Common use of Year-End Adjustments; Audits Clause in Contracts

Year-End Adjustments; Audits. If Landlord bills Tenant for the Property Operating Expenses (or any group of such expenses) on an estimated basis in accordance with the provisions of Paragraph 3.2(a)(iii) above, Landlord shall furnish to Tenant within three months following the end of the applicable calendar or fiscal year, as the case may be, a statement and reasonably sufficient back-up information setting forth (i) the amount of such expenses paid or incurred during the just ended calendar or fiscal year, as appropriate, and (ii) the amount that Tenant has paid to Landlord for credit against such expenses for such period. If Tenant shall have paid more than its obligation for such expenses for the stated period, Landlord shall, at its election, either (i) credit the amount of such overpayment toward the next ensuing payment or payments of Rent that would otherwise be due or (ii) refund in cash to Tenant the amount of such overpayment. If such year-end statement shall show that Tenant did not pay its obligation for such expenses in full, then Tenant shall pay to Landlord the amount of such underpayment within thirty (30) days from Landlord’s billing of same to Tenant. The provisions of this Paragraph shall survive the expiration or sooner termination of this Lease. In the event Tenant objects in writing to any such year-end statement within ninety (90) days after receipt of such statement, then Tenant shall have the right, during the six (6) month period following delivery of such statement, at Tenant’s sole cost (except in the case where Tenant shows Landlord overcharged by at least 5% in which case Landlord shall reimburse for this cost, to the extent reasonably an actually incurred by Tenant), to review in Landlord’s offices Landlord’s records relevant to such statement. Such review shall be subject to Landlord’s reasonable audit procedures and shall be performed only by Tenant’s internal audit team, an independent firm of certified public accountants or another party, in any case which firm or party is (a) reasonably acceptable to Landlord, (b) not compensated on a contingency fee basis or in any other manner which is dependent upon the results of such audit or inspection (and Tenant shall deliver the fee agreement or other similar evidence of such fee arrangement to Landlord upon request) and (c) agrees with Landlord in writing to maintain the results of such audit confidential. If, as of the date ninety (90) days after Tenant’s receipt of such year-end statement, Tenant shall not have objected thereto in writing, or if, during the six (6) month period following delivery of such statement, Tenant shall not have carried out a review of Landlord’s records, then such year-end statement shall be final and binding upon Landlord and Tenant, and Tenant shall have no further right to object to such statement. If Tenant timely delivers a written objection to a year-end statement and, within such six (6) month period, Tenant conducts an audit and delivers to Landlord a written statement specifying objections to such annual statement, then Tenant and Landlord shall meet to attempt to resolve such objection within ten (10) business days after delivery of the objection statement. If such objection is not resolved within such ten (10) business day period, then either party shall have the right, at any time within sixty (60) days after the expiration of such ten (10) business day period, to require that the dispute be submitted to binding arbitration under the rules of the American Arbitration Association. If neither Landlord nor Tenant commences an arbitration proceeding within such sixty (60) day period, then the year-end statement in question shall be final and binding on Landlord and Tenant. Notwithstanding that any such dispute remains unresolved, Tenant shall be obligated to pay Landlord all amounts payable in accordance with this Paragraph 3 (including any disputed amount). The audit and arbitration procedures set forth in this Paragraph 3.3 shall be Tenant’s exclusive remedy with respect to the calculation of the amount of Tenant’s obligations under Paragraph 3.2.

Year-End Adjustments; Audits. If Landlord bills shall have elected to xxxx Tenant for the Property Operating Expenses (or any group of such expenses) on an estimated basis in accordance with the provisions of Paragraph 3.2(a)(iii) above, Landlord shall furnish to Tenant within three months following the end of the applicable calendar or fiscal year, as the case may be, a statement and reasonably sufficient back-up information setting forth (i) the amount of such expenses paid or incurred recurred during the just ended calendar or fiscal year, as appropriate, and (ii) the amount that Tenant has paid to Landlord for credit against such expenses for such period. If Tenant shall have paid more than its obligation for such expenses for the stated period, Landlord shall, at its election, either (i) credit the amount of such overpayment toward the next ensuing payment or payments of Additional Rent that would otherwise be due or (ii) refund in cash to Tenant the amount of such overpayment. If such year-end statement shall show that Tenant did not pay its obligation for such expenses in full, then Tenant shall pay to Landlord the amount of such underpayment within thirty ten (3010) days from Landlord’s billing 's bluing of same to Tenant. The provisions of this Paragraph shall survive the expiration or sooner termination of this Lease. In the event Tenant objects in writing to any such year-end statement or other billing for Additional Rent within ninety sixty (9060) days after receipt of such statementstatement or billing, then Tenant shall have the right, during the six (6) month period following delivery delivery, of such statementstatement or billing, at Tenant’s 's sole cost (except in the case where Tenant shows Landlord overcharged by at least 5% in which case Landlord shall reimburse for this cost, to the extent reasonably an actually incurred by Tenant), to review in Landlord’s 's offices Landlord’s 's records relevant to such statementstatement or billing. Such review shall be carried out only by a "Big Five" accounting firm (i.e., PricewaterhouseCoopers, KMPG Peat Marwick, Ernst & Young, Deloitte & Touche and Xxxxxx Xxxxxxxx or their successors) and not by any other person, and shall be subject to Landlord’s 's reasonable audit procedures and procedures. No person conducting such an audit shall be performed only by Tenant’s internal audit team, an independent firm of certified public accountants or another party, in any case which firm or party is (a) reasonably acceptable to Landlord, (b) not compensated on a contingency fee basis or in any other manner which is dependent upon the results of such audit or inspection (and Tenant shall deliver the fee agreement "contingency" or other similar evidence of such fee arrangement to Landlord upon request) and (c) agrees with Landlord in writing to maintain the results of such audit confidentialincentive basis. If, as of the date ninety sixty (9060) days after Tenant’s 's receipt of such year-end statementstatement or billing, Tenant shall not have objected thereto in writing, or if, during the six (6) month period following delivery of such statementstatement or billing, Tenant shall not have carried out a review of Landlord’s 's records, then such year-end statement or billing, as the case may be, shall be final and binding upon Landlord and Tenant, and Tenant shall have no further right to object to such statementstatement or billing. If Tenant timely delivers a written objection to a year-end statement or billing and, within such six (6) month period, Tenant conducts an audit and delivers to Landlord a written statement specifying objections to such annual statement, then Tenant and Landlord shall meet to attempt to resolve such objection within ten (10) business days after delivery of the objection statement. If such objection is not resolved within such ten tell (10) business day period, then either party shall have the right, at any time within sixty (60) days after the expiration of such ten (10) business day period, to require that the dispute be submitted to binding arbitration under the rules of the American Arbitration Association. If neither Landlord nor Tenant commences an arbitration proceeding within such sixty (60) day period, then the year-end statement or other billing in question shall be final and binding on Landlord and Tenant. Notwithstanding that any such dispute remains unresolved, Tenant shall be obligated to pay Landlord all amounts payable in accordance with this Paragraph 3 (including any disputed amount). The audit and arbitration procedures set forth in this Paragraph 3.3 shall be Tenant’s 's exclusive remedy with respect to the calculation of the amount of Tenant’s 's obligations under Paragraph 3.2.

Year-End Adjustments; Audits. If Landlord bills shall have elected to xxxx Tenant for the Property Operating Expenses (or any group of such expenses) on an estimated basis in accordance with the provisions of Paragraph 3.2(a)(iii) above, Landlord shall furnish to Tenant within three months following the end of the applicable calendar or fiscal year, as the case may be, a written statement and reasonably sufficient back-up information setting forth (i) a reasonably detailed description of the Property Operating Expenses in question, (ii) the amount of such expenses paid or incurred during the just ended calendar or fiscal year, as appropriate, and (iiiii) the amount that Tenant has paid to Landlord for credit against such expenses for such period. If Tenant shall have paid more than its obligation for such expenses for the stated period, Landlord shall, at its election, either (i) credit the amount of such overpayment toward the next ensuing payment or payments of Additional Rent that would otherwise be due or (ii) refund in cash to Tenant the amount of such overpayment; provided, however, that if the Lease has ended then Landlord shall promptly pay the amount of such overpayment. If such year-end statement shall show that Tenant did not pay its obligation for such expenses in full, then Tenant shall pay to Landlord the amount of such underpayment within thirty ten (3010) days from Landlord’s billing of same to Tenant. The provisions of this Paragraph shall survive the expiration or sooner termination of this Lease. In the event Tenant objects in writing to any such year-end statement or other billing for Additional Rent within ninety sixty (9060) days after receipt of such statementstatement or billing, then Tenant shall have the right, during the six (6) month period following delivery of such statementstatement or billing, at Tenant’s sole cost (except in the case where Tenant shows Landlord overcharged by at least 5% in which case Landlord shall reimburse for this cost, to the extent reasonably an actually incurred by Tenant), to review in Landlord’s offices Landlord’s records relevant to such statementstatement or billing. Such review shall be carried out only by a “Big Five” accounting firm (i.e., PricewaterhouseCoopers, KMPG Peat Marwick, Ernst & Young, Deloitte & Touche and Xxxxxx Xxxxxxxx or their successors), and not by any other person, and shall be subject to Landlord’s reasonable audit procedures and procedures. No person conducting such an audit shall be performed only by Tenant’s internal audit team, an independent firm of certified public accountants or another party, in any case which firm or party is (a) reasonably acceptable to Landlord, (b) not compensated on a contingency fee basis or in any other manner which is dependent upon the results of such audit or inspection (and Tenant shall deliver the fee agreement “contingency” or other similar evidence of such fee arrangement to Landlord upon request) and (c) agrees with Landlord in writing to maintain the results of such audit confidentialincentive basis. If, as of the date ninety sixty (9060) days after Tenant’s receipt of such year-end statementstatement or billing, Tenant shall not have objected thereto in writing, or if, during the six (6) month period following delivery of such statementstatement or billing, Tenant shall not have carried out a review of Landlord’s records, then such year-end statement or billing, as the case may be, shall be final and binding upon Landlord and Tenant, and Tenant shall have no further right to object to such statementstatement or billing. If Tenant timely delivers a written objection to a year-end statement or billing and, within such six (6) month period, Tenant conducts an audit and delivers to Landlord a written statement specifying objections to such annual statement, then Tenant and Landlord shall meet to attempt to resolve such objection within ten (10) business days after delivery of the objection statement. If such objection is not resolved within such ten (10) business day period, then either party shall have the right, at any time within sixty (60) days after the expiration of such ten (10) business day period, to require that the dispute be submitted to binding arbitration under the rules of the American Arbitration Association. If neither Landlord nor Tenant commences an arbitration proceeding within such sixty (60) day period, then the year-end statement or other billing in question shall be final and binding on Landlord and Tenant. Notwithstanding that any such dispute remains unresolved, Tenant shall be obligated to pay Landlord all amounts payable in accordance with this Paragraph 3 (including any disputed amount). The audit and arbitration procedures set forth in this Paragraph 3.3 shall be Tenant’s exclusive remedy with respect to the calculation of the amount of Tenant’s obligations under Paragraph 3.2. In the event that it is finally determined that Landlord over billed Tenant by more than five percent (5%), then, provided that Tenant delivers to Landlord a written statement setting forth in reasonable detail the expenses actually incurred by Tenant in conducting such audit, Landlord shall reimburse Tenant for reasonable expenses actually incurred by Tenant in conducting such audit. Landlord shall include such reimbursement amount with the overpayment amount being credited against Additional Rent or refunded to Tenant, as the case may be.