Standard Management Agreement_EN_05042012.doc

MANAGEMENTAGREEMENTBetweenAndFor the hotelThe present proposal is strictly confidential and wont be transmitted by any means whatever to any third party whichever. The present proposal wont be considered as a binding offer and the acceptance of its terms and conditions wont bind ACCOR S.A. or any entity within the ACCOR Group, before the signing of an agreement expressly identified as a binding one.V0504201278 INDEXARTICLE 1 DEFINITIONSARTICLE 2 APPOINTMENT OF THE MANAGER2.1 General Management2.2 Personnel2.3 Limitation of Managers DutiesARTICLE 3 PRE-OPENING PERIOD3.1 Financing of the Project3.2 Completion of the Hotel3.3 Compliance with ACCOR IT Standards3.4 Licences and Permits3.5 Pre-Opening Budget3.6 Pre-Opening Services3.7 Funding of the Pre-Opening Budget and the initial Working Capital3.8 Opening Date3.9 End of the Pre-Opening PeriodARTICLE 4 REPRESENTATIONS4.1 Owner Representations4.2 Manager RepresentationsARTICLE 5 LICENSES AND PERMITSARTICLE 6 RELATIONSHIP6.1 Peaceful Operation6.2 Manager as Agent6.3 No PartnershipARTICLE 7 DURATION OF AGREEMENT7.1 Effective Date7.2 Initial Term7.3 Renewals and TerminationARTICLE 8 BUDGETS8.1 Operating and Capital Improvement Budgets8.2 Working CapitalARTICLE 9 OPERATING ACCOUNT AND DISBURSEMENTSARTICLE 10 FINANCIAL STATEMENTS / BOOKS AND RECORDS10.1 Financial Statements10.2 Books and RecordsARTICLE 11 MAINTENANCE / REPAIRS / CAPITAL IMPROVEMENTS11.1 Maintenance and Repairs11.2 Capital Improvements11.3 Improvements, Modifications and Compliance with Brand Standards11.4 FF&E Reserve FundARTICLE 12 TRADEMARKS AND OTHERS PROPRIETARY MATERIALS12.1 Trademark / Name of the Hotel12.2 Use of Trademarks12.3 Proprietary Materials and Information12.3.1 Ownership of Proprietary Materials and Information12.3.2 Protection of Proprietary Materials and Information12.3.3 Obligations of the OwnerARTICLE 13 MANDATORY BILLABLE SERVICES13.1 Marketing Services13.2 Loyalty and Partnership Program(s)13.3 Distribution and Reservation Services13.4 IT System : OPERA13.5 Revenue ManagementARTICLE 14 OPTIONAL SERVICES14.1 Purchasing Policy14.2 Acadmie ACCOR Trainings14.3 ACCOR Accounting System and SupportARTICLE 15 FEES AND EXPENSES15.1 Details of the Fees15.2 Payment of the Fees15.3 Taxes on Fees15.4 Reimbursable ExpensesARTICLE 16 - GENERAL COVENANTS AND RIGHTS OF THE OWNER16.1 Owners Right of Inspection16.2 Payment of Taxes16.3 Financing and Property Rents16.4 Compliance with ACCOR IT Standards16.4.1 Compliance16.4.2 Protection of software Policy16.5 Complimentary Hotel UseARTICLE 17 LIABILITIES AND INSURANCE17.1 Liabilities17.1.1 Owners liability17.1.2 Managers liability17.2 Insurance17.2.1 General conditions17.2.2 Property insurance17.2.3 Liability insurance17.2.4 Employers liability17.2.5 Workers compensation17.2.6 Automobile liabilityARTICLE 18 THIRD-PARTY CLAIMS AND LEGAL PROCEEDINGARTICLE 19 NOTICES / APPROVALS19.1 Notices19.2 ApprovalsARTICLE 20 SUCCESSORS AND ASSIGNS20.1 Transfer by the Manager20.2 Transfer by the Owner20.2.1 Managers Right of First Refusal20.2.2 Managers Right of Approval20.2.3 Remedies20.3 SecurityARTICLE 21 CONDEMNATION OR DAMAGE21.1 Condemnation21.2 Damage21.3 Effect of TerminationARTICLE 22 TERMINATION RIGHTS22.1 Termination by the Owner22.2 Termination by the Manager22.3 Obligations upon Termination or Expiration22.4 Termination SettlementARTICLE 23 GENERAL23.1 Governing Law and Jurisdiction23.2 Counterparts23.3 Entire Agreement23.4 Changes23.5 Headings23.6 Force Majeure Events23.7 Severability23.8 Waiver and Remedies23.9 Long-term Agreement23.10 Interpretation23.11 ConfidentialityAPPENDIX I Building Description (project documents index) & Brands StandardsAPPENDIX II Opening DateAPPENDIX III Technical Assistance Services (summary)APPENDIX IV TrademarksAPPENDIX V FeesAPPENDIX VI Description of Distribution ServicesAPPENDIX VII ACCORs Insurance ProgramAPPENDIX VIII Addresses for NoticeAPPENDIX IX Loyalty and Partnership Program(s)This management agreement (the “Agreement”) is executed as of _ by:ACCOR ENTITY (the “Manager”), a _ organized and existing under the law of _ with its registered office at _;And (the “Owner”), a _ organized and existing under the law of _ with its registered office at _.PREAMBLEThe Owner is involved in the process to purchase / to rent from , a hotel building consisting of located on the parcel of land described in Appendix I (the “Land”).The Manager is experienced in the various phases of development, operation and management of hotels.The Owner desires to utilize, on an exclusive basis, the Managers services and experience in connection with the management and operation of the Hotel, under the Brand brand and in accordance with the Brand quality standards. The Manager desires to render such services, all upon the terms and conditions hereinafter set forth.NOW, THEREFORE, the Owner and the Manager agree as follows:ARTICLE 1 - DEFINITIONSACCOR: ACCOR S.A., a French Company, having its main office in Paris 75013, Immeuble Odyssey, 110 avenue de France France. “ACCORGroup”: ACCOR (being the holding company of the Manager) and all Affiliates of ACCOR.ACCOR Guest Data: All guest profiles, guest contact information (e.g. addresses, phone numbers, facsimile numbers and email addresses), guest histories, guest preferences and any other guest information in the ACCOR Guest Database which are obtained or derived by the ACCOR Group, from: (i) guests of the Hotel; (ii) guests of any hotel or similar facility which the ACCOR Group, owns, leases, licences, operates or franchises; and (iii) any other sources and databases, including, without limitation, registered users of ACCOR brand websites, ACCOR central reservations database and cards. For the purposes of this definition, “guest” shall be deemed to include any customers of any hotels or similar facilities owned, leased, operated, or franchised by the Manager or any member of the ACCOR Group, and any customers of any of the facilities associated with such hotels or other properties (e.g. restaurants, golf courses, spas, etc.).ACCOR Guest Database: Centralised guest database owned and managed by the ACCOR Group containing all ACCOR Guest Data.ACCOR Set of Books: The accounting books of the Hotels current operations (including, for example, analytical profit and loss statements, sales and purchases journals, debtors balance and payroll books) kept in accordance with ACCOR accounting rules and which may vary from time to time in compliance with (i) IFRS and (ii) the Uniform System of Accounts.Affiliate(s): In relation to any Person (being a Subject Person), any other Person that controls, is controlled by or is under common control as, the Subject Person. For the purposes of this definition, “control” means ownership, directly or indirectly, of the Controlling Interest in a Person and the terms “controlled by” and “common control” shall be interpreted accordingly.Agreement: This Agreement as above defined (including all the Appendices) as amended, restated or supplemented from time to time. Base Management Fee: A component of the Hotel Management Fees to be paid by the Owner to the Manager during the Term of this Agreement as set out in Appendix V.Billable Services: The mandatory and optional billable services (as set out in paragraphs 1.3 and 2) respectively of Appendix V.Billable Services Fee: The fees to be paid by the Owner to the Manager for Billable Services during the Term of this Agreement as set out in sections 1.3 and 2) of Appendix V.Brand: .Brand Hotel(s): The hotel(s) operated under the Brand. Brand Standards: The standards adopted from time to time by the ACCOR Group for Brand Hotels, including all standards, drawings and designs relating to the construction, fitting-out, equipment, and operation of a Brand Hotel, as well as the equipment and technical specifications set out in the various manuals issued from time to time by the ACCOR Group. Current copies of the Brand Standards manuals will be delivered from time to time to the General Manager (which shall be deemed to constitute due delivery to the Owner) and be available for inspection by the Owner at the Hotel. The latest version as at the date of this Agreement is attached in Appendix I.Budgets: Collectively, the Operating Budget, the FF&E Reserve Fund Budget and the Capital Improvement Budget, each as defined in Article 8.1.1.Buildings: The buildings, structures (surface and sub-surface), entrances, exits, walkways, bridges, heating, lighting, sanitation equipment, ventilation and air conditioning, laundry facilities, refrigeration, built-in kitchen equipment and elevators and other improvements now or hereafter located on the Land and relating to the Hotel. Capital Improvement Budget: As defined in Article 8.1.1.Capital Improvements: Together Minor Capital Improvements and Major Capital Improvements.Capital Improvements Costs: Any costs incurred in making Capital Improvements including, without limitation, the applicable costs incurred in connection with any replacements, improvements and additions thereto.Competitor: Means a Person that has a Controlling Interest, directly or indirectly through an Affiliate, in the business of owning, or licensing (as licensor) or franchising a hotel brand or system of hotel management. For clarification a Person shall be deemed not to be a Competitor if such Person solely owns hotel real estate interests.Controlling Interest: In relation to any Person, any of: holding, directly or indirectly (including through intermediate entities), more than fifty percent (50%) of the issued share capital of such a Person; or the right to exercise, directly or indirectly (including through intermediate entities), more than fifty percent (50%) of the voting rights attributable to the ownership interests of such a Person (through ownership of such interests or by contract); or the possession, directly or indirectly (including through intermediate entities), of the power to direct or cause the management or policies of such a Person by virtue of any powers conferred by the constitution or other document regulating such a Person.CPI: The index published by or any revision or replacement thereof appropriately adjustedCPI Adjustment: With respect to any amount and any period, such amount adjusted proportionally to reflect any change in the CPI over such period.Distribution and Reservation Fee: The fee set out in section 1.3 of Appendix V in remuneration of services rendered by ACCOR as set out in Appendix VI.Effective Date: As defined in Article 7.1.Emergency Situation(s): Any circumstances requiring action to prevent (a) personal injury, (b) damage to the property of third parties, (c) damage or possible imminent damage to the Hotel or to the Brand, (d) loss or diminution of any licences or right to operate the Hotel, or its appurtenant facilities, for their intended purposes, (e) civil or criminal sanction, (h) liability of either the Manager or the Owner or both that may arise out of or in connection with any of the foregoing.Employee Costs: Employees payroll and related costs including without limitation salaries, wages, bonuses, workers compensation contributions, social security and other taxes and charges, severance package and fringe benefits (including employer contributions to retirement plans, stock incentive plans, tax equalisation benefits, overseas premiums, cost of living allowances, mobilisation and relocation costs, fees and costs related to visas, residence and work permits for Hotel employees and their dependents, holidays, cars, housing for Hotel employees and their dependents, and schooling for dependents) including the cost of labour performed by persons who are not Hotel employees.Expiration Date: As defined in Article 22.3.3.Expropriation: An expropriation of all or any portion of the Hotel or the Land by any governmental authority (or any authority or entity acting on behalf of or purporting to act on behalf of any governmental authority) for any purpose whatsoever.Financing: All amounts obtained for the purposes of owning, furnishing and equipping the Hotel and operating the Hotel in accordance with this Agreement, including, without limitation, Security, interim and working capital loans, sale and leasebacks, equipment financing and permanent financing, including any refinancing of any of the foregoing. FF&E (Furniture, Fixtures and Equipment): Furniture, furnishings, fixtures and other equipment used for the operation of Hotel, or held in storage for use, without permanent connection to the structure of the Buildings including without limitation: - in bedrooms and bathrooms: bedding, safes, fridges, telephones, curtains and tracks, blinds, lighting fittings, all decorative fixtures, mini bars, television sets, coat hooks or toilet paper holders and towel rails,- in public areas: artwork and decorative fixtures, light fittings, bar and restaurant equipments and fixtures, external and internal signage,- back of house areas: duplicating and office equipments, all telecommunication and network systems (including without limitation building management systems, TV systems, video systems, mobile phone systems, audio systems, CCTV, pay TV systems, internet access and wi-fi systems), front office and point of sales equipment as well as back office computers, laundry equipment, fridges, freezers and cold stores, and other kitchen equipments,- all decorative pictures and items.FF&E shall not include Operating Equipment/Operating Supplies or fixtures attached to and forming an integral part of the Buildings.FF&E Reserve Fund: As defined in Article 11.4.1.FF&E Reserve Fund Account: As defined in Article 11.4.2.FF&E Reserve Fund Budget: As defined in Article 8.1.1.Force Majeure Event: Any event beyond the reasonable control of the affected Party to prevent or overcome (regardless of where it occurs or its duration) including without limitation: (i) war, invasion, rebellion, insurrection, riots, acts of terror or civil war; (ii) acts of government in its sovereign capacity; (iii) hurricanes, earthquakes, fire or other casualty, acts of God or any operation of the forces of nature such that reasonable foresight and ability on the part of the affected Party could not reasonably provide against; and (iv) strikes, walkout, lockout or other similar labour disturbances.Funding Request: As defined in Article 8.2.General Manager: The individual employed by the Owner as the Hotels general manager temporarily assigned by the Manager from time to time for the operation of the Hotel. The General Manager acts under the control of the Manager.Gross Operating Profit (GOP): With respect to any Operating Year or any month of an Operating Year (as the case may be), Gross Revenues for such period less Operating Expenses for such period.Gross Revenues: With respect to a period, all revenues and income of any kind, (net of discounts and rebates) derived directly or indirectly from operating the Hotel and all departments and parts thereof in such period, including, without limitation, total room sales, food and beverage sales, cancellation fees, rentals, commercial spaces and meeting rooms, including audio-visual equipment rentals, laundry sales, telephone, fax, internet, in room paid television, and all other revenues (including store, office and building revenues from the Buildings, and rentals or other payments from lessees and concessionaires) whether on a cash basis or on credit, determined in accordance with ACCOR Set of Books. Gross Revenues shall in no event include (i) value added tax (VAT) or any sales, use or admission taxes or tourist tax or any other similar taxes that may be imposed in the future; (ii) gains arising from the sale or disposition of capital assets; (iii) insurance proceeds, except for the proceeds from business interruption or rent insurance, which shall be included in Gross Revenues; (iv)net recoveries in any legal action, to the extent the amount thereof would not have been included in Gross Revenues if such amount had been collected without such legal action; (v) interest earned on any funds in the Operating Account or any other account or investment of the Hotel; (vi) gratuities and service charges collected for payment to employees of the Hotel or others rendering services at the Hotel; (vii) any monies received on behalf of third parties, which would otherwise constitute Gross Revenues but which, unless deducted would otherwise artificially inflate the Gross Revenues; and (viii) any financing proceeds. All Gross Revenues shall be gross and shall not be netted against the Hotels costs of sales.Hotel: Collectively, the Premises, the FF&E, the Operating Equipment and Operating Supplies.Hotel Management Fees: All fees, to be paid by the Owner to the Manager, under this Agreement including Base Management Fees, Incentive Management Fees, Pre-opening Fees, Trade Mark Royalty Fees and Billable Service Fees as set out in Appendix V.Incentive Management Fees: A component of the Hotel Management Fees to be paid by the Owner