Common use of Confirmation of Percentage Rent Clause in Contracts

Confirmation of Percentage 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 and the Uniform System of Accounts, that will accurately record all data necessary to compute Percentage Rent for each Hotel, and Tenant shall retain, for at least five years after the expiration of each Lease Year, reasonably adequate records conforming to such accounting system showing all data necessary to conduct Landlord’s audit and to compute Percentage Rent for the applicable Lease Year. Landlord shall have the right, for a period of two years following each Lease Year, from time to time, by its accountants or representatives, to audit such information in connection with Landlord’s audit, and to examine all Tenant’s records (including supporting data and sales and excise tax returns) reasonably required to complete Landlord’s audit and to verify any Hotel’s Percentage Rent, subject to any prohibitions or limitations on disclosure of any such data under Legal Requirements. If any Landlord’s audit discloses a deficiency in the payment of Percentage Rent, and either Tenant agrees with the results of Landlord’s audit or the matter is otherwise determined or compromised, then 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 when said payment should have been made to the date of payment thereof. If any Landlord’s audit discloses a deficiency in the determination or reporting of Gross Revenue, which, as finally agreed or determined, exceeds three percent of the finally determined Gross Revenues of all Hotels, Tenant shall pay the costs of the portion of Landlord’s audit allocable to the determination of such Gross Revenues. Any proprietary information obtained by Landlord pursuant to the provisions of this Section 3.2 shall be treated as confidential, except that such information may be used, subject to appropriate confidentiality safeguards, in any litigation or arbitration between the parties and except further that Landlord may disclose such information to prospective lenders, investors, and underwriters and to any other persons to whom disclosure is necessary to comply with applicable laws, regulations, and government requirements. The obligations of Tenant contained in this Section 3.2 shall survive the expiration or earlier termination of this Lease. Any dispute as to the existence or amount of any deficiency in the payment of Percentage Rent as disclosed by Landlord’s audit shall, if not otherwise settled by the parties, be submitted to arbitration.

Confirmation of Percentage Rent. (a) Tenant shall utilizesubmit to Landlord on each rental payment date pursuant to Section 3.1.1 a reasonably detailed schedule (the "PERCENTAGE RENT SCHEDULE"), or cause signed and certified by Tenant to be utilizedcorrect, an accounting system showing the Revenues Computation with respect to the Facility for the Leased Property preceding Accounting Period and the calculation of the amount of Rent owed on such date (other than Additional Charges) by Tenant or the amount Landlord is required to pay to Tenant for such Accounting Period. Tenant's Percentage Rent Schedule shall clearly indicate how much of the Gross Revenues is comprised by Room Revenues, Food and Beverages Sales and Other Income, and shall contain such detail and breakdown as Landlord may reasonably require. If, after notice from Landlord and the expiration of the cure period provided for in Section 12.1(c) of this Lease, Tenant fails to submit the Percentage Rent Schedule to Landlord when due, Landlord, in addition to any other remedies Landlord has, shall have the right (subject to compliance with the Management Agreement and the Consent and Assignment) to retain an independent certified public accountant, at Tenant's sole expense, to prepare such Percentage Rent Schedule and to perform all inspections and audits related thereto. (b) Tenant shall maintain in accordance with its the usual and customary practices, practices of Tenant and in accordance with GAAP during the Term, for the current Fiscal Year and for the Uniform System immediately preceding Fiscal Year, (i) complete and accurate general books of Accountsaccount, which shall reflect Gross Revenues and which shall include, without limitation, those items set forth and described on Schedule 3.1.3(b) hereof, and (ii) all other original records and other ----------------- pertinent papers that will accurately record all data necessary enable Landlord to compute Percentage Rent for each Hoteldetermine the Gross Revenues derived by Tenant during the relevant Fiscal Year from Room Revenues, Food and Tenant shall retain, for at least five years after the expiration of each Lease Year, reasonably adequate Beverages Sales and Other Income. Such records conforming to such accounting system showing all data necessary to conduct Landlord’s audit and to compute Percentage Rent for the applicable Lease Yearcurrent and most recent Fiscal Year shall be maintained at Tenant's corporate headquarters. Landlord shall have the right, for a period of two years following each Lease Year, from time to time, by its accountants or representatives, to audit such information in connection with Landlord’s audit, and to examine all Tenant’s records (including supporting data and sales and excise tax returns) reasonably required to complete Landlord’s audit and to verify any Hotel’s Percentage Rent, subject to any prohibitions or limitations on disclosure of any such data under Legal Requirements. If any Landlord’s audit discloses a deficiency in the payment of Percentage Rent, and either Tenant agrees with the results of Landlord’s audit or the matter is otherwise determined or compromised, then 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 when said payment should have been made to the date of payment thereof. If any Landlord’s audit discloses a deficiency in the determination or reporting of Gross Revenue, which, as finally agreed or determined, exceeds three percent of the finally determined Gross Revenues of all Hotels, Tenant shall pay the costs of the portion of Landlord’s audit allocable to the determination of such Gross Revenues. Any proprietary information obtained by Landlord pursuant to the The provisions of this Section 3.2 shall be treated as confidential, except that such information may be used, subject to appropriate confidentiality safeguards, in any litigation or arbitration between the parties and except further that Landlord may disclose such information to prospective lenders, investors, and underwriters and to any other persons to whom disclosure is necessary to comply with applicable laws, regulations, and government requirements. The obligations of Tenant contained in this Section 3.2 3.1.3(b) shall survive the expiration or earlier termination of this LeaseLease for a period of three (3) years thereafter, subject to extension upon Notice from Landlord, provided that all storage and related expenses of maintaining records beyond such three-year period shall be at Landlord's sole cost and expense. Any dispute as In addition to the existence or amount of any deficiency audit rights set forth in Section 3.1.3(c) below, in the event Landlord, any Lending Institution, any Facility Mortgagee, or any potential purchaser of the Leased Property, or any of their respective representatives, desires to audit Tenant's financial records described in clauses (i) and (ii) above, Tenant shall, at Landlord's sole cost and expense, cooperate with such audit by making such records available at Tenant's corporate headquarters during normal business hours upon reasonable prior Notice. (c) Landlord shall have fifty (50) days after the receipt of the Year End Percentage Rent Schedule to have an independent certified public accountant examine Tenant's records, during regular business hours upon reasonable prior Notice by Landlord, of Room Revenues, Food and Beverages Sales, and/or Other Income for the related Fiscal Year and all other relevant financial information. The acceptance by Landlord of each periodic payment of Percentage Rent shall not prejudice Landlord's right to proceed with such examination as disclosed described in the immediately preceding sentence. If Landlord raises no objections within such fifty (50)-day period, the Year End Percentage Rent Schedule shall be deemed to have been accepted by Landlord as true and correct, and Landlord shall have no further right to question its accuracy. If Landlord does raise such an objection, by Notice to Tenant, Landlord shall arrange for an independent certified public accountant to commence such examination within fifty (50) days after the date of such objection and shall cause such audit to be completed no later than one hundred eighty (180) days after Landlord’s 's receipt of the Year End Percentage Rent Schedule. Landlord shall pay all costs and expenses of such audit; provided, however: (i) if such audit shalldiscloses that the amount of Percentage Rent was underreported by Tenant by five percent (5%) or more for such Fiscal Year, Tenant shall pay to Landlord, within fifteen (15) days of its receipt of Notice from Landlord, the cost of the audit, as Additional Charges, in addition to any deficiency in Percentage Rent that may be due to Landlord; or (ii) if the audit discloses that the amount of Percentage Rent either was not otherwise settled underreported or was underreported by Tenant by less than five percent (5%), Landlord shall be responsible for all costs associated with the partiesaudit and Tenant shall pay, within fifteen (15) days of its receipt of Notice from Landlord, any deficiency in Percentage Rent that may be submitted due to arbitrationLandlord; or (iii) if the audit discloses that the Percentage Rent was overreported by Tenant for the related Fiscal Year, Landlord shall be responsible for all costs associated with the audit, shall give Tenant Notice of such overreporting within fifteen (15) days of Landlord's receipt of audit results, and shall reimburse the amount of such overpayment to Tenant in cash along with delivery of such Notice to Tenant. The provisions of this Section shall survive the expiration or the earlier termination of this Lease for a period of one (1) year thereafter.

Confirmation of Percentage Rent. (a) Tenant shall utilizesubmit to Landlord on each rental payment date pursuant to Section 3. 1.1 a reasonably detailed schedule (the "Percentage Rent Schedule"), or cause signed and certified by Tenant to be utilizedcorrect, an accounting system showing the Revenues Computation with respect to the Facility for the Leased Property preceding Accounting Period and the calculation of the amount of Rent owed on such date (other than Additional Charges) by Tenant or the amount Landlord is required to pay to Tenant for such Accounting Period. Tenant's Percentage Rent Schedule shall clearly indicate how much of the Gross Revenues is comprised by Room Revenues, Food and Beverages Sales and Other Income, and shall contain such detail and breakdown as Landlord may reasonably require. If, after notice from Landlord and the expiration of the cure period provided for in Section 12.1(c) of this Lease, Tenant fails to submit the Percentage Rent Schedule to Landlord when due, Landlord, in addition to any other remedies Landlord has, shall have the right (subject to compliance with the Management Agreement and the Consent and Assignment) to retain an independent certified public accountant, at Tenant's sole expense, to prepare such Percentage Rent Schedule and to perform all inspections and audits related thereto. (b) Tenant shall maintain in accordance with its the usual and customary practices, practices of Tenant and in accordance with GAAP during the Term, for the current Fiscal Year and for the Uniform System immediately preceding Fiscal Year, (i) complete and accurate general books of Accountsaccount, which shall reflect Gross Revenues and which shall include, without limitation, those items set forth and described on Schedule 3.1.3(b) hereof, and (ii) all other original records and ----------------- other pertinent papers that will accurately record all data necessary enable Landlord to compute Percentage Rent for each Hoteldetermine the Gross Revenues derived by Tenant during the relevant Fiscal Year from Room Revenues, Food and Tenant shall retain, for at least five years after the expiration of each Lease Year, reasonably adequate Beverages Sales and Other Income. Such records conforming to such accounting system showing all data necessary to conduct Landlord’s audit and to compute Percentage Rent for the applicable Lease Yearcurrent and most recent Fiscal Year shall be maintained at Tenant's corporate headquarters. Landlord shall have the right, for a period of two years following each Lease Year, from time to time, by its accountants or representatives, to audit such information in connection with Landlord’s audit, and to examine all Tenant’s records (including supporting data and sales and excise tax returns) reasonably required to complete Landlord’s audit and to verify any Hotel’s Percentage Rent, subject to any prohibitions or limitations on disclosure of any such data under Legal Requirements. If any Landlord’s audit discloses a deficiency in the payment of Percentage Rent, and either Tenant agrees with the results of Landlord’s audit or the matter is otherwise determined or compromised, then 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 when said payment should have been made to the date of payment thereof. If any Landlord’s audit discloses a deficiency in the determination or reporting of Gross Revenue, which, as finally agreed or determined, exceeds three percent of the finally determined Gross Revenues of all Hotels, Tenant shall pay the costs of the portion of Landlord’s audit allocable to the determination of such Gross Revenues. Any proprietary information obtained by Landlord pursuant to the The provisions of this Section 3.2 shall be treated as confidential, except that such information may be used, subject to appropriate confidentiality safeguards, in any litigation or arbitration between the parties and except further that Landlord may disclose such information to prospective lenders, investors, and underwriters and to any other persons to whom disclosure is necessary to comply with applicable laws, regulations, and government requirements. The obligations of Tenant contained in this Section 3.2 shall survive the expiration or earlier termination of this Lease. Any dispute as to the existence or amount of any deficiency in the payment of Percentage Rent as disclosed by Landlord’s audit shall, if not otherwise settled by the parties, be submitted to arbitration.3.1.3

Confirmation of Percentage 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 and the Uniform System of Accounts, that will accurately record all data necessary to compute Percentage Rent for each HotelRent, and Tenant shall retain, for at least five (5) years after the expiration of each Lease Year, reasonably adequate records conforming to such accounting system showing all data necessary to conduct Landlord’s audit 's Audit and to compute Percentage Rent for the applicable Lease Year. Landlord shall have the right, for a period of two (2) years following each Lease Year, from time to time, by its accountants or representatives, to audit such information in connection with Landlord’s audit's Audit, and to examine all Tenant’s 's records (including supporting data and sales and excise tax returns) reasonably required to complete Landlord’s audit 's Audit and to verify any Hotel’s Percentage Rent, subject to any prohibitions or limitations on disclosure of any such data under Legal Requirements. If any Landlord’s audit 's Audit discloses a deficiency in the payment of Percentage Rent, and either Tenant agrees with the results of Landlord’s audit 's Audit or the matter is otherwise determined or compromised, then 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 when said payment should have been made to the date of payment thereof. If any Landlord’s audit 's Audit discloses a deficiency in the determination or reporting of Gross Revenue, which, as finally agreed or determined, exceeds three percent of the finally determined Gross Revenues of all Hotels(3%), Tenant shall pay the costs of the portion of Landlord’s audit 's Audit allocable to the determination of such Gross RevenuesRevenues (the "Revenue Audit"). Any proprietary information obtained by Landlord pursuant to the provisions of this Section 3.2 shall be treated as confidential, except that such information may be used, subject to appropriate confidentiality safeguards, in any litigation or arbitration between the parties and except further that Landlord may disclose such information to prospective lenders, investors, investors and underwriters and to any other persons to whom disclosure is necessary to comply with applicable laws, regulations, regulations and government requirements. The obligations of Tenant contained in this Section 3.2 shall survive the expiration or earlier termination of this Lease. Any dispute as to the existence or amount of any deficiency in the payment of Percentage Rent as disclosed by Landlord’s audit 's Audit shall, if not otherwise settled by the parties, be submitted to arbitrationarbitration pursuant to the provisions of Article 19.