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1、FORM OF HOTEL MASTER MANAGEMENT AGREEMENT BY AND BETWEEN MHI HOSPITALITY TRS, LLC A DELAWARE LIMITED LIABILITY COMPANY AND MHI HOTELS SERVICES LLC, A VIRGINIA LIMITED LIABILITY COMPANY ARTICLE I DEFINITION OF TERMS11.1Definition of Terms1ARTICLE II TERM OF AGREEMENT102.1Term102.2Actions to be taken
2、upon Termination112.3Early Termination Rights, Liquidated Damages122.4Substitution of Hotel15ARTICLE III PREMISES16ARTICLE IV APPOINTMENT OF MANAGER164.1Appointment164.2Delegation of Authority164.3Contracts, Equipment Leases and Other Agreements164.4Alcoholic Beverage/Liquor Licensing Requirements17
3、ARTICLE V REPRESENTATIONS AND WARRANTIES175.1Lessee Representations175.2Manager Representations18ARTICLE VI OPERATION186.1Name of Premises, Standard of Operation186.2Use of Premises206.3Group Services206.4Right to Inspect21ARTICLE VII WORKING CAPITAL AND INVENTORIES217.1Working Capital and Inventori
4、es217.2Fixed Asset Supplies21ARTICLE VIII MAINTENANCE, REPLACEMENT AND CHANGES218.1Routine and Non-Routine Repairs and Maintenance218.2Capital Improvement Budget22ARTICLE IX EMPLOYEES249.1Employee Hiring249.2Costs, Benefit Plans249.3Managers Employees249.4Special Projects Corporate Employees259.5Ter
5、mination259.6Employee Use of Hotel269.7Non-Solicitation26ARTICLE X BUDGET, STANDARDS AND CONTRACTS2610.1Annual Operating Budget2610.2Budget Approval2710.3Operation Pending Approval2710.4Budget Meetings27ARTICLE XI OPERATING DISTRIBUTIONS2811.1Management Fee2811.2Accounting and Interim Payment29ARTIC
6、LE XII INSURANCE3012.1Insurance30i12.2Replacement Cost3112.3Increase in Limits3112.4Blanket Policy3112.5Costs and Expenses3112.6Policies and Endorsements3212.7Termination32ARTICLE XIII TAXES AND DEBT SERVICE3213.1Taxes3213.2Debt Service, Ground Lease Payments32ARTICLE XIV BANK ACCOUNTS3314.1Operatin
7、g Account3314.2Payroll Account3314.3Management of Operating Account3314.4Advance of Funds3414.5Reserve Accounts34ARTICLE XV ACCOUNTING SYSTEM3415.1Books and Records3415.2Monthly Financial Statements3415.3Annual Financial Statements35ARTICLE XVI PAYMENT BY LESSEE3516.1Payment of Base Management Fee35
8、16.2Payment of Incentive Management Fee3516.3Distributions35ARTICLE XVII RELATIONSHIP AND AUTHORITY36ARTICLE XVIII DAMAGE, CONDEMNATION AND FORCE MAJEURE3618.1Damage and Repair3618.2Condemnation3618.3Force Majeure37ARTICLE XIX DEFAULT AND TERMINATION3719.1Events of Default3719.2Consequence of Defaul
9、t38ARTICLE XX WAIVER AND INVALIDITY3820.1Waiver3820.2Partial Invalidity38ARTICLE XXI ASSIGNMENT39ARTICLE XXII NOTICES39ARTICLE XXIII SUBORDINATION; NON-DISTURBANCE4023.1Subordination4023.2Non-Disturbance Agreement41ARTICLE XXIV PROPRIETARY MARKS; INTELLECTUAL PROPERTY4124.1Computer Software and Equi
10、pment4124.2Intellectual Property4224.3Books and Records42ARTICLE XXV INDEMNIFICATION4225.1Manager Indemnity42ii25.2Lessee Indemnity4225.3Indemnification Procedure4325.4Survival43ARTICLE XXVI FUTURE HOTELS44ARTICLE XXVII GOVERNING LAW VENUE44ARTICLE XXVIII MISCELLANEOUS4428.1Rights to make Agreement4
11、428.2Agency4528.3Failure to Perform4528.4Headings4528.5Attorneys Fees and Costs4528.6Entire Agreement4528.7Consents4528.8Eligible Independent Contractor4528.9Subleasing4628.10Environmental Matters4728.11Equity and Debt Offerings4728.12Estoppel Certificates4728.13Confidentiality4828.14Modification482
12、8.15Counterparts48LIST OF EXHIBITS50LIST OF SCHEDULESiiiHOTEL 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
13、 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 equi
14、pped 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 exi
15、sts 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 for
16、th 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 be
17、low.“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 h
18、ereof.“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 10.2.1“Applicable Standards” shall mean standards of operation for the Premises wh
19、ich 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
20、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
21、 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 re
22、quirements 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.“Base Management Fee” shall have the meaning as set forth in Section 11.1(a).“Benefit
23、 Plans” shall have the meaning as set forth in Section 9.2.“Business Day” shall mean any day excluding (i) Saturday, (ii) Sunday, (iii) any day which is a legal holiday under the laws of the Commonwealth of Virginia, and (iv) any day on which banking institutions located in such states are generally
24、 not open for the conduct of regular business.“Budgeted GOP” shall mean the Gross Operating Profit as set forth in the Annual Operating Budget for the applicable Fiscal Year, as approved by Lessee and Manager pursuant to Article X hereof.“CCR” shall mean those certain restrictive covenants encumberi
25、ng the Premises recorded in the real property records of the county where such premises are located, as described in the owner policies of title insurance relating to such premises, a copy of which are acknowledged received by the Manager.“Capital Improvement Budget” shall have the meaning as set fo
26、rth in Section 8.2(e).“Cash Management Agreements” shall mean agreements, if any, entered into by Lessee, Landlord and a Holder for the collection and disbursement of any lease payments by Lessee to Landlord under the applicable Lease with respect to the applicable Premises, which constitute a part
27、of the loan documents executed and delivered in connection with any Hotel Mortgage by Landlord.“CIB Objection Notice” shall have the meaning as set forth in Section 8.2(a).“CPI” means the Consumer Price Index, published for all Urban Consumers for the U.S. City Average for All Items, 1982-84=100 iss
28、ued by the Bureau of Labor Statistics of the United States Department of Labor, as published in the Wall Street Journal.2“Code” shall mean the Internal Revenue Code of 1986, as amended.“Commencement Date” shall have the meaning as set forth in Section 2.1.“Competitive Set” shall initially mean for e
29、ach 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 reflec
30、t 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
31、Agreement.“Contract(s)” shall have the meaning as set forth in Section 4.3.“Debt Service” shall mean actual scheduled payments of principal and interest, including accrued and cumulative interest, payable by a Landlord with respect to any Hotel Mortgage.“Deductions” shall mean the following matters:
32、(a) Employee Costs and Expenses (including, Employee Claims but excluding Excluded Employee Claims);(b) Administrative and general expenses and the cost of advertising and business promotion, heat, light, power, communications (i.e., telephone, fax, cable service and internet) and other utilities an
33、d routine repairs, maintenance and minor alterations pertaining to the Premises;(c) The cost of replacing, maintaining or replenishing Inventories and Fixed Asset Supplies consumed in the operation of the Premises;(d) A reasonable reserve for uncollectible accounts receivable as reasonably determine
34、d by Manager and approved by Lessee (such approval not to be unreasonably withheld);(e) All costs and fees of independent accountants, attorneys or other third parties who perform services related to the Hotels or the operation thereof;(f) The cost and expense of non-routine technical consultants an
35、d operational experts for specialized services in connection with the Premises, including, without limitation, an allocation of costs of Managers corporate staff who may perform special services directly related to the Hotels such as sales and marketing, revenue management, training, property tax se
36、rvices, federal, state and/or local tax services, recruiting, and similar functions or services as set forth in Section 9.4, to be allocated on a fair and equitable cost basis as reasonably determined by Manager and approved by Lessee (such approval not to be unreasonably withheld);3(g) Insurance co
37、sts and expenses as provided in Article XII;(h) Real estate and personal property taxes levied or assessed against the Premises by duly authorized taxing authorities and such other taxes, if any, assessed against Manager or the Premises and the responsibility of the Lessee related to the operation a
38、nd/or ownership of the Premises;(i) Franchise fees, royalties, license fees, or compensation or consideration paid or payable to the Franchisor (as hereinafter defined), or any successor Franchisor, pursuant to a Franchise Agreement (as hereinafter defined);(j) The Premises allocable share of the ac
39、tual costs and expenses incurred by Manager in providing Group Services as provided in Section 6.3 hereof;(k) The Management Fee;(l) Rental payments made under equipment leases; and(m) Other expenses incurred in connection with the maintenance or operation of the Premises not expressly set forth abo
40、ve and authorized pursuant to this Agreement.Deductions shall not include: (a) depreciation and amortization, (b) Debt Service, or (c) Ground Lease Payments;“Effective Date” shall mean the date this Agreement is fully executed and delivered.“Eligible Independent Contractor” shall have the meaning as
41、 set forth in Section 28.8.“Emergency Expenses” shall mean any expenses, regardless of amount, which, in Managers reasonable judgment, are immediately necessary to protect the physical integrity or lawful operation of the Hotels or the health or safety of its occupants.“Employee Claims” shall mean a
42、ny claims (including all fines, judgments, penalties, costs, litigation and/or arbitration expenses, attorneys fees and expenses, and costs of settlement with respect to any such claim) made by or in respect of an employee or potential hire of Manager against Manager and/or Lessee which are based on
43、 a violation or alleged violation of the Employment Laws or alleged contractual obligations.“Employee Costs and Expenses” shall have the meaning as set forth in Section 9.3.“Employee Related Termination Costs” shall have the meaning as set forth in Section 9.5.“Employment Laws” shall mean all applic
44、able federal, state and local laws (including, without limitation, any statutes, regulations, ordinances or common laws) regarding the employment, hiring or discharge of persons.4“Event(s) of Default” shall have the meaning set forth in Article XIX.“Excluded Employee Claims” shall mean any Employee
45、Claims (a) to the extent attributable to a substantial violation by Manager of Employment Laws, or (b) which do not arise from an isolated act of an individual employee but rather is the direct result of corporate policies of Manager which either encourage or fail to discourage the conduct from which such Employee Claim arises.“Executive Employees” shall mean the senior executives of the Manager.“Expiration Date” shall have the meaning as set forth in Section 2.1.“FF&E” shall
