Common use of Deviations from Annual Business Plan Clause in Contracts

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. 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 practicably possible after the need for such changes change becomes apparentapparent to Manager. Such determination is made when A variation not permitted by this Section 6.3, without Owner’s approval, shall be deemed material. Upon approval of the annual amount Annual Plan by Owner, Manager shall use diligent and commercially reasonable efforts to operate the Hotel substantially in a specified department described below is forecasted accordance with the Annual Plan. Manager shall not, without Owner’s prior approval, incur any expense for any line-item in the Annual Plan which causes the aggregate expenditures for such line- item to exceed the budgeted amount set forth in by the Annual Business Plan as reflected in the monthly forecast. For purposes of this Section 9.3, greater of: (i) a variation of more than ten percent (10%) below or in excess of (ii) Five Thousand and No/100 Dollars ($5,000.00) for the amount applicable fiscal period set forth in the Annual Business Plan for either the Sales & Marketing department or the Repairs & Maintenance departmentPlan; 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.provided that Manager may at Owner’s cost and expense, a department such as General and Administrative), shall be deemed to be material. Any such material change shall be subject to without Owner’s approval; provided, however, Owner’s approval shall not be required to the extent such material change consists of: (a1) pay any expenses (the “Necessary Expenses”) regardless of amount, which are deducted from House Profitnecessary, in Manager’s good faith judgement for the continued operation of the Hotel in accordance with the Operating Standards; (b2) expenses which so long as Manager provides notice to Owner of such expense as soon as reasonably practicable, pay any expense (the “Emergency Expenses”) regardless of amount which, in Manager’s good faith judgment, are nondiscretionary by virtue immediately necessary to protect the physical integrity or lawful operation of being determined by a third party the Hotel 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 of its occupants; and/or (3) pay any third party operating expenses, not to exceed Twenty Five Thousand and No/100 Dollars ($25,000.00) on an annual aggregate basis, which are, in Manager’s good faith judgement commercially desirable to be incurred in order to obtain unbudgeted Hotel revenue in the ordinary course of operating the Hotel in accordance with the then-current Annual Plan; provided that such unbudgeted revenue is sufficient in Manager’s professional judgment to offset such expenses (“Opportunity Expenses”); and, provided further, that Manager shall notify shall, upon request by Owner, provide to Owner a summary of any Opportunity Expenses incurred in such emergency month and summarize the need for such expenditure in advance or if not possible in advance then as soon as practicable)results of incurring the Opportunity Expenses. 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. 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 's approval; provided, however, Owner’s '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.