Performance Termination. A. Owner shall have the option to terminate this Agreement after any twelve (12) consecutive Accounting Periods (the “Performance Termination Period”) with respect to which the following occurs:
1. At any time during the first three (3) years of the Term:
a. The Operating Profit for the Performance Termination Period is less than 90% of the Performance Termination Threshold; and
b. The Revenue Index of the Hotel during the Performance Termination Period is less than 100% of the Revenue Index Threshold for such Performance Termination Period.
2. At any time following the first three (3) years of the Term:
a. The Operating Profit for the Performance Termination Period is less than the Performance Termination Threshold; or
b. The Revenue Index of the Hotel during the Performance Termination Period is less than the Revenue Index Threshold for such Performance Termination Period. Owner shall exercise such option to terminate by serving written notice thereof on Manager no later than sixty (60) days after Owner’s receipt of the last Accounting Period Statement for Performance Termination Period, and this Agreement shall terminate as of the end of the second (2nd) full Accounting Period following the date on which Manager receives the above-described notice from Owner. Notwithstanding anything contained herein to the contrary, Manager at its option may elect to void such Termination by so notifying Owner within such sixty (60) day period; provided, however, that the amount that was necessary to have achieved the Performance Termination Threshold or Revenue Index Threshold, as applicable (the “Deficit Amount”) shall be made up to Owner by either (i) Manager’s paying the Deficit Amount to Owner within ten (10) days after such 60-day period (the “Cure Payment”) or (ii) offsetting the Deficit Amount against the Base Management Fees, the Incentive Management Fees and/or other amounts or reimbursements payable to Manager under this Agreement, as Owner may direct.
B. Owner’s failure to exercise its right to terminate this Agreement pursuant to this Section 2.02 shall not be deemed an estoppel or waiver of Owner’s right to terminate this Agreement with respect to any subsequent event or circumstance that could give Owner the right to terminate hereunder.
Performance Termination. A. Subject to the provisions of Section 4.03 B below, Owner shall have the option to terminate this Agreement if:
1. With respect to each of any two (2) consecutive Fiscal Years during the Term commencing with Fiscal Year 2000, Operating Profit is less than eight percent (8%) of the Owner's Investment (the "Threshold Amount"); and
2. The fact that the Retirement Community is not meeting the test set forth in Section 4.03A1 is not the result of either: (i) a Force Majeure; or (ii) any major renovation of the Retirement Community.
B. Such option to terminate shall be exercised by serving written notice thereof on Operator no later than sixty (60) Days after the receipt by Owner of the Annual Financial Report for the second (2nd) of the two (2) Fiscal Years referred to in Section 4.03A1. If Operator does -------------------------------------------------------------------------------- OPERATING AGREEMENT PAGE 25 not elect to avoid such Termination pursuant to Section 4.03B below, this Agreement shall terminate as of the end of the fourth (4th) full Accounting Period following the date on which Operator receives Owner's written notice of its intent to terminate this Agreement; provided that such period of time shall be extended as required by applicable Legal Requirements pertaining to the termination of the employment of the employees at the Retirement Community. Owner's failure to exercise its right to terminate this Agreement pursuant to Section 4.03A with respect to any given Fiscal Year shall not be deemed an estoppel or waiver of Owner's right to terminate this Agreement with respect to subsequent Fiscal Years to which this Section 4.03A may apply.
1. Upon receipt of a written notice of Termination sent by Owner to Operator pursuant to Section 4.03B, Operator shall have the option, to be exercised by written notice (the "Cure Notice") to Owner within sixty (60) Days after receipt of said Termination notice from Owner, to avoid such Termination by electing either (i) to pay to Owner an amount equal to the difference between the Threshold Amount for the two consecutive Fiscal Years that gave rise to the Cure Notice and the Operating Profit for the same two consecutive Fiscal Years (the "Shortfall Payment"), or (ii) to reduce the Base Fee payable to Operator pursuant to Section 5.01B during the two (2) full Fiscal Years immediately following the two (2) Fiscal Years referred to in Section 4.03A1 from five percent (5%) of Gross Revenues to two percent (2%) of...
Performance Termination. Commencing with the expiration of Fiscal Year 2014, in the event that Adjusted NOI does not equal or exceed the Performance Threshold, then the Tenant shall have the option to terminate this Agreement by providing a ninety (90) day written notice to the Management Company. To terminate this Agreement, Tenant must deliver written notice of such election to Management Company no later than sixty (60) days following Tenant’s receipt of the annual financial reports for such Fiscal Year.
Performance Termination. A. Owner shall have the option to terminate this Agreement following any Performance Termination Period with respect to which the following occurs:
1. The Operating Profit for the Performance Termination Period is less than the Performance Termination Threshold; or
2. The Revenue Index of the Hotel during the Performance Termination Period is less than the Revenue Index Threshold for such Performance Termination Period. Owner shall exercise such option to terminate by serving written notice thereof on Manager no later than sixty (60) days after Owner’s receipt of the last Accounting Period Statement for Performance Termination Period, and this Agreement shall terminate as of the end of the second (2nd) full Accounting Period following the date on which Manager receives the above-described notice from Owner. Notwithstanding anything contained herein to the contrary, Manager at its option may elect to void such Termination by so notifying Owner within such sixty (60) day period; provided, however, that the amount that was necessary to have achieved the Performance Termination Threshold or Revenue Index Threshold, as applicable (the “Deficit Amount”) shall be made up to Owner by either (i) Manager’s paying the Deficit Amount to Owner within ten (10) days after such 60-day period (the “Cure Payment”) or (ii) offsetting the Deficit Amount against the Base Management Fees, the Incentive Management Fees and/or other amounts or reimbursements payable to Manager under this Agreement, as Owner may direct.
B. Owner’s failure to exercise its right to terminate this Agreement pursuant to this Section 2.02 shall not be deemed an estoppel or waiver of Owner’s right to terminate this Agreement with respect to any subsequent event or circumstance that could give Owner the right to terminate hereunder.
Performance Termination. (a) Beginning with the Fiscal Year starting January 1, 2003, and so long as Owner is not in default of its obligations under this Agreement, including without limitation, funding of all necessary Capital Replacements under Article 6 of this Agreement, Owner may terminate this Agreement without payment of the Termination Fee described in Section 8.03 upon ninety (90) days prior written notice to Manager (such notice to be sent to Manager within thirty (30) days of Owner’s receipt of the final operating statement for such Fiscal Year) if, following the end of any Fiscal Year, the Hotel’s actual Gross Operating Profit for such Fiscal Year is less than ninety percent (90%) of budgeted Gross Operating Profit as determined pursuant to the Yearly Budget for such Fiscal Year (the “Performance Test”).
(b) Notwithstanding subsection (a) above, Owner shall not be entitled to exercise such termination right if, within sixty (60) days following Manager’s receipt of Owner’s written notice of termination, Manager cures such failure by paying into the Bank Account the shortfall between the Hotel’s actual Gross Operating Profit and budgeted Gross Operating Profit (as determined pursuant to the Yearly Budget) for such Fiscal Year. Thereafter, such Fiscal Year shall not count toward any future Performance Test measure. However, in no event shall Manager have the right to cure a failure of the Performance Test for more than one (1) period of two (2) consecutive Fiscal Years.
(c) Notwithstanding subsection (a) above, Owner and Manager agree that the Performance Test shall be waived in any Fiscal Year that (i) force majeure resulted in a failure of the Performance Test, or (ii) a major renovation to the Hotel costing at least $2,000,000.00 resulted in a failure of the Performance Test.
Performance Termination. 6 ARTICLE III
Performance Termination. Actions to be Taken on Termination................................ 4.04 Pre-Closing Termination...........................................
Performance Termination. (1). If Executive’s employment is terminated because of a Performance Termination, Executive will receive the following:
(a) Payment of any unpaid Base Salary through the Date of Termination;
(b) Payment for any vacation time accrued and unused as of the Date of Termination, pursuant to Company policy;
Performance Termination. A. Subject to the provisions of Section 2.02.B and Section 2.02.C. below, Owner shall have the option to terminate this Agreement and Owner or an operator approved by Marriott in its sole discretion shall enter into a Residence Inn by Marriott franchise agreement in the form as shall have been published by Manager or its Affiliate in its then-current Uniform Franchise Offering Circular (the "Franchise Agreement") if, with respect to any two (2) consecutive Fiscal Years (not including any portion of any Fiscal Year prior to the expiration of the fifth (5th) full Fiscal Year after the Effective Date):
1. Operating Profit for each such Fiscal Year is less than the Performance Termination Threshold for such Fiscal Year; provided that, for purposes of this Section 2.02.A.1. only, Operating Profit shall be computed without deducting any Impositions. Notwithstanding the foregoing, real estate and personal property taxes in an amount not to exceed the amount of such taxes paid during the second (2nd) Fiscal Year following the Effective Date shall be deducted in computing Operating Profit for purposes of this Section 2.02.
Performance Termination. The Board may terminate Executive’s employment with the Company for Executive’s failure to adequately perform his job duties. For the purposes of this Agreement, a “Performance Termination” is a termination of Executive’s employment by the Company for failure to perform at an acceptable level, after the following prerequisites are satisfied: (i) Executive is presented with a written performance review that describes in detail the specific areas that require improvement and the specific actions that are to be taken by Executive to improve in the specified areas; (ii) Executive is allowed a period of 180 days in which to improve his performance, but has failed to do so; and, (iii) Executive’s termination is approved by a 75 percent vote of the Board.
