EXHIBIT 10.11
LEASE AGREEMENT
DATED AS OF _______________, 2003
BETWEEN
[OWNER PARTNERSHIP]
AS LESSOR
AND
ASHFORD TRS CORPORATION
AS LESSEE
Lease Agreement
Ashford TRS Corporation
TABLE OF CONTENTS
ARTICLE I LEASED PROPERTY; TERM...................................................................................1
1.1 Leased Property.......................................................................................1
1.2 Term..................................................................................................2
ARTICLE II DEFINITIONS............................................................................................2
2.1 Definitions...........................................................................................2
ARTICLE III BASE RENT; PERCENTAGE RENT; ADDITIONAL CHARGES.......................................................12
3.1 Rent.................................................................................................12
3.2 Confirmation of Percentage Rent......................................................................15
3.3 Additional Charges...................................................................................15
3.4 Net Lease Provision..................................................................................16
3.5 Conversion of Property...............................................................................16
ARTICLE IV IMPOSITIONS...........................................................................................16
4.1 Payment of Impositions...............................................................................16
4.2 Notice of Impositions................................................................................17
4.3 Adjustment of Impositions............................................................................18
4.4 Utility Charges......................................................................................18
ARTICLE V NO TERMINATION; ABATEMENT..............................................................................18
5.1 No Termination, Abatement, etc.......................................................................18
5.2 Abatement Procedures.................................................................................18
ARTICLE VI PERSONAL PROPERTY; LANDLORD'S LIEN....................................................................19
6.1 Ownership of the Leased Property.....................................................................19
6.2 Lessee's Personal Property...........................................................................19
6.3 Lessor's Lien........................................................................................19
ARTICLE VII CONDITIONS; USE......................................................................................19
7.1 Condition of the Leased Property.....................................................................19
7.2 Use of the Leased Property...........................................................................20
7.3 Lessor to Grant Easements, etc.......................................................................21
ARTICLE VIII COMPLIANCE WITH APPLICABLE LAWS.....................................................................21
8.1 Compliance with Legal and Insurance Requirements, etc................................................21
8.2 Legal Requirement Covenants..........................................................................21
8.3 Environmental Covenants..............................................................................22
ARTICLE IX MAINTENANCE AND REPAIRS...............................................................................24
9.1 Maintenance and Repair...............................................................................24
9.2 Encroachments, Restrictions, Etc.....................................................................25
ARTICLE X ALTERATIONS............................................................................................25
10.1 Alterations..........................................................................................25
ARTICLE XI PROHIBITED LIENS AND ENCUMBRANCES.....................................................................25
11.1 Liens................................................................................................25
ARTICLE XII PERMITTED CONTESTS...................................................................................26
12.1 Permitted Contests...................................................................................26
ARTICLE XIII INSURANCE REQUIREMENTS..............................................................................27
13.1 General Insurance Requirements.......................................................................27
13.2 Replacement Cost.....................................................................................28
13.3 Waiver of Subrogation................................................................................28
Lease Agreement
Ashford TRS Corporation
i
13.4 Form Satisfactory, etc...............................................................................29
13.5 Increase in Limits...................................................................................29
13.6 Blanket Policy.......................................................................................29
13.7 No Separate Insurance................................................................................29
ARTICLE XIV INSURANCE PROCEEDS...................................................................................30
14.1 Insurance Proceeds...................................................................................30
14.2 Reconstruction in the Event of Damage or Destruction Covered by Insurance............................30
14.3 Reconstruction in the Event of Damage or Destruction Not Covered by Insurance........................31
14.4 Lessee's Property....................................................................................31
14.5 Abatement of Rent....................................................................................31
14.6 Damage Near End of Term..............................................................................31
14.7 Waiver...............................................................................................31
14.8 Termination Fees.....................................................................................31
ARTICLE XV CONDEMNATION; TAKING..................................................................................31
15.1 Definitions..........................................................................................31
15.2 Parties' Rights and Obligations......................................................................32
15.3 Total Taking.........................................................................................32
15.4 Allocation of Award..................................................................................32
15.5 Partial Taking.......................................................................................32
15.6 Temporary Taking.....................................................................................33
ARTICLE XVI EVENTS OF DEFAULT; REMEDIES; DAMAGES.................................................................33
16.1 Events of Default....................................................................................33
16.2 Surrender............................................................................................35
16.3 Damages..............................................................................................35
16.4 Waiver...............................................................................................36
16.5 Application of Funds.................................................................................36
ARTICLE XVII LESSOR'S RIGHT TO CURE..............................................................................36
17.1 Lessor's Right to Cure Lessee's Default..............................................................36
ARTICLE XVIII CAPITAL EXPENDITURE RESERVE........................................................................37
18.1 Capital Expenditure Reserve..........................................................................37
ARTICLE XIX REIT REQUIREMENTS....................................................................................37
19.1 REIT Requirements....................................................................................37
19.2 Lessee Officer and Employee Limitation...............................................................38
19.3 Management Agreement.................................................................................38
ARTICLE XX HOLDING OVER..........................................................................................39
20.1 Holding Over.........................................................................................39
ARTICLE XXI RISK OF LOSS.........................................................................................39
21.1 Risk of Loss.........................................................................................39
ARTICLE XXII INDEMNIFICATION.....................................................................................39
22.1 Indemnification......................................................................................39
ARTICLE XXIII SUBLETTING AND ASSIGNMENT..........................................................................40
23.1 Subletting and Assignment............................................................................40
23.2 Attornment...........................................................................................41
ARTICLE XXIV REPORTING AND CERTIFICATION REQUIREMENTS............................................................41
24.1 Officer's Certificates; Financial Statements; Budgets; Lessor's
Estoppel Certificates and Covenants..................................................................41
Lease Agreement
Ashford TRS Corporation
ii
24.2 Operating Budget.....................................................................................42
24.3 Capital Budget.......................................................................................42
ARTICLE XXV LESSOR'S DEFAULT; CURE RIGHTS........................................................................42
25.1 Lessee's Right to Cure...............................................................................42
25.2 Breach by Lessor.....................................................................................43
ARTICLE XXVI NOTICES.............................................................................................43
26.1 Notices..............................................................................................43
ARTICLE XXVII MISCELLANEOUS PROVISIONS...........................................................................43
27.1 Transfer of Licenses.................................................................................43
27.2 Early Termination Rights; Termination Fees...........................................................43
27.3 Substitution of Initial Hotel........................................................................44
27.4 Compliance with Franchise Agreement..................................................................44
27.5 Lessor's Right to Inspect............................................................................44
27.6 Conveyance by Lessor.................................................................................44
27.7 Lessor May Grant Liens...............................................................................45
27.8 Non Disturbance Agreement............................................................................45
27.9 Waiver of Presentment, etc...........................................................................45
27.10 Memorandum of Lease...............................................................................45
27.11 Usury.............................................................................................45
27.12 No Waiver.........................................................................................45
27.13 Remedies Cumulative...............................................................................45
27.14 Acceptance of Surrender...........................................................................45
27.15 No Merger of Title................................................................................46
27.16 Quiet Enjoyment...................................................................................46
27.17 Binding Effect....................................................................................46
27.18 Entire Agreement; No Offer........................................................................46
27.19 Severability......................................................................................46
27.20 Counterparts......................................................................................47
27.21 Governing Law.....................................................................................47
27.22 Recitals; Headings................................................................................47
27.23 Survival..........................................................................................47
27.24 Exhibits..........................................................................................47
LIST OF EXHIBITS
EXHIBIT "A" - Property Description
EXHIBIT "B" - Rent Components and Terms
EXHIBIT "C" - Management Agreement
Lease Agreement
Ashford TRS Corporation
iii
LEASE AGREEMENT
THIS
LEASE AGREEMENT (hereinafter called "LEASE"), is made as of the
____ day of _______________, 2003, by and between [OWNER PARTNERSHIP], a
Delaware limited partnership (hereinafter called "LESSOR"), and ASHFORD TRS
CORPORATION, a Delaware corporation (hereinafter called "LESSEE"), and provides
as follows:
WITNESSETH:
Lessor owns fee title to the Leased Property (as defined below);
Lessor desires to lease to Lessor and Lessee desires to lease from
Lessor, the Leased Property, pursuant to the terms and conditions of this Lease;
NOW, THEREFORE, intending to be legally bound, Lessor, in consideration
of the payment of rent by Lessee to Lessor, the covenants and agreements to be
performed by Lessee, and upon the terms and conditions hereinafter stated, does
hereby rent and lease unto Lessee, and Lessee does hereby rent and lease from
Lessor, the Leased Property, as follows:
ARTICLE I
LEASED PROPERTY; TERM
1.1 LEASED PROPERTY. The Leased Property is comprised of Lessor's
interest in that certain [EMBASSY SUITES] [RADISSON] hotel located at
__________________ in ________ County, ______ and known as the "____________,"
as follows (collectively, "LEASED PROPERTY"):
(a) the land and/or ground leasehold interests described in EXHIBIT "A"
attached hereto and by reference incorporated herein (the "LAND");
(b) all buildings, structures and other improvements of every kind
including, but not limited to, alleyways and connecting tunnels, sidewalks,
utility pipes, conduits and lines (on-site and offsite), parking areas and
roadways appurtenant to such buildings and structures presently situated upon
the Land (collectively, the "IMPROVEMENTS");
(c) all easements, rights and appurtenances relating to the Land and
the Improvements;
(d) all equipment, machinery, fixtures, and other items of property
required or incidental to the use of the Improvements as a hotel, including all
components thereof, now and hereafter permanently affixed to or incorporated
into the Improvements, including, without limitation, all furnaces, boilers,
heaters, electrical equipment, heating, plumbing, lighting, ventilating,
refrigerating, incineration, air and water pollution control, waste disposal,
air-cooling and air-conditioning systems and apparatus, sprinkler systems and
fire and theft protection equipment, all of which to the greatest extent
permitted by law are hereby deemed by the parties hereto to constitute real
estate, together with all replacements, modifications, alterations and additions
thereto (collectively, the "FIXTURES");
Lease Agreement
Ashford TRS Corporation
(e) all furniture and furnishings and all other items of personal
property (excluding Inventory and personal property owned by Lessee) located on,
and used in connection with, the operation of the Improvements as a hotel,
together with all replacements, modifications, alterations and additions
thereto; and
(f) all existing occupancy leases within the Leased Property (including
any security deposits or collateral held by Lessor pursuant thereto).
THE LEASED PROPERTY IS DEMISED IN ITS PRESENT CONDITION WITHOUT
REPRESENTATION OR WARRANTY (EXPRESSED OR IMPLIED) BY LESSOR AND SUBJECT TO THE
RIGHTS OF PARTIES IN POSSESSION, AND TO THE EXISTING STATE OF TITLE INCLUDING
ALL COVENANTS, CONDITIONS, RESTRICTIONS, EASEMENTS AND OTHER MATTERS OF RECORD
INCLUDING ALL APPLICABLE LEGAL REQUIREMENTS, THE LIEN OF FINANCING INSTRUMENTS,
MORTGAGES, DEEDS OF TRUST AND SECURITY DEEDS, AND INCLUDING OTHER MATTERS WHICH
WOULD BE DISCLOSED BY AN INSPECTION OF THE LEASED PROPERTY OR BY AN ACCURATE
SURVEY THEREOF.
1.2 TERM. The term of the Lease (the "TERM") shall commence on
_______________, 2003 (the "COMMENCEMENT DATE") and shall end on
_______________, 2008 (the "EXPIRATION DATE"), unless sooner terminated in
accordance with the provisions hereof.
ARTICLE II
DEFINITIONS
2.1 DEFINITIONS. For all purposes of this Lease, used in this Lease and
not otherwise defined, shall except as otherwise expressly provided or unless
the context otherwise requires, (a) the terms used in this Lease and not
otherwise defined, shall have the meanings assigned to them in this ARTICLE II
and include the plural as well as the singular, (b) all accounting terms not
otherwise defined herein have the meanings assigned to them in accordance with
generally accepted accounting principles as are at the time applicable, (c) all
references in this Lease to designated "Articles," "Sections" and other
subparagraphs are to the designated Articles, Sections and other subparagraphs
of this Lease and (d) the words "herein," "hereof" and "hereunder" and other
words of similar import refer to this Lease as a whole and not to any particular
Article, Section or other subparagraphs.
ADDITIONAL CHARGES: As defined in SECTION 3.3.
AFFILIATE: As used in this Lease the term "AFFILIATE" of a person shall
mean (a) any person that, directly or indirectly, controls or is controlled by
or is under common control with such person, (b) any other person that owns,
beneficially, directly or indirectly, ten percent or more of the outstanding
capital stock, shares or equity interests of such person, or (c) any officer,
director, employee, partner or trustee of such person or any person controlling,
controlled by or under common control with such person (excluding trustees and
persons serving in similar capacities who are not otherwise an Affiliate of such
person). The term "PERSON" as used within
Lease Agreement
Ashford TRS Corporation
2
this definition means and includes individuals, corporations, general and
limited partnerships, stock companies or associations, joint ventures,
associations, companies, trusts, banks, trust companies, land trusts, business
trusts, or other entities and governments and agencies and political
subdivisions thereof. For the purposes of this definition, "CONTROL" (including
the correlative meanings of the terms "CONTROLLED BY" and "UNDER COMMON CONTROL
WITH"), as used with respect to any person, shall mean the possession, directly
or indirectly, of the power to direct or cause the direction of the management
and policies of such person, through the ownership of voting securities,
partnership interests or other equity interests.
AHT: Ashford Hospitality Trust, Inc., a Maryland corporation.
AWARD: As defined in SECTION 15.1(c).
BASE RATE: The rate of interest announced publicly by Citibank, N.A.,
in New York, New York, from time to time, as such bank's base rate. If no such
rate is announced or becomes discontinued, then such other rate as Lessor may
reasonably designate.
BASE RENT: As defined in ARTICLE III.
BEVERAGE SALES: Shall mean gross revenue from (i) the sale of wine,
beer, liquor or other alcoholic beverages, whether sold in the bar or lounge,
delivered to a guest room, sold at meetings or banquets or at any other location
at the Leased Property, or (ii) non-alcoholic beverages sold in the bar or
lounge. Such revenues shall not include the following:
(a) Any gratuity or service charge added to a customer's xxxx or
statement in lieu of a gratuity which is paid to an employee;
(b) Any revenues that are subsequently credited, rebated or
refunded in the ordinary course of business; and
(c) Sales taxes or taxes of any other kind imposed on the sale of
alcoholic or other beverages.
BUSINESS DAY: Each Monday, Tuesday, Wednesday, Thursday and Friday that
is not a day on which national banks in the City of Dallas,
Texas, or in the
municipality wherein the Leased Property is located are closed.
CAPITAL BUDGET: As defined in SECTION 24.3.
CAPITAL EXPENDITURES: Amounts expended to pay the costs of replacement
and renewals to the FF&E of the Leased Property and Capital Improvements.
CAPITAL EXPENDITURE RESERVE: As defined in SECTION 18.1(a).
CAPITAL IMPROVEMENTS: Certain non-routine repairs and maintenance to
the building(s) of the Leased Property which are normally capitalized under
generally accepted accounting principles such as, but not limited to, exterior
and interior repainting, resurfacing, building walls, floors, roofs and parking
areas, and replacing folding walls and the like, and major repairs,
Lease Agreement
Ashford TRS Corporation
3
alterations, improvements, renewals or replacement to the building structure of
the Leased Property or to its mechanical, electrical, heating, ventilating, air
conditioning, plumbing or vertical transportation systems.
CERCLA: The Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended.
CLAIMS: As defined in SECTION 12.1.
CODE: The Internal Revenue Code of 1986, as amended.
COMMENCEMENT DATE: The date set forth in SECTION 1.2 as the
commencement date with respect to the Facility.
CONDEMNATION: As defined in SECTION 15.1(a).
CONDEMNOR: As defined in SECTION 15.1(d).
CONSUMER PRICE INDEX: Consumer Price Index, published for Urban
Consumers for the U.S. City Average for all Items, 1982-84 = 100 issued by the
Bureau of Labor Statistics of the United States Department of Labor, as
published in The Wall Street Journal.
CPI ADJUSTMENT YEAR: The calendar year next following the year in which
the Commencement Date occurs, if the Commencement Date occurs between January 1
and June 30, or the second calendar year following the year in which the
Commencement Date occurs, if the Commencement Date occurs between July 1 and
December 31.
DATE OF TAKING: As defined in SECTION 15.1(b).
ENCUMBRANCE: As defined in SECTION 27.7.
ELIGIBLE INDEPENDENT CONTRACTOR: A management company that meets the
following requirements:
(a) The management company does not permit wagering activities to
be conducted at or in connection with the Facility.
(b) The management company does not own, directly or indirectly
(within the meaning of Section 856(d)(5) of the Code), more
than 35% of the outstanding stock of AHT.
(c) No more than 35% of its partnership interest (in its assets or
net profits) is owned, directly or indirectly (within the
meaning of Section 856(d)(5) of the Code), by one or more
Persons owning 35% (within the meaning of Section 856(d) of
the Code) or more of the outstanding stock of AHT.
(d) Neither AHT, the Lessor, nor the Lessee, derives any income
from the management company or any of its subsidiaries.
Lease Agreement
Ashford TRS Corporation
4
(e) At the time that the management company enters into a
management agreement with the Lessee to operate the Leased
Property, the management company (or any "RELATED PERSON"
within the meaning of Section 856(d)(9)(F) of the Code) is
actively engaged in the trade or business of operating
"qualified lodging facilities" within the meaning of Section
856(d)(9)(D) of the Code for any Person who is not a "related
person" within the meaning of Section 856(d)(9)(F) of the Code
with respect to AHT or the Lessee (an "UNRELATED PERSON"). For
purposes of determining whether the requirement of this
paragraph (e) has been met, a management company shall be
treated as being "actively engaged" in such a trade or
business if the management company (i) derives at least 10% of
both its profits and revenue from operating "qualified lodging
facilities" within the meaning of Section 856(d)(9)(D) of the
Code for Unrelated Persons or (ii) complies with any
regulations or other administrative guidance under Section
856(d)(9) of the Code that provide a "safe harbor" rule with
respect to the amount of hotel management business with
Unrelated Persons that is necessary to qualify as an "eligible
independent contractor" within the meaning of such Code
section.
A "qualified lodging facility" is defined in Section
856(d)(9)(D) of the Code and means a "Lodging Facility"
(defined below), unless wagering activities are conducted at
or in connection with such facility by any person who is
engaged in the business of accepting xxxxxx and who is fully
authorized to engage in such business at or in connection with
such facility. A "LODGING FACILITY" is a hotel, motel or other
establishment more than one-half of the dwelling units in
which are used on a transient basis, and includes customary
amenities and facilities operated as party of, or associated
with, the lodging facility so long as such amenities and
facilities are customary for other properties of a comparable
size and class owned by other owners unrelated to AHT.
ENVIRONMENTAL AUTHORITY: Any department, agency or other body or
component of any Government that exercises any form of jurisdiction or authority
under any Environmental Law.
ENVIRONMENTAL AUTHORIZATION: Any license, permit, order, approval,
consent, notice, registration, filing or other form of permission or
authorization required under any Environmental Law.
ENVIRONMENTAL LAWS: All applicable federal, state, local and foreign
laws and regulations relating to pollution of the environment (including without
limitation, ambient air, surface water, ground water, land surface or subsurface
strata), including, without limitation, laws and regulations relating to
emissions, discharges, a Release or threatened Release of Hazardous Materials or
otherwise relating to the manufacture, processing, distribution, use, treatment,
storage, disposal, transport or handling of Hazardous Materials. Environmental
Laws include but are not limited to CERCLA, FIFRA, RCRA, XXXX and TSCA.
ENVIRONMENTAL LIABILITIES: Any and all obligations to pay the amount of
any judgment or settlement, the cost of complying with any settlement, judgment
or order for injunctive or other equitable relief, the cost of compliance or
corrective action in response to any notice, demand or request from an
Environmental Authority, the amount of any civil penalty or criminal
Lease Agreement
Ashford TRS Corporation
5
fine, and any court costs and reasonable amounts for attorney's fees, fees for
witnesses and experts, and costs of investigation and preparation for defense of
any claim or any Proceeding, regardless of whether such Proceeding is
threatened, pending or completed, that may be or have been asserted against or
imposed upon Lessor, Lessee, any Predecessor, the Leased Property or any
property used therein and arising out of:
(a) Failure of Lessee, Lessor, any Predecessor or the Leased
Property to comply at any time with all Environmental Laws;
(b) Presence of any Hazardous Materials on, in, under, at or in
any way affecting the Leased Property;
(c) A Release at any time of any Hazardous Materials on, in, at,
under or in any way affecting the Leased Property;
(d) Identification of Lessee, Lessor or any Predecessor as a
potentially responsible party under CERCLA or under any
Environmental Law similar to CERCLA;
(e) Presence at any time of any above-ground and/or underground
storage tanks, as defined in RCRA or in any applicable
Environmental Law on, in, at or under the Leased Property or
any adjacent site or facility; or
(f) Any and all claims for injury or damage to persons or property
arising out of exposure to Hazardous Materials originating or
located at the Leased Property, or resulting from operation
thereof or any adjoining property.
EVENT OF DEFAULT: As defined in SECTION 16.1.
EXPIRATION DATE: The date set forth in SECTION 1.2 as the expiration
date with respect to the Facility.
FACILITY: The hotel and/or other facility offering lodging and other
services or amenities being operated or proposed to be operated on the Leased
Property.
FF&E: Shall mean all Fixtures, furniture, furnishings and equipment.
FIFRA: The Federal Insecticide, Fungicide, and Rodenticide Act, as
amended.
FIRST ANNUAL ROOM REVENUES BREAK POINT: The amount of Room Revenues for
the applicable Lease Year corresponding to such term as set forth on EXHIBIT
"B".
FIRST TIER ROOM REVENUE PERCENTAGE: The percentage corresponding to
such term as set forth on EXHIBIT "B".
FISCAL YEAR: The 12-month period from January 1 to December 31.
FIXTURES: As defined in SECTION 1.1(d).
Lease Agreement
Ashford TRS Corporation
6
FOOD SALES: Shall mean gross revenue from the sale, for on-site
consumption, of food and non-alcohol beverages sold at the Leased Property,
including in respect to guest rooms, banquet rooms, meeting rooms and other
similar rooms. Such revenues shall not include the following:
(a) Vending machine sales;
(b) Any gratuities or service charges added to a customer's xxxx
or statement in lieu of a gratuity which is paid to an
employee;
(c) Non-alcoholic beverages sold from the bar or lounge;
(d) Sales taxes or taxes of any other kind imposed on the sale of
food or non-alcoholic beverages; and
(e) Any revenues that are subsequently credited, refunded or
rebated in the ordinary course of business.
FRANCHISE AGREEMENT: Any franchise license agreement with a national
franchisor under which the Facility is operated.
FULL REPLACEMENT COST: As defined in SECTION 13.2.
GAAP: GAAP shall mean, as of any date of determination, accounting
principles (a) set forth as generally accepted in then currently effective
Opinions of the Accounting Principles Board of the American Institute of
Certified Public Accountants, (b) set forth as generally accepted in then
currently effective Statements of the Financial Accounting Standards Board or
(c) that are then approved by such other entity as may be approved by a
significant segment of the accounting profession in the United States of
America. The term "consistently applied," as used in connection therewith, means
that the accounting principles applied are consistent in all material respects
to those applied at prior dates or for prior periods.
GOVERNMENT: The United States of America, any state, district or
territory thereof, any foreign nation, any state, district, department,
territory or other political division thereof, or any political subdivision of
any of the foregoing.
GROSS REVENUES: shall mean all revenues and receipts of every kind
received from operating the Facility and all departments and parts thereof,
including but not limited to, income from both cash and credit transactions,
income from the rental of rooms, stores, offices, banquet rooms, conference
rooms, exhibits or sale space of every kind, license, lease and concession fees
and rentals (not including gross receipts of licensees, lessors and
concessionaires), vending machines, health club membership fees, food and
beverage sales, wholesale and retail sales of merchandise, service charges, and
proceeds, if any, from business interruption or other loss of income insurance;
provided, however, Gross Revenues shall not include (a) gratuities to the
Facility' employees, (b) federal, state or municipal excise, sales or use taxes
or similar impositions collected directly from customers, patrons or guests or
included as part of the sales prices of any goods or services paid over to
federal, state or municipal governments, (c) property
Lease Agreement
Ashford TRS Corporation
7
insurance or condemnation proceeds (excluding proceeds from business
interruption coverage), (d) proceeds from the sale or refinance of assets other
than sales in the ordinary course of business, (e) funds furnished by the
Lessor, (f) judgments and awards, (g) the amount of all credits, rebates or
refunds (which shall be deductions from Gross Revenues) to customers, patrons or
guests, (h) the value of complimentary rooms, food and beverages, (i) interest
income, (j) lease security deposits, and (k) items constituting "allowances"
under the Uniform System.
HAZARDOUS MATERIALS: All chemicals, pollutants, contaminants, wastes
and toxic substances, including without limitation:
(a) Solid or hazardous waste, as defined in RCRA or in any
Environmental Law;
(b) Hazardous substances, as defined in CERCLA or in any
Environmental Law;
(c) Toxic substances, as defined in TSCA or in any Environmental
Law;
(d) Insecticides, fungicides, or rodenticides, as defined in FIFRA
or in any Environmental Law; and
(e) Gasoline or any other petroleum product or byproduct,
polychlorinated biphenols, asbestos and urea formaldehyde.
IMPOSITIONS: Collectively, all taxes (including, without limitation,
all ad valorem, sales and use, single business, gross receipts, transaction
privilege, rent or similar taxes as the same relate to or are imposed upon
Lessee or its business conducted upon the Leased Property), assessments
(including, without limitation, all assessments for public improvements or
benefit, whether or not commenced or completed prior to the date hereof and
whether or not to be completed within the Term), ground rents, water, sewer or
other rents and charges, excises, tax inspection, authorization and similar fees
and all other governmental charges, in each case whether general or special,
ordinary or extraordinary, or foreseen or unforeseen, of every character in
respect of the Leased Property or the business conducted thereon by Lessee
(including all interest and penalties thereon caused by any failure in payment
by Lessee), which at any time prior to, during or with respect to the Term
hereof may be assessed or imposed on or with respect to or be a lien upon (a)
Lessor's interest in the Leased Property, (b) the Leased Property, or any part
thereof or any rent therefrom or any estate, right, title or interest therein,
or (c) any occupancy, operation, use or possession of, or sales from, or
activity conducted on or in connection with the Leased Property, or the leasing
or use of the Leased Property or any part thereof by Lessee. Nothing contained
in this definition of Impositions shall be construed to require Lessee to pay
(1) any tax based on net income (whether denominated as a franchise or capital
stock or other tax) imposed on Lessor or any other person, or (2) any net
revenue tax of Lessor or any other person, or (3) any tax imposed with respect
to the sale, exchange or other disposition by Lessor of any Leased Property or
the proceeds thereof, or (4) any single business, gross receipts (other than a
tax on any rent received by Lessor from Lessee), transaction, privilege or
similar taxes as the same relate to or are imposed upon Lessor, except to the
extent that any tax, assessment, tax levy or charge that Lessee is obligated to
pay pursuant to the first sentence of this definition and that is in effect at
any time during the Term hereof is totally or
Lease Agreement
Ashford TRS Corporation
8
partially repealed, and a tax, assessment, tax levy or charge set forth in
clause (1) or (2) is levied, assessed or imposed expressly in lieu thereof.
IMPROVEMENTS: As defined in SECTION 1.1(b).
INDEMNIFIED PARTY: Either Lessee Indemnified Party or a Lessor
Indemnified Party.
INDEMNIFYING PARTY: Any party obligated to indemnify an Indemnified
Party pursuant to SECTIONS 8.3 OR 22.1.
INSURANCE REQUIREMENTS: All terms of any insurance policy required by
this Lease and all requirements of the issuer of any such policy.
INVENTORY: All "INVENTORIES OF MERCHANDISE" and "INVENTORIES OF
SUPPLIES" as defined in the Uniform System and including any property of the
type described in Section 1221(1) of the Code.
LAND: As defined in SECTION 1.1(a).
LEASE: This Lease Agreement.
LEASE YEAR: Any 12-month period from January 1 through December 31
during the Term, or any shorter period at the beginning or end of the Term.
LEASED PROPERTY: As defined in SECTION 1.1.
LEGAL REQUIREMENTS: All federal, state, county, municipal and other
governmental statutes, laws, rules, orders, regulations, ordinances, judgments,
decrees and injunctions affecting either the Leased Property or the maintenance,
construction, use or alteration thereof (whether by Lessee or otherwise),
whether or not hereafter enacted and in force, including (a) all laws, rules or
regulations pertaining to the environment, occupational health and safety and
public health, safety or welfare, and (b) any laws, rules or regulations that
may (1) require repairs, modifications or alterations in or to the Leased
Property or (2) in any way adversely affect the use and enjoyment thereof; and
all permits, licenses and authorizations and regulations relating thereto and
all covenants, agreements, restrictions and encumbrances contained in any
instruments, either of record or known to Lessee (other than encumbrances
created by Lessor without the consent of Lessee), at any time in force affecting
the Leased Property.
LESSEE: The Lessee designated on this Lease and its respective
permitted successors and assigns.
LESSEE INDEMNIFIED PARTY: Lessee, any Affiliate of Lessee, any other
Person against whom any claim for indemnification may be asserted hereunder as a
result of a direct or indirect ownership interest (including a stockholder's
interest) in Lessee, the officers, directors, stockholders, employees, agents
and representatives of Lessee and any corporate stockholder, agent, or
representative of Lessee, and the respective heirs, personal representatives,
successors and assigns of any such officer, director, stockholder, employee,
agent or representative.
Lease Agreement
Ashford TRS Corporation
9
LESSEE'S PERSONAL PROPERTY: As defined in SECTION 6.2.
LESSOR: The Lessor designated on this Lease and its respective
successors and assigns.
LESSOR INDEMNIFIED PARTY: Lessor, any Affiliate of Lessor, including
AHT, any other Person against whom any claim for indemnification may be asserted
hereunder as a result of a direct or indirect ownership interest in Lessor, the
officers, trustees, directors, stockholders, partners, members, employees,
agents and representatives of any of the foregoing Persons and of any
stockholder, partner, member, agent, or representative of any of the foregoing
Persons, and the respective heirs, personal representatives, successors and
assigns of any such officer, trustee, director, partner, member, stockholder,
employee, agent or representative.
LICENSES: As defined in SECTION 27.1.
MANAGEMENT AGREEMENT: As defined in SECTION 19.2.
MANAGER: As defined in SECTION 19.2.
NOTICE: A notice given pursuant to ARTICLE XXVI.
OFFICER'S CERTIFICATE: A certificate of Lessee signed by the chief
financial officer or another officer authorized so to sign by the board of
directors or by-laws of Lessee, or any other person whose power and authority to
act has been authorized by delegation in writing by any such officer.
OPERATING BUDGET: As defined in SECTION 24.2.
OTHER REVENUE PERCENTAGE: The percentage corresponding to such term as
set forth on EXHIBIT "B".
OTHER REVENUES: All revenues, receipts, and income of any kind derived
directly or indirectly from or in connection with the Facility and included in
Gross Revenues, other than Room Revenues, Food Sales and Beverage Sales.
OVERDUE RATE: On any date, a rate equal to the Base Rate plus 5% per
annum, but in no event greater than the maximum rate then permitted under
applicable law.
PAYMENT DATE: Any due date for the payment of any installment of Base
Rent.
PERCENTAGE RENT: As defined in SECTION 3.1(b).
PERIOD REVENUES COMPUTATION: As defined in SECTION 3.1(b).
PERSON: Any Government, natural person, corporation, partnership or
other legal entity.
PREDECESSOR: Any Person whose liabilities arising under any
Environmental Law have or may have been retained or assumed by Lessee, either
contractually or by operation of law, relating to the Leased Property.
Lease Agreement
Ashford TRS Corporation
10
PRIMARY INTENDED USE: As defined in SECTION 7.2(b).
PROCEEDING: Any judicial action, suit or proceeding (whether civil or
criminal), any administrative proceeding (whether formal or informal), any
investigation by a governmental authority or entity (including a grand jury),
and any arbitration, mediation or other non-judicial process for dispute
resolution.
RCRA: The Resource Conservation and Recovery Act, as amended.
REAL ESTATE TAXES: All real estate taxes, including general and special
assessments, if any, which are imposed upon the Land, and any improvements
thereon.
REIT REQUIREMENTS: As defined in SECTION 19.1(a).
RELEASE: A "Release" as defined in CERCLA or in any Environmental Law,
unless such Release has been properly authorized and permitted in writing by all
applicable Environmental Authorities or is allowed by such Environmental Law
without authorizations or permits.
RENT: As defined in SECTION 3.1.
ROOM REVENUES: Shall mean gross revenue from the rental of guest rooms,
whether to individuals, groups or transients, but excluding the following:
(a) The amount of all credits, rebates or refunds to customers,
guests or patrons;
(b) All sales taxes or any other taxes imposed on the rental of
such guest rooms; and
(c) Any fees collected for amenities including, but not limited
to: telephone, laundry, Internet, movies or concessions.
XXXX: The Superfund Amendments and Reauthorization Act of 1986, as
amended.
SECOND ANNUAL ROOM REVENUES BREAK POINT: The amount of Room Revenues
for the applicable Lease Year corresponding to such term as set forth on EXHIBIT
"B".
SECOND TIER ROOM REVENUE PERCENTAGE: The percentage corresponding to
such term as set forth on EXHIBIT "B".
STATE: The State or Commonwealth of the United States in which the
Leased Property is located.
SUBSIDIARIES: One or more corporations in which Lessee owns, directly
or indirectly, more than 50% of the voting stock or control, as applicable.
TAKING: A taking or voluntary conveyance during the Term hereof of all
or part of the Leased Property, or any interest therein or right accruing
thereto or use thereof, as the result of, or in settlement of, any Condemnation
or other eminent domain proceeding affecting the Leased Property whether or not
the same shall have actually been commenced.
Lease Agreement
Ashford TRS Corporation
11
TERM: As defined in SECTION 1.2.
THIRD TIER ROOM REVENUE PERCENTAGE: The percentage corresponding to
such term as set forth on EXHIBIT "B".
TSCA: The Toxic Substances Control Act, as amended.
UNAVOIDABLE DELAY: Delays due to acts of God (including adverse weather
conditions), acts of the state or federal government in its sovereign or
contractual capacity, war, civil disturbance, riot or mob violence, terrorism,
earthquake, flood, fire or other casualty, epidemic, quarantine restriction,
labor strikes or lockout, freight embargo, or similar causes beyond the control
of the parties hereto.
UNECONOMIC FOR ITS PRIMARY INTENDED USE: A state or condition of the
Facility such that, in the good faith judgment of Lessee, reasonably exercised
and evidenced by the resolution of the board of directors or other governing
body of Lessee, the Facility cannot be operated on a commercially practicable
basis for its Primary Intended Use, taking into account, among other relevant
factors, the number of usable rooms and projected revenues, such that Lessee
intends to, and shall, complete the cessation of operations at the Leased
Facility.
UNIFORM SYSTEM: Shall mean the Uniform System of Accounts for the
Lodging Industry, 9th Revised Edition, as may be modified from time to time by
the International Association of Hospitality Accountants.
UNSUITABLE FOR ITS PRIMARY INTENDED USE: A state or condition of the
Facility such that, in the good faith judgment of Lessee, reasonably exercised
and evidenced by the resolution of the board of directors or other governing
body of Lessee, due to casualty damage or loss through Condemnation, the
Facility cannot function as an integrated hotel facility consistent with
standards applicable to a well maintained and operated hotel.
ARTICLE III
BASE RENT; PERCENTAGE RENT; ADDITIONAL CHARGES
3.1 RENT. Lessee will pay to Lessor, in lawful money of the United
States of America which shall be legal tender for the payment of public and
private debts, in immediately available funds, at Lessor's address set forth in
ARTICLE II hereof or at such other place or to such other Person, as Lessor from
time to time may designate in a Notice, the greater of the following:
(a) Base Rent: the annual amount of Base Rent set forth on EXHIBIT "B"
(the "BASE RENT"), which shall be payable one-twelfth (1/12th) monthly in
arrears on or before the first Business Day of the subsequent calendar month
beginning on the date as set forth on EXHIBIT "B"; provided, however, that Base
Rent shall be prorated as to any partial Lease Year; plus
(b) Percentage Rent: an amount of percentage rent ("PERCENTAGE RENT"),
calculated for each calendar quarter, equal to the Period Revenues Computation
through the end of such calendar quarter for the applicable Lease Year, which
amount shall be payable on or before the
Lease Agreement
Ashford TRS Corporation
12
fifteenth (15th) day of the following calendar quarter, beginning on the date as
set forth on EXHIBIT "B".
The term "PERIOD REVENUES COMPUTATION" as used herein shall mean the
amount equal to the sum of, for the applicable Lease Year, (i) an amount equal
to the First Tier Room Revenue Percentage of all "Lease Year to date" Room
Revenues up to (but not exceeding) the First Annual Room Revenues Break Point,
(ii) an amount equal to the Second Tier Room Revenue Percentage of all "Lease
Year to date" Room Revenues in excess of the First Annual Room Revenues Break
Point but not exceeding the Second Annual Room Revenues Break Point, (iii) an
amount equal to the Third Tier Room Revenue Percentage of all "Lease Year to
date" Room Revenues in excess of the Second Annual Room Revenues Break Point,
and (iv) an amount equal to the Other Revenue Percentage of all "Lease Year to
date" Other Revenues.
If the Term begins or ends in the middle of a calendar year, then the
number of calendar quarters falling within the Term during such calendar year
shall constitute a separate Lease Year. In that event, the First Annual Room
Revenues Break Point and the Second Annual Room Revenues Break Point shall be
multiplied by a fraction equal to (x) the number of calendar quarters (including
partial calendar quarters) in the Lease Year divided by (y) four.
(c) Officer's Certificates. Additionally, an Officer's Certificate in
form reasonably acceptable to Lessor shall be delivered to Lessor quarterly of
each Lease Year during the Term with each Percentage Rent payment, setting forth
the calculation of such rent payment for such quarter. Such quarterly payments
shall be as set forth in SECTION 3.1(b).
In addition, on or before January 25 of each year, commencing with
January 25 first following the end of the Fiscal Year in which the Commencement
Date occurs, Lessee shall deliver to Lessor an Officer's Certificate reasonably
acceptable to Lessor setting forth the computation of Percentage Rent accrued
and paid during the Fiscal Year that ended on the immediately preceding December
31. If the annual Percentage Rent due and payable for any Fiscal Year (as shown
in the applicable Officer's Certificate) exceeds the amount actually paid as
Percentage Rent by Lessee for such year, Lessee shall pay such excess to Lessor
at the time such certificate is delivered. If the Percentage Rent actually due
and payable for such Fiscal Year is shown by such certificate to be less than
the amount actually paid as Percentage Rent for the applicable Fiscal Year,
Lessor, at its option, shall reimburse such amount to Lessee or credit such
amount against the following months' Rent payments.
Any difference between the annual Percentage Rent due and payable for
any Fiscal Year (as shown in the applicable Officer's Certificate or as adjusted
pursuant to this SECTION 3.1(c)) and the total amount of quarterly payments for
such Fiscal Year actually paid by Lessee as Percentage Rent, whether in favor of
Lessor or Lessee, shall bear interest at the Overdue Rate, which interest shall
accrue from the close of such Fiscal Year until the amount of such difference
shall be paid or otherwise discharged. Any such interest payable to Lessor shall
be deemed to be and shall be payable as Additional Charges.
The obligation to pay Percentage Rent shall survive the expiration or
earlier termination of the Term, and a final reconciliation, taking into
account, among other relevant adjustments, any adjustments which are accrued
after such expiration or termination date but which related to
Lease Agreement
Ashford TRS Corporation
13
Percentage Rent accrued prior to such termination date, and Lessee's good faith
best estimate of the amount of any unresolved contractual allowances, shall be
made not later than two years after such expiration or termination date, but
Lessee shall advise Lessor within sixty (60) days after such expiration or
termination date of Lessee's best estimate at that time of the approximate
amount of such adjustments, which estimate shall not be binding on Lessee or
have any legal effect whatsoever.
(d) CPI Adjustments to Rent. For each Fiscal Year of the Term beginning
on or after the CPI Adjustment Year, the Base Rent then in effect, and the
threshold Room Revenues then included in the Period Revenues Computations set
forth in SECTION 3.1(b) shall be adjusted from time to time beginning in the CPI
Adjustment Year as follows:
(1) The average Consumer Price Index for the most recently ended Fiscal
Year shall be divided by the average Consumer Price Index for the immediately
preceding Fiscal Year.
(A) The new Base Rent for the then current Fiscal Year shall be the
adjusted amount obtained by multiplying the Base Rent for the immediately
preceding Fiscal Year by the quotient obtained in subparagraph (d)(1) above.
(B) The new threshold dollar amount in the Period Revenues Computations
described in SECTION 3.1(b) above for the then current Fiscal Year shall be the
product of the threshold dollar amount of Room Revenues in effect in the most
recently ended Fiscal Year and the quotient obtained in subparagraph (d)(1)
above.
By way of example, if the CPI Adjustment Year were 2002, the amount of
Base Rent and the threshold Room Revenues amounts in the Period Revenues
Computations for the Fiscal Year commencing January 1, 2003 would be adjusted to
reflect any change in the average Consumer Price Index from the Fiscal Year
ended December 31, 2001 as compared to the Fiscal Year ended December 31, 2002.
Base Rent and the threshold Room Revenues amounts in the Period Revenues
Computations for the Fiscal Year commencing January 1, 2004 would be the Base
Rent and threshold Room Revenues amounts applicable for the fiscal year ended
December 31, 2003 as further adjusted to reflect any change in the average
Consumer Price Index from December 31, 2003 as compared to December 31, 2002.
Lessor shall calculate the annual adjustments as soon as reasonably
possible after the Consumer Price Index becomes available and shall notify
Lessee in writing of the amount of the annual adjustment, together with a copy
of the computation showing the adjustment amount. Adjustments calculated as set
forth above in the Base Rent and threshold Room Revenues amounts shall be
effective on January 1 of the Fiscal Year to which such adjusted amounts apply.
If Rent is paid in any Fiscal Year prior to the determination of the amount of
any adjustment to Base Rent or the threshold Room Revenues applicable for such
Fiscal Year, payment adjustments for any shortfall in or overpayment of rent
paid shall be made with the first Base Rent payment due after the amount of the
adjustments are determined.
The "AVERAGE CONSUMER PRICE INDEX" for any period shall be the average
of the Consumer Price Index for each month during the period.
Lease Agreement
Ashford TRS Corporation
14
(2) If (i) a significant change is made in the number or nature (or
both) of items used in determining the Consumer Price Index, or (ii) the
Consumer Price Index shall be discontinued for any reason, the Bureau of Labor
Statistics shall be requested to furnish a new index comparable to the Consumer
Price Index, together with information which will make possible a conversion to
the new index in computing the adjustments to Rent hereunder. If for any reason
the Bureau of Labor Statistics does not furnish such an index and such
information, the parties will instead mutually select, accept and use such other
index or comparable statistics on the cost of living that is computed and
published by an agency of the United States or a responsible financial
periodical of recognized authority.
(e) Capital Expenditures. The amounts funded to the Capital Expenditure
Reserve shall be a credit to Rent payable hereunder.
3.2 CONFIRMATION OF PERCENTAGE RENT. Lessee shall utilize, or cause to
be utilized, an accounting system for the Leased Property in accordance with its
usual and customary practices, and in accordance with GAAP and the Uniform
System, that will accurately record all data necessary to compute Percentage
Rent, and Lessee shall retain, for at least four (4) years after the expiration
of each Fiscal Year (and in any event until the reconciliation described in
SECTION 3.1(c) for such Fiscal Year has been made), reasonably adequate records
conforming to such accounting system showing all data necessary to compute
Percentage Rent for the applicable Fiscal Years. Lessor, at its expense (except
as provided hereinbelow), shall have the right from time to time by its
accountants or representatives to audit the information that formed the basis
for the data set forth in any Officer's Certificate provided under SECTION
3.1(c) and, in connection with such audits, to examine all Lessee's records
(including supporting data, franchisor reports and sales and excise tax returns)
reasonably required to verify Percentage Rent, subject to any prohibitions or
limitations on disclosure of any such data under Legal Requirements. If any such
audit discloses a deficiency in the payment of Percentage Rent, and either
Lessee agrees with the result of such audit or the matter is otherwise
determined or compromised, Lessee shall forthwith pay to Lessor the amount of
the deficiency, as finally agreed or determined, together with interest at the
Overdue Rate from the date when said payment should have been made to the date
of payment thereof; provided, however, that as to any audit that is commenced
more than two years after the date Percentage Rent for any Fiscal Year is
reported by Lessee to Lessor, the deficiency, if any, with respect to such
Percentage Rent shall bear interest at the Overdue Rate only from the date such
determination of deficiency is made unless such deficiency is the result of
gross negligence or willful misconduct on the part of Lessee, in which case
interest at the Overdue Rate will accrue from the date such payment should have
been made to the date of payment thereof. If any such audit discloses that the
Percentage Rent actually due from Lessee for any Fiscal Year exceed those
reported and paid by Lessee by more than 3%, Lessee shall pay the cost of such
audit and examination. Any proprietary information obtained by Lessor pursuant
to the provisions of this Section shall be treated as confidential, except that
such information may be used, subject to appropriate confidentiality safeguards,
in any litigation between the parties and except further that Lessor may
disclose such information to prospective lenders. The obligations of Lessee
contained in this Section shall survive the expiration or earlier termination of
this Lease.
3.3 ADDITIONAL CHARGES. In addition to the Base Rent and Percentage
Rent, (a) Lessee also will pay and discharge as and when due and payable all
other amounts, liabilities, obligations and Impositions that Lessee assumes or
agrees to pay under this Lease, and (b) in the event of any failure on the part
of Lessee to pay any of those items referred to in clause (a) of
Lease Agreement
Ashford TRS Corporation
15
this SECTION 3.3, Lessee also will promptly pay and discharge every fine,
penalty, interest and cost that may be added for non-payment or late payment of
such items (the items referred to in clauses (a) and (b) of this SECTION 3.3
being additional rent hereunder and being referred to herein collectively as the
"ADDITIONAL CHARGES"), and Lessor shall have all legal, equitable and
contractual rights, powers and remedies provided either in this Lease or by
statute or otherwise in the case of non-payment of the Additional Charges as in
the case of non-payment of the Base Rent, including, but not limited to, the
right, but not the obligation to pay such Additional Charges on behalf of the
Lessee and to require reimbursement thereof by Lessee, together with interest
thereon at the Overdue Rate. If any installment of Base Rent, Percentage Rent or
Additional Charges (but only as to those Additional Charges that are payable
directly to Lessor) shall not be paid on its due date, Lessee will pay Lessor on
demand, as Additional Charges, a late charge (to the extent permitted by law)
computed at the Overdue Rate on the amount of such installment, from the due
date of such installment to the date of payment thereof. To the extent that
Lessee pays any Additional Charges to Lessor pursuant to any requirement of this
Lease, Lessee shall be relieved of its obligation to pay such Additional Charges
to the entity to which they would otherwise be due and Lessor shall pay same
from monies received from Lessee.
3.4 NET LEASE PROVISION. The Rent shall be paid absolutely net to
Lessor, so that this Lease shall yield to Lessor the full amount of the
installments of Base Rent, Percentage Rent and Additional Charges throughout the
Term, all as more fully set forth in ARTICLE V, but subject to any other
provisions of this Lease that expressly provide for adjustment or abatement of
Rent or other charges or expressly provide that certain expenses or maintenance
shall be paid or performed by Lessor.
3.5 CONVERSION OF PROPERTY. If, during the Term, Lessee wishes to cease
food and beverage operations or institute food and beverage operations at the
Facility (all in accordance with the requirements of any applicable Franchise
Agreement), Lessee shall give Notice of such desire to Lessor. If, during the
Term, Lessor wishes (a) Lessee to cease food and beverage operations or to
institute food and beverage operations at the Facility (all in accordance with
the requirements of any applicable Franchise Agreement), or (b) to change the
franchise affiliation of the Facility or to make substantial renovations to the
Facility, Lessor shall give Notice thereof to Lessee. Following any such notice,
Lessor and Lessee shall commence negotiations to adjust Rent to reflect the
proposed renovation or change to the operation of the Facility, each acting
reasonably and in good faith, and subject to Lessor's reasonable satisfaction
that any Rent adjustment will not adversely affect AHT's status as a real estate
investment trust under the Code. All other terms of this Lease will remain
substantially the same. During negotiations, which shall not extend beyond sixty
(60) days, Lessee shall not "convert" the Facility and Lessor shall not change
the franchise or commence substantial renovations and Lessee shall continue
fulfilling its obligations under the existing terms of this Lease. If no
agreement is reached after such 60-day period, Lessee or Lessor, as appropriate,
shall withdraw such notice and this Lease shall continue in full force.
ARTICLE IV
IMPOSITIONS
4.1 PAYMENT OF IMPOSITIONS. Subject to ARTICLE XII relating to
permitted contests, Lessee will pay, or cause to be paid, all Impositions (other
than Real Estate Taxes, which shall be
Lease Agreement
Ashford TRS Corporation
16
paid by Lessor) before any fine, penalty, interest or cost may be added for
non-payment, such payments to be made directly to the taxing or other
authorities where feasible, and will promptly furnish to Lessor copies of
official receipts or other satisfactory proof evidencing such payments. Lessee's
obligation to pay such Impositions shall be deemed absolutely fixed upon the
date such Impositions become a lien upon the Leased Property or any part
thereof. If any such Imposition may, at the option of the taxpayer, lawfully be
paid in installments (whether or not interest shall accrue on the unpaid balance
of such Imposition), Lessee may exercise the option to pay the same (and any
accrued interest on the unpaid balance of such Imposition) in installments and
in such event, shall pay such installments during the Term hereof (subject to
Lessee's right of contest pursuant to the provisions of ARTICLE XII) as the same
respectively become due and before any fine, penalty, premium, further interest
or cost may be added thereto. Lessor, at its expense, shall, to the extent
required or permitted by applicable law, prepare and file all tax returns in
respect of Lessor's net income, gross receipts, sales and use, single business,
transaction privilege, rent, ad valorem, franchise taxes, Real Estate Taxes and
taxes on its capital stock, and Lessee, at its expense, shall, to the extent
required or permitted by applicable laws and regulations, prepare and file all
other tax returns and reports in respect of any Imposition as may be required by
governmental authorities. If any refund shall be due from any taxing authority
in respect of any Imposition paid by Lessee, the same shall be paid over to or
retained by Lessee if no Event of Default shall have occurred hereunder and be
continuing. If an Event of Default shall have occurred and be continuing, any
such refund shall be paid over to or retained by Lessor. Any such funds retained
by Lessor due to an Event of Default shall be applied as provided in ARTICLE
XVI. Lessor and Lessee shall, upon request of the other, provide such data as is
maintained by the party to whom the request is made with respect to the Leased
Property as may be necessary to prepare any required returns and reports. Lessee
shall file all personal property tax returns in such jurisdictions where it is
legally required to so file. Lessor, to the extent it possesses the same, and
Lessee, to the extent it possesses the same, will provide the other party, upon
request, with cost and depreciation records necessary for filing returns for any
property so classified as personal property. Where Lessor is legally required to
file personal property tax returns, Lessor shall provide Lessee with copies of
assessment notices in sufficient time for Lessee to file a protest. Lessee may,
upon notice to Lessor, at Lessee's option and at Lessee's sole expense, protest,
appeal, or institute such other proceedings (in its or Lessor's name) as Lessee
may deem appropriate to effect a reduction of real estate or personal property
assessments for those Impositions to be paid by Lessee, and Lessor, at Lessee's
expense as aforesaid, shall fully cooperate with Lessee in such protest, appeal,
or other action. Lessee hereby agrees to indemnify, defend, and hold harmless
Lessor from and against any claims, obligations, and liabilities against or
incurred by Lessor in connection with such cooperation. Xxxxxxxx for
reimbursement of personal property taxes by Lessee to Lessor shall be
accompanied by copies of a xxxx therefor and payments thereof which identify the
personal property with respect to which such payments are made. Lessor, however,
reserves the right to effect any such protest, appeal or other action and, upon
notice to Lessee, shall control any such activity, which shall then go forward
at Lessor's sole expense. Upon such notice, Lessee, at Lessor's expense, shall
cooperate fully with such activities.
4.2 NOTICE OF IMPOSITIONS. To the extent Lessor is notified of any
Impositions, Lessor shall give prompt Notice to Lessee of such Impositions
payable by Lessee hereunder, provided that Lessor's failure to give any such
Notice shall in no way diminish Lessee's
Lease Agreement
Ashford TRS Corporation
17
obligations hereunder to pay such Impositions, but such failure shall obviate
any default hereunder for a reasonable time after Lessee receives Notice of any
Imposition which it is obligated to pay during the first taxing period
applicable thereto.
4.3 ADJUSTMENT OF IMPOSITIONS. Impositions imposed in respect of the
tax-fiscal period during which the Term terminates shall be adjusted and
prorated between Lessor and Lessee, whether or not such Imposition is imposed
before or after such termination, and Lessee's obligation to pay its prorated
share thereof after termination shall survive such termination.
4.4 UTILITY CHARGES. Lessee will be solely responsible for obtaining
and maintaining utility services to the Leased Property and will pay or cause to
be paid all charges for electricity, gas, oil, water, sewer and other utilities
used in the Leased Property during the Term.
ARTICLE V
NO TERMINATION; ABATEMENT
5.1 NO TERMINATION, ABATEMENT, ETC. Except as otherwise specifically
provided in this Lease, Lessee, to the extent permitted by law, shall remain
bound by this Lease in accordance with its terms and shall neither take any
action without the written consent of Lessor to modify, surrender or terminate
the same, nor seek nor be entitled to any abatement, deduction, deferment or
reduction of the Rent, or setoff against the Rent, nor shall the obligations of
Lessee be otherwise affected by reason of (a) any damage to, or destruction of,
any Leased Property or any portion thereof from whatever cause or any Taking of
the Leased Property or any portion thereof, (b) the lawful or unlawful
prohibition of, or restriction upon, Lessee's use of the Leased Property, or any
portion thereof, or the interference with such use by any Person, corporation,
partnership or other entity, or by reason of eviction by paramount title, (c)
any claim which Lessee has or might have against Lessor by reason of any default
or breach of any warranty by Lessor under this Lease or any other agreement
between Lessor and Lessee, or to which Lessor and Lessee are parties, (d) any
bankruptcy, insolvency, reorganization, composition, readjustment, liquidation,
dissolution, winding up or other proceedings affecting Lessor or any assignee or
transferee of Lessor, or (e) for any other cause whether similar or dissimilar
to any of the foregoing other than a discharge of Lessee from any such
obligations as a matter of law. Lessee hereby specifically waives all rights,
arising from any occurrence whatsoever, which may now or hereafter be conferred
upon it by law to (1) modify, surrender or terminate this Lease or quit or
surrender the Leased Property or any portion thereof, or (2) entitle Lessee to
any abatement, reduction, suspension or deferment of the Rent or other sums
payable by Lessee hereunder, except as otherwise specifically provided in this
Lease. The obligations of Lessee hereunder shall be separate and independent
covenants and agreements and the Rent and all other sums payable by Lessee
hereunder shall continue to be payable in all events unless the obligations to
pay the same shall be terminated pursuant to the express provisions of this
Lease or by termination of this Lease other than by reason of an Event of
Default.
5.2 ABATEMENT PROCEDURES. In the event of a partial Taking as described
in SECTION 15.5, the Lease shall not terminate, but the Base Rent shall be
abated in the manner and to the extent that is fair, just and equitable to both
Lessee and Lessor, taking into consideration, among other relevant factors, the
number of usable rooms, the amount of square footage, or the revenues affected
by such partial Taking. If Lessor and Lessee are unable to agree upon the amount
of
Lease Agreement
Ashford TRS Corporation
18
such abatement within thirty (30) days after such partial Taking, the matter may
be submitted by either party to a court of competent jurisdiction for
resolution.
ARTICLE VI
PERSONAL PROPERTY; LANDLORD'S LIEN
6.1 OWNERSHIP OF THE LEASED PROPERTY. Lessee acknowledges that the
Leased Property is the property of Lessor and that Lessee has only the right to
the possession and use of the Leased Property upon the terms and conditions of
this Lease.
6.2 LESSEE'S PERSONAL PROPERTY. At all times during the Term, Lessee
will maintain Inventory as is required to operate the Leased Property in the
manner contemplated by this Lease. Lessee may (and shall as provided
hereinbelow), at its expense, install, affix or assemble or place on any parcels
of the Land or in any of the Improvements, any items of personal property
(including Inventory) owned by Lessee (the "LESSEE'S PERSONAL PROPERTY"). Lessee
may, subject to the conditions set forth herein, remove any of Lessee's Personal
Property upon the expiration or any prior termination of the Term. All of
Lessee's Personal Property, other than Inventory, not removed by Lessee within
ten days following the expiration or earlier termination of the Term shall be
considered abandoned by Lessee and may be appropriated, sold, destroyed or
otherwise disposed of by Lessor without first giving Notice thereof to Lessee,
without any payment to Lessee and without any obligation to account therefor.
Lessee will, at its expense, restore the Leased Property to the condition
required by SECTION 9.1(d), including repair of all damage to the Leased
Property caused by the removal of Lessee's Personal Property, whether effected
by Lessee or Lessor.
6.3 LESSOR'S LIEN. To the fullest extent permitted by applicable law,
Lessor is granted a lien and security interest on all of Lessee's Personal
Property now or hereinafter placed in or upon the Leased Property, and such lien
and security interest shall remain attached to Lessee's Personal Property until
payment in full of all Rent and satisfaction of all of Lessee's obligations
hereunder; provided, however, Lessor shall subordinate its lien and security
interest to that of any non-Affiliate of Lessee which finances such Lessee's
Personal Property or any non-Affiliate conditional seller of such Lessee's
Personal Property, the terms and conditions of such subordination to be
satisfactory to Lessor in the exercise of reasonable discretion. Lessee shall,
upon the request of Lessor, execute such financing statements or other documents
or instruments reasonably requested by Lessor to perfect the lien and security
interests herein granted.
ARTICLE VII
CONDITIONS; USE
7.1 CONDITION OF THE LEASED PROPERTY. Lessee acknowledges receipt and
delivery of possession of the Leased Property. Lessee has examined and otherwise
has knowledge of the condition of the Leased Property and has found the same to
be satisfactory for its purposes hereunder. LESSEE IS LEASING THE LEASED
PROPERTY "AS IS" IN ITS PRESENT CONDITION. LESSEE WAIVES ANY CLAIM OR ACTION
AGAINST LESSOR IN RESPECT OF THE CONDITION OF THE LEASED PROPERTY. LESSOR MAKES
NO WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, IN RESPECT OF
Lease Agreement
Ashford TRS Corporation
19
THE LEASED PROPERTY, OR ANY PART THEREOF, EITHER AS TO ITS FITNESS FOR USE,
DESIGN OR CONDITION FOR ANY PARTICULAR USE OR PURPOSE OR OTHERWISE, AS TO THE
QUALITY OF THE MATERIAL OR WORKMANSHIP THEREIN, LATENT OR PATENT, IT BEING
AGREED THAT ALL SUCH RISKS ARE TO BE BORNE BY LESSEE. LESSEE ACKNOWLEDGES THAT
THE LEASED PROPERTY HAS BEEN INSPECTED BY LESSEE AND IS SATISFACTORY TO IT.
Provided, however, to the extent permitted by law, Lessor hereby assigns to
Lessee all of Lessor's rights to proceed against any predecessor in title other
than Lessee for breaches of warranties or representations or for defects in the
Leased Property. Lessor shall fully cooperate with Lessee in the prosecution of
any such claim, in Lessor's or Lessee's name, all at Lessee's sole cost and
expense. Lessee hereby agrees to indemnify, defend and hold harmless Lessor from
and against any claims, obligations and liabilities against or incurred by
Lessor in connection with such cooperation.
7.2 USE OF THE LEASED PROPERTY.
(a) Lessee covenants that it will proceed with all due diligence and
will exercise its best efforts to obtain and to maintain all approvals needed to
use and operate the Leased Property and the Facility under applicable local,
state and federal law.
(b) Lessee shall use or cause to be used the Leased Property only as a
hotel facility, and for such other uses as may be necessary or incidental to
such use or such other use as otherwise approved by Lessor (the "PRIMARY
INTENDED USE"). Lessee shall not use the Leased Property or any portion thereof
for any other use without the prior written consent of Lessor, which consent may
be granted, denied or conditioned in Lessor's sole discretion. No use shall be
made or permitted to be made of the Leased Property, and no acts shall be done,
which will cause the cancellation or increase the premium of any insurance
policy covering the Leased Property or any part thereof (unless another adequate
policy satisfactory to Lessor is available and Lessee pays any premium
increase), nor shall Lessee sell or permit to be kept, used or sold in or about
the Leased Property any article which may be prohibited by law or fire
underwriter's regulations. Lessee shall, at its sole cost, comply with all of
the requirements pertaining to the Leased Property of any insurance board,
association, organization or company necessary for the maintenance of insurance,
as herein provided, covering the Leased Property and Lessee's Personal Property.
(c) Subject to the provisions of ARTICLES XIV, XV, XXI and XXII, Lessee
covenants and agrees that during the Term it will (1) operate or cause to
operate continuously the Leased Property as a hotel facility, (2) keep in full
force and effect and comply with all the provisions of the Franchise Agreement,
(3) not terminate or amend the Franchise Agreement without the consent of
Lessor, (4) maintain appropriate certifications and licenses for such use and
(5) will seek to maximize the gross revenues generated therefrom consistent with
sound business practices.
(d) Lessee shall not commit or suffer to be committed any waste on the
Leased Property, or in the Facility, nor shall Lessee cause or permit any
nuisance thereon.
Lease Agreement
Ashford TRS Corporation
20
(e) Lessee shall neither suffer nor permit the Leased Property or any
portion thereof, or Lessee's Personal Property, to be used in such a manner as
(1) might reasonably tend to impair Lessor's (or Lessee's, as the case may be)
title thereto or to any portion thereof, or (2) may reasonably make possible a
claim or claims of adverse usage or adverse possession by the public, as such,
or of implied dedication of the Leased Property or any portion thereof, except
as necessary in the ordinary and prudent operation of the Facility on the Leased
Property.
7.3 LESSOR TO GRANT EASEMENTS, ETC. Lessor will, from time to time, so
long as no Event of Default has occurred and is continuing, at the request of
Lessee and at Lessee's cost and expense (but subject to the approval of Lessor,
which approval shall not be unreasonably withheld or delayed), (a) grant
easements and other rights in the nature of easements with respect to the Leased
Property to third parties, (b) release existing easements or other rights in the
nature of easements which are for the benefit of the Leased Property, (c)
dedicate or transfer unimproved portions of the Leased Property for road,
highway or other public purposes, (d) execute petitions to have the Leased
Property annexed to any municipal corporation or utility district, (e) execute
amendments to any covenants and restrictions affecting the Leased Property and
(f) execute and deliver to any person any instrument appropriate to confirm or
effect such grants, releases, dedications, transfers, petitions and amendments
(to the extent of its interests in the Leased Property), but only upon delivery
to Lessor of an Officer's Certificate stating that such grant, release,
dedication, transfer, petition or amendment is not detrimental to the proper
conduct of the business of Lessee on the Leased Property and does not materially
reduce the value of the Leased Property.
ARTICLE VIII
COMPLIANCE WITH APPLICABLE LAWS
8.1 COMPLIANCE WITH LEGAL AND INSURANCE REQUIREMENTS, ETC. Subject to
SECTION 8.3(b) below and ARTICLE XII relating to permitted contests, and subject
further to the obligations of Lessor with respect to Capital Improvements as set
forth in SECTION 9.1(b), Lessee, at its expense, will promptly (a) comply with
all applicable Legal Requirements and Insurance Requirements in respect of the
use, operation, maintenance, repair and restoration of the Leased Property, and
(b) procure, maintain and comply with all appropriate licenses and other
authorizations required for any use of the Leased Property and Lessee's Personal
Property then being made, and for the proper erection, installation, operation
and maintenance of the Leased Property or any part thereof.
8.2 LEGAL REQUIREMENT COVENANTS. Subject to SECTION 8.3(b) below,
Lessee covenants and agrees that the Leased Property and Lessee's Personal
Property shall not be used for any unlawful purpose, and that Lessee shall not
permit or suffer to exist any unlawful use of the Leased Property by others.
Lessee shall acquire and maintain all appropriate licenses, certifications,
permits and other authorizations and approvals needed to operate the Leased
Property in its customary manner for the Primary Intended Use, and any other
lawful use conducted on the Leased Property as may be permitted from time to
time hereunder. Lessee further covenants and agrees that Lessee's use of the
Leased Property and maintenance, alteration, and operation of the same, and all
parts thereof, shall at all times conform to all Legal Requirements, unless the
same are finally determined by a court of competent jurisdiction to be unlawful
(and Lessee shall cause all such sub-tenants, invitees or others to so comply
with all
Lease Agreement
Ashford TRS Corporation
21
Legal Requirements). Lessee may, however, upon prior Notice to Lessor, contest
the legality or applicability of any such Legal Requirement or any licensure or
certification decision if Lessee maintains such action in good faith, with due
diligence, without prejudice to Lessor's rights hereunder, and at Lessee's sole
expense. If by the terms of any such Legal Requirement compliance therewith
pending the prosecution of any such proceeding may legally be delayed without
the incurrence of any lien, charge or liability of any kind against the Facility
or Lessee's leasehold interest therein and without subjecting Lessee or Lessor
to any liability, civil or criminal, for failure so to comply therewith, Lessee
may delay compliance therewith until the final determination of such proceeding.
If any lien, charge or civil or criminal liability would be incurred by reason
of any such delay, Lessee, on the prior written consent of Lessor, which consent
shall not be unreasonably withheld, may nonetheless contest as aforesaid and
delay as aforesaid provided that such delay would not subject Lessor to criminal
liability and Lessee both (a) furnishes to Lessor security reasonably
satisfactory to Lessor against any loss or injury by reason of such contest or
delay and (b) prosecutes the contest with due diligence and in good faith.
8.3 ENVIRONMENTAL COVENANTS. Lessor and Lessee (in addition to, and not
in diminution of, Lessee's covenants and undertakings in SECTIONS 8.1 AND 8.2
hereof) covenant and agree as follows:
(a) At all times hereafter until such time as all liabilities, duties
or obligations of Lessee to the Lessor under the Lease have been satisfied in
full, Lessee shall fully comply with all Environmental Laws applicable to the
Leased Property and the operations thereon unless caused by the acts or grossly
negligent failures to act of Lessor. Lessee agrees to give Lessor written notice
of the following, promptly after Lessee receives knowledge thereof: (1) all
Environmental Liabilities; (2) all pending, threatened or anticipated
Proceedings, and all notices, demands, requests or investigations, relating to
any Environmental Liability or relating to the issuance, revocation or change in
any Environmental Authorization required for operation of the Leased Property;
(3) all Releases at, on, in, under or in any way affecting the Leased Property,
or any Release at, on, in or under any property adjacent to the Leased Property;
and (4) all facts, events or conditions that could reasonably lead to the
occurrence of any of the above-referenced matters.
(b) Lessee hereby agrees to defend, indemnify and save harmless any and
all Lessor Indemnified Parties from and against any and all Environmental
Liabilities except to the extent caused by the willful misconduct or gross
negligence of Lessor.
(c) Lessor hereby agrees to defend, indemnify and save harmless any and
all Lessee Indemnified Parties from and against any and all Environmental
Liabilities caused by the willful misconduct or gross negligence of Lessor.
(d) If any Proceeding is brought against any Indemnified Party in
respect of an Environmental Liability with respect to which such Indemnified
Party may claim indemnification hereunder the Indemnifying Party, upon request,
shall at its sole expense resist and defend such Proceeding, or cause the same
to be resisted and defended by counsel designated by the Indemnified Party and
approved by the Indemnifying Party, which approval shall not be unreasonably
withheld; provided, however, that such approval shall not be required
Lease Agreement
Ashford TRS Corporation
22
in the case of defense by counsel designated by any insurance company
undertaking such defense pursuant to any applicable policy of insurance. Each
Indemnified Party shall have the right to employ separate counsel in any such
Proceeding and to participate in the defense thereof, but the fees and expenses
of such counsel will be at the sole expense of such Indemnified Party unless
such counsel has been approved by the Indemnifying Party, which approval shall
not be unreasonably withheld. The Indemnifying Party shall not be liable for any
settlement of any such Proceeding made without its consent, which shall not be
unreasonably withheld, but if settled with the consent of the Indemnifying
Party, or if settled without its consent (if its consent shall be unreasonably
withheld), or if there be a final, nonappealable judgment for an adversary party
in any such Proceeding, the Indemnifying Party shall indemnify and hold harmless
the Indemnified Parties from and against any liabilities incurred by such
Indemnified Parties by reason of such settlement or judgement.
(e) At any time any Indemnified Party has reason to believe
circumstances exist which could reasonably result in an Environmental Liability,
upon reasonable prior written notice to Lessee stating such Indemnified Party's
basis for such belief, an Indemnified Party shall be given immediate access to
the Leased Property (including, but not limited to, the right to enter upon,
investigate, drill xxxxx, take soil borings, excavate, monitor, test, cap and
use available land for the testing of remedial technologies), Lessee's
employees, and to all relevant documents and records regarding the matter as to
which a responsibility, liability or obligation is asserted or which is the
subject of any Proceeding; provided that such access may be conditioned or
restricted as may be reasonably necessary to ensure compliance with law and the
safety of personnel and facilities or to protect confidential or privileged
information. All Indemnified Parties requesting such immediate access and
cooperation shall endeavor to coordinate such efforts to result in as minimal
interruption of the operation of the Leased Property as practicable.
(f) The indemnification rights and obligations provided for in this
ARTICLE VIII shall be in addition to any indemnification rights and obligations
provided for elsewhere in this Lease.
(g) The indemnification rights and obligations provided for in this
ARTICLE VIII shall survive the termination of this Lease.
For purposes of this SECTION 8.3, all amounts for which any Indemnified
Party seeks indemnification shall be computed net of (a) any actual income tax
benefit resulting therefrom to such Indemnified Party, (b) any insurance
proceeds received (net of tax effects) with respect thereto, and (c) any amounts
recovered (net of tax effects) from any third parties based on claims the
Indemnified Party has against such third parties which reduce the damages that
would otherwise be sustained; provided that in all cases, the timing of the
receipt or realization of insurance proceeds or income tax benefits or
recoveries from third parties shall be taken into account in determining the
amount of reduction of damages. Each Indemnified Party agrees to use its
reasonable efforts to pursue, or assign to Lessee or Lessor, as the case may be,
any claims or rights it may have against any third party which would materially
reduce the amount of damages otherwise incurred by such Indemnified Party.
Notwithstanding anything to the contrary contained in this Lease, if
Lessor shall become entitled to the possession of the Leased Property by virtue
of the termination of the Lease or repossession of the Leased Property, then
Lessor may assign its indemnification rights under
Lease Agreement
Ashford TRS Corporation
23
SECTION 8.3 of this Lease (but not any other rights hereunder) to any Person to
whom the Lessor subsequently transfers the Leased Property, subject to the
following conditions and limitations, each of which shall be deemed to be
incorporated into the terms of such assignment, whether or not specifically
referred to therein:
(1) The indemnification rights referred to in this section may be
assigned only if a known Environmental Liability then exists or if a Proceeding
is then pending or, to the knowledge of Lessee or Lessor, then threatened with
respect to the Leased Property;
(2) Such indemnification rights shall be limited to Environmental
Liabilities relating to or specifically affecting the Leased Property; and
(3) Any assignment of such indemnification rights shall be limited to
the immediate transferee of Lessor, and shall not extend to any such
transferee's successors or assigns.
ARTICLE IX
MAINTENANCE AND REPAIRS
9.1 MAINTENANCE AND REPAIR.
(a) Except as provided in SECTION 9.1(b) or ARTICLES VIII OR XIV,
Lessee, at its sole expense, will keep the Leased Property in good order and
repair except for ordinary wear and tear (whether or not the need for such
repairs occurred as a result of Lessee's use, any prior use, the elements or the
age of the Leased Property, or any portion thereof), and, with reasonable
promptness, make all necessary and appropriate repairs, replacements, and
improvements thereto of every kind and nature, whether interior or exterior,
ordinary or extraordinary, foreseen or unforeseen or arising by reason of a
condition existing prior to the commencement of the Term of this Lease
(concealed or otherwise), or required by any governmental agency having
jurisdiction over the Leased Property. Lessee, however, shall be permitted to
prosecute claims against Lessor's predecessors in title for breach of any
representation or warranty or for any latent defects in the Leased Property to
be maintained by Lessee unless Lessor is already diligently pursuing such a
claim. All repairs shall, to the extent reasonably achievable, be at least
equivalent in quality to the original work. Lessee will not take or omit to take
any action, the taking or omission of which might materially impair the value or
the usefulness of the Leased Property or any part thereof for its Primary
Intended Use.
(b) Except as set forth in ARTICLE XVIII of this Lease, Lessee shall be
required to make (at the sole cost and expense of Lessor) all Capital
Expenditures required in connection with (i) Emergency Situations, (ii) Legal
Requirements, (iii) maintenance of the Franchise Agreement, (iv) the performance
by Lessee of its obligations under this Lease, and (v) other additions to the
Leased Property as it may reasonably deem appropriate and that are permitted
hereunder during the Term.
(c) Lessee will, upon the expiration or prior termination of the Term,
vacate and surrender the Leased Property to Lessor in the condition in which the
Leased Property was originally received from Lessor, except as repaired,
rebuilt, restored, altered or added to as permitted or required by the
provisions of this Lease and except for ordinary wear and tear
Lease Agreement
Ashford TRS Corporation
24
(subject to the obligation of Lessee to maintain the Leased Property in good
order and repair, as would a prudent owner, during the entire Term of the Lease,
to the extent required in SECTION 9.1(a)), or damage by casualty or Condemnation
(subject to the obligations of Lessee to restore or repair as set forth in the
Lease.)
9.2 ENCROACHMENTS, RESTRICTIONS, ETC. If any of the Improvements, at
any time, materially encroach upon any property, street or right-of-way adjacent
to the Leased Property, or violate the agreements or conditions contained in any
lawful restrictive covenant or other agreement affecting the Leased Property, or
any part thereof, or impair the rights of others under any easement or
right-of-way to which the Leased Property is subject, then promptly upon the
request of Lessor or at the behest of any person affected by any such
encroachment, violation or impairment, Lessee shall, at its expense, subject to
its right to contest the existence of any encroachment, violation or impairment
and in such case, in the event of an adverse final determination, either (a)
obtain valid and effective waivers or settlements of all claims, liabilities and
damages resulting from each such encroachment, violation or impairment, whether
the same shall affect Lessor or Lessee or (b) make such changes in the
Improvements, and take such other actions, as Lessee in the good faith exercise
of its judgment deems reasonably practicable to remove such encroachment, and to
end such violation or impairment, including, if necessary, the alteration of any
of the Improvements, and in any event take all such actions as may be necessary
in order to be able to continue the operation of the Improvements for the
Primary Intended Use substantially in the manner and to the extent the
Improvements were operated prior to the assertion of such violation, impairment
or encroachment. Any such alteration shall be made in conformity with the
applicable requirements of ARTICLE X. Lessee's obligations under this SECTION
9.2 shall be in addition to and shall in no way discharge or diminish any
obligation of any insurer under any policy of title or other insurance held by
Lessor.
ARTICLE X
ALTERATIONS
10.1 ALTERATIONS. Lessor shall have the right to make additions,
modifications or improvements to the Leased Property from time to time as
Lessor, in its discretion, may deem to be desirable for the permitted uses and
purposes of the Leased Property, provided that such action will not
significantly alter the character or purposes or significantly detract from the
value or operating efficiency thereof and will not significantly impair the
revenue-producing capability of the Leased Property or adversely affect the
ability of the Lessee to comply with the provisions of this Lease. The cost of
such additions, modifications or improvements to the Leased Property shall be
paid by Lessor, and all such additions, modifications and improvements shall, be
included under the terms of this Lease and shall at all times be the property of
Lessor.
ARTICLE XI
PROHIBITED LIENS AND ENCUMBRANCES
11.1 LIENS. Subject to the provision of ARTICLE XII relating to
permitted contests, Lessee will not directly or indirectly create or allow to
remain and will promptly discharge at its expense any lien, encumbrance,
attachment, title retention agreement or claim upon the Leased Property or any
attachment, levy, claim or encumbrance in respect of the Rent, not including,
however, (a) this Lease, (b) the matters, if any, included as exceptions in the
title policy insuring
Lease Agreement
Ashford TRS Corporation
25
Lessor's interest in the Leased Property, (c) restrictions, liens and other
encumbrances which are consented to in writing by Lessor or any easements
granted pursuant to the provisions of SECTION 7.3 of this Lease, (d) liens for
those taxes upon Lessor which Lessee is not required to pay hereunder, (e)
subleases permitted by ARTICLE XXIII hereof, (f) liens for Impositions or for
sums resulting from noncompliance with Legal Requirements so long as (1) the
same are not yet payable or are payable without the addition of any fine or
penalty or (2) such liens are in the process of being contested as permitted by
ARTICLE XII, (g) liens of mechanics, laborers, materialmen, suppliers or vendors
for sums either disputed or not yet due provided that (1) the payment of such
sums shall not be postponed under any related contract for more than sixty (60)
days after the completion of the action giving rise to such lien and such
reserve or other appropriate provisions as shall be required by law or generally
accepted accounting principles shall have been made therefor or (2) any such
liens are in the process of being contested as permitted by ARTICLE XII hereof,
and (h) any liens which are the responsibility of Lessor pursuant to the
provisions of ARTICLE IV of this Lease.
ARTICLE XII
PERMITTED CONTESTS
12.1 PERMITTED CONTESTS. Lessee shall have the right to contest the
amount or validity of any Imposition to be paid by Lessee or any Legal
Requirement or Insurance Requirement or any lien, attachment, levy, encumbrance,
charge or claim ("CLAIMS") not otherwise permitted by ARTICLE XI, by appropriate
legal proceedings in good faith and with due diligence (but this shall not be
deemed or construed in any way to relieve, modify or extend Lessee's covenants
to pay or its covenants to cause to be paid any such charges at the time and in
the manner as in this ARTICLE XII provided), on condition, however, that such
legal proceedings shall not operate to relieve Lessee from its obligations
hereunder and shall not cause the sale or risk the loss of the Leased Property,
or any part thereof, or cause Lessor or Lessee to be in default under any
mortgage, deed of trust or security deed encumbering the Leased Property or any
interest therein. Upon the request of Lessor, Lessee shall either (a) provide a
bond or other assurance reasonably satisfactory to Lessor that all Claims which
may be assessed against the Leased Property together with interest and
penalties, if any, thereon will be paid, or (b) deposit within the time
otherwise required for payment with a bank or trust company as trustee upon
terms reasonably satisfactory to Lessor, as security for the payment of such
Claims, money in an amount sufficient to pay the same, together with interest
and penalties in connection therewith, as to all Claims which may be assessed
against or become a Claim on the Leased Property, or any part thereof, in said
legal proceedings. Lessee shall furnish Lessor and any lender of Lessor with
reasonable evidence of such deposit within five days of the same. Lessor agrees
to join in any such proceedings if the same be required to legally prosecute
such contest of the validity of such Claims; provided, however, that Lessor
shall not thereby be subjected to any liability for the payment of any costs or
expenses in connection with any proceedings brought by Lessee; and Lessee
covenants to indemnify and save harmless Lessor from any such costs or expenses.
Lessee shall be entitled to any refund of any Claims and such charges and
penalties or interest thereon which have been paid by Lessee or paid by Lessor
and for which Lessor has been fully reimbursed. In the event that Lessee fails
to pay any Claims when due or to provide the security therefor as provided in
this paragraph and to diligently prosecute any contest of the same, Lessor may,
upon ten days advance Notice to Lessee, pay such charges together with any
interest and penalties and the same
Lease Agreement
Ashford TRS Corporation
26
shall be repayable by Lessee to Lessor as Additional Charges at the next Payment
Date provided for in this Lease. Provided, however, that should Lessor
reasonably determine that the giving of such Notice would risk loss to the
Leased Property or cause damage to Lessor, then Lessor shall give such Notice as
is practical under the circumstances. Lessor reserves the right to contest any
of the Claims at its expense not pursued by Lessee. Lessor and Lessee agree to
cooperate in coordinating the contest of any Claims.
ARTICLE XIII
INSURANCE REQUIREMENTS
13.1 GENERAL INSURANCE REQUIREMENTS. During the Term of this Lease,
Lessee and/or Lessor, as applicable shall at all times keep the Leased Property
insured (or cause the Leased Property to be insured) with the kinds and amounts
of insurance described below. This insurance shall be written by companies
authorized to issue insurance in the State. The policies must name Lessor and/or
Lessee, as the insured or as an additional named insured, as the case may be.
Losses shall be payable to Lessor or Lessee as provided in this Lease. Any loss
adjustment shall require the written consent of Lessor and Lessee, each acting
reasonably and in good faith. Evidence of insurance shall be deposited with
Lessor (with a copy to Lessee). The policies on the Leased Property, including
the Improvements, Fixtures and Lessee's Personal Property, shall include:
(a) To be paid for by Lessor as primary insured, with Lessee (lender or
ground lessor, as applicable) as additional insured:
(i) Building insurance on the "SPECIAL FORM" (formerly "All Risk"
form) (including earthquake and flood in reasonable amounts as
determined by Lessor) in an amount not less than 100% of the
then full replacement cost thereof (as defined in SECTION
13.2) or such other amount which is acceptable to Lessor, and
personal property insurance on the "SPECIAL FORM" in the full
amount of the replacement cost thereof;
(ii) Insurance for loss or damage (direct and indirect) from steam
boilers, pressure vessels or similar apparatus, now or
hereafter installed in the Facility, in the minimum amount of
$5,000,000 or in such greater amounts as are then customary or
as may be reasonably requested by Lessor from time to time;
(b) To be paid for by Lessee as primary insured, with Lessor,
franchisor and Manager, as required, as additional insured:
(i) Personal property insurance on the "SPECIAL FORM" in the full
amount of the replacement cost thereof for any personal
property owned by Lessee;
(ii) Loss of income insurance on the "SPECIAL FORM", in the amount
of one year of the sum of Base Rent plus Percentage Rent
(based on the last Lease Year of operation or, to the extent
the Leased Property has not been operated for an entire
12-month Lease Year, based on prorated Percentage Rent) for
the benefit of
Lease Agreement
Ashford TRS Corporation
27
Lessor, and business interruption insurance on the "SPECIAL
FORM" in the amount of one year of gross operating profit, for
the benefit of Lessee;
(iii) Commercial general liability insurance, with amounts not less
than $1,000,000 combined single limit for each occurrence and
$2,000,000.00 for the aggregate of all occurrences within each
policy year, as well as excess liability (umbrella) insurance
with limited of at least $35,000,000 per occurrence, covering
each of the following: bodily injury, death, or property
damage liability per occurrence, personal and advertising
injury, general aggregate, products and completed operations,
with respect to Lessor, and "all risk legal liability"
(including liquor law or "dram shop" liability if liquor or
alcoholic beverages are served on the Leased Property) with
respect to Lessor and Lessee;
(c) To be paid for by Lessee for the benefit of Manager as primary
insured, with Lessor and Lessee as additional insured:
(i) Automobile insurance on vehicles operating in conjunction with
the Facility with limits of liability of at least
$1,000,000.00 combined, single limit coverage;
(ii) Workers' compensation and employer's liability insurance as
may be required under applicable laws to the extent necessary
to protect Lessor, Lessee, and the Leased Property against
workers' compensation claims covering all employees at the
Facility, with such deductible limits or self insured
retentions as may be established from time to time by Lessee
and/or it's Manager;
(iii) Fidelity bonds with limits and deductibles as may be
reasonably requested by Lessor, covering Manager's employees
in job classifications normally bonded under prudent hotel
management practices in the United States or otherwise
required by law; and
(d) Such other insurance covering such other hazards and in such
amounts as may be customary for comparable properties in the area of the Leased
Property to be paid for and carried by Lessor or Lessee, as customary, and which
is available from insurance companies, insurance pools or other appropriate
companies authorized to do business in the State at rates which are economically
practicable in relation to the risks covered as may be reasonably requested by
Lessor.
13.2 REPLACEMENT COST. The term "FULL REPLACEMENT COST" as used herein
shall mean the actual replacement cost of the Leased Property requiring
replacement from time to time including an increased cost of construction
endorsement, if available, and the cost of debris removal. In the event either
party believes that full replacement cost (the then-replacement cost less such
exclusions) has increased or decreased at any time during the Term, it shall
have the right to have such full replacement cost re-determined.
13.3 WAIVER OF SUBROGATION. All insurance policies carried by Lessor or
Lessee covering the Leased Property, the Fixtures, the Facility or Lessee's
Personal Property, including, without limitation, contents, fire and casualty
insurance, shall expressly waive any right of
Lease Agreement
Ashford TRS Corporation
28
subrogation on the part of the insurer against the other party. The parties
hereto agree that their policies will include such waiver clause or endorsement
so long as the same are obtainable without extra cost, and in the event of such
an extra charge the other party, at its election, may pay the same, but shall
not be obligated to do so.
13.4 FORM SATISFACTORY, ETC. All of the policies of insurance referred
to in this ARTICLE XIII shall be written in a form, with deductibles and by
insurance companies satisfactory to Lessor and shall satisfy the requirements of
the Franchise Agreement. Lessee shall pay all of the premiums required for any
insurance required to be carried by Lessee hereunder, and shall deliver such
policies or certificates thereof to Lessor prior to their effective date (and,
with respect to any renewal policy, thirty (30) days prior to the expiration of
the existing policy), and in the event of the failure by Lessee either to effect
such insurance as herein called for or to pay the premiums therefor, or to
deliver such policies or certificates thereof to Lessor at the times required,
Lessor shall be entitled, but shall have no obligation, after ten (10) days'
Notice to Lessee, to effect such insurance and pay the premiums therefor, and to
be reimbursed for any premium or premiums upon written demand therefore. Each
insurer mentioned in this ARTICLE XIII shall agree, by endorsement to the policy
or policies issued by it, or by independent instrument furnished to Lessee, that
it will give to Lessor thirty (30) days' [
TEXAS: TEN (10) DAYS'] written notice
before the policy or policies in question shall be materially altered, allowed
to expire or canceled.
13.5 INCREASE IN LIMITS. If either Lessor or Lessee at any time deems
the limits of the personal injury or property damage under the comprehensive
commercial general liability insurance then carried to be either excessive or
insufficient, Lessor or Lessee shall endeavor in good faith to agree on the
proper and reasonable limits for such insurance to be carried and such insurance
shall thereafter be carried with the limits thus agreed on until further change
pursuant to the provisions of this Section.
13.6 BLANKET POLICY. Notwithstanding anything to the contrary contained
in this ARTICLE XIII, Lessee may bring the insurance provided for herein within
the coverage of a so-called blanket policy or policies of insurance carried and
maintained by Lessee; provided, however, that the coverage afforded to Lessor
and Lessee will not be reduced or diminished or otherwise be different from that
which would exist under a separate policy meeting all other requirements of this
Lease by reason of the use of such blanket policy of insurance, and provided
further that the requirements of this ARTICLE XIII are otherwise satisfied.
13.7 NO SEPARATE INSURANCE. Lessee shall not on Lessee's own initiative
or pursuant to the request or requirement of any third party, take out separate
insurance concurrent in form or contributing in the event of loss with that
required in this ARTICLE XIII to be furnished, or increase the amount of any
then existing insurance by securing an additional policy or additional policies,
unless all parties having an insurable interest in the subject matter of the
insurance, including in all cases Lessor, are included therein as additional
insureds, and the loss is payable under such additional separate insurance in
the same manner as losses are payable under this Lease. Lessee shall immediately
notify Lessor that Lessee has obtained any such separate insurance or of the
increasing of any of the amounts of the then existing insurance.
Lease Agreement
Ashford TRS Corporation
29
ARTICLE XIV
INSURANCE PROCEEDS
14.1 INSURANCE PROCEEDS. Subject to the provisions of SECTION 14.6 and
the terms of any lender mortgage, all proceeds payable by reason of any loss or
damage to the Leased Property, or any portion thereof, and insured under any
policy of insurance required by ARTICLE XIII of this Lease shall be paid to
Lessor and held by Lessor in an interest-bearing account, shall be made
available, if applicable, for reconstruction or repair, as the case may be, of
any damage to or destruction of the Leased Property, or any portion thereof,
and, if applicable, shall be paid out by Lessor from time to time for the
reasonable costs of such reconstruction or repair upon satisfaction of
reasonable terms and conditions specified by Lessor. Any excess proceeds of
insurance remaining after the completion of the restoration or reconstruction of
the Leased Property shall be paid to Lessor. If neither Lessor nor Lessee is
required or elects to repair and restore, all insurance proceeds shall be
retained by Lessor. All salvage resulting from any risk covered by insurance
shall belong to Lessor.
14.2 RECONSTRUCTION IN THE EVENT OF DAMAGE OR DESTRUCTION COVERED BY
INSURANCE.
(a) Except as provided in SECTION 14.6, if during the Term the Leased
Property is totally or partially destroyed by a risk covered by the insurance
described in ARTICLE XIII, whether or not such damage or destruction renders the
Facility Unsuitable for its Primary Intended Use, Lessee shall be obligated, but
only to the extent of any insurance proceeds made available to Lessee and any
other sums advanced by Lessor pursuant to the next sentence, to restore the
Facility to substantially the same condition as existed immediately before the
damage or destruction and otherwise in accordance with the terms of the Lease.
If the insurance proceeds are not adequate to restore the Facility to that
condition, each of Lessor and Lessee shall have the right to terminate this
Lease, without in any way affecting any other leases in effect between Lessor
and Lessee, by giving Notice to the other and all insurance proceeds shall be
retained by Lessor; provided, however, that, if such termination is by Lessee,
Lessor shall have the right, in its sole discretion, to nullify the termination
and keep this Lease in full force by providing, within thirty (30) days after
Lessee's Notice of termination, a Notice to Lessee of Lessor's unconditional,
legally binding obligation to be responsible for all restoration costs in excess
of the insurance proceeds. If this Lease is not terminated and Lessee restores
the Facility, the insurance proceeds, and any other sums made available by
Lessor as aforesaid, shall be paid out by Lessor from time to time for the
reasonable costs of such restoration upon satisfaction of reasonable terms and
conditions, and any excess proceeds remaining after such restoration shall be
retained by Lessor.
(b) Notwithstanding the provisions of SECTION 14.2(a) above, if Lessee
cannot within a reasonable time obtain all necessary government approvals,
including building permits, licenses and conditional use permits, after diligent
efforts to do so, to perform all required repair and restoration work and to
operate the Facility for its Primary Intended Use in substantially the same
manner as that existing immediately prior to such damage or destruction and
otherwise in accordance with the terms of the Lease, either Lessor or Lessee may
terminate this Lease by providing Notice to the other party, without in any way
affecting any other Leases then in effect between Lessor and Lessee.
Lease Agreement
Ashford TRS Corporation
30
14.3 RECONSTRUCTION IN THE EVENT OF DAMAGE OR DESTRUCTION NOT COVERED
BY INSURANCE. Except as provided in SECTION 14.6, if during the Term the
Facility is totally or materially destroyed by a risk not covered by the
insurance described in ARTICLE XIII, whether or not such damage or destruction
renders the Facility Unsuitable for its Primary Intended Use, the provisions of
SECTION 14.2 applicable to casualties for which insurance proceeds are
inadequate shall govern.
14.4 LESSEE'S PROPERTY. All insurance proceeds payable by reason of any
loss of or damage to any of Lessee's Personal Property shall be paid to Lessee;
provided, however, no such payments shall diminish or reduce the insurance
payments otherwise payable to or for the benefit of Lessor hereunder.
14.5 ABATEMENT OF RENT. Any damage or destruction due to casualty
notwithstanding, this Lease shall remain in full force and effect (unless
otherwise terminated as set forth hereinabove) and Lessee's obligation to make
rental payments and to pay Rent required by this Lease shall remain unabated by
any damage or destruction which does not result in a reduction of Gross
Revenues. If and to the extent that any damage or destruction results in a
reduction of Gross Revenues which would otherwise be realizable from the
operation of the Facility, then Lessor shall receive all loss of income
insurance and Lessee shall have no obligation to pay Rent in excess of the
amount of Percentage Rent, if any, realizable from Gross Revenues generated by
the operation of the Leased Property during the existence of such damage or
destruction.
14.6 DAMAGE NEAR END OF TERM. Notwithstanding any provisions of SECTION
14.2 OR 14.3 appearing to the contrary, if damage to or destruction of the
Facility unsuitable for its Primary Intended Use occurs during the last
twenty-four (24) months of the Term, then Lessee shall have the right to
terminate this Lease by giving written notice to Lessee within thirty (30) days
after the date of damage or destruction, whereupon all accrued Rent shall be
paid immediately, and this Lease shall automatically terminate five days after
the date of such notice.
14.7 WAIVER. Lessee hereby waives any statutory rights of termination
that may arise by reason of any damage or destruction of the Facility that
Lessor is obligated to restore or may restore under any of the provisions of
this Lease.
14.8 TERMINATION FEES. Notwithstanding anything appearing contrary in
this ARTICLE XIV, if this Lease is terminated by Lessor by reason of damage to
the Facility due to a casualty, then Lessor agrees to pay Lessee, within
forty-five (45) says of said termination, the termination fees, as applicable,
as set forth in Section 18.04 of the Management Agreement. No termination fees
are payable in the event of Unavoidable Delay (except for a casualty as set
forth hereinabove) or Condemnation.
ARTICLE XV
CONDEMNATION; TAKING
15.1 DEFINITIONS.
(a) "CONDEMNATION" means a Taking resulting from (1) the exercise of
any governmental power, whether by legal proceedings or otherwise, by a
Condemnor, and (2) a
Lease Agreement
Ashford TRS Corporation
31
voluntary sale or transfer by Lessor to any Condemnor, either under threat of
condemnation or while legal proceedings for condemnation are pending.
(b) "DATE OF TAKING" means the date the Condemnor has the right to
possession of the property being condemned.
(c) "AWARD" means all compensation, sums or anything of value awarded,
paid or received on a total or partial Condemnation.
(d) "CONDEMNOR" means any public or quasi-public authority, or private
corporation or individual, having the power of Condemnation.
15.2 PARTIES' RIGHTS AND OBLIGATIONS. If during the Term there is any
Condemnation of all or any part of the Leased Property or any interest in this
Lease, the rights and obligations of Lessor and Lessee shall be determined by
this ARTICLE XV.
15.3 TOTAL TAKING. If title to the fee of the whole of the Leased
Property is condemned by any Condemnor, this Lease shall cease and terminate as
of the Date of Taking by the Condemnor. If title to the fee of less than the
whole of the Leased Property is so taken or condemned, which nevertheless
renders the Leased Property Unsuitable or Uneconomic for its Primary Intended
Use, Lessee and Lessor shall each have the option, by notice to the other, at
any time prior to the Date of Taking, to terminate this Lease as of the Date of
Taking. Upon such date, if such Notice has been given, this Lease shall
thereupon cease and terminate. All Base Rent, Percentage Rent and Additional
Charges paid or payable by Lessee hereunder shall be apportioned as of the Date
of Taking, and Lessee shall promptly pay Lessor such amounts.
15.4 ALLOCATION OF AWARD. The total Award made with respect to the
Leased Property in connection with a Total Taking shall be equitably apportioned
between Lessor and Lessee in proportion to the then fair market values of the
respective estates and interests of Lessor and Lessee in and to the Leased
Property and under this Lease.
15.5 PARTIAL TAKING. If title to less than the whole of the Leased
Property is condemned, and the Leased Property is still suitable for its Primary
Intended Use, and not Uneconomic for its Primary Intended Use, or if Lessee or
Lessor is entitled but neither elects not to terminate this Lease as provided in
SECTION 15.3, Lessee at its cost shall with all reasonable dispatch, but only to
the extent of any condemnation awards made available to Lessee and any other
sums advanced by Lessor pursuant to the next sentence, restore the untaken
portion of any Improvements so that such Improvements constitute a complete
architectural unit of the same general character and condition (as nearly as may
be possible under the circumstances) as the Improvements existing immediately
prior to the Condemnation. If the condemnation awards are not adequate to
restore the Facility to that condition, each of Lessor and Lessee shall have the
right to terminate this Lease, without in any way affecting any other leases in
effect between Lessor and Lessee, by giving Notice to the other; provided,
however that, if such termination is by Lessee, Lessor shall have the right, in
its sole discretion, to nullify the termination and keep this Lease in full
force by providing, within thirty (30) days after Lessee's Notice of
termination, a Notice to Lessee of Lessor's unconditional, legally binding
obligation to be responsible for all restoration costs in excess of the
condemnation awards. If this Lease is not terminated and
Lease Agreement
Ashford TRS Corporation
32
Lessee restores the Facility, the condemnation awards, and any other sums made
available by Lessor as aforesaid, subject to the terms of any lender mortgage,
shall be held in trust by Lessor and paid out by Lessor from time to time for
the reasonable costs of such restoration upon satisfaction of reasonable terms
and conditions, and any excess awards remaining after such restoration shall be
retained by Lessor unless the partial condemnation materially impairs the
operations or financial performance of the Facility, in which latter event the
award shall be equitably apportioned between Lessor and Lessee in proportion to
the then fair market values of the respective estates and interests of Lessor
and Lessee in and to the Leased Property and under this Lease.
15.6 TEMPORARY TAKING. If the whole or any part of the Leased Property
or of Lessee's interest under this Lease is condemned by any Condemnor for its
temporary use or occupancy, this Lease shall not terminate by reason thereof,
and Lessee shall continue to pay, in the manner and at the terms herein
specified, the full amounts of the Base Rent, Percentage Rent and Additional
Charges. In addition, the entire amount of any Award made for such Condemnation
allocable to the Term of this Lease, whether paid by way of damages, rent or
otherwise, shall be paid to Lessee and, except for any portion thereof utilized
for restoration, shall be deemed to be Room Revenues for the purpose of
calculating the Percentage Rent payable hereunder during such temporary taking.
Except only to the extent that Lessee may be prevented from so doing pursuant to
the terms of the order of the Condemnor, Lessee shall continue to perform and
observe all of the other terms, covenants, conditions and obligations hereof on
the part of the Lessee to be performed and observed, as though such Condemnation
had not occurred. Lessee covenants that upon the termination of any such period
of temporary use or occupancy it will, at its sole cost and expense (subject to
Lessor's contribution as set forth below), restore the Leased Property as nearly
as may be reasonably possible to the condition in which the same was immediately
prior to such Condemnation, unless (a) such period of temporary use or occupancy
extends beyond the expiration of the Term, in which case Lessee shall not be
required to make such restoration, or (b) the condemnation award is inadequate
to cover the costs of such restoration, in which case the provisions of SECTION
15.5 applicable to inadequate awards shall govern. If restoration is required in
connection with such temporary taking and the condemnation award (together with
any other sums Lessor elects, in its sole discretion, to advance) is adequate to
pay the costs thereof, the provisions of SECTION 15.5 shall govern the
disbursement of the awards (and other sums, if applicable) and the disposition
of any awards in excess of restoration costs. If restoration is required
hereunder, Lessor shall contribute to the cost of such restoration that portion
of its entire Award that is specifically allocated to such restoration in the
judgment or order of the court, if any, and Lessee shall fund the balance of
such costs in advance of restoration in a manner reasonably satisfactory to
Lessor.
ARTICLE XVI
EVENTS OF DEFAULT; REMEDIES; DAMAGES
16.1 EVENTS OF DEFAULT. If any one or more of the following events
(individually, an "EVENT OF DEFAULT") occurs:
(a) if Lessee fails to make payment of the Base Rent or Percentage Rent
or Additional Charges when the same become due and payable for a period of ten
(10) days after receipt by the Lessee of Notice from the Lessor thereof;
Lease Agreement
Ashford TRS Corporation
33
(b) if Lessee fails to observe or perform any term, covenant or
condition of this Lease, other than the payment of Rent or Additional Rent, and
such failure is not cured by Lessee within a period of thirty (30) days after
receipt by the Lessee of Notice thereof from Lessor, unless such failure cannot
with due diligence be cured within a period of thirty (30) days, in which case
it shall not be deemed an Event of Default if Lessee proceeds promptly and with
due diligence to cure the failure and diligently completes the curing thereof
provided, however, in no event shall such cure period extend beyond one hundred
and twenty (120) days after such Notice; or
(c) if the Lessee shall file a petition in bankruptcy or reorganization
for an arrangement pursuant to any federal or state bankruptcy law or any
similar federal or state law, or shall be adjudicated a bankrupt or shall make
an assignment for the benefit of creditors or shall admit in writing its
inability to pay its debts generally as they become due, or if a petition or
answer proposing the adjudication of the Lessee as a bankrupt or its
reorganization pursuant to any federal or state bankruptcy law or any similar
federal or state law shall be filed in any court and the Lessee shall be
adjudicated a bankrupt and such adjudication shall not be vacated or set aside
or stayed within sixty (60) days after the entry of an order in respect thereof,
or if a receiver of the Lessee or of the whole or substantially all of the
assets of the Lessee shall be appointed in any proceeding brought by the Lessee
or if any such receiver, trustee or liquidator shall be appointed in any
proceeding brought against the Lessee and shall not be vacated or set aside or
stayed within sixty (60) days after such appointment; or
(d) if Lessee is liquidated or dissolved, or begins proceedings toward
such liquidation or dissolution, or, in any manner, permits the sale or
divestiture of substantially all of its assets; or
(e) if the estate or interest of Lessee in the Leased Property or any
part thereof is voluntarily or involuntarily transferred, assigned, conveyed,
levied upon or attached in any proceeding (unless Lessee is contesting such lien
or attachment in good faith in accordance with ARTICLE XII hereof); or
(f) if, except as a result of and to the extent required by damage,
destruction, partial or complete Condemnation or Unavoidable Delay, Lessee
voluntarily ceases operations on the Leased Property for a period in excess of
thirty (30) days; or
(g) if: (A) an event of default has been declared by the franchisor
under the Franchise Agreement with respect to the Facility on the Leased
Premises as a result of any action or failure to act by Lessee or any Person
with whom Lessee contracts for management services at the Facility, and (B)
Lessee has failed, within thirty (30) days thereafter, to cure such default by
either (1) curing the underlying default under the Franchise Agreement and
paying all costs and expenses associated therewith, or (2) obtaining at Lessee's
sole cost and expense a substitute franchise license agreement with a substitute
franchisor acceptable to Lessor, on terms and conditions acceptable to Lessor;
provided, however, that if Lessee is in good faith disputing an assertion of
default by the franchisor or is proceeding diligently to cure such default, the
30-day period shall be extended for such period of time as Lessee continues to
dispute such default in good faith or diligently proceeds to cure such default,
so long as there is no period during which the Facility is not operated pursuant
to a Franchise Agreement approved by Lessor;
Lease Agreement
Ashford TRS Corporation
34
then, and in any such event, Lessor may exercise one or more remedies
available to it herein or at law or in equity, including, but not limited to,
its right to terminate this Lease by giving Lessee not less than ten (10) days'
Notice of such termination.
If litigation is commenced with respect to any alleged default under
this Lease, the prevailing party in such litigation shall receive, in addition
to its damages incurred, such sum as the court shall determine as its reasonable
attorneys' fees, and all costs and expenses incurred in connection therewith.
No Event of Default (other than a failure to make a payment of money)
shall be deemed to exist under clause (c) during any time the curing thereof is
prevented by an Unavoidable Delay, provided that upon the cessation of such
Unavoidable Delay, Lessee remedies such default or Event of Default without
further delay.
16.2 SURRENDER. If an Event of Default occurs (and the event giving
rise to such Event of Default has not been cured within the curative period
relating thereto as set forth in SECTION 16.1) and is continuing, whether or not
this Lease has been terminated pursuant to SECTION 16.1, Lessee shall, if
requested by Lessor so to do, immediately surrender to Lessor the Leased
Property including, without limitation, any and all books, records, files,
licenses, permits and keys relating thereto, and quit the same and Lessor may
enter upon and repossess the Leased Property by reasonable force, summary
proceedings, ejectment or otherwise, and may remove Lessee and all other persons
and any and all personal property from the Leased Property, subject to rights of
any hotel guests and to any requirement of law. Lessee hereby waives any and all
requirements of applicable laws for service of notice to re-enter the Leased
Property. Lessor shall be under no obligation to, but may if it so chooses,
relet the Leased Property or otherwise mitigate Lessor's damages, except unless
otherwise required by applicable law.
16.3 DAMAGES. Neither (a) the termination of this Lease, (b) the
repossession of the Leased Property, (c) the failure of Lessor to relet the
Leased Property, nor (d) the reletting of all or any portion thereof, shall
relieve Lessee of its liability and obligations hereunder, all of which shall
survive any such termination, repossession or reletting. In the event of any
such termination, Lessee shall forthwith pay to Lessor all Rent due and payable
with respect to the Leased Property to and including the date of such
termination.
Lessee shall forthwith pay to Lessor, at Lessor's option, as and for
liquidated and agreed current damages for Lessee's default, either:
(1) Without termination of Lessee's right to possession of the Leased
Property, each installment of Rent and other sums payable by Lessee to Lessor
under the Lease as the same becomes due and payable, which Rent and other sums
shall bear interest at the Overdue Rate, and Lessor may enforce, by action or
otherwise, any other term or covenant of this Lease; or
(2) the sum of:
(A) the unpaid Rent which had been earned at the time of termination,
repossession or reletting, and
Lease Agreement
Ashford TRS Corporation
35
(B) the worth at the time of termination, repossession or reletting of
the amount by which the unpaid Rent for the balance of the Term after the time
of termination, repossession or reletting, exceeds the amount of such rental
loss that Lessee proves could be reasonably avoided, and
(C) any other amount necessary to compensate Lessor for all the
detriment proximately caused by Lessee's failure to perform its obligations
under this Lease or which in the ordinary course of things, would be likely to
result therefrom. The worth at the time of termination, repossession or
reletting of the amount referred to in subparagraph (B) is computed by
discounting such amount at the discount rate of the Federal Reserve Bank of New
York at the time of award plus 1%.
Rent for the purposes of this SECTION 16.3 shall be a sum equal to (i)
the average of the annual amounts of the greater of the Base Rent or Percentage
Rent for the three Fiscal Years immediately preceding the Fiscal Year in which
the termination, re-entry or repossession takes place, or (ii) if three Fiscal
Years shall not have elapsed, the average of the greater of the Base Rent or
Percentage Rent during the preceding Fiscal Years during which the Lease was in
effect, or (iii) if one Fiscal Year has not elapsed, the amount derived by
annualizing the greater of the Base Rent or Percentage Rent from the effective
date of this Lease.
16.4 WAIVER. If this Lease is terminated pursuant to SECTION 16.1,
Lessee waives, to the extent permitted by applicable law, (a) any right to a
trial by jury in the event of summary proceedings to enforce the remedies set
forth in this ARTICLE XVI, and (b) the benefit of any laws now or hereafter in
force exempting property from liability for rent or for debt and Lessor waives
any right to "xxxxxx the corporate veil" of Lessee other than to the extent
funds shall have been inappropriately paid any Affiliate of Lessee following a
default resulting in an Event of Default.
16.5 APPLICATION OF FUNDS. Any payments received by Lessor under any of
the provisions of this Lease during the existence or continuance of any Event of
Default shall be applied to Lessee's obligations in the order that Lessor may
determine or as may be prescribed by the laws of the State.
ARTICLE XVII
LESSOR'S RIGHT TO CURE
17.1 LESSOR'S RIGHT TO CURE LESSEE'S DEFAULT. If Lessee fails to make
any payment or to perform any act required to be made or performed under this
Lease including, without limitation, Lessee's failure to comply with the terms
of any Franchise Agreement, and fails to cure the same within the relevant time
periods provided in SECTION 16.1, Lessor, without waiving or releasing any
obligation of Lessee, and without waiving or releasing any obligation or
default, may (but shall be under no obligation to) at any time thereafter make
such payment or perform such act for the account and at the expense of Lessee,
and may, to the extent permitted by law, enter upon the Leased Property for such
purpose and, subject to SECTION 16.4, take all such action thereon as, in
Lessor's opinion, may be necessary or appropriate therefor. No such entry shall
be deemed an eviction of Lessee. All sums so paid by Lessor and all costs and
expenses (including, without limitation, reasonable attorneys' fees and
expenses, in each case to the extent permitted by law) so incurred, together
with a late charge thereon (to the extent permitted by
Lease Agreement
Ashford TRS Corporation
36
law) at the Overdue Rate from the date on which such sums or expenses are paid
or incurred by Lessor, shall be paid by Lessee to Lessor on demand. The
obligations of Lessee and rights of Lessor contained in this ARTICLE XVII shall
survive the expiration or earlier termination of this Lease.
ARTICLE XVIII
CAPITAL EXPENDITURE RESERVE
18.1 CAPITAL EXPENDITURE RESERVE.
(a) Lessee shall establish and fund from Gross Revenues, in respect of
each Fiscal Year during the Term of this Lease, a reserve account on the Leased
Property's books of account (the "CAPITAL EXPENDITURE RESERVE") to cover the
cost of Capital Expenditures (which cost shall be paid by the Lessor); provided,
however, that no Capital Expenditures shall be made to purchase property (other
than "real property" within the meaning of Treasury Regulations Section
1.856-3(d)), to the extent that doing so would cause the Lessor to recognize
income other than "rents from real property" as defined in Section 856(d) of the
Code. All Capital Improvements shall be owned by Lessor subject to the
provisions of this Lease.
(b) For each Fiscal Year, the Capital Expenditure Reserve shall be an
amount equal to four percent (4%) of the Gross Revenues, or in such other amount
as determined by Lessor.
(c) All Capital Expenditures whether pursuant to the Capital Budget or
otherwise for material structural components of the Facility involving
expenditures of $1,000,000.00 or more, shall be subject to the approval of
Lessor, which approval shall extend both to the plans and specifications
(including matters of design and decor) and to the contracting and purchasing of
all labor, services and materials. Lessor shall have the right to require
competitive bidding of contracts for such Capital Improvements, review all bids
and monitor costs, time, quality and performance. Except as set forth in SECTION
9.1(b) of this Lease, all Capital Expenditures shall be made by Lessor.
ARTICLE XIX
REIT REQUIREMENTS
19.1 REIT REQUIREMENTS.
(a) Lessee understands that, in order for AHT to qualify as a REIT, the
following requirements (the "REIT REQUIREMENTS") must be satisfied:
(A) The average of the fair market values of Lessor's personal property
that is leased to Lessee under a lease at the beginning and end of a calendar
year cannot exceed 15% of the average of the aggregate fair market values of all
of Lessor's property that is leased to Lessee under such lease at the beginning
and end of such calendar year.
(B) Lessee cannot sublet the property that is leased to it by Lessor,
or enter into any similar arrangement, on any basis such that the rental or
other amounts paid by the sublessee thereunder would be based, in whole or in
part, on either (i) the net income or profits derived by
Lease Agreement
Ashford TRS Corporation
37
the business activities of the sublessee or (ii) any other formula such that any
portion of the rent paid by Lessee to Lessor would fail to qualify as "rents
from real property" within the meaning of Section 856(d) of the Code.
(C) Lessee cannot sublease the property leased to it by Lessor to, or
enter into any similar arrangement with, any person in which AHT owns, directly
or indirectly, a 10% or more interest, within the meaning of Section
856(d)(2)(B) of the Code.
(D) Lessee agrees to make an election to be, and to operate as a
"TAXABLE REIT SUBSIDIARY" of AHT within the meaning of Section 856(l) of the
Code.
(E) No person can own, directly or directly, capital stock of AHT that
exceeds the "LIMIT" (as defined in AHT's Charter, as amended and restated).
(F) Lessee shall not (i) directly or indirectly operate or manage a
"LODGING FACILITY" within the meaning of Section 856(d)(9)(D)(ii) of the Code or
a "HEALTH CARE FACILITY" within the meaning of Section 856(e)(6)(D)(ii) or (ii)
directly or indirectly provide to any other person (under a franchise, license,
or otherwise) rights to any brand name under which any lodging facility or
health care facility is operated; provided, however, that Lessee may provide
such rights to Manager to operate or manage a lodging facility as long as such
rights are held by Lessee as a franchisee, licensee, or in a similar capacity
and such lodging facility is either owned by Lessee or is leased to Lessee by
Lessor or one of its Affiliates.
(b) Lessee agrees, and agrees to use reasonable efforts to cause its
Affiliates, to use its best efforts to permit the REIT Requirements to be
satisfied. Lessee agrees, and agrees to use reasonable efforts to cause its
Affiliates, to cooperate in good faith with AHT and Lessor to ensure that the
REIT Requirements are satisfied, including but not limited to, providing AHT
with information about the ownership of Lessee, and its Affiliates to the extent
that such information is reasonably available. Lessee agrees, and agrees to use
reasonable efforts to cause its Affiliates, upon request by AHT, and, where
appropriate, at AHT's expense, to take reasonable action necessary to ensure
compliance with the REIT Requirements. Immediately after becoming aware that the
REIT Requirements are not, or will not be, satisfied, Lessee shall notify, or
use reasonable efforts to cause its Affiliates to notify, AHT of such
noncompliance.
19.2 LESSEE OFFICER AND EMPLOYEE LIMITATION. Anything contained in this
Lease to the contrary notwithstanding, none of the officers or employees of the
Lessee or any subsidiary of Lessee shall be officers or employees of Manager (or
any Person who operates or manages the Leased Property). In addition, if a
Person serves as both (a) a director of the Lessee or any subsidiary of Lessee
and (b) a director and officer (or employee) of Manager (or any Person who
operates or manages the Leased Property), that Person shall not receive any
compensation for serving as a director of the Lessee or any subsidiary of
Lessee. If a person serves as both (a) a director of Manager or any subsidiary
of Manager (or any Person who operates or manages the Leased Property) and (b) a
director and officer (or employee) of Lessee, that Person shall not receive any
compensation for serving as a director of Manager.
19.3 MANAGEMENT AGREEMENT. Lessee agrees that, in order to comply with
certain of the REIT Requirements, it will, at all times during the Term, cause
the Leased Property to be
Lease Agreement
Ashford TRS Corporation
38
operated and managed by a management company ("MANAGER") that is an Eligible
Independent Contractor. Effective as of the Commencement Date, the Lessee shall
enter into an initial management agreement in the form of EXHIBIT "C" attached
hereto (the "MANAGEMENT Agreement") and Lessee shall provide Lessor with an
executed copy thereof. The Management Agreement is a hotel master management
agreement which covers the Leased Property and all of the other hotel properties
currently (or to be in the future) leased by Lessee from Affiliates of Lessor.
Lessee may not amend, modify or terminate the Management Agreement in any
material respect or change the Manager without the prior written consent of
Lessor, which consent shall not be unreasonably withheld. Lessee shall also
provide Lessor with copies of any amendments or modifications to the Management
Agreement which are entered into from time to time or any other management
agreement. Lessor shall have the right to approve in advance any Manager.
ARTICLE XX
HOLDING OVER
20.1 HOLDING OVER. If Lessee for any reason remains in possession of
the Leased Property after the expiration or earlier termination of the Term,
such possession shall be as a tenant at sufferance during which time Lessee
shall pay as rental each month two times the aggregate of (a) one-twelfth of the
Base Rent and Percentage Rent payable with respect to the last Fiscal Year of
the Term, (b) all Additional Charges accruing during the applicable month and
(c) all other sums, if any, payable by Lessee under this Lease with respect to
the Leased Property. During such period, Lessee shall be obligated to perform
and observe all of the terms, covenants and conditions of this Lease, but shall
have no rights hereunder other than the right, to the extent given by law to
tenancies at sufferance, to continue its occupancy and use of the Leased
Property. Nothing contained herein shall constitute the consent, express or
implied, of Lessor to the holding over of Lessee after the expiration or earlier
termination of this Lease.
ARTICLE XXI
RISK OF LOSS
21.1 RISK OF LOSS. During the Term, the risk of loss or of decrease in
the enjoyment and beneficial use of the Leased Property in consequence of the
damage or destruction thereof by fire, the elements, casualties, thefts, riots,
wars or otherwise, or in consequence of foreclosures, attachments, levies or
executions (other than those caused by Lessor and those claiming from, through
or under Lessor) is assumed by Lessee except as specifically provided in this
Lease, and, Lessor shall in no event be answerable or accountable therefor, nor
shall any of the events mentioned in this Section entitle Lessee to any
abatement of Rent except as specifically provided in this Lease.
ARTICLE XXII
INDEMNIFICATION
22.1 INDEMNIFICATION. Notwithstanding the existence of any insurance,
and without regard to the policy limits of any such insurance or self-insurance,
but subject to ARTICLES VIII, XIV AND XV, Lessee will protect, indemnify, hold
harmless and defend Lessor from and against all liabilities, obligations,
claims, damages, penalties, causes of action, costs and expenses (including,
without limitation, reasonable attorneys' fees and expenses), to the extent
permitted
Lease Agreement
Ashford TRS Corporation
39
by law, imposed upon or incurred by or asserted against Lessor Indemnified
Parties by reason of: (a) any accident, injury to or death of persons or loss of
or damage to property occurring on or about the Leased Property or adjoining
sidewalks, including without limitation any claims under liquor liability, "dram
shop" or similar laws, (b) any past, present or future use, misuse, non-use,
condition, management, maintenance or repair by Lessee or any of its agents,
employees or invitees of the Leased Property or Lessee's Personal Property or
any litigation, proceeding or claim by governmental entities or other third
parties to which a Lessor Indemnified Party is made a party or participant
related to such use, misuse, non-use, condition, management, maintenance, or
repair thereof by Lessee or any of its agents, employees or invitees, including
any failure of Lessee or any of its agents, employees or invitees to perform any
obligations under this Lease or imposed by applicable law (other than arising
out of Condemnation proceedings), (c) any Impositions that are the obligations
of Lessee pursuant to the applicable provisions of this Lease, (d) any failure
on the part of Lessee to perform or comply with any of the terms of this Lease,
and (e) the non-performance of any of the terms and provisions of any and all
existing and future subleases of the Leased Property to be performed by the
landlord thereunder.
Lessor shall indemnify, save harmless and defend Lessee Indemnified
Parties from and against all liabilities, obligations, claims, damages,
penalties, causes of action, costs and expenses imposed upon or incurred by or
asserted against Lessee Indemnified Parties as a result of (a) the gross
negligence or willful misconduct of Lessor arising in connection with this Lease
or (b) any failure on the part of Lessor to perform or comply with any of its
obligations under this Lease.
Any amounts that become payable by an Indemnifying Party under this
Section shall be paid within ten days after liability therefor on the part of
the Indemnifying Party is determined by litigation or otherwise, and if not
timely paid, shall bear a late charge (to the extent permitted by law) at the
Overdue Rate from the date of such determination to the date of payment. An
Indemnifying Party, at its expense, shall contest, resist and defend any such
claim, action or proceeding asserted or instituted against the Indemnified
Party. The Indemnified Party, at its expense, shall be entitled to participate
in any such claim, action, or proceeding, and the Indemnifying Party may not
compromise or otherwise dispose of the same without the consent of the
Indemnified Party, which may not be unreasonably withheld. Nothing herein shall
be construed as indemnifying a Lessor Indemnified Party against its own grossly
negligent acts or omissions or willful misconduct.
Lessee's or Lessor's liability for a breach of the provisions of this
ARTICLE XXII shall survive any termination of this Lease.
ARTICLE XXIII
SUBLETTING AND ASSIGNMENT
23.1 SUBLETTING AND ASSIGNMENT. Subject to the provisions of ARTICLE
XIX and SECTION 23.2 and any other express conditions or limitations set forth
herein, Lessee may, but only with the prior written consent of Lessor which
consent shall not be unreasonably withheld, (a) assign this Lease or sublet all
or any part of the Leased Property to an Affiliate of Lessee, or (b) sublet any
retail or restaurant portion of the Improvements in the normal course of the
Primary Intended Use; provided that any subletting to any party other than an
Affiliate of Lessee
Lease Agreement
Ashford TRS Corporation
40
shall not individually as to any one such subletting, or in the aggregate,
materially diminish the actual or potential Percentage Rent payable under this
Lease. In the case of a subletting, the sublessee shall comply with the
provisions of SECTION 23.2, and in the case of an assignment, the assignee shall
assume in writing and agree to keep and perform all of the terms of this Lease
on the part of Lessee to be kept and performed and shall be, and become, jointly
and severally liable with Lessee for the performance thereof. In case of either
an assignment or subletting made during the Term, Lessee shall remain primarily
liable, as principal rather than as surety, for the prompt payment of the Rent
and for the performance and observance of all of the covenants and conditions to
be performed by Lessee hereunder. An original counterpart of each such sublease
and assignment and assumption, duly executed by Lessee and such sublessee or
assignee, as the case may be, in form and substance satisfactory to Lessor,
shall be delivered promptly to Lessor.
23.2 ATTORNMENT. Lessee shall insert in each sublease permitted under
SECTION 23.1 provisions to the effect that (a) such sublease is subject and
subordinate to all of the terms and provisions of this Lease and to the rights
of Lessor hereunder, (b) if this Lease terminates before the expiration of such
sublease, the sublessee thereunder will, at Lessor's option, attorn to Lessor
and waive any right the sublessee may have to terminate the sublease or to
surrender possession thereunder as a result of the termination of this Lease,
and (c) if the sublessee receives a written Notice from Lessor or Lessor's
assignees, if any, stating that an uncured Event of Default exists under this
Lease, the sublessee shall thereafter be obligated to pay all rentals accruing
under said sublease directly to the party giving such Notice, or as such party
may direct. All rentals received from the sublessee by Lessor or Lessor's
assignees, if any, as the case may be, shall be credited against the amounts
owing by Lessee under this Lease.
ARTICLE XXIV
REPORTING AND CERTIFICATION REQUIREMENTS
24.1 OFFICER'S CERTIFICATES; FINANCIAL STATEMENTS; BUDGETS; LESSOR'S
ESTOPPEL CERTIFICATES AND COVENANTS.
(a) At any time and from time to time upon not less than twenty (20)
days Notice by Lessor, Lessee will furnish to Lessor an Officer's Certificate
certifying that this Lease is unmodified and in full force and effect (or that
this Lease is in full force and effect as modified and setting forth the
modifications), the date to which the Rent has been paid, whether to the
knowledge of Lessee there is any existing default or Event of Default exists
thereunder by Lessor or Lessee, and such other information as may be reasonably
requested by Lessor. Any such certificate furnished pursuant to this Section may
be relied upon by Lessor, any lender and any prospective purchaser of the Leased
Property.
(b) Throughout the Term, Lessee will furnish to Lessor such historical
financial information of Lessee and the Facility as Lessor may reasonably
request and shall provide Lessor access to Lessee's books and records with
respect thereto.
(c) Within five (5) days of Lessee's receipt thereof, any inspection
reports received from the franchisor under the Franchise Agreement.
Lease Agreement
Ashford TRS Corporation
Lease Agreement
Ashford TRS Corporation
41
(d) At any time and from time to time upon not less than twenty (20)
days notice by Lessee, Lessor will furnish to Lessee or to any person designated
by Lessee an estoppel certificate certifying that this Lease is unmodified and
in full force and effect (or that this Lease is in full force and effect as
modified and setting forth the modifications), the date to which Rent has been
paid, whether to the knowledge of Lessor there is any existing default or Event
of Default on Lessee's part hereunder, and such other information as may be
reasonably requested by Lessee.
24.2 OPERATING BUDGET. Not later than forty-five (45) days prior to the
commencement of each Lease Year, Lessee, in consultation with the Manager, shall
prepare and submit to Lessor an operating budget (the "OPERATING BUDGET") in
form and substance reasonably satisfactory to Lessor, prepared in accordance
with the requirements of this SECTION 24.2. The Operating Budget shall be
prepared in accordance with the Uniform System to the extent applicable and show
by month and quarter and for the year as a whole in the degree of detail
specified by the Uniform System for monthly statements, and in accordance with
the detail level of monthly financial statements, the following:
(a) Lessee's reasonable estimate of Gross Revenues, Room Revenues, Food
Sales and Beverage Sales (including room rates) for the Facility for the
forthcoming Lease Year itemized on schedules on a monthly and quarterly basis as
approved by Lessor and Lessee, together with the assumptions, in narrative form,
forming the basis of such schedules;
(b) A cash flow projection; and
(c) Lessee's reasonable estimate for each quarter of the Lease Year of
Percentage Rent.
24.3 CAPITAL BUDGET. Not later than forty-five (45) days prior to the
commencement of each Lease Year, Lessee shall prepare and submit to Lessor a
capital improvement budget (the "CAPITAL BUDGET") prepared in accordance with
the Uniform System to the extent applicable, and shall set forth the proposed
Capital Expenditures for the ensuing Lease Year.
ARTICLE XXV
LESSOR'S DEFAULT; CURE RIGHTS
25.1 LESSEE'S RIGHT TO CURE. Subject to the provisions of SECTION 25.2,
if Lessor breaches any covenant to be performed by it under this Lease, Lessee,
after Notice to and demand upon Lessor, without waiving or releasing any
obligation hereunder, and in addition to all other remedies available to Lessee,
may (but shall be under no obligation at any time thereafter to) make such
payment or perform such act for the account and at the expense of Lessor. All
sums so paid by Lessee and all costs and expenses (including, without
limitation, reasonable attorneys' fees) so incurred, together with interest
thereon at the Overdue Rate from the date on which such sums or expenses are
paid or incurred by Lessee, shall be paid by Lessor to Lessee on demand or,
following entry of a final, nonappealable judgment against Lessor for such sums,
may be offset by Lessee against the Base Rent payments next accruing or coming
due. The rights of Lessee hereunder to cure and to secure payment from Lessor in
accordance
Lease Agreement
Ashford TRS Corporation
42
with this SECTION 25.1 shall survive the termination of this Lease with respect
to the Leased Property.
25.2 BREACH BY LESSOR. It shall be a breach of this Lease if Lessor
fails to observe or perform any term, covenant or condition of this Lease on its
part to be performed and such failure continues for a period of thirty (30) days
after Notice thereof from Lessee, unless such failure cannot with due diligence
be cured within a period of thirty (30) days, in which case such failure shall
not be deemed to continue if Lessor, within such 30-day period, proceeds
promptly and with due diligence to cure the failure and diligently completes the
curing thereof. The time within which Lessor shall be obligated to cure any such
failure also shall be subject to extension of time due to the occurrence of any
Unavoidable Delay.
ARTICLE XXVI
NOTICES
26.1 NOTICES. All notices, demands, requests, consents approvals and
other communications ("NOTICE" or "NOTICES") hereunder shall be in writing and
personally served, mailed (by registered or certified mail, return receipt
requested and postage prepaid) or sent by facsimile, addressed to Lessor at
00000 Xxxxxx Xxxxxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000, Facsimile (000) 000-0000,
Attention: General Counsel, and addressed to Lessee at 00000 Xxxxxx Xxxxxxx,
Xxxxx 000, Xxxxxx, Xxxxx 00000, Attention: Chief Financial Officer, Facsimile
(000) 000-0000, or to such other address or addresses as either party may
hereafter designate. Personally delivered Notice shall be effective upon
receipt, and Notice given by mail shall be complete at the time of deposit in
the U.S. Mail system, but any prescribed period of Notice and any right or duty
to do any act or make any response within any prescribed period or on a date
certain after the service of such Notice given by mail shall be extended five
days.
ARTICLE XXVII
MISCELLANEOUS PROVISIONS
27.1 TRANSFER OF LICENSES. Upon the expiration or earlier termination
of the Term, Lessee shall use its best efforts (i) to transfer to Lessor or
Lessor's nominee or designee all Franchise Agreements, licenses, operating
permits and other governmental authorizations and all contracts, including
contracts with governmental or quasi-governmental entities, that may be
necessary for the operation of the Facility (collectively, "LICENSES"), or (ii)
if such transfer is prohibited by law or Lessor otherwise elects, to cooperate
with Lessor or Lessor's nominee in connection with the processing by Lessor or
Lessor's nominee of any applications for, all Licenses; provided, in either
case, that the costs and expenses of any such transfer or the processing of any
such application shall be paid by Lessor or Lessor's nominee.
27.2 EARLY TERMINATION RIGHTS; TERMINATION FEES. Lessor may terminate
the Lease as to any Leased Property prior to the Expiration Date by reason of a
sale of the Facility, the Manager's failure to satisfy certain performance
tests, or for convenience, as set forth in Section 2.03 of the Management
Agreement (and pursuant to the notice requirements contained therein), provided
Lessor pays to Lessee the termination fees as liquidated damages pursuant to the
terms and conditions as set forth in Section 2.03 of the Management Agreement.
Lease Agreement
Ashford TRS Corporation
43
The terms and conditions set forth in Section 2.03 of the Management
Agreement are fully incorporated herein for all purposes as if fully set forth
herein and shall survive termination of this Lease.
27.3 SUBSTITUTION OF INITIAL HOTEL. Notwithstanding the foregoing
SECTION 27.2, in the event of a termination of this Lease with respect to an
Initial Hotel (as such term is defined in the Management Agreement) and in
connection with such termination, a termination fee becomes payable by Lessor,
Lessor may (in its sole and absolute discretion) avoid payment of such
termination fee by substituting for the terminated Initial Hotel within 120 days
of such termination, another hotel facility reasonably comparable in size,
number of rooms, quality of franchise operation, market and geographical
location, and gross revenues, to be governed by the terms and conditions of this
Lease from and after the date of such substitution, and this Lease shall be
amended accordingly. In the event of a substitution, any Rent and other charges
payable under this Lease shall be suspended until the substitution is fully
consummated.
27.4 COMPLIANCE WITH FRANCHISE AGREEMENT. To the extent any of the
provisions of the Franchise Agreement impose a greater obligation on Lessee than
the corresponding provisions of this Lease, then Lessee shall be obligated to
comply with the provisions of the Franchise Agreement except in regard to those
obligations which are the responsibility of Lessor as provided herein. It is the
intent of the parties hereto that Lessee shall comply in every respect with the
provisions of the Franchise Agreement so as to avoid any default thereunder
during the term of this Lease. Lessee shall not terminate, extend or enter into
any modification of the Franchise Agreement without in each instance first
obtaining Lessor's prior written consent. Lessor and Lessee agree to cooperate
with each other in the event it becomes necessary to obtain a franchise
extension or modification or a new franchise for the Leased Property, and in any
transfer of the Franchise Agreement to Lessor (if applicable) or any designee of
or any successor to Lessee (as applicable) upon the termination of this Lease.
In the event of expiration or termination of a Franchise Agreement, for whatever
reason, the Lessor will have the right, in its sole discretion, to approve any
new Franchise Agreement for the Facility. If, upon any expiration or earlier
termination of this Lease (other than upon an Event of Default by Lessee), a
Franchise Agreement remains in effect, or would but for such expiration or
termination remain in effect, Lessor shall indemnify, defend and hold Lessee
harmless with respect to the obligations and liabilities arising thereunder
after the date of expiration or termination of this Lease.
27.5 LESSOR'S RIGHT TO INSPECT. Lessee shall permit Lessor and its
authorized representatives as frequently as reasonably requested by Lessor to
inspect the Leased Property and Lessee's accounts and records pertaining thereto
and make copies thereof, during usual business hours upon reasonable advance
notice, subject only to any business confidentiality requirements reasonably
requested by Lessee, provided that Lessor shall not cause any interference with
the operation of the Leased Property.
27.6 CONVEYANCE BY LESSOR. If Lessor or any successor owner of the
Leased Property conveys the Leased Property to a Person other than a wholly
owned Affiliate of Lessor in accordance with the terms hereof other than as
security for a debt, and the grantee or transferee of the Leased Property
expressly assumes all obligations of Lessor hereunder arising or accruing from
and after the date of such conveyance or transfer, Lessor or such successor
owner, as the case may be, shall thereupon be released from all future
liabilities and obligations of Lessor
Lease Agreement
Ashford TRS Corporation
44
under this Lease arising or accruing from and after the date of such conveyance
or other transfer as to the Leased Property and all such future liabilities and
obligations shall thereupon be binding upon the new owner.
27.7 LESSOR MAY GRANT LIENS. Without the consent of Lessee, Lessor may,
subject to the terms and conditions set forth below in this SECTION 27.7, from
time to time, directly or indirectly, create or otherwise cause to exist any
lien, encumbrance or title retention agreement ("ENCUMBRANCE") upon the Leased
Property, or any portion thereof or interest therein, whether to secure any
borrowing or other means of financing or refinancing. Upon the request of
Lessor, Lessee shall subordinate this Lease to the lien of a new mortgage on the
Leased Property.
27.8 NON DISTURBANCE AGREEMENT. Lessor agrees, subject to any
restrictions or limitations imposed by any lender of Lessor, to execute in favor
of Manager a non disturbance and attornment agreement in form and substance
reasonably acceptable to Lessor and Manager.
27.9 WAIVER OF PRESENTMENT, ETC. Lessee waives all presentments,
demands for payment and for performance, notices of nonperformance, protests,
notices of protest, notices of dishonor, and notices of acceptance and waives
all notices of the existence, creation, or incurring of new or additional
obligations, except as expressly granted herein.
27.10 MEMORANDUM OF LEASE. Lessor and Lessee shall promptly upon the
request of either enter into a short form memorandum of this Lease, in form
suitable for recording under the laws of the State in which reference to this
Lease, and all options contained herein, shall be made. Lessee shall pay all
costs and expenses of recording such memorandum of this Lease.
27.11 USURY. If any late charges or any interest rate provided for in
any provision of this Lease are based upon a rate in excess of the maximum rate
permitted by applicable law, the parties agree that such charges shall be fixed
at the maximum permissible rate.
27.12 NO WAIVER. No failure by Lessor or Lessee to insist upon the
strict performance of any term hereof or to exercise any right, power or remedy
consequent upon a breach thereof, and no acceptance of full or partial payment
of Rent during the continuance of any such breach, shall constitute a waiver of
any such breach or of any such term. To the extent permitted by law, no waiver
of any breach shall affect or alter this Lease, which shall continue in full
force and effect with respect to any other then existing or subsequent breach.
27.13 REMEDIES CUMULATIVE. To the extent permitted by law, each legal,
equitable or contractual right, power and remedy of Lessor or Lessee now or
hereafter provided either in this Lease or by statute or otherwise shall be
cumulative and concurrent and shall be in addition to every other right, power
and remedy and the exercise or beginning of the exercise by Lessor or Lessee of
any one or more of such rights, powers and remedies shall not preclude the
simultaneous or subsequent exercise by Lessor or Lessee of any or all of such
other rights, powers and remedies.
27.14 ACCEPTANCE OF SURRENDER. No surrender to Lessor of this Lease or
of the Leased Property or any part thereof, or of any interest therein, shall be
valid or effective unless agreed to and accepted in writing by Lessor and no act
by Lessor or any representative or agent of Lessor,
Lease Agreement
Ashford TRS Corporation
45
other than such a written acceptance by Lessor, shall constitute an acceptance
of any such surrender.
27.15 NO MERGER OF TITLE. There shall be no merger of this Lease or of
the leasehold estate created hereby by reason of the fact that the same person
or entity may acquire, own or hold, directly or indirectly: (a) this Lease or
the leasehold estate created hereby or any interest in this Lease or such
leasehold estate and (b) the fee estate in the Leased Property.
27.16 QUIET ENJOYMENT. So long as Lessee pays all Rent as the same
becomes due and complies with all of the terms of this Lease and performs its
obligations hereunder, in each case within the applicable grace periods, if any,
Lessee shall peaceably and quietly have, hold and enjoy the Leased Property for
the Term hereof, free of any claim or other action by Lessor or anyone claiming
by, through or under Lessor, but subject to all liens and encumbrances subject
to which the Leased Property was conveyed to Lessor or hereafter consented to by
Lessee or provided for herein. Notwithstanding the foregoing, Lessee shall have
the right by separate and independent action to pursue any claim it may have
against Lessor as a result of a breach by Lessor of the covenant of quiet
enjoyment contained in this Section.
27.17 BINDING EFFECT. The covenants, terms, conditions, provisions and
undertakings in this Lease shall extend to and be binding upon the heirs,
personal representatives, executors, administrators and permitted successors and
assigns of the respective parties hereto.
27.18 ENTIRE AGREEMENT; NO OFFER. This Lease contains the entire
agreement of Lessor and Lessee with respect to the subject matter hereof, and no
representations, warranties, inducements, promises or agreements, oral or
otherwise, between the parties not embodied in this Lease shall be of any force
or effect. This Lease may be modified only by a written agreement executed by
both parties with the same formalities as this Lease. All prior agreements or
communications are and shall be merged into this Lease and shall have no force
or effect. Neither any submission of this Lease by one party to the other, nor
any correspondence or other communications between the parties in connection
therewith, is intended or shall be deemed to constitute an offer of any kind or
to create any obligations between the parties unless and until one or more
duplicates of this Lease has been fully executed and delivered between the
parties. Accordingly, any such submission or communications or correspondence
between the parties or their respective agents or attorneys is intended only as
non-binding discussions, and either party shall have the absolute right to
withdraw from such discussions without any liability whatsoever to the other
party.
27.19 SEVERABILITY. If any clause or provision of this Lease is
illegal, invalid or unenforceable under applicable present or future Laws
effective during the Term, the remainder of this Lease shall not be affected. In
lieu of each clause or provision of this Lease which is illegal, invalid or
unenforceable, there shall be added as a part of this Lease a clause or
provision as nearly identical as may be possible and as may be legal, valid and
enforceable. Notwithstanding the foregoing, in the event any clause or provision
of this Lease is illegal, invalid or unenforceable as aforesaid and the effect
of such illegality, invalidity or unenforceability is that Lessor no longer has
the substantial benefit of its bargain under this Lease, then, in such event,
Lessor may in its discretion cancel and terminate this Lease upon providing at
least ninety (90) days advance notice thereof to Lessee.
Lease Agreement
Ashford TRS Corporation
46
27.20 COUNTERPARTS. This Lease may be executed in several counterparts,
each of which shall be deemed an original, and all of such counterparts together
shall constitute one and the same instrument.
27.21 GOVERNING LAW. THIS LEASE AND ITS INTERPRETATION, VALIDITY AND
PERFORMANCE SHALL BE GOVERNED BY THE LAWS OF THE STATE OF
TEXAS. IN THE EVENT
ANY COURT OF LAW OF APPROPRIATE JUDICIAL AUTHORITY SHALL HOLD OR DECLARE THAT
THE LAW OF ANOTHER JURISDICTION IS APPLICABLE, THIS LEASE SHALL REMAIN
ENFORCEABLE UNDER THE LAWS OF THE APPROPRIATE JURISDICTION. THE PARTIES HERETO
AGREE THAT VENUE FOR ANY ACTION IN CONNECTION HEREWITH SHALL BE PROPER IN DALLAS
COUNTY,
TEXAS. EACH PARTY HERETO CONSENTS TO THE JURISDICTION OF ANY LOCAL,
STATE OR FEDERAL COURT SITUATED IN ANY OF SUCH LOCATIONS AND WAIVES ANY
OBJECTION WHICH IT MAY HAVE PERTAINING TO IMPROPER VENUE OR FORUM NON CONVENIENS
TO THE CONDUCT OF ANY PROCEEDING IN ANY SUCH COURT.
27.22 RECITALS; HEADINGS. The recitals set forth in this Lease are true
and correct, and are incorporated herein by this reference. The use of headings,
captions and numbers in this Lease is solely for the convenience of identifying
and indexing the various paragraphs and shall in no event be considered in
construing or interpreting any provision in this Lease.
27.23 SURVIVAL. Notwithstanding anything to the contrary contained in
this Lease, the provisions (including, without limitation, covenants,
agreements, representations, warranties, obligations and liabilities described
therein) of this Lease which from their sense and context are intended to
survive the expiration or sooner termination of this Lease shall survive such
expiration or sooner termination of this Lease and continue to be binding upon
the applicable party.
27.24 EXHIBITS. The exhibits referred to in, and attached to, this
Lease are hereby incorporated in full by reference. Unless otherwise expressly
provided in the exhibit or the body of this Lease, in the event of any conflict
or inconsistency with the provisions contained in the body of this Lease and the
exhibits, the provisions contained in the body of this Lease shall control.
IN WITNESS WHEREOF, the parties have executed this Lease by their duly
authorized officers as of the date first above written.
[SIGNATURE PAGES TO FOLLOW]
Lease Agreement
Ashford TRS Corporation
47
"LESSOR"
[OWNER PARTNERSHIP], a
Delaware limited partnership
By: Ashford Properties General Partner LLC,
a Delaware limited liability company,
its general partner
By:
---------------------------------------
Xxxxxxxxxx Xxxxxxx
President
"LESSEE"
ASHFORD TRS CORPORATION, a Delaware
corporation
By:
---------------------------------------
Xxxxx X. Xxxxxx
Vice President
Lease Agreement
Ashford TRS Corporation
