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EXHIBIT 10.23
FIRST AMENDMENT TO MANAGEMENT AGREEMENT
THIS FIRST AMENDMENT TO MANAGEMENT AGREEMENT (this "Amendment") is
entered into as of the 1st day of January, 1993, by and between MASTER ENDLESS
ESCAPE CLUB, a Texas non-profit corporation ("Master Club"), and ASCENSION
RESORTS, LTD., a Texas limited partnership ("Manager").
R E C I T A L S:
WHEREAS, the Master Club and Manager entered into a certain Management
Agreement as of the 28th day of March, 1990, (the "Management Agreement"), for
purposes of Manager providing management services to the Master Club and
certain Resorts, as designated in the Management Agreement (the "Resorts"); and
WHEREAS, the Master Club and Manager now desire to amend the provisions
of paragraph 7 of the Management Agreement to further limit the compensation
payable to Manager under the Management Agreement and to amend certain other
provisions of the Management Agreement;
NOW, THEREFORE, for and in consideration of TEN AND NO/100 DOLLARS
($10.00), and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Master Club and Manager hereby
agree as follows:
A. Paragraph 7 of the Management Agreement is hereby deleted in its
entirety and replaced with the following new paragraph 7:
7. Compensation to Manager. As compensation for Manager's
services hereunder, Manager is entitled to retain for its own
account during each calendar year during the term of this
Agreement an amount equal to the lesser of (a) fifteen percent
(15%) of the Gross Revenues (as defined hereinbelow) for the year
or (b) the amount by which the Gross Revenues for the year exceed
the total of (i) all accrued expenses of any kind whatsoever
("Expenses") incurred by the Resorts during the year (exclusive
of any fees paid or payable to the Master Club by the Resorts)
and incurred by the Master Club during the year in performing its
duties and obligations under the Master Club Agreement and (ii)
the total of all unpaid Shortfalls for any preceding years
commencing after December 31, 1992 (as defined hereinbelow). If
in any year commencing after December 31, 1992, the compensation
paid to Manager pursuant to this Agreement (exclusive of any
amounts for prior Shortfalls) does not equal fifteen percent
(15%) of the Gross Revenues for the year then an additional
amount equal to the difference between (x) 15% of the Gross
Revenues for such year and (y) the amount of compensation
actually paid to Manager (exclusive of any amounts for prior
Shortfalls) for such year (the "Shortfall") shall be payable to
Manager in any subsequent year or years in which the Gross
Revenues for such year or years are more than sufficient to pay
all Expenses and all prior unpaid Shortfalls, until such
Shortfall is fully paid out of such excess Gross Revenues. As
used herein, the term Gross Revenues shall mean the amount of all
dues, assessments, late charges and any other amounts accrued by
Manager from the members of the Club pursuant to paragraph 4(a)
hereinabove, plus (ii) the amount of income generated by the
Resorts and accrued by Manager pursuant to paragraph 4(b)
hereinabove.
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Such accruals shall be determined by Manager in its reasonable
discretion using its normal accounting practices. The amount
payable hereunder to Manager shall be paid in approximately equal
monthly installments throughout the year based on the annual
budget of the Master Club, as adjusted from time to time
throughout the year, with final adjustments being made as of
December 31 of the year to determine the exact amount due and
payable to Manager for the year under the preceding provisions.
After such final adjustments are made, any balance due Manager
shall be promptly paid, and any overpayment shall be promptly
repaid by Manager.
B. Prior to the effective date of this Amendment, Manager was owed
the sum of $400,719.05 as of December 31, 1992, for unpaid compensation
under the then terms of the Management Agreement. The Master Club and
Manager agree that such amount shall be paid to Manager during 1993,
that such amount shall be in addition to the compensation otherwise
payable to Manager for 1993 under restated Paragraph 7, above, and that
such amount shall not be treated as compensation or as a Shortfall for
purposes of such restated Paragraph 7.
C. Except as expressly amended hereby, the original terms and
conditions of the Management Agreement are hereby ratified and confirmed
by the Master Club and Manager. This Amendment inures to the benefit
of, and is binding upon, the Master Club and Manager and their
respective successors, legal representatives and assignees.
D. This Amendment may be signed in any number of counterparts, each
of which shall be an original, with the same effect as if the signatures
thereto and hereto were up on the same instrument, and all such
counterparts shall be deemed one in the same instrument.
EXECUTED the 28th day of December, 1993.
MASTER CLUB:
MASTER ENDLESS ESCAPE CLUB,
a Texas non-profit corporation
By: /s/ XXXXXX X. XXXXXXXXX
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Its: President
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MANAGER:
ASCENSION RESORTS, LTD., a Texas
limited partnership
By: ASCENSION CAPITAL CORPORATION,
a Texas corporation,
General Partner
By: /s/ XXXXXX X. XXXX
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Its: Chief Executive Officer
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