(c) Address for Payments. All payments to be made by the Lessee under or pursuant to this Agreement shall be sent to the following address:
THE PORT AUTHORITY OF NEW YORK
AND NEW JERSEY
P.O. BOX 95000-1517
PHILADELPHIA, PENNSYLVANIA 19195-0001
or made via the following wire transfer instructions:
CREDIT BANK NAME: TD BANK
CREDIT BANK ADDRESS: 6000 Atrium Way, Mount Laurel NJ 08054
CREDIT BANK ABA #: 031201360
BENEFICIARY ACCT/ID #: 5950011618
BENEFICIARY NAME: THE PORT AUTHORITY OF NY & NJ
or sent to such other address, or pursuant to such other wire transfer instructions, as may hereafter be substituted therefor by the Port Authority, from time to time, by notice to the Lessee. All payments should reference the agreement number of this Agreement, AYE-232.
Section 23.2 Recordkeeping. The Lessee (and any Subtenant which is an Affiliate receiving Gross Revenues) shall keep and maintain at an office located in the Port of New York District complete and accurate books and records of account reflecting all Gross Revenues from which the Port Authority may verify the amounts reported on each statement furnished by the Lessee to the Port Authority. Notwithstanding the foregoing, the Lessee (and any such Subtenant) shall not be required to keep or maintain such books or records of account for any Payment Period subsequent to seven (7) years after the expiration of such Payment Period unless the Port Authority is engaged in an audit of such books and records pursuant to the following Section 23.3, in which event such books and records shall be kept and maintained by the Lessee (or such Subtenant) until such audit has been completed and any amounts due as a result thereof have been paid.
Section 23.3 Audits by the Port Authority.
(a) Right to Inspect Records.
The Port Authority or its designated agent shall have the right at any time and from time to time during regular business hours, upon at least five (5) Business Days’ notice to the Lessee, at the expense of the Port Authority, to inspect and audit the Lessee’s books and records of account (x) for any Payment Period or Periods for the purpose of verifying the amount due as Percentage Rental for such Payment Period or Periods, (y) for any period for the purpose of verifying the amount of the Adjusted Gross Proceeds (including any component thereof) under Article 15 hereof, entitled “Capital Transaction Payments”, and (z) for any period for the purpose of verifying any other amount payable pursuant to this Agreement. Each such inspection and audit shall be conducted at the place where the Lessee then regularly maintains its books and records in accordance with the foregoing Section 23.2. The Port Authority will, to the extent it is lawfully able to do so, use reasonable efforts to keep confidential and not disclose to others any information it obtains as a result of any inspection or audit conducted by the Port Authority pursuant to this Section 23.3.
(b) Underpayments and Overpayments.
Should any audit performed by the Port Authority or its designated agent disclose that the payment of Percentage Rental for any Payment Period or Periods has been understated, the Port Authority shall notify the Lessee of the amount of the underpayment, which notification shall include a statement showing the basis for the Port Authority’s determination. Within ten (10) days after the Lessee has received such notice of underpayment from the Port Authority, the Lessee shall promptly pay to the Port Authority the amount of such underpayment. In the event an audit discloses an overpayment, a credit in the amount of the overpayment will be given against the next installment of Basic Rental and/or Percentage Rental due, and if no further installments of Basic Rental and/or Percentage Rental are due, the Port Authority shall promptly refund to the Lessee the amount of any such overpayment.
(c) Costs of Audit.
If it is determined pursuant to this Section 23.3 that any payment of Percentage Rental or other Rental was understated by more than five percent (5%), the Lessee shall pay the cost of the Port Authority’s audit within ten (10) days of the submission to the Lessee of a statement of such audit costs, and such payment shall constitute additional Rental hereunder; otherwise, the Port Authority shall pay the cost of the audit. For the purposes of this paragraph (c), the costs of any audit by the Port Authority shall mean the fees and expenses of any outside certified public accountant engaged by the Port Authority to conduct such audit and/or the allocated payroll costs of the Port Authority personnel who perform such audit.
If the Lessee should fail to pay, after all applicable notice and grace periods, any amount required under this Agreement when due to the Port Authority, including but not limited to, any payment of basic, percentage or other rental or any payment of utility or other charges, or if any such amount is found to be due as the result of an audit, then, in such event, the Port Authority may impose (by statement, bill or otherwise) a late charge with respect to each such unpaid amount for each late charge period hereinbelow described) during the entirety of which such amount remains unpaid, each such late charge not to exceed an amount equal to eight-tenths of one percent of such unpaid amount for each late charge period. There shall be twenty-four late charge periods during each calendar year; each late charge period shall be for a period of at least fifteen (15) calendar days except one late charge period each calendar year may be for a period of less than fifteen (but not less than thirteen) calendar days. Without limiting the generality of the foregoing, late charge periods in the case of amounts found to have been owing to the Port Authority as the result of Port Authority audit findings shall consist of each late charge period following the date the unpaid amount should have been paid under this Agreement.
(b) Service Charge.
In the event that upon conducting an examination and audit the Port Authority determines that unpaid amounts are due to the Port Authority by the Lessee, then, for each unpaid amount that represents an underpayment of three percent (3%) or more of the total sum payable, the Lessee shall be obligated, and hereby agrees to pay to the Port Authority a service charge in the amount of five percent (5%) of the amount of each such underpayment. Each such service charge shall be payable immediately upon demand (by notice, bill or otherwise) made at any time therefor by the Port Authority. Such service charge(s) shall be exclusive of, and in addition to, any and all other moneys or amounts due to the Port Authority by the Lessee under this Agreement or otherwise.