Common use of Landlord’s Annual Operating Statement Clause in Contracts

Landlord’s Annual Operating Statement. (a) Within 180 days after the end of each Lease Year following the Base Lease Year, Landlord shall endeavor to furnish to Tenant Landlord’s statement in respect of Operating Expenses for such Lease Year (an “Operating Statement”). Currently, the form of Operating Statement used by Landlord is substantially in the form attached hereto as Exhibit U. Landlord reserves the right, from time to time, to change the form of Operating Statement provided such changes do not result in less information and/or fewer categories of Operating Expenses being provided than is provided in Exhibit U. If any Operating Statement shall show that the sums paid by Tenant under Section 4.04 exceeded Tenant’s Operating Payment owed for such Lease Year, Landlord, at Tenant’s election, if elected by Tenant by notice given to Landlord within 15 days after the date Landlord has given the Operating Statement to Tenant or, if such notice shall not be timely given by Tenant, then, at Landlord’s election, shall either refund to Tenant the amount thereof within 30 days after the delivery of such Operating Statement or credit Tenant against the Rent subsequently payable under this Lease with the amount of such excess (so long as there are sufficient Rent payments remaining to be paid by Tenant to satisfy such credit). If any Operating Statement shall show that the sums so paid by Tenant were less than Tenant’s Operating Payment owed for such Lease Year, Tenant shall pay the amount of such deficiency within 30 days after the delivery of such Operating Statement.‌‌‌‌‌ (b) Within 180 days after the end of the Base Lease Year, Landlord shall endeavor to furnish to Tenant Landlord’s statement in respect of Operating Expenses for such Base Lease Year (the “Base Lease Year Statement”), which Base Lease Year Statement shall be substantially in the same form and contain the same categories of Operating Expenses as the form of Operating Statement.‌‌ (c) Landlord’s failure to render an Operating Statement with respect to any Lease Year shall not prejudice Landlord’s right to thereafter render an Operating Statement with respect thereto or with respect to any subsequent Lease Year; provided, that if Landlord shall fail to render an Operating Statement to Tenant with respect to any Lease Year within 2 years after the end of such Lease Year, then (i) Landlord shall be deemed to have waived any further right to collect an underpayment by Tenant of Operating Expenses for such Lease Year (but in no event shall the foregoing relieve Landlord of its obligation to deliver an Operating Statement to Tenant or pay any excess owed to Tenant in accordance with this Section 4.05) and (ii) Tenant’s obligation to pay Additional Rent under this Article 4 in respect of Operating Expenses shall thereafter be suspended subject to retroactive reinstatement (subject to clause (i) above) when Landlord furnishes an Operating Statement for such Lease Year.‌‌‌‌‌ (d) Landlord’s failure to render the Base Lease Year Statement shall not prejudice Landlord’s right to thereafter render such Base Lease Year Statement; provided, that (i) Tenant shall not be required to pay any deficiency for any Lease Year under Section 4.05(a) until Tenant shall have received the Base Lease Year Statement and (ii) if Landlord shall fail to render the Base Lease Year Statement within 2 years after the end of the Base Lease Year, then Tenant’s obligation to pay Additional Rent under this Article 4 in respect of Operating Expenses shall be suspended subject‌‌‌‌ to retroactive reinstatement (subject to clause (i) above) when Landlord furnishes the Base Lease Year Statement.‌‌ (e) (i) Tenant, upon notice given to Landlord (an “Audit Notice”) within 270 days after Tenant’s receipt of an Operating Statement for any Lease Year after the Base Lease Year, may elect to have Tenant’s designated (in such notice) auditor (which may be such Person as Tenant elects) (“Tenant’s Auditor”) examine such of Landlord’s books and records (collectively, the “Records”) as are relevant to the Operating Expenses for such Lease Year for a period not to exceed 120 days following the date on which all of the relevant Records are first made available to Tenant’s Auditor as provided in this Section 4.05(e)(i) in response to Tenant’s notice as aforesaid. Tenant, upon giving to Landlord an Audit Notice within 270 days after Tenant’s receipt of the Base Lease Year Statement, may elect to have Tenant’s Auditor examine such of the Records as are relevant to Operating Expenses for the Base Lease Year for a period of 120 days following the date on which all of the relevant Records are first made available to Tenant’s Auditor as provided for in this Section 4.05(e)(i) in response to the Audit Notice as aforesaid. Notwithstanding the foregoing,‌‌‌‌‌‌‌‌ (A) Tenant may delay its giving of the Audit Notices and examination of the Records with respect to the Base Lease Year and with respect to, as elected by Tenant, the first, second and/or third Lease Years after the Base Lease Year until after Tenant has received the Base Lease Year Statement and the Operating Statements for, as applicable based on Tenant’s election, the first, second and third Lease Years after the Base Lease Year, (B) with respect to the Base Lease Year and such first, second and/or third Lease Years, the 270 day periods provided for above and below shall run from the last day on which Tenant has received the Base Year Lease Statement and the Operating Statements for such first, second and/or third Lease Years (as applicable based on Tenant’s election) and (C) with respect to the Base Lease Year and such first, second and/or third Lease Years, the 120 day periods provided for above and below shall run from the day on which all of the relevant Records for the Base Lease Year and, as applicable based on Tenant’s election, the first, second and third Lease Years after the Base Lease Year have been made available to Tenant’s Auditor as provided for in this Section 4.05(e)(i) in response to Tenant’s notices as aforesaid. As a condition to Tenant’s right to have the Records examined for any Operating Statement, Tenant shall pay all sums required to be paid in accordance with the Operating Statement in question. If Tenant shall not give an Audit Notice within such applicable 270 day periods described above following Tenant’s receipt of the Base Lease Year Statement or any Operating Statement, then such statement shall be conclusive and binding upon Tenant absent fraud on the part of Landlord or any person acting on behalf of Landlord. For the avoidance of doubt, Tenant acknowledges that Tenant shall have the right to examine the Records with respect to the Base Lease Year one time and, as provided above, may do so with its examination of the Records with respect to, as elected by Tenant, the first, second and/ or third Lease Years after the Base Lease Year as aforesaid. Tenant and Tenant’s employees, representatives (including attorneys and accountants) and Tenant’s Auditor shall treat all Records as confidential, except as required by law or in connection with any proceeding under this Section ‌‌‌ 4.05 or other enforcement of Tenant’s right under this Lease, and, upon request by Landlord such parties, shall confirm such confidentiality obligation in writing pursuant to a reasonable confidentiality agreement that shall be substantially in the form attached hereto as Exhibit BB.

Landlord’s Annual Operating Statement. (a) Within 180 days after the end of each Lease Year following the Base Lease YearYear 2015, Landlord shall endeavor to furnish to Tenant Landlord’s statement in respect of Operating Expenses for such Lease Year (an “Operating Statement”). CurrentlyWithin 180 days after the end of Lease Year 2016, the form of Operating Statement used by Landlord is substantially shall endeavor to furnish to Tenant Landlord’s statement in the form attached hereto as Exhibit U. Landlord reserves the right, from time to time, to change the form of Operating Statement provided such changes do not result in less information and/or fewer categories respect of Operating Expenses being provided than is provided in Exhibit U. for Lease Years 2015 and 2016 (the “Base Lease Year Statement”). If any Operating Statement shall show that the sums paid by Tenant under Section 4.04 exceeded Tenant’s Operating Payment owed for such Lease Year, Landlord, at Tenant’s election, if elected by Tenant by notice given to Landlord within 15 days after the date Landlord has given the Operating Statement to Tenant or, if such notice shall not be timely given by Tenant, then, at Landlord’s election, shall either refund to Tenant the amount thereof of such excess within 30 days after the delivery of such Operating Statement or credit Tenant against the next monthly installment of Rent subsequently payable under this Lease with the amount of such excess (so long as there are sufficient Rent payments remaining to be paid by Tenant to satisfy such credit)excess. If any Operating Statement shall show that the sums so paid by Tenant were less than Tenant’s Operating Payment owed for such Lease Year, Tenant shall pay the amount of such deficiency within 30 days after the delivery of such Operating Statement.‌‌‌‌‌Statement. The rights and obligations of Landlord and Tenant with respect to any Additional Rent owed or to be refunded under this Section 4.05(a) shall survive the expiration or earlier termination of this Lease. (b) Within 180 days after the end of the Base Lease Year, Landlord shall endeavor to furnish to Tenant Landlord’s statement in respect of Operating Expenses for such Base Lease Year (the “Base Lease Year Statement”), which Base Lease Year Statement shall be substantially in the same form and contain the same categories of Operating Expenses as the form of Operating Statement.‌‌ (c) Landlord’s failure to render an Operating Statement with respect to any Lease Year shall not prejudice Landlord’s right to thereafter render an Operating Statement with respect thereto or with respect to any subsequent Lease Year; provided, that if Landlord shall fail to render an Operating Statement to Tenant with respect to any Lease Year within 2 years after the end of such Lease Year, then (i) Landlord shall be deemed to have waived any further right to collect an underpayment by Tenant of Operating Expenses for such Lease Year (but in no event shall the foregoing relieve Landlord of its obligation to deliver an Operating Statement to Tenant or pay any excess owed to Tenant in accordance with this Section 4.05) and (ii) Tenant’s obligation to pay Additional Rent under this Article 4 in respect of Operating Expenses shall thereafter be suspended subject to retroactive reinstatement (subject to clause (i) above) when Landlord furnishes an Operating Statement for such Lease Year.‌‌‌‌‌). (d) Landlord’s failure to render the Base Lease Year Statement shall not prejudice Landlord’s right to thereafter render such Base Lease Year Statement; provided, that (i) Tenant shall not be required to pay any deficiency for any Lease Year under Section 4.05(a) until Tenant shall have received the Base Lease Year Statement and (ii) if Landlord shall fail to render the Base Lease Year Statement within 2 years after the end of the Base Lease Year, then Tenant’s obligation to pay Additional Rent under this Article 4 in respect of Operating Expenses shall be suspended subject‌‌‌‌ to retroactive reinstatement (subject to clause (i) above) when Landlord furnishes the Base Lease Year Statement.‌‌ (ec) (i) Tenant, upon notice given to Landlord (an “Audit Notice”) within 270 180 days after Tenant’s receipt of an Operating Statement for any Lease Year after the Base Lease YearYear Statement or an Operating Statement, as applicable, may elect to have Tenant’s designated (in such notice) auditor (which who may be such Person as (x) an employee of Tenant electsor (y) an independent certified public accounting firm comprised of at least fifteen (15) members who shall be certified public accountants (“Tenant’s AuditorCPA”); provided, that Tenant’s CPA shall not be compensated in whole or in part on a contingency basis, and provided further, that Tenant’s CPA (or any of the members of such firm) shall not be, and shall not at any time during the Term have been, an Affiliate of, or an officer, director, principal, or employee of, the Property Manager or of Landlord) examine such of Landlord’s books and records (collectively, the “Records”) as are directly relevant to the Operating Expenses for reflected in such Base Lease Year Statement or Operating Statement for a period not to exceed 120 60 days following the date on which all of the relevant Records are first made available to Tenant’s Auditor as provided in this Section 4.05(e)(i) in response 4.05(c)(i). As a condition to Tenant’s right to have the Records examined, Tenant shall pay all sums required to be paid in accordance with the Base Lease Year Statement or Operating Statement in question. If Tenant shall not give such notice as aforesaid. Tenant, upon giving to Landlord an Audit Notice within 270 days after such 180 day period following Tenant’s receipt of the Base Lease Year Statement or Operating Statement, may elect to have Tenant’s Auditor examine such of the Records as are relevant to Operating Expenses for then the Base Lease Year for a period of 120 days following the date on which all of the relevant Records are first made available to Statement or Operating Statement shall be conclusive and binding upon Tenant’s Auditor as provided for in this Section 4.05(e)(i) in response to the Audit Notice as aforesaid. Notwithstanding the foregoing,‌‌‌‌‌‌‌‌ (A) foregoing, Tenant may delay its giving of the Audit Notices audit notices and examination of the Records with respect to the Base Lease Year Operating Amount and Base PILOT Amount and, at Tenant’s election, with respect toto the first Lease Year, as elected by Tenant, the first, second and/or third Lease Years after the Base Lease Year until after Tenant has received the Base Lease Year Statement and the Operating Statements forStatement for calendar year 2017. Tenant and Tenant’s employees, Tenant’s CPA and Tenant’s agents shall treat all Records as confidential, and, upon request by Landlord, shall confirm such confidentiality obligation in writing. (ii) Tenant, within 60 days after the date on which the Records are first made available as provided above in Section 4.05(c)(i), may send a notice (“Tenant’s Statement”) to Landlord that Tenant disagrees with the applicable based Operating Statement, specifying in reasonable detail the basis for Tenant’s disagreement and the amount of the Tenant’s Operating Payment Tenant claims is due. If Tenant fails to deliver a Tenant’s Statement within such 60 day period, then such Operating Statement shall be conclusive and binding on Tenant. If Tenant delivers a Tenant Statement within such 60 day period, then Landlord and Tenant shall attempt to resolve such disagreement. If they are unable to do so, then provided that the amount of the Tenant’s electionOperating Payment Tenant claims is due is substantially different from the amount of the Tenant’s Operating Payment Landlord claims is due, the firstTenant may notify Landlord, second and third Lease Years within 90 days after the Base Lease Year, (B) with respect to the Base Lease Year and such first, second and/or third Lease Years, the 270 day periods provided for above and below shall run from the last day date on which Tenant has received the Base Year Lease Statement and the Operating Statements for such first, second and/or third Lease Years (as applicable based on Tenant’s election) and (C) with respect to the Base Lease Year and such first, second and/or third Lease Years, the 120 day periods provided for above and below shall run from the day on which all of the relevant Records for the Base Lease Year and, as applicable based on Tenant’s election, the first, second and third Lease Years after the Base Lease Year have been are made available to Tenant in connection with the disagreement in question, that Tenant desires to have such disagreement determined by an Arbiter, and promptly thereafter Landlord shall designate, subject to Tenant’s Auditor reasonable approval, a certified public accountant (the “Arbiter”) whose determination made in accordance with this Section 4.05(c)(ii) shall be binding upon the parties; it being understood that if the amount of the Tenant’s Operating Payment Tenant claims is due is not substantially different from the amount of the Tenant’s Operating Payment Landlord claims is due, then Tenant shall have no right to protest such amount and shall pay the amount that Landlord claims is due to the extent not theretofore paid. If Tenant timely delivers a Tenant’s Statement, the disagreement referenced therein is not resolved by the parties and Tenant fails to notify Landlord of Tenant’s desire to have such disagreement determined by an Arbiter within the 90 day period set forth in the preceding sentence, then the Operating Statement to which such disagreement relates shall be conclusive and binding on Tenant. If the determination of the Arbiter shall substantially confirm the determination of Landlord, then Tenant shall pay the cost of the Arbiter. If the Arbiter shall substantially confirm the determination of Tenant, then Landlord shall pay the cost of the Arbiter. In all other events, the cost of the Arbiter shall be borne equally by Landlord and Tenant. The Arbiter shall (i) be a certified public accountant and a member of an independent certified public accounting firm comprised of at least 15 members who shall be certified public accountants, and (ii) have at least 10 years experience in preparing and/or auditing the financial statements of owners and/or operators of first class office buildings in Manhattan which are similar to the Building. If Landlord and Tenant shall be unable to agree upon the designation of the Arbiter within 15 days after notice from Landlord to Tenant requesting agreement as provided for to the designation of the Arbiter, then either party shall have the right to request that the American Arbitration Association (or any organization which is the successor thereto) (the “AAA”) designate as the Arbiter a certified public accountant having the qualifications described above in this Section 4.05(e)(i4.05(c)(ii), and the cost of such certified public accountant shall be borne as provided above in the case of the Arbiter designated by Landlord and Tenant. Any determination made by an Arbiter in accordance with this Section 4.05(c)(ii) shall be conclusive and binding upon the parties. Notwithstanding anything to the contrary set forth herein, the determination of the Arbiter shall not exceed the amount determined to be due in response the first instance by the Operating Statement, nor shall such determination be less than the amount claimed to be due by Tenant in Tenant’s notices Statement, and any determination which does not comply with the foregoing shall be null and void and not binding on the parties. In rendering such determination the Arbiter shall not add to, subtract from or otherwise modify the provisions of this Lease, including the immediately preceding sentence. Pending the resolution of any contest pursuant to this Section 4.05(c)(ii), and as aforesaid. As a condition to Tenant’s right to have the Records examined for any Operating Statementprosecute such contest, Tenant shall pay all sums required to be paid in accordance with the Operating Statement in question. If Tenant shall not give prevail in such contest, an Audit Notice within such applicable 270 day periods described above following appropriate refund or credit against the next monthly installment of Rent shall be made by Landlord to Tenant. The term “substantially” as used in this Section 4.05(c)(ii), means a variance of 5% or more of the Tenant’s receipt Operating Payment in question. (iii) If, as a result of Tenant’s review of Landlord’s books and records or an arbitration described in Section 4.05(e)(ii), it is determined that Landlord overstated total Operating Expenses for the Building for any Lease Year, then Landlord shall reimburse Tenant the amount overpaid by Tenant, and if such overpayment was in an amount exceeding 5% of the Base Operating Expense for such Lease Year Statement or any Operating StatementYear, then such statement reimbursement shall be conclusive and binding upon Tenant absent fraud on made together with interest thereon at the part of Landlord or any person acting on behalf of Landlord. For Default Rate from the avoidance of doubt, Tenant acknowledges that Tenant shall have the right to examine the Records with respect date paid to the Base date reimbursed, and if it is determined that Landlord overstated Operating Expenses for the Building such Lease Year one time andby more than 10%, as provided above, may do so with its examination of then Landlord shall reimburse Tenant for the Records with respect to, as elected by Tenant, the first, second and/ or third Lease Years after the Base Lease Year as aforesaidactual. Tenant and Tenant’s employees, representatives (including attorneys and accountants) and out-of-pocket costs paid to Tenant’s Auditor shall treat all Records as confidential, except as required by law or for conducting the audit in connection with any proceeding under this Section ‌‌‌ 4.05 or other enforcement of Tenant’s right under this Lease, and, upon request by Landlord such parties, shall confirm such confidentiality obligation in writing pursuant to a reasonable confidentiality agreement that shall be substantially in the form attached hereto as Exhibit BBquestion.

Landlord’s Annual Operating Statement. (a) Within 180 days after the end of each Lease Year following the Base Lease Year, Landlord shall endeavor to furnish to Tenant Landlord’s statement in respect of Operating Expenses for such Lease Year (an “Operating Statement”). Currently, the form of Operating Statement used by Landlord is substantially in the form attached hereto as Exhibit U. Landlord reserves the right, from time to time, to change the form of Operating Statement provided such changes do not result in less information and/or fewer categories of Operating Expenses being provided than is provided in Exhibit U. If any Operating Statement shall show that the sums paid by Tenant under Section 4.04 exceeded Tenant’s Operating Payment owed for such Lease Year, Landlord, at Tenant’s election, if elected by Tenant by notice given to Landlord within 15 days after the date Landlord has given the Operating Statement to Tenant or, if such notice shall not be timely given by Tenant, then, at Landlord’s election, shall either refund to Tenant the amount thereof within 30 days after the delivery of such Operating Statement or credit Tenant against the Rent subsequently payable under this Lease with the amount of such excess (so long as there are sufficient Rent payments remaining to be paid by Tenant to satisfy such credit). If any Operating Statement shall show that the sums so paid by Tenant were less than Tenant’s Operating Payment owed for such Lease Year, Tenant shall pay the amount of such deficiency within 30 days after the delivery of such Operating Statement.‌‌‌‌‌Statement. (b) Within 180 days after the end of the Base Lease Year, Landlord shall endeavor to furnish to Tenant Landlord’s statement in respect of Operating Expenses for such Base Lease Year (the “Base Lease Year Statement”), which Base Lease Year Statement shall be substantially in the same form and contain the same categories of Operating Expenses as the form of Operating Statement.‌‌Statement. (c) Landlord’s failure to render an Operating Statement with respect to any Lease Year shall not prejudice Landlord’s right to thereafter render an Operating Statement with respect thereto or with respect to any subsequent Lease Year; provided, that if Landlord shall fail to render an Operating Statement to Tenant with respect to any Lease Year within 2 years after the end of such Lease Year, then (i) Landlord shall be deemed to have waived any further right to collect an underpayment by Tenant of Operating Expenses for such Lease Year (but in no event shall the foregoing relieve Landlord of its obligation to deliver an Operating Statement to Tenant or pay any excess owed to Tenant in accordance with this Section 4.05) and (ii) Tenant’s obligation to pay Additional Rent under this Article 4 in respect of Operating Expenses shall thereafter be suspended subject to retroactive reinstatement (subject to clause (i) above) when Landlord furnishes an Operating Statement for such Lease Year.‌‌‌‌‌Year. (d) Landlord’s failure to render the Base Lease Year Statement shall not prejudice Landlord’s right to thereafter render such Base Lease Year Statement; provided, that (i) Tenant shall not be required to pay any deficiency for any Lease Year under Section 4.05(a) until Tenant shall have received the Base Lease Year Statement and (ii) if Landlord shall fail to render the Base Lease Year Statement within 2 years after the end of the Base Lease Year, then Tenant’s obligation to pay Additional Rent under this Article 4 in respect of Operating Expenses shall be suspended subject‌‌‌‌ subject to retroactive reinstatement (subject to clause (i) above) when Landlord furnishes the Base Lease Year Statement.‌‌Statement. (e) (i) Tenant, upon notice given to Landlord (an “Audit Notice”) within 270 days after Tenant’s receipt of an Operating Statement for any Lease Year after the Base Lease Year, may elect to have Tenant’s designated (in such notice) auditor (which may be such Person as Tenant elects) (“Tenant’s Auditor”) examine such of Landlord’s books and records (collectively, the “Records”) as are relevant to the Operating Expenses for such Lease Year for a period not to exceed 120 days following the date on which all of the relevant Records are first made available to Tenant’s Auditor as provided in this Section 4.05(e)(i) in response to Tenant’s notice as aforesaid. Tenant, upon giving to Landlord an Audit Notice within 270 days after Tenant’s receipt of the Base Lease Year Statement, may elect to have Tenant’s Auditor examine such of the Records as are relevant to Operating Expenses for the Base Lease Year for a period of 120 days following the date on which all of the relevant Records are first made available to Tenant’s Auditor as provided for in this Section 4.05(e)(i) in response to the Audit Notice as aforesaid. Notwithstanding the foregoing,‌‌‌‌‌‌‌‌ foregoing, (A) Tenant may delay its giving of the Audit Notices and examination of the Records with respect to the Base Lease Year and with respect to, as elected by Tenant, the first, second and/or third Lease Years after the Base Lease Year until after Tenant has received the Base Lease Year Statement and the Operating Statements for, as applicable based on Tenant’s election, the first, second and third Lease Years after the Base Lease Year, (B) with respect to the Base Lease Year and such first, second and/or third Lease Years, the 270 day periods provided for above and below shall run from the last day on which Tenant has received the Base Year Lease Statement and the Operating Statements for such first, second and/or third Lease Years (as applicable based on Tenant’s election) and (C) with respect to the Base Lease Year and such first, second and/or third Lease Years, the 120 day periods provided for above and below shall run from the day on which all of the relevant Records for the Base Lease Year and, as applicable based on Tenant’s election, the first, second and third Lease Years after the Base Lease Year have been made available to Tenant’s Auditor as provided for in this Section 4.05(e)(i) in response to Tenant’s notices as aforesaid. As a condition to Tenant’s right to have the Records examined for any Operating Statement, Tenant shall pay all sums required to be paid in accordance with the Operating Statement in question. If Tenant shall not give an Audit Notice within such applicable 270 day periods described above following Tenant’s receipt of the Base Lease Year Statement or any Operating Statement, then such statement shall be conclusive and binding upon Tenant absent fraud on the part of Landlord or any person acting on behalf of Landlord. For the avoidance of doubt, Tenant acknowledges that Tenant shall have the right to examine the Records with respect to the Base Lease Year one time and, as provided above, may do so with its examination of the Records with respect to, as elected by Tenant, the first, second and/ or and/or third Lease Years after the Base Lease Year as aforesaid. Tenant and Tenant’s employees, representatives (including attorneys and accountants) and Tenant’s Auditor shall treat all Records as confidential, except as required by law or in connection with any proceeding under this Section ‌‌‌ 4.05 or other enforcement of Tenant’s right under this Lease, and, upon request by Landlord such parties, shall confirm such confidentiality obligation in writing pursuant to a reasonable confidentiality agreement that shall be substantially in the form attached hereto as Exhibit BB.

Landlord’s Annual Operating Statement. (a) Within 180 one hundred eighty (180) days after the end of each Lease Year following the Base Lease Year, Landlord shall endeavor to furnish to Tenant Landlord’s statement in respect of Operating Expenses for such Lease Year (an “Operating Statement”). Currently, the form of Operating Statement used by Landlord is substantially in the form attached hereto as Exhibit U. Landlord reserves the right, from time to time, to change the form of Operating Statement provided such changes do not result in less information and/or fewer categories of Operating Expenses being provided than is provided in Exhibit U. If any Operating Statement shall show that the sums paid by Tenant under Section 4.04 exceeded Tenant’s Operating Payment owed for such Lease Year, Landlord, at Tenant’s election, if elected by Tenant by notice given to Landlord within 15 days after the date Landlord has given the Operating Statement to Tenant or, if such notice shall not be timely given by Tenant, then, at Landlord’s election, shall either refund to Tenant the amount thereof of such excess within 30 thirty (30) days after the delivery of such Operating Statement or credit Tenant against the next monthly installment of Rent subsequently payable under this Lease with the amount of such excess (so long as there are sufficient Rent payments remaining to be paid by Tenant to satisfy such credit)excess. If any Operating Statement shall show that the sums so paid by Tenant were less than Tenant’s Operating Payment owed for such Lease Year, Tenant shall pay the amount of such deficiency within 30 thirty (30) days after the delivery of such Operating Statement.‌‌‌‌‌Statement. The rights and obligations of Landlord and Tenant with respect to any Additional Rent owed or to be refunded under this Section 4.05(a) shall survive the expiration or earlier termination of this Lease. (b) Within 180 days after the end of the Base Lease Year, Landlord shall endeavor to furnish to Tenant Landlord’s statement in respect of Operating Expenses for such Base Lease Year (the “Base Lease Year Statement”), which Base Lease Year Statement shall be substantially in the same form and contain the same categories of Operating Expenses as the form of Operating Statement.‌‌ (c) Landlord’s failure to render an Operating Statement with respect to any Lease Year shall not prejudice Landlord’s right to thereafter render an Operating Statement with respect thereto or with respect to any subsequent Lease Year; provided, that if Landlord shall fail to render an Operating Statement to Tenant with respect to any Lease Year within 2 three (3) years after the end of such Lease Year, then (i) Landlord shall be deemed to have waived any further right to collect an underpayment by Tenant of Operating Expenses for such Lease Year (but in no event shall the foregoing relieve Landlord of its obligation to deliver an Operating Statement to Tenant or pay any excess owed to Tenant in accordance with this Section 4.05) and (ii) Tenant’s obligation to pay Additional Rent under this Article 4 in respect of Operating Expenses shall thereafter be suspended subject to retroactive reinstatement (subject to clause (i) above) when Landlord furnishes an Operating Statement for such Lease Year.‌‌‌‌‌Year. (d) Landlord’s failure to render the Base Lease Year Statement shall not prejudice Landlord’s right to thereafter render such Base Lease Year Statement; provided, that (i) Tenant shall not be required to pay any deficiency for any Lease Year under Section 4.05(a) until Tenant shall have received the Base Lease Year Statement and (ii) if Landlord shall fail to render the Base Lease Year Statement within 2 years after the end of the Base Lease Year, then Tenant’s obligation to pay Additional Rent under this Article 4 in respect of Operating Expenses shall be suspended subject‌‌‌‌ to retroactive reinstatement (subject to clause (i) above) when Landlord furnishes the Base Lease Year Statement.‌‌ (ec) (id) Tenant, upon notice given to Landlord within one hundred eighty (an “Audit Notice”180) within 270 days after Tenant’s receipt of an Operating Statement for any Lease Year after the Base Lease YearStatement, may elect to have Tenant’s designated (in such notice) auditor (which may be such Person as Tenant elects) examiner (“Tenant’s AuditorExaminer”) who may be either (x) an employee of Tenant who is either a certified public accountant or an accountant familiar with the analysis of operating expenses with respect to first-class office buildings located in Manhattan that are comparable to the Building or (y) an independent certified public accounting firm comprised of at least fifteen (15) members who shall be certified public accountants, provided that Tenant’s Examiner shall not be compensated in whole or in part on a contingency basis, and provided further that Tenant’s Examiner (or any of the members of such firm) shall not be, and shall not at any time during the Term have been, an Affiliate of, or an officer, director, principal, or employee of, the Property Manager or of Landlord) examine such of Landlord’s books and records (collectively, the “Records”) as are directly relevant to the Operating Expenses for reflected in such Lease Year Operating Statement for a period not to exceed 120 one hundred twenty (120) days following the date on which all of the relevant Records are first made available to Tenant’s Auditor as provided in this Section 4.05(e)(i) in response to Tenant’s notice as aforesaid. Tenant, upon giving to Landlord an Audit Notice within 270 days after Tenant’s receipt of the Base Lease Year Statement, may elect to have Tenant’s Auditor examine such of the Records as are relevant to Operating Expenses for the Base Lease Year for a period of 120 days following the date on which all of the relevant Records are first made available to Tenant’s Auditor as provided for in this Section 4.05(e)(i) in response to the Audit Notice as aforesaid. Notwithstanding the foregoing,‌‌‌‌‌‌‌‌ (A) Tenant may delay its giving of the Audit Notices and examination of the Records with respect to the Base Lease Year and with respect to, as elected by Tenant, the first, second and/or third Lease Years after the Base Lease Year until after Tenant has received the Base Lease Year Statement and the Operating Statements for, as applicable based on Tenant’s election, the first, second and third Lease Years after the Base Lease Year, (B) with respect to the Base Lease Year and such first, second and/or third Lease Years, the 270 day periods provided for above and below shall run from the last day on which Tenant has received the Base Year Lease Statement and the Operating Statements for such first, second and/or third Lease Years (as applicable based on Tenant’s election) and (C) with respect to the Base Lease Year and such first, second and/or third Lease Years, the 120 day periods provided for above and below shall run from the day on which all of the relevant Records for the Base Lease Year and, as applicable based on Tenant’s election, the first, second and third Lease Years after the Base Lease Year have been made available to Tenant’s Auditor as provided for in this Section 4.05(e)(i) in response to Tenant’s notices as aforesaid4.05(c)(i). As a condition to Tenant’s right to have the Records examined for any Operating Statementexamined, Tenant shall pay all sums required to be paid in accordance with the Operating Statement in question. If Tenant shall not give an Audit Notice such notice of its intention to examine Operating Expenses in accordance with this Section 4.05(c)(i) within such applicable 270 one hundred eighty (180) day periods described above period following Tenant’s receipt of the Base Lease Year Statement or any an Operating Statement, then such statement Operating Statement shall be conclusive and binding upon Tenant absent fraud on the part of Landlord or any person acting on behalf of Landlord. For the avoidance of doubt, Tenant acknowledges that Tenant shall have the right to examine the Records with respect to the Base Lease Year one time and, as provided above, may do so with its examination of the Records with respect to, as elected by Tenant, the first, second and/ or third Lease Years after the Base Lease Year as aforesaid. Tenant and Tenant’s employees, representatives (including attorneys and accountants) Tenant’s Examiner and Tenant’s Auditor agents shall treat all Records as confidential, except as required by law or in connection with any proceeding under this Section ‌‌‌ 4.05 or other enforcement of Tenant’s right under this Lease, and, upon request by Landlord such partiesLandlord, shall confirm such confidentiality obligation in writing writing. (i) Tenant, within one hundred twenty (120) days after the date on which the Records are first made available as provided above in Section 4.05(c)(i), may send a notice (“Tenant’s Statement”) to Landlord that Tenant disagrees with the applicable Operating Statement, specifying in reasonable detail the basis for Tenant’s disagreement and the amount of the Tenant’s Operating Payment Tenant claims is due. If Tenant fails to deliver a Tenant’s Statement within such one hundred twenty (120) day period after the date on which the Records are first made available, then such Operating Statement shall be conclusive and binding on Tenant. If Tenant delivers a Tenant Statement within such one hundred twenty (120) day period, then Landlord and Tenant shall attempt to resolve such disagreement. If they are unable to do so, then provided that the amount of the Tenant’s Operating Payment Tenant claims is due is substantially different from the amount of the Tenant’s Operating Payment Landlord claims is due, Tenant may notify Landlord, within one hundred twenty (120) days after the date on which the Records are made available to Tenant in connection with the disagreement in question, that Tenant desires to have such disagreement determined by an Arbiter, which shall be the exclusive means of determining the disagreement, and promptly thereafter Landlord shall designate, subject to Tenant’s reasonable approval, a certified public accountant (the “Arbiter”) whose determination made in accordance with this Section 4.05(c)(ii) shall be binding upon the parties; it being understood that if the amount of the Tenant’s Operating Payment Tenant claims is due is not substantially different from the amount of the Tenant’s Operating Payment Landlord claims is due, then Tenant shall have no right to arbitrate such amount and shall pay the amount that Landlord claims is due to the extent not theretofore paid. If Tenant timely delivers a Tenant’s Statement, the disagreement referenced therein is not resolved by the parties and Tenant fails to notify Landlord of Tenant’s desire to have such disagreement determined by an Arbiter within the one hundred twenty (120) day period set forth in the preceding sentence, then the Operating Statement to which such disagreement relates shall be conclusive and binding on Tenant. If the determination of the Arbiter shall substantially confirm the determination of Landlord, then Tenant shall pay the cost of the Arbiter. If the Arbiter shall substantially confirm the determination of Tenant, then Landlord shall pay the cost of the Arbiter. In all other events, the cost of the Arbiter shall be borne equally by Landlord and Tenant. The Arbiter shall (i) be a certified public accountant and a member of an independent certified public accounting firm comprised of at least fifteen (15) members who shall be certified public accountants, and (ii) have at least ten (10) years’ experience in preparing and/or auditing the financial statements of owners and/or operators of first class office buildings in downtown Manhattan which are similar to the Building. If Landlord and Tenant shall be unable to agree upon the designation of the Arbiter within fifteen (15) days after notice from Landlord to Tenant requesting agreement as to the designation of the Arbiter, then either party shall have the right to request that the American Arbitration Association (or any organization which is the successor thereto) (the “AAA”) designate as the Arbiter a certified public accountant having the qualifications described above in this Section 4.05(c)(ii), and the cost of such certified public accountant shall be borne as provided above in the case of the Arbiter designated by Landlord and Tenant. Any determination made by an Arbiter in accordance with this Section 4.05(c)(ii) shall be conclusive and binding upon the parties. Notwithstanding anything to the contrary set forth herein, the determination of the Arbiter shall not exceed the amount determined to be due in the first instance by the Operating Statement, nor shall such determination be less than the amount claimed to be due by Tenant in Tenant’s Statement, and any determination which does not comply with the foregoing shall be null and void and not binding on the parties. In rendering such determination, the Arbiter shall not add to, subtract from or otherwise modify the provisions of this Lease, including the immediately preceding sentence. Pending the resolution of any contest pursuant to this Section 4.05(c)(ii), and as a reasonable confidentiality agreement that condition to Tenant’s right to prosecute such contest, Tenant shall pay all sums required to be paid in accordance with the Operating Statement in question. If Tenant shall prevail in such contest, an appropriate refund within thirty (30) days after such final determination has been made or credit against the next monthly installment of Rent shall be made by Landlord to Tenant. The term “substantially” as used in this Section 4.05(c)(ii), shall mean a variance of four percent (4%) or more of the Tenant’s Operating Payment in question. If the amount of the Tenant’s Operating Payment Tenant claims is due is not substantially different from the amount of the Tenant’s Operating Payment Landlord claims is due, the procedure set forth in this Section 4.05(c)(ii) for the form attached hereto resolution of disputes regarding the amount of said Tenant’s Operating Payment shall not preclude Tenant from pursuing any other remedies with respect thereto to which Tenant may lawfully be entitled at law or in equity; provided, however, that in any event, as Exhibit BBa condition to Tenant’s right to contest the amount of said Tenant’s Operating Payment, Tenant shall first pay all sums required to be paid in accordance with the Operating Statement in question.