ATTACHMENT 1
TERMINATION AGREEMENT
THIS TERMINATION AGREEMENT (the "Termination Agreement") is made and
entered into as of this 3rd day of February, 1997, by and between Host
Funding, Inc., a Maryland corporation (the "REIT"), HMR Capital, LLC, a
Delaware limited liability company (the "Company") and Host Funding Advisors,
Inc., a Delaware corporation (the "Advisor") with reference to the following
facts:
A. On April 17, 1996, the parties hereto entered into an advisory
agreement, as amended by the First Amendment thereto dated June 12, 1996 (the
"Advisory Agreement") whereby the Advisor agreed to provide information,
advice, assistance and facilities to the Company and to undertake certain
duties and responsibilities as set forth in the Advisory Agreement. In
consideration for such services, the Company agreed to pay the Advisor fees
as set forth in the Advisory Agreement.
B. The parties now wish to terminate the Advisory Agreement.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements contained herein, the parties hereto agree as
follows:
1. TERMINATION
Pursuant to this Termination Agreement, effective as of the close of
business on January 31, 1997, the parties do hereby agree to terminate the
Advisory Agreement and all duties, obligations, and rights each party has or
may have thereunder. As full and final consideration for this Termination
Agreement REIT agrees to pay Advisor on or before February 15, 1997 a lump
sum payment of $30,000. Advisor shall also be entitled to reimbursement from
REIT for all reasonable reimbursable expenses incurred by Advisor through
January 31, 1997. In addition, Advisor shall
be deemed to have earned the 1997 first quarter base fee in the amount of
$7,500 which has previously been paid to Advisor by REIT.
2. MUTUAL RELEASE
A. ADVISOR RELEASE
In consideration of the execution and delivery of this Termination
Agreement by the REIT, each of the Company and Advisor, for itself, and for
its directors, managers, officers, employees, agents, representatives,
attorneys, subsidiaries, parent and affiliated companies, insurers,
principals, partners, joint venturers, members, successors, and assigns,
hereby releases and forever discharges the REIT, and each of its principals,
partners, joint venturers, directors, officers, employees, agents,
representatives, attorneys, subsidiaries, parent and affiliated companies,
insurers, successors, and assigns (collectively "REIT Related Persons") from
any and all liabilities, claims, causes of action, costs (including costs of
suit and attorney's fees and expenses), demands, damages, losses, debts,
accounts, liens, duties, or obligations of whatever nature, character, type
or description, whether known or unknown, suspected or unsuspected, asserted
or unasserted, which the Company or the Advisor has or asserts, or may
hereafter have or assert against any of the REIT Related Persons, by reason
of any act or omission arising out of or from the performance or
non-performance of the Advisory Agreement.
B. REIT RELEASE
In consideration of the execution and delivery of this Termination
Agreement by the Company and the Advisor, the REIT, for itself, and for each
of its directors, officers, employees, agents, representatives, attorneys,
subsidiaries, parent and affiliated companies, insurers, principals,
partners, joint venturers, successors, and assigns, hereby releases and
forever discharges the Company and the Advisor, and each of its respective
directors, managers, officers, employees, subsidiaries, parent and
affiliated companies principals, partners, joint venturers, members, agents,
representatives, attorneys, insurers, successors, and assigns (collectively
"Advisor Related Persons") from any and all liabilities, claims, causes of
action, costs (including costs of suit and attorney's fees and expenses),
demands, damages, losses, debts, accounts, liens, duties, or obligations of
whatever nature, character, type or description, whether known or unknown,
suspected or unsuspected,
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asserted or unasserted, which the REIT has or asserts, or may hereafter have
or assert against any of the Advisor Related Persons, by reason of any act or
omission arising out of or from the performance or non-performance of the
Advisory Agreement.
C. CALIFORNIA CODE
In exchanging the general releases set forth above, each of the parties
hereto waives and relinquishes all rights and benefits afforded under the
provisions of section 1542 of the California Civil Code, which provides as
follows:
"A general release does not extend to claims which the creditor does
not know or suspect to exist in his favor at the time of executing
the release, which if known by him must have materially affected his
settlement with the debtor."
3. ACKNOWLEDGMENT
The parties hereto acknowledge that they may hereafter discover facts
different from, or in addition to, those which they now know or believe to be
true with respect to any or all of the liabilities, claims, causes of action,
costs, demands, damages, losses, debts, accounts, liens, duties, or
obligations released in Paragraph 2. However, each of the parties hereto
agrees that the general releases set forth above shall be and remain
effective in all respects, notwithstanding discovery of such different or
additional facts.
4. EXECUTION IN COUNTERPARTS
This Termination Agreement may be executed in any number of counterparts,
each of which shall be deemed to be an original as against any party whose
signature appears thereupon, and all of which shall together constitute one
and the same instrument. This Termination Agreement shall become binding
when one or more counterparts hereof, individually or taken together, shall
bear the signatures of all of the parties reflected hereon as the signatories.
This Termination Agreement has been executed and delivered in the State
of California and is to be governed and construed according to the laws of
that state.
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IN WITNESS WHEREOF, the parties have caused this Termination Agreement to
be executed as of the day and year first above written.
HOST FUNDING, INC.
/s/ Xxx X. Xxxxxxxx
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By: Xxx X. Xxxxxxxx, Chairman
HOST FUNDING ADVISORS, INC.
/s/ Xxx Xxxxxxx-Xxxxx
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By: Xxx Xxxxxxx-Xxxxx, President
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