Common use of Performance Test Clause in Contracts

Performance Test. Lessee shall have the right to terminate this Agreement with respect to any Hotel (for the purposes of this Section 2.03(b)(i) called “Subject Hotel”), subject to the payment of a termination fee as set forth in subsection (ii) below, in the event of the occurrence of the following (collectively herein called, the “Performance Test”): (1) If for any Fiscal Year (a) a Subject Hotel’s Gross Operating Profit Margin for such Fiscal Year is less than seventy-five percent (75%) of the average Gross Operating Profit Margin of comparable hotels in similar markets and geographic locations to the applicable Hotel as reasonably determined by Lessee and Manager, and (b) such Subject Hotel’s REVPAR Yield Penetration is less than the Targeted REVPAR Yield Penetration for such Fiscal Year (herein (a) and (b) collectively called “Performance Failure”); then (2) Manager shall have a period of two (2) years, commencing with the next ensuing Fiscal Year (the “Performance Cure Period”), to cure the Performance Failure after Manager’s receipt of Notice from Lessee of such Performance Failure and Lessee’s intent to terminate this Agreement with respect to the Subject Hotel if the Performance Failure is not cured within such Performance Cure Period; and (3) If after the first full Fiscal Year during the Performance Cure Period, the Performance Failure remains uncured, then upon written Notice to Manager by Lessee, Manager shall engage a consultant reasonably acceptable to Manager and Lessee (with significant experience in the hotel lodging industry) to make a written determination (within forty-five (45) days of such Notice) as to whether another management company (with comparable breadth of knowledge and experience as any of the hotel management companies owned and/or controlled by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇. and/or ▇▇▇▇▇ ▇▇▇▇▇▇▇, including with respect to number and type of hotels managed in similar markets and geographical areas) could manage the Subject Hotel in a materially more efficient manner. If such consultant determination is in the negative, then Manager will be deemed not to be in default under the Performance Test. If such consultant determination is in the affirmative, then Manager agrees to engage such consultant (such cost and expense to be shared by Lessee and Manager equally) to assist Manager during the second Fiscal Year of the Performance Cure Period with the cure of the Performance Failure; and (4) If after the end of the Performance Cure Period, the Performance Failure remains uncured and the consultant again makes a written determination that another management company (with comparable breadth of knowledge and experience as any of the hotel management companies owned and/or controlled by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇. and/or ▇▇▇▇▇ ▇▇▇▇▇▇▇, including with respect to number and type of hotels managed in similar markets and geographical areas) could manage the Subject Hotel in a materially more efficient manner, then Lessee may, at its election, terminate this Agreement upon forty-five (45) days’ prior Notice to Manager.

Performance Test. Lessee shall have the right to terminate this Agreement with respect to any Initial Hotel after the initial 10-year term of this Agreement applicable to such Initial Hotel and any Future Hotel (for the purposes of this Section 2.03(b)(i2.3(b)(i) called “Subject Hotel”), subject to the payment of a termination fee as set forth in subsection (ii) below, in the event of the occurrence of the following (collectively herein called, the “Performance Test”): (1) If If, commencing with the first Fiscal Year after the initial 10-year term for an Initial Hotel and commencing with the first full Fiscal Year following the Commencement Date for any Future Hotel, and for each Fiscal Year thereafter (a) a Subject Hotel’s Gross Operating Profit Margin for such Fiscal Year is less than seventy-five percent (75%) of the average Gross Operating Profit Margin of comparable hotels in similar markets and geographic locations to the applicable subject Hotel as reasonably determined by Lessee and Manager, and (b) such Subject Hotel’s REVPAR Revpar Yield Penetration is less than the Targeted REVPAR Yield Penetration 80% for such Fiscal Year (herein (a) and (b) collectively called “Performance Failure”); then (2) Manager shall have a period of two (2) years, commencing with the next ensuing Fiscal Year (the “Performance Cure Period”), to cure the Performance Failure after Manager’s receipt of Notice from Lessee of such Performance Failure and Lessee’s intent to terminate this Agreement with respect to the Subject Hotel if the Performance Failure is not cured within such Performance Cure Period; and (3) If after the first full Fiscal Year during the Performance Cure Period, the Performance Failure remains uncured, then upon written Notice to Manager by Lessee, Manager shall engage a consultant reasonably acceptable to Manager and Lessee (with significant experience in the hotel lodging industry) to make a written determination (within forty-five (45) days of such Notice) as to whether another management company (with comparable breadth of knowledge and experience as any of the hotel management companies owned and/or controlled by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇. and/or ▇▇▇▇▇ ▇▇▇▇▇▇▇, including with respect to number and type of hotels managed in similar markets and geographical areas) could manage the Subject Hotel in a materially more efficient manner. If such consultant determination is in the negative, then Manager will be deemed not to be in default under the Performance Test. If such consultant determination is in the affirmative, then Manager agrees to engage such consultant (such cost and expense to be shared by Lessee and Manager equally) to assist Manager during the second Fiscal Year of the Performance Cure Period with the cure of the Performance Failure; and (4) If after the end of the Performance Cure Period, the Performance Failure remains uncured and the consultant again makes a written determination that another management company (with comparable breadth of knowledge and experience as any of the hotel management companies owned and/or controlled by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇. and/or ▇▇▇▇▇ ▇▇▇▇▇▇▇, including with respect to number and type of hotels managed in similar markets and geographical areas) could manage the Subject Hotel in a materially more efficient manneruncured, then Lessee may, at its election, terminate this Agreement upon forty-five (45) days’ prior Notice to Manager.

Performance Test. Lessee shall have the right to terminate this Agreement with respect to any Hotel (for after the purposes base 10 year term of this Section 2.03(b)(i) called “Subject Agreement applicable to such Hotel”), subject to the payment of a termination fee as set forth in subsection (ii) below, in the event of the occurrence of the following with respect to the Hotel (collectively herein called, the “Performance Test”): (1) If for any Fiscal Year (a) a Subject the Hotel’s Gross Operating Profit Margin for such Fiscal Year is less than seventy-five percent (75%) of the average Gross Operating Profit Margin of comparable hotels in similar markets and geographic locations to the applicable Hotel as reasonably determined by Lessee ▇▇▇▇▇▇ and Manager, and (b) such Subject Hotel’s REVPAR Yield Penetration is less than the Targeted REVPAR Yield Penetration for such Fiscal Year (herein (a) and (b) collectively called “Performance Failure”); then (2) Manager shall have a period of two (2) years, commencing with the next ensuing Fiscal Year (the “Performance Cure Period”), to cure the Performance Failure after Manager’s receipt of Notice from Lessee of such Performance Failure and Lessee’s intent to terminate this Agreement with respect to the Subject Hotel if the Performance Failure is not cured within such Performance Cure Period; and (3) If after the first full Fiscal Year during the Performance Cure Period, the Performance Failure remains uncured, then upon written Notice to Manager by Lessee▇▇▇▇▇▇, Manager shall engage a consultant reasonably acceptable to Manager and Lessee (with significant experience in the hotel lodging industry) to make a written determination (within forty-five (45) days of such Notice) as to whether another management company (with comparable breadth of knowledge and experience as any of the hotel management companies owned and/or controlled by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇. and/or ▇▇▇▇▇ ▇▇▇▇▇▇▇Manager, including with respect to number and type of hotels managed in similar markets and geographical areas) could manage the Subject Hotel in a materially more efficient manner. If such consultant determination is in the negative, then Manager will be deemed not to be in default under the Performance Test. If such consultant determination is in the affirmative, then Manager agrees to engage such consultant (such cost and expense to be shared by Lessee ▇▇▇▇▇▇ and Manager equally) to assist Manager during the second Fiscal Year of the Performance Cure Period with the cure of the Performance Failure; and (4) If after the end of the Performance Cure Period, the Performance Failure remains uncured and the consultant again makes a written determination that another management company (with comparable breadth of knowledge and experience as any of the hotel management companies owned and/or controlled by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇. and/or ▇▇▇▇▇ ▇▇▇▇▇▇▇Manager, including with respect to number and type of hotels managed in similar markets and geographical areas) could manage the Subject Hotel in a materially more efficient manner, then Lessee may, at its election, terminate this Agreement upon forty-five (45) days’ prior Notice to Manager.

Performance Test. Lessee shall have the right to terminate this Agreement with respect to any Hotel after the base 10-year term of this Agreement applicable to such Hotel (for the purposes of this Section 2.03(b)(i) called “Subject Hotel”), subject to the payment of a termination fee as set forth in subsection (ii) below, in the event of the occurrence of the following (collectively herein called, the “Performance Test”): (1) If for any If, commencing with Fiscal Year 2007, and for each Fiscal Year thereafter (a) a Subject Hotel’s Gross Operating Profit Margin for such Fiscal Year is less than seventy-five percent (75%) of the average Gross Operating Profit Margin of comparable hotels in similar markets and geographic locations to the applicable Hotel as reasonably determined by Lessee and Manager, and (b) such Subject Hotel’s REVPAR Yield Penetration is less than the Targeted REVPAR Yield Penetration for such Fiscal Year (herein (a) and (b) collectively called “Performance Failure”); then (2) Manager shall have a period of two (2) years, commencing with the next ensuing Fiscal Year (the “Performance Cure Period”), to cure the Performance Failure after Manager’s receipt of Notice from Lessee of such Performance Failure and Lessee’s intent to terminate this Agreement with respect to the Subject Hotel if the Performance Failure is not cured within such Performance Cure Period; and (3) If after the first full Fiscal Year during the Performance Cure Period, the Performance Failure remains uncured, then upon written Notice to Manager by Lessee, Manager shall engage a consultant reasonably acceptable to Manager and Lessee (with significant experience in the hotel lodging industry) to make a written determination (within forty-five (45) days of such Notice) as to whether another management company (with comparable breadth of knowledge and experience as any of the hotel management companies owned and/or controlled by ▇A▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇. and/or ▇M▇▇▇▇ ▇▇▇▇▇▇▇, including with respect to number and type of hotels managed in similar markets and geographical areas) could Hotel Master Management Agreement Ashford TRS Corporation File No. 145765 manage the Subject Hotel in a materially more efficient manner. If such consultant determination is in the negative, then Manager will be deemed not to be in default under the Performance Test. If such consultant determination is in the affirmative, then Manager agrees to engage such consultant (such cost and expense to be shared by Lessee and Manager equally) to assist Manager during the second Fiscal Year of the Performance Cure Period with the cure of the Performance Failure; and (4) If after the end of the Performance Cure Period, the Performance Failure remains uncured and the consultant again makes a written determination that another management company (with comparable breadth of knowledge and experience as any of the hotel management companies owned and/or controlled by ▇A▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇. and/or ▇M▇▇▇▇ ▇▇▇▇▇▇▇, including with respect to number and type of hotels managed in similar markets and geographical areas) could manage the Subject Hotel in a materially more efficient manner, then Lessee may, at its election, terminate this Agreement upon forty-five (45) days’ prior Notice to Manager.

Performance Test. Lessee shall have the right to terminate this Agreement with respect to any Initial Hotel after the base 10-year term of this Agreement applicable to such Initial Hotel and any Future Hotel (for the purposes of this Section SECTION 2.03(b)(i) called “Subject Hotel”"SUBJECT HOTEL"), subject to the payment of a termination fee as set forth in subsection (ii) below, in the event of the occurrence of the following (collectively herein called, the “Performance Test”"PERFORMANCE TEST"): (1) If for any If, commencing with Fiscal Year 2004, and for each Fiscal Year thereafter (a) a Subject Hotel’s 's Gross Operating Profit Margin for such Fiscal Year is less than seventy-five percent (75%) of the average Gross Operating Profit Margin of comparable hotels in similar markets and geographic locations to the applicable Hotel as reasonably determined by Lessee and Manager, and (b) such Subject Hotel’s 's REVPAR Yield Penetration is less than the Targeted REVPAR Yield Penetration for such Fiscal Year (herein (a) and (b) collectively called “Performance Failure”"PERFORMANCE FAILURE"); then (2) Manager shall have a period of two (2) years, commencing with the next ensuing Fiscal Year (the “Performance Cure Period”"PERFORMANCE CURE PERIOD"), to cure the Performance Failure after Manager’s 's receipt of Notice from Lessee of such Performance Failure and Lessee’s 's intent to terminate this Agreement with respect to the Subject Hotel if the Performance Failure is not cured within such Performance Cure Period; andand Hotel Master Management Agreement Ashford TRS Corporation (3) If after the first full Fiscal Year during the Performance Cure Period, the Performance Failure remains uncured, then upon written Notice to Manager by Lessee, Manager shall engage a consultant reasonably acceptable to Manager and Lessee (with significant experience in the hotel lodging industry) to make a written determination (within forty-five (45) days of such Notice) as to whether another management company (with comparable breadth of knowledge and experience as any of the hotel management companies owned and/or controlled by Archie Bennett, Jr. and/or Monty Bennett, including ▇▇▇▇ ▇▇▇pect to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇. and/or ▇▇▇▇▇ ▇▇▇▇▇▇▇, including with respect to number and type pe of hotels managed in similar markets and geographical areas) could manage the Subject Hotel in a materially more efficient manner. If such consultant determination is in the negative, then Manager will be deemed not to be in default under the Performance Test. If such consultant determination is in the affirmative, then Manager agrees to engage such consultant (such cost and expense to be shared by Lessee and Manager equally) to assist Manager during the second Fiscal Year of the Performance Cure Period with the cure of the Performance Failure; and (4) If after the end of the Performance Cure Period, the Performance Failure remains uncured and the consultant again makes a written determination that another management company (with comparable breadth of knowledge and experience as any of the hotel management companies owned and/or controlled by Archie Bennett, Jr. and/or Monty Bennett, including ▇▇▇▇ ▇▇▇pect to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇. and/or ▇▇▇▇▇ ▇▇▇▇▇▇▇, including with respect to number and type pe of hotels managed in similar markets and geographical areas) could manage the Subject Hotel in a materially more efficient manner, then Lessee may, at its election, terminate this Agreement upon forty-five (45) days’ ' prior Notice to Manager.

Performance Test. Lessee shall have the right to terminate this Agreement with respect to any Hotel after the base 10-year term of this Agreement applicable to such Hotel (for the purposes of this Section 2.03(b)(i) called “Subject Hotel”), subject to the payment of a termination fee as set forth in subsection (ii) below, in the event of the occurrence of the following (collectively herein called, the “Performance Test”): (1) If for any If, commencing with Fiscal Year 2007, and for each Fiscal Year thereafter (a) a Subject Hotel’s Gross Operating Profit Margin for such Fiscal Year is less than seventy-five percent (75%) of the average Gross Operating Profit Margin of comparable hotels in similar markets and geographic locations to the applicable Hotel as reasonably determined by Lessee and Manager, and (b) such Subject Hotel’s REVPAR Yield Penetration is less than the Targeted REVPAR Yield Penetration for such Fiscal Year (herein (a) and (b) collectively called “Performance Failure”); then (2) Manager shall have a period of two (2) years, commencing with the next ensuing Fiscal Year (the “Performance Cure Period”), to cure the Performance Failure after Manager’s receipt of Notice from Lessee of such Performance Failure and Lessee’s intent to terminate this Agreement with respect to the Subject Hotel if the Performance Failure is not cured within such Performance Cure Period; and (3) If after the first full Fiscal Year during the Performance Cure Period, the Performance Failure remains uncured, then upon written Notice to Manager by Lessee, Manager shall engage a consultant reasonably acceptable to Manager and Lessee (with significant experience in the hotel lodging industry) to make a written determination (within forty-five (45) days of such Notice) as to whether another management company (with comparable breadth of knowledge and experience as any of the hotel management companies owned and/or controlled by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇. and/or ▇▇▇▇▇ ▇▇▇▇▇▇▇, including with respect to number and type of hotels managed in similar markets and geographical areas) could Hotel Master Management Agreement Ashford TRS Corporation File No. 145765 manage the Subject Hotel in a materially more efficient manner. If such consultant determination is in the negative, then Manager will be deemed not to be in default under the Performance Test. If such consultant determination is in the affirmative, then Manager agrees to engage such consultant (such cost and expense to be shared by Lessee and Manager equally) to assist Manager during the second Fiscal Year of the Performance Cure Period with the cure of the Performance Failure; and (4) If after the end of the Performance Cure Period, the Performance Failure remains uncured and the consultant again makes a written determination that another management company (with comparable breadth of knowledge and experience as any of the hotel management companies owned and/or controlled by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇. and/or ▇▇▇▇▇ ▇▇▇▇▇▇▇, including with respect to number and type of hotels managed in similar markets and geographical areas) could manage the Subject Hotel in a materially more efficient manner, then Lessee may, at its election, terminate this Agreement upon forty-five (45) days’ prior Notice to Manager.

Performance Test. Lessee shall have If, in any complete Fiscal Year during the right to terminate this Agreement Term, starting with respect to any Hotel the second (2nd) complete Fiscal Year after the Opening Date, (a) the RevPAR (as defined herein) for the purposes Hotel for such Fiscal Year (as determined by data from ▇▇▇▇▇ Travel Reports for a competitive set of this Section 2.03(b)(i) called hotels mutually agreed upon by Operator and Owner from time to time (the “Subject HotelCompetitive Set”), subject to provided that the payment parties agree that the Competitive Set as of a termination fee as the Commencement Date is set forth in subsection on Exhibit B attached hereto) shall be less than or equal to eighty-five percent (ii85%) below, of the composite average of the RevPAR for the hotels in the event of Competitive Set for such Fiscal Year, and (b) the occurrence of the following (collectively herein called, the “Performance Test”): (1) If for any Fiscal Year (a) a Subject Hotel’s Gross Operating Profit Margin (as defined herein) for such Fiscal Year is less than seventy-five or equal to ninety percent (7590%) of the average Gross Operating Profit Margin of comparable hotels set forth in similar markets and geographic locations to the applicable Hotel as reasonably determined by Lessee and Manager, and (b) such Subject Hotel’s REVPAR Yield Penetration is less than the Targeted REVPAR Yield Penetration approved Operating Budget for such Fiscal Year, then, upon payment in full of all amounts then due and owing by Owner to Operator and the performance in full of all of Owner’s obligations to Operator under this Agreement, Owner may terminate this Agreement upon at least sixty (60) days written notice given to Operator at any time after Owner’s receipt of RevPAR index data for such complete Fiscal Year (herein items (a) and (b) collectively called “Performance Failure”); then (2) Manager shall have a period of two (2) yearsabove, commencing with the next ensuing Fiscal Year (collectively, the “Performance Cure PeriodTest”). The Performance Test shall be equitably adjusted for any period in which the Hotel has been closed due to renovations or casualty and the twelve (12) months following such renovation or completion of material repairs due to such casualty. Notwithstanding the foregoing, to cure the Performance Failure after Manager’s receipt of Notice from Lessee of such Performance Failure and Lessee’s intent if Owner elects to terminate this Agreement with respect during the Initial Term pursuant to this Section 14.1, Operator may elect, by written notice given to Owner within thirty (30) days after the receipt of Owner’s termination notice, to make an advance (the “Cure Payment”) to Owner in an amount equal to the Subject Hotel if the Performance Failure is not cured within amount by which Gross Operating Profit for such Performance Cure Period; and (3) If after the first full Fiscal Year during is less than ninety percent (90%) of the Performance Cure Period, the Performance Failure remains uncured, then upon written Notice to Manager by Lessee, Manager shall engage a consultant reasonably acceptable to Manager and Lessee (with significant experience Gross Operating Profit set forth in the hotel lodging industry) Operating Budget for such Fiscal Year; provided, however Operator’s right to make a written determination Cure Payment and avoid a termination of this Agreement by Owner pursuant to this Section 14.1 shall be limited to one (1) time during the Initial Term. If Operator makes the Cure Payment within forty-five thirty (4530) days of such Notice) as to whether another management company (with comparable breadth of knowledge and experience as any of after Operator receives the hotel management companies owned and/or controlled by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇. and/or ▇▇▇▇▇ ▇▇▇▇▇▇▇, including with respect to number and type of hotels managed in similar markets and geographical areas) could manage the Subject Hotel in a materially more efficient manner. If such consultant determination is in the negativeforegoing termination notice from Owner, then Manager will be deemed not to be in default under the Performance Test. If such consultant determination is in the affirmative, then Manager agrees to engage such consultant (such cost and expense to be shared by Lessee and Manager equally) to assist Manager during the second Fiscal Year of the Performance Cure Period with the cure of the Performance Failure; and (4) If after the end of the Performance Cure Period, the Performance Failure remains uncured and the consultant again makes a written determination that another management company (with comparable breadth of knowledge and experience as any of the hotel management companies owned and/or controlled by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇. and/or ▇▇▇▇▇ ▇▇▇▇▇▇▇, including with respect to number and type of hotels managed in similar markets and geographical areas) could manage the Subject Hotel in a materially more efficient manner, then Lessee may, at its election, terminate this Agreement upon forty-five (45) days’ prior Notice shall remain in full force and effect notwithstanding Owner’s election to Manager.terminate. “

Performance Test. Lessee shall have the right to terminate this Agreement with respect to any a Hotel (for after the purposes base 10 year term of this Section 2.03(b)(i) called “Subject Agreement applicable to such Hotel”), subject to the payment of a termination fee as set forth in subsection (ii) below, in the event of the occurrence of the following with respect to the Hotel (collectively herein called, the “Performance Test”): (1) If for any Fiscal Year (a) a Subject the Hotel’s Gross Operating Profit Margin for such Fiscal Year is less than seventy-five percent (75%) of the average Gross Operating Profit Margin of comparable hotels in similar markets and geographic locations to the applicable Hotel as reasonably determined by Lessee L▇▇▇▇▇ and Manager, and (b) such Subject Hotel’s REVPAR Yield Penetration is less than the Targeted REVPAR Yield Penetration for such Fiscal Year (herein (a) and (b) collectively called “Performance Failure”); then (2) Manager shall have a period of two (2) years, commencing with the next ensuing Fiscal Year (the “Performance Cure Period”), to cure the Performance Failure after Manager’s receipt of Notice from Lessee of such Performance Failure and Lessee’s intent to terminate this Agreement with respect to the Subject Hotel if the Performance Failure is not cured within such Performance Cure Period; and (3) If after the first full Fiscal Year during the Performance Cure Period, the Performance Failure remains uncured, then upon written Notice to Manager by Lessee, Manager shall engage a consultant reasonably acceptable to Manager and Lessee (with significant experience in the hotel lodging industry) to make a written determination (within forty-five (45) days of such Notice) as to whether another management company (with comparable breadth of knowledge and experience as any of the hotel management companies owned and/or controlled by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇. and/or ▇▇▇▇▇ ▇▇▇▇▇▇▇Manager, including with respect to number and type of hotels managed in similar markets and geographical areas) could manage the Subject Hotel in a materially more efficient manner. If such consultant determination is in the negative, then Manager will be deemed not to be in default under the Performance Test. If such consultant determination is in the affirmative, then Manager agrees to engage such consultant (such cost and expense to be shared by Lessee L▇▇▇▇▇ and Manager equally) to assist Manager during the second Fiscal Year of the Performance Cure Period with the cure of the Performance Failure; and (4) If after the end of the Performance Cure Period, the Performance Failure remains uncured and the consultant again makes a written determination that another management company (with comparable breadth of knowledge and experience as any of the hotel management companies owned and/or controlled by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇. and/or ▇▇▇▇▇ ▇▇▇▇▇▇▇Manager, including with respect to number and type of hotels managed in similar markets and geographical areas) could manage the Subject Hotel in a materially more efficient manner, then Lessee may, at its election, terminate this Agreement upon forty-five (45) days’ prior Notice to Manager.

Performance Test. Lessee shall have the right to terminate this Agreement with respect to any Hotel after the base 10 year term of this Agreement applicable to such Hotel (for the purposes of this Section 2.03(b)(i) called “Subject Hotel”), subject to the payment of a termination fee as set forth in subsection (ii) below, in the event of the occurrence of the following (collectively herein called, the “Performance Test”): (1) If for any Fiscal Year (a) a Subject Hotel’s Gross Operating Profit Margin for such Fiscal Year is less than seventy-five percent (75%) of the average Gross Operating Profit Margin of comparable hotels in similar markets and geographic locations to the applicable Hotel as reasonably determined by Lessee and Manager, and (b) such Subject Hotel’s REVPAR Yield Penetration is less than the Targeted REVPAR Yield Penetration for such Fiscal Year (herein (a) and (b) collectively called “Performance Failure”); then (2) Manager shall have a period of two (2) years, commencing with the next ensuing Fiscal Year (the “Performance Cure Period”), to cure the Performance Failure after Manager’s receipt of Notice from Lessee of such Performance Failure and Lessee’s intent to terminate this Agreement with respect to the Subject Hotel if the Performance Failure is not cured within such Performance Cure Period; and (3) If after the first full Fiscal Year during the Performance Cure Period, the Performance Failure remains uncured, then upon written Notice to Manager by Lessee, Manager shall engage a consultant reasonably acceptable to Manager and Lessee (with significant experience in the hotel lodging industry) to make a written determination (within forty-five (45) days of such Notice) as to whether another management company (with comparable breadth of knowledge and experience as any of the hotel management companies owned and/or controlled by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇. and/or ▇▇▇▇▇ ▇▇▇▇▇▇▇, including with respect to number and type of hotels managed in similar markets and geographical areas) could manage the Subject Hotel in a materially more efficient manner. If such consultant determination is in the negative, then Manager will be deemed not to be in default under the Performance Test. If such consultant determination is in the affirmative, then Manager agrees to engage such consultant (such cost and expense to be shared by Lessee and Manager equally) to assist Manager during the second Fiscal Year of the Performance Cure Period with the cure of the Performance Failure; and (4) If after the end of the Performance Cure Period, the Performance Failure remains uncured and the consultant again makes a written determination that another management company (with comparable breadth of knowledge and experience as any of the hotel management companies owned and/or controlled by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇. and/or ▇▇▇▇▇ ▇▇▇▇▇▇▇, including with respect to number and type of hotels managed in similar markets and geographical areas) could manage the Subject Hotel in a materially more efficient manner, then Lessee may, at its election, terminate this Agreement upon forty-five (45) days’ prior Notice to Manager.