HOTEL MANAGEMENT AGREEMENT between PHR TCI OPCO SUB, LLC as Owner and PHR TRAVERSE CITY HOTEL MANAGER, LLC as Manager FOR Hotel Indigo HOTEL MANAGEMENT AGREEMENT
Exhibit 10.4
between
PHR TCI OPCO SUB, LLC
as Owner
and
PHR TRAVERSE CITY HOTEL MANAGER, LLC
as Manager
FOR
Hotel Indigo
000 X Xxxxxxxxx Xxxx, Xxxxxxxx Xxxx, XX 00000
This Hotel Management Agreement (the "Agreement") made as of this 15th day of August 2018 (the “Effective Date”) between PHR TCI OPCO SUB, LLC, a Delaware limited liability company (the "Owner") and PHR TRAVERSE CITY HOTEL MANAGER, LLC, a Michigan limited liability company, as Manager ("Manager"),
WHEREAS, Owner holds a leasehold interest in the Hotel pursuant to the Lease (as defined below).
WHEREAS, Manager is experienced in the management and operation of hotels.
ARTICLE 1
DEFINITIONS, TERMS AND REFERENCES
"AAA” shall have the meaning set forth in Article 30.
"Accounting Period" shall mean each calendar month (whether of 28, 29, 30 or 31 days) during each Fiscal Year.
"Affiliate" shall mean any person or entity that directly or indirectly, through one or more intermediaries, controls, is controlled by or is under common control with another person or entity. The term “control” (and correlative terms) shall mean the power, whether by contract, equity ownership or otherwise, to direct the policies or management of a person or entity. Without limiting the foregoing, an "Affiliate" also includes any partner or a partnership of any party to this Agreement, any member or membership parties thereto and any corporation, partnership, individual or trust related to or controlling or controlled by such partnership, individual or trust related to or controlling or controlled by such partnership party or its partners or such membership party or its members. A natural person is related to another natural person if he or she is a spouse, parent, or lineal descendant of the other person.
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"Allocated Services" shall mean certain support services that Manager obtains from a third party and provides on a central or regional basis to the hotels that it manages because such support services can be provided on a more efficient, effective and economical basis to each individual Manager managed hotel if the expenses of such support services are shared by other Manager managed hotels. Such support services include services in the areas of sales and marketing, purchasing, food and beverage, human resources, insurance, technology, training and payroll (each such service, an "Allocated Service"; collectively, the "Allocated Services"). Owner and Manager agree that Manager shall provide Allocated Services to the Hotel and that the Hotel's portion of the cost thereof shall constitute a Gross Operating Expense so long as (i) the costs of the Allocated Services are allocated in a commercially reasonable fashion on a proportionate basis among the Hotel and the other Manager managed hotels benefiting therefrom; and (ii) the Allocated Services shall not include services that do not benefit the Hotel. The parties agree that Manager (or its Affiliates) and the Hotel shall be returned a proportionate share of any rebates received by Manager with respect to any of the Allocated Services on a proportionate basis as compared to other hotels managed by Manager or its Affiliates.
"Annual Operating Budget" shall mean an annual operating projection for the Hotel prepared and submitted by Manager to Owner and approved by Owner for each Fiscal Year pursuant to Section 4.4(a).
"Annual Plan" shall mean an annual business plan for the operation of the Hotel prepared by the Manager and approved by the Owner, which shall include the Annual Operating Budget, the Approved Capital Budget and any other material included therein by Manager as provided in Section 4.4.
"Approved Capital Budget" shall have the meaning set forth in Section 4.4(b).
"Base Fee" shall have the meaning set forth in Article 11.
"Building and Appurtenances" shall mean (i) the hotel building located on the Premises, and (ii) landscaping and other related facilities, together with all installations located at, or used in connection with the operation of the building for hotel purposes including, without limitation, any swimming pools, health club and recreational facilities, walkways, parking facilities, heating, lighting, sanitation equipment, air conditioning, laundry facilities, refrigeration, built-in kitchen equipment, and elevators.
"Capital Budget" shall mean Manager's proposed estimate of FF&E and Capital Improvements submitted to Owner each Fiscal Year pursuant to Section 4.4.
"Capital Improvements" shall have the meaning set forth in Section 8.2 hereof.
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“Centralized Services” means those services described on Schedule IV attached hereto, which reflects those Centralized Services provided by the Manager and which may be amended from time to time in writing by the Owner and Manager or as set forth in an approved Annual Plan.
“Commencement Date” shall mean the date hereof.
"Competitive Set" shall mean the properties listed on Exhibit C attached hereto and any revisions to such list agreed upon by Owner and Manager from time to time.
"CPI" shall mean the Consumer Price Index for All Urban Consumers, United States City Average, All Items (1982-84=100), issued by the Bureau of Labor Statistics of the United States Department of Labor.
“Default Rate” shall mean the lesser of (i) the Prime Rate plus four percent (4%) per annum or (ii) the highest lawful rate permitted by applicable Legal Requirements from time to time.
“Earnings Before Interest, Taxes, Depreciation and Amortization” or “EBITDA” shall Total Operating Revenues less Gross Operating Expenses, excluding taxes of any kind (including betterments and assessments), interest, depreciation, amortization, reserves, insurance, any debt service payments and costs of the Hotel (including without limitation, debt service, fees to lenders and servicers, penalties, late fees, amortization any equipment lease payments and costs) and property, casualty and hazard insurance.
"Effective Date" shall mean the date of this Agreement as set forth on page 1 hereof.
"ERISA” shall have the meaning set forth in Section 4.2(a).
"Event of Default" shall mean any of the events described in Article 16, provided that any condition contained therein for the giving of notice or the lapse of time, or both, has been satisfied.
“Executive Personnel” shall mean the general manager, director of sales and the controller of the Hotel.
“Fee Owner” shall have the meaning set forth in the introductory section of this Agreement.
"Fiscal Year" shall mean the fiscal year that ends on the last day of each calendar year. The first Fiscal Year shall be the period commencing on the Commencement Date and ending on December 31st of the same calendar year in which the Commencement Date occurs. The last Fiscal Year shall be the period commencing on January 1st of the same calendar year in which the last day of the Term of this Agreement occurs and ending on such last day of the Term. The words "full Fiscal Year" shall mean any Fiscal Year containing not fewer than 365 days. A partial Fiscal Year after the end of the last full Fiscal Year and ending with the expiration or earlier termination of the Term shall constitute a separate Fiscal Year.
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"Furniture, Fixtures and Equipment" or "FF&E" shall mean all furniture, furnishings, wall coverings, fixtures, carpeting, rugs, fine arts, paintings, statuary, decorations, and hotel equipment and systems (including the costs associated with the purchase, installation and delivery thereof) located at, or used in connection with, the operation of the Building and Appurtenances as a hotel, including without limitation, major equipment and systems required for the operation of kitchens, bars, laundry and dry cleaning facilities, office equipment, dining room wagons, major material handling equipment, major cleaning and engineering equipment, telephone systems, computerized accounting and vehicles (including the costs associated with the purchase, installation and delivery thereof) together with all replacements therefor and additions thereto, but in all events excluding Operating Equipment and Supplies.
"GAAP” shall have the meaning set forth in Section 4.2.
"Gross Operating Expenses" shall have the meaning contained on Schedule II attached hereto. .
"Hotel" shall mean (a) the Building and Appurtenances and the Premises owned by Owner and (b) all FF&E, all Operating Equipment and Supplies, and all Inventories owned by Owner located at the address set forth on Schedule I.
"hotel" shall mean any hotel (other than the Hotel), inn, motor inn, motor hotel, motel, suite hotel, conference center, meeting center or any other facility providing either or both of short-term lodging and meeting arrangements.
"Hotel Employees" shall have the meaning set forth in Section 4.2.
"Inventories" shall mean inventories of supplies, in accordance with the Uniform System of Accounts, such as soap, toilet paper, stationery, writing pens, food and beverage inventories, paper products, menus, expendable office and kitchen supplies, fuel, supplies and items similar to any of the foregoing.
“Lease” means that certain Hotel Lease entered into by and between Owner, as tenant, and Fee Owner, as landlord, on or about the date hereof, as the same may be amended from time to time.
"Legal Proceedings" shall mean all complaints, counterclaims or cross-claims filed in a court of competent jurisdiction, any notice of any claim of violation of any legal requirement by any governmental agency or authority, or any summons or other legal process, in each instance by or against the Hotel or by or against Owner, or Manager in connection with the Hotel.
"Legal Requirements" shall mean (a) all laws, ordinances, statutes, regulations and orders relating to the Hotel and the Premises now or hereafter in effect, including but not limited to, environmental laws and (b) all terms, conditions, requirements and provisions of (i) all Permits; (ii) all leases; and (iii) all liens, restrictive covenants and encumbrances affecting the Hotel or the Premises or any part thereof.
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"Liabilities" shall have the meaning set forth in Section 24.1.
"License Agreement" shall mean the franchise or license agreement from time to time entered into by Owner with respect to the branding and operation of the Hotel. For the purposes of this definition, the following terms used in said section shall have the following meaning:
"Licensor" shall mean the franchisor or licensor under the franchise or license agreement from time to time entered into by Owner with respect to the branding and operation of the Hotel.
"Licensee" shall mean Owner; and the "Manual" shall mean the Licensor's operating manual and other manuals for Licensor described in its standard license agreement.
"Major Capital Expenditures" shall have the meaning set forth in Section 4.4.
"Major Renovations" shall mean a contemporaneously made set or series of alterations, additions and/or improvements to the Hotel with a total cost in excess of $100,000 (or a lesser amount in the event a project with a total cost less than $100,000 requires material design and purchasing and installation services related thereto and/or results in a material alteration in the design of the Hotel), but shall not include any Repairs or Maintenance with respect to Capital Improvements or FF&E.
"Management Fee" shall mean the Base Fee and other fees payable or due hereunder, all as set forth in Article 11 hereof and Schedule I attached hereto.
"Manager" shall have the meaning set forth in the introductory section of this Agreement.
"Manager’s Liability Cap" shall have the meaning set forth in Article 33.
"MEPPA” shall have the meaning set forth in Section 4.2(a).
"Minimum Cost" shall have the meaning set forth in Section 15.1.
"Mortgage" shall mean, collectively, each of the documents evidencing or securing current or future indebtedness on the Hotel in favor of a third party lender or financial institution or any successor thereto or replacement thereof (the "Lender").
"OFAC” shall have the meaning set forth in Section 26.18.
“Open for Business” shall mean the period of time during which all or substantially all of the Hotel is open for business to the general public.
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"Operating Account" shall mean a special account or accounts, bearing the name of the Hotel, established by Owner in a federally insured bank or trust company selected by Owner.
"Operating Equipment and Supplies" shall mean supply items which constitute "Operating Equipment and Supplies" under the Uniform System of Accounts, all miscellaneous serving equipment, linen, towels, uniforms, silver, glassware, china and similar items.
“Operating Standards” shall mean the operation of the Hotel in a manner consistent with (i) the requirements under the License Agreement; (ii) the condition of the Hotel as of the Commencement Date (or, following completion of a Renovation, the condition of the Hotel as of the completion of the Renovation), normal wear and tear excepted; (iii) the condition and level of the operation of hotels of comparable class and standing to the Hotel in its market area; (iv) then current market conditions regarding rental rates and lease terms and conditions with respect to Hotels of comparable class and standing to the Hotel (including but not limited to the Competitive Set); (v) the requirements under the Lease; and (vi) then current business and management practices (including those related to compliance with Legal Requirements) applicable to the management, operation, leasing, maintenance and repair of a hotel comparable in size, character and location to the Hotel.
"Owner" shall have the meaning set forth in the introductory section of this Agreement.
"Owner’s Annual Plan Objections” shall have the meaning set forth in Section 4.4.
"Performance Standard" shall have the meaning set forth in Section 18.2.
"Permits" shall mean all governmental or quasi-governmental licenses and permits, including but not limited to any certificate of occupancy, business licenses and liquor licenses.
"Permitted Investments" shall mean (subject to modification, addition or deletion from time to time at the option of Owner by written request to Manager) all of which shall be in the name of Owner:
(a) interest-bearing deposit accounts (which may be represented by certificates of deposit, time deposit open account agreements or other deposit instruments) in commercial banks having a combined capital and surplus of not less than $50,000,000; or
(b) all other investments approved by Owner.
"Premises" shall mean the land on which the Hotel is located, which land is described in Exhibit A attached hereto.
“Prime Rate” shall mean the rate per annum announced, designated or published from time to time by XX Xxxxxx Xxxxx Bank N.A. as its “prime”, “reference” or “base” rate of interest for commercial loans.
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"Privileged Information" shall have the meaning set forth in Section 26.19.
"Prohibited Persons” shall have the meaning set forth in Section 26.18.
"Proposed Capital Expenditures Budget" shall have the meaning set forth in Section 4.4.
"Proposed FF& E Budget” shall have the meaning set forth in Section 4.4.
"Proposed Operating Budget” shall have the meaning set forth in Section 4.4.
“Reimbursable Expenses” shall mean all travel, lodging, entertainment, telephone, facsimile, postage, courier, delivery, employee training and other expenses incurred by Manager in accordance with the standard policies for expenses incurred by Manager on its own behalf and which are directly related to its performance of this Agreement, but in no event will Reimbursable Expenses include or duplicate expenses for Manager’s overhead, Allocated Services or Centralized Services.
“Renovation” shall mean a renovation of any portion of the Hotel during the Term, pursuant to a plan proposed by Manager and approved by Owner to, among other things, bring the Hotel to a physical condition that satisfies the standards under the License Agreement and to operate in a manner consistent with the assumptions for the then-current Annual Operating Budget and then-current Annual Plan. A Renovation shall be carried out at the expense of Owner pursuant to plans and specifications and a schedule prepared by Manager and approved by Owner and, to the extent required under the License Agreement, by Licensor.
"Repairs and Maintenance" shall have the meaning as defined in Section 8.1.
"Reserve" shall mean an account maintained as a Permitted Investment for Reserve for replacement of FF&E and/or Capital Improvements, as described in Section 7.1 and funded as provided in Section 7.2.
“Schedule I” shall mean Schedule I attached to and made a part of this Agreement.
“Schedule II” shall mean Schedule II attached to and made a part of this Agreement.
“Schedule III” shall mean Schedule III attached to and made a part of this Agreement.
“Schedule IV” shall mean Schedule IV attached to and made a part of this Agreement.
"State" shall mean the State in which the Hotel is located or other as designated.
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"Term" shall mean the term of this Agreement, which shall be an initial five (5) year term commencing on the Commencement Date and expiring on the fifth (5th) anniversary of the Commencement Date, as such Term may be extended or shortened as expressly set forth in this Agreement or as otherwise agreed to by Owner and Manager.
“Third Party Purchaser” shall have the meaning set forth in Section 18.1.
"Total Operating Revenues" has the meaning set forth on Schedule III attached hereto.
"Unavoidable Interruptions" shall mean interruptions in the operation of or access to the Hotel or any of its essential services on account of an interruption in any one or more of the utility services described in Section 13.2, or on account of labor disputes, strikes, lockouts, fire or other casualty, war, terrorist actions, acts of God and other similar causes beyond the reasonable control of the party claiming an unavoidable interruption, but never financial inability. Other than obligations accruing prior to the occurrence of an event of Unavoidable Interruption or obligations that, if not performed, would cause a material adverse effect on the Hotel or its operations (for instance, the requirement to maintain the Permits or insurance obligations hereunder), the obligations of the party hereunder shall be suspended during the period of an Unavoidable Interruption.
"Uniform System of Accounts" shall mean the Uniform System of Accounts for the Lodging Industry, 11th Revised Edition, 2014, as published by the Hotel Association of New York City, Inc. or any later edition thereof.
"Working Capital" shall mean and refer to the funds which are reasonably necessary for the day-to-day operation of the Hotel's business, including, without limitation, amounts sufficient for the maintenance of xxxxx cash funds, operating bank accounts, receivables, payrolls, prepaid expenses, advance deposits, funds required to maintain inventories, and amounts due to/or from Manager and/or Owner less accounts payable and accrued current liabilities.
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ARTICLE 2
Owner hereby engages and appoints Manager, pursuant to the terms of this Agreement, to operate and manage the Hotel, and Manager hereby agrees and contracts to plan, operate, repair and manage the Hotel pursuant to the terms of this Agreement.
Subject to the terms of this Agreement, Hotel operations shall be under the exclusive supervision of Manager, which, except as otherwise specifically provided in this Agreement, shall be responsible for the proper and efficient operation, maintenance and repair of the Hotel in accordance with the terms of this Agreement. Except as specifically set forth in this Agreement, Manager shall have discretion and control respecting matters relating to management and operation of the Hotel, including, without limitation, charges for rooms and commercial space, credit policies, food and beverage services, other Hotel services, employment policies, granting of concessions or leasing of shops and agencies within the Hotel, procurement of inventories, supplies and services, promotion and publicity and, in general, all activities necessary for operation of the Hotel.
Manager shall devote its knowledge, experience and efforts to operate and manage the Hotel pursuant to this Agreement in a businesslike manner in accordance with the Operating Standards. Manager shall make available to Owner the full benefit of the judgment, experience and advice of the members of Manager's organization and staff with respect to the policies pursued by Owner in operating, maintaining, and servicing the Hotel.
ARTICLE 3
3.1 Term. The agreement shall be in effect for the initial Term. If this Agreement has not been otherwise terminated in accordance with the terms of this Agreement, upon the expiration of the initial Term, the initial Term shall be automatically be extended by four (4) terms of one (1) year each, unless either Owner and Manager send a termination notice at least thirty (30) days prior to the then expiration of the Term to cancel this Agreement effective as of the then next expiration of the Terms (as it may be extended). Notwithstanding the foregoing, the Agreement may be terminated prior to the scheduled expiration of the Term or any extension thereof (i) upon the sale of the Hotel to a bona fide Third Party Purchaser, subject to and as allowed and provided in Article 18 hereof; and (ii) as otherwise provided in Articles 15, 17 and 18.
3.2 Surrender. On the expiration or sooner termination of the Term, Manager shall quit and surrender the Premises to Owner in the condition required pursuant to this Agreement and take such other actions as contemplated by Article 20 hereof.
ARTICLE 4
USE AND OPERATION OF THE HOTEL
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Notwithstanding anything to the contrary contained in this Agreement, the following subparagraphs (b) and (c) shall apply to any liability that may, from time to time, arise out of the Employee Retirement Income Security Act of 1974 ("ERISA") and the Multi-employer Pension Plan Amendments Acts of 1980 ("MEPPA"), respectively, as from time to time amended.
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Upon the expiration or termination of this Agreement, the sale of the Hotel or other similar event, Manager shall cooperate with the Owner with respect to disposition of such plan or plans (or plan assets) in a mutually satisfactory manner, all in compliance with then applicable Legal Requirements.
(c) Collective Bargaining or Other Multi-employer Plans: Manager and Owner agree that with respect to any withdrawal liability arising under any collective bargaining agreement or other "multi-employer plan" (as defined in Section 3(37) of ERISA) in which the Hotel Employees become participants, the obligations of the parties shall be determined as follows:
(1) Withdrawal liability arising with respect to Hotel Employees shall be the responsibility of Owner, and Owner shall either pay the amount of such withdrawal liability directly to such plan or reimburse Manager for withdrawal liability payments made to such plan by Manager with respect to Hotel Employees (including withdrawal liability arising after the sale or other termination of this Agreement, provided that such liability arises as a result of such sale, disposition, termination or other similar event). To the extent permitted under then applicable laws, regulations and agreements, Manager shall cooperate with Owner in structuring transactions and transferring actual or contingent withdrawal liability to a successor in ownership or purchaser of the Hotel in accordance with "relief" provisions of ERISA, such as ERISA Section 4204 or then applicable statutory or regulatory provisions of a similar nature.
(2) For purpose of this subparagraph (c), the term "withdrawal liability" shall mean the actual amount assessed by and payable to a multi-employer pension fund upon a complete or partial withdrawal of the Hotel or Hotel Employees from such fund. Manager shall cooperate with Owner in challenging a plan's assessment of such liability, provided that all costs of litigation, arbitration or other procedures shall be paid by Owner (including any bonds that must be posted). If Manager or its Affiliates have employees at other locations who participate in the same multi-employer plan as Hotel Employees, Owner shall be charged with and be responsible only for multi-employer plan withdrawal liability arising solely with respect to the participation of Hotel Employees in such plan.
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(a) The Annual Operating Budget shall be prepared in accordance with the Uniform System of Accounts. The proposed Annual Operating Budget shall incorporate Manager's good faith reasonable estimates of the items of revenue and expense contained therein and shall contain the proposed budget for operations for the succeeding Fiscal Year. When approved by Owner, the proposed Annual Operating Budget shall be the approved Annual Operating Budget. Any revisions, substitutions or additions to the Annual Operating Budget must be approved by the Owner in writing. The proposed Annual Plan shall include for the ensuing Fiscal Year, the following proposed budgets and programs:
A. A proposed operating budget (the “Proposed Operating Budget”) on a monthly and yearly basis with detailed departmental schedules for each line item and the assumptions underlying the same, including, without limitation: (a) projected occupancy and average room rates by month broken down by room segment; (b) projected Total Operating Revenues; (c) proposed Hotel room rates and charges for other services; (d) projected Gross Operating Expenses; (e) projected EBITDA; (f) proposed staff scheduling and compensation (including, without limitation, any bonuses or other incentive compensation for Hotel Employees which may take the form of a “bonus pool” stating an aggregate amount to be distributed among the Hotel Employees as appropriate, rather than separately setting forth incentive and/or bonus compensation for each Hotel Employee); (g) a narrative comparison of budgeted revenue and expense levels to the previous Fiscal Year’s estimated and actual results, highlighting material changes for the upcoming Fiscal Year; (h) anticipated depreciation and amortization of fixed assets at the Hotel; (i) annual debt service with respect to the Hotel; (j) projected contributions by, and distributions to, Owner as the result of Hotel operations; (k) an estimate of the working capital funds required to be maintained, as of the end of each month; (l) a year-over-year comparison with comments regarding variance; (m) the cost of the Centralized Services, and(o) all other items reasonably requested by Owner in order to provide the projected cash flow for the Hotel during such upcoming Fiscal year.
B. A proposed budget (the “Proposed Capital Expenditures Budget” or “Capital Budget” and when the Annual Plan is approved and agreed, the “Approved Capital Budget”) setting forth Manager’s estimate of the Capital Expenditures to be made respecting the Hotel for both of the following:
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(a) major repairs, alterations, improvements, renewals and replacements (which repairs, alterations, improvements, renewals and replacements are not routine maintenance, repairs and alterations referred to in Section 6.1.2(b)) to the structural, mechanical, electrical, heating, ventilating, air conditioning, plumbing and vertical transportation elements of the Hotel building (“Major Capital Expenditures”); and
(b) non-routine repairs and maintenance to the Hotel building which are normally capitalized under GAAP, such as exterior and interior repainting, resurfacing building walls, floors, roofs and parking areas, and replacing folding walls and the like, but which are not Major Capital Expenditures.
C. A proposed budget (the “Proposed FF&E Budget”) setting forth Manager’s estimate of the FF&E expenditures to be made and the sources of funds for the replacements and renewals to the Hotel’s FF&E, including all information necessary to satisfy the reporting requirements in the License Agreement and the Mortgage relating to the FF&E Reserve.
D. A market overview of local competitive properties of the Hotel including narrative descriptions of (a) the Hotel’s target market, (b) the Hotel’s relative position in such market, and (c) the proposed room rate structures and occupancy for the target market.
E. A marketing plan for the Hotel including narrative descriptions and Hotel allocable costs, of (a) Manager’s national or regional or business segment marketing plans, (b) local Hotel marketing, and (c) intended sales initiatives.
F. A staffing plan describing the general staffing needs for the operation and management of the Hotel.
In preparing the Proposed Operating Budget, or otherwise from time to time upon the request of Owner, Manager shall use commercially reasonable efforts to investigate, consider and incorporate into the day-to-day operations of the Hotel certain efficiencies and economies of scale that may be achieved by outsourcing some or all services that may be currently provided “in-house”.
In addition, Manager shall provide to Owner for Owner's review, a written schedule for the Hotel listing all executive and management employees to be employed "on-site" in the direct management of the Hotel including, but not limited to the positions of General Manager, Director of Sales, and Chief Engineer. These schedules shall include such employee's title or job description and the salary range including additional compensation or prerequisites such as lodging, meals, maintenance, moving expenses, bonus/incentive compensation and the like. In the event that any employee's services are shared with (or subsidized through a sharing arrangement with) another hotel, the employee shall be identified together with a description of his/her responsibilities and the amount and source of any subsidy, together with a breakdown of the relative time expended with respect to the Hotel and each other hotel. If Owner notifies Manager that Owner does not believe that some or all of the scheduled wages and salaries are reasonable and customary as required above, then Manager shall promptly provide to Owner a wage and salary survey that supports the scheduled wages and salaries. No proposed amendment including changes in salary or other compensation shall be effective unless the salary or other compensation as changed is reasonable and customary as required above.
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4.5 Contracts; Equipment Leases.
Subject to the terms of this Section 4.5, Manager may contract for the purchase of goods and services for the Hotel with third parties that have other contractual relationships with Manager or its Affiliates, so long as the prices charged by such third parties are reasonably competitive. In addition:
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ARTICLE 5
Owner and Manager acknowledge and agree that this Agreement creates an agency relationship; provided, however, that (a) each Hotel Employee shall be the employee of Manager or Manager’s Affiliate and not of Owner, (b) Manager's authority is subject to the terms and conditions of this Agreement, and (c) nothing in this Agreement shall constitute, or be construed to be, or create, a partnership, joint venture or lease or employment arrangement between Owner and Manager with respect to the Hotel or the operation thereof. Employees or agents of Manager are not by this Agreement or by any actions of Owner and/or Manager hereunder made employees of Owner, and are not entitled to the benefits provided by Owner or its Affiliates to its employees, including but not limited to, group insurance, leave and pension plan. This Agreement shall not be deemed at any time to be an interest in real estate or a lien or security interest of any nature against the Hotel, the Premises or any other land used in connection with the Hotel, or any equipment, fixtures, inventory, motor vehicles, contracts, documents, accounts, notes, drafts, acceptances, instruments, chattel paper, general intangibles, or other personal property now existing or that may hereafter be acquired or entered into with respect to the Hotel or the operation thereof.
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ARTICLE 6
Subject to and in strict compliance with the provisions of the License Agreement, Manager shall arrange and contract for all advertising, which Manager may reasonably deem necessary, in accordance with Section 4.4, for the operation of the Hotel. So long as the License Agreement may be in effect, Manager generally shall advertise the Hotel under the name of the Hotel set forth on Schedule I or such other name as Owner may designate or approve.
ARTICLE 7
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ARTICLE 8
REPAIRS AND MAINTENANCE AND CAPITAL IMPROVEMENTS
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ARTICLE 9
WORKING CAPITAL AND BANK ACCOUNTS; DISTRIBUTIONS
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Manager shall not change the bank or open or close any bank account described in this Article 9 without Owner's prior written approval, which approval Owner shall not unreasonable withhold.
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Full payment of the following items in the following order has occurred:
| (A) | all due and payable Management Fees, Centralized Services costs, Reimbursable Expenses and/or any other amounts due hereunder to Manager; |
| (B) | due and payable Gross Operating Expenses; and |
| (C) | the deposit of any reserves required to be held hereunder, under the Mortgage or the License Agreement. |
Upon payment of the same, Manager may distribute from the Operating Account to Owner all sums in the Operating Accounts in excess of the then working capital requirements of the Hotel determined in accordance with Section 9.1 of this Agreement.
ARTICLE 10
(a) Manager shall deliver to Owner within twenty (20) days following the close of each Accounting Period a monthly profit and loss statement reflecting a comparison of periodic and year-to-date actual revenues and expenses with the Annual Operating Budget as well as a periodic and year-to-date comparison of such actual revenues and expenses with those of the prior Fiscal Year.
(b) Further, Manager shall provide to Owner within twenty (20) days following the close of each Accounting Period a report prepared in accordance with the example set forth in Exhibit B attached hereto and made a part hereof.
(c) Further, within seventy-five (75) days after (i) the end of each Fiscal Year and (ii) the end of the Term of this Agreement, Manager shall deliver to Owner an annual accounting, showing the results of operation of the Hotel during the Fiscal Year and a computation of Total Operating Revenues, Gross Operating Expenses, and any other information necessary to make the computations required hereby or which may be requested by Owner, all for such Fiscal Year. The annual accounting for any Fiscal Year shall be controlling over the interim accountings for such Fiscal Year. Owner shall have the right to conduct an audit of the books.
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ARTICLE 11
MANAGER'S MANAGEMENT FEES; TIMING OF
PAYMENT TO MANAGER
(a) the Base Fee set forth on Schedule I; plus
(b) the fees and costs for Centralized Services provided herein.
The Management Fee generally shall be computed separately for each Fiscal Year and shall not be accumulated from Fiscal Year to Fiscal Year. Owner shall reimburse Manager for all Reimbursable Expenses incurred by it in connection with the performance of this Agreement. Any such amount shall be payable within thirty (30) days of billing, and upon request of Owner, Manager shall provide a statement showing in reasonable detail the nature and amount of such expenses, together with supporting documentation reasonably requested by Owner.
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ARTICLE 12
Manager shall procure and maintain (i) the Workers’ Compensation and employer’s liability insurance required under Section 12.2.1 and (ii) Commercial Crime insurance required under Section 12.2.2 and (iii) Employment Practices Liability insurance required under Section 12.2.4 and (iv) at Manager’s sole cost and expense, the professional liability/errors and omissions insurance required under Section 12.2.7. Except to the extent caused by Manager’s or its Affiliate’s negligence or willful misconduct, Owner assumes all risks in connection with the adequacy of any insurance and waives any claim against Manager and its Affiliates for any liability, cost, or expense arising out of any uninsured or under-insured claim. All insurance for the Hotel that is obtained under Manager’s insurance program will terminate effective upon Termination. Except as otherwise provided herein, the costs and expense of the insurance required by the Manager under this Article 12 shall be a Gross Operating Expense or otherwise paid by Owner.
12.1.1 Insurance against loss or damage from explosion of boilers, pressure vessels, pressure pipes and sprinklers, to the extent applicable, installed in the Hotel; and
12.1.2 Business interruption insurance covering net income plus necessary continuing expenses for interruptions caused by any occurrence covered by the insurance referred to in Section 12.1.1 and 12.1.2, for a period of not less than twelve (12) months commencing at the time of loss.
12.2.1 Workers’ Compensation and employer’s liability insurance as may be required under Applicable Laws covering all of the Hotel Employees, with such deductible limits in an amount not to exceed $25,000 and waiver of subrogation in favor of Owner will be procured and maintained by the Manager.
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12.2.2 Fidelity bonds or insurance, subject to a deductible of not more than $25,000 per loss, covering Manager’s on site Hotel Employees in job classifications normally bonded in the hotel industry or as otherwise required by law will be procured and maintained by the Manager. Such coverage shall include a loss payable endorsement in favor of Owner and, to the extent available on commercially reasonable terms, shall include an extension for third party coverage with an endorsement confirming such extension that protects Owner’s property, including, without limitation, monies and securities.
12.2.3 Commercial general public liability insurance and excess umbrella liability insurance, including, but not limited to, coverage against claims for personal injury, death or property damage occurring on, in, or about the Hotel, including, without limitation, innkeeper’s liability, garage liability, garage keeper’s legal liability, liquor liability and automobile insurance on vehicles operated in conjunction with the Hotel, as applicable, with single-limit coverage for personal and bodily injury and bodily damage of at least $1,000,000 per occurrence and $2,000,000 in the aggregate and protection for third party claims will be procured and maintained by the Owner. Manager and any other party or interest requested by Manager shall be included as an additional named insured under the coverages required in this subsection.
12.2.4 Employment practices liability insurance with an extension for third party claims will be procured and maintained by the Manager.
12.2.5 Umbrella liability insurance coverage to a limit of not less than $25,000,000 which shall provide excess coverage of all underlying insurances will be procured and maintained by the Owner.
12.2.6 Manager’s or Manager’s Affiliates’ corporate office professional liability/errors and omissions insurance with a minimum amount of a $2,000,000 limit of liability, covering financial loss arising from errors and omissions committed in the performance of Hotel Management services at the Hotel. Such insurance shall provide coverage for claims arising from professional services performed by Manager for wrongful acts which shall be defined as any actual or alleged negligent act, error or omission, misstatement or misleading statement or personal injury offense committed by the Manager or by any other person or entity acting on Manager’s behalf in the performance of or failure to perform professional services. Personal injury offense also means any actual or alleged false arrest, detention or imprisonment, malicious prosecution, defamation including libel, slander and disparagement, publication or an utterance in violation of an individual’s right to privacy and invasion of the right to private occupancy, including wrongful entry or eviction. The cost of this insurance shall be borne by Manager and is not an Operating Expense.
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12.5 Policies and Endorsements.
12.5.1 Where permitted and as applicable, all insurance provided under this Article 12 shall be carried in the name of Manager. Owner, Fee Owner and each of their officers, members, partners, shareholders, directors, agents, Affiliates, employees, successors and assigns, Licensor and the holder of the Mortgage on the Hotel, if any, shall be named as additional insureds on any insurance hereunder and any losses thereunder shall be payable to the parties as their respective interests may appear. To the extent any insurance is carried in the name of Owner, Manager and its officers, members, partners, shareholders, directors and employees shall be named as additional insureds on any such policies and any losses thereunder shall be payable to the parties as their respective interests may appear. The party procuring such insurance shall deliver to the other party certificates of insurance respecting all policies so procured, including existing, additional and renewal policies and, in the case of insurance about to expire, shall deliver certificates of insurance respecting the renewal policies within ten (10) days of the respective expiration dates.
12.5.2 All policies of insurance provided under this Article 12 shall, to the extent obtainable, have attached an endorsement that such policy shall not be canceled or materially changed without at least thirty (30) days prior notice to Owner, Manager, any Franchisor and the holder of the Mortgage.12.6
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ARTICLE 13
REAL AND PERSONAL PROPERTY TAXES; UTILITIES
ARTICLE 14
ARTICLE 15
DAMAGE OR DESTRUCTION; CONDEMNATION
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(b) If the cost of such repair and/or restoration will, as so reasonably estimated by Owner, exceed the Minimum Cost, then Owner shall, within one hundred twenty (120) days after such damage or destruction, elect by notice to Manager either (x) to carry out such repair and/or restoration, in which case Owner shall complete such repair and/or restoration pursuant to the last sentence of Section 15.1(a) or (y) to terminate this Agreement; should Owner so elect to terminate this Agreement. Upon the termination of this Agreement pursuant to this paragraph, Operator shall be entitled to a Reinstatement Right for a period of 24 months from the date of termination.
(c) In the case of damage or destruction which Owner is required by the preceding provisions of this Section 15.1 to repair or restore or where Owner has not elected under said preceding provisions to terminate this Agreement, Owner shall undertake to so repair and/or restore such damage or destruction and neither Owner nor Manager shall have a right to terminate this Agreement on account of such damage or destruction.
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ARTICLE 16
(a) The failure of Manager to pay any sum of money to Owner provided for herein when the same is payable, if such failure is not cured within ten (10) days after written notice specifying such failure is given by Owner to Manager
(b) An assignment by Manager in violation of the provisions of Article 23 hereof.
(c) If Manager shall fail to keep, observe or perform any other material covenant, agreement, term or provision of this Agreement to be kept, observed or performed by Manager and such failure shall continue for a period of thirty (30) days after written notice specifying such failure given by Owner to Manager, or if Manager due to any act or omission on the part of Manager and without the fault of Owner, shall fail to maintain the Permits and such failure shall continue for a period of thirty (30) days after written notice specifying such failure given by Owner to Manager; provided that if such failure is incapable of cure within such thirty (30) day period, then the cure period shall be extended provided that Manager commenced the cure during such initial thirty (30) day period and thereafter diligently and continuously pursues the cure thereof to completion.
(d) If because of any act or omission on the part of Manager, and without the fault of Owner, either (i) the License Agreement or (ii) any required license for the sale of alcoholic beverages at the Hotel, is at any time suspended, terminated or revoked for a period of more than thirty (30) consecutive days, provided, however, if, at the end of such thirty (30) day period the cure has not been effectuated notwithstanding Manager's diligent and continuous attempts to cure, then the cure period shall be extended for an additional period of ninety (90) days.
(e) If Manager shall fail to maintain and operate the Hotel in accordance with the standards required under Section 4.1 and such failure shall not be due to a refusal on the part of Owner to approve the Annual Plan submitted by Manager under Section 4.4 or Owner's failure to properly provide funds requested pursuant to the provisions of Article 9 and such failure shall continue for a period of sixty (60) days after written notice by Owner to Manager specifying the matters or conditions which constitute the basis for such Event of Default, provided that if such failure is not reasonably capable of cure within such sixty (60) day period, then the cure period shall be extended provided that Manager commences the cure during such initial sixty (60) day period and thereafter diligently and continuously pursues the cure thereof to completion.
(f) If Manager shall apply for or consent to the appointment of a receiver, trustee or liquidator of Manager or of all or a substantial part of its assets, admit in writing its inability to pay its debts as they come due, make a general assignment for the benefit of creditors, take advantage of any insolvency law, or file an answer admitting the material allegations of a petition filed against Manager in any bankruptcy, reorganization or judgment or if an order, judgment or decree shall be entered by any court of competition jurisdiction, on the application of a creditor, adjudicating Manager bankrupt or insolvent or approving a petition seeking reorganization of Manager or appointing a receiver, trustee or liquidator of Manager or of all or a substantial part of its assets, and such order, judgment or decree shall continue unstayed and in effect for any period of ninety (90) consecutive days.
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(g) The filing of a voluntary petition in bankruptcy or insolvency or a petition for liquidation or reorganization under any bankruptcy law by Manager, or Manager shall consent to, acquiesce in, or fail timely to controvert, an involuntary petition in bankruptcy, insolvency or an involuntary petition for liquidation or reorganization filed against it.
(h) The filing against Manager of a petition seeking adjudication of Manager as insolvent or seeking liquidation or reorganization or appointment of a receiver, trustee or liquidator of all or a substantial part of Manager's assets, if such petition is not dismissed within ninety (90) days.
(i) Failure of Manager (but excluding such a failure which results from the failure by Owner to provide the necessary funds therefor) to maintain at all times throughout the term hereof all of the insurance required to be maintained by Manager under Article 12, if such failure is not cured within fifteen (15) days after written notice specifying such failure is given by Owner to Manager.
(j) The fraud, gross negligence, willful misconduct or criminal conduct of or by Manager in connection with the Hotel.
16.2 Owner Defaults. Each of the following shall constitute an Event of Default by Owner:
(a) The failure of Owner to pay or furnish to Manager any money Owner is required to pay or furnish to Manager in accordance with the terms hereof on the date the same is payable, if such failure is not cured within five (5) days after written notice specifying such failure is given by Manager to Owner. If any sum of money is not paid within five (5) days following the date same becomes due and payable under this Agreement, and Manager has advanced such sum on behalf of Owner, such sum shall bear interest at the Default Rate from the date Manager advanced such sum on behalf of Owner until the date Owner actually pays such sum. If the failure to pay relates to the Management Fee, such sum shall bear interest at the Default Rate from the date due until the date actually paid.
(b) If because of a default under the Mortgage, if any, not caused by the act or omission of Manager, the Mortgage shall be foreclosed, or the Hotel sold in lieu of foreclosure.
(c) If Owner shall apply for or consent to the appointment of a receiver, trustee or liquidator of Owner of all or a substantial part of its assets, or admit in writing its inability to pay its debts as they come due, make a general assignment for the benefit of creditors, take advantage of any insolvency law, or file an answer admitting the material allegations of a petition filed against Owner in any bankruptcy, reorganization or insolvency proceeding, or if an order, judgment or decree shall be entered by any court of competent jurisdiction, on the application of a creditor, adjudicating Owner a bankrupt or insolvent or approving a petition seeking reorganization of Owner or appointing a receiver, trustee or liquidator of Owner or of all or a substantial part of its assets, and such order, judgment or decree shall continue unstayed and in effect for any period of ninety (90) consecutive days.
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(d) The filing of a voluntary petition in bankruptcy or insolvency or a petition for liquidation or reorganization under any bankruptcy law by Owner, or Owner shall consent to, acquiesce in, or fail timely to controvert, an involuntary petition in bankruptcy, insolvency or an involuntary petition for liquidation or reorganization filed against it.
(e) The filing against Owner of a petition seeking adjudication of Owner as insolvent or seeking liquidation or reorganization or appointment of a receiver, trustee or liquidator of all or a substantial part of Owner's assets, if such petition is not dismissed within ninety (90) days.
(f) Failure of Owner to maintain at all times throughout the term hereof all of the insurance required to be maintained by Owner under Article 12, if such failure is not cured within fifteen (15) days after written notice specifying such failure is given by Manager to Owner.
(g) The failure of Owner to perform, keep or fulfill any of the other covenants, undertakings, obligations or conditions set forth in this Agreement, or the failure of Owner to approve expenditures or to authorize procedures necessary to maintain the standards of the Hotel in accordance with the Operating Standards, if such failure shall continue for a period of sixty (60) days after written notice by Manager or Licensor to Owner specifying the matters or conditions which constitute the basis for such Event of Default, provided that if such failure is incapable of cure within such sixty (60) day period, then the cure period shall be extended provided that Owner commences the cure during such initial sixty (60) day period and thereafter diligently and continuously pursues the cure thereof to completion.
ARTICLE 17
TERMINATION UPON EVENT OF DEFAULT; OTHER REMEDIES; OTHER
MANAGER TERMINATION
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17.2 Manager’s Rights to Perform.
(a) If Owner shall fail to make any payment or to perform any act required of Owner pursuant to this Agreement, Manager may (but shall not be obligated to), without further notice to, or demand upon, Owner and without waiving or releasing Owner from any obligations under this Agreement, make such payment (either with its own funds or with funds withdrawn for such purpose from the Operating Accounts or the Reserve) or perform such act. All sums so paid by Manager and all necessary incidental costs and expenses incurred by Manager in connection with the performance of any such act, together with interest thereon at the Default Rate from the date of making such expenditure by Manager, shall be payable to Manager on demand.
(b) Manager shall have the right to set-off against any payments to be made to Owner by Manager under any provision of this Agreement and against all funds from time to time in the Operating Accounts and the Reserve, any and all liabilities of Owner to Manager. Manager may withdraw from the Operating Accounts and the Reserve from time to time such amounts as Manager deems desirable in partial or full payment of all or any portion of said liabilities, the amount of such withdrawals to be paid by Owner to Manager on demand and to be replaced in the respective account and fund.
ARTICLE 18
OWNER'S ADDITIONAL TERMINATION RIGHTS
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ARTICLE 19
ARTICLE 20
TRANSFER TO OWNER UPON TERMINATION
Upon the termination or expiration of the Term of this Agreement, whether due to the occurrence of an Event of Default or otherwise, Manager shall cooperate with Owner and shall execute those documents or instruments reasonably requested by Owner in connection with the transfer or reissue the Permits, without payment of a fee to Manager, to Owner or its nominee, provided that Manager shall not be required to incur liability or out of pocket cost in connection with such transfer. Without limiting the generality of the foregoing, Manager shall cause its officials to execute documents and visit licensing authorities, along with Owner's representatives, in order to expedite the orderly transfer or reissuance to Owner or its designee of the Permits. Following the termination or expiration of the Term, Manager will prepare provide a final accounting report in accordance with the provisions set forth in Section 10.2(c) of this Agreement and in the same manner and scope as previously provided by Manager following prior Fiscal Years under this Agreement. In the event that Owner requests additional reports or assistance from Manager following the termination or expiration of this Agreement, Owner shall pay to Manager the such reasonable fees as determined by the Manager through the date on which such additional services or assistance are to be provided. In the event that this Agreement terminates due to any reason other than a default by Manager under this Agreement, a sufficient number of Hotel Employees will be hired by Owner or its successor, assign or designee, and retained for at least 90 days thereafter, so as not to cause a “mass layoff” or “plant closing”, as defined in the Workers Adjustment and Retraining Act, 29 USC, sec 2101 et seq.
ARTICLE 21
All notices, elections, acceptances, demands, consents and reports (collectively "notice") provided for in this Agreement shall be in writing and shall be given to the other party at the address set forth below or at such other address as any of the parties hereto may hereafter specify in writing.
| To Owner: | PHR TCI OPCO SUB, LLC |
| 0000 Xxxxxxxxx Xxxxxx | |
| Xxxxxxxx, XX 00000 | |
| Attn: Xxxxxxx X. Xxxxxxxxx |
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| With a copy to: | Xxx X. Xxxxx |
| General Counsel | |
| Procaccianti Companies | |
| 0000 Xxxxxxxxx Xxxxxx | |
| Xxxxxxxx, Xxxxx Xxxxxx 00000 | |
| Telephone: (000) 000-0000 | |
| Email: xxxxxx@xxxxxxxxxxxx.xxx | |
| Facsimile: (000) 000-0000 | |
| To Manager: | 0000 Xxxxxxxxx Xxxxxx |
| Xxxxxxxx, Xxxxx Xxxxxx 00000 | |
| Attn: Xxxxxxxxx X. Xxxxxxxxxxxx | |
| Telephone: (000) 000-0000 | |
| Facsimile: (000) 000-0000 | |
| With copy to: | |
| Xxxxxxx Xxxxx | |
| Corporate Counsel | |
| Procaccianti Companies | |
| 0000 Xxxxxxxxx Xxxxxx | |
| Xxxxxxxx, Xxxxx Xxxxxx 00000 | |
| Telephone: (000) 000-0000 | |
| Facsimile: (000) 000-0000 |
Such notice or other communication may be given by Federal Express or other nationally recognized overnight carrier or by electronic facsimile in which case notice shall be deemed given upon confirmed delivery. Notice may be mailed by United States registered or certified mail, return receipt requested, postage prepaid, deposited in a United States post office or a depository for the receipt of mail regularly maintained by the post office. If mailed, then such notice or other communication shall be deemed to have been received by the addressee on the fifth (5th) day following the date of such mailing. Such notices, demands, consents and reports may also be delivered by hand, in which case it shall be deemed received upon delivery.
ARTICLE 22
Except as herein otherwise provided, whenever in this Agreement the consent or approval of Manager or Owner is required, such consent or approval shall not be unreasonably withheld or delayed. Such consent or approval shall also be in writing only and shall be executed only by an authorized officer or agent of the party granting such consent or approval.
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ARTICLE 23
This Agreement shall not be assignable by Manager or Owner; provided however, that either party shall be entitled to assign this Agreement to an Affiliate of such party as part of a modification to such party’s company structure in which all or substantially all of such party’s assets are transferred to an Affiliate of such party; and Manager shall have the right to assign its rights to receive payments under this Agreement as security for indebtedness or other obligations. Notwithstanding the foregoing, any “assignment” by Manager to a successor entity resulting from a merger, acquisition, disposition or consolidation of all or substantially all of the equity or assets of Manager shall be permitted and not require the consent of Owner hereunder so long as (i) either (A) the “Manager” under this Agreement remains controlled by at least any two of Xxxxx X. Xxxxxxxxxxxx, Xxxxxxxxx X. Xxxxxxxxxxxx, Xxxxxxx X. Xxxxxxxxx, Xxxxxx Xxxxx, or Xxxx Xxxxx (the “Executive Team”) or, (B) if Manager is itself, or is controlled by, a corporation whose stock is listed and publicly traded over-the-counter on a nationally recognized stock exchange in the United States, so long as at least two (2) members of the Executive Team are on the Board of that corporation, (ii) the assignee continues to comply with all of the obligations of Manager hereunder, (iii) the assignee, in Owner’s good faith reasonable judgment, has the skill, experience, professional resources and financial ability to perform under this Agreement and can provide the comparable operating, management and financial reporting functions of Manager under this Agreement consistent with the Operating Standards, including without limitation providing the Centralized Services and holding the right to use all trademarks and proprietary information related to the Hotel, and (iv) no such assignment shall cause Owner to be in default under the Franchise Agreement or under the Mortgage.
ARTICLE 24
(a) If the Liabilities are attributable to the gross negligence or willful misconduct of the Executive Personnel, the cost thereof shall be borne solely by Manager and not paid out of Total Operating Revenues.
(b) If the Liabilities are attributable to any other reason or cause, the cost of such indemnification shall be paid as a Gross Operating Expense of the Hotel or failing payment of the same, by Owner.
Manager's obligations under this Section 24.1 shall not include any losses, expenses or damages arising from any matters relating to the structural integrity of the Hotel or other matters relating to defects in design, materials or workmanship in the construction of the Hotel.
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ARTICLE 25
In the event that any one or more of the phrases, sentences, clauses or paragraphs contained in this Agreement shall be declared invalid by the final and unappealable order, decree or judgment of any court, this Agreement shall be construed as if such phrases, sentences, clauses or paragraphs had not been inserted, unless such construction would substantially destroy the benefit of the bargain of this Agreement to either of the parties hereto.
ARTICLE 26
26.5 Governing Law. This Agreement shall be construed, both as to its validity and as to the performance of the parties, in accordance with the laws of the State of Michigan.
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26.14 Time is of the Essence. Time is of the essence in this Agreement.
26.18 Prohibited Persons and Transactions.
(a) Manager is not, and shall not become, a person or entity with whom U. S. persons or entities are restricted from doing business under regulations of the Office of Foreign Asset Control ("OFAC") of the Department of the Treasury (including those named in OFAC's Specially Designated and Blocked Person's List) or under any statute, executive order (including the September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions With Persons Who Commit, or Support Terrorism), or other governmental action (such persons and entities being "Prohibited Persons").
(b) Owner is not and shall not become a Prohibited Person.
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ARTICLE 27
NO REPRESENTATIONS AS TO INCOME OR FINANCIAL SUCCESS OF HOTEL
In entering into this Agreement, Manager and Owner acknowledge that neither Owner nor Manager has made any representation to the other regarding projected earnings, the possibility of future success or any other similar matter respecting the Hotel, and that Manager and Owner understand that no guarantee is made to the other as to any specific amount of income to be received by Manager or Owner or as to the future financial success of the Hotel.
ARTICLE 28
In order to induce Owner to enter into this Agreement, Manager does hereby make the following representations and warranties:
(a) the execution of this Agreement is permitted by the certificate of formation and partnership agreement of Manager and this Agreement has been duly authorized, executed and delivered and constitutes the legal, valid and binding obligation of Manager enforceable in accordance with the terms hereof;
(b) to the best knowledge of Manager, there is no claim, litigation, proceeding or governmental investigation pending, or, as far as is known to Manager, threatened, against or relating to Manager, the properties or business of Manager or the transactions contemplated by this Agreement which does, or may reasonably be expected to, materially and adversely affect the ability of Manager to enter into this Agreement or to carry out its obligations hereunder, and to the best knowledge of Manager, there is no basis for any such claim, litigation, proceedings or governmental investigation, except as has been fully disclosed in writing to Owner; and
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(c) neither the consummation of the transactions contemplated by this Agreement on the part of Manager or to be performed, nor the fulfillment of the terms, conditions and provisions of this Agreement, conflicts with or will result in the breach of any of the terms, conditions or provisions of, or constitute a default under, any agreement, indenture, instrument or undertaking to which Manager is a party or by which it is bound.
ARTICLE 29
In order to induce Manager to enter into this Agreement, Owner does hereby make the following representations and warranties:
(a) the execution of this Agreement is permitted by the Limited Liability Company Agreement of Owner and this Agreement has been duly authorized, executed and delivered and constitutes the legal, valid and binding obligation of Owner enforceable in accordance with the terms hereof;
(b) there is no claim, litigation, proceeding or governmental investigation pending, or as far as is known to Owner, threatened, against or relating to Owner, the properties or business of Owner or the transactions contemplated by this Agreement which does, or may reasonably be expected to, materially and adversely affect the ability of Owner to enter into this Agreement or to carry out its obligations hereunder, and there is no basis for any such claim, litigation, proceedings or governmental investigation, except as has been fully disclosed in writing to Manager; and
(c) neither the consummation of the transactions contemplated by this Agreement by this Agreement on the part of Owner to be performed nor the fulfillment of the terms, conditions and provisions of this Agreement, conflicts with or will result in the breach of any of the terms, conditions or provisions of, or constitute a default under, any agreement, indenture, instrument or undertaking to which Owner is a party or by which it is bound.
ARTICLE 30
Except as specifically provided in Section 4.4 of this Agreement, Owner and Manager agree that any dispute between the parties related to or arising out of this Agreement that cannot be amicably settled by the parties hereunder, shall first be submitted for non-binding mediation before resorting to any litigation, equitable proceeding or other enforcement action. Such mediation shall be held within a twenty-five mile radius of the Hotel (or such other location mutually agreed by the parties) and the parties shall cooperate in good faith to agree on a mediator who shall be a retired or semi-retired judge having at least ten (10) years of experience on the bench hearing complex commercial transactions. If the parties hereto have failed to designate, by a joint written statement, a mediator within thirty (30) days following the date of a written request therefor by either Manager or Owner to the other, then either Owner or Manager may notify the local office of the American Arbitration Association ("AAA") or JAMS and request such entity to select a person to act as the mediator to assist in the resolution of the dispute. The mediation will be a non-binding conference between the parties conducted in accordance with the applicable rules and procedures of AAA or JAMS (as determined by the mediator). The compensation of the mediator and all related expenses shall be borne equally by the parties, each of whom shall bear their own costs, irrespective of the outcome of the mediation. If any dispute remains unresolved between the parties after the mediation is complete, then either party shall be entitled to pursue its rights and remedies at law or in equity. The provisions of this Article 30 shall survive the expiration or earlier termination of this Agreement.
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ARTICLE 31
ADDITIONAL OBLIGATIONS OF MANAGER
Manager acknowledges that Owner is vitally interested in the qualifications of the individuals designated as the general manager and the director of sales of the Hotel. Manager shall, from time to time, consult with Owner and obtain Owner's approval as to the appointment of individuals to such positions; provided, however, Owner and Manager acknowledge that nothing in this Article is intended to limit or negate the authority of Manager elsewhere provided in this Agreement to remove and replace, in its sole discretion, the Executive Personnel of the Hotel.
ARTICLE 32
TERMINATION OF THE LICENSE AGREEMENT
Owner reserves and shall have the absolute right in its sole and unfettered discretion, at any time and without the consent or approval of (but with notice to) Manager, to terminate the License Agreement, provided, however, that (i) Owner shall have no such right in order to establish its own independent operations, such as an operation without a franchise or license or in its own hotel name; (ii) in the event of such a termination by Owner, Manager shall have the right of approval (which right shall be reasonably exercised) of any new franchise or license for the Hotel; and (iii) if Owner's decision to terminate the License Agreement is made without the consent of Manager, then the provisions of Section 18.2 of this Agreement shall no longer apply.
ARTICLE 33
Any provision of this Agreement to the contrary notwithstanding, Manager hereby agrees that no personal, partnership or corporate liability of any kind or character (including, without limitation, the payment of any judgment) whatsoever now attaches or at any time hereafter under any condition shall attach to Owner or any of Owner's constituent entities and affiliates or any mortgagee for payment of any amount payable under this Agreement or for the performance of any obligation under this Agreement. The exclusive remedies of Manager for the failure of Owner to perform any of its obligations under this Agreement shall be to proceed against the interest of Owner in and to the Hotel for Manager's actual, out-of-pocket damages (and not any consequential, punitive or exemplary damages), and Owner shall not be personally liable for any deficiency.
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Notwithstanding any other provision of this Agreement to the contrary, the liability of Manager arising out of or in connection with this Agreement and the transactions and obligations contemplated hereby shall at all times be limited to the aggregate amount of management fees payable to Manager under this Agreement during the initial Term (the “Manager’s Liability Cap”), and in any litigation, arbitration or any other dispute, neither Owner nor any other party shall seek or have recourse to any other asset of Manager’s members, partners, directors, officers, employees, associates, agents, executives or affiliates. Without limiting the foregoing, neither Manager nor any party associated with Manager shall have any liability in excess of the Manager’s Liability Cap for any act by Manager (either prior to or during the Operating Term of or after the expiration or earlier termination of this Agreement); provided, however, that the Manager Liability Cap shall not apply to any liability of Manager or its Affiliates resulting from the fraud, gross negligence or willful misconduct of Manager or its Affiliates. Notwithstanding anything contained in this Agreement to the contrary in no event shall Manager be liable under this Agreement for any consequential, speculative, punitive, treble, or other special damages.
The rest of this page is intentionally left blank.
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| OWNER: | ||
| PHR TCI OPCO SUB, LLC | ||
| By: | /s/ Xxxxx X. Xxxxxxxxxxxx | |
| Name: | Xxxxx X. Xxxxxxxxxxxx | |
| Title: | Authorized Representative | |
| MANAGER: | ||
| PHR TRAVERSE CITY HOTEL MANAGER, LLC | ||
| By: | /s/ Xxxxx X. Xxxxxxxxxxxx | |
| Name: | Xxxxx X. Xxxxxxxxxxxx | |
| Title: | Manager | |
Signature Page to Management Agreement - Solo Page
SCHEDULE I
| Trade Name/Brand of Hotel: | Hotel Indigo | |
| Physical Address of Hotel: | 000 X Xxxxxxxxx Xxxx, Xxxxxxxx Xxxx, XX 00000 | |
| Number of Guest Rooms: | 107 | |
| Licensor: | Holiday Hospitality Franchising, LLC | |
| Initial Working Capital: | $TBD | |
| Base Fee: | The base fee payable (the "Base Fee") shall be an amount equal to three percent (3.0%) of Total Operating Revenues (which exclude the gross receipts of any licensees, lessees and concessionaires) in respect of any applicable period. | |
| Incentive Fee: | None |
| Schedules – Page 1 |
SCHEDULE II
Gross Operating Expenses
(a) salaries and wages of Hotel Employees, including employee benefits, costs of payroll, and payroll and similar taxes but only to the extent such expenses are attributable to such Hotel Employee’s employment at the Hotel;
(b) costs incurred with respect to sales and other revenues generated at the Hotel;
(c) the costs of all utilities and services including, without limitation, heat, air conditioning, water, light and power, local and long distance telephone service, and data communication and computer services, except as such costs may be appropriately capitalized in accordance with GAAP;
(d) the costs of all food and beverages sold or consumed and of all Operating Equipment and Inventories and Consumable Supplies placed in use, including the sale, consumption and placement in use of Operating Equipment and Supplies initially supplied pursuant to this Agreement;
(e) the costs of all other goods and services provided, arranged or obtained by Manager in connection with its operation of the Hotel, including, without limitation, public utilities charges and the cost of accounting systems, data processing, payroll processing and telecommunications equipment, office supplies, services performed by third parties and all other supplies, services and hotel equipment of the nature and type normally used by operators of hotels similar to the Hotel and as is common in the industry, except as such costs may be appropriately capitalized in accordance with GAAP;
(f) all costs and fees of any arbitrators, auditors, lawyers and similar persons who perform services required or permitted pursuant to this Agreement;
(g) all costs and expenses of technical consultants and specialized operational experts or personnel for services rendered to the Hotel, except if such costs are incurred in connection with a capital transaction outside of the normal operations of the Hotel;
(h) all expenses related to marketing of the Hotel;
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(i) the costs of maintaining books of account and other records and producing statements pursuant to Article 7 of this Agreement;
(j) the actual amount of any goods and services or other similar value added taxes imposed by any governmental authority having jurisdiction and paid as a result of the operations of the Hotel, less any credits with respect to such taxes otherwise granted with respect to the operations of the Hotel;
(k) reasonable reserves for bad debts in accordance with GAAP;
(l) any insurance premiums for insurance obtained by or on behalf of Manager or Owner with respect to the Hotel, except for insurance premiums for Manager’s or Manager’s Affiliates’ corporate office professional liability/errors and omissions;
(m) any deposits into any Reserve;
(n) all Property taxes and any similar taxes, charges and assessments against the Hotel;
(o) any fees payable under the License Agreement to Licensor;
(p) the Base Fee and the Centralized Services;
(q) Allocated Services;
(r) the cost of non-capital repairs to and maintenance of the Hotel;
(s) all expenses otherwise contemplated by this Agreement that are to be treated or contemplated to be treated as Gross Operating Expenses; and
(t) all expenses reimbursable to Manager pursuant to the terms and conditions of this Agreement.
(a) any repayments of advances by Manager on account of Capital Expenditures pursuant to this Agreement;
(b) any payments from the FF&E Reserve, whether principal or interest, relating to capital improvements to or encumbrances with respect to the Hotel, including, without limitation, any payments relating to expenditures for initial FF&E and replacements or substitutions therefor or additions thereto;
(c) land or building rental or mortgage payments;
| Schedules – Page 3 |
(d) depreciation and amortization expenses, including costs of capital improvements which are made in accordance with this Agreement;
(e) income, capital or franchise taxes of a party hereto;
(f) any Capital Expenditures;
(g) excise, sales, use and other taxes (including room taxes) or similar charges (i) collected directly from patrons or guests or as part of the sale price of any goods or services or displays, (ii) remitted to a governmental authority and (iii) excluded from Gross Revenues;
(h) salaries, wages, asset management fees or amounts paid to individuals or entities by or upon the instruction of Owner to the extent such individuals or entities are not under the supervision or direction of Manager;
(i) interest payable on any credit facility provided to fund working capital; and
(j) expenses of Owner related to asset management.
| Schedules – Page 4 |
SCHEDULE III
1.1 Total Operating Revenues. “Total Operating Revenues” means, subject to the exclusions provided for herein, all of the following revenue, income and proceeds resulting from the operation of the Hotel and properly attributable to the Accounting Period, Fiscal Year or portion of a Fiscal Year under consideration:
(a) Subject to the provisions below and in the Agreement, all revenues from the rental of guest rooms and suites in the Hotel and all revenues earned from guests, patrons and other persons occupying space in or using the Hotel, including, without limitation, all revenues derived from goods sold, food and beverage sales, meetings and other events, parking services, spa, health club or other Hotel facilities’ use or membership, telephone, cable or access television or internet use and all other services provided in connection with Hotel activities;
(b) The net proceeds actually received by Owner of use and occupancy or business interruption insurance with respect to the operation of the Hotel after deduction from such proceeds of all necessary expenses incurred in the adjustment or collection thereof.
1.2 Exclusions from Total Operating Revenues. For purposes of calculating the fees payable pursuant to this Agreement, Total Operating Revenues shall not include any of the following:
(a) excise, sales, use and other similar taxes (including room taxes) or similar charges which are required by Applicable Laws to be collected directly from patrons or guests or as part of the sale price of any goods or services or displays and which must be remitted to a governmental authority;
(b) bad debts arising from Total Operating Revenues, provided that any recovered bad debts shall again become part of Total Operating Revenues in the Fiscal Year in which they are recovered;
(c) gratuities, service charges or other similar receipts collected for payment to and paid to Hotel Employees and complimentary food and beverage bills for Hotel Employees (to the extent that the complimentary food and beverage expenditures do not exceed the amount set forth in Operating Budget unless Owner’s consent is received with respect to such excess amounts) the and guests;
(d) revenue, income and proceeds of sales of tenants, licensees and concessionaires;
(e) revenues, including gains or losses arising from the sale or other disposition of capital assets, including, without limitation, FF&E no longer required for the operation of the Hotel;
| Schedules – Page 5 |
(f) proceeds or awards arising from a taking or condemnation of capital property;
(g) receipts or credits for settlement of claims for loss or theft of or damage to personal property or furnishings, or any recoveries relating to a breach of warranty or guaranty, excluding, however, those amounts that are compensation for items that would otherwise be included in Total Operating Revenues hereunder;
(h) proceeds from any insurance policy other than the net proceeds actually received by Owner of use and occupancy or business interruption insurance;
(i) receipts of a capital nature, including any financing of the Hotel;
(j) Existing Lease and License Arrangements;
(k) interest, if any, earned on any FF&E Reserve or on funds invested on behalf of Owner; or
(l) working capital provided by Owner.
| Schedules – Page 6 |
SCHEDULE IV
Centralized Services
TBD
| Schedules – Page 7 |
EXHIBIT A
DESCRIPTION OF PREMISES
EXHIBIT B
EXAMPLE OF MONTHLY TRANSACTIONS REPORT
For
Properties
As of 6/30/2016
| Actual | % | Budget | % | last Year | % | YTD | % | YTD Budget | % | YTD Last Year | % | ||||||||||||||||||||||||||||||||||||||
| SUMMARY OPERATING STATEMENT | |||||||||||||||||||||||||||||||||||||||||||||||||
| 3,060 | 0 | 3,060 | ROOMS AVAILABLE | 18,564 | 0 | 18,462 | |||||||||||||||||||||||||||||||||||||||||||
| 0 | 0 | 0 | ROOMS SOLD | 0 | 0 | 0 | |||||||||||||||||||||||||||||||||||||||||||
| 0.00 | % | 0.00 | % | 0.00 | % | OCCUPANCY | 0.00 | % | 0.00 | % | 0.00 | % | |||||||||||||||||||||||||||||||||||||
| 0.00 | 0.00 | 0.00 | ADR | 0.00 | 0 00 | 0.00 | |||||||||||||||||||||||||||||||||||||||||||
| 0.00 | 0.00 | 0.00 | ROOMS RevPAR | 0.00 | 0.00 | 0.00 | |||||||||||||||||||||||||||||||||||||||||||
| 0.00 | 0.00 | 0.00 | TOTAL RevPAR | 0.00 | 0.00 | 0.00 | |||||||||||||||||||||||||||||||||||||||||||
| OPERATING REVENUE | |||||||||||||||||||||||||||||||||||||||||||||||||
| 0 | 0.00 | % | 0 | 0.00 | % | 0 | 0.00 | % | Rooms | 0 | 0.00 | % | 0 | 0.00 | % | 0 | 0.00 | % | |||||||||||||||||||||||||||||||
| 0 | 0.00 | % | 0 | 0.00 | % | 0 | 0.00 | % | Food and Beverage | 0 | 0.00 | % | 0 | 0.00 | % | 0 | 0.00 | % | |||||||||||||||||||||||||||||||
| 0 | 0.00 | % | 0 | 0.00 | % | 0 | 0.00 | % | Other Operated Departments | 0 | 0.00 | % | 0 | 0.00 | % | 0 | 0.00 | % | |||||||||||||||||||||||||||||||
| 0 | 0.00 | % | 0 | 0.00 | % | 0 | 0.00 | % | Miscellaneous Income | 0 | 0.00 | % | 0 | 0.00 | % | 0 | 0.00 | % | |||||||||||||||||||||||||||||||
| 0 | 0.00 | % | 0 | 0.00 | % | 0 | 0.00 | % | Total Operating Revenue | 0 | 0.00 | % | 0 | 0.00 | % | 0 | 0.00 | % | |||||||||||||||||||||||||||||||
| DEPARTMENTAL EXPENSES | |||||||||||||||||||||||||||||||||||||||||||||||||
| 0 | 0.00 | % | 0 | 0.00 | % | 0 | 0.00 | % | Rooms | 0 | 0.00 | % | 0 | 0.00 | % | 0 | 0.00 | % | |||||||||||||||||||||||||||||||
| 0 | 0.00 | % | 0 | 0.00 | % | 0 | 0.00 | % | Food and Beverage | 0 | 0.00 | % | 0 | 0.00 | % | 0 | 0.00 | % | |||||||||||||||||||||||||||||||
| 0 | 0.00 | % | 0 | 0.00 | % | 0 | 0.00 | % | Other Operated Departments | 0 | 0.00 | % | 0 | 0.00 | % | 0 | 0.00 | % | |||||||||||||||||||||||||||||||
| 0 | 0.00 | % | 0 | 0.00 | % | 0 | 0.00 | % | Total Departmental Expenses | 0 | 0.00 | % | 0 | 0.00 | % | 0 | 0.00 | % | |||||||||||||||||||||||||||||||
| 0 | 0.00 | % | 0 | 0.00 | % | 0 | 0.00 | % | TOTAL DEPARTMENTAL PROFIT | 0 | 0.00 | % | 0 | 0.00 | % | 0 | 0.00 | % | |||||||||||||||||||||||||||||||
| UNDISTRIBUTED OPERATING EXPENSES | |||||||||||||||||||||||||||||||||||||||||||||||||
| 0 | 0.00 | % | 0 | 0.00 | % | 0 | 0.00 | % | Administrative and General | 0 | 0.00 | % | 0 | 0.00 | % | 0 | 0.00 | % | |||||||||||||||||||||||||||||||
| 0 | 0.00 | % | 0 | 0.00 | % | 0 | 0.00 | % | Information and Telecommunications Systems | 0 | 0.00 | % | 0 | 0.00 | % | 0 | 0.00 | % | |||||||||||||||||||||||||||||||
| 0 | 0.00 | % | 0 | 0.00 | % | 0 | 0.00 | % | Sales and Marketing | 0 | 0.00 | % | 0 | 0.00 | % | 0 | 0.00 | % | |||||||||||||||||||||||||||||||
| 0 | 0.00 | % | 0 | 0.00 | % | 0 | 0.00 | % | Property Operation and Maintenance | 0 | 0.00 | % | 0 | 0.00 | % | 0 | 0.00 | % | |||||||||||||||||||||||||||||||
| 0 | 0.00 | % | 0 | 0.00 | % | 0 | 0.00 | % | Utilities | 0 | 0.00 | % | 0 | 0.00 | % | 0 | 0.00 | % | |||||||||||||||||||||||||||||||
| 0 | 0.00 | % | 0 | 0.00 | % | 0 | 0.00 | % | Total Undistributed Expenses | 0 | 0.00 | % | 0 | 0.00 | % | 0 | 0.00 | % | |||||||||||||||||||||||||||||||
| 0 | 0.00 | % | 0 | 0.00 | % | 0 | 0.00 | % | GROSS OPERATING PROFIT | 0 | 0.00 | % | 0 | 0.00 | % | 0 | 0.00 | % | |||||||||||||||||||||||||||||||
| 0 | 0.00 | % | 0 | 0.00 | % | 0 | 0.00 | % | MANAGEMENT FEES | 0 | 0.00 | % | 0 | 0.00 | % | 0 | 0.00 | % | |||||||||||||||||||||||||||||||
| 0 | 0.00 | % | 0 | 0.00 | % | 0 | 0.00 | % | INCOME BEFORE NON-OPERATING INCOME AND EXPENSES | 0 | 0.00 | % | 0 | 0.00 | % | 0 | 0.00 | % | |||||||||||||||||||||||||||||||
For
Properties
As of 6/30/2016
| Actual | % | Budget | % | Last Year | % | YTD | % | YTD Budget | % | YTD Last Year | % | |||||||||||||||||||||||||||||||||||||
| NON-OPERATING INCOME AND EXPENSES | ||||||||||||||||||||||||||||||||||||||||||||||||
| 0 | 0.00 | % | 0 | 0.00 | % | 0 | 0.00 | % | Income | 0 | 0.00 | % | 0 | 0.00 | % | 0 | 0.00 | % | ||||||||||||||||||||||||||||||
| 0 | 0.00 | % | 0 | 0.00 | % | 0 | 0.00 | % | Rent | 0 | 0.00 | % | 0 | 0.00 | % | 0 | 0.00 | % | ||||||||||||||||||||||||||||||
| 0 | 0.00 | % | 0 | 0.00 | % | 0 | 0.00 | % | Property and Other Taxes | 0 | 0.00 | % | 0 | 0.00 | % | 0 | 0.00 | % | ||||||||||||||||||||||||||||||
| 0 | 0.00 | % | 0 | 0.00 | % | 0 | 0.00 | % | Insurance | 0 | 0.00 | % | 0 | 0.00 | % | 0 | 0.00 | % | ||||||||||||||||||||||||||||||
| 0 | 0.00 | % | 0 | 0.00 | % | 0 | 0.00 | % | Other | 0 | 0.00 | % | 0 | 0.00 | % | 0 | 0.00 | % | ||||||||||||||||||||||||||||||
| 0 | 0.00 | % | 0 | 0.00 | % | 0 | 0.00 | % | Total Non-Operating Income & Exp | 0 | 0.00 | % | 0 | 0.00 | % | 0 | 0.00 | % | ||||||||||||||||||||||||||||||
| 0 | 0.00 | % | 0 | 0.00 | % | 0 | 0.00 | % | EARNINGS BEFORE INTEREST, TAXES, DEPRECIATION
AND AMORTIZATION | 0 | 0.00 | % | 0 | 0.00 | % | 0 | 0.00 | % | ||||||||||||||||||||||||||||||
| INTEREST, DEPRECIATION & AMORTIZATION | ||||||||||||||||||||||||||||||||||||||||||||||||
| 0 | 0.00 | % | 0 | 0.00 | % | 0 | 0.00 | % | Interest | 0 | 0.00 | % | 0 | 0.00 | % | 0 | 0,00 | % | ||||||||||||||||||||||||||||||
| 0 | 0.00 | % | 0 | 0.00 | % | 0 | 0.00 | % | Depreciation | 0 | 0.00 | % | 0 | 0.00 | % | 0 | 0.00 | % | ||||||||||||||||||||||||||||||
| 0 | 0.00 | % | 0 | 0.00 | % | 0 | 0.00 | % | Amortization | 0 | 0.00 | % | 0 | 0.00 | % | 0 | 0.00 | % | ||||||||||||||||||||||||||||||
| 0 | 0.00 | % | 0 | 0.00 | % | 0 | 0.00 | % | Total Interest, Depreciation & Amortization | 0 | 0.00 | % | 0 | 0.00 | % | 0 | 0.00 | % | ||||||||||||||||||||||||||||||
| 0 | 0.00 | % | 0 | 0.00 | % | 0 | 0.00 | % | TOTAL INCOME BEFORE TAXES | 0 | 0.00 | % | 0 | 0.00 | % | 0 | 0.00 | % | ||||||||||||||||||||||||||||||
| 0 | 0.00 | % | 0 | 0.00 | % | 0 | 0.00 | % | Income Taxes | 0 | 0.00 | % | 0 | 0.00 | % | 0 | 0.00 | % | ||||||||||||||||||||||||||||||
| 0 | 0.00 | % | 0 | 0.00 | % | 0 | 0.00 | % | NET INCOME | 0 | 0.00 | % | 0 | 0.00 | % | 0 | 0.00 | % | ||||||||||||||||||||||||||||||
| 0 | 0.00 | % | 0 | 0.00 | % | 0 | 0.00 | % | Capital Expenditure Reserve (memo) | 0 | 0.00 | % | 0 | 0.00 | % | 0 | 0.00 | % | ||||||||||||||||||||||||||||||
| 0 | 0.00 | % | 0 | 0.00 | % | 0 | 0.00 | % | NET INCOME LESS CAP EXPENDITURE RESERVE | 0 | 0.00 | % | 0 | 0.00 | % | 0 | 0.00 | % | ||||||||||||||||||||||||||||||
EXHIBIT C
COMPETITIVE SET
[TBD]]
| STR# | Name | City, State | Rooms | |||