EXHIBIT 10.1
ADVISORY AGREEMENT
BETWEEN
APPLE HOSPITALITY TWO, INC.
AND
APPLE SUITES ADVISORS, INC.
ADVISORY AGREEMENT
THIS ADVISORY AGREEMENT, dated as of ________________, 2001, is between
APPLE HOSPITALITY TWO, INC., a Virginia corporation (the "Company"), and APPLE
SUITES ADVISORS, INC., a Virginia corporation (the "Advisor").
RECITALS
The purpose of the Company is to invest primarily in upper-end,
extended-stay hotel properties in selected metropolitan areas of the United
States and, to a lesser extent, in certain other permitted investments described
in the Prospectus (as hereinafter defined). The Company intends to qualify as a
real estate investment trust pursuant to Sections 856 through 860 of the
Internal Revenue Code of 1986, as amended.
The Company desires to engage the Advisor to provide information,
advice, assistance and facilities to the Company and to have the Advisor
undertake the duties and responsibilities hereinafter set forth, all subject to
the supervision of the Company's Board of Directors, on the terms and conditions
set forth herein. In consideration therefor, the Company desires to pay the
Advisor certain fees as herein set forth.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements contained herein, the parties agree as follows:
DEFINITIONS. For purposes of this Agreement, the following terms shall have the
meanings set forth below.
"Affiliate" means (i) any Person directly or indirectly controlling, controlled
by or under common control with another Person, (ii) any Person owning or
controlling 10% or more of the outstanding voting securities or beneficial
interests of such other Person, (iii) any officer, director, trustee or general
partner of such Person and (iv) if such other Person is an officer, director,
trustee or partner of another entity, then the entity for which that Person acts
in any such capacity. "Affiliated" means being an Affiliate of a specified
Person.
"Articles of Incorporation" means the Company's Articles of Incorporation filed
with the Virginia State Corporation Commission, including all amendments,
restatements or modifications thereof.
"Asset Management Fee" means the fee payable to the Advisor for its services
hereunder. Such fee will be paid pursuant and subject to Section 11 of this
Agreement.
"Average Invested Assets" for any period means the average of the aggregate book
value of the assets of the Company invested, directly or indirectly, in equity
interests in and loans secured by real estate, before reserves for depreciation
or bad debts or other similar non-cash reserves, computed by taking the average
of such values at the end of each month during such period.
"Board of Directors" means the Company's Board of Directors as of any particular
time.
"Bylaws" means the Company's Bylaws, including all amendments, restatements or
modifications thereof.
"Calendar Year" means the year ended December 31st and any portion thereof
treated by the Internal Revenue Service as a reporting period for the Company.
"Code" means the Internal Revenue Code of 1986, as amended from time to time,
including successor statutes thereto.
"Company Net Income" for any period means the total revenues of the Company for
such period, less expenses applicable to such period other than additions to
reserves for depreciation or bad debts or other similar non-cash reserves.
"Company Net Income," for purposes of calculating Operating Expenses in Section
15 of this Agreement, does not include the gain from the sale of the Company's
assets.
"Directors" means, as of any particular time, the directors of the Company
holding office at such time.
"Independent Director" means a Director of the Company who is not Affiliated,
directly or indirectly, with the Advisor, whether by ownership of, ownership
interest in, employment by, any material business or professional relationship
with, or serving as an officer or director of, the
Advisor, or an Affiliated business entity of the Advisor (other than as an
Independent Director of up to three other real estate investment trusts advised
by the Advisor or an Affiliate of the Advisor). An Independent Director may
perform no other services for the Company, except as a Director. Notwithstanding
anything to the contrary herein, any member of a law firm whose only material
business or professional relationship with the Company, the Advisor and their
Affiliates is as legal counsel to any of such entities shall constitute an
Independent Director (unless such person serves as a director for more than
three real estate investment trusts organized by the Advisor and its
Affiliates). An "indirect" affiliation shall be deemed to refer to circumstances
in which a member of the "immediate family" of a Director is Affiliated with the
Advisor, and a person's "immediate family" shall mean such person's spouse,
parents, children, siblings, mother and father-in-law, sons and daughters-in-law
and brothers and sisters-in-law.
"Modified Net Income" means net income (computed in accordance with generally
accepted accounting principles) excluding gains (or losses) from debt
restructuring and sales of property, plus depreciation of real property, and
after adjustments for significant non-recurring items and unconsolidated
partnerships and joint ventures. Adjustments for unconsolidated partnerships and
joint ventures will be calculated to reflect funds from operation on the same
basis.
"Offering" means the public offering of the Company's Common Shares.
"Operating Expenses" means all operating, general and administrative expenses of
the Company as determined under generally accepted accounting principles
(including regular compensation payable to the Advisor), excluding, however, the
following:
expenses of raising capital;
interest payments;
taxes;
non-cash expenditures, such as depreciation, amortization and bad debt reserves;
incentive fees paid to the Advisor, if any; and
costs related directly to asset acquisition, operation and disposition.
"Organizational and Offering Expenses" means all expenses incurred in connection
with the formation and registration of the Company and in qualifying and
marketing the Shares under applicable federal and state law, and any other
expenses actually incurred and directly related to the qualification,
registration, offer and sale of the Shares, including such expenses as (i) all
marketing expenses and payments made to broker-dealers as compensation or
reimbursement for all costs of reviewing the Offering, including due diligence
investigations and fees and expenses of their attorneys, accountants and other
experts; (ii) registration fees, filing fees and taxes; (iii) the costs of
printing, amending, supplementing and distributing the registration statement
and Prospectus; (iv) the costs of obtaining regulatory clearances of, and
printing and distributing, sales materials used in connection with the offer and
sale of the Shares; (v) the costs related to investor and broker-dealer sales
meetings concerning the Offering; and (vi) accounting and legal fees incurred in
connection with any of the foregoing.
"Person" includes an individual, corporation, partnership, joint venture,
association, company, trust, bank or other entity, or government and any agency
and political subdivision of a government.
"Property" or "Properties" means partial or entire equity interests, including
equity participation interests such as general partnership interests and joint
venture interests, owned by the Company in real property as described in the
Prospectus.
"Prospectus" has the meaning given to that term by Section 2(10) of the
Securities Act of 1933, as amended, and as used herein, the term means the
Prospectus of the Company pursuant to which the Shares are offered to the
public.
"Return Ratio" means, for any period, the ratio of [Funds from Operation] to
Total Contributions.
"Shares" or "Common Shares" means the Common Shares of the Company, no par
value.
"Shareholders" means the holders of record of the Company's Common Shares.
"Total Contributions" means the gross offering proceeds which have been received
by the Company from time to time from the sale or sales of the Shares. Total
Contributions shall be calculated to reflect the average of the daily amounts
during the period in question of the gross offering proceeds which have been
received by the Company from time to time from the sales of Shares, to extent
such Shares are issued and such sales have actually been closed.
Duties of the Advisor. Subject to the terms of the Articles of Incorporation,
the Bylaws, and the supervision of the Board of Directors, the Advisor, at its
own cost and expense, unless otherwise set forth herein, on behalf of the
Company, shall:
serve as the Company's investment advisor and consultant in connection with
policy and investment decisions to be made by the Board of Directors, furnish
reports to the Board of Directors, and provide research, economic and
statistical data in connection with the acquisition, financing, refinancing,
holding, leasing and disposition of Properties and other investments of the
Company;
administer the day-to-day operations of the Company and perform or supervise the
various administrative functions reasonably necessary for the management of the
Company;
investigate, select and, on behalf of the Company, engage and conduct business
with (including, but not limited to, entering into contracts in the name of the
Advisor or the Company) consultants, accountants, correspondents, lenders,
servicers, technical advisors, attorneys, brokers, underwriters, corporate
fiduciaries, escrow agents, depositaries, custodians, agents for collection,
insurers, insurance agents, banks, builders, developers, property owners,
mortgagors,
and other mortgage and investment participants, any and all agents for any of
the foregoing, including Affiliates of the Advisor, and Persons acting in any
other capacity deemed by the Board of Directors necessary or desirable for the
performance of any of the foregoing services;
act as attorney-in-fact or agent in acquiring, financing, refinancing, leasing
and disposing of Properties and other investments, in disbursing and collecting
funds of the Company, in paying the debts and fulfilling the obligations of the
Company and in handling, prosecuting and settling any claims of the Company,
including the foreclosure or other enforcement of any mortgage or other lien
securing Properties or other investments, and exercise its own discretion in
doing so; provided that any fees and costs payable to independent Persons
incurred by the Advisor in connection with the foregoing shall be the
responsibility of the Company;
negotiate on behalf of the Company with banks or other lenders for loans to be
made to the Company, and negotiate on behalf of the Company with investment
banking firms and broker-dealers or negotiate private sales of the securities of
the Company or obtain loans for the Company, but in no event in such a way so
that the Advisor shall be acting as broker-dealer or underwriter; and provided,
further, that any fees and costs payable to third parties incurred by the
Advisor in connection with the foregoing shall be the responsibility of the
Company;
invest or reinvest any money of the Company, as directed by the Board of
Directors or subject to such discretionary powers as the Board of Directors may
from time to time delegate;
if requested by the Company, provide appraisal reports on any real property that
is, or is proposed to be, acquired by the Company for investment;
at any time reasonably requested by the Board of Directors (but not more than
monthly) make reports of its performance of services to the Company;
communicate on behalf of the Company with the Shareholders of the Company as
required to satisfy the continuous reporting and other requirements of any
governmental bodies or agencies to the Shareholders and third parties and to
maintain effective relations with the Shareholders;
counsel the Company in connection with policy decisions to be made by the Board
of Directors;
provide the executive and administrative personnel, office space and services
required in rendering the foregoing services to the Company; and
perform such other services as may be required from time to time for management
and other activities relating to the assets of the Company as the Advisor shall
deem appropriate under the particular circumstances.
Commitments. In order to meet the investment requirements of the Company, but
only as determined by the Board of Directors, or any authorized committee
thereof, from time to time, the Advisor agrees at the direction of the Board of
Directors or any such committee to issue on behalf of the Company commitments on
such terms as are established by the Board of Directors or any such committee,
for the acquiring of Properties or other assets.
Duties of the Board of Directors. In order for the Advisor to fulfill its
duties, the Board of Directors shall, to the extent it deems proper, provide the
Advisor with full information concerning the Company, its capitalization and
investment policies and the intentions of the Board of Directors with respect to
future investments. The Company shall furnish the Advisor with a copy of all
audited financial statements, a signed copy of each report prepared by
independent accountants, and such other information with regard to its affairs
as the Advisor may from time to time reasonably request.
Advice. In addition to the services described in Section 2 above, the Advisor
shall consult with the Board of Directors and the officers of the Company and
shall furnish them with advice and recommendations with respect to the acquiring
of Properties or commitments therefor, or other investments of, or investments
considered by, the Company, and shall furnish advice and recommendations with
respect to other aspects of the business and affairs of the Company. In order to
facilitate the investment of the funds of the Company and enable it to avail
itself of investment opportunities as they arise, the Advisor may from time to
time be granted, but is not hereby granted, the power and authority to make and
dispose of investments and to make and terminate commitments for investments, on
behalf of and in the name of the Company, without further or express authority
from the Board of Directors; provided, however that the Board of Directors shall
have the power to revoke, suspend, modify or limit such power and authority at
any time or from time to time, but not retroactively. Unless otherwise notified
by the Board of Directors, a representative of the Advisor shall attend all
regular and special meetings of the Board of Directors, and the Board of
Directors shall notify the Advisor of such meetings.
The Advisor shall first present to the Company all investment opportunities
which are suitable for the Company, because such investment opportunities are
within the investment objectives and policies of the Company, before the Advisor
offers such opportunities to any other Person or takes for its own account. It
is expressly understood, however, that the primary investments of the Company
are expected to be existing residential apartment communities in Texas and the
southwestern region of the United States.
Bank Accounts. The Advisor may establish and maintain one or more bank accounts
in the name of the Company and may collect and deposit into any such account or
accounts, and disburse from any such account or accounts, any money on behalf of
the Company, under such terms and conditions as the Board of Directors may
approve, provided that all such accounts shall be maintained in such fashion as
to make clear that the funds therein are the property of the Company and not of
the Advisor. The Advisor shall from time to time render appropriate accountings
of such collections and payments to the Board of Directors and to the auditors
of the Company.
Investment Undertakings. The Advisor shall use its best efforts to assure that
(i) any mortgage securing a Property of the Company shall be and remain a valid
lien upon the mortgaged property according to its terms; (ii) the title to any
Property is insured by appropriate policies of title insurance; (iii) any
Property is duly insured against loss or damage by fire, with extended coverage,
and against such other insurable hazards and risks as is customary and
appropriate in the circumstances; and (iv) the policies from time to time
specified by the Board of Directors with regard to the protection of the
Company's investments are carried out. Any and all fees and costs incurred by
the Advisor in performing such functions, whether payable to its Affiliates or
independent Persons shall be borne by the Company.
Records; Confidentiality. The Advisor shall maintain appropriate records of all
its activities hereunder and make such records available for inspection by the
Board of Directors and by counsel, auditors and authorized agents of the
Company, at any time or from time to time during normal business hours. The
Advisor shall at all reasonable times have access to the books and records of
the Company. The Advisor shall keep confidential any and all information
obtained in connection with the services rendered hereunder and shall not
disclose any such information to nonaffiliated Persons except with the prior
consent of the Board.
Limitation of Activities. Anything else in this Agreement to the contrary
notwithstanding:
The Advisor shall refrain from taking any action which, in its sole judgment
made in good faith, would adversely affect the status of the Company as a real
estate investment trust as defined in the Code, subject the Company to
regulation under the Investment Company Act of 1940, violate any law, rule or
regulation or would otherwise not be permitted by the Articles of Incorporation
or Bylaws of the Company, except if such action shall be ordered by the Board of
Directors, in which case the Advisor shall notify promptly the Board of
Directors of the Advisor's judgment of the potential impact of such action and
shall refrain from taking such action until it receives further clarification or
instructions from the Board of Directors. Notwithstanding the foregoing, the
Advisor and its stockholders, directors, officers and employees shall not be
liable to the Company, or to the Company's Board of Directors or Shareholders
for any act or omission by the Advisor, or its stockholders, directors, officers
or employees except as provided in Section 16 of this Agreement.
In performing its duties and obligations under this Agreement, the Advisor shall
abide by and comply with the provisions and policies set forth in the Articles
of Incorporation and Bylaws.
Relationship with Board of Directors. Employees of the Advisor may serve as
members of the Board of Directors or any committee thereof and as officers of
the Company, except that no employee of the Advisor who also is a Director or
officer of the Company shall receive any compensation from the Company for
serving as a Director or officer other than for reasonable reimbursement for
travel and related expenses incurred in attending meetings of the Board of
Directors or any committee thereof.
Fees.
Asset Management Fee. The Company shall pay to the Advisor quarterly, for
services rendered under this Agreement, an Asset Management Fee calculated as
follows: The Asset Management Fee for any calendar quarter shall be a applicable
percentage of the Total Contributions. The applicable percentage used to
calculate such Asset Management Fee shall be based upon the Return Ratio,
calculated on a per annum basis, for the preceding calendar quarter. The Asset
Management Fee shall be as follows with respect to any such quarter: 0.1% of
Total Contributions if the Return Ratio for the preceding calendar quarter is
6.0% per annum or less;
0.15% of Total Contributions if the Return Ratio for the preceding calendar
quarter is more than 6.0% per annum but not more than 8.0% per annum; and 0.25%
of Total Contributions if the Return Ratio for the preceding calendar is above
8.0% per annum. If the Asset Management Fee is payable with respect to any
partial calendar quarter, it shall be prorated based on the number of days
elapsed during any such partial calendar quarter.
Payment of Asset Management Fee. The Advisor shall compute the compensation
payable to it under Section 11(a) of this Agreement within 45 days of the end of
each calendar quarter. A copy of the computations made by the Advisor to
calculate its compensation shall thereafter promptly be delivered to the Board
of Directors and, upon such delivery, payment of the compensation earned under
Section 11(a) of this Agreement shown therein shall be due and payable within 60
days after the end of such calendar quarter.
Expenses.
The Company shall pay directly or reimburse the Advisor for the following
expenses in addition to the compensation provided for in this Agreement:
[all costs of personnel employed by the Company and involved in the business of
the Company];
expenses incurred in connection with the initial investment of the funds of the
Company, including all direct expenses incurred in connection with investigation
and acquisition of Properties;
interest and other costs for borrowed money, including discounts, points and
other similar fees;
[taxes and assessments on income or property and taxes as an expense of doing
business];
fees and commissions, including finder's fees and brokerage commissions with
respect to the acquisition and disposition of assets of the Company, whether
payable to an Affiliate of the Advisor or an unrelated Person, including,
without limitation, costs of foreclosure, maintenance, repair and improvement of
Property;
costs associated with insurance required in connection with the business of the
Company or by the Board of Directors;
expenses of managing and operating real property owned by the Company, whether
payable to an Affiliate of the Advisor or an unrelated Person;
fees and expenses of legal counsel for the Company;
fees and expenses of independent auditors and accountants for the Company;
all expenses in connection with payments to the Board of Directors or any
committee thereof and meetings of the Board of Directors or any committee
thereof and Shareholders;
expenses associated with listing the Shares on a national stock exchange or
quoting the Shares on the NASDAQ National Market System if requested by the
Board of Directors, or with the issuance and distribution of any additional
Shares of the Company at any time, such as taxes, legal and accounting fees,
listing and registration fees, and other expenses;
dividend and dividend distributions;
expenses of organizing, revising, amending, converting, modifying or terminating
the Company, the Articles of Incorporation or the Bylaws; and
expenses of maintaining communications with Shareholders, including the cost of
preparation, printing, and mailing annual reports and other Shareholder reports,
proxy statements and other reports required by governmental entities.
Expenses incurred by the Advisor on behalf of the Company and payable pursuant
to this Section, shall be reimbursed quarterly to the Advisor within 60 days
after the end of each quarter. The Advisor shall prepare a statement documenting
the expenses of the Company during each quarter, and shall deliver such
statement to the Company within 45 days after the end of each quarter.
Except as otherwise provided herein, the Advisor shall pay all expenses of
performing its obligations under this Agreement, including, without limitation,
the following expenses:
employment expenses of the Advisor, including, but not limited to, salaries,
wages, payroll taxes, costs of employee benefit plans, and temporary help
expenses, except to the extent that such expenses are otherwise reimbursable
pursuant to Section 12(a) of this Agreement or the Articles of Incorporation or
Bylaws;
audit fees and expenses of the Advisor;
legal fees and other expenses of professional services to the Advisor;
rent, telephone, utilities and other office expenses of the Advisor;
insurance of the Advisor; and
all other administrative expenses of the Advisor.
Limitation on the Advisor's Investment Advice. Notwithstanding anything to the
contrary in this Agreement, the Advisor shall not be required to, and shall not,
advise the Company as to any investments in securities, except when, and to the
extent that, the Advisor and the Company specifically agree (i) that such advice
is desirable, and (ii) that such advice can be rendered consistently with
applicable legal requirements, including any applicable provisions of relevant
"investment advisor" laws.
Other Services. Should the Board of Directors request that the Advisor or any
employee thereof render material services for the Company other than set forth
in Section 2, such services shall be separately compensated and shall not be
deemed to be services pursuant to the terms of this Agreement.
Limitation on Operating Expenses. Within 120 days from the end of any Calendar
Year, the Advisor shall refund to the Company the amount, if any, by which the
Operating Expenses of the Company, excluding extraordinary nonrecurring items
and those items referred to in Section 14, during such Calendar Year exceeded
the greater of either of the following limitations:
2% of the Average Invested Assets of the Company for such Calendar Year; or
25% of the Company's Company Net Income for such Calendar Year, determined in
accordance with generally accepted accounting principles.
The Independent Directors of the Company may determine that, because of unusual
and nonrecurring factors which they deem sufficient, a higher level of Operating
Expenses is justified for such Calendar Year. The Advisor shall be promptly
reimbursed for any payments made under this Section 15 if, in any succeeding
Calendar Year, the Operating Expenses of the Company are less than the permitted
level of Operating Expenses.
Advisory Responsibility. The Advisor assumes no responsibility under this
Agreement other than to render the services called for hereunder in good faith
and with integrity, and shall not be responsible for any action of the Company
in following or declining to follow any advice or recommendation of the Advisor.
Neither the Advisor, its shareholders, directors, officers nor employees nor any
of its Affiliates, nor any Person contracting with the Advisor for services and
its shareholders, directors, officers and employees nor any of its Affiliates
shall be liable to the Company or its Shareholders, except by reason of acts
constituting gross negligence or willful misconduct. The Advisor hereby agrees
to look solely to the assets of the Company for satisfaction of all claims
against the Company, and in no event shall any Shareholder, Director, officer or
agent of the Company have any personal liability for the obligation of the
Company under this Agreement.
Incorporation of the Articles of Incorporation and Bylaws. To the extent the
Articles of Incorporation and Bylaws impose obligations or restrictions on the
Advisor or grant the Advisor certain rights which are not set forth in this
Agreement, the Advisor shall abide by such obligations or restrictions and such
rights shall inure to the benefit of the Advisor with the same force and effect
as if they were set forth herein.
Fiduciary Duty and Indemnification. Subject to Section 16, the Advisor shall
have a fiduciary relationship to the Shareholders. However, the Company shall
indemnify the Advisor, to the fullest extent permitted by law, for its
liabilities and losses arising from the operations of the Company (including its
costs and expenses, including legal fees and expenses, incurred in connection
with investigating and defending itself against such liabilities and losses) if
the following conditions are met:
the Directors have determined, in good faith, that the course of conduct which
caused the liability or loss was undertaken in good faith within what the
Advisor reasonably believed to be the scope of its employment or authority and
for a purpose which it reasonably believed to be in the best interests of the
Company;
the Directors have determined, in good faith, that the liability or loss was not
the result of willful misconduct, bad faith, reckless disregard of duties or
violation of the criminal law on the part of the Advisor; and
the indemnified amount is recoverable only out of the assets of the Company and
not from the Shareholders.
Notwithstanding the foregoing, indemnification will not be allowed for any
liability imposed by judgment, and costs associated therewith, including
attorneys' fees, arising from or out of a violation of state or federal
securities laws associated with the Offering of the Common Shares unless (i)
there has been a successful adjudication on the merits of each count involving
alleged securities laws violations as to the particular indemnitee, or (ii) such
claims have been dismissed with prejudice on the merits by a court of competent
jurisdiction as to the particular indemnitee or (iii) a court of competent
jurisdiction approves a settlement of the claims against a particular
indemnitee.
Transactions between the Advisor and the Company. All transactions between the
Advisor and the Company shall require the approval by a majority of the
Directors (including a majority of the Independent Directors) and shall
otherwise comply with the conflict of interest provisions of the Bylaws.
Relationship of Advisor and Company. The Company and the Advisor are not
partners or joint ventures with each other, and nothing herein shall be
construed to make them such partners or joint ventures or impose any liability
as such on either of them.
Other Activities. Except as otherwise expressly provided herein, nothing
contained herein shall limit the right of the Advisor or any of its officers,
directors or employees, whether or not a Director, officer or employee of the
Company, to engage in other business activities or to render services of any
kind to any other Person even if such other business activities or services may
be in direct competition with the Company.
Term; Termination of Agreement.
This Agreement shall have an initial term ending five years after ___________,
2001, and thereafter shall be renewed for additional two-year terms upon the
consent of the Directors.
Prior to any renewal of this Agreement, the Independent Directors shall review
(i) the performance of the Advisor hereunder to determine its compliance with
the provisions of this Agreement, and (ii) the fees payable to the Advisor
hereunder to determine whether they are reasonable in relation to the nature and
quality of services performed. The findings of the Independent Directors shall
be recorded in the minutes of the Directors.
This Agreement shall be terminable (i) without cause by the Advisor or (ii)
without cause by a majority of the Independent Directors, in each case upon 60
days' prior written notice to the non-terminating party.
In the event of the termination of the Advisor, the Advisor will cooperate with
the Company and take all reasonable steps requested to assist the Directors in
making an orderly transition of the advisory function to another Person.
At the sole option of a majority of the Independent Directors, this Agreement
may be terminated for cause by written notice of termination from the Company to
the Advisor if any of the following events occur:
if the Advisor shall violate or default in the performance of any material
provision of this Agreement and, after written notice of such violation or
default, shall not cure such violation or default within 30 days;
if the Advisor shall be adjudged bankrupt or insolvent by a court of competent
jurisdiction, or an order shall be made by a court of competent jurisdiction for
the appointment of a receiver, liquidator or trustee of the Advisor, or of all
or substantially all of its property by reason of the foregoing, or approving
any petition filed against the Advisor for reorganization, and such adjudication
or order shall remain in force or unstayed for a period of 30 days; or
if the Advisor shall institute proceedings for voluntary bankruptcy or shall
file a petition seeking reorganization under the federal bankruptcy laws, or for
relief under any law for relief of debtors, or shall consent to the appointment
of a receiver for itself or for all or substantially all of its property, or
shall make a general assignment for the benefit of its creditors, or shall admit
in writing its inability to pay its debts, generally, as they become due.
Any notice of termination under this Section shall (except to the extent this
Section requires a different notice period) be effective on the date specified
in such notice, which may be the day on which such notice is given or any date
thereafter. The Advisor agrees that if any of the events specified in
subparagraph (ii) or (iii) of Section 22(e) shall occur, it shall give written
notice thereof to the Board of Directors within 5 days after the occurrence of
such event.
Action Upon Termination.
From and after the effective date of termination of this Agreement pursuant to
Section 22 hereof, the Advisor shall not be entitled to compensation for further
services rendered hereunder, but shall be entitled to receive from the Company
within 30 days after the effective date of such termination, an amount in cash
equal to all earned but unpaid Asset Management Fees payable to the Advisor
prior to the termination of this Agreement.
Within a reasonable period of time, but in no event later than 30 days after the
termination of this Agreement, the Advisor shall:
pay over to the Company all money collected and held for the account of the
Company pursuant to this Agreement, after deducting any accrued compensation and
reimbursement for its expenses to which it is then entitled;
deliver to the Board of Directors a full accounting, including a statement
showing all payments collected by it and a statement of all money held by it,
covering the period following the date of the last accounting furnished to the
Board of Directors; and
deliver to the Board of Directors all property and documents of the Company then
in the custody of the Advisor.
The Advisor shall be entitled to receive, promptly after such 30-day period,
reimbursement for any additional expenses to which it is entitled (and for which
it has not been reimbursed under clause (i) of Section 23(b)).
Assignment Prohibition. This Agreement may not be assigned by the Advisor
without the approval of a majority of the Board of Directors; provided, however,
that such approval shall not be required in the case of an assignment to a
corporation, association, trust or organization which may take over the assets
and carry on the affairs of the Advisor, provided that at the time of such
assignment, such successor organization shall be owned substantially by the
Advisor or its Affiliates and that an officer of the Advisor shall deliver to
the Board of Directors a statement in writing indicating the ownership structure
of the successor organization. Such an assignment shall bind the assignees
hereunder in the same manner as the Advisor is bound hereunder. This Agreement
shall not be assigned by the Company without the consent of the Advisor, except
in the case of an assignment by the Company to a corporation or other
organization which is a successor to the Company, in which case such successor
organization shall be bound hereunder and by the terms of said assignment in the
same manner as the Company is bound hereunder.
Bylaws. The execution and performance of this Agreement hereby is expressly made
subject to Article VIII of the Bylaws of the Company.
Notices. Any notice, report or other communication required or permitted to be
given hereunder shall be in writing unless some other method of giving such
notice, report or other communication is accepted by the party to whom it is
given, and shall be given by being delivered to the addresses set forth herein:
To the Board of
Directors or
to the Company: Apple Hospitality Two, Inc.
000 X. Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attn: Board of Directors
To the Advisor: Apple Suites Advisors, Inc.
000 X. Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxx X. Xxxxxx
Either party may at any time give notice in writing to the other party of a
change in its address for the purposes of this Section.
Modification. This Agreement shall not be changed, modified, amended, terminated
or discharged, in whole or in part, except by an instrument in writing signed by
both parties hereto, or their respective successors or assigns.
Shareholder Liability. No Shareholder of the Company shall be personally liable
for any of the obligations of the Company under this Agreement.
Severability. The provisions of this Agreement are independent of and severable
from each other, and no provision shall be affected or rendered invalid or
unenforceable by virtue of the fact that for any reason any other or others of
them may be invalid or unenforceable in whole or in part.
Binding. This Agreement shall bind any successors or permitted assigns of the
parties hereto as herein provided.
Construction. The provisions of this Agreement shall be construed and
interpreted in accordance with the laws of the Commonwealth of Virginia.
Entire Agreement. This Agreement contains the entire agreement and understanding
among the parties hereto with respect to the subject matter hereof, and
supersedes all prior and contemporaneous agreements, understandings, inducements
and conditions, express or implied, oral or written, of any nature whatsoever
with respect to the subject matter hereof. The express terms hereof control and
supersede any course of performance and/or usage of the trade inconsistent with
any of the terms hereof.
Indulgences, Not Waivers. Neither the failure nor any delay on the part of a
party to exercise any right, remedy, power or privilege under this Agreement
shall operate as a waiver thereof, nor shall any single or partial exercise of
any right, remedy, power or privilege preclude any other or further exercise of
the same or of any other right, remedy, power or privilege, nor shall any waiver
of any right, remedy, power or privilege with respect to any occurrence be
construed as a waiver of such right, remedy, power or privilege with respect to
any other occurrence. No waiver shall be effective unless it is in writing and
is signed by the party asserted to have granted such waiver.
Gender. Words used herein regardless of the number and gender specifically used,
shall be deemed and construed to include any other number, singular or plural,
and any other gender, masculine, feminine or neuter, as the context requires.
Titles Not to Affect Interpretation. The titles of sections and subsections
contained in this Agreement are for convenience only, and they neither form a
part of this Agreement nor are they to be used in the construction or
interpretation hereof.
Execution in Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original as against any
party whose signature appears thereon, and all of which shall together
constitute one and the same instrument. This Agreement shall become binding when
one or more counterparts hereof, individually or taken together, shall bear the
signatures of all of the parties reflected hereon as the signatories.
IN WITNESS WHEREOF, the parties hereto have executed this Restated
Agreement by their duly authorized officers as of the date first written above.
APPLE HOSPITALITY TWO, INC.
a Virginia corporation
By:
--------------------------------
Title: President
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APPLE SUITES ADVISORS, INC.,
a Virginia corporation
By:
--------------------------------
Title: President
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