Tenant’s Right to Audit. The annual Statement of Operating Costs for the preceding year shall be provided by Landlord on or before April 30th of each calendar year after the Base Year of the Lease term. Within ninety (90) days after receipt of the Statement, Tenant shall be entitled, upon ten (10) days prior written notice (“Inspection Notice”) and during normal business hours, at Landlord’s office or such other place as Landlord shall reasonably designate, to inspect and examine those books and records of Landlord relating to the determination of Operating Costs for only the immediately preceding calendar year. Any third party engaged by Tenant to inspect or examine the books and records shall be a certified public accountant from a nationally or regionally recognized accounting firm and such accountant shall not be compensated on a contingency fee or similar basis. Should Tenant elect to inspect such records, Tenant’s inspection shall be completed and the results thereof submitted to Landlord no later than two (2) months after Tenant’s notification to Landlord of its intent to inspect Landlord’s books and records. Tenant shall be deemed to have waived its right to inspect Landlord’s books and records if Tenant fails to timely deliver the Inspection Notice, or fails to timely complete the inspection (unless Landlord was the cause of the delay). If, after inspection and examination of such books and records, Tenant disputes the amounts of Operating Costs charged by Landlord, Tenant may, by written notice to Landlord, request an independent audit of such books and records. The independent audit of the books and records shall be conducted by a certified public accountant (“CPA”) acceptable to both Landlord and Tenant. If, within thirty (30) days after Landlord’s receipt of Tenant’s notice requesting an audit, Landlord and Tenant are unable to agree on the CPA to conduct such audit, then Landlord may designate a nationally recognized accounting firm not then employed by Landlord or Tenant to conduct such audit. The audit shall be limited to the determination of the amount of Operating Costs for the subject calendar year. If the audit discloses that the amount of Operating Costs billed to Tenant was incorrect, the appropriate party shall pay to the other party the deficiency or overpayment, as applicable. All costs and expenses of the audit shall be paid by Tenant unless the audit shows that Landlord overstated Operating Costs for the subject calendar year by more than five percent (5%), in which case Landlord shall pay all costs and expenses of the audit (not to exceed $10,000.00). Tenant and Tenant’s representatives shall keep any information gained from such audit confidential and shall not disclose it to any other party. The exercise by Tenant of its audit rights hereunder shall not relieve Tenant of its obligation to timely pay all sums due hereunder, including, without limitation, the disputed Operating Costs.
Appears in 3 contracts
Samples: Lease Agreement (Five9, Inc.), Lease Agreement (Five9, Inc.), Lease Agreement (Five9, Inc.)
Tenant’s Right to Audit. The annual During the sixty (60)-day period after receipt of any Landlord’s Statement of Operating Costs for (the preceding year “Review Period”), Tenant may, upon prior notice to Landlord, inspect and audit Landlord’s records relevant to the cost and expense items reflected in such Landlord’s Statement at a reasonable time mutually agreeable to Landlord and Tenant during Landlord’s usual business hours at the management office where such records are maintained. Tenant shall be entitled to retain an independent company or certified public accountant to review Landlord’s relevant records to determine if the proper amount of Additional Rent was charged to Tenant for such period, provided by Landlord that such company or accountant must be employed on or before April 30th a regular fee for services basis and not a contingent fee basis. Each Landlord’s Table of each calendar year after the Base Year of the Lease term. Within ninety Contents Statement shall be conclusive and binding upon Tenant unless within sixty (9060) days after receipt of such Landlord’s Statement Tenant shall have completed such inspection and audit and shall notify Landlord that it disputes the correctness of Landlord’s Statement, specifying the respects in which Landlord’s Statement is claimed to be incorrect. If such audit or review reveals that Landlord has overcharged Tenant, then within fifteen (15) days after the results of such audit are made available to Landlord, Landlord shall reimburse Tenant the amount of such overcharge. If the audit reveals that Tenant was undercharged, then within fifteen (15) days after the results of the audit are made available to Tenant, Tenant shall be entitledreimburse Landlord the amount of such undercharge. If Landlord desires to contest such audit results, upon ten Landlord may do so by submitting the results of the audit to arbitration pursuant to Section 13.9 of the Lease within sixty (1060) days prior written notice (“Inspection Notice”) of receipt of the results of the audit, and during normal business hours, at Landlord’s office or such other place as Landlord shall reasonably designate, to inspect and examine those books and records of Landlord relating to the determination of Operating Costs for only the immediately preceding calendar year. Any third party engaged by Tenant to inspect or examine the books and records arbitration shall be a certified public accountant from a nationally or regionally recognized accounting firm final and such accountant shall not be compensated on a contingency fee or similar basis. Should Tenant elect to inspect such records, Tenant’s inspection shall be completed and the results thereof submitted to Landlord no later than two (2) months after Tenant’s notification to Landlord of its intent to inspect Landlord’s books and records. Tenant shall be deemed to have waived its right to inspect Landlord’s books and records if Tenant fails to timely deliver the Inspection Notice, or fails to timely complete the inspection (unless Landlord was the cause of the delay). If, after inspection and examination of such books and records, Tenant disputes the amounts of Operating Costs charged by Landlord, Tenant may, by written notice to Landlord, request an independent audit of such books and records. The independent audit of the books and records shall be conducted by a certified public accountant (“CPA”) acceptable to both binding upon Landlord and Tenant. If, within thirty (30) days after Landlord’s receipt Tenant agrees to pay the cost of Tenant’s notice requesting an audit, Landlord and Tenant are unable to agree on the CPA to conduct such audit, then Landlord may designate a nationally recognized accounting firm not then employed by Landlord or Tenant to conduct such audit. The provided that, if the audit shall be limited to the reveals that Landlord’s determination of the amount of Operating Costs for the subject calendar year. If the audit discloses that the amount of Operating Costs billed such Additional Rent as set forth in any statement sent to Tenant was incorrect, the appropriate party shall pay to the other party the deficiency or overpayment, as applicable. All costs and expenses of the audit shall be paid by Tenant unless the audit shows that Landlord overstated Operating Costs for the subject calendar year in error in Landlord’s favor by more than five percent (5%), in which case Landlord shall pay all costs the reasonable cost of such audit. Pending the determination of such dispute as hereinafter provided, Tenant shall pay Additional Rent in accordance with the applicable Landlord’s Statement, and expenses of the audit (not such payment shall be without prejudice to exceed $10,000.00). Tenant and Tenant’s representatives position. All inspections and audits of Landlord’s books and records and any arbitration shall keep any information gained from such audit confidential and shall not disclose it be subject to any other party. The exercise by Tenant of its audit rights hereunder shall not relieve Tenant of its obligation a confidentiality agreement reasonably acceptable to timely pay all sums due hereunder, including, without limitation, the disputed Operating CostsLandlord.
Appears in 3 contracts
Samples: Lease Agreement (Alzheon, Inc.), Lease Agreement (Alzheon, Inc.), Lease Agreement (Alzheon, Inc.)
Tenant’s Right to Audit. The annual Statement Tenant shall have the right, at Tenant's sole cost and expense, to audit Landlord's records of Operating Common Area Costs for ("CAM Costs") and Taxes provided that all the preceding year shall be provided by Landlord on or following criteria are met: (a) before April 30th of each calendar year after the Base Year of the Lease term. Within ninety (90) days after receipt of the Statementconducting any audit, Tenant shall be entitledmust pay the full amount of Tenant's Proportionate Share of Landlord's Common Area Costs and Taxes due, upon ten (10) days prior written notice (“Inspection Notice”) and during normal business hours, at Landlord’s office or such other place as Landlord shall reasonably designate, to inspect and examine those books and records of Landlord relating to the determination of Operating Costs for only the immediately preceding calendar year. Any third party engaged by Tenant to inspect or examine the books and records shall be a certified public accountant from a nationally or regionally recognized accounting firm and such accountant shall must not be compensated on a contingency fee or similar basis. Should Tenant elect to inspect such records, Tenant’s inspection shall be completed and in default of any other provisions of this Lease beyond any applicable cure periods set forth herein; (b) in conducting the results thereof submitted to Landlord no later than two (2) months after Tenant’s notification to Landlord of its intent to inspect Landlord’s books and records. Tenant shall be deemed to have waived its right to inspect Landlord’s books and records if Tenant fails to timely deliver the Inspection Notice, or fails to timely complete the inspection (unless Landlord was the cause of the delay). If, after inspection and examination of such books and recordsaudit, Tenant disputes the amounts of Operating Costs charged by Landlord, Tenant may, by written notice to Landlord, request must utilize an independent audit of such books and records. The independent audit of the books and records shall be conducted by a certified public accountant (“"CPA”") acceptable experienced in auditing the records of a multi-use project, which CPA will be subject to both Landlord's reasonable prior approval; (c) the audit shall be conducted at Landlord's main offices in Chicago, Illinois, or such other site as Landlord may reasonably determine; (d) upon receipt thereof, Tenant will deliver to Landlord a copy of the audit report and all accompanying data; (e) Tenant will keep confidential all agreements involving the right provided in this section and the results of any audit conducted hereunder, and shall cause the CPA conducting said audit to keep such information confidential (except that such information may be disclosed to an entity providing financing to Tenant. If, within thirty (30) days after Landlord’s receipt a prospective purchaser of Tenant’s notice requesting 's interest in the Premises, Tenant's officers, agents, employees, accountants, attorneys and other professionals, or in connection with any litigation or arbitration proceedings between the parties, or as may be required by any competent judicial or other legally constituted authority); and (f) Tenant shall not conduct an audit more often than once each calendar year. In the event Landlord has misstated the actual amount of Tenant's Proportionate Share (as opposed to Tenant's estimated share) of Landlord's Common Area Costs or Taxes for a Lease Year by five percent (5%) or more, Landlord shall pay the reasonable actual out-of-pocket costs and expenses incurred by Tenant in connection with said audit. In the event that a dispute exists between Tenant and Landlord with respect to the actual amount of Tenant's Proportionate Share of Landlord's Common Area Costs or Taxes for a Lease Year, and if Landlord and Tenant are unable to agree on the CPA to conduct resolve any such auditdispute by mutual agreement, then Landlord may designate a nationally recognized accounting firm not then employed then, unless otherwise mutually agreed by Landlord or Tenant to conduct and Tenant, any such audit. The audit dispute shall be limited resolved by binding arbitration in the jurisdiction in which the Premises are located in accordance with the then Commercial Rules of the American Arbitration Association, and the respective costs of such arbitration incurred by each party with respect to such arbitration shall be borne by each such party in equal shares, provided each party shall be responsible to pay its own legal fees and costs for such arbitration. Notwithstanding the determination existence of any such audit or any dispute by Tenant with respect to the amount of Operating Tenant's Proportionate Share of Landlord's Common Area Costs for the subject calendar year. If the audit discloses that or Taxes, however, Tenant shall continue to timely pay the amount of Operating any and all payments required to be made by Tenant hereunder with respect to Tenant's Proportionate Share of Landlord's Common Area Costs billed or Taxes as and when required under this Lease, provided that the payment of such disputed amount and other amounts shall be without prejudice to Tenant was incorrect, Tenant's position. Landlord agrees to maintain the appropriate party shall pay records pertaining to Landlord's Common Area Costs and Taxes for a period of 36 months after the other party the deficiency or overpayment, as applicable. All costs and expenses end of the audit shall be paid by Tenant unless the audit shows that Landlord overstated Operating Costs for the subject calendar year by more than five percent (5%), in Lease Year to which case Landlord shall pay all costs and expenses of the audit (not to exceed $10,000.00). Tenant and Tenant’s representatives shall keep any information gained from such audit confidential and shall not disclose it to any other party. The exercise by Tenant of its audit rights hereunder shall not relieve Tenant of its obligation to timely pay all sums due hereunder, including, without limitation, the disputed Operating Coststhey relate.
Appears in 2 contracts
Samples: Retail Lease (New York Restaurant Group Inc), Retail Lease (Smith & Wollensky Restaurant Group Inc)
Tenant’s Right to Audit. The annual Statement of Operating Costs for the preceding year shall be provided by Landlord on or before April 30th of each calendar year after the Base Year of the Lease term. Within ninety (90a) days after receipt of the Statement, Tenant shall be entitled, upon ten (10) days prior written notice (“Inspection Notice”) and during normal business hours, at Landlord’s office or such other place as Landlord shall reasonably designate, to inspect maintain complete and examine those accurate books and records of detailing all Expenses (including Taxes) for not less than the three (3) Fiscal Years preceding the then current Fiscal Year. Landlord relating to the determination of Operating Costs for only the immediately preceding calendar year. Any third party engaged by Tenant to inspect or examine may keep the books and records at the Building or at Landlord’s regional office. Upon thirty (30) days written notice, Tenant and/or its representatives shall be a certified public accountant from a nationally or regionally recognized accounting firm have the right, at Tenant’s expense, to examine, copy, and such accountant shall not be compensated on a contingency fee or similar basis. Should Tenant elect to inspect audit, during normal business hours at the place where Landlord maintains such records, Tenant’s inspection shall be completed and the results thereof submitted to Landlord no later than two (2) months after Tenant’s notification to Landlord of its intent to inspect Landlord’s books and records. Tenant shall be deemed to have waived its right to inspect Landlord’s books and records pertaining to the Expenses for the then immediately preceding Fiscal Year (including the Base Year, but with respect to the Base Year, Tenant shall only have one (1) right to audit the same) to enable Tenant to verify the accuracy thereof. Landlord shall reasonably cooperate with Tenant in any such examination. If it is determined that the Expenses reported by Landlord are in excess of one hundred five (105%) percent of the actual amount of Expenses with respect to any Fiscal Year, then if Tenant (a) Landlord fails to timely deliver the Inspection Noticedispute such finding, or fails to timely complete the inspection (unless b) Landlord was the cause of the delay). Ifagrees with such finding, after inspection and examination of such books and records, Tenant disputes the amounts of Operating Costs charged by Landlord, Tenant may, by written notice to Landlord, request an independent audit of such books and records. The independent audit of the books and records shall be conducted by or (c) following a certified public accountant (“CPA”) acceptable to both Landlord and Tenant. If, within thirty (30) days after Landlord’s receipt dispute of Tenant’s notice requesting an auditaudit by Landlord the calculation selected by the arbitrator, Landlord and if submitted to arbitration (as provided below) or the reconciled audits, still evidence that Tenant are unable to agree on the CPA to conduct such auditwas overcharged by more than five percent (5%) as set forth above, then Landlord may designate a nationally recognized accounting firm not then employed by Landlord or Tenant to conduct such audit. The Tenant’s reasonable actual out-of-pocket, third party costs of said audit shall be limited to the determination of the amount of Operating Costs for the subject calendar yearpayable by Landlord on demand. If it is determined, as set forth in the audit discloses preceding sentence that the amount of Operating Costs billed to Tenant was incorrect, the appropriate party shall pay to the other party the deficiency or overpayment, as applicable. All costs and expenses of the audit shall be paid by Tenant unless the audit shows that Landlord overstated Operating Costs for the subject calendar year not overcharged by more than five percent (5%), in which case Landlord then Landlord’s reasonable actual out-of-pocket, third party costs of monitoring and responding to said audit shall pay all costs be payable by Tenant on demand. Any overpayment by Tenant shall be credited to Tenant and expenses any undercharge shall be paid by Tenant within thirty (30) days. Failure by Tenant to contest or dispute the allocation of Additional Rent (i) within ninety (90) days following Landlord’s delivery of the audit Expense reconciliation statement pursuant to Section 4.2 for a particular Fiscal Year, or (not ii) with respect to exceed $10,000.00). Tenant and the final Fiscal Year during the Term, within ninety (90) days following the delivery of the Expense reconciliation statement for the final Fiscal Year, (A) is deemed a waiver of Tenant’s representatives shall keep audit or dispute right and any information gained from such audit confidential and shall right to contest the Additional Rent charges (undercharges or overcharges) with respect to the Fiscal Year in question (but not disclose it with respect to any other party. The exercise Fiscal Year); and (B) is deemed acceptance of the Additional Rent charges as submitted to and reviewed by Tenant for such Fiscal Year. Subject to the preceding sentence, the foregoing provisions shall survive termination or expiration of the Lease. In the event Tenant exercises its audit rights hereunder shall as provided above and Landlord and Tenant cannot relieve reconcile their respective calculations of Expenses within forty-five (45) days following the delivery by Tenant to Landlord of its obligation the results of Tenant’s audit, either Landlord or Tenant can cause the calculation of Expenses to timely pay all sums due hereunderbe submitted to arbitration by delivering written notice to the other of such election. In such event, includingLandlord and Tenant shall, without limitationwithin thirty (30) days following the election by either party to submit the calculation to arbitration, mutually agree upon a third party arbitrator satisfactory to both parties to render a final determination of the Expenses. In the event Landlord and Tenant are unable to mutually agree upon an arbitrator within such period, the disputed Operating Costsparties shall then apply to the American Arbitration Association or any successor thereto for the designation of an arbitrator to render a final determination of the Expenses. In either event the arbitrator shall (1) be a certified public accountant licensed in the State of California, (2) have at least ten (10) years experience in the field of commercial office operations, (3) not have represented either Landlord or Tenant during the preceding (5) years (other than with respect to other audits conducted by either party for the Project), and (4) be generally experienced and competent in determining and calculating the proper allocation of operating expenses among tenants in office buildings similar to the Building. The arbitrator shall, within thirty (30) days following his or her appointment, determine which of (x) the Landlord’s calculation of Expenses for the year in question, as submitted to the Tenant, or (y) the Tenant’s calculation of Expenses for the applicable year, as determined by its audit, is closer to the arbitrator’s determination of Expenses allocable to the Premises for the applicable year, and whichever of the Landlord’s calculation or the Tenant’s calculation is determined by the arbitrator to be closest to the arbitrator’s determination shall be binding upon Landlord and Tenant. The party who does not prevail in such arbitration shall be responsible for all arbitration fees and the reasonable out-of-pocket attorneys fees and costs of the prevailing party incurred in connection with such arbitration.
Appears in 2 contracts
Samples: Lease Agreement (Adept Technology Inc), Lease Agreement (Adept Technology Inc)
Tenant’s Right to Audit. The annual Statement (a) Tenant or its representative shall have the right to examine Landlord’s books and records with respect to the reconciliation of Operating Costs Expenses and Taxes for the preceding year shall be provided by Landlord on or before April 30th of each prior calendar year after year, as set forth in the Base Year of the Lease term. Within Expense Statement for such year, during normal business hours at any time within ninety (90) days after receipt following the delivery by Landlord to Tenant of the such Expense Statement, Tenant . Any such audit (a) shall be entitled, conducted where such records are customarily maintained during regular business hours and upon at least ten (10) days prior advance written notice to Landlord, and (“Inspection Notice”b) and during normal business hours, at Landlord’s office or such other place as Landlord shall reasonably designate, to inspect and examine those books and records of Landlord relating to the determination of Operating Costs for only the immediately preceding not be conducted more than once in any calendar year. Any third party engaged by In no event may Tenant audit the Base Year or any operating year more than one (1) time. Unless Tenant shall give Landlord written notice objecting to inspect or examine said reconciliation and specifying the books and records shall items in which said reconciliation is claimed to be a certified public accountant from a nationally or regionally recognized accounting firm and such accountant shall not be compensated on a contingency fee or similar basis. Should Tenant elect to inspect such records, Tenant’s inspection shall be completed and the results thereof submitted to Landlord no later than two incorrect within thirty (230) months days after Tenant’s notification to Landlord its examination of its intent to inspect Landlord’s books and records, said reconciliation shall be considered as final and accepted by Tenant. Notwithstanding anything to the contrary contained in this Section, Tenant shall not be deemed permitted to have waived its right to inspect examine Landlord’s books and records if or to dispute the Expense Statement unless Tenant fails has paid to timely Landlord the amount due as shown on the Expense Statement; said payment is a condition precedent to said examination and/or dispute. If such audit shall disclose that Operating Expenses or Taxes have been overstated, Tenant shall deliver a letter to Landlord setting forth Tenant’s position accompanied by a reasonably detailed explanation of and together with reasonably detailed supporting data evidencing the Inspection basis on which the claim of an overcharge is made (an “Overcharge Notice, or fails to timely complete the inspection (unless Landlord was the cause of the delay”). If, after inspection and examination of such books and records, Tenant disputes the amounts of Operating Costs charged by Landlord, Tenant may, by written notice to Landlord, request an independent audit of such books and records. The independent audit of the books and records shall be conducted by a certified public accountant (“CPA”) acceptable to both Landlord and Tenant. Ifshall, within thirty (30) days after Landlord’s of receipt of an Overcharge Notice, either (a) notify Tenant in writing that it agrees with the determination set forth in the Overcharge Notice and Landlord shall credit Tenant with the amount of such overcharge against the next succeeding amount of Tenant’s notice requesting an auditShare of Operating Expenses and Taxes due from Tenant (or refund such overcharge if the Lease term has expired), Landlord or (b) notify Tenant in writing that it does not agree with the determination set forth in the Overcharge Notice accompanied by a reasonably detailed explanation of and Tenant are unable together with reasonably detailed supporting data evidencing the basis for such position (“Landlord’s Dispute Notice”). Landlord’s failure to agree on the CPA to conduct such audit, then Landlord may designate timely provide a nationally recognized accounting firm not then employed by Landlord or Tenant to conduct such audit. The audit Landlord’s Dispute Notice shall be limited to the determination of the amount of Operating Costs for the subject calendar year. If the audit discloses that the amount of Operating Costs billed to Tenant was incorrect, the appropriate party shall pay to the other party the deficiency or overpayment, treated as applicable. All costs and expenses of the audit shall be paid by Tenant unless the audit shows that if Landlord overstated Operating Costs for the subject calendar year by more than five percent (5%), in which case Landlord shall pay all costs and expenses of the audit (not to exceed $10,000.00). Tenant and Tenantprovided a Landlord’s representatives shall keep any information gained from such audit confidential and shall not disclose it to any other party. The exercise by Tenant of its audit rights hereunder shall not relieve Tenant of its obligation to timely pay all sums due hereunder, including, without limitation, the disputed Operating CostsDispute Notice.
Appears in 2 contracts
Samples: Princeton South Corporate Center Office Lease (Celator Pharmaceuticals Inc), Princeton South Corporate Center Office Lease (Celator Pharmaceuticals Inc)
Tenant’s Right to Audit. The annual Statement of Operating Costs Tenant shall pay to Landlord all amounts payable pursuant to Articles 7.4 and 7.5 herein without off-set or deduction within the time periods provided for in each respective Article notwithstanding that Tenant may object to Landlord's statement rendered pursuant thereto. In the preceding year event Tenant shall be provided by Landlord on or before April 30th of each calendar year after dispute the Base Year of amount set forth in Landlord's statement as described in Article 7.5 herein and Tenant pays the Lease term. Within ninety (90) days after receipt of the Statementfull amount set forth in Landlord's reconciliation statement then, Tenant shall be entitledhave the right, upon ten not later than sixty (1060) days prior written notice (“Inspection Notice”) and during normal business hours, at Landlord’s office or following receipt of such other place as Landlord shall reasonably designatestatement, to inspect and examine those cause Landlord's books and records of Landlord relating with respect to the determination of Operating Costs for only the immediately preceding calendar year. Any third party engaged year to be audited by Tenant an independent Certified Public Accountant mutually acceptable to inspect or examine the books Landlord and records shall be a certified public accountant from a nationally or regionally recognized accounting firm Tenant, and such accountant who shall not be compensated on a contingency fee or similar basis. Should Tenant elect to inspect such records, Tenant’s inspection Such audit shall be completed and the results thereof submitted to Landlord no later occur upon not less than two twenty (220) months after Tenant’s notification to Landlord of its intent to inspect Landlord’s books and records. Tenant shall be deemed to have waived its right to inspect Landlord’s books and records if Tenant fails to timely deliver the Inspection Notice, or fails to timely complete the inspection (unless Landlord was the cause of the delay). If, after inspection and examination of such books and records, Tenant disputes the amounts of Operating Costs charged by Landlord, Tenant may, by days prior written notice to Landlord, request an independent audit at Landlord's place of such books and records. The independent audit business or the actual location of the Landlord's books and records if different from Landlord's place of business, during Landlord's normal business hours. The amounts payable under this Article by Landlord to Tenant or by Tenant to Landlord, as the case may be, shall be conducted appropriately adjusted on the basis of such audit. If such audit discloses a liability for further refund by a certified public accountant Landlord to Tenant in excess of five percent (“CPA”5%) acceptable to both of the payments previously made by Tenant for such calendar year, the actual out-of-pocket cost of such audit incurred by Tenant shall be borne by Landlord and Tenant. If, paid within thirty (30) days after of demand from Tenant subject to Landlord’s receipt 's right to dispute the results of Tenant’s notice requesting an 's audit as hereinafter described; otherwise, the cost of such audit shall be borne by Tenant. Notwithstanding the foregoing, in no event shall Landlord's cost for such audit exceed Three Thousand Dollars ($3,000). If Tenant's audit discloses a liability for further refund by Landlord to Tenant of one percent (1%) or less or a liability for further payment by Tenant, then in that event the actual out-of-pocket cost to respond to Tenant's audit incurred by Landlord (including reasonable consultants' and attorneys' fees) shall be borne by Tenant and paid within thirty (30) days of demand from Landlord. In the event that the Landlord disputes the results of the Tenant's audit, Landlord and shall notify Tenant are unable to agree on within thirty (30) days of delivery of the CPA to conduct such results of the Tenant's audit together with reasonably detailed documentation related thereto. If Landlord disputes the Tenant's audit, then Landlord may designate a nationally recognized accounting firm not then employed by Landlord or Tenant to conduct such audit. The audit shall be limited to the determination of the amount of Operating Costs for the subject calendar year. If the audit discloses that the amount of Operating Costs billed to Tenant was incorrect, the appropriate party shall pay to the other party the deficiency or overpayment, as applicable. All costs and expenses of the audit shall be paid by Tenant unless the audit shows that Landlord overstated Operating Costs for the subject calendar year by more than five percent (5%), in which case Landlord shall pay all costs and expenses of the audit (not to exceed $10,000.00). Tenant and Tenant’s representatives shall keep any information gained from such audit confidential and shall not disclose it to any other party. The exercise by Tenant of its audit rights hereunder shall not relieve Tenant of its obligation to timely pay all sums due hereunderwithin said 30-day period, including, without limitation, the disputed Operating Costs.designate an independent Certified
Appears in 1 contract
Samples: Deed of Lease (Crosswalk Com)
Tenant’s Right to Audit. The annual Statement In the event Tenant shall dispute the amount set forth in Landlord’s statement of actual Operating Costs for the preceding year shall be provided by Landlord on or before April 30th of each calendar year after the Base Year of the Lease term. Within ninety (90) days after receipt of the StatementExpenses, Tenant shall have the right to cause Landlord’s books and records with respect to the Calendar Year to which such statement relates to be entitledaudited by an independent auditor that is nationally or regionally recognized as being reputable in the field, which auditor shall be hired by Tenant on a non-contingent fee basis. Such audit (i) shall occur upon ten not less than five (105) days prior written notice (“Inspection Notice”) and during normal business hoursto Landlord, at Landlord’s office place of business or such other place as Landlord shall reasonably designate, to inspect and examine those books and records the actual location of Landlord relating to the determination of Operating Costs for only the immediately preceding calendar year. Any third party engaged by Tenant to inspect or examine the books and records shall be a certified public accountant from a nationally or regionally recognized accounting firm and such accountant shall not be compensated on a contingency fee or similar basis. Should Tenant elect to inspect such records, Tenant’s inspection shall be completed and the results thereof submitted to Landlord no later than two (2) months after Tenant’s notification to Landlord of its intent to inspect Landlord’s books and records. Tenant shall be deemed to have waived its right to inspect Landlord’s books and records if different from Landlord’s place of business, during Landlord’s normal business hours, and ***. In addition, if such audit shows that amounts paid by Tenant fails to timely deliver Landlord on account of such charges exceeded by three percent (3%) or more the Inspection Notice, or fails amounts to timely complete the inspection (unless which Landlord was entitled hereunder, then, upon at least five (5) days prior written notice to Landlord (which notice shall be given within sixty (60) days following completion of Tenant’s audit), Tenant may also examine in such manner Landlord’s books and records for the cause previous three (3) Calendar Years immediately preceding the year for which the applicable audit was conducted, with respect solely to items for which such discrepancy was found. The amounts payable under this Article by Landlord to Tenant or by Tenant to Landlord, as the case may be, shall be appropriately adjusted on the basis of such audit; provided, however, if Landlord disagrees with the delay). Ifresults of any audit conducted by Tenant or its auditor under this Section 7.6, after inspection then Landlord and examination Tenant’s auditor shall together select a neutral auditor of similar qualifications to conduct a review of such books and records, Tenant disputes records (the amounts of Operating Costs charged by Landlord, Tenant may, by written notice to Landlord, request an independent audit fees of such books neutral auditor shall be shared equally by the parties) and recordsthe determination reached by such neutral auditor shall be final and conclusive. The independent If any final audit discloses a liability by Landlord to Tenant in excess of three percent (3%) of the books and records shall be conducted payments previously made by a certified public accountant (“CPA”) acceptable to both Landlord and Tenant. IfTenant for such Calendar Year, within thirty (30) days after Landlord’s receipt the cost of Tenant’s notice requesting an audit, Landlord and Tenant are unable to agree on the CPA to conduct such audit, then Landlord may designate a nationally recognized accounting firm not then employed by Landlord or Tenant to conduct such audit. The audit shall be limited to the determination borne by Landlord and shall not be considered as an Operating Expense for purposes of the amount of Operating Costs for the subject calendar year. If the audit discloses that the amount of Operating Costs billed to Tenant was incorrectthis Lease; otherwise, the appropriate party shall pay to the other party the deficiency or overpayment, as applicable. All costs and expenses cost of the such audit shall be paid borne by Tenant unless Tenant. Notwithstanding the audit shows that Landlord overstated Operating Costs for the subject calendar year by more than five percent (5%)12 foregoing, in which case Landlord no event shall pay all costs and expenses of the audit Landlord’s cost (such cost not to exceed $10,000.00). include any Landlord liability to Tenant and Tenant’s representatives shall keep any information gained from disclosed by the audit) for such audit confidential and shall not disclose it to any other party. The exercise by Tenant of its audit rights hereunder shall not relieve Tenant of its obligation to timely pay all sums due hereunder, including, without limitation, the disputed Operating Costsexceed ***.
Appears in 1 contract
Samples: Xo Holdings Inc
Tenant’s Right to Audit. The annual Statement of If Tenant disputes any Operating Costs for the preceding year shall be provided by Expenses or Taxes statement, Tenant must provide Landlord on or before April 30th of each calendar year after the Base Year of the Lease term. Within ninety with specific written objections within one hundred eighty (90180) days after receipt of receiving the Statementstatement (failing which, Tenant shall the statement will be entitleddeemed conclusive). Within 30 days after receiving these objections, upon ten (10) days prior written notice (“Inspection Notice”Landlord will either adjust the disputed statement in response to Tenant’s objection(s) and during normal business hourscredit any overpayment to Tenant as stated above, at Landlord’s office or such other place as Landlord shall reasonably designate, to inspect and examine those books and records of Landlord relating to the determination of Operating Costs for only the immediately preceding calendar year. Any third party engaged by notify Tenant to inspect or examine the books and records shall be a certified public accountant from a nationally or regionally recognized accounting firm and such accountant shall not be compensated on a contingency fee or similar basis. Should Tenant elect to inspect such records, that it believes Tenant’s inspection shall be completed and the results thereof submitted objection is without merit (it being agreed that, if Landlord fails to respond within such 30-day period, Landlord no later than two (2) months after Tenant’s notification to Landlord of its intent to inspect Landlord’s books and records. Tenant shall be deemed to have waived its right agreed to inspect Landlordadjust the disputed statement in response to Tenant’s books objection(s) and records credit any overpayment to Tenant as stated above). If Tenant timely disputes a statement and Landlord notifies Tenant that Tenant’s objection is without merit, Tenant may — if no Event of Default by Tenant fails to timely deliver the Inspection Noticeis then in existence — cause (i) qualified accounting employees of Tenant, or fails to timely complete the inspection (unless Landlord was the cause of the delay). Ifii) an independent, after inspection and examination of such books and records, Tenant disputes the amounts of Operating Costs charged by Landlord, Tenant may, by written notice to Landlord, request an independent audit of such books and records. The independent audit of the books and records shall be conducted by a certified public accountant (“CPA”) acceptable to both Landlord and Tenantaudit the supporting data for the disputed statement (in which event, such supporting data shall be made available to the employee or CPA). IfHowever, Tenant may not exercise its audit right unless the audit commences within thirty (30) days after Landlord notifies Tenant that Tenant’s objection is without merit, nor may Tenant audit any statement more than once (it being understood that the foregoing prohibition against multiple audits of the same statement shall not be deemed to prohibit the examination of the same documents more than once in the course of the same audit). Any CPA selected by Tenant to conduct an audit must have least 5 years experience performing operating expense pass-through audits for commercial office buildings in the metropolitan Washington, D.C. area, and must be approved by Landlord. Landlord’s receipt approval will not be unreasonably withheld or delayed, if such CPA (a) is not compensated on a contingency fee basis, and (b) signs a confidentiality agreement in form reasonably acceptable to Landlord (Landlord hereby agreeing that no such confidentiality agreement shall prohibit the disclosure, in any action or suit instituted by Tenant against Landlord with regard to the audited Operating Expenses or Taxes, of information required to institute or prosecute such action or suit, but such confidentiality agreement may require Tenant and the CPA to agree to reasonable protective orders in connection therewith). Each audit under this Section 6(D) must be conducted at Landlord’s property manager’s Washington, D.C. area office. If Landlord does not agree with the audit results of the CPA Tenant selects, or Tenant’s notice requesting an auditemployee(s), Landlord and Tenant are unable will endeavor to agree resolve their differences (failing which, the dispute will be conclusively determined based on an independent audit by a third-party CPA selected by the parties or, failing agreement, appointed by the American Arbitration Association or any recognized successor thereto upon application by either party). The parties will make any necessary adjustments in accordance with the third-party CPA to conduct such audit, then Landlord may designate a nationally recognized accounting firm not then employed by Landlord or Tenant to conduct such audit. The audit shall be limited to the determination of the amount of Operating Costs for the subject calendar year. If the audit discloses that the amount of Operating Costs billed to Tenant was incorrect, the appropriate party shall pay to the other party the deficiency or overpayment, as applicable. All costs and expenses of the audit shall be paid by Tenant unless the audit shows that Landlord overstated Operating Costs for the subject calendar year by more than five percent (5%), in which case Landlord shall must pay all costs and expenses of the Tenant’s audit (including, but not limited to, reasonable copying charges), unless the amounts paid by Tenant to exceed $10,000.00Landlord for the year in question exceeded the amounts to which Landlord was entitled by more than 6%, in which event Landlord will reimburse Tenant for the reasonable costs incurred in connection with Tenant’s audit. If the third-party CPA audit shows Tenant has underpaid Operating Expenses or Taxes (or both), in addition to paying to Landlord the underpayment amount, Tenant shall reimburse Landlord upon demand for all reasonable costs, expenses and fees incurred by Landlord in connection with such dispute. If a third-party CPA ultimately resolves the dispute, the losing party shall pay the costs incurred in connection with the third-party CPA audit (including, but not limited to, reasonable copying charges). Tenant and Tenant’s representatives shall keep has no right to withhold or reduce any information gained from such audit confidential and shall not disclose it to any other party. The exercise performance by Tenant of its under the Lease pending or based upon any audit rights hereunder shall not relieve Tenant of its obligation to timely pay all sums due hereunder, including, without limitation, the disputed Operating Costsunder this Section 6(D).
Appears in 1 contract
Samples: Lease Agreement (Gtsi Corp)
Tenant’s Right to Audit. The annual Statement of Operating Costs for the preceding year shall be provided by Landlord on or before April 30th of each calendar year after the Base Year of the Lease term. Within ninety (90) days after receipt of the Statement, Tenant shall be entitled, upon ten (10) days prior written notice (“Inspection Notice”) and during normal business hours, at Landlord’s office or such other place as Landlord shall reasonably designate, to inspect maintain complete and examine those accurate books and records of Landlord relating to detailing all Expenses and Taxes for not less than the determination of Operating Costs for only the immediately preceding calendar one (1) year. Any third party engaged by Tenant to inspect or examine Landlord may keep the books and records at the Building or at Landlord's regional office. Within ninety days of receipt of Landlord's annual statement for Tenant's Share of Additional Expenses and Additional Taxes as described in Section 4.2(b) above and upon thirty (30) days written notice Tenant and/or its representatives (which shall be a certified public accountant from a nationally or regionally recognized members of one of the "Big Five" accounting firm firms and such accountant shall not be compensated on a contingency fee or similar basisbasis for this audit) shall have the right, at Tenant's expense, to examine (but not to copy), and audit during normal business hours, Landlord's books and records pertaining to the Expenses and Taxes for the preceding year to enable Tenant to verify the accuracy thereof. Should Landlord shall reasonably cooperate with Tenant elect to inspect in any such records, Tenant’s inspection examination. Any information reviewed by Tenant and/or its representatives shall be completed kept confidential and may only be disclosed as set forth in Section 26.10. If it is determined that the results thereof submitted Expenses and Taxes reported by Landlord are in excess of one hundred five (105%) percent of the actual amount of Expenses and Taxes, then if (i) Landlord fails to dispute such finding, or (ii) Landlord no later agrees with such finding, or (iii) following a dispute of Tenant's audit by Landlord the reconciled audits still evidence that Tenant was overcharged by more than two (2) months after 5% as set forth above, then Tenant’s notification to 's reasonable actual costs of said audit shall be payable by Landlord of its intent to inspect Landlord’s books and recordson demand. Any overpayment by Tenant shall be deemed to have waived its right to inspect Landlord’s books and records if Tenant fails to timely deliver the Inspection Notice, or fails to timely complete the inspection (unless Landlord was the cause of the delay). If, after inspection and examination of such books and records, Tenant disputes the amounts of Operating Costs charged by Landlord, Tenant may, by written notice to Landlord, request an independent audit of such books and records. The independent audit of the books and records shall be conducted by a certified public accountant (“CPA”) acceptable to both Landlord and Tenant. If, within thirty (30) days after Landlord’s receipt of Tenant’s notice requesting an audit, Landlord and Tenant are unable to agree on the CPA to conduct such audit, then Landlord may designate a nationally recognized accounting firm not then employed by Landlord or Tenant to conduct such audit. The audit shall be limited to the determination of the amount of Operating Costs for the subject calendar year. If the audit discloses that the amount of Operating Costs billed credited to Tenant was incorrect, the appropriate party shall pay to the other party the deficiency or overpayment, as applicable. All costs and expenses of the audit any undercharge shall be paid by Tenant unless as soon as reasonably possible. Failure by Tenant to contest or dispute the allocation of Additional Rent within ninety days of receipt of Landlord's annual statement for Tenant's Share of Additional Expenses and Additional Taxes as described in Section 4.2(b) above (a) is deemed a waiver of the applicable audit shows that Landlord overstated Operating Costs or dispute right and any right to contest the Additional Rent charges (undercharges or overcharges) for the subject calendar year by more than five percent applicable Lease year; (5%), in which case Landlord shall pay all costs and expenses b) is deemed acceptance of the Additional Rent charges as submitted to and reviewed by Tenant; and (c) CONSTITUTES FULL RELEASE OF LANDLORD BY TENANT FOR ANY OVERCHARGES of Additional Rent for the applicable Lease year . Such audit (not to exceed $10,000.00). review by Tenant and Tenant’s representatives shall keep any information gained from such audit confidential and shall not disclose it postpone or alter the liability and obligation of Tenant to pay any other partyamounts due under the Terms of the Lease, nor shall Tenant be entitled to conduct such an audit if Tenant is otherwise in Default under this Lease. No subtenant shall have any right to conduct an audit and no assignee shall conduct an audit for any period during which such assignee was not in possession of the Premises. The exercise by Tenant foregoing provisions shall survive termination or expiration of its audit rights hereunder shall not relieve Tenant of its obligation to timely pay all sums due hereunder, including, without limitation, the disputed Operating CostsLease.
Appears in 1 contract
Tenant’s Right to Audit. The annual Statement Tenant shall have the right, at its own cost and expense (unless Tenant’s Share of Building Operating Costs Expenses are overstated by more than five percent (5%) in which case Landlord shall promptly reimburse Tenant for the preceding year shall be provided by Landlord on or before April 30th actual and reasonable cost of each calendar year after the Base Year of the Lease term. Within ninety (90) days after receipt of the Statement, Tenant shall be entitled, upon ten (10) days prior written notice (“Inspection Notice”such audit) and during normal business hours, at Landlord’s office or such other place as Landlord shall reasonably designateno more often than once each Calendar Year, to inspect and examine those books and records of Landlord relating to the determination of Operating Costs for only the immediately preceding calendar year. Any third party engaged by Tenant to inspect or examine the books and records shall be a certified public accountant from a nationally or regionally recognized accounting firm and such accountant shall not be compensated on a contingency fee or similar basis. Should Tenant elect to inspect such records, Tenant’s inspection shall be completed and the results thereof submitted to Landlord no later than two (2) months after Tenant’s notification to Landlord of its intent to inspect audit Landlord’s books and recordsrecords with respect to the Operating Expenses and Tax Expenses incurred by Landlord in the operation and maintenance of the Project for the preceding Calendar Year only, in accordance with the following procedure. Tenant shall notify Landlord in writing of its desire to so perform an audit within one hundred twenty (120) days following Tenant’s receipt of the Statement referenced in Section 4.4.1, above, and if Tenant fails to so notify Landlord in writing it shall be deemed to have waived its right to inspect audit hereunder for that Calendar Year. In the event that Tenant timely and properly notifies Landlord in writing that it desires to so audit Landlord’s books and records, Tenant shall provide Landlord with not less than ten (10) business days prior written notice of its intent to begin its audit of Landlord’s books and records. Any such audit shall be performed at Landlord’s principal place of business (or such other place as Landlord’s books and records if Tenant fails to timely deliver the Inspection Noticeare kept), or fails to timely complete the inspection (unless Landlord was the cause of the delay). If, after inspection and examination of such books and records, Tenant disputes the amounts of Operating Costs charged by Landlord, Tenant may, by written notice to Landlord, request an independent audit of such books and records. The independent audit of the books and records shall be conducted performed by a certified public accountant or other competent professional auditor experienced in auditing real estate properties. In no event shall such audit be performed by an auditor whose payment is conditioned upon the results of the audit, or for whom payment is made on a contingency basis. All such audits shall be conducted during Landlord’s normal business hours, so as not to be disruptive to Landlord’s business operations, under a suitable nondisclosure agreement and under the reasonable supervision of Landlord’s personnel. The results of such audit shall be presented to Landlord, along with the work papers of the certified public accountant or other competent professional auditor performing the audit. Landlord shall have not less than ten (“CPA”10) acceptable business days thereafter to both review the result of the audit and to inform Tenant in writing of whether or not Landlord accepts the result of such audit. In the event that Landlord provides Tenant with written notice that it accepts the results of such audit within such ten business day period, it shall be deemed that Landlord and Tenant agree to the results of such audit, and within ten (10) business days thereafter, Landlord shall pay to Tenant. If, within thirty (30) days after or Tenant shall pay to Landlord’s receipt , as applicable, any overpayment or underpayment of the Tenant’s Share of Building Operating Expenses for the preceding CalendarYear as disclosed by the audit. In the event that Landlord either (i) fails to provide Tenant with such notice requesting an auditwithin such ten (10) business day period, or (ii) provides Tenant with notice that Landlord disputes the results of such audit within such ten (10) business day period, Landlord and Tenant are unable shall meet as soon as practicable thereafter to agree on review Landlord’s objections to the CPA validity of such audit and to conduct such reach agreement with respect to the results of the audit. Following agreement between Landlord and Tenant as to the results of the audit, then within ten (10) business days thereafter, Landlord may designate a nationally recognized accounting firm not then employed by Landlord or Tenant to conduct such audit. The audit shall be limited to the determination of the amount of Operating Costs for the subject calendar year. If the audit discloses that the amount of Operating Costs billed to Tenant was incorrect, the appropriate party shall pay to the other party the deficiency Tenant, or overpaymentTenant shall pay to Landlord, as applicable. All costs and expenses , any overpayment or underpayment of the audit shall be paid by Tenant unless the audit shows that Landlord overstated Tenant’s Share of Building Operating Costs Expenses for the subject calendar year preceding Calendar Year as mutually agreed to by more than five percent (5%), in which case Landlord shall pay all costs and expenses of the audit (not to exceed $10,000.00). Tenant and Tenant’s representatives shall keep any information gained from such audit confidential and shall not disclose it to any other party. The exercise by Tenant of its audit rights hereunder shall not relieve Tenant of its obligation to timely pay all sums due hereunder, including, without limitation, the disputed Operating Costs.
Appears in 1 contract
Samples: Office Lease (COUPONS.com Inc)
Tenant’s Right to Audit. The annual Statement of Operating If Tenant's Common Area Rent in any CAM Year (defined below) increases by more than five percent over the previous CAM Year. Tenant shall have the right, upon not less than ten business days notice, to audit Landlord's books regarding the Yearly Common Area Costs for the preceding year shall be period reflected in the most recent statement (the "CAM Year") provided by Landlord on or before April 30th of each calendar year after (i) the Base Year of the Lease term. Within ninety (90) days after receipt of the Statement, Tenant shall be entitled, upon ten (10) days prior written notice (“Inspection Notice”) and audit is conducted at Landlord's home office during Xxxxxxxx's normal business hours, ; (ii) the audit occurs no more than one time for the CAM Year in question; (iii) the audit is done at Landlord’s office or such other place as Landlord shall reasonably designate, to inspect Tenant's sole cost and examine those books and records of Landlord relating to the determination of Operating Costs for only the immediately preceding calendar year. Any third party engaged by expense; (iv) Tenant to inspect or examine the books and records shall be a certified public accountant from a nationally or regionally recognized accounting firm and such accountant shall is not be compensated on a contingency fee or similar basis. Should Tenant elect to inspect such records, Tenant’s inspection shall be completed and the results thereof submitted to Landlord no later than two (2) months after Tenant’s notification to Landlord of its intent to inspect Landlord’s books and records. Tenant shall be deemed to have waived its right to inspect Landlord’s books and records if Tenant fails to timely deliver the Inspection Notice, or fails to timely complete the inspection (unless Landlord was the cause in default under any provision of the delay). If, after inspection Lease; and examination of such books and records, Tenant disputes (v) the amounts of Operating Costs charged by Landlord, Tenant may, by written notice to Landlord, request an independent audit of such books and records. The independent audit of the books and records shall be is conducted by a certified public accountant (“CPA”) acceptable paid on an hourly rate. Tenant shall deliver to both Landlord and Tenanta copy of the results of the audit within ten days of its receipt by Xxxxxx. If, within thirty (30) days after Landlord’s receipt of Tenant’s notice requesting an audit, Landlord and Tenant are unable to agree on the CPA to conduct No such audit, then Landlord may designate a nationally recognized accounting firm not then employed by Landlord or Tenant to conduct such audit. The audit shall be limited conducted if any other tenant has conducted an audit for the same time period if Landlord agrees to deliver to Tenant a copy of the determination other tenant's audit results. Notwithstanding the foregoing, no subtenant shall have the right to conduct an audit and no assignor-tenant or assignee-tenant shall be entitled to conduct an audit for any period of time that it was not the tenant properly in possession of the Leased Premises. The parties acknowledge that an auditor should seek an accurate review of the appropriate records but, if a fee is based upon the amount of Operating Costs for the subject calendar yearrecovery, the auditor could be motivated to overstate the facts in hopes of getting a higher settlement. If Therefore, Xxxxxx agrees that it will not use an auditor who operates on a contingency basis or on any payment schedule where the audit discloses that compensation may vary based upon the amount of Operating Costs billed recovery. Prior to commencing any audit, Tenant was incorrectshall deliver to Landlord a copy of its retainer agreement with the auditor which contract shows that Xxxxxx has authorized the auditor to examine the books on its behalf and reflects the agreed upon compensation schedule. With respect to any such audit conducted by Tenant, the appropriate party Tenant and its auditor shall pay sign a confidentiality agreement promising to the other party the deficiency or overpayment, keep all information gained as applicable. All costs and expenses a result of the audit strictly confidential and to not disclose the information to anyone or any entity. Neither Tenant nor its auditor shall be paid by Tenant unless entitled to audit or examine any records specifically pertaining to another tenant at the audit shows that Landlord overstated Operating Costs for the subject calendar year by more than five percent (5%), in which case Landlord shall pay all costs and expenses of the audit (not to exceed $10,000.00). Tenant and Tenant’s representatives shall keep any information gained from such audit confidential and shall not disclose it to any other party. The exercise by Tenant of its audit rights hereunder shall not relieve Tenant of its obligation to timely pay all sums due hereunder, including, without limitation, the disputed Operating CostsShopping Center.
Appears in 1 contract
Samples: BNL Financial Corp
Tenant’s Right to Audit. The annual Statement of Tenant shall have the right to examine, copy and audit Landlord's books and records establishing Operating Costs for the preceding year shall be provided by Landlord on or before April 30th any Operating Year for a period of each calendar year after the Base Year of the Lease term. Within ninety (90) days after receipt of following the Statement, date that Tenant shall be entitled, upon ten (10) days prior written notice (“Inspection Notice”) and during normal business hours, at Landlord’s office or such other place as Landlord shall reasonably designate, to inspect and examine those books and records of Landlord relating to receives the determination statement of Operating Costs for only the immediately preceding calendar year. Any third party engaged by Tenant to inspect or examine the books and records shall be a certified public accountant such Operating Year from a nationally or regionally recognized accounting firm and such accountant shall not be compensated on a contingency fee or similar basis. Should Tenant elect to inspect such records, Tenant’s inspection shall be completed and the results thereof submitted to Landlord no later than two (2) months after Tenant’s notification to Landlord of its intent to inspect Landlord’s books and records. Tenant shall be deemed give Landlord not less than thirty (30) days' prior notice of its intention to have waived its right to inspect Landlord’s books examine and records if Tenant fails to timely deliver the Inspection Notice, or fails to timely complete the inspection (unless Landlord was the cause of the delay). If, after inspection and examination of audit such books and records, Tenant disputes the amounts of Operating Costs charged by Landlord, Tenant may, by written notice to Landlord, request an independent and such examination and audit of shall take place at such place as Landlord routinely maintains such books and records, unless Landlord elects to have such examination and audit take place in another location designated by Landlord in the city and state in which the Property is located. The independent audit of the books and records Tenant's review shall be conducted solely by an auditor or accountant of a certified public accountant nationally recognized auditing or accounting firm and not by any party compensated by Tenant on a contingency fee arrangement. All costs of the examination and audit shall be borne by Tenant; provided, however, that if such examination and audit establishes that the actual Operating Costs for the Operating Year in question are less than the amount set forth as the annual Operating Costs on the annual statement delivered to Tenant by at least ten percent (“CPA”) acceptable to both 10%), then Landlord shall pay the reasonable costs of such examination and Tenantaudit. If, pursuant to the audit, the payments made for such Operating Year by Tenant exceed Tenant's required payment on account thereof for such Operating Year, Landlord shall credit the amount of overpayment against subsequent obligations of Tenant with respect to Operating Costs (or promptly refund such overpayment if the Term of this Lease has ended and Tenant has no further obligation to Landlord); but, if the payments made by Tenant for such Operating Year are less than Tenant's required payment as established by the examination and audit, Tenant shall pay the deficiency to Landlord within thirty (30) days after Landlord’s receipt conclusion of Tenant’s notice requesting an the examination and audit, Landlord and Tenant are unable the obligation to agree on make such payment for any period within the CPA to conduct such audit, then Landlord may designate a nationally recognized accounting firm not then employed by Landlord or Tenant to conduct such audit. The audit Term shall be limited to the determination survive expiration of the amount of Operating Costs for the subject calendar yearTerm. If Tenant does not elect to exercise its right to examine and audit Landlord's books and records for any Operating Year within the audit discloses that the amount time period provided for by this paragraph, Tenant shall have no further right to challenge Landlord's statement of Operating Costs billed to Tenant was incorrect, the appropriate party shall pay to the other party the deficiency or overpayment, as applicable. All costs and expenses of the audit shall be paid by Tenant unless the audit shows that Landlord overstated Operating Costs for the subject calendar year by more than five percent (5%), in which case Landlord shall pay all costs and expenses of the audit (not to exceed $10,000.00). Tenant and Tenant’s representatives shall keep any information gained from such audit confidential and shall not disclose it to any other party. The exercise by Tenant of its audit rights hereunder shall not relieve Tenant of its obligation to timely pay all sums due hereunder, including, without limitation, the disputed Operating Costs.
Appears in 1 contract
Samples: Brooks Automation Inc
Tenant’s Right to Audit. The annual Statement If Tenant disputes any amounts set forth in either of Operating Costs the Annual Statements, Tenant shall have the right, at Tenant’s sole expense, to notify Landlord in writing, not later than one hundred twenty (120) days following receipt of the Annual Statements, that it disputes such Annual Statement(s) and that it intends to audit Landlord’s books and records in respect to the calendar year which is the subject of the Annual Statements (the “Audit Notice”). If Tenant fails to give Landlord the Audit Notice on or before such one hundred twenty (120) day period, the Annual Statements for the preceding applicable calendar year shall be provided by final and binding upon Tenant and shall, as between the parties, be conclusively deemed correct. If Tenant gives Landlord on or before April 30th of each calendar year after the Base Year of the Lease term. Within ninety Audit Notice in a timely manner, Tenant must commence such audit within one hundred twenty (90120) days after receipt of the StatementAudit Notice is delivered to Landlord, and the audit must be completed within one hundred twenty (120) days after the Audit Notice is delivered to Landlord. If Tenant does not commence and complete the audit within such periods, the Annual Statements that Tenant elected to audit shall be entitleddeemed final and binding upon Tenant and shall, upon ten (10) days prior written notice (“Inspection Notice”) and during normal business hoursas between the parties, at Landlord’s office or such other place as Landlord shall reasonably designate, to inspect and examine those books and records of Landlord relating to the determination of Operating Costs for only the immediately preceding calendar yearbe conclusively deemed correct. Any third party engaged by Tenant to inspect or examine the books and records Such audit shall be a certified public accountant from conducted by a nationally or regionally recognized accounting firm and such accountant shall not be compensated on a contingency fee or similar basis. Should Tenant elect to inspect such records, Tenant’s inspection shall be completed and the results thereof submitted to Landlord no later than two (2) months after Tenant’s notification to Landlord of its intent to inspect Landlord’s books and records. Tenant shall be deemed to have waived its right to inspect Landlord’s books and records if Tenant fails to timely deliver the Inspection Notice, or fails to timely complete the inspection (unless Landlord was the cause of the delay). If, after inspection and examination of such books and records, Tenant disputes the amounts of Operating Costs charged by Landlord, Tenant may, by written notice to Landlord, request an independent audit of such books and records. The independent audit of the books and records shall be conducted by a certified public accountant (“CPA”) or other certified public accountant mutually acceptable to both Landlord and Tenant. If, within thirty (30) days after Landlord’s receipt of Tenant’s notice requesting an audit, Landlord and Tenant are unable to agree on the CPA to conduct such audit, then Landlord may designate a nationally recognized accounting firm not then employed by Landlord or Tenant to conduct such audit. The audit shall be limited to take place at the determination offices of the amount of Operating Costs for the subject calendar yearLandlord where its books and records are located at a mutually convenient time during Landlord’s regular business hours. If the audit discloses that the amount of Operating Costs billed to Tenant was incorrect, the appropriate party shall pay to the other party the deficiency or overpayment, as applicable. All costs and expenses of The accountant conducting the audit shall be paid compensated by Tenant unless on an hourly or flat fee basis and shall not in any manner be compensated based upon a percentage of overcharges it discovers or on any other contingency fee basis. No subtenant shall have any right to conduct an audit, and no assignee shall conduct an audit for any period during which such assignee was not the tenant under the Lease. Tenant agrees that the results of any audit under this Section 6.5 shall be kept strictly confidential by Tenant and shall not be disclosed to any other person or entity (other than Tenant’s accountants, attorneys and advisors) except as required by law. The time frames hereunder shall be extended for Landlord delays and force majeure delays. Any overpayments by Tenant shall be credited or refunded as provided herein, and any underpayments shall be paid to Landlord. Notwithstanding anything herein to the contrary, Tenant shall have no right to conduct an audit or to give Landlord notice that it desires to conduct an audit at any time that there is an uncured Event of Default under the Lease. If Tenant's audit shows that the amounts reviewed were overstated by Landlord overstated Operating Costs for the subject calendar year by more than five percent (5%), in which case then Landlord shall pay all costs reimburse Tenant for the reasonable and expenses actual cost of the audit (not to exceed $10,000.00)such audit. Tenant and Tenant’s representatives shall keep This provision will survive any information gained from such audit confidential and shall not disclose it to any other party. The exercise by Tenant termination or expiration of its audit rights hereunder shall not relieve Tenant of its obligation to timely pay all sums due hereunder, including, without limitation, the disputed Operating Coststhis Lease.
Appears in 1 contract
Tenant’s Right to Audit. The annual If Tenant wishes to audit Landlord’s Statement, Tenant shall give Landlord written notice of such dispute within three hundred sixty-five (365) days after Tenant’s receipt of Landlord’s Statement. If Tenant does not give Landlord such notice within such time, Tenant shall have waived its right to audit or otherwise dispute Landlord’s Statement. If Tenant has provided such audit notice within such three hundred sixty-five (365) 1005628.07/SF 375170-00002/11-24-16/mrm/mrm -19- day period after Tenant’s receipt of Landlord’s Statement of Operating Costs for a particular year, Tenant shall have the preceding year right to cause an independent certified public accountant or reputable lease audit specialist designated by Tenant, to be paid on an hourly and not a contingent fee basis, to audit such Landlord’s Statement subject to the following: (i) Tenant must actually begin such audit within sixty (60) days after the notice from Tenant to Landlord advising Landlord that Tenant will require an audit (provided that such 30-day period within which the audit must be commenced shall be provided extended by Landlord on or before April 30th the length of each calendar year after any delay in the Base Year commencement of the Lease term. Within audit that is caused by Landlord) and (ii) Tenant shall diligently pursue such audit to completion as quickly as reasonably possible (and shall in any event complete such audit within ninety (90) days after receipt the date such audit was commenced (provided that such 90-day period within which the audit must be completed shall be extended by the length of any delay in the completion of the Statement, Tenant shall be entitled, upon ten (10) days prior written notice (“Inspection Notice”) and during normal business hoursaudit that is caused by Landlord)). Landlord agrees to make available to Tenant’s auditors, at Landlord’s office (or Landlord’s property manager’s office) where such other place as Landlord shall reasonably designaterecords are kept, to inspect at reasonable times and examine those books and records for a reasonable period of Landlord relating to the determination of Operating Costs for only the immediately preceding calendar year. Any third party engaged by Tenant to inspect or examine time, the books and records shall be a certified public accountant from a nationally or regionally recognized accounting firm relevant to the audit for review and copying, but such accountant shall books and records may not be compensated on a contingency fee or similar basis. Should Tenant elect to inspect such records, Tenant’s inspection shall be completed and the results thereof submitted to Landlord no later than two (2) months after Tenant’s notification to Landlord of its intent to inspect removed from Landlord’s books and recordsoffices. Tenant shall be deemed to have waived its right to inspect bear all costs of such audit, including Landlord’s books actual copying costs and records personnel costs, if any incurred in connection with such audit (provided that, prior to incurring any personnel costs in connection with any such audit, Landlord shall advise Tenant fails of Landlord’s anticipated personnel costs so that Tenant may, at Tenant’s option, modify Tenant’s activities with regard to timely deliver such audit in order to preclude the Inspection Notice, or fails need for Landlord to timely complete the inspection (unless Landlord was the cause of the delayincur such personnel costs). If, after inspection and examination If following Tenant’s review of such books and recordsaudit, Tenant disputes any amounts set forth in Landlord’s Statement, Landlord and Tenant shall endeavor in good faith to resolve such dispute. If Landlord and Tenant do not reach agreement within thirty (30) days after the completion of Tenant’s review of such audit, and if the amount in dispute exceeds $25,000, then either Landlord or Tenant may submit the matter to an independent, third party accountant, with experience in reviewing expenses for commercial office projects, mutually and reasonably agreed upon by Landlord and Tenant (the “Neutral Accountant”), to make a final binding determination of the amounts of Operating Costs charged owed by Tenant under the applicable Landlord’s Statement, Tenant may, by written notice to Landlord, request an independent audit and the decisions of such books and records. The independent audit of the books and records Neutral Accountant shall be conducted by a certified public accountant (“CPA”) acceptable to both binding on Landlord and Tenant. IfIf Landlord and Tenant agree, or the Neutral Accountant determines, that there was an aggregate overstatement of Operating Expenses of four (4%) or more (or, in the absence of such agreement, such overstatement is confirmed by a court of competent jurisdiction or such other dispute resolution mechanism as to which the parties mutually agree in writing), then Landlord shall bear all costs of the audit. If the agreed or confirmed audit shows an underpayment of Operating Expenses by Tenant, Tenant shall pay to Landlord, within thirty (30) days after the audit is agreed to or confirmed, the amount owed to Landlord’s receipt , and, if the agreed or confirmed audit shows an overpayment of Operating Expenses by Tenant, Landlord shall reimburse Tenant for such overpayment within thirty (30) days after the audit is agreed to or confirmed. Notwithstanding anything to the contrary set forth above, Tenant’s notice requesting audit rights under this Paragraph 7.g. shall be conditioned upon (i) there not being an Event of Default in effect, and (ii) Tenant executing, prior to the commencement of the audit, Landlord and Tenant are unable to agree on the CPA to conduct such audit, then Landlord may designate a nationally recognized accounting firm not then employed by Landlord or Tenant to conduct such audit. The audit shall be limited to the determination of the amount of Operating Costs for the subject calendar year. If the audit discloses that the amount of Operating Costs billed to Tenant was incorrect, the appropriate party shall pay to the other party the deficiency or overpayment, as applicable. All costs and expenses of the audit shall be paid by Tenant unless the audit shows that Landlord overstated Operating Costs for the subject calendar year by more than five percent (5%), commercially reasonable confidentiality agreement in which case Landlord Tenant shall pay all costs agree to keep confidential, and expenses of the audit (not to exceed $10,000.00). Tenant and Tenant’s representatives shall keep any information gained from such audit confidential and shall not disclose it to any other party. The exercise by Tenant of party (other than Tenant’s affiliates and its audit rights hereunder shall not relieve Tenant of its obligation and their officers, directors, employees and representatives who have a reasonable need to timely pay all sums due hereunder, including, without limitationknow such results), the disputed Operating Costs.results of any such audit or any action taken by Landlord in response thereto. 1005628.07/SF 375170-00002/11-24-16/mrm/mrm -20-
Appears in 1 contract
Tenant’s Right to Audit. The annual Statement Tenant shall have a right, at Tenant’s sole cost and expense, to audit Landlord’s Operating Expense Rental reconciliation statement upon the following terms and conditions. Tenant shall notify Landlord in writing that it is exercising its right to audit within 120 days following delivery of the Operating Expense Rental reconciliation statement, indicating in such notice with reasonable specificity those cost components of Operating Costs for Expense Rental to be subject to audit. The audit shall take place at the preceding year shall be provided by Building at a time mutually convenient to Landlord on or before April 30th of each calendar year after the Base Year of the Lease term. Within ninety and Tenant (90) but not later than 60 days after receipt of Tenant’s notice to audit). Except as Landlord may consent in writing, the Statement, Tenant audit shall be entitled, upon ten (10) completed within 10 days prior written notice (“Inspection Notice”) and during normal business hours, at after commencement. No copying of Landlord’s office books or records will be allowed. The audit may be accomplished by either Tenant’s own employees with accounting experience reasonably sufficient to conduct such other place as Landlord shall reasonably designatereview, to inspect and examine those books and records of Landlord relating to the determination of Operating Costs for only the immediately preceding calendar year. Any third party engaged by Tenant to inspect or examine the books and records shall be a certified public accountant from a nationally or regionally recognized public accounting firm mutually acceptable to Landlord and such accountant shall Tenant that is engaged on either a fixed price or hourly basis, and is not be compensated on a contingency fee or similar bonus basis. Should Under no circumstances shall Landlord be required to consent to an accounting firm that is also a tenant of Landlord (or any Landlord affiliate) in the Building or any building in the city or metropolitan area in which the Building is located. The records reviewed by Tenant elect shall be treated as confidential and prior to inspect commencing the audit, Tenant and any other person which may perform such recordsaudit for Tenant, shall execute a Confidentiality Agreement in a form reasonably acceptable to Landlord. A copy of the results of the audit shall be delivered to Landlord within 30 days after the completion of the audit. If Landlord and Tenant determine that Operating Expense Rental for the Calendar Year is less than reported, Landlord shall give Tenant a credit in the amount of the overpayment toward Tenant’s inspection next monthly payment of estimated Operating Expense Rental, or, in the event this Lease has expired or terminated and no Event of Default exists, Landlord shall be completed pay Tenant the total amount of such overpayment within 30 days. If Landlord and Tenant determine that Operating Expense Rental for the Calendar Year is more than reported, Tenant shall pay Landlord the amount of any underpayment within 30 days. Failure by Tenant to timely request an audit, or to timely deliver to Landlord the results thereof submitted of the audit, or to Landlord no later than two (2) months after Tenant’s notification follow any of the procedures set forth in this Section 6.3 is deemed a waiver of the applicable audit right and any right to Landlord contest Operating Expense Rental for the applicable Calendar Year and is deemed acceptance of its intent the Operating Expense Rental contained in the Operating Expense Rental reconciliation statement for the applicable Calendar Year. Any audit review by Tenant shall not postpone or alter the liability and obligation of Tenant to inspect Landlord’s books and recordspay any Operating Expense Rental due under the terms of this Lease. Tenant shall not be deemed entitled to conduct such an audit if any Event of Default exists under this Lease. No subtenant shall have waived its any right to inspect Landlord’s books conduct an audit except for a permitted assignee or sublessee under Article X of this Lease occupying the entire Premises and records if Tenant fails to timely deliver the Inspection Notice, no assignee or fails to timely complete the inspection (unless Landlord sublessee shall conduct an audit for any period during which such assignee or sublessee was the cause not in possession of the delay)Premises or for any period in which Tenant has conducted an audit. IfFurthermore, after inspection and examination of such books and recordsif, Tenant disputes following the amounts of Operating Costs charged by Landlord, Tenant may, by written notice to Landlord, request an independent audit of such books and records. The independent audit completion of the books and records shall be conducted by a certified public accountant (“CPA”) acceptable to both Landlord and Tenant. If, within thirty (30) days after Landlord’s receipt of Tenant’s notice requesting an audit, Landlord and Tenant are unable to agree on determine that the CPA to conduct such auditactual Operating Expense Rental for the Calendar Year was overstated by more than 5%, then Landlord may designate a nationally recognized accounting firm not then employed by Landlord or Tenant to conduct such audit. The audit shall be limited to the determination of credit in the amount of Operating Costs for the subject calendar year. If the audit discloses that the all reasonable out of pocket third party expenses incurred by Tenant in conducting such review, which amount of Operating Costs billed to Tenant was incorrectshall not exceed $10,000.00, the appropriate party shall pay to the other party the deficiency or overpayment, as applicable. All costs and expenses of the audit shall be paid by Tenant unless the audit shows that Landlord overstated applied towards Tenant’s next monthly payments of estimated Operating Costs for the subject calendar year by more than five percent (5%)Expense Rental or, in which case if this Lease has expired or terminated and no Event of Default exists, Landlord shall pay all costs and Tenant such expenses to Tenant within 30 days after receipt of the audit (not to exceed $10,000.00). Tenant and Tenant’s representatives shall keep any information gained from such audit confidential and shall not disclose it to any other partyinvoice. The exercise by Tenant OFFICE LEASE PAGE 10 Park Ten Plaza – RigNet, Inc. Table of its audit rights hereunder shall not relieve Tenant of its obligation to timely pay all sums due hereunder, including, without limitation, the disputed Operating Costs.Contents
Appears in 1 contract
Samples: Office Lease (RigNet, Inc.)
Tenant’s Right to Audit. The annual Statement of Operating Costs for the preceding year shall be provided by Landlord on or before April 30th of each calendar (a) Tenant, within one (1) year after the Base Year receipt of any accounting with respect to Excess Operating Expenses, by giving written notice to Landlord, shall have the Lease termright to review Landlord’s books and records relating to such accounting. Within ninety Except as expressly set forth below, if and to the extent that Tenant, within one hundred twenty (90120) days after receipt Landlord makes such books and records available, fails to dispute in reasonable detail the correctness of any item included in such accounting, such accounting shall constitute a final determination, as between Landlord and Tenant, of Taxes, Operating Expenses and Tenant’s Share of Excess Operating Expenses for the StatementOperating Year to which such accounting relates and shall be conclusive and binding upon Landlord and Tenant. Notwithstanding the foregoing, in the event that an audit for any Operating Year discloses an error in Operating Expenses for that Operating Year, then Tenant shall have the right to review that same line item for the previous two (2) Operating Years to see if the same error was made in those years, and if so an appropriate adjustment shall be made with respect to those prior years. Except as expressly set forth above, Tenant shall be entitled, upon ten (10) days prior written notice (“Inspection Notice”) and during normal business hours, at Landlord’s office or such other place as Landlord shall reasonably designate, not have the right to inspect and examine those books and records of Landlord relating to the determination of Operating Costs for only the immediately preceding calendar year. Any third party engaged by Tenant to inspect or examine the books and records shall be a certified public accountant from a nationally or regionally recognized accounting firm and such accountant shall not be compensated on a contingency fee or similar basisfor any particular Operating Year more than once. Should Landlord agrees cooperate with Tenant elect to inspect such records, so that Tenant’s inspection shall audit may be completed conducted efficiently and the results thereof submitted fairly, and to Landlord no later than two (2) months after grant Tenant’s notification , its accountants and representatives, reasonable access to Landlord so much of its intent to inspect Landlord’s books and records, at the place where they are regularly maintained in Boston, Massachusetts, and during the one-year period provided for above, as may be required for the purposes of verifying the Operating Expenses incurred by Landlord for the Operating Year then just ended and for any previous Operating Year, if applicable. Tenant shall be deemed to have waived its right to inspect In connection with examining Landlord’s books and records if Tenant fails to timely deliver the Inspection Notice, or fails to timely complete the inspection (unless Landlord was the cause of the delay). If, after inspection and examination of such books and recordshereunder, Tenant disputes covenants and agrees that Tenant will (a) not employ any person or firm who is to be compensated, in whole or in part, on a contingency fee basis and (b) maintain the amounts of Operating Costs charged by Landlordinformation obtained from such examination in strict confidence; provided, however, that notwithstanding such confidentiality requirement, Tenant maymay disclose so much of Landlord’s confidential information as is reasonably required to Tenant’s attorneys and accountants, who shall be subject to the same confidentiality requirement as Tenant, and, if required pursuant to an order of a court or other governmental regulatory body, Tenant may also disclose so much of Landlord’s confidential information as may be required by written notice such order, and to Landlord, request an independent audit of the parties specified in such books and recordsorder. The independent audit of the Landlord shall retain its books and records shall be conducted by a certified public accountant relating to Operating Expense for at least three (“CPA”3) acceptable to both Landlord and Tenant. If, within thirty (30) days years after Landlord’s receipt the expiration of Tenant’s notice requesting an audit, Landlord and Tenant are unable to agree on the CPA to conduct such audit, then Landlord may designate a nationally recognized accounting firm not then employed by Landlord or Tenant to conduct such audit. The audit shall be limited to the determination of the amount of each Operating Costs for the subject calendar year. If the audit discloses that the amount of Operating Costs billed to Tenant was incorrect, the appropriate party shall pay to the other party the deficiency or overpayment, as applicable. All costs and expenses of the audit shall be paid by Tenant unless the audit shows that Landlord overstated Operating Costs for the subject calendar year by more than five percent (5%), in which case Landlord shall pay all costs and expenses of the audit (not to exceed $10,000.00). Tenant and Tenant’s representatives shall keep any information gained from such audit confidential and shall not disclose it to any other party. The exercise by Tenant of its audit rights hereunder shall not relieve Tenant of its obligation to timely pay all sums due hereunder, including, without limitation, the disputed Operating CostsYear.
Appears in 1 contract
Samples: American Financial Realty Trust
Tenant’s Right to Audit. The Tenant shall have the one time annual Statement of right to review and/or audit Landlord's books and records regarding CAM/Operating Costs for the preceding year shall be provided by Landlord at Landlord's offices during normal business hours on or before April 30th of each calendar year after the Base Year of the Lease term. Within ninety thirty (9030) days' prior notice given within two hundred forty (240) days after Tenant's receipt of the Statement, Tenant shall be entitled, upon ten Annual Statement (10) days prior written notice (the “Inspection NoticeReview Period”) and during normal business hours, at Landlord’s office or such other place as Landlord shall reasonably designate, to inspect and examine those books and records of Landlord relating to the determination of Operating Costs for only the immediately preceding calendar year). Any third party engaged by Tenant to inspect or examine the books and records shall be a certified public accountant from a nationally or regionally recognized accounting firm and such accountant shall not be compensated on a contingency fee or similar basis. Should Tenant elect to inspect such records, Tenant’s inspection shall be completed and the results thereof submitted to Landlord no later than two (2) months after Tenant’s notification to Landlord of its intent to inspect Landlord’s books and records. Tenant shall be deemed to have waived its right to inspect Landlord’s books and records if Tenant fails to timely deliver the Inspection Notice, or fails to timely complete the inspection (unless Landlord was the cause of the delay). If, after inspection and examination of such books and records, Tenant disputes the amounts of Operating Costs charged by Landlord, Tenant may, by written notice to Landlord, request an independent audit of such books and records. The independent audit of the books and records shall be conducted by a certified public accountant reasonably approved by Landlord (“CPATenant’s Auditor”) acceptable which, along with Tenant, agrees to both be bound by a commercially reasonable confidentiality agreement in form proposed by Landlord, on a non-contingent fee basis, and must be completed and submitted to Landlord and Tenant. If, within thirty sixty (3060) days after Landlord’s receipt Tenant begins the audit. Tenant shall have no right to contest, review or audit such statement if it fails to give such written notice during the Review Period. Landlord may elect to contest the conclusion of Tenant’s Auditor by giving a written contest notice requesting an (the “Contest Notice”) to Tenant within sixty (60) days after receipt of the audit, such Contest Notice containing the name of a firm of certified public accountants appointed by Landlord (“Landlord’s CPA”). Landlord’s CPA and Tenant Tenant’s Auditor shall meet and confer within 30 days after the Contest Notice is given in an attempt to agree on any disputed items. If Landlord’s CPA and Tenant’s Auditor are unable to agree on all disputed items within 45 days after the CPA to conduct such auditContest Notice, then Landlord may designate a nationally recognized accounting firm not then employed by Landlord or Tenant each of Landlord’s CPA and Tenant’s Auditor shall propose and deliver to conduct such audit. The audit shall be limited each other in writing an amount to the determination of the amount of Operating Costs for the subject calendar year. If the audit discloses that the amount of Operating Costs billed to Tenant was incorrect, the appropriate party shall pay to the other party the deficiency or overpayment, as applicable. All costs and expenses of the audit shall be paid by Tenant unless to Landlord or Landlord to Tenant relating to the audit shows that Landlord overstated Operating Costs being audited. Tenant’s Auditor and Landlord’s CPA shall agree on a third CPA experienced in real estate accounting unaffiliated with Landlord, Tenant and their respective CPA’s and/or auditors and who has not worked for Landlord, Tenant or their respective CPA’s in the subject calendar year last ten (10) years. Such third CPA (the “Deciding CPA”) shall meet for one day or less with Landlord’s CPA and Tenant’s Auditor within 15 days after the appointment of such Deciding CPA, and at the end of such meeting the Deciding CPA shall choose in writing either Tenant’s Auditor’s proposal or Landlord’s CPA’s proposal, and such decision shall be final, binding and nonappealable. Landlord shall pay for Landlord’s CPA, Tenant shall pay for Tenant’s Auditor and the cost of the Deciding CPA shall be divided equally among the parties. No books and records may be removed from Landlord’s office, although Tenant may extract copies of such books and records. Notwithstanding the foregoing, if it is determined that Operating Costs reflected in Landlord’s Statement have been overstated by more than five percent (5%)) or more, in which case than Landlord shall pay all costs and expenses for the reasonable cost of the audit (not to exceed $10,000.00). Tenant and Tenant’s representatives shall keep any information gained from such audit confidential Auditor and shall not disclose it to any other party. The exercise by Tenant of its audit rights hereunder shall not relieve Tenant of its obligation to timely pay all sums due hereunder, including, without limitation, the disputed Operating CostsDeciding CPA.
Appears in 1 contract
Samples: Recognition and Nondisturbance Agreement (Athenahealth Inc)
Tenant’s Right to Audit. The annual Statement of Operating Costs for the preceding year shall be provided by By notice to Landlord on or before April 30th of each calendar year after the Base Year of the Lease term. Within within ninety (90) days after receipt of Tenant shall have received the StatementStatement with respect to a particular calendar year, Tenant shall have the right, at its sole cost and expense, through its agent and representative (which must be entitledan independent certified public account), upon ten (10) days prior written notice (“Inspection Notice”) and during normal business hours, at to Landlord’s office or such other place as Landlord shall reasonably designate, to audit and inspect and examine those the books and records of Landlord relating with respect to Pass Through Expenses for such year (“Tenant’s Audit”). Tenant shall reimburse Landlord for any photocopying done at Landlord’s or Landlord’s agent’s office in connection therewith. Tenant’s Audit shall take place at such time and location as may be reasonably determined by Landlord, and Tenant shall have such audit right only once with respect to each Statement. Unless Landlord agrees to a longer period of time, Tenant’s Audit shall be performed within sixty (60) days after Tenant’s notice to Landlord. Nothing herein shall relieve Tenant of the determination of Operating Costs for only the immediately preceding calendar year. Any third party engaged obligation to pay Pass Through Expenses pending Tenant’s Audit, nor shall payment by Tenant of the Statement be deemed a waiver of Tenant’s right to inspect or examine dispute the books and records Statement. If an error in the amount of such Pass Through Expenses billed to Tenant for such calendar year has been made, there shall be a recalculation of Tenant’s Pass Through Expenses for such calendar year and an appropriate readjustment between Landlord and Tenant to reflect any underpayment or overpayment by Tenant, provided Tenant notifies Landlord within ninety (90) days after the audit of any error Tenant believes exists in the Statement. Notwithstanding the foregoing, Landlord shall have the right to challenge Tenant’s Audit, in which event the matter shall be submitted to an independent certified public accountant from a nationally or regionally recognized accounting firm and such accountant shall not be compensated on a contingency fee or similar basis. Should Tenant elect to inspect such records, Tenant’s inspection shall be completed and the results thereof submitted to Landlord no later than two (2) months after Tenant’s notification to Landlord of its intent to inspect Landlord’s books and records. Tenant shall be deemed to have waived its right to inspect Landlord’s books and records if Tenant fails to timely deliver the Inspection Notice, or fails to timely complete the inspection (unless Landlord was the cause of the delay). If, after inspection and examination of such books and records, Tenant disputes the amounts of Operating Costs charged by Landlord, Tenant may, by written notice to Landlord, request an independent audit of such books and records. The independent audit of the books and records shall be conducted by a certified public accountant (“CPA”) mutually acceptable to both parties, whose certification as to the proper amount shall be final and binding as between Landlord and Tenant. If, within thirty (30) days after Landlord’s receipt Tenant shall pay the cost of Tenant’s notice requesting an audit, Landlord and Tenant are unable to agree on the CPA to conduct such audit, then Landlord may designate a nationally recognized accounting firm not then employed by Landlord or Tenant to conduct certification unless such audit. The audit shall be limited to the determination of the amount of Operating Costs for the subject calendar year. If the audit discloses certification determines that the amount of Operating Costs billed to Tenant was incorrect, the appropriate party shall pay to the other party the deficiency or overpayment, as applicable. All costs and expenses of the audit shall be paid overbilled by Tenant unless the audit shows that Landlord overstated Operating Costs for the subject calendar year by more than five percent (5%), at least 2% in which case event Landlord shall pay all costs and expenses the cost of such certification. Pending resolution of the audit (not matter, Tenant shall pay the amounts as determined by Landlord, subject to exceed $10,000.00)retroactive adjustment after the matter is resolved. Tenant and Tenant’s representatives shall keep any information gained from such audit confidential and shall not disclose it to any other party. The exercise by the results of all Tenant of its audit rights hereunder shall not relieve Tenant of its obligation to timely pay all sums due hereunder, including, without limitation, the disputed Operating Costsaudits confidential.
Appears in 1 contract
Samples: Sublease (Marchex Inc)
Tenant’s Right to Audit. The annual Statement Tenant shall have a right, at Tenant’s sole cost and expense, to audit Landlord’s Operating Expense Rental reconciliation statement upon the following terms and conditions. Tenant shall notify Landlord in writing that it is exercising its right to audit within 90 days following delivery of the Operating Expense Rental reconciliation statement, indicating in such notice with reasonable specificity those cost components of Operating Costs for Expense Rental to be subject to audit. The audit shall take place at Landlord’s regional offices or, at Landlord’s option, the preceding year shall be provided by Building, at a time mutually convenient to Landlord on or before April 30th of each calendar year after the Base Year of the Lease term. Within ninety and Tenant (90) but not later than 60 days after receipt of Tenant’s notice to audit). Except as Landlord may consent in writing, the Statement, Tenant audit shall be entitled, upon ten (10) completed within 10 days prior written notice (“Inspection Notice”) and during normal business hours, at after commencement. No copying of Landlord’s office books or records will be allowed. The audit may be accomplished by either Tenant’s own employees with accounting experience reasonably sufficient to conduct such other place as Landlord shall reasonably designatereview, to inspect and examine those books and records of Landlord relating to the determination of Operating Costs for only the immediately preceding calendar year. Any third party engaged by Tenant to inspect or examine the books and records shall be a certified public accountant from a nationally or regionally recognized public accounting firm mutually acceptable to Landlord and such accountant shall Tenant that is engaged on either a fixed price or hourly basis, and is not be compensated on a contingency fee or similar bonus basis. Should Tenant elect Under no circumstances shall Landlord be required to inspect such records, Tenant’s inspection shall be completed and consent to an accounting firm that is also a tenant of Landlord (or any Landlord affiliate) in the results thereof submitted to Landlord no later than two (2) months after Tenant’s notification to Landlord of its intent to inspect Landlord’s books and recordsBuilding or the Project. The records reviewed by Tenant shall be deemed treated as confidential and prior to have waived its right commencing the audit, Tenant and any other person which may perform such audit for Tenant, shall execute a Confidentiality Agreement in a form reasonably acceptable to inspect Landlord’s books and records if Tenant fails to timely deliver the Inspection Notice, or fails to timely complete the inspection (unless Landlord was the cause . A copy of the delay). If, after inspection and examination of such books and records, Tenant disputes the amounts of Operating Costs charged by Landlord, Tenant may, by written notice to Landlord, request an independent audit of such books and records. The independent audit of the books and records shall be conducted by a certified public accountant (“CPA”) acceptable to both Landlord and Tenant. If, within thirty (30) days after Landlord’s receipt of Tenant’s notice requesting an audit, Landlord and Tenant are unable to agree on the CPA to conduct such audit, then Landlord may designate a nationally recognized accounting firm not then employed by Landlord or Tenant to conduct such audit. The audit shall be limited to the determination of the amount of Operating Costs for the subject calendar year. If the audit discloses that the amount of Operating Costs billed to Tenant was incorrect, the appropriate party shall pay to the other party the deficiency or overpayment, as applicable. All costs and expenses results of the audit shall be paid by delivered to Landlord within 30 days after the completion of the audit. If Landlord and Tenant unless determine that Operating Expense Rental for the audit shows Calendar Year is less than reported, Landlord shall give Tenant a credit in the amount of the overpayment toward Tenant’s next monthly payment of estimated Operating Expense Rental, or, in the event this Lease has expired or terminated and no Event of Default exists, Landlord shall pay Tenant the total amount of such overpayment within 30 days. If Landlord and Tenant determine that Operating Expense Rental for the Calendar Year is more than reported, Tenant shall pay Landlord the amount of any underpayment within 30 days. Furthermore, in the event that Landlord overstated and Tenant determine that the actual Operating Costs Expenses for the subject calendar year Calendar Year are less than the Operating Expenses reported by more than five percent (5%), as substantiated, at Landlord’s option and expense, by a certified public accountant, then a credit in the amount of all reasonable out of pocket third party expenses incurred by Tenant in conducting such review, which case amount shall not exceed $1,500.00, shall be applied towards Tenant’s next monthly payments of estimated Operating Expenses Rental or, in the event the Lease has expired or terminated and no Event of Default exists, Landlord shall pay all costs and such expenses to Tenant within 30 days after receipt of Tenant’s invoice. Failure by Tenant to timely request an audit, or to timely deliver to Landlord the results of the audit, or to follow any of the procedures set forth in this Section 6.3 is deemed a waiver of the applicable audit (right and any right to contest Operating Expense Rental for the applicable Calendar Year and is deemed acceptance of the Operating Expense Rental contained in the Operating Expense Rental reconciliation statement for the applicable Calendar Year. Any audit review by Tenant shall not postpone or alter the liability and obligation of Tenant to exceed $10,000.00)pay any Operating Expense Rental due under the terms of this Lease. Tenant and Tenant’s representatives shall keep any information gained from such audit confidential and shall not disclose it be entitled to conduct such an audit if any other partyEvent of Default exists under this Lease. The exercise by No subtenant shall have any right to conduct an audit except for a permitted assignee or sublessee under Article X of this Lease occupying the entire Premises and no assignee or sublessee shall conduct an audit for any period during which such assignee or sublessee was not in possession of the Premises or for any period in which Tenant of its audit rights hereunder shall not relieve Tenant of its obligation to timely pay all sums due hereunder, including, without limitation, the disputed Operating Costshas conducted an audit.
Appears in 1 contract
Samples: Office Lease (Zscaler, Inc.)
Tenant’s Right to Audit. The annual Statement Landlord shall retain and make available for inspection by Tenant all the records reflected in Landlord’s statement of Operating Costs Expenses as to each year for the preceding year shall be provided by Landlord on or before April 30th a period of each calendar year after the Base Year of the Lease term. Within ninety (90) 180 days after receipt of rendering a statement to Tenant (the Statement“Inspection Period”), and Tenant shall be entitled, upon ten (10) days prior written notice (“on reasonable notice, to inspect same at any time during the Inspection Notice”) and during normal business hoursPeriod, at Landlord’s office or any other office where such other place as records my be located or stored, provided that Landlord shall reasonably designatehave the right to change such address on notice to Tenant. In the event Tenant shall dispute Landlord’s Statement, Tenant shall, within the Inspection Period, deliver to inspect and examine those books and records of Landlord relating to the determination of Operating Costs for only the immediately preceding calendar year. Any third party engaged by Tenant to inspect or examine the books and records shall be a certified public accountant from a nationally or regionally recognized accounting firm and such accountant shall not be compensated on a contingency fee or similar basis. Should Tenant elect to inspect such records, statement (“Tenant’s inspection shall be completed and Statement”) specifying the results thereof submitted to Landlord no later than two (2) months after Tenant’s notification to Landlord of its intent to inspect inaccuracies in Landlord’s books and recordsStatement, with reasonable detail. Tenant shall be deemed to have waived its right to inspect Landlord’s books and records if Tenant fails to timely deliver the Inspection Notice, or fails to timely complete the inspection (unless Landlord was the cause of the delay). If, after inspection and examination of such books and records, Tenant disputes the amounts of Operating Costs charged by Landlord, Tenant may, by written notice to Landlord, request an independent audit of such books and records. The independent audit of the books and records shall be conducted by a certified public accountant (“CPA”) acceptable to both If Landlord and Tenant. IfTenant cannot, within thirty (30) days after of Landlord’s receipt of Tenant’s notice requesting an auditStatement, resolve their differences, Landlord and Tenant are unable to shall, within fifteen (15) days thereafter, agree on the CPA to conduct such audit, then Landlord may designate a nationally recognized national certified public accounting firm to undertake a review thereof and to fix, in writing, the Operating Expenses and the Annual Rental Adjustment in accordance with the terms of this Lease (the “Review”) which shall be final and binding on Landlord and Tenant. The certified public accounting firm shall be charged with completion of the Review within a thirty (30) day period. Where Landlord and Tenant cannot then employed timely agree on a national certified public accounting firm for the foregoing, Landlord and Tenant shall each select a member of a national certified public accounting firm who shall be directed to select a national certified public accounting firm to undertake the Review. Where the result of the Review discloses a variation in Operating Expenses from that asserted by Landlord or Tenant to conduct such audit. The audit shall be limited to the determination of the amount of Operating Costs for the subject calendar year. If the audit discloses that the amount of Operating Costs billed to Tenant was incorrect, the appropriate party shall pay to the other party the deficiency or overpayment, as applicable. All costs and expenses of the audit shall be paid by Tenant unless the audit shows that Landlord overstated Operating Costs for the subject calendar year by more than five percent (5%)) or more, the charges of the national certified public accounting firm shall be paid by Landlord and where the result of the Review discloses a variation in which case Operating Expenses from that asserted by Landlord of less than five (5%) percent, such charges shall be paid by Tenant. Tenant shall pay all costs and expenses of to Landlord any amounts in dispute pending resolution in accordance with the audit (not to exceed $10,000.00). Tenant and Tenant’s representatives shall keep any information gained from such audit confidential and shall not disclose it to any other party. The exercise by Tenant of its audit rights hereunder shall not relieve Tenant of its obligation to timely pay all sums due hereunder, including, without limitation, the disputed Operating Costsabove procedure.
Appears in 1 contract
Samples: Lease (Celldex Therapeutics, Inc.)
Tenant’s Right to Audit. The annual If Tenant wishes to audit Landlord's Statement, Tenant shall give Landlord written notice of such dispute within three hundred sixty-five (365) days after Tenant’s receipt of Landlord's Statement. If Tenant does not give Landlord such notice within such time, Tenant shall have waived its right to audit or otherwise dispute Landlord's Statement. If Tenant has provided such audit notice within such three hundred sixty-five (365) 1005628.07/SF 375170-00002/11-24-16/mrm/mrm -19- day period after Tenant’s receipt of Landlord's Statement of Operating Costs for a particular year, Tenant shall have the preceding year right to cause an independent certified public accountant or reputable lease audit specialist designated by Tenant, to be paid on an hourly and not a contingent fee basis, to audit such Landlord's Statement subject to the following: (i) Tenant must actually begin such audit within sixty (60) days after the notice from Tenant to Landlord advising Landlord that Tenant will require an audit (provided that such 30-day period within which the audit must be commenced shall be provided extended by Landlord on or before April 30th the length of each calendar year after any delay in the Base Year commencement of the Lease term. Within audit that is caused by Landlord) and (ii) Tenant shall diligently pursue such audit to completion as quickly as reasonably possible (and shall in any event complete such audit within ninety (90) days after receipt the date such audit was commenced (provided that such 90-day period within which the audit must be completed shall be extended by the length of any delay in the completion of the Statement, Tenant shall be entitled, upon ten (10) days prior written notice (“Inspection Notice”) and during normal business hoursaudit that is caused by Landlord)). Landlord agrees to make available to Tenant’s auditors, at Landlord’s office (or Landlord's property manager's office) where such other place as Landlord shall reasonably designaterecords are kept, to inspect at reasonable times and examine those books and records for a reasonable period of Landlord relating to the determination of Operating Costs for only the immediately preceding calendar year. Any third party engaged by Tenant to inspect or examine time, the books and records shall be a certified public accountant from a nationally or regionally recognized accounting firm relevant to the audit for review and copying, but such accountant shall books and records may not be compensated on a contingency fee or similar basis. Should Tenant elect to inspect such records, Tenant’s inspection shall be completed and the results thereof submitted to Landlord no later than two (2) months after Tenant’s notification to Landlord of its intent to inspect removed from Landlord’s books and recordsoffices. Tenant shall be deemed to have waived its right to inspect bear all costs of such audit, including Landlord’s books actual copying costs and records personnel costs, if any incurred in connection with such audit (provided that, prior to incurring any personnel costs in connection with any such audit, Landlord shall advise Tenant fails of Landlord’s anticipated personnel costs so that Tenant may, at Tenant’s option, modify Tenant’s activities with regard to timely deliver such audit in order to preclude the Inspection Notice, or fails need for Landlord to timely complete the inspection (unless Landlord was the cause of the delayincur such personnel costs). If, after inspection and examination If following Tenant's review of such books and recordsaudit, Tenant disputes any amounts set forth in Landlord's Statement, Landlord and Tenant shall endeavor in good faith to resolve such dispute. If Landlord and Tenant do not reach agreement within thirty (30) days after the completion of Tenant's review of such audit, and if the amount in dispute exceeds $25,000, then either Landlord or Tenant may submit the matter to an independent, third party accountant, with experience in reviewing expenses for commercial office projects, mutually and reasonably agreed upon by Landlord and Tenant (the “Neutral Accountant”), to make a final binding determination of the amounts of Operating Costs charged owed by Tenant under the applicable Landlord's Statement, Tenant may, by written notice to Landlord, request an independent audit and the decisions of such books and records. The independent audit of the books and records Neutral Accountant shall be conducted by a certified public accountant (“CPA”) acceptable to both binding on Landlord and Tenant. IfIf Landlord and Tenant agree, or the Neutral Accountant determines, that there was an aggregate overstatement of Operating Expenses of four (4%) or more (or, in the absence of such agreement, such overstatement is confirmed by a court of competent jurisdiction or such other dispute resolution mechanism as to which the parties mutually agree in writing), then Landlord shall bear all costs of the audit. If the agreed or confirmed audit shows an underpayment of Operating Expenses by Tenant, Tenant shall pay to Landlord, within thirty (30) days after the audit is agreed to or confirmed, the amount owed to Landlord’s receipt , and, if the agreed or confirmed audit shows an overpayment of Operating Expenses by Tenant, Landlord shall reimburse Tenant for such overpayment within thirty (30) days after the audit is agreed to or confirmed. Notwithstanding anything to the contrary set forth above, Tenant’s notice requesting audit rights under this Paragraph 7.g. shall be conditioned upon (i) there not being an Event of Default in effect, and (ii) Tenant executing, prior to the commencement of the audit, Landlord and Tenant are unable to agree on the CPA to conduct such audit, then Landlord may designate a nationally recognized accounting firm not then employed by Landlord or Tenant to conduct such audit. The audit shall be limited to the determination of the amount of Operating Costs for the subject calendar year. If the audit discloses that the amount of Operating Costs billed to Tenant was incorrect, the appropriate party shall pay to the other party the deficiency or overpayment, as applicable. All costs and expenses of the audit shall be paid by Tenant unless the audit shows that Landlord overstated Operating Costs for the subject calendar year by more than five percent (5%), commercially reasonable confidentiality agreement in which case Landlord Tenant shall pay all costs agree to keep confidential, and expenses of the audit (not to exceed $10,000.00). Tenant and Tenant’s representatives shall keep any information gained from such audit confidential and shall not disclose it to any other party. The exercise by Tenant of party (other than Tenant's affiliates and its audit rights hereunder shall not relieve Tenant of its obligation and their officers, directors, employees and representatives who have a reasonable need to timely pay all sums due hereunder, including, without limitationknow such results), the disputed Operating Costs.results of any such audit or any action taken by Landlord in response thereto. 1005628.07/SF 375170-00002/11-24-16/mrm/mrm -20-
Appears in 1 contract
Tenant’s Right to Audit. The annual Statement If (a) no uncured Event of Operating Costs Default exists under this Lease, (b) Tenant disputes Landlord’s determination of the actual amount of Excess Expenses or Tenant’s Share of Excess Expenses for the preceding year shall be provided by Landlord on or before April 30th of each any calendar year after the Base Year and (c) Tenant delivers to Landlord written notice of the Lease term. Within ninety dispute within one (901) days year after receipt Landlord’s delivery of the Statementstatement of such amount under this Article 3, then Tenant shall be entitled(but not any subtenant or assignee, other than an Affiliate), at its sole cost and expense, upon ten (10) days prior written notice (“Inspection Notice”) and during normal regular business hourshours at a time and place reasonably acceptable to Landlord (which may be the location where Landlord or Property Manager maintains the applicable records), at may audit, or cause an auditor to audit, Landlord’s office or such other place as Landlord shall reasonably designate, to inspect and examine those books and records of Landlord relating to the determination disputed amounts and produce a report detailing the results of Operating Costs for only the immediately preceding calendar yearaudit. Any third party engaged No auditor retained by Tenant to inspect or examine the books and records conduct an audit under this Section 3.5 shall be a certified public accountant from a nationally or regionally recognized accounting firm and such accountant shall not be compensated paid on a contingency fee or similar basis. Should Tenant elect to inspect such records, Tenant’s inspection shall be completed objection to Landlord’s determination of Excess Expenses or Tenant’s Share of Excess Expenses is deemed withdrawn unless Tenant completes and delivers a copy of the results thereof submitted audit report to Landlord no later than two (2) months after Tenant’s notification to Landlord of its intent to inspect Landlord’s books and records. Tenant shall be deemed to have waived its right to inspect Landlord’s books and records if Tenant fails to timely deliver the Inspection Notice, or fails to timely complete the inspection (unless Landlord was the cause of the delay). If, after inspection and examination of such books and records, Tenant disputes the amounts of Operating Costs charged by Landlord, Tenant may, by written notice to Landlord, request an independent audit of such books and records. The independent audit of the books and records shall be conducted by a certified public accountant (“CPA”) acceptable to both Landlord and Tenant. If, within thirty (30) 90 days after Landlord’s receipt of the date Landlord makes the records available to Tenant’s notice requesting an audit, Landlord and Tenant are unable to agree on the CPA to conduct such audit, then Landlord may designate a nationally recognized accounting firm not then employed by Landlord or Tenant to conduct such audit. The audit shall be limited to the determination of the amount of Operating Costs for the subject calendar year. If the audit discloses report shows that the amount Landlord charged Tenant for Tenant’s Share of Operating Costs billed Excess Expenses was greater than the amount this Article 3 obligates Tenant to Tenant was incorrectpay, then, unless Landlord contests the appropriate party shall pay to the other party the deficiency or overpayment, as applicable. All costs and expenses results of the audit report, Landlord will refund the excess amount to Tenant within 10 Business Days after Landlord receives a copy of the audit report. If the audit report shows that the amount Landlord charged Tenant for Tenant’s Share of Excess Expenses was less than the amount this Article 3 obligates Tenant to pay, Tenant, within 10 Business Days after receiving the audit report, will pay to Landlord, as Additional Rent, the difference between the amount Tenant paid and the amount stated in the audit report. If Landlord contests the results of Tenant’s audit report, a final determination shall be paid made by an independent certified public accountant, who shall have no material business or financial interest in common with either of the parties, selected by Landlord, but reasonably acceptable to Tenant, and said accountant shall take into consideration (but not be bound by) the findings of Tenant’s audit report. Pending resolution of any audit under this section, Tenant unless will continue to pay to Landlord the estimated amounts of Tenant’s Share of Excess Expenses in accordance with this Article 3. If the final audit shows that Landlord overstated Operating Costs the amount Tenant paid for Tenant’s Share of the subject calendar year Excess Expenses exceeded the amount this Article 3 obligates Tenant to pay by more than five percent (510%), in which case then Landlord shall pay all costs and expenses be responsible for the reasonable cost of the audit, provided the cost of such audit (shall not to exceed $10,000.003,000 (otherwise Tenant shall be responsible for such audit cost). Tenant must keep all information it obtains in any audit strictly confidential and may only use such information for the limited purpose this section describes and for Tenant’s representatives shall keep any information gained from such audit confidential and shall not disclose it to any other party. The exercise by Tenant of its audit rights hereunder shall not relieve Tenant of its obligation to timely pay all sums due hereunder, including, without limitation, the disputed Operating Costsown account.
Appears in 1 contract
Samples: Office Lease Agreement (Premiere Global Services, Inc.)
Tenant’s Right to Audit. The annual Statement of Operating Costs Tenant shall have a right, at Tenant’s sole cost and expense, to audit Landlord's Final Expense Amount upon the following terms and conditions. Tenant’s right to conduct an audit hereunder shall be expressly conditioned on (i) Tenant having paid in full the Final Expense Amount for the preceding year shall be provided by Landlord on or before April 30th of each calendar year after Calendar Year which is the Base Year subject of the Lease term. Within ninety (90) days after receipt audit, as set forth in Landlord’s statement thereof, prior to or simultaneously with Tenant’s delivery of the Statement, Audit Notice (as herein defined) and (ii) there being no Event of Default existing under this Lease beyond the applicable notice and cure period. Tenant shall be entitled, upon ten (10) days prior deliver written notice (“Inspection Notice”) and during normal business hours, at Landlord’s office or such other place as Landlord shall reasonably designate, to inspect and examine those books and records of Landlord relating to the determination of Operating Costs for only the immediately preceding calendar year. Any third party engaged by Tenant to inspect or examine the books and records shall be a certified public accountant from a nationally or regionally recognized accounting firm and such accountant shall not be compensated on a contingency fee or similar basis. Should Tenant elect to inspect such records, Tenant’s inspection shall be completed and the results thereof submitted to Landlord no later than two (2) months after Tenant’s notification to Landlord of its intent to inspect audit (an “Audit Notice”) within ninety (90) days following receipt of Landlord’s books and records. statement of the Final Expense Amount, such Audit Notice identifying the general scope of the intended audit, inclusive of the Tenant determining the accuracy of its share of the Final Expenses Tenant shall be deemed to have waived its no right to inspect Landlord’s books audit prior Calendar Years for which an Audit Notice was not timely given (in accordance with the previous sentence) and records if Tenant fails shall have no right to timely deliver the Inspection Notice, or fails to timely complete the inspection (unless Landlord was the cause of the delay). If, after inspection and examination of such books and records, Tenant disputes the amounts of Operating Costs charged by Landlord, Tenant may, by written notice to Landlord, request an independent audit of such books and recordsa Calendar Year more than once. The independent audit of shall take place at Landlord's regional offices or the books and records shall be conducted by Project or as mutually agreed between the parties, at a certified public accountant (“CPA”) acceptable time mutually convenient to both Landlord and Tenant. If, within thirty but not later than sixty (3060) days after Landlord’s receipt of Tenant’s notice requesting an the Audit Notice. At such audit, Landlord shall make all pertinent books and records available for review that are necessary for Tenant are unable to agree on the CPA (or its agent) to conduct such audit, then Landlord may designate a nationally recognized accounting firm not then employed by Landlord or Tenant to conduct such audit. The audit shall be limited to the determination its review of the amount of Operating Costs for the subject calendar year. If the audit discloses that the amount of Operating Costs billed to Tenant was incorrect, the appropriate party shall pay to the other party the deficiency or overpayment, as applicable. All varying costs and expenses included in or making up a porition of the Final Expenses. Except as Landlord may consent in writing, the audit shall be paid by Tenant unless the audit shows that Landlord overstated Operating Costs for the subject calendar year by more than completed within forty-five percent (5%), in which case Landlord shall pay all costs and expenses of the audit (not to exceed $10,000.00)45) days after commencement. Tenant and Tenant’s representatives shall keep any information gained from such audit confidential and shall not disclose it to any other party. The exercise by Tenant of its audit rights hereunder shall not relieve Tenant of its obligation to timely pay all sums due hereunder, including, without limitation, the disputed Operating Costs.No copying of
Appears in 1 contract
Samples: Pfsweb Inc
Tenant’s Right to Audit. The annual Statement of Operating Costs for the preceding year shall be provided by Landlord on or before April 30th of each calendar year after the Base Year of the Lease term. Within ninety If, within thirty (9030) days after following Tenant’s receipt of the StatementLandlord’s annual statement of actual Operating Expenses and Applicable Taxes pursuant to paragraph 4.4, Tenant notifies Landlord that Tenant desires to audit Landlord’s statement, Landlord shall be entitled, upon ten (10) days prior written notice (“Inspection Notice”) and cooperate with Tenant to permit such audit during normal business hours, at Landlord’s office or such other place as Landlord shall reasonably designate, to inspect and examine those books and where the business records of Landlord relating to the determination of Operating Costs for only the immediately preceding calendar yearare normally kept. Any third party engaged by Tenant to inspect or examine the books and records The audit shall be a performed by an independent certified public accountant; the accountant from must be a member of a nationally or regionally recognized accounting firm and must not charge a fee based on the amount of additional rent that the accountant is able to save Tenant by the audit. The cost of such accountant shall not be compensated on a contingency fee or similar basis. Should Tenant elect to inspect such records, Tenant’s inspection audit shall be completed the sole responsibility and the results thereof submitted to Landlord no later than two (2) months after liability of Tenant’s notification to Landlord of its intent to inspect Landlord’s books and records. Tenant shall be deemed to have waived its right to inspect Landlord’s books and records if Tenant fails to timely deliver the Inspection Notice, or fails to timely complete the inspection (unless Landlord was the cause of the delay). If, after inspection and examination of such books and records, Tenant disputes the amounts of Operating Costs charged by Landlord, Tenant may, by written notice to Landlord, request an independent audit any report, statement or other documents indicating the outcome of such books and recordsan audit within five (5) days of Tenant’s receipt thereof. The independent In the event that such an audit discloses that Tenant has underpaid its proportionate share of such Operating Expenses or Applicable Taxes for the relevant period, Tenant shall pay the deficiency to Landlord within thirty (30) days of Tenant’s receipt of the books audit results. In the event that such an audit discloses that Tenant has overpaid its proportionate share of such Operating Expenses or Applicable Taxes for the relevant period, and records shall be conducted by a certified public accountant (“CPA”) acceptable Landlord fails to both Landlord and Tenant. Ifcontest the same, within thirty (30) days after the date of delivery of the (results of the) audit to Landlord’s receipt of Tenant’s notice requesting an audit, Landlord and Tenant are unable to agree on the CPA to conduct shall credit such audit, then Landlord may designate a nationally recognized accounting firm not then employed by Landlord or Tenant to conduct such audit. The audit shall be limited excess to the determination next succeeding monthly installment of the Base Rent due from Tenant, but in no event shall Tenant be entitled to receive interest on the amount of Operating Costs for the subject calendar yearany such overpayment. If the audit discloses it is determined that the amount of Operating Costs billed to Tenant was incorrect, the appropriate party shall pay to the other party the deficiency Expenses or overpayment, as applicable. All costs and expenses of the audit shall be paid by Tenant unless the audit shows that Landlord Applicable Taxes were overstated Operating Costs for the subject calendar year by more than five percent (5%), in which case Landlord shall pay all costs and expenses the cost of Tenant’s audit. In the event Landlord disputes the results of the audit (not to exceed $10,000.00). Tenant and conducted for Tenant, the Landlord shall, at Tenant’s representatives expense, have its independent certified public accountant provide a certified statement; the certified statement shall keep any information gained from such audit confidential be final and shall not disclose it to any other party. The exercise by Tenant of its audit rights hereunder shall not relieve Tenant of its obligation to timely pay all sums due hereunder, including, without limitation, the disputed Operating Costsconclusive absent manifest error.
Appears in 1 contract
Tenant’s Right to Audit. The annual Statement of If Tenant disputes any Operating Costs for the preceding year shall be provided by Expenses or Taxes statement, Tenant must provide Landlord on or before April 30th of each calendar year after the Base Year of the Lease term. Within ninety with specific written objections within one hundred eighty (90180) days after receipt of receiving the Statementstatement (failing which, Tenant shall the statement will be entitleddeemed conclusive). Within 30 days after receiving these objections, upon ten (10) days prior written notice (“Inspection Notice”Landlord will either adjust the disputed statement in response to Tenant's objection(s) and during normal business hourscredit any overpayment to Tenant as stated above, at Landlord’s office or notify Tenant that it believes Tenant's objection is without merit (it being agreed that, if Landlord fails to respond within such other place as 30-day period, Landlord shall reasonably designate, to inspect and examine those books and records of Landlord relating to the determination of Operating Costs for only the immediately preceding calendar year. Any third party engaged by Tenant to inspect or examine the books and records shall be a certified public accountant from a nationally or regionally recognized accounting firm and such accountant shall not be compensated on a contingency fee or similar basis. Should Tenant elect to inspect such records, Tenant’s inspection shall be completed and the results thereof submitted to Landlord no later than two (2) months after Tenant’s notification to Landlord of its intent to inspect Landlord’s books and records. Tenant shall be deemed to have waived its right agreed to inspect Landlord’s books adjust the disputed statement in response to Tenant's objection(s) and records credit any overpayment to Tenant as stated above). If Tenant timely disputes a statement and Landlord notifies Tenant that Tenant's objection is without merit, Tenant may -- if no Event of Default by Tenant fails to timely deliver the Inspection Noticeis then in existence -- cause (i) qualified accounting employees of Tenant, or fails to timely complete the inspection (unless Landlord was the cause of the delay). Ifii) an independent, after inspection and examination of such books and records, Tenant disputes the amounts of Operating Costs charged by Landlord, Tenant may, by written notice to Landlord, request an independent audit of such books and records. The independent audit of the books and records shall be conducted by a certified public accountant (“"CPA”") acceptable to both Landlord and Tenantaudit the supporting data for the disputed statement (in which event, such supporting data shall be made available to the employee or CPA). IfHowever, Tenant may not exercise its audit right unless the audit commences within thirty (30) days after Landlord notifies Tenant that Tenant's objection is without merit, nor may Tenant audit any statement more than once (it being understood that the foregoing prohibition against multiple audits of the same statement shall not be deemed to prohibit the examination of the same documents more than once in the course of the same audit). Any CPA selected by Tenant to conduct an audit must have least 5 years experience performing operating expense pass-through audits for commercial office buildings in the metropolitan Washington, D.C. area, and must be approved by Landlord’s receipt . Landlord's approval will not be unreasonably withheld or delayed, if such CPA (a) is not compensated on a contingency fee basis, and (b) signs a confidentiality agreement in form reasonably acceptable to Landlord (Landlord hereby agreeing that no such confidentiality agreement shall prohibit the disclosure, in any action or suit instituted by Tenant against Landlord with regard to the audited Operating Expenses or Taxes, of Tenant’s notice requesting an auditinformation required to institute or prosecute such action or suit, Landlord but such confidentiality agreement may require Tenant and Tenant are unable to agree on the CPA to conduct such audit, then Landlord may designate a nationally recognized accounting firm not then employed by Landlord or Tenant agree to conduct such audit. The audit shall be limited to the determination of the amount of Operating Costs for the subject calendar year. If the audit discloses that the amount of Operating Costs billed to Tenant was incorrect, the appropriate party shall pay to the other party the deficiency or overpayment, as applicable. All costs and expenses of the audit shall be paid by Tenant unless the audit shows that Landlord overstated Operating Costs for the subject calendar year by more than five percent (5%), reasonable protective orders in which case Landlord shall pay all costs and expenses of the audit (not to exceed $10,000.00connection therewith). Tenant and Tenant’s representatives shall keep any information gained from such Each audit confidential and shall not disclose it to any other party. The exercise by Tenant of its audit rights hereunder shall not relieve Tenant of its obligation to timely pay all sums due hereunderunder this Section 6(D) must be conducted at Landlord's property manager's Washington, including, without limitation, the disputed Operating Costs.D.C. area
Appears in 1 contract
Tenant’s Right to Audit. The annual Statement Tenant and its authorized representative shall, upon reasonable prior written notice, have the right at its sole expense (except as provided below) to examine, inspect and copy the records of Operating Costs for the preceding year shall be provided by Landlord on or before April 30th regarding each statement of each calendar year after the Base Year of the Lease term. Within ninety Common Area Expenses and Taxes within sixty (9060) days after receipt of such statement, in order to determine whether to proceed with an audit thereof. In the Statementevent Tenant shall dispute the amount set forth in Landlord's statement of actual Common Area Expenses, Tenant shall have the right, not later than one hundred twenty (120) days following receipt of such statement, to cause Landlord's books and records with respect to the preceding Calendar Year to be entitled, audited by an independent Certified Public Accountant mutually acceptable to Landlord and Tenant. Such audit shall occur upon ten not less than five (105) days prior written notice (“Inspection Notice”) and during normal business hoursto Landlord, at Landlord’s office 's place of business or such other place as Landlord shall reasonably designate, to inspect and examine those books and records the actual location of Landlord relating to the determination of Operating Costs for only the immediately preceding calendar year. Any third party engaged by Tenant to inspect or examine the books and records shall be a certified public accountant from a nationally or regionally recognized accounting firm and such accountant shall not be compensated on a contingency fee or similar basis. Should Tenant elect to inspect such records, Tenant’s inspection shall be completed and the results thereof submitted to Landlord no later than two (2) months after Tenant’s notification to Landlord of its intent to inspect Landlord’s books and records. Tenant shall be deemed to have waived its right to inspect Landlord’s 's books and records if different from Landlord's place of business, during Landlord's normal business hours. The amounts payable under this Section by Landlord to Tenant fails to timely deliver the Inspection Notice, or fails to timely complete the inspection (unless Landlord was the cause of the delay). If, after inspection and examination of such books and records, by Tenant disputes the amounts of Operating Costs charged by Landlord, Tenant may, by written notice to Landlord, request an independent audit of such books and records. The independent audit of as the books and records case may be, shall be conducted by a certified public accountant (“CPA”) acceptable to both Landlord and Tenant. If, within thirty (30) days after Landlord’s receipt of Tenant’s notice requesting an audit, Landlord and Tenant are unable to agree appropriately adjusted on the CPA to conduct such audit, then Landlord may designate a nationally recognized accounting firm not then employed by Landlord or Tenant to conduct basis of such audit. The audit shall be limited to the determination of the amount of Operating Costs for the subject calendar year. If the such audit discloses that the amount of Operating Costs billed a liability for further refund by Landlord to Tenant was incorrect, the appropriate party shall pay to the other party the deficiency or overpayment, as applicable. All costs and expenses in excess of the audit shall be paid by Tenant unless the audit shows that Landlord overstated Operating Costs for the subject calendar year by more than five percent (5%), in which case Landlord shall pay all costs and expenses ) of the audit (not to exceed $10,000.00). payments previously made by Tenant and Tenant’s representatives shall keep any information gained from for such Calendar Year, the reasonable cost of such audit confidential shall be borne by Landlord and shall not disclose it to any other partybe considered as a Common Area Expense for purposes of this Lease; otherwise, the cost of such audit shall be borne by Tenant. The exercise by If Tenant of its audit rights hereunder shall not relieve Tenant request an audit in accordance with the provisions of its obligation to timely pay all sums due hereunderthis Section within one hundred twenty (120) days after receipt of Landlord's statement of actual Common Area Expenses, including, without limitation, the disputed Operating Costssuch statement shall be conclusively binding upon Landlord and Tenant.
Appears in 1 contract
Tenant’s Right to Audit. The annual Statement of Operating Costs Tenant shall pay to Landlord all amounts payable pursuant to Sections 7.4 and 7.5 herein without off-set or deduction within the time periods provided for in each respective Section notwithstanding that Tenant may object to Landlord's statement rendered pursuant thereto. In the preceding year event Tenant shall be provided by Landlord on or before April 30th of each calendar year after dispute the Base Year of amount set forth in Landlord's statement as described in Section 7.5 herein and Tenant pays the Lease term. Within ninety (90) days after receipt of the Statementfull amount set forth in Landlord's reconciliation statement then, Tenant shall be entitledhave the right, upon ten not later than sixty (1060) days prior written notice (“Inspection Notice”) and during normal business hours, at Landlord’s office or following receipt of such other place as Landlord shall reasonably designatestatement, to inspect and examine those cause Landlord's books and records of Landlord relating with respect to the determination of Operating Costs for only the immediately preceding calendar year. Any third party engaged Calendar Year to be audited by Tenant an independent Certified Public Accountant mutually acceptable to inspect or examine the books Landlord and records shall be a certified public accountant from a nationally or regionally recognized accounting firm Tenant, and such accountant who shall not be compensated on a contingency fee or similar basis. Should Tenant elect to inspect such records, Tenant’s inspection Such audit shall be completed and the results thereof submitted to Landlord no later occur upon not less than two twenty (220) months after Tenant’s notification to Landlord of its intent to inspect Landlord’s books and records. Tenant shall be deemed to have waived its right to inspect Landlord’s books and records if Tenant fails to timely deliver the Inspection Notice, or fails to timely complete the inspection (unless Landlord was the cause of the delay). If, after inspection and examination of such books and records, Tenant disputes the amounts of Operating Costs charged by Landlord, Tenant may, by days prior written notice to Landlord, request an independent audit at Landlord's place of such books and records. The independent audit business or the actual location of the Landlord's books and records if different from Landlord's place of business, during Landlord's normal business hours. The amounts payable under this Section by Landlord to Tenant or by Tenant to Landlord, as the case may be, shall be conducted appropriately adjusted on the basis of such audit. If such audit discloses a liability for further refund by a certified public accountant Landlord to Tenant in excess of five percent (“CPA”5%) acceptable to both of the payments previously made by Tenant for such Calendar Year, the actual out-of-pocket cost of such audit incurred by Tenant shall be borne by Landlord and Tenant. If, paid within thirty (30) days after of demand from Tenant subject to Landlord’s receipt 's right to dispute the results of Tenant’s notice requesting an 's audit as hereinafter described; otherwise, the cost of such audit shall be borne by Tenant. Notwithstanding the foregoing, in no event shall Landlord's cost for such audit exceed Three Thousand Dollars ($3,000). In the event that the Landlord disputes the results of the Tenant's audit, Landlord shall notify Tenant within thirty (30) days of delivery of the results of the Tenant's audit together with reasonably detailed documentation related thereto. If Landlord disputes Tenant's audit, Landlord shall within said 30-day period, designate an independent Certified Public Accounting firm from one of the "Big-Six" (i.e., Arthur Anderson & Co. or similar company) and said firm shall review Xxxxxx'x xxxxx and, if necessary, shall re-audit Landlord's books and records and issue a final report within ninety (90) days of the expiration of said 30-day period. Tenant are unable shall fully cooperate and instruct its auditor to agree fully cooperate with the review conducted by the Big-Six firm. The findings of the Big-Six firm shall be conclusive and binding on the CPA parties hereto as it relates to conduct such audit, the statement at issue. In the event that the Big-Six firm's report confirms Tenant's audit then Landlord shall pay the cost of the Big-Six audit which shall be in addition to any obligation Landlord may designate have to pay for any overpayment of Operating Expenses. In the event that the report discloses a nationally recognized accounting firm not then employed liability by Landlord or to Tenant to conduct such audit. The audit shall be limited to the determination of substantially less than the amount of Operating Costs for Tenant's audit then in that event the subject calendar yearTenant shall pay the cost of the Big-Six audit which shall be in addition to any obligation Tenant may have to pay Landlord's expenses as aforesaid. If Tenant shall not request an audit in accordance with the audit discloses that the amount provisions of this Section within sixty (60) days of receipt of Landlord's reconciliation statement of actual Operating Costs billed to Tenant was incorrectExpenses, the appropriate party shall pay to the other party the deficiency or overpayment, as applicable. All costs and expenses of the audit such statement shall be paid by Tenant unless the audit shows that conclusive and binding upon Landlord overstated Operating Costs for the subject calendar year by more than five percent (5%), in which case Landlord shall pay all costs and expenses of the audit (not to exceed $10,000.00). Tenant and Tenant’s representatives shall keep any information gained from such audit confidential and shall not disclose it to any other party. The exercise by Tenant of its audit rights hereunder shall not relieve Tenant of its obligation to timely pay all sums due hereunder, including, without limitation, the disputed Operating Costs.
Appears in 1 contract
Samples: Disturbance and Attornment Agreement (Versatility Inc)
Tenant’s Right to Audit. The annual Statement In the event Tenant shall dispute the amount set forth in Landlord's statement of actual Operating Costs for the preceding year shall be provided by Landlord on or before April 30th of each calendar year after the Base Year of the Lease term. Within ninety (90) days after receipt of the StatementExpenses, Tenant shall have the right, not later than sixty (60) days following receipt of such statement, to cause Landlord's books and records with respect to the preceding Calendar Year to be entitledaudited by Tenant or by an independent Certified Public Accountant mutually acceptable to Landlord and Tenant, in which event Landlord will make all pertinent books and records for the subject Calendar Year (and, if applicable, Base Year) available to Tenant or its Auditor at Landlord's offices, or another mutually acceptable location within the Washington, D.C. metropolitan area. Such audit shall occur upon ten not less than five (105) days prior written notice (“Inspection Notice”) and during normal business hoursto Landlord, at Landlord’s office 's place of business or such other place as Landlord shall reasonably designate, to inspect and examine those books and records the actual location of Landlord relating to the determination of Operating Costs for only the immediately preceding calendar year. Any third party engaged by Tenant to inspect or examine the books and records shall be a certified public accountant from a nationally or regionally recognized accounting firm and such accountant shall not be compensated on a contingency fee or similar basis. Should Tenant elect to inspect such records, Tenant’s inspection shall be completed and the results thereof submitted to Landlord no later than two (2) months after Tenant’s notification to Landlord of its intent to inspect Landlord’s books and records. Tenant shall be deemed to have waived its right to inspect Landlord’s 's books and records if different from Landlord's place of business (but in all events within the Washington, D.C. metropolitan area , during Landlord's normal business hours. The amounts payable under this Article by Landlord to Tenant fails to timely deliver the Inspection Notice, or fails to timely complete the inspection (unless Landlord was the cause of the delay). If, after inspection and examination of such books and records, by Tenant disputes the amounts of Operating Costs charged by Landlord, Tenant may, by written notice to Landlord, request as the case may be, shall be appropriately adjusted on the basis of such audit, provided that, if Tenant performs the audit on its own, or does not use an independent audit of such books and records. The independent audit of the books and records shall be conducted by a certified public accountant (“CPA”) mutually and reasonably acceptable to both Landlord and Tenant, Landlord shall have the right to dispute the results of any such audit, as more fully provided for below. IfIf such audit discloses a liability for further refund by Landlord to Tenant in excess of [***] of the payments previously made by Tenant for such Calendar Year, the cost of such audit shall be borne by Landlord and shall not be considered as an Operating Expense for purposes of this Lease; otherwise, the cost of such audit shall be born by Tenant. Notwithstanding the foregoing, in no event shall Landlord's cost for such audit exceed [***]. If Tenant shall not request an audit in accordance with the provisions of this Section within sixty (60) days of receipt of Landlord's statement of actual Operating Expenses, Tenant shall have no further right to audit or modify Operating Expenses for such Calendar Year (or, if applicable, the Base Year). In the event Landlord wishes to dispute the results of any audit conducted by Tenant under this Section 7.6, Landlord shall so notify Tenant in writing within thirty (30) days after Landlord’s its receipt of Tenant’s notice requesting thereof, and, if the parties cannot resolve such dispute voluntarily within thirty (30) days after such notice, the matters in dispute will be submitted to an audit, independent certified public accountant reasonably acceptable to Landlord and Tenant are unable (the "Independent CPA") , with Tenant to agree on pay, or Landlord to retain, the amount in dispute, if any, pending the resolution of such dispute by the Independent CPA, and with the non-prevailing party to pay all fees and costs charged by the Independent CPA to conduct such auditreview and resolve such dispute (and, then if Tenant prevails, with Landlord may designate a nationally recognized accounting firm not then employed by Landlord or Tenant to conduct such audit. The audit shall be limited to the determination of pay the amount of Operating Costs for which was overpaid by Tenant, such fees and costs as aforesaid, and interest thereon at the subject calendar year. If Interest Rate from the audit discloses that the date such amount of Operating Costs billed to Tenant was incorrect, the appropriate party shall pay to the other party the deficiency or overpayment, as applicable. All costs and expenses of the audit shall be paid by Tenant unless until the audit shows that Landlord overstated Operating Costs for the subject calendar year date such amount was reimbursed by more than five percent (5%Landlord), in which case Landlord shall pay all costs and expenses of the audit (not to exceed $10,000.00). Tenant and Tenant’s representatives shall keep any information gained from such audit confidential and shall not disclose it to any other party. The exercise by Tenant of its audit rights hereunder shall not relieve Tenant of its obligation to timely pay all sums due hereunder, including, without limitation, the disputed Operating Costs.
Appears in 1 contract
Samples: Pathnet Telecommunications Inc
Tenant’s Right to Audit. The annual Statement of Operating Costs for the preceding year shall be provided by Landlord on or before April 30th of each calendar year after the Base Year of the Lease term. Within ninety (90) days after receipt of the Statement, Tenant shall be entitled, upon ten (10) days prior written notice (“Inspection Notice”) and during normal business hoursTenant, at Landlord’s office or such other place as Landlord its sole expense, shall reasonably designate, to inspect and examine those books and records of Landlord relating to have the determination of Operating Costs for only the immediately preceding calendar year. Any third party engaged by Tenant to inspect or examine the books and records shall be a certified public accountant from a nationally or regionally recognized accounting firm and such accountant shall not be compensated on a contingency fee or similar basis. Should Tenant elect to inspect such records, Tenant’s inspection shall be completed and the results thereof submitted to Landlord no later than two (2) months after Tenant’s notification to Landlord of its intent to inspect Landlord’s books and records. Tenant shall be deemed to have waived its right to inspect Landlord’s books and records if Tenant fails to timely deliver the Inspection Notice, or fails to timely complete the inspection (unless Landlord was the cause of the delay). If, after inspection and examination of such books and records, Tenant disputes the amounts of Operating Costs charged by Landlord, Tenant may, by written notice to Landlord, request an independent audit of such books and records. The independent audit of the books and records shall be conducted by a certified public accountant (“CPA”) acceptable to both Landlord and Tenant. If, within thirty (30) days after the delivery of an Expense Statement to review and audit Landlord’s receipt books and records regarding such Expense Statement for the sole purpose of Tenant’s notice requesting an audit, Landlord and Tenant are unable to agree on determining the CPA to conduct accuracy of such audit, then Landlord may designate Expense Statement. Such review or audit shall be performed by a nationally recognized accounting firm that calculates its fees with respect to hours actually worked and that does not then employed by discount its time or rate (as opposed to a calculation based upon percentage of recoveries or other incentive arrangement), shall take place during normal business hours in the office of Landlord or Tenant to conduct such audit. The audit Landlord’s property manager and shall be limited to completed within three (3) business days after the determination of the amount of Operating Costs for the subject calendar yearcommencement thereof. If Tenant does not so review or audit Landlord’s books and records, Xxxxxxxx’s Expense Statement shall be final and binding upon Tenant. In the audit discloses event that Tenant determines on the basis of its review of Landlord’s books and records that the amount of Operating Costs billed to Tenant was incorrect, the appropriate party shall pay to the other party the deficiency or overpayment, as applicable. All costs and expenses of the audit shall be Expenses paid by Tenant unless the audit shows that Landlord overstated Operating Costs pursuant to this Paragraph 8 for the subject calendar year period covered by such Expense Statement (an “Expense Period”) is less than or greater than the actual amount properly payable by Tenant under the terms of this Lease, Tenant shall promptly pay any deficiency to Landlord or, if Landlord concurs with the results of such audit in its reasonable discretion, Landlord shall promptly refund any excess payment to Tenant, as the case may be. In the event such audit determines that the actual amount of Expenses paid by Tenant during any Expense Period exceeds the amount properly payable by Tenant hereunder during such Expense Period by an amount greater than six percent (6%) of the actual Expenses properly chargeable to Tenant during such Expense Period, then Landlord shall reimburse Tenant (in the form of a credit against the Rent next coming due hereunder or, if the Term has previously expired, in the form of a direct payment) for the reasonable costs of such audit. For purposes of determining whether the actual amount of Expenses paid by Tenant during an Expense Period exceeds the amount properly payable by Tenant hereunder by more than five six percent (56%), the parties shall take into account amounts improperly included by Landlord in which case Landlord shall pay all costs and expenses the calculation of the audit (not Expenses, but specifically excluding any amount attributable to exceed $10,000.00)a disagreement over or an improper determination of an amortization period. Tenant and Tenant’s representatives shall keep any information gained from such audit confidential and shall not disclose it to any other party. The exercise by Tenant By way of its audit rights hereunder shall not relieve Tenant of its obligation to timely pay all sums due hereunder, including, without limitationexample only, the disputed Operating Costsparties shall take into account an amount charged to Tenant but specifically excluded under the list set forth in Section 8.4 above, but shall disregard any excess amount improperly included within Expenses attributable to Landlord’s utilization of an incorrect amortization period for capital expenses.
Appears in 1 contract
Tenant’s Right to Audit. The annual Statement of Operating Costs for Landlord shall keep detailed and accurate books and records (including financial records) in connection with the preceding year shall be provided by Landlord on or before April 30th of each calendar year after the Base Year construction of the Lease termTenant Improvements, and in accordance with customary standards for similar projects. Within ninety (90) days after receipt Promptly following Substantial Completion of the StatementTenant Improvements, Landlord shall provide to Tenant a schedule together with reasonable back-up information requested by Tenant (inclusive of all invoices, payment receipts to the extent the same were actually provided to Contractor and mechanics’ lien releases), showing the calculation of the actual Landlord Cost and Excess Costs, and Tenant or its architects or other agents shall be entitled, upon ten (10) days prior written notice (“Inspection Notice”) and during normal business hourshave the right, at LandlordTenant’s office or such other place as Landlord shall reasonably designatesole cost and expense, to inspect and examine those books and records of Landlord relating to the determination of Operating Costs for only the immediately preceding calendar year. Any third party engaged by Tenant to inspect or examine the books and records shall be a certified public accountant from a nationally or regionally recognized accounting firm and such accountant shall not be compensated on a contingency fee or similar basis. Should Tenant elect to inspect such records, Tenant’s inspection shall be completed and the results thereof submitted to Landlord no later than two (2) months after Tenant’s notification to Landlord of its intent to inspect Landlord’s books and records. Tenant shall be deemed to have waived its right to inspect audit Landlord’s books and records if relating thereto, so long as Tenant fails to timely deliver requests such inspection or audit within sixty (60) days after receipt from Landlord of Landlord’s calculation of Landlord Costs. In the Inspection Notice, or fails to timely complete the event that either Landlord’s calculation of Landlord Costs and Excess Costs and/or Tenant’s inspection (unless Landlord was the cause of the delay). If, after inspection and examination of such books and records, Tenant disputes the amounts of Operating Costs charged by Landlord, Tenant may, by written notice to Landlord, request an independent and/or audit of such books and records. The independent audit of the Landlord’s books and records determines that the Landlord Costs and Excess Costs are less than the sum of the Tenant Improvement Allowance and Additional Costs actually paid by Tenant to Landlord as set forth in Section 3.3.4, and as a result, Tenant has actually overpaid the amount of Additional Costs, then Landlord shall promptly refund any overpayment by Tenant of Additional Costs in excess of the actual amount of Landlord Costs and Excess Costs. If the parties are unable to agree upon the Landlord Costs and Excess Costs incurred in the construction of the Tenant Improvements, the parties agree that arbitration shall constitute the exclusive remedy for settlement of any such dispute. If either Landlord or Tenant desires to exercise its right pursuant to this Section 4.4, such party shall deliver written demand for arbitration to the other party, setting out the basis for the controversy. Any arbitration proceeding undertaken pursuant to this shall be conducted held in front of a retired judge working with JAMS or another similar group, or if no such groups exists, a single neutral arbitrator shall be chosen by a certified public accountant (mutual agreement or, if the parties fail to agree, by the presiding judge of the San Diego Superior Court upon ex parte application. The arbitration shall take place in San Diego, California. The decision of the arbitrator shall be conclusive, final and EXHIBIT “CPA”) acceptable to both B” binding upon Landlord and Tenant. If, within thirty (30) days after Landlord’s receipt Judgment upon the decision of Tenant’s notice requesting an audit, Landlord and Tenant are unable to agree on the CPA to conduct such audit, then Landlord arbitrator may designate a nationally recognized accounting firm not then employed by Landlord or Tenant to conduct such auditbe entered in any court of competent jurisdiction. The audit cost of such arbitration (including reasonable attorneys’ fees incurred therein) shall be limited to borne by the determination of losing party as determined by the amount of Operating Costs for the subject calendar year. If the audit discloses that the amount of Operating Costs billed to Tenant was incorrect, the appropriate party shall pay to the other party the deficiency or overpayment, as applicable. All costs and expenses of the audit shall be paid by Tenant unless the audit shows that Landlord overstated Operating Costs for the subject calendar year by more than five percent (5%), in which case Landlord shall pay all costs and expenses of the audit (not to exceed $10,000.00). Tenant and Tenant’s representatives shall keep any information gained from such audit confidential and shall not disclose it to any other party. The exercise by Tenant of its audit rights hereunder shall not relieve Tenant of its obligation to timely pay all sums due hereunder, including, without limitation, the disputed Operating Costsarbitrator.
Appears in 1 contract
Samples: Settlement and Release Agreement (GenMark Diagnostics, Inc.)
Tenant’s Right to Audit. The annual Statement Tenant shall have a right, at Tenant's sole cost and expense, to audit Landlord's Operating Expense Rental and Real Estate Tax Rental reconciliation statement upon the following terms and conditions. Tenant shall notify Landlord in writing that it is exercising its right to audit within one hundred fifty (150) days following delivery of the Operating Expense Rental and Real Estate Tax Rental reconciliation statement, indicating in such notice with reasonable specificity (to the extent that the reconciliation statement indicates the cost components with reasonable specificity) those cost components of Operating Costs for Expense Rental and Real Estate Tax Rental to be subject to audit. The audit shall take place at the preceding year shall be provided by Building, at a time mutually convenient to Landlord on or before April 30th of each calendar year after the Base Year of the Lease term. Within ninety and Tenant (90but not later than one hundred fifty (150) days after receipt of Tenant's notice to audit). Except as Landlord may consent in writing, the Statement, Tenant audit shall be entitled, upon ten completed within twenty (1020) days prior written notice (“Inspection Notice”) and during normal business hoursafter commencement. No copying of Landlord's books or records will be allowed. The audit may be accomplished by either Tenant's own employees with accounting experience reasonably sufficient to conduct such review, at Landlord’s office or such other place as Landlord shall reasonably designate, to inspect and examine those books and records of Landlord relating to the determination of Operating Costs for only the immediately preceding calendar year. Any third party engaged by Tenant to inspect or examine the books and records shall be a certified public accountant from a nationally or regionally recognized public accounting firm and such accountant shall not be compensated on a contingency fee or similar basis. Should Tenant elect to inspect such records, Tenant’s inspection shall be completed and the results thereof submitted mutually acceptable to Landlord and Tenant, but in no later than two (2) months after Tenant’s notification event may the auditor be Xxxxxx & Xxxxx, PLLC or an entity related to Landlord of its intent to inspect Landlord’s books and recordssuch company. The records reviewed by Tenant shall be deemed treated as confidential and prior to have waived its right commencing the audit, Tenant and any other person which may perform such audit for Tenant, shall execute a Confidentiality Agreement in a form reasonably acceptable to inspect Landlord’s books Landlord and records if Tenant fails the other party to timely deliver the Inspection Notice, or fails to timely complete the inspection (unless Landlord was the cause Confidentiality Agreement. A copy of the delay). If, after inspection and examination of such books and records, Tenant disputes the amounts of Operating Costs charged by Landlord, Tenant may, by written notice to Landlord, request an independent audit of such books and records. The independent audit results of the books and records audit shall be conducted by a certified public accountant (“CPA”) acceptable delivered to both Landlord and Tenant. If, within thirty (30) days after Landlord’s receipt the completion of Tenant’s notice requesting an the audit, . If Landlord and Tenant are unable determine that Operating Expense Rental for the Calendar Year is less than reported, Landlord shall give Tenant a credit in the amount of the overpayment toward Tenant's next monthly payment of estimated Operating Expense Rental, or, in the event the Lease has expired or terminated and no Event of Default exists, Landlord shall pay Tenant the total amount of such overpayment within thirty (30) days after the completion of the audit. If Landlord and Tenant determine that Operating Expense Rental for the Calendar Year is more than reported, Tenant shall pay Landlord the amount of any underpayment within thirty (30) days. Tenant agrees to agree on the CPA to conduct pay all third party costs and expenses of any such audit, then Landlord may designate a nationally recognized accounting firm not then employed by Landlord or Tenant to conduct such audit. The audit shall be limited to the unless it is finally determined that Landlord's original determination of the amount of Operating Costs for the subject calendar year. If the audit discloses that the amount of Operating Costs billed to Tenant Expense Rental was incorrect, the appropriate party shall pay to the other party the deficiency or overpayment, as applicable. All costs and expenses of the audit shall be paid by Tenant unless the audit shows that Landlord overstated Operating Costs for the subject calendar year by more than five four percent (54%), in which case event Landlord shall pay all the third-party costs and expenses of such audit. Failure by Tenant to timely request an audit is deemed a waiver of the applicable audit (not right and any right to exceed $10,000.00)contest Operating Expense Rental and Real Estate Tax Rental for the applicable Calendar Year and is deemed acceptance of the Operating Expense Rental and Real Estate Tax Rental contained in the Operating Expense Rental and Real Estate Tax Rental reconciliation statement for the applicable Calendar Year. Any audit review by Tenant and Tenant’s representatives shall keep any information gained from such audit confidential and shall not disclose it postpone or alter the liability and obligation of Tenant to pay any Operating Expense Rental and Real Estate Tax Rental due under the terms of the Lease. No subtenant shall have any right to conduct an audit except for a permitted assignee or sublessee under Article IX of the Lease occupying the entire Premises and no assignee or sublessee shall conduct an audit for any period during which such assignee or sublessee was not in possession of the Premises or for any period in which Tenant has conducted an audit. Notwithstanding anything to the contrary contained herein, in the event Tenant's examination of Landlord's books and records for a particular Calendar Year reveals fraud, material misrepresentations or gross negligence by Landlord in the computation of Operating Expense Rental and Real Estate Tax Rental for such Calendar Year or a discrepancy between the actual amount of Operating Expense Rental and Real Estate Tax Rental for such Calendar Year and the amount charged to Tenant for such Calendar Year is in the amount of ten percent (10%) or more ("Material Discrepancy Audit"), then Tenant shall have the right to examine Landlord's books and records relating to the Operating Expenses and Real Estate Tax Rental the prior three (3) Calendar Years of the Term and to take written exception to any other party. The exercise by amount charged to Tenant for any of its audit rights hereunder shall not relieve the three (3) prior Calendar Years on or before thirty (30) days after Tenant completes such examination, which examination must be completed within sixty (60) days of its obligation to timely pay all sums due hereunder, including, without limitation, completion of the disputed Operating CostsMaterial Discrepancy Audit.
Appears in 1 contract
Tenant’s Right to Audit. The annual Statement of Operating Costs for the preceding year shall be provided by Landlord on or before April 30th of each calendar year after the Base Year of the Lease term. Within ninety (90) days after receipt of the Statement, Tenant shall be entitled, upon ten (10) days prior written notice (“Inspection Notice”) and during normal business hours, at Landlord’s office or such other place as Landlord shall reasonably designate, to inspect and examine those books and records of Landlord relating to the determination of Operating Costs for only the immediately preceding calendar year. Any third party engaged by Tenant to inspect or examine the books and records shall be a certified public accountant from a nationally or regionally recognized accounting firm and such accountant shall not be compensated on a contingency fee or similar basis. Should Tenant elect to inspect such records, Tenant’s inspection shall be completed and the results thereof submitted to Landlord no later than two (2) months after Tenant’s notification to Landlord of its intent to inspect Landlord’s books and records. Tenant shall be deemed to have waived its right to inspect Landlord’s books and records if Tenant fails to timely deliver the Inspection Notice, or fails to timely complete the inspection (unless Landlord was the cause of the delay). If, after inspection and examination of such books and records, Tenant disputes the amounts of Operating Costs charged by Landlord, Tenant may, by upon no less than thirty (30) days' prior written notice to Landlord, request an independent audit Landlord's books pertaining to the Additional Rent payable by Tenant pursuant to ARTICLES 5, 6, and 7 for such calendar year; provided, however, as a condition precedent to the granting by Landlord of Tenant's right to audit as provided in this SUBSECTION (C), Tenant must exercise such right to audit for any calendar year within twelve (12) months after the close of such books calendar year or Tenant shall automatically forfeit such right to audit for such calendar year. It is further expressly agreed and recordsunderstood that the foregoing audit right shall not be in effect in the event the Tenant is in default under any provision of this Lease. The independent Tenant's audit of the books and records shall be conducted performed by a certified public accountant (“CPA”) acceptable who is retained strictly on a non-contingency basis and shall be limited to both Landlord and Tenant. If, within thirty (30) days after Landlord’s receipt of Tenant’s notice requesting an audit, Landlord and information that is directly related to the Additional Rent payable by Tenant are unable to agree on the CPA to conduct such audit, then Landlord may designate a nationally recognized accounting firm not then employed by Landlord or Tenant to conduct such audithereunder. The audit shall be limited conducted at the office designated by Landlord during normal business hours. Tenant's right to the determination of the amount of Operating Costs for the subject calendar year. If the audit discloses that the amount of Operating Costs billed to Tenant was incorrect, the appropriate party shall pay to the other party the deficiency or overpayment, as applicable. All costs and expenses of the audit shall be paid by Tenant unless the audit shows that Landlord overstated Operating Costs for the subject restricted to one (1) time per calendar year by more than five percent (5%), in which case Landlord shall pay all costs and expenses of the audit (not to exceed $10,000.00). Tenant and Tenant’s representatives shall keep any information gained from such audit confidential and shall not disclose it be at the sole cost and expense of Tenant. In no event shall Tenant's right to any other party. The exercise by Tenant of its audit rights hereunder shall not or the results thereof relieve Tenant of its obligation to timely pay all sums amounts due hereunderas provided in this Lease except as expressly agreed to in writing by Landlord and Tenant in the form of an amendment to this Lease. Tenant shall deliver a copy of the results of such audit to Landlord within fifteen (15) days of its receipt by Tenant. Any information gained from such audit shall be confidential and shall not be disclosed by Tenant, includingits agents and/or employees and Tenant shall be responsible for ensuring compliance with such confidentiality requirement by its agents and employees. As an additional condition precedent to the granting by Landlord of Tenant's right to audit as provided in this SUBSECTION (c), without limitation, the disputed Operating CostsTenant waives any other rights that it may have at law or in equity to audit Landlord's books pertaining to any Additional Rent payable by Tenant.
Appears in 1 contract
Samples: Lease Agreement (uWink, Inc.)
Tenant’s Right to Audit. The annual Statement In the event of Operating Costs for any good faith dispute concerning the preceding year charges or computation of the amounts payable to Landlord pursuant to Articles 7.4 and 7.5 herein, Tenant shall pay into escrow, in an escrow account and with an escrow agent both reasonably acceptable to Landlord, the portion of the amount in dispute pending the resolution of the dispute, and such payment shall be provided by Landlord on without prejudice to Tenant's right to continue to challenge the disputed charges or before April 30th of each calendar year after the Base Year computation. All fees, charges and expenses of the Lease termescrow agent shall be paid by Tenant at it's sole cost and expense. Within In no event shall Tenant be permitted to make payments of Base Rent, as specified in Article 1.7, into such escrow account. In the event Tenant shall dispute the amount set forth in Landlord's statement as described in Article 7.5 herein and Tenant pays the full amount set forth in Landlord's reconciliation statement with any disputed amount paid into such escrow account then, Tenant shall have the right, not later than ninety (90) days after following receipt of the Statement, Tenant shall be entitled, upon ten (10) days prior written notice (“Inspection Notice”) and during normal business hours, at Landlord’s office or such other place as Landlord shall reasonably designatestatement, to inspect and examine those cause Landlord's books and records of Landlord relating with respect to the determination of Operating Costs for only the immediately preceding calendar year. Any third party engaged year to be audited and/or inspected by Tenant to inspect itself or examine with the books assistance of accountants or other consultants, and records shall be a certified public accountant from a nationally or regionally recognized accounting firm and such accountant who shall not be compensated on a contingency fee or similar basis. Should Tenant elect to inspect such records, Tenant’s inspection Such audit shall be completed and the results thereof submitted to Landlord no later occur upon not less than two twenty (220) months after Tenant’s notification to Landlord of its intent to inspect Landlord’s books and records. Tenant shall be deemed to have waived its right to inspect Landlord’s books and records if Tenant fails to timely deliver the Inspection Notice, or fails to timely complete the inspection (unless Landlord was the cause of the delay). If, after inspection and examination of such books and records, Tenant disputes the amounts of Operating Costs charged by Landlord, Tenant may, by days prior written notice to Landlord, request an independent audit at Landlord's place of such books and records. The independent audit business or the actual location of the Landlord's books and records if different from Landlord's place of business, during Landlord's normal business hours. Subject to Landlord's right to dispute the results of Tenant's audit as hereinafter described, the amounts payable under this Article by Landlord to Tenant or by Tenant to Landlord, as the case may be, shall be conducted appropriately adjusted on the basis of such audit. If such audit discloses a liability for further refund by a certified public accountant Landlord to Tenant in excess of five percent (“CPA”5%) acceptable of the payments previously made by Tenant for such calendar year, then, subject to both Landlord's right to dispute the results of Tenant's audit as hereinafter described, (a) the actual out-of-pocket cost of such audit incurred by Tenant shall be borne by Landlord and Tenant. If, paid within thirty (30) days after of demand from Tenant and (b) Tenant and/or its representatives shall have the right to audit/inspect Landlords books and records for the year immediately preceding the prior audit year for any potential excess payments by Tenant; otherwise, the cost of such audit shall be borne by Tenant. Notwithstanding the foregoing, in no event shall Landlord’s receipt 's cost for such audit (not including any excess payment by Tenant) exceed Three Thousand Dollars ($3,000). If Tenant's audit discloses a liability for further refund by Landlord to Tenant of one percent (1%) or less or a liability for further payment by Tenant’s notice requesting an , then in that event the actual out-of-pocket cost to respond to Tenant's audit incurred by Landlord (including reasonable consultants' and attorneys' fees), not to exceed Three Thousand Dollars ($3,000), shall be borne by Tenant and paid within thirty (30) days of demand from Landlord. In the event that the Landlord disputes the results of the Tenant's audit, Landlord shall notify Tenant within thirty (30) days of delivery of the results of the Tenant's audit together with reasonably detailed documentation related thereto. If Landlord disputes the Tenant's audit, Landlord shall within said 30-day period, designate an independent Certified Public Accounting firm from one of the "Big-Six" (i.e., Arthur Anderson & Co. or similar xxxxxxy) xxx xaid firm shall review the Tenant's audit and, if necessary, shall re-audit the Landlord's books and records and issue a final report within ninety (90) days of the expiration of said 30-day period. Tenant are unable shall fully cooperate and instruct its auditor to agree fully cooperate with the review conducted by the Big-Six firm. The findings of the Big-Six firm shall be conclusive and binding on the CPA to conduct such audit, then Landlord may designate a nationally recognized accounting firm not then employed by Landlord or Tenant to conduct such audit. The audit shall be limited parties hereto as it relates to the determination of statement at issue. In the amount of Operating Costs for the subject calendar year. If the audit discloses event that the amount of Operating Costs billed to Tenant was incorrect, Big-Six firm's report confirms the appropriate party shall pay to Tenant's audit then the other party the deficiency or overpayment, as applicable. All costs and expenses of the audit shall be paid by Tenant unless the audit shows that Landlord overstated Operating Costs for the subject calendar year by more than five percent (5%), in which case Landlord shall pay all costs and expenses the cost of the Big-Six audit which shall be in addition to any obligation Landlord may have to pay Tenant's expenses as aforesaid. In the event that the report discloses a liability by Landlord to Tenant of less than the amount indicated in Landlord's statement, then in that event the Tenant shall pay the cost of the Big-Six audit which shall be in addition to any obligation Tenant may have to pay Landlord's expenses as aforesaid. If Tenant shall not request an audit in accordance with the provisions of this Article within ninety (not to exceed $10,000.00). Tenant 90) days of receipt of Landlord's reconciliation statement of actual Operating Expenses, such statement shall be conclusive and binding upon Landlord and Tenant’s representatives shall keep any information gained from such audit confidential and shall not disclose it to any other party. The exercise by Tenant of its audit rights hereunder shall not relieve Tenant of its obligation to timely pay all sums due hereunder, including, without limitation, the disputed Operating Costs.
Appears in 1 contract
Samples: Disturbance and Attornment Agreement (Exigent International Inc)
Tenant’s Right to Audit. The annual Statement of Operating Costs for the preceding year shall be provided by Landlord on or before April 30th of each calendar (a) Tenant, within one (1) year after the Base Year receipt of any accounting with respect to Excess Operating Expenses, by giving written notice to Landlord, shall have the Lease termright to review Landlord's books and records relating to such accounting. Within ninety Except as expressly set forth below, if and to the extent that Tenant, within one hundred twenty (90120) days after receipt Landlord makes such books and records available, fails to dispute in reasonable detail the correctness of any item included in such accounting, such accounting shall constitute a final determination, as between Landlord and Tenant, of Taxes, Operating Expenses and Tenant's Share of Excess Operating Expenses for the StatementOperating Year to which such accounting relates and shall be conclusive and binding upon Landlord and Tenant. Notwithstanding the foregoing, in the event that an audit for any Operating Year discloses an error in Operating Expenses for that Operating Year, then Tenant shall have the right to review that same line item for the previous two (2) Operating Years to see if the same error was made in those years, and if so an appropriate adjustment shall be made with respect to those prior years. Except as expressly set forth above, Tenant shall be entitled, upon ten (10) days prior written notice (“Inspection Notice”) and during normal business hours, at Landlord’s office or such other place as Landlord shall reasonably designate, not have the right to inspect and examine those books and records of Landlord relating to the determination of Operating Costs for only the immediately preceding calendar year. Any third party engaged by Tenant to inspect or examine the books and records shall for any particular Operating Year more than once. Landlord agrees cooperate with Tenant so that Tenant's audit may be a certified public accountant from a nationally conducted efficiently and fairly, and to grant Tenant, its accountants and representatives, reasonable access to so much of Landlord's books and records, at the place where they are regularly maintained in Boston, Massachusetts, and during the one-year period provided for above, as may be required for the purposes of verifying the Operating Expenses incurred by Landlord for the Operating Year then just ended and for any previous Operating Year, if applicable. In connection with examining Landlord's books and records hereunder, Tenant covenants and agrees that Tenant will (a) not employ any person or regionally recognized accounting firm and such accountant shall not who is to be compensated compensated, in whole or in part, on a contingency fee or similar basis. Should basis and (b) maintain the information obtained from such examination in strict confidence; provided, however, that notwithstanding such confidentiality requirement, Tenant elect may disclose so much of Landlord's confidential information as is reasonably required to inspect such recordsTenant's attorneys and accountants, Tenant’s inspection who shall be completed subject to the same confidentiality requirement as Tenant, and, if required pursuant to an order of a court or other governmental regulatory body, Tenant may also disclose so much of Landlord's confidential information as may be required by such order, and to the results thereof submitted to parties specified in such order. Landlord no later than two (2) months after Tenant’s notification to Landlord of shall retain its intent to inspect Landlord’s books and records. Tenant shall be deemed to have waived its right to inspect Landlord’s books and records if Tenant fails relating to timely deliver Operating Expense for at least three (3) years after the Inspection Notice, or fails to timely complete the inspection (unless Landlord was the cause expiration of the delay). If, after inspection and examination of such books and records, Tenant disputes the amounts of each Operating Costs charged by Landlord, Tenant may, by written notice to Landlord, request an independent audit of such books and records. The independent audit of the books and records shall be conducted by a certified public accountant (“CPA”) acceptable to both Landlord and Tenant. If, within thirty (30) days after Landlord’s receipt of Tenant’s notice requesting an audit, Landlord and Tenant are unable to agree on the CPA to conduct such audit, then Landlord may designate a nationally recognized accounting firm not then employed by Landlord or Tenant to conduct such audit. The audit shall be limited to the determination of the amount of Operating Costs for the subject calendar year. If the audit discloses that the amount of Operating Costs billed to Tenant was incorrect, the appropriate party shall pay to the other party the deficiency or overpayment, as applicable. All costs and expenses of the audit shall be paid by Tenant unless the audit shows that Landlord overstated Operating Costs for the subject calendar year by more than five percent (5%), in which case Landlord shall pay all costs and expenses of the audit (not to exceed $10,000.00). Tenant and Tenant’s representatives shall keep any information gained from such audit confidential and shall not disclose it to any other party. The exercise by Tenant of its audit rights hereunder shall not relieve Tenant of its obligation to timely pay all sums due hereunder, including, without limitation, the disputed Operating CostsYear.
Appears in 1 contract
Samples: Etre Reit, LLC
Tenant’s Right to Audit. The annual Statement Tenant shall have a right, at Tenant’s sole cost and expense, to audit not more than once per Calendar Year Landlord’s Operating Expense Rental reconciliation statement upon the following terms and conditions. Tenant shall notify Landlord in writing that it is exercising its right to audit within 90 days following delivery of the Operating Expense Rental reconciliation statement, indicating in such notice with reasonable specificity those cost components of Operating Costs for Expense Rental to be subject to audit. The audit shall take place at Landlord's regional offices or, at Landlord’s option, the preceding year shall be provided by Project, at a time mutually convenient to Landlord on or before April 30th of each calendar year after the Base Year of the Lease term. Within ninety and Tenant (90) but not later than 60 days after receipt of Tenant's notice to audit); provided, however, to the Statementextent available in an electronic format, Tenant Landlord will accommodate Tenant’s request for copies of records in an electronic format, subject to Tenant’s compliance with Landlord’s reasonable security procedures for electronic delivery. Except as Landlord may consent in writing, the audit shall be entitledcompleted within 30 days after commencement. Except as permitted in the Audit Confidentiality Agreement (as defined in this Section 6.3), upon ten (10) days prior written notice (“Inspection Notice”) and during normal business hours, at no copying of Landlord’s office books or records will be allowed. The audit may be accomplished by either Tenant’s own employees with accounting experience reasonably sufficient to conduct such other place as Landlord shall reasonably designatereview, to inspect and examine those books and records of Landlord relating to the determination of Operating Costs for only the immediately preceding calendar year. Any third party engaged by Tenant to inspect or examine the books and records shall be a certified public accountant from a nationally or regionally recognized public accounting firm mutually and such accountant shall reasonably acceptable to Landlord and Tenant that is engaged on either a fixed price or hourly basis, and is not be compensated on a contingency fee or similar bonus basis. Should Tenant elect Under no circumstances shall Landlord be required to inspect such records, Tenant’s inspection shall be completed and consent to an accounting firm that is also a tenant of Landlord (or any Landlord affiliate) in the results thereof submitted to Landlord no later than two (2) months after Tenant’s notification to Landlord of its intent to inspect Landlord’s books and recordsProject or any building in the city or metropolitan area in which the Project is located. The records reviewed by Tenant shall be deemed treated as confidential and prior to have waived its right to inspect Landlord’s books and records if Tenant fails to timely deliver commencing the Inspection Notice, or fails to timely complete the inspection (unless Landlord was the cause of the delay). If, after inspection and examination of such books and recordsaudit, Tenant disputes the amounts of Operating Costs charged by Landlordand any other person which may perform such audit for Tenant, Tenant may, by written notice to Landlord, request an independent audit of such books and records. The independent audit of the books and records shall be conducted by execute a certified public accountant (“CPA”) confidentiality agreement in a form reasonably acceptable to both Landlord and Tenant. If, within thirty (30) days after Landlord’s receipt of Tenant’s notice requesting an audit, Landlord and Tenant are unable to agree on the CPA to conduct such audit, then Landlord may designate a nationally recognized accounting firm not then employed by Landlord or Tenant to conduct such audit(“Audit Confidentiality Agreement”). The audit shall be limited to the determination A copy of the amount of Operating Costs for the subject calendar year. If the audit discloses that the amount of Operating Costs billed to Tenant was incorrect, the appropriate party shall pay to the other party the deficiency or overpayment, as applicable. All costs and expenses results of the audit shall be paid by delivered to Landlord within 30 days after the completion of the audit. If Landlord and Tenant unless determine that Operating Expense Rental for the audit shows Calendar Year is less than reported, Landlord shall give Tenant a credit in the amount of the overpayment toward Tenant's next monthly payment of estimated Operating Expense Rental, or, in the event this Lease has expired or terminated and no Event of Default exists, Landlord shall pay Tenant the total amount of such overpayment within 30 days. If Landlord and Tenant determine that Operating Expense Rental for the Calendar Year is more than reported, Tenant shall pay Landlord the amount of any underpayment within 30 days. Furthermore, in the event that Landlord overstated and Tenant determine that the actual Operating Costs Expenses for the subject calendar year Calendar Year are less than the Operating Expenses reported by more than five percent (5%), as substantiated, at Landlord’s option and expense, by a certified public accountant, then a credit in the amount of all reasonable out of pocket third party expenses incurred by Tenant in conducting such review, which case amount shall not exceed $3,000.00 shall be applied towards Tenant’s next monthly payments of estimated Operating Expenses Rental or, in the event the Lease has expired or terminated and no Event of Default exists, Landlord shall pay all costs and such expenses to Tenant within 30 days after receipt of Tenant’s invoice. Failure by Tenant to timely request an audit, or to timely deliver to Landlord the results of the audit, or to follow any of the procedures set forth in this Section 6.3 is deemed a waiver of the applicable audit (right and any right to contest Operating Expense Rental for the applicable Calendar Year and is deemed acceptance of the Operating Expense Rental contained in the Operating Expense Rental reconciliation statement for the applicable Calendar Year. Any audit review by Tenant shall not postpone or alter the liability and obligation of Tenant to exceed $10,000.00)pay any Operating Expense Rental due under the terms of this Lease. Tenant and Tenant’s representatives shall keep any information gained from such audit confidential and shall not disclose it be entitled to conduct such an audit if any other partyEvent of Default exists under this Lease. The exercise by No assignee or subtenant shall have any right to conduct an audit except for a permitted assignee or subtenant under Article X of this Lease occupying the entire Premises and no assignee or subtenant shall conduct an audit for any period during which such assignee or sublessee was not in possession of the Premises or for any period in which Tenant of its audit rights hereunder shall not relieve Tenant of its obligation to timely pay all sums due hereunder, including, without limitation, the disputed Operating Costshas conducted an audit.
Appears in 1 contract
Tenant’s Right to Audit. The annual Statement Within six months after delivery to ----------------------- Tenant of any statement of actual Operating Costs for the preceding year shall be provided by Landlord on or before April 30th of each calendar year after the Base Year of the Lease term. Within ninety (90) days after receipt of the StatementExpenses, Tenant shall be entitled, upon ten (10) days prior written notice (“Inspection Notice”) and during normal business hours, at Landlord’s office or such other place as Landlord shall reasonably designate, to inspect and examine those books and records of Landlord relating to have the determination of Operating Costs for only the immediately preceding calendar year. Any third party engaged by Tenant to inspect or examine the books and records shall be a certified public accountant from a nationally or regionally recognized accounting firm and such accountant shall not be compensated on a contingency fee or similar basis. Should Tenant elect to inspect such records, Tenant’s inspection shall be completed and the results thereof submitted to Landlord no later than two (2) months after Tenant’s notification to Landlord of its intent to inspect Landlord’s books and records. Tenant shall be deemed to have waived its right to inspect Landlord’s books and records if Tenant fails to timely deliver the Inspection Notice, or fails to timely complete the inspection (unless Landlord was the cause of the delay). If, after inspection and examination of such books and records, Tenant disputes the amounts of Operating Costs charged by Landlord, Tenant mayright, by written notice to Landlord, request to dispute any Operating Expenses reflected in such statement. If such dispute is not settled within 60 days after such notice has been delivered to Landlord, the dispute shall be resolved pursuant to an independent audit of such books and records. The independent audit of the books and records shall to be conducted by a firm of certified public accountant accountants (“CPA”an "Audit Professional") mutually acceptable to both Landlord and Tenant. If, within thirty (30) days after Landlord’s receipt of Tenant’s notice requesting an audit, If Landlord and Tenant are unable to cannot agree on the CPA to conduct such auditan Audit Professional within 30 days, then Landlord may designate and Tenant shall each, within 15 days, select an Audit Professional and the two Audit Professionals so selected shall select a nationally recognized accounting firm not then employed by Landlord or Tenant third Audit Professional which shall be the Audit Professional to conduct such auditresolve the dispute. The audit Audit Professional selected (the "Selected Auditor") shall be limited entitled to review all books and records relating to the determination disputed Operating Expenses. Such review shall be conducted during normal business hours at the office of the amount of Operating Costs for the subject calendar yearLandlord's property manager. If the audit discloses Selected Auditor's determination shows that the amount of aggregate Operating Costs billed to Tenant was incorrect, Expenses in the appropriate party shall pay to disputed statement exceed the other party the deficiency or overpayment, as applicable. All costs and expenses of the audit shall be paid by Tenant unless the audit shows that Landlord overstated actual Operating Costs Expenses for the subject calendar year period, covered by more such statement by an amount greater than five percent (5%), in which case Landlord shall pay all costs and expenses the cost of the audit (shall be paid by Landlord; otherwise, the cost of the audit shall be paid by Tenant, if such determination reflects an underpayment of Operating Expenses by Tenant, then Tenant shall pay the deficiency to Landlord within 30 days thereafter, If such determination reflects an overpayment of Operating Expenses by Tenant, then such amount shall be credited against the next monthly installment(s) of Operating Expenses that are due hereunder. Landlord shall maintain all books and records supporting any statement of Operating Expenses for a period of not to exceed $10,000.00)less than three years following the preparation of such statement. The rights and obligations of Tenant and Tenant’s representatives Landlord under this Section 17.B.(iv) shall keep any information gained from such audit confidential and shall not disclose it to any other party. The exercise by Tenant survive the expiration or sooner termination of its audit rights hereunder shall not relieve Tenant of its obligation to timely pay all sums due hereunder, including, without limitation, the disputed Operating Coststhis Lease.
Appears in 1 contract
Tenant’s Right to Audit. The annual Statement of Operating Costs for the preceding year shall be provided by Landlord on or before April 30th of each calendar year after the Base Year of the Lease termLandlord. Within ninety (90) days after receipt of the Statement, Tenant shall be entitled, upon ten (10) days prior written notice (“Inspection Notice”) and during normal business hours, at Landlord’s office or such other place as Landlord shall reasonably designate, to inspect and examine those books and records of Landlord relating to the determination of Operating Costs for only the immediately preceding calendar year. Any third party engaged by Tenant to inspect or examine the books and records shall be a certified public accountant from a nationally or regionally recognized accounting firm and such accountant shall not be compensated on a contingency fee or similar basis. Should Tenant elect to inspect such records, Tenant’s inspection shall be completed and the results thereof submitted to Landlord no later than two (2) months after Tenant’s notification to Landlord of its intent to inspect Landlord’s books and records. Tenant shall be deemed to have waived its right to inspect Landlord’s books and records if Tenant fails to timely deliver the Inspection Notice, or fails to timely complete the inspection (unless Landlord was the cause of the delay). If, after inspection and examination of such books and records, Tenant disputes the amounts of Operating Costs charged by Landlord, Tenant may, by written notice to Landlord, request an independent audit of such books and records. The independent audit of the books and records shall be conducted by a certified public accountant (“CPA”) acceptable to both Landlord and Tenant. If, within thirty (30) days after Landlord’s receipt of Tenant’s notice requesting an audit, Landlord and Tenant are unable to agree on the CPA to conduct such audit, then Landlord may designate a nationally recognized accounting firm not then employed by Landlord or Tenant to conduct such audit. The audit shall be limited to the determination of the amount of Operating Costs for the subject calendar year. If the audit discloses that the amount of Operating Costs billed to Tenant was incorrect, the appropriate party shall pay to the other party the deficiency or overpayment, as applicable. All costs and expenses of the audit shall be paid by Tenant unless the audit shows that Landlord overstated Operating Costs for the subject calendar year by more than five percent (5%), in which case Landlord shall pay all costs and expenses of the audit (not to exceed Tenant (JR) Landlord (JC) $10,000.002,000.00). Tenant and Tenant’s representatives shall keep any information gained from such audit confidential and shall not disclose it to any other party. The exercise by Tenant of its audit rights hereunder shall not relieve Tenant of its obligation to timely pay all sums due hereunder, including, without limitation, the disputed Operating Costs.
Appears in 1 contract
Tenant’s Right to Audit. The annual Statement Tenant shall have the right to inspect records of Landlord which are reasonably necessary for Tenant to conduct its review of Operating Costs Expenses for the preceding year period as to which the statement described in Section 3.03(b) above is rendered. Any such inspection shall be provided by Landlord on or before April 30th of each subject to the following conditions: (i) only one (1) such inspection may be performed in any calendar year after the Base Year of the Lease term. Within ninety year, (90ii) days after receipt of the Statement, Tenant shall be entitled, upon provide Landlord with at least ten (10) business days prior written notice of such inspection, (“Inspection Notice”iii) and during normal business hours, at Landlord’s office or any such other place as Landlord shall reasonably designate, to inspect and examine those books and records of Landlord relating to the determination of Operating Costs for only the immediately preceding calendar year. Any third party engaged by Tenant to inspect or examine the books and records inspection shall be performed on a non- contingency basis, (iv) any such inspection shall be conducted either (a) at the office reasonably designated by Landlord and shall be conducted during usual business hours or (b) by Landlord providing the applicable documentation to Tenant via an electronic portal such as Dropbox, (v) any such inspection shall be at the sole cost and expense of Tenant except as set forth below, (vi) in no event shall Tenant’s rights hereunder relieve Tenant of its obligation to pay all amounts due as and when provided in this Lease, or (vii) Tenant agrees that it will not disclose, but will keep in strict confidence, the information furnished to Tenant by Landlord, but nothing herein shall prohibit Tenant from making such disclosures as reasonably necessary to conduct such inspection to Tenant’s employees, agents, attorneys, and accountants. In the event Landlord disputes the results of Tenant’s inspection, and the parties cannot, in good faith, mutually agree upon the actual applicable charges, such matter shall be submitted to an independent certified public accountant from a nationally or regionally recognized accounting firm and such accountant shall not be compensated on a contingency fee or similar basis. Should Tenant elect to inspect such records, Tenant’s inspection shall be completed and the results thereof submitted to Landlord no later than two (2) months after Tenant’s notification to Landlord of its intent to inspect Landlord’s books and records. Tenant shall be deemed to have waived its right to inspect Landlord’s books and records if Tenant fails to timely deliver the Inspection Notice, or fails to timely complete the inspection (unless Landlord was the cause of the delay). If, after inspection and examination of such books and records, Tenant disputes the amounts of Operating Costs charged by Landlord, Tenant may, by written notice to Landlord, request an independent audit of such books and records. The independent audit of the books and records shall be conducted by a certified public accountant (“CPA”) mutually acceptable to both Landlord and Tenant, whose determination of the actual charges shall be binding. IfThe cost of such independent audit shall be borne by the party whose determination of the Operating Expenses was furthest from the determination made by the independent auditor. Following the final resolution of Tenant’s inspection, Tenant shall pay to Landlord or Landlord shall credit Tenant’s account, as the case may be, within thirty (30) days after Landlord’s receipt of the final resolution, the amount of any excess or deficiency. If the final resolution of such audit determines that Landlord overcharged Tenant by more than ten percent (10%), Landlord shall reimburse the costs of Tenant’s notice requesting audit in an audit, Landlord and Tenant are unable to agree on the CPA to conduct such audit, then Landlord may designate a nationally recognized accounting firm not then employed by Landlord or Tenant to conduct such audit. The audit shall be limited to the determination of the amount of Operating Costs for the subject calendar year. If the audit discloses that the amount of Operating Costs billed to Tenant was incorrect, the appropriate party shall pay to the other party the deficiency or overpayment, as applicable. All costs and expenses of the audit shall be paid by Tenant unless the audit shows that Landlord overstated Operating Costs for the subject calendar year by more than five percent (5%), in which case Landlord shall pay all costs and expenses of the audit (not to exceed $10,000.00)5,000.00. If Tenant does not request and perform such inspection prior to the one hundred twentieth (120th) day after the date on which Tenant has received the applicable statement of Annual Rent Adjustment, Tenant’s representatives 's rights to contest such charges shall keep any information gained from such audit confidential and shall not disclose it to any other party. The exercise by Tenant of its audit rights hereunder shall not relieve Tenant of its obligation to timely pay all sums due hereunder, including, without limitation, the disputed Operating Costsbe deemed waived.
Appears in 1 contract
Samples: Lease (Taysha Gene Therapies, Inc.)
Tenant’s Right to Audit. The annual If Tenant wishes to audit Landlord’s Statement, Tenant shall give Landlord written notice of such dispute within three hundred sixty-five (365) days after Xxxxxx’s receipt of Landlord’s Statement. If Tenant does not give Landlord such notice within such time, Tenant shall have waived its right to audit or otherwise dispute Landlord’s Statement. If Tenant has provided such audit notice within such three hundred sixty-five (365) 1005628.07/SF 375170-00002/11-24-16/mrm/mrm -19- day period after Tenant’s receipt of Landlord’s Statement of Operating Costs for a particular year, Tenant shall have the preceding year right to cause an independent certified public accountant or reputable lease audit specialist designated by Tenant, to be paid on an hourly and not a contingent fee basis, to audit such Landlord’s Statement subject to the following: (i) Tenant must actually begin such audit within sixty (60) days after the notice from Tenant to Landlord advising Landlord that Tenant will require an audit (provided that such 30-day period within which the audit must be commenced shall be provided extended by Landlord on or before April 30th the length of each calendar year after any delay in the Base Year commencement of the Lease term. Within audit that is caused by Landlord) and (ii) Tenant shall diligently pursue such audit to completion as quickly as reasonably possible (and shall in any event complete such audit within ninety (90) days after receipt the date such audit was commenced (provided that such 90-day period within which the audit must be completed shall be extended by the length of any delay in the completion of the Statement, Tenant shall be entitled, upon ten (10) days prior written notice (“Inspection Notice”) and during normal business hoursaudit that is caused by Landlord)). Xxxxxxxx agrees to make available to Xxxxxx’s auditors, at Landlord’s office (or Landlord’s property manager’s office) where such other place as Landlord shall reasonably designaterecords are kept, to inspect at reasonable times and examine those books and records for a reasonable period of Landlord relating to the determination of Operating Costs for only the immediately preceding calendar year. Any third party engaged by Tenant to inspect or examine time, the books and records shall be a certified public accountant from a nationally or regionally recognized accounting firm relevant to the audit for review and copying, but such accountant shall books and records may not be compensated on a contingency fee or similar basis. Should Tenant elect to inspect such records, Tenantremoved from Xxxxxxxx’s inspection shall be completed and the results thereof submitted to Landlord no later than two (2) months after Tenant’s notification to Landlord of its intent to inspect Landlord’s books and recordsoffices. Tenant shall be deemed to have waived its right to inspect bear all costs of such audit, including Landlord’s books actual copying costs and records personnel costs, if any incurred in connection with such audit (provided that, prior to incurring any personnel costs in connection with any such audit, Landlord shall advise Tenant fails of Landlord’s anticipated personnel costs so that Tenant may, at Tenant’s option, modify Tenant’s activities with regard to timely deliver such audit in order to preclude the Inspection Notice, or fails need for Landlord to timely complete the inspection (unless Landlord was the cause of the delayincur such personnel costs). If, after inspection and examination If following Xxxxxx’s review of such books and recordsaudit, Tenant disputes any amounts set forth in Landlord’s Statement, Landlord and Tenant shall endeavor in good faith to resolve such dispute. If Landlord and Tenant do not reach agreement within thirty (30) days after the completion of Tenant’s review of such audit, and if the amount in dispute exceeds $25,000, then either Landlord or Tenant may submit the matter to an independent, third party accountant, with experience in reviewing expenses for commercial office projects, mutually and reasonably agreed upon by Landlord and Tenant (the “Neutral Accountant”), to make a final binding determination of the amounts of Operating Costs charged owed by Tenant under the applicable Landlord’s Statement, Tenant may, by written notice to Landlord, request an independent audit and the decisions of such books and records. The independent audit of the books and records Neutral Accountant shall be conducted by a certified public accountant (“CPA”) acceptable to both binding on Landlord and Tenant. IfIf Landlord and Tenant agree, or the Neutral Accountant determines, that there was an aggregate overstatement of Operating Expenses of four (4%) or more (or, in the absence of such agreement, such overstatement is confirmed by a court of competent jurisdiction or such other dispute resolution mechanism as to which the parties mutually agree in writing), then Landlord shall bear all costs of the audit. If the agreed or confirmed audit shows an underpayment of Operating Expenses by Xxxxxx, Tenant shall pay to Landlord, within thirty (30) days after the audit is agreed to or confirmed, the amount owed to Landlord, and, if the agreed or confirmed audit shows an overpayment of Operating Expenses by Xxxxxx, Landlord shall reimburse Tenant for such overpayment within thirty (30) days after the audit is agreed to or confirmed. Notwithstanding anything to the contrary set forth above, Xxxxxx’s receipt audit rights under this Paragraph 7.g. shall be conditioned upon (i) there not being an Event of Tenant’s notice requesting an Default in effect, and (ii) Tenant executing, prior to the commencement of the audit, Landlord and Tenant are unable to agree on the CPA to conduct such audit, then Landlord may designate a nationally recognized accounting firm not then employed by Landlord or Tenant to conduct such audit. The audit shall be limited to the determination of the amount of Operating Costs for the subject calendar year. If the audit discloses that the amount of Operating Costs billed to Tenant was incorrect, the appropriate party shall pay to the other party the deficiency or overpayment, as applicable. All costs and expenses of the audit shall be paid by Tenant unless the audit shows that Landlord overstated Operating Costs for the subject calendar year by more than five percent (5%), commercially reasonable confidentiality agreement in which case Landlord Tenant shall pay all costs agree to keep confidential, and expenses of the audit (not to exceed $10,000.00). Tenant and Tenant’s representatives shall keep any information gained from such audit confidential and shall not disclose it to any other party. The exercise by Tenant of party (other than Tenant’s affiliates and its audit rights hereunder shall not relieve Tenant of its obligation and their officers, directors, employees and representatives who have a reasonable need to timely pay all sums due hereunder, including, without limitationknow such results), the disputed Operating Costs.results of any such audit or any action taken by Landlord in response thereto. 1005628.07/SF 375170-00002/11-24-16/mrm/mrm -20-
Appears in 1 contract
Tenant’s Right to Audit. The annual Statement of Operating Costs for Tenant shall have a right, at Tenant’s sole cost and expense, to audit Landlord’s Final Expense Amount upon the preceding year following terms and conditions. Tenant shall be provided by notify Landlord on or before April 30th of each calendar year after the Base Year in writing that it is exercising its right to audit within 90 days following delivery of the Lease termFinal Expense Amount, indicating in such notice with reasonable specificity those cost components of the Final Expense Amount to be subject to audit. Within ninety The audit shall take place at Landlord’s regional offices or, at Landlord’s option, the Building, at a time mutually convenient to Landlord and Tenant (90) but not later than 60 days after receipt of Tenant’s notice to audit). Except as Landlord may consent in writing, the Statement, Tenant audit shall be entitled, upon ten (10) completed within 10 days prior written notice (“Inspection Notice”) and during normal business hours, at after commencement. No copying of Landlord’s office books or records will be allowed. The audit may be accomplished by either Tenant’s own employees with accounting experience reasonably sufficient to conduct such other place as Landlord shall reasonably designatereview, to inspect and examine those books and records of Landlord relating to the determination of Operating Costs for only the immediately preceding calendar year. Any third party engaged by Tenant to inspect or examine the books and records shall be a certified public accountant from a nationally or regionally recognized public accounting firm mutually acceptable to Landlord and such accountant shall not be compensated Tenant that is engaged on either a contingency fee fixed price or similar hourly basis. Should Tenant elect Under no circumstances shall Landlord be required to inspect such records, Tenant’s inspection shall be completed and consent to an accounting firm that is also a tenant of Landlord (or any Landlord affiliate) in the results thereof submitted to Landlord no later than two (2) months after Tenant’s notification to Landlord of its intent to inspect Landlord’s books and recordsBuilding or any building in the city or metropolitan area in which the Building is located. The records reviewed by Tenant shall be deemed treated as confidential and prior to have waived its right commencing the audit, Tenant and any other person which may perform such audit for Tenant, shall execute a Confidentiality Agreement in a form reasonably acceptable to inspect Landlord’s books and records if Tenant fails to timely deliver the Inspection Notice, or fails to timely complete the inspection (unless Landlord was the cause . A copy of the delay). If, after inspection and examination of such books and records, Tenant disputes the amounts of Operating Costs charged by Landlord, Tenant may, by written notice to Landlord, request an independent audit of such books and records. The independent audit of the books and records shall be conducted by a certified public accountant (“CPA”) acceptable to both Landlord and Tenant. If, within thirty (30) days after Landlord’s receipt of Tenant’s notice requesting an audit, Landlord and Tenant are unable to agree on the CPA to conduct such audit, then Landlord may designate a nationally recognized accounting firm not then employed by Landlord or Tenant to conduct such audit. The audit shall be limited to the determination of the amount of Operating Costs for the subject calendar year. If the audit discloses that the amount of Operating Costs billed to Tenant was incorrect, the appropriate party shall pay to the other party the deficiency or overpayment, as applicable. All costs and expenses results of the audit shall be paid by delivered to Landlord within 30 days after the completion of the audit. If Landlord and Tenant unless determine that the audit shows that Landlord overstated Operating Costs Final Expense Amount for the subject calendar year by more Calendar Year is less than five percent (5%)reported, Landlord shall give Tenant a credit in the amount of the overpayment toward Tenant’s next monthly payment of Basic Costs, or, in which case the event the Lease has expired or terminated and no monetary Event of Default exists, Landlord shall pay all costs Tenant the total amount of such overpayment within 30 days. If Landlord and expenses Tenant determine that the Final Expense Amount for the Calendar Year is more than reported, Tenant shall pay Landlord the amount of any underpayment within 30 days. Failure by Tenant to timely request an audit, or to timely deliver to Landlord the results of the audit, or to follow any of the procedures set forth in this Section 4.4 is deemed a waiver of the applicable audit (right and any right to contest the Final Expense Amount for the applicable Calendar Year and is deemed acceptance of the Final Expense Amount for the applicable Calendar Year. Any audit review by Tenant shall not postpone or alter the liability and obligation of Tenant to exceed $10,000.00)pay any Rent due under the terms of the Lease. Tenant and Tenant’s representatives shall keep any information gained from such audit confidential and shall not disclose it be entitled to conduct such an audit if any other partymonetary Event of Default exists under this Lease. The exercise by No subtenant shall have any right to conduct an audit except for a permitted assignee or sublessee under Article IX of the Lease occupying the entire Premises and no assignee or sublessee shall conduct an audit for any period during which such assignee or sublessee was not in possession of the Premises or for any period in which Tenant of its audit rights hereunder shall not relieve Tenant of its obligation to timely pay all sums due hereunder, including, without limitation, the disputed Operating Costshas conducted an audit.
Appears in 1 contract
Samples: Lease (Drugstore Com Inc)
Tenant’s Right to Audit. The annual Statement of Operating Costs for In the preceding year shall be provided by Landlord on or before April 30th of each calendar year after the Base Year of the Lease term. Within event that within ninety (90) ----------------------- days after Tenant's receipt of the StatementStatement (as that term is hereinafter defined) for the prior calendar year, Tenant reasonably believes that certain of the Operating Expenses charged by Landlord include costs that are not properly included within the term "Operating Expenses" or that Landlord has erred in calculating same, Tenant shall be entitled, upon ten (10) days prior written notice (“Inspection Notice”) and during normal business hours, at have the right to audit Landlord’s office or such other place as Landlord shall reasonably designate, to inspect and examine those 's books and records in accordance with this paragraph. Tenant shall exercise such audit right by providing Landlord with a written notice of Landlord relating Tenant's exercise of such audit right within such 90-day period and a statement enumerating reasonably detailed reasons for Tenant's objections to the determination Statement issued by Landlord (the "Audit Notice"). Upon the receipt by Landlord of Operating Costs for only an Audit Notice, Landlord shall instruct its property manager at the immediately preceding calendar yearBuilding to meet with a designated employee of Tenant (the "Tenant Representative") to discuss the objections set forth in the Audit Notice. Any third party engaged by Landlord shall provide the Tenant Representative with reasonable access to inspect or examine the Landlord's books and records shall be a certified public accountant from a nationally or regionally recognized accounting firm and such accountant shall not be compensated on a contingency fee or similar basis. Should at the Building relating to Operating Expenses for the calendar year in question in order to attempt to resolve the issues raised by Tenant elect to inspect such records, Tenant’s inspection shall be completed and in the results thereof submitted to Landlord no later than two (2) months after Tenant’s notification to Landlord of its intent to inspect Landlord’s books and records. Tenant shall be deemed to have waived its right to inspect Landlord’s books and records if Tenant fails to timely deliver the Inspection Audit Notice, or fails to timely complete the inspection (unless Landlord was the cause of the delay). If, after inspection and examination of such books and records, Tenant disputes the amounts of Operating Costs charged by Landlord, Tenant may, by written notice to Landlord, request an independent audit of such books and records. The independent audit of the books and records shall be conducted by a certified public accountant (“CPA”) acceptable to both Landlord and Tenant. If, within thirty (30) days after Landlord’s 's receipt of Tenant’s notice requesting an auditthe Audit Notice, Landlord and Tenant are unable to agree on the CPA to conduct such auditresolve Tenant's objections, then not later than ten (10) days after the expiration of such 30-day period, Tenant shall notify Landlord may designate a nationally recognized if Tenant wishes to employ an independent, reputable certified public accounting firm charging for its services on an hourly rate or fixed fee (and not then employed by Landlord or Tenant a contingent fee) basis ("Acceptable Accountants") to conduct such auditinspect and audit Landlord's books and records for the Building relating to the objections raised in Tenant's statement. The Such audit shall be limited to the a determination of whether or not Landlord calculated the amount Operating Expenses in accordance with the terms and conditions of Operating Costs this Lease and normal and customary accounting methods used by owners of similar buildings in the area for the subject calendar year. If the audit discloses that the amount of Operating Costs billed to Tenant was incorrect, the appropriate party shall pay to the other party the deficiency or overpayment, as applicablecalculating Tenant's Expense Increase. All costs and expenses of the any such audit shall be paid by Tenant. Any audit performed pursuant to the terms of this section shall be conducted only by the Acceptable Accountants at the offices of Landlord's property manager at the Building. Notwithstanding anything contained herein to the contrary, Tenant unless shall be entitled to exercise its audit right pursuant to this section only in strict accordance with the audit shows that Landlord overstated Operating Costs for the subject foregoing procedures no more often than once per calendar year and each such audit shall relate only to the calendar year most recently ended. In the event that Tenant fails to notify Landlord within the foregoing 90-day period that Tenant objects to the Statement, then Tenant's right to audit such year's Statement shall be null and void. In the event such inspection or audit by more than Tenant shall show that the Operating Expenses for any Lease Year shall have been overstated by five percent (5%)) or more, Landlord agrees to pay the reasonable out-of-pocket costs of any audit conducted by Tenant's independent certified public accountant (not to exceed, in which case any event, the lesser of (i) Five Thousand Dollars ($5,000.00) or (ii) the total amount of the overstatement) and to refund to Tenant, within thirty (30) days of the date of receipt by Landlord of a copy of Tenant's audit, all or any portion of the overpayment paid by Tenant as Additional Rent for the Lease Year in question. In the event such inspection or audit by Tenant shall show that the Operating Expenses for any Lease Year have been understated, then Tenant shall pay all costs and expenses to Landlord, within thirty (30) days of receipt by Tenant of the audit (not results, such underpayment of Additional Rent. In the event that Landlord disputes that the results of Tenant's audit or inspection accurately reflects the terms and conditions of this Lease and the application of such terms and conditions to exceed $10,000.00)the Operating Expenses for such Lease Year, Landlord shall have the right to submit such dispute to the American Arbitration Association for binding arbitration on an expedited basis. Landlord and Tenant and Tenant’s representatives shall keep any information gained from such audit confidential and shall not disclose it agree to any other party. The exercise by Tenant comply with the foregoing provisions regarding refund/payment of its audit rights hereunder shall not relieve Tenant of its obligation to timely pay all the sums due hereunder, including, without limitation, after the disputed Operating Costsarbitration decision is rendered.
Appears in 1 contract
Samples: Lease Agreement (Wells Real Estate Investment Trust Inc)
Tenant’s Right to Audit. The annual Statement of Operating Costs Tenant shall pay to Landlord all amounts ----------------------- payable pursuant to Sections 7.4 and 7.5 herein without off-set or deduction within the time periods provided for in each respective Section notwithstanding that Tenant may object to Landlord's statement rendered pursuant thereto. In the preceding year event Tenant shall be provided by Landlord on or before April 30th of each calendar year after dispute the Base Year of amount set forth in Landlord's statement as described in Section 7.5 herein and Tenant pays the Lease term. Within ninety (90) days after receipt of the Statementfull amount set forth in Landlord's reconciliation statement then, Tenant shall be entitledhave the right, upon ten not later than sixty (1060) days prior written notice (“Inspection Notice”) and during normal business hours, at Landlord’s office or following receipt of such other place as Landlord shall reasonably designatestatement, to inspect and examine those cause Landlord's books and records of Landlord relating with respect to the determination of Operating Costs for only the immediately preceding calendar year. Any third party engaged Calendar Year to be audited by Tenant an independent Certified Public Accountant mutually acceptable to inspect or examine the books Landlord and records shall be a certified public accountant from a nationally or regionally recognized accounting firm Tenant, and such accountant who shall not be compensated on a contingency fee or similar basis. Should Tenant elect to inspect such records, Tenant’s inspection Such audit shall be completed and the results thereof submitted to Landlord no later occur upon not less than two twenty (220) months after Tenant’s notification to Landlord of its intent to inspect Landlord’s books and records. Tenant shall be deemed to have waived its right to inspect Landlord’s books and records if Tenant fails to timely deliver the Inspection Notice, or fails to timely complete the inspection (unless Landlord was the cause of the delay). If, after inspection and examination of such books and records, Tenant disputes the amounts of Operating Costs charged by Landlord, Tenant may, by days prior written notice to Landlord, request an independent audit at Landlord's place of such books and records. The independent audit business or the actual location of the Landlord's books and records if different from Landlord's place of business, during Landlord's normal business hours. The amounts payable under this Section by Landlord to Tenant or by Tenant to Landlord, as the case may be, shall be conducted appropriately adjusted on the basis of such audit. If such audit discloses a liability for further refund by a certified public accountant Landlord to Tenant in excess of five percent (“CPA”5%) acceptable to both of the payments previously made by Tenant for such Calendar Year, the actual out-of-pocket cost of such audit incurred by Tenant shall be borne by Landlord and Tenant. If, paid within thirty (30) days after of demand from Tenant subject to Landlord’s receipt 's right to dispute the results of Tenant’s notice requesting an audit's audit as hereinafter described: otherwise, Landlord and Tenant are unable to agree on the CPA to conduct cost of such audit, then Landlord may designate a nationally recognized accounting firm not then employed by Landlord or Tenant to conduct such audit. The audit shall be limited to borne by Tenant. Notwithstanding the determination of the amount of Operating Costs foregoing, in no event shall Landlord's cost for the subject calendar yearsuch audit exceed Three Thousand Dollars ($3,000). If Tenant shall not request an audit in accordance with the audit discloses that the amount provisions of this Section within sixty (60) days of receipt of Landlord's reconciliation statement of actual Operating Costs billed to Tenant was incorrectExpenses, the appropriate party shall pay to the other party the deficiency or overpayment, as applicable. All costs and expenses of the audit such statement shall be paid by Tenant unless the audit shows that conclusive and binding upon Landlord overstated Operating Costs for the subject calendar year by more than five percent (5%), in which case Landlord shall pay all costs and expenses of the audit (not to exceed $10,000.00). Tenant and Tenant’s representatives shall keep any information gained from such audit confidential and shall not disclose it to any other party. The exercise by Tenant of its audit rights hereunder shall not relieve Tenant of its obligation to timely pay all sums due hereunder, including, without limitation, the disputed Operating Costs.
Appears in 1 contract
Samples: Disturbance and Attornment Agreement (Mantech International Corp)
Tenant’s Right to Audit. The annual Statement of Operating Costs for Landlord shall keep detailed and accurate books and records (including financial records) in connection with the preceding year shall be provided by Landlord on or before April 30th of each calendar year after the Base Year construction of the Lease termTenant Improvements, and in accordance with customary standards for similar projects. Within ninety (90) days after receipt Promptly following Substantial Completion of the StatementTenant Improvements, Landlord shall provide to Tenant a schedule together with reasonable back-up information requested by Xxxxxx (inclusive of all invoices, payment receipts to the extent the same were actually provided to Contractor and mechanics’ lien releases), showing the calculation of the actual Landlord Cost and Tenant or its architects or other agents shall be entitled, upon ten (10) days prior written notice (“Inspection Notice”) and during normal business hourshave the right, at LandlordTenant’s office or such other place as Landlord shall reasonably designatesole cost and expense, to inspect and examine those books and records of Landlord relating to the determination of Operating Costs for only the immediately preceding calendar year. Any third party engaged by Tenant to inspect or examine the books and records shall be a certified public accountant from a nationally or regionally recognized accounting firm and such accountant shall not be compensated on a contingency fee or similar basis. Should Tenant elect to inspect such records, Tenant’s inspection shall be completed and the results thereof submitted to Landlord no later than two (2) months after Tenant’s notification to Landlord of its intent to inspect Landlord’s books and records. Tenant shall be deemed to have waived its right to inspect audit Landlord’s books and records if relating thereto, so long as Tenant fails to timely deliver requests such inspection or audit within sixty (60) days after receipt from Landlord of Landlord’s calculation of Landlord Costs. In the Inspection Notice, or fails to timely complete the event that either Landlord’s calculation of Landlord Costs and/or Tenant’s inspection (unless Landlord was the cause of the delay). If, after inspection and examination of such books and records, Tenant disputes the amounts of Operating Costs charged by Landlord, Tenant may, by written notice to Landlord, request an independent and/or audit of such books and records. The independent audit of the Landlord’s books and records determines that the Landlord Costs are less than the Estimated Construction Cost and as a result, Tenant has actually overpaid the amount of Additional Costs, then (1) to the extent Tenant has exercised its right to increase the Tenant Improvement Allowance by the TI Allowance Increase Amount, monthly Base Rent payable by Tenant throughout the initial Lease Term shall be conducted decreased by an amount sufficient to fully amortize the actual amount of the TI Allowance Increase Amount exercised by Tenant pursuant to Section 3.1 of this Tenant Work Letter above that is in excess of the amount of the Landlord Costs, throughout the initial Lease Term based upon equal monthly payments of principal and interest, with interest imputed on the outstanding principal balance at the rate of six point five percent (6.5%) per annum and the parties shall enter into a certified public accountant amendment of this Lease to reflect such decrease in monthly Base Rent and (“CPA”2) acceptable Landlord shall promptly refund any remaining balance of the overpayment by Tenant of Additional Costs in excess of the Landlord Costs (after deducting any amounts reimbursed or otherwise credited to both Landlord and TenantTenant pursuant to clause (1). If, within thirty (30) days after Landlord’s receipt of Tenant’s notice requesting an audit, Landlord and Tenant If the parties are unable to agree on upon an adjusted monthly Base Rent, the CPA to conduct parties agree that arbitration shall constitute the exclusive remedy for settlement of any such audit, then Landlord may designate a nationally recognized accounting firm not then employed by dispute. If either Landlord or Tenant desires to conduct exercise its right pursuant to this Section 4.4, such audit. The audit shall be limited to the determination of the amount of Operating Costs for the subject calendar year. If the audit discloses that the amount of Operating Costs billed to Tenant was incorrect, the appropriate party shall pay deliver written demand for arbitration to the other party party, setting out the deficiency basis for the controversy. Any arbitration proceeding undertaken pursuant to this shall be held in front of a retired judge working with JAMS or overpaymentanother similar group, as applicable. All costs and expenses or if no such groups exists, a single neutral arbitrator shall be chosen by mutual agreement or, if the parties fail to agree, by the presiding judge of the audit San Diego Superior Court upon ex parte application. The arbitration shall take place in San Diego, California. The decision of the arbitrator shall be paid by Tenant unless conclusive, final and binding upon Landlord and Xxxxxx. Judgment upon the audit shows that Landlord overstated Operating Costs for the subject calendar year by more than five percent (5%), in which case Landlord shall pay all costs and expenses decision of the audit (not to exceed $10,000.00). Tenant and Tenant’s representatives shall keep arbitrator may be entered in any information gained from such audit confidential and shall not disclose it to any other partycourt of competent jurisdiction. The exercise cost of such arbitration (including reasonable attorneys’ fees incurred therein) shall be borne by Tenant of its audit rights hereunder shall not relieve Tenant of its obligation to timely pay all sums due hereunder, including, without limitation, the disputed Operating Costslosing party as determined by the arbitrator.
Appears in 1 contract
Samples: Subordination Agreement (GenMark Diagnostics, Inc.)
Tenant’s Right to Audit. The annual Statement Tenant shall have a right, at Tenant’s sole cost and expense, to audit not more than once per Calendar Year Landlord’s Operating Expense Rental reconciliation statement upon the following terms and conditions. Tenant shall notify Landlord in writing that it is exercising its right to audit within 90 days following delivery of the Operating Expense Rental reconciliation statement, indicating in such notice with reasonable specificity those cost components of Operating Costs for Expense Rental to be subject to audit. The audit shall take place at Landlord’s regional offices or, at Landlord’s option, the preceding year shall be provided by Project, at a time mutually convenient to Landlord on or before April 30th of each calendar year after the Base Year of the Lease term. Within ninety and Tenant (90) but not later than 60 days after receipt of Tenant’s notice to audit). Except as Landlord may consent in writing, the Statement, Tenant audit shall be entitled, upon ten (10) completed within 45 days prior written notice (“Inspection Notice”) and during normal business hours, at after commencement. No copying of Landlord’s office books or records will be allowed. The audit may be accomplished by either Tenant’s own employees with accounting experience reasonably sufficient to conduct such other place as Landlord shall reasonably designatereview, to inspect and examine those books and records of Landlord relating to the determination of Operating Costs for only the immediately preceding calendar year. Any third party engaged by Tenant to inspect or examine the books and records shall be a certified public accountant from a nationally or regionally recognized public accounting firm mutually acceptable to Landlord and such accountant shall Tenant that is engaged on either a fixed price or hourly basis, and is not be compensated on a contingency fee or similar bonus basis. Should Under no circumstances shall Landlord be required to consent to an accounting firm that is also a tenant of Landlord (or any Landlord affiliate) in the Project. The records reviewed by Tenant elect shall be treated as confidential and prior to inspect commencing the audit, Tenant and any other person which may perform such recordsaudit for Tenant, shall execute a Confidentiality Agreement in a form reasonably acceptable to Landlord. A copy of the results of the audit shall be delivered to Landlord within 30 days after the completion of the audit. If Landlord and Tenant determine that Operating Expense Rental for the Calendar Years audited is less than reported, Landlord shall give Tenant a credit in the amount of the overpayment toward Tenant’s next monthly payment of estimated Operating Expense Rental, or, in the event this Lease has expired or terminated and no Event of Default exists, Landlord shall pay Tenant the total amount of such overpayment within 30 days. If Landlord and Tenant determine that Operating Expense Rental for the Calendar Years audited is more than reported, Tenant shall pay Landlord the amount of any underpayment within 30 days. Failure by Tenant to timely request an audit, or to timely deliver to Landlord the results of the audit, or to follow any of the procedures set forth in this Section 6.3 is deemed a waiver of the applicable audit right and any right to contest Operating Expense Rental for the applicable Calendar Year and, except as expressly provided in this Section 6.3 with respect to the 2020 Audit (as defined in this Section 6.3) and any Prior Year Audits (as defined in this Section 6.3), is deemed acceptance of the Operating Expense Rental contained in the Operating Expense Rental reconciliation statement for the applicable Calendar Year. Provided that 2020 Audit is completed as contemplated herein, as part of its audit, Tenant’s inspection shall be completed and the results thereof submitted to Landlord no later than two (2) months after Tenant’s notification to Landlord of its intent to inspect Landlord’s books and records. Tenant shall be deemed to have waived its right to inspect auditors may review Landlord’s books and records if for the Calendar Year connected to the most current reconciliation statement and the Calendar Year prior thereto (“Prior Year Audit”), unless Tenant fails previously audited such prior Calendar Year, in which case Tenant shall not have the right to timely deliver the Inspection Notice, or fails to timely complete the inspection (unless Landlord was the cause of the delay). If, after inspection and examination of such books and records, Tenant disputes the amounts of Operating Costs charged by Landlord, Tenant may, by written notice to Landlord, request an independent conduct another audit of such books and recordsprior Calendar Year. The independent audit of the Landlord agrees to maintain at all times its books and records for no less than the then immediately preceding two (2) year period. Any audit review by Tenant shall be conducted by a certified public accountant (“CPA”) acceptable not postpone or alter the liability and obligation of Tenant to both Landlord and Tenantpay any Operating Expense Rental due under the terms of this Lease. If, within thirty (30) days after Landlord’s receipt If an Event of Tenant’s notice requesting Default exists at the time that Tenant requests an audit, Tenant must cure the Event of Default as a condition to conducting the audit, but shall still have 45 days to complete the audit upon commencement of the audit. No assignee or subtenant shall have any right to conduct an audit except for a permitted assignee or subtenant under Article X of this Lease occupying the entire Premises and no assignee or subtenant shall conduct an audit for any period during which such assignee or sublessee was not in possession of the Premises or for any period in which Tenant has conducted an audit. Landlord and Tenant are unable agree that in order to agree on confirm the CPA to conduct such audit, then Landlord may designate a nationally recognized accounting firm not then employed by Landlord or Tenant to conduct such audit. The audit shall be limited proper allocation of Operating Expenses for the Building and the Project attributable to the determination Premises, Tenant will audit Landlord’s 2020 Operating Expense Rental (the “2020 Audit”) within 90 days following receipt by Tenant of the amount 2020 Operating Expense Rental reconciliation statement pursuant to the terms of this Section 6.3. Tenant and Landlord will equally split the cost of the 2020 Audit. For any audit following the 2020 Audit, If Landlord and Tenant finally determine as a result of any such audit by Tenant of Landlord’s books and records that Tenant’s actual Operating Costs Expense Rental for the subject calendar year. If Calendar Year audited is less than the audit discloses that the amount of Operating Costs billed Expense Rental charged to Tenant was incorrect, the appropriate party shall pay to the other party the deficiency or overpayment, as applicable. All costs and expenses of the audit shall be paid by Tenant unless the audit shows that Landlord overstated Operating Costs for the subject calendar year such Calendar Year by more than five percent (5%), as substantiated, at Landlord’s option and expense, by a certified public accountant, then upon receipt of Tenant’s documented invoice, Landlord shall credit to Tenant’s next monthly payment of estimated Operating Expense Rental all reasonable out-of-pocket third party costs incurred by Tenant in performing the audit of such Calendar Year, which case amount shall not exceed $10,000.00, or if the Lease has expired or terminated, then Landlord shall pay all costs and expenses such amount to Tenant within 30 days after receipt of the audit (not to exceed $10,000.00). Tenant and Tenant’s representatives shall keep documented invoice, less any information gained from such audit confidential and shall not disclose it amounts applied in accordance with this Lease to any other party. The exercise by Tenant cure an existing Event of its audit rights hereunder shall not relieve Tenant of its obligation to timely pay all sums due hereunder, including, without limitation, the disputed Operating CostsDefault.
Appears in 1 contract
Samples: Work Agreement (McAfee Corp.)
Tenant’s Right to Audit. The annual Statement of Operating Costs Tenant shall pay to Landlord all amounts payable pursuant to Sections 7.4 and 7.5 herein without off-set or deduction within the time periods provided for in each respective Section notwithstanding that Tenant may object to Landlord's statement rendered pursuant thereto. In the preceding year event Tenant shall be provided by Landlord on or before April 30th of each calendar year after dispute the Base Year of the Lease term. Within ninety (90) days after receipt of the Statementamount set forth in Landlord's statement as described in Section 7.5 herein, Tenant shall be entitledhave the right, upon ten not later than sixty (1060) days prior written notice (“Inspection Notice”) and during normal business hours, at Landlord’s office or following receipt of such other place as Landlord shall reasonably designatestatement, to inspect and examine those cause Landlord's books and records of Landlord relating with respect to the determination preceding Calendar Year to be audited by an independent Certified Public Accounting firm from one of Operating Costs for only the immediately preceding calendar year"Big Six" (i.e., Arthxx Xxxexxxx & Xo. Any third party engaged by Tenant or similar firm) which is mutually acceptable to inspect or examine the books Landlord and records shall be a certified public accountant from a nationally or regionally recognized accounting firm Tenant, and such accountant who shall not be compensated on a contingency fee or similar basis. Should Tenant elect to inspect such records, Tenant’s inspection Such audit shall be completed and the results thereof submitted to Landlord no later occur upon not less than two twenty (220) months after Tenant’s notification to Landlord of its intent to inspect Landlord’s books and records. Tenant shall be deemed to have waived its right to inspect Landlord’s books and records if Tenant fails to timely deliver the Inspection Notice, or fails to timely complete the inspection (unless Landlord was the cause of the delay). If, after inspection and examination of such books and records, Tenant disputes the amounts of Operating Costs charged by Landlord, Tenant may, by days prior written notice to Landlord, request an independent audit at Landlord's place of such books and records. The independent audit business or the actual location of the Landlord's books and records if different from Landlord's place of business, during Landlord's normal business hours. The amounts payable under this Section by Landlord to Tenant or by Tenant to Landlord, as the case may be, shall be conducted appropriately adjusted on the basis of such audit and all such sums paid to Landlord by Tenant or credited against Additional Rent otherwise due by Tenant promptly upon the conclusion of such audit. If such audit discloses a certified public accountant liability for further refund by Landlord to Tenant in excess of six percent (“CPA”6%) acceptable to both of the payments previously made by Tenant for such Calendar Year, the actual out-of-pocket cost of such audit incurred by Tenant shall be borne by Landlord and Tenant. If, paid within thirty (30) days after Landlord’s receipt of demand from Tenant’s notice requesting an audit; otherwise, Landlord and Tenant are unable to agree on the CPA to conduct cost of such audit, then Landlord may designate a nationally recognized accounting firm not then employed by Landlord or Tenant to conduct such audit. The audit shall be limited borne by Tenant. If such audit discloses a liability for further refund by Landlord to Tenant of one percent (1%) or less or a liability for further payment by Tenant, then in that event the actual out-of-pocket cost to respond to the determination of the amount of Operating Costs for the subject calendar year. If the audit discloses that the amount of Operating Costs billed to Tenant was incorrect, the appropriate party shall pay to the other party the deficiency or overpayment, as applicable. All costs and expenses of the audit shall be paid incurred by Tenant unless the audit shows that Landlord overstated Operating Costs for the subject calendar year by more than five percent (5%), in which case Landlord shall pay all costs and expenses of the audit (not to exceed $10,000.00). 2,500 shall be borne by Tenant and Tenant’s representatives paid within thirty (30) days of demand from Landlord. Landlord and Tenant shall keep any information gained from each fully cooperate and instruct their respective staffs to fully cooperate with such audit confidential independent audit. The findings of the Big-Six firm shall be conclusive and binding on the parties hereto as it relates to the statement at issue. If Tenant shall not disclose it to any other party. The exercise by Tenant request an audit in accordance with the provisions of its audit rights hereunder this Section within sixty (60) days of receipt of Landlord's reconciliation statement of actual Operating Expenses, such statement shall not relieve Tenant of its obligation to timely pay all sums due hereunder, including, without limitation, the disputed Operating Costsbe conclusive and binding upon Landlord and Tenant.
Appears in 1 contract
Samples: Proxicom Inc
Tenant’s Right to Audit. The Tenant will have the right to inspect and audit Landlord’s books and records with respect to Operating Expenses covered by such annual Statement statement (an “Audit”), provided that Tenant provides Landlord 10 days’ prior notice of Operating Costs for the preceding year shall Tenant’s intention to conduct such Audit, which notice must be provided by delivered to Landlord on or before April 30th of each calendar year after the Base Year of the Lease term. Within ninety (90) date that is 90 days after Tenant’s receipt of the Statementapplicable annual statement (including an annual statement received after the expiration or earlier termination of the Term). In the event Tenant does not give Landlord notice of its election to conduct an Audit within such 90-day period, the terms and amounts set forth in such annual statement will be conclusive and final, and Tenant shall be entitled, upon ten (10) days prior written notice (“Inspection Notice”) and during normal business hours, at Landlord’s office have no further right to conduct an Audit with respect to such annual statement or such other place as Landlord shall reasonably designate, to inspect and examine those books and records of Landlord relating to the determination of Operating Costs for Expenses related thereto. Tenant may only the immediately preceding calendar year. Any third party engaged by Tenant to inspect or examine the books and records shall be use a certified public accountant from a nationally or regionally recognized private accounting firm and such accountant shall not be compensated retained on an hourly or fixed-fee basis or Tenant’s internal accounting staff to conduct an Audit; in no event may Tenant use any auditor paid on a contingency fee or similar result-based basis. Should If the conclusion of the Audit (which conclusion must be reasonably supported by the documentation reviewed in connection with the Audit) reveals that the amount charged by Landlord for Operating Expenses was greater than actual Operating Expenses, Landlord will credit against Rent next coming due after the completion of the Audit (or if the Term has expired, Landlord will pay to Tenant elect within 30 days after the completion of the Audit) the amount due to inspect Tenant based on such recordsdifference, Tenant’s inspection shall be completed and if such conclusion of the results thereof submitted Audit is that the amount charged by Landlord for Operating Expenses was less than actual Operating Expenses, Tenant will pay to Landlord no later than two (2) months the amount due from Tenant based on such difference within 30 days after Tenant’s notification to Landlord of its intent to inspect Landlord’s books and records. Tenant shall be deemed to have waived its right to inspect Landlord’s books and records if Tenant fails to timely deliver the Inspection Notice, or fails to timely complete the inspection (unless Landlord was the cause completion of the delay)Audit. If, after inspection and examination If the conclusion of such books and records, Tenant disputes the amounts of Operating Costs Audit reveals that the amount charged by Landlord, Tenant may, by written notice to Landlord, request an independent audit of such books and records. The independent audit Landlord for Operating Expenses was greater than 105% of the books actual Operating Expenses, Landlord will be responsible for its own costs and records shall be conducted expenses related to the Audit and will reimburse Tenant for the actual and reasonable costs charged by a certified public accountant (“CPA”) acceptable the accounting firm retained by Tenant, if any, to both Landlord conduct the Audit, excluding travel and Tenant. If, lodging expenses within thirty (30) 30 days after Landlord’s receipt of Tenant’s notice requesting request and evidence of such costs. A permitted assignee of Tenant’s interest in this Lease may conduct an auditAudit, Landlord and Tenant are unable but only with respect to agree on annual statements delivered after the CPA effective date of the applicable assignment of the Tenant’s interest in this Lease. No subtenant of the Premises will be permitted to conduct such audit, then Landlord may designate a nationally recognized accounting firm not then employed by Landlord or Tenant to conduct such audit. The audit shall be limited to the determination of the amount of Operating Costs for the subject calendar year. If the audit discloses that the amount of Operating Costs billed to Tenant was incorrect, the appropriate party shall pay to the other party the deficiency or overpayment, as applicable. All costs and expenses of the audit shall be paid by Tenant unless the audit shows that Landlord overstated Operating Costs for the subject calendar year by more than five percent (5%), in which case Landlord shall pay all costs and expenses of the audit (not to exceed $10,000.00). Tenant and Tenant’s representatives shall keep any information gained from such audit confidential and shall not disclose it to any other party. The exercise by Tenant of its audit rights hereunder shall not relieve Tenant of its obligation to timely pay all sums due hereunder, including, without limitation, the disputed Operating Costsan Audit.
Appears in 1 contract
Samples: Lease Agreement (Exelixis, Inc.)
Tenant’s Right to Audit. The annual Statement of Operating Costs for the preceding year shall be provided by Landlord on or before April 30th of each calendar year after the Base Year of the Lease term. Within ninety (90) days after receipt of the Statement, Tenant shall be entitled, upon ten (10) days prior written notice (“Inspection Notice”) and during normal business hoursTenant, at Landlord’s office or such other place as Landlord its expense, shall reasonably designatehave the right upon thirty (30) days’ advance written notice, to inspect and examine those books and records of Landlord relating to the determination of Operating Costs for only the immediately preceding calendar year. Any third party engaged by Tenant to inspect or examine the books and records shall be a certified public accountant from a nationally or regionally recognized accounting firm and such accountant shall not be compensated on a contingency fee or similar basis. Should Tenant elect to inspect such records, Tenant’s inspection shall be completed and the results thereof submitted to Landlord no later than two (2) months after Tenant’s notification to Landlord of its intent to inspect Landlord’s books and records. Tenant shall be deemed to have waived its right to inspect cause Landlord’s books and records if Tenant fails relating to timely deliver Operating Expenses and Real Estate Taxes for any year during the Inspection Notice, or fails Term to timely complete the inspection (unless Landlord was the cause of the delay). If, after inspection and examination of such books and records, Tenant disputes the amounts of Operating Costs charged be audited by Landlord, Tenant may, by written notice to Landlord, request an independent audit of such books and records. The independent audit of the books and records shall be conducted by a certified public accountant selected by Tenant. With respect to any such year, any such Notice to audit must be given no later than six (“CPA”6) months after the date of receipt of the Expense Statement from the Landlord for the year in question, and such audit shall take place at such location in the Washington, D.C. Metropolitan area as may be designated by Landlord at a time reasonably acceptable to both Landlord. Tenant shall pay all expenses incurred by Landlord and for such audit, including accountant fees. The results of the Tenant. If, ’s audit shall be provided to Landlord in writing within thirty (30) days after the conclusion of the audit. If Tenant’s audit reveals that Landlord’s calculation of Additional Rent, after year-end adjustment, is in error, Landlord shall have thirty (30) days to review said claim and if Landlord confirms that the calculation of Additional Rent is in error, then the amount required to correct such error shall be paid to the proper party within fifteen (15) days of billing, or applied to Tenants rental obligations provided, however, that if Landlord’s error in calculating Additional Rent is greater than ten percent (10%) of the actual Additional Rent owed by Tenant, then the audit shall be at Landlord’s expense and Landlord shall reimburse Tenant for said reasonable out of pocket auditing expense within fifteen (15) days of Landlord’s receipt of the results of Tenant’s notice requesting an audit, Landlord and Tenant are unable to agree on the CPA to conduct such audit, then Landlord may designate a nationally recognized accounting firm not then employed by Landlord or Tenant to conduct such audit. The audit shall be limited to the determination of the amount of Operating Costs for the subject calendar year. If the audit discloses that the amount of Operating Costs billed to Tenant was incorrect, the appropriate party shall pay to the other party the deficiency or overpayment, as applicable. All costs and expenses of the audit shall be paid by Tenant unless the audit shows that Landlord overstated Operating Costs for the subject calendar year by more than five percent (5%), in which case Landlord shall pay all costs and expenses of the audit (not to exceed $10,000.00). Tenant and Tenant’s representatives shall keep any information gained from such audit confidential and shall not disclose it to any other party. The exercise by Tenant of its audit rights hereunder shall not relieve Tenant of its obligation to timely pay all sums due hereunder, including, without limitation, the disputed Operating Costs.
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