Common use of Incentive Management Fee Clause in Contracts

Incentive Management Fee. Notwithstanding that the Incentive Management Fee shall be calculated based upon the Available Cash Flow with respect to a Fiscal Year pursuant to the terms of this Agreement, quarterly advances on the actual Incentive Management Fee, if any, to be paid to Manager with respect to a Fiscal Year shall be made based upon interim calculations of year-to-date Available Cash Flow at the end of each of the first three (3) fiscal quarters of a Fiscal Year giving Lessee credit for any prior advances which have been made in respect of a prior fiscal quarter in such Fiscal Year. Payments of such quarterly advances of the Incentive Management Fee shall be made based upon, and within thirty (30) days of the delivery to Lessee of the month-end reports required by Section 9.03A, subject to the terms and conditions of this Agreement and subject to Lessee’s rights to contest or challenge such report and to the resolution of any such challenge. If, as of the end of any fiscal quarter, Manager has received excess payments of its Incentive Management Fee for year-to-date performance, then Manager shall immediately repay such excess to Lessee and Lessee shall, without limiting the foregoing, have the right to instead offset such excess amounts owing to it against any amount owing by Lessee to Manager hereunder. Within thirty (30) days of the delivery to Lessee of the Annual Operating Statement report under Sections 9.03B and 12.02, the final payment of amounts owed to Manager with respect to the Available Cash Flow in respect of the Fiscal Year as to which such Annual Operating Statement relates shall be made, or, if based upon such Annual Operating Statement Manager has been paid advances on the Incentive Management Fee in respect of such Fiscal Year which exceed the amount of the Incentive Management Fee actually owed to Manager for such Fiscal Year, then within such thirty (30) days Manager shall repay to Lessee such excess. All payments to Manager with respect to the Incentive Management Fee, including, without limitation advances, are expressly subject to the prior payment to Lessee, and subordinated to Lessee’s right to receive, Lessee’s Priority, and are subject to the other terms and conditions of this Agreement, the Pooling and Cumulation Agreement, and Lessee’s rights to contest or challenge any such report and to the resolution of any such challenge. Without limiting the foregoing, for clarification purposes, Manager and Lessee hereby agree that the payment to Manager of the Incentive Management Fee, if any, shall be subordinated to Lessee’s Priority hereunder (for the then current Fiscal Year and for any and all prior Fiscal Years, to the extent not fully paid) and shall be subject to the Pooling and Cumulation Agreement.

Incentive Management Fee. Notwithstanding (a) Subject to paragraphs 9, 10 and 11 ------------------------- below, commencing with the first full Fiscal Quarter (as defined below) following the Effective Date and continuing until the year ending December 31, 2000, Lessee shall pay to Manager an incentive management fee (the "Incentive Management Fee") equal to .025% of Adjusted Gross Revenues during the applicable Term Year for every 0.1% increase in the Adjusted Gross Revenues for such Term Year over the Adjusted Gross Revenues for the preceding Term Year up to a maximum Incentive Management Fee of 2.0% of Adjusted Gross Revenues for such Term Year. The Incentive Management Fee shall be computed and paid within ten (10) days after the end of each Fiscal Quarter during the Term Year (based on the percentage increase in the Adjusted Gross Revenues for the applicable Term Year through the end of such Fiscal Quarter over the Adjusted Gross Revenues for the comparable period of time during the prior Term Year) and adjusted and reconciled to reflect the actual results at the completion of each such Term Year; if there has been any overpayment or underpayment of the Incentive Management Fee to Manager for such Term Year as a result of the prior quarterly payments, the amount thereof shall be either refunded or paid at such time, as the case may be. In any event, any overpayment of the Incentive Management Fee as of the end of any Term Year shall be refunded by Manager within sixty (60) days after the end of such Term Year. In the event that any Term Year shall be less than 365 days, the Incentive Management Fee for such Term Year shall be computed by comparing the Adjusted Gross Revenues for such Term Year to the Adjusted Gross Revenues for the comparable period of time during the prior Term Year. As used herein, the term "Fiscal Quarter" shall mean any three month period ending on March 31, June 30, September 30 or December 31. (b) During the 60 day period prior to January 1, 2001 and every fourth (4th) anniversary thereafter during the term of this Agreement (the "Renegotiation Period"), the Lessee and Manager shall in good faith renegotiate the terms of the Incentive Management Fee to reflect current market conditions, the performance of the Hotel and comparable management and operating agreements that take into account the size and location of the Hotel; provided, however, without the consent of the Lessee, the Incentive Management Fee shall be calculated based upon the Available Cash Flow with respect limited to a Fiscal Year pursuant to the terms an aggregate maximum of this Agreement, quarterly advances on the actual Incentive Management Fee, if any, to be paid to Manager with respect to a Fiscal Year 2.0% of Adjusted Gross Revenues. Such renegotiated fee shall be made based upon interim calculations of year-to-date Available Cash Flow at the end of each of the first three (3) fiscal quarters of a Fiscal Year giving Lessee credit for any prior advances which have been made reflected in respect of a prior fiscal quarter in such Fiscal Year. Payments of such quarterly advances of the Incentive Management Fee shall be made based upon, and within thirty (30) days of the delivery an amendment to Lessee of the month-end reports required by Section 9.03A, subject to the terms and conditions of this Agreement and subject to Lessee’s rights to contest or challenge such report and to shall be effective during the resolution of any such challenge. If, as period commencing with the expiration of the end applicable Renegotiation Period and continuing for a period of any fiscal quarter, Manager has received excess payments of its Incentive Management Fee for year-to-date performance, then Manager shall immediately repay such excess to Lessee and Lessee shall, without limiting the foregoing, have the right to instead offset such excess amounts owing to it against any amount owing by Lessee to Manager hereunder. Within thirty (30) days of the delivery to Lessee of the Annual Operating Statement report under Sections 9.03B and 12.02, the final payment of amounts owed to Manager with respect to the Available Cash Flow in respect of the Fiscal Year as to which such Annual Operating Statement relates shall be made, or, if based upon such Annual Operating Statement Manager has been paid advances on the Incentive Management Fee in respect of such Fiscal Year which exceed the amount of the Incentive Management Fee actually owed to Manager for such Fiscal Year, then within such thirty (30) days Manager shall repay to Lessee such excess. All payments to Manager with respect to the Incentive Management Fee, including, without limitation advances, are expressly subject to the prior payment to Lessee, and subordinated to Lessee’s right to receive, Lessee’s Priority, and are subject to the other terms and conditions of this Agreement, the Pooling and Cumulation Agreement, and Lessee’s rights to contest or challenge any such report and to the resolution of any such challenge. Without limiting the foregoing, for clarification purposes, Manager and Lessee hereby agree that the payment to Manager of the Incentive Management Fee, if any, shall be subordinated to Lessee’s Priority hereunder (for the then current Fiscal Year and for any and all prior Fiscal Years, to the extent not fully paid) and shall be subject to the Pooling and Cumulation Agreement4 years thereafter.

Incentive Management Fee. Notwithstanding In addition to the Base Fee, Resort Owner will pay the Incentive Management Fee to Manager to the extent payable in accordance with this Section 6.2 and the other terms of this Agreement. Concurrently with the delivery to Resort Owner of the Monthly Report for the final month of each Incentive Management Fee Period, Manager will calculate EBITDAM for such Incentive Management Fee Period to determine whether the Incentive Management Fee is payable for such Incentive Management Fee Period, and will promptly deliver notice of such calculation and determination to Resort Owner. The Incentive Management Fee will be payable to Manager within twenty (20) calendar days after Manager delivers such calculation and determination to Resort Owner; provided, however, that Resort Owner may elect, in its commercially reasonably discretion, to defer payment of the Incentive Management Fee until completion of an audit to be performed by an Independent Auditor as long as Resort Owner has a good faith basis to question whether the Incentive Management Fee is payable and such audit is concluded by the date that is sixty (60) days following Resort Owner’s receipt of the Monthly Report for the final month of the applicable Incentive Management Fee Period. The cost of the audit shall be an Operating Expense (but such costs shall be excluded from Operating Expenses solely for the purposes of calculating EBITDAM in connection with determining whether an Incentive Management Fee is payable under this Agreement) unless the audit reveals that Manager overstated EBITDAM by more than four percent (4%), in which case Manager shall pay the cost of the audit from its own funds. If the audited financial statements demonstrate that the Incentive Management Fee is payable to Manager, Resort Owner shall be calculated based upon the Available Cash Flow with respect to a Fiscal Year pursuant to the terms of this Agreement, quarterly advances on the actual Incentive Management Fee, if any, to be paid to Manager with respect to a Fiscal Year shall be made based upon interim calculations of year-to-date Available Cash Flow at the end of each make such payment within five (5) days following Resort Owner’s receipt of the first three (3) fiscal quarters of a Fiscal Year giving Lessee credit for any prior advances which have been made in respect of a prior fiscal quarter in such Fiscal Yearaudited financial statements. Payments of such quarterly advances of If the audited financial statements demonstrate that the Incentive Management Fee is not payable to Manager, Resort Owner shall not be made based upon, and within thirty (30) days of the delivery required to Lessee of the month-end reports required by Section 9.03A, subject to the terms and conditions of this Agreement and subject to Lessee’s rights to contest or challenge such report and to the resolution of any such challenge. If, as of the end of any fiscal quarter, Manager has received excess payments of its Incentive Management Fee for year-to-date performance, then Manager shall immediately repay such excess to Lessee and Lessee shall, without limiting the foregoing, have the right to instead offset such excess amounts owing to it against any amount owing by Lessee to Manager hereunder. Within thirty (30) days of the delivery to Lessee of the Annual Operating Statement report under Sections 9.03B and 12.02, the final payment of amounts owed to Manager with respect to the Available Cash Flow in respect of the Fiscal Year as to which such Annual Operating Statement relates shall be made, or, if based upon such Annual Operating Statement Manager has been paid advances on pay the Incentive Management Fee in respect of such Fiscal Year which exceed the amount of the to Manager. Each Incentive Management Fee actually owed to Manager for such Fiscal YearPeriod shall be a non-cumulative, then within such thirty (30) days Manager shall repay to Lessee such excess. All payments to Manager with respect to the independent test period; accordingly, an Incentive Management Fee, including, without limitation advances, are expressly subject to Fee could be earned for the prior payment to LesseeFirst Incentive Management Fee Period but not the Second Incentive Management Fee Period, and subordinated to Lessee’s right to receive, Lessee’s Priority, and are subject to the other terms and conditions of this Agreement, the Pooling and Cumulation Agreement, and Lessee’s rights to contest or challenge any such report and to the resolution of any such challenge. Without limiting the foregoing, for clarification purposes, Manager and Lessee hereby agree that the payment to Manager of the Incentive Management Fee, if any, shall be subordinated to Lessee’s Priority hereunder (for the then current Fiscal Year and for any and all prior Fiscal Years, to the extent not fully paid) and shall be subject to the Pooling and Cumulation Agreementvisa-versa.

Incentive Management Fee. Notwithstanding In addition to the Management Fee, Owner shall pay to Manager an Incentive Management Fee (hereinafter referred to as the “Incentive Management Fee”) in an amount equal to: (i) Nine and One Half Percent (9.5%) of the annual Net Operating Income, as hereinafter defined, in excess of Five Hundred Thousand and no/100 Dollars ($500,000.00) (hereinafter referred to as the “Threshold”) during each calendar year of the Term, provided however for any for any partial calendar year, the Threshold be reduced to the amount calculated by: (i) dividing Threshold 365 days; and then (ii) multiplying the quotient so determined by the actual number of days this Agreement was in effect during such year. An estimated payment of the Incentive Management Fee (hereinafter referred to as an “Incentive Estimate”) shall be paid by Owner to Manager within thirty (30) days of the end of the first three calendar quarters of each calendar year (March 31, June 30 and September 30) based upon annual Net Operating Income in excess of the Threshold , as applicable, for such portions of the applicable calendar year as calculated based upon the above procedures for a partial calendar year. Each Incentive Estimate shall be deemed an advance on the payment of any Incentive Management Fee due for such calendar year. In the event that the Incentive Estimates paid to Manager for any calendar year exceed the Incentive Management Fee for such calendar year, the excess shall be deducted from the next sums payable hereunder to Manager, provided however if at the time of payment of the Incentive Management Fee this Agreement has been theretofore terminated, any excess payment of the Incentive Management Fee paid due to Incentive Estimates, shall be immediately paid by Manager to Owner. The Incentive Management Fee shall be calculated based upon the Available Cash Flow with respect paid by Owner to a Fiscal Year pursuant to the terms of this AgreementManager, quarterly advances on the actual after deducting any applicable Incentive Management FeeEstimates, if any, to be paid to Manager with respect to a Fiscal Year shall be made based upon interim calculations of year-to-date Available Cash Flow at the end of each of the first three (3) fiscal quarters of a Fiscal Year giving Lessee credit for any prior advances which have been made in respect of a prior fiscal quarter in such Fiscal Year. Payments of such quarterly advances of the Incentive Management Fee shall be made based upon, and within thirty (30) days of the delivery to Lessee Owner by Manager of the month-end reports required by Section 9.03A, subject to the terms and conditions of this Agreement and subject to Lessee’s rights to contest or challenge such report and to the resolution of any such challenge. Ifan Annual Statement, as of the end of any fiscal quarterhereinafter defined, Manager has received excess payments of its Incentive Management Fee for year-to-date performance, then Manager shall immediately repay such excess provided however if Owner elects to Lessee and Lessee shall, without limiting the foregoing, have the right to instead offset such excess amounts owing to it against any amount owing by Lessee to Manager hereunder. Within thirty (30) days of the delivery to Lessee of the Annual Operating Statement report under Sections 9.03B and 12.02, the final payment of amounts owed to Manager perform an audit with respect to the Available Cash Flow in respect of the Fiscal Year as to which such Annual Operating Statement relates shall be madeStatement, or, if based upon such Annual Operating Statement Manager has been paid advances on the Incentive Management Fee in respect shall be paid by Owner to Manager upon completion of such Fiscal Year which exceed the amount of the Incentive Management Fee actually owed to Manager for such Fiscal Yearaudit, then within such thirty but in no event later than ninety (3090) days Manager shall repay after delivery to Lessee such excess. All payments to Manager with respect to the Incentive Management Fee, including, without limitation advances, are expressly subject to the prior payment to Lessee, and subordinated to Lessee’s right to receive, Lessee’s Priority, and are subject to the other terms and conditions of this Agreement, the Pooling and Cumulation Agreement, and Lessee’s rights to contest or challenge any such report and to the resolution of any such challenge. Without limiting the foregoing, for clarification purposes, Manager and Lessee hereby agree that the payment to Owner by Manager of the Incentive Management Fee, if any, shall be subordinated to Lessee’s Priority hereunder (for the then current Fiscal Year and for any and all prior Fiscal Years, to the extent not fully paid) and shall be subject to the Pooling and Cumulation Agreementan Annual Statement.