Common use of Performance-Based Termination Clause in Contracts

Performance-Based Termination. With respect to the Fiscal Year ending December 31, 2004 (“FY04”), in the event EBITDA of any Hotel for FY04 is less than ninety-five percent (95%) of such Hotel’s EBITDA for the twelve months ended January 31, 2004, Lessee may terminate this Agreement with respect to such Hotel, upon at least ninety (90) days prior notice. With respect to each Fiscal Year ending after December 31, 2004, in the event that as of the end of any Fiscal Year EBITDA of any Hotel is less than ninety percent (90%) of the EBITDA thereof as specified in the Three Year Plan for such Fiscal Year, Lessee may terminate this Agreement with respect to such Hotel, upon at least ninety (90) days prior notice. In the event Lessee and Manager have not mutually agreed on terms of the Three Year Plan for any period commencing on or after January 1, 2008, the target EBITDA for such period to be used in determining whether they condition set forth above has been satisfied shall be deemed to equal the amount therefor set forth in the Model. Notwithstanding the date specified for termination in any such termination notice, Lessee may delay the date of such termination with respect to any Terminated Hotel for a period of up to one year from the date of delivery of such notice in order to transition the management services. In the event Lessee desires to so delay termination, Lessee shall provide notice thereof to Manager prior to the date that is thirty (30) days prior to the date specified for termination in Lessee’s termination notice. Thereafter, Lessee may terminate this Agreement with respect to such Terminated Hotel on thirty (30) days prior notice to Manager. In no event shall Lessee be liable for the payment of any Early Termination Fee with respect to any termination pursuant to this Section 12.2(b).