ANY AMOUNTS DUE TO OWNER AS SHOWN IN AN
OFFICER'S CERTIFICATE OR AUDIT PROVIDED PURSUANT TO SECTIONS 8.1(F) OR 17.4
EXCEED THE AMOUNTS PREVIOUSLY PAID WITH RESPECT THERETO TO OWNER, MANAGER SHALL
PAY SUCH EXCESS TO OWNER AT SUCH TIME AS THE OFFICER'S CERTIFICATE OR AUDIT IS
DELIVERED, TOGETHER WITH INTEREST AT THE INTEREST RATE FROM THE DATE DUE.
(ANY
SUCH INTEREST WHICH ACCRUES AFTER THE DAY THAT IS TEN (10) BUSINESS DAYS AFTER
THE DATE ON WHICH THE 8.1(C) STATEMENT IS DELIVERED OR IS DUE AND ANY SUCH
INTEREST WHICH RESULTS FROM MANAGER'S WILLFUL UNDERSTATEMENT OF AMOUNTS DUE TO
OWNER SHALL NOT BE OPERATING COSTS, BUT SHALL BE PAID BY MANAGER.)
IF OWNER'S
PERCENTAGE PRIORITY DUE AS SHOWN IN AN OFFICER'S CERTIFICATE OR AUDIT IS LESS
THAN THE AMOUNT PREVIOUSLY PAID WITH RESPECT THERETO TO OWNER, OWNER SHALL BE
ENTITLED TO RETAIN THE SAME BUT SHALL CREDIT SUCH OVERPAYMENT AGAINST THE NEXT
INSTALLMENT OF OWNER'S PERCENTAGE PRIORITY.
IF ANY MANAGEMENT FEE DUE TO
MANAGER AS SHOWN ON AN OFFICER'S CERTIFICATE OR AUDIT IS LESS THAN THE AMOUNT
PREVIOUSLY PAID TO MANAGER ON ACCOUNT THEREOF,
54
MANAGER SHALL, WITHIN TEN (10) BUSINESS DAYS AFTER THE DATE ON WHICH SUCH
OFFICER'S CERTIFICATE OR AUDIT IS DELIVERED, DEPOSIT THE OVERPAYMENT IN THE BANK
ACCOUNTS.
IF THE RESIDUAL DISTRIBUTION DUE AS SHOWN ON THE OFFICER'S
CERTIFICATE OR AUDIT IS LESS THAN THE AMOUNT PREVIOUSLY PAID TO OWNER WITH
RESPECT THERETO, OWNER SHALL PROMPTLY DEPOSIT (OR DELIVER TO MANAGER WHO WILL IN
TURN DEPOSIT) THE OVERPAYMENT IN THE BANK ACCOUNTS.
IN NO EVENT SHALL (I) ANY
AMOUNT PREVIOUSLY DEPOSITED IN THE RESERVE ACCOUNT BE WITHDRAWN THEREFROM
PURSUANT TO THIS ARTICLE 8 OR (II) DISTRIBUTIONS OF OWNER'S FIRST PRIORITY BE
SUBJECT TO ADJUSTMENT.
(E)
IN ADDITION, MANAGER SHALL PROVIDE OWNER
WITH INFORMATION RELATING TO THE HOTELS, MANAGER AND ITS AFFILIATES THAT (I) MAY
BE REQUIRED IN ORDER FOR OWNER, PURCHASER OR THEIR AFFILIATES TO PREPARE
FINANCIAL STATEMENTS IN ACCORDANCE WITH ACCOUNTING PRINCIPLES OR TO COMPLY WITH
ANY LEGAL REQUIREMENT INCLUDING, WITHOUT LIMITATION, ANY APPLICABLE TAX AND
SECURITIES LAWS AND REGULATIONS AND THE UNITED STATES SECURITIES AND EXCHANGE
COMMISSION'S INTERPRETATION THEREOF, (II) MAY BE REQUIRED FOR OWNER, PURCHASER
OR ANY OF THEIR AFFILIATES TO PREPARE FEDERAL (UNITED STATES AND CANADA), STATE,
PROVINCIAL OR LOCAL TAX RETURNS, INCLUDING, WITHOUT LIMITATION, GST OR (III) IS
OF THE TYPE THAT MANAGER CUSTOMARILY PREPARES FOR OTHER HOTEL OWNERS OR ITSELF.
(F)
AT OWNER'S ELECTION AND AT OWNER'S COST
EXCEPT AS OTHERWISE PROVIDED HEREIN, A CERTIFIED AUDIT OF THE HOTELS' OPERATIONS
MAY BE PERFORMED ANNUALLY, AND AFTER THE EXPIRATION DATE, BY A NATIONALLY
RECOGNIZED, INDEPENDENT CERTIFIED PUBLIC ACCOUNTING FIRM APPOINTED BY OWNER.
IN
THE EVENT THAT OWNER ELECTS TO HAVE SUCH AN AUDIT PERFORMED, OWNER MUST GIVE
NOTICE OF ITS ELECTION WITHIN TWELVE (12) MONTHS AFTER ITS RECEIPT OF THE
APPLICABLE 8.1(C) STATEMENT.
ANY DISPUTE CONCERNING THE CORRECTNESS OF AN AUDIT
SHALL BE SETTLED BY ARBITRATION.
MANAGER SHALL PAY THE COST OF ANY AUDIT
REVEALING AN UNDERSTATEMENT OF OWNER'S PERCENTAGE