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HomeMy WebLinkAboutCLASS ACTION NOTICE OF PARTIAL SETTLEMENT REGARDING HOTEL TAXESBrinson Robert M. Brinson, P.C. C. King Askew, P.C. Robert L. Berry Joseph M. Seigler, Jr., P.C. Thomas D Richardson J. Anderson Davis Wright W. Smith Mark M. J. Webb I. Stewart Duggan, P.C. Stephen B. Moseley, P.C. Kristy L. Treadaway A. Franldin Beacham III Bryant G. Speed II * kew, Berry, Seigler, Richardson & Davis, LLP A Limited Liability Partnership Attorneys at Law The Omberg House 615 West First Street P.O. Box 5007 Rome, Georgia 30162 -5007 Telephone (706) 291 -8853 Toll Free (800) 201 -7166 Telefax (706) 234-3574 E-mail lawebrinson -askew com June 5, 2012 Associates Samuel L. Lucas Alison 5. Warren David M. Brearley Lee B. Carter Of Counsel Norman S. Fletcher Frank H. Jones Kimberly M. Moseley * * * also admitted in Ala. • * also admitted in Fla. To Each City and County in the State of Georgia that has enacted Hotel Excise Tax Ordinances Pursuant to the "State Enabling Act," to wit O.C.G.A. § 48 -13 -50 et seq. Ladies and Gentlemen: JAD /cmr Attachment Re: Class Action Notice of Partial Settlement Regarding Hotel Taxes Attached is a copy of the Class Action Notice which the Honorable Harold L. Murphy signed on June 5, 2012. Please read the Notice carefully. Your city and/ /or county may receive compensation from this partial settlement of a Class Action lawsuit pending in the United States District Court for the Northern District of Georgia, Rome Division captioned City of Rorne, Georgia, et al. v. Hotels. com, L.P., et al., Civil Action File No. 4:05 -CV- 249 -HLM. 283147 Respectfully submitted, BRINS RICH ASKE,� , BERR SEIGLER, AVIS, By: J. ANDERSON DA _Ncitice Administrator for the C ass Case 4:05 -cv- 00249 -HLM Document 687 -1 Filed 06/05/12 Page 2 of 13 CITY OF ROME, GEORGIA, et al., Plaintiffs, HOTELSCOM, L.P.; et al., Defendants. CLASS ACTION NOTICE Civil Action 4:05 -CV -249 (HLM) PLEASE READ THIS NOTICE CAREFULLY — YOU MAY RECEI COMPENSATION FROM THIS PARTIAL SETTLEMENT OF A CLASS ACTION LAWSUIT NOW PENDING IN THIS COURT The federal court authorized this Notice. It is not from a lawyer. TO: Each city and county in the State of Georgia that has enacted hotel excise tax ordinances pursuant to the "State Enabling Act," to -wit O.C.G.A. § 48- 13 -50, et. seg., and/or the City Attorney or County Attorney for (or other duly authorized representative of) such cities and counties with the exception of the cities of Atlanta and Columbus, such cities and counties being hereinafter referred to as the "Class Members." This partial settlement resolves claims concerning certain prospective injunctive relief for the hotel excise tax payments and reports to Class Members and the obligations, rights and duties of Defendants Expedia Inc., Hotwire Inc., Hotels.com L.P., Hotels.com GP LLC, Travelnow,com Inc.; Trip Network Inc. ° (d/b /a CheapTickets,com); Travelport, Inc. (facia Cendant Travel Distribution Services Group, Inc.); Orbitz, Inc.; Orbitz, LLC; Internetwork Publishing Corp. (d/b /a lodging.com); priceline.com Incorporated; Lowestfare.com LLC.; Travelweb LLC; Travelocity.com Inc.;' Travelocity.com LP; and Site59.com 276645.1/250122 135060.02- Houston Server fA MSW . Drell February 1 .2012 - 4:06 PM IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ROME DIVISION Case 4:05-cv-00249-HLM Document 687 -1 Filed 06/05112 Page 3 of 13 LLC regarding the payment of hotel excise taxes to the Class Members afte M ay 16, 2011 going forward. The partial settlement will provide cash payments for hotel excise taxes to the Class Members from May 16, 2011 (with interest at 7% unt pa and going forward. Plaintiffs' claims regarding Defendants' alleged obligations to pay hotel excise taxes, damages, interest, penalties, and attorneys' fees to the Class Members for hotel room transactions occurring prior to May 16, 2011 remain at issue in this litigation for future determination. Plaintiffs' claims regarding Defendants' alleged obligations to pay hotel excise taxes, penalties and attorneys fees to the Class Members on amounts in excess of the Room Rate disclosed to consumers (ex, {`service fees", "extra-person fees" and on breakage) after May 16, 2011 remain at issue in this litigation for future determination, The legal rights of your city ;or county are affected whether you act or don't ac Please read this Notice carefully. The rights and optio of Class Members -- and the deadlines for ho aw eac right or option may be exercised — are explained in this Notice. The Court still has to decide whether to approve this partial settlement. Payments will be made if the Court approves the settlement and after appeals, if any, are ruled on. 276645.1/280122 D 85060M2- Huuston Server IA MSW - Draft February!, 2012.4:06 PM Case 4:05 -cv- 00249 -HLM Document 687 -1 Filed 06 /05/12 Page 4 of 13 A. The Nature and History of the Lawsuit. This lawsuit was filed by Plaintiffs City of Rome, Hart County and City o Cartersville on November 18, 2005, individually and on behalf of a statewide putative class of all cities and counties in the State of Georgia which had enacted hotel excise tax ordinances pursuant to the State Enabling Act. The named Plaintiff Class Members are the City of Rome, Georgia; Hart County, Georgia; City of Cartersville, Georgia; City of Hartwell, Georgia; Cobb County, Georgia; City of Cedarto Georgia; City of Dalton, Georgia; Gwinnett County, Georgia; Fulton County, Georgia; City of Rockmart, City of East Point, Georgia; City of Warner Robins, Georgia; City of Ty bee Island, Georgia; D County, Georgia; City of College Park, Georgia; City of Alpha Georgia; City of Macon, Geor Augus - Richmond County, Georgia; and Clayton County, Georgia (the "Named Plaintiffs " The Defendants are online travel companies ( "OTCs" or "Defendan ts ") or their affiliates and include the following: Expedia Inc., Hotwire Inc., Hotels.com L.P., Hotels.com GP LLC, Travelnow.com Inc.; Trip Network Inc. (d/b /a CheapTickets,com); Traveiport, Inc. (f /k/a Cendant Travel Distribution Services Group, Inc.); Orbitz, Inc.; Orbitz, LLC; Intemetwork Publishing Corp. (d/b /a lodging.com); priceline.coin Incorporated; Lowestfare.comLLC.; Travelweb LLC; Travelocity.com Inc.; Travelocity.com LP; and Site59,com LLC. When operating under the Merchant Model of Business wherein the Defendants facilitated the transaction with travelers for pre -paid reservations with hotels, motels or other lodging accommodations in this State, Defendants have heretofore caused the collection and remittance of hotel excise taxes to the Class Members jurisdictions based on the amount the Defendants are charged by the hotels for the accommodations (the "wholesale rate ") rather than the retail price charged by Defendants to travelers for the prepaid reservation, which Plaintiffs claim results in the loss of potential hotel excise taxes ( "the Incremental Taxes ") to Class Members. 276645.1/280122 185060.02 - Houston Serves 1A MSW - Draft February f , 2012 - 4:06 1'M Case 4:05 -cv- 00249 -HLM Document 687 -1 Filed 06/05/12 Page 5 of 13 Plaintiffs allege, inter alia, that: (1) the Defendants have collected but not r emitted, or in the alternative, were obligated to collect and remit, hotel excise taxes to the Named Plaintiffs and the Class Members pursuant to the State Enabling Act and the Class Members' ordinances enacted in accordance therewi ( "Plaintiffs' Ordinances "), (2) that Defendants' conduct under the circumstances an failure to properly remit the excise taxes due each Class Member violat the State Enabling Act, Plaintiffs' Ordinances and the` Uniform Deceptive Trade Practices Act, O,C,G.A. 10 -1 -372 ( "UDTPA "), and (3) constituted conversion and breach of trust of Class Members' monies, giving rise to claims for damages, injunctive relief and constructive trust (the "Lawsuit "). The Lawsuit seeks, inter alia, past, present and future excise taxes, interest, penalties, damages, attorneys' f ees and injunctive relief. Defendants denied Plaintiffs' allegations, denied that the are subject to hotel excise tax, and denied that they are liable under any of Plaintiffs' claims. On February 6, 2006, Defendants filed a motion to dismiss the Plaintiffs' Complaint which was subsequently granted in` part and denied in part on May 9, 2006. Plaintiffs filed an Amended Complaint on June 8, 2006, which, inter ulia, added additional named representatives. Defendants have answered Plaint Amended Complaint and continue to deny Plaintiffs' allegations. Wi thout admitting wrongdoing, Defendants nevertheless have agreed to enter into a partial settlement agreement to avoid further expense, as well as the burdens and risks of litigation. The partial settlement agreement concerns certain prospective relief and Defendants' rights and duties concerning the payment of hotel excise taxes to the Class after May 16, 2011 going forward ( "Prospective Excise Taxes "). The Plaintiffs and Defendants will continue to litigate all issues regarding Defendants' alleged obligation to pay hotel excise taxes, damages, interest, penalties, and attorneys' fees to the Class for hotel room transactions occurring prior to and including May 16, 2011, and with respect to transactions after May 16, 2011, whether the Defendants owe hotel excise tax obligations on amounts in excess of the Room Rate disclosed to the consumer (ex. the "fee" or " service fee" component of their separately stated "taxes and fees" charge and on 276645.1,280122 185060.02- Houston Server iA MSW - Drrift FeMunry I , 2012 - 4.06 PM B. The Class Certification Proceedings and Class Certificatio I rder. The Court entered an Order on March 21, 2011, which certified Plaintiffs' claims under F.R.Civ.P. Rule 23(a), Rule 23(b)(2) and Rule 23(b)(3) and certified a class consisting of: ‘`Plaintiffs and all other counties and municipalit in t he S tate of Georgia that levy an excise tax on rooms, lodgings and accoirirnodations pursuant to 4.C.G.A. § 48- 13 -50, et seq." ( "the Class ") T Court fu rthe r approved Plain as representatives on behalf of th Clas and Robert M. Brinson and J Anderson Davis of .Brinson,: Askew, Berr Seigler, Richardson 8c Davis, LLP ( "Lead Counsel " }; Robert C. Lamar and, ;David. W. Davenpor o f Lamar, Archer & ofrin, LLB John 'o'. C her o er m.1). o Cro ngeyer Law Firm PC Walter J. Gor of The Gordon Law F Kevin A Ross of, The Law Practice o Kevin A. Ross; and David Archer of Archer Lovel as counsel on behalf of the Class (collectively, "Class Counsel " }. C.' The Terms of the Settlernen If approved by the Court, Defendants will deposit with the Court, a lump s um payment for all Incremental Taxes from May 16, 2011 through 90 days after final approval plus 7% interest thereon. Then, on the 20 day of each following month as long as Defendants continue to collect taxes from their customers in Georgia, Defendants will deposit with the Court, interim Incremental Taxes for hotel occupancies facilitated by Defendants in Plaintiffs' jurisdictions during the preceding month. Defendants have waived the 3% allowance which 'night have 276645. ]/280122 185060.02-Houston Server l A MSW Deaf Februety <1, 2012 4.06 PM Case 4:05 -cv- 00249 -HLM Document 687 -1 Filed 06/05/12 Page 6 of 13 "breakage" (which is defined as the amounts retained by any Defendant as a result of a consumer not utilizing a reservation at a hotel facilitated by a Defendant usi the Merchant Model of Business or a hotel failing to timely charge or invoice a Defendant for a hotel stay facilitated by a Defendant using the Merchant Model of Business, or a Defendant's failure to pay an invoice by a Hotel). Case 4 :05 -cv- 00249 -HLM Document 687 -1 Filed 06/05/12 Page 7 of 13 been authorized by O.C.G.A. § 48 -13 -52 which funds can be utilized to offset administration costs of the settlement. All 'Incremental Taxes, less adm costs and attorneys fees as approved by the Court, will then be paid to the Class embers. In exchange for said payments, Plaintiff class members will waive any ri ghts they may have had for penalties and attorneys fees on the Incremental Taxes actually paid to the Class by Defendants. Plaintiffs have contended that in addition to the Incremental Taxes calculated on the difference between the wholesale room rate paid to the hotels and the retail room rate displayed to Defendants' customers, Defendants also owe excise taxes on .additional amounts charged to their cust (ex. `service fees ", breakage, etc. hereinafter the "additional charges "). The Defendants continue to deny any obligation for collection or payment of taxes on the additional charges. Plaintiffs have filed a motion with the Court seeking a declaration as to Defendants liability for excise taxes on the additional charges and Defendants have agreed, tha sh ould the Court determine that taxes are due on the additional charges, the Defendants will supplement their tax payments to include taxes on the additional charges (with interest at 7% until paid) and include the taxes on the additional charges in their payments going forward. Plaintiffs are not precluded from seeking from the Court payment of penalties and attorneys fees on the additional tax payments. Finally, a ll issues as to Defendants' obligations for payment of hotel excise taxes on hotel occupancies in Plaintiffs' jurisdictions prior to May 16, 2011 are currently before the Court and reserved for future determination by the Court 276645.1 /280122 1115060.02- Houston Server 1A MS W - Draft February 1, 2012 - 4 :06 PM Case 4 :05 -cv- 00249 -HLM Document 687 -1 Piled 06/05/12 Page 8 of 13 D. Your Options. You have several options regarding your participation in this action: Remain a Class Member. If you remain a Class member, you will be required to provide information regarding your hotel excise tax ordinance and the hotels /motels operating within your jurisdiction. You will then re ceive an incremental tax payment (and interest at 7% until paid) for all accommodations booked through Defendants utilizing the Merchant Model of Business that were occupied after May 16, 2011 and monthly incremental tax payments going forward. If your city or county elects to remain a member of the Class find participate in the partial settlement agreement, to receive benefits it must provide the following information to Class Counsel on or before 60 days of Final Approval of the Settlement. 276645.11280122 185060.02- Houston Server IA A list, (updated and current) with the name and i,physical address, of each licensed hotel /motel operating within your jurisdiction that is subject to hotel tares from May, 2011 to the present; 2. The hotel /motel tax rate(s), and local sales tax rates), if any, f rom May, 2011 to the present for your jurisdiction; and 3, Any subsequent changes in the foregoing information must also be submitted to Class Counsel. If your city or county remains in the Class, it will be bound by any judgment entered in this case, whether favorable or unfavorable to it. By remaining in the Class, your city or county will have no obligation to come out of pocket to pay any of the costs or attorneys' fees involved in this Lawsuit. Class Counsel plans to seek, and the Court may award, attorneys' fees, expenses of litigation and MS W • Draft February 1,2012 - 4.06 PM Case 4:05 -cv- 00249 -HLM Document 687 -1 Filed 06 /05/12 Page 9 of 13 administrative costs that are authorized by law which will be paid out of the common fund recovered for the benefit of the Class. Under no circumstance will litigation costs and attorneys fees incurred by the Named Plaintiffs on behalf of the Class be charged to the Class Members. Remain a Class Member and Object to the Settlement. If you elect to remain a Class Member and provide the required "information, you m ay also let the Court and Parties know of any objections you have to the partial settlement and be heard by the Court regarding same. Exclude your City or County from the Class. You may elect to exclude your city or county from the Class. You will then not participate in t he partial settlement and will not receive any incremental tax payments or r eports as provided for herein. However, you would not be precluded from pursuing your city's or your county's own independent claims against the Defendants. if your city or county wants to be excluded from the Class, it must send a written request for exclusion, in the form of a letter signed by a duly authorized representative of your city or county and sent by certified mail, to both of the following individuals by August 9, 2012[45 days from the date notice is mailed]: Robert M. Brinson, Esq. J. Anderson Davis, Esq. Brinson, Askew, Berry, Seigler,' Richardson & Davis, LLP Post Office Box 5007 Rome, Georgia 30162 -5007 Lead Counsel for the Class Edward Hine, Jr., Esq. 1 1 1 Bridgepoint Plaza Suite 300, Post Office Box 5511 Ronne, Georgia 30161 Local Counsel for Defendants 276645.1/280122 185060.02- Houston Server 1 A MSW - Droll February 1,2012 - 4:06 PM Case 4:05-cv-00249-HLM Document 687-1 Filed 06/05/12 Page 10 of 13 E. The Lawyers Representing Your City or County. By making the decision to exclude itself from the Class, your city or county will not receive any monies paid by Defendants pursuant to this settlement or share in any favorable judgment obtained on behalf of the Class, nor will it be bound by any adverse judgment entered against the Class. Class counsel have been representing your interests and pursuing your claims since filing suit on behalf of tfie Class in 2005. As part of the Settlement, Class Counsel has filed a Motion for Attorneys Fees which will be ruled upon by the Court, 1. How Much Will Class Counsel be Paid? Class Counsel will ask the Court for attorneys' fees of up to 33 of the amounts paid by Defendants. So far, Class Counsel have spent out of pocket over $405,538.94 in this litigation. Class Counsel will also ask the Court to reimburse them for their documented costs and expenses in the amount of $202,769.47 from the initial Iump sum payment, and approve additi onal expense payments for administration o f th e settlement going forward. this litig ation to date. 2. Can My City or County Have Its Own Lawyer to Speak for It? As long as you don't exclude your city or county, you have a right to hire a lawyer to speak on behalf of your city or county with regard to this partial settlement. The city or county will have to pay for this lawyer itself. If the city or county is authorized to have its own lawyer instead of Class Counsel to speak for it with regard to this partial settlement, you must give the Court a paper that is called a `‘Notice of Appearance." The duly authorized Notice of Appearance must be filed with the Court before July 27, 2012 (20 days before final hearing). You should also send copies of the Notice of Appearance to all of the lawyers listed in paragraph C.2. above. 276645.1/280122 1 85060 02-Pktusten Server 1 A MSW Draft February 1, 2012 - 4:06 PM Case 4:05 -cv- 00249 -HLM Document 687 -1 Flied 06/05/12 Page 11 of 13 The address for the Court for filing a Notice of Appearance is: Clerk of the Court, United States District Court For The Northern District of Georgia, 600 East First Street, Rome, Georgia 30161. Final Approval Bearing. When and Where Will the Court Decide About This Settlement? The Court will hold a final approval bearing to consider all comments on or objections to the partial settlement agreement. This hearing will be held on August 16 2012, at 1 :30 p..m. at the federal courthouse, which is located at 600 East First Street, Rome, Georgia 30161. The Court will listen to people who have requested to be heard at the hearing. The Court may also decide how much to pay Class Counsel. After' the hearing, the Court will decide whether to approve the partial settlement. No. 'You don't need to come to the hearing. Class Counsel will answe questions the Court has. But you are, or your lawyer is, welcome to come at your own expense. 276645.1/280122 185060:02- Houston Server 1A Do 1 Need to Come to the Hearing? Can Speak at the Hearing? You can ask the Court to allow you (or your lawyer) to speak at the hearing. To do so, you or your lawyer must send a paper called "Notice of Intention to Appear at Hearing" before July 27, 2012 (20 days before final hearing), to the Clerk of Court, United States District Court for the Northern District of Georgia, Rome Division, 600 East First Street, Rome, Georgia 30161, AND to all of the lawyers listed in paragraph C.2. above. If the Court Approves the Partial Settlement, When Will My City or County Receive Distributions? 10 SW - Draft `February 1,2,012 - 4116 PM Case 4 :05 -cv- 00249 -HLM Document 687 -1 Filed 06 /05/12 Page 12 of 13 G. Getting More Information. If your city or county desires additional information about this Notice, about the Class Certification Order, the partial settlement agreement, or about this Lawsuit, you should contact Lead Class Counsel as set forth below: Robert M. Brinson, Esq. J. Anderson Davis, Esq. Brinson, Askew, Berry, Seigler, Richardson & Davis, LLP Post Office Box 5007 Rome, Georgia 30162-5007 (706) 291 -8853 adavisbrinson- askew.com This Notice does not fully describe the claims and defenses of the parties in this litigation or the status of the Lawsuit. ' The pleadings and court papers fled in this Lawsuit are available for inspection or copying at any time during regular office hours in the Office of the Clerk of. the United States District Court for the Northern District of Georgia, Rome Division, which is located at 6.00 East First Street, Rome, Georgia 30161. Certain pleadings and court papers in this lawsuit have been filed under seal and may not be examined or copied without ' first obtaining an order from the Court. In order to inspect the pleadings and court papers, you must appear in person or through an authorized representative such as an attorney. PLEASE DO NOT CALL OR WRITE THE COURT OR THE DISTRICT COURT'S OFFICE FOR INFORMATION. 276645,1/280122 985064.02 - Houston Server 1A MS W - Draft February I, 2 G 12 -: 4:06 PM Partial settlement funds recovered from Defendants will be distributed/paid o your city or county on a quarterly basis or as the Court may direct. This 7 clay of June, 2012, 276645,1 /280122 1 85060.02- Houston Server 1A It' of HARO L. ` �, J GE UNI D STATES DISTRICT COUR MSW - Draft February 1, 2012 - 4:06 P Case 4 :05 -cv- 00249 -HLM Document 687 -1 Filed 06105/12 Page 13 of 13 CLASS PARTIAL SETTLEMENT AGREEMENT This Class Partial Settlement Agreement ( "Agreement ") is made and entered into as of this day of March, 2012, by and between Defendants Hotels.com, L.P.; Hotels.com GP, LLC; Hotwire, Inc.; Trip Network, Inc. d /b /a Cheaptickets.com; Travelport Inc.,(f /k /a Cendant Travel Distribution Services Group, Inc.); Expedia, Inc.; Internetwork Publishing Corp. (d/b /a Lodging.com); Lowestfare.com LLC (f /k/a Lowestfare.com Incorporated); Orbitz, Inc.; Orbitz LLC; priceline.com Incorporated; Site59.com LLC; Travelocity.com Inc.; Travelocity.com LP; Travelweb LLC; and TravelNow.com, Inc.; (collectively "Defendants ") and the Class (as defined below), acting by and through Plaintiffs, City of Rome, Georgia; Hart County, Georgia; City of Cartersville, Georgia; City of Hartwell, Georgia; Cobb County, Georgia; City of Cedartown, Georgia; City of Dalton, Georgia; Gwinnett County, Georgia; Fulton County, Georgia; City of Rockmart, Georgia; City of East Point, Georgia; City of Warner Robins, Georgia; City of Tybee Island, Georgia; DeKalb County, Georgia; City of College Park, Georgia; City of Alpharetta, Georgia; City of Macon, Georgia; Augusta- Richmond County, Georgia; Clayton County, Georgia (collectively "Plaintiffs" and together with Defendants, the "Parties "). BACKGROUND WHEREAS, on November 18, 2005, Plaintiffs City of Rome, Hart County and City of Cartersville, individually and on behalf of a statewide putative class of all cities and counties in the State of Georgia which had enacted hotel excise tax ordinances pursuant to O.C.G.A. § 48- 13-50, et. seq. (the "Enabling Act "), filed a Complaint captioned City of Rome, et. al. v. Hotels.com, et. al, Civil Action No. 4 05 -CV- 249 -HLM, Northern District of Georgia, Rome Division (the "Lawsuit ") against the Defendants; and WHEREAS, on February 6, 2006, Defendants filed a Motion to Dismiss the Plaintiffs' Complaint which was subsequently granted in part and denied in part on May 9, 2006; and WHEREAS, on June 8, 2006, Plaintiffs filed an Amended Complaint, inter alia, adding additional named representatives; and WHEREAS, Defendants have answered Plaintiffs' Complaint denying the claims asserted by Plaintiffs; and WHEREAS, on March 21, 2011, the Court entered an Order (the "Certification Order ") which certified Plaintiffs' claims under Fed. R. Civ. P. Rule 23(a), Rule 23(b)(2) and Rule 23(b)(3) and certified a class consisting of "Plaintiffs and all other counties and municipalities in the State of Georgia that levy an excise tax on rooms, lodgings and accommodations pursuant to O.C.G.A. § 48- 13 -50, et seq." ( "the Class "); and WHEREAS, in the Certification Order, the Court further approved Plaintiffs as representatives on behalf of the class Robert M. Brinson and J. Anderson Davis of Brinson, Askew, Berry, Seigler, Richardson & Davis, LLP; Robert C. Lamar and David W. Davenport of Lamar, Archer & Cofrin, LLP; John W. Crongeyer, M.D. of Crongeyer Law Firm PC; Walter J. Gordon of The Gordon Law Firm; Kevin A. Ross of The Law Practice of Kevin A. Ross; and David G. Archer of Archer & Lovell, P.C., as counsel on behalf of the Class (collectively, "Plaintiffs' Counsel "); and WHEREAS, Defendants deny any wrongdoing of any kind whatsoever and, without admitting or conceding liability, nevertheless have agreed to enter into this Agreement to avoid further expense, as well as the burdens and risks of litigation; and WHEREAS, the Parties desire to compromise and settle certain issues and claims relating to the allegations made in the Lawsuit concerning certain prospective injunctive relief and Defendants' alleged obligations, rights and duties concerning the payment of Hotel Tax to the Class after May 16, 2011 and going forward as set forth herein, while continuing to litigate all issues regarding: (i) Defendants' alleged obligation to pay Hotel Tax, damages, interest, 2 penalties, and attorneys' fees to the Class for hotel room transactions that were booked through a Defendant for occupancy of hotel rooms within the Class jurisdictions prior to and including May 16, 2011; (ii) whether the Plaintiffs are entitled to additional recoveries based on Breakage as defined below, cancellation fees and extra person fees; and (iii) whether the Plaintiffs are entitled to additional recoveries based on the taxable amount(s) being different than the Room Rate (as defined herein) after May 16, 2011; and WHEREAS, Plaintiffs have been informed by their counsel of the duties and obligations of a class representative, are familiar with the pleadings and discovery in the Lawsuit and the results of the factual investigation undertaken by their counsel, and have been fully advised by such counsel as to the terms and effects of this Agreement, including the nature of the claims that are the subject of this Agreement, the potential for success if the claims of the Lawsuit addressed by this Agreement were to be litigated to their conclusion, and the relief obtained by the settlement; and WHEREAS, the Parties, through their respective counsel, have engaged in extensive arm's length negotiations in reaching this Agreement; and WHEREAS, in evaluating the partial settlement set forth in this Agreement, Plaintiffs' Counsel have concluded that the benefits provided to the Class under this Agreement to make a partial settlement with Defendants now pursuant to such terms and conditions are in the best interests of the Class in light of, among other considerations, (1) the substantial benefits afforded to the Class under the terms of this Agreement; (2) the attendant risks and uncertainties of litigation concerning the claims to be satisfied, especially in complex litigation such as this action; (3) the expense and length of time necessary to prosecute the satisfied claims through trial; and (4) the desirability of consummating this Agreement promptly to provide effective current and ongoing monetary and other relief to the Class (as defined below); and 3 WHEREAS, the Parties, and their respective counsel, believe that the terms of the partial settlement set forth in this Agreement are fair, reasonable and adequate; and WHEREAS, the Parties desire and intend to seek Court approval of the partial settlement as set forth in this Agreement; NOW, THEREFORE, it is agreed that in consideration of the promises and mutual covenants set forth in this Agreement and the entry by the Court of the Partial Settlement Order and Judgment (as defined below), the Parties agree to be bound by the Partial Settlement Order and Judgment and the claims of all Class Members regarding the Current and Prospective Hotel Tax (as defined below) shall be settled and compromised on the terms and conditions set forth below. It is further agreed that each of the recitals stated above is true and accurate, and is hereby made a part of this Agreement. DEFINITIONS In addition to any definitions set forth above or elsewhere in this Agreement, the following terms, as used in the Agreement, shall have the meanings set forth below: A. The term "Breakage" shall mean, solely for purposes of this Agreement and the reservation of rights contained herein, the amounts retained by any Defendant as a result of a consumer not utilizing a reservation at a hotel facilitated by a Defendant using the Merchant Model of Business or a hotel failing to timely charge or invoice a Defendant for a hotel stay facilitated by a Defendant using the Merchant Model of Business, or a Defendant's failure to pay an invoice by a Hotel. B. The term "Class" shall refer to all county or municipal governments in the State of Georgia which have enacted hotel excise tax ordinances pursuant to O.C.G.A. §48- 13 -50, et. Seq, as certified by the Court. 4 C. E. The term "Class Member" in the singular or plural form shall refer to any county or municipal governmental entity included within the Class (including Plaintiffs). D. The term "Class Report" shall have the meaning set forth in the Consent Order as defined below. The term "Complaint" shall refer collectively to the Complaint and the Amended Complaint and any other amendments or supplements thereto filed in the Lawsuit. to btV/ order to this S : to --V.A.. F. The term "Consent Order" shall mean th entered f x Agreement as Exhibit A V i► t C`'' `v � U �1�"� GpIrt ° f Co r . m N . G. The term "Court" shall refer to the United States District 5 Court for the Northern District of Georgia, Rome Division. H. The term "Hotel Tax" shall refer to the taxes enacted in ordinances by Class Members pursuant to the provisions of the Enabling Act (O.C.G.A. §48- 13 -50, et. seq.). I. The term "Current and Prospective Hotel Tax" shall refer to all Hotel Tax due, as a result of this Agreement, to Class Members from any Defendant for Hotel Occupancies commencing after May 16, 2011 and continuing prospectively. J. The term "Current and Prospective Incremental Tax" shall refer to all Incremental Tax due, as a result of this Agreement, to Class Members from any Defendant for Hotel Occupancies commencing after May 16, 2011 and continuing prospectively. K. The term "Hotel Occupancy" or "Hotel Occupancies" means, for the purposes of this Agreement, the designation of an actual room for a traveler by a Hotel and the granting of access to that room, lodging or other accommodation for occupancy at a hotel, motel, inn, lodge, tourist camp, tourist cabin, campground, or any other place in which rooms, lodgings or other accommodations are regularly furnished for value within the State of Georgia, as evidenced by a charge to the Defendant by a Hotel, the reservation for which was facilitated by Defendants utilizing the Merchant Model of Business. L. The term "Hotel Occupancy Transaction" shall mean a Hotel Occupancy reported by Defendants pursuant to Section 1.0 hereof and for which Defendants remitted the applicable Incremental Tax pursuant to Section 1.A or 1.B hereof or Alternative Incremental Tax pursuant to Section 1.D. M. The term "Interest and Penalties" for purposes of this Agreement, refers to the Agreed Upon Interest as subsequently defined in this Agreement and the penalty provisions in the Enabling Act and the ordinances of the Class Members enacted pursuant to the Enabling Act. N. The term "Room Rate ", for the purposes of this Agreement, shall mean the dollar amount displayed by Defendants to their customers as the nightly rate for the room or room type depicted in a hotel reservation facilitated by Defendants utilizing the Merchant Model of Business. O. The term "Alternative Base Rate" shall mean the amount Plaintiffs allege is the actual taxable charge by Defendants to consumers (exclusive of taxes) for occupancy of the room, in addition to the Incremental Tax. P. The term "Net Rate" shall mean the rental rate (exclusive of taxes) charged by the Hotel to Defendants for the room. Q. The term "Incremental Tax" shall mean the difference between the Hotel Tax calculated on the Net Rate and the Hotel Tax calculated on the Room Rate. R. The term "Alternative Incremental Tax" shall mean the difference between the Hotel Tax calculated on the Net Rate and the Hotel Tax calculated on the Alternative Base Rate. S. The term "Payment Commencement Date" shall mean twenty (20) days after the month ending when the Class Report is filed with the Court. 6 T. The term "Agreed Interest Rate" shall mean the interest provisions as set forth in the Consent Order as hereinafter defined. U. The term "Merchant Model of Business" shall mean, for the purposes of this Agreement, that business model used by Defendants whereby the Defendants or their Affiliates serve as the merchant of record in the transaction with the traveler and collect the charges for the reservation, including, among other things, Hotel Tax and /or applicable estimated tax charges from travelers in connection with pre -paid reservations made with a Hotel, but do not remit Hotel Tax equal to or in excess of the Incremental Tax amount. V. "Summaries of Incremental Tax Paid" shall mean that information described in Exhibit A to the Consent Order. W. The term "Persons" shall mean persons and entities, including, without limitation, any individuals, sole proprietorships, associations, companies, partnerships, joint ventures, corporations, trusts, estates, or any other persons or entities. X. The term "Satisfied Claims" shall mean any and all claims, damages, suits, demands, liabilities, judgments, losses, and causes of action asserted or which could have been asserted by Plaintiffs and the Class Members against Defendants for Current and Prospective Incremental Tax, interest, penalties, costs and attorneys fees regarding Hotel Occupancy Transaction(s). Satisfied Claims shall specifically exclude any claims relating to: (i) Hotel Tax, interest, penalties and attorneys fees therein for Hotel Occupancies occurring prior to and including May 16, 2011; (ii) Plaintiffs' contentions that Defendants owe Hotel Tax on the Alternative Base Rate for Hotel Occupancy Transactions occurring on or after May 16, 2011, (iii) Plaintiffs' claims that they are entitled to recovery of Hotel Tax, interest, penalties, and attorneys fees, on Breakage for Hotel Occupancies occurring on or after May 16, 2011, or (iv) Plaintiffs' claims that they are entitled to recovery of Hotel Tax, interest, penalties, and attorneys fees on service fees, 7 cancellation fees and /or extra person fees for Hotel Occupancy Transactions occurring on or after May 16, 2011. Y. The term "Settlement Effective Date" shall mean the later of the date upon which all challenges to or appeals from, if any, the Partial Settlement Order and Judgment (defined below) have been finally concluded and exhausted, or the date upon which the time to seek any appellate remedy (including rehearing or writ of certiorari to the United States Supreme Court) from the Partial Settlement Order has expired. Z. The term "Partial Settlement Order and Judgment" shall mean a final approval of an order and partial judgment entered by the Court approving the Partial Settlement and entering relief according to the terms in this Agreement and the Consent Order. AA. The term "Best Efforts" shall mean the efforts that a reasonable person in the position of the Party would use to fulfill an obligation as diligently and expeditiously as possible under the circumstances. BB. The term "Claims Administrator" shall mean the independent service provider nominated by Plaintiffs and approved by the Court whose function shall be the administration of the claims process, as set forth in this Agreement, including without limitation, the receipt of Hotel Tax payments into the Incremental Tax Fund and reports, the necessary analysis and processing of Hotel Tax payments and reports, distribution of funds to Class Members and Plaintiffs' Counsel and issuance of periodic reports regarding the above. CC. The term "Claims Submission Period" shall mean the period beginning on the date of the Notice described in Section 6 below and ending 45 days thereafter. DD. The term "Incremental Tax Fund" means the fund approved by the Court into which the Incremental Tax and/or Alternative Incremental Taxes, and any applicable interest, are paid by the Defendants. 8 EE. "Hotel" means a hotel, motel, inn, lodge, tourist camp, tourist cabin, campground, or any other place in which rooms, lodgings or accommodations are regularly furnished for value. FF. "Affiliate" means entities with which a defendant has a contract, distribution alliance or other arrangement by whatever name called whereby the Defendant provides reservation - facilitation services utilizing the Merchant Model of Business, such as credit card companies, internet search companies, airlines, convention and visitors bureaus or any other entity for which the Defendant has facilitated the booking of hotel reservations for the Affiliates' customers. GG. "Agreed Upon Interest rate" means seven (7 %) percent. TERMS OF AGREEMENT 1. Defendants' Covenants and Undertakings. The Defendants AGREE and covenant as follows: A. On or before the Payment Commencement Date, the Defendants shall pay into the registry of the Court an initial lump sum corresponding to the Incremental Tax for all Hotel Occupancies occurring after May 16, 2011 through the month ending after the Class Report is filed, plus interest accrued at the Agreed Interest Rate, provided that each Defendant is only responsible for the payment of Incremental Tax for Hotel Occupancies for which the reservations were facilitated by that particular Defendant. B. On or before the twentieth (20 day of the next month and of each month thereafter, until otherwise ordered by the Court, each Defendant shall continue to pay into the registry of the Court or Incremental Tax Fund a sum corresponding to the Incremental Tax for all Hotel Occupancies occurring during the preceding calendar month, provided that each Defendant is only responsible for the payment of Incremental Tax for Hotel Occupancies for which the 9 reservations were facilitated by that particular Defendant. Any Defendant that ceases to make payments into the Incremental Tax Fund because it is no longer collecting Hotel Tax and/or applicable tax charges from travelers, shall so notify Plaintiffs' counsel. Plaintiffs reserve their rights to adjudicate whether a Defendant that has ceased making payments into the Incremental Tax Fund remains subject to the payment of Incremental Tax or Alternative Incremental Tax. The Parties agree to attempt to resolve in good faith any dispute concerning a Defendant's obligation to continue to make payments into the Incremental Tax Fund. C. Concurrent with the payments set forth in Paragraphs 1. A and 1. B, above, Defendants shall file with the Court and serve upon Plaintiffs' Counsel (or their authorized designee) the Summaries of Incremental Tax Paid, and filing of same shall act as a certification by Defendants that the Summaries accurately report all Hotel Occupancies in Plaintiffs jurisdictions facilitated by Defendants on behalf of themselves or any Affiliate in the world during that subject time period. D. Should the Court at any time find that the actual tax base upon which Hotel Tax should have been calculated was /is the Alternative Base Rate, and such finding is affirmed or allowed to stand after all appeals, if any, are exhausted, then the Defendants shall make a lump sum payment into the Incremental Tax Fund within thirty (30) days of such final ruling equal to the difference between the Alternative Incremental Tax and Incremental Tax for all Hotel Occupancies occurring after May 16, 2011 and the date of such payment, plus interest accrued thereon at the Agreed Interest Rate, and shall thereafter adjust the monthly payments to reflect the Alternative Incremental Tax Amount due, provided that each Defendant is only responsible for the payment of Alternative Incremental Tax for Hotel Occupancies for which the reservations were facilitated by that particular Defendant. 10 E. The Defendants forever waive the right to reduce the Incremental Tax paid or Alternative Incremental tax paid by the deduction authorized by O.C.G.A. § 48- 13 -52. F. The Defendants consent to the entry by the Court of the Consent Order compelling Defendants' compliance with the terms of this Agreement. 2. Class Members' Agreements. The Class Members AGREE and covenant as follows: A. As a condition to the claim filing process, Plaintiffs agree that each participating Class Member shall provide a report identifying by name and address each Hotel within each Class Member's jurisdiction and the Hotel Tax rate in effect in that jurisdiction from May 16, 2011. The Class Notice shall incorporate this condition to participation in the claims process. B. Provided that Defendants timely perform the commitments as set forth in Paragraphs 1.A, 1.B, 1.0 and 1.D above as set forth herein, the Class Members agree that all Satisfied Claims have been satisfied and further covenant not to sue or commence any proceeding against the Defendants for any Satisfied Claims. For purposes of this covenant, Defendants are deemed to include, individually and collectively, as appropriate, Defendants and their successors -in- interest, including, but not limited to, all of their respective parents, subsidiaries, joint ventures, partnerships, related companies, Affiliates, controlled entities, assignees, distributors, retailers, unincorporated entities, divisions, groups, present or former directors, officers, members, agents, employees, representatives, administrators, insurers, indemnities, and attorneys. Should any of the Defendants default on their obligations as set forth in Paragraphs 1.A, 1.B, 1.0 and 1.D above, and then fail to address or cure default within the time allotted by paragraph 10 of the Consent Order, then as to said defaulting Defendant(s) Plaintiffs are free to pursue their claims for Current and Prospective Hotel Tax pursuant to the Consent Order against that defaulting Defendant or Defendants, but not against any non - defaulting Defendants, provided that each 11 Defendant is only responsible for the payment of Incremental Tax (or, to the extent provided in Paragraph 1.D, above Alternative Incremental Tax) for Hotel Occupancies for which the reservations were facilitated by that particular Defendant. 3. Non - Admission of Liability. This Agreement is made for settlement purposes only, and neither the fact of, nor any specific provision contained in, this Agreement nor any action taken hereunder shall constitute, or be construed as, any admission of the validity of any claim or any fact alleged by Plaintiffs or by any Class Member. Neither shall this Agreement constitute, and neither the fact of, nor any specific provision contained in, this Agreement nor any action taken hereunder constitute or be construed as, any admission of the validity of any defense or any fact alleged by Defendants in opposition to Plaintiffs' claims. 4. Third Party Claims Administrator. The Parties agree that the Plaintiffs may petition the Court for appointment of a third party Claims Administrator to establish a depository for receipt of Current and Prospective Hotel Tax Payments into the Incremental Tax Fund, receive, reconcile and review Class Reports and Summaries of Incremental Tax paid, distribute Hotel Tax and Reports due Class Members, and distribute attorneys fees due Plaintiffs' Counsel. Said Claims Administrator shall be paid exclusively out of the Current and Prospective Hotel Tax Payments paid by Defendants pursuant to Paragraphs 1.A, 1.B and 1.D, above. Plaintiffs hereby release and hold harmless the Defendants from liability or responsibility for paying any claims administration costs for such payments made by Defendants. 5. Preliminary Approval. No later than 30 business days after the date of full execution of this Agreement (unless such time is extended by mutual agreement of the Parties), Plaintiffs shall present this 12 Agreement to the Court by way of motion or otherwise, seeking preliminary approval of this Agreement (the "Submission for Preliminary Approval "). Defendants shall not oppose Plaintiffs' request for preliminary approval of this Agreement. In connection with the Submission for Preliminary Approval, Plaintiffs shall apply for an order substantially in the form wA+c)" 5 t„ 41 b e 4:1.40 w: - Gt. OA se K of Exhibit "B" to this Agreement ( "Order of Preliminary Approval ")n The Submission for Preliminary Approval shall request: a. Preliminary approval of this Agreement; and b. Approval of the notice proposed in this Agreement in form substantially similar to Exhibit "C" attached hereto. 6. Notice to Class. No later than 20 days after the entry of the Order of Preliminary Approval (unless otherwise specifically modified below), Plaintiffs shall cause notice to be disseminated to the Class as directed in the Order of Preliminary Approval in a form substantially similar to that 3,,(n -&,t H -*44-0 SaP�►tc" 'b4-t 5.'3x.4 f - to -attsshed as Exhibit "C" to this Agreement (the "Settlement Notice ")aor as otherwise ordered by Pi 4 �} � the Court. The Parties agree that the methods of notice set forth in this Section constitute the best form of notice to the Class that is practicable under the circumstances. (� 7. Final Approval a. The Parties shall request that the Court hold a fairness hearing no later than seventy -five (75) days after the entry of the Order of Preliminary Approval. At the fairness Settlement Order and Judgment entered by the Court may include additional provisions as to 13 ofcx, susrp- s hearing, the Parties shall jointly request that the Court enter an order in the form of Exhibit "D" S'(, itru 64, .. ke_ess t - A 1 - c C.Ccdi-kt + G/X- m.m.d.i'-. 4. to this Agreement (the "Partial Settlement Order and Judgment ")p which shall finally approve the /� �/ , terms of this Agreement, and enter relief as agreed to herein, and the actual form of the Partial (� which the Parties may subsequently agree, or which the Court may direct, that are not inconsistent with any of the express terms or conditions of this Agreement. b. Following entry by the Court of the Partial Settlement Order and Judgment, no default by any Person in the performance of any covenant or any obligation arising under this Agreement, or any order of judgment entered in connection therewith, shall affect the scope of the Satisfied Claims, the Plaintiffs' covenant not to sue, or any other provision of this Agreement. The above notwithstanding, nothing in this sub - section shall prevent a Party from seeking enforcement of or compliance with the terms of this Agreement, or the intervention of the Court to compel any such default to be cured. 8. Best Efforts of Parties. The Parties agree to undertake their respective Best Efforts to effectuate the obligations of the parties to this Agreement. The Parties shall encourage the Court to approve the Agreement, and shall not encourage Persons included within the Class to object to the Court's approval of the Agreement or to opt out of the Class. 9. Objections to Settlement. a. Any Settlement Class Member who has not timely filed a written request for exclusion from the Settlement Class pursuant to Section 11 below may object to the fairness, reasonableness or adequacy of the proposed Settlement. Each Settlement Class Member who wishes to object to any term of this Agreement must do so in writing by filing a written objection with the Clerk of the Court and mailing it to the Parties' respective counsel at the addresses set forth in Section 24 below. Any such objection must be filed with the Clerk of the Court and received by the Parties' respective counsel no later than 30 days from the date of the Settlement Notice described in Section 6 above. Any such objection must (a) clearly state in detail the legal and factual ground(s) for the objection and the Settlement Class Member's name and address, 14 (b) attach copies of any materials that will be submitted to the Court or presented at the fairness hearing, and (c) be signed by the Class Member. Class Members may so object either on their own or through an attorney hired at their own expense. If an objecting Class Member hires an attorney to assist it, that attorney must file with the Court and serve upon the Parties' respective counsel at the addresses set forth at Section 24 below, a notice of appearance no later than 20 days before the Fairness Hearing. The Parties retain the right to file responses to any objections up to five (5) days before the fairness hearing. b. Any objection that fails to satisfy the requirements of this Section, or that is not properly and timely submitted, may be deemed ineffective, and will be deemed by the Parties to have been waived, and the Parties will argue that the Class Member asserting such objection may not have its objection heard or otherwise considered by the Court. 10. Requests to Appear at Fairness Hearing. Class Members or their counsel who wish to appear at the fairness hearing must make such request by notifying the Clerk of Court and the Parties' respective counsel in writing at the addresses set forth in Section 24 below. Any such request must be filed with the Clerk of the Court and received by the Parties' respective counsel no later than 20 days before the date of the fairness hearing, and must state the name, address and telephone number of the Class Member, as well as the name, address and telephone number of the person who will appear on its behalf. Any such request must further indicate that the Class Member has previously or contemporaneously objected to this Agreement in compliance with the requirements of Section 9 of this Agreement. Any request for appearance that fails to satisfy the requirements of this section or of Section 9 above, or that has not been properly or timely submitted, may be deemed ineffective, and shall be deemed to constitute a waiver of such Class Member's rights to appear and to comment on the settlement at the fairness hearing. 15 11. Requests for Exclusion (Opt Out) from Settlement Class Membership. a. Any Person included within the Class who wishes to be excluded from membership in the Class must do so in writing by mailing a written request for exclusion to the Court with copies to counsel for the Parties. Such request must be postmarked no later than 45 days from the date of the Notice described in paragraph 6 above. The request must (i) be signed by the Person requesting exclusion, (ii) clearly express the Person's desire to be excluded (or to "opt out ") from the Class, and (iii) include the Person's name, address and telephone number, and, if represented by counsel, counsel's name, address and telephone number. b. Any Person within the Class who wishes to be excluded from the Settlement Class can only opt out for itself and cannot opt out for any other Person; nor can any Person within the Settlement Class authorize any other Person to opt out on its behalf. c. Any Person who has filed an objection to the fairness, reasonableness or adequacy of this Agreement pursuant to Section 9 above shall be deemed not to have opted out of the Class pursuant to this Section. In the event that a Class Member makes a submission to the Court and the Parties which appears to assert both an objection to the fairness, reasonableness or adequacy of this Agreement, and a statement of intent to opt out of the Class, the Parties shall advise the Court that the Class Member has objected to the Agreement, and shall object to any proposed opt out of the Class by that Class Member. 12. Failure of Court to Approve this Settlement Agreement. a. If (i) preliminary or final approval of this Agreement is not obtained from the Court, (ii) the Partial Settlement Order in the form attached as Exhibit "D" to this Agreement is materially modified by the Court, and any of the Parties objects in writing within 20 business days to such modification, or (iii) any objector appeals from the Court's entry of the Partial Settlement Order and such order is reversed in whole or in part by a final decision of an appellate 16 court, then any Party to this Agreement shall have the option to rescind this Agreement in its entirety, and upon the election of that Party the Agreement shall be null and void, and shall have no further force and effect, and shall not be offered in evidence or used in the Lawsuit (or in any other matter) for any purpose against that Party. A modification or reversal on appeal of any award of attorney's fees and expenses shall not be deemed a material modification of this Agreement or a reversal that gives the right to rescind this Agreement. b. In such event, this Agreement and all negotiations, proceedings, documents prepared, and statements made in connection herewith shall be without prejudice to the Parties or the Settlement Class Members, shall not be deemed or construed to be an admission or confession by any Party of any fact, matter or proposition of law, and shall not be used in any matter for any purpose, and all Parties shall stand in the same position as if this Agreement had not been negotiated, made and /or filed with the Court. The Lawsuit shall then proceed in all material respects as if this Agreement and any related orders had never been executed. 13. Attorneys' Fees and Expenses, and Service Awards. a. As part of the Motion for Preliminary Approval and Final Approval, and included within the Notice to Class regarding this Partial Settlement, Plaintiffs will request that Plaintiffs' Counsel be awarded attorneys' fees and expenses to be paid solely out of the Incremental Tax or Alternative Incremental Tax payments made pursuant to this Agreement. The Parties understand and acknowledge that the award of attorneys' fees and expenses is within the Court's discretion and Defendants agree not to object to said request for fees and expenses and shall have no liability for payment thereof. b. Defendants further agree not to oppose the payment of a $2,500 service award to each Plaintiff to be made out of the Incremental Tax Fund. 17 c. Any application for an award of attorneys' fees and expenses or service awards made pursuant to this Section 13 is to be considered separate from the approval of this Agreement, and any challenges thereto shall not terminate or delay the Agreement. 14. Effect of Covenant Not to Sue. This Agreement may be pleaded as a full and complete defense to, and may be used as the basis for a temporary restraining order or preliminary or permanent injunction against, any action, suit or other proceeding, which has been or may be instituted, prosecuted, continued to be prosecuted, or attempted, asserting any Satisfied Claim, subject to the exceptions stated herein. 15. Entire Agreement. This Agreement shall constitute the entire agreement between the Parties regarding the Current and Prospective Hotel Tax, and supersedes and replaces any prior agreements and understandings, whether oral or written, between and among them, with respect to such matters. This Agreement shall not be subject to any change, modification, amendment, or addition, without the express written consent of all Parties, and may be amended or modified only by a written instrument signed by or on behalf of all Parties or their respective successors -in- interest. 16. Binding, Severable Agreement. This Agreement shall benefit and bind the Parties, as well as their representatives, and successors, and shall be construed as a whole, according to its plain meaning. If for any reason any provision of this Agreement other than Sections 1, 2 or 14 shall be determined by a court of competent jurisdiction to be invalid, inoperative, illegal, unenforceable, or void, the validity and effect of the other provisions shall not be affected thereby, and this Agreement shall continue in full force and effect without said provision. 18 17. Continuing Jurisdiction. The Court shall retain continuing and exclusive jurisdiction over the Parties, including all Class Members, over the administration and enforcement of the Settlement and this Agreement, and over the distribution of benefits to the Class. The Court shall also retain continuing and exclusive jurisdiction in connection with enforcement of the parties' respective obligations as set forth herein. Any disputes or controversies arising with respect to the interpretation, enforcement or implementation of this Agreement must be submitted by formal and proper motion to the Court. 18. No Assignment. The Parties each represent and warrant that they have not assigned, transferred or purported to assign or transfer, in whole or in part, any interest in any of the rights and claims that are the subject of this Agreement. 19. Choice of Law. The validity, construction, interpretation, performance, and enforcement of this Agreement shall be governed by the internal, substantive laws of Georgia without giving effect to Georgia choice of law principles. 20. Counterparts. This Agreement may be executed in one or more counterparts, either manually, by telecopy, or by emailed pdf. All executed counterparts, and each of them, shall be deemed to be one and the same original instrument. This Agreement shall be deemed executed as of 3` Z ( r The Parties shall exchange among themselves original, signed counterparts, and a complete set of such counterparts shall be filed with the Court as an exhibit to the Submission for Preliminary Approval. 19 21. Advice of Counsel. Each of the Parties has had the benefit of the advice of counsel in the negotiation, drafting and execution of this Agreement, and the language in all parts of this Agreement is the product of the efforts of such counsel. 22. Authority. The Parties each represent and warrant that they have authority to enter into this Agreement, subject to certification of the Settlement Class and approval of this Agreement by the Court. 23. No Party is Drafter. None of the Parties to this Agreement shall be considered to be the primary drafter of this Agreement, or of any of its provisions, for the purpose of any rule of interpretation or construction that might cause any provision to be construed against the drafter. 24. Notification. Except as otherwise described in the Settlement Notice attached as Exhibit C to this Agreement, all notices and other communications referenced in this Agreement shall be addressed to the Parties' counsel at their respective addresses as set forth below: Notices to Plaintiffs or the Settlement Class Members Robert M. Brinson, Esq. J. Anderson Davis, Esq. Brinson, Askew, Berry, Seigler, Richardson & Davis, LLP P.O. Box 5007 Rome, GA 30162 -5007 With a copy to: Robert C. Lamar, Esq. Lamar, Archer & Cofrin, LLP 50 Hurt Plaza, Suite 900 Atlanta, Georgia 30303 20 Notices to Defendants Edward Hine, Jr., Esq. P.O. Box 5128 Rome, GA 30162 -5128 With a copy to: E. Kendrick Smith, Esq. Jones Day 1420 Peachtree Street Suite 800 Atlanta, Georgia 30309 -3053 25. Time for Compliance. If the date for performance of any act required by or under this Agreement to be performed on a particular day or within a specified period of time falls on a Saturday, Sunday or legal or Court holiday, such act may be performed upon the next business day, with the same effect as if it had been performed on the day or within the period of time specified by or under this Agreement. IN WITNESS WHEREOF, the Parties have signed and delivered originals of this Agreement as of, ) l a t ( It but actually signed this Agreement on the dates set forth below. Agreed to and Accepted this day of , 2012. For the Plaintiffs: Date: Date: 21 City of Rome, Georgia By: Title: Hart County, Georgia By: Title: 22 City of Cartersville, Georgia By: Title: City of Hartwell, Georgia By: Title: Cobb County, Georgia By: Title: City of Cedartown, Georgia By: Title: City of Dalton, Georgia By: Title: Gwinnett County, Georgia By: Title: Fulton County, Georgia By: Title: City of Rockmart, Georgia By: Title: City of East Point, Georgia By: Title: City of Warner Robbins, Georgia Date: Date: Date: Date: Date: Date: 1 1C� M ' ''' 4 4 e• �.� • '� ® G�/ • Date: 1 • •• • 7 For the Defendants: 23 By: Title: City of Tybee Island, Georgia By: Title: DeKalb County, Georgia By: Title: City of College Park, Georgia By: Title: City of Alpharetta, Georgia By: Title: City of Macon, Georgia By: Title: Augusta- Richmond County, Georgia By: Title: itc'(� Clayton County, Georgia By: Title: Hotels.com, L.P. Date: Date: Date: Date: Date: Date: Date: Date: 24 By: Title: Hotels.com, GP, LLC By: Title: Hotwire, Inc. By: Title: Trip Network, Inc. (d/b /a Cheaptickets.com) By: Title: Travelport, Inc. f/k/a Cendant Travel Distribution Services Group, Inc. By: Title: Expedia, Inc. By: Title: Internet Publishing Corp. d/b /a Lodging.com By: Title: Lowestfare.com LLC f/k/a Lowestfare.com Incorporated By: Title: Orbitz, Inc. Date: Date: Date: Date: Date: Date: Date: Date: 25 By: Title: Orbitz LLC By: Title: priceline.com Incorporated By: Title: Site59.com LLC By: Title: Travelocity.com Inc. By: Title: Travelocity.com LP By: Title: Travelweb, LLC By: Title: TravelNow.com, Inc. By: Title: