Common use of Audit Procedures Clause in Contracts

Audit Procedures. If Tenant notifies Landlord within such six (6) month period that Tenant disputes any specific item or items in any Landlord’s Expense and Common Area Statement or Landlord’s Tax Statement, as the case may be, and such dispute is not resolved between Landlord and Tenant within thirty (30) days after the date such notice is given by Tenant, either party, during the thirty (30) day period following the expiration of the thirty (30) day period commencing on the date such notice is given, may refer such disputed item or items for determination to an independent (i.e., neither Landlord’s nor Tenant’s) certified public accountant selected by such party and approved by the other party, which approval shall not be withheld unreasonably, and the determination of such accountant shall be final, conclusive and binding upon Landlord and Tenant. Tenant agrees to pay all costs involved in such determination except in the case of Tax Adjustment and Expense and Common Area Adjustment for any Adjustment Year where it is determined that Landlord has overcharged Tenant for Tax Adjustment and Expense and Common Area Adjustment for such Adjustment Year by more than five percent (5%), in which case Landlord shall pay such costs. Notwithstanding anything to the contrary contained herein, in the event Tenant’s examination of Landlord’s books and records for a particular Adjustment Year reveals fraud, material misrepresentations or gross negligence by Landlord in the computation of Common Area Charges, Expenses or Taxes for such Adjustment Year or a discrepancy between the actual amount of Common Area Charges, Expenses or Taxes for such Adjustment Year and the amount charged to Tenant for such Adjustment 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 Common Area Charges, Expenses and Taxes for the prior three (3) calendar years of the Term and to take written exception to any amount charged to Tenant for any of the three (3) prior Adjustment Years on or before thirty (30) days after Tenant completes such examination, which examination must be completed within sixty (60) days of completion of the Material Discrepancy Audit.

Audit Procedures. Each Operating Expenses, Char Services and Real Estate Taxes statement given by Landlord pursuant to this Lease shall be conclusive and binding upon Tenant unless, within one hundred twenty (120) days after the receipt of the statement, Tenant shall notify Landlord in writing that it disputes the correctness of the statement, specifying the particular respects in which the statement is claimed to be incorrect. Tenant shall have the right to employ an independent auditor reasonably acceptable to Landlord and employed only on a non-contingent fee basis to assist Tenant to inspect and audit Landlord's books and records relating to Operating Expenses, Char Services and Real Estate Taxes for the calendar year in question. If Tenant notifies elects to employ such independent auditor, Tenant shall provide Landlord not less than fifteen (15) days notice of the date(s) on which such accountant desires to examine Landlord's books and records during regular business hours, and Landlord shall cooperate with Tenant and such auditor, and shall provide same with access to Landlord's books and records. All information provided by Landlord pursuant to this Paragraph 6.5 shall be confidential, and shall not be disclosed by Tenant or such auditor to any third party (other than arbitrators appointed in the event of a dispute as hereinafter provided). If as a result of such audit, Tenant continues to dispute the correctness of the statement, and if such dispute shall not have been settled by agreement, either party may submit the dispute to arbitration within such six sixty (660) month period days after Landlord's receipt of written notice from Tenant that Tenant disputes the statement in question. The decision of any specific item board of arbitration pursuant to an arbitration conducted in accordance with the commercial arbitration rules of the American Arbitration Association, shall be binding on all parties. Pending the resolution of such dispute by agreement or items in any Landlord’s Expense arbitration as aforesaid, Tenant shall pay all Rent and Common Area Statement Additional Rent due under this Lease, including the amount of Tenant's Percentage of Increased Operating Expenses, the amount of Tenant's Percentage of Increased Char Service Costs, the amount of Tenant's Percentage of Increased Real Estate Taxes, or Landlord’s Tax Statementall of them, as the case may be, and such as are claimed by Landlord in accordance with the statement, without prejudice to Tenant's position, as herein provided. If the dispute is not resolved between Landlord and Tenant within thirty (30) days after the date such notice is given by Tenant, either party, during the thirty (30) day period following the expiration of the thirty (30) day period commencing on the date such notice is given, may refer such disputed item or items for determination to an independent (i.e., neither Landlord’s nor Tenant’s) certified public accountant selected by such party and approved by the other party, which approval shall not be withheld unreasonably, and the determination of such accountant shall be final, conclusive resolved in Tenant's favor and binding upon Landlord and Tenant. Tenant agrees to pay all costs involved in such determination except in the case of Tax Adjustment and Expense and Common Area Adjustment for any Adjustment Year where it is determined that Landlord has overcharged Tenant for Tax Adjustment and Expense and Common Area Adjustment for such Adjustment Year by more than five percent (5%)the Tenant's Percentage of Operating Expenses, in which case Landlord shall pay such costs. Notwithstanding anything to Tenant's Percentage of Increased Char Service Costs or Tenant's Percentage of Real Estate Taxes set forth on the contrary contained herein, in the event Tenant’s examination of Landlord’s books and records for a particular Adjustment Year reveals fraud, material misrepresentations or gross negligence annual statement delivered by Landlord in any category were more than 105% of Tenant's Percentage of the computation Operating Expenses, Tenant's Percentage of Common Area ChargesIncreased Char Service Costs or Tenant's Percentage of Real Estate Taxes, Expenses or Taxes for such Adjustment Year or a discrepancy between respectively, set forth on the actual amount of Common Area Chargescorrected statement, Expenses or Taxes for such Adjustment Year and the amount charged Landlord shall promptly pay to Tenant for such Adjustment Year is in the amount of ten percent Tenant's overpayment and Tenant's costs (10%including reasonable attorneys' and accountants' fees) or directly related to the audit and arbitration proceeding. If the dispute shall be resolved in Tenant's favor and it is determined that the delivered statement was not more than 105% of the corrected statement in any category, each party shall pay its own costs related to the arbitration (“Material Discrepancy Audit”and share equally any common costs, but not the cost of Tenant's accountant), then and Landlord shall promptly pay to Tenant the amount of Tenant's overpayment. If the dispute shall be resolved in Landlord's favor, Tenant shall have the right to examine Landlord’s books promptly pay all costs and records relating expenses (including reasonable attorneys' and accountants' fees) incurred by Landlord in connection with such dispute, including those directly related to the Common Area Charges, Expenses and Taxes for the prior three (3) calendar years of the Term and to take written exception to any amount charged to Tenant for any of the three (3) prior Adjustment Years on or before thirty (30) days after Tenant completes such examination, which examination must be completed within sixty (60) days of completion of the Material Discrepancy Auditarbitration.

Audit Procedures. Within (and in no event later than) seventy-five ---------------- (75) days after the end of each calendar year of Tenant, Tenant shall cause the certified public accountant then regularly auditing Tenant's books and records (which CPA shall be licensed in Missouri and shall be a member of AICPA) to audit Tenant's (and/or any subtenant's, licensee's, franchisee's or concessionaire's) books and records relevant to the calculation of Rents and other payments and Gross Revenues reported by Tenant and/or which should have been reported by Tenant during its preceding calendar year and to certify to Landlord the correctness of same and the compliance thereof with the definitions and requirements of this Lease. Tenant shall provide to Landlord, at the time of filing thereof, copies of all financial reports and tax returns furnished to the State of Missouri and/or the Gaming Commission thereof in connection with the determination of Tenant's taxable gaming revenue and/or adjusted gross receipts. Further, if Tenant shall fail to so provide to Landlord such certification and/or copies as and when due hereunder or if Landlord shall desire to audit such statement(s), Landlord, in conjunction with the City Auditor and Director of Finance for the City, shall have the right to audit the books and records of Tenant with respect to Percentage Rent or other payments provided for in this Lease at any time upon reasonable notice; provided that Landlord agrees to exercise this audit right not more frequently than once per fiscal year. Any such audit shall be performed in accordance with generally accepted auditing standards, during ordinary business hours and without unreasonably interfering with Tenant's business. If Tenant notifies Landlord within such six (6) month period certification was not provided or if any such audit reveals that Tenant disputes Gross Revenue or any specific item or items in any Landlord’s Expense and Common Area Statement or Landlord’s Tax Statementportion of Percentage Rent due hereunder was understated, as the case may be, and such dispute is not resolved between Landlord and Tenant then within thirty (30) days after receipt of the audit with appropriate backup documentation, Tenant shall pay to Landlord the additional Percentage Rent due on account of the audit or audit corrections. Any adjusting payment due on account of previous underpayment shall bear interest at the Interest Rate (as defined herein) from the date such notice is given by it would have been paid had Tenant's Quarterly Statement been correct, either party, during the thirty (30) day period following the expiration of the thirty (30) day period commencing on until the date actually paid. If such notice is given, may refer such disputed item certification was not so provided or items for determination to an independent (i.e., neither Landlord’s nor Tenant’s) certified public accountant selected by such party and approved by the other party, which approval shall not be withheld unreasonably, and the determination of such accountant shall be final, conclusive and binding upon Landlord and Tenant. Tenant agrees to pay all costs involved in such determination except in the case of Tax Adjustment and Expense and Common Area Adjustment for any Adjustment Year where it is determined that Landlord has overcharged Tenant for Tax Adjustment and Expense and Common Area Adjustment for such Adjustment Year if Percentage Rent reported therein was understated by more than five two percent (5%), in which case Landlord shall pay such costs. Notwithstanding anything to the contrary contained herein, in the event Tenant’s examination of Landlord’s books and records for a particular Adjustment Year reveals fraud, material misrepresentations or gross negligence by Landlord in the computation of Common Area Charges, Expenses or Taxes for such Adjustment Year or a discrepancy between the actual amount of Common Area Charges, Expenses or Taxes for such Adjustment Year and the amount charged to Tenant for such Adjustment Year is in the amount of ten percent (102%) or more (“Material Discrepancy Audit”)for any audited period of time, then Tenant shall have pay the right to examine Landlord’s books and records relating to the Common Area Charges, Expenses and Taxes for the prior three (3) calendar years reasonable cost of the Term and to take written exception to any amount charged to Tenant for any of audit showing same and/or disclosing such understatement; otherwise the three (3) prior Adjustment Years on or before thirty (30) days after Tenant completes such examination, which examination must audit shall be completed within sixty (60) days of completion of the Material Discrepancy Auditconducted at Landlord's expense.

Audit Procedures. If Tenant notifies Landlord within such six thirty (630) month day period that Tenant disputes any specific item or items in any Landlord's Expense Statement, Landlord’s Utility Expense and Common Area Statement or Landlord’s Tax Statement, as the case may be, and such dispute is not resolved between Landlord and Tenant within thirty (30) days after the date such notice is given by Tenant, either party, during the thirty fifteen (3015) day period following the expiration of the thirty (30) day period commencing on the date such notice is given, may refer such disputed item or items for determination to an independent (i.e., neither Landlord’s nor Tenant’s) certified public accountant selected by such party and approved by the other party, which approval shall not be withheld unreasonably, and the determination of such accountant shall be final, conclusive and binding upon Landlord and Tenant. If Tenant’s examination, as finally determined, shows that any amount(s) paid by Tenant to Landlord on account of any specific item or items in any Landlord’s Expense Statement, Landlord’s Utility Expense Statement or Landlord’s Tax Statement, as the case may be, exceed the amount(s) to which Landlord is entitled hereunder, then provided Tenant is not in default under any provision of this Lease, Landlord shall, at Landlord’s option, either credit such excess toward Tenant’s next monthly payment(s) of Tax Adjustments, Expense Adjustments and Utility Expense Adjustments due hereunder, or promptly refund such excess to Tenant. If Tenant’s examination reveals that Tenant’s actual liability exceeds the amounts paid by Tenant to Landlord on account of Taxes, Expenses and Utility Expenses then Tenant shall pay the deficiency as additional rent, together with the delivery to Landlord of the detailed report of Tenant’s examination, as aforesaid. If Tenant does not timely notify Landlord in writing of any objection to any Landlord’s Expense Statement, Landlord’s Utility Expense Statement or Landlord’s Tax Statement, as the case may be, and thereafter completes Tenant’s examination within ninety (90) days after receipt of the Landlord’s Expense Statement, Landlord’s Utility Expense Statement or Landlord’s Tax Statement, as the case may be, TIME BEING OF THE ESSENCE, then Tenant shall be deemed to have waived any and all objections it may have with respect to Taxes, Expenses and Utility Expenses for the preceding calendar year (and/or Adjustment Year) or the Landlord’s Expense Statement, Landlord’s Utility Expense Statement or Landlord’s Tax Statement, as the case may be, pertaining thereto. Tenant agrees to pay all costs involved in such determination determination, except in the case of a Tax Adjustment, Expense Adjustment and Utility Expense and Common Area Adjustment for any Adjustment Year where it is determined that Landlord has overcharged Tenant for a Tax Adjustment, Expense Adjustment and Utility Expense and Common Area Adjustment for such Adjustment Year by more than five ten percent (510%), in which case Landlord shall pay such reasonable out-of-pocket costs. Notwithstanding anything to the contrary contained herein, in the event Tenant’s examination of Landlord’s books and records for a particular Adjustment Year reveals fraud, material misrepresentations or gross negligence by Landlord in the computation of Common Area Charges, Expenses or Taxes for such Adjustment Year or a discrepancy between the actual amount of Common Area Charges, Expenses or Taxes for such Adjustment Year and the amount charged to Tenant for such Adjustment 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 Common Area Charges, Expenses and Taxes for the prior three (3) calendar years of the Term and to take written exception to any amount charged to Tenant for any of the three (3) prior Adjustment Years on or before thirty (30) days after Tenant completes such examination, which examination must be completed within sixty (60) days of completion of the Material Discrepancy Audit.

Audit Procedures. Within (and in no event later than) seventy-five (75) days after the end of each calendar year of Tenant, Tenant shall cause the certified public accountant then regularly auditing Tenant’s books and records (which CPA shall be licensed in Missouri and shall be a member of AICPA) to audit Tenant’s (and/or any subtenant’s, licensee’s, franchisee’s or concessionaire’s) books and records relevant to the calculation of Rents and other payments and Gross Revenues reported by Tenant and/or which should have been reported by Tenant during its preceding calendar year and to certify to Landlord the correctness of same and the compliance thereof with the definitions and requirements of this Lease. Tenant shall provide to Landlord, at the time of filing thereof, copies of all financial reports and tax returns furnished to the State of Missouri and/or the Gaming Commission thereof in connection with the determination of Tenant’s taxable gaming revenue and/or adjusted gross receipts. Further, if Tenant shall fail to so provide to Landlord such certification and/or copies as and when due hereunder or if Landlord shall desire to audit such statement(s), Landlord, in conjunction with the City Auditor and Director of Finance for the City, shall have the right to audit the books and records of Tenant with respect to Percentage Rent or other payments provided for in this Lease at any time upon reasonable notice; provided that Landlord agrees to exercise this audit right not more frequently than once per fiscal year. Any such audit shall be performed in accordance with generally accepted auditing standards, during ordinary business hours and without unreasonably interfering with Tenant’s business. If Tenant notifies Landlord within such six (6) month period certification was not provided or if any such audit reveals that Tenant disputes Gross Revenue or any specific item or items in any Landlord’s Expense and Common Area Statement or Landlord’s Tax Statementportion of Percentage Rent due hereunder was understated, as the case may be, and such dispute is not resolved between Landlord and Tenant then within thirty (30) days after receipt of the audit with appropriate backup documentation, Tenant shall pay to Landlord the additional Percentage Rent due on account of the audit or audit corrections. Any adjusting payment due on account of previous underpayment shall bear interest at the Interest Rate (as defined herein) from the date such notice is given by it would have been paid had Tenant’s Quarterly Statement been correct, either party, during the thirty (30) day period following the expiration of the thirty (30) day period commencing on until the date actually paid. If such notice is given, may refer such disputed item certification was not so provided or items for determination to an independent (i.e., neither Landlord’s nor Tenant’s) certified public accountant selected by such party and approved by the other party, which approval shall not be withheld unreasonably, and the determination of such accountant shall be final, conclusive and binding upon Landlord and Tenant. Tenant agrees to pay all costs involved in such determination except in the case of Tax Adjustment and Expense and Common Area Adjustment for any Adjustment Year where it is determined that Landlord has overcharged Tenant for Tax Adjustment and Expense and Common Area Adjustment for such Adjustment Year if Percentage Rent reported therein was understated by more than five two percent (5%), in which case Landlord shall pay such costs. Notwithstanding anything to the contrary contained herein, in the event Tenant’s examination of Landlord’s books and records for a particular Adjustment Year reveals fraud, material misrepresentations or gross negligence by Landlord in the computation of Common Area Charges, Expenses or Taxes for such Adjustment Year or a discrepancy between the actual amount of Common Area Charges, Expenses or Taxes for such Adjustment Year and the amount charged to Tenant for such Adjustment Year is in the amount of ten percent (102%) or more (“Material Discrepancy Audit”)for any audited period of time, then Tenant shall have pay the right to examine reasonable cost of the audit showing same and/or disclosing such understatement; otherwise the audit shall be conducted at Landlord’s books and records relating to the Common Area Charges, Expenses and Taxes for the prior three (3) calendar years of the Term and to take written exception to any amount charged to Tenant for any of the three (3) prior Adjustment Years on or before thirty (30) days after Tenant completes such examination, which examination must be completed within sixty (60) days of completion of the Material Discrepancy Auditexpense.

Audit Procedures. Each Operating Expenses, Char Services and Real Estate Taxes statement given by Landlord pursuant to this Lease shall be conclusive and binding upon Tenant unless, within seven hundred thirty (730) calendar days after the receipt of the statement, Tenant shall notify Landlord in writing that it disputes the correctness of the statement, specifying the particular respects in which the statement is claimed to be incorrect (the "Tenant Audit Notice"). Tenant shall have the right to employ an independent auditor employed only on a non-contingent fee basis to assist Tenant to inspect and audit Landlord's books and records relating to Operating Expenses, Char Services and Real Estate Taxes for the calendar year in question, but Tenant shall have no right to audit any calendar year more than once or to audit any period more than two (2) years before the date of the Tenant Audit Notice given as aforesaid. If Tenant notifies elects to employ such independent auditor, Tenant shall provide Landlord not less than fifteen (15) days notice of the date(s) on which such accountant desires to examine Landlord's books and records during regular business hours, and Landlord shall cooperate with Tenant and such auditor, and shall provide same with access to Landlord's books and records, which audit or inspection shall be conducted in Landlord's management office in the Washington, D.C. metropolitan area where such books and records are kept, which is currently located at Cafritz Company, ▇▇▇▇ ▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇▇▇▇, ▇.▇. All information provided by Landlord pursuant to this Paragraph 6.5 shall be confidential, and shall not be disclosed by Tenant or such auditor to any third party (other than arbitrators appointed in the event of a dispute as hereinafter provided). If as a result of such audit, Tenant continues to dispute the correctness of the statement, and if such dispute shall not have been settled by agreement, either party may submit the dispute to arbitration within such six sixty (660) month period days after Landlord's receipt of written notice from Tenant that Tenant disputes the statement in question. The decision of any specific item board of arbitration pursuant to an arbitration conducted in accordance with the commercial arbitration rules of the American Arbitration Association, shall be binding on all parties. Pending the resolution of such dispute by agreement or items in any Landlord’s Expense arbitration as aforesaid, Tenant shall pay all Rent and Common Area Statement Additional Rent due under this Lease, including the amount of Tenant's Percentage of Increased Operating Expenses, the amount of Tenant's Percentage of Increased Char Service Costs, the amount of Tenant's Percentage of Increased Real Estate Taxes, or Landlord’s Tax Statementall of them, as the case may be, and such as are claimed by Landlord in accordance with the statement, without prejudice to Tenant's position, as herein provided. If the dispute is not resolved between Landlord and Tenant within thirty (30) days after the date such notice is given by Tenant, either party, during the thirty (30) day period following the expiration of the thirty (30) day period commencing on the date such notice is given, may refer such disputed item or items for determination to an independent (i.e., neither Landlord’s nor Tenant’s) certified public accountant selected by such party and approved by the other party, which approval shall not be withheld unreasonably, and the determination of such accountant shall be final, conclusive resolved in Tenant's favor and binding upon Landlord and Tenant. Tenant agrees to pay all costs involved in such determination except in the case of Tax Adjustment and Expense and Common Area Adjustment for any Adjustment Year where it is determined that Landlord has overcharged Tenant for Tax Adjustment and Expense and Common Area Adjustment for such Adjustment Year by more than five percent (5%)the Tenant's Percentage of Operating Expenses, in which case Landlord shall pay such costs. Notwithstanding anything to Tenant's Percentage of Increased Char Service Costs or Tenant's Percentage of Real Estate Taxes set forth on the contrary contained herein, in the event Tenant’s examination of Landlord’s books and records for a particular Adjustment Year reveals fraud, material misrepresentations or gross negligence annual statement delivered by Landlord in any category were more than 105% of Tenant's Percentage of the computation Operating Expenses, Tenant's Percentage of Common Area ChargesIncreased Char Service Costs or Tenant's Percentage of Real Estate Taxes, Expenses or Taxes for such Adjustment Year or a discrepancy between respectively, set forth on the actual amount of Common Area Chargescorrected statement, Expenses or Taxes for such Adjustment Year and the amount charged Landlord shall promptly pay to Tenant for such Adjustment Year is in the amount of ten percent Tenant's overpayment and Tenant's costs (10%including reasonable attorneys' and accountants' fees) or directly related to the audit and arbitration proceeding. If the dispute shall be resolved in Tenant's favor and it is determined that the delivered statement was not more than 105% of the corrected statement in any category, each party shall pay its own costs related to the arbitration (“Material Discrepancy Audit”and share equally any common costs, but not the cost of Tenant's in-house accountant), then and Landlord shall promptly pay to Tenant the amount of Tenant's overpayment. If the dispute shall be resolved in Landlord's favor, Tenant shall have the right to examine Landlord’s books promptly pay all costs and records relating expenses (including reasonable attorneys' and accountants' fees) incurred by Landlord in connection with such dispute, including those directly related to the Common Area Charges, Expenses and Taxes for the prior three (3) calendar years of the Term and to take written exception to any amount charged to Tenant for any of the three (3) prior Adjustment Years on or before thirty (30) days after Tenant completes such examination, which examination must be completed within sixty (60) days of completion of the Material Discrepancy Auditarbitration.