Common use of Performance Failure Clause in Contracts

Performance Failure. (a) If a Hotel fails to achieve as of the end of any Fiscal Year (i) actual NOI of at least 90% of the budgeted NOI for such Hotel for such Fiscal Year, and (ii) 100% of such Hotel’s previous years running (12) month RevPAR index (as measured by STR) for such Fiscal Year (collectively, an “Individual Hotel Performance Failure”), subject to the cure periods below, Lessee may terminate this Agreement with respect to such Hotel upon sixty (60) days prior written notice to Operator. The effectiveness of any such notice of termination, however, shall be stayed until completion of the following applicable cure periods. If an Individual Hotel Performance Failure occurs with respect to a Fiscal Year, but the Hotel achieves as of the end of the immediately following three (3) months actual NOI of at least 100% of the budgeted NOI for such Hotel for such three (3) months, and 100% of such Hotel’s previous years running (3) month RevPAR index (as measured by STR), then the Individual Hotel Performance Failure shall be deemed cured and Lessee shall have no right to terminate for such Individual Hotel Performance Failure (and any notice of termination with respect thereto shall be deemed null and void). (b) If the portfolio of Hotels fail to achieve as of the end of any Fiscal Year actual NOI of at least 90% of the budgeted NOI for the Hotels for such Fiscal Year, and 95% of the Hotels’ previous years running (12) month RevPAR index (as measured by STR) for such Fiscal Year (collectively, a “Operator Performance Failure”), subject to the cure period below, Lessee may terminate this Agreement with respect to all of the Hotels under this agreement upon sixty (60) days prior written notice to Operator. The effectiveness of any such notice of termination, however, shall be stayed until completion of the following applicable cure periods. If the Operators Performance Failure occurs with respect to a Fiscal Year, but the portfolio of Hotels achieve as of the end of the immediately following three (3) months actual NOI of at least 100% of the budgeted NOI for the Hotels for such three (3) months, and 100% of the Hotels’ previous years running (3) month RevPAR index, then the Hotels Performance Failure shall be deemed cured and Lessee shall have no right to terminate for the Hotels Performance Failure (and any notice of termination with respect thereto shall be deemed null and void). (c) If an individual Hotel, after the operator has managed the Hotel for a consecutive twelve (12) month period, at any point, has a negative RevPAR change versus its competitive set, as measured by the monthly STR Report of greater than 10% for a running (12) month period (“Negative RevPAR Individual Hotel Performance Failure”), subject to the cure periods below, Lessee may terminate this Agreement with respect to the individual Hotel upon sixty (60) days prior written notice to Operator. The effectiveness of such notice of termination however, shall be stayed until completion of the following applicable cure period. If an individual Hotel’s performance, as measured by the monthly STR Report, for the following three (3) consecutive month period after notice of termination is provided, has a positive RevPAR change versus its competitive set, then the Negative RevPAR Individual Hotel Performance Failure shall be deemed cured and Lessee shall have no right to terminate for such Negative RevPAR Individual Hotel Performance Failure (and any notice of termination with respect thereto shall be deemed null and void). If however, the individual Hotel’s performance at any given period after termination has been cured, as measured by the monthly STR Report for the following twelve (12) month period, again becomes greater than negative 10% change against the individual Hotel’s competitive set as measured by the running (12) month period, Lessee may terminate this Agreement with respect to the individual Hotel upon sixty (60) days prior written notice and Operator shall no longer have the option to cure. (d) If Operator, after twelve (12) consecutive months of managing its entire portfolio of Hotels for Lessee, has greater than 33% of its portfolio failing to achieve a positive RevPAR change against its competitive set, as measured by STR Reports running (12) month period (“Operator RevPAR Performance Failure”), subject to the cure periods below, Lessee may terminate this Agreement with respect to Operator’s entire portfolio of Hotels with Lessee upon sixty (60) days prior written notice to Operator. The effectiveness of such notice of termination however, shall be stayed until the completion of the following applicable cure period. If the Hotel portfolio managed by Operator has more than 75% of the Hotels achieve a positive RevPAR change versus its competitive set as measured by the monthly STR Report performance, for the following three (3) consecutive month period after notice, then the Operator RevPAR Performance Failure shall be deemed cured and Lessee shall have no right to terminate for such RevPAR Hotels Performance Failure (and any notice of termination with respect thereto shall be deemed null and void).

Performance Failure. (a) If a Hotel fails to achieve as of the end of any Fiscal Year Quarter (i) actual NOI of at least 90% of the budgeted NOI for such Hotel for such Fiscal YearQuarter, and (ii) 100% of such Hotel’s previous years running (12) month RevPAR index (as measured by STR) for such Fiscal Year twelve (12) month period (collectively, an “Individual Hotel Performance Failure”), subject to the cure periods below, Lessee may terminate this Agreement with respect to such Hotel upon sixty (60) days prior written notice to Operator. The effectiveness of any such notice of termination, however, shall be stayed until completion of the following applicable cure periods. If an Individual Hotel Performance Failure occurs with respect to a Fiscal YearQuarter, but the Hotel achieves as of the end of the immediately following three (3) months actual NOI of at least 100% of the budgeted NOI for such Hotel for such three (3) months, and 100% of such Hotel’s previous years running (3) month RevPAR index (as measured by STR), then the Individual Hotel Performance Failure shall be deemed cured and Lessee shall have no right to terminate for such Individual Hotel Performance Failure (and any notice of termination with respect thereto shall be deemed null and void). (b) If the portfolio of Hotels fail to achieve as of the end of any Fiscal Year Quarter actual NOI of at least 90% of the budgeted NOI for the Hotels for such Fiscal YearQuarter, and 95% of the Hotels’ previous years running (12) month RevPAR index (as measured by STR) for such Fiscal Year Quarter (collectively, a “Operator Performance Failure”), subject to the cure period below, Lessee may terminate this Agreement with respect to all of the Hotels under this agreement upon sixty (60) days prior written notice to Operator. The effectiveness of any such notice of termination, however, shall be stayed until completion of the following applicable cure periods. If the Operators Performance Failure occurs with respect to a Fiscal YearQuarter, but the portfolio of Hotels achieve as of the end of the immediately following three (3) months actual NOI of at least 100% of the budgeted NOI for the Hotels for such three (3) months, and 100% of the Hotels’ previous years running (3) month RevPAR index, then the Hotels Performance Failure shall be deemed cured and Lessee shall have no right to terminate for the Hotels Performance Failure (and any notice of termination with respect thereto shall be deemed null and void). (c) If an individual Hotel, after the operator has managed the Hotel for a consecutive twelve (12) month period, at any point, has a negative RevPAR change versus its competitive set, as measured by the monthly STR Report of greater than 10% for a running (12) month period (“Negative RevPAR Individual Hotel Performance Failure”), subject to the cure periods below, Lessee may terminate this Agreement with respect to the individual Hotel upon sixty (60) days prior written notice to Operator. The effectiveness of such notice of termination however, shall be stayed until completion of the following applicable cure period. If an individual Hotel’s performance, as measured by the monthly STR Report, for the following three (3) consecutive month period after notice of termination is provided, has a positive RevPAR change versus its competitive set, then the Negative RevPAR Individual Hotel Performance Failure shall be deemed cured and Lessee shall have no right to terminate for such Negative RevPAR Individual Hotel Performance Failure (and any notice of termination with respect thereto shall be deemed null and void). If however, the individual Hotel’s performance at any given period after termination has been cured, as measured by the monthly STR Report for the following twelve (12) month period, again becomes greater than negative 10% change against the individual Hotel’s competitive set as measured by the running (12) month period, Lessee may terminate this Agreement with respect to the individual Hotel upon sixty (60) days prior written notice and Operator shall no longer have the option to cure. (d) If Operator, after twelve (12) consecutive months of managing its entire portfolio of Hotels for Lessee, has greater than 33% of its portfolio failing to achieve a positive RevPAR change against its competitive set, as measured by STR Reports running (12) month period (“Operator RevPAR Performance Failure”), subject to the cure periods below, Lessee may terminate this Agreement with respect to Operator’s entire portfolio of Hotels with Lessee upon sixty (60) days prior written notice to Operator. The effectiveness of such notice of termination however, shall be stayed until the completion of the following applicable cure period. If the Hotel portfolio managed by Operator has more than 75% of the Hotels achieve a positive RevPAR change versus its competitive set as measured by the monthly STR Report performance, for the following three (3) consecutive month period after notice, then the Operator RevPAR Performance Failure shall be deemed cured and Lessee shall have no right to terminate for such RevPAR Hotels Performance Failure (and any notice of termination with respect thereto shall be deemed null and void).

Performance Failure. (a) If a Hotel fails to achieve as of the end of any Fiscal Year (i) actual NOI of at least 90% of the budgeted NOI for such Hotel for such Fiscal YearNOI, and (ii) 10090% of such Hotel’s previous years running (12) month RevPAR index (as measured by STR) for such Fiscal Year (collectively, an “Individual Hotel Performance Failure”), subject to the cure periods below, Lessee may terminate this Agreement with respect to such Hotel upon sixty (60) days prior written notice to Operator. The effectiveness of any such notice of termination, however, shall be stayed until completion of the following applicable cure periods. If an Individual the Hotel Performance Failure occurs with respect to a Fiscal Year, but the Hotel achieves as of the end of the immediately following three (3) months actual NOI of at least 100% of the budgeted NOI for such Hotel for such three (3) months, and 100% of such Hotel’s previous years running (3) month RevPAR index (as measured by STR), then the Individual Hotel Performance Failure shall be deemed cured and Lessee shall have no right to terminate for such Individual Hotel Performance Failure (and any notice of termination with respect thereto shall be deemed null and void). (b) If the portfolio of Hotels fail to achieve as of the end of any Fiscal Year actual NOI of at least 90% of the budgeted NOI for the Hotels for such Fiscal Year, and 95% of the Hotels’ previous years running (12) month RevPAR index (as measured by STR) for such Fiscal Year (collectively, a “Operator Performance Failure”), subject to the cure period below, Lessee may terminate this Agreement with respect to all of the Hotels under this agreement upon sixty (60) days prior written notice to Operator. The effectiveness of any such notice of termination, however, shall be stayed until completion of the following applicable cure periods. If the Operators Performance Failure occurs with respect to a Fiscal Year, but the portfolio of Hotels achieve as of the end of the immediately following three (3) months actual NOI of at least 100% of the budgeted NOI for the Hotels for such three (3) months, and 100% of the Hotels’ previous years running (3) month RevPAR index, then the Hotels Performance Failure shall be deemed cured and Lessee shall have no right to terminate for the Hotels Performance Failure (and any notice of termination with respect thereto shall be deemed null and void). (c) If an individual Hotel, after the operator Operator has managed the Hotel for a consecutive twelve (12) month period, at any point, has a negative RevPAR change versus its competitive set, as of the date hereof, as measured by the monthly STR Report of greater than 10% for a running (12) month period (“Negative RevPAR Individual Hotel Performance Failure”), subject to the cure periods below, Lessee may terminate this Agreement with respect to the individual Hotel upon sixty (60) days prior written notice to Operator. The effectiveness of such notice of termination however, shall be stayed until completion of the following applicable cure period. If an individual the Hotel’s performance, as measured by the monthly STR Report, for the following three (3) consecutive month period after notice of termination is provided, has a positive RevPAR change versus its competitive set, then the Negative RevPAR Individual Hotel Performance Failure shall be deemed cured and Lessee shall have no right to terminate for such Negative RevPAR Individual Hotel Performance Failure (and any notice of termination with respect thereto shall be deemed null and void). If If, however, the individual Hotel’s performance at any given period after termination has been cured, as measured by the monthly STR Report for the following twelve (12) month period, again becomes greater than negative 10% change against the individual Hotel’s competitive set as measured by the running twelve (12) month period, Lessee may terminate this Agreement with respect to the individual Hotel upon sixty (60) days prior written notice and Operator shall no longer have the option to cure. (d) If Operator, after twelve (12) consecutive months of managing its entire portfolio of Hotels for Lessee, has greater than 33% of its portfolio failing to achieve a positive RevPAR change against its competitive set, as measured by STR Reports running (12) month period (“Operator RevPAR Performance Failure”), subject to the cure periods below, Lessee may terminate this Agreement with respect to Operator’s entire portfolio of Hotels with Lessee upon sixty (60) days prior written notice to Operator. The effectiveness of such notice of termination however, shall be stayed until the completion of the following applicable cure period. If the Hotel portfolio managed by Operator has more than 75% of the Hotels achieve a positive RevPAR change versus its competitive set as measured by the monthly STR Report performance, for the following three (3) consecutive month period after notice, then the Operator RevPAR Performance Failure shall be deemed cured and Lessee shall have no right to terminate for such RevPAR Hotels Performance Failure (and any notice of termination with respect thereto shall be deemed null and void).

Performance Failure. (a) If a Hotel fails to achieve as of the end of any Fiscal Year (i) actual NOI of at least 90% of the budgeted NOI for such Hotel for such Fiscal YearNOI, and (ii) 10090% of such Hotel’s previous years running (12) month RevPAR index (as measured by STR) for such Fiscal Year (collectively, an “Individual Hotel Performance Failure”), subject to the cure periods below, Lessee may terminate this Agreement with respect to such Hotel upon sixty (60) days prior written notice to Operator. The effectiveness of any such notice of termination, however, shall be stayed until completion of the following applicable cure periods. If an Individual the Hotel Performance Failure occurs with respect to a Fiscal Year, but the Hotel achieves as of the end of the immediately following three (3) months actual NOI of at least 100% of the budgeted NOI for such Hotel for such three (3) months, and 100% of such Hotel’s previous years running (3) month RevPAR index (as measured by STR), then the Individual Hotel Performance Failure shall be deemed cured and Lessee shall have no right to terminate for such Individual Hotel Performance Failure (and any notice of termination with respect thereto shall be deemed null and void). (b) If the portfolio of Hotels fail to achieve as of the end of any Fiscal Year actual NOI of at least 90% of the budgeted NOI for the Hotels for such Fiscal Year, and 95% of the Hotels’ previous years running (12) month RevPAR index (as measured by STR) for such Fiscal Year (collectively, a “Operator Performance Failure”), subject to the cure period below, Lessee may terminate this Agreement with respect to all of the Hotels under this agreement upon sixty (60) days prior written notice to Operator. The effectiveness of any such notice of termination, however, shall be stayed until completion of the following applicable cure periods. If the Operators Performance Failure occurs with respect to a Fiscal Year, but the portfolio of Hotels achieve as of the end of the immediately following three (3) months actual NOI of at least 100% of the budgeted NOI for the Hotels for such three (3) months, and 100% of the Hotels’ previous years running (3) month RevPAR index, then the Hotels Performance Failure shall be deemed cured and Lessee shall have no right to terminate for the Hotels Performance Failure (and any notice of termination with respect thereto shall be deemed null and void). (c) If an individual Hotel, after the operator Operator has managed the Hotel for a consecutive twelve (12) month period, at any point, has a negative RevPAR change versus its competitive set, as of the date hereof, as measured by the monthly STR Report of greater than 10% for a running (12) month period (“Negative RevPAR Individual Hotel Performance Failure”), subject to the cure periods below, Lessee may terminate this Agreement with respect to the individual Hotel upon sixty (60) days prior written notice to Operator. The effectiveness of such notice of termination however, shall be stayed until completion of the following applicable cure period. If an individual the Hotel’s performance, as measured by the monthly STR Report, for the following three (3) consecutive month period after notice of termination is provided, has a positive RevPAR change versus its competitive set, then the Negative RevPAR Individual Hotel Performance Failure shall be deemed cured and Lessee shall have no right to terminate for such Negative RevPAR Individual Hotel Performance Failure (and any notice of termination with respect thereto shall be deemed null and void). If If, however, the individual Hotel’s performance at any given period after termination has been cured, as measured by the monthly STR Report for the following twelve (12) month period, again becomes greater than negative 10% change against the individual Hotel’s competitive set as measured by the running twelve (12) month period, Lessee may terminate this Agreement with respect to the individual Hotel upon sixty (60) days prior written notice and Operator shall no longer have the option to cure. (d) If Operator, after twelve (12) consecutive months of managing its entire portfolio of Hotels for Lessee, has greater than 33% of its portfolio failing to achieve a positive RevPAR change against its competitive set, as measured by STR Reports running (12) month period (“Operator RevPAR Performance Failure”), subject to the cure periods below, Lessee may terminate this Agreement with respect to Operator’s entire portfolio of Hotels with Lessee upon sixty (60) days prior written notice to Operator. The effectiveness of such notice of termination however, shall be stayed until the completion of the following applicable cure period. If the Hotel portfolio managed by Operator has more than 75% of the Hotels achieve a positive RevPAR change versus its competitive set as measured by the monthly STR Report performance, for the following three (3) consecutive month period after notice, then the Operator RevPAR Performance Failure shall be deemed cured and Lessee shall have no right to terminate for such RevPAR Hotels Performance Failure (and any notice of termination with respect thereto shall be deemed null and void).

Performance Failure. (a) If Beginning with Fiscal Year 2012, if a Hotel fails to achieve as of the end of any Fiscal Year (i) actual NOI of at least 9080% of the budgeted NOI for such Hotel for such Fiscal Year, and (ii) 10090% of such Hotel’s previous years running (12) month RevPAR index (as measured by STR) Benchmark for such Fiscal Year (collectively, an “Individual Hotel Performance Failure”), subject to the cure periods below, Lessee may terminate this Agreement with respect to such Hotel upon sixty (60) days prior written notice to Operator. The effectiveness of any such notice of termination, however, shall be stayed until completion of the following applicable cure periods. If an Individual Hotel Performance Failure occurs with respect to a Fiscal Year, but the Hotel achieves as of the end of the immediately following three (3) months (x) actual NOI of at least 10085% of the budgeted NOI for such Hotel for such three (3) months, and 100or (y) 95% of such Hotel’s previous years running RevPAR Benchmark for such three (3) month RevPAR index (as measured by STR)months, then the Individual Hotel Performance Failure shall be deemed cured and Lessee shall have no right to terminate for such Individual Hotel Performance Failure (and any notice of termination with respect thereto shall be deemed null and void). (b) If Beginning with Fiscal Year 2012, if the portfolio of Hotels fail to achieve as of the end of any Fiscal Year (i) actual NOI of at least 9080% of the budgeted NOI for the Hotels for such Fiscal Year, and 95(ii) 90% of the Hotels’ previous years running (12) month RevPAR index (as measured by STR) Benchmark for such Fiscal Year (collectively, a “Operator Hotels Performance Failure”), subject to the cure period below, Lessee may terminate this Agreement with respect to all of the Hotels under this agreement upon sixty (60) days prior written notice to Operator. The effectiveness of any such notice of termination, however, shall be stayed until completion of the following applicable cure periods. If the Operators Hotels Performance Failure occurs with respect to a Fiscal Year, but the portfolio of Hotels achieve as of the end of the immediately following three (3) months (x) actual NOI of at least 10085% of the budgeted NOI for the Hotels for such three (3) months, and 100or (y) 95% of the Hotels’ previous years running RevPAR Benchmark for such three (3) month RevPAR indexmonths, then the Hotels Performance Failure shall be deemed cured and Lessee shall have no right to terminate for the Hotels Performance Failure (and any notice of termination with respect thereto shall be deemed null and void). (c) If an individual Hotel, after the operator has managed the Hotel for a consecutive twelve (12) month period, at any point, has a negative RevPAR change versus its competitive set, as measured by the monthly STR Report of greater than 10% for a running (12) month period (“Negative RevPAR Individual Hotel Performance Failure”), subject to the cure periods below, Lessee may terminate this Agreement with respect to the individual Hotel upon sixty (60) days prior written notice to Operator. The effectiveness of such notice of termination however, shall be stayed until completion of the following applicable cure period. If an individual Hotel’s performance, as measured by the monthly STR Report, for the following three (3) consecutive month period after notice of termination is provided, has a positive RevPAR change versus its competitive set, then the Negative RevPAR Individual Hotel Performance Failure shall be deemed cured and Lessee shall have no right to terminate for such Negative RevPAR Individual Hotel Performance Failure (and any notice of termination with respect thereto shall be deemed null and void). If however, the individual Hotel’s performance at any given period after termination has been cured, as measured by the monthly STR Report for the following twelve (12) month period, again becomes greater than negative 10% change against the individual Hotel’s competitive set as measured by the running (12) month period, Lessee may terminate this Agreement with respect to the individual Hotel upon sixty (60) days prior written notice and Operator shall no longer have the option to cure. (d) If Operator, after twelve (12) consecutive months of managing its entire portfolio of Hotels for Lessee, has greater than 33% of its portfolio failing to achieve a positive RevPAR change against its competitive set, as measured by STR Reports running (12) month period (“Operator RevPAR Performance Failure”), subject to the cure periods below, Lessee may terminate this Agreement with respect to Operator’s entire portfolio of Hotels with Lessee upon sixty (60) days prior written notice to Operator. The effectiveness of such notice of termination however, shall be stayed until the completion of the following applicable cure period. If the Hotel portfolio managed by Operator has more than 75% of the Hotels achieve a positive RevPAR change versus its competitive set as measured by the monthly STR Report performance, for the following three (3) consecutive month period after notice, then the Operator RevPAR Performance Failure shall be deemed cured and Lessee shall have no right to terminate for such RevPAR Hotels Performance Failure (and any notice of termination with respect thereto shall be deemed null and void).

Performance Failure. (a) If a Hotel fails to achieve as of the end of any Fiscal Year (i) actual NOI of at least 90% of the budgeted NOI for such Hotel for such Fiscal YearIf, and (ii) 100% of such Hotel’s previous years running (12) month RevPAR index (as measured by STR) for such Fiscal Year (collectively, an “Individual Hotel Performance Failure”), subject to the cure periods below, Lessee may terminate this Agreement with respect to such Hotel upon sixty (60) days prior written notice to Operator. The effectiveness of any such notice of termination, however, shall be stayed until completion of the following applicable cure periods. If an Individual Hotel Performance Failure occurs with respect to a Fiscal Year, but the Hotel achieves as of the end of the immediately following three (3) months actual NOI consecutive Lease Years during the Term commencing on or after January 1, 1998, Lessee shall fail to realize from the operation of the Hotel an amount equal to at least 100% eighty percent (80%) of Room Revenues as set forth in the Revenue Budget for such Lease Year, such failure shall constitute a "REVENUE PERFORMANCE SHORTFALL" under this Lease, except to the extent such failure is caused by an Unavoidable Occurrence. In determining whether Lease Years are consecutive for such purpose, Excluded Lease Years will be ignored. The existence of a Revenue Performance Shortfall for any Lease Year shall be determined by Lessor on the basis of the first Officer's Certificate delivered by Lessee to Lessor in the subsequent Lease Year pursuant to the requirements of Subsection 3.1(c) and shall be subject to confirmation pursuant to Section 3.2. Notwithstanding the foregoing, no Lease Year that would otherwise be included in the period of a Revenue Performance Shortfall shall be so included if Lessor and the Other Lessors receive Rent payments from Lessee and the other Lessees under this Lease and the Other Leases which, in the aggregate, amount equal to at least ninety percent (90%) (the "OVERALL SHORTFALL CURE PERCENTAGE") of the aggregate Rent budgeted NOI for such Lease Year in the Revenue Budgets for the Hotel and the Other Hotels leased under the Other Leases (each such Lease Year, an "EXCLUDED LEASE YEAR"). Lessee may rely on the foregoing for such a total of three (3) monthsExcluded Lease Years and, and thereafter, the Overall Shortfall Cure Percentage shall increase to one hundred percent (100% of such Hotel’s previous years running (3) month RevPAR index (as measured by STR), then the Individual Hotel Performance Failure shall be deemed cured and Lessee shall have no right to terminate for such Individual Hotel Performance Failure (and any notice of termination with respect thereto shall be deemed null and void%). (b) If Upon the portfolio occurrence of Hotels fail a Revenue Performance Shortfall, Lessor shall have the right, subject to achieve subsection (c) of this Section 2.4, at Lessor's option, to terminate this Lease upon thirty (30) days' notice (the "NOTICE PERIOD") to Lessee, in which event Lessee shall immediately surrender the Leased Property to Lessor, and, if Lessee fails to so surrender, Lessor shall have the right, without notice, to enter upon and take possession of the Leased Property and to expel or remove Lessee and its effects without being liable for prosecution or any claim for damages therefor; and Lessee shall, and hereby agrees to, pay (or, as the case may be, indemnify) Lessor for the total amount of (i) in the event that Lessee does not promptly surrender the Leased Property, the reasonable costs of recovering the Leased Property and all other losses, liabilities and reasonable expenses incurred by Lessor in connection with Lessee's failure to surrender; (ii) the unpaid Rent earned as of the end date of termination (and for any Fiscal Year actual NOI of at least 90% period following the termination date during which Lessee retains possession and control of the budgeted NOI Leased Property), plus interest at the Overdue Rate accruing after the earlier of the due date or such termination date; and (iii) all other sums of money then owing by Lessee to Lessor. Except as provided in the Master Hotel Agreement, termination of this Lease and recovery of the Rent and other amounts as aforesaid shall constitute Lessor's sole remedy for the Hotels for such Fiscal YearRevenue Performance Shortfall, and 95% of the Hotels’ previous years running (12) month RevPAR index (as measured by STR) for such Fiscal Year (collectively, a “Operator Performance Failure”), subject to the cure period below, Lessee may terminate this Agreement with respect to all of the Hotels under this agreement upon sixty (60) days prior written notice to Operator. The effectiveness of any such notice of termination, however, shall be stayed until completion of the following applicable cure periods. If the Operators Performance Failure occurs with respect to a Fiscal Year, but the portfolio of Hotels achieve as of the end of the immediately following three (3) months actual NOI of at least 100% of the budgeted NOI for the Hotels for such three (3) months, and 100% of the Hotels’ previous years running (3) month RevPAR index, then the Hotels Performance Failure shall be deemed cured and Lessee shall have no right not be liable to terminate Lessor for the Hotels Performance Failure (and any notice of termination with respect thereto shall be deemed null and void)damages arising therefrom. (c) If an individual HotelLessor's right to terminate this Lease pursuant to subsection (b) above, after the operator has managed the Hotel for a consecutive twelve (12) month periodfollowing any Lease Year, at any point, has a negative RevPAR change versus its competitive set, as measured by the monthly STR Report of greater than 10% for a running (12) month period (“Negative RevPAR Individual Hotel Performance Failure”), shall be subject to Lessee's right to cure the cure periods below, Revenue Performance Shortfall occurring thereunder with respect to such Lease Year by making a cash payment to Lessor during the Notice Period equal to the difference between the Percentage Rent actually paid for the Lease Year and eighty percent (80%) (the "HOTEL SHORTFALL CURE PERCENTAGE") of the Percentage Rent budgeted for the Lease Year in the Revenue Budget for the Lease Year. Any payment made by Lessee may terminate under this Agreement subsection (c) shall be deemed Rent paid with respect to the individual Hotel upon sixty (60) days prior written notice to OperatorLease Year. The effectiveness of such notice of termination however, shall be stayed until completion of the following applicable cure period. If an individual Hotel’s performance, as measured by the monthly STR Report, for the following three (3) consecutive month period after notice of termination is provided, has a positive RevPAR change versus its competitive set, then the Negative RevPAR Individual Hotel Performance Failure shall be deemed cured and Lessee Lessor shall have no right obligation to terminate for such Negative RevPAR Individual repay any amount advanced by Lessee to cure a Revenue Performance Shortfall. Lessee may only cure two Revenue Performance Shortfalls, occurring under subsection (a) by paying Lessor based on a eighty percent (80%) Hotel Performance Failure (and any notice of termination with respect thereto Shortfall Cure Percentage. Thereafter, the Hotel Shortfall Cure Percentage shall be deemed null and void). If however, the individual Hotel’s performance at any given period after termination has been cured, as measured by the monthly STR Report for the following twelve ninety percent (12) month period, again becomes greater than negative 10% change against the individual Hotel’s competitive set as measured by the running (12) month period, Lessee may terminate this Agreement with respect to the individual Hotel upon sixty (60) days prior written notice and Operator shall no longer have the option to cure. (d) If Operator, after twelve (12) consecutive months of managing its entire portfolio of Hotels for Lessee, has greater than 33% of its portfolio failing to achieve a positive RevPAR change against its competitive set, as measured by STR Reports running (12) month period (“Operator RevPAR Performance Failure”), subject to the cure periods below, Lessee may terminate this Agreement with respect to Operator’s entire portfolio of Hotels with Lessee upon sixty (60) days prior written notice to Operator. The effectiveness of such notice of termination however, shall be stayed until the completion of the following applicable cure period. If the Hotel portfolio managed by Operator has more than 75% of the Hotels achieve a positive RevPAR change versus its competitive set as measured by the monthly STR Report performance, for the following three (3) consecutive month period after notice, then the Operator RevPAR Performance Failure shall be deemed cured and Lessee shall have no right to terminate for such RevPAR Hotels Performance Failure (and any notice of termination with respect thereto shall be deemed null and void90%).

Performance Failure. Lessee’s ability to terminate due to performance failure will be conditioned on the occurrence of Sections 16.02 (a) and 16.02 (b) below. (a) If a Hotel fails to achieve as of the end of any Fiscal Year (i) actual NOI of at least 90% of the budgeted NOI for such Hotel for such Fiscal YearNOI, and (ii) 10090% of such Hotel’s previous years running (12) month RevPAR index (as measured by STR) for such Fiscal Year (collectively, an “Individual Hotel Performance Failure”), subject to the cure periods below, Lessee may terminate this Agreement with respect to such Hotel upon sixty (60) days prior written notice to Operator. The effectiveness of any such notice of termination, however, shall be stayed until completion of the following applicable cure periods. If an Individual the Hotel Performance Failure occurs with respect to a Fiscal Year, but the Hotel achieves as of the end of the immediately following three (3) months actual NOI of at least 100% of the budgeted NOI for such Hotel for such three (3) months, and 100% of such Hotel’s previous years running (3) month RevPAR index (as measured by STR), then the Individual Hotel Performance Failure shall be deemed cured and Lessee shall have no right to terminate for such Individual Hotel Performance Failure (and any notice of termination with respect thereto shall be deemed null and void). (b) If the portfolio of Hotels fail to achieve as of the end of any Fiscal Year actual NOI of at least 90% of the budgeted NOI for the Hotels for such Fiscal Year, and 95% of the Hotels’ previous years running (12) month RevPAR index (as measured by STR) for such Fiscal Year (collectively, a “Operator Performance Failure”), subject to the cure period below, Lessee may terminate this Agreement with respect to all of the Hotels under this agreement upon sixty (60) days prior written notice to Operator. The effectiveness of any such notice of termination, however, shall be stayed until completion of the following applicable cure periods. If the Operators Performance Failure occurs with respect to a Fiscal Year, but the portfolio of Hotels achieve as of the end of the immediately following three (3) months actual NOI of at least 100% of the budgeted NOI for the Hotels for such three (3) months, and 100% of the Hotels’ previous years running (3) month RevPAR index, then the Hotels Performance Failure shall be deemed cured and Lessee shall have no right to terminate for the Hotels Performance Failure (and any notice of termination with respect thereto shall be deemed null and void). (c) If an individual Hotel, after the operator has managed the Hotel for a consecutive twelve (12) month period, at any point, has a negative RevPAR change versus its competitive set, as of the date here of, as measured by the monthly STR Report of greater than 10% for a running (12) month period (“Negative RevPAR Individual Hotel Performance Failure”), subject to the cure periods below, Lessee may terminate this Agreement with respect to the individual Hotel upon sixty (60) days prior written notice to Operator. The effectiveness of such notice of termination however, shall be stayed until completion of the following applicable cure period. If an individual the Hotel’s performance, as measured by the monthly STR Report, for the following three (3) consecutive month period after notice of termination is provided, has a positive RevPAR change versus its competitive set, then the Negative RevPAR Individual Hotel Performance Failure shall be deemed cured and Lessee shall have no right to terminate for such Negative RevPAR Individual Hotel Performance Failure (and any notice of termination with respect thereto shall be deemed null and void). If however, the individual Hotel’s performance at any given period after termination has been cured, as measured by the monthly STR Report for the following twelve (12) month period, again becomes greater than negative 10% change against the individual Hotel’s competitive set as measured by the running (12) month period, Lessee may terminate this Agreement with respect to the individual Hotel upon sixty (60) days prior written notice and Operator shall no longer have the option to cure. (d) If Operator, after twelve (12) consecutive months of managing its entire portfolio of Hotels for Lessee, has greater than 33% of its portfolio failing to achieve a positive RevPAR change against its competitive set, as measured by STR Reports running (12) month period (“Operator RevPAR Performance Failure”), subject to the cure periods below, Lessee may terminate this Agreement with respect to Operator’s entire portfolio of Hotels with Lessee upon sixty (60) days prior written notice to Operator. The effectiveness of such notice of termination however, shall be stayed until the completion of the following applicable cure period. If the Hotel portfolio managed by Operator has more than 75% of the Hotels achieve a positive RevPAR change versus its competitive set as measured by the monthly STR Report performance, for the following three (3) consecutive month period after notice, then the Operator RevPAR Performance Failure shall be deemed cured and Lessee shall have no right to terminate for such RevPAR Hotels Performance Failure (and any notice of termination with respect thereto shall be deemed null and void).