Common use of Confirmation of Additional Rent Clause in Contracts

Confirmation of Additional Rent. Tenant shall utilize, or cause to be utilized, an accounting system for the Leased Property in accordance with its usual and customary practices and in accordance with GAAP, which will accurately record all Net Resident Revenues and Tenant shall retain, for at least three (3) years after the expiration of each Lease Year, reasonably adequate records conforming to such accounting system showing all Net Resident Revenues for such Lease Year. Landlord, except as provided hereinbelow, shall have the right, exercisable by Notice to Tenant, by its accountants or representatives, to audit the information set forth in the Officer's Certificate referred to in subparagraph (c) above and, in connection with such audits, to examine Tenant's books and records with respect thereto (including supporting data and sales and excise tax returns). If any such audit discloses a deficiency in the payment of Additional Rent and, either Tenant agrees with the result of such audit or the matter is otherwise compromised with Landlord, Tenant shall forthwith pay to Landlord the amount of the deficiency, as finally agreed or determined, together with interest at the Interest Rate, from the date such payment should have been made to the date of payment thereof. If any such audit discloses that Tenant paid more Additional Rent for any Lease Year than was due hereunder, and either Landlord agrees with the result of such audit or the matter is otherwise determined, provided no Event of Default has occurred and is continuing, Landlord shall grant Tenant a credit against the Additional Rent next coming due in the amount of such difference, as finally agreed or determined, together with interest at the Interest Rate, which interest shall accrue from the time of payment by Tenant until the date such credit is applied or paid, as the case may be. If such credit cannot be made because the Term has expired prior to application in full thereof, provided no Event of Default has occurred and is continuing, Landlord shall pay the unapplied balance of such credit to Tenant, together with interest at the Interest Rate, which interest shall accrue from the date of payment by Tenant until the date of payment from Landlord. Any dispute concerning the correctness of an audit shall be settled by arbitration pursuant to the provisions of Article 22. Landlord shall pay for the cost of any such audit; provided, however, in the event that such audit reveals a deficiency in the payment of Additional Rent by Tenant of an aggregate of three percent (3%) or more, then Tenant shall reimburse Landlord for the actual costs of such audit. Any proprietary information obtained by Landlord with respect to Tenant pursuant to the provisions of this Agreement shall be treated as confidential, except that such information may be used, subject to appropriate confidentiality safeguards, in any litigation between the parties and except further that Landlord may disclose such information to its prospective lenders, provided that Landlord shall direct such lenders to maintain such information as confidential. The obligations of Tenant and Landlord contained in this Section 3.1.2 shall survive the expiration or earlier termination of this Agreement.

Confirmation of Additional Rent. Tenant shall utilize, or cause to be utilized, an accounting system for the applicable Leased Property (which shall be the same as that used for all the Collective Leased Properties) in accordance with its usual and customary practices and in accordance with GAAPgenerally accepted accounting principles consistently applied, which will accurately record all Net Resident Revenues Patient Revenues, and shall employ independent accountants reasonably acceptable to Landlord, and Tenant shall retain, for at least three five (35) years after the expiration of each Lease Fiscal Year, reasonably adequate records conforming to such accounting system showing all Net Resident Patient Revenues for such Lease Fiscal Year. Landlord, at its own expense except as provided hereinbelow, shall have the right, exercisable by Notice right from time to Tenant, time by its accountants or representatives, representatives to audit the information set forth in the Officer's Certificate referred to in subparagraph (b) above or the year-end certificate referred to in subparagraph (c) above andabove, and in connection with such audits, audits to examine Tenant's books and records with respect thereto (including supporting data and sales and excise tax returns). ) subject to any prohibitions or limitations on disclosure of any such data under applicable law or regulations, including without limitation any duly enacted "Patients' Bill of Rights" or similar legislation, including such limitatioxx as may be necessary to preserve the confidentiality of the facility-patient relationship and the physician-patient privileges If any such audit discloses a deficiency in the payment of Additional Rent andRent, and either Tenant agrees with the result of such audit or the matter is otherwise determined or compromised with Landlord, Tenant shall forthwith pay to Landlord the amount of the deficiency, as finally agreed or determined, together with interest at the Interest Test Rate, or if no such Test Rate exists, then at the Overdue Rate from the date such when said payment should have been made to the date of payment thereof; provided, however, that as to any audit that is commenced more than two (2) years after the date Net Patient Revenues for any Fiscal Year are reported by Tenant to Landlord, the deficiency, if any, with respect to such Net Patient Revenues shall bear interest as permitted herein only from the date such determination of deficiency is made unless such deficiency is the result of gross negligence or willful misconduct on the part of Tenant. If any such audit discloses that the Net Patient Revenues actually received by Tenant for any Fiscal Year exceed those reported by Tenant by more than three percent (3%), Tenant shall pay the reasonable cost of such audit and examina tion. if any such audit discloses that Tenant paid more Additional Rent for any Lease Fiscal Year than was due hereunder, and either Landlord agrees with the result of such audit or the matter is otherwise determined, provided no Event of Default has occurred and is continuingdetermined or compromised, Landlord shall grant Tenant a credit against the Additional Rent next coming due in the amount of such difference, as finally agreed or determined, together with interest at the Interest Rate, which interest shall accrue from the time of payment by Tenant until the date . if such credit is applied or paid, as the case may be. If such a credit cannot be made because the Term of the applicable Lease has expired prior to application in full thereof, provided no Event of Default has occurred and is continuingbefore the credit can be effected, Landlord shall pay will pay, by check, the unapplied balance amount of such credit difference to Tenant, together with interest at the Interest Rate, which interest shall accrue from the date of payment by Tenant until the date of payment from Landlord. Any dispute concerning the correctness of an audit shall be settled by arbitration pursuant to the provisions of Article 22. Landlord shall pay for the cost of any such audit; provided, however, in the event that such audit reveals a deficiency in the payment of Additional Rent by Tenant of an aggregate of three percent (3%) or more, then Tenant shall reimburse Landlord for the actual costs of such audit. Any proprietary information obtained by Landlord with respect to Tenant pursuant to the provisions of this Agreement the applicable Lease shall be treated as confidential, except that such information may be used, subject to appropriate confidentiality safeguards, in any litigation between the parties and except further that Landlord may disclose such information to its prospective lenders, provided that Landlord shall direct such lenders to maintain such information as confidential. The obligations of Tenant and Landlord contained in this Section 3.1.2 shall survive the expiration or earlier termination of this Agreementthe applicable Lease.

Confirmation of Additional Rent. Tenant shall utilize, or cause to be utilized, an accounting system for the Leased Property in accordance with its usual and customary practices and in accordance with GAAP, which will accurately record all Net Resident Revenues and Tenant shall retain, for at least three (3) years after the expiration of each Lease Year, reasonably adequate records conforming to such accounting system showing all Net Resident Revenues for such Lease Year. Landlord, except as provided hereinbelow, shall have the right, exercisable by Notice to Tenant, by its accountants or representatives, to audit the information set forth in the Officer's Certificate referred to in subparagraph (c) above and, in connection with such audits, to examine Tenant's and the Manager's books and records with respect thereto (including supporting data and sales and excise tax returns). If any such audit discloses a deficiency in the payment of Additional Rent and, either Tenant agrees with the result of such audit or the matter is otherwise compromised with Landlord, Tenant shall forthwith pay to Landlord the amount of the deficiency, as finally agreed or determined, together with interest at the Interest Rate, from the date such payment should have been made to the date of payment thereof. If such deficiency, as agreed upon or compromised as aforesaid, is more than four percent (4%) of the Total Hotel Sales reported by Tenant for such Lease Year and, as a result, Landlord did not receive at least ninety-five percent (95%) of the Additional Rent payable with respect to such Lease Year, Tenant shall pay the reasonable cost of such audit and examination. If any such audit discloses that Tenant paid more Additional Rent for any Lease Year than was due hereunder, and either Landlord agrees with the result of such audit or the matter is otherwise determined, provided no Event of Default has occurred and is continuing, Landlord shall grant Tenant a credit equal to the amount of such overpayment against the Additional Rent next coming due in the amount of such difference, as finally agreed or determined, together with interest at the Interest Rate, which interest shall accrue from the time of payment by Tenant until the date such credit is applied or paid, as the case may be. If such a credit cannot be made because the Term has expired prior to application before the credit can be applied in full thereoffull, provided no Event of Default has occurred and is continuing, Landlord shall pay the unapplied balance of such credit to Tenant, together with interest at the Interest Rate, which interest shall accrue from the date of payment by Tenant until the date of payment from Landlord. Any dispute concerning the correctness of an audit shall be settled by arbitration pursuant to the provisions of Article 22. Landlord shall pay for the cost of any such audit; provided, however, in the event that such audit reveals a deficiency in the payment of Additional Rent by Tenant of an aggregate of three percent (3%) or more, then Tenant shall reimburse Landlord for the actual costs of such audit. Any proprietary information obtained by Landlord with respect to Tenant pursuant to the provisions of this Agreement shall be treated as confidential, except that such information may be used, subject to appropriate confidentiality safeguards, in any litigation between the parties and except further that Landlord may disclose such information to its prospective lenders, provided that Landlord shall direct such lenders to maintain such information as confidential. The obligations of Tenant and Landlord contained in this Section 3.1.2 shall survive the expiration or earlier termination of this Agreement.

Confirmation of Additional Rent. Tenant shall utilize, or cause to be utilized, an accounting system for the Leased Property in accordance with its usual and customary practices and in accordance with GAAP, which will accurately record all Net Resident Revenues and Tenant shall retain, for at least three (3) years after the expiration of each Lease Year, reasonably adequate records conforming to such accounting system showing all Net Resident Revenues for such Lease Year. Landlord, except as provided hereinbelow, shall have the right, exercisable by Notice to Tenant, by its accountants or representatives, to audit the information set forth in the Officer's Certificate referred to in subparagraph (c) above and, in connection with such audits, to examine Tenant's books and records with respect thereto (including supporting data and sales and excise tax returns). If any such audit discloses a deficiency in the payment of Additional Rent and, either Tenant agrees with the result of such audit or the matter is otherwise compromised with Landlord, Tenant shall forthwith pay to Landlord the amount of the deficiency, as finally agreed or determined, together with interest at the Interest Rate, from the date such payment should have been made to the date of payment thereof. If any such audit discloses that Tenant paid more Additional Rent for any Lease Year than was due hereunder, and either Landlord agrees with the result of such audit or the matter is otherwise determined, provided no Event of Default has occurred and is continuing, Landlord shall grant Tenant a credit against the Additional Rent next coming due in the amount of such difference, as finally agreed or determined, together with interest at the Interest Rate, which interest shall accrue from the time of payment by Tenant until the date such credit is applied or paid, as the case may be. If such credit cannot be made because the Term has expired prior to application in full thereof, provided no Event of Default has occurred and is continuing, Landlord shall pay the unapplied balance of such credit to Tenant, together with interest at the Interest Rate, which interest shall accrue from the date of payment by Tenant until the date of payment from Landlord. Any dispute concerning the correctness of an audit shall be settled by arbitration pursuant to the provisions of Article 22. Landlord shall pay for the cost of any such audit; provided, however, in the event that such audit reveals a deficiency in the payment of Additional Rent by Tenant of an aggregate of three percent (3%) or more, then Tenant shall reimburse Landlord for the actual costs of such audit. -23- Any proprietary information obtained by Landlord with respect to Tenant pursuant to the provisions of this Agreement shall be treated as confidential, except that such information may be used, subject to appropriate confidentiality safeguards, in any litigation between the parties and except further that Landlord may disclose such information to its prospective lenders, provided that Landlord shall direct such lenders to maintain such information as confidential. The obligations of Tenant and Landlord contained in this Section 3.1.2 shall survive the expiration or earlier termination of this Agreement.. 3.1.3