Common use of Starwood Examination and Audit of Vistana’s Records Clause in Contracts

Starwood Examination and Audit of Vistana’s Records. A. During the Term and any Tail Period, and for three (3) years thereafter, Starwood and its authorized representatives have the right, at any time (but not more than once per calendar year, unless an audit reveals an understatement of two percent (2%) or more in such year), upon reasonable notice to Vistana and at Starwood’s cost, to: (i) examine all books, records, accounts and data (including its computers and electronic storage media) of Vistana for the five (5) years preceding such examination to ensure that Vistana is complying with the terms of this Agreement (including with respect to the calculation of the Royalty Fees and other amounts payable under this Agreement where the calculation of such amount depends on information provided by Vistana), and to copy such information that is reasonably necessary for, and relevant to, such audit; and (ii) have an independent audit made of any of such books, records, accounts and data (including its computers and electronic storage media). Vistana will fully cooperate with, and provide such other assistance as may be reasonably requested related to, the audit. If an examination or audit reveals that Vistana has made underpayments to Starwood or any of its Affiliates, Vistana will promptly pay to Starwood or such Affiliate, upon demand, the amount underpaid, plus interest on the underpaid amount, which will accrue thereon at a rate per annum equal to the Interest Rate from the date such amount was due until paid. If Vistana, in good faith, disputes that there was an underpayment, the parties will review the books and records in a cooperative manner in an attempt to resolve any discrepancy. B. If an examination or audit discloses an understatement of payments due to Starwood of two (2%) or more for the period being examined or audited, or if the examination or audit reveals that the accounting procedures are insufficient to determine the accuracy of the calculation of any payments due, Vistana will reimburse Starwood for all reasonable costs and expenses connected with the examination or audit (including reasonable accounting and lawyers’ fees). If the examination or audit establishes a pattern of underreporting, Starwood may require that the financial reports due under Section 15.2 be audited by an internationally recognized independent accounting firm consented to by Starwood. The foregoing remedies are in addition to any other remedies that Starwood may have under this Agreement. Starwood’s acceptance of the payment of any deficiency shall not waive its rights arising out of Vistana’s breach. C. If an examination or audit discloses an overpayment to Starwood, this shall be credited against future payments due to Starwood without interest, or, if no future payments are due, Starwood shall promptly refund such amount without interest. D. To the extent Vistana is required to have access to information that is in the sole possession of Starwood or its Affiliates for purposes of Vistana’s (and Parent’s) compliance obligations with respect to the Xxxxxxxx-Xxxxx Act of 2002 (or any successor statute) or for purposes Parent’s reporting obligations as a publicly traded company, Starwood will cooperate in providing access to the necessary information that is within Starwood’s or its Affiliates’ control and that Starwood and its Affiliates are permitted to provide under Applicable Law.

Starwood Examination and Audit of Vistana’s Records. A. During the Term and any Tail Period, and for three (3) years thereafter, Starwood and its authorized representatives have the right, at any time (but not more than once per calendar year, unless an audit reveals an understatement of two percent (2%) or more in such year), upon reasonable notice to Vistana and at Starwood’s cost, to: (i) examine all books, records, accounts and data (including its computers and electronic storage media) of Vistana for the five (5) years preceding such examination to ensure that Vistana is complying with the terms of this Agreement (including with respect to the calculation of the Royalty Fees and other amounts payable under this Agreement where the calculation of such amount depends on information provided by Vistana), and to copy such information that is reasonably necessary for, and relevant to, such audit; and (ii) have an independent audit made of any of such books, records, accounts and data (including its computers and electronic storage media). Vistana will fully cooperate with, and provide such other assistance as may be reasonably requested related to, the audit. If an examination or audit reveals that Vistana has made underpayments to Starwood or any of its Affiliates, Vistana will promptly pay to Starwood or such Affiliate, upon demand, the amount underpaid, plus interest on the underpaid amount, which will accrue thereon at a rate per annum equal to the Interest Rate from the date such amount was due until paid. If Vistana, in good faith, disputes that there was an underpayment, the parties will review the books and records in a cooperative manner in an attempt to resolve any discrepancy. B. If an examination or audit discloses an understatement of payments due to Starwood of two (2%) or more for the period being examined or audited, or if the examination or audit reveals that the accounting procedures are insufficient to determine the accuracy of the calculation of any payments due, Vistana will reimburse Starwood for all reasonable costs and expenses connected with the examination or audit (including reasonable accounting and lawyers’ fees). If the examination or audit establishes a pattern of underreporting, Starwood may require that the financial reports due under Section 15.2 be audited by an internationally recognized independent accounting firm consented to by Starwood. The foregoing remedies are in addition to any other remedies that Starwood may have under this Agreement. Starwood’s acceptance of the payment of any deficiency shall not waive its rights arising out of Vistana’s breach. C. If an examination or audit discloses an overpayment to Starwood, this shall be credited against future payments due to Starwood without interest, or, if no future payments are due, Starwood shall promptly refund such amount without interest. D. To the extent Vistana is required to have access to information that is in the sole possession of Starwood or its Affiliates for purposes of Vistana’s (and Parent’s) compliance with obligations with respect to the Xxxxxxxx-Xxxxx Act of 2002 (or any successor statute) or for purposes of Parent’s reporting obligations as a publicly traded company, Starwood will cooperate in providing access to the necessary information that is within Starwood’s or its Affiliates’ control and that Starwood and its Affiliates are permitted to provide under Applicable Law.