Common use of Representations by Lessee and Operator; Engagement of Operator Clause in Contracts

Representations by Lessee and Operator; Engagement of Operator. Lessee hereby represents and warrants that any authorization or acts, which it does or grants, are specifically authorized by the Owner under the Lease. Lessee further warrants that it has the requisite power and authority to perform its obligations under this Agreement and Lessee shall notify Operator immediately if the Lease terminates or is no longer in effect. If the Lease terminates during the Operating Term, such termination shall be deemed a voluntary termination of this Agreement whereupon the provisions of Section 16.01 shall apply. Operator hereby represents that Operator: (i) is a limited liability company duly organized and existing under the laws of the State of Delaware, and is duly qualified to do business in the State of Texas, (ii) has the full power and authority to enter into this Agreement and to carry out the transactions herein contemplated; and the undersigned officers of Operator have all necessary authority to execute and deliver this Agreement on behalf of Operator, (iii) will deliver to Lessee, upon the execution hereof a certificate from the State of Texas showing that Operator is qualified to do business in such State, (iv) will take all legally required action to maintain such qualification under the laws of the State of Texas to remain in good standing as needed to conduct the business herein contemplated, (v) is experienced and capable and will remain experienced and capable in the management and operation of the hotel in the regions it manages hotels, (vi) has reviewed and understands the terms and provisions of the Franchise Agreement and the Hotel Standards, and (vii) will, on the Commencement Date of this Agreement, meet the requirements to be an “eligible independent contractor” under Section 856(d)(9) of the Internal Revenue Code. In reliance on the foregoing representations, Lessee hereby engages Operator to manage and operate the Hotel during the Operating Term and Operator agrees to manage and operate the Hotel during the Operating Term, subject to and in accordance with this Agreement. Subject to the terms of this Agreement, Hotel operations shall be under the exclusive supervision and control of Operator, which, except as otherwise specifically provided in this Agreement, shall be responsible for the proper and efficient operation, maintenance and repair of the Hotel in accordance with the terms of this Agreement. Except as specifically set forth in this Agreement, Operator shall have discretion and control respecting matters relating to management and operation of the Hotel, including, without limitation, charges for rooms and commercial space, credit policies, food and beverage services, other Hotel services, employment policies, granting of concessions or leasing of shops and agencies within the Hotel as specifically requested by Lessee, receipt, holding and disbursement of funds, maintenance of the Operating Account, procurement of inventories, supplies and services, promotion and publicity and, in general, all activities necessary for operation of the Hotel. Operator shall devote its knowledge, experience and efforts to operate and manage the Hotel pursuant to this Agreement in a businesslike manner in accordance with the Hotel Standards. Operator shall make available to Lessee the full benefit of the judgment, experience and advice of the members of Operator’s organization and staff with respect to the policies pursued by Lessee in operating, maintaining, and servicing the Hotel. Operator shall endeavor in good faith and consistent with prudent hotel management to maximize the profitability and value of the Hotel consistent with the Hotel Standards; provided, however, that Operator has not made and shall not be deemed to have made any guaranty or warranty with respect to the financial performance or profitability of the Hotel, or the present or long-term value of the Hotel.

Representations by Lessee and Operator; Engagement of Operator. Lessee hereby represents and warrants that any authorization or acts, which it does or grants, are specifically authorized by the Owner under the Lease. Lessee further warrants that it has the requisite power and authority to perform its obligations under this Agreement and Lessee shall notify Operator immediately if the Lease terminates or is no longer in effect. If the Lease terminates during the Operating Term, such termination shall be deemed a voluntary termination of this Agreement whereupon the provisions of Section 16.01 shall apply. Operator hereby represents that Operator: (i) is a limited liability company duly organized and existing under the laws of the State of Delaware, and is duly qualified to do business in the State of Texas, (ii) has the full power and authority to enter into this Agreement and to carry out the transactions herein contemplated; and the undersigned officers of Operator have all necessary authority to execute and deliver this Agreement on behalf of Operator, (iii) will deliver to Lessee, upon the execution hereof a certificate from the State of Texas showing that Operator is qualified to do business in such State, (iv) will take all legally required action to maintain such qualification under the laws of the State of Texas to remain in good standing as needed to conduct the business herein contemplated, (v) is experienced and capable and will remain experienced and capable in the management and operation of the hotel in the regions it manages hotels, (vi) has reviewed and understands the terms and provisions of the Franchise Agreement and the Hotel Standards, and (vii) will, on the Commencement Date of this Agreement, meet the requirements to be an “eligible independent contractor” under Section 856(d)(9) of the Internal Revenue Code. In reliance on the foregoing representations, Lessee hereby engages Operator to manage and operate the Hotel during the Operating Term and Operator agrees to manage and operate the Hotel during the Operating Term, subject to and in accordance with this Agreement. 13 Subject to the terms of this Agreement, Hotel operations shall be under the exclusive supervision and control of Operator, which, except as otherwise specifically provided in this Agreement, shall be responsible for the proper and efficient operation, maintenance and repair of the Hotel in accordance with the terms of this Agreement. Except as specifically set forth in this Agreement, Operator shall have discretion and control respecting matters relating to management and operation of the Hotel, including, without limitation, charges for rooms and commercial space, credit policies, food and beverage services, other Hotel services, employment policies, granting of concessions or leasing of shops and agencies within the Hotel as specifically requested by Lessee, receipt, holding and disbursement of funds, maintenance of the Operating Account, procurement of inventories, supplies and services, promotion and publicity and, in general, all activities necessary for operation of the Hotel. Operator shall devote its knowledge, experience and efforts to operate and manage the Hotel pursuant to this Agreement in a businesslike manner in accordance with the Hotel Standards. Operator shall make available to Lessee the full benefit of the judgment, experience and advice of the members of Operator’s organization and staff with respect to the policies pursued by Lessee in operating, maintaining, and servicing the Hotel. Operator shall endeavor in good faith and consistent with prudent hotel management to maximize the profitability and value of the Hotel consistent with the Hotel Standards; provided, however, that Operator has not made and shall not be deemed to have made any guaranty or warranty with respect to the financial performance or profitability of the Hotel, or the present or long-term value of the Hotel.