Exhibit 10.19
ASSET MANAGEMENT AGREEMENT
This ASSET MANAGEMENT AGREEMENT ("Agreement") is made and entered into as
of the _____day of _____________________, 199_ (the "Effective Date"), by and
between HOST MARRIOTT, L.P ("Company"), a Delaware limited partnership and
CRESTLINE CAPITAL CORPORATION ("Consultant"), a Maryland corporation.
RECITALS
WHEREAS, Company (or an Affiliate (defined below) thereof) is the owner of
the hotels as more particularly described on Exhibit "A" attached hereto and by
reference incorporated herein (each included in the definition of "Hotels"); and
WHEREAS, each Hotel is being managed by the management company (referred to
herein as the "Hotel Manager") identified in that certain related hotel
management agreement, as may be amended from time to time, (each, a "Management
Agreement" or collectively, the "Management Agreements"); and
WHEREAS, Company (or an Affiliate of Company), as "Hotel Landlord", has
entered or will be entering into certain hotel lease agreements (each, a "Hotel
Lease" or collectively, the "Hotel Leases") with Consultant (or an Affiliate of
Consultant), as "Hotel Tenant", which Hotel Leases are effective as of the
Effective Date of this Agreement; and
WHEREAS, the Hotels leased under the Hotel Leases have been divided into
four pools (each, a "Hotel Pool") pursuant to certain Pooling and Security
Agreements among Company, Consultant and certain of their respective Affiliates;
and
WHEREAS, in connection with each Hotel Lease, the parties thereto and the
applicable Hotel Manager have entered into that certain Consent, Assignment and
Assumption and Amendment of Management Agreement (the "Assignment and Assumption
Agreement") pursuant to which the "Hotel Landlord" under each such Hotel Lease
assigned certain rights and obligations of "Owner" under the Management
Agreements to the "Hotel Tenant"; and
WHEREAS, Company desires to retain Consultant to provide certain advisory
and consultation services with respect to the Hotels and the performance by the
"Hotel Landlord" of the rights and obligations that it retained under the
related Hotel Lease and Assignment and Assumption Agreement and Consultant has
agreed to provide such services all as set forth in and subject to the terms and
conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set
forth below, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Company and Consultant agree as
follows:
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ARTICLE I
DEFINITIONS
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1.1 Definition of Terms.
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As used in this Agreement, the following terms shall have the meanings
ascribed to each such term:
"Affiliate" shall mean any individual or entity directly or indirectly
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through one or more intermediaries controlling, controlled by or under common
control with a party. The term "control", as used in the immediately preceding
sentence, means, with respect to a corporation, the right to exercise, directly
or indirectly, fifty percent (50%) or more of the voting rights of any class of
the shares of the controlled corporation, and, with respect to an entity that is
not a corporation, the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of the controlled
entity.
"Agreement" shall have the meaning set forth in the first paragraph of
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this Agreement.
"Asset Management Services" shall mean those Asset Management Services
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described in Section 4.2 performed by Consultant in connection with the Hotels.
"Assignment and Assumption Agreement" shall have the meaning set forth
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in the fifth Recital of this Agreement.
"Claims" shall have the meaning set forth in Section 9.1.
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"Company" shall have the meaning set forth in the first paragraph of
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this Agreement.
"Company Indemnitee" shall have the meaning set forth in Section 9.2.
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"Consultant" shall have the meaning set forth in the first paragraph
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of this Agreement.
"Consultant Approved Capital Expense" shall have the meaning set forth
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in Section 4.2(f).
"Consultant Indemnitee" shall have the meaning set forth in Section
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9.1.
"Default" shall have the meaning set forth in Section 7.1.
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"Default Rate" shall mean an annual rate of interest equal to the
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Prime Rate, as adjusted from time to time, plus three hundred (300) basis
points; provided, however, that in no event shall the Default Rate exceed the
maximum rate which is permitted under applicable law.
"Effective Date" shall have the meaning set forth in the first
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paragraph of this Agreement.
"Event of Default" shall have the meaning set forth in Section 7.2.
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"Feasibility Services" shall have the meaning set forth in Section
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4.1.
"Fee" shall have the meaning set forth in Section 6.1.
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"Hotel" or "Hotels" shall mean those (i) full-service and limited-
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service hotels described on Exhibit "A" and (ii) any full-service or limited-
service hotel that Company (or an Affiliate of Company) subsequently leases to
Consultant (or an Affiliate of Consultant) at any time after the Effective Date.
The parties agree to execute an amendment to this Agreement adding any hotel
described in clause (ii) of the foregoing sentence to Exhibit "A" (and, if
applicable, Exhibit "B") of this Agreement as of the date specified in such
amendment.
"Hotel Lease" or "Hotel Leases" shall have the meaning set forth in
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the third Recital of this Agreement.
"Hotel Manager" shall have the meaning set forth in the second Recital
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of this Agreement.
"Hotel Pool" shall have the meaning set forth in the fourth Recital of
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this Agreement.
"Indemnified Party" shall have the meaning set forth in Section 9.3.
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"Indemnifying Party" shall have the meaning set forth in Section 9.3.
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"Initial Term" shall have the meaning set forth in Section 3.1.
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"Management Agreement" or "Management Agreements" shall have the
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meaning set forth in the second Recital of this Agreement.
"Partnership Hotels" shall have the meaning set forth in Section 6.4.
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"Prime Rate" shall mean the "prime rate" as published in the "Money
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Rates" section of The Wall Street Journal; however, if such rate is no longer
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published, the term "Prime Rate" shall mean the average of the prime interest
rates that are announced, from time to time, by the three (3) largest banks (by
assets) headquartered in the United States which publish a "prime rate".
"Reimbursable Expenses" shall mean those amounts actually incurred by
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Consultant for services performed by third parties (including, without
limitation, attorneys, engineers, project managers and other outside
consultants) and directly related to Consultant's performance of the Asset
Management Services and/or Feasibility Services. Consultant shall not incur any
Reimbursable Expenses without the prior approval of Company, which approval may
be withheld by Company in its sole discretion.
"Renewal Notice Deadline" shall have the meaning set forth in
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Section 3.1.
"Renewal Term" shall have the meaning set forth in Section 3.1.
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"Term" shall mean the Initial Term plus all Renewal Terms.
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"Termination" shall mean the expiration or sooner cessation of this
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Agreement.
"Year" shall mean a full twelve (12) month period consisting of 365
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days commencing with the date specified in this Agreement.
1.2 Certain Management Agreement Defined Terms.
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Section 4.2 of this Agreement refers to capitalized terms that are not
defined in this Agreement. (For example, "Accounting Statements", "Building
Estimates" and "Management Analysis Reports" are terms used in Section 4.2 but
not defined in this Agreement.) Any such capitalized term in Section 4.2 shall
have the meaning ascribed to that term in the related Management Agreement. If,
however, the Management Agreement for any Hotel does not include such
capitalized term, then the capitalized term or related provision used in the
respective Management Agreement that carries out the intent of the respective
provision in this Agreement shall be deemed to be substituted for the
capitalized term as used in Section 4.2 hereof.
ARTICLE II
APPOINTMENT OF CONSULTANT
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2.1 Independent Contractor.
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Company hereby retains Consultant as an independent contractor for the
purpose of performing the Asset Management Services and Feasibility Services
described in this Agreement and Consultant hereby agrees to perform
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such services on the terms and conditions set forth herein. Consultant will act
as Company's authorized representative in gathering data, analyses, records and
other materials as may be necessary to perform the Asset Management Services in
connection with each Hotel and the Feasibility Services further described in
Section 4.1. The parties acknowledge that, as between Company and Consultant,
Company (or an Affiliate of Company) will retain title and ownership of the
Hotels and that Consultant will not acquire title to, or any security interest
in, or any rights of any kind in or to the Hotels (or any income, receipts or
revenues therefrom) in its capacity as asset manager and advisor under or
pursuant to this Agreement.
ARTICLE III
TERM OF AGREEMENT
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3.1 Term.
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The initial term ("Initial Term") of this Agreement shall commence as
of the Effective Date and, unless sooner terminated as provided in Section 7.3
or Section 8.2 of this Agreement, shall continue until the expiration of the
second (2nd) Year after the Effective Date. The Term shall thereafter be
automatically renewed for successive one (1) Year periods (each one-Year period
being a "Renewal Term"), subject to (i) the parties agreeing on the Fee for any
Renewal Term prior to the Renewal Notice Deadline or (ii) either party notifying
the other in writing of its intent not to renew this Agreement by no later than
one hundred eighty (180) days prior to the end of the Initial Term or then
current Renewal Term, as the case may be (referred to as the "Renewal Notice
Deadline"); in either case this Agreement shall end at the expiration of the
Initial Term or the then
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current Renewal Term, as the case may be.
ARTICLE IV
ASSET MANAGEMENT SERVICES
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4.1 Scope of Agreement.
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The retention of Consultant by Company to perform the Asset Management
Services and Consultant's obligations to perform such Asset Management Services,
all as described and subject to the terms of this Agreement, is expressly
limited to the Hotels. Consultant will also perform acquisition and/or
feasibility services (collectively referred to as "Feasibility Services"), at
Company's request, in connection with due diligence being conducted by Company
for a hotel that Company (or an Affiliate of Company) is or may be acquiring or
constructing and developing at some future time, whether or not such hotel
subsequently becomes a "Hotel" pursuant to the provisions of this Agreement.
Any reference to "Asset Management Services" hereinafter shall include the Asset
Management Services and the Feasibility Services as described in this Agreement.
4.2 Asset Management Services.
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Consultant will provide review of and advice on the management and
operation of the Hotels generally and with respect to matters required by
Company to make operating and strategic decisions affecting any such Hotel,
including, without limitation, real estate tax issues, compliance with insurance
provisions under the related Hotel Lease or Management Agreement, capital
expenditure programs and compliance with related ground leases (if any). The
following
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activities are included, without limitation, within the scope of the "Asset
Management Services" to be provided by Consultant:
a. Contract Administration: Review and approve (on behalf of
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Company) contracts, concessions, license and lease agreements (collectively
referred to for purposes of this paragraph as "contracts") related to the
operation of each of the Hotels for which the "Owner" under the related
Management Agreement has approval rights and which approval rights have been
retained by Company or its Affiliates under the related Hotel Lease and
Assignment and Assumption Agreement; provided, however, Consultant will be
required to obtain Company's prior consent before approving, modifying, waiving
any rights under, or terminating, any such contract (i) which has a term of more
than five (5) years or involves more than 1,000 square feet of space within the
Hotel; (ii) for any "non-hotel use" (for example, antenna license agreements or
concessions relating to time-share activities) for which the annual rental over
the initial term of any such agreement exceeds Twenty-Five Thousand Dollars
($25,000.00); or (iii) for any uses customarily related to the operation of a
hotel for which the annual rental over the initial term of any such agreement
exceeds Fifty Thousand Dollars ($50,000.00). Consultant will provide quarterly
status reports to Company identifying any contract that Consultant approved,
modified, waived any rights under or terminated during the previous calendar
quarter that did not require Company's prior consent pursuant to this Section
4.2(a).
b. Operating and Financial Reviews with Hotel Management: Conduct
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site visits, generally at least twice per calendar year, and operating, capital
spending requirements and financial reviews with the executive property
management at each of the Hotels.
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c. Review Meetings with Company: Conduct scheduled review
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meetings, at least quarterly, or more frequently as reasonably requested by
Company, with Company to review the operating and financial results and
strategies of the Hotels.
d. Review of Financial Statements and Budgets: Review and
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assess all financial statements, summaries and budgets provided by Hotel Manager
detailing operating and financial results and projections (including period
Accounting Statements, Annual Operating Budgets and Statements for the Hotels,
FF&E Budgets, Building Estimates, Management Analysis Reports and other reports
and summaries that may be required to be submitted by the Hotel Manager under
the related Management Agreement).
e. Revenue Projections: Review revenue projections for the
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Hotels and evaluate whether they are consistent with marketing and operating
strategies and current operating results.
f. Review of Capital Spending Programs: Review existing
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plans assessing the need and/or costs and benefits of capital expenditure
programs for each of the Hotels and approve all capital spending commitments,
including commitments for which funds are to be drawn from the FF&E Reserve, for
which Company or its Affiliates has retained approval rights under the related
Hotel Lease and Assignment and Assumption Agreement. Consultant will obtain
Company's prior approval for (i) any project or expenditure to be funded from
the FF&E Reserve totaling One Hundred Thousand Dollars ($100,000.00) or more;
(ii) any owner-funded Capital Expenditure totaling Fifty Thousand Dollars
($50,000.00) or more; and (iii) any project or expenditure not previously
approved pursuant to the foregoing clauses (i) and (ii), whether funded from the
FF&E
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Reserve and/or an owner-funded Capital Expenditure (a "Consultant Approved
Capital Expense") if, at the time of approval of such project or expenditure,
the aggregate of all Consultant Approved Capital Expenses approved by Consultant
since the beginning of the calendar year in which such approval will be given
exceeds Two Hundred Thousand Dollars ($200,000.00). Further, Consultant will
provide project management services in connection with capital expenditure
programs at the Hotels.
g. Administration of Facility Mortgages: Administer, as
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requested by Company and required by a Holder, approvals relating to the
operation of the Hotel required under the related loan documents affecting any
Hotel. In the event this Agreement is terminated prior to the termination of
the related Hotel Lease, Consultant (or an Affiliate thereof) will agree, upon
request by Company, to continue to provide such services under the related loan
documents under the terms of a separate agreement and for a fair and equitable
fee for such services, all as may be agreed upon in good faith by Company and
consultant (or Affiliate thereof). This Section 4.2(g) shall survive
Termination of this Agreement.
h. Modifications of the Management Agreement: Consult and
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advise Company with respect to modifications of any related Management Agreement
for which Company or its Affiliates has retained approval rights under the
related Hotel Lease and Assignment and Assumption Agreement including, without
limitation, any proposed assignment of the Management Agreement by the
applicable Hotel Manager, it being understood, however, that Consultant shall
have no authority to approve any such modification or assignment on behalf of
Company or the applicable Hotel owner.
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i. Market Review: Review and assess competitive and
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market conditions of each of the Hotels.
j. Condemnations: Monitor and negotiate to the extent Company
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or its Affiliates has retained approval rights under the related Hotel Lease and
Assignment and Assumption Agreement (with Company's prior approval) proceedings
with governmental agencies in connection with (partial) takings affecting the
"Hotel Landlord's" interest in a Hotel (for example, the taking of a portion of
the Hotel property for the expansion of highways).
k. Casualties. Monitor and negotiate to the extent Company or its
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Affiliates has retained approval rights under the related Hotel Lease and
Assignment and Assumption Agreement (with Company's prior approval) the
restoration of any portion (or whole) of the Hotel following a casualty with
insurance companies and\or contractors as may be required by the "Owner" of the
Hotel pursuant to the related Management Agreement and the "Hotel Landlord"
pursuant to the related Hotel Lease.
Subject to Section 4.3 of this Agreement, Asset Management Services
shall not include, and Consultant shall not be required to conduct, physical
engineering or environmental inspections of the Hotels; Consultant shall not be
liable for any failure to discover or report any defect or other adverse
condition existing at any Hotel.
Nothing in this Agreement shall create in Company or any of its
Affiliates any right or approval authority with respect to any Hotel that does
not exist under the applicable Hotel Lease or Assignment and Assumption
Agreement.
4.3 Standard of Performance.
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Consultant will carry out its duties and responsibilities hereunder in
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all material respects in accordance with the provisions of all applicable laws
and governmental regulations. Consultant will perform its obligations with
respect to each Hotel, with the care, skill, prudence and diligence under the
circumstances consistent with normal and prudent practices in the real estate
asset management industry then prevailing that a prudent person acting in a like
capacity and familiar with such matters would use in the conduct of an
enterprise of a like character. Decisions made and/or actions taken by
Consultant will represent Consultant's reasonable judgment based on industry
standard applicable to first class hotels. Company acknowledges that
recommendations to be made by Consultant in connection with the performance of
the Asset Management Services involve subjective judgments and may result in
unanticipated consequences. Consultant assumes no responsibility other than to
render the Asset Management Services in good faith and with reasonable care and
diligence and will not be responsible to Company, or others, for any action or
inaction by Company in following or declining to follow the advice given by
Consultant.
4.4 Consents.
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Company and Consultant each acknowledge that Company may be required
to give certain consents within those time periods specified in the related
Management Agreement and/or Hotel Lease for each respective Hotel. Accordingly,
the parties agree to cooperate in good faith with one another to ensure that the
proper consents are given, or withheld, as the case may be, within any such
required time periods. Consultant will provide its recommendations regarding
such matters to Company in a timely manner in order to provide Company with a
reasonable time period in which to make any such decisions.
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ARTICLE V
PERSONNEL
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5.1 Personnel.
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Consultant's obligations and duties hereunder may be performed by one
or more principals or employees of Consultant or independent contractors. Any
independent contractors to whom Consultant delegates its responsibilities
hereunder shall be parties that are in contractual privity with Consultant, and
not with Company; Company shall have no obligation (monetary or otherwise) to
such independent contractors and Consultant shall be responsible for the actions
of all such independent contractors. It is expressly understood that all
personnel of Consultant are solely employees of Consultant and are not employees
of Company.
ARTICLE VI
CONSULTANT'S COMPENSATION
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6.1 Fees for Services.
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Company shall pay to Consultant as compensation for its Asset
Management Services a fee (the "Fee") equal to _________________ Dollars
($______________________) for each Year during the Initial Term of this
Agreement. No further reimbursement for Consultant's costs and expenses incurred
in the provision of the Asset Management Services by Consultant in connection
with any Hotel shall be owing or paid by Company unless otherwise specifically
permitted under this Agreement. The Fee during any Renewal Period shall be
negotiated and agreed to by the parties prior to the Renewal Notice Deadline.
6.2 Manner of Payment
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The Fee shall be payable by Company to Consultant in twelve (12)
monthly equal installments, on or before the tenth (10th) day of each calendar
month. In the event that this Agreement shall commence on a date other than the
first day of a calendar month or terminate prior to the last day of the
respective calendar month, the installment due to Consultant for any such
partial calendar month shall be prorated accordingly.
6.3 Reimbursable Expenses
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Company shall reimburse Consultant (in addition to the Fee) for its
Reimbursable Expenses within ten (10) days after receipt of an invoice from
Consultant containing reasonably sufficient documentary evidence of such
Reimbursable Expenses.
6.4 Partnership Expenses.
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Those Hotels listed on Exhibit "B" attached to this Agreement and by
reference incorporated herein, are referred to as the "Partnership Hotels".
Consultant shall (in addition to the Fee paid by Company pursuant to Section
6.1) invoice the respective owner/partnership of each of the Partnership Hotels
for Asset Management Services provided by Consultant on behalf of the
owner/partnership in connection with the related Partnership Hotel. Consultant
represents to Company that the invoice for such services (i) will be for
services that were customarily billed to the owner/partnership by Host Marriott
Corporation (or a subsidiary thereof) prior to the date of this Agreement and
(ii) such services will not be billed to Company as Reimbursable Expenses. Each
owner/partnership will be instructed to pay Consultant directly for such
services; provided, however, that Company may elect that Consultant forward all
such
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invoices directly to Company. Company shall then reimburse Consultant for
all amounts that Company actually receives from the related owner/partnership
within five (5) days after Company's receipt of any such payment from the
owner/partnership. All invoices prepared by Consultant will provide sufficient
explanation and/or documentary evidence backing up the charges included on the
given invoice.
ARTICLE VII
DEFAULTS
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7.1 Definition of Default.
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Any one or more of the following shall constitute a "Default", to the
extent permitted by applicable law:
(a) the entry of an order, judgment or decree by any court of
competent jurisdiction, on the application of a creditor, adjudicating either
party as bankrupt or insolvent or approving a petition seeking reorganization or
appointing a receiver, trustee or liquidator of all or a substantial part of
such party's assets, and, in the case of any involuntary petition or filing
only, such order, judgment or decree continuing unstayed and in effect for any
period of sixty (60) days;
(b) the failure of either party to make any payment required to be
made in accordance with the terms of the Agreement as of the due date which is
specified in the Agreement. Upon the occurrence of a monetary Default the
amount owed to the non-defaulting party shall accrue interest at the Default
Rate from and after the date on which such payment was originally due to the
non-defaulting party;
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(c) the failure of either party to perform, keep or fulfill in all
material respects any of the other covenants, undertaking, obligations or
conditions set forth in the Agreement.
7.2 Definition of "Event of Default".
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The occurrence of a Default under Section 7.1(a) shall immediately and
automatically, without the necessity of any notice to the defaulting party,
constitute an "Event of Default". A Default under Section 7.1(b) shall
constitute an "Event of Default" if the defaulting party fails to cure such
Default within ten (10) days after written notice from the non-defaulting party.
A Default under Section 7.1(c) shall constitute an "Event of Default" if the
defaulting party fails to cure such Default within thirty (30) days after
written notice from the non-defaulting party, or, if the Default is such that it
cannot reasonably be cured within said time period, if the defaulting party
fails to commence the cure within the 30-day period or thereafter fails to
diligently pursue such efforts to completion.
7.3 Remedies Upon an Event of Default.
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Upon the occurrence of an Event of Default, the non-defaulting party
shall have the right to (i) terminate the Agreement upon thirty (30) days'
notice to the defaulting party and/or (ii) institute any and all proceedings
permitted by law or equity, including, without limitation, actions for specific
performance and/or damages.
ARTICLE VIII
TERMINATION OF AGREEMENT
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8.1 Procedures Upon Termination of Agreement.
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Upon Termination of this Agreement, the following shall
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be applicable:
(a) Consultant shall transfer all supporting documents, reports
and files that could be considered proprietary to the Company (and not the
property of the applicable "Hotel Tenant") or each Hotel as directed (in the
reasonable judgment of Company) by Company.
(b) Consultant shall be entitled to receive its Fee, any fees
described in Section 6.3 and Reimbursable Expenses, in each case accrued (but
unpaid) through the effective date of the Termination; unless, however,
Consultant is terminated by reason of its gross negligence, willful misconduct
or fraud, in which event Consultant's entitlement to receive accrued but unpaid
Fees, other fees and Reimbursable Expenses shall terminate immediately upon
receipt of Company's termination notice, it being understood, however, that the
foregoing shall not prevent Company from seeking or otherwise limiting the
amount of damages payable by Consultant as a result of any breach by it of this
Agreement.
8.2 Other Terminations.
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Company may elect to terminate this Agreement upon thirty (30) days'
written notice to Consultant and Consultant shall have no remedies or cause of
action with respect to such termination:
(a) in respect to any Hotel, upon the sale of such Hotel as may
be permitted pursuant to the provisions of the related Hotel Lease and the
related Management Agreement; or
(b) in the event Company (or an Affiliate of Company) as
"Landlord" under the Hotel Leases terminates more than two (2) Hotel Pools by
reason of an Event of Default (as that term in defined in the Hotel Lease) by
"Tenant" under such Hotel Leases, during the Term of this Agreement.
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ARTICLE IX
INDEMNIFICATIONS
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9.1 Indemnification of Consultant by Company.
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Company agrees to indemnify, defend and hold harmless Consultant and
its Affiliates, including independent contractors, and all of their respective
officers, directors, partners, shareholders, employees, and agents (each, a
"Consultant Indemnitee") against any and all costs, losses, liabilities, claims,
demands, actions, expenses (including reasonable attorneys' fees), judgments,
fines, and charges (collectively, referred to as "Claims") asserted at any time
by any third party against any Consultant Indemnitee which result from or are
based upon such Consultant Indemnitee's performance (or lack of performance)
under this Agreement, or otherwise related to this Agreement, unless the amounts
covered by this indemnity are caused directly by an act or omission of
Consultant constituting gross negligence, willful misconduct or fraud, in which
event neither Consultant nor any other Consultant Indemnitee will be indemnified
for such amounts under this Agreement.
9.2 Indemnification of Company by Consultant.
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Consultant shall indemnify, defend and hold harmless Company and its
Affiliates and all of their respective officers, directors, partners,
shareholders, employees, and agents (each, a "Company Indemnitee") against any
and all Claims asserted at any time by any third party against any Company
Indemnitee to the extent resulting from an act or omission by Consultant
hereunder constituting gross negligence, willful misconduct or fraud.
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9.3 Notice of Claims.
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Upon receipt by any party entitled to indemnification under Sections
9.1 or 9.2 above (an "Indemnified Party") of a complaint, claim or other notice
of any loss, claim, damage or liability giving rise to a claim for
indemnification under this Article IX, such Indemnified Party shall promptly
notify the other party (either Company or Consultant) from whom indemnification
is sought (the "Indemnifying Party"), but failure to provide such notice shall
not relieve the Indemnifying Party from its duty to indemnify unless the
Indemnifying Party is materially prejudiced by such failure and had no actual
knowledge of such complaint, claim or other notice. The Indemnifying Party
shall pay all amounts payable under the related provisions of this Article IX
within ten (10) days after demand therefor and, if not timely paid, such amounts
shall bear interest at the Default Rate from the date of determination to the
date of payment. The Indemnifying Party, at its expense, shall contest, resist
and defend any such claim, action or proceeding asserted or instituted against
the Indemnified Party and shall not be responsible for any duplicate attorneys'
fees incurred by the Indemnified Party, or may compromise or otherwise dispose
of the same with the Indemnified Party's prior written consent (which consent
may not be unreasonably withheld or delayed). In the event that the Indemnified
Party shall unreasonably withhold or delay its consent, the Indemnifying Party
shall not be liable for any incremental increase in costs or expenses resulting
therefrom.
This Article IX shall survive the Termination of this Agreement.
ARTICLE X
NOTICES
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10.1 Notices.
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Notices and other communications to be given under the terms of this
Agreement shall be in writing, and shall be either (i) delivered by hand
evidenced by a receipt, or (ii) sent by certified or registered mail, postage
prepaid, return receipt requested, or (iii) sent by overnight delivery service:
To Company: Host Marriott, L.P.
00000 Xxxxxxxx Xxxx
Xxxxxxxx Xxxxxxxx 00000
Attn: Xxxxxxxxxxx X. Xxxxxxxx
With a copy to: Host Marriott, L.P.
00000 Xxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxxxxxx X. Xxxxxxxx, Esq.
To Consultant: Crestline Capital Corporation
00000 Xxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxx Xxxxxxxxx
With a copy to: Crestline Capital Corporation
00000 Xxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxxxx Xxxxxxxxx, Esq.
or such other address as is from time to time designated by either party. Any
such notice which is properly mailed as described above, shall be deemed to have
been served as of three (3) business days after said posting.
ARTICLE XI
MISCELLANEOUS PROVISIONS
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11.1 Entire Agreement.
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This Agreement constitutes the entire agreement between the parties
and supersedes all prior written and oral understandings provided, that, this
Agreement shall not create any right in Company with respect to any Hotel or the
operation thereof that does not exist under the applicable Hotel Lease or
Assignment and Assumption Agreement. This Agreement may be amended only by a
writing signed by both parties hereto.
11.2 Partial Invalidity.
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If any portion of this Agreement shall be declared invalid by a court
of competent jurisdiction, this Agreement shall be construed as if such portion
had not been inserted herein except to the extent that such construction would
operate as an undue hardship on either party, or constitute a substantial
deviation of the general intent and purpose of the parties as reflected in this
Agreement.
11.3 Confidentiality.
---------------
The parties hereto agree, for their benefit and for the benefit of
Marriott International, Inc. and the Affiliates thereof, that the matters set
forth in this Agreement are strictly confidential and each party will use
commercially reasonable efforts to ensure that such matters are not disclosed to
any outside person or entities without the written consent of the other party;
provided, however, that such consent will not be required with respect to (i)
legally required filings and other disclosures mandated by applicable legal
requirements; (ii) disclosure to any existing or prospective lender or ground
lessor or prospective purchaser of a Hotel; and (iii) disclosure to the parties'
outside counsel and financial advisors provided, that, such persons are informed
of the confidential nature of such matters and are instructed to keep them
confidential.
11.4 Applicable Law.
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This Agreement shall be construed and governed by the laws of Maryland
without regard to conflict of laws rules.
11.5 Headings.
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Headings of Articles or Sections are inserted only for convenience and
are in no way to be construed as a limitation of the scope of the particular
Articles or Sections to which they refer.
11.6 No Restrictions.
---------------
Notwithstanding any provision in this Agreement to the contrary,
nothing contained in this Agreement shall prohibit, limit or restrict Consultant
or any of its Affiliates from rendering advisory or asset management services or
services similar to the Asset Management Services, whether or not in connection
with a hotel facility, to other persons, corporations, governmental agencies,
pension funds or any other entity and Consultant hereby specifically reserves
the right to do the foregoing.
11.7 Assignment.
----------
Neither party shall assign or otherwise transfer this Agreement or any
of the rights granted to it hereunder without the prior written consent of the
other party, not to be unreasonably withheld, conditioned or delayed, and no
such assignment or transfer shall be effective without such required written
consent;
provided, however that either party shall have the right, without such consent,
to assign its interest in this Agreement to any of its Affiliates.
11.8 No Partnership.
--------------
Nothing in this Agreement, or in the relationship between Company and
Consultant, shall be deemed to constitute a partnership, joint venture or any
other similar relationship.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first written above.
HOST MARRIOTT, L.P.
By: Host Marriott Corporation, general partner
By
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Vice President
CRESTLINE CAPITAL CORPORATION
By
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Vice President
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