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酒店管理合同(英文版 <wbr>第一部分）
FORM OF HOTEL MASTER MANAGEMENT AGREEMENT
酒店管理合同

BY AND BETWEEN 當(dāng)事方
MHI HOSPITALITY TRS, LLC A DELAWARE LIMITED LIABILITY COMPANY
AND
MHI HOTELS SERVICES LLC, A VIRGINIA LIMITED LIABILITY COMPANY

ARTICLE I DEFINITION OF TERMS 定義
1.1   Definition of Terms       定義
ARTICLE II TERM OF AGREEMENT       合同條款
2.1   Term 合同期間
2.2   Actions to be taken upon Termination   合同終止時(shí)的事項(xiàng)
2.3   Early Termination Rights, Liquidated Damages    提前終止合同和違約賠償金
2.4   Substitution of Hotel 類(lèi)似規(guī)格的替代酒店
ARTICLE III PREMISES 酒店建筑物
ARTICLE IV APPOINTMENT OF MANAGER 管理人員的任命
4.1   Appointment   任命
4.2   Delegation of Authority 權(quán)利授予
4.3   Contracts, Equipment Leases and Other Agreements    合同、設(shè)備租賃協(xié)議及其他協(xié)議
4.4   Alcoholic Beverage/Liquor Licensing Requirements 酒精飲料/烈酒經(jīng)營(yíng)許可證的辦理
ARTICLE V REPRESENTATIONS AND WARRANTIES 各方承諾與保證
5.1   Lessee Representations   租賃方的承諾
5.2   Manager Representations 管理方的承諾
ARTICLE VI OPERATION   經(jīng)營(yíng)
6.1   Name of Premises, Standard of Operation 建筑物名稱(chēng)、經(jīng)營(yíng)標(biāo)準(zhǔn)
6.2   Use of Premises 建筑物的使用
6.3   Group Services 一攬子服務(wù)
6.4   Right to Inspect 出租方的檢查權(quán)利
ARTICLE VII WORKING CAPITAL AND INVENTORIES 營(yíng)運(yùn)資金與財(cái)產(chǎn)清單
7.1   Working Capital and Inventories   工作資金與財(cái)產(chǎn)清單
7.2   Fixed Asset Supplies 固定資產(chǎn)的提供
ARTICLE VIII MAINTENANCE, REPLACEMENT AND CHANGES維護(hù)、替代和改變8.1     Routine and Non-Routine Repairs and Maintenance    日常和臨時(shí)維修和維護(hù)
8.2   Capital Improvement Budget 資金調(diào)整預(yù)算
ARTICLE IX EMPLOYEES 雇員
9.1   Employee Hiring    雇員聘用
9.2   Costs, Benefit Plans 成本和福利計(jì)劃
9.3   Manager’s Employees    管理人員的雇傭
9.4   Special Projects – Corporate Employees 特別項(xiàng)目公司雇員
9.5   Termination    合同終止時(shí)的員工安排
9.6   Employee Use of Hotel 酒店對(duì)雇員的使用
9.7   Non-Solicitation     不得利誘對(duì)方雇員
ARTICLE X BUDGET, STANDARDS AND CONTRACTS 預(yù)算、標(biāo)準(zhǔn)及合同
10.1 Annual Operating Budget 年度營(yíng)運(yùn)預(yù)算
10.2 Budget Approval 預(yù)算的批準(zhǔn)
10.3 Operation Pending Approval       預(yù)算批準(zhǔn)之前的營(yíng)運(yùn)
10.4 Budget Meetings   預(yù)算會(huì)議
ARTICLE XI OPERATING DISTRIBUTIONS    運(yùn)營(yíng)費(fèi)用的安排
11.1 Management Fee 管理費(fèi)用
11.2 Accounting and Interim Payment       會(huì)計(jì)與臨時(shí)付款
ARTICLE XII INSURANCE 保險(xiǎn)
12.1       Insurance 保險(xiǎn)
12.2 Replacement Cost 重置成本
12.3 Increase in Limits 對(duì)保險(xiǎn)費(fèi)用限制的增加
12.4 Blanket Policy      總括保險(xiǎn)單
12.5 Costs and Expenses     成本與費(fèi)用
12.6 Policies and Endorsements   保險(xiǎn)單及其保險(xiǎn)受益權(quán)的轉(zhuǎn)讓
12.7 Termination 終止
ARTICLE XIII TAXES AND DEBT SERVICE   納稅及債息
13.1 Taxes 納稅
13.2 Debt Service, Ground Lease Payments 債息及土地租賃費(fèi)用的支付
ARTICLE XIV BANK ACCOUNTS 銀行賬戶(hù)
14.1 Operating Account 運(yùn)營(yíng)賬戶(hù)
14.2 Payroll Account 薪酬賬戶(hù)
14.3 Management of Operating Account 運(yùn)營(yíng)賬戶(hù)的管理
14.4 Advance of Funds 預(yù)付經(jīng)費(fèi)
14.5 Reserve Accounts   儲(chǔ)備金賬戶(hù)
ARTICLE XV ACCOUNTING SYSTEM 會(huì)計(jì)體系的建立
15.1 Books and Records 賬簿及記錄
15.2 Monthly Financial Statements 財(cái)務(wù)月報(bào)表
15.3 Annual Financial Statements 財(cái)務(wù)年度報(bào)表
ARTICLE XVI PAYMENT BY LESSEE 租賃方的支付
16.1 Payment of Base Management Fee       基本管理費(fèi)的支付
16.2 Payment of Incentive Management Fee 激勵(lì)管理費(fèi)的支付
16.3 Distributions   贏利分配
ARTICLE XVII RELATIONSHIP AND AUTHORITY 各方關(guān)系及授權(quán)
ARTICLE XVIII DAMAGE, CONDEMNATION AND FORCE MAJEURE
損壞、征用及不可抗力
18.1 Damage and Repair       損壞和維修
18.2 Condemnation        征用
18.3 Force Majeure        不可抗力
ARTICLE XIX DEFAULT AND TERMINATION       違約與合同終止
19.1 Events of Default   違約事件
19.2 Consequence of Default 違約事件的后果
ARTICLE XX WAIVER AND INVALIDITY 權(quán)利放棄和無(wú)法律效力
20.1 Waiver    權(quán)利放棄
20.2 Partial Invalidity    單方面無(wú)法律效力
ARTICLE XXI ASSIGNMENT 任命
ARTICLE XXII NOTICES    通知
ARTICLE XXIII SUBORDINATION; NON-DISTURBANCE   所依據(jù)的法律契約、不得干預(yù)
23.1 Subordination 所依據(jù)的法律契約
23.2 Non-Disturbance Agreement 不得干預(yù)協(xié)議
ARTICLE XXIV PROPRIETARY MARKS; INTELLECTUAL PROPERTY
專(zhuān)利商標(biāo)和知識(shí)產(chǎn)權(quán)
24.1 Computer Software and Equipment 軟件與設(shè)備
24.2 Intellectual Property 知識(shí)產(chǎn)權(quán)
24.3 Books and Records 賬簿與記錄
ARTICLE XXV INDEMNIFICATION 賠償
25.1 Manager Indemnity 管理人員的賠償
25.2       Lessee Indemnity    租賃方的賠償
25.3       Indemnification Procedure 賠償程序
25.4       Survival 合同終止后的條款效力
ARTICLE XXVI FUTURE HOTELS   合同終止后的酒店
ARTICLE XXVII GOVERNING LAW VENUE 法律管轄地
ARTICLE XXVIII MISCELLANEOUS 其他約定
28.1 Rights to make Agreement 簽約權(quán)利
28.2 Agency 代理
28.3 Failure to Perform       履約不能
28.4 Headings      標(biāo)題
28.5       Attorneys’ Fees and Costs 律師費(fèi)用
28.6 Entire Agreement 合同的完整性
28.7 Consents 合同內(nèi)容
28.8 Eligible Independent Contractor 適格的獨(dú)立承包人
28.9 Subleasing    分租
28.10 Environmental Matters 環(huán)保事項(xiàng)
28.11 Equity and Debt Offerings   股票及債券的發(fā)行
28.12      Estoppel Certificates      不得反悔的證明
28.13      Confidentiality       保密
28.14      Modification   合同條款的變更
28.15      Counterparts   合同副本
LIST OF EXHIBITS
LIST OF SCHEDULES

HOTEL MASTER MANAGEMENT AGREEMENT
THIS HOTEL MASTER MANAGEMENT AGREEMENT is made and entered into as of this day of , 2004, by and between MHI Hospitality TRS, LLC, a Delaware limited liability company (hereinafter referred to as Lessee), MHI Hotels Services LLC, a Virginia limited liability company (hereinafter referred to as Manager), and for the limited purposes of Article VIII herein, the Landlords (defined below).
RECITALS:
A. Lessee is the tenant under the Leases (defined below) covering those certain hotel properties, fully equipped with furniture and fixtures, and more particularly described by address location, franchise name and room number information, on Exhibit A attached hereto (the hotels, together with all ancillary facilities, improvements and amenities set forth on Exhibit A attached hereto as such exhibit exists as of the date of this Agreement, herein called the Initial Hotels).
B. Lessee desires to retain Manager to manage and operate the Initial Hotels and any Future Hotels (as defined below), and Manager is willing to perform such services for the account of Lessee, all as more particularly set forth in this Agreement.
AGREEMENTS:
NOW, THEREFORE, in consideration of the premises and the mutual covenants herein contained, the parties hereto agree as follows:
ARTICLE I DEFINITION OF TERMS
1.1 Definition of Terms. The following terms when used in this Agreement shall have the meanings indicated below.
Accounting Period shall mean a calendar month.
Agreement shall mean this Master Management Agreement, and all amendments, modifications, supplements, consolidations, extensions and revisions to this Master Management Agreement approved by Lessee and Manager in accordance with the provisions hereof.
Amendment shall have the meaning as set forth in Article XXVI.
Annual Operating Budget shall have the meaning as set forth in Section 10.1.
AOB Objection Notice shall have the meaning as set forth in Section 10.2.
Applicable Standards shall mean standards of operation for the Premises which are (a) in accordance with the requirements of the applicable Franchise Agreement, this Agreement and all CCRs affecting the Premises and of which true and complete copies have been made available by Lessee to Manager, (b) in accordance with applicable Legal Requirements, (c) in accordance with the terms and conditions of any Hotel Mortgage or Ground Lease to the extent not otherwise inconsistent with the terms of this Agreement (to the extent Lessee has made available to Manager true and complete copies of the applicable loan documents relating to any such Hotel Mortgage and/or the Ground Leases), (d) in accordance with the Leases (to the extent Lessee has made available to Manager a true and complete copy thereof), (e) in accordance with the requirements of any carrier having insurance on the Hotels or any part thereof (to the extent Manager has been given written notice of such requirements or policies or has coordinated same on behalf of Lessee), and (f) in accordance with the requirements of Section 856(d)(9)(D) of the Code for qualifying each of the Hotels as a Qualified Lodging Facility.
Competitive Set shall initially mean for each Hotel, the hotels situated in the same market segment as such Hotel as noted on Schedule 1 attached hereto, which competitive set shall include the applicable Hotel. The Competitive Set may be changed from time to time by mutual agreement of Lessee and Manager to reasonably and accurately reflect a set within the market of such Hotel that is comparable in rate quality and in operation to such Hotel and directly competitive with such Hotel. The requirements for the Competitive Set are not applicable to any of the Initial Hotels until after the expiration of the initial 10-year term of this Agreement.
Gross Revenues shall mean all revenues and receipts of every kind received from operating the Premises and all departments and parts thereof, including but not limited to, income from both cash and credit transactions, income from the rental of rooms, stores, offices, banquet rooms, conference rooms, exhibits or sale space of every kind, license, lease and concession fees and rentals (not including gross receipts of licensees, lessees and concessionaires), vending machines, health club membership fees, food and beverage sales, wholesale and retail sales of merchandise, service charges, and proceeds, if any, from business interruption or other loss of income insurance; provided, however, Gross Revenues shall not include (a) gratuities to the Premises’ employees, (b) federal, state or municipal excise, sales or use taxes or similar impositions collected directly from customers, patrons or guests or included as part of the sales prices of any goods or services paid over to federal, state or municipal governments, (c) property insurance or condemnation proceeds (excluding proceeds from business interruption or other loss of income coverage), (d) proceeds from the sale or refinance of assets other than sales in the ordinary course of business, (e) funds furnished by the Lessee, (f) judgments and awards other than for lost business, (g) the amount of all credits, rebates or refunds (which shall be deductions from Gross Revenues) to customers, patrons or guests, (h) receipts of licensees, concessionaires, and tenants, (i) payments received at any of the Hotels for hotel accommodations, goods or services to be provided at other hotels, although arranged by, for or on behalf of Manager; (j) the value of complimentary rooms, food and beverages, (k) interest income, (l) lease security deposits, and (m) items constituting allowances under the Uniform System of Accounts.

ARTICLE II TERM OF AGREEMENT
2.1 Term. The term (Term) of this Agreement shall commence on the Commencement Date for each of the Hotels as noted on Exhibit A attached hereto and, unless sooner terminated as herein provided, shall continue with respect to such Hotels until the Termination Date. For purposes of this Agreement, the Termination Date for each of the Hotels shall be the earlier to occur of (i) the Expiration Date applicable to such Hotel, (ii) termination at the option of Lessee in connection with the bona fide Sale of the Hotel by Landlord to an unaffiliated third party as provided in and subject to the terms of Section 2.3(a) hereof, (iii) termination at the option of Lessee in the event that the Performance Test has not been satisfied pursuant to and subject to the terms and conditions of Section 2.3(b) below, (iv) termination at the option of Lessee for convenience pursuant to and subject to the terms and conditions of Section 2.3(c) below (and subject to Section 2.3(a) with respect to any sale of the Hotel), or (v) termination by either Lessee or Manager pursuant to Article XVIII hereof in connection with a condemnation, casualty or Force Majeure, subject to the terms thereof. The Expiration Date with respect to a Hotel shall mean the 10th anniversary of the Commencement Date applicable to such Hotel, provided that such initial 10-year term may thereafter be renewed by Manager on the same terms and conditions contained herein, for two (2) successive periods of five (5) Fiscal Years each, provided that upon completion of the initial term and the first renewal period, both Lessee and Manager mutually agree to renew the Agreement and, provided further, that at the time of exercise of any such option to renew an Event of Default by Manager does not then exist beyond any applicable grace or cure period. If at the time of the exercise of any renewal period, Manager is then in default under this Agreement, then the exercise of the renewal option will be conditional on timely cure of such default, and if such default is not timely cured, then Lessee may terminate this Agreement regardless of the exercise of such renewal period and without the payment of any fee or liquidated damages. If Manager desires to exercise any such option to renew, it shall give Lessee Notice to that effect not less than ninety (90) days prior to the expiration of the then current Term. Notwithstanding the expiration or earlier termination of the Term, Lessee and Manager agree that the obligations of Lessee to pay, remit, reimburse and to otherwise indemnify Manager for any and all expenses and fees incurred or accrued by Manager pursuant to the provisions of this Agreement prior to the expiration or earlier termination of the Term (or actually incurred by Manager after the termination) shall survive Termination, provided such expenses and fees have been incurred consistent with the then current terms of this Agreement and the applicable Annual Operating Budget, including, without limitation but only to the extent so consistent, all costs, expenses and liabilities arising from the termination of the Premises’ employees such as accrued vacation and sick leave, severance pay and other accrued benefits, employer liabilities pursuant to the Consolidated Omnibus Budget Reconciliation Act and employer liabilities pursuant to the Worker Adjustment and Retraining Notification Act. In addition, subject to Section 19.2 below and the foregoing sentence, upon Termination of this Agreement, Lessee and Manager shall have no further obligations to one another pursuant to this Agreement, except that Section 2.2, obligations to make payments under Section 2.3 or Section 9.5, Section 9.7, the last sentence of Section 15.1, obligations to make payments of termination fees pursuant to Article XVIII, Article XXIV, Article XXV, Article XXVII and Section 28.13 shall survive Termination.
2.2 Actions to be taken upon Termination. Upon a Termination of this Agreement with respect to one or more of the Hotels, the following shall be applicable:
(a) Manager shall, within forty-five (45) days after Termination of this Agreement, prepare and deliver to Lessee a final accounting statement with respect to such Hotels, in form and substance consistent with the statements provided pursuant to Section 15.2, along with a statement of any sums due from Lessee to Manager pursuant hereto, dated as of the date of Termination. Within thirty (30) days after the receipt by Lessee of such final accounting statement, the parties will make whatever cash adjustments are necessary pursuant to such final statement. The cost of preparing such final accounting statement shall be a Deduction. Manager and Lessee acknowledge that there may be certain adjustments for which the necessary information will not be available at the time of such final accounting, and the parties agree to readjust such amounts and make the necessary cash adjustments when such information becomes available.
(b) As of the date of the final accounting referred to in subsection (a) above, Manager shall release and transfer to Lessee any of Lessee’s funds which are held or controlled by Manager with respect to such Hotels, with the exception of funds to be held in escrow pursuant to Section 9.5 and Section 12.7. During the period between the date of Termination and the date of such final accounting, Manager shall pay (or reserve against) all Deductions which accrued (but were not paid) prior to the date of Termination, using for such purpose any Gross Revenues which accrued prior to the date of Termination.
(c) Manager shall make available to Lessee such books and records respecting such Hotels (including those from prior years, subject to Manager’s reasonable records retention policies in accordance with applicable law and legal requirements) as will be needed by Lessee to prepare the accounting statements, in accordance with the Uniform System of Accounts, for such Hotels for the year in which the Termination occurs and for any subsequent year. Such books and records shall not include:
(i) employee records which must remain confidential pursuant to either Legal Requirements or confidentiality agreements, or (ii) any Intellectual Property.
(d) Manager shall (to the extent permitted by Legal Requirements) assign to Lessee, or to any other manager employed by Lessee to operate and manage such Hotels, all operating licenses for such Hotels which have been issued in Manager’s name; provided that if Manager has expended any of its own funds in the acquisition of any of such licenses, Lessee shall reimburse Manager therefor if it has not done so already.
(e) Lessee agrees that Hotel reservations and any and all contracts made in connection with Hotel convention, banquet or other group services made by Manager in the ordinary and normal course of business consistent with this Agreement, for dates subsequent to the date of Termination and at rates prevailing for such reservations at the time they were made, shall be honored and remain in effect after Termination of this Agreement.
(f) Manager shall cooperate with the new operator of such Hotels as to effect a smooth transition and shall peacefully vacate and surrender the Hotels to Lessee.
(g) Manager and Lessee agree to use best efforts to resolve any disputes amicably and promptly under this Section 2.2 to effect a smooth transition of such Hotels to Lessee and/or Lessee’s new manager.
2.3 Early Termination Rights, Liquidated Damages.
(a) Termination Upon Sale. Upon Notice to Manager, Lessee shall have the option to terminate this Agreement with respect to one, more or all of the Hotels effective as of the closing of the Sale of such Hotels to a third party. Such Notice shall be given at least forty-five (45) days’ in advance (unless otherwise required by Legal Requirements, in which case Lessee shall provide such additional notice in order to comply with such Legal Requirements) and shall inform Manager of the identity of the contract purchaser. Manager, at its election, may offer to provide management services to such contract purchaser after the closing of the sale. Lessee shall, in connection with such Sale, by a separate document reasonably acceptable to Lessee and Manager, indemnify and save Manager harmless against any and all losses, costs, damages, liabilities and court costs, claims and expenses, including, without limitation, reasonable attorneys’ fees arising or resulting from the failure of Lessee or such prospective purchaser to provide any of the services contracted for in connection with the business booked for such hotels to, and including, the date of such Termination, in accordance with the terms of this Agreement, including without limitation, any and all business so booked as to which facilities and/or services are to be furnished subsequent to the date of Termination, provided that any settlement by Manager of any such claims shall be subject to the prior written approval of Lessee which shall not be unreasonably withheld, conditioned or delayed. In addition, the following terms shall apply in connection with the sale of any Hotel:
(i) Sale of Future Hotel. If this Agreement is terminated pursuant to Section 2.3(a) with respect to any of the Future Hotels prior to the first anniversary of the Commencement Date applicable to such Future Hotel, then Lessee shall pay to Manager on such termination, a termination fee as liquidated damages and not as a penalty (provided that an Event of Default by Manager is not then existing beyond any cure or grace periods set forth in this Agreement) in an amount equal to the estimated Base Management Fee and Incentive Management Fee that was estimated to be paid to Manager with respect to such Future Hotel pursuant to the Annual Operating Budget for the remaining Accounting Periods until the first anniversary of the Commencement Date for such Future Hotel (irrespective of the Management Fees paid to Manager prior to the date of the Termination with respect to the Hotels). If this Agreement is terminated pursuant to Section 2.3(a) with respect to any of the Future Hotels after the first anniversary of the Date applicable to such Future Hotel, then no termination fees shall be payable by Lessee.
(ii) Sale of Initial Hotel. If this Agreement is terminated pursuant to Section 2.3(a) with respect to any of the Initial Hotels prior to the expiration of the initial 10-year term of this Agreement applicable to such Initial Hotel, then Lessee shall pay to Manager on such termination, a termination fee, with respect to each such Hotel as liquidated damages and not as a penalty (provided that an Event of Default by Manager is not then existing beyond any cure or grace periods set forth in this Agreement), an amount equal to the sum obtained by multiplying (1) the aggregate Base Management Fees and Incentive Management Fees budgeted in the Annual Operating Budget applicable to such Initial Hotel for the full current Fiscal Year in which such termination is to occur (but in no event less than the Base Management Fees and Incentive Management Fees for the preceding full Fiscal Year) by (2) the number of years remaining in the initial 10-year Term of this Agreement applicable to such Initial Hotel. Notwithstanding the foregoing, if this Agreement is terminated pursuant to Section 2.3(a) with respect to any of the Initial Hotels after the initial 10-year term of this Agreement applicable to such Initial Hotel, then no termination fees shall be payable by Lessee.
(b) Termination Due to Failure to Satisfy Performance Test.
(i) Performance Test. Lessee shall have the right to terminate this Agreement with respect to any Initial Hotel after the initial 10-year term of this Agreement applicable to such Initial Hotel and any Future Hotel (for the purposes of this Section 2.3(b)(i) called Subject Hotel), in the event of the occurrence of the following (collectively herein called, the Performance Test):
(1) If, commencing with the first Fiscal Year after the initial 10-year term for an Initial Hotel and commencing with the first full Fiscal Year following the Commencement Date for any Future Hotel, and for each Fiscal Year thereafter (a) a Subject Hotel’s Gross Operating Profit Margin for such Fiscal Year is less than seventy-five percent (75%) of the average Gross Operating Profit Margin of comparable hotels in similar markets and geographic locations to the subject Hotel as reasonably determined by Lessee and Manager, and (b) such Subject Hotel’s Revpar Yield Penetration is less than 80% for such Fiscal Year (herein (a) and (b) collectively called Performance Failure); then
(2) Manager shall have a period of two (2) years, commencing with the next ensuing Fiscal Year (the Performance Cure Period), to cure the Performance Failure after Manager’s receipt of Notice from Lessee of such Performance Failure and Lessee’s intent to terminate this Agreement with respect to the Subject Hotel if the Performance Failure is not cured within such Performance Cure Period; and
(3) If after the end of the Performance Cure Period, the Performance Failure remains uncured, then Lessee may, at its election, terminate this Agreement upon forty-five (45) days’ prior Notice to Manager.
(ii) Finance Reports. Determinations of the performance of the Subject Hotel shall be in accordance with the audited annual financial statements delivered by Lessee’s accountant pursuant to Section 15.3 hereof.
(iii) Extension of Performance Cure Period. Notwithstanding the foregoing, if at any time during the Performance Cure Period (a) Lessee is in material default under any of its obligations under this Agreement, or (b) Lessee has terminated, terminates or causes a termination of the Franchise Agreement (other than defaults due to Manager) and does not obtain a new franchise agreement with a comparable franchisor, or (c) the operation of the Hotel or the use of the Hotel’s facilities are materially disrupted by casualty, condemnation, or events of Force Majeure that are beyond the reasonable control of Manager, or by major repairs to or major refurbishment of the Hotel, then, for such period, the Performance Cure Period shall be extended.
(iv) Renewal Period. If at the time of Manager’s exercise of a renewal period with respect to any Hotel, such hotel is a Subject Hotel within a Performance Cure Period, the exercise of such renewal period shall be conditional upon timely cure of the Performance Failure, and if such Performance Failure is not timely cured, then, notwithstanding the foregoing provisions, Lessee may elect to terminate this Agreement with respect to such Subject Hotel pursuant to the terms of this Section 2.3(b).
(c) Termination for Convenience. Lessee may terminate this Agreement as to any Hotel for convenience (except if due to a Sale of a Hotel, whereupon Section 2.3(a) shall govern) upon ninety (90) days Notice to Manager, and shall pay to Manager as liquidated damages but not as a penalty, a termination fee (provided that there does not then exist an Event of Default by Manager under this Agreement beyond any applicable cure or grace periods) in an amount equal to the product of (1) the aggregate Base Management Fees and Incentive Management Fees budgeted in the Annual Operating Budget applicable to such Hotel for the full current Fiscal Year in which such termination is to occur (but in no event less than the Base Management Fees and Incentive Management Fees for the preceding full Fiscal Year) by (2) the number of years remaining in the initial 10-year Term of this Agreement applicable to such Hotel or any applicable renewal period.
(d) Payment of liquidated damages. With respect to any termination fees payable in connection with any early termination right set forth in this Section 2.3, Lessee recognizes and agrees that, if this Agreement is terminated with respect to any of the Hotels for the reasons specified in this Section 2.3 thereby entitling Manager to receive the termination fees as set forth in this Section 2.3, Manager would suffer an economic loss by virtue of the resulting loss of management fees which would otherwise have been earned under this Agreement. Because such fees vary in amount depending on the total gross revenues earned at the Hotels and accordingly would be extremely difficult and impractical to ascertain with certainty, the parties agree that the termination fees provided in this Section 2.3 constitute a reasonable estimate of liquidated damages to Manager for purposes of any and all legal requirements, and it is agreed that Manager shall not be entitled to maintain a cause of action against Lessee, except as specifically provided herein, for actual damages in excess of the termination fees in any context where the termination fees are provided by this Agreement, and receipt of such fees (together with all other amounts due and payable by Lessee to Manager with respect to events occurring prior to termination of this Agreement with respect to the applicable Hotel or as otherwise provided herein) shall be Manager’s sole remedy for damages against Lessee in any such case.
The foregoing shall in no way affect any other sums due Manager under this Article II or otherwise hereunder, including, without limitation, the Management Fees earned during the Term, or any other rights or remedies, at law or in equity of Manager under this Agreement or under Legal Requirements, including any indemnity obligations of Lessee to Manager under this Agreement.
2.4 Substitution of Hotel. Notwithstanding the foregoing, if, in event of a termination of this Agreement with respect to a Hotel, a termination fee becomes payable by Lessee, Lessee may (in its sole and absolute discretion) avoid payment of such termination fee by substituting for the terminated Hotel within 120 days of such termination, another hotel facility reasonably comparable to the terminated Hotel in size, number of rooms, quality of franchise operation, market and geographical location, and gross revenues, to be governed by the terms and conditions of this Agreement as an Initial Hotel from and after the date of such substitution, and this Agreement shall be amended accordingly pursuant to a form of amendment similar to Exhibit E attached hereto.

ARTICLE III PREMISES
Manager shall be responsible, at the sole cost and expense of Lessee, for keeping and maintaining the Premises fully equipped in accordance with plans, specifications, construction safety and fire safety standards, and designs pursuant to applicable Legal Requirements, the standards and requirements of a Franchisor pursuant to any applicable Franchise Agreement, any applicable Hotel Mortgage, the Leases, the Capital Improvement Budgets and the Annual Operating Budgets approved pursuant to the terms hereof, subject in all respects to performance by Lessee of its obligations pursuant to this Agreement.

ARTICLE IV APPOINTMENT OF MANAGER
4.1 Appointment. Lessee hereby appoints Manager as its sole, exclusive and continuing operator and manager to supervise and direct, for and at the expense of Lessee, the management and operation of the Premises under the terms and conditions set forth herein. In exercising its duties hereunder, Manager shall act as agent and for the account of Lessee. Manager hereby accepts said appointment and agrees to manage the Premises during the Term of this Agreement under the terms and conditions set forth herein.
4.2 Delegation of Authority. The operation of the Premises shall be under the exclusive supervision and control of Manager who, except as otherwise specifically provided in this Agreement, shall be responsible for the proper and efficient management and operation of the Premises in accordance with this Agreement, the Leases, the Franchise Agreements, the Capital Improvement Budget and the Annual Operating Budget. Subject to the terms of such agreements and budgets, the Manager shall have discretion and control in all matters relating to the management and operation of the Premises, including, without limitation, charges for rooms and commercial space, the determination of credit policies (including entering into agreements with credit card organizations), food and beverage service and policies, employment policies, procurement of inventories, supplies and services, promotion, advertising, publicity and marketing, and, generally, all activities necessary for the operation of the Premises. Manager shall also be responsible for the receipt, holding and disbursement of funds and maintenance of bank accounts in compliance with the Cash Management Agreements, if applicable.
4.3 Contracts, Equipment Leases and Other Agreements. Manager is hereby authorized to grant concessions, lease commercial space and enter into any other contract, equipment lease, agreement or arrangement pertaining to or otherwise reasonably necessary for the normal operation of the Premises (such concession, lease, equipment lease, contract, agreement or arrangement hereinafter being referred to individually as a Contract and collectively as Contracts) on behalf of Lessee, as may be necessary or advisable and reasonably prudent business judgment in connection with the operation of the Premises and consistent with the Annual Operating Budget, and subject to any restrictions imposed by the Franchise Agreements, Leases, any Hotel Mortgage and this Agreement, and subject to the Lessee’s prior written approval of: (i) any Contract which provides for a term exceeding one (1) year (unless such Contract is cancellable on thirty days notice without cost, premium or penalty exceeding $25,000.00) or (ii) any tenant space lease, license or concession concerning any portion of the public space in or on the Premises for stores, office space, restaurant space, or lobby space. Lessee’s approval of any Contract shall not be unreasonably withheld, delayed or conditioned. Unless otherwise agreed, all Contracts for the Premises shall be entered into in Lessee’s name. Manager shall make available to Lessee, its agents, and employees, at the Premises during business hours, executed counterparts or certified true copies of all Contracts it enters into pursuant to this Section 4.3.
4.4 Alcoholic Beverage/Liquor Licensing Requirements. With respect to any licenses and permits held by Lessee or any of its subsidiaries for the sale of any liquor and alcoholic beverages at any of the Premises, Manager agrees, as part of its management duties and services under this Agreement, to fully cooperate with any applicable liquor and/or alcoholic beverage authority and to assist Lessee with any documentation and other requests of such authority to the extent necessary to comply with any licensing and/or permitting requirements applicable to the Premises.

ARTICLE V REPRESENTATIONS AND WARRANTIES
5.1 Lessee Representations. Lessee, in order to induce Manager to enter into this Agreement, hereby represents and warrants to Manager as follows:
5.1.1 The execution of this Agreement is permitted by the Certificate of Formation and limited liability company agreement of Lessee and this Agreement has been duly authorized, executed and delivered on behalf of Lessee and constitutes the legal, valid and binding obligation of Lessee enforceable in accordance with the terms hereof;
5.1.2 There is no claim, litigation, proceeding or governmental investigation pending, or, to the best knowledge and belief of Lessee, threatened, against or relating to Lessee, the properties or businesses of Lessee or the transactions contemplated by this Agreement which does, or may reasonably be expected to, materially or adversely affect the ability of Lessee to enter into this Agreement or to carry out its obligations hereunder, and, to the best knowledge and belief of Lessee, there is no basis for any such claim, litigation, proceeding or governmental investigation except as has been fully disclosed in writing by Lessee to Manager;
5.1.3 Neither the consummation of the transactions contemplated by this Agreement on the part of Lessee to be performed, nor the fulfillment of the terms, conditions and provisions of this Agreement, conflicts with or will result in the breach of any of the terms, conditions or provisions of, or constitute a default under, any agreement, indenture, instrument or undertaking to which Lessee is a party or by which it is bound;
5.1.4 No approval of any third party (including any Landlord or the Holder of any Hotel Mortgage in effect as of the date of this Agreement) is required for Lessee’s execution, delivery and performance of this Agreement that has not been obtained prior to the execution hereof; 5.1.5 Lessee holds all required governmental approvals required (if applicable) to be held by it to lease the Hotels; and
5.1.6 As of the date of this Agreement there are no defaults under any of the Leases.
5.2 Manager Representations. Manager, in order to induce Lessee to enter into this Agreement, hereby represents and warrants to Lessee as follows:
5.2.1 The execution of this Agreement is permitted by the limited liability company operating agreement of Manager and this Agreement has been duly authorized, executed and delivered on behalf of Manager and constitutes a legal, valid and binding obligation of Manager enforceable in accordance with the terms hereof;
5.2.2 There is no claim, litigation, proceeding or governmental investigation pending, or, to the best knowledge and belief of Manager, threatened, against or relating to Manager, the properties or business of Manager or the transactions contemplated by this Agreement which does, or may reasonably be expected to, materially or adversely affect the ability of Manager to enter into this Agreement or to carry out its obligations hereunder, and, to the best knowledge and belief of Manager, there is no basis for any such claim, litigation, proceeding or governmental investigation, except as has been fully disclosed in writing by Manager to Lessee;
5.2.3 Neither the consummation of the transactions contemplated by this Agreement on the part of Manager to be performed, nor the fulfillment of the terms, conditions and provisions of this Agreement, conflicts with or will result in the breach of any of the terms, conditions or provisions of, or constitute a default under, any agreement, indenture, instrument or undertaking to which Manager is a party or by which it is bound;
5.2.4 No approval of any third party is required for Manager’s execution, delivery and performance of this Agreement that has not been obtained prior to the execution and delivery hereof;
5.2.5 Manager holds all required governmental approvals required to be held by it to perform its obligations under this Agreement; and
5.2.6 Manager qualifies as an Eligible Independent Contractor, and during the Term of this Agreement, agrees to continue to qualify as an Eligible Independent Contractor.

ARTICLE VI OPERATION
6.1 Name of Premises, Standard of Operation. During the Term of this Agreement, the Premises shall be known and operated by Manager as hotels licensed with the applicable Franchisor as noted on Exhibit C, with additional identification as may be necessary to provide local identification, provided Manager and/or Lessee have obtained and are successful in continuously maintaining the right to so operate the Premises, which Manager agrees to use its reasonable best efforts to do. Manager agrees to manage the Premises, for the account of Lessee, and so far as is legally possible, in accordance with the Annual Operating Budget and Applicable Standards subject to Force Majeure. In the event of termination of a Franchise Agreement for one or more of the Premises, Manager shall operate such Premises under such other franchise agreement, if any, as Lessee enters into or obtains as franchisee. If the name of a Franchisor’s hotel system is changed, Lessee shall have the right to change the name of the applicable Hotel to conform thereto.
Notwithstanding the foregoing or any other provision in this Agreement to the contrary, Manager’s obligation with respect to operating and managing the Hotels in accordance with any Hotel Mortgage, Ground Leases, the Leases and the CCRs shall be limited to the extent (i) true and complete copies thereof have been made available to Manager by Lessee reasonably sufficient in advance to allow Manager to manage the Hotels in compliance with such documents, and (ii) the provisions thereof and/or compliance with such provisions by Manager (a) are applicable to the day-to-day management, maintenance and routine repair and replacement of the Hotels, the FF&E or any portion thereof, (b) do not require contribution of funds from Manager, (c) do not materially increase Manager’s obligations hereunder or materially decrease Manager’s rights or benefits hereunder, (d) do not limit or restrict, or attempt to limit or restrict any corporate activity or transaction with respect to Manager or any Manager Affiliate Entity or any other activity, transfer, transaction, property or other matter involving Manager or the Manager Affiliate Entities other than at the Site of the Hotels and (e) are otherwise within the scope of Manager’s duties under this Agreement. Lessee acknowledges and agrees, without limiting the foregoing, that any failure of (i) Lessee to comply with the provisions of any Hotel Mortgage, Ground Leases, the Leases and the CCRs or Legal Requirements or (ii) Manager to comply with the provisions of any such agreements or Legal Requirements arising out of, in the case of both (i) and (ii), (A) the condition of the Hotels, and/or the failure of the Hotels to comply with the provisions of such agreements, prior to the Commencement Date, (B) construction activities at the Hotels prior to the Commencement Date, (C) inherent limitations in the design and/or construction of, location of the Hotels and/or parking at the Hotels prior to the Commencement Date, (D) failure of Lessee to provide funds, from operations or otherwise, sufficient to allow timely compliance with the provisions of the Applicable Standards or the Leases, the Ground Leases, any Hotel Mortgage and/or the CCRs through reasonable and customary business practices, and/or (E) Lessee’s failure to approve any matter reasonably requested by Manager in Manager’s good faith business judgment as necessary or appropriate to achieve compliance with such items, shall not be deemed a breach by Manager of its obligations under this Agreement. Manager and Lessee agree, that Manager may from time to time, so long as Manager is in compliance with the Franchise Agreements and Legal Requirements, provide collateral marketing materials in the rooms of the Hotels which advertise other hotels or programs of Manager or its Affiliates (including, through a dedicated television channel in the rooms of the Hotels), at the sole cost and expense of Manager, provided such other hotels or programs being marketed by Manager are not competing directly in the same market with the Hotel where the marketing materials and information are being placed by Manager or any other Hotel owned by Landlord, Lessee or the Partnership and managed by Manager.
6.2 Use of Premises. Manager shall use the Premises solely for the operation of the Hotels in accordance with the Applicable Standards and for all activities in connection therewith which are customary and usual to such an operation. Subject to the terms of this Agreement, Manager shall comply with and abide by all applicable Legal Requirements, and the requirements of any insurance companies covering any of the risks against which the Premises are insured, any Hotel Mortgage, the Ground Leases, the Leases, and the Franchise Agreements. If there are insufficient funds in the Operating Account to make any expenditure required to remedy non-compliance with such Legal Requirements or with the requirements of any Hotel Mortgage, the Ground Leases, the Leases, or the Franchise Agreements or applicable insurance, Manager shall promptly notify Lessee of such non-compliance and estimated cost of curing such non-compliance. If Lessee fails to make funds available for the expenditure so requested by Manager within thirty (30) days, Lessee agrees to indemnify and hold Manager harmless from and against any and all costs, expenses and other liabilities incurred by Manager resulting from such non-compliance (which such indemnity shall survive any termination of this Agreement). In no event shall Manager be required to make available or distribute, as applicable, sexually explicit materials or items of any kind, whether through retail stores or gift shops located at the Hotels or through pay for view programming in the guest rooms of the Hotels.
6.3 Group Services. Manager may cause to be furnished to the Premises certain services (Group Services) which are furnished generally on a central or regional basis to other hotels or other properties managed by Manager or any Manager Affiliate Entity and which benefit each hotel managed by Manager including, by way of example and not by way of limitation, (i) marketing, advertising and promotion; (ii) centralized accounting payroll processing, ADP management, management and administration of accounts payable, accounts receivable and cash management accounting and MIS support services; (iii) the preparation and maintenance of the general ledger and journal entries, internal audit, budgeting and financial statement preparation, (iv) recruiting, training, career development and relocation in accordance with Manager’s or any Manager Affiliate Entities’ relocation plan; (v) employee benefits administration; (vi) engineering and risk management; (vii) information technology; (viii) legal support (such as license and permit coordination, filing and completion, standardized contracts, negotiation and preparation, and similar legal services benefiting the Hotels); (ix) purchasing arising out of ordinary hotel operations not otherwise contemplated in Section 8.2(g) hereof; (x) internal audit services; (xi) reservation systems; and (xii) such other additional services as are or may be, from time to time, furnished for the benefit of Manager’s or any Manager Affiliate Entities’ hotels or other properties managed by Manager or in substitution for services now performed at Manager’s individual hotels which may be more efficiently performed on a group basis. Manager shall assure that the costs and expenses incurred in providing Group Services to the Premises shall have been allocated to the Premises on a pro-rata basis consistent with the method of allocation to all of Manager’s (and any Manager Affiliate Entities’) hotels or other properties receiving the same services, shall be incurred at a cost consistent with the Annual Operating Budget and shall constitute Deductions. All Group Services provided by Manager shall be at the actual costs (without mark up for fee or profit to Manager or any Manager Affiliate Entity, but including salary and employee benefit costs and costs of equipment used in performing such services and overhead costs, and taking into account any rebate, give-up or participation in any reciprocal business arrangement with Manager or any Manager Affiliate Entity) of Group Services for the benefit of all of Manager’s hotels receiving the same services, and shall be of a quality comparable to which Manager could obtain from other providers for similar services.
6.4 Right to Inspect. Lessee, the beneficial owners of Lessee, the Landlords (to the extent permitted under such Leases), any Holder under any Hotel Mortgage (to the extent permitted under such Hotel Mortgage), and their respective agents, shall have access to the Premises at any and all reasonable times for any purpose. Manager will be available to consult with and advise such parties, at their reasonable request, concerning all policies and procedures affecting all phases of the conduct of business at the Hotels.

ARTICLE VII WORKING CAPITAL AND INVENTORIES
7.1 Working Capital and Inventories. The Lessee shall cause funds to be deposited in one or more operating accounts established by Manager, in amounts sufficient to operate the Premises in accordance with the Annual Operating Budget, including the establishment and maintenance of positive Working Capital and Inventories as reasonably determined by Manager. All Working Capital and Inventories are and shall remain the property of Lessee. Lessee acknowledges that liabilities arising in connection with the operation and management of the applicable Hotel including, without limitation, all Deductions, incurred in accordance with the terms of this Agreement, are and shall remain the obligations of Lessee, and Manager shall have no liability therefor unless otherwise expressly provided herein.
7.2 Fixed Asset Supplies. Lessee shall provide the funds necessary to supply the Premises initially with Fixed Asset Supplies as reasonably determined by Manager consistent with the cost budgeted therefor in the Annual Operating Budget and otherwise consistent with the intent of the parties that the level of such supplies will be adequate for the proper and efficient operation of the Premises at the Applicable Standards. Fixed Asset Supplies shall remain the property of Lessee.

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