Common use of Performance Clawback Clause in Contracts

Performance Clawback. A. If the number of new full time equivalent direct employees hired after the date of this Lease is less than 60 on December 31, 2023 (i.e. over and above the headcount of 171 employees employed at the Series 2011 Project as of October 31, 2017) and every December 31 thereafter (the “Employment Target” and each such December 31 date on which the Employment Target is determined, a “Performance Date”) as set forth in the annual report of the Company furnished to the Issuer pursuant to Section 4.21, then the Company may be required to pay to the Issuer, no later than the end of the calendar year immediately following the calendar year in which the Performance Date occurs (each a “Performance Year”), an amount not exceeding (i) that percentage shown below corresponding to the Percentage of the Employment Target that the Company actually employed on the pertinent Performance Date (the “Employment Target Applicable Percentage”) of the ad valorem taxes on the Series 2018 PILOT Property (as defined in Section 5.10) that the Company would have been required to pay with respect to the Performance Year if the Series 2018 Bonds had not been issued by the Issuer and the Series 2018 PILOT Property had been subject to ad valorem taxation, calculated using mill levies and actual property tax valuations and rates for the Performance Year, plus (ii) the Employment Target Applicable Percentage of the amount of gross receipts tax that would have been payable by vendors of the Series 2018 Improvements with respect to the Performance Year if the Series 2018 Bonds had not been issued and receipts from sales of the Series 2018 Improvements had not been deductible from gross receipts of the vendors plus (iii) the Employment Target Applicable Percentage of the amount of compensating tax that would have been payable (arising from liability incurred in the Performance Year) by the Company with respect to the Series 2018 Improvements if the Series 2018 Bonds had not been issued. B. The Company acknowledges that the average projected salary with respect to the categories of jobs to be attributed to the Series 2018 Project referred to in subsection A of this Section is $37,100. If, on the first Performance Date and each Performance Date thereafter, the average annual salary actually paid with respect to such jobs, as set forth in the annual report of the Company furnished to the Issuer pursuant to Section 4.21 is less than projected above (the “Projected Wage”), then the Company shall be required to pay to the Issuer, no later than the end of the calendar year immediately following the applicable Performance Year, an amount not exceeding (i) that percentage (shown below corresponding to the percentage of the Projected Wage for the applicable Performance Date) (the “Projected Wage Applicable Percentage”) of the ad valorem taxes on the Series 2018 PILOT Property that the Company would have been required to pay with respect to the Performance Year if the Series 2018 Bonds had not been issued by the Issuer and the Series 2018 PILOT Property had been subject to ad valorem taxation, calculated using mill levies and actual property tax valuations and rates for the Performance Year, plus (ii) the Projected Wage Applicable Percentage of the amount of gross receipts tax that would have been payable by vendors of the Series 2018 Improvements with respect to the Performance Year if the Series 2018 Bonds had not been issued and receipts from sales of the Series 2018 Improvements had not been deductible from gross receipts of the vendors, plus (iii) the Projected Wage Applicable Percentage of the amount of compensating tax that would have been payable (arising from liability incurred in the Performance Year) by the Company with respect to the Series 2018 Improvements if the Series 2018 Bonds had not been issued. C. The Issuer acknowledges that the purpose of this Section 4.20 is not to penalize the Company for business conditions or events that are outside the control of the Company. Performance will be measured annually and compared to projections and provisions of this Lease by the Issuer’s Economic Development Department or a third party independent contractor. In the event the reviewer determines the actual values are substantially less than those projected, then the Issuer may exercise its rights to impose a clawback as provided in this Section 4.20. In the event the Company subsequently cures the shortfall, the abatement will be restored prospectively. D. Notwithstanding anything to the contrary in this Lease, the total amount required to be paid by the Company to the Issuer pursuant to this Section 4.20 and Section 5.10 with respect to any applicable period (e.g., calendar year, time from the adoption of the Series 2011 Inducement Resolution forward to a particular date, or other period, as applicable) shall not exceed the total amount of exempted ad valorem, gross receipts and compensating taxes that would have been due to all taxing authorities from the Company and its vendors in connection with the Leased Property with respect to such applicable period if the Bonds had not been issued. (including credit for PILOT payments previously made by the Company)

Performance Clawback. A. If the number of new full time equivalent direct employees hired after attributable to the date of this Lease Project is less than 60 120 (Projected FTE Employees stated in application) (the “Employment Target”) on the first December 31, 2023 (i.e. over and above 31 following the headcount of 171 employees employed at the Series 2011 Project as of October 31, 2017) Completion Date and every December 31 thereafter (the “Employment Target” and each such December 31 date on which the Employment Target is determined, a “Performance Date”) as set forth in the annual report of the Company furnished to the Issuer pursuant to Section 4.214.20, then the Company may be required to pay to the Issuer, no later than the end of the calendar year immediately following the calendar year in which the Performance Date occurs (each a “Performance Year”), an amount not exceeding (i) that percentage (shown below corresponding to the Percentage percentage of the Employment Target that the Company actually employed on the pertinent Performance Date Date) (the “Employment Target Applicable Percentage”) of the ad valorem taxes on the Series 2018 PILOT real and personal Leased Property (as defined in Section 5.10) that the Company would have been required to pay with respect to the Performance Year if the Series 2018 Bonds Bond had not been issued by the Issuer and the Series 2018 PILOT Leased Property had been subject to ad valorem taxation, calculated using mill levies and actual property tax valuations and rates for the Performance Year, plus (ii) the Employment Target Applicable Percentage of the amount of gross receipts tax that would have been payable by vendors of the Series 2018 Improvements Leased Property with respect to the Performance Year if the Series 2018 Bonds Bond had not been issued and receipts from sales of the Series 2018 Improvements Leased Property had not been deductible from gross receipts of the vendors plus (iii) the Employment Target Applicable Percentage of the amount of compensating tax that would have been payable (arising from liability incurred in the Performance Year) by the Company with respect to the Series 2018 Improvements Leased Property if the Series 2018 Bonds Bond had not been issued.. 90% or more 0% B. The Company acknowledges that the average it has projected salary wage rates with respect to the categories of jobs to be attributed to the Series 2018 Project referred to in subsection A of this Section is Project, as follows: Hourly Servers: $37,100. 2.15/hour, plus tips; Bar personnel and runners: $5.50/hour plus tips $2.15-5.50/hour plus tips Salaried Operations Assistant Managers: $32,000/year; General Managers: $75,000/year $32,000-75,000/year Other Non-Executive Hosts: $16,640/year; Supervisors: $29,250/year $16,640-29,250/year If, on the first Performance Date and each Performance Date thereafter, the average annual salary wages actually paid with respect to such jobsemployees, as set forth in the annual report of the Company furnished to the Issuer pursuant to Section 4.21 is 4.20 are less than projected above in any category (the each a “Projected Wage”), then the Company shall be required to pay to the Issuer, no later than the end of the calendar year immediately following the applicable Performance Year, an amount not exceeding (i) that percentage (shown below corresponding to the percentage of the Projected Wage for the applicable Performance Date) (the “Projected Wage Applicable Percentage”) of the ad valorem taxes on the Series 2018 PILOT real and personal Leased Property that the Company would have been required to pay with respect to the Performance Year if the Series 2018 Bonds Bond had not been issued by the Issuer and the Series 2018 PILOT Leased Property had been subject to ad valorem taxation, calculated using mill levies and actual property tax valuations and rates for the Performance Year, plus (ii) the Projected Wage Applicable Percentage of the amount of gross receipts tax that would have been payable by vendors of the Series 2018 Improvements Leased Property with respect to the Performance Year if the Series 2018 Bonds Bond had not been issued and receipts from sales of the Series 2018 Improvements Leased Property had not been deductible from gross receipts of the vendors, plus (iii) the Projected Wage Applicable Percentage of the amount of compensating tax that would have been payable (arising from liability incurred in the Performance Year) by the Company with respect to the Series 2018 Improvements Leased Property if the Series 2018 Bonds Bond had not been issued. C. The Issuer acknowledges that the purpose of this Section 4.20 4.19 is not to penalize the Company for business conditions or events that are outside the control of the Company. Performance will be measured annually and compared to projections and provisions of this Lease Agreement by the Issuer’s Economic Development Department or a third party independent contractor. In the event the reviewer determines the actual values are substantially less than those projected, then the Issuer may exercise its rights to impose a clawback as provided in this Section 4.20section. In the event the Company subsequently cures the shortfall, the abatement will be restored prospectively. D. Notwithstanding anything to the contrary in this Lease, the total amount required to be paid by the Company to the Issuer pursuant to this Section 4.20 Sections 4.19 and Section 5.10 5.9 with respect to any applicable period (e.g., calendar year, time from the adoption of the Series 2011 Inducement Resolution inducement resolution forward to a particular date, or other period, as applicable) shall not exceed the total amount of exempted ad valorem, gross receipts and compensating taxes that would have been due to all taxing authorities from the Company and its vendors in connection with the Leased Property with respect to such applicable period if the Bonds Bond had not been issued. (including credit for PILOT payments previously made by the Company).