EXHIBIT 10.13
CORPORATE OVERHEAD FEE AGREEMENT
This CORPORATE OVERHEAD FEE AGREEMENT (this "Agreement") is entered into
as of ______________, 2005, by and between Xxxx X. Xxxxxxx Hotels, L.P., a
Delaware limited partnership (the "Partnership"), and JQH Acquisition LLC, a
Delaware limited liability company (the "Manager").
WHEREAS, the Manager is specially skilled in financial, strategic
planning, management consulting and other management skills and services;
WHEREAS, the Partnership wishes to obtain the benefit of the experience of
the Manager and its knowledge of the Partnership and the Partnership's financial
affairs in particular;
WHEREAS, the Manager is willing to make such skills available and to
provide such services to the Partnership on the terms and conditions hereinafter
set forth;
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual
promises hereinafter set forth, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the Partnership
and the Manager, intending to be legally bound, do hereby agree as follows:
1. Engagement. The Partnership hereby engages the Manager for the Term (as
hereinafter defined) and upon the terms and conditions herein set forth to
provide consulting and management advisory services to the Partnership or any of
its subsidiaries, as reasonably requested from time to time by the Partnership
(the "Services"). The Services will be in the field of financial, strategic
planning, management consulting services and such other management areas as the
Manager and the Partnership shall mutually agree. In consideration of the
compensation to the Manager specified herein, the Manager accepts such
engagement and agrees to perform the Services.
2. Term. The engagement hereunder shall be for a term commencing as of the
date hereof and expiring on the Liquidation Completion Date, as such term is
defined in the Third Amended and Restated Partnership Agreement of the
Partnership (the "Term"). The expiration of the Term of this Agreement shall not
affect the Partnership's obligations pursuant to Section 4 with respect to any
portion of the Management Fee (as defined below) payable to the Manager that is
not paid by the Partnership as of the expiration of the Term.
3. Services to be Performed. The Manager shall devote reasonable time and
efforts to the performance of the Services. However, no precise number of hours
is to be devoted by the Manager on a weekly or monthly basis. The Manager may
perform the Services directly, through its employees or agents, or with such
outside consultants as the Manager may engage for
such purpose. The Partnership acknowledges that the Services to it will not be
exclusive, and that the Manager and its affiliates may render similar services
to other persons.
4. Management Fee. In consideration of the Manager's services hereunder,
the Partnership shall pay to the Manager an aggregate annual fee (the
"Management Fee") equal to $1,000,000, which Management Fee shall be paid to the
Manager by the Partnership in equal monthly installments of $83,333.33 per
month. Such Management Fee is to be paid in cash monthly in arrears on the first
day of each calendar month.
5. Indemnification. In addition to its agreements and obligations under
this Agreement, the Partnership agrees to indemnify and hold harmless the
Manager and its affiliates (including its officers, directors, managers,
members, employees and agents) from and against any and all claims, liabilities,
losses and damages (or actions in respect thereof) as and when incurred by the
Manager or any such other indemnified person, in any way related to or arising
out of the performance by the Manager of the Services, and to reimburse the
Manager and any other such indemnified person for reasonable out-of-pocket legal
and other expenses as and when incurred by any of them in connection with or
relating to investigating, preparing to defend, or defending any actions, claims
or other proceedings (including any investigation or inquiry) arising in any
manner out of or in connection with the Manager's performance under this
Agreement (whether or not such indemnified person is a named party in such
proceeding); provided, however, that the Partnership shall not be responsible
under this Section 5 for any claims, liabilities, losses, damages or expenses to
the extent that they are finally judicially determined (in an action in which
the Manager is a party) to result from actions taken by the Manager (or such
other indemnified person) due primarily to the Manager's (or such other
indemnified person's) gross negligence or willful misconduct.
6. Notices. Any notice, report or payment required or permitted to be
given or made under this Agreement by any party shall be deemed to have been
duly given or made if personally delivered, transmitted via facsimile or, if
mailed, when mailed by registered or certified mail, postage prepaid, to the
other party at the following addresses or facsimile numbers (or at such other
address or facsimile number as shall be given in writing by one party to the
other):
If to the Manager:
JQH Acquisition LLC
Carnegie Hall Tower
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx X. Xxxxxx
Fax No.: (000) 000-0000
Confirmation No.: (000) 000-0000
2
With a copy to:
Xxxx Xxxxxxx LLC
Three First National Plaza
41st Floor
00 Xxxx Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxx X. Xxxxxxxxx, Esq.
Fax No.: (000) 000-0000
Confirmation No.: (000) 000-0000
If to the Partnership:
________________________
________________________
________________________
________________________
Attention:__________________
Fax No.: __________________
Confirmation No.:___________
With a copy to:
________________________
________________________
________________________
________________________
Attention:__________________
Fax No.:____________________
Confirmation No.:___________
3
7. Modifications. This Agreement constitutes the entire agreement between
the parties hereto with regard to the subject matter hereof, superseding all
prior understandings and agreements whether written or oral. This Agreement may
not be amended or revised except by a writing signed by the parties.
8. Successors and Assigns. This Agreement shall be binding upon and inure
to the benefit of the parties and their respective successors and assigns, but
may not be assigned by any party without the prior written consent of the other
parties hereto.
9. Captions. Captions have been inserted solely for convenience of
reference and in no way define, limit or describe the scope or substance of any
provision and shall not affect the validity of any other provision.
10. Governing Law. This Agreement will be governed by the laws of the
State of Delaware, without regard to conflicts of laws principles.
11. Jurisdiction; Services 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.
12. 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 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 12.
13. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which, when
taken together, shall constitute one and the same instrument.
* * * * *
4
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the date first above written.
JQH ACQUISITION LLC
By: _____________________________
Name:
Title:
XXXX X. XXXXXXX HOTELS, L.P.
By: _____________________________
Name:
Title:
