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EXHIBIT 10.13
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 RoseStar Southwest, LLC, a Delaware limited liability company
("RoseStar Southwest"), and The Varma Group, Inc. ("Manager").
RECITALS
A. Manager and RoseStar Southwest entered into an Asset
Management Agreement dated as of May 1, 1996 (the "Original 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 "Hotels") under long-term
lease agreements (the "Leases") with the respective owners of those properties
(the "Owners"). Each of the Hotels is operated by hotel management operators
("Operators") under long-term operation or management agreements ("Management
Agreements"). RoseStar Southwest entered into the Original Southwest
Management Agreement to obtain the services of a company with principals
qualified and experienced in asset and hotel management and supervision of the
Operators, in order to fulfill RoseStar Southwest's obligations under the
Leases and to assure proper supervision and management of RoseStar Southwest's
interests as lessee under the Leases.
B. Manager and RoseStar Management LLC ("RoseStar"), the parent
of RoseStar Southwest, 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.
C. RoseStar Southwest and Manager mutually desire to modify
certain terms of the Original Southwest Management Agreement and to restate the
modified agreement between RoseStar Southwest and Manager as set forth below.
D. Manager and Wine Country Hotel, LLC ("WCH") entered into an
Asset Management
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Agreement dated as of November 19, 1996 (the "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 with the owner of
that property (the "Resort Owner"). The Resort is operated by a management
Operator under a long-term operation or management agreement.
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.
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 RoseStar Southwest agree to amend and restate the Original RoseStar
Southwest Management Agreement as follows:
ARTICLE 1
APPOINTMENT
1.1 Appointment to Manage Specific Assets and Supervise Hotel
Management.
(a) RoseStar Southwest hereby appoints Manager as
exclusive manager of the assets of RoseStar Southwest listed in
Schedule 1 attached hereto, including its interests under the Leases,
and in connection therewith (i) to perform, to direct the performance
of, or to supervise the performance of RoseStar Southwest's
obligations under the Leases, (ii) to supervise the performance of the
Operators, (iii) to promote, exercise, and protect the rights of
RoseStar Southwest under the Leases and its contracts with the
Operators, (iv) on behalf of RoseStar Southwest to deal with the
Owners and the Operators, and (v) in general to oversee, preserve,
protect, supervise, maintain, promote and utilize RoseStar Southwest's
assets associated with or relating to the Hotels. In carrying out its
duties, Manager (provided Manager shall have been provided by RoseStar
Southwest the funding required of it under this Agreement) shall
endeavor to assure that the Hotels are operated in an efficient and
businesslike manner consistent with the standard, status and character
of the Hotels as first class hotel properties, that revenues and net
income from operation of the Hotels 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 RoseStar Southwest's Hotel properties.
(b) During the Management Period RoseStar Southwest at
its discretion may offer to Manager the opportunity to manage the
assets of one or more other
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hospitality properties (each a "Hospitality Property") hereafter
acquired (by purchase or lease) by RoseStar Southwest or a subsidiary
of RoseStar Southwest, 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 RoseStar Southwest.
(c) Nothing herein shall be construed to prohibit Manager
from entering into, and RoseStar Southwest is aware that Manager may
enter into, asset management agreements with owners and operators or
lessees of other hotel or resort properties.
1.2 Authority and Power. RoseStar Southwest hereby authorizes
Manager, subject to Section 3.3, to exercise such powers with respect to the
Leases, the Management Agreements and the interests and assets of RoseStar
Southwest 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 RoseStar Southwest in all matters pertaining to the Leases
or the Management Agreements.
1.3 Independent Contractor. In performing its obligations
hereunder, Manager shall be an independent contractor. Neither RoseStar
Southwest 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
RoseStar Southwest and Manager or to create any contractual relationship
between RoseStar Southwest 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
RoseStar Southwest.
1.4 Representation by Manager. Manager represents and warrants to
RoseStar Southwest 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 Hotel Assets Generally. Subject to Section 3.3,
Manager, on behalf of RoseStar Southwest, shall implement, or cause to be
implemented, the decisions of RoseStar Southwest with respect to the Leases,
the Management Agreements and the Hotels; shall direct the performance of
RoseStar Southwest's obligations under the Leases and the Management
Agreements; and shall supervise the performance by the Operators of their
respective obligations under the Management Agreements; including, without
limitation: (a) formulating policies, strategies and tactics for carrying out
RoseStar Southwest's duties under the Leases; (b) reviewing and supervising the
performance by Operators of their respective contractual obligations to
RoseStar Southwest with respect to the Hotels; (c) assembling, organizing and
maintaining records of the Hotels' operations and activities; (d) maintaining
permits and licenses required of RoseStar Southwest and necessary for the
leasing of the Hotels; and (e) inspecting the Hotels to assure compliance by
the Operators with their respective Management Agreements.
3.2 Management of Hotel 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 RoseStar Southwest, obtain all licenses,
permits, consents, and approvals ("Governmental Approvals") from any
applicable governmental authorities and agencies necessary for
RoseStar Southwest as lessee of the Hotels;
(b) after consultation with RoseStar Southwest, obtain all consents
and approvals ("Private Approvals") from any applicable associations,
persons and other parties holding rights of consent and approval
necessary for RoseStar Southwest as lessee of the Hotels;
(c) deliver to RoseStar Southwest operating and capital budgets
("Operating and Capital Budgets") for the Hotels pursuant to Section
3.7;
(d) prepare and submit to RoseStar Southwest upon its request (but not
more frequently than monthly) written progress reports in form
acceptable to RoseStar Southwest and reflecting significant
developments affecting or relating to the Hotels and a comparison
between budgeted and actual operations, all for the periods requested
by RoseStar Southwest;
(e) consult with RoseStar Southwest on all matters requiring Approval
of RoseStar Southwest under or pursuant to Section 3.3 or elsewhere in
this Agreement;
(f) permit RoseStar Southwest to inspect and audit records of Manager
pertaining to the Hotels and consult with Manager on matters
pertaining to the Hotels;
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(g) coordinate, be responsible for, and, where necessary, assist
RoseStar Southwest in obtaining or recovering payment for all credits,
reimbursables or other funds payable to RoseStar Southwest in
connection with the Leases;
(h) advise RoseStar Southwest with respect to and with RoseStar
Southwest's Approval implement, any challenge to the tax rates or
assessments on or pertaining to the Hotels; and
(i) comply with the Leases and the Management Agreements, including
without limitation taking or causing Operators to take all actions in
management of the Hotels as are required to be taken and refraining
from taking any action that would cause RoseStar Southwest to breach
or be in default of either Lease or Management Agreement.
3.3 Approval of RoseStar Southwest Required. Manager shall not
have authority or exercise power to take any of the following actions without
first obtaining RoseStar Southwest's written approval or consent ("Approval";
an action shall be "Approved" if Approval has been granted), which may be given
or withheld in RoseStar Southwest's sole discretion and judgement: (a) apply
for, modify or renew a Governmental Approval and Private Approval, if RoseStar
Southwest 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 either Hotel, a personal obligation of any
member of RoseStar Southwest, or an obligation of RoseStar Southwest involving
more than $25,000, (c) xxx, 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, RoseStar Southwest's Approval shall be deemed to have been given
as to any action for which Manager shall have requested Approval in writing if
RoseStar Southwest shall have neither given nor denied Approval within 20 days
after its actual receipt of such written request.
3.4 For RoseStar Southwest's Account. The services of Manager in
performing its duties and providing services pursuant to this Agreement shall
be for the account of RoseStar Southwest. Except for costs and obligations
otherwise provided herein to be paid or borne by Manager, RoseStar Southwest
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 RoseStar Southwest agrees to provide all funding
reasonably necessary for Manger to perform its asset management services under
this Agreement; but without RoseStar Southwest'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 RoseStar
Southwest's assets or to protect RoseStar Southwest's rights under the Leases
or its contracts with the Operators, then Manager shall take such actions and
incur such reasonably necessary expenses and expenditures for the account of
RoseStar Southwest, without undue delay, as Manager deems necessary under the
circumstances; but Manager shall furnish RoseStar Southwest a complete
reporting of such actions and expenses as promptly as practicable.
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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
RoseStar Southwest with respect to the proper protection of and accounting for
the Hotel properties of RoseStar Southwest. 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 RoseStar Southwest 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 either Hotel as reasonably required to protect
RoseStar Southwest's assets from theft, error or fraudulent activity.
(a) Manager shall provide reports with respect to each
Hotel as set forth in Exhibit A and such other reports as RoseStar
Southwest may from time to time request.
(b) All financial statements and reports will be prepared
in accordance with accounting principles established by RoseStar
Southwest; if RoseStar Southwest 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) RoseStar Southwest or its representatives may, at any
time, conduct examinations of the books and records maintained for
RoseStar Southwest by Manager. RoseStar Southwest 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 RoseStar Southwest subject,
however, to RoseStar Southwest's indemnification rights. All books and
records shall be preserved throughout the Management Period, upon
termination of this Agreement shall be promptly delivered to RoseStar
Southwest, and shall at all times remain the exclusive property of
RoseStar Southwest.
3.7 Budgets. Manager shall for each calendar year review, analyze,
and critique the Operating and Capital Budgets prepared by the respective
Operators and submit to RoseStar Southwest a report thereon together with
Manager's recommendations thereon. The proposed Operating and Capital Budget
shall be presented to RoseStar Southwest as required by the terms of the
Management Agreements.
3.8 Bank Accounts. Manager shall make timely deposits of cash
receipts of RoseStar Southwest in operating accounts, in banks designated by
RoseStar Southwest. At all times the funds deposited shall be the sole and
exclusive property of RoseStar Southwest 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.
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3.9 Collection of Income. Manager shall use diligent efforts to
collect all income and payments due to RoseStar Southwest from operations of
the Hotels.
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 RoseStar Southwest of any known violation of any federal, state,
municipal or other governmental law, ordinance, rule or regulation due to the
structure, condition or operation of the Hotels or the activities therein.
Manager shall obtain and maintain all permits and licenses required for
RoseStar Southwest's lease of the Hotels. Manager shall not in performance of
its services hereunder knowingly violate, and shall comply in all material
respects with the terms of, the Leases, Management Agreements, mortgages, deeds
of trust or other security instruments binding on RoseStar Southwest or
affecting the Hotels. 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 RoseStar Southwest and await RoseStar Southwest'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
RoseStar Southwest on account of any matter connected with either Hotel,
Manager shall give RoseStar Southwest all information in its possession in
respect thereof, and shall assist and cooperate with RoseStar Southwest 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 RoseStar Southwest or the Hotels provided to it is and will
continue to be the exclusive property of RoseStar Southwest 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 RoseStar Southwest, 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 RoseStar
Southwest 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 RoseStar Southwest to
terminate this Agreement for cause.
3.14 Personal Performance Requirement. This Agreement is based on
the special skill and ability of Sanjay and Xxxxxxx Xxxxx, 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
Xxxxxxx Xxxxx each covenants to RoseStar Southwest 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
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RoseStar Southwest, and Xxxxxxx Xxxxx (and in her absence, Xxxxxx Xxxxx) shall
devote the substantial majority of her professional time and efforts to the
Manager's business.
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. RoseStar Southwest shall add Manager to
RoseStar Southwest'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 $330,000 (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, RoseStar Southwest 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; RoseStar
Southwest shall pay the remaining balance of the August Management Fee
by September 5, 1997.
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(b) In the event of the termination, for any reason, of
either or both of the Leases, then RoseStar Southwest shall have the
right to substitute in place of the terminated Lease any other lease
of another hotel or resort property (but the Management Fee, as
adjusted pursuant to Section 5.1(a), shall not be affected by
termination of any of the Leases or by the substitution in place of a
terminated Lease of a lease of another hotel or resort property).
5.2 Bonuses. Not less frequently than each anniversary date of
this Agreement, RoseStar Southwest shall give due and fair consideration to
determining whether Manager's performance under this Agreement and the
resulting financial benefits to RoseStar Southwest merit, in RoseStar
Southwest'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 $41,800 per year that its personnel incur in accordance
with this Agreement in travel to and from the Hotels in performing its services
hereunder. RoseStar Southwest 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 RoseStar Southwest for Cause. RoseStar
Southwest 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 either Hotel, and which is not cured within 20 days after
written demand by RoseStar Southwest to Manager (provided, that RoseStar
Southwest shall not be required to give Manager an opportunity to cure if in
RoseStar Southwest's good faith judgment its rights or interests are likely to
be materially prejudiced by delay). In addition, RoseStar Southwest 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
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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 Xxxxxx Xxxxx and Xxxxxxx Xxxxx,
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 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 RoseStar Southwest terminates this Agreement under Subsection (b)
above based upon the death, disability and/or incapacity of the Varmas, then
RoseStar Southwest shall pay Manager the Termination Fee (as calculated in
Section 6.2).
6.2 Termination by RoseStar Southwest Without Cause. In addition
to the termination rights set forth in Section 6.1, this Agreement may be
terminated by RoseStar Southwest 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
RoseStar Southwest 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.
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6.3 Termination by Manager.
(a) Manager may at any time after the Guaranteed Date
notify RoseStar Southwest 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"). RoseStar
Southwest 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, without recourse by RoseStar Southwest except as
provided in Section 6.5(b), in the event RoseStar terminates the
Restated RoseStar Management Agreement without cause (as provided in
the Restated RoseStar Management Agreement) or WCH terminates the
Restated WCH Management Agreement without cause (as provided in the
Restated WCH Management Agreement), but Manager's right shall expire
unless exercised within 30 days following the date on which either
RoseStar terminates the Restated RoseStar Management Agreement or WCH
terminates the Restated WCH Management Agreement. In the event
RoseStar terminates the Restated RoseStar Management Agreement without
cause (as provided in the Restated RoseStar Management Agreement) or
WCH terminates the Restated WCH Management Agreement without cause (as
provided in the Restated WCH 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
RoseStar Southwest had terminated this Agreement without cause as of
the date of termination of the Restated RoseStar Management Agreement
or as of the date of termination of the Restated WCH Management
Agreement, as applicable.
(c) Manager shall have the right to immediately
terminate this Agreement, without recourse by RoseStar Southwest
except as provided in Section 6.5(b), in the event RoseStar Southwest
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 either
Hotel, and which is not cured within 20 days after written demand by
Manager to RoseStar Southwest (provided, that Manager shall not be
required to give RoseStar Southwest 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 RoseStar Southwest except as provided in Section
6.5(b), in the event RoseStar Southwest shall apply for or consent to
the appointment of a receiver, trustee, or liquidator of RoseStar
Southwest 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
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take advantage of any insolvency law, or file an answer admitting the
material allegations of a petition filed against RoseStar Southwest 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 RoseStar Southwest or appointing a receiver, trustee, or liquidator
of RoseStar Southwest 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.
6.5 Effect of Termination.
(a) Upon the termination of this Agreement, RoseStar
Southwest'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 RoseStar Southwest
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 RoseStar Southwest 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 either Hotel, either
Lease or either Management Agreement or any personal property or equipment of
either Hotel. Manager shall convey to RoseStar Southwest all books and records
pertaining to the Hotels, the Leases or Management Agreements 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 RoseStar Southwest and Manager's successor to assign contracts,
transfer management responsibilities, and otherwise to make best efforts to
assure continued asset management
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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 Hotels or their reputation and shall not
make any disparaging public remarks about the either Hotel, RoseStar Southwest,
or Manager's successor. The provisions of this Section 6.6 shall survive
termination of this Agreement.
ARTICLE 7
ASSIGNMENT
7.1 No Assignment by Manager or RoseStar Southwest. This is a
personal services contract. Manager may not assign its rights and obligations
hereunder without the prior written consent of RoseStar Southwest. RoseStar
Southwest may not assign its rights or obligations hereunder without the prior
written consent of Manager. The assignment of this Agreement by RoseStar
Southwest 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 RoseStar Southwest.
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 RoseStar Southwest in connection with the Hotels. The
Original RoseStar Southwest 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
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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, RoseStar Southwest 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 RoseStar
Southwest or either Hotel or any appeal in such action, suit or
proceeding or in any inquiry or investigation that could lead to such
an action, suit or proceeding, RoseStar Southwest 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 RoseStar Southwest, 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 either Hotel. 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 RoseStar Southwest, 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 RoseStar Southwest 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 RoseStar Southwest as
authorized hereunder.
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(c) Any such indemnification shall be made only out of
the assets of RoseStar Southwest, and in no event may Manager subject
the members, managers, officers, directors, employees, affiliates or
agents of RoseStar Southwest 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.
Despite the foregoing, RoseStar Southwest 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 RoseStar Southwest or damages caused by or
resulting from actions or omissions of RoseStar Southwest, 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 RoseStar Southwest 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 RoseStar Southwest, 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.
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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 date on which it is sent by overnight courier.
For purposes of notice, the addresses of the parties shall be:
If to RoseStar Southwest: RoseStar Southwest, LLC
Xxxx Xxxxx, Xxxxx 00000
Attention: ______________
Facsimile: ______________
If to Manager: The Varma Group, Inc.
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxxx, Xxxxx 00000
Facsimile: 000 000 0000
Attention: Xxxxxxx Xxxxx
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.
RoseStar Southwest:
ROSESTAR SOUTHWEST, LLC
By: RSSW Corp., sole managing member
By:
---------------------------------------
Its:
---------------------------------------
MANAGER:
THE VARMA GROUP, INC.
By:
---------------------------------------
Xxxxxxx Xxxxx, President
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SCHEDULE 1
Managed Assets
1. RoseStar Southwest's interests as lessee under that Amended and
Restated Lease Agreement dated January 1, 0000, xxxxxxx Xxxxxxxx Xxxx Xxxxxx
Funding II, L. P. and RoseStar Management, LLC, which subsequently assigned its
interests to RoseStar Southwest; as amended by that First Amendment dated April
1, 1996.
2. RoseStar Southwest's interests as lessee under that Lease Agreement
dated December 19, 0000 xxxxxxx Xxxxxxxx Xxxx Xxxxxx Equities Limited
Partnership (which subsequently assigned its interest to Crescent Real Estate
Equities Funding II, L. P.) and RoseStar Management, LLC (which subsequently
assigned its interest to RoseStar Southwest); as amended by that First
Amendment dated April 1, 1996 and that Second Amendment dated November 22,
1996.
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EXHIBIT "A"
Reports
In accordance with Section 3.6, Manager shall prepare and submit to RoseStar
the following reports with respect to each Hotel:
A. Financial Statements as required by the applicable Lease
B. Capital Projects progress reports
C. Comparisons of actual to projected operational results
and budgets
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