EXHIBIT 10.19
FINAL
OWNER AGREEMENT
THIS OWNER AGREEMENT ("Agreement") is being entered into as of this 23rd
day of May, 2003, by and between APPLE HOSPITALITY FIVE, INC., a Virginia
corporation with a mailing address at 00 Xxxxx Xxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxx
00000 ("Lessor"); APPLE HOSPITALITY FIVE MANAGEMENT, INC., a Virginia
corporation with a mailing address at 00 Xxxxx Xxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxx
00000 ("Lessee"); and RESIDENCE INN BY MARRIOTT, INC., a Delaware corporation
with a mailing address at 00000 Xxxxxxxx, Xxxxxxxx, XX 00000 ("Manager").
RECITALS:
WHEREAS, Lessor owns fee simple title to that certain Residence Inn by
Marriott hotel located in the City of Cypress, County of Orange, State of
California (the "Inn").
WHEREAS, Lessor leased the Inn to Lessee, and Lessee leased the Inn from
Lessor, pursuant to that certain Master Hotel Lease dated as of the date hereof
and attached hereto as Exhibit A (the "Lease").
WHEREAS, Lessee and Manager entered into that certain Management Agreement
dated as of the date hereof (the "Management Agreement") for the management of
the Inn by Manager.
WHEREAS, Manager agreed to enter into the Management Agreement with Lessee
on the condition that Lessor and Lessee enter into this Agreement.
WHEREAS, Lessor, Manager and Lessee desire to set forth certain obligations
of the parties with respect to the ownership and operation of the Inn and to
address certain portions of the Management Agreement which affect the rights and
obligations of all three parties.
NOW, THEREFORE, for the mutual covenants and considerations herein
contained and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto intending to be
legally bound agree as follows:
1. Definitions. Capitalized terms not specifically defined herein shall
have the meaning provided in the Management Agreement.
2. Lessor Consideration. Lessor hereby acknowledges that: (i) Lessor
derives and expects to derive benefits from this Agreement, and (ii) Lessor has
determined that Lessor's
execution, delivery and performance of this Agreement directly benefit Lessor,
are within the corporate purposes of Lessor, and are in the best interest of
Lessor.
3. Acknowledgement of Lease. Manager hereby acknowledges and consents to
the lease of the Inn from Lessor to Lessee pursuant to the Lease in the form
attached hereto as Exhibit B. The Lease shall not be construed to impose any
additional obligations or liabilities upon Manager, and shall not be construed
to modify or amend any of the rights and duties of the parties under the
Management Agreement. To the extent that any of the provisions of the Management
Agreement impose a greater or inconsistent obligation on Lessee than the
corresponding provisions of the Lease, then Lessee shall be obligated to comply
with, and to take all actions necessary to prevent breaches or defaults under,
the relevant provisions of the Management Agreement.
Manager acknowledges that Lessor and Lessee have, pursuant to the terms of
the Lease, agreed that Lessor shall pay, among other things (i) land, building
and personal property taxes and assessments applicable to the Inn, (ii) premiums
and charges for the casualty insurance coverages specified in the Management
Agreement (iii) expenditures for capital replacements, (iv) expenditures for
maintenance and repair of underground utilities and structural elements of the
Inn and (v) the payments of principal, interest and other sums payable under the
Loan Agreement (collectively, "Ownership Costs"). Manager shall have no duty,
obligation or liability to Lessor or Lessee (i) to make any determination as to
whether any expense required to be paid by Manager hereunder is an Ownership
Cost or a cost of Lessee, (ii) to require that Ownership Costs be paid from
funds which can be identified as belonging to Lessor, or that other costs and
expenses required to be paid by Lessee be paid from funds which can be
identified as belonging to Lessee; it being the intent of the parties to this
Agreement that (i) Lessee and Lessor shall look only to each other and not to
Manager with respect to moneys that may be owed one to the other under the
Management Agreement and (ii) Manager need only look to Lessee to pay operating
costs of the Inn and other such obligations under the Management Agreement,
including, without limitation, those designated herein as Ownership Costs.
4. Lessor and Lessee Representations and Warranties. Lessor and Lessee each
hereby represents and warrants that Lessor currently maintains a direct or
indirect (currently a one-hundred percent) controlling and majority interest in
Lessee. With respect to a sale, assignment or transfer of the Inn by Lessor or
Lessee to an Affiliate of Owner that is permitted under the Management
Agreement, the parties having an interest in the Inn after such permitted sale,
assignment or transfer shall have an ownership relationship that is in form and
substance similar to that of Lessor and Lessee (including, without limitation,
Lessor's controlling and majority interest in Lessee), in order to ensure that
Manager will incur no greater liability, cost or risk of termination of the
Management Agreement as a result of such permitted sale, assignment or transfer;
provided, however, that in the event of actual conflict between the terms and
provisions of this Agreement and the terms and provisions of the Management
Agreement, the terms and provisions of the Management Agreement shall control.
5. Termination of the Lease. The parties agree that the Management
Agreement and the rights and benefits of Manager thereunder shall not be
terminated or disturbed in any respect except in accordance with the terms of
the Management Agreement, and not as a result of
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any termination of the Lease. Accordingly, if the Lease is terminated for any
reason, including, without limitation, expiration of the term thereof or the
"rejection" thereof following Bankruptcy (as defined below) of Lessee
(collectively, a "Lease Termination"), Lessor: (a) shall recognize Manager's
rights under the Management Agreement, (b) agrees that Manager shall not be
named as a party in any eviction or other possessory action or proceeding, and
that Manager shall not be disturbed in its right to manage the Inn pursuant to
the Management Agreement, and (c) shall at the time of or prior to such Lease
Termination either (i) elect not to take either of the actions described in
clause (c)(ii) below, in which case all of "Lessee's" rights, benefits,
privileges and obligations under the Management Agreement with respect to
periods after the Lease Termination shall be assumed directly by Lessor, or (ii)
cause an "Approved Lessee" (as defined below) to (x) succeed to and assume
Lessee's rights and obligations under the Lease, the Management Agreement, and
this Agreement, or (y) enter into a new lease with Lessor in substantially the
same form as the Lease, and assume the rights and obligations of the Lessee
under the Management Agreement and this Agreement, the intent being that the
relationship between any successor Lessee, Lessor and Manager be under the same
terms and conditions as the relationship between Lessee, Lessor and Manager
hereunder and under the Management Agreement and the Lease. Any successor to
Lessee under clause (c)(ii) above shall be subject to Manager's prior written
approval, which approval shall not be withheld or delayed if such successor to
Lessee is (i) a direct or indirect wholly-owned subsidiary of Lessor, (ii) a
person or entity to whom a Sale of the Inn is permitted under Section 10.02.A.
of the Management Agreement, or (iii) a person or entity who otherwise is
approved by Manager in its sole discretion (an "Approved Lessee").
6. Guaranty. Lessor shall be liable for the complete and satisfactory
payment and performance of each and every obligation of Lessee as "Lessee" under
the Management Agreement (the "Guarantied Obligations"). Lessor hereby
absolutely, irrevocably, and unconditionally guaranties that the Guarantied
Obligations which are monetary obligations shall be paid when due and payable
and that the Guarantied Obligations which are performance obligations shall be
fully performed at the times and in the manner such performance is required by
the Management Agreement. This guaranty is an absolute, irrevocable, and
unconditional guaranty of payment and performance and the liability of Lessor
hereunder shall be absolute and unconditional irrespective of: (i) any lack of
validity, irregularity or enforceability of the Management Agreement or this
Agreement; (ii) any change in the time, manner, place or any other term or
condition of payments due under the Management Agreement or this Agreement, or
any other amendment or waiver of, or consent to, or any departure from the
Management Agreement or this Agreement; (iii) any failure of Manager to enforce
the provisions of the Management Agreement or this Agreement against Lessee; or
(iv) any other circumstances which might otherwise constitute a defense
available to, or a discharge of, any of the Guarantied Obligations (other than
because, or to the extent, the same have been previously discharged in
accordance with the terms of the Management Agreement). If all or any part of
the Guarantied Obligations shall not have been paid when due and payable or
performed at the time performance is required, Lessor (without first requiring
the Manager to proceed against Lessee or any other party or any other security)
shall pay or cause to be paid to Manager the amount thereof as is then due and
payable and unpaid (including interest and other charges, if any, due thereon
through the date of payment in accordance with the applicable provisions of the
Management Agreement) or perform or cause to be performed such obligations in
accordance
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with the Management Agreement, within ten (10) Business Days after receipt of
written notice from the Manager of the failure by Lessee to make such payment or
render such performance; provided, however, that, notwithstanding the foregoing,
Lessor shall have the right, in connection with a demand by Manager for payment
by Lessor of Guaranteed Obligations, to assert any defenses or claim of Lessee
under the Management Agreement with respect to such Guaranteed Obligations. If
for any reason Lessor fails to perform or cause to be performed such
obligations, Manager shall have the right to exercise any and all of the
remedies available at law or in equity and Lessor hereby agrees to pay any and
all reasonable expenses (including counsel fees and expenses) incurred by
Manager in enforcing its rights under this Agreement. The guaranty contained in
this Agreement: (i) is a continuing guaranty and shall remain in full force and
effect until the indefeasible satisfaction and discharge in full of Lessee's
obligations as "Lessee" under the Management Agreement and Lessor's and Lessee's
obligations under this Agreement, and (ii) shall continue to be effective or
shall be reinstated, as the case may be, if at any time any payment under the
Management Agreement or this Agreement becomes unrecoverable from Lessee by
operation of law or for any other reason or must otherwise be returned by
Manager upon the insolvency, bankruptcy or reorganization of Lessor or Lessee.
7. Obligation to Terminate Lease Upon Lessee Default under Management
Agreement. Upon receiving a written request from Manager to do so (and provided
that Manager has sent to Lessor a notice as described in Section 6 above with
respect to the applicable Default), Lessor shall terminate the Lease if an Event
of Default by Lessee has occurred under the Management Agreement. In terminating
the Lease pursuant to this Section 7, Lessor shall issue its notice of
termination to Lessee promptly following its receipt of Manager's request
therefor. Lessor shall thereafter promptly initiate, and thereafter diligently
and continuously prosecute, such actions as may be required to confirm such
Lease termination and repossess the Inn, including, without limitation,
instituting such legal action as may be necessary to accomplish same. Upon
Lessor's termination of the Lease in accordance with this Section 7, Lessor
shall thereupon be obligated to comply with the provisions of Section 5
applicable upon a Lease Termination.
8. Agreements Relating to Tenancy. In order to address the fact that
Lessee's interest in the Site and the Inn is leasehold, and to address certain
other related matters, the parties agree to the following modifications of the
Management Agreement, to be effective for so long as Lessee's interest in the
Site and Inn is held through tenancy title as that of Lessee:
A. Subject to the terms of the Management Agreement, Lessor and Lessee
covenant and agree, and Manager acknowledges, that: (i) Lessor holds, and shall
have, keep and maintain throughout the term of the Management Agreement, good
and marketable fee title to the Inn and Site; (ii) Lessee holds, and shall have,
keep and maintain throughout the term of the Management Agreement, leasehold
title to the Inn and Site free and clear of any and all liens, encumbrances or
other charges, except for those specifically set forth in Section 8.01.A. of the
Management Agreement.
B. In connection with a "Sale of the Inn" that is consented to by Manager
under Article X of the Management Agreement, Lessor and Lessee agree that an
agreement in form and substance similar to this Agreement will be required in
order to ensure that Manager will incur
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no greater liability, cost or risk of termination of the Management Agreement as
a result of such "Sale of the Inn".
C. If Lessor hereafter encumbers the Site and/or the Inn with a Mortgage,
the Subordination Agreement required in Article VIII of the Management Agreement
with respect to such Mortgage shall be modified (i) to account for the facts
that Lessor (rather than Lessee) has encumbered the Site and/or the Inn with
such Mortgage, and (ii) to provide that the parties' rights and obligations
under such Subordination Agreement shall, as applicable, apply to both the
Management Agreement and this Agreement.
9. Additional Lessor Obligations.
A. Lessor agrees to fully and timely comply with all notice requirements
set forth in Section 10.02 of the Management Agreement with respect to a Sale of
the Inn. Lessor further acknowledges and agrees that any failure by Lessor to
timely provide notice to Manager as set forth in Section 10.02 of the Management
Agreement with respect to a Sale of the Inn shall extinguish any right of Lessor
to enter such Sale.
X. Xxxxxx agrees, where applicable, upon request by Manager, not to
unreasonably withhold, condition or delay the prompt signing, without charge, of
applications for licenses, permits or other instruments necessary for operation
of the Inn, which applications shall be prepared by Manager as necessary from
time to time. Lessor further agrees to fully and timely comply with and perform
all of the duties and obligations to be performed by Lessee as "Owner" under the
Management Agreement, including but not limited to, those duties and obligations
set forth in Sections 1.01, 1.02.D, 4.07, 7.01, 7.02 8.01, 8.02, 8.03, 8.04,
10.01, 10.02, 11.05, 11.08, 11.09 and 11.12, of the Management Agreement.
X. Xxxxxx covenants and agrees to exercise (as required or appropriate
subject to the terms hereof) and perform all of its rights, duties and
obligations as "landlord" or "lessor" under the Lease.
X. Xxxxxx agrees to forward promptly to Manager a true and complete copy of
any and all material notices received by Lessor with respect to the Lease,
including, without limitation, each and every notice of default by Lessor that
Lessor receives in respect of the Lease, and each and every notice of default by
Lessee given by Lessor in respect of the Lease.
X. Xxxxxx shall not, without the prior written consent of Manager, cause,
effect, initiate, grant, enter into, accept, permit, consent to, or acquiesce
in, an amendment, termination, or a surrender, of the Lease.
X. Xxxxxx covenants and agrees to enforce, short of termination, the terms,
conditions and provisions of the Lease for the benefit of Manager and the Inn.
10. Certain Provisions Regarding Bankruptcy. In the event the Lease shall
be rejected on behalf of Lessor under Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx
Bankruptcy Code ("Code") or any other applicable law or authority ("Rejection"),
Lessee shall promptly notify Manager in writing of such Rejection and Lessee
shall, as directed by Manager, either treat the Lease as
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terminated by such Rejection or retain its rights under the Lease as permitted
by the Code or other applicable law or authority. In the event the Management
Agreement is terminated as a result of Rejection on behalf of Lessee, the
Management Agreement will remain effective with respect to Lessor, and Lessor
shall, if directed by Manager (but only to the extent such right may be
exercised under the Code or other applicable law and authority), terminate the
Lease, subject to the provisions of Section 5 hereof. Lessor and Lessee each
agree that it will not join in any involuntary petition against the other under
the Code or any other similar federal or state law providing for debtor relief,
without the consent of Manager.
11. Term. The term of this Agreement shall commence on the date set forth
above and shall run concurrently with the term of the Management Agreement.
12. Required Assignment. In connection with any Sale of the Inn which
includes a transfer of Lessor's and/or Lessee's title in the Site and/or the
Inn, Lessor and Lessee agree that the successors to their respective titles in
the Site and/or the Inn shall also assume their respective rights and
obligations under this Agreement and shall cause such successor(s) to assume
such rights and obligations pursuant to an assumption of this Agreement
reasonably acceptable to Manager.
13. Notices. All notices and other communications provided for hereunder
shall be in writing, and shall be sent or delivered by the methods and to the
addresses for Lessee and Manager as required under the Management Agreement. The
address for Lessor for purposes of such notices is as follows:
Apple Hospitality Five, Inc.
c/o Apple Real Estate Investment Trust Companies
Attn: Xxxxxx X. Xxxxxxxx, Director of Acquisitions/ Dispositions &
Portfolio Management
Attn: General Counsel
Phone: (000) 000-0000
Fax: (000) 000-0000
14. Eligible Independent Contractor. Manager agrees that, as of the date
hereof, it is an eligible independent contractor under Section 856(d) of the
Internal Revenue Code, and further agrees that it shall maintain such status to
the extent it is able to do so, acknowledging that events outside of Manager's
control may result in an overlap of ownership between Manager and Lessor or
Lessee which could affect Manager's independent contractor status. Lessor,
Manager and Lessee agree to cooperate in good faith to ensure that Manager
retains such status. This covenant shall apply for so long as the Inn is owned
by Lessor (or another direct or indirect wholly-owned subsidiary of Apple
Hospitality pursuant to a permitted assignment) and leased to Lessee (or another
direct or indirect wholly-owned subsidiary of Apple Hospitality pursuant to a
permitted assignment) as part of an ownership structure that is subject to REIT
tax requirements.
15. Miscellaneous.
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A. Modification of this Agreement. No amendment, modification, alteration
or waiver of any provision of this Agreement shall be effective unless it is in
writing and signed by the party against whom enforcement of such amendment is
sought, and no waiver of any provision of this Agreement by any party hereto,
and no consent to any departure therefrom by any party hereto, shall be
effective unless it is in writing and signed by the party against whom
enforcement of such waiver or consent is sought, and then such waiver or consent
shall be effective only in the specific instance and for the specific purpose
for which given.
B. No Waiver. No failure by any party hereto to exercise, and no delay in
exercising, any right under the Management Agreement or this Agreement shall
operate as a waiver thereof, nor shall any single or partial exercise of any
right preclude any other or further exercise thereof or the exercise of any
other right.
C. Remedies Cumulative. The rights and remedies of any party hereto
provided in the Management Agreement and this Agreement are cumulative and are
in addition to, and not exclusive of, any rights or remedies provided by law or
equity.
D. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Maryland.
E. Severability. The invalidity, illegality or unenforceability of any one
or more phrases, sentences, clauses or sections contained in this Agreement
shall not affect the validity, legality or enforceability of the remaining
portions of this Agreement.
F. Entire Agreement. This Agreement, together with the Management Agreement
the Lease, and those certain letter agreements dated of even date herewith
concerning the procurement of property insurance constitute the entire agreement
and supersede all prior agreements and understandings, both written and oral,
between the parties hereto with respect to the subject matter hereof.
G. Successors and Assigns. The parties hereto shall not assign or transfer
or permit the assignment or transfer of this Agreement without the prior written
consent of the other parties hereto, except that Lessee and Manager shall each
have the right and obligation to assign its respective interest in this
Agreement to any party to which its respective interest in the Management
Agreement may be assigned under the terms of the Management Agreement, and
Lessor shall have the right and obligation to assign its interest in this
Agreement to any party to which its interest in the Site and Inn may be
assigned, subject to the requirements of the Management Agreement.
H. Captions. The captions and headings of the sections and subsections of
this Agreement are for purposes of convenience and reference only and shall not
limit or otherwise affect the meaning hereof.
I. Time of the Essence. Time shall be of the essence in the performance of
this Agreement.
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J. Incorporation of Recitals. The recitals hereto are incorporated herein
as part of this Agreement.
K. Counterparts - This Agreement may be executed simultaneously in several
counterparts, each of which shall be deemed an original, but each of which,
taken together with the others shall constitute one and the same instrument.
[SIGNATURES FOLLOW ON NEXT PAGE]
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement under seal as of the date first written above.
LESSOR:
APPLE HOSPITALITY FIVE, INC., a Virginia
corporation
By: /s/ J. Xxxxxx Xxxx
------------------------------------
Name: J. Xxxxxx Xxxx
Title: Senior Vice President
LESSEE:
APPLE HOSPITALITY FIVE MANAGEMENT, INC.,
a Virginia corporation
By: /s/ J. Xxxxxx Xxxx
------------------------------------
Name: J. Xxxxxx Xxxx
Title: Senior Vice President
MANAGER:
RESIDENCE INN BY MARRIOTT, INC.,
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
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Exhibit A
Lease
[OMITTED]
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