Exhibit 10.19
ENGAGEMENT AGREEMENT
April __, 2004
Strategic Hotel Capital LLC
[Address]
Chicago, Illinois [Zip]
Attention: Xx. Xxxxxxxx Xxxxxx
RE: Advisory Services
Dear Xx. Xxxxxx:
This will confirm the understanding and agreement (the "Agreement") between
Prudential Investment Management, Inc. ("PIM") and Strategic Hotel Capital LLC
(the "Company") as follows:
1. Scope of Engagement
The Company hereby engages PIM to perform financial advisory services
(as described on Schedule I attached hereto) in connection with the
possible sale, whether public or private, by the Company of equity or
not less than 25% of the Company's real property assets (as reasonably
determined by re-buy values), in either case for cash, property,
securities or other assets (a "Transaction").
2. Company's and Management's Responsibilities, Representations and
Warranties
In connection with PIM's engagement, the Company will furnish to PIM
all information concerning the Company that PIM reasonably requests and
will provide PIM with access to the Company's officers, directors,
accountants, counsel and other advisors. The Company represents and
warrants to PIM that (a) all such information concerning the Company
will be true and accurate in all material respects and will not contain
any untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein not misleading
in light of the circumstances under which such statements were made and
(b) any forecasts or other forward looking information provided to PIM
represent the best currently available estimates by the Company of the
future financial performance by the Company (or its business) and are
based upon facts and assumptions which the Company believes to be
reasonable. The Company further acknowledges and agrees that PIM, in
providing its services, will be using and relying upon such information
supplied by the Company relating to the Company, agents and any other
publicly available information concerning the business of the Company
and any proposed Transaction without any independent investigation or
verification thereof or independent appraisal by PIM of the Company or
its business or assets.
3. Compensation
As compensation for the services to be rendered by PIM hereunder, the
Company hereby agrees to pay PIM One Million Dollars ($1,000,000)
promptly upon consummation of a Transaction.
4. Indemnification
Because PIM will be acting for the benefit of the Company in connection
with this engagement, the Company agrees to indemnify PIM and certain
other persons as set forth in the separate Indemnification Agreement
attached hereto (the "Indemnification Agreement"). Notwithstanding
anything to the contrary contained herein, no shareholder or director
of the Company or any of their affiliates shall have any liability
under this agreement, all such persons being third-party beneficiaries
of this sentence, entitled to enforce it in accordance with its terms.
5. Disclosure to Third Parties
Except as otherwise required by law or court order, any advice to be
provided by PIM under this Agreement shall not be publicly disclosed or
made available to third parties, other than to the Company's employees,
agents, advisors and representatives on an as need basis, without PIM's
prior written consent, nor may PIM be otherwise publicly referred to
without its prior written consent.
No party hereto will issue any press release or make any other public
announcement relating to this Agreement without the prior written
consent of the other party hereto, except that any party may make any
disclosure required to be made by it under applicable law (including
the federal securities laws) or stock exchange rules if in the
reasonable opinion of such party's counsel it is necessary and
appropriate to do so and such party gives prior notice to the other
party hereto; provided, however, that the content of such disclosure
shall be subject to the other party's approval, which shall not be
unreasonably delayed or withheld.
6. Successors and Assigns
The benefits of this Agreement shall, together with the separate
Indemnification Agreement, inure to the benefit of respective
successors and permitted assigns of the parties hereto and of the
indemnified parties hereunder and thereunder and their respective
successors, permitted assigns and representatives, and the obligations
and liabilities assumed in this Agreement by the parties hereto shall
be binding upon their respective successors and assigns.
7. Other Terms and Conditions
The Company represents and warrants to PIM that this Agreement does not
breach, or conflict with, or constitute a default under, any other
agreement, contact, arrangement or understanding, oral or written, to
which the Company is a party or by which its assets are bound.
8. Brokers
The Company represents and warrants to PIM that, other than Xxxxxxx
Sachs, there are no brokers, representatives or other persons that have
an interest in compensation by reason of any activity of the Company in
connection with any Transaction contemplated herein.
9. Governing Law; Waiver of Jury Trial
(a) Neither this Agreement nor the Indemnification
Agreement referred to above may be amended or
modified except in writing signed by the party
against which enforcement is sought and shall be
governed by and construed in accordance with the laws
of the State of New Jersey without regard to
principles of conflicts of laws.
(b) EACH OF PIM AND THE COMPANY (ON ITS OWN BEHALF AND,
TO THE EXTENT PERMITTED BY APPLICABLE LAW, ON BEHALF
OF ITS OFFICERS, DIRECTORS, SHAREHOLDERS OR MEMBERS)
WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION,
CLAIM, SUIT, PROCEEDING OR COUNTERCLAIM (WHETHER
BASED UPON CONTRACT, TORT OR OTHERWISE) RELATED TO OR
ARISING OUT OF THE ENGAGEMENT OF PIMS PURSUANT TO, OR
THE PERFORMANCE BY PIMS OF, THE SERVICES CONTEMPLATED
BY, THIS AGREEMENT.
10. Authority
The undersigned represents that his execution and delivery of this
Agreement and the Indemnification Agreement on behalf of the Company
are duly authorized by all necessary corporate action.
11. Term of Engagement
PIM's engagement hereunder will commence upon the execution by the
Company of this Agreement and will expire upon the consummation of a
Transaction.
12. Complete Agreement; Counterparts
This Ageement and the Indemnification Agreement contain the complete
agreement of the parties with respect to the subject matter contained
herein and supersedes any and all previous agreements, if any, entered
into between the parties, pertaining to the services to be provided by
PIM to the Company described herein. There are no covenants, promises,
agreement, representations, inducements, conditions or understandings,
either oral or written, between the Company and PIM which pertain to
such services other than those set forth in this Agreement and the
Indemnification Agreement.
This Agreement may be executed in one or more counterparts, all of
which shall be considered one and the same agreement and shall become
effective when one or more of such counterparts have been signed by
each of the parties and delivered to each of the other parties.
PIM is delighted to accept this engagement and looks forward to working
with you on this assignment. Please confirm that the foregoing correctly sets
forth our agreement by signing the enclosed duplicate of this letter in the
space provided and returning it, whereupon this letter shall constitute a
binding agreement as of the date first above written.
PRUDENTIAL INVESTMENT MANAGEMENT, INC.,
By: _________________________________
Name:
Title:
AGREED TO AND ACCEPTED:
STRATEGIC HOTEL CAPITAL, LLC
By: __________________________________
Name:
Title:
SCHEDULE I
ADVISORY SERVICES
o Review, in consultation with the Company and Xxxxxxx Xxxxx, a study and
analysis of the business operations, financial condition and prospects of
the Company;
o Review with the Company and Xxxxxxx Sachs an analysis of the real estate
capital markets;
o Review with the Company and Xxxxxxx Xxxxx its financial plans and analyze
its strategic plans and business alternatives;
o Continue to update, as appropriate, and maintain its knowledge of the
Company's business, operations, financial condition and prospects during
the period of this engagement;
o Make PIM staff available to meet with the Company's Board of Directors as
necessary to discuss strategic alternatives and their financial
implications; and
o Advise and assist the Company on all aspects of its contemplated plan to
consummate an Initial Public Offering for some its assets and restructure
the remaining assets into a private company. Advise and assist the Company
on any other plans to sell equity or more than 25% of its property assets
(based on approved re-buy values) in exchange for cash, property,
securities or other assets.
INDEMNIFICATION AGREEMENT
April __, 2004
PRUDENTIAL INVESTMENT MANAGEMENT, INC.
0 Xxxxxx Xxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Ladies and Gentlemen:
In connection with the engagement agreement, dated the date hereof,
between Prudential Investment Management, Inc. ("PIM") and Strategic Hotel
Capital, LLC (the "Company"), the Company agrees to indemnify and hold harmless
PIM and its affiliates, their respective directors, officers, controlling
persons (within the meaning of Section 15 of the Securities Act of 1933, as
amended, or Section 20(a) of the Securities Exchange Act of 1934, as amended),
if any, agents and employees (collectively, "Indemnified Persons" and
individually, an "Indemnified Person") from and against any and all actions,
claims, suits, proceedings, liabilities, losses, damages and expenses incurred,
joint or several (collectively, "Claims"), by any Indemnified Person (including
reasonable fees and disbursements of one counsel for PIM and the Indemnified
Persons ) which are related to or arise from PIM's engagement by the Company
under that engagement agreement dated as of the date hereof, including Claims
that relate to or arise from any actions taken or omitted to be taken (including
any untrue or alleged untrue statements made or any statements omitted or
alleged to be omitted) by the Company or which relate to or arise from
securities laws or any other law or legal theory, and will reimburse PIM and any
other Indemnified Person for all reasonable costs and expenses (including
reasonable fees and disbursements of one counsel for PIM and the Indemnified
Persons), as they are incurred, in connection with investigating, preparing for,
providing depositions for, testifying in or defending any such action or claim,
formal or informal, investigation, inquiry or other proceeding, whether or not
in connection with pending or threatened litigation, whether or not PIM or any
Indemnified Person is named as a party thereto and whether or not any liability
results therefrom, in each case related to or arising from the foregoing
(collectively, "Costs"). Notwithstanding the foregoing, the Company will not,
however, be responsible for any Claims or Costs which are found in a final
judgment by a court of competent jurisdiction (not subject to further appeal) to
have resulted directly and primarily from PIM and/or an Indemnified Person's
gross negligence or willful misconduct.
The Company agrees that neither PIM nor any other Indemnified Person
shall have any liability to the Company for or in connection with such
engagement except liability for Claims and/or Costs which are found in a final
judgment by a court of competent jurisdiction (not subject to further appeal) to
have resulted directly and primarily from PIM's and/or an Indemnified Person's
gross negligence or willful misconduct. Promptly after receipt by an Indemnified
Person of notice of any Claim or the commencement of any action that could give
rise to Costs, such Indemnified Person will, if a Claim in respect thereof is to
be made against the Company under this Indemnification Agreement, notify the
Company thereof; but the omission so to notify the Company will not relieve the
Company from any liability which the Company may have to any Indemnified Person
otherwise. In case any such action is brought against any Indemnified Person and
it notifies the Company of the commencement thereof, the Company will be
entitled to participate therein and to assume the defense thereof, with counsel
satisfactory to the Company and the Indemnified Person (who shall not, except
with the consent of the Indemnified Person, be counsel to the Indemnified
Person), and after notice from the Company to such Indemnified Person of its
election so to assume the defense thereof, the Company will not be liable to
such Indemnified Person under this section for any legal or other expenses
subsequently incurred by such Indemnified Person in connection with the defense
thereof other than reasonable costs of investigation. The Company shall not,
without the prior written consent of the Indemnified Person, effect any
settlement of any pending or threatened action in respect of which any
Indemnified Person is or could have been a party and indemnity could have been
sought hereunder by such Indemnified Person unless such settlement includes an
unconditional release of such Indemnified Person from all liability on any
claims that are the subject matter of such action. An Indemnified Person shall
not be required to give such prior written consent with respect to, and without
such consent the Company shall not enter into, any such settlement or compromise
that imposes any material obligation on the Indemnified Person or any other
Indemnified Person or contains any admission of culpability on the part of PIM
or any Indemnified Person.
In order to provide for just and equitable contribution, if a demand
for indemnification or reimbursement for Claims or Costs is made pursuant to
these provisions but is not available for any reason, then the Company, on the
one hand, and PIM, on the other hand, shall contribute to such Claims or Costs
for which such indemnification or reimbursement is held unavailable in such
proportion as is appropriate to reflect the relative benefits to the Company, on
the one hand, and PIM and/or an Indemnified Person on the other hand, in
connection with the transaction or transactions from which the Claims or Costs
in question arose. The relative benefits received by the Company, on the one
hand, and by PIM and/or an Indemnified Person, on the other hand, shall be
deemed to be in the same proportion as the value (before deducting expenses) of
the consideration received by the Company or its shareholders or comparable
equity owners, as the case may be, in connection with the transaction or
transactions from which the Claims or Costs in question arose bears to the total
fees actually received by PIM and/or an Indemnified Person in connection
therewith. If the allocation provided by the foregoing sentence is not permitted
by applicable law, then such allocation shall be based not only on such relative
benefits determined as aforesaid but also on the relative fault of the Company,
on the one hand, and PIM and/or an Indemnified Person, on the other, as well as
any other relevant equitable considerations. The relative fault of the parties
shall be determined by reference to, among other things, the parties' relative
intents, knowledge, access to information and, if applicable, whether any untrue
or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
or by PIM and/or an Indemnified Person, and any other equitable considerations
appropriate in the circumstances. Any such contribution shall be subject to the
limitation that in any event PIM's and/or an Indemnified Person's aggregate
contribution to all Claims or Costs for which contribution is available
hereunder shall not exceed the amount of fees actually received by PIM pursuant
to the particular engagement relating to the transaction or transactions from
which the Claims or Costs in question arose.
The foregoing rights to indemnity, reimbursement and contribution shall
be in addition to any rights that PIM and/or any Indemnified Person may have at
common law or otherwise. The Company hereby consents to personal jurisdiction,
service of process and venue in any court in which any Claim which is subject to
this Indemnification Agreement is brought against PIM or any Indemnified Person.
EACH OF PIM AND EACH INDEMNIFIED PERSON AND THE COMPANY (ON ITS OWN
BEHALF AND, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ON BEHALF OF ITS
SHAREHOLDERS) WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, CLAIM, SUIT,
PROCEEDING OR COUNTERCLAIM (WHETHER BASED UPON CONTRACT, TORT OR OTHERWISE)
RELATING TO OR ARISING OUT OF THIS INDEMNIFICATION AGREEMENT.
In connection with PIM's engagement of even date herewith, PIM may also
be engaged to act for the Company in one or more additional capacities. The
terms of any such engagement may be embodied in one or more separate written
agreements, and the terms of any indemnification rights shall be addressed in
such other agreements.
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The benefits of this Indemnification Agreement shall inure to the
respective successors and permitted assigns of the parties hereto and of the
Indemnified Persons hereunder and their successors, permitted assigns and
representatives, and the obligations and liabilities assumed in this
Indemnification Agreement by the parties hereto shall be binding upon their
respective successors and permitted assigns. This Indemnification Agreement may
not be assigned without the prior written consent of the nonassigning party (or
parties).
Notwithstanding anything to the contrary contained herein, no
shareholder or trustee of the Company or any of their affiliates shall have any
liability under this agreement, all such persons being third-party beneficiaries
of this sentence, entitled to enforce it in accordance with its terms.
This Indemnification Agreement may not be amended or modified except in
a writing signed by the Party hereto against which enforcement of this
Indemnification Agreement is sought and shall be governed by and construed in
accordance with the laws of the State of New Jersey, without regard to the
principles of conflicts of laws.
Very truly yours,
STRATEGIC HOTEL CAPITAL, LLC
By: _______________________________
Name:
Title:
Accepted and agreed as of the
date first above written:
PRUDENTIAL INVESTMENT MANAGEMENT, INC.
By: _______________________
Name:
Title:
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