EXHIBIT L VOLUNTARY TERMINATION OF LICENSE AGREEMENT
(OPEN HOTEL – CHANGE OF OWNERSHIP)
THIS VOLUNTARY TERMINATION OF LICENSE AGREEMENT (the "Termination Agreement") is made as of the _____ day of _________, 20__ (the "Termination Date"), by and between [Insert Licensee Entity Name], a[n] [Insert State of Formation] [Insert Type of Entity] ("Licensee"), and ___________________________________, a Delaware limited liability company ("Licensor"). A. WHEREAS, Licensor and Licensee are parties to that certain [Franchise License Agreement] dated as of [Insert Date] (referred to herein collectively, along with all applicable amendments, addenda, riders, supplemental agreements and assignments as the “License Agreement”), with respect to the [Insert Name of Hotel] located at [Insert Hotel Address] (the “Hotel”); B. WHEREAS, Licensee has transferred title in the Hotel to [Insert Name of New Licensee Entity, State of Formation, and Type of Entity] (“Transferee”) as of the Termination Date; C. WHEREAS, [Licensor] [Licensor’s affiliate _________________ ] and Transferee have entered into a new franchise license agreement for the Hotel effective as of the Termination Date; and D. WHEREAS, Licensor and Licensee desire to modify the expiration date of the License Agreement to provide for termination of the License Agreement effective as of the Termination Date, and otherwise enter into the agreements set forth herein. NOW, THEREFORE, for good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, Licensor and Licensee hereby agree as follows: 1. The License Agreement is hereby terminated effective as of the Termination Date.
2. Licensee shall promptly pay amounts owed by Licensee under the License Agreement including, but not limited to, fees, charges and invoices, if any. 3. Licensee, on behalf of itself, its predecessors, and each of its present and former officers, employees, directors, shareholders, members, parents, subsidiaries, alter egos, affiliates, partners, agents, attorneys, accountants, heirs, executors, administrators, conservators, successors and assigns, hereby fully and forever releases and discharges Licensor, its predecessors, successors and assigns and each of their former and present officers, employees, directors, shareholders, members, parents, subsidiaries, alter egos, affiliates, partners, representatives, agents, and attorneys (collectively, the "Released Parties"), from any and all claims, demands, liens, actions, agreements, suits, causes of action, obligations, controversies, debts, costs, attorneys’ fees, expenses, damages, judgments, orders and liabilities of whatever kind or nature in law, equity or otherwise, whether now known or suspected which have existed or may have existed, or which do exist or which hereafter can, shall or may exist, based on any facts, events or omissions occurring from any time on or prior to the execution of this Termination Agreement which arise out of, concern, pertain or relate in any way to the License Agreement (the "Released Claims"). Licensee acknowledges that there is a possibility that subsequent to the execution of this Termination Agreement, it will discover facts or incur or suffer claims which were unknown or unsuspected at the time this Termination Agreement was executed, and which if known by it at that time may have materially affected its decision to execute this Termination Agreement. Licensee acknowledges and agrees that by reason of this Termination Agreement and the release contained in this Termination
1
EXHIBIT L
Agreement, it is assuming any risk of such unknown facts and such unknown and unsuspected claims. Licensee has been advised of the existence of Section 1542 of the California Civil Code ("Section 1542"), which provides: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR. Notwithstanding such provisions, this release shall constitute a full release in accordance with its terms. Licensee knowingly and voluntarily waives the provisions of Section 1542, as well as any other statute, law or rule of similar effect. In connection with such waiver and relinquishment Licensee acknowledges that it is aware that it may hereafter discover claims presently unknown or unsuspected, or facts in addition to or different from those which it now knows or believes to be true, with respect to the matters released herein. Nevertheless, it is the intention of Licensee, through this Termination Agreement, and with the advice of counsel, to fully and finally settle and release all such matters, and all claims relative thereto, which do now exist may exist or have existed between and among the parties hereto. Licensee hereby acknowledges that it has been advised by its legal counsel, understands and acknowledges the significance and consequence of this release and of this specific waiver of Section 1542 and other such laws. Licensee hereby represents to Licensor that it has not assigned or transferred any Released Claim that Licensee has or may have against Licensor, and agrees to indemnify and hold Licensor harmless from any liabilities, claims, demands, damages, costs, expenses and attorneys’ fees incurred by Licensor as a result of any person asserting any such assignment or transfer. Licensee agrees that it will forever refrain and forbear from commencing, instituting or prosecuting any lawsuit, action or other proceeding of any kind whatsoever, by way of action, defense, set-off, cross-complaint or counterclaim, against the Released Parties based on, arising out of or in connection with any Released Claim except for actions commenced to enforce any rights conferred in this Termination Agreement. In the event of any violation of this subsection, this Termination Agreement shall be subject to termination at the election of Licensor. 4. Licensee represents and warrants as follows: (a) no other party, nor any agent or attorney of any other party, has made any promise, representation or warranty whatever, express or implied, not contained herein concerning the subject matter hereof, to induce it to execute this Termination Agreement; (b) the person executing this Termination Agreement in a representative capacity on behalf of Licensee is empowered to do so; (c) Licensee has read this Termination Agreement and any exhibits attached hereto and understands the contents thereof. Licensee has made such an investigation of the facts pertinent to this Termination Agreement and of all the matters pertaining thereto as it deemed necessary; and (d) Licensee has been represented by legal counsel of its own choice throughout all negotiations which preceded the execution of this Termination Agreement and Licensee has executed this Termination Agreement with the consent and the advice of such legal counsel. 5. Nothing in this Termination Agreement or any related document shall be construed as an express or implied admission or acknowledgment by Licensor or Licensee of any liability to Licensee or Licensor, as applicable, or to any other person, all such liability being expressly denied. The parties hereto agree that this Termination Agreement is the result of a compromise within the provisions of California Evidence Code §§ 1152 and 1154. 6. Licensee and Licensor agree to execute such additional documentation and cooperate in further proceedings necessary to effectuate the terms of this Termination Agreement without charge or other consideration.
2
EXHIBIT L
7. This Termination Agreement including any exhibits hereto, constitutes the entire agreement and understanding between the parties concerning the subject matter hereof, and supersedes and replaces all prior negotiations, proposed agreements and agreements, written and oral, relating thereto. No covenants, agreements, representations and warranties of any kind whatsoever have been made by any party hereto, except as specifically set forth in this Termination Agreement. 8. The representations and warranties of this Termination Agreement and the obligation to pay any outstanding amounts under the License Agreement, as well as the provisions of the License Agreement that are intended under the terms of the License Agreement to survive termination of the License Agreement or by their nature are to be performed following termination of the License Agreement, such as the indemnity and confidentiality provisions and insurance requirements, are all deemed to survive the date of the execution of this Termination Agreement. 9. All questions with respect to the construction of this Termination Agreement and the rights and liabilities of the parties hereunder shall be governed by the same laws of, and shall be submitted and resolved by a court of competent jurisdiction located in the same city and state stipulated by the parties in the License Agreement. 10. This Termination Agreement may be executed in any number of counterparts, and delivered via facsimile transmission, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. 11. If any provision of this Termination Agreement is adjudicated to be unenforceable or invalid for any reason, that part will be severed from the balance of this Termination Agreement and the validity and enforceability of the remainder of this Termination Agreement will in no way be effected or impaired unless the severed portion was essential to the intended purpose of this Termination Agreement. If the severed portion was essential to the intended purpose of this Termination Agreement then the party who was to receive the benefit of the severed portion has the option to void this Termination Agreement. The parties expressly agree that Paragraphs 1, 2, 3 and 12 are each essential to the intended purpose of this Termination Agreement. 12. Licensor shall be entitled to recover its reasonable attorneys’ fees, court costs, costs of collection, and other fees, costs and disbursements in any action brought to enforce or interpret this Termination Agreement or collect any amounts due hereunder or under the License Agreement. 13. This Termination Agreement shall bind and inure to the benefit of the parties hereto and their respective successors, assigns, heirs, administrators, executors and conservators. 14. This Termination Agreement may be amended, modified, canceled, or waived only by written instrument executed by each of the parties. 15. A waiver of any term or condition of this Termination Agreement will not be deemed to be, and may not be construed as, a waiver of any other term or condition hereof. 16. This Termination Agreement will be construed neutrally, and will not be applied more strictly against one party than another. 17. Capitalized terms not otherwise defined herein shall have the meanings assigned to them in the License Agreement.
3
EXHIBIT L
IN WITNESS WHEREOF, the parties hereto execute this Termination Agreement as of the date first here above written. LICENSEE: [INSERT LICENSEE ENTITY NAME], a[n] [Insert State of Formation] [Insert Type of Entity] LICENSOR: [FRANCHISOR ENTITY NAME], a Delaware limited liability company
By: _____________________________
By:
Name: ___________________________
Name:
Title: _____________________________
Title: Hilton Hotels Corporation
,
Executed on: ________________________
4