Deviations from Annual Business Plan. Manager shall diligently pursue all feasible measures to enable the Hotels to adhere to the Annual Business Plan. To the extent ascertainable in advance, Manager shall notify Lessee of any projected material variance from the Annual Business Plan. Notwithstanding anything herein to the contrary, Manager is not warranting or guaranteeing in any respect that the actual operating results of the Hotels during the period covered by the Annual Business Plan will not materially vary from the projections described in the Annual Business Plan.
Deviations from Annual Business Plan. Manager shall diligently pursue all feasible measures to enable the Hotel to adhere to the Annual Business Plan, provided, however, Owner acknowledges and agrees that Manager will not be responsible for any variances from the Annual Business Plan. In the event that Manager determines that circumstances require that there be material changes in the Annual Business Plan, Manager shall so notify Owner as soon as practically possible after the need for such changes becomes apparent. Such determination is made when the annual amount in a specified department described below is forecasted to exceed the budgeted amount set forth in the Annual Business Plan as reflected in the monthly forecast. For purposes of this Section 9.3, (i) a variation of more than ten percent (10%) below or in excess of the amount set forth in the Annual Business Plan for either the Sales & Marketing department or the Repairs & Maintenance department; or (ii) a variation of more than ten percent (10%) in excess of the amount set forth in the Annual Business Plan for any other major deduction category in calculating House Profit (e.g., a department such as General and Administrative), shall be deemed to be material. Any such material change shall be subject to Owner’s approval; provided, however, Owner’s approval shall not be required to the extent such material change consists of: (a) expenses which are deducted from House Profit, (b) expenses which are nondiscretionary by virtue of being determined by a third party or governmental entity, such as minimum wages under collective bargaining agreements, utility costs, franchise fee increases, changes in franchise standards and sales taxes, (c) the amount of increased expenses resulting directly from increases in volume, provided that, departmental profit margins and House Profit margins are not diminished or otherwise negatively affected or (d) expenditures as may be required if Manager reasonably believes such expenditure to be required by any emergency situation imminently threatening life, health or safety (provided that Manager shall notify Owner of such emergency and the need for such expenditure in advance or if not possible in advance then as soon as practicable). Notwithstanding anything herein to the contrary, Manager is not warranting or guaranteeing in any respect the actual operating results of the Hotel.
Deviations from Annual Business Plan. (a) Upon approval by Owner of an Annual Business Plan, Manager shall manage, operate and maintain the Hotel for the subsequent Fiscal Year in accordance with the Annual Business Plan and attempt to adhere thereto, as nearly as practicable, on the condition that if Manager shall be unable, with the exercise of due diligence, to comply with the approved Annual Business Plan, such inability shall not constitute a default under this Agreement.
(b) Manager shall be authorized to take appropriate remedial action without receiving Owner’s prior written consent (i) in an emergency threatening the Hotel, its guests, invitees or employees; or (ii) if the continuation of the given condition will subject Manager and/or Owner to civil or criminal liability, and Owner has either failed to remedy the situation or has failed to take appropriate legal action to stay the effectiveness of any Laws. In such an event, Manager shall cooperate with Owner in the pursuit of any such action and shall have the right to participate therein. The cost of any such remedial action shall be excluded from any calculation of Incentive Fees.
(c) Owner acknowledges that the Annual Business Plan is a reasonable estimate and that any projections set forth in the Annual Business Plan are subject to and may be affected by changes in financial, economic and other conditions and circumstances beyond Manager’s reasonable control and that such projections are not to be construed as a guaranty by Manager of the actual results of operations to be obtained. However, Manager will provide Owner with written explanations of all significant variances and programs put in place to correct or improve situations which materially deviate from the original Annual Business Plan for each Fiscal Year.
Deviations from Annual Business Plan. Manager agrees to use all commercially reasonable efforts to prevent the actual costs of promoting, operating, repairing and maintaining the Hotel from exceeding the budgeted amounts set forth in the Annual Business Plan. All expenses must be charged to the proper account as delineated in the form of budget requested by Owner from time to time, and no expense may be classified or reclassified by Manager for the purpose of avoiding an excess in the budgeted amount of a category. Notwithstanding anything herein to the contrary, Owner acknowledges that the budgets that constitute the Annual Business Plan are forecasts based upon assumptions made at the time of the preparation and that Manager is not warranting or guaranteeing in any respect that the actual operating results of the Hotel during the period covered by the Annual Business Plan will not materially vary from the projections described in the Annual Business Plan. Accordingly, Manager may: (a) incur variable expenses directly attributable to occupancy or revenues above forecasted levels; (b) pay all impositions, utilities, insurance premiums and charges provided for in contracts and leases entered into pursuant to this Agreement that are not within Manager’s ability to control; (c) make any expenditures reasonably required on an emergency basis to avoid or mitigate damage to the Hotel or injury to persons or property, provided that it gives Owner prior written notice in advance or as promptly thereafter as practically possible; and (d) make any expenditures necessary to comply with, or to cure or prevent any violation of, applicable laws and regulations, provided that it gives Owner prior written notice in advance or as promptly thereafter as practically possible. However, the Manager will provide explanations for all significant variances and implement programs to correct or improve situations that result in such deviations.
Deviations from Annual Business Plan. Manager shall diligently pursue all feasible measures to enable the Facilities to adhere to the Annual Business Plan, provided, however, Opco acknowledges and agrees that, notwithstanding any covenant in this Agreement to the contrary, Manager will not be responsible for any variances from the Annual Business Plan. Variations in the Annual Business Plan will not be subject to the prior approval of Opco. Notwithstanding anything herein to the contrary, Manager is not warranting or guaranteeing in any respect that the actual operating results of the Facilities during the period covered by the Annual Business Plan will not materially vary from the projections described in the Annual Business Plan.
Deviations from Annual Business Plan. Manager agrees to use all commercially reasonable efforts to prevent the actual costs of promoting, operating, repairing and maintaining the Hotel from exceeding the budgeted amounts set forth in the Annual Business Plan. All expenses must be charged to the proper account as delineated in the form of budget requested by Owner from time to time, and no expense may be classified or reclassified by Manager for the purpose of avoiding an excess in the budgeted amount of a category. Notwithstanding the foregoing or anything to the contrary contained elsewhere in this Agreement but subject to the terms of and compliance with any loan agreement, Manager shall not, without the prior written approval of Owner, make expenditures in any Fiscal Year for any line-item in the Annual Business Plan which, in the aggregate, exceed the budgeted amount for such line item in the approved Annual Business Plan by more than ten percent (10%) or, in the aggregate, ten percent (10%) of the total approved Annual Business Plan. Notwithstanding anything herein to the contrary, Manager is not warranting or guaranteeing in any respect that the actual operating results of the Hotel during the period covered by the Annual Business Plan will not materially vary from the projections described in the Annual Business Plan. However, the Manager will provide explanations for all significant variances and implement programs to correct or improve situations that result in such deviations.
