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EXHIBIT 10.23
Wyndham Form
ASSET MANAGEMENT AGREEMENT
MAY 21,1996
between
WYNDHAM HOTEL CORPORATION
and
PLAYHOUSE SQUARE HOTEL L.P.
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TABLE OF CONTENTS
Page
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ARTICLE 1
ENGAGEMENT OF ASSET MANAGER
Section 1.1 General Engagement . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE 2
ASSET MANAGER DUTIES
Section 2.1 Business Plans . . . . . . . . . . . . . . . . . . . . . . . 1
Section 2.2 Asset and Entity Services . . . . . . . . . . . . . . . . . 2
Section 2.3 Disposition Services . . . . . . . . . . . . . . . . . . . . 4
Section 2.4 Legal Services . . . . . . . . . . . . . . . . . . . . . . . 4
Section 2.5 Retention of Third Parties . . . . . . . . . . . . . . . . . 4
Section 2.6 Books, Records and Reports . . . . . . . . . . . . . . . . . 5
Section 2.7 Payment of Costs and Expenses . . . . . . . . . . . . . . . 5
Section 2.8 Insufficiency of Asset Revenues . . . . . . . . . . . . . . 6
ARTICLE 3
OWNER'S DUTIES
Section 3.1 Information and Cooperation . . . . . . . . . . . . . . . . 6
Section 3.2 Approval Policy . . . . . . . . . . . . . . . . . . . . . . 6
Section 3.3 Funding . . . . . . . . . . . . . . . . . . . . . . . . . . 6
ARTICLE 4
COMPENSATION
Section 4.1 Asset Management Fee . . . . . . . . . . . . . . . . . . . . 6
Section 4.2 Reimbursable Expenses . . . . . . . . . . . . . . . . . . . 7
Section 4.3 Additional Services . . . . . . . . . . . . . . . . . . . . 7
Section 4.4 Emergency Expenditures . . . . . . . . . . . . . . . . . . . 7
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ARTICLE 5
LIABILITY INSURANCE AND RISK ALLOCATION
Section 5.1 Fidelity Bond . . . . . . . . . . . . . . . . . . . . . . . 7
Section 5.2 Liability Insurance . . . . . . . . . . . . . . . . . . . . 7
Section 5.3 Evidence of Insurance . . . . . . . . . . . . . . . . . . . 8
Section 5.4 Mutual Waiver of Subrogation . . . . . . . . . . . . . . . . 8
Section 5.5 Indemnification . . . . . . . . . . . . . . . . . . . . . . 8
ARTICLE 6
TERM
Section 6.1 Term . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 6.2 Duties on Termination or Expiration . . . . . . . . . . . . 9
ARTICLE 7
MISCELLANEOUS
Section 7.1 Assignment; Change of Ownership Interest . . . . . . . . . . 10
Section 7.2 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 7.3 Number: Gender; Captions; and References . . . . . . . . . . 11
Section 7.4 Severability . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 7.5 No Waiver of Default . . . . . . . . . . . . . . . . . . . . 11
Section 7.6 Entire Agreement . . . . . . . . . . . . . . . . . . . . . . 11
Section 7.7 Competition . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 7.8 Governing Law. . . . . . . . . . . . . . . . . . . . . . . . 12
Section 7.9 Attorneys' Fees . . . . . . . . . . . . . . . . . . . . . . 12
Section 7.10 Relationship of the Parties . . . . . . . . . . . . . . . . 12
Section 7.11 Representations and Warranties . . . . . . . . . . . . . . . 12
Section 7.12 Confidentiality . . . . . . . . . . . . . . . . . . . . . . 13
Section 7.13 Liability of Owner . . . . . . . . . . . . . . . . . . . . . 13
Section 7.14 Liability of Asset Manager . . . . . . . . . . . . . . . . . 13
Section 7.15 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . 13
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LIST OF DEFINED TERMS
Page No.
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Affiliate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Asset . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Asset Management Fee . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Asset Manager . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Business Plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Disposition Fee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Effective Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Entity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Entities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Hotel Management Agreement . . . . . . . . . . . . . . . . . . . . . . . . . 2
Hotel Manager . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Indemnified Party . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Indemnifying Party . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Owner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Property Managers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Refinancing Fee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Term . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Value . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
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ASSET MANAGEMENT AGREEMENT
THIS ASSET MANAGEMENT AGREEMENT (the "Agreement"), is entered into by
PLAYHOUSE SQUARE HOTEL L.P., a Texas limited partnership (the "Owner"), and
WYNDHAM HOTEL CORPORATION, a Delaware corporation (the "Asset Manager"),
effective as of May 21, 1996 (the "Effective Date").
RECITAL
Wyndham Hotel Company LTD, a Texas limited partnership, has been providing
certain asset and entity management services for Owner. Pursuant to that
certain Formation Agreement dated as of March 10, 1996, the assets and
operations of Wyndham Hotel Company LTD will be "rolled-up", together with
other assets, into Asset Manager or its subsidiaries. Owner and Asset Manager
desire to evidence and formalize their agreements with respect to entity and
asset management services.
ARTICLE 1
ENGAGEMENT OF ASSET MANAGER
Section 1.1 GENERAL ENGAGEMENT. Owner engages Asset Manager as an
independent contractor to provide certain services described in this Agreement
relating to (i) the administration of certain aspects of Owner's legal entity
and the legal entities (whether partnerships, corporations or other business
associations) that comprise Owner (the "ENTITIES" and each an "ENTITY"); and
(ii) the acquisition, financing, administration, supervision and disposition of
the assets described in Schedule I (the "ASSETS" and each an "ASSET").
Additional Assets may be brought within the scope of this Agreement by a
supplement to Schedule I signed by the parties. Owner may from time to time
expand or reduce the scope of services to be provided hereunder and either
party, upon request of the other shall execute a schedule that properly
evidences the scope of services then being provided hereunder. The Asset
Manager shall in good faith provide the services set forth in this Agreement in
accordance with normal and prudent practices in the hotel real estate industry
and shall have the authority to take all actions necessary or appropriate to
fulfill its obligations.
ARTICLE 2
ASSET MANAGER DUTIES
Section 2.1 BUSINESS PLANS.
(1) INITIAL BUSINESS PLAN. Pursuant to the terms of a separate
agreement (the "HOTEL MANAGEMENT AGREEMENT"), Owner has engaged Wyndham
Management Corporation, a wholly owned subsidiary of Asset Manager (the "HOTEL
MANAGER") to operate and manage the Assets. The Hotel Management Agreement
provides for Owner and Hotel Manager to agree on an annual
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budget and capital plan for the operation, management and maintenance of the
Assets. In addition, Owner determines an annual business plan for the Assets
and Entities. In the event that the initial business plan for the Assets and
Entities has not yet been prepared by Owner, Asset Manager shall cooperate with
Hotel Manager to provide all services requested by Owner that are within the
scope of this Agreement to administer, preserve, protect and maintain the
Assets and Entities until the initial business plan is prepared and approved by
or on behalf of Owner.
(2) REVISIONS TO BUSINESS PLANS. To the extent requested by Owner,
Asset Manager shall cooperate with Owner and Hotel Manager in the preparation of
a revised business plan for the following year, and Owner and Asset Manager
shall cooperate so as to have a revised business plan approved by Owner (in its
sole discretion) by April 30 of the operating year to which it relates. After
approval by Owner, the revised plan shall be a "Business Plan" hereunder.
Section 2.2 ASSET AND ENTITY SERVICES. The Asset Manager will provide the
following services (subject to expansion or reduction provided in Section 1.1
above) with regard to the Assets and Entities:
(1) ACCOUNTING SERVICES. Coordinate with Hotel Manager to (i) perform all
normal and customary accounting functions for Owner's legal entity and for all
entities that comprise Owner's legal entity and maintain all necessary books
and records in connection therewith; and (ii) monitor the actual monthly income
and expenses of the Assets and Entities, collect revenues and pay operating
expenses, compare actual results to the relevant operating budgets, and report
to Owner.
(2) RISK MANAGEMENT SERVICES. Assist Owner in review of the insurable
risks of each Asset and the determination of levels of insurance coverage;
develop, administer and implement a risk management program for the Assets in
accordance with the requirements set forth in any loan documents or other legal
documents that are binding against the Assets or Entities and are provided by
Owner to Asset Manager; procure insurance coverage in accordance with Owner's
instructions; and subject to Owner's guidelines and approval, oversee the
investigation and resolution of all casualty and liability claims brought by or
against the Assets or Entities.
(3) TAX SERVICES. Prepare all state and federal income tax returns for
Owner and, to the extent requested by Owner, for those constituent ownership
entities that comprise Owner; review existing assessed valuations of Assets for
ad valorem tax purposes and implement appropriate plans to reduce assessed
valuations, where appropriate; coordinate with Hotel Manager all sales tax
filings and state unemployment tax filings; and coordinate with Owner and Hotel
Manager and oversee any challenges, disputes and audits of any income, sales or
unemployment taxes.
(4) CONSTRUCTION MANAGEMENT SERVICES. Upon Owner's request and in
accordance with Owner's direction and guidelines, Asset Manager shall supervise
the performance of all renovation, improvement, repair, and other construction
work with regard to the Assets and shall, as Owner's agent, engage such
architects, engineers, contractors, managers, and other parties as may be
necessary to accomplish the same.
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(5) REPAIR, MAINTENANCE, AND ALTERATION REVIEW. Inspection of the Assets
and, in accordance with the Business Plan and at Owner's request,
implementation of any alterations, construction, redemption, renovation, or
repairs that are necessary or desirable to preserve, maintain, or enhance the
value of the Assets.
(6) REGULATORY COMPLIANCE REVIEW. Assist Owner (if requested) in (a)
reviewing Assets to assure compliance with applicable governmental regulations
(including environmental regulations and the Americans With Disabilities Act);
(b) subject to Owner's budgetary constraints, implementing a program to bring
any non-complying Assets into compliance with applicable regulations; and (c)
implementing a program to monitor continuing compliance with governmental
regulations.
(7) FINANCING SERVICES. From time to time, if requested by Owner, Asset
Manager shall act as Owner's agent in financing or refinancing indebtedness
with respect to the Assets. Asset Manager shall:
(a) monitor existing financing;
(b) negotiate and finalize existing financing renewals as required;
(c) monitor and negotiate any equity partner requirements on behalf of
Owner;
(d) negotiate any required refinancing of Assets; and
(e) negotiate any required restructuring/workout of existing financing
(debt or equity).
Although Asset Manager shall make recommendations to Owner concerning terms
and conditions of any financing or refinancing and the lender(s) to provide
the same and shall negotiate the terms thereof and shall assist in
consummating the transactions, Owner shall have the sole authority to
execute the requisite agreements therefor.
Section 2.3 DISPOSITION SERVICES. Upon Owner's request and in accordance
with Owner's direction and guidelines, Asset Manager shall act as Owner's agent
in the disposition of any Assets in accordance with the terms and provisions
contemplated by the Business Plan. Asset Manager shall be primarily responsible
for negotiating disposition agreements and for consummating approved
dispositions within Owner's guidelines, but Owner shall have the sole authority
to approve the final terms of such dispositions and to execute agreements
therefor.
Section 2.4 LEGAL SERVICES. Asset Manager is authorized to engage
attorneys and other advisors (including, without limitation, Asset Manager's
in-house legal staff) as necessary to provide legal services in connection with
the day-to-day operation of the Assets and Entities, including enforcement of
contracts; review of contracts, leases, and other documents; maintenance of the
Entities; and implementing and defending legal actions. Notwithstanding the
foregoing, except for insured litigation, Asset Manager shall be entitled to
make recommendations
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to Owner regarding the initiation or defense of litigation affecting the Assets
and/or the Entities, but Owner shall have the sole authority to control and
direct such litigation.
Section 2.5 RETENTION OF THIRD PARTIES. Asset Manager is authorized and
empowered, as Owner's agent but subject to the terms and restrictions of this
Agreement, to engage and enter into contracts with third parties to provide the
services referred to in this Article 2, and may delegate performance of its
duties to third parties, including the Hotel Manager. Such contracts shall be
on such terms as Asset Manager approves, provided the same are in compliance
with the Business Plan. Without limiting the generality of the foregoing, the
services of third parties which may be engaged include property management
services, ad valorem tax services, brokerage services, surveyors, title
services, data processing services, construction management services, marketing
and market study services, engineering services, environmental consulting
services, legal services and architectural services. Asset Manager shall not
engage or enter into a contract with an Affiliate (defined below) unless the
compensation payable to the Affiliate for such services does not exceed that
which would be payable to a comparably qualified third party service provider
that is not affiliated with Asset Manager. For the purposes of this Agreement,
an "Affiliate" of any person shall mean any other person that is directly or
indirectly controlling, controlled by, or under common control with that
person, where the term "control" means the possession, directly or indirectly,
of the actual power to direct the affairs of the controlled person.
Section 2.6 BOOKS, RECORDS AND REPORTS.
(1) BOOKS AND RECORDS. Asset Manager shall maintain at its principal
place of business, or at such other location as it may reasonably designate, a
complete and accurate set of files, books and records of all business
activities and operations conducted by Asset Manager with respect to the
Assets. All financial records shall be kept in accordance with sound accounting
principles and practices, with such modifications as Owner may request or
approve. During the Term (defined below) and during the one (1) year period
following the expiration or termination of this Agreement, Owner and its duly
authorized agents may, at reasonable times, examine, inspect, audit, and copy
Asset Manager's books, records, files, and reports pertaining to the Assets.
(2) MONTHLY REPORTS. Asset Manager shall make available to Owner,
within 20 days after the end of each calendar month, reports detailing the
operations of the Assets which shall be in the format specified in Schedule
2.6(b).
(3) QUARTERLY REPORTS. Asset Manager shall make available to Owner,
within 45 days after the end of each calendar quarter, reports detailing the
operations of the Assets which shall be in the format specified in Schedule
2.6(c).
(4) ANNUAL REPORTS. Asset Manager shall, within ninety (90) days
after the end of each calendar year, make available to Owner the following
reports and statements, having been prepared in accordance with sound
accounting principles (as modified at Owner's request and with Owner's
approval):
(a) a balance sheet and statements of income and expenses as
of the end of such year; and
(b) a cash flow statement for such year.
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(5) OTHER REPORTS. Asset Manager shall make available to Owner reports
listed on Schedule 2.
(6) SPECIAL REPORTS. Asset Manager shall also, at Owner's expense,
provide any other reports, summaries, statements or schedules reasonably
requested by Owner.
Section 2.7 PAYMENT OF COSTS AND EXPENSES. In accordance with the
Business Plan, Asset Manager is authorized to pay out of Asset revenues all of
the costs and expenses incurred by Asset Manager in performing its duties
hereunder. Asset Manager shall maintain detailed records of all such payments
with appropriate cash and disbursement controls in compliance with Owner's
requirements.
Section 2.8 INSUFFICIENCY OF ASSET REVENUES. If the Asset revenues are
insufficient to enable Asset Manager to perform its duties, Asset Manager shall
notify Owner, specifying the amounts necessary to enable Asset Manager to
perform its duties. Owner shall fund such amounts within ten (10) days of the
receipt of Asset Manager's notice, failing which, Asset Manager shall be
released from all responsibilities for which it has not been provided
sufficient funds. Asset Manager shall not be obligated to pay any expense of
Owner with Asset Manager's funds to discharge its duties and responsibilities
hereunder.
ARTICLE 3
OWNER'S DUTIES
Section 3.1 INFORMATION AND COOPERATION. Owner shall (1) provide Asset
Manager one copy of all files in its possession pertaining to the Assets, (2)
furnish Asset Manager with all information in Owner's possession reasonably
necessary to enable Asset Manager to perform its duties, and (3) otherwise
cooperate with, and assist Asset Manager in, performance of Asset Manager's
duties.
Section 3.2 APPROVAL POLICY. Owner has delivered to Asset Manager a list of
those parties empowered to approve matters requiring Owner's approval under
this Agreement. Owner may revise such list from time to time by delivering
written notice to Asset Manager. Owner shall cooperate with Asset Manager in
granting or withholding approvals required under this Agreement in a timely
manner. If Asset Manager seeks approval of any matter of Owner hereunder and
Owner does not respond to such request for approval within five (5) business
days following such request, then Owner shall be deemed to have disapproved the
matter in question. When seeking Owner's approval of matters hereunder, Asset
Manager shall endeavor to provide such supporting information as may be
reasonably necessary to enable Owner to evaluate the matter in question.
Section 3.3 FUNDING. Owner shall provide all funds required to enable
Asset Manager to perform its duties hereunder and for Asset Manager's
compensation.
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ARTICLE 4
COMPENSATION
Section 4.1 ASSET MANAGEMENT FEE. For performing its Asset review and
management duties, Owner shall pay to Asset Manager a fee equal to a reasonable
cost allocation of all salaries, cost and overhead of Asset Manager for the
time devoted to performing the duties and services herein described (the "ASSET
MANAGEMENT FEE"). The methodology for determining such cost allocation shall be
agreed to by Owner and Asset Manager at the time Owner prepares its Business
Plan. The Asset Management Fee shall be payable in arrears on or before the
twentieth (20th) day of each calendar quarter in respect of the services
provided during the preceding quarter and Asset Manager shall provide such
reasonable back-up information as requested by Owner.
Section 4.2 REIMBURSABLE EXPENSES. Without duplication of the items
included in the cost allocation determination for the Asset Management Fee,
Owner shall reimburse Asset Manager for all expenses incurred by Asset Manager
in performing its duties hereunder, including, without limitation, expenses of
third parties engaged pursuant to this Agreement; travel and other out-of-
pocket expenses; and filing or other fees paid to third parties. Asset Manager
shall not be reimbursed for legal fees and expenses relating to the negotiation
and preparation of this Agreement.
Section 4.3 ADDITIONAL SERVICES. If Owner requests Asset Manager to
perform services other than those required hereunder, such additional services,
if performed, shall be compensated separately on terms agreed upon by Asset
Manager and Owner prior to the performance of such services, which terms shall
not be (1) less favorable to Asset Manager than the terms under which qualified
unaffiliated persons are then performing such services for comparable
organizations, or (2) less favorable to Owner than the terms under which Owner
could obtain such services from qualified unaffiliated third persons.
Section 4.4 EMERGENCY EXPENDITURES. Subject to any restrictions set forth
in contracts binding against Owner, Asset Manager, Hotel Manager and/or the
Property, in case of an emergency, Asset Manager may make expenditures for the
preservation of the Assets, repairs to the Assets and other items without
Owner's prior written approval if, in the reasonable judgment of Asset Manager,
such expenditures are necessary to prevent damage to the Assets or to preserve
the health or safety of any person. Asset Manager shall inform Owner of any
such expenditures as soon as reasonably practicable but in no event later than
the end of the next business day succeeding the date upon which such
expenditures are made.
ARTICLE 5
LIABILITY INSURANCE AND RISK ALLOCATION
Section 5.1 FIDELITY BOND. Asset Manager shall, at Owner's expense,
maintain a blanket fidelity bond with responsible companies with broad coverage
of all officers, employees or other persons acting in any capacity with respect
to the Assets or handling funds, money, documents and papers relating to the
Assets, insuring Owner against losses including those arising
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from theft, embezzlement, fraud, or misplacement of funds, money, or documents.
The minimum coverage under any such bond shall be at least equal to the amount
specified in Schedule 5.
Section 5.2 LIABILITY INSURANCE. Asset Manager shall, at Owner's expense,
maintain comprehensive general liability, automobile liability, workers'
compensation and other insurance to protect the interests of Asset Manager and
Owner as their interests may appear in connection with the performance of this
Agreement in accordance with the coverage, amounts, and deductibles set forth
in Schedule 5 (which shall include any requirements contained in loan documents
or other legal documents binding against the Assets or the Entities of which
Owner notifies Asset Manager).
Section 5.3 EVIDENCE OF INSURANCE. Upon request, Asset Manager shall
provide to Owner certificates of insurance or other proof evidencing the
insurance coverage required under this Article 5.
Section 5.4 MUTUAL WAIVER OF SUBROGATION. Each party waives on behalf of
the insurers of such party's property any and all claims or rights of
subrogation of any such insurer against the other party hereto for loss or
damage to any property so insured.
Section 5.5 INDEMNIFICATION.
(1) PARTIES' INDEMNITIES. Subject to Section 5.4, Asset Manager shall
indemnify and defend Owner, and Owner's directors, officers and employees from
and against any and all loss, cost, damage, liability and expense, including
reasonable counsel fees, incurred by Owner, resulting from Asset Manager's
gross negligence, willful misconduct, fraud, or breach of this Agreement.
Except for the matters against which Asset Manager has afforded Owner indemnity
in accordance with the preceding sentence and subject to Section 5.4, Owner
shall indemnify and defend Asset Manager, and Asset Manager's directors,
officers and employees from and against any and all loss, cost, damage,
liability and expense, including reasonable counsel fees, incurred by Asset
Manager and resulting from Asset Manager's performance of its duties and
obligations in accordance with this Agreement, including those which arise from
Asset Manager's negligence. The provisions of this Section 5.5(l) are not in
lieu of, but are in addition to, any other rights and obligations of an
indemnified party.
(2) NOTICE. Upon receipt by any party entitled to indemnification
under Section 5.5(l) (an "Indemnified Party") of a complaint, claim or other
notice of any loss, damage or liability giving rise to a claim for
indemnification under Section 5.5(l), such Indemnified Party shall promptly
notify the party from whom indemnification is sought (the "Indemnifying Party"),
but failure to provide such Notice shall not relieve the Indemnifying Party
from its duty to indemnify unless the Indemnifying Party is materially
prejudiced by such failure and had no actual knowledge of such complaint, claim
or other notice.
(3) INDEMNIFICATION RIGHTS. With respect to any claim made or
threatened against any party for which such party is or may be entitled to
indemnification hereunder, the Indemnifying Party shall have the right, upon
reasonable prior notice, in its sole discretion and at its sole expense, but
subject to the right of any insurance company having an interest in the
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outcome of such claim to exercise any rights it may have under any applicable
insurance coverage, to (a) participate in the investigation, defense and
settlement of such claims and (b) control the defense of such claim, including
the right to designate counsel and to control all negotiations, litigation,
arbitration, settlements, compromises and appeals of any such claim, provided
that the Indemnifying Party shall have advised the Indemnified Party that such
party is entitled to be fully indemnified with respect to such claim. The
Indemnified Party and the Indemnifying Party shall cooperate and act in good
faith in the conduct of the defense of any claims to be indemnified hereunder.
(4) SURVIVAL. The terms and provisions of this Section 5.5 shall
survive the expiration or termination of this Agreement.
ARTICLE 6
TERM
Section 6.1 TERM. This Agreement shall commence on the Effective Date and
continue unless terminated by either party giving written notice of termination
to the other at least 30 days prior to the effective termination date (the
"TERM"). The Term is subject to earlier termination as provided below and shall
also end as to any particular Asset upon the disposition thereof by Owner to a
third party that is not an Affiliate.
Section 6.2 DUTIES ON TERMINATION OR EXPIRATION.
(1) ASSET MANAGER'S DUTIES. Upon termination or expiration of this
Agreement, as to any Asset or Assets, Asset Manager shall within fifteen (15)
days thereafter deliver to Owner complete copies of all books and records of
the Assets in question and all funds in possession of Asset Manager belonging
to Owner or received by Asset Manager with regard to such Assets. Asset Manager
shall also be available for a period of not less than thirty (30) days
following termination or expiration to consult with Owner concerning operation
of the Assets in question; Asset Manager shall not receive a fee for such
consultation, but shall be reimbursed for all costs incurred in connection
therewith.
(2) OWNER'S DUTIES. Owner shall, within five (5) days following the
end of the Term compensate Asset Manager for all fees and reimbursements due
hereunder through the date of termination or expiration.
ARTICLE 7
MISCELLANEOUS
Section 7.1 ASSIGNMENT; CHANGE OF OWNERSHIP INTEREST. Asset Manager may
not, without the prior written consent of Owner, assign this Agreement, and any
transfer, assignment, or other conveyance or exchange of any ownership interest
in Asset Manager, other than to an Affiliate (which is hereby permitted), shall
be considered an assignment hereunder. Asset Manager may, however, from time
to time delegate its duties to Affiliates. Subject to the foregoing, this
Agreement shall be binding upon, and inure to the benefit of, Asset Manager and
Owner and their respective successors and assigns, and all references in this
Agreement to "Asset
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Manager" and "Owner" shall include the respective successors and assigns of
such parties permitted under this Agreement.
NOTICES. Any notice provided for permitted to be given hereunder
shall be in writing and may be given by (1) depositing in the U.S. Mail,
postage prepaid and certified with return receipt requested; (2) delivery
service; or (3) facsimile transmission. Notice shall be effective upon the
earlier of refusal of receipt by addressee or actual receipt at the address of
the intended addressee. The addresses of the parties, until changed by notice
given as provided herein, shall be as follows:
Owner: c/o: Susan T. Groenteman
Crow Family Holdings
2001 Ross Avenue, Suite 3200
Dallas, Texas 75201
Telephone No. (214) 863-4265
Fax No. (214) 863-4249
Asset Manager: 2001 Bryan Street, Suite 2300
Dallas, Texas 75201
Attention: Anne Raymond
Telephone No. (214) 863-1266
Fax No. (214) 863-1262
with copy to:
Legal Department
2001 Bryan Street, Suite 2300
Dallas, Texas 75201
Telephone No. (214) 863-1000
Fax No. (214) 863-1000
Section 7.3 NUMBER: GENDER; CAPTIONS; AND REFERENCES. Pronouns, wherever
used, and whatever gender, shall include natural persons, corporations, and
associates of every kind and character and the singular shall include the
plural wherever and as often as may be appropriate. Section headings are for
convenience of reference and shall not affect the construction or
interpretation of this Agreement. Whenever the terms "hereof", "hereby",
"herein", or words of similar import are used in this Agreement, they shall be
construed as referring to this Agreement in its entirety rather than to a
particular section or provision. Any reference to a particular "section" shall
be construed as referring to the indicated section of this Agreement. The term
"including" shall mean "including, without limitation", except where the
context otherwise specifically requires.
Section 7.4 SEVERABILITY. If any term or provision of this Agreement or
the application thereof to any person or circumstance shall, to any extent, be
invalid or unenforceable, the remainder of this Agreement, or the application
of that term or provision to persons or circumstances other than those as to
which it is held invalid or unenforceable, shall not be affected
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thereby, and each term and provision of this Agreement shall be valid and
enforceable to the fullest extent permitted by law.
Section 7.5 NO WAIVER OF DEFAULT. The failure by Owner or Asset Manager
to insist upon the strict performance of any one of the terms or conditions of
this Agreement or to exercise any right, remedy or election herein contained or
permitted by law shall not constitute or be construed as waiver or
relinquishment for the future of that term, condition, right, remedy or
election, which shall continue and remain in full force and effect. All rights
and remedies that Owner or Asset Manager may have at law, in equity or
otherwise for any breach of any term or condition of this Agreement shall be
distinct, separate and cumulative rights and remedies and no one of them shall
be deemed to be in exclusion of any other right or remedy of Owner or Asset
Manager.
Section 7.6 ENTIRE AGREEMENT AND MODIFICATION. This Agreement constitutes
the entire agreement between the parties with respect to the matters herein
contained and any agreement hereafter made shall be ineffective unless made in
writing and signed by the parties hereto. No provision of this Agreement shall
be modified, waived or terminated except by an instrument in writing signed by
the party against whom such modification, waiver or termination is to be
enforced.
Section 7.7 COMPETITION. Nothing in this Agreement will prevent the Asset
Manager or Owner from, directly or indirectly, engaging in the ownership,
financing, leasing, operation, management, brokerage, development, or sale of
real property, including projects similar to the Assets and whether or not
competitive with the Assets.
Section 7.8 GOVERNING LAW. This Agreement shall be governed by and
constructed in accordance with the laws of the State of Texas.
Section 7.9 ATTORNEYS' FEES. Should either party employ attorneys to
enforce the provisions hereof or to recover damages for the breach of this
Agreement, the non-prevailing party in any such action agrees to pay the
prevailing party all reasonable costs, damages and expenses, including
reasonable attorneys' fees, expended or incurred by the prevailing party in
connection therewith.
Section 7.10 RELATIONSHIP OF THE PARTIES. The relationship of Owner and
Asset Manager shall be that of principal and agent, and nothing contained in
this Agreement, nor any acts of the parties shall create the relationship of a
partnership or a joint venture, or cause the Asset Manager to be responsible in
any way for the debts or obligations of Owner or any other party.
Section 7.11 REPRESENTATIONS AND WARRANTIES.
(1) ASSET MANAGER. Asset Manager represents and warrants to Owner that
(a) Asset Manager is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware, and has all requisite power
and authority to carry on its business as now conducted and to execute, deliver
and perform this Agreement; (b) the execution, delivery
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and performance by Asset Manager of this Agreement is within its power, has
been authorized by all necessary corporate action and does not contravene any
provision of its organizational documents; (c) this Agreement has been duly
executed and delivered by a person authorized to do so on Asset Manager's
behalf, and (d) this Agreement constitutes the valid and binding obligation of
Asset Manager.
(2) OWNER. Owner represents and warrants to Asset Manager that (a)
Owner is a limited partnership, duly organized and validly existing under the
laws of the State of Texas, and has all requisite power and authority to carry
on its business as now conducted and to execute, deliver and perform this
Agreement; (b) the execution, delivery and performance by Owner of this
Agreement is within its power, has been authorized by all necessary partnership
action and does not contravene any provision of its organizational documents;
(c) this Agreement has been duly executed and delivered by a person authorized
to do so on Owner's behalf; and (d) this Agreement constitutes the valid and
binding obligations of Owner.
Section 7.12 CONFIDENTIALITY. Owner and Asset Manager shall keep
confidential all information obtained by one from the other in connection with
this Agreement. The parties shall not disclose such information to any person
(other than their respective agents, representatives and legal counsel), unless
specifically authorized in writing by the other party or if disclosure is
required by subpoena, court order, judicial decree, or law, or is otherwise
required to enable Asset Manager to perform its duties. This confidentiality
obligation shall not be binding on any party with respect to information in the
public domain or information that enters the public domain through no fault of
that party. The provisions of this Section 7.12 shall survive the expiration or
termination of this Agreement.
Section 7.13 LIABILITY OF OWNER. Asset Manager shall look solely to
Owner's interest in the Assets and Entities subject to this Agreement at the
time any such claim accrued for recovery of any judgment or claim against Owner
relating or arising out of this Agreement, and Owner, its partners, officers,
directors, shareholders, agents and representatives shall not be liable
otherwise for any claim of Asset Manager arising out of or relating to this
Agreement.
Section 7.14 LIABILITY OF ASSET MANAGER. Owner shall look solely to Asset
Manager's corporate assets for recovery of any judgment or claim against Asset
Manager relating or arising out of this Agreement, and Asset Manager's
officers, employees, directors, shareholders, agents and representatives shall
not be liable for any claim of Owner arising out of or relating to this
Agreement.
Section 7.15 COUNTERPARTS. This Agreement may be executed in a number of
counterparts, each of which shall be deemed an original and all of which shall
constitute one and the same Agreement.
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Executed as of the day and year first above written.
OWNER: PLAYHOUSE SQUARE HOTEL L.P.
By: Playhouse Partners LP, its general partner
By: Playhouse Square Corporation, its
general partner
By: /s/ ERIC A. DANZIGER
-----------------------------------------------
Name: Eric A. Danziger
---------------------------------------------
Title: Vice President
--------------------------------------------
ASSET MANAGER: WYNDHAM HOTEL CORPORATION,
A DELAWARE CORPORATION
By: /s/ ERIC A. DANZIGER
-----------------------------------------------
Name: Eric A. Danziger
---------------------------------------------
Title: Vice President
--------------------------------------------
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SCHEDULE 2
OWNERSHIP ACCOUNTING AND REPORTING REQUIREMENTS
* Monthly and Quarterly Tax and Legal Processing
* Quarterly Capital Transaction Report
* Annual Accrual Financial Statements
* Asset Reserve Estimation as needed
* Quarterly Pool Cash Forecast for Real Estate Operations
* Annual Database Update
* Annual Budgetary Process
* Annual Tax Return Preparation
* Quarterly Estimate of Crow Equity and Liability
* Monthly EAB cash report and, where applicable, mortgage payment
cash flow reporting
* Annual valuation of each Crow Asset on the Estimated Value Balance
Sheet (EVBS) Basis
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LIST OF SCHEDULES
Schedule 1 Assets List
Schedule 2.2 Form of Business Plan
Schedule 2.11(b) Form of Monthly Report
Schedule 2.11(c) Form of Quarterly Report
Schedule 5 List of Insurance Coverage
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SCHEDULE 2.11(b)
FORM OF MONTHLY REPORT
BALANCE SHEET See Schedule 2.11(c)
INCOME STATEMENT See Schedule 2.11(c)
CASHFLOW STATEMENT See Schedule 2.11(c)
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SCHEDULE 2.11(c)
FORM OF QUARTERLY REPORT
BALANCE SHEET ATTACHED
INCOME STATEMENT ATTACHED
CASHFLOW STATEMENT ATTACHED
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SCHEDULE 5
LIST OF INSURANCE COVERAGE
FIDELITY BOND $
LIABILITY INSURANCE $
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SCHEDULE A
The Company has entered into Asset Management Agreements identical to
the Asset Management Agreement filed as Exhibit 10.23 with the following
parties:
1. Asset Management Agreement dated May 21, 1996 between Wyndham Hotel
Corporation and Waterfront Hotel Associates.
2. Asset Management Agreement dated May 21, 1996 between Wyndham Hotel
Corporation and Novi Garden Hotel Associates.
3. Asset Management Agreement dated May 21, 1996 between Wyndham Hotel
Corporation and Atlanta Midtown Associates.
4. Asset Management Agreement dated May 21, 1996 between Wyndham Hotel
Corporation and Pleasanton Garden Hotel Associates.
5. Asset Management Agreement dated May 21, 1996 between Wyndham Hotel
Corporation and Itasca Hotel Company.
6. Asset Management Agreement dated May 21, 1996 between Wyndham Hotel
Corporation and CLC Limited Partnership.
7. Asset Management Agreement dated May 21, 1996 between Wyndham Hotel
Corporation and Houston Greenspoint Hotel Associates.
8. Asset Management Agreement dated May 21, 1996 between Wyndham Hotel
Corporation and CFP Riverfront.
9. Asset Management Agreement dated May 21, 1996 between Wyndham Hotel
Corporation and MTD Associates.
10. Asset Management Agreement dated May 21, 1996 between Wyndham Hotel
Corporation and Hotel Bel Age Associates.
11. Asset Management Agreement dated May 21, 1996 between Wyndham Hotel
Corporation and Franklin Plaza Associates.
12. Asset Management Agreement dated May 21, 1996 between Wyndham Hotel
Corporation and Bristol Hotel Associates.
13. Asset Management Agreement dated May 21, 1996 between Wyndham Hotel
Corporation and Hotel & Convention Center Partners XI.
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14. Asset Management Agreement dated May 21, 1996 between Wyndham Hotel
Corporation and Hotel & Convention Center Partners X.
15. Asset Management Agreement dated May 21, 1996 between Wyndham Hotel
Corporation and Hotel & Convention Center Partners IX.
16. Asset Management Agreement dated May 21, 1996 between Wyndham Hotel
Corporation and Hotel & Convention Center Partners VIII.
17. Asset Management Agreement dated May 21, 1996 between Wyndham Hotel
Corporation and Hotel & Convention Center Partners VII.
18. Asset Management Agreement dated May 21, 1996 between Wyndham Hotel
Corporation and Hotel & Convention Center Partners VI.
19. Asset Management Agreement dated May 21, 1996 between Wyndham Hotel
Corporation and Hotel & Convention Center Partners V.
20. Asset Management Agreement dated May 21, 1996 between Wyndham Hotel
Corporation and Hotel & Convention Center Partners IV.
21. Asset Management Agreement dated May 21, 1996 between Wyndham Hotel
Corporation and Hotel & Convention Center Partners III.
22. Asset Management Agreement dated May 21, 1996 between Wyndham Hotel
Corporation and Hotel & Convention Center Partners II.
23. Asset Management Agreement dated May 21, 1996 between Wyndham Hotel
Corporation and Hotel & Convention Center Partners I.
24. Asset Management Agreement dated May 21, 1996 between Wyndham Hotel
Corporation and WHC-LG Hotel Associates LP.
25. Asset Management Agreement dated May 21, 1996 between Wyndham Hotel
Corporation and Crow Los Patios, Ltd.
26. Asset Management Agreement dated May 21, 1996 between Wyndham Hotel
Corporation and Crow Exchange, Inc.
27. Asset Management Agreement dated May 21, 1996 between Wyndham Hotel
Corporation and Beverly Heritage Associates.