Officer's Certificates; Financial Statements; Lessor's Estoppel Certificates and Covenants. (a) At any time and from time to time upon not less than 10 days Notice by Lessor, Lessee will furnish to Lessor an Officer's Certificate certifying that this Lease is unmodified and in full force and effect (or that this Lease is in full force and effect as modified and setting forth the modifications), the date to which the Rent has been paid, whether to the knowledge of Lessee there is any existing default or Event of Default hereunder by Lessor or Lessee, and such other information as may be reasonably requested by Lessor. Any such certificate furnished pursuant to this Section may be relied upon by Lessor, any lender, any underwriter and any prospective purchaser of the Leased Property. (b) Lessee will furnish, at Lessee's cost and expense, the following statements and operating information to Lessor, each in a form satisfactory to Lessor: (i) Consolidated Financials of Lessee for each calendar quarter of each Lease Year, and for each calendar quarter in the Lease Year-to-date, within 20 days after the end of such calendar quarter; (ii) Consolidated Financials of Lessee and each Affiliate of Lessee, if any, that leases hotel properties from Lessor or its Affiliates, for each calendar quarter of each Lease Year, and for each calendar quarter in the Lease Year to date, within 20 days after the end of such calendar quarter; (iii) audited Consolidated Financials of Lessee for each Lease Year, including the auditor's report thereon, within 60 days after the end of such year; (iv) audited Consolidated Financials of Lessee and each Affiliate of Lessee that leases hotel properties from Lessor or its Affiliates, if any, for each Lease Year, including the auditor's report thereon, within 60 days after the end of such year. The fees and expenses of the auditor incurred in connection with conducting such audits and delivering such reports shall be paid by Lessor; (v) with reasonable promptness, such other information respecting the financial condition and affairs of Lessee (A) as Lessor or the Company may require or may deem desirable in its discretion to file with or provide to the SEC or any other governmental agency or any other Person, all in the form, and either audited or unaudited, as Lessor may request in Lessor's reasonable discretion, and (B) as may be reasonably necessary to confirm compliance by Lessee and its Affiliates with the requirements of this Lease; (vi) on or before the 20th day of each calendar quarter, a balance sheet, and detailed profit and loss and cash flow statements showing the financial position of the Facility as at the end of the preceding calendar quarter, the results of operation of the Facility for such preceding calendar quarter and the Lease Year-to-date and the average daily rate, occupancy and revenue-per-available room of the Facility in such preceding calendar quarter; (vii) within five (5) days of Lessee's receipt thereof, any inspection reports received from the franchisor under the Franchise Agreement; and (viii) such other information as Lessor may reasonably request and that Lessee can provide without unreasonable expense. (c) At any time and from time to time upon not less than 10 days notice by Lessee, Lessor will furnish to Lessee or to any person designated by Lessee an estoppel certificate certifying that this Lease is unmodified and in full force and effect (or that this Lease is in full force and effect as modified and setting forth the modifications), the date to which Rent has been paid, whether to the knowledge of Lessor there is any existing default or Event of Default on Lessee's part hereunder, and such other information as may be reasonably requested by Lessee. Any such certificate furnished pursuant to this Section may be relied upon by Lessee, any lender, any underwriter and any purchaser of the assets of Lessee. (d) If Company or Lessor proposes to include in any submission or filing with its lender, stock exchange or the SEC, Consolidated Financials of Lessee delivered or required to be delivered hereunder and the consent of Lessee's auditor is required for such inclusion, Lessee shall use commercially reasonable efforts to cause its auditor to deliver promptly to Lessor the auditor's consent, in the form required, to the inclusion in the submission or filing of the Consolidated Financials (including the report of the auditor, if the Consolidated Financials to be included are audited). Lessee shall reasonably cooperate with Lessor regarding Lessee's auditor's compliance with such requests with the purpose of minimizing costs and delays. Lessee shall reasonably cooperate with all requests made by its auditor, Lessor or the SEC to promptly provide to the auditor, Lessor or SEC such information or documents, including consents and representation letters, as may be necessary or desirable in connection with the preparation, delivery, audit or inclusion in SEC filings, submissions or other public documents, of information, including financial information, related to the Leased Property, the operation and financial results of the Leased Property, and the financial results and condition of the Lessee. Without limiting the foregoing, the information shall be sufficient to permit the preparation of a Management's Discussion and Analysis of Results of Operations and Financial Condition with respect to the Lessee as may be required to be included in reports and documents filed by the Company with the SEC. Lessee shall not be obligated to incur material additional expense to prepare any reports or information not specifically provided for herein that Lessor or Company may be required or elect to file with the SEC, and such material additional third-party costs shall be paid or reimbursed by Lessor.
Appears in 4 contracts
Samples: Lease Agreement (Hersha Hospitality Trust), Lease Agreement (Hersha Hospitality Trust), Lease Agreement (Hersha Hospitality Trust)
Officer's Certificates; Financial Statements; Lessor's Estoppel Certificates and Covenants. (a) At any time and from time to time upon not less than 10 days ten (10) days' Notice by Lessor, Lessee will furnish to Lessor an Officer's Certificate certifying that this Lease is unmodified and in full force and effect (or that this Lease is in full force and effect as modified and setting forth the modifications), the date to which the Rent has been paid, whether to the knowledge of Lessee there is any existing default or Event of Default hereunder by Lessor or Lessee, and such other information as may be reasonably requested by Lessor. Any such certificate furnished pursuant to this Section may be relied upon by Lessor, any lender, any underwriter lender and any prospective purchaser of the Leased Property.
(b) Throughout the Term, Lessee will furnishfurnish to Lessor all financial statements and financial and operating information, at and access to Lessee's cost books and expense, the following statements and operating information to records as are required by Lessor, each in a form satisfactory to Lessor:
(i) Consolidated Financials of Lessee for each calendar quarter of each Lease Year, and for each calendar quarter in the Lease Year-to-date, within 20 days after the end of such calendar quarter;
(ii) Consolidated Financials of Lessee and each Affiliate of Lessee, if any, that leases hotel properties from Lessor or its Affiliates, for each calendar quarter of each Lease Year, and for each calendar quarter in the Lease Year to date, within 20 days after the end of such calendar quarter;
(iii) audited Consolidated Financials of Lessee for each Lease Year, including the auditor's report thereon, within 60 days after the end of such year;
(iv) audited Consolidated Financials of Lessee and each Affiliate of Lessee that leases hotel properties from Lessor or its Affiliates, if any, for each Lease Year, including the auditor's report thereon, within 60 days after the end of such year. The fees and expenses of the auditor incurred in connection with conducting such audits and delivering such reports shall be paid as reasonably determined by Lessor;
(v) with reasonable promptness, such other information respecting the financial condition and affairs of Lessee (A) as Lessor or the Company may require or may deem desirable in its discretion to file with or provide to the SEC or any other governmental agency or any other Person, all in the form, and either audited or unaudited, as Lessor may request in Lessor's reasonable discretion, and (B) as may be reasonably necessary to confirm compliance by Lessee and its Affiliates with the requirements of this Lease;
(vi) on or before the 20th day of each calendar quarter, a balance sheet, and detailed profit and loss and cash flow statements showing the financial position of the Facility as at the end of the preceding calendar quarter, the results of operation of the Facility for such preceding calendar quarter and the Lease Year-to-date and the average daily rate, occupancy and revenue-per-available room of the Facility in such preceding calendar quarter;
(vii) within five (5) days of Lessee's receipt thereof, any inspection reports received from the franchisor under the Franchise Agreement; and
(viii) such other information as Lessor may reasonably request and that Lessee can provide without unreasonable expense.
(c) At any time and from time to time upon not less than 10 days notice ten (10) days' Notice by Lessee, Lessor will furnish to Lessee or to any person designated by Lessee an estoppel certificate certifying that this Lease is unmodified and in full force and effect (or that this Lease is in full force and effect as modified and setting forth the modifications), the date to which Rent has been paid, whether to the knowledge of Lessor there is any existing default or Event of Default on Lessee's part hereunder, and such other information as may be reasonably requested by Lessee. Any such certificate furnished pursuant to this Section may be relied upon by Lessee, any lender, any underwriter and any purchaser of the assets of Lessee.
(d) Within twenty (20) days after the close of each Accounting Period, Lessee shall cause Manager to deliver an interim accounting (the "Accounting Period Statement") to Lessor showing Gross Revenues, and applications and distributions thereof for the preceding Accounting Period. Lessee shall cause Manager to transfer to Lessee, with each Accounting Period Statement, any interim amounts due Lessee subject to Working Capital needs, and shall retain any interim amounts due Manager. Calculations and payments of the management fees due Manager, and distributions to Lessee made with respect to each Accounting Period within a Fiscal Year shall be accounted for cumulatively. Within sixty (60) days after the end of each Fiscal Year, Lessee shall cause Manager to deliver to Lessee and Lessor a statement (the "Annual Operating Statement") in reasonable detail summarizing the operations of the Hotel for the immediately preceding Fiscal Year and a certificate of Manager's chief accounting officer certifying that, to the best of his or her knowledge, such Annual Operating Statement is true and correct. Subject to the right to audit described in Section 23.1(e) below, the parties shall, within ten (10) business days after Lessor's receipt of such Annual Operating Statement, make any adjustments, by cash payment, in the amounts paid or retained for such Fiscal Year as are needed because of the final figures set forth in such Annual Operating Statement. Such Annual Operating Statement shall be controlling over the preceding Accounting Period Statements. Notwithstanding anything to the contrary herein, so long as the Management Agreement is in full force and effect, to the extent the financial reporting requirements herein are different than the financial reporting requirements in the Management Agreement, the financial requirements in the Management Agreement shall control over the financial reporting requirements herein, including those set forth in Sections 23.1(e), (f) and (g) hereof.
(e) Books of control and account pertaining to operations at the Hotel shall be kept on the accrual basis and in all material respects in accordance with the Uniform System and generally acceptable accounting principles consistently applied. Lessee, upon Lessor's reasonable request and at reasonable intervals during Manager's normal business hours, shall examine such records. If Company Lessor desires Lessee to audit, examine or review the Annual Operating Statement, Lessor proposes shall notify Lessee and Manager in writing within sixty (60) days after receipt of such Annual Operating Statement of its desire for Lessee to include audit and Lessee shall begin such audit no sooner than thirty (30) days and no later than sixty (60) days after Manager's receipt of such notice. Lessee shall complete such audit within ninety (90) days after commencement thereof. The terms of the Management Agreement concerning such audit shall govern the same.
(f) Lessee shall cause all funds derived from operation of the Hotel to be deposited by Manager in bank accounts (the "Operating Accounts") established by Manager and Lessee in a bank or banks designated by Manager, subject to Lessor's reasonable approval. Withdrawals from said Operating Accounts shall be made solely by representatives whose signatures have been authorized by Lessee. Reasonable xxxxx cash funds can be maintained at the Hotel. Lessee shall cause all payments to be made by Manager under the Management Agreement to be made from the Operating Accounts, xxxxx cash funds, or from the FF&E Reserve (in accordance with the terms of the Management Agreement). Lessee may elect to cause Manager to pay any submission or filing with its lender, stock exchange or the SEC, Consolidated Financials of Lessee delivered or payments required to be delivered hereunder and the consent of Lessee's auditor is required for such inclusion, Lessee shall use commercially reasonable efforts to cause its auditor to deliver promptly to paid by Lessor the auditor's consent, in the form required, to the inclusion existing mortgagee in accordance with the submission or filing terms of the Consolidated Financials (including the report of the auditorMortgage, if the Consolidated Financials and any other amounts required to be included are audited). Lessee shall reasonably cooperate with paid by Lessor regarding Lessee's auditor's compliance with under this Lease, and any such requests with the purpose of minimizing costs and delays. Lessee shall reasonably cooperate with all requests made sums so paid by its auditor, Lessor or the SEC to promptly provide Manager to the auditor, existing mortgagee or to any other party on behalf of Lessor or SEC such information or documents, including consents and representation letters, as may shall be necessary or desirable in connection with the preparation, delivery, audit or inclusion in SEC filings, submissions or other public documents, of information, including financial information, related credited against Rent payments due hereunder from Lessee to the Leased Property, the operation and financial results of the Leased Property, and the financial results and condition of the LesseeLessor. Without limiting Notwithstanding the foregoing, any amounts paid to the information existing mortgagee or to any other party on behalf of Lessor that exceed Rent payments hereunder shall be sufficient reimbursed to permit the preparation of a Management's Discussion and Analysis of Results of Operations and Financial Condition with respect to the Lessee as may be required to be included in reports and documents filed by the Company with the SEC. Lessee shall not be obligated to incur material additional expense to prepare any reports or information not specifically provided for herein that Lessor or Company may be required or elect to file with the SEC, and such material additional third-party costs shall be paid or reimbursed by Lessor.
Appears in 3 contracts
Samples: Lease Agreement (Strategic Hotel Capital Inc), Lease Agreement (Strategic Hotel Capital Inc), Lease Agreement (Strategic Hotel Capital Inc)
Officer's Certificates; Financial Statements; Lessor's Estoppel Certificates and Covenants. (a) At any time and from time to time upon not less than 10 days Notice by Lessor, Lessee will furnish to Lessor an Officer's Certificate certifying that this Lease is unmodified and in full force and effect (or that this Lease is in full force and effect as modified and setting forth the modifications), the date to which the Rent has been paid, whether to the knowledge of Lessee there is any existing default or Event of Default hereunder by Lessor or Lessee, and such other information as may be reasonably requested by Lessor. Any such certificate furnished pursuant to this Section may be relied upon by Lessor, any lender, any underwriter and any prospective purchaser of the Leased Property.
(b) Lessee will furnish, at Lessee's cost and expense, furnish the following statements and operating information to Lessor, each in a form satisfactory to Lessor:
(i1) the most recent Consolidated Financials of Lessee for each calendar quarter of each Lease Year, and for each calendar quarter in the Lease Year-to-date, within 20 days after each quarter of any fiscal year (or, in the end case of such calendar quarterthe final quarter in any fiscal year, the most recent audited Consolidated Financial of Lessee within 45 days);
(ii) Consolidated Financials of Lessee and each Affiliate of Lessee, if any, that leases hotel properties from Lessor or its Affiliates, for each calendar quarter of each Lease Year, and for each calendar quarter in the Lease Year to date, within 20 days after the end of such calendar quarter;
(iii) audited Consolidated Financials of Lessee for each Lease Year, including the auditor's report thereon, within 60 days after the end of such year;
(iv) audited Consolidated Financials of Lessee and each Affiliate of Lessee that leases hotel properties from Lessor or its Affiliates, if any, for each Lease Year, including the auditor's report thereon, within 60 days after the end of such year. The fees and expenses of the auditor incurred in connection with conducting such audits and delivering such reports shall be paid by Lessor;
(v2) with reasonable promptness, such other information respecting the financial condition condition, operations and affairs of Lessee and the Leased Property (A) as Lessor or the Company may require be required or may deem desirable in its reasonable discretion to file with or provide to the SEC or any other governmental agency or any other Person, all in the form, and either audited or unaudited, as Lessor may request in Lessor's reasonable discretiondiscretion and all to be prepared at Lessor's expense to the extent that such information is not otherwise maintained by Lessee in the normal course of its business.
(3) on the second business day after the 7th 14th, 21st and the last day of each month a weekly report of revenues, by department for the then current month which shall compare actual revenues to the prior year period. Such weekly revenue report shall contain the adjusted daily rate, occupancy, RevPAR, the total Food and Beverage Sales and Room Revenues of the Leased Property. Such weekly revenue report shall also contain the revenue budget for the month and a new revenue forecast for the month. Such forecast shall be updated with the weekly revenue report due on the second business day after the 14th of the month. In addition, Lessee will inform Lessor of any material changes to the revenue budget for the two months immediately following the then current month.
(4) on the 10th day of each month, a monthly lease calculation of the then current month, prepared in the format required by Lessor and forwarded to Lessor via e-mail or facsimile, reflecting the revenues at the Facility, by department, and (B) as may be reasonably necessary the actual lease calculation for the month and year to confirm compliance by Lessee and its Affiliates with the requirements of this Lease;date.
(vi5) on or before the 10th Business Day of each month, complete financial reporting statements shall be forwarded to Lessor. The financial reporting statements shall include, but shall not be limited to, an income statement, balance sheet and statistical reports.
(6) on the 20th day of each calendar quartermonth, a balance sheet, and detailed profit and loss and cash flow statements showing the financial position of the Facility as at the end of the preceding calendar quartermonth (including the average daily rate and occupancy of the Facility), and the results of operation of the Facility for such preceding calendar quarter month and the Lease Year-to-Year to date (including a comparison to the Operating Budget as approved); and
(7) at the end of each of March, June and September of each year, Lessee shall engage the average daily rateAuditor, occupancy and revenue-per-available room at Lessee's expense, to review the revenues of the Facility and the monthly Lease calculations. Such review shall be completed by the 20th day following the end of each of March, June and September of each year and Lessee shall cause such Auditor to provide Lessor with a letter stating that the review has been completed and such letter shall also state whether any material errors were found and the nature of such errors. The quarterly operating statements reviewed at such dates prepared by the Manager, shall be accompanied by explanations of any variances, which explanations shall be in such preceding calendar quarter;a form suitable for use in the Security Exchange Commission ("SEC") required disclosure analysis.
(vii8) in January of each year, Lessee shall engage the Auditor, at Lessee's expense, to review the revenues of the Facility and the monthly Lease calculations. Such review shall be completed by the 20th day of January of each year and Lessee shall cause such Auditor to provide Lessor with a letter stating that the review has been completed and such letter shall also state whether any material errors were found and the nature of such errors. A complete audit financial package must be provided to Lessor by the 10th Business day of February of each year. The quarterly operating statement reviewed at such date, prepared by Manager, shall be accompanied by explanations of any variances, which explanations shall be in a form suitable for use in the SEC required disclosure analysis.
(9) within five (5) 10 days of Lessee's receipt thereof, any inspection reports or notices of default received from the franchisor under the Franchise Agreement; and
(viii) such other information as Lessor may reasonably request and that Lessee can provide without unreasonable expense.
(c) Lessee shall at all times during the term of this Lease, at no cost or expense to Lessee, cooperate with Lessor's accountants and provide them with access to all financial and other information relating to Lessee and the Leased Property, and access to Lessee's accountants, work papers and to otherwise assist in minimizing the cost of the audit, sufficient to enable the Company to prepare audited financial statements in conformity with Regulation S- X of the SEC and to enable the Company to satisfy its reporting obligations under the Securities Exchange Act of 1934, as amended, or to prepare a registration statement, report or disclosure statement for filing with the SEC on behalf of the Company and/or its Affiliates and Lessee shall execute any representation letters reasonably requested by Lessor's accountants in connection with the foregoing.
(d) At any time and from time to time upon not less than 10 days notice by Lessee, Lessor will furnish to Lessee or to any person designated by Lessee an estoppel certificate certifying that this Lease is unmodified and in full force and effect (or that this Lease is in full force and effect as modified and setting forth the modifications), the date to which Rent has been paid, whether to the knowledge of Lessor there is any existing default or Event of Default on Lessee's part hereunder, and such other information as may be reasonably requested by Lessee. Any such certificate furnished pursuant to this Section section may be relied upon by Lessee, any lender, any underwriter and any purchaser of the assets of Lessee.
(d) If Company or Lessor proposes to include in any submission or filing with its lender, stock exchange or the SEC, Consolidated Financials of Lessee delivered or required to be delivered hereunder and the consent of Lessee's auditor is required for such inclusion, Lessee shall use commercially reasonable efforts to cause its auditor to deliver promptly to Lessor the auditor's consent, in the form required, to the inclusion in the submission or filing of the Consolidated Financials (including the report of the auditor, if the Consolidated Financials to be included are audited). Lessee shall reasonably cooperate with Lessor regarding Lessee's auditor's compliance with such requests with the purpose of minimizing costs and delays. Lessee shall reasonably cooperate with all requests made by its auditor, Lessor or the SEC to promptly provide to the auditor, Lessor or SEC such information or documents, including consents and representation letters, as may be necessary or desirable in connection with the preparation, delivery, audit or inclusion in SEC filings, submissions or other public documents, of information, including financial information, related to the Leased Property, the operation and financial results of the Leased Property, and the financial results and condition of the Lessee. Without limiting the foregoing, the information shall be sufficient to permit the preparation of a Management's Discussion and Analysis of Results of Operations and Financial Condition with respect to the Lessee as may be required to be included in reports and documents filed by the Company with the SEC. Lessee shall not be obligated to incur material additional expense to prepare any reports or information not specifically provided for herein that Lessor or Company may be required or elect to file with the SEC, and such material additional third-party costs shall be paid or reimbursed by Lessor.
Appears in 2 contracts
Samples: Merger Agreement (American General Hospitality Corp), Merger Agreement (Capstar Hotel Co)
Officer's Certificates; Financial Statements; Lessor's Estoppel Certificates and Covenants. (a) At any time and from time to time upon not less than 10 twenty (20) days Notice by Lessor, Lessee will furnish to Lessor an Officer's Certificate certifying that this Lease is unmodified and in full force and effect (or that this Lease is in full force and effect as modified and setting forth the modifications), the date to which the Rent has been paid, whether to the knowledge of Lessee there is any existing default or Event of Default hereunder by Lessor or Lessee, and such other information as may be reasonably requested by Lessor or Lessor's lender. Any such certificate furnished pursuant to this Section Article may be relied upon by Lessor, any lender, any underwriter lender and any prospective purchaser of the Leased Property.
(b) Lessee will furnish, at Lessee's cost and expense, furnish the following statements and operating information to Lessor, each in a form satisfactory to Lessor:
(i) Consolidated Financials of Lessee for each calendar quarter of each Lease Year, and for each calendar quarter in the Lease Year-to-date, within 20 days after the end of such calendar quarter;
(ii) Consolidated Financials of Lessee and each Affiliate of Lessee, if any, that leases hotel properties from Lessor or its Affiliates, for each calendar quarter of each Lease Year, and for each calendar quarter in the Lease Year to date, within 20 days after the end of such calendar quarter;
(iii) audited Consolidated Financials of Lessee for each Lease Year, including the auditor's report thereon, within 60 days after the end of such year;
(iv) audited Consolidated Financials of Lessee and each Affiliate of Lessee that leases hotel properties from Lessor or its Affiliates, if any, for each Lease Year, including the auditor's report thereon, within 60 days after the end of such year. The fees and expenses of the auditor incurred in connection with conducting such audits and delivering such reports shall be paid by Lessor;
(v) with reasonable promptness, such other information respecting the financial condition and affairs of Lessee (A) as Lessor or the Company may require or may deem desirable in its discretion to file with or provide to the SEC or any other governmental agency or any other Person, all in the form, and either audited or unaudited, as Lessor may request in Lessor's reasonable discretion, and (B) as may be reasonably necessary to confirm compliance by Lessee and its Affiliates with the requirements of this Lease;
(vi1) on or before the 20th twentieth (20th) day of each calendar quartermonth, a balance sheet, and detailed profit and loss and cash flow statements showing statement for the financial position of Leased Property detailed by Facility for the preceding month, a balance sheet for the Leased Property detailed by Facility as at of the end of the preceding calendar quartermonth, and a detailed accounting of revenues for the results of operation of the Leased Property detailed by Facility for the preceding month, and such preceding calendar quarter and the Lease Year-to-date and the average daily rateother information as may be requested by Lessor or required by Lessor's lender, occupancy and revenue-per-available room of the Facility each in such preceding calendar quarter;
(vii) within five (5) days of Lessee's receipt thereof, any inspection reports received from the franchisor under the Franchise Agreementform acceptable to Lessor; and
(viii2) the most recent Consolidated Financials of Lessee within thirty (30) days after each quarter of any Fiscal Year (or, in the case of the final quarter in any Fiscal Year, the most recent Audited Consolidated Financials of Lessee within sixty (60) days after such other information as Lessor may reasonably request and that final quarter; and
(3) any financial statements received by Lessee can provide without unreasonable expensefrom Lessee's Manager.
(c) At any time and from time to time upon not less than 10 twenty (20) days notice by Lessee, Lessor will furnish to Lessee or to any person designated by Lessee an estoppel certificate certifying that this Lease is unmodified and in full force and effect (or that this Lease is in full force and effect as modified and setting forth the modifications), the date to which Rent has been paid, whether to the knowledge of Lessor there is any existing default or Event of Default on Lessee's part hereunder, and such other information as may be reasonably requested by Lessee. Any such certificate furnished pursuant to this Section may be relied upon by Lessee, any lender, any underwriter and any purchaser of the assets of Lessee.
(d) If Company or Lessor proposes to include in any submission or filing with its lender, stock exchange or the SEC, Consolidated Financials of Lessee delivered or required to be delivered hereunder and the consent of Lessee's auditor is required for such inclusion, Lessee shall use commercially reasonable efforts to cause its auditor to deliver promptly to Lessor the auditor's consent, in the form required, to the inclusion in the submission or filing of the Consolidated Financials (including the report of the auditor, if the Consolidated Financials to be included are audited). Lessee shall reasonably cooperate with Lessor regarding Lessee's auditor's compliance with such requests with the purpose of minimizing costs and delays. Lessee shall reasonably cooperate with all requests made by its auditor, Lessor or the SEC to promptly provide to the auditor, Lessor or SEC such information or documents, including consents and representation letters, as may be necessary or desirable in connection with the preparation, delivery, audit or inclusion in SEC filings, submissions or other public documents, of information, including financial information, related to the Leased Property, the operation and financial results of the Leased Property, and the financial results and condition of the Lessee. Without limiting the foregoing, the information shall be sufficient to permit the preparation of a Management's Discussion and Analysis of Results of Operations and Financial Condition with respect to the Lessee as may be required to be included in reports and documents filed by the Company with the SEC. Lessee shall not be obligated to incur material additional expense to prepare any reports or information not specifically provided for herein that Lessor or Company may be required or elect to file with the SEC, and such material additional third-party costs shall be paid or reimbursed by Lessor.
Appears in 2 contracts
Samples: Percentage Lease Agreement (Red Lion Inns Limited Partnership), Percentage Lease Agreement (Boykin Lodging Co)
Officer's Certificates; Financial Statements; Lessor's Estoppel Certificates and Covenants. (a) At any time and from time to time upon not less than 10 30 days Notice by Lessor, Lessee will furnish to Lessor an Officer's Certificate certifying that this Lease is unmodified and in full force and effect (or that this Lease is in full force and effect as modified and setting forth the modifications), the date to which the Rent has been paid, whether to the knowledge of Lessee there is any existing default or Event of Default hereunder by Lessor or Lessee, and such other information as may be reasonably requested by Lessor. Any such certificate furnished pursuant to this Section may be relied upon by Lessor, any lender, any underwriter lender and any prospective purchaser of the Leased Property.
(b) Lessee will furnish, at Lessee's cost and expense, furnish the following statements and operating information to Lessor, each in a form satisfactory to Lessor:
(i) Consolidated Financials of Lessee for each calendar quarter of each Lease Year, and for each calendar quarter in the Lease Year-to-date, within 20 days after the end of such calendar quarter;
(ii) Consolidated Financials of Lessee and each Affiliate of Lessee, if any, that leases hotel properties from Lessor or its Affiliates, for each calendar quarter of each Lease Year, and for each calendar quarter in the Lease Year to date, within 20 days after the end of such calendar quarter;
(iii) audited Consolidated Financials of Lessee for each Lease Year, including the auditor's report thereon, within 60 days after the end of such year;
(iv) audited Consolidated Financials of Lessee and each Affiliate of Lessee that leases hotel properties from Lessor or its Affiliates, if any, for each Lease Year, including the auditor's report thereon, within 60 days after the end of such year. The fees and expenses of the auditor incurred in connection with conducting such audits and delivering such reports shall be paid by Lessor;
(v1) with reasonable promptness, such other information respecting the financial condition and affairs of Lessee (A) as Lessee, including audited financial statements prepared by the same certified independent accounting firm that prepares the returns for Lessor or the Company such other accounting firm as may require or may deem desirable in its discretion to file with or provide to the SEC or any other governmental agency or any other Person, all in the form, and either audited or unauditedbe approved by Lessor, as Lessor may request in Lessor's reasonable discretion, and (B) as may be reasonably necessary from time to confirm compliance by Lessee and its Affiliates with the requirements of this Lease;time; and
(vi2) the most recent Consolidated Financials of Lessee within 45 days after each quarter of any Fiscal Year (or, in the case of the final quarter in any Fiscal Year, the most recent audited Consolidated Financials of Lessee within 90 days); and
(3) on or before about the 20th 15th day of each calendar quartermonth, a balance sheet, and detailed profit and loss and cash flow statements showing statement for the financial position Leased Property for the preceding month, a balance sheet for the Leased Property as of the Facility as at the end of the preceding calendar quartermonth, and a detailed accounting of revenues for the results of operation of Leased Property for the Facility for such preceding calendar quarter and the Lease Year-to-date and the average daily ratemonth, occupancy and revenue-per-available room of the Facility each in such preceding calendar quarter;
(vii) within five (5) days of Lessee's receipt thereof, any inspection reports received from the franchisor under the Franchise Agreement; and
(viii) such other information as Lessor may reasonably request and that Lessee can provide without unreasonable expenseform acceptable to Lessor.
(c) At any time and from time to time upon not less than 10 days notice Notice by Lessee, Lessor will furnish to Lessee or to any person designated by Lessee an estoppel certificate certifying that this Lease is unmodified and in full force and effect (or that this Lease is in full force and effect as modified and setting forth the modifications), the date to which Rent has been paid, whether to the knowledge of Lessor there is any existing default or Event of Default on Lessee's part hereunder, and such other information as may be reasonably requested by Lessee. Any such certificate furnished pursuant to this Section may be relied upon by Lessee, any lender, any underwriter and any purchaser of the assets of Lessee.
(d) If Company Lessee covenants that during the Term it will maintain a ratio of total debt-to-Consolidated Net Worth of 25% or Lessor proposes to include in any submission or filing with its lenderless, stock exchange or the SECexclusive of capitalized leases on an annual basis as of June 30, Consolidated Financials of Lessee delivered or required to be delivered hereunder and the consent of Lessee's auditor is required for such inclusion, Lessee shall use commercially reasonable efforts to cause its auditor to deliver promptly to Lessor the auditor's consent, in the form required, to the inclusion in the submission or filing of the Consolidated Financials (including the report of the auditor, if the Consolidated Financials to be included are audited). Lessee shall reasonably cooperate with Lessor regarding Lessee's auditor's compliance with such requests with the purpose of minimizing costs and delays. Lessee shall reasonably cooperate with all requests made by its auditor, Lessor or the SEC to promptly provide to the auditor, Lessor or SEC such information or documents, including consents and representation letters, as may be necessary or desirable in connection with the preparation, delivery, audit or inclusion in SEC filings, submissions or other public documents, of information, including financial information, related to the Leased Property, the operation and financial results of the Leased Property, and the financial results and condition of the Lessee. Without limiting the foregoing, the information shall be sufficient to permit the preparation of a Management's Discussion and Analysis of Results of Operations and Financial Condition with respect to the Lessee as may be required to be included in reports and documents filed by the Company with the SEC. Lessee shall not be obligated to incur material additional expense to prepare any reports or information not specifically provided for herein that Lessor or Company may be required or elect to file with the SEC, and such material additional third-party costs shall be paid or reimbursed by Lessor1994.
Appears in 1 contract
Officer's Certificates; Financial Statements; Lessor's Estoppel Certificates and Covenants. (a) At any time and from time to time upon not less than 10 days Notice by Lessor, Lessee will furnish to Lessor an Officer's Certificate certifying that this Lease is unmodified and in full force and effect (or that this Lease is in full force and effect as modified and setting forth the modifications), the date to which the Rent has been paid, whether to the knowledge of Lessee there is any existing default or Event of Default hereunder by Lessor or Lessee, and such other information as may be reasonably requested by Lessor. Any such certificate furnished pursuant to this Section may be relied upon by Lessor, any lender, any underwriter and any prospective purchaser of the Leased Property.
(b) Lessee will furnish, at Lessee's cost and expenseexpense except as noted below, the following statements and operating information to Lessor, each in a form satisfactory to Lessor:
(i) Consolidated Financials of Lessee for each calendar quarter Accounting Period of each Lease Year, and for each calendar quarter Accounting Period in the Lease Year-to-date, within 20 days after the end of such calendar quarterAccounting Period;
(ii) Consolidated Financials of Lessee and each Affiliate of Lessee, if any, that leases hotel properties from Lessor or its Affiliates, for each calendar quarter Accounting Period of each Lease Year, and for each calendar quarter Accounting Period in the Lease Year to date, within 20 days after the end of such calendar quarterAccounting Period;
(iii) audited Consolidated Financials of Lessee for each Lease Year, including the auditor's report thereon, within 60 days after the end of such year;
(iv) audited Consolidated Financials of Lessee and each Affiliate of Lessee that leases hotel properties from Lessor or its Affiliates, if any, for each Lease Year, including the auditor's report thereon, within 60 days after the end of such year. The fees and expenses of the auditor incurred in connection with conducting such audits and delivering such reports shall be paid by Lessor;
(v) with reasonable promptness, such other information respecting the financial condition and affairs of Lessee (A) as Lessor or the Company may require or may deem desirable in its discretion to file with or provide to the SEC or any other governmental agency or any other Person, all in the form, and either audited or unaudited, as Lessor may request in Lessor's reasonable discretion, and (B) as may be reasonably necessary to confirm compliance by Lessee and its Affiliates with the requirements of this Lease;
(vi) on or before the 20th day of each calendar quarter, a balance sheet, and detailed profit and loss and cash flow statements showing the financial position of the Facility as at the end of the preceding calendar quarter, the results of operation of the Facility for such preceding calendar quarter and the Lease Year-to-date and the average daily rate, occupancy and revenue-per-available room of the Facility in such preceding calendar quarter;
(vii) within five (5) days of Lessee's receipt thereof, any inspection reports received from the franchisor under the Franchise Agreement; and
(viii) such other information as Lessor may reasonably request and that Lessee can provide without unreasonable expense.
(c) At any time and from time to time upon not less than 10 days notice by Lessee, Lessor will furnish to Lessee or to any person designated by Lessee an estoppel certificate certifying that this Lease is unmodified and in full force and effect (or that this Lease is in full force and effect as modified and setting forth the modifications), the date to which Rent has been paid, whether to the knowledge of Lessor there is any existing default or Event of Default on Lessee's part hereunder, and such other information as may be reasonably requested by Lessee. Any such certificate furnished pursuant to this Section may be relied upon by Lessee, any lender, any underwriter and any purchaser of the assets of Lessee.
(d) If Company or Lessor proposes to include in any submission or filing with its lender, stock exchange or the SEC, Consolidated Financials of Lessee delivered or required to be delivered hereunder and the consent of Lessee's auditor is required for such inclusion, Lessee shall use commercially reasonable efforts to cause its auditor to deliver promptly to Lessor the auditor's consent, in the form required, to the inclusion in the submission or filing of the Consolidated Financials (including the report of the auditor, if the Consolidated Financials to be included are audited). Lessee shall reasonably cooperate with Lessor regarding Lessee's auditor's compliance with such requests with the purpose of minimizing costs and delays. Lessee shall reasonably cooperate with all requests made by its auditor, Lessor or the SEC to promptly provide to the auditor, Lessor or SEC such information or documents, including consents and representation letters, as may be necessary or desirable in connection with the preparation, delivery, audit or inclusion in SEC filings, submissions or other public documents, of information, including financial information, related to the Leased Property, the operation and financial results of the Leased Property, and the financial results and condition of the Lessee. Without limiting the foregoing, the information shall be sufficient to permit the preparation of a Management's Discussion and Analysis of Results of Operations and Financial Condition with respect to the Lessee as may be required to be included in reports and documents filed by the Company with the SEC. Lessee shall not be obligated to incur material additional expense to prepare any reports or information not specifically provided for herein that Lessor or Company may be required or elect to file with the SEC, and such material additional third-party costs shall be paid or reimbursed by Lessor.,
Appears in 1 contract
Officer's Certificates; Financial Statements; Lessor's Estoppel Certificates and Covenants. (a1) At any time and from time to time upon not less than 10 days Notice 20 days' notice by Lessor, Lessee will furnish to Lessor an Officer's Certificate certifying that this Lease is unmodified and in full force and effect (or that this Lease is in full force and effect as modified and setting forth the modifications), the date to which the Rent has been paid, whether to the knowledge of Lessee there is any existing default or Event of Default exists hereunder by Lessor or Lessee, and such other information as may be reasonably requested by Lessor. Any such certificate furnished pursuant to this Section may be relied upon by Lessor, any lender, any underwriter lender and any prospective purchaser of the Leased PropertyProperty or any part thereof.
(b2) Lessee will furnish, at Lessee's cost and expense, furnish the following statements and operating information to Lessor, each in a form satisfactory to Lessor:
(i) Consolidated Financials of Lessee for each calendar quarter of each Lease Year, and for each calendar quarter in the Lease Year-to-date, within 20 days after the end of such calendar quarter;
(ii) Consolidated Financials of Lessee and each Affiliate of Lessee, if any, that leases hotel properties from Lessor or its Affiliates, for each calendar quarter of each Lease Year, and for each calendar quarter in the Lease Year to date, within 20 days after the end of such calendar quarter;
(iii) audited Consolidated Financials of Lessee for each Lease Year, including the auditor's report thereon, within 60 days after the end of such year;
(iv) audited Consolidated Financials of Lessee and each Affiliate of Lessee that leases hotel properties from Lessor or its Affiliates, if any, for each Lease Year, including the auditor's report thereon, within 60 days after the end of such year. The fees and expenses of the auditor incurred in connection with conducting such audits and delivering such reports shall be paid by Lessor;
(v) with reasonable promptness, an Officer's Certificate certifying as to such other information respecting the financial condition and affairs of Lessee (A) as Lessor or the Company may require or may deem desirable in its discretion to file with or provide including, if and to the SEC or any other governmental agency or any other Personextent otherwise obtained by Lessee, all in the form, and either financial statements audited or unauditedby an independent accounting firm, as Lessor may reasonably request in Lessor's reasonable discretion, and (B) as may be reasonably necessary from time to confirm compliance by Lessee and its Affiliates with the requirements of this Lease;time; and
(viii) an Officer's Certificate certifying as to the most recent Consolidated Financials of Lessee within 45 days after each quarter of any Fiscal Year (or, in the case of the final quarter in any Fiscal Year, the most recent Consolidated Financials of Lessee within 90 days); and
(iii) on or before about the 20th 15th day of each calendar quartermonth, a balance sheet, and detailed profit and loss and cash flow statements showing statement for the financial position Leased Property for the preceding month, a balance sheet for the Leased Property as of the Facility as at the end of the preceding calendar quartermonth, and a detailed accounting of revenues for the results of operation of Leased Property for the Facility for such preceding calendar quarter and the Lease Year-to-date and the average daily ratemonth, occupancy and revenue-per-available room of the Facility each in such preceding calendar quarter;
(vii) within five (5) days of Lessee's receipt thereof, any inspection reports received from the franchisor under the Franchise Agreement; and
(viii) such other information as Lessor may reasonably request and that Lessee can provide without unreasonable expenseform acceptable to Lessor.
(c3) At any time and from time to time upon not less than 10 days 20 days' notice by Lessee, Lessor will furnish to Lessee or to any person designated by Lessee an estoppel certificate certifying that this Lease is unmodified and in full force and effect (or that this Lease is in full force and effect as modified and setting forth the modifications), the date to which Rent has been paid, whether to the knowledge of Lessor there is any existing default or Event of Default on Lessee's part hereunder, and such other information as may be reasonably requested by Lessee. Any such certificate furnished pursuant to this Section may be relied upon by Lessee, any lender, any underwriter and any purchaser of the assets of Lessee.
(d4) If Company or Lessor proposes Lessee covenants that if at any time during the Term when Lessee's Consolidated Net Worth is less than an amount then equal to include in any submission or filing with its lenderthree months' Base Rent it will not, stock exchange or without the SEC, Consolidated Financials of Lessee delivered or required to be delivered hereunder and the prior written consent of Lessee's auditor is required for such inclusionLessor, Lessee shall use commercially reasonable efforts to cause its auditor to deliver promptly to Lessor the auditor's consent, in the form required, to the inclusion in the submission or filing (i) make any distributions of the Consolidated Financials assets (including the report but not limited to dividend payments) to any of the auditor, if the Consolidated Financials its stockholders (ii) pay any compensation to be included are audited). Lessee shall reasonably cooperate with Lessor regarding Lessee's auditor's compliance with such requests with the purpose of minimizing costs and delays. Lessee shall reasonably cooperate with all requests made by its auditor, Lessor or the SEC to promptly provide to the auditor, Lessor or SEC such information or documents, including consents and representation letters, as may be necessary or desirable in connection with the preparation, delivery, audit or inclusion in SEC filings, submissions or other public documents, of information, including financial information, related to the Leased Property, the operation and financial results of the Leased Property, and the financial results and condition of the Lessee. Without limiting the foregoing, the information shall be sufficient to permit the preparation of a Management's Discussion and Analysis of Results of Operations and Financial Condition with respect to the Lessee as may be required to be included in reports and documents filed by the Company with the SEC. Lessee shall not be obligated to incur material additional expense to prepare any reports or information not specifically provided for herein that Lessor or Company may be required or elect to file with the SEC, and such material additional third-party costs shall be paid or reimbursed by Lessor.of
Appears in 1 contract
Officer's Certificates; Financial Statements; Lessor's Estoppel Certificates and Covenants. (a) At any time and from time to time upon not less than 10 20 days Notice by Lessor, Lessee will furnish to Lessor an Officer's Certificate certifying that this Lease is unmodified and in full force and effect (or that this Lease is in full force and effect as modified and setting forth the modifications), the date to which the Rent has been paid, whether to the knowledge of Lessee there is any existing default or Event of Default hereunder exists thereunder by Lessor or Lessee, and such other information as may be reasonably requested by Lessor. Any such certificate furnished pursuant to this Section may be relied upon by Lessor, any lender, any underwriter lender and any prospective purchaser of the Leased Property.
(b) Lessee will furnish, at Lessee's cost and expense, furnish the following statements and operating information to Lessor, each in a form satisfactory to Lessor:
(i) Consolidated Financials of Lessee for each calendar quarter of each Lease Year, and for each calendar quarter in the Lease Year-to-date, within 20 days after the end of such calendar quarter;
(ii) Consolidated Financials of Lessee and each Affiliate of Lessee, if any, that leases hotel properties from Lessor or its Affiliates, for each calendar quarter of each Lease Year, and for each calendar quarter in the Lease Year to date, within 20 days after the end of such calendar quarter;
(iii) audited Consolidated Financials of Lessee for each Lease Year, including the auditor's report thereon, within 60 days after the end of such year;
(iv) audited Consolidated Financials of Lessee and each Affiliate of Lessee that leases hotel properties from Lessor or its Affiliates, if any, for each Lease Year, including the auditor's report thereon, within 60 days after the end of such year. The fees and expenses of the auditor incurred in connection with conducting such audits and delivering such reports shall be paid by Lessor;
(v1) with reasonable promptness, such other information respecting the financial condition and affairs of Lessee (A) including audited financial statements prepared by Coopers & Xxxxxxx, L.L.C. or such other certified independent accounting firm as Lessor or the Company may require or may deem desirable in its discretion to file with or provide to the SEC or any other governmental agency or any other Person, all in the form, and either audited or unauditedbe approved by Lessor, as Lessor may reasonably request from time to time, provided, however that in Lessor's reasonable discretion, and (B) as may the absence of special and/or nonrecurring circumstances Lessee shall only be reasonably necessary required to confirm compliance by Lessee and its Affiliates with the requirements of this Lease;furnish audited financial information to Lessor no more than once per Fiscal Year; and
(vi2) on the most recent Financials of Lessee within 25 days after each quarter of any Fiscal Year (or, in the case of the final quarter in any Fiscal Year, the most recent audited Financials of Lessee within 60 days); and
(3) or before about the 20th 15th day of each calendar quartermonth, a balance sheet, and detailed profit and loss and cash flow statements showing statement for the financial position Leased Property for the preceding month, a balance sheet for the Leased Property as of the Facility as at the end of the preceding calendar quartermonth, and a detailed accounting of Gross Revenues for the results of operation of Leased Property for the Facility for such preceding calendar quarter and the Lease Year-to-date and the average daily ratemonth, occupancy and revenue-per-available room of the Facility each in such preceding calendar quarter;form acceptable to Lessor.
(vii4) within five on an annual basis, copies of all reports submitted to governmental authorities and agencies (5including but not limited to reports relating to sales, use and occupancy taxes) days of Lessee's receipt thereof, and any inspection reports received from the franchisor under the Franchise Agreement; and
(viii) such other information as Lessor may reasonably request and that Lessee can provide without unreasonable expensefranchisor.
(c) At any time and from time to time upon not less than 10 20 days notice by Lessee, Lessor will furnish to Lessee or to any person designated by Lessee an estoppel certificate certifying that this Lease is unmodified and in full force and effect (or that this Lease is in full force and effect as modified and setting forth the modifications), the date to which Rent has been paid, whether to the knowledge of Lessor there is any existing default or Event of Default on Lessee's part hereunder, and such other information as may be reasonably requested by Lessee. Any such certificate furnished pursuant to this Section may be relied upon by Lessee, any lender, any underwriter and any purchaser of the assets of Lessee.
(d) If Company or Lessor proposes to include in any submission or filing with its lender, stock exchange or the SEC, Consolidated Financials of Lessee delivered or required to be delivered hereunder and the consent of Lessee's auditor is required for such inclusion, Lessee shall use commercially reasonable efforts to cause its auditor to deliver promptly to Lessor the auditor's consent, in the form required, to the inclusion in the submission or filing of the Consolidated Financials (including the report of the auditor, if the Consolidated Financials to be included are audited). Lessee shall reasonably cooperate with Lessor regarding Lessee's auditor's compliance with such requests with the purpose of minimizing costs and delays. Lessee shall reasonably cooperate with all requests made by its auditor, Lessor or the SEC to promptly provide to the auditor, Lessor or SEC such information or documents, including consents and representation letters, as may be necessary or desirable in connection with the preparation, delivery, audit or inclusion in SEC filings, submissions or other public documents, of information, including financial information, related to the Leased Property, the operation and financial results of the Leased Property, and the financial results and condition of the Lessee. Without limiting Notwithstanding the foregoing, the information shall be sufficient to permit the preparation costs of a Management's Discussion and Analysis of Results of Operations and Financial Condition with respect to the Lessee as may be required to be included in reports and documents filed by the Company with the SEC. Lessee shall not be obligated to incur material additional expense to prepare any reports or information not specifically provided for herein that Lessor or Company may be required or elect to file with the SEC, and such material additional third-party costs audit shall be paid or reimbursed by Lessorfor as a Gross Operating Expense and deducted from Gross Revenues except as otherwise stated herein.
Appears in 1 contract
Samples: Lease Agreement (Host Funding Inc)
Officer's Certificates; Financial Statements; Lessor's Estoppel Certificates and Covenants. (a) At any time and from time to time upon not less than 10 ten (10) days Notice by Lessor, Lessee will furnish to Lessor an Officer's Certificate certifying that this Lease is unmodified and in full force and effect (or that this Lease is in full force and effect as modified and setting forth the modifications), the date to which the Rent has been paid, whether to the knowledge of Lessee there is any existing default or Event of Default hereunder by Lessor or Lessee, and such other information as may be reasonably requested by Lessor. Any such certificate furnished pursuant to this Section may be relied upon by Lessor, any lender, any underwriter and any prospective purchaser of the Leased Property.
(b) Lessee will furnish, at Lessee's cost and expense, furnish the following statements and operating information to Lessor, each in a form satisfactory to Lessor:
(i1) within thirty-five (35) days after each quarter of any fiscal year (or, in the case of the final quarter in any fiscal year, within eighty (80) days), the most recent Consolidated Financials Financials, as well as a financial statement of Lessee for each calendar quarter prepared in accordance with GAAP and certified by the chief financial officer of each Lease Year, Lessee (which financial statement shall also include a statement of Lessee's Net Worth and for each calendar quarter in Tangible Net Worth as of the Lease Year-to-date, within 20 days after the end of such calendar quarterdate thereof);
(ii) Consolidated Financials of Lessee and each Affiliate of Lessee, if any, that leases hotel properties from Lessor or its Affiliates, for each calendar quarter of each Lease Year, and for each calendar quarter in the Lease Year to date, within 20 days after the end of such calendar quarter;
(iii) audited Consolidated Financials of Lessee for each Lease Year, including the auditor's report thereon, within 60 days after the end of such year;
(iv) audited Consolidated Financials of Lessee and each Affiliate of Lessee that leases hotel properties from Lessor or its Affiliates, if any, for each Lease Year, including the auditor's report thereon, within 60 days after the end of such year. The fees and expenses of the auditor incurred in connection with conducting such audits and delivering such reports shall be paid by Lessor;
(v2) with reasonable promptness, such other information respecting the financial condition condition, operations and affairs of Lessee and the Leased Property (A) as Lessor or the Company may require be required or may deem desirable in its reasonable discretion to file with or provide to the SEC or any other governmental agency or any other Person, all in the form, and either audited or unaudited, as Lessor may request in Lessor's reasonable discretion, discretion and (B) as may all to be reasonably necessary prepared at Lessor's expense to confirm compliance the extent that such information is not otherwise maintained by Lessee in the normal course of its business.
(3) at intervals specified by the Lessor, a report of revenues, by department for the then current month which shall compare actual revenues to the prior year period. Such revenue report shall contain the adjusted daily rate, occupancy, RevPAR, the total Food and its Affiliates with Beverage Sales, Room Revenues and Other Income of the requirements Leased Property. Such revenue report shall also contain the revenue budget for the month and a new revenue forecast for the month. In addition, Lessee will inform Lessor of this Leaseany material changes to the revenue budget for the two months immediately following the then current month;
(vi4) on or before the 20th tenth (10th) day of each calendar quartermonth, a balance sheetmonthly lease calculation of the prior month, prepared in the format required by Lessor and forwarded to Lessor, reflecting the revenues at the Facility, by department, and detailed profit the actual lease calculation for the month and loss and cash flow statements showing the financial position of the Facility as year to date;
(5) at the end of each of March, June and September of each year, Lessor may engage the preceding calendar quarterAuditor, at Lessor's expense, to review the results of operation revenues of the Facility for such preceding calendar quarter and the monthly Lease Year-to-date calculations. Any such review shall be completed by the twentieth (20th) day following the end of each of March, June and September of each year, as applicable, and the average daily rateAuditor shall provide Lessor with a letter stating that the review has been completed and such letter shall also state whether any material errors were found and the nature of such errors. The quarterly operating statements reviewed at such dates prepared by the Manager, occupancy shall be accompanied by explanations of any variances, which explanations shall be in a form suitable for use in the Securities and revenue-per-available room Exchange Commission ("SEC") required disclosure analysis;
(6) in January of each year, Lessor may engage the Auditor, at Lessor's expense, to review the revenues of the Facility and the monthly Lease calculations. Any such review shall be completed by the twentieth (20th) day of January of each year and the Auditor shall provide Lessor with a letter stating that the review has been completed and such letter shall also state whether any material errors were found and the nature of such errors. A complete audit financial package must be provided to Lessor by the tenth (10th) Business Day of February of each year. The quarterly operating statement reviewed at such date, prepared by Manager, shall be accompanied by explanations of any variances, which explanations shall be in such preceding calendar quarter;a form suitable for use in the SEC required disclosure analysis; and
(vii7) within five ten (510) days of Lessee's receipt thereof, any inspection reports or notices of default received from the franchisor under the Franchise Agreement; and
(viii) such other information as Lessor may reasonably request and that Lessee can provide without unreasonable expense.
(c) Lessee shall at all times during the term of this Lease, at no cost or expense to Lessee, cooperate with Lessor's accountants and provide them with access to all financial and other information relating to Lessee and the Leased Property, and access to Lessee's accountants, work papers and to otherwise assist in minimizing the cost of the audit, sufficient to enable the Company to prepare audited financial statements in conformity with Regulation S-X of the SEC and to enable the Company to satisfy its reporting obligations under the Securities Exchange Act of 1934, as amended, or to prepare a registration statement, report or disclosure statement for filing with the SEC on behalf of the Company and/or its Affiliates and Lessee shall execute any representation letters reasonably requested by Lessor's accountants in connection with the foregoing.
(d) At any time and from time to time upon not less than 10 ten (10) days notice by Lessee, Lessor will furnish to Lessee or to any person designated by Lessee an estoppel certificate certifying that this Lease is unmodified and in full force and effect (or that this Lease is in full force and effect as modified and setting forth the modifications), the date to which Rent has been paid, whether to the knowledge of Lessor there is any existing default or Event of Default on Lessee's part hereunder, and such other information as may be reasonably requested by Lessee. Any such certificate furnished pursuant to this Section section may be relied upon by Lessee, any lender, any underwriter and any purchaser of the assets of Lessee.
(d) If Company or Lessor proposes to include in any submission or filing with its lender, stock exchange or the SEC, Consolidated Financials of Lessee delivered or required to be delivered hereunder and the consent of Lessee's auditor is required for such inclusion, Lessee shall use commercially reasonable efforts to cause its auditor to deliver promptly to Lessor the auditor's consent, in the form required, to the inclusion in the submission or filing of the Consolidated Financials (including the report of the auditor, if the Consolidated Financials to be included are audited). Lessee shall reasonably cooperate with Lessor regarding Lessee's auditor's compliance with such requests with the purpose of minimizing costs and delays. Lessee shall reasonably cooperate with all requests made by its auditor, Lessor or the SEC to promptly provide to the auditor, Lessor or SEC such information or documents, including consents and representation letters, as may be necessary or desirable in connection with the preparation, delivery, audit or inclusion in SEC filings, submissions or other public documents, of information, including financial information, related to the Leased Property, the operation and financial results of the Leased Property, and the financial results and condition of the Lessee. Without limiting the foregoing, the information shall be sufficient to permit the preparation of a Management's Discussion and Analysis of Results of Operations and Financial Condition with respect to the Lessee as may be required to be included in reports and documents filed by the Company with the SEC. Lessee shall not be obligated to incur material additional expense to prepare any reports or information not specifically provided for herein that Lessor or Company may be required or elect to file with the SEC, and such material additional third-party costs shall be paid or reimbursed by Lessor.
Appears in 1 contract
Officer's Certificates; Financial Statements; Lessor's Estoppel Certificates and Covenants. (a) At any time and from time to time upon not less than 10 20 days Notice by Lessor, Lessee will furnish to Lessor an Officer's Certificate certifying that this Lease is unmodified and in full force and effect (or that this Lease is in full force and effect as modified and setting forth the modifications), the date to which the Rent has been paid, whether to the knowledge of Lessee there is any existing default or Event of Default hereunder exists thereunder by Lessor or Lessee, and such other information as may be reasonably requested by Lessor. Any such certificate furnished pursuant to this Section may be relied upon by Lessor, any lender, any underwriter lender and any prospective purchaser of the Leased Property.
(b) Lessee will furnish, at Lessee's cost and expense, furnish the following statements and operating information to Lessor, each in a form satisfactory to Lessor:
(i) Consolidated Financials of Lessee for each calendar quarter of each Lease Year, and for each calendar quarter in the Lease Year-to-date, within 20 days after the end of such calendar quarter;
(ii) Consolidated Financials of Lessee and each Affiliate of Lessee, if any, that leases hotel properties from Lessor or its Affiliates, for each calendar quarter of each Lease Year, and for each calendar quarter in the Lease Year to date, within 20 days after the end of such calendar quarter;
(iii) audited Consolidated Financials of Lessee for each Lease Year, including the auditor's report thereon, within 60 days after the end of such year;
(iv) audited Consolidated Financials of Lessee and each Affiliate of Lessee that leases hotel properties from Lessor or its Affiliates, if any, for each Lease Year, including the auditor's report thereon, within 60 days after the end of such year. The fees and expenses of the auditor incurred in connection with conducting such audits and delivering such reports shall be paid by Lessor;
(v1) with reasonable promptness, such other information respecting the financial condition and affairs of Lessee (A) as Lessor including audited financial statements prepared by Coopers & Xxxxxxx, L.L.C. or the Company may require or may deem desirable in its discretion to file with or provide to the SEC or any such other governmental agency or any other Person, all in the form, and either audited or unaudited, as Lessor may request in Lessor's reasonable discretion, and (B) certified independent accounting firm as may be reasonably necessary to confirm compliance approved by Lessee and its Affiliates with the requirements of this Lease;
(vi) on or before the 20th day of each calendar quarterLessor, a balance sheet, and detailed profit and loss and cash flow statements showing the financial position of the Facility as at the end of the preceding calendar quarter, the results of operation of the Facility for such preceding calendar quarter and the Lease Year-to-date and the average daily rate, occupancy and revenue-per-available room of the Facility in such preceding calendar quarter;
(vii) within five (5) days of Lessee's receipt thereof, any inspection reports received from the franchisor under the Franchise Agreement; and
(viii) such other information as Lessor may reasonably request from time to time, provided, however that in the absence of special and/or nonrecurring circumstances Lessee shall only be required to furnish audited financial information to Lessor no more than once per Fiscal Year; and
(2) the most recent Financials of Lessee within 25 days after each quarter of any Fiscal Year (or, in the case of the final quarter in any Fiscal Year, the most recent audited Financials of Lessee within 60 days); and
(3) on or about the 15th day of each month, a true, complete and correct cash flow statement with respect to the Leased Property in the form attached hereto as EXHIBIT K and incorporated herein by reference, reflecting (a) a detailed accounting of Gross Revenues, Gross Room Revenues (and other cash receipts of any kind whatsoever) and all Operating Expenses (as defined in Section 48 hereof), and other cash payments and disbursements (of any kind whatsoever), and (b) year-to-date summaries of same, together with an Officer's Certificate stating that Lessee can provide without unreasonable expense.such cash flow statement is true, complete and correct; and
(4) on or about the 15th day of each month, an Officer's Certificate stating that all Operating Expenses (as defined in Section 48 hereof) with respect to the Leased Property which have accrued as of the last day of the month preceding the delivery of the cash flow statement referred to in (3) above have been fully paid or otherwise reserved or provided for by Lessee; and
(5) within seventy-five (75) days after the end of each Fiscal Year, with a report setting forth (a) the Net Operating Income (as defined in Section 48 hereof) for such Fiscal Year, (b) the average occupancy rate of the Leased Property during such Fiscal Year, and (c) the capital repairs, replacements and improvements performed at the Leased Property during such Fiscal Year and the cost of same; and
(6) on an annual basis, copies of all reports submitted to governmental authorities and agencies (including, but not limited to, reports relating to sales, use and occupancy taxes) and any franchisor. At any time and from time to time upon not less than 10 20 days notice by Lessee, Lessor will furnish to Lessee or to any person designated by Lessee an estoppel certificate certifying that this Lease is unmodified and in full force and effect (or that this Lease is in full force and effect as modified and setting forth the modifications), the date to which Rent has been paid, whether to the knowledge of Lessor there is any existing default or Event of Default on Lessee's part hereunder, and such other information as may be reasonably requested by Lessee. Any such certificate furnished pursuant to this Section may be relied upon by Lessee, any lender, any underwriter and any purchaser of the assets of Lessee.
(d) If Company or Lessor proposes to include in any submission or filing with its lender, stock exchange or the SEC, Consolidated Financials of Lessee delivered or required to be delivered hereunder and the consent of Lessee's auditor is required for such inclusion, Lessee shall use commercially reasonable efforts to cause its auditor to deliver promptly to Lessor the auditor's consent, in the form required, to the inclusion in the submission or filing of the Consolidated Financials (including the report of the auditor, if the Consolidated Financials to be included are audited). Lessee shall reasonably cooperate with Lessor regarding Lessee's auditor's compliance with such requests with the purpose of minimizing costs and delays. Lessee shall reasonably cooperate with all requests made by its auditor, Lessor or the SEC to promptly provide to the auditor, Lessor or SEC such information or documents, including consents and representation letters, as may be necessary or desirable in connection with the preparation, delivery, audit or inclusion in SEC filings, submissions or other public documents, of information, including financial information, related to the Leased Property, the operation and financial results of the Leased Property, and the financial results and condition of the Lessee. Without limiting Notwithstanding the foregoing, the information shall be sufficient to permit the preparation costs of a Management's Discussion and Analysis of Results of Operations and Financial Condition with respect to the Lessee as may be required to be included in reports and documents filed by the Company with the SEC. Lessee shall not be obligated to incur material additional expense to prepare any reports or information not specifically provided for herein that Lessor or Company may be required or elect to file with the SEC, and such material additional third-party costs audit shall be paid or reimbursed by Lessorfor as a Gross Operating Expense and deducted from Gross Revenues except as otherwise stated herein.
Appears in 1 contract
Samples: Lease Agreement (Host Funding Inc)
Officer's Certificates; Financial Statements; Lessor's Estoppel Certificates and Covenants. (a) At any time and from time to time upon not less than 10 30 days Notice by Lessor, Lessee will furnish to Lessor an Officer's Certificate certifying that this Lease is unmodified and in full force and effect (or that this Lease is in full force and effect as modified and setting forth the modifications), the date to which the Rent has been paid, whether to the knowledge of Lessee there is any existing default or Event of Default hereunder by Lessor or Lessee, and such other information as may be reasonably requested by Lessor. Any such certificate furnished pursuant to this Section may be relied upon by Lessor, any lender, any underwriter lender and any prospective purchaser of the Leased Property.
(b) Lessee will furnish, at Lessee's cost and expense, furnish the following statements and operating information to Lessor, each in a form satisfactory to Lessor:
(i) Consolidated Financials of Lessee for each calendar quarter of each Lease Year, and for each calendar quarter in the Lease Year-to-date, within 20 days after the end of such calendar quarter;
(ii) Consolidated Financials of Lessee and each Affiliate of Lessee, if any, that leases hotel properties from Lessor or its Affiliates, for each calendar quarter of each Lease Year, and for each calendar quarter in the Lease Year to date, within 20 days after the end of such calendar quarter;
(iii) audited Consolidated Financials of Lessee for each Lease Year, including the auditor's report thereon, within 60 days after the end of such year;
(iv) audited Consolidated Financials of Lessee and each Affiliate of Lessee that leases hotel properties from Lessor or its Affiliates, if any, for each Lease Year, including the auditor's report thereon, within 60 days after the end of such year. The fees and expenses of the auditor incurred in connection with conducting such audits and delivering such reports shall be paid by Lessor;
(v1) with reasonable promptness, such other information respecting the financial condition and affairs of Lessee (A) as Lessee, including audited financial statements prepared by the same certified independent accounting firm that prepares the returns for Lessor or the Company such other accounting firm as may require or may deem desirable in its discretion to file with or provide to the SEC or any other governmental agency or any other Person, all in the form, and either audited or unauditedbe approved by Lessor, as Lessor may request in Lessor's reasonable discretion, and (B) as may be reasonably necessary from time to confirm compliance by Lessee and its Affiliates with the requirements of this Lease;time; and
(vi2) the most recent Consolidated Financials of Lessee within 45 days after each quarter of any Fiscal Year (or, in the case of the final quarter in any Fiscal Year, the most recent audited Consolidated Financials of Lessee within 90 days); and
(3) on or before about the 20th 15th day of each calendar quartermonth, a balance sheet, and detailed profit and loss and cash flow statements showing statement for the financial position Leased Property for the preceding month, a balance sheet for the Leased Property as of the Facility as at the end of the preceding calendar quartermonth, and a detailed accounting of revenues for the results of operation of Leased Property for the Facility for such preceding calendar quarter and the Lease Year-to-date and the average daily ratemonth, occupancy and revenue-per-available room of the Facility each in such preceding calendar quarter;
(vii) within five (5) days of Lessee's receipt thereof, any inspection reports received from the franchisor under the Franchise Agreement; and
(viii) such other information as Lessor may reasonably request and that Lessee can provide without unreasonable expenseform acceptable to Lessor.
(c) At any time and from time to time upon not less than 10 days notice Notice by Lessee, Lessor will furnish to Lessee or to any person designated by Lessee an estoppel certificate certifying that this Lease is unmodified and in full force and effect (or that this Lease is in full force and effect as modified and setting forth the modifications), the date to which Rent has been paid, whether to the knowledge of Lessor there is any existing default or Event of Default on Lessee's part hereunder, and such other information as may be reasonably requested by Lessee. Any such certificate furnished pursuant to this Section may be relied upon by Lessee, any lender, any underwriter and any purchaser of the assets of Lessee.
(d) If Company Lessee covenants that during the Term it will maintain a ratio of total debt-to-Consolidated Net Worth of 25% or Lessor proposes to include in any submission or filing with its lenderless, stock exchange or the SECexclusive of capitalized leases on an annual basis as of June 30, Consolidated Financials of Lessee delivered or required to be delivered hereunder and the consent of Lessee's auditor is required for such inclusion, Lessee shall use commercially reasonable efforts to cause its auditor to deliver promptly to Lessor the auditor's consent, in the form required, to the inclusion in the submission or filing of the Consolidated Financials (including the report of the auditor, if the Consolidated Financials to be included are audited). Lessee shall reasonably cooperate with Lessor regarding Lessee's auditor's compliance with such requests with the purpose of minimizing costs and delays. Lessee shall reasonably cooperate with all requests made by its auditor, Lessor or the SEC to promptly provide to the auditor, Lessor or SEC such information or documents, including consents and representation letters, as may be necessary or desirable in connection with the preparation, delivery, audit or inclusion in SEC filings, submissions or other public documents, of information, including financial information, related to the Leased Property, the operation and financial results of the Leased Property, and the financial results and condition of the Lessee. Without limiting the foregoing, the information shall be sufficient to permit the preparation of a Management's Discussion and Analysis of Results of Operations and Financial Condition with respect to the Lessee as may be required to be included in reports and documents filed by the Company with the SEC. Lessee shall not be obligated to incur material additional expense to prepare any reports or information not specifically provided for herein that Lessor or Company may be required or elect to file with the SEC, and such material additional third-party costs shall be paid or reimbursed by Lessor1997.
Appears in 1 contract
Officer's Certificates; Financial Statements; Lessor's Estoppel Certificates and Covenants. (a) At any time and from time to time upon not less than 10 20 days Notice by Lessor, Lessee will furnish to Lessor an Officer's Certificate a statement certifying that this Lease is unmodified and in full force and effect (or that this Lease is in full force and effect as modified and setting forth the modifications), the date to which the Rent rent has been paid, whether to the knowledge of Lessee there is any existing default or Event of Default hereunder exists thereunder by Lessor or Lessee, and such other information as may be reasonably requested by Lessor. Any such certificate furnished pursuant to this Section may be relied upon by Lessor, any lender, any underwriter lender and any prospective purchaser of the Leased Property.
(b) Lessee will furnish, at Lessee's cost and expense, furnish the following statements and operating information to Lessor, each in a form satisfactory to Lessor:
(i) Consolidated Financials of Lessee for each calendar quarter of each Lease Year, and for each calendar quarter in the Lease Year-to-date, within 20 days after the end of such calendar quarter;
(ii) Consolidated Financials of Lessee and each Affiliate of Lessee, if any, that leases hotel properties from Lessor or its Affiliates, for each calendar quarter of each Lease Year, and for each calendar quarter in the Lease Year to date, within 20 days after the end of such calendar quarter;
(iii) audited Consolidated Financials of Lessee for each Lease Year, including the auditor's report thereon, within 60 days after the end of such year;
(iv) audited Consolidated Financials of Lessee and each Affiliate of Lessee that leases hotel properties from Lessor or its Affiliates, if any, for each Lease Year, including the auditor's report thereon, within 60 days after the end of such year. The fees and expenses of the auditor incurred in connection with conducting such audits and delivering such reports shall be paid by Lessor;
(v1) with reasonable promptness, such other information respecting the financial condition and affairs of Lessee (A) as Lessor or the Company may require or may deem desirable in its discretion to file with or provide to the SEC or any other governmental agency or any other Person, all in the form, and either audited or unaudited, including financial statements prepared by Lessee as Lessor may reasonably request in Lessor's reasonable discretion, and (B) as may be reasonably necessary from time to confirm compliance by Lessee and its Affiliates with the requirements of this Lease;time; and
(vi2) the most recent financial statements of Lessee within 60 days after each quarter of any fiscal year (or, in the case of the final quarter in any fiscal year, the most recent financial statements of Lessee within 120 days); and
(3) on or before about the 20th 30th day of each calendar quartermonth, a balance sheet, and detailed profit and loss and cash flow statements showing the financial position statement of the Facility Leased Property for the preceding month, a balance sheet for the Leased Property as at of the end of the preceding calendar quartermonth, and a detailed accounting of revenues for the results of operation of Leased Property for the Facility preceding month, each in form reasonably acceptable to Lessor, Lessor hereby approving Manager's forms for such preceding calendar quarter and the Lease Year-to-date and the average daily rate, occupancy and revenue-per-available room of the Facility in such preceding calendar quarter;
(vii) within five (5) days of Lessee's receipt thereof, any inspection reports received from the franchisor under the Franchise Agreement; and
(viii) such other information as Lessor may reasonably request and that Lessee can provide without unreasonable expensethis purpose.
(c) At any time and from time to time upon not less than 10 30 days notice by Lessee, Lessor will furnish to Lessee or to any person designated by Lessee an estoppel certificate certifying that this Lease is unmodified and in full force and effect (or that this Lease is in full force and effect as modified and setting forth the modifications), the date to which Rent rent has been paid, whether to the knowledge of Lessor there is any existing default or Event of Default on Lessee's part hereunder, and such other information as may be reasonably requested by Lessee. Any such certificate furnished pursuant to this Section may be relied upon by Lessee, any lender, any underwriter and any purchaser of the assets of Lessee.
(d) If Company or Lessor proposes to include in any submission or filing with its lender, stock exchange or the SEC, Consolidated Financials of Lessee delivered or required to be delivered hereunder and the consent of Lessee's auditor is required for such inclusion, Lessee shall use commercially reasonable efforts to cause its auditor to deliver promptly to Lessor the auditor's consent, in the form required, to the inclusion in the submission or filing of the Consolidated Financials (including the report of the auditor, if the Consolidated Financials to be included are audited). Lessee shall reasonably cooperate with Lessor regarding Lessee's auditor's compliance with such requests with the purpose of minimizing costs and delays. Lessee shall reasonably cooperate with all requests made by its auditor, Lessor or the SEC to promptly provide to the auditor, Lessor or SEC such information or documents, including consents and representation letters, as may be necessary or desirable in connection with the preparation, delivery, audit or inclusion in SEC filings, submissions or other public documents, of information, including financial information, related to the Leased Property, the operation and financial results of the Leased Property, and the financial results and condition of the Lessee. Without limiting the foregoing, the information shall be sufficient to permit the preparation of a Management's Discussion and Analysis of Results of Operations and Financial Condition with respect to the Lessee as may be required to be included in reports and documents filed by the Company with the SEC. Lessee shall not be obligated to incur material additional expense to prepare any reports or information not specifically provided for herein that Lessor or Company may be required or elect to file with the SEC, and such material additional third-party costs shall be paid or reimbursed by Lessor.
Appears in 1 contract
Samples: Lease Agreement (Crescent Real Estate Equities Inc)
