Common use of Tenant Right to Audit Clause in Contracts

Tenant Right to Audit. For a period of twelve (12) months after Tenant’s receipt of such Annual Expense Statement (or if a supplemental or amended statement is provided, after the delivery of such supplemental or amended statement), Landlord shall upon Tenant’s written request therefor, provide such additional information at Tenant’s sole reasonable cost as reasonably necessary for Tenant to verify the amount of Operating Expenses incurred during the preceding calendar year. For a period of twelve (12) months after Tenant’s receipt of such Annual Expense Statement (or subsequent supplemental or amended statement), Tenant, or an independent, certified public accountant who is hired by Tenant on a non-contingent fee basis and who offers a full range of accounting services and is reasonably acceptable to Landlord, shall have the right, during regular business hours and after giving at least ten (10) days’ advance written notice to Landlord, to inspect and complete an audit of Landlord’s books and records relating to Operating Expenses for the immediately preceding calendar year. Tenant shall (and shall cause its employees, agents and consultants to) keep the results of any such audit or audited statement strictly confidential. Within such twelve (12) month period, if Tenant disagrees with the Annual Expense Statement, Tenant shall notify Landlord that it disputes the correctness of the Annual Expense Statement (such notice a “Tenant Expense Dispute Notice”), specifying the particular respects in which the Annual Expense Statement is claimed to be incorrect. Pending the determination of any such dispute by agreement or litigation as aforesaid, Tenant shall pay to Landlord the amount due under the disputed Annual Expense Statement, within thirty (30) days after Landlord gives same to Tenant, and such payment to be without prejudice to Tenant’s position. If upon resolution of such dispute (whether by mutual agreement between Landlord and Tenant or by judicial determination), the amounts paid by Tenant to Landlord for Operating Expenses exceed the amounts to which Landlord is entitled hereunder, Landlord shall, at Landlord’s option, either credit the amount of such excess toward the next monthly payments of Operating Expenses due hereunder or remit such net overpayment to Tenant within thirty (30) days, or if the amounts paid by Tenant to Landlord for Operating Expenses is less than the amounts to which Landlord is entitled hereunder, Tenant shall pay such deficiency to Landlord within (30) days. All of Tenant’s costs and expenses of any such audit shall be paid by Tenant unless such audit or audited statement shows that the amounts paid by Tenant to Landlord on account of Operating Expenses for such calendar year exceed the amounts to which Landlord is entitled by more than four percent (4%) in which case Landlord shall pay all costs and expenses of any such audit or audited statement (provided such costs and expenses shall not exceed Five Thousand Dollars ($5,000) in the aggregate) and if such amount exceeds seven percent (7%), Landlord shall pay to Tenant interest at the Default Rate on all overpayments of Operating Expenses for such calendar year accruing from the date of overpayment until paid to Tenant. If Tenant does not notify Landlord in writing of any objection to any Annual Expense Statement within twelve (12) months after receipt thereof (or six (6) months, in the case of Tenant’s audit of Consumable Expenses in accordance with Section 5(b)(vii)), then Tenant shall be deemed to have waived such objection for such Annual Expense Statement. Notwithstanding anything to the contrary contained herein, Tenant may not conduct an audit of an Annual Expense Statement more than once each calendar year.

Tenant Right to Audit. For Following receipt of an Expense Statement Tenant shall have the right to conduct a reasonable review of Landlord's records relating to Operating Costs for the Operating Year just ended, and to which the Expense Statement relates, provided that Tenant strictly complies with the provisions of this Subsection. No review shall be permitted at any time in which a Default exists under this Lease (including a Default arising by virtue of Tenant’s failure to pay any sum deemed Additional Rent, regardless of dispute as to the propriety Landlord’s claim for payment). If a Default occurs at any time during the pendency of a review of records then the review right shall immediately cease, and the matters set forth in the Expense Statement under review shall be conclusively deemed correct. No subtenant shall have the right to conduct any such review; and no assignee of Tenant shall have the right to conduct any review with respect to a period of twelve antedating the assignment. Tenant shall exercise its right upon not less than fifteen (1215) months after days’ prior Notice, given at any time within sixty (60) days following Tenant’s receipt of such Annual an Expense Statement (time being of the essence). Any such review shall be conducted by Tenant or if a supplemental or amended statement is provided, after the delivery of such supplemental or amended statement), Landlord shall upon Tenant’s written request therefor, provide such additional information at Tenant’s sole reasonable cost as reasonably necessary for Tenant to verify the amount of Operating Expenses incurred during the preceding calendar year. For a period of twelve (12) months after Tenant’s receipt of such Annual Expense Statement (or subsequent supplemental or amended statement), Tenant, or by an independent, independent certified public accountant who of Tenant’s choosing that is hired not being compensated by Tenant on a noncontingency fee basis. If Tenant employs such a third party reviewer then as a condition precedent to such review Tenant shall deliver to Landlord a copy of Tenant’s written agreement with such accountant which shall include provisions which state that (i) Landlord is an intended third-contingent fee basis and who offers party beneficiary of the agreement, (ii) the accountant will not in any manner solicit or agree to represent any other tenant of the Center with respect to a full range of accounting services and is reasonably acceptable to Landlord, shall have the right, during regular business hours and after giving at least ten (10) days’ advance written notice to Landlord, to inspect and complete an audit review of Landlord’s books accounting records at the Center, and records relating (iii) the accountant will maintain in strict confidence any and all information obtained in connection with the review and will not disclose the fact of the review or any results of it to Operating Expenses any person or entity other than to the Tenant. Any such review shall be conducted at Landlord’s office at the Center or at Landlord’s principal offices, or at such other location as Landlord may reasonably designate. Landlord will provide Tenant with reasonable accommodation for the immediately preceding calendar yearreview and reasonable use of available office equipment, but may make a reasonable charge for Tenant’s telephone calls and photocopies. Tenant shall (and shall cause its employees, agents and consultants to) keep deliver to Landlord a copy of the results of any such audit review within fifteen (15) days following its completion or audited statement strictly confidential. Within such twelve (12) month period, if receipt by Tenant disagrees and will maintain in strict confidence any and all information obtained in connection with the Annual Expense Statement, Tenant shall notify Landlord that it disputes review and will not disclose the correctness fact of the Annual review or any results of it to any person or entity. A dispute over the Expense Statement (such notice or any error by Landlord in interpreting or applying the provisions of this Lease respecting Operating Costs or in calculating the amounts in the Expense Statement shall not be a “Tenant Expense Dispute Notice”)breach of this Lease by Landlord, specifying and even if any legal proceeding over the particular respects in which the Annual Expense Statement is claimed to resolved against Landlord this Lease shall remain in full force and effect and Landlord shall not be incorrectliable for any consequential damages. Pending the determination of any such dispute by agreement or litigation as aforesaid, Tenant shall pay amounts billed with respect to Landlord the amount due under the disputed Annual such Expense StatementStatement as Additional Rent, within thirty (30) days after Landlord gives same to Tenant, and such payment to be without prejudice to Tenant’s 's position, and subject to rebate of any amounts subsequently found to have been charged to Tenant in error. If upon resolution of such the dispute (whether by mutual agreement between shall be determined in Tenant's favor then Landlord and shall promptly pay to Tenant or by judicial determination), the amounts paid by Tenant to Landlord for Operating Expenses exceed the amounts to which Landlord is entitled hereunder, Landlord shall, at Landlord’s option, either credit the amount of Tenant's overpayment of Rent resulting from compliance with the Expense Statement together with interest from the time of such excess toward overpayment at the next monthly payments of Operating Expenses due hereunder or remit such net overpayment to Tenant within thirty (30) daysReimbursement Rate, or if the amounts paid by Tenant to Landlord for Operating Expenses is less than the amounts to which Landlord is entitled hereunder, Tenant shall pay such deficiency to Landlord within (30) days. All together with all of Tenant’s 's attorney fees, costs and expenses of any such audit shall be paid by Tenant unless such audit or audited statement shows that incurred in contesting the amounts paid by Tenant to Landlord on account of Operating Expenses for such calendar year exceed the amounts to which Landlord is entitled by more than four percent (4%) in which case Landlord shall pay all costs and expenses of any such audit or audited statement (provided such costs and expenses shall not exceed Five Thousand Dollars ($5,000) in the aggregate) and if such amount exceeds seven percent (7%), Landlord shall pay to Tenant interest at the Default Rate on all overpayments of Operating Expenses for such calendar year accruing from the date of overpayment until paid to Tenant. If Tenant does not notify Landlord in writing of any objection to any Annual Expense Statement within twelve (12) months after receipt thereof (or six (6) months, in the case of Tenant’s audit of Consumable Expenses in accordance with Section 5(b)(vii)), then Tenant shall be deemed to have waived such objection for such Annual Expense Statement. Notwithstanding anything to the contrary contained herein, Tenant may not conduct an audit of an Annual Expense Statement more than once each calendar year.[SEE RIDER]

Tenant Right to Audit. For Section 11.3 of the General Terms and Conditions to Lease is deleted in its entirety and the following provision is substituted: Following receipt of an Expense Statement Tenant shall have the right to conduct a period reasonable review of twelve Landlord's records relating to Operating Costs for the Operating Year just ended, and to which the Expense Statement relates, provided that Tenant strictly complies with the provisions of this Subsection. No review shall be permitted at any time in which an Event of Default exists under this Lease (12including an Event of Default arising by virtue of Tenant’s failure to pay any sum deemed Additional Rent, regardless of dispute as to the propriety Landlord’s claim for payment). If an Event of Default occurs at any time during the pendency of a review of records then the review right shall immediately cease, and the matters set forth in the Expense Statement under review shall be conclusively deemed correct, provided however, that if Tenant cures the Event of Default within ninety (90) months after days following Tenant’s receipt of the Expense Statement, it may exercise the right contained in this Section upon five (5) days’ prior Notice. No subtenant shall have the right to conduct any such Annual Expense Statement review; and no assignee of Tenant (or if a supplemental or amended statement is provided, after other than an assignee permitted pursuant to Subsection 7.3) shall have the delivery of such supplemental or amended statement), Landlord shall upon Tenant’s written request therefor, provide such additional information at Tenant’s sole reasonable cost as reasonably necessary for Tenant right to verify the amount of Operating Expenses incurred during the preceding calendar year. For conduct any review with respect to a period of twelve antedating the assignment. Tenant shall exercise its right upon not less than fifteen (1215) months after days’ prior Notice, given at any time within ninety (90) days following Tenant’s receipt of such Annual an Expense Statement (time being of the essence). Any such review shall be conducted by Tenant or subsequent supplemental or amended statement), Tenant, or by an independent, independent certified public accountant who of Tenant’s choosing that is hired not being compensated by Tenant on a noncontingency fee basis. If Tenant employs such a third party reviewer then as a condition precedent to such review Tenant shall deliver to Landlord a copy of Tenant’s written agreement with such accountant which shall include provisions which state that (i) Landlord is an intended third-contingent fee basis and who offers party beneficiary of the agreement, (ii) the accountant will not in any manner solicit or agree to represent any other tenant of the Center with respect to a full range of accounting services and is reasonably acceptable to Landlord, shall have the right, during regular business hours and after giving at least ten (10) days’ advance written notice to Landlord, to inspect and complete an audit review of Landlord’s books accounting records at the Center, and records relating (iii) the accountant will maintain in strict confidence, subject to Operating Expenses any subpoena pursuant to any legal proceeding, any and all information obtained in connection with the review and will not disclose the fact of the review or any results of it to any person or entity other than to the Tenant. Any such review shall be conducted at Landlord’s office at the Center or at Landlord’s principal offices, or at such other location as Landlord may reasonably designate. Landlord will provide Tenant with reasonable accommodation for the immediately preceding calendar yearreview and reasonable use of available office equipment (including, without limitation, telephones and copy machines), but may make a reasonable charge for Tenant’s telephone calls and photocopies. Tenant shall (and shall cause its employees, agents and consultants to) keep deliver to Landlord a copy of the results of any such audit review within thirty (30) days following its completion or audited statement strictly confidential. Within such twelve (12) month period, if receipt by Tenant disagrees and will maintain in strict confidence any and all information obtained in connection with the Annual Expense Statement, Tenant shall notify Landlord that it disputes review and will not disclose the correctness fact of the Annual review or any results of it to any person or entity other than Tenant’s counsel and accountant, subject to any subpoena pursuant to any legal proceeding. The cost of the audit, including any copies made of any of Landlord’s records, shall be borne by Tenant, provided that if it is determined as a result of such audit that Operating Costs as shown on such Expense Statement exceeded the actual Operating Costs for such Operating Year by more than five percent (such notice a “Tenant Expense Dispute Notice”5%), specifying (i) Landlord shall reimburse Tenant for Tenant’s actual and reasonable costs of performing the particular respects audit and (ii) Tenant shall, upon fifteen (15) days’ written notice given at any time within ninety (90) days following Tenant’s receipt of the audit results, be permitted to conduct an audit with respect to the two (2) Operating Years immediately preceding the Operating Year subject to the initial audit. A dispute over the Expense Statement or any error by Landlord in which interpreting or applying the Annual provisions of this Lease respecting Operating Costs or in calculating the amounts in the Expense Statement shall not be a breach of this Lease by Landlord, and even if any legal proceeding over the Expense Statement is claimed to resolved against Landlord this Lease shall remain in full force and effect and Landlord shall not be incorrectliable for any consequential damages. Pending the determination of any such dispute by agreement or litigation as aforesaid, Tenant shall pay amounts billed with respect to Landlord the amount due under the disputed Annual such Expense StatementStatement as Additional Rent, within thirty (30) days after Landlord gives same to Tenant, and such payment to be without prejudice to Tenant’s 's position, and subject to rebate of any amounts subsequently found to have been charged to Tenant in error. If upon resolution of such the dispute (whether by mutual agreement between shall be determined in Tenant's favor then Landlord and shall promptly pay to Tenant or by judicial determination), the amounts paid by Tenant to Landlord for Operating Expenses exceed the amounts to which Landlord is entitled hereunder, Landlord shall, at Landlord’s option, either credit the amount of Tenant's overpayment of Rent resulting from compliance with the Expense Statement together with interest from the time of such excess toward overpayment at the next monthly payments of Operating Expenses due hereunder or remit such net overpayment to Tenant within thirty (30) daysReimbursement Rate, or if the amounts paid by Tenant to Landlord for Operating Expenses is less than the amounts to which Landlord is entitled hereunder, Tenant shall pay such deficiency to Landlord within (30) days. All together with all of Tenant’s 's attorney fees, costs and expenses of any such audit shall be paid by Tenant unless such audit or audited statement shows that incurred in contesting the amounts paid by Tenant to Landlord on account of Operating Expenses for such calendar year exceed the amounts to which Landlord is entitled by more than four percent (4%) in which case Landlord shall pay all costs and expenses of any such audit or audited statement (provided such costs and expenses shall not exceed Five Thousand Dollars ($5,000) in the aggregate) and if such amount exceeds seven percent (7%), Landlord shall pay to Tenant interest at the Default Rate on all overpayments of Operating Expenses for such calendar year accruing from the date of overpayment until paid to Tenant. If Tenant does not notify Landlord in writing of any objection to any Annual Expense Statement within twelve (12) months after receipt thereof (or six (6) months, in the case of Tenant’s audit of Consumable Expenses in accordance with Section 5(b)(vii)), then Tenant shall be deemed to have waived such objection for such Annual Expense Statement. Notwithstanding anything to the contrary contained herein, Tenant may not conduct an audit of an Annual Expense Statement more than once each calendar year.