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EXHIBIT 10.12
AMENDED AND RESTATED ASSET MANAGEMENT AGREEMENT
THIS AMENDED AND RESTATED ASSET MANAGEMENT AGREEMENT ("Agreement") is
made and entered into August 31, 1997, to be effective as of July 31, 1997, by
and between Wine Country Hotel, LLC, a Delaware limited liability company
("WCH"), and The Varma Group, Inc. ("Manager").
RECITALS
A. Manager and WCH entered into an Asset Management Agreement
dated as of November 19, 1996 (the "Original WCH Management Agreement"),
pursuant to which Manager agreed to provide management services with respect to
WCH's interest as lessee of the Sonoma Mission Inn and Spa in Sonoma,
California (the "Resort") under a long- term lease agreement (the "Lease") with
the owner of that property (the "Owner"). The Resort is operated by a
management Operator (the "Operator") under a long-term operation or management
agreement (the "Management Agreement"). WCH entered into the Original WCH
Management Agreement to obtain the services of a company with principals
qualified and experienced in asset and hotel management and supervision of the
Operator, in order to fulfill WCH's obligations under the Lease and to assure
proper supervision and management of WCH's interests as lessee under the Lease.
On August 31, 1997, effective as of July 31, 1997, all of WCH's equity
owners sold 100% of the outstanding equity of WCH to RoseStar Management LLC, a
Texas limited liability company ("RoseStar").
B. WCH and Manager mutually desire to modify certain terms of
the Original WCH Management Agreement and to restate the modified agreement
between WCH and Manager as set forth below.
C. Manager and RoseStar entered into an Asset Management
Agreement dated as of May 1, 1996 (the "RoseStar Management Agreement")
pursuant to which Manager agreed to provide management services with respect to
RoseStar's assets, including its interest as the lessee of the Marriott City
Center Hotel in Denver, Colorado (the "Marriott Hotel") under a long-term lease
agreement with the owner of that property. The Marriott Hotel is operated by a
hotel management operator under a long-term operation or management agreement.
Contemporaneously with the execution and delivery of this Agreement, RoseStar
and Manager are amending and restating the RoseStar Management Agreement, on
terms substantially identical with the terms of this Agreement, by entering
into that certain Amended and Restated Asset Management Agreement of even date
herewith (the "Restated RoseStar Management Agreement").
On August 31, 1997, effective as of July 31, 1997, all of
RoseStar's equity owners sold 100% of the outstanding equity of RoseStar to
Crescent Operating, Inc.
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D. Manager and RoseStar's subsidiary, RoseStar Southwest, LLC
("RoseStar Southwest") entered into an Asset Management Agreement dated as of
May 1, 1996 (the "Southwest Management Agreement") pursuant to which Manager
agreed to provide management services with respect to RoseStar Southwest's
assets, including its interests as the lessee of the Hyatt Regency Hotel in
Albuquerque, New Mexico, and the Hyatt Regency Beaver Creek in Avon, Colorado
(the "Hyatt Hotels") under long-term lease agreements with the respective
owners of those properties. Each of the Hyatt Hotels is operated by hotel
management operators under long-term operation or management agreements.
Contemporaneously with the execution and delivery of this Agreement, RoseStar
Southwest and Manager are amending and restating the Southwest Management
Agreement, on terms substantially identical with the terms of this Agreement,
by entering into that certain Amended and Restated Asset Management Agreement
of even date herewith (the "Restated Southwest Management Agreement").
Contemporaneously with the execution and delivery of this Agreement,
WCH and Manager are amending and restating the WCH Management Agreement, on
terms substantially identical with the terms of this Agreement, by entering
into that certain Amended and Restated Asset Management Agreement of even date
herewith (the "Restated WCH Management Agreement").
Now therefore, for and in consideration of the premises and the mutual
covenants herein contained and subject to the following terms and conditions,
Manager and WCH agree to amend and restate the Original WCH Management
Agreement as follows:
ARTICLE 1
APPOINTMENT
1.1 Appointment to Manage Specific Assets and Supervise Resort
Management.
(a) WCH hereby appoints Manager as exclusive manager of
the assets of WCH listed in Schedule 1 attached hereto, including its
interests under the Lease, and in connection therewith (i) to perform,
to direct the performance of, or to supervise the performance of WCH's
obligations under the Lease, (ii) to supervise the performance of the
Operator, (iii) to promote, exercise, and protect the rights of WCH
under the Lease and its contract with the Operator, (iv) on behalf of
WCH to deal with the Owner and the Operator, and (v) in general to
oversee, preserve, protect, supervise, maintain, promote and utilize
WCH's assets associated with or relating to the Resort. In carrying out
its duties, Manager (provided Manager shall have been provided by WCH
the funding required of it under this Agreement) shall endeavor to
assure that the Resort is operated in an efficient and businesslike
manner consistent with the standard, status and character of the Resort
as a first class Resort property, that revenues and net income from
operation of the Resort are maximized, and, subject to Section 3.3, to
do and perform, or cause to be done and performed, all other activities
customary and usual in connection with the management of WCH's Resort
property.
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(b) During the Management Period WCH at its discretion may
offer to Manager the opportunity to manage the assets of one or more
other hospitality properties (each a "Hospitality Property") hereafter
acquired (by purchase or lease) by WCH or a subsidiary of WCH, the
terms and conditions thereof to be substantially similar to this
Agreement except that Manager's compensation shall be at the then
prevailing market rate or such other rate mutually agreed upon by
Manager and WCH.
(c) Nothing herein shall be construed to prohibit Manager
from entering into, and WCH is aware that Manager may enter into, asset
management agreements with owners and operators or lessees of other
Resort or resort properties.
1.2 Authority and Power. WCH hereby authorizes Manager, subject to
Section 3.3, to exercise such powers with respect to the Lease, the Management
Agreement and the interests and assets of WCH as may be necessary for the
performance of Manager's obligations under the terms of this Agreement and
Manager accepts such appointment under the terms and conditions hereinafter set
forth. Except as expressly limited in Section 3.3, Manager shall have plenary
right and authority to commit or otherwise obligate WCH in all matters
pertaining to the Lease or the Management Agreement.
1.3 Independent Contractor. In performing its obligations
hereunder, Manager shall be an independent contractor. Neither WCH nor Manager
intends hereby to create a partnership, joint venture or trust or (except as
provided elsewhere herein) to make either party hereto the agent of the other
party hereto or to create any fiduciary relationship between WCH and Manager or
to create any contractual relationship between WCH and Manager except as
expressly created by this Agreement. Except as strictly provided herein,
Manager shall not in any capacity become liable for any obligations,
liabilities, losses or debts of WCH.
1.4 Representation by Manager. Manager represents and warrants to
WCH that by entering into and performing its obligations under this Agreement,
Manager is not violating and will not violate any contractual, fiduciary or
legal obligations or responsibilities to which it is or is likely to become
subject, nor is it subject to any contractual, fiduciary or legal obligations
or responsibilities which may reasonably be expected to interfere with its
ability to perform its obligations under this Agreement.
ARTICLE 2
TERM
Manager's duties and responsibilities under this Agreement shall begin
on August 1, 1997, and unless otherwise terminated as provided in Article 7
hereof, shall continue through July 31 , 2002 (the "Management Period").
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ARTICLE 3
MANAGER'S RESPONSIBILITIES
3.1 Management of Resort Assets Generally. Subject to Section
3.3, Manager, on behalf of WCH, shall implement, or cause to be implemented,
the decisions of WCH with respect to the Lease, the Management Agreement and
the Resort; shall direct the performance of WCH's obligations under the Lease
and the Management Agreement; and shall supervise the performance by the
Operator of its obligations under the Management Agreement; including, without
limitation: (a) formulating policies, strategies and tactics for carrying out
WCH's duties under the Lease; (b) reviewing and supervising the performance by
Operator of its contractual obligations to WCH with respect to the Resort; (c)
assembling, organizing and maintaining records of the Resort's operations and
activities; (d) maintaining permits and licenses required of WCH and necessary
for the leasing of the Resort; and (e) inspecting the Resort to assure
compliance by the Operator with its Management Agreement.
3.2 Management of Resort Assets Specifically. Without limiting
the preceding and by way of illustration but not limitation, Manager shall,
subject to Section 3.3, in a prudent, businesslike, skillful, and expeditious
manner:
(a) after consultation with WCH, obtain all licenses, permits,
consents, and approvals ("Governmental Approvals") from any applicable
governmental authorities and agencies necessary for WCH as lessee of
the Resort;
(b) after consultation with WCH, obtain all consents and approvals
("Private Approvals") from any applicable associations, persons and
other parties holding rights of consent and approval necessary for WCH
as lessee of the Resort;
(c) deliver to WCH operating and capital budgets ("Operating and
Capital Budgets") for the Resort pursuant to Section 3.7;
(d) prepare and submit to WCH upon its request (but not more frequently
than monthly) written progress reports in form acceptable to WCH and
reflecting significant developments affecting or relating to the Resort
and a comparison between budgeted and actual operations, all for the
periods requested by WCH;
(e) consult with WCH on all matters requiring Approval of WCH under or
pursuant to Section 3.3 or elsewhere in this Agreement;
(f) permit WCH to inspect and audit records of Manager pertaining to
the Resort and consult with Manager on matters pertaining to the
Resort;
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(g) coordinate, be responsible for, and, where necessary, assist WCH in
obtaining or recovering payment for all credits, reimbursables or other
funds payable to WCH in connection with the Lease;
(h) advise WCH with respect to and with WCH's Approval implement, any
challenge to the tax rates or assessments on or pertaining to the
Resort; and
(i) comply with the Lease and the Management Agreement, including
without limitation taking or causing Operator to take all actions in
management of the Resort as are required to be taken and refraining
from taking any action that would cause WCH to breach or be in default
of the Lease or Management Agreement.
3.3 Approval of WCH Required. Manager shall not have authority or
exercise power to take any of the following actions without first obtaining
WCH's written approval or consent ("Approval"; an action shall be "Approved" if
Approval has been granted), which may be given or withheld in WCH's sole
discretion and judgement: (a) apply for, modify or renew a Governmental
Approval and Private Approval, if WCH beforehand shall have requested Manager
to discuss with it the propriety or advisability thereof, (b) enter into any
agreement or transaction which may become a lien against the Resort, a personal
obligation of any member of WCH, or an obligation of WCH involving more than
$25,000, (c) ▇▇▇, defend, settle or compromise any claim by or against any
third party, including but not limited to governmental or taxing authorities,
or (d) take any other action for which Approval is elsewhere in this Agreement
required, without first obtaining such Approval. Notwithstanding the
preceding, WCH's Approval shall be deemed to have been given as to any action
for which Manager shall have requested Approval in writing if WCH shall have
neither given nor denied Approval within 20 days after its actual receipt of
such written request.
3.4 For WCH's Account. The services of Manager in performing its
duties and providing services pursuant to this Agreement shall be for the
account of WCH. Except for costs and obligations otherwise provided herein to
be paid or borne by Manager, WCH agrees to be responsible for all costs,
expenses, and disbursements incurred by Manager under the terms of this
Agreement in providing asset management services hereunder and WCH agrees to
provide all funding reasonably necessary for Manger to perform its asset
management services under this Agreement; but without WCH's consent, Manager
will not incur any expenses or make any expenditure except as required or
permitted in this Agreement. Whenever Manager in good faith believes that
emergency circumstances exist that require immediate actions to preserve WCH's
assets or to protect WCH's rights under the Lease or its contract with the
Operator, then Manager shall take such actions and incur such reasonably
necessary expenses and expenditures for the account of WCH, without undue
delay, as Manager deems necessary under the circumstances; but Manager shall
furnish WCH a complete reporting of such actions and expenses as promptly as
practicable.
3.5 Standards. In the performance of its obligations under this
Agreement, the Manager shall exercise a high degree of skill, expertise,
judgment and prudence. The Manager shall also act in the best interest of WCH
with respect to the proper protection of and accounting for the Resort
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property of WCH. Manager will be deemed to have performed within the standards
set forth herein if, in any action, Manager acted in good faith and in a manner
it reasonably believed to be in the best interest of WCH and such action did
not constitute, involve or result from gross negligence, willful or wanton
misconduct, or a breach of a material provision of this Agreement.
3.6 Financial Reports and Records. Manager shall keep proper and
suitable books and records for the Resort as reasonably required to protect
WCH's assets from theft, error or fraudulent activity.
(a) Manager shall provide reports with respect to the
Resort as set forth in Exhibit A and such other reports as WCH may from
time to time request.
(b) All financial statements and reports will be prepared
in accordance with accounting principles established by WCH; if WCH
does not specify accounting principles to be followed by Manager, then
Manager shall keep books and records in accordance with the Uniform
System of Accounts for Hotels as approved by the American Hotel
Association.
(c) WCH or its representatives may, at any time, conduct
examinations of the books and records maintained for WCH by Manager.
WCH also may perform any and all additional audit tests relating to
Manager's activities with respect to this Agreement at any appropriate
place. Any and all such audits shall be at the sole expense of WCH
subject, however, to WCH's indemnification rights. All books and
records shall be preserved throughout the Management Period, upon
termination of this Agreement shall be promptly delivered to WCH, and
shall at all times remain the exclusive property of WCH.
3.7 Budgets. Manager shall for each calendar year review,
analyze, and critique the Operating and Capital Budgets prepared by the
Operator and submit to WCH a report thereon together with Manager's
recommendations thereon. The proposed Operating and Capital Budget shall be
presented to WCH as required by the terms of the Management Agreements.
3.8 Bank Accounts. Manager shall make timely deposits of cash
receipts of WCH in operating accounts, in banks designated by WCH. At all
times the funds deposited shall be the sole and exclusive property of WCH and
shall not be commingled with the funds of Manager or any third party. Manager
shall use the funds in the accounts solely for the purpose of management as
provided under this Agreement.
3.9 Collection of Income. Manager shall use diligent efforts to
collect all income and payments due to WCH from operations of the Resort.
3.10 Compliance with Laws. Manager shall not in the performance
of its services hereunder violate any federal, state, municipal or other
governmental law, ordinance, rule or regulation. Manager shall immediately
notify WCH of any known violation of any federal, state,
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municipal or other governmental law, ordinance, rule or regulation due to the
structure, condition or operation of the Resort or the activities therein.
Manager shall obtain and maintain all permits and licenses required for WCH's
lease of the Resort. Manager shall not in performance of its services
hereunder knowingly violate, and shall comply in all material respects with the
terms of, the Lease, Management Agreement, mortgages, deeds of trust or other
security instruments binding on WCH or affecting the Resort. In the event of a
conflict between the terms of any such document and the terms of this
Agreement, Manager shall not take any action except to notify WCH and await
WCH's instructions. Manager shall not be required to make any payment on its
own behalf or incur any liability in order to comply with the terms or
conditions of any such instruments.
3.11 Notification of Litigation. If Manager shall be apprised of
any claim, demand, suit or other legal proceeding made or instituted against
WCH on account of any matter connected with the Resort, Manager shall give WCH
all information in its possession in respect thereof, and shall assist and
cooperate with WCH in all reasonable respects in the defense of any such suit
or other legal proceeding.
3.12 Confidentiality. Manager acknowledges and agrees that all
information about WCH or the Resort provided to it is and will continue to be
the exclusive property of WCH and agrees to keep all such information (other
than information which is publicly known other than as a result of Manager's
disclosure in violation of this Agreement) in strictest confidence except that
limited disclosure may be made with the prior express consent of WCH, or as
Manager determines in good faith is necessary to enable it to perform its
obligations under this Agreement, or as required by law or judicial or
regulatory process. The provisions of this Section 3.12 shall survive
termination of this Agreement.
3.13 Notice of Breaches and Defaults. Manager shall notify WCH
immediately upon becoming aware of a breach or default by Manager under this
Agreement or the occurrence of an event which, with or without notice or the
lapse of time or both, would entitle WCH to terminate this Agreement for cause.
3.14 Personal Performance Requirement. This Agreement is based on
the special skill and ability of Sanjay and ▇▇▇▇▇▇▇ ▇▇▇▇▇, as principals of the
Manager, and the devotion by them of sufficient time to cause Manager to
perform its obligations hereunder in a timely manner. Therefore, Sanjay and
▇▇▇▇▇▇▇ ▇▇▇▇▇ each covenants to WCH that at least one of them shall at all
times during the Management Period own in the aggregate a majority of the
outstanding stock of Manager and shall serve as the most senior executive
officer and member of the board of directors of WCH, and ▇▇▇▇▇▇▇ ▇▇▇▇▇ (and in
her absence, ▇▇▇▇▇▇ ▇▇▇▇▇) shall devote the substantial majority of her
professional time and efforts to the Manager's business.
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ARTICLE 4
INSURANCE COVERAGE
Manager shall procure and maintain at all times during the term of this
Agreement workmen's compensation insurance coverage, in reasonable amounts, for
the benefit of Manager. WCH shall add Manager to WCH's general liability
insurance policy or policies as an additional insured at all times during the
term of this Agreement.
ARTICLE 5
COMPENSATION AND REIMBURSEMENTS
5.1 Base Compensation.
(a) Subject to Section 5.1(b), Manager shall receive as
consideration and remuneration for all its services under this
Agreement a fee of $165,000 (the "Management Fee") for the first twelve
months of the Management Period (that is, for the period from August 1,
1997 through July 31, 1998); for each subsequent twelve month period
during the Management Period, a cost of living adjustment will be
determined as of the beginning of that period and applied to the
Management Fee for that period as follows: the Management Fee will be
increased (but not decreased) by an amount equal to the product
calculated by multiplying the Management Fee for the immediately
preceding 12 months, times the percentage increase for such calendar
year of the Consumer Price Index for Urban Consumers [Fort Worth -
Arlington Metro Area] -- All Items Index, published by the US
Department of Labor, Bureau of Labor Standards. The Management Fee
will be payable in advance in equal monthly installments (each a
"Monthly Installment") as follows: the Monthly Installment for the
month of September 1997 shall be paid directly to Manager not later
than September 5, 1997; the Monthly Installment for each succeeding
month during the Management Period shall be paid directly to the
Manager by the 20th day of the immediately preceding month. Any
Monthly Installment not paid when due shall bear simple interest at 18%
per annum from and after the due date until paid; additionally, for any
Monthly Installment not paid by the first day of the month to which it
relates, WCH shall become obligated to immediately pay Manager a late
charge equal to ten percent of the amount of such Monthly Installment
(exclusive of interest accrued thereon). Prior to execution of this
Agreement, Manager received a partial payment of the Management Fee for
August 1997; WCH shall pay the remaining balance of the August
Management Fee by September 5, 1997.
(b) In the event of the termination, for any reason, of
the Lease, then WCH shall have the right to substitute in place of the
terminated Lease any other lease of another resort or hotel property
(but the Management Fee, as adjusted pursuant to Section 5.1(a), shall
not be affected by termination of the Lease or by the substitution in
place of a terminated Lease of a lease of another resort or hotel
property).
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5.2 Bonuses. Not less frequently than each anniversary date of
this Agreement, WCH shall give due and fair consideration to determining
whether Manager's performance under this Agreement and the resulting financial
benefits to WCH merit, in WCH's discretion, additional compensation in the form
of a cash bonus or other remuneration.
5.3 Manager's Costs to be Reimbursed. During the Management
Period, Manager will be entitled to reimbursement for reasonable out of pocket
expenses in excess of $20,900 per year that its personnel incur in accordance
with this Agreement in travel to and from the Resort in performing its services
hereunder. WCH shall reimburse Manager for such expenses within 30 days
following actual receipt of itemized invoices of such expenses.
ARTICLE 6
TERMINATION
6.1 Termination by WCH for Cause. WCH shall have the right to
immediately terminate this Agreement, without recourse by Manager except as
provided in Section 6.5(b), in the event Manager commits any act which is a
breach of a material provision of this Agreement and which constitutes an act
of gross negligence, willful or wanton misconduct or is in material violation
of any mortgage, deed of trust, or other security instrument, equipment lease,
insurance contract, or other material contract or agreement affecting the
Resort, and which is not cured within 20 days after written demand by WCH to
Manager (provided, that WCH shall not be required to give Manager an
opportunity to cure if in WCH's good faith judgment its rights or interests are
likely to be materially prejudiced by delay). In addition, WCH shall have the
right to terminate this Agreement upon at least 90 days notice, without
recourse by Manager except as provided in Section 6.5(b), in the event:
(a) Manager shall apply for or consent to the appointment
of a receiver, trustee, or liquidator of Manager or of all or a
substantial part of its assets, file a voluntary petition in
bankruptcy, or admit in writing its inability to pay its debts as they
come due, make a general assignment for the benefit of creditors, file
a petition or an answer seeking reorganization or arrangement with
creditors or take advantage of any insolvency law, or file an answer
admitting the material allegations of a petition filed against Manager
in any bankruptcy, reorganization, or insolvency proceeding, or of an
order, judgment, or on the application of a creditor, a decree shall be
entered by any court of competent jurisdiction adjudicating Manager
bankrupt or insolvent or approving a petition seeking reorganization of
Manager or appointing a receiver, trustee, or liquidator of Manager or
of all or a substantial part of its assets, and such order, judgment or
decree shall continue unstayed and in effect for any period of 90
consecutive days; or
(b) The latter of ▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇,
principals of Manager, dies, becomes permanently disabled or
incapacitated (and an individual shall be deemed "permanently disabled
or incapacitated" if he or she is unable to complete his or her duties
for
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60 days in any consecutive 90 day period), or ceases to engage
personally in performing the Manager's obligations under this
Agreement.
In the event WCH terminates this Agreement under Subsection (b) above based
upon the death, disability and/or incapacity of the Varmas, then WCH shall pay
Manager the Termination Fee (as calculated in Section 6.2).
6.2 Termination by WCH Without Cause. In addition to the
termination rights set forth in Section 6.1, this Agreement may be terminated
by WCH without cause:
(a) at any time prior to January 31, 2000 (the "Guaranteed Date"),
by giving Manager written notice of termination (the date of such
notice is called the "Termination Date") and delivering to Manager a
lump sum cash payment (the "Termination Fee") equal to the greater of
(i) the Value of the Management Fee for the period from the Termination
Date through the Guaranteed Date (the "Remaining Period") and (ii) the
product realized by multiplying the amount of the most recent Monthly
Installment by 6. For purpose of this Section 6.2(a), the "Value" of
the Management Fee shall be calculated as the sum of the Monthly
Installments which, if this Agreement had not been terminated under
this Section 6.2(a), would become payable to Manager during the
Remaining Period (assuming that this Agreement would not otherwise have
been terminated prior to the Guaranteed Date and assuming that the
percentage increase in the Consumer Price Index for each year during
the Remaining Period is four percent); and
(b) at any time after the Guaranteed Date, upon six months prior
written notice delivered to Manager.
Subject to Section 6.5(b), except for the right to receive payment of the
Termination Fee, Manager shall have no claim, right or cause of action against
WCH arising out of its termination of this Agreement pursuant to the provisions
of this Section 6.2. The provisions of this Section 6.2 shall survive
termination of this Agreement.
6.3 Termination by Manager.
(a) Manager may at any time after the Guaranteed Date
notify WCH in writing that Manager intends to resign on a specified
date after the expiration of at least 6 months following the date of
such notification (the "Resignation Date"). WCH shall have no
obligation to pay Manager any compensation hereunder with respect to
any period following the Resignation Date and Manager, by so resigning,
will forfeit all claims to any compensation with respect to any period
following the Resignation Date.
(b) Manager shall have the right to immediately terminate
this Agreement,
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without recourse by WCH except as provided in Section 6.5(b), in the
event RoseStar Southwest terminates the Restated Southwest Management
Agreement without cause (as provided in the Restated Southwest
Management Agreement) or RoseStar terminates the Restated RoseStar
Management Agreement without cause (as provided in the Restated
RoseStar Management Agreement), but Manager's right shall expire unless
exercised within 30 days following the date on which either RoseStar
Southwest terminates the Restated Southwest Management Agreement or
RoseStar terminates the Restated RoseStar Management Agreement. In the
event RoseStar Southwest terminates the Restated Southwest Management
Agreement without cause (as provided in the Restated Southwest
Management Agreement) or RoseStar terminates the Restated RoseStar
Management Agreement without cause (as provided in the Restated
RoseStar Management Agreement) and Manager timely exercises its right
to terminate this Agreement, then the provisions of Section 6.2 shall
apply to the termination of this Agreement as if WCH had terminated
this Agreement without cause as of the date of termination of the
Restated Southwest Management Agreement or as of the date of
termination of the Restated RoseStar Management Agreement, as
applicable.
(c) Manager shall have the right to immediately terminate
this Agreement, without recourse by WCH except as provided in Section
6.5(b), in the event WCH commits any act which is a breach of a
material provision of this Agreement and which constitutes an act of
gross negligence, willful or wanton misconduct or is in material
violation of any mortgage, deed of trust, or other security instrument,
equipment lease, insurance contract, or other material contract or
agreement affecting the Resort, and which is not cured within 20 days
after written demand by Manager to WCH (provided, that Manager shall
not be required to give WCH an opportunity to cure if in Manager's good
faith judgment its rights or interests are likely to be materially
prejudiced by delay). In addition, Manager shall have the right to
terminate this Agreement upon at least 90 days notice, without recourse
by WCH except as provided in Section 6.5(b), in the event WCH shall
apply for or consent to the appointment of a receiver, trustee, or
liquidator of WCH or of all or a substantial part of its assets, file a
voluntary petition in bankruptcy, or admit in writing its inability to
pay its debts as they come due, make a general assignment for the
benefit of creditors, file a petition or an answer seeking
reorganization or arrangement with creditors or take advantage of any
insolvency law, or file an answer admitting the material allegations of
a petition filed against WCH in any bankruptcy, reorganization, or
insolvency proceeding, or of an order, judgment, or on the application
of a creditor, a decree shall be entered by any court of competent
jurisdiction adjudicating Manager bankrupt or insolvent or approving a
petition seeking reorganization of WCH or appointing a receiver,
trustee, or liquidator of WCH or of all or a substantial part of its
assets, and such order, judgment or decree shall continue unstayed and
in effect for any period of 90 consecutive days.
6.4 Intentionally Deleted.
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6.5 Effect of Termination.
(a) Upon the termination of this Agreement, WCH's
obligation to pay Manager the Management Fee shall cease upon the date
of termination or resignation (the "Termination Date"), and except as
provided herein, the parties shall have no further rights or
obligations to the other.
(b) Notwithstanding the foregoing, the termination of this
Agreement shall not affect (i) the rights of WCH or Manager with
respect to any damages at law or in equity either may have suffered as
a result of any breach of the Agreement by the other party hereto, (ii)
the rights of WCH or Manager with respect to liability or claims
accrued (including but not limited to reimbursement rights), or arising
out of events occurring, prior to the Termination Date, (iii) the
indemnification or exoneration rights of Manager set forth in Sections
8.5 and 8.6, (iv) the confidentiality obligations of Manager under
Section 3.12, (v) the obligations of Manager under Section 6.6 of this
Agreement, (vi) the obligations of Manager and its principals under
Section 1.1(b), which shall survive as provided therein, and (vii) the
provisions of this Section 6.5 and of Section 6.2. The provisions of
this Section 6.5 and of Sections 6.2, 6.3, 6.6, 3.12, 8.5 and 8.6
shall survive termination of this Agreement.
(c) Neither party to this Agreement shall be liable to any
other party hereto for consequential or punitive damages arising as a
result of a breach of this Agreement.
6.6 Final Accounting. Upon termination of this Agreement for any
reason, Manager shall not take or destroy any books, records, contracts,
receipts for deposits, unpaid bills, and other papers, documents or properties
and operating and maintenance information which relate to the Resort, the Lease
or the Management Agreement or any personal property or equipment of the
Resort. Manager shall convey to WCH all books and records pertaining to the
Resort, the Lease or Management Agreement in its possession or under its
control and make a final accounting as promptly as practicable but in no event
later than 60 days following the Termination Date. Manager shall cooperate
with WCH and Manager's successor to assign contracts, transfer management
responsibilities, and otherwise to make best efforts to assure continued asset
management services without interruption; without limiting the foregoing,
Manager shall not take any actions which might reasonably be expected to
interfere with or damage the continued operations of the Resort or its
reputation and shall not make any disparaging public remarks about the Resort,
WCH, or Manager's successor. The provisions of this Section 6.6 shall survive
termination of this Agreement.
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ARTICLE 7
ASSIGNMENT
7.1 No Assignment by Manager or WCH. This is a personal services
contract. Manager may not assign its rights and obligations hereunder without
the prior written consent of WCH. WCH may not assign its rights or obligations
hereunder without the prior written consent of Manager. The assignment of this
Agreement by WCH with Manager's consent shall not be deemed to terminate this
Agreement or to give Manager any right to receive a Termination Fee.
7.2 Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the parties hereto, their respective legal
representatives, successors, and assigns.
ARTICLE 8
GENERAL PROVISIONS
8.1 Modification and Changes. This Agreement cannot be altered,
amended, or modified except by another agreement in writing signed by Manager
and WCH.
8.2 Understandings and Agreements. This Agreement (including
Schedule 1 and Exhibit A attached hereto, which are incorporated herein by
reference) constitutes all of the understandings and agreements of whatsoever
nature or kind existing between the parties with respect to Manager's asset
management services to WCH in connection with the Resort. The Original WCH
Management Agreement is superseded in its entirety by this Agreement.
8.3 Waiver. No consent or waiver, express or implied, by any
party to this Agreement to or for any breach or default by any other party to
this Agreement in the performance by such other party of its obligations under
this Agreement shall be deemed or construed to be a consent or waiver to or of
any other breach or default in the performance by such other party of the same
or any other obligations of such other party under this Agreement. Failure on
the part of any party to this Agreement to complain of any act or failure to
act of any other party to this Agreement or to declare any other party in
default, regardless of how long such failure continues, shall not constitute a
waiver by such party of his or its rights hereunder.
8.4 Headings. The Article and Section headings contained herein
are for convenience or reference only and are not intended to define, limit, or
describe the scope or intent of any provision of this Agreement.
8.5 Indemnification of Manager. Subject to the last paragraph of
this Section 8.5, WCH shall indemnify and hold harmless the Manager as
follows:
(a) In any threatened, pending or completed action, suit
or proceeding, whether civil, criminal, administrative, arbitrative or
investigative, to which Manager was or is a party or is threatened to
be made a party involving an alleged cause of action arising from the
activities of Manager and which activities were on behalf of WCH or the
Resort or any appeal
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in such action, suit or proceeding or in any inquiry or investigation
that could lead to such an action, suit or proceeding, WCH shall
(except as otherwise provided in Section 8.5(c) below) indemnify
Manager against any and all losses, claims, demands, liabilities, costs
and expenses, including reasonable attorneys' fees, accountant's fees,
judgments, penalties, fines and amounts paid in settlement, actually
and reasonably incurred by Manager in connection with such action, suit
or proceeding, (collectively "Losses"), WHETHER OR NOT RESULTING FROM
OR ARISING OUT OF MANAGER'S MERE NEGLIGENCE, provided that (i) Manager
acted in good faith, (ii) Manager acted in a manner it reasonably
believed to be in the best interests of WCH, and (iii) Manager's
conduct does not constitute a breach of a material provision of this
Agreement and an act of gross negligence or willful or wanton
misconduct or a material violation of any mortgage, deed of trust, or
other security instrument, equipment lease, insurance contract or other
material contract or agreement affecting the Resort. The termination
of a proceeding by judgment, order, settlement, conviction or upon a
plea of nolo contendere, or its equivalent, shall not, of itself,
determine or create a presumption that Manager did not act in good
faith and in a manner that he or it reasonably believed to be in the
best interests of WCH, nor shall any such termination of a proceeding,
of itself, determine or create a presumption that Manager was grossly
negligent or was guilty of willful or wanton misconduct or a breach of
a material provision of this Agreement unless a specific finding to
such effect is included in such judgment, order, settlement, conviction
or plea.
(b) With respect to matters as to which Manager is
entitled to indemnification hereunder, all reasonable expenses
(including reasonable legal fees and expenses) incurred in defending
any proceeding shall be paid by WCH in advance of the final
disposition of such proceeding upon receipt of an undertaking by or on
behalf of Manager to repay such amount if it shall ultimately be
determined, by a court of competent jurisdiction or otherwise, that
Manager is not entitled to be indemnified by WCH as authorized
hereunder.
(c) Any such indemnification shall be made only out of the
assets of WCH, and in no event may Manager subject the members,
managers, officers, directors, employees, affiliates or agents of WCH
to personal liability by reason of these indemnification provisions.
(d) The indemnification provided by this Section 8.5 shall
be in addition to any other rights to which Manager may be entitled, in
any capacity, under any agreement, as a matter of law or otherwise and
shall inure to the benefit of the heirs, successors, assigns and
administrators of Manager.
(e) Manager shall not be denied indemnification in whole
or in part under this Section 8.5 because Manager had an interest in
the transaction with respect to which the indemnification applies if
the transaction was otherwise permitted by the terms of this Agreement.
(f) The provisions of this Section 8.5 shall survive any
termination of this Agreement.
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Despite the foregoing, WCH shall have no obligation to indemnify Manager under
this Section 8.5 if and to the extent that Damages arise as a result of or
relate to Manager's bad faith, breach of this Agreement or out of Manager's
willful or wanton misconduct or gross negligence.
8.6 Exoneration. Manager shall not be liable for obligations,
liabilities, losses or debts of WCH or damages caused by or resulting from
actions or omissions of WCH, except if and to the extent of obligations,
liabilities, losses, debts or damages that arise as a result of or relate to
Manager's bad faith, breach of this Agreement or out of Manager's willful or
wanton misconduct or gross negligence. Furthermore, Manager shall not be
liable to WCH for mistakes in judgement, for actions or inactions taken or
omitted for a purpose which Manager in good faith reasonably believed to be in
the best interest of WCH, for losses due to mistake, action or omission of any
agent provided that he shall have been selected and monitored by Manager in
good faith, if the same do not result from or involve gross negligence, willful
or wanton misconduct, or breach of a material provision of this Agreement. The
provisions of this Section 8.6 shall survive any termination of this Agreement.
8.7 Third Parties. None of the obligations hereunder of either
party shall run to or be enforceable by any party other than the other party to
this Agreement or by a party deriving rights hereunder as a result of an
assignment permitted pursuant to the terms hereof.
8.8 Governing Law. THE VALIDITY, ENFORCEMENT, AND INTERPRETATION
OF THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF DELAWARE
WITHOUT REGARD TO ITS CHOICE OF LAW PRINCIPLES.
8.9 Severability. In case any one or more of the provisions
contained in this Agreement shall for any reason be held to be invalid,
illegal, or unenforceable in any respect, such invalidity, illegality, or
unenforceability shall not affect any other provision hereof, and this
Agreement shall be construed as if such invalid, illegal, or unenforceable
provision had never been contained herein.
8.10 Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original for all purposes and
all of which when taken together shall constitute a single counterpart
instrument. Executed signature pages to any counterpart instrument may be
detached and affixed to a single counterpart, which single counterpart with
multiple executed signature pages affixed thereto constitutes the original
counterpart instrument. All of these counterpart pages shall be read as though
one and they shall have the same force and effect as if all of the parties had
executed a single signature page.
8.11 Notice. Any notice or communication hereunder or in any
agreement entered into in connection with the transactions contemplated hereby
must be in writing and given by depositing the same in the United States first
class mail, addressed to the party to be notified, postage prepaid and
registered or certified with return receipt requested, or by delivering the
same in person or by facsimile transmission, or by sending the same by
reputable overnight courier. Such notice shall be deemed received on the date
on which it is hand-delivered or received by facsimile transmission, on the
third business day following the date on which it is so mailed, or on the
business day next following the
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date on which it is sent by overnight courier. For purposes of notice, the
addresses of the parties shall be:
If to WCH: Wine Country Resort, LLC
------------------------
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention:
---------------
Facsimile:
---------------
If to Manager: The Varma Group, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Facsimile: ▇▇▇ ▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Any party may change its address for notice by written notice given to the
other parties in accordance with this section.
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8.12 Arbitration. Upon the demand of either party, whether
made before or after the institution of any judicial proceeding, any
controversy or claim whatsoever arising out of or relating to this Agreement or
the breach or alleged breach thereof, the performance or nonperformance of any
terms hereof, or the relationship between the parties created by or arising out
of this Agreement, shall be settled by binding arbitration in Fort Worth,
Texas, in accordance with the Commercial Arbitration Rules of the American
Arbitration Association, and judgement upon the award rendered by the
arbitrator or arbitrators may be entered in any court having jurisdiction
thereof.
IN WITNESS WHEREOF, this Asset Management Agreement is executed as of
the date first above written.
WCH:
WINE COUNTRY RESORT, LLC
By:
-----------------------------------
Its:
-----------------------------------
MANAGER:
THE VARMA GROUP, INC.
By:
-----------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇, President
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SCHEDULE 1
Managed Assets
WCH's interests as lessee under that Lease Agreement between Crescent
Real Estate Equities Limited Partnership and Wine Country Hotel, LLC, dated
November 18, 1996.
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EXHIBIT "A"
Reports
In accordance with Section 3.6, Manager shall prepare and submit to WCH the
following reports with respect to the Resort:
A. Financial Statements as required by the Lease
B. Capital Projects progress reports
C. Comparisons of actual to projected operational results and budgets
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