Audit of Operating Expenses. Beginning with the statement of Operating Expenses for calendar year 2019, which Tenant will receive in 2020, and for each year of the Term thereafter, within sixty (60) days after Tenant receives the annual statement of Operating Expenses, and provided that there does not then exist an Event of Default hereunder, Tenant may contest the annual statement of Operating Expenses by providing written notice to Landlord, delivered within such sixty (60) day period. If no such contest is made by written notice to Landlord, delivered within such sixty (60) day period, such annual statement of Operating Expenses shall be binding upon Tenant in all respects. If Tenant timely contests such annual statement of Operating Expenses, Tenant shall have the right to inspect and examine, at reasonable times during normal business hours, Landlord’s books of account and records pertaining to the annual statement of Operating Expenses, all at Tenant’s sole cost and expense. Such audit shall be conducted at the offices of Landlord’s property manager where such records are kept, or in such other location in the United States where such records are then being kept, within thirty (30) days after the date of Tenant’s notice, and shall not be conducted at a time or in a manner so as to interfere with Landlord’s operations. Such audit shall be conducted by a certified public accountant retained by Tenant, at its expense, whose compensation is not contingent upon the results of such accountant’s audit or the amount of any refund received by Tenant. Landlord agrees that if Tenant requests evidence or back-up information regarding a specific question (or questions), which Tenant has regarding Operating Expenses, then Landlord (or Landlord’s property manager) shall make copies thereof available to Tenant at the offices of Landlord’s property manager. Landlord and/or Landlord’s property manager shall cooperate with Tenant and/or Tenant’s representatives with respect to any such specific inquiries or questions and with respect to the conduct of such audit, so as to facilitate the prompt and efficient answer thereto and/or conduct of same, as applicable. Tenant shall notify Landlord of the results of such audit in writing. Landlord may have an agent or employee present during such inspection and audit. Landlord shall have the right to dispute the results of Tenant’s audit. If the audit by Tenant shall ultimately result in Landlord and Tenant agreeing that Tenant has overpaid Landlord for its share of Operating Expenses, such overpayment shall be applied to the next accruing installment(s) of Additional Rent due from Tenant until such credit is depleted. Tenant hereby agrees to keep the results of any such audit confidential, and to require Tenant’s auditor and its employees and each of their respective attorneys and advisors to likewise agree to keep the results of such audit in strictest confidence. In particular, but without limitation, Tenant agrees that: (a) Tenant shall not disclose the results of any such audit to any past, current or prospective tenant of the Office Park; and (b) Tenant shall require that its auditors, attorneys, and anyone associated with such parties shall not disclose the results of such audit to any past, current or prospective tenant of the Office Park; provided, however, that Landlord hereby agrees that nothing in items (a) or (b) above shall preclude Tenant from disclosing the results of such audit in any judicial or quasi-judicial proceeding, or pursuant to court order or discovery request, or to any current or prospective assignee or subtenant of Tenant, or to any agent, representative or employee of Landlord who or which request the same. 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.
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Sources: Lease Agreement (Jacada LTD)
Audit of Operating Expenses. Beginning with Tenant will have a period of 90 days after Tenant’s receipt of a Statement (the statement “Review Period”) to review or cause to be reviewed Landlord’s records of Operating Expenses for calendar year 2019, which Tenant will receive in 2020, and for each year of the Term thereafter, within sixty (60) days after Tenant receives the annual statement of Operating Expenses, and provided that there does not then exist an Event of Default hereunder, Tenant may contest the annual statement of Operating Expenses by providing written notice to Landlord, delivered within such sixty (60) day period. If no such contest is made by written notice to Landlord, delivered within such sixty (60) day period, such annual statement of Operating Expenses shall be binding upon Tenant in all respects. If Tenant timely contests such annual statement of Operating Expenses, Tenant shall have the right to inspect and examine, at reasonable times during normal business hours, Landlord’s books of account and records pertaining to the annual statement of Operating Expenses, all at Tenant’s sole cost and expense. Such audit shall be conducted expense and upon reasonable prior notice at the offices place (in the City and County of Denver, Colorado) Landlord normally maintains such records during Landlord’s normal business hours. If Tenant does not, based on such review, object to such Statement before the expiration of the applicable Review Period, then Tenant will be deemed to have waived any such right to object to or challenge such Statement. If timely objection is made by Tenant under this Section 6.3.4., Landlord and Tenant shall use reasonable good faith efforts to resolve any such objection within forty-five (45) calendar days after the date on which the notice of objection was given by Tenant. If Landlord and Tenant are unable to resolve such objection within such 45-day period, Landlord and Tenant shall select a mutually acceptable independent certified property manager where who has experience in these matters (the “Property Manager”) to resolve such records are keptdispute. If Landlord and Tenant fail to agree on a Property Manager, or each party shall identify its own independent certified property manager and those two property managers shall identify the Property Manager. The Property Manager shall make his determination in such other location a manner consistent with this Lease and after taking into account the quality and manner of the operation of the Building. The Property Manager shall make his decision as to each item in the United States where such records are then being kept, dispute and give written notice of his decision to Landlord and Tenant within thirty (30) calendar days after his appointment. The determination made as to any items in accordance with the date foregoing procedures shall be final and binding on both Landlord and Tenant as to such items. Any adjustment required to be made to any previous payment made by Tenant by reason of such decision shall be made by Tenant or Landlord within ten (10) business days after notice of the final decision has been given to Landlord and Tenant. The parties shall bear their own expenses regarding any audit of Operating Expenses. Landlord will bear the cost of the Property Manager if it is determined that Landlord has overstated Tenant’s noticeShare of Operating Expenses for the applicable calendar year by more than $0.05 per square foot of Rentable Area of the Leased Premises, so long as the Tenant’s auditor bills on an hourly rate and does not perform the review of the Landlord’s records on a contingency basis; and Tenant will bear the cost of the Property Manager in all other events. Following the resolution of any objection raised by Tenant pursuant to the terms and procedures set forth in this Section 6.3.4, any and all subsequent calculations and ▇▇▇▇▇▇▇▇ relating to matters which are similar to the matters that were the subject of such objection shall not be conducted at a time or determined in a manner so as to interfere which is consistent with Landlord’s operations. Such audit shall be conducted by a certified public accountant retained by Tenant, at its expense, whose compensation is not contingent upon the results of such accountant’s audit or the amount of any refund received by Tenant. Landlord agrees that if Tenant requests evidence or back-up information regarding a specific question (or questions), which Tenant has regarding Operating Expenses, then Landlord (or Landlord’s property manager) shall make copies thereof available to Tenant at the offices of Landlord’s property manager. Landlord and/or Landlord’s property manager shall cooperate with Tenant and/or Tenant’s representatives with respect to any such specific inquiries or questions and with respect to the conduct of such audit, so as to facilitate the prompt and efficient answer thereto and/or conduct of same, as applicable. Tenant shall notify Landlord resolution of the results of such audit in writing. Landlord may have an agent or employee present during such inspection and audit. Landlord shall have the right to dispute the results of Tenant’s audit. If the audit by Tenant shall ultimately result in Landlord and Tenant agreeing that Tenant has overpaid Landlord for its share of Operating Expenses, such overpayment shall be applied to the next accruing installment(s) of Additional Rent due from Tenant until such credit is depleted. Tenant hereby agrees to keep the results of any such audit confidential, and to require Tenant’s auditor and its employees and each of their respective attorneys and advisors to likewise agree to keep the results of such audit in strictest confidence. In particular, but without limitation, Tenant agrees that: (a) Tenant shall not disclose the results of any such audit to any past, current or prospective tenant of the Office Park; and (b) Tenant shall require that its auditors, attorneys, and anyone associated with such parties shall not disclose the results of such audit to any past, current or prospective tenant of the Office Park; provided, however, that Landlord hereby agrees that nothing in items (a) or (b) above shall preclude Tenant from disclosing the results of such audit in any judicial or quasi-judicial proceeding, or pursuant to court order or discovery request, or to any current or prospective assignee or subtenant of Tenant, or to any agent, representative or employee of Landlord who or which request the same. 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 Premisesinitial objection.
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