Landlord’s Right to Audit. If Tenant shall fail to submit to Landlord (i) any Annual Statement on the date due, and such failure continues for 5 days after notice from Landlord, or (ii) any Quarterly Statement on the date due, and such failure continues for 5 days after notice from Landlord in any 2 quarters, whether or not consecutive, in any period of 12 months, then Landlord shall have the right to perform a complete audit, at Tenant’s expense, of Tenant’s books of accounts and records of Gross Revenues. Landlord shall also have the right, at any time from time to time, to perform a complete audit of any one or more Quarterly or Annual Statements, and in connection with such audit, to examine Tenant’s books of account and records of Gross Revenues, and Tenant shall make all such books of account and records available for examination by Landlord in the Borough of Manhattan, City of New York. Tenant shall permit Landlord to make copies of any such books, records and information as Landlord may require in connection with such audit, at Tenant’s cost and expense. Tenant shall pay to Landlord within 10 Business Days after demand any additional Percentage Rent which such audit discloses is due to Landlord, with interest thereon at the Interest Rate from the date upon which Tenant should have paid such Percentage Rent through the date paid. In addition, if (A) such audit discloses that the actual amount of Gross Revenues differs from the amount reported by more than 5%, or (B) the Person conducting such audit reports that, in its opinion, Tenant’s records and procedures are insufficient to permit an accurate determination of Gross Revenues for any period, Tenant shall also pay the costs of such audit as Additional Rent to Landlord within 5 days following rendition of a xxxx therefor. Upon reasonable written notice, Tenant shall permit Landlord to examine Tenant’s books of account and records and record-keeping procedures during regular business hours, and to have a representative present on the Premises from time to time to check, verify and tabulate Gross Revenues and to evaluate Tenant’s control features affecting the determination of Gross Revenues. All of Landlord’s rights of inspection, audit, examination and evaluation granted pursuant to this Section (f) may be exercised by Landlord’s accountants or other authorized agents or representatives. Subject to any Requirements, Landlord agrees to maintain the information obtained from such audit in strict confidence, except that Landlord may reveal such documentation to its employees and consultants who are actively involved in such audit, provided that such employees and consultants agree to maintain such information confidential.
Appears in 5 contracts
Samples: Lease Agreement (MSG Entertainment Spinco, Inc.), Lease Agreement (MSG Entertainment Spinco, Inc.), Lease (MSG Spinco, Inc.)
Landlord’s Right to Audit. If Tenant shall fail maintain all books and records documenting Gross Sales and the calculation of Percentage Rent in accordance with generally accepted accounting principles for a period of not less than three years. As a bona fide reporting of Tenant's Gross Sales is essential to submit Landlord, then, in addition to its rights specified in this Lease, Landlord shall have the right, no more than once each year of the Lease Term, to arrange a time, during regular business hours (within thirty (30) days following notice from Landlord), at Tenant's office where Tenant's records are retained, to cause an impartial, reputable certified public 9- accountant (or other impartial professional auditor or comparable individual or entity whose expertise includes the audit contemplated hereby and whose compensation is not based on the results of such audit) to audit the accounts and records supporting the quarterly statements in question. Tenant's employees shall cooperate with Landlord however reasonably possible, including, without limitation, by providing books and records for on-premises review. In the event such audit discloses any overpayment or underpayment of Percentage Rent, Landlord shall deliver a copy of such report to Tenant, and Landlord shall forthwith pay any overpayment to Tenant, and Tenant shall forthwith pay any underpayment to Landlord, as the case may be. Should Tenant dispute any claim that Tenant has under-reported Gross Sales or has underpaid Percentage Rent, the parties shall meet and confer within a reasonable period of time and attempt to resolve such dispute. Should they be unable to resolve such dispute within a reasonable period of time, then such dispute shall be resolved according to the provision set forth in this Lease. Notwithstanding anything to the contrary contained in this Lease, if any such audit discloses (i) any Annual Statement on an understatement, by Tenant, in the date dueaggregate, and greater than or equal to three percent (3%) of the total Gross Sales for such failure continues for 5 days after notice from Landlord, quarter which should have been payable by Tenant; or (ii) any Quarterly Statement on that Tenant has failed to maintain its accounting records in a manner which the date due, and such failure continues for 5 days after notice from Landlord in any 2 quarters, whether or not consecutive, in any period accuracy of 12 monthsTenant's Gross Sales statement can reasonably be determined, then Landlord shall have the right to perform a complete audit, at Tenant’s expense, of Tenant’s books of accounts and records of Gross Revenues. Landlord shall also have the right, at any time from time to time, to perform a complete audit of any one or more Quarterly or Annual Statements, and in connection with such audit, to examine Tenant’s books of account and records of Gross Revenues, and Tenant shall make all such books of account and records available for examination by Landlord in the Borough of Manhattan, City of New York. Tenant shall permit Landlord to make copies of any such books, records and information as Landlord may require in connection with such audit, at Tenant’s cost and expense. Tenant shall pay to Landlord within 10 Business Days after demand any additional Percentage Rent which such audit discloses is due to Landlord, with interest thereon at the Interest Rate from the date upon which Tenant should have paid such Percentage Rent through the date paid. In addition, if (A) such audit discloses that the actual amount of Gross Revenues differs from the amount reported by more than 5%, or (B) the Person conducting such audit reports that, in its opinion, Tenant’s records and procedures are insufficient to permit an accurate determination of Gross Revenues for any period, Tenant shall also pay the costs of such audit as Additional Rent to Landlord within 5 days following rendition of a xxxx therefor. Upon reasonable written notice, Tenant shall permit Landlord to examine be borne by Tenant’s books of account and records and record-keeping procedures during regular business hours, and to have a representative present on the Premises from time to time to check, verify and tabulate Gross Revenues and to evaluate Tenant’s control features affecting the determination of Gross Revenues. All of Landlord’s rights of inspection, audit, examination and evaluation granted pursuant to this Section (f) may be exercised by Landlord’s accountants or other authorized agents or representatives. Subject to any Requirements, Landlord agrees to maintain the information obtained from such audit in strict confidence, except that Landlord may reveal such documentation to its employees and consultants who are actively involved in such audit, provided that such employees and consultants agree to maintain such information confidential.
Appears in 1 contract
Landlord’s Right to Audit. If Tenant shall fail to submit to Landlord (i) any Annual Statement on the date due, and such failure continues for 5 days after notice from Landlord, or (ii) any Quarterly Statement on the date due, and such failure continues for 5 days after notice from Landlord in any 2 quarters, whether or not consecutive, in any period of 12 months, then Landlord shall have the right to perform a complete audit, at Tenant’s expense, of Tenant’s books of accounts and records of Gross Revenues. Landlord shall also have the right, at any time and from time to time, time upon reasonable notice to perform a complete audit of any one or more Quarterly or Annual Statements, Tenant to review and in connection with such audit, to examine at the Premises Tenant’s books of account and records of Gross Revenues, and Tenant shall make all such books of account and records available Revenues for examination by Landlord in the Borough of Manhattan, City of New York. Tenant shall permit Landlord to make copies of any such books, records and information as Landlord may require in connection with such audit, at Tenant’s cost and expense. Tenant shall pay to Landlord within 10 Business Days after demand any additional Percentage Rent which such audit discloses is due to Landlord, with interest thereon at the Interest Rate from the date upon which Tenant should have paid such Percentage Rent through the date paidgiven period. In addition, if (A) such audit discloses that Landlord shall have the actual amount of Gross Revenues differs from the amount reported by more than 5%, or (B) the Person conducting such audit reports that, in its opinion, right at any time upon reasonable notice to Tenant to have Tenant’s records and procedures are insufficient to permit an accurate determination of Gross Revenues for any periodgiven Operating Year audited at the Premises by a disinterested, reputable firm of certified public accountants who are actively engaged in the practice of their profession and who are to be selected by Landlord. If any deficiency in Tenant’s payment of Percentage Rent is established pursuant to said audit, Tenant shall also within ten (10) days thereafter pay to Landlord the costs amount of such deficiency together with interest thereon from the date same was originally due at the rate per annum equal to three percent (3%) plus the Prime Rate but in no event more than the maximum interest rate permitted by law. If the statement of Revenues forming the basis for the Percentage Rent calculation previously made by Tenant to Landlord is less than the amount of Tenant’s Revenues as shown by Landlord’s audit by two percent (2%) or more, then Tenant shall immediately pay to Landlord the cost of such audit; otherwise, the cost of such audit as Additional shall be paid by Landlord. If the statement of Revenues forming the basis for the Percentage Rent calculation previously made by Tenant to Landlord within 5 days following rendition is greater than the amount of a xxxx therefor. Upon reasonable written notice, Tenant shall permit Landlord to examine Tenant’s books of account and records and record-keeping procedures during regular business hours, and to have a representative present on the Premises from time to time to check, verify and tabulate Gross Revenues and to evaluate Tenant’s control features affecting the determination of Gross Revenues. All of Landlord’s rights of inspection, audit, examination and evaluation granted pursuant to this Section (f) may be exercised as shown by Landlord’s accountants or other authorized agents or representatives. Subject to audit and further shows that an overpayment of Percentage Rent was made for the Operating Year so audited, then the amount of any Requirements, overpayment shall be applied by Landlord agrees to maintain against the information obtained from such audit in strict confidence, except that Landlord may reveal such documentation to its employees and consultants who are actively involved in such audit, provided that such employees and consultants agree to maintain such information confidentialnext succeeding payments of Percentage Rent coming due.
Appears in 1 contract
Samples: Ground Lease (Workday, Inc.)
Landlord’s Right to Audit. CONFIDENTIALITY. Landlord may examine or audit any or all of the records of Tenant, and any licensee, subtenant or franchise of Tenant or other occupant of the Property, which relate in any manner to Gross Sales and Tenant's percentage rent computation. LANDLORD WILL NOT EXAMINE OR AUDIT RECORDS THAT PERTAIN SOLELY TO ANY GROSS SALES FROM EXAMINATIONS OR FEES CHARGED TO THE CUSTOMER BY DOCTORS OF OPTOMETRY WHO ARE PROVIDING EYE EXAMINATIONS OR SERVICES AT THE PROPERTY (BUT MAY AUDIT OR EXAMINE RECORDS OF ANY SALES OF MERCHANDISE BY SUCH DOCTORS OF OPTOMETRY). If such examination or audit discloses that the percentage rent was understated, Tenant shall fail to submit immediately pay the percentage rent to Landlord (i) any Annual Statement together with interest on the date dueshortage of percentage rent from the dates such rent should have been paid by Tenant. If the percentage rent was understated by more than THREE percent (3%) AND THE CAUSE OF THE UNDERSTATEMENT OF PERCENTAGE RENT WAS TENANT'S FAILURE TO REPORT SALES OR TENANT'S KNOWING, WILLFUL OR GROSSLY NEGLIGENT PREPARATION OR CALCULATION OF THE GROSS SALES AND PERCENTAGE RENT AMOUNTS, EXCLUDING ROUTINE CLERICAL ERRORS MADE BY TENANT'S ACCOUNTANTS OR EMPLOYEES, Tenant shall pay for the costs of the audit, and such failure continues for 5 days after notice from Landlordif the percentage rent was understated by more than six percent (6%), or (ii) any Quarterly Statement on the date due, and such failure continues for 5 days after notice from Landlord in any 2 quarters, whether or not consecutive, in any period of 12 months, then Landlord shall have the right to perform a complete audit, at Tenant’s expense, of Tenant’s books of accounts and records of Gross Revenues. Landlord shall also have the right, at any time from time to time, to perform a complete audit of any one or more Quarterly or Annual Statements, and in connection with such audit, to examine Tenant’s books of account and records of Gross Revenues, and Tenant shall make all such books of account and records available for examination by Landlord in the Borough of Manhattan, City of New York. Tenant shall permit Landlord to make copies of any such books, records and information as Landlord may require in connection with such audit, at Tenant’s cost and expense. Tenant shall pay to Landlord within 10 Business Days after demand any (in addition to the percentage rent and interest owed) an amount equal to TEN percent (10%) of the percentage rent owed, as AN additional Percentage Rent which such audit discloses is due to Landlord, with interest thereon at the Interest Rate from the date upon which Tenant should have paid such Percentage Rent through the date paidrent SURCHARGE. In addition, if (A) such audit discloses that the actual amount of Gross Revenues differs from the amount reported by more than 5%, or (B) the Person conducting such audit reports that, PAYMENT OF SUCH COSTS OR SURCHARGE WILL BE in its opinion, Tenant’s records and procedures are insufficient to permit an accurate determination of Gross Revenues for any period, Tenant shall also pay the costs of such audit as Additional Rent to Landlord within 5 days following rendition of a xxxx therefor. Upon reasonable written notice, Tenant shall permit Landlord to examine Tenant’s books of account and records and record-keeping procedures during regular business hours, and to have a representative present on the Premises from time to time to check, verify and tabulate Gross Revenues and to evaluate Tenant’s control features affecting the determination of Gross Revenues. All of Landlord’s rights of inspection, audit, examination and evaluation granted pursuant to this Section (f) may be exercised by Landlord’s accountants or other authorized agents or representatives. Subject addition to any Requirements, other right or remedy available under this Lease or applicable law. Landlord agrees to maintain will hold the financial and sales information obtained from such audit the records of Tenant in strict confidence, except that that: (i) Landlord may reveal submit such documentation reports and information in confidence (but Landlord will not be liable for any breach of confidentiality by the recipient) to its employees any of Landlord's mortgagees or master lessors or to any potential or actual mortgagee or purchaser of Landlord's interest, or to employees, directors, officers and consultants who are actively involved partners of Landlord, or to Landlord's accountants, legal counsel and professional advisors; (ii) such reports and information may be disclosed or submitted as may be required in such auditconnection with any litigation, provided that such employees and consultants agree to maintain arbitration or other proceeding FMI FORM 201 (Jan 1992 - REVISED 4/96) RETAIL LEASE AGREEMENT March 22,1999 between the parties; and/or (iii) such information confidentialmay be disclosed or submitted as may be legally required by any governmental or court order or law or regulation.
Appears in 1 contract
Landlord’s Right to Audit. If Tenant
4.09.01 In addition to the rights of audit contained in Section 25.02, for any of the purposes of this Lease including the purpose of calculating the amount of Airport Rent or Additional Rent or for the purpose of recalculating the Tenant’s calculations of the amount of Airport Rent or Additional Rent, the Landlord may at any time and from time to time cause a complete audit by Her authorized representatives or by an independent Auditor engaged by the Landlord to be made of the Tenant’s entire business affairs, accounting, financial and other business records and documents and any related procedures.
4.09.02 When the Landlord intends to have an audit carried out by an independent Auditor the Landlord shall fail to submit to the Tenant a list [“Notice to Select Landlord’s Auditor’’] containing the names of three (3) Auditors and the Tenant shall, within ten (10) days of receipt by the Tenant of that Notice to Select Landlord’s Auditor,
(a) select an Auditor [“Landlord’s Auditor”] from the list of three Auditors named therein and notify the Landlord of the Landlord’s Auditor [“Notice of Landlord’s Auditor’’] at the place then fixed for the payment of Rent, or
(b) notify the Landlord in writing at the place then fixed for the payment of Rent of the reasons why it rejects each one of the three (3) Auditors listed on the Notice to Select Landlord’s Auditor individually.
4.09.03 In the event that the Tenant
(a) fails to notify the Landlord of the name of the Landlord’s Auditor within the ten (10) day period referred to in Subsection 4.09.02, or (b) does not, within the ten (10) day period referred to in Subsection 4.09.02, provide the reasons why it rejects each one of the three (3) Auditors listed on the Notice to Select Landlord’s Auditor individually, the Landlord may select the Landlord’s Auditor. If the Tenant notifies the Landlord within such ten (10) day period referred to in Subsection 4.09.02 that it rejects each one of the three (3) of the Auditors listed on the Notice to Select Landlord’s Auditor individually together with the reasons for such rejection the Landlord shall request that the Auditor General of Canada select the Landlord’s Auditor who may be any one of the three Auditors listed on the Notice to Select Landlord’s Auditor or any other person who is an Auditor. The Auditor General’s selection of Landlord’s Auditor for this purpose shall be binding on both the Tenant and the Landlord.
4.09.04 The Tenant shall,
(a) provide to the Landlord, the Landlord’s authorized representative, the Landlord’s Auditor or to any other Person performing any right of the Landlord contemplated in this Section 4.09,
(i) any Annual Statement appropriate space on the date dueDemised Premises satisfactory to and at no cost to, and such failure continues for 5 days after notice from Landlord, or and
(ii) access to any Quarterly accounting, financial and other business records and documents and any related procedures as may be required by and at no cost to the Landlord, the Landlord’s authorized representative, the Landlord’s Auditor or any other Person or Persons performing any right of the Landlord contemplated in this Section 4.09, and
(b) authorize and require the Tenant’s Auditor to provide to the Landlord’s Auditor reasonable access to the Tenant’s Auditor’s working papers relating to the audit of the Tenant’s Annual Financial Statements and the Tenant’s Annual Statement on and to the date duepreparation of Tenant’s Auditor’s Report On Tenant’s Annual Financial Statements and the Tenant’s Auditor’s Report, such access to be provided at no cost to the Landlord and the Landlord’s Auditor and shall include the right to take extracts from the Tenant’s Auditor’s working papers as such failure continues for 5 days after notice from working papers are described and defined in the CICA Handbook.
4.09.05 For any of the purposes of this Section 4.09, the Landlord, the authorized representatives of the Landlord in any 2 quarters, whether or not consecutive, in any period of 12 months, then Landlord and the Landlord’s Auditor shall have the right without cost,
(a) to perform a complete audit, at examine the Tenant’s expenseentire accounting, of Tenant’s books of accounts financial and records of Gross Revenues. Landlord shall also have the right, at any time from time to time, to perform a complete audit of any one or more Quarterly or Annual Statements, and in connection with such audit, to examine Tenant’s books of account and records of Gross Revenues, and Tenant shall make all such books of account and records available for examination by Landlord in the Borough of Manhattan, City of New York. Tenant shall permit Landlord to make copies of any such books, other business records and information as Landlord may require in connection with such audit, at Tenant’s cost documents and expense. Tenant shall pay to Landlord within 10 Business Days after demand any additional Percentage Rent which such audit discloses is due to Landlord, with interest thereon at the Interest Rate from the date upon which Tenant should have paid such Percentage Rent through the date paid. In addition, if (A) such audit discloses that the actual amount of Gross Revenues differs from the amount reported by more than 5%, or (B) the Person conducting such audit reports that, in its opinion, Tenant’s records and procedures are insufficient to permit an accurate determination of Gross Revenues for any period, Tenant shall also pay the costs of such audit as Additional Rent to Landlord within 5 days following rendition of a xxxx therefor. Upon reasonable written notice, Tenant shall permit Landlord to examine Tenant’s books of account and records and record-keeping related procedures during regular business hours, hours and to take extracts from such records and documents; and
(b) to have a representative present Person or Persons on the Demised Premises from time to time to to,
(i) check, verify and tabulate Gross Revenues the amount of any Airport Revenue or any other amount, monetary or otherwise, or any other factor impacting on or relevant to the determination of the amount of Airport Rent or Additional Rent;
(ii) examine any accounting, financial or other business records and to evaluate Tenant’s documents or any related procedures including control features affecting the determination of Gross Revenues. All the amount of any Airport Revenue or any other amount, monetary or otherwise, or any other factor impacting on or relevant to the determination of the amount of Airport Rent or Additional Rent; and
(iii) obtain and use such other information as the Landlord, the authorized representatives of the Landlord, the Landlord’s rights Auditor, or such Person or Persons considers relevant in order to establish the amount of inspectionany Airport Revenue or any other amount, auditmonetary or otherwise, examination and evaluation granted pursuant or any other factor impacting on or relevant to this Section (f) may be exercised the determination of the amount of Airport Rent or Additional Rent.
4.09.06 Any audit carried out by the Landlord’s accountants or other authorized agents or representatives. Subject Auditor shall be carried out in accordance with Generally Accepted Auditing Standards and the Landlord will, not less than thirty (30) days prior to any Requirements, Landlord agrees to maintain the information obtained from such audit in strict confidence, except that Landlord may reveal such documentation to its employees and consultants who are actively involved in issuing of the Landlord’s Auditor’s report on such audit, provided provide the Tenant with an opportunity to comment on the Landlord’s Auditor’s findings.
4.09.07 Any audit carried out by the Landlord’s Auditor shall be final and binding on both the Tenant and the Landlord.
4.09.08 If any audit carried out by the Landlord’s Auditor establishes for any Lease Year, that
(a) Airport Rent for that such employees and consultants agree Lease Year is greater than Airport Rent for that Lease Year as set out in the Tenant’s Annual Statement for that Lease Year, or
(b) Additional Rent for that Lease Year is greater than Additional Rent for that Lease Year as set out in the Tenant’s Annual Statement for that Lease Year, the Tenant shall forthwith pay to maintain such information confidential.the Landlord an amount [in this Subsection
Appears in 1 contract
Samples: Ground Lease
Landlord’s Right to Audit. If Tenant shall fail to submit to Landlord Within (iand in no event later than) any Annual Statement on one hundred eighty (180) days after the date dueend of each Percentage Rent Year, and more frequently if Landlord should reasonably believe that Tenant's or such failure continues for 5 days after notice from Landlordoccupant's reporting is not true and accurate, Landlord shall be entitled to cause a certified public accounting firm designated by Landlord to audit the books and records relevant to the calculation of Net Gaming Revenue reported by Tenant or (ii) any Quarterly Statement on such occupant during the date duepreceding Percentage Rent Year. Any audit shall be performed in a reasonable manner, during ordinary business hours and without unreasonably interfering with Tenant's or such failure continues for 5 days after notice from Landlord in any 2 quarters, whether or not consecutive, in any period of 12 monthsoccupant's business. If such audit reveals that Net Gaming Revenue was understated, then Landlord shall have the right to perform a complete audit, at Tenant’s expense, of Tenant’s books of accounts and records of Gross Revenues. Landlord shall also have the right, at any time from time to time, to perform a complete audit of any one or more Quarterly or Annual Statements, and in connection with such audit, to examine Tenant’s books of account and records of Gross Revenues, and Tenant shall make all such books of account and records available for examination by Landlord in the Borough of Manhattan, City of New York. Tenant shall permit Landlord to make copies of any such books, records and information as Landlord may require in connection with such audit, at Tenant’s cost and expense. Tenant shall pay to Landlord within 10 five (5) Business Days after demand any receipt of the auditor's report, Tenant shall pay, or cause to be paid the net additional Percentage Rent which due on account of the audit corrections. If such audit discloses is due reveals that Net Gaming Revenue was overstated, then Tenant shall be entitled to Landlord, with a credit against the next payment(s) of Percentage Rent under this Lease in an amount equal to the previous overpayment revealed by the audit corrections. Any adjusting payment on account of previous overpayment or underpayment shall bear interest thereon at the Interest Prime Rate from the date upon which Tenant should it would have been paid (or the date of Tenant's previous overpayment, if applicable) had Tenant's or such occupant's reports and monthly returns been correct until the date actually paid or credited. If Percentage Rent through the date paid. In addition, if (A) such audit discloses that the actual amount of Gross Revenues differs from the amount reported was understated by more than 5three percent (3%) for the period audited, then Tenant shall pay, or (B) the Person conducting cause such audit reports that, in its opinion, Tenant’s records and procedures are insufficient occupant to permit an accurate determination of Gross Revenues for any period, Tenant shall also pay the costs reasonable cost of such audit; otherwise the audit shall be conducted at Landlord's expense. The rights provided herein shall survive the termination or expiration of the Term for three full Fiscal Years (plus any partial Fiscal Year remaining in the year of termination or expiration of this Lease, as Additional Rent to Landlord within 5 days following rendition of a xxxx therefor. Upon reasonable written notice, Tenant shall permit Landlord to examine Tenant’s books of account and records and record-keeping procedures during regular business hours, and to have a representative present on the Premises from time to time to check, verify and tabulate Gross Revenues and to evaluate Tenant’s control features affecting the determination of Gross Revenues. All of Landlord’s rights of inspection, audit, examination and evaluation granted pursuant to this Section (f) case may be exercised by Landlord’s accountants or other authorized agents or representatives. Subject to any Requirements, Landlord agrees to maintain the information obtained from such audit in strict confidence, except that Landlord may reveal such documentation to its employees and consultants who are actively involved in such audit, provided that such employees and consultants agree to maintain such information confidentialbe).
Appears in 1 contract
Landlord’s Right to Audit. If Tenant 4.09.01 In addition to the rights of audit contained in Section 25.02, for any of the purposes of this Lease including the purpose of calculating the amount of Airport Rent or Additional Rent or for the purpose of recalculating the Tenant’s calculations of the amount of Airport Rent or Additional Rent, the Landlord may at any time and from time to time cause a complete audit by Her authorized representatives or by an independent Auditor engaged by the Landlord to be made of the Tenant’s entire business affairs, accounting, financial and other business records and documents and any related procedures.
4.09.02 When the Landlord intends to have an audit carried out by an independent Auditor the Landlord shall fail to submit to the Tenant a list [“ Notice to Select Landlord’s Auditor’’] containing the names of three (3) Auditors and the Tenant shall, within ten (10) days of receipt by the Tenant of that Notice to Select Landlord’s Auditor,
(a) select an Auditor [ “ Landlord’s Auditor ”] from the list of three Auditors named therein and notify the Landlord of the Landlord’s Auditor [ “ Notice of Landlord’s Auditor’’] at the place then fixed for the payment of Rent, or
(b) notify the Landlord in writing at the place then fixed for the payment of Rent of the reasons why it rejects each one of the three (3) Auditors listed on the Notice to Select Landlord’s Auditor individually.
4.09.03 In the event that the Tenant
(a) fails to notify the Landlord of the name of the Landlord’s Auditor within the ten (10) day period referred to in Subsection 4.09.02, or (b) does not, within the ten (10) day period referred to in Subsection 4.09.02, provide the reasons why it rejects each one of the three (3) Auditors listed on the Notice to Select Landlord’s Auditor individually, the Landlord may select the Landlord’s Auditor. If the Tenant notifies the Landlord within such ten (10) day period referred to in Subsection 4.09.02 that it rejects each one of the three (3) of the Auditors listed on the Notice to Select Landlord’s Auditor individually together with the reasons for such rejection the Landlord shall request that the Auditor General of Canada select the Landlord’s Auditor who may be any one of the three Auditors listed on the Notice to Select Landlord’s Auditor or any other person who is an Auditor. The Auditor General’s selection of Landlord’s Auditor for this purpose shall be binding on both the Tenant and the Landlord.
4.09.04 The Tenant shall,
(a) provide to the Landlord, the Landlord’s authorized representative, the Landlord’s Auditor or to any other Person performing any right of the Landlord contemplated in this Section 4.09,
(i) any Annual Statement appropriate space on the date dueDemised Premises satisfactory to and at no cost to, and such failure continues for 5 days after notice from Landlord, or and
(ii) access to any Quarterly accounting, financial and other business records and documents and any related procedures as may be required by and at no cost to the Landlord, the Landlord’s authorized representative, the Landlord’s Auditor or any other Person or Persons performing any right of the Landlord contemplated in this Section 4.09, and
(b) authorize and require the Tenant’s Auditor to provide to the Landlord’s Auditor reasonable access to the Tenant’s Auditor’s working papers relating to the audit of the Tenant’s Annual Financial Statements and the Tenant’s Annual Statement on and to the date duepreparation of Tenant’s Auditor’s Report On Tenant’s Annual Financial Statements and the Tenant’s Auditor’s Report, such access to be provided at no cost to the Landlord and the Landlord’s Auditor and shall include the right to take extracts from the Tenant’s Auditor’s working papers as such failure continues for 5 days after notice from working papers are described and defined in the CICA Handbook.
4.09.05 For any of the purposes of this Section 4.09, the Landlord, the authorized representatives of the Landlord in any 2 quarters, whether or not consecutive, in any period of 12 months, then Landlord and the Landlord’s Auditor shall have the right without cost,
(a) to perform a complete audit, at examine the Tenant’s expenseentire accounting, of Tenant’s books of accounts financial and records of Gross Revenues. Landlord shall also have the right, at any time from time to time, to perform a complete audit of any one or more Quarterly or Annual Statements, and in connection with such audit, to examine Tenant’s books of account and records of Gross Revenues, and Tenant shall make all such books of account and records available for examination by Landlord in the Borough of Manhattan, City of New York. Tenant shall permit Landlord to make copies of any such books, other business records and information as Landlord may require in connection with such audit, at Tenant’s cost documents and expense. Tenant shall pay to Landlord within 10 Business Days after demand any additional Percentage Rent which such audit discloses is due to Landlord, with interest thereon at the Interest Rate from the date upon which Tenant should have paid such Percentage Rent through the date paid. In addition, if (A) such audit discloses that the actual amount of Gross Revenues differs from the amount reported by more than 5%, or (B) the Person conducting such audit reports that, in its opinion, Tenant’s records and procedures are insufficient to permit an accurate determination of Gross Revenues for any period, Tenant shall also pay the costs of such audit as Additional Rent to Landlord within 5 days following rendition of a xxxx therefor. Upon reasonable written notice, Tenant shall permit Landlord to examine Tenant’s books of account and records and record-keeping related procedures during regular business hours, hours and to take extracts from such records and documents; and
(b) to have a representative present Person or Persons on the Demised Premises from time to time to to,
(i) check, verify and tabulate Gross Revenues the amount of any Airport Revenue or any other amount, monetary or otherwise, or any other factor impacting on or relevant to the determination of the amount of Airport Rent or Additional Rent;
(ii) examine any accounting, financial or other business records and to evaluate Tenant’s documents or any related procedures including control features affecting the determination of Gross Revenues. All the amount of any Airport Revenue or any other amount, monetary or otherwise, or any other factor impacting on or relevant to the determination of the amount of Airport Rent or Additional Rent; and
(iii) obtain and use such other information as the Landlord, the authorized representatives of the Landlord, the Landlord’s rights Auditor, or such Person or Persons considers relevant in order to establish the amount of inspectionany Airport Revenue or any other amount, monetary or otherwise, or any other factor impacting on or relevant to the determination of the amount of Airport Rent or Additional Rent.
4.09.06 Any audit carried out by the Landlord’s Auditor shall be carried out in accordance with Generally Accepted Auditing Standards and the Landlord will, not less than thirty (30) days prior to the issuing of the Landlord’s Auditor’s report on such audit, examination provide the Tenant with an opportunity to comment on the Landlord’s Auditor’s findings.
4.09.07 Any audit carried out by the Landlord’s Auditor shall be final and evaluation granted pursuant binding on both the Tenant and the Landlord.
4.09.08 If any audit carried out by the Landlord’s Auditor establishes for any Lease Year, that
(a) Airport Rent for that Lease Year is greater than Airport Rent for that Lease Year as set out in the Tenant’s Annual Statement for that Lease Year, or
(b) Additional Rent for that Lease Year is greater than Additional Rent for that Lease Year as set out in the Tenant’s Annual Statement for that Lease Year, the Tenant shall forthwith pay to the Landlord an amount [in this Subsection 4.09.08 called “ such amount ”] equal to the aggregate of,
(c) the amount by which Airport Rent for that Lease Year as established by that audit exceeds Airport Rent for that Lease Year as set out in the Tenant’s Annual Statement for that Lease Year, and
(d) the amount by which Additional Rent for that Lease Year as established by that audit exceeds Additional Rent for that Lease Year as set out in the Tenant’s Annual Statement for that Lease Year together with interest at the Interest Rate on such amount, such interest being calculated from and including the one hundred and twentieth (120th) day following the end of the Lease Year for which that audit was carried out, to and including the date of payment.
4.09.09 If an audit carried out by the Landlord’s Auditor establishes for a Lease Year, that
(a) Airport Rent for that Lease Year is less than Airport Rent for that Lease Year as set out in the Tenant’s Annual Statement for that Lease Year, or
(b) Additional Rent for that Lease Year is less than Additional Rent for that Lease Year as set out in the Tenant’s Annual Statement for that Lease Year, the Landlord will, provided the Tenant is not otherwise in default, remit to the Tenant an amount equal to the aggregate of
(c) the amount by which Airport Rent for that Lease Year as set out in the Tenant’s Annual Statement for that Lease Year exceeds Airport Rent for that Lease Year as established by such audit, and
(d) the amount by which Additional Rent for that Lease Year as set out in the Tenant’s Annual Statement for that Lease Year exceeds Additional Rent for that Lease Year as established by such audit.
4.09.10 Except in the case of fraud, and subject to this Section 4.09, neither party shall have any right to claim any adjustment or change to Airport Rent or Additional Rent unless the party making such claim has given a notice of such claim to the other party on or before the last day of the sixth (f6th) may be exercised by Landlord’s accountants or other authorized agents or representatives. Subject Lease Year after the Lease Year in respect to any Requirements, Landlord agrees to maintain which the information obtained from such audit in strict confidence, except that Landlord may reveal such documentation to its employees and consultants who are actively involved in such audit, provided that such employees and consultants agree to maintain such information confidential.claim is being made.
Appears in 1 contract
Samples: Ground Lease
Landlord’s Right to Audit. If Tenant shall fail to submit to Landlord (i) any Annual Statement on the date due, and such failure continues for 5 days after notice from Landlord, or (ii) any Quarterly Statement on the date due, and such failure continues for 5 days after notice from Landlord in any 2 quarters, whether or not consecutive, in any period of 12 months, then Landlord shall have the right to perform a complete audit, at Tenant’s expense, of Tenant’s books of accounts and records of Gross Revenues. Landlord shall also have the right, at any time from time to time, to perform a complete audit of any one or more Quarterly or Annual Statements, and in connection with such audit, to examine TenantXxxxxx’s books of account and records of Gross Revenues, and Tenant shall make all such books of account and records available for examination by Landlord in the Borough of Manhattan, City of New York. Tenant shall permit Landlord to make copies of any such books, records and information as Landlord may require in connection with such audit, at Tenant’s cost and expense. Tenant shall pay to Landlord within 10 Business Days after demand any additional Percentage Rent which such audit discloses is due to Landlord, with interest thereon at the Interest Rate from the date upon which Tenant should have paid such Percentage Rent through the date paid. In addition, if (A) such audit discloses that the actual amount of Gross Revenues differs from the amount reported by more than 5%, or (B) the Person conducting such audit reports that, in its opinion, Tenant’s records and procedures are insufficient to permit an accurate determination of Gross Revenues for any period, Tenant shall also pay the costs of such audit as Additional Rent to Landlord within 5 days following rendition of a xxxx thereforxxxxxxxx. Upon reasonable written notice, Tenant shall permit Landlord to examine TenantXxxxxx’s books of account and records and record-keeping procedures during regular business hours, and to have a representative present on the Premises from time to time to check, verify and tabulate Gross Revenues and to evaluate Tenant’s control features affecting the determination of Gross Revenues. All of Landlord’s rights of inspection, audit, examination and evaluation granted pursuant to this Section (f) may be exercised by Landlord’s accountants or other authorized agents or representatives. Subject to any Requirements, Landlord Xxxxxxxx agrees to maintain the information obtained from such audit in strict confidence, except that Landlord may reveal such documentation to its employees and consultants who are actively involved in such audit, provided that such employees and consultants agree to maintain such information confidential.
Appears in 1 contract
Samples: Lease (MSGE Spinco, Inc.)
