Exhibit 10.5
OWNER AGREEMENT
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THIS OWNER AGREEMENT ("Agreement") is being entered into as of March
29, 2002, by and between MARRIOTT RESIDENCE INN LIMITED PARTNERSHIP, a Delaware
limited partnership with a mailing address at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Lessor"); AHM RES I LIMITED PARTNERSHIP, a Virginia limited
partnership with a mailing address at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ("Lessee"); and RESIDENCE INN BY MARRIOTT, INC., a Delaware corporation
with a mailing address at ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("Manager").
RECITALS:
WHEREAS, Lessor owns fee simple title to fifteen (15) Inns, currently
operated under the trade name "Residence Inn" or "Residence Inn by Marriott" or
"Marriott Residence Inn," described on Exhibit A attached to this Agreement and
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incorporated herein (these fifteen (15) Inns collectively referred to herein as
the "Inns" or, individually, as an "Inn").
WHEREAS, in connection with the acquisition of indirect ownership of 100%
of the partnership interests in Lessor by Apple Hospitality Two, Inc. ("Apple
Hospitality"), Lessor has leased the Inns to Lessee, and Lessee has leased the
Inns from Lessor, pursuant to that certain lease attached hereto as Exhibit B
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(the "Lease").
WHEREAS, Manager has operated and managed the Inns pursuant to that certain
Management Agreement dated as of March 29, 1988, by and between Manager and
Lessor (the "Original Management Agreement"), as amended by (i) that certain
Manager's Letter Agreement dated October 10, 1995, among Manager, Lessor and
German American Capital Corporation ("GACC"); (ii) that certain Manager's Letter
Agreement dated October 10, 1995, among Manager, Lessor, and iStar Financial
Inc. ("iStar"), successor to Starwood Mezzanine Investors, L.P.; (iii) that
certain Letter Agreement dated October 9, 1998, between Lessor and Manager; and
(iv) that certain Four Party Agreement dated October 10, 1995, between GACC,
iStar, Lessor and Manager.
WHEREAS, pursuant to that certain Consent, Assignment and Assumption of
Management Agreement of even date hereof ("Assignment Agreement"), Lessor
assigned to Lessee the Original Management Agreement and the Letter Agreement
described in clause (iii) of the preceding recital (the "Letter Agreement").
WHEREAS, Manager has consented to such assignment by Lessor to Lessee
subject to, among other things: (i) Lessor guarantying the obligations of Lessee
under the Original Management Agreement and the Letter Agreement; (ii) Lessor
agreeing to grant certain protections to Manager in the event the Lease is
terminated for any reason; and (iii) Lessee meeting certain criteria, the
satisfaction of which is confirmed by the execution of this Agreement.
WHEREAS, Lessee and Manager have executed by even date hereof an Amendment
and Restatement of Management Agreement (hereinafter referred to, together with
the Letter Agreements, collectively as the "Management Agreement").
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
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have the meaning provided in the Management Agreement.
2. Lessor Consideration. Lessor hereby acknowledges that: (i) Lessor
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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 partnership purposes of Lessor, and are
in the best interest of Lessor.
3. Acknowledgement of Lease. Manager hereby acknowledges and consents to
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the lease of Inns 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
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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 Inns, (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 Inns 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 Inns 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
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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,
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assignment or transfer of an 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
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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 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 Inns 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 Inns is
permitted under Section 18.01 (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
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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
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other term or condition of payments due under the Management Agreement or this
Agreement, or any other amendment or waiver of, or consent to, 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, 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 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
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Agreement. Upon receiving a written request from Manager to do so (and provided
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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 Inns, 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
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Lessee's interest in the Site and the Inns is leasehold, and to address certain
other related matters, the
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parties agree to the following modifications of the Management Agreement, to be
effective for so long as Lessee's interest in the Site and Inns 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 Inns and Site; (ii) Lessee holds, and shall
have, keep and maintain throughout the term of the Management Agreement,
leasehold title to the Inns and Site free and clear of any and all liens,
encumbrances or other charges, except for those specifically set forth in
Section 3.01.A. of the Management Agreement.
B. In connection with any "Sale of the Inns" that is consented to by
Manager under Article XVIII 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 no greater liability, cost
or risk of termination of the Management Agreement as a result of such "Sale of
the Inns".
C. If Lessor hereafter encumbers the Site and/or the Inns with a Mortgage,
the Subordination Agreement required in Article XVII 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 Inns 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.
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A. Lessor agrees to fully and timely comply with all notice requirements
set forth in Section 18.01 of the Management Agreement on each occasion that
Lessor receives a bona fide written offer for a Sale of an Inn that it desires
to accept. Lessor further acknowledges and agrees that any failure by Lessor to
timely provide notice to Manager as set forth in Section 18.01 of the Management
Agreement with respect to a bona fide written offer for a Sale of an Inn shall
extinguish any right of Lessor to enter such Sale.
▇. ▇▇▇▇▇▇ 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 each Inn, which applications shall be prepared by Manager as necessary from
time to time.
10. Certain Provisions Regarding Bankruptcy. In the event the Lease shall
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be rejected on behalf of Lessor under ▇▇▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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 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
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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
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above and shall run concurrently with the term of the Management Agreement.
12. Required Assignment. In connection with any Sale of the Inns which
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includes a transfer of Lessor's and/or Lessee's title in the Site and/or the
Inns, Lessor and Lessee agree that the successors to their respective titles in
the Site and/or the Inns 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
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shall be in writing, and shall be sent or delivered by the methods and to the
addresses for Lessor, Lessee and Manager as required under the Management
Agreement.
14. Eligible Independent Contractor. Manager agrees that, as of the date
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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 Inns are 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
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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
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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.
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C. Remedies Cumulative. The rights and remedies of any party hereto
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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
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accordance with the laws of the State of Maryland.
E. Severability. The invalidity, illegality or unenforceability of any one
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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
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(including the Letter Agreements), Assignment Agreement (defined herein), and
the Lease, constitutes the entire agreement and supersedes all prior agreements
and understandings, both written and oral, between the parties hereto with
respect to the subject matter hereof and may be executed simultaneously in
several counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
G. Successors and Assigns. The parties hereto shall not assign or transfer
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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
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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
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this Agreement.
J. Incorporation of Recitals. The recitals hereto are incorporated herein
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as part of this Agreement.
K. Counterparts - This Assignment may be executed in counterparts, each of
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which, taken together with the others, shall constitute the original.
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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:
MARRIOTT RESIDENCE INN
LIMITED PARTNERSIHP,
a Delaware limited partnership
AHT RES I GP, INC., as general partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
LESSEE:
AHM RES I LIMITED PARTNERSHIP
a Virginia limited partnership
AHM RES I GP, INC., as general partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
MANAGEMENT COMPANY:
RESIDENCE INN BY MARRIOTT, INC.,
a Delaware corporation,
By: /s/ ▇. ▇▇▇▇▇▇ Pulse, Jr.
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Name: ▇. ▇▇▇▇▇▇ Pulse, Jr.
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Title: Vice President
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