Operating Costs and Annual Operating Costs and/or Tenant Energy Costs for the period covered by such Landlord statement. If after such inspection, and audit, Tenant disagrees with Landlord’s calculation of additional rent, Tenant shall so advise Landlord in writing and shall specify the reasons for such disagreement. If Landlord and Tenant are unable to resolve such disagreement within sixty (60) day of Landlord’s receipt of such notice, then Landlord and Tenant shall select a mutually agreeable third party, either an accountant, consultant or real estate professional (the “Expert”), who will review all information supplied to Tenant in connection with said disputed item(s) and determine the amount of the overpayment, if any. The findings of such Expert shall be binding on both parties and not subject to appeal. If the Expert determines that Tenant has overpaid Tenant’s proportionate share of increases in Annual Operating Costs or Tenant’s proportionate share of Tenant Energy Costs. Landlord shall refund said overpayment to Tenant within thirty (30) days from the date of the Expert’s findings and shall promptly adjust Tenant’s estimated payments of Annual Operating Costs if necessary. (iii) Except as set forth in the next succeeding sentence, Landlord and Tenant shall each be responsible for one-half the costs and expenses of any Expert agreed to as aforesaid. If the Expert determines that Tenant’s proportionate share of increases in Annual Operating Costs or Tenant’s proportionate share of Tenant Energy Costs was overstated by five percent (5%) or more, then Landlord shall reimburse Tenant for all of Tenant’s reasonable expenses and fees incurred for the audit at the time such overpayment is returned to Tenant and Landlord shall be responsible for all of the costs and expenses of any Expert agreed to as aforesaid. Landlord’s obligation to reimburse Tenant for such audit costs shall not exceed the average amount which would be paid to anyone of the “big 4” national accounting firms (a “Big 4 Firm”) operating in the United States. Tenant may engage only a national reputable auditing firm to conduct the above described audit at a fee which would not be calculated in whole or in part on savings to be realized by Tenant. (iv) All of the information obtained through Tenant’s inspection with respect to financial matters (including, without limitation, costs, expenses, income), as well as any compromise, settlement, or adjustment reached between Landlord and Tenant relative to the results of the inspection shall be held in confidence by Tenant and its officers, agents, and employees and, except as may be required by applicable law or in connection with any court proceeding, arbitration, mediation or of other proceeding where such information is relevant, shall not be divulged to any other person, firm, corporation, business organization, consultant, entity or occupant or tenant of Chesterbrook Corporate Center® or Glenhardie Corporate Center® at any time; and Tenant shall cause its accountant or consultant and any of its officers, agents and employees to be similarly bound. (v) As a condition precedent to Tenant’s exercise of its rights to audit under this Article 4 (Iih), Tenant must deliver to Landlord a signed agreement from Tenant’s representatives who will perform such audit acknowledging that all of the results of such audit as well as any compromise, settlement, or adjustment reached by Landlord and Tenant shall be held in strict confidence and not be revealed in any manner to any person except (A) with the prior written consent of Landlord, (B) as may be required by applicable law or in connection with any court proceeding, arbitration, mediation or other proceeding where such information is relevant, and (C) to accountants and other persons who prepare or otherwise deal with the financial statements of Tenant (vi) Lease Tax. If federal, state or local law now or hereafter imposes any tax, assessment, levy or other charge (other than any income tax) directly or indirectly upon the Landlord with respect to this Lease or the value thereof, or upon the Tenant’s use or occupancy of the Building, or upon the rent, additional rent or any other sums payable under this Lease or upon this transaction, except if and to the extent that the same are included in the Annual Operating Costs (all of which are herein called “Lease Taxes”) the Tenant shall pay to the Landlord, as additional rent hereunder and upon demand, the amount of such tax, assessment, levy or other charge, unless the Tenant shall be prohibited by law from paying such tax, assessment levy or other charge, in which event the Landlord shall be entitled, at its election, to terminate this Lease by written notice to the Tenant.

Disputes/Audit Rights. (i) Any statement furnished to Tenant by Landlord under the preceding paragraph or other provisions of this Article shall constitute a final determination as between Landlord and Tenant of the additional rent due from Tenant for the period represented thereby unless Tenant, within one hundred twenty eighty (120180) days after a statement is furnished, shall have given a notice to Landlord that Tenant disputes the correctness of the statement, specifying in detail the basis for such assertion. Pending resolution of such a dispute, Tenant shall pay the additional rent in accordance with the statement furnished by LandlordLandlord which payment will be without prejudice. (ii) Within one hundred twenty eighty days (120180) days after receipt of Landlord’s a statement from Landlord seeking payment of Tenant’s proportionate share of increases in Annual Operating Costs and/or Tenant proportionate Tenant’s share of Tenant Energy Costs, Tenant or its staff employees or an independent certified public accountant shall have the right upon at least five (5) days’ notice to Landlord, at any time during regular business hours, at Landlord’s offices at the address set forth in the heading of this Lease, to audit and review Landlord’s records relating to Base Operating Costs and Annual Operating Costs and/or Tenant Energy Costs for the period covered by such Landlord statement. If after such inspection, audit and audit, inspection Tenant disagrees with Landlord’s calculation of additional rent, Tenant shall so advise Landlord in writing and shall specify the reasons for such disagreement. If Landlord and Tenant are unable to resolve such disagreement within sixty forty-five (6045) day days of Landlord’s receipt of such notice, then Landlord and Tenant shall select a mutually agreeable impartial third party, either an accountant, consultant or real estate professional (the “Expert”), who will review all information supplied to Tenant in connection with said disputed item(s) and determine the amount of the overpayment, if any. The findings of such Expert shall be binding on both parties and not subject to appeal. If the Expert determines that Tenant has overpaid Tenant’s proportionate share of increases in Annual Operating Costs or Tenant’s proportionate share of Tenant Energy Costs. Landlord shall promptly refund said overpayment to Tenant within thirty (30) days from the date of the Expert’s findings and shall promptly adjust Tenant’s estimated payments of Annual Operating Costs if necessary. (iii) Except as set forth in the next succeeding sentence, Landlord and Tenant shall each be responsible for one-half the costs and expenses of any Expert agreed to as aforesaid. If the Expert determines that Tenant’s proportionate share of increases in Annual Operating Costs or Tenant’s proportionate share of Tenant Energy Costs was overstated by five percent (5%) or more, then Landlord shall reimburse be responsible for the fees and expenses of the Expert. Otherwise Tenant shall be responsible for all the fees and expenses of the Expert. If the Expert determines that Tenant’s reasonable expenses and fees incurred for the audit at the time such overpayment is returned to proportionate share of increases in Annual Operating Costs or Tenant’s share of Tenant and Energy Costs was overstated by ten percent (10%) or more, then Landlord shall be responsible for all of the costs reasonable fees and expenses of any Expert agreed to as aforesaid. Landlord’s obligation to reimburse incurred by Tenant for such audit costs shall not exceed the average amount which would be paid to anyone of the “big 4” national accounting firms (a “Big 4 Firm”) operating in the United Statesconnection with its audit. Tenant may engage only a national reputable auditing firm to conduct the above described an audit at of Landlord which firm may not be paid a fee which would not be calculated in whole or in part on savings to be realized by Tenant. (iv) All of the information obtained through Tenant’s inspection the above described audit and review with respect to financial matters (including, without limitation, costs, expenses, income), as well as any compromise, settlement, or adjustment reached between Landlord and Tenant relative to the results of the audit and inspection shall be held in confidence by Tenant and its officers, agents, and employees and, except as may be required by applicable law or in connection with any court proceeding, arbitration, mediation or other proceeding where such information is relevant, shall not be divulged to any other person, firm, corporation, business organization, consultant, entity or occupant or tenant of Chesterbrook Corporate Center® or Glenhardie Corporate Center® at any time; and Tenant shall cause its accountant or consultant and any of its officers, agents and employees to be similarly bound. (v) As a condition precedent to Tenant’s exercise of its rights to audit and inspect under this Article 4 (Iih), Tenant must deliver to Landlord a signed agreement from Tenant’s representatives who will perform such audit and inspection acknowledging that all of the results of such audit and inspection as well as any compromise, settlement, or adjustment reached by Landlord and Tenant shall be held in strict confidence and not be revealed in any manner to any person except (A) with the prior written consent of Landlord, (B) as may be required by applicable law or in connection with any court proceeding, arbitration, mediation or other proceeding where such information is relevant, and (C) to accountants and other persons who prepare or otherwise deal with the financial statements of Tenant.