EXHIBIT 10.17
MANAGEMENT SERVICES AGREEMENT
THIS MANAGEMENT SERVICES AGREEMENT (the "Agreement") is made and entered
in to this_______day of_______________________ , 2005, by and between [TRS
SUBSIDIARY], hereinafter referred to as "Owner," and Xxxx X. Xxxxxxx Management
Company, LLC, hereinafter referred to as "Management Company."
WITNESSETH:
WHEREAS, Owner holds leasehold interests in individual hotel properties,
and associated convention and banquet facilities, and/or has rights to manage
certain associated convention and banquet facilities, all as set forth and more
particularly described in Exhibit A attached hereto (each, an "Owner Property"
and collectively, the "Owner Properties"); and
WHEREAS, Management Company provides management services for certain hotel
properties and associated convention and banquet facilities directly or
indirectly owned or leased by, or under management contracts with, Xxxx X.
Xxxxxxx or his Affiliates (the "Xxxxxxx Owners"), specifically including those
properties and facilities set forth and more particularly described in Exhibit B
attached hereto (the "Existing Xxxxxxx Properties"); and
WHEREAS, the Xxxxxxx Owners or future Affiliates of Xxxx X. Xxxxxxx (which
future Affiliates shall be then considered "Xxxxxxx Owners" for purposes of this
Agreement) intend to acquire or develop additional hotel properties and
associated convention and banquet facilities in the future (which future
properties, with the Existing Xxxxxxx Properties, shall be collectively referred
to herein as the "Xxxxxxx Properties"), including, without limitation, those set
forth and more particularly described in Exhibit B (which Exhibit B shall be
updated from time to time); and
WHEREAS, Owner desires to have Management Company provide management
services for and manage and operate the Owner Properties, and Management Company
is willing to perform such services for the account of Owner on the terms and
conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the mutual promises and covenants
herein contained, Owner and Management Company agree as follows:
1. APPOINTMENT OF MANAGEMENT COMPANY AS MANAGER
1.1. Appointment as Manager of Owner Properties. Owner hereby appoints
Management Company as its sole and exclusive management company to supervise and
direct for and at the expense of Owner, the management and operation of the
Owner Properties, and Management Company hereby accepts such appointment under
the terms and conditions hereinafter set forth.
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1.2. Management Services. Owner and Management Company agree that (i) the
Management Services (as hereafter defined) for the Owner Properties shall be
performed by Management Company as described in, and the rights, obligations and
responsibilities of the parties in respect of such management services for the
Owner Properties shall be in accordance with, the terms and conditions set forth
herein and in Exhibit C attached hereto, and (ii) the portfolio management
services shall continue to be provided for the Owner Properties consistent with
past practices, and the rights, obligations and responsibilities of the Owner
and Management Company with respect to such portfolio management services shall
be as described in Exhibit D attached hereto (the "Portfolio Management
Services" and, collectively, with those services described in the foregoing
clauses (i) and (ii), referred to herein as the "Management Services").
1.3. WHI Financial Services. In connection with the transactions
contemplated by that certain Amended and Restated Transaction Agreement (the
"Transaction Agreement") among JD Holdings LLC, JQH Acquisition, LLC, Xxxx X.
Xxxxxxx, the Revocable Trust of Xxxx X. Xxxxxxx, dated December 28, 1989, as
amended and restated, and Xxxxxxx, Inc., dated June 14, 2005, (the "Formation
Transaction"), and with respect to the Owner Properties, Management Company was
assigned the interest of Xxxx X. Xxxxxxx Hotels, L.P., in that certain Letter
Agreement Re: Hotel Financial Services For Certain Hotels Owned and Operated By
Xxxx X. Xxxxxxx, Xxxx X. Xxxxxxx Hotels, Inc. or Xxxx X. Xxxxxxx Controlled
Companies (the "JQH Hotel Entities") executed March 29, 2002, by and on behalf
of Xxxxxxxxxxx & Xxxxxxx ("WHI") and the JQH Hotel Entities (as amended or
superseded, the "WHI Agreement"). Pursuant to the WHI Agreement, WHI has been
providing certain financial and accounting services to the Existing Xxxxxxx
Properties and the Owner Properties, and pursuant to the WHI Agreement as are
contemplated to be amended or superseded, continue to provide, certain financial
and accounting services for Management Company and the Xxxxxxx Properties and
the Owner Properties (collectively, the "Managed Properties"), as generally
described in Exhibit E attached hereto and as currently being provided
consistent with past practices (and as may be modified to comply with changes in
Uniform Systems of Accounts or generally accepted accounting principles), except
as Management Company, WHI and Owner shall mutually agree (the "Financial
Services"). Any changes in accounting policies with respect to the Owner
Properties are subject to the approval of Owner, in its sole discretion, except
to the extent required to comply with changes in Uniform Systems of Accounts or
generally accepted accounting principles. The actual cost and expense of WHI or
its successor providing such Financial Services for each of the Managed
Properties shall be allocated among and be an expense of Owner and the
applicable Xxxxxxx Owner, and paid directly out of gross revenues or Working
Capital (as defined in Exhibit C) of the Managed Properties of the Owner and
each Xxxxxxx Owner, as applicable. After the initial eighteen (18) month period
of this Agreement and upon sixty (60) days prior written notice to Management
Company, Owner may request a change in the entity providing the foregoing
financial services for the Owner Properties. Any replacement or successor entity
for WHI proposed by Management Company shall be subject to the prior approval of
Owner, in its sole discretion. It is expressly understood that in providing any
Portfolio Management Services to Owner with respect to the Owner Properties, WHI
shall report directly to Management Company, and based in part and in reliance
upon such reports of WHI as to the content thereof, Management Company shall
then provide appropriate certifications to Owner and its authorized
representatives for purposes of complying with any public or other reporting
requirements applicable to Owner or the Owner Properties, and any
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corresponding certifications required of Owner or its authorized representatives
as to the WHI Financial Services and the Portfolio Management Services to be
provided by Management Company.
2. TERM AND EFFECTIVE DATE
2.1. Initial Term. Management Company shall assume and commence management
of the Hotel Properties for the account of and at the expense of Owner and the
Xxxxxxx Owners, as applicable, on _____, 2005, at ______ ____ Time (the
("Effective Date"). The term of this Agreement shall commence on the Effective
Date, and shall remain and continue in full force and effect thereafter for a
period expiring and terminating on the earlier to occur of (i) such time as the
Preferred Redemption Price is paid in full to the holders of the Xxxxxxx
Preferred Units (other than the Required Holders) and (ii) such time as the
proceeds from any liquidation of Xxxx X. Xxxxxxx Hotels, L.P. (or any successor
thereto) are fully distributed in accordance with Section 13.2 of the Fourth
Amended and Restated Agreement of Limited Partnership of [Xxxx X. Xxxxxxx
Hotels], L.P., dated as of the date hereof, as amended, supplemented or
otherwise modified from time to time in accordance with its terms (the
"Partnership Agreement"). Each capitalized term used in the sentence immediately
foregoing which is not defined herein shall have the meaning accorded to such
term in the Partnership Agreement.
3. MANAGEMENT FEES AND OTHER REIMBURSEMENTS
3.1. Management Fee. As consideration for the Management Services to be
provided by Management Company for the Owner Properties, Owner agrees to pay
Management Company an annual management fee (the "Management Fee") in an amount
which shall be equal to all actual operating costs and expenses incurred by the
Management Company in the conduct of its operations and provision of the
Management Services for all the Managed Properties (the "Actual Operating
Costs"); provided, however, that in no event shall Owner be obligated to pay to
Management Company an amount in excess of the amount of management fee that
would be payable by Owner for comparable management services provided to the
Owner Properties pursuant to an arms-length transaction (the "Arms-Length Fee").
The parties acknowledge and agree that should the Management Fee (as based on
Actual Operating Costs) exceed the Arms-Length Fee, such excess shall be paid to
Management Company by the Partnership. It is understood and agreed that the
actual costs incurred by the Management Company shall include an annual salary
payable to Xx. Xxxx X. Xxxxxxx in an amount equal to, but not exceeding, Two
Hundred Thousand Dollars ($200,000.00), plus normal benefits extended to all
full-time employees of Management Company (such as health insurance, vacation,
etc.), but excluding benefits such as bonus or other incentive compensation. The
Management Fee shall be paid as incurred and no less frequently than monthly,
based on the approved monthly Central Office Budget (as hereafter defined), plus
any Permitted Additional Costs (as defined below). It is agreed that the monthly
budget amount and corresponding installments shall be adjusted to take into
account any timing differences in costs incurred compared to actual budget, and
other Central Office Budget adjustments as provided below. For purposes of this
Agreement, an "Accounting Period" shall be currently defined as each of the four
(4) or five (5) week accounting periods occurring during the fiscal year (for a
total of twelve Accounting Periods in each fiscal year). Any costs incurred by
Management Company which are not consistent with
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the approved Central Office Budget shall not be reimbursed by Owner as part of
the Management Fee, unless (i) due to a timing adjustment as noted above, (ii)
approved by Owner, which approval shall not be unreasonably withheld so long as
such costs are reasonable and necessarily incurred costs and expenses of
providing the Management Services contemplated by this Agreement, (iii) due to
an increase in the number of Managed Properties to be managed pursuant to this
Agreement or the separate management agreements with the Xxxxxxx Owners, (iv)
due to unanticipated litigation, claims or settlements, increases in raw
material and other vendor/service provider costs (which costs shall be allocated
to and among any directly affected Managed Properties, as and when applicable
and appropriate), or (v) consisting of costs incurred on an emergency basis
which are required by a governing legal authority (including, without limitation
as may be required in connection with compliance with and performance of
Portfolio Management Services) or to avoid fines, penalties or the imminent risk
of harm or loss or damage to persons or property or, in the commercially
reasonable determination of Management Company, to otherwise avoid an adverse
financial or operational impact upon Management Company or any of the Managed
Properties (collectively "Permitted Additional Costs"). Any such approved or
permitted additional costs shall be paid by Owner or reimbursed to Management
Company as incurred consistent with receipts and other written evidence of such
actual costs incurred. The parties acknowledge and agree that Management Fees
may be drawn by and paid to Management Company from gross revenues from the
Owner Properties and Working Capital to be provided by Owner as required herein.
3.2. Group Services. Subject to the applicable Hotel Property Budgets
approved by Owner, Owner shall reimburse Management Company for certain other
services ("Group Services") as may from time to time be provided to more than
one of the Owner Properties by Management Company or Management Company's
Affiliates more efficiently than if performed at the local property level or
contracted with a third party. Group Services shall consist of the actual cost
of the services without xxxx-up or profit to Management Company or any
Affiliates, and shall include: (a) salary and employee benefit costs to the
extent such employees perform management services benefiting such Owner
Properties; (b) cost of equipment to the extent used in performing Group
Services; and (c) overhead costs of any office approved by Owner reasonably
allocated to such benefiting Owner Properties to the extent such office provides
Group Services. Costs and expenses incurred in providing Group Services shall be
allocated on a fair and equitable basis among all Managed Properties benefiting
therefrom. In addition, if equipment is installed and maintained at the
applicable Owner Properties in connection with the rendition of any Group
Services, all costs thereof will be allocated to and among such Owner
Properties, as determined by Management Company in good faith and approved by
Owner.
3.3. Allocation of Costs to Central Office or Hotel Properties. The
parties acknowledge that the management and operation of the Managed Properties
require certain Management Services that are performed as part of the central
office overhead costs of the Management Company (as contemplated by the Central
Office Budget which are to be reimbursed and paid to Manager as part of the
Management Fee), and certain Management Services and other services (such as the
WHI Agreement) that are contracted or incurred by Management Company on behalf
of or directly by the Owner, or the Xxxxxxx Owner, as the case may be, as a
direct cost of the applicable Managed Property which are to be paid or
reimbursed direct from the gross revenues of each such Managed Property, as
applicable, or from the Working Capital of Owner or the applicable Xxxxxxx
Owner, as the case may be (as
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provided below), or paid directly or reimbursed to Management Company by Owner
or the applicable Xxxxxxx Owner, as the case may be (a "Hotel Property Cost").
The parties specifically agree to the following:
a. Costs and services generated at the Hotel Property level shall be
a Hotel Property Cost, and costs and services generated out of the central
office will be central office overhead, in each case consistent with past
practices applicable to the management of the existing Hotel Properties;
it being specifically understood that the cost of all Regional Vice
Presidents shall be allocated among the applicable Managed Properties.
b. Contracted third party services, such as WHI Agreement, elevator
maintenance, etc. will be allocated among the applicable Managed
Properties, as a Hotel Property Cost.
c. No Group Services are currently provided by Management Company,
but if developed in the future such Group Services shall be allocated to
the benefiting Managed Properties on a fair and equitable basis consistent
with industry custom and practice; provided, however, it is understood and
agreed that:
(1) All departmental costs, including all employee costs
(inclusive of the employees and positions specified in Exhibit
F, as may be amended and updated), of the Legal Department and
the Finance-Accounting Department of Management Company, shall
be a central office cost and reimbursed to Management Company
in full as part of the Management Fee; however, commencing two
(2) years after the Effective Date of this Agreement, (i) such
costs shall be allocated among and charged to the Managed
Properties, Management Company (as a central office cost to be
reimbursed as part of the Management Fee) and Xxxx X. Xxxxxxx,
or any of his other Affiliates, as may be applicable, in each
case based upon actual time expended for the benefit of
individual Managed Properties, the Management Company (central
operations or otherwise for the benefit of all Owner
Properties), or Xxxx X. Xxxxxxx, or any of his other
Affiliates, as may be applicable, and (ii) to the extent such
costs are required to be allocated and charged as provided in
clause (i), above, they shall not be reimbursed to Management
Company as part of the Management Fee (except to the extent
properly allocated to the Management Company as provided in
clause (i)).
(2) All departmental costs, including employee costs
(inclusive of the employees and positions specified in Exhibit
F, as may be amended and updated), of the Architecture
Department and JQH Industries, shall not be a part of the
Central Office Budget and shall not be reimbursed by the Owner
as part of the Management Fee, even though the employees of
such departments shall be employed by Management Company;
provided, however, an applicable portion of such costs shall
be allocated and charged to an individual Managed Property
based upon time incurred for the benefit of such Managed
Property.
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(3) All departmental costs, including all employee costs of
the Design Department (inclusive of the employees and
positions specified in Exhibit F, as may be amended and
updated), shall be a central office cost and reimbursed to
Management Company in full as part of the Management Fee;
however, (i) an applicable portion of such costs shall be
allocated and charged to individual Managed Properties and
Xxxx X. Xxxxxxx, or any of his other Affiliates, as may be
applicable, in each case based upon actual time expended for
the benefit of such individual Managed Properties or Xxxx X.
Xxxxxxx, or any of his other Affiliates, as may be applicable,
and (ii) to the extent such costs are required to be allocated
and charged as provided in clause (i), above, they shall not
be reimbursed to Management Company as part of the Management
Fee.
d. Except as may otherwise be specifically provided herein, it is
the intent of the parties that (i) all management related costs and
services shall be allocated and charged to the Management Company as a
central office cost (as contemplated by the Central Office Budget or as
Permitted Additional Costs) and reimbursed to Management Company as the
Management Fee, on the one hand, and the Managed Properties as a Hotel
Property Cost, or Xxxx X. Xxxxxxx or his other Affiliates, on the other
hand, and (ii) such costs so allocated to the Managed Properties, or Xxxx
X. Xxxxxxx or his other Affiliates, shall be further allocated among and
charged to the individual Managed Properties, and Xxxx X. Xxxxxxx or his
other Affiliates, as may be applicable, in each case consistent with past
practice in connection with the management and operation of the Owner
Properties and the Existing Xxxxxxx Properties.
3.4. Management Company Central Office Budget. Exhibit G sets forth the
mutually agreed upon central office budget for Management Company, including all
categories of expenses and costs to be paid or reimbursed hereunder as the
Management Fee and Hotel Property Costs or Group Services, for the 2005 Fiscal
Year, on a pro forma basis, (the "Initial Central Office Budget"). The
Management Company will operate in accordance with the Initial Central Office
Budget through the remainder of 2005. At least sixty (60) days prior to the
beginning of each succeeding Fiscal Year of the term of this Agreement,
Management Company shall submit a month-by-month central office operating budget
covering only the management activities of Management Company with respect to
the Managed Properties ("Central Office Budget") for such year to Owner for its
approval. Owner will notify Management Company as promptly as practicable of its
approval or disapproval of such Central Office Budget, or any category thereof,
but in any event within thirty (30) days following receipt of such Central
Office Budget from Management Company. In the event that Owner does not notify
Management Company in writing within said thirty (30) day period that it does
not approve of the Central Office Budget or specified categories therein, the
proposed Central Office Budget shall constitute the approved Central Office
Budget for the forthcoming Fiscal Year. If the Central Office Budget is not
approved within such thirty (30) day period, Owner and Management Company shall
enter into good faith negotiations in an effort to determine a mutually
satisfactory and commercially reasonable Central Office Budget, and until such
Central Office Budget agreement is reached, Management Company shall perform its
obligations hereunder consistent with the actual expenditures in the prior year
for such category (which for the 2006 Fiscal Year, will be based upon the
Initial Central Office Budget instead of the actual expenditures in the
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2005 Fiscal Year), to the extent applicable, adjusted for any increase in the
applicable consumer price index and any Permitted Additional Costs (as defined
above). If Owner and Management Company cannot agree as to an approved Central
Office Budget for any Fiscal Year within thirty (30) days after entering into
such negotiations, then the disputed items shall be submitted to an arbitrator
in accordance with the provisions of Section 8.4 of this Agreement. Further, if
a Central Office Budget is approved by Owner, Management Company shall
thereafter perform its obligations hereunder in accordance with such approved
Central Office Budget and shall not make any expenditures to be reimbursed
hereunder except as may be in accordance with the approved Central Office Budget
or as permitted with respect to Permitted Additional Costs (as defined above) or
as otherwise approved by Owner or permitted herein,
4. DEFAULT, REMEDIES AND TERMINATION RIGHTS
4.1. Events of Default. Each of the following shall constitute a "Default"
under this Agreement to the extent permitted by applicable law:
a. The appointment of a receiver, trustee, or custodian for all or
any substantial part of the property of Management Company or Owner, as
the case may be, if such appointment is not set aside or vacated within
sixty (60) days.
b. The commencement by Management Company or Owner, as the case may
be, of any voluntary case or proceeding under present or future federal
bankruptcy laws or under any other bankruptcy, insolvency, or other laws
respecting debtor's rights.
c. The making of a general assignment by Management Company or
Owner, as the case may be, for the benefit of its creditors.
d. The entry against Management Company or Owner, as the case may
be, of any "order for relief" or other judgment or decree by any court of
competent jurisdiction in any involuntary proceeding against Management
Company or Owner, as the case may be, under any present or future federal
bankruptcy laws or under any other bankruptcy, insolvency, or other laws
respecting debtor's rights, if such order, judgment, or decree continues
unstayed and in effect for a period of sixty (60) consecutive days.
e. The failure of Management Company to make any payment due Owner
pursuant to this Agreement within ten (10) days after written notice that
such payment is due and unpaid.
f. The failure of Owner to provide or make available to Management
Company sufficient Working Capital to fund and pay to Management Company
the Management Fee and to operate the Owner Properties, including, without
limitation, to pay or reimburse all Hotel Property Costs and Group
Services expenses (if any), within three (3) business days after written
notice from Management Company of the need for such Working Capital in
accordance with the provisions hereof.
g. The failure of Management Company or Owner, as the case may be,
to perform, keep or fulfill any of the other material covenants,
undertakings, obligations, or conditions set forth in this Agreement, and
the continuance of such default for a period of
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thirty (30) days after notice of said failure, or if such default cannot
be reasonably cured within said thirty (30) day period, the failure of the
defaulting party to commence the cure of such default within said thirty
(30) day period or thereafter the failure to diligently pursue such
efforts to completion.
4.2. Cure Rights. Upon the occurrence of any Default by either party
(referred to as the "defaulting party") under Section 4.1, without cure within
any time period provided therein, such Default shall immediately and
automatically, without the necessity of any further notice to the defaulting
party, constitute an "Event of Default" under this Agreement.
4.3. Remedies of Management Company. Upon the occurrence of an Event of
Default by Owner, Management Company shall have the right to pursue any one or
more of the following remedies, each of which may be exercised independently or
cumulatively, at the election of Management Company: (i) suspend performance
under this Agreement as to any individual Owner Property which is the subject of
any such Event of Default, or as to the Agreement in its entirety, if
applicable, (ii) terminate this Agreement as to any individual Hotel Property
which is the subject of such default, or as to the Agreement in its entirety, if
applicable, in each case by written notice to Owner, and (iii) institute any and
all proceedings and pursue such remedies as permitted by law or equity,
including, without limitation, actions for specific performance and/or damages,
but in no event shall Owner be responsible for any indirect or consequential
damages by reason of any Event of Default hereunder. Upon the occurrence of an
Event of Default by Owner under Section 4.1.f., the amount determined due
Management Company shall accrue interest, at the rate of six percent (6%), from
and after the date on which such payment was originally due. The rights granted
hereunder shall not be in substitution for, but shall be in addition to, any and
all rights and remedies available to Management Company by reason of applicable
provisions of law or equity, or pursuant to separate agreements between the
parties or their affiliates, except as otherwise specifically provided herein.
4.4. Remedies of Owner. Upon the occurrence of an Event of Default by
Management Company, Owner shall have the right to pursue any one or more of the
following courses of action, which shall be in lieu of termination of this
Agreement in its entirety (except as provided in clause (ii), below): (i) to
terminate this Agreement with respect to such Owner Property as to which the
Event of Default occurred or applies, by written notice to Management Company,
which termination shall be effective as of the effective date which is set forth
in said notice (provided that said effective date shall be at least thirty (30)
days after the date of said notice); (ii) in the event of an Event of Default by
Management Company pursuant to any of clauses a. through d. of Section 4.1,
above, to terminate this Agreement in its entirety; and (iii) to institute any
and all proceedings permitted by law or equity, including, without limitation,
actions for specific performance and/or damages, but in no event shall
Management Company be liable for any indirect or consequential damages by reason
of any Event of Default, nor shall Owner have the right to terminate this
Agreement except as otherwise provided herein. Upon the occurrence of an Event
of Default by Management Company under Section 4.1.e, the amount determined due
Owner shall accrue interest, at the rate of six percent (6%), from and after the
date on which such payment was originally due to Owner. The rights granted
hereunder shall not be in substitution for, but shall be in addition to, any and
all rights and remedies available to Owner by reason of applicable provisions of
law or equity, or pursuant to separate agreements between the parties or their
affiliates, except as otherwise specifically provided herein.
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4.5. Owner Termination. Notwithstanding the term of this Agreement, Owner
shall have the right to terminate this Agreement on sixty (60) days prior
written notice to Management Company (i) with respect to the entire Agreement,
at any time that Xxxx X. Xxxxxxx or the JQH Trust no longer owns or controls
ninety (90%) of Management Company; (ii) with respect to an individual Owner
Property, in the event of fraudulent misconduct by or at the direction or
approval of Xxxx X. Xxxxxxx, which has a material adverse impact upon such Owner
Property, or (iii) with respect to an individual Owner Property, in the event of
gross mismanagement by Management Company following written notice by Owner to
Management Company specifying the grounds of such gross management, and the
failure of Management Company, within sixty (60) days following such written
notice, to undertake good faith steps to resolve, and to thereafter resolve any
such gross mismanagement, as applicable to such Owner Property.
4.6. Termination Upon Sale. Either Owner or Management COMPANY shall have
the right to terminate this Agreement as to any Owner Property upon the Sale of
such Owner Property (except to a Permitted Owner Affiliate); provided that any
termination by Owner shall be subject to Owner providing Management Company no
less than ninety (90) days prior written notice of such termination. "Sale"
shall have the meaning ascribed to such term in the Rights of First Refusal
Agreement executed contemporaneously herewith among Owner, Xxxx X. Xxxxxxx, the
JQH Trust, and others, except that, for purposes of this Agreement, "Sale" shall
also include (i) any exchange transaction intended to be tax-exempt under
Section 1031 of the Internal Revenue Code with respect to any Owner Property,
and (ii) any foreclosure sale by a secured lender to a third party unaffiliated
with such secured lender or Owner or any Affiliate of Owner.
4.7. Damage or Destruction. In the event any of the Owner Properties are
damaged or destroyed from any cause to an extent which materially and adversely
affects the operation of such Owner Properties as a hotel, and Owner elects not
to rebuild the Owner Properties, or Owner fails (subject to unreasonable delays
caused by Management Company, including unreasonable delays in adjusting the
insurance claim with the carriers which participate in Management Company's
blanket insurance program) to timely commence and complete the repairing,
rebuilding or replacement of the same so that the such Owner Properties shall be
substantially the same as it was prior to such damage or destruction, Management
Company or Owner shall each have the right to terminate this Agreement with
respect to such damaged Owner Properties upon ninety (90) days' written notice
to the other party hereto.
4.8. Eminent Domain. If all or substantially all of any of the Owner
Properties are taken in any eminent domain, condemnation, compulsory
acquisition, or similar proceeding by any competent authority for any public or
quasi-public use or purpose, this Agreement shall terminate as to such Owner
Properties as of the date Owner ceases to have the right of physical possession
of such Owner Properties. Any award for such taking or condemnation shall be
paid to Owner, except for any award that may be separately made (without
deduction or limitation of Owner's award) to Management Company with respect to
its rights under this Agreement.
4.9. Settlement and Cooperation upon Termination. In the event of any
termination or expiration of this Agreement in its entirety or as to any Owner
Property, Management Company shall be entitled to receive and be paid and
reimbursed all Management Fees and other fees and expenses accrued and unpaid
through the date of such expiration or termination. Management
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Company and Owner shall cooperate with each other to peaceably transfer to Owner
or Owner's successor Management Company, all right, title and interest of
Management Company in and to the uninterrupted operation and management of any
Owner Property as to which this Agreement is terminated
5. RELATIONSHIP AND AUTHORITY
5.1. Not Joint Venture. None of Management Company, any Xxxxxxx Owner or
Owner shall be construed as joint venturers or partners of each other, and none
shall have the power to bind or obligate the other except as set forth in this
Agreement. Management Company is now and shall at all times be an "Eligible
Independent Contractor" as defined in that certain form of TRS Lease attached to
the Transaction Agreement as Exhibit 2.1 (m).
6. NOTICES
6.1. Notices. All notices or other communications provided for or
contemplated by this Agreement shall be in writing and shall be served or
delivered by postage prepaid, registered or certified mail, by nationally
recognized overnight courier or in person, at the following address for each
party for the duration of this Agreement or any extension thereof or until such
time as written notice, as provided hereby, of a change of address and a single
new address to be used thereafter (with one copy address) is given to the other
party.
If to OWNER: IF TO MANAGEMENT COMPANY:
c/o JD Holdings LLC Xxxx X. Xxxxxxx Management Company, LLC
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx Xxxx X. Xxxxxxx, President
Xxx Xxxx, Xxx Xxxx 00000 300 Xxxx X. Xxxxxxx Parkway
Attention: Xxxxxxxx X. Xxxxxx Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxx 00000
with a copy to: with a copy to:
Xxxx Xxxxxxx LLC Xxxxxxxxx Xxxxxxx Xxxxx Xxxxxx, LLP
Three First National Plaza 000 Xx. Xxxxx Xxxxxx
00 Xxxx Xxxxxxx Xxxxxx, Xxxxx 0000 Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000 Xxxxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxx X. Xxxxxxxxx and Attn: Xxxxx X. Xxxx, Esq.
Xxxxxxxx X. Xxxxx
The receipt of such mailed notice shall be presumed to have occurred at the
location to which it was addressed seventy-two (72) hours after posting, if
mailed, on the day of delivery, if delivered in person, and one day after
delivery to such overnight courier, without regard to any refusal to accept
delivery, but such presumption shall be rebuttable.
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7. CHANGE OF OWNERSHIP
7.1. Assignment Restricted. This Agreement shall not be assignable without
the mutual consent of Management Company and Owner, except as specifically
provided herein; provided, however, that (a) Management Company shall have the
right upon ten (10) days prior written notice, without such consent, to assign
its interest in this Agreement to any of its Affiliates which is 90% or greater
owned or controlled by Xxxx X. Xxxxxxx or the Revocable Trust of Xxxx X.
Xxxxxxx, dated December 28, 1989, as amended and restated (the "JQH Trust"), and
any such Affiliate shall be deemed to be the Management Company for purposes of
this Agreement, and (b) Owner shall have the right upon ten (10) days prior
written notice, without such consent, to assign its interest in this Agreement
to a Permitted Owner Affiliate (as defined in Section 8.4, below), and any such
Permitted Owner Affiliate shall be deemed to be an Owner for purposes of this
Agreement solely with respect to the applicable Owner Property which has been
leased, assigned or otherwise transferred to such Permitted Owner Affiliate, and
not for any other purpose; provided, however, the named Owner herein shall
remain primarily and fully responsible and liable for all obligations of Owner
under and with respect to this Agreement, including, without limitation, the
obligation to make available all required Working Capital, reimbursement of
Hotel Property Costs and payment of the Management Fee. Owner shall have the
sole and exclusive right and obligation on behalf of such Permitted Owner
Affiliate to exercise any remedies, provide or withhold all approvals and
consents, and take all such other actions as an Owner, in each case under and
with respect to this Agreement. It is expressly agreed that, as a condition to
any such assignment by Owner, such Permitted Owner Affiliate shall assume and
agree to be bound by all obligations of Owner under this Agreement, as if
originally named Owner hereunder; provided that such Permitted Owner Affiliate
shall irrevocably designate and appoint Owner (acting through the Owner
Representative, as defined below) as its exclusive representative to act for and
on behalf of such Permitted Owner Affiliate and to exercise any and all of the
rights of such Permitted Owner Affiliate in all respects under this Agreement,
including, without limitation, to give and receive notices and communications,
and to take all other actions on behalf of the Permitted Owner Affiliate as
required, permitted, necessary or appropriate under this Agreement. Any
decision, act, consent or instruction taken or given by the Owner Representative
pursuant to this Agreement shall be and constitute a decision, act, approval,
consent or instruction of such Permitted Owner Affiliate, and shall be final,
binding and conclusive upon such Permitted Owner Affiliate, and Management
Company may rely upon any such decision, act, approval, consent or instruction
of the Owner Representative as being the decision, act, approval, consent or
instruction of such Permitted Owner Affiliate. Management Company is hereby
relieved from any liability to any person for any acts done by it in accordance
with such decision, act, approval, consent or instruction of the Owner
Representative. If either party consents to an assignment of this Agreement by
the other, no further assignment shall be made without the express consent in
writing of such party, unless such assignment may otherwise be made without such
consent pursuant to the terms of this Agreement.
7.2. Permitted Assignments. Notwithstanding any provision contained in
this Agreement, the collateral assignment of this Agreement by Owner as security
for any mortgage securing the Owner Properties, subject to the provisions of
Section 2.3 of Exhibit C regarding efforts to obtain a Non-Disturbance Agreement
is permitted without the consent of the Management Company.
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8. GENERAL PROVISIONS
8.1. Designated Owner Representative. Owner shall irrevocably designate in
writing and appoint one or more individuals as its exclusive representative(s)
("Owner Representative") to act for and on behalf of Owner and any Permitted
Owner Affiliate and to exercise any of the rights of Owner and any such
Permitted Owner Affiliate in all respects under this Agreement, including,
without limitation, to give and receive notices and communications, and to take
all other actions on behalf of Owner and any Permitted Owner Affiliate as
necessary or appropriate under this Agreement. The Owner Representative may be
replaced by Owner from time to time upon not less than thirty (30) days' prior
written notice to Management Company. Any decision, act, approval, consent or
instruction taken or given by the Owner Representative pursuant to this
Agreement shall be and constitute a decision, act, approval, consent or
instruction of Owner and all Permitted Owner Affiliates, and shall be final,
binding and conclusive upon Owner and each such Permitted Owner Affiliate, and
Management Company may rely upon any such decision, act, approval, consent or
instruction of the Owner Representative as being the decision, act, approval,
consent or instruction of Owner and each Permitted Owner Affiliate. Management
Company is hereby relieved from any liability to any person for any acts done by
it in accordance with such decision, act, approval, consent or instruction of
the Owner Representative.
8.2. Modification; Counterparts. Any change or modification of this
Agreement must be in writing signed by both parties hereto. This Agreement may
be executed in one or more counterparts, each of which shall be deemed an
original. The captions for each Section are intended for convenience only.
8.3. Public or Private Offerings. Neither Owner nor Management Company (as
an "issuing party") shall make reference to the other party (the "non-issuing
party) or any of its Affiliates in any prospectus, private placement memorandum,
offering circular or offering documentation related thereto (collectively
referred to as the "Prospectus"), issued by the issuing party, unless the
non-issuing party has received a copy of all such references. In no event will
the non-issuing party be deemed a sponsor of the offering described in any such
Prospectus, nor will it have any responsibility for the Prospectus, and the
Prospectus will so state. The issuing party shall be entitled to include in the
Prospectus an accurate summary of this Agreement but shall not include any
proprietary xxxx of the non-issuing party without prior written consent of the
non-issuing party. The issuing party shall indemnify, defend and hold the
non-issuing party and its Affiliates (and their respective directors, officers,
shareholders, employees and agents) harmless from and against all loss, costs,
liability and damage (including attorneys' fees and expenses, and the cost of
litigation) arising out of any Prospectus or the offering described therein.
8.4. Definition of Affiliates. "Affiliate" shall mean any individual or
entity, directly or indirectly through one or more intermediaries, controlling,
controlled by, or under common control with a party. The term "control," as used
in the immediately preceding sentence, means the possession, directly or
indirectly, of the power to direct or cause the direction of the management or
policies of the controlled entity, whether by reason of membership, ownership of
voting stock, partnership interests, by contract or otherwise. A "Permitted
Owner Affiliate" shall include either (i) an individual or entity to whom an
Owner Property is leased or subleased,
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and which individual or entity is an Affiliate of Owner, or (ii) an entity to
which title to an Owner Property is sold or otherwise transferred, and which
entity is directly or indirectly owned 50% or more (in terms of voting
securities or other voting ownership or partnership interest) by the Partnership
or the entity which controls the Partnership; provided that in the case of each
of clause (i) and (ii), such entity shall be deemed a Permitted Owner Affiliate
only so long as (x) the foregoing tests continue to be met, as applicable, and
(y) such Permitted Owner Affiliate expressly assumes in writing all the
liabilities and obligations of Owner hereunder with respect to the applicable
Owner Property.
8.5. Arbitration of Disputes. Any arbitration proceeding required under
this Agreement shall be a rapid streamlined arbitration proceeding held in a
neutral city, but in any event not more than fifteen 15 days after a request for
arbitration is made hereunder. The arbitration proceeding shall be (i) held in a
mutually agreed upon neutral city, or absent such agreement, then such other
location as may be designated by a court of competent jurisdiction upon
application of either party (the "Arbitration Location"), and (ii) conducted in
accordance with the rules of the American Arbitration Association, but not under
the authority of that Association. The arbitration shall be conducted by any
arbitrator who is a partner at a nationally recognized accounting firm with a
national hospitality practice involving hotels or other lodging facilities of
the same type and in the same general geographical area as the Owner Properties,
or any other person with experience in the matter or matters to be arbitrated,
mutually selected by Owner and Management Company. If Owner and Management
Company are unable to agree upon an arbitrator in accordance herewith, then such
arbitrator shall be chosen by a judge of the state or federal courts located in
the Arbitration Location, upon application by either or both parties to such
court.] If the dispute submitted to arbitration hereunder has to do with one or
more categories in a proposed Hotel Property Budget for the Owner Properties (as
defined in Exhibit C) for one or more of the Owner Properties, or the Central
Office Budget, then the arbitrator's authority shall be expressly limited to
determining the disputed category presented to the arbitrator, and whether the
costs of arbitration are to be allocated to one of the parties, or shared among
the parties, equally or otherwise, and the arbitrator shall have no other power
or authority of any kind whatsoever. The decision of the arbitrator shall be
binding upon the parties, and neither party shall have the right to appeal any
such decision (except in the case of manifest error). Notwithstanding any
provision of this Agreement to the contrary, arbitration shall not be the
exclusive remedy of the parties with respect to, and nothing herein shall
preclude either party hereunder from seeking any judicial remedy with respect
to, any Event of Default or any dispute involving this Agreement, except for
such budget and employee claim issues as specifically provided in this
Agreement.
8.6. Governing Law. The interpretation and construction of this Agreement
and (unless otherwise expressly provided herein) all amendments hereof and
waivers and consents hereunder shall, to the extent the particular subject
matter is controlled by state law, be governed by and be construed in accordance
with the substantive law of the State of Delaware, without regard to the
conflicts of laws principles thereof.
8.7. Waiver of Jury Trial. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY
CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE
COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE IT HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES ANY RIGHT IT MAY
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HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY
ARISING OUT OF OR RELATING TO THIS AGREEMENT AND ANY OF THE AGREEMENTS DELIVERED
IN CONNECTION HEREWITH OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. EACH
PARTY CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE, AGENT OR ATTORNEY
OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER
PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE SUCH WAIVERS, (B)
IT UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF SUCH WAIVERS, (C) IT MAKES
SUCH WAIVERS VOLUNTARILY AND (D) IT HAS BEEN INDUCED TO ENTER INTO THIS
AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS
SECTION 8.6.
8.8. Jurisdiction; Service of Process. Any action or proceeding seeking to
enforce any provision of, or based on any right arising out of, this Agreement
shall be brought against any of the parties only in the Courts of the State of
Delaware or, if it has or can acquire jurisdiction, in the United States
District Court for the District of Delaware, and each of the parties consents to
the exclusive jurisdiction of such courts (and of the appropriate appellate
courts) in any such action or proceeding and waives any objection to venue laid
therein. Process in any action or proceeding referred to in the preceding
sentence may be served on any party anywhere in the world.
[SIGNATURE PAGE FOLLOWS.]
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IN WITNESS WHEREOF, the parties hereto have duly executed and delivered
this Agreement on the day and date first above written.
OWNER
[NAME OF OWNER]
By:_____________________________________
Name:___________________________________
Title:__________________________________
XXXX X. XXXXXXX MANAGEMENT COMPANY, LLC
By:_____________________________________
Xxxx X. Xxxxxxx, President
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