RESPECT TO ANY ACTION (1) FOR MONIES OWED, (2) FOR
INJUNCTIVE OR OTHER EXTRAORDINARY RELIEF OR (3) INVOLVING POSSESSION OR
DISPOSITION OF, OR OTHER RELIEF RELATING TO, THE HOTEL PREMISES, FRANCHISOR MAY
BRING SUCH ACTION IN ANY STATE OR FEDERAL DISTRICT COURT WHICH HAS JURISDICTION.
F. FRANCHISOR, FRANCHISEE AND THE CONTROLLING PRINCIPALS ACKNOWLEDGE THAT
VARIOUS PROVISIONS OF THIS AGREEMENT SPECIFY CERTAIN MATTERS THAT ARE WITHIN THE
DISCRETION OR JUDGMENT OF FRANCHISOR OR ARE OTHERWISE TO BE DETERMINED
UNILATERALLY BY FRANCHISOR. IF THE EXERCISE OF FRANCHISOR'S DISCRETION OR
JUDGMENT AS TO ANY SUCH MATTER IS SUBSEQUENTLY CHALLENGED, THE PARTIES TO THIS
AGREEMENT EXPRESSLY
First Amendment to Franchise Agreement - Page 17
DIRECT THE TRIER OF FACT THAT FRANCHISOR'S RELIANCE ON A BUSINESS REASON THAT
DEMONSTRABLY BENEFITS THE SYSTEM IN THE EXERCISE OF ITS DISCRETION OR JUDGMENT
IS TO BE VIEWED AS A REASONABLE AND PROPER EXERCISE OF SUCH DISCRETION OR
JUDGMENT, WITHOUT REGARD TO WHETHER OTHER REASONS FOR ITS DECISION MAY EXIST AND
WITHOUT REGARD TO WHETHER THE TRIER OF FACT WOULD INDEPENDENTLY ACCORD THE SAME
WEIGHT TO THE BUSINESS REASON."
24. Franchisee Acknowledgements. Section XXX.A. of the Franchise Agreement is
hereby deleted in its entirety and is replaced by the following:
"A. FRANCHISEE ACKNOWLEDGES THAT IT DID NOT RELY ON ANY PROMISES,
REPRESENTATIONS OR AGREEMENTS ABOUT THE FRANCHISOR OR THE FRANCHISE NOT
EXPRESSLY CONTAINED IN THIS AGREEMENT IN MAKING ITS DECISION TO SIGN THIS
AGREEMENT. FRANCHISEE FURTHER REPRESENTS AND WARRANTS THAT FRANCHISOR AND ITS
REPRESENTATIVES HAVE NOT MADE ANY PROMISES, REPRESENTATIONS OR AGREEMENTS, ORAL
OR WRITTEN, ABOUT THE FRANCHISOR OR THE FRANCHISE, EXCEPT AS EXPRESSLY CONTAINED
IN THIS AGREEMENT."
25. Guaranty. The following phrase is hereby deleted from the first paragraph of
the Guaranty at Attachment B:
" . . . warrant to Franchisor and its successors and assigns that all of
Franchisee's representations in the Franchise Agreement are true . . ."
26. Management Company Rider. The language in Attachment C is amended to add the
following statement to the end of the final paragraph:
"Notwithstanding the foregoing, Franchisor agrees that Franchisor will first
look to the Franchisee and any Guarantor before seeking recourse against the
Management Company."
27. Definitions. The defined terms on Attachment D are hereby modified as
follows. Except as specifically set forth below, the definitions set forth in
Attachment D shall remain unchanged.
"The 'Effective Date' of the Franchise Agreement is the Effective Date
identified in Attachment A to this Agreement. The Effective Date shall be
entered on Attachment A to this Agreement."
'Expiration Date' is that date which is 10 years following the Effective Date on
which this Agreement expires. The Expiration Date shall be entered on Attachment
A to this Agreement.
'Franchisee' means the entity identified in the preamble to this Agreement.
'Gross Room Revenues' include all gross revenues attributable to or payable for
the rental of guest rooms at the Hotel, including, without limitation, all
credit transactions, whether or not collected, but excluding
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