Common use of Performance Failure Clause in Contracts

Performance Failure. (a) If, with respect to any three (3) 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 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 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 a total of three (3) Excluded Lease Years and, thereafter, the Overall Shortfall Cure Percentage shall increase to one hundred percent (100%). (b) Upon the occurrence of a Revenue Performance Shortfall, Lessor shall have the right, subject to 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 date of termination (and for any period following the termination date during which Lessee retains possession and control of the 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 Revenue Performance Shortfall, and Lessee shall not be liable to Lessor for damages arising therefrom. (c) Lessor's right to terminate this Lease pursuant to subsection (b) above, following any Lease Year, shall be subject to Lessee's right to cure the 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 under this subsection (c) shall be deemed Rent paid with respect to the Lease Year. Lessor shall have no obligation to 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 Shortfall Cure Percentage. Thereafter, the Hotel Shortfall Cure Percentage shall be ninety percent (90%).

Performance Failure. (a) If, with respect to any three (3) 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 eighty percent (80%) of Room Revenues as set forth in the Revenue Budget for such Lease Year, such failure shall constitute a "REVENUE PERFORMANCE SHORTFALLRevenue 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 Section 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 PERCENTAGEOverall Shortfall Cure Percentage") of the aggregate Rent budgeted 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 YEARExcluded Lease Year"). Lessee may rely on the foregoing for a total of three (3) Excluded Lease Years and, thereafter, the Overall Shortfall Cure Percentage shall increase to one hundred percent (100%). (b) Upon the occurrence of a Revenue Performance Shortfall, Lessor shall have the right, subject to subsection (c) of this Section 2.43.6, at Lessor's option, to terminate this Lease upon thirty (30) days' notice (the "NOTICE PERIODNotice 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 date of termination (and for any period following the termination date during which Lessee retains possession and control of the 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 Revenue Performance Shortfall, and Lessee shall not be liable to Lessor for damages arising therefrom. (c) Lessor's right to terminate this Lease pursuant to subsection (b) above, following any Lease Year, shall be subject to Lessee's right to cure the 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 under this subsection (c) shall be deemed Rent paid with respect to the Lease Year. Lessor shall have no obligation to 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 Shortfall Cure Percentage. Thereafter, the Hotel Shortfall Cure Percentage shall be ninety percent (90%).") of the