1
EXHIBIT 10.6(c)
Wyndham Form
SERVICE AGREEMENT
MAY 21, 1996
between
WYNDHAM HOTEL CORPORATION
and
CW SYNERGISTECH, LP
2
TABLE OF CONTENTS
Page
----
ARTICLE I
ENGAGEMENT OF SERVICE MANAGER
Section 1.1 General Engagement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE 2
SERVICE MANAGER DUTIES
Section 2.1 Business Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 2.2 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 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 Service Fee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 4.2 Reimbursable Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 4.3 Additional Services 7
Section 4.4 Emergency Expenditures . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
3
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 Service Manager . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 7.15 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
ii
4
LIST OF DEFINED TERMS
Page No.
-------
Affiliate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Entities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 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
Service Management Fee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Service Manager . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Term . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Value . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
iii
5
SERVICE AGREEMENT
THIS SERVICE AGREEMENT (the "Agreement"), is entered into by CW
SYNERGISTECH, LP, a Texas corporation (the "Owner"), and WYNDHAM HOTEL
CORPORATION, a Delaware corporation (the "Service Manager"), effective as of
May __, 1996 (the "Effective Date").
RECITAL
Wyndham Hotel Company LTD, a Texas limited partnership, has been
providing certain services for Owner. Pursuant to that certain Formation
Agreement dated as of March 10, 1996, the Entities and operations of Wyndham
Hotel Company LTD will be "rolled-up", together with other Entities, into
Service Manager or its subsidiaries. Owner and Service Manager desire to
evidence and formalize their agreements with respect to these services.
ARTICLE 1
ENGAGEMENT OF SERVICE MANAGER
Section 1.1 GENERAL ENGAGEMENT. Owner engages Service Manager as an
independent contractor to provide certain services described in this Agreement
relating to the administration and servicing 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"). Owner and Service Manager may from time to time agree to 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 Service Manager shall in good
faith provide the services set forth in this Agreement in accordance with
normal and prudent practices and shall have the authority to take all actions
necessary or appropriate to fulfill its obligations.
ARTICLE 2
SERVICE MANAGER DUTIES
Section 2.1 ENTITY SERVICES. The Service Manager will provide
the following services with regard to the Entities:
(1) ACCOUNTING SERVICES. (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 Entities, collect revenues and pay operating expenses,
compare actual results to the relevant operating budgets,
and report to Owner.
1
6
(2) RISK MANAGEMENT SERVICES. Assist Owner in review of the
insurable risks of each Entity and the determination of
levels of insurance coverage; develop, administer and
implement a risk management program for the Entities;
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
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; prepare all sales tax filings and state
unemployment tax filings; and coordinate with Owner and
oversee any challenges, disputes and audits of any income,
sales or unemployment taxes.
(4) HUMAN RESOURCES. Upon Owner's request, provide Service
Manager's standard human resource services including
implementation and oversight of interview and hiring
guidelines and services; implementation and oversight of
employment policies and procedures; conduct periodic
employee reviews; and to the extent permitted by
applicable law and governmental regulations, employee
benefits in accordance with Service Manager's standard
benefits.
(5) REGULATORY COMPLIANCE REVIEW. Assist Owner (if
requested) in (a) reviewing Entities 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 Entities into compliance with applicable
regulations; and (c) implementing a program to monitor
continuing compliance with governmental regulations.
(6) FINANCING SERVICES. From time to time, upon Owner's
request and in accordance with Owner's business plan,
Service Manager shall act as Owner's agent in financing or
refinancing indebtedness with respect to the Entities.
Service 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; and
(e) negotiate any required restructuring/workout of
existing financing (debt or equity).
Although Service 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
2
7
negotiate the terms thereof and shall assist in consummating the
transactions, Owner shall have the sole authority to execute the
requisite agreements therefor.
Section 2.4 LEGAL SERVICES. Service Manager is authorized to engage
attorneys and other advisors (including, without limitation, Service Manager's
in-house legal staff) as necessary to provide legal services in connection with
the day-to-day operation of the Entities, including enforcement of contracts;
review of contracts, leases, and other documents; maintenance of the Entities;
and implementing and defending legal actions.
Section 2.5 RETENTION OF THIRD PARTIES. Service Manager is authorized
and empowered, as Owner's agent, 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 Service Manager's
subsidiaries and affiliates. Such contracts shall be on such terms as Service
Manager approves, provided the same are in compliance with Owner's budget and
guidelines. Without limiting the generality of the foregoing, the services of
third parties which may be engaged include tax services, brokerage services,
data processing services, consulting services, and legal services. Service
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 Service 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. Service 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 Service Manager with respect to
the Entities. 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 Service Manager's books, records, files, and reports pertaining
to the Entities.
(2) MONTHLY REPORTS. Service Manager shall make available to
Owner, within 20 days after the end of each calendar month, reports detailing
the operations of the Entities which shall be in the format specified in
Schedule 2.6(b).
(3) QUARTERLY REPORTS. Service Manager shall make available to
Owner, within 45 days after the end of each calendar quarter, reports detailing
the operations of the Entities which shall be in the format specified in
Schedule 2.6(c).
3
8
(4) ANNUAL REPORTS. Service 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.
(5) OTHER REPORTS. Service Manager shall make available to
Owner reports listed on Schedule 2.
(6) SPECIAL REPORTS. Service 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. Service Manager is
authorized to pay out of Entity revenues all of the costs and expenses incurred
by Service Manager in performing its duties hereunder. Service 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 REVENUES. If the Entity revenues are
insufficient to enable Service Manager to perform its duties, Service Manager
shall notify Owner, specifying the amounts necessary to enable Service Manager
to perform its duties. Owner shall fund such amounts within ten (10) days of
the receipt of Service Manager's notice, failing which, Service Manager shall
be released from all responsibilities for which it has not been provided
sufficient funds. Service Manager shall not be obligated to pay any expense of
Owner with Service 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 Service Manager one copy of all files in its possession pertaining to
the Entities and their respective operations, (2) furnish Service Manager with
all information in Owner's possession reasonably necessary to enable Service
Manager to perform its duties, and (3) otherwise cooperate with, and assist
Service Manager in, performance of Service Manager's duties.
Section 3.2 APPROVAL POLICY. Owner has delivered to Service
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 Service Manager. Owner shall cooperate with
Service Manager in granting or withholding approvals required under this
Agreement in a timely manner. If Service 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 approved the matter in question.
4
9
When seeking Owner's approval of matters hereunder, Service 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
Service Manager to perform its duties hereunder and for Service Manager's
compensation.
ARTICLE 4
COMPENSATION
Section 4.1 SERVICE FEE. For performing its servicing and
administration duties, Owner shall pay to Service Manager a fee equal to a
reasonable cost allocation of all salaries, cost and overhead of Service
Manager for the time devoted to performing the duties and services herein
described (the "SERVICE FEE"). The Service 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.
Section 4.2 REIMBURSABLE EXPENSES. Without duplication of the items
included in the cost allocation determination for the Service Fee, Owner shall
reimburse Service Manager for all expenses incurred by Service 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. Service
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 Service Manager to
perform services other than those required hereunder, such additional services,
if performed, shall be compensated separately on terms agreed upon by Service
Manager and Owner prior to the performance of such services, which terms shall
not be (1) less favorable to Service 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. In case of an emergency, Service
Manager may make expenditures for the protection and preservation of the
Entities, without Owner's prior written approval if, in the reasonable judgment
of Service Manager, such expenditures are necessary to prevent damage or
material diminution in value to the Entities or to preserve the health or
safety of any person. Service 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. Service Manager shall, at Owner's expense,
maintain a blanket fidelity bond with responsible companies with broad coverage
of all officers, employees or
5
10
other persons acting in any capacity with respect to the Entities or handling
funds, money, documents and papers relating to the Entities, insuring Owner
against losses including those arising 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. Service Manager shall, at Owner's
expense, maintain comprehensive general liability, automobile liability,
workers' compensation and other insurance to protect the interests of Service
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.
Section 5.3 EVIDENCE OF INSURANCE. Upon request, Service 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, Service
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 Service Manager's gross negligence, willful misconduct, fraud,
or breach of this Agreement. Except for the matters against which Service
Manager has afforded Owner indemnity in accordance with the preceding sentence
and subject to Section 5.4, Owner shall indemnify and defend Service Manager,
and Service Manager's directors, officers and employees from and against any
and all loss, cost, damage, liability and expense, including reasonable counsel
fees, incurred by Service Manager and resulting from Service Manager's
performance of its duties and obligations in accordance with this Agreement,
including those which arise from Service 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
6
11
its sole expense, but subject to the right of any insurance company having an
interest in the 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 Entity upon the transfer of majority
ownership therein by Owner to a third party that is not an Affiliate.
Section 6.2 DUTIES ON TERMINATION OR EXPIRATION.
(1) SERVICE MANAGER'S DUTIES. Upon termination or expiration
of this Agreement, as to any Entities, Service Manager shall within fifteen
(15) days thereafter deliver to Owner complete copies of all books and records
of the Entities in question and all funds in possession of Service Manager
belonging to Owner or received by Service Manager with regard to such Entities.
Service 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 Entities in question; Service 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 Service 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. Service 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 Service Manager, other than to an Affiliate (which is hereby
permitted), shall be considered an assignment hereunder. Service 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,
Service Manager and
7
12
Owner and their respective successors and assigns, and all references in this
Agreement to "Service 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: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Crow Family Holdings
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telephone No. (▇▇▇) ▇▇▇-▇▇▇▇
Fax No. (▇▇▇) ▇▇▇-▇▇▇▇
Service Manager: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
Telephone No. (▇▇▇) ▇▇▇-▇▇▇▇
Fax No. (▇▇▇) ▇▇▇-▇▇▇▇
with copy to:
Legal Department
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telephone No. (▇▇▇) ▇▇▇-▇▇▇▇
Fax No. (▇▇▇) ▇▇▇-▇▇▇▇
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
8
13
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 Service
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 Service 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 Service
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
Service 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 Entities and
whether or not competitive with the Entities.
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
Service 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 Service 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) SERVICE MANAGER. Service Manager represents and
warrants to Owner that (a) Service 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,
9
14
delivery and performance by Service 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 Service
Manager's behalf, and (d) this Agreement constitutes the valid and binding
obligation of Service Manager.
(2) OWNER. Owner represents and warrants to Service Manager
that (a) Owner is a corporation, 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 Service 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 Service 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. Service Manager shall look solely to
Owner's interest in the 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 Service Manager arising out of or relating to this Agreement.
Section 7.14 LIABILITY OF SERVICE MANAGER. Owner shall look solely to
Service Manager's corporate Entities for recovery of any judgment or claim
against Service Manager relating or arising out of this Agreement, and Service
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.
10
15
Executed as of the day and year first above written.
OWNER: CW SYNERGISTECH, LP,
A TEXAS CORPORATION
By CW Synergistech I, Inc.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------
Title: Secretary
---------------------
SERVICE MANAGER: WYNDHAM HOTEL CORPORATION,
A DELAWARE CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------
Title: Vice President
-------------------
11
16
SCHEDULE 2
----------
OWNERSHIP ACCOUNTING AND REPORTING REQUIREMENTS
-----------------------------------------------
o Monthly and Quarterly Tax and Legal Processing
o Quarterly Capital Transaction Report
o Annual Accrual Financial Statements
o Reserve Estimation as needed
o Quarterly Pool Cash Forecast for Operations
o Annual Database Update
o Annual Budgetary Process
o Annual Tax Return Preparation
o Quarterly Estimate of Crow Equity and Liability
o Monthly EAB cash report and, where applicable,
mortgage payment cash flow reporting
o Annual valuation of each Crow Entity on the
Estimated Value Balance Sheet (EVBS) Basis
12
17
LIST OF SCHEDULES
Schedule 1 Entities 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
13
18
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)
14
19
SCHEDULE 2.11(c)
FORM OF QUARTERLY REPORT
BALANCE SHEET ATTACHED
INCOME STATEMENT ATTACHED
CASHFLOW STATEMENT ATTACHED
15
20
SCHEDULE 5
LIST OF INSURANCE COVERAGE
FIDELITY BOND $
LIABILITY INSURANCE $
16
