EXHIBIT 10.2
AGREEMENT
THIS AGREEMENT is made as of the 1st day of July, 2002, between XXXXXXX
HOSPITALITY SERVICES INC. ("Lessee"), a North Carolina corporation, and MERISTAR
MANAGEMENT COMPANY, L.L.C. ("Operator"), a Delaware limited liability company.
RECITALS
A. Lessee and Operator, among other parties, have entered into a
Leasehold Acquisition Agreement of even date herewith pursuant to which, among
other things, Lessee and Operator have agreed to enter into Hotel Management
Agreements effective as of July 1, 2002 with respect to each of the hotel
properties (individually and collectively, the "Hotels") listed on Exhibit A
hereto.
NOW, THEREFORE, in consideration of the Leasehold Acquisition Agreement
and other good and valuable consideration, Lessee and Operator hereby agree as
follows:
1. Lessee and Operator hereby execute and enter into hotel management
agreements with respect to each of the Hotels, effective as of July 1, 2002, in
the form attached hereto as Exhibit B, with the same force and effect as if
Lessee and Operator had executed an individual hotel management agreement with
respect to each Hotel.
2. Lessee and Operator agree to execute and deliver separate Hotel
Management Agreements in the form attached hereto as Exhibit B with respect to
each Hotel upon the request of either Lessee or Operator, except that the
applicable name, address and number of guest rooms shall be filled in on the
first page thereof.
3. This Agreement may be executed in counterparts. Agreements executed
and delivered by facsimile shall be fully enforceable as if such facsimile were
an original signature. This Agreement shall become effective upon its execution
and delivery by both of the parties hereto.
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
XXXXXXX HOSPITALITY SERVICES INC.
By: /s/ Xxxxxx X. Xxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President
MERISTAR MANAGEMENT COMPANY, L.L.C.
By: MeriStar H & R Operating Company, L.P.,
member
By: MeriStar Hotels & Resorts, Inc.,
general partner
By: /s/ Xxxxx Xxxxxxx
------------------------------
Name: Xxxxx Xxxxxxx
Title:
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EXHIBIT A
MANAGED HOTELS
--------------------------------------------------------------------------------
NO. HOTEL NAME ROOMS MGMT STATE
--------------------------------------------------------------------------------
1 Comfort Inn Augusta 123 Meristar GA
2 Comfort Inn Fayetteville 176 Meristar NC
3 Comfort Inn Greenville 190 Meristar SC
4 Comfort Inn Wilmington 146 Meristar NC
5 Comfort Suites Orlando 215 Meristar FL
6 Courtyard by Marriott Xxx Arbor 160 Meristar MI
7 Courtyard by Marriott Houston 198 Meristar TX
8 Courtyard by Marriott Wilmington 128 Meristar NC
9 Courtyard by Marriott Winston Salem 122 Meristar NC
00 Xxxxxxxxx Xxx Xxx Xxxxx 000 Xxxxxxxx XX
00 Xxxxxxx Xxx & Xxxxxx Xxxxxxxx 136 Meristar GA
00 Xxxxxxx Xxx Xxxxx 00 Xxxxxxxx XX
00 Xxxxxxx Xxx Xxxxxxxxx 127 Meristar GA
14 Hampton Inn Xxxx 130 Meristar NC
00 Xxxxxxx Xxx Xxxxxxxxx 000 Xxxxxxxx XX
00 Xxxxxxx Xxx Xxxxxx 137 Meristar NC
17 Hampton Inn Jacksonville 120 Meristar NC
18 Hampton Inn Perimeter 131 Meristar GA
19 Hampton Inn Ponte Vedra 118 Meristar FL
00 Xxxxxxx Xxx Xxxxxxxx Xxxxx 126 Meristar NC
00 Xxxxxxx Xxx Xxxxxxxxx 000 Xxxxxxxx XX
00 Xxxxxxx Xxx Xxxx Xxxxxxxxxxx 126 Meristar MA
00 Xxxxxxx Xxx Xxxxx Xxxxxx 156 Meristar NY
00 Xxxxxxx Xxx Xxxxxxxxxx 118 Meristar NC
25 Hilton Garden Inn Albany Airport 155 Meristar NY
26 Hilton Garden Inn at RDU 155 Meristar NC
00 Xxxxxx Xxxxxx Xxx Xxxxxxx Xxxxxxx 164 Meristar GA
28 Hilton Garden Inn Evanston 178 Meristar IL
29 Holiday Inn at Xxxxxx Xxxxx 000 Xxxxxxxx XX
30 Holiday Inn Express Abingdon 81 Meristar VA
31 Holiday Inn Express Clearwater 127 Meristar FL
32 Holiday Inn Select Garland 243 Meristar TX
00 Xxxxxxxx Xxxxxx Xxxxxxxxxx 000 Xxxxxxxx XX
00 Xxxxxxxx Xxxxxx Xxxx 000 Xxxxxxxx XX
00 Xxxxxxxx Xxxxxx Xxxxxx 00 Xxxxxxxx XX
00 Xxxxxxxx Xxxxxx Xxxx Xxxx 000 Xxxxxxxx XX
00 Xxxxxxxx Xxxxxx Xxxxxxx 000 Xxxxxxxx XX
00 Xxxxxxxx Xxxxxx Xxxxxxx 000 Xxxxxxxx XX
00 Xxxxxxxxx Xxx Xxxxxxx 000 Xxxxxxxx XX
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EXHIBIT B
HOTEL MANAGEMENT AGREEMENT
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HOTEL MANAGEMENT AGREEMENT
HOTEL MANAGEMENT AGREEMENT (this "Agreement") made as of the 1st day of
July, 2002, between XXXXXXX HOSPITALITY SERVICES INC. ("LESSEE"), a North
Carolina corporation, and MERISTAR MANAGEMENT COMPANY, L.L.C. ("OPERATOR"), a
Delaware limited liability company.
RECITALS
A. Lessee is the lessee of a limited-service hotel (the "HOTEL") known
as the ________________ located at __________________;
B. Lessee or affiliates of Lessee are the lessees of the hotel
properties more particularly set forth on Exhibit A attached hereto
(individually and collectively, the "PORTFOLIO HOTELS") which are managed by
Operator pursuant to hotel management agreements between Lessee or such
affiliates and Operator (such management agreements being individually and
collectively, the "PORTFOLIO MANAGEMENT AGREEMENTS"); and
C. Lessee and Operator desire to evidence their agreement with respect
to the operation, direction, management, and supervision of the Hotel as more
particularly set forth below.
NOW, THEREFORE, for and in consideration of the premises, and other
good and valuable consideration, Lessee and Operator agree as follows:
ARTICLE I
THE HOTEL
1.1. Lessee and Operator acknowledge that the Hotel consists of and
contains:
A. A Building (the "BUILDING") with ___ guest rooms,
restaurant(s), lounge(s), and conference and meeting rooms
together with the parcel of land on which the Building is
located and any outdoor parking areas or other facilities
located on such land;
B. Mechanical systems and built-in installations (the
"INSTALLATIONS") of the Building including, but not limited
to, heating, ventilation, air conditioning, electrical and
plumbing systems, elevators and escalators, and built-in
laundry, refrigeration and kitchen equipment;
C. Furniture, furnishings, wall coverings, floor coverings,
window treatments, fixtures and hotel equipment and vehicles
(The "FF&E");
D. Chinaware, glassware, silverware, linens, and other items of a
similar nature (the "OPERATING EQUIPMENT");
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E. Stock and inventories of paper supplies, cleaning materials
and similar consumable items and food and beverage (the
"OPERATING SUPPLIES"); and
F. Any recreational facilities (the "RECREATIONAL FACILITIES")
and/or parking garage (the "Garage") at the Hotel.
ARTICLE II
OPERATING TERM
2.1. This Agreement shall have a term (the "OPERATING TERM" or "TERM")
commencing on July 1, 2002 (the "COMMENCEMENT DATE") and expiring on the day
prior to the fifth (5th) anniversary of the Commencement Date, unless sooner
terminated in accordance with the provisions of this Agreement or unless
extended as provided by the terms of this Agreement or as otherwise provided by
the written agreement of Lessee and Operator.
ARTICLE III
GENERAL SERVICES BY OPERATOR
3.1. During the Operating Term, Operator, as agent and for the account of
Lessee, shall in accordance with the Budgets (as defined in Section 9.4) and the
other applicable provisions of this Agreement, and only to the extent Lessee has
provided sufficient funds therefor, either through Hotel operations or directly
from Lessee:
A. Recruit, train, direct, supervise, employ and dismiss on-site
staff (the "HOTEL EMPLOYEES") for the operation of the Hotel,
and in connection therewith establish and maintain an
affirmative action plan for the Hotel;
B. Develop and implement advertising, marketing, promotion,
publicity and other similar programs for the Hotel;
C. (i) Negotiate and enter into leases, licenses and concession
agreements (collectively, the "LEASES") for stores, office
space and lobby space at the Hotel, collect the rent under
such Leases and otherwise administer the Leases and (ii)
negotiate and enter into contracts for the provision of
services to the Hotel; provided, however, that without
Lessee's prior written approval, which shall not be
unreasonably withheld, conditioned or delayed, Operator shall
not enter into or renew (other than with respect to mandatory
renewals) any such Lease or contract unless the same is either
provided for in an approved Budget or is for a term of no more
than one (1) year.
D. Apply for, process and take all necessary steps to procure and
keep in effect in Lessee's name (or, if required by the
licensing authority, in Operator's name or both) all licenses
and permits required for the operation of the Hotel;
E. Purchase all FF&E, Operating Equipment and Operating Supplies
necessary for the operation of the Hotel;
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F. Provide routine accounting and purchasing services as required
in the ordinary course of business;
G. Comply with all applicable laws, ordinances, regulations,
rulings and orders of governmental authorities affecting or
issued in connection with the Hotel, as well as with orders
and requirements of any board of fire underwriters or any
other body which may exercise similar functions, so long as
Lessee promptly delivers to Operator any notice of violation
thereof received by Lessee;
H. Cause all needed repairs and maintenance to the Hotel to be
made;
I. Intentionally deleted;
J. Subject to Section 3.2 below, use commercially reasonable
efforts to operate the Hotel in accordance with the any
mortgage, deed of trust and/or hotel franchise agreement
(collectively, "MAJOR AGREEMENTS"); and
K. Provide such other services as are required under the terms of
this Agreement or as are customarily performed without
additional fee by management companies of similar properties
in the area of the Hotel.
3.2 Notwithstanding any other provision of this Agreement to the contrary,
Operator's obligations with respect to any Major Agreement shall be limited to
the extent (i) complete and accurate summaries of the relevant provisions
thereof have been delivered to Operator sufficiently in advance to allow
Operator to perform such obligations and (ii) the provisions thereof and/or
compliance with such provisions by Operator (1) are applicable to the day-to-day
operation, maintenance and non-capital repair and replacement of the Hotel or
any portion thereof, (2) do not require contribution of capital or payments of
Operator's own funds, (3) do not materially increase Operator's obligations
hereunder or materially decrease Operator's other rights hereunder, (4) do not
limit or purport to limit any corporate activity or transaction with respect to
Operator or its affiliates or any other activity, transfer, transaction,
property or other matter involving Operator or its affiliates other than at the
site of the Hotel, and (5) are otherwise within the scope of Operator's duties
under this Agreement. Lessee acknowledges and agrees, without limiting the
foregoing, that any failure of Operator or the Hotel to comply with the
provisions of any Major Agreement arising out of (A) the condition of the Hotel,
and/or the failure of the Hotel to comply with the provisions of such Major
Agreement, prior to the Effective Date (unless such condition or failure was
caused by the failure of Operator to perform its obligations under that certain
Hotel Management Agreement previously in effect between Operator and CapStar
Winston Company, LLC ("CWC"), the previous lessee of the Hotel under a Lease
Agreement (the "PREVIOUS LEASE AGREEMENT") in effect between an affiliate of
Lessee, as landlord, and CWC, as lessee, which Previous Lease Agreement was
terminated immediately prior to the date hereof), (B) construction activities at
the Hotel, (C) inherent limitations in the design and/or construction of,
location of and/or parking at the Hotel, (D) instructions from Lessee to operate
in a manner inconsistent with the Major Agreements and/or (E) Lessee's failure
to approve any matter requested by Operator in Operator's reasonable good faith
business judgment as necessary or appropriate to achieve compliance with any
Major Agreement, shall not be deemed a breach by Operator of its obligations
under this Agreement. Operator shall be entitled to rely on the summaries of the
Major Agreements provided by Owner.
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ARTICLE IV
GENERAL OPERATION OF THE HOTEL
4.1. Lessee hereby engages Operator as the exclusive operator of the Hotel
during the Operating Term and Operator hereby accepts such engagement. Subject
to the terms of this Agreement and the applicable Budgets, Operator shall have
control and discretion in the operation, direction, management and supervision
of the Hotel. Such control and discretion of Operator shall include, without
limitation, the determination of credit policies (including entering into
agreements with credit card organizations), terms of admittance, charges for
rooms, food and beverage policies, entertainment and amusement policies,
leasing, licensing and granting of concessions for commercial space at the
Hotel, and all phases of advertising, promotion and publicity relating to the
Hotel.
4.2. Operator shall operate the Hotel and all of its facilities and
activities in the same manner as is customary and usual in the operation of
similar hotels in the area of the Hotel to the extent consistent with the
Budgets and the Hotel's facilities.
4.3. Operator will be available to consult with and advise Lessee, at
Lessee's reasonable request, concerning all policies and procedures affecting
all phases of the conduct of business at the Hotels. Operator shall in all
events consult with Lessee before implementing any material changes in policies
and procedures relating to the Hotel. Operator shall be available to meet with
Lessee on not less than a quarterly basis to discuss the operating results of
the Hotel.
4.4 Operator shall not hire any General Manager, Director of Sales, Chief
Engineer or Controller (all to the extent applicable to the Hotel) for the Hotel
without the prior consent of Lessee, which consent shall not be unreasonably
withheld. Lessee shall act expeditiously in granting or withholding any such
consent. Lessee hereby consents to the employment in such position of the
individual currently holding such position at the Hotel. At the request of
Lessee, senior representatives of Operator shall meet with Lessee (which meeting
may take place by telephone) to discuss any problems or concerns Lessee may have
with the personnel then constituting the Hotel's executive committee.
4.5. Operator may, with the prior approval of Lessee, which approval shall
not be unreasonably withheld, assign the general manager of the Hotel, in
addition to such general manager's ordinary duties, supervisory responsibility
and authority over other Portfolio Hotels, or require the general manager of the
Hotel under this Agreement to report to the general manager of another Portfolio
Hotel who has been assigned such responsibility and authority pursuant to
another Portfolio Management Agreement (any such general manager who has been
assigned such authority and responsibility being hereinafter referred to as a
"DISTRICT MANAGER"). Subject to the provisions of Section 5.2 below, such
District Manager shall be entitled to a reasonable increase in salary to
compensate such individual for such added duties, provided however, that such
increase in salary shall be subject to the Budgets of the Hotel and the other
Portfolio Hotels supervised by such District Manager.
4.6. Operator shall assign at least one (1) vice president of operations,
one (1) vice president of sales and one (1) vice president of accounting from
Operator's corporate staff to oversee operations at all of the Portfolio Hotels,
including without limitation the Hotel. The compensation of such corporate
employees of Operator shall be borne by Operator except as otherwise set forth
in this Agreement.
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ARTICLE V
AGENCY; HOTEL EMPLOYEES
5.1. In the performance of its duties as Operator of the Hotel, Operator
shall act solely as agent of Lessee. Nothing in this Agreement shall constitute
or be construed to be or create a partnership or joint venture between Lessee
and Operator. Except as otherwise provided in this Agreement, (a) all debts and
liabilities to third persons incurred by Operator in the course of its operation
and management of the Hotel in accordance with the provisions of this Agreement
shall be the debts and liabilities of Lessee only and (b) Operator shall not be
liable for any such obligations by reason of its management, supervision,
direction and operation of the Hotel as agent for Lessee. Operator may so inform
third parties with whom it deals on behalf of Lessee and may take any other
reasonable steps to carry out the intent of this paragraph.
5.2. All Hotel Employees shall be employees of Operator. All compensation
(including without limitation all wages, fringe benefits and customary and
reasonable severance payments) of the Hotel Employees, including without
limitation the District Managers, shall be an Operating Expense (as defined in
Section 11.2) and shall be borne by Lessee and paid or reimbursed to Operator
out of the Agency Account (as hereinafter defined) or if the amounts therein are
insufficient by Lessee upon demand therefor by Operator. The compensation of the
District Manager and the reasonable out-of-pocket third-party expenses (which
shall not include any allocation of Operator's corporate overhead) incurred by
such District Manager in the performance of such District Manager's duties shall
be equitably apportioned by Operator among the Portfolio Hotels supervised by
the District Manager; provided, however, that only with respect to a maximum of
five (5) District Managers at any one time under this Agreement and/or any other
Portfolio Management Agreements, Operator shall pay at its own expense the first
$10,000 of any increase in compensation of such District Manager over the
compensation such individual would otherwise receive as general manager of the
Hotel. Operator may consistent with the Budgets enroll the Hotel Employees in
retirement, health and welfare employee benefit plans substantially similar to
corresponding plans implemented in similar hotels managed by Operator or in
similar limited service hotels in the area of the Hotel. Such plans may be joint
plans for the benefit of employees at more than one hospitality property owned,
leased or managed by Operator or its affiliates. Employer contributions to such
plans (including any withdrawal liability incurred upon termination of this
Agreement) and reasonable administrative fees which Operator expends in
connection therewith shall be the responsibility of Lessee and shall be an
Operating Expense. The administrative expenses of any joint plans will be
equitably apportioned by Operator among properties covered by such plan. Lessee
hereby acknowledges and agrees that compliance with the provisions of the Worker
Adjustment and Retraining Notification Act and/or any similar state or local
laws (together with all rules and regulations promulgated thereunder and
including without limitation any such state or local laws, the "WARN ACT") upon
any disposition of the Hotel, upon any termination of this Agreement or upon the
occurrence of any other event giving rise to the application of the WARN Act is
the responsibility and obligation of Lessee, and Lessee hereby agrees to
indemnify, defend and hold Operator harmless from and against any cost, expense,
obligation, claim or other liability which Operator may incur arising out of or
in connection with any breach or claimed breach of the WARN Act in connection
with any such disposition, termination or other occurrence. Lessee acknowledges
and agrees that Operator shall have the right to institute severance payment
policies for the Hotel Employees so long as such policies are reasonable and
customary in the industry.
5.4. Operator, in its discretion, may (i) provide lodging for Operator's
executive employees visiting the Hotel in connection with the performance of
Operator's services and allow them the use of Hotel facilities and (ii) provide
the General Manager of the Hotel and other Hotel Employees temporary living
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quarters within the Hotel and the use of all Hotel facilities, in either case at
a discounted price or without charge as the case may be.
5.5. Operator shall not be liable for any failure of the Hotel to comply
prior to the Commencement Date with any federal, state, local and foreign
statutes, laws, ordinances, regulations, rules, permits, judgments, orders and
decrees affecting labor union activities, civil rights or employment in the
United States, including, without limitation, the Civil Rights Act of 1870, 42
U.S.C. ss. 1981, the Civil Rights Acts of 1871, 42 U.S.C. ss. 1983 the Fair
Labor Standards Act, 29 U.S.C. ss. 201, et seq., the Civil Rights Act of 1964,
42 U.S.C. ss. 2000e, et seq., as amended, the Age Discrimination in Employment
Act of 1967, 29 U.S.C. ss. 621, et seq., the Rehabilitation Act, 29 U.S.C. ss.
701, et seq., the Americans With Disabilities Act of 1990, 29 U.S.C. ss. 706, 42
U.S.C. ss. 12101, et seq., the Employee Retirement Income Security Act of 1974,
29 U.S.C. ss. 301, et seq., the Equal Pay Act, 29 U.S.C. ss. 201, et seq., the
National Labor Relations Act, 29 U.S.C. ss. 151, et seq., and any regulations
promulgated pursuant to such statutes (collectively, as amended from time to
time, and together with any similar laws now or hereafter enacted, the
"EMPLOYMENT LAWS"). The foregoing shall not be deemed to release CWC from any
liability it may have to Lessee or Lessee's affiliates with respect to such
matters during such period under the Previous Lease Agreement.
5.6. Operator shall from time to time develop and implement policies,
procedures and programs for the Hotel (collectively, the "EMPLOYMENT POLICIES")
reasonably designed to effect compliance with the Employment Laws. The
Employment Policies shall be consistent with industry standards from time to
time for reputable hotel management companies.
ARTICLE VI
PROVISION OF FUNDS
6.1. In performing its services under this Agreement, Operator shall act
solely as agent and for the account of Lessee. Operator shall not be deemed to
be in default of its obligations under this Agreement to the extent it is unable
to perform any obligation due to the lack of available funds from the operation
of the Hotel or as otherwise provided by Lessee.
6.2. Operator shall in no event be required (i) to advance any of its funds
(whether by waiver or deferral of its management fees or otherwise) for the
operation of the Hotel or (ii) to incur any liability unless Lessee shall have
furnished Manager with funds necessary for the discharge thereof prior to
incurring such liability.
ARTICLE VII
CENTRALIZED SERVICES; MULTI-PROPERTY PROGRAMS; WIDE AREA NETWORK
7.1. Operator may subject to the Budgets provide or cause its affiliated
companies to provide for the Hotel and its guests the full benefit of any
reservations system hereafter established by Operator or its affiliates and
provide, or cause its affiliated companies to provide, such aspects of any
accounting or purchasing services, other group benefits and services, revenue
management services, on-site sales training, associate satisfaction surveys,
Operator's national training program and other training as are made available
generally to similar properties managed by Operator (individually and
collectively,
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"CENTRALIZED SERVICES"). Subject to the provisions of the applicable Budget,
which shall include an itemization of the Centralized Services and the costs and
expenses associated therewith that Lessee would be required to reimburse,
Operator or such of Operator's affiliated companies as provide Centralized
Services shall be entitled to be reimbursed for the Hotel's share of the total
costs that are included in the Budget that are reasonably incurred in providing
such Centralized Services on a system-wide basis to hotels and motels managed by
Operator or its affiliates which costs may include, without limitation, salaries
(including payroll taxes and employee benefits) of employees and officers of
Operator and its affiliates, costs of all equipment employed in the provision of
such services and a reasonable charge for overhead. The Hotel's share of such
costs shall be determined in an equitable manner by Operator (which must be
reasonably satisfactory to Lessee) and substantiated to Lessee after each Fiscal
Year (as hereinafter defined). Such costs shall be an Operating Expense of the
Hotel and shall be borne by Lessee and paid or reimbursed to Operator out of the
Agency Account or if the amounts therein are insufficient by Lessee upon demand
therefor by Operator. Operator shall maintain and make available to Lessee
invoices or other evidence supporting all of the charges for Centralized
Services. Lessee acknowledges and agrees that (i) Operator has disclosed to
Lessee the types of Centralized Services Operator currently makes available to
properties which it operates, (ii) Operator is not obligated to provide such
Centralized Services under this Agreement, (iii) Operator is entitled to payment
for Centralized Services in the manner set forth above in addition to its Basic
Fee, and (iv) the receipt by Operator of any such payment does not breach any
fiduciary or other duty which Operator may have to Lessee.
7.2 Lessee acknowledges and agrees that Operator may in Operator's
discretion enter into certain purchasing, maintenance, service or other
contracts with respect to the Hotel (collectively, "MULTI-PROPERTY PROGRAMS")
pursuant to which Operator or affiliates of Operator receive rebates, discounts,
cash or other incentives, administration fees, concessions, profit
participations, stock or stock options, investment rights or similar payments or
economic consideration (collectively, "OPERATOR REBATES") from or in, as
applicable, the vendors or suppliers of goods or services provided under such
Multi-Property Programs. Lessee acknowledges and agrees that (1) Operator has
disclosed to Lessee the types of Multi-Property Programs Operator currently
makes available to properties which it operates, (2) the Basic Fee does not
adequately compensate Operator for any participation by the Hotel in
Multi-Property Programs, (3) any and all Operator Rebates are the sole property
of Operator and not Lessee, and (4) the receipt by Operator of any Operator
Rebates does not breach any fiduciary or other duty which Operator may have to
Lessee. Notwithstanding the foregoing, Operator hereby covenants to Lessee that
the terms of any Multi-Property Programs in which the Hotel participates, when
taken as a whole, shall not be materially less favorable to the Hotel than the
prevailing terms of contracts to provide similar goods or services on a
single-property basis obtainable on a commercially reasonable basis from
unrelated parties in the area of the Hotel.
7.3. Operator shall have the right to install and use Operator's Wide Area
Network ("WAN") and associated software at the Hotel throughout the Operating
Term. WAN installation and connectivity charges and associated software license
fees, shall be determined in an equitable manner by Operator, subject to the
reasonable approval of Lessee, shall be an Operating Expense and shall be paid
or reimbursed to Operator out of the Agency Account or, if the funds therein are
insufficient, by Lessee. Notwithstanding the foregoing, the parties acknowledge
and agree that WAN has not been installed at the Hotel prior to the Commencement
Date and agree that Operator shall not install WAN at the Hotel without the
prior approval of Lessee. In the event that WAN should with Lessee's prior
approval be installed at the Hotel, nothing herein shall grant Lessee any right
or license to use the WAN after the expiration or earlier termination of the
Operating Term.
7.4. Lessee shall have the right to designate vendors and suppliers of
goods and services to the Hotel on not less than thirty (30) days' prior written
notice to Operator, but only if (i) the price of such goods
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and services are less than the price of such goods or services then being
furnished to the Hotel, or, if such goods and services are not then being
furnished to the Hotel, less than the price Operator could obtain for such goods
or services, (ii) the contracts with such vendors or suppliers do not breach the
provisions of any contract then in effect with respect to the Hotel and (iii)
Operator is not required to terminate any existing contract for such goods or
services prior to the end of its then current term.
ARTICLE VIII
WORKING CAPITAL AND BANK ACCOUNTS
8.1. Lessee will provide Operator with initial working capital for the
Hotel in an amount to be reasonably agreed upon between Lessee and Operator.
Thereafter, Lessee shall at all times provide, either from Total Revenues or
from other funds of Lessee, funds sufficient in amount in the good faith
business judgment of Operator to constitute normal working capital for the
uninterrupted and efficient operation of the Hotel, including without limitation
funds sufficient to operate, maintain and equip the Hotel in accordance with all
Major Agreements and to maintain the Hotel in a physical condition substantially
equal to the physical condition of the Hotel on the Effective Date.
8.2. All funds received by Operator in the operation of the Hotel,
including working capital furnished by Lessee, shall be deposited in a special
account or accounts bearing the name of the Hotel (the "AGENCY ACCOUNT") in such
federally insured bank, savings and loan or trust company as may be selected by
Operator and reasonably approved by Lessee. Any successor or substitute bank,
savings and loan or trust company shall be selected in the same manner. From the
Agency Account, but only to the extent of funds in the Agency Account, Operator
shall pay Operating Expenses, Fixed Charges, capital costs and other amounts, if
and to the extent the same are required to be paid by Operator on Lessee's
behalf under this Agreement. Notwithstanding anything to the contrary contained
in this Agreement, Lessee or its affiliates shall pay all debt service under any
mortgage or deed of trust encumbering the fee or leasehold estate in the Hotel,
all ground lease payments (if any) and all Property Tax payments out of separate
funds of Lessee or such affiliate and Operator shall have no responsibility to
make any such payments.
8.3. The Agency Account shall be in the name of Operator as agent for
Lessee and shall be under the control of Operator. Checks or other documents of
withdrawal shall be signed only by representatives of Operator, provided that
such representatives shall be bonded or otherwise insured in a manner reasonably
satisfactory to Lessee. The premiums for bonding or other insurance shall be an
Operating Expense except for premiums for bonding off-site executive employees
of Operator. Upon the expiration or termination of this Agreement all remaining
amounts in the Agency Account shall be transferred to Lessee.
ARTICLE IX
BOOKS, RECORDS AND STATEMENTS; BUDGETS
9.1. Operator shall keep full and accurate books of account and other
records reflecting the results of the operation of the Hotel in accordance with
the "Uniform System of Accounts" (Ninth Revised Edition 1996, as further revised
from time to time) as adopted by the American Hotel and Motel Association of the
United States and Canada (the "UNIFORM SYSTEM") with such exceptions as may be
required by the provisions of this Agreement; provided, however, that Operator
may, with prior notice to Lessee, make such modifications to the methodology in
the Uniform System as are consistent with Operator's standard
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practice in accounting for its operations under management contracts generally,
so long as such modifications do not affect the determination of Total Revenues,
Operating Expenses or Fixed Charges under Article XI. Except for the books and
records which may be kept in Operator's home office or other suitable location
pursuant to the adoption of a central billing system or other centralized
service, the books of account and all other records relating to or reflecting
the operation of the Hotel shall be kept at the Hotel and shall be available to
Lessee and its representatives at all reasonable times for examination, audit,
inspection and transcription. All of such books and records including, without
limitation, books of account, guest records and front office records, shall be
the property of Lessee. Upon any termination of this Agreement, all of such
books and records shall thereafter be available to Operator at all reasonable
times for inspection, audit, examination and transcription for a period of three
(3) years.
9.2. Operator shall make good faith efforts to deliver to Lessee within
fifteen (15) days, but not later than twenty (20) days, after the end of each
month, the following items (collectively, the "MONTHLY REPORTS"):
A. A balance sheet as of the last day of such month;
B. A source and use of funds statement for such month;
C. An income and expense statement for such month;
D. Detailed departmental income and expense statements for such
month;
E. A twelve-month summary and forecast of operations for the
current Fiscal Year utilizing (i) actual year-to-date figures,
(ii) forecasts for the next 30, 60 and 90 day periods and
(iii) budgeted amounts for the balance of the Fiscal Year.
Operator shall give Lessee internet access or other electronic
access to this information reports in the same manner as
Operator was furnishing XXXX Limited Partnership prior to the
Effective Date; and
F. Such other monthly reports as Lessee may reasonably request
and to which Operator agrees in writing.
The Monthly Reports shall be prepared in accordance with the Uniform System to
the extent applicable and shall otherwise be prepared in accordance with
Operator's standard financial reporting and budgeting practices.
9.3. Year-end financial statements for the Hotel (including a balance sheet,
income statement and statement of sources and uses of funds) shall be prepared
and certified by an independent certified public accountant selected by Lessee.
Such accountant shall address any findings, reports or opinions that concern
Operator's work under this Agreement to both Operator and Lessee. Operator shall
provide reasonable assistance with such accountant in the preparation of such
statements.
9.4. On or before each November 1 during the Operating Term, Operator shall
submit to Lessee for the next Fiscal Year the following items (collectively, the
"BUDGETS"):
A. An operating budget (the "OPERATING BUDGET") setting forth in
reasonable line-item detail the projected income from and
expenses of all aspects of the operations of the Hotel;
9
B. A capital budget (the "CAPITAL BUDGET") setting forth in
reasonable line-item detail proposed capital projects and
expenditures for the Hotel including but not limited to FF&E
expenditures; and
C. Such other reports or projections as Lessee may reasonably
request and to which Operator agrees in writing.
The Budgets shall be prepared in accordance with the Uniform System to the
extent applicable and shall otherwise be prepared in accordance with Operator's
standard financial reporting and budgeting practices. Lessee shall notify
Operator in writing of its approval or disapproval of the Budgets not later than
thirty (30) days after the delivery of the Budgets to Lessee and, if Lessee
disapproves any such Budget, Lessee shall state in such notice the reasons
therefor with reasonable particularity. In the event Lessee fails to notify
Operator in writing of its approval or disapproval of any Budget on or before
the end of such thirty day period, then such Budget shall be deemed approved by
Lessee. Lessee shall not unreasonably withhold its approval of the Budgets.
Notwithstanding anything to the contrary contained in this Agreement, Operator
is not warranting or guaranteeing in any respect that the actual operating
results of the Hotel during the period covered by the Budgets will not
materially vary from the Budgets.
9.5. Upon approval of the Budgets by Lessee, Operator shall use diligent and
commercially reasonable efforts to operate the Hotel substantially in accordance
with the Budgets. Operator shall not, without Lessee's prior approval:
A. Incur any expense for any line-item in the Operating Budget
which causes the aggregate expenditures for such line-item to
exceed the budgeted amount by the greater of (i) 10% or (ii)
$5,000 for the applicable fiscal period set forth in the
Operating Budget, provided that Operator may at Lessee's cost
and expense, without Lessee's approval, (i) pay any expenses
(the "NECESSARY EXPENSES") regardless of amount, which are
necessary for the continued operation of the Hotel in
accordance with the requirements of any Major Agreement and
the operational standards set forth in this Agreement and
which are not within the reasonable control of Operator
(including, but not limited to, those for insurance, taxes,
utility charges and debt service), (ii) pay any expenses (the
"EMERGENCY EXPENSES") regardless of amount which, in
Operator's good faith judgment, are immediately necessary to
protect the physical integrity or lawful operation of Hotel or
the health or safety of its occupants, and/or (iii) pay any
third-party operating expenses which are commercially
desirable to be incurred in order to obtain unbudgeted Hotel
revenue in the ordinary course of operating the Hotel in
accordance with the then current business plan provided that
such unbudgeted revenue is sufficient in Operator's
professional judgment to offset such expenses ("OPPORTUNITY
EXPENSES"); or
B. Incur any expense for any line-item in the Capital Budget
which causes the aggregate expenditures for such line-item to
exceed the budgeted amount by the greater of (i) 10% or (ii)
$5,000, provided that Operator may, without Lessee's approval,
pay any Emergency Expenses which are capital in nature.
9.6. If the Budgets (or any component of the Budgets) with respect to any
Fiscal Year are disapproved by Lessee as provided in Section 9.4, then on or
prior to December 15 of the Fiscal Year preceding such Fiscal Year the parties
shall meet to attempt in good faith to agree upon such Budgets (or component
thereof). Until approval of the Budgets (or such components) by Lessee, Operator
shall cause the Hotel to be operated substantially in accordance with most
recent approved Budgets, except for, or as modified by, (a) those components of
such Budgets for the applicable Fiscal Year approved by Lessee, (b) an
10
adjustment to the disputed Budgets so as to increase (but not decrease) disputed
expense items by the same percentage as any percentage increase in the Consumer
Price Index - All Urban Consumers (U.S. City Average) (1982-1984 =100), or any
successor index thereto appropriately adjusted (the "CPI"), from the CPI in
effect on the first day of the first month of the Fiscal Year applicable to such
last approved Budget to the CPI in effect on the first day of the first month of
the Fiscal Year applicable to the disputed Budgets, (C) Necessary Expenses which
shall be paid as required, (d) Emergency Expenses which shall be paid as
required and (e) Opportunity Expenses.
ARTICLE X
MANAGEMENT FEES
AND PAYMENTS TO OPERATOR AND LESSEE
10.1. Lessee shall pay to Operator, on a monthly basis, for services rendered
under this Agreement a management fee (the "BASIC FEE") equal to two percent
(2.0%) of Total Revenues.
10.2. Intentionally deleted.
10.3. Intentionally deleted.
10.4. In each month during the Operating Term, Operator shall be paid out of
the Agency Account the Basic Fee for the preceding month, as determined from the
monthly income and expense statement. Such payment shall be due and made upon
delivery of the income and expense statement for such month showing the
computation of Total Revenues and the Basic Fee for such month.
10.5. Lessee shall have the right to arrange for daily sweeps of the Agency
Account for the account of Lessee, subject to retention in the Agency Account of
funds sufficient in the reasonable opinion of Operator and Lessee to assure the
uninterrupted and efficient operation of the Hotel as required under Section 8.1
above.
10.6. At the end of each Fiscal Year and following receipt by Lessee of the
annual audit set forth in Section 9.3, an adjustment will be made, if necessary,
based on the audit so that Operator shall have received the accurate Basic Fee
for such Fiscal Year. Within thirty (30) days of receipt by Lessee and Operator
of such audit, Operator shall either (a) place in the Agency Account or remit to
Lessee, as appropriate, any excess amounts Operator may have received for such
fees during such calendar year or (b) be paid out of the Agency Account or by
Lessee, as appropriate, any deficiency in the amounts due Operator for the Basic
Fee.
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ARTICLE XI
CERTAIN DEFINITIONS
11.1. A. The term "TOTAL REVENUES" shall mean all income, revenue and
proceeds resulting from the operation of the Hotel and all of its facilities
(net of refunds and credits to guests and other items deemed "Allowances" under
the Uniform System) which are properly attributable under the Uniform System to
the period in question. Subject to Section 11.1(B), Total Revenues shall
include, without limitation, all amounts derived from:
(i) The rentals of rooms, banquet facilities and
conference facilities;
(ii) The sale of food and beverage whether sold in a bar,
lounge or restaurant, delivered to a guest room, sold
through an in-room facility or vending machines,
provided in meeting or banquet rooms or sold through
catering operations;
(iii) Charges for admittance to or the use of any parking
facilities, recreational facilities or any
entertainment events at the Hotel;
(iv) Rentals paid under Leases;
(v) Charges for other Hotel services or amenities,
including, but not limited to, telephone service,
in-room movies, and laundry services; and
(vi) The gross income amount on which the proceeds of
business interruption or similar insurance are
determined.
B. Total Revenues shall not include:
(i) Sales or use taxes or similar governmental
impositions collected by Lessee or Operator;
(ii) Tips, service charges and other gratuities received
by Hotel Employees;
(iii) Proceeds of insurance except as set forth in Section
11.1(A);
(iv) Proceeds of the sale or condemnation of the Hotel,
any interest therein or any other asset of Lessee not
sold in the ordinary course of business, or the
proceeds of any loans or financings;
(v) Capital contributed by Lessee to the Hotel;
(vi) The receipts of any tenant, licensee or
concessionaire under a Lease;
(vii) Proceeds of Property Tax abatement proceedings;
(viii) Rent received with respect to any antenna lease.
11.2. A. The term "OPERATING EXPENSES" shall mean all costs and
expenses of maintaining, conducting and supervising the operation of the Hotel
and all of its facilities which are properly
12
attributable under the Uniform System to the period in question. Operating
Expenses shall include, without limitation:
(i) The cost of all Operating Equipment and Operating
Supplies;
(ii) Salaries and wages of Hotel personnel (including
without limitation the District Manager), including
costs of payroll taxes, employee benefits and
customary and reasonable severance payments. The
salaries or wages of off-site employees or executives
of Operator shall not be Operating Expenses
(including without limitation the employees specified
in Section 4.6 above, but excluding the District
Managers), provided that if it becomes necessary for
an off-site employee or executive of Operator to
temporarily perform services at the Hotel of a nature
normally performed by Hotel Employees, his salary
(including payroll taxes and employee benefits) for
such period only as well as his traveling expenses
shall be Operating Expenses and reimbursed to
Operator;
(iii) The cost of all other goods and services obtained in
connection with the operation of the Hotel including,
without limitation, heat and utilities, laundry,
landscaping and exterminating services and office
supplies;
(iv) The cost of all repairs to and maintenance of the
Hotel;
(v) Insurance premiums (or the allocable portion thereof
in the case of blanket policies) for all insurance
maintained under Article XIII (other than insurance
against physical damage to the Hotel) and losses
incurred on any self-insured risks (including
deductibles);
(vi) All taxes, assessments, permit fees, inspection fees,
and water and sewer charges and other charges (other
than income or franchise taxes) payable by or
assessed against Lessee with respect to the operation
of the Hotel, excluding Property Taxes (as defined in
Section 11.3);
(vii) Legal fees and fees of any independent certified
public accountant for services directly related to
the operation of the Hotel and its facilities;
(viii) All expenses for advertising the Hotel and all
expenses of sales promotion and public relations
activities;
(ix) All out-of-pocket expenses and disbursements
reasonably incurred by Operator, pursuant to, in the
course of, and directly related to, the management
and operation of the Hotel under this Agreement,
which fees and disbursements shall be paid by Lessee
or reimbursed by Lessee to Operator upon demand.
Without limiting the generality of the foregoing,
such charges may include all reasonable travel,
telephone, telegram, facsimile, air express and other
incidental expenses, but, except as otherwise
provided in this Agreement, shall not include any of
the regular expenses of the central offices
maintained by Operator, other than offices maintained
at the Hotel for the management of the Hotel.
Operator shall maintain and make available to Lessee
invoices or other evidence supporting such charges;
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(x) The Basic Fee;
(xi) Periodic payments made in the ordinary course of
business under any applicable franchise agreement;
(xii) Any other item specified as an Operating Expense in
this Agreement; and
(xiii) Any other cost or charge classified as an Operating
Expense or an Administrative and General Expense
under the Uniform System unless specifically excluded
under the provisions of this Agreement.
B. Operating Expenses shall not include:
(i) Amortization and depreciation;
(ii) The making of or the repayment of any loans or any
interest thereon;
(iii) The costs of any alterations, additions or
improvements which for Federal income tax purposes
must be capitalized and amortized over the life of
such alteration addition or improvement;
(iv) Payments under any ground lease or space lease;
(v) Payments on account of any FF&E reserve fund;
(vi) Any fees in addition to the Basic Fee for routine
accounting, reporting or purchasing services
performed by Operator pursuant to this Agreement; and
(vii) Any item defined as a Fixed Charge in Section 11.3.
11.3. "FIXED CHARGES" shall mean the cost of the following items relating to
the Hotel or its facilities which are properly attributable under the Uniform
System to the period in question:
(i) Real estate taxes, assessments, personal property
taxes and any other ad valorem taxes imposed on or
levied in connection with the Hotel, the
Installations and the FF&E (collectively, "PROPERTY
TAXES"); and
(ii) Insurance against physical damage to the Hotel.
11.4. "FISCAL YEAR" shall mean each twelve (12) consecutive calendar month
period or partial twelve (12) consecutive calendar month period within the
Operating Term commencing on January 1st (or, with respect to the first year of
the Operating Term, the Commencement Date) and ending on December 31st (or, with
respect to the last year of the Operating Term, the expiration or earlier
termination of the Operating Term) unless Lessee and Operator otherwise agree.
ARTICLE XII
INTENTIONALLY DELETED
14
ARTICLE XIII
INSURANCE
13.1. The following insurance with respect to the Hotel, to the extent such
insurance is commercially available, shall be obtained by Operator or Lessee, as
directed by Lessee in its discretion upon sufficient prior written notice, and
maintained throughout the Operating Term at Lessee's sole cost and expense:
A. Insurance covering all real property including the Building,
the Installations and the FF&E on a broad form basis, against
such risks as are customarily covered by such insurance
(including, without limitation, boiler and machinery and flood
insurance, but excluding damage resulting from earthquake,
war, and nuclear energy), in aggregate amounts which shall be
not less than the full replacement cost of the Building, the
Installations and the FF&E (exclusive of foundations, footings
and land);
B. Commercial general liability insurance with a combined single
limit of not less than $25,000,000 for each occurrence for
liability for (i) bodily injury, (ii) death, (iii) property
damage, (iv) assault and battery, (v) false arrest, detention
or imprisonment or malicious prosecution, (vi) libel, slander,
defamation or violation of the right of privacy, (vii)
wrongful entry or eviction, and (viii) liquor liability;
C. Worker's compensation insurance or insurance required by
similar employee benefit acts having a minimum per occurrence
limit as is statutorily required;
D. Fidelity insurance, in such amounts and with such deductibles
as Lessee may require, covering Operator's employees at the
Hotel (other than executive employees of Operator) or in job
classifications normally bonded in other hotels it manages in
the United States or otherwise required by law;
E. Business interruption insurance covering loss of income for a
minimum period of six (6) months resulting from interruption
of business resulting from physical damage caused by the
occurrence of any of the risks affecting the Hotel insured
against under the property policy referred to in Section
13.1(A);
F. Employment Practices Liability Insurance ("EMPLOYMENT
INSURANCE") with reasonable limits and deductibles; provided
that Operator will use commercially reasonable efforts to have
an Employment Practices Liability Insurance program in place
which has deductibles as close as commercially reasonable to
the deductibles in place in the Operator's current Employment
Practices Liability Insurance program, and further provided
that if Operator is notified that the deductibles under its
current Employment Practices Liability Insurance program with
respect to the Hotel will increase, Operator will promptly
notify Lessee of such increase;
G. To the extent not provided under Section 13.1(A) above, if the
Hotel is located within an A or V Flood Zone as designated by
the National Flood Insurance Act of 1968 and the Flood
Disaster Protection Act of 1973, maximum available NFIP limits
must be purchased;
15
H. Business Automobile liability insurance for all owned, hired
or non-owned autos with a limit not less than $1,000,000 each
accident; and
I. Such other or additional insurance as may be (i) required
under the provisions of any applicable Major Agreement
(provided Operator has been given detailed written notice of
such requirements) or (ii) requested by Lessee in writing and
customarily carried by prudent operators of similar limited
service hotels in the geographic area of the Hotel.
13.2. All insurance policies shall name Operator as the insured party and
shall name as additional insureds Lessee and Lessor and such other parties as
may be required by the terms of the Major Agreements as appropriate. With
respect to the insurance policies obtained under Sections 13.1(A), (E), (G) and
(to the extent applicable) (I), Lessor shall be named as loss payee and any
mortgagee under a Major Agreement (provided Operator has been given written
notice of the same) shall be named as mortgagee loss payee. Lessee understands
that coverage afforded the Lessee as an additional insured is solely for
liability arising out of Operator's activities performed by Operator and/or its
employees for or on behalf of Lessee and that it may be necessary for Lessee to
purchase separate policies to cover Lessee's own activities.
13.3. All insurance policies shall be in such form and with such companies as
shall be reasonably satisfactory to Lessee and provided Lessee has given
Operator detailed written notice of such requirements, shall comply with the
requirements of any Major Agreement. Insurance may (at Lessee's election or with
Lessee's prior approval) be provided under blanket or master policies covering
one or more other hotels operated by Operator or owned by Lessee. The portion of
the premium for any blanket or master policy which is allocated to the Hotel as
an Operating Expense or Fixed Charge shall be determined in an equitable manner
by Operator and reasonably approved by Lessee.
13.4. All insurance policies shall specify that they cannot be canceled or
modified on less than twenty (20) days prior written notice to both Lessee and
Operator and any additional insureds (or such longer period as may be required
under a Major Agreement) and shall provide that claims shall be paid
notwithstanding any act or negligence of Operator unilaterally or on behalf of
Lessee, including without limitation their respective agents or employees.
13.5. All insurance policies shall provide, to the extent possible on a
commercially reasonable basis, that the insurance company will have no right of
subrogation against Lessee, Operator any party to a Major Agreement or any of
their respective agents, employees, partners, members, officers, directors or
beneficial Lessees.
13.6. Lessee and Operator hereby release one another from any and all
liability, to the extent of the waivers of subrogation obtained under Section
13.5, associated with any damage, loss or liability with respect to which
property insurance coverage is provided pursuant to this Article or otherwise.
13.7. The proceeds of any insurance claim (other than proceeds payable to
third parties under the terms of the applicable policy) shall be paid into the
Agency Account to the extent of Lessee's interest therein unless otherwise
required by the terms of a Major Agreement.
13.8. Notwithstanding anything to the contrary set forth in this Agreement,
Operator shall have no obligation to obtain or maintain any insurance set forth
in this Article if funds from Total Revenues or funds otherwise provided by
Lessee are not made available to Operator to purchase the same.
16
13.9. Subject to the provisions of the Budgets, and upon written notice to
Lessee, Operator may act, directly or indirectly, in a brokerage capacity with
respect to the insurance required under this Article or as a direct insurer or
reinsurer with respect to the same.
ARTICLE XIV
PROPERTY TAXES
14.1. Operator shall have no authority or obligation to make Property Tax
payments on behalf of Lessee or the owner of the Hotel. Operator shall promptly
forward to Lessee any Property Tax assessment and any material correspondence or
notice from any taxing authority or service with respect to the Hotel's Property
Tax.
14.2. Upon Lessee's request, Operator shall from time to time advise Lessee
of the desirability of contesting the validity or amount of any Property Tax (a
"TAX CONTEST"). Lessee may, whether or not Operator so recommends, pursue a Tax
Contest, and Operator agrees to cooperate with Lessee in a Tax Contest and
execute any documents or pleadings required for such purpose, provided that the
facts set forth in such documents or pleadings are accurate and that such
cooperation or execution does not impose any liability on Operator. All costs
and expenses incurred by Lessee and Operator in connection with a Tax Contest
shall be Operating Expenses.
ARTICLE XV
DAMAGE OR DESTRUCTION; CONDEMNATION
15.1. If the Hotel is damaged by fire or other casualty, Operator shall
promptly notify Lessee. This Agreement shall remain in full force and effect
subsequent to such casualty provided that either party may terminate this
Agreement upon thirty days prior notice to the other party if (a) Lessee shall
elect to close the Hotel as a result of such casualty (except on a temporary
basis for repairs or restoration) or (b) Lessee shall determine in good faith
not to proceed with the restoration of the Hotel and provided further that
Operator may terminate this Agreement upon thirty days prior notice to Lessee if
20% or more of the rooms in the Hotel are unavailable for rental for a period of
sixty days or more as a result of such casualty.
15.2. If all or any portion of the Hotel becomes the subject of a
condemnation proceeding or if Operator learns that any such proceeding may be
commenced, Operator shall promptly notify Lessee upon Operator's receipt of
written notice thereof. Either party may terminate this Agreement on thirty (30)
days notice to the other party if (a) all or substantially all of the Hotel is
taken through condemnation or (b) less than all or substantially all of the
Hotel is taken, but, in the reasonable judgment of the party giving the
termination notice, the Hotel cannot, after giving effect to any restoration as
might be reasonably accomplished through available funds from the condemnation
award, be profitably operated as a limited service hotel.
15.3. Any condemnation award or similar compensation shall be the property of
Lessee, provided that Operator shall have the right to bring a separate
proceeding against the condemning authority for any damages and expenses
specifically incurred by Operator as a result of such condemnation.
17
ARTICLE XVI
EVENTS OF DEFAULT
16.1. The following shall constitute events of default:
A. If either party shall be in default in the payment of any
amount required to be paid under the terms of this Agreement,
and such default continues for a period of ten (10) days after
written notice from the other party;
B. If either party shall be in material default in the
performance of its other obligations under this Agreement, and
such default continues for a period of thirty (30) days after
written notice from the other party, provided that if such
default cannot by its nature reasonably be cured within such
thirty-day period, an event of default shall not occur if and
so long as the defaulting party promptly commences and
diligently pursues the curing of such default;
C. If either party shall (i) make an assignment for the benefit
of creditors, (ii) institute any proceeding seeking relief
under any federal or state bankruptcy or insolvency laws,
(iii) institute any proceeding seeking the appointment of a
receiver, trustee, custodian or similar official for its
business or assets or (iv) consent to the institution against
it of any such proceeding by any other person or entity (an
"INVOLUNTARY PROCEEDING"); or
D. If an Involuntary Proceeding shall be commenced against either
party and shall remain undismissed for a period of sixty (60)
days.
16.2. If any event of default shall occur, the non-defaulting party may
terminate this Agreement on five (5) days prior notice to the defaulting party.
If such non-defaulting party is Lessee, Lessee shall have no obligation to pay
the Termination Fee (as hereinafter defined) upon any such termination under
this Section 16.2 by Lessee.
16.3. The right of termination set forth in Section 16.2 shall not be in
substitution for, but shall be in addition to, any and all rights and remedies
for breach of contract available in law or at equity.
16.4. Neither party shall be deemed to be in default of its obligations under
this Agreement if and to the extent that such party is unable to perform such
obligation as a result of fire or other casualty, act of God, strike or other
labor unrest, unavailability of materials, war, riot or other civil commotion or
any other cause beyond the control of such party (which shall not include the
inability of such party to meet its financial obligations) (collectively, "FORCE
MAJEURE EVENTS").
16.5. Each of the parties hereto irrevocably waives any right such party may
have against the other party hereto at law, in equity or otherwise to any
consequential damages, punitive damages or exemplary damages.
18
ARTICLE XVII
TERMINATION RIGHTS
17.1. Intentionally deleted.
17.2. Lessee may terminate this Agreement without cause only as specifically
set forth in subsections 17.2(A) or 17.2 (B) below:
A. If the owner of the Hotel shall sell the Hotel to a bona fide
third-party, then Lessee shall terminate this Agreement as of
the closing date of such sale upon not less than thirty (30)
days prior written notice to Operator (with respect only to
the Exempted Hotels (as hereinafter defined), such 30 day
prior notice period shall be reduced to ten (10) days' prior
written notice), provided, however, that no such termination
shall be effective unless and until Lessee shall pay to
Operator (i) all amounts then due and owing to Operator under
this Agreement and (ii) the Termination Fee, if any, payable
pursuant to Section 17.3.
B. Lessee may also terminate this Agreement during the period
commencing on July 1, 2003 and ending on the expiration of the
Term, (x) upon not less than ninety (90) days prior written
notice to Operator if on the day following the effective date
of such termination (not the date of such termination notice)
of this Agreement Operator will continue to manage not less
than twenty-six (26) Portfolio Hotels pursuant to Portfolio
Management Agreements with respect to which no termination
notice has been given, or (y) upon not less than one hundred
eighty (180) days prior written notice to Operator, if on the
day following the effective date of the termination (not the
date of such termination notice) of this Agreement Operator
will continue to manage less than twenty-six (26) Portfolio
Hotels with respect to which no termination notice has been
given. The termination notice required under this Section
17.2(B) may be delivered prior to June 30, 2003 but the
effective date of the termination of this Agreement pursuant
to such termination notice shall be the later to occur of (x)
the day on which such 90 day notice period or 180 day notice
period, as applicable, expires and (y) June 30, 2003. No
termination under this Section 17.2(B) shall be effective
unless and until Lessee shall pay to Operator all amounts then
due and owing to Operator under this Agreement.
17.3. Upon any termination of this Agreement pursuant to Section 17.2(A)
above (except with respect to the Exempted Hotels, with respect to which no
Termination Fee arising with respect to a termination under Section 17.2(A)
shall be payable) or Section 17.4 below, and with respect to any termination
under Section 17.2(A) as a condition precedent to the effectiveness of such
termination, Lessee shall pay to Operator a termination fee (the "TERMINATION
FEE") equal to
(a) with respect to any such termination under either Section
17.2(A) above (except with respect to the Exempted Hotels,
with respect to which no Termination Fee arising with respect
to a termination under Section 17.2(A) shall be payable) or
Section 17.4 below having an effective date which occurs
during the period commencing on the Commencement Date and
ending on June 30, 2003, an amount equal to the Basic Fee that
would have been payable to Operator with respect to the period
commencing on the effective date of such termination and
ending on June 30, 2003, based upon the Total Revenues as
projected in the then current Operating Budget with respect to
such period,
19
(b) with respect to any such termination under Section 17.2(A)
above (except with respect to the Exempted Hotels, with
respect to which no Termination Fee arising with respect to a
termination under Section 17.2(A) shall be payable) having an
effective date which occurs from and after July 1, 2003, an
amount equal to the Basic Fee that would have been payable to
Operator with respect to the period commencing on the
effective date of such termination and ending on the 90th day
after the effective date of such termination, based upon the
Total Revenues as projected in the then current Operating
Budget with respect to such period, and
(c) with respect to any such termination under Section 17.4 below
having an effective date which occurs from and after July 1,
2003, an amount equal to the Basic Fee that would have been
payable to Operator with respect to the period commencing on
the effective date of such termination and ending on (x) the
90th day after the effective date of such termination (if on
the day following the effective date of such termination of
this Agreement Operator will continue to manage not less than
twenty-six (26) Portfolio Hotels pursuant to Portfolio
Management Agreements with respect to which no termination
notice has been issued), based upon the Total Revenues as
projected in the then current Operating Budget with respect to
such period, or (y) the 180th day after the effective date of
such termination (if on the day following the effective date
of such termination of this Agreement Operator will continue
to manage less than twenty-six (26) Portfolio Hotels pursuant
to Portfolio Management Agreements with respect to which no
termination notice has been issued), based upon the Total
Revenues as projected in the then current Operating Budget
with respect to such period.
17.4. Notwithstanding anything to the contrary contained in this Agreement,
if within thirty (30) days after receiving Operator's written request Lessee
fails to approve any changes, repairs, alterations, improvements, renewals or
replacements to the Hotel which Operator determines in its reasonable judgment
are necessary (i) to protect the Hotel, Lessee and/or Operator from innkeeper
liability exposure, (ii) to ensure material compliance with any applicable code
requirements pertaining to life safety systems requirements or (iii) to ensure
material compliance with any applicable state, local or federal employment law,
including without limitation the Americans with Disabilities Act, then Operator
may terminate this Agreement upon thirty (30) days' written notice to Lessee
delivered at any time after the expiration of Lessee's thirty (30) day approval
period. Lessee shall pay to Operator the Termination Fee upon any termination of
this Agreement pursuant to this Section, which Termination Fee shall be due and
payable upon the effective date of the termination of this Agreement.
17.5. Operator shall have the right to terminate this Agreement without cause
upon not less than six (6) months' prior written notice to Lessee; provided,
however, that Manager may not deliver any such notice prior to the first
anniversary of the Commencement Date. Operator shall not have the right to any
Termination Fee upon any termination of this Agreement under this Section 17.5.
17.6. The term "Exempted Hotels" shall mean and include this Hotel (together
with any other Portfolio Hotel which is or becomes an Exempted Hotel pursuant to
such Portfolio Hotel's Portfolio Management Agreement), but only if (a) Lessee
delivers a termination notice with respect to the Hotel pursuant to Section
17.2(A) above and (b) the aggregate Basic Fee payable (or which would have been
payable had this Agreement been in effect) under this Agreement with respect to
the twelve (12) full calendar months immediately preceding the month in which
such termination notice was given (calculated as if this Agreement had been in
effect throughout such twelve month period) (for the purposes of this Section
17.6, such deemed aggregate Basic Fee being referred to as the "Deemed Fee"), is
less than (b) an amount equal to (x) with respect to any termination notice
delivered on or before September 1, 2002, $100,000
20
minus the aggregate Deemed Fees under all other Portfolio Management Agreements
with respect to which a termination notice has been delivered on or before
September 1, 2002, (y) with respect to any termination notice delivered on or
before October 1, 2002, $200,000 minus the aggregate Deemed Fees under all other
Portfolio Management Agreements with respect to which a termination notice has
been delivered on or before October 1, 2002 (including without limitation Deemed
Fees included in any calculation under clause (x) above), and (z) with respect
to any termination notice delivered after October 1, 2002, $300,000 minus the
aggregate Deemed Fees under all other Portfolio Management Agreements with
respect to which a termination notice has been delivered at any time (including
without limitation Deemed Fees included in any calculation under clauses (x)
and/or (y) above). In no event shall this Hotel be an Exempted Hotel if the
Deemed Fee for this Hotel, when aggregated with all Deemed Fees for all other
Portfolio Hotels with respect to which a termination notice has been given,
exceeds $300,000.
ARTICLE XVIII
ASSIGNMENT
18.1. Operator shall not assign, pledge or encumber this Agreement or its
interest in this Agreement without the prior consent of Lessee, provided that
Operator may, without the consent of Lessee, assign this Agreement to (a) any
entity controlling, controlled by or under common control with Operator (control
being deemed to mean the ownership of 50% or more of the stock or other
beneficial interest in such entity and/or the power to direct the day-today
operations of such entity); (b) any entity which is the successor by merger,
consolidation or reorganization of Operator or Operator's general partner or
parent corporation or (C) the purchaser of all or substantially all of the hotel
management business of Operator or Operator's general partner or parent
corporation.
18.2. Lessee shall not assign this Agreement without the prior consent of
Operator, provided that Lessee may assign this Agreement without Operator's
consent to any person or entity which controls, is controlled by or is under
common control with Lessee and which acquires all of Lessee's leasehold estate
in the Hotel, but only if such assignee shall agree in writing to be bound by
this Agreement and assumes all of Lessee's obligations under this Agreement from
and after the effective date of the assignment. No such assignment by Lessee
shall release Lessee from its obligations under this Agreement.
18.3. Upon any permitted assignment of this Agreement and the assumption of
this Agreement by the assignee, the assignor shall be relieved of any obligation
or liability under this Agreement arising after the effective date of the
assignment.
21
ARTICLE XIX
NOTICES
19.1. Any notice, statement or demand required to be given under this
Agreement shall be in writing, sent by certified mail, postage prepaid, return
receipt requested, or by facsimile transmission, receipt electronically or
verbally confirmed, or by nationally-recognized overnight courier, receipt
confirmed, addressed if to:
Lessee: c/o Winston Hotels
0000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attention: Xx. Xxxxxx X. Xxxxx
Facsimile No.: (000) 000-0000
and Operator: c/o MeriStar Hotels & Resorts, Inc.
0000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Attention: General Counsel
Facsimile No.: (000) 000-0000
or to such other addresses as Operator and Lessee shall designate in the manner
provided in this Section 19.1. Any notice or other communication shall be deemed
given (a) on the date three (3) business days after it shall have been mailed,
if sent by certified mail, (b) on the business day it shall have been sent by
facsimile transmission (unless sent on a non-business day or after business
hours in which event it shall be deemed given on the following business day), or
(c) on the date received if it shall have been given to a nationally-recognized
overnight courier service.
ARTICLE XX
ESTOPPELS
20.1. Lessee and Operator agree that from time to time upon the request of
the other party or a party to a Major Agreement, it shall execute and deliver
within ten (10) days after the request a certificate confirming that this
Agreement is in full force and effect, stating whether this Agreement has been
modified and supplying such other information as the requesting party may
reasonably require.
ARTICLE XXI
INDEMNIFICATION
21.1. Operator hereby agrees to indemnify, defend and hold Lessee (and
Lessee's agents, principals, shareholders, partners, members, officers,
directors and employees) harmless from and against all liabilities, losses,
claims, damages, costs and expenses (including, but not limited to, reasonable
attorneys' fees and expenses) that may be incurred by or asserted against any
such party and that arise from (a) the fraud, willful misconduct or gross
negligence of the general manager of the Hotel and/or the off-site employees of
Operator, (b) the breach by Operator of any provision of this Agreement or (c)
any action taken by Operator which is beyond the scope of Operator's authority
under this Agreement. Lessee shall
22
promptly provide Operator with written notice of any claim or suit brought
against it by a third party which might result in such indemnification. Lessee
shall cooperate with the Operator or its counsel in the preparation and conduct
of any defense to any such claim or suit.
21.2. Except as provided in Section 21.1, Lessee hereby agrees to indemnify,
defend and hold Operator (and Operator's agents, principals, shareholders,
partners, members, officers, directors and employees) harmless from and against
all liabilities, losses, claims, damages, costs and expenses (including, but not
limited to, reasonable attorneys' fees and expenses) that may be incurred by or
asserted against such party and that arise from or in connection with (a) the
performance of Operator's services under this Agreement, (b) any act or omission
(whether or not willful, tortious, or negligent) of Lessee or any third party or
(c) or any other occurrence related to the Hotel and/or Operator's duties under
this Agreement whether arising during or after the Operating Term. Operator
shall promptly provide Lessee with written notice of any claim or suit brought
against it by a third party which might result in such indemnification. Operator
shall cooperate with the Lessee or its counsel in the preparation and conduct of
any defense to any such claim or suit.
21.3. Supplementing the provisions of Sections 21.1 and 21.2, if any claim
shall be made against Lessee and/or Operator which is based upon a violation or
alleged violation of the Employment Laws (an "EMPLOYMENT CLAIM"), the Employment
Claim shall fall within Operator's indemnification obligations under Section
21.1 only if it is based upon (a) the willful misconduct or gross negligence of
the general manager of the Hotel and/or Operator's off-site employees or (b)
Operator's breach of its obligations under Section 5.6, and shall otherwise fall
within Lessee's indemnification obligations under Section 21.2.
21.4. If any action, lawsuit or other proceeding shall be brought against any
party(the "INDEMNIFIED PARTY") hereunder arising out of or based upon any of the
matters for which such party is indemnified under this Agreement, such
Indemnified Party shall notify the party required to provide indemnification
hereunder (the "OBLIGOR") in writing thereof and Obligor shall promptly assume
the defense thereof (including without limitation the employment of counsel
selected by Obligor), such defense to be subject to the consent of the
Indemnified Party, which consent shall not be unreasonably withheld (provided,
however, by way of illustration and not limitation, it shall be reasonable for
the Indemnified Party to deny consent to any settlement that requires the
Indemnified Party to admit guilt or liability). The Indemnified Party shall
cooperate with the Obligor in the defense of any such action, lawsuit or
proceeding, on the condition that the Obligor shall reimburse the Indemnified
Party for any actual and reasonable out-of-pocket costs and expenses incurred in
connection therewith. The Obligor shall have the right to negotiate settlement
or consent to the entry of judgment with respect to the matters indemnified
hereunder; provided, however, that if any such settlement or consent judgment
contemplates any action or restraint on the part of the Indemnified Party, then
such settlement or consent judgment shall require the written consent of the
Indemnified Party, which consent shall not be unreasonably withheld. In addition
to the foregoing, the Indemnified Party shall have the right, at the expense of
the Indemnified Party, to employ separate counsel in any such action and to
participate in the defense thereof. An Indemnified Party may settle any action
for which it is Indemnified hereunder on behalf of itself only (i.e., with
respect to its own liability and with no requirement of Obligor to admit guilt
or liability) with the prior written consent of Obligor, which consent shall not
be unreasonably withheld (provided, however, by way of illustration and not
limitation, it shall be reasonable for Obligor to deny consent to any settlement
that requires Obligor to expend funds in an amount Obligor determines in good
faith is inappropriate so long as the Indemnified Party remains adequately
protected at all times). In the event that Obligor fails to use reasonable
efforts to defend or compromise any action, lawsuit or other proceeding for
which an Indemnified Party is indemnified hereunder, the Indemnified Party may,
at Obligor's expense and without limiting Obligor's liability under the
applicable indemnity, assume the defense of such action and the Obligor shall
pay the actual charges and expenses of such attorneys and other persons on a
current basis within thirty (30) days
23
of submission of invoices or bills therefor. In the event the Obligor is Lessee
and Lessee neglects or refuses to pay such charges, Operator may pay such
charges out of the Agency Account and deduct such charges from any amounts due
Lessee, or add such charges to any amounts due Operator from Lessee under this
Agreement. If Operator is the Obligor and Operator neglects or refuses to pay
such charges, the amount of such charges shall be deducted from any amounts due
Operator under this Agreement.
21.4. The provisions of this Article shall survive the termination of this
Agreement with respect to acts, omissions and occurrences arising during the
Operating Term.
ARTICLE XXII
MISCELLANEOUS
22.1. Lessee and Operator shall execute and deliver all other appropriate
supplemental agreements and other instruments, and take any other action
necessary to make this Agreement fully and legally effective, binding, and
enforceable as between them and as against third parties.
22.2. Operator may engage one or more of its affiliates or other related
parties to furnish goods or services to Hotel, provided, however, that the terms
of any such arrangement, when taken as a whole, shall not be materially less
favorable to the Hotel than the prevailing terms of similar such arrangements
obtainable on a commercially reasonable basis from unrelated parties in the area
of the Hotel. Operator shall promptly notify Lessee of any such engagement of
Operator's affiliates to the extent such engagement and affiliation are not
included in the applicable Budgets.
22.3. This Agreement constitutes the entire agreement between the parties
relating to the subject matter hereof, superseding all prior agreements or
undertakings, oral or written. Lessee acknowledges that in entering into this
Agreement Lessee has not relied on any projection of earnings, statements as to
the possibility of future success or other similar matter which may have been
prepared by Operator.
22.4. The headings of the titles to the several articles of this Agreement
are inserted for convenience only and are not intended to affect the meaning of
any of the provisions hereof.
22.5. A waiver of any of the terms and conditions of this Agreement may be
made only in writing and shall not be deemed a waiver of such terms and
conditions on any future occasion.
22.6. This Agreement shall be binding upon and inure to the benefit of Lessee
and Operator and their respective successors and permitted assigns.
22.7. 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 in
which the Hotel is located.
22.8. Operator's Status. Throughout the Term, Operator shall qualify as an
"eligible independent contractor" as defined in Section 856(d)(9) of the
Internal Revenue Code of 1986, as amended (the "Code"). To that end, Operator:
(a) shall not permit wagering activities to be conducted at or in
connection with the Hotel by any person who is engaged in the
business of accepting xxxxxx and who is legally authorized to
engage in such business at or in connection with the Hotel;
24
(b) shall not own, directly or indirectly (within the meaning of
Section 856(d)(5) of the Code), more than 35% of the shares of
Winston Hotels, Inc. ("Winston"); and
(c) shall be (or shall, within the definition of Section
856(d)(9)(F) of the Code, be related to a person that is)
actively engaged in the trade or business of operating
"qualified lodging facilities" (defined below) for a person
who is not a "related person" within the meaning of Section
856(d)(9)(F) of the Code with respect to Winston or the owner
of the Hotel ("Unrelated Persons"). In order to meet this
requirement, Operator agrees that it (or any related person)
(i) shall derive at least 10% of both its revenue and profit
from operating "qualified lodging facilities" for Unrelated
Persons and (ii) shall comply with any
25
regulations or other administrative guidance under Section
856(d)(9) of the Code with respect to the amount of hotel
management business with Unrelated Persons that is necessary
to qualify as an "eligible independent contractor" within the
meaning of such Code Section.
(d) A "qualified lodging facility" is defined in Section
856(d)(9)(D) of the Code and means a "lodging facility"
(defined below), unless wagering activities are conducted at
or in connection with such facility by any person who is
engaged in the business of accepting xxxxxx and who is legally
authorized to engage in such business at or in connection with
such facility. A "lodging facility" is a hotel, motel or other
establishment more than one-half of the dwelling units in
which are used on a transient basis, and includes customary
amenities and facilities operated as part of, or associated
with, the lodging facility so long as such amenities and
facilities are customary for other properties of a comparable
size and class owned by other owners unrelated to Winston.
(e) Operator shall not sublet the Hotel or enter into any similar
arrangement on any basis such that the rental or other amounts
to be paid by the sublessee thereunder would be based, in
whole or in part, on either (a) the net income or profits
derived by the business activities of the sublessee, or (b)
any other formula such that any portion of the rent would fail
to qualify as "rents from real property" within the meaning of
Section 856(d) of the Code, or any similar or successor
provision thereto.
[SIGNATURES APPEAR ON FOLLOWING PAGE]
26
IN WITNESS WHEREOF, Operator and Lessee have duly executed this
Agreement the day and year first above written.
XXXXXXX HOSPITALITY SERVICES INC.
By: /s/ Xxxxxx X. Xxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President
MERISTAR MANAGEMENT COMPANY, L.L.C.
By: MeriStar H & R Operating Company, L.P.,
member
By: MeriStar Hotels & Resorts, Inc.,
general partner
By: /s/ Xxxxx Xxxxxxx
------------------------------
Name: Xxxxx Xxxxxxx
Title:
27
EXHIBIT A
PORTFOLIO HOTELS
--------------------------------------------------------------------------------
NO. HOTEL NAME ROOMS MGMT STATE
--------------------------------------------------------------------------------
1 Comfort Inn Augusta 123 Meristar GA
2 Comfort Inn Fayetteville 176 Meristar NC
3 Comfort Inn Greenville 190 Meristar SC
4 Comfort Inn Wilmington 146 Meristar NC
5 Comfort Suites Orlando 215 Meristar FL
6 Courtyard by Marriott Xxx Arbor 160 Meristar MI
7 Courtyard by Marriott Houston 198 Meristar TX
8 Courtyard by Marriott Wilmington 128 Meristar NC
9 Courtyard by Marriott Winston Salem 122 Meristar NC
00 Xxxxxxxxx Xxx Xxx Xxxxx 000 Xxxxxxxx XX
00 Xxxxxxx Xxx & Xxxxxx Xxxxxxxx 136 Meristar GA
00 Xxxxxxx Xxx Xxxxx 00 Xxxxxxxx XX
00 Xxxxxxx Xxx Xxxxxxxxx 127 Meristar GA
14 Hampton Inn Cary 130 Meristar NC
00 Xxxxxxx Xxx Xxxxxxxxx 000 Xxxxxxxx XX
00 Xxxxxxx Xxx Xxxxxx 137 Meristar NC
17 Hampton Inn Jacksonville 120 Meristar NC
18 Hampton Inn Perimeter 131 Meristar GA
19 Hampton Inn Ponte Vedra 118 Meristar FL
00 Xxxxxxx Xxx Xxxxxxxx Xxxxx 126 Meristar NC
00 Xxxxxxx Xxx Xxxxxxxxx 000 Xxxxxxxx XX
00 Xxxxxxx Xxx Xxxx Xxxxxxxxxxx 126 Meristar MA
00 Xxxxxxx Xxx Xxxxx Xxxxxx 156 Meristar NY
00 Xxxxxxx Xxx Xxxxxxxxxx 118 Meristar NC
25 Hilton Garden Inn Albany Airport 155 Meristar NY
26 Hilton Garden Inn at RDU 155 Meristar NC
00 Xxxxxx Xxxxxx Xxx Xxxxxxx Xxxxxxx 164 Meristar GA
28 Hilton Garden Inn Evanston 178 Meristar IL
29 Holiday Inn at Xxxxxx Xxxxx 000 Xxxxxxxx XX
30 Holiday Inn Express Abingdon 81 Meristar VA
31 Holiday Inn Express Clearwater 127 Meristar FL
32 Holiday Inn Select Garland 243 Meristar TX
00 Xxxxxxxx Xxxxxx Xxxxxxxxxx 000 Xxxxxxxx XX
00 Xxxxxxxx Xxxxxx Xxxx 000 Xxxxxxxx XX
00 Xxxxxxxx Xxxxxx Xxxxxx 00 Xxxxxxxx XX
00 Xxxxxxxx Xxxxxx Xxxx Xxxx 000 Xxxxxxxx XX
00 Xxxxxxxx Xxxxxx Xxxxxxx 000 Xxxxxxxx XX
00 Xxxxxxxx Xxxxxx Xxxxxxx 000 Xxxxxxxx XX
00 Xxxxxxxxx Xxx Xxxxxxx 000 Xxxxxxxx XX
28
