Exhibit 10.14(c)
SECOND AMENDMENT TO
AGREEMENT OF LIMITED LIABILITY LIMITED PARTNERSHIP
OF
SBR-FORTUNE ASSOCIATES, LLLP
This Second Amendment ("SECOND AMENDMENT") to the Agreement of Limited
Liability Limited Partnership of SBR-FORTUNE ASSOCIATES, LLLP, dated as of
January 17, 2005 as amended by that certain First Amendment to Agreement of
Limited Liability Limited Partnership of SBR-Fortune Associates, LLLP dated as
of February 25, 2005 (collectively, the "EXISTING AGREEMENT") is made effective
as of March 2, 2005 by and among the General Partner (as such term is defined in
the Existing Agreement) and Limited Partners (as such term is defined in the
Existing Agreement).
WITNESSETH:
WHEREAS, the General Partner and Limited Partners are all of the parties to
the Existing Agreement; and
WHEREAS, the General Partner and Limited Partners desire to amend the
Existing Agreement as provided below and, except as otherwise provided below,
intend that the Existing Agreement shall remain in full force and effect.
NOW THEREFORE, in consideration of the agreements and obligations set forth
herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the General Partner and Limited
Partners hereby agree as follows:
1. The foregoing recitals are hereby acknowledged to be true and accurate
and are incorporated herein by this reference. Unless otherwise provided herein
all terms appearing in initial capitalized letters shall have the meanings
ascribed to them in the Existing Agreement.
2. The following definitions shall be added to Section 1.1 and to the
extent a term below appears in Section 1.1 of the Existing Agreement, such
definition shall be replaced with the following:
"CURRENT OPERATING EXPENDITURES: The expenditures of the Partnership for
each Fiscal Year, or part thereof, arising from the ordinary course of the
Partnership's business, including, without limitation, the following:
(1) general operating expenses including, but not limited to,
insurance, taxes, assessments, architectural, engineering,
permitting, legal, accounting and other professional fees,
Deferred Fees, marketing, construction and any other expenses
expended on behalf of the Partnership in relation to its business
operation, but excluding the Hotel Shutdown Payments;
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(2) payments of principal and interest upon indebtedness of the
Partnership entered into in accordance with the terms of this
Agreement including Designated Expense Item Loans but excluding
Default Financings;
(3) establishment of appropriate reserves for debt service, capital
improvements and repairs, to provide working capital or any other
contingency of the Partnership;
(4) expenses incurred in connection with and the establishment of
reserves for the restoration of the Property resulting from the
casualty or condemnation of the Property; and
(5) defeasance, prepayment or comparable expenses or charges required
to be paid in connection with the retirement or replacement of
the Existing Indebtedness.
DESIGNATED EXPENSE ITEM LOANS: Shall have the meaning as set forth in
Section 5.6.
DESIGNATED EXPENSE ITEMS: Shall have the meaning as set forth in Section
5.6.
EXCESS FINANCING COSTS: Shall mean the sum of (a) that portion of the
interest expense of the Partnership for each period in which the drawn down
portion of the Non-Construction Loan Indebtedness exceeds the sum of (I)
Thirty-Nine Million Dollars ($39,000,000.00) and (II) the Incremental
Indebtedness, and which interest portion is attributable to such excess,
plus (b) the portion of the costs incurred in connection with obtaining,
negotiating and closing all Non-Construction Loan Indebtedness which are
either (I) agreed by the Partners, or (II) in the absence of such an
agreement, equal to the product of (i) all such costs described in clause
(b) incurred by the Partnership as a result of such Non-Construction Loan
Indebtedness (but only to the extent such costs would not otherwise have
been incurred had the Non-Construction Loan Indebtedness not been in excess
of the Indebtedness Threshold), and (ii) a fraction, the numerator of which
is the excess of [(x) the total Non-Construction Loan Indebtedness, over
(y) the sum of (I) Thirty-Nine Million Dollars ($39,000,000.00) and (II)
the Incremental Indebtedness] and the denominator of which is the total
Non-Construction Loan Indebtedness.
EXISTING REALTY CLAIMS: Those claims which are so defined in the Realty
Purchase Agreements.
INCREMENTAL INDEBTEDNESS: The principal amount of indebtedness incurred by
the Partnership (other than Designated Expense Item Loans), and interest
thereon, to pay (i) Realty Insurance Premiums, (ii) all sums necessary to
remove and satisfy Existing Realty Claims, and (iii) all sums necessary to
remove and satisfy New Non-Seller Realty Claims.
INDEBTEDNESS THRESHOLD: Shall mean the sum of (i) Forty-Five Million
Dollars ($45,000,000.00), and (ii) the Incremental Indebtedness.
NEW NON-SELLER REALTY CLAIMS: Those claims which are so defined in the
Realty Purchase Agreement.
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NON-CONSTRUCTION LOAN INDEBTEDNESS: The aggregate of the Bridge Loan and
any other indebtedness secured by a mortgage or mortgages encumbering the
Property and incurred by the Partnership prior to the closing of the
Construction Loan. In no event may the principal amount of the
Non-Construction Loan Indebtedness outstanding at any time and from time to
time exceed the sum of (i) Sixty Million Dollars ($60,000,000.00) and (ii)
the Incremental Indebtedness, without the consent of Sonesta.
REALTY INSURANCE PREMIUMS: Any and all premiums paid by the Partnership
with respect to insurance policies relating to the Property and the Hotel
and the operation and use thereof, including but not limited to hazard and
liability insurance.
SONESTA ALLOCABLE EXPENSE BURDEN: An amount equal to the sum of (i) fifty
percent (50%) of the Realty Insurance Premiums, (ii) fifty percent (50%) of
the Existing Realty Claims, and (iii) one hundred percent (100%) of the
Seller Claims (as such term is defined in the Realty Purchase Agreement).
SONESTA GUARANTEED AMOUNT: An amount to be paid by the Fortune Partners to
Sonesta, if at all, immediately prior to the liquidation of the
Partnership, if, as a result of aggregate distributions made by the
Partnership to Sonesta pursuant to Section 7.1 and Section 7.2, Sonesta's
Unreturned Capital has not been reduced to equal the Sonesta Allocable
Expense Burden. In such event, the Fortune Partners shall pay to Sonesta an
amount equal to the difference, if any, between (i) the amount Sonesta
would have received pursuant to Sections 7.1 and 7.2 if the Existing
Indebtedness had been satisfied by a Capital Contribution made by the
Fortune Partners, and (ii) the sum of (y) the amount actually received by
Sonesta pursuant to Sections 7.1 and 7.2, and (z) the Sonesta Allocable
Expense Burden. The operation of this definition is illustrated on SCHEDULE
SGA attached hereto."
3. Subsection 5.2(a)(ii) of the Existing Agreement is hereby amended by
deleting the present Subsection 5.2(a)(ii) of the Existing Agreement and
replacing it with the following Subsection 5.2(a)(ii):
"Notwithstanding anything to the contrary contained herein, if and to the extent
that at any time prior to the closing of the Construction Loan, Fortune GP
desires to cause the Partnership to encumber the Property with indebtedness of
any kind or nature, including but not limited to the Bridge Loan, in an
aggregate principal amount in excess of the Indebtedness Threshold (such excess,
the "EXCESS INDEBTEDNESS"), as a condition to drawing down any such additional
indebtedness the Fortune Partners must contemporaneously therewith make
Additional Capital Contributions if and to the extent necessary so that the
aggregate Capital Contributions made by the Fortune Partners while such Excess
Indebtedness is outstanding is not less than the sum of (i) Thirty Million
Dollars ($30,000,000.00) and (ii) the then funded Excess Indebtedness. In no
event, however, shall the total amount of the total Non-Construction Loan
Indebtedness incurred by the Partnership prior to the closing of the
Construction Loan exceed the sum of (i) Sixty Million Dollars ($60,000,000.00)
and (ii) the Incremental Indebtedness without Sonesta's prior consent."
4. The Existing Agreement shall be amended by adding thereto the
following Section 5.6:
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"5.6 INCREMENTAL INDEBTEDNESS; DESIGNATED EXPENSE ITEMS; DESIGNATED EXPENSE
ITEM LOANS
Notwithstanding anything to the contrary contained herein, the
Partners recognize and agree that the General Partner shall seek to
obtain third party financing to pay for Realty Insurance Premiums and
to remove and satisfy all Existing Realty Claims and all New
Non-Seller Realty Claims (the "DESIGNATED EXPENSE ITEMS"). Any such
indebtedness so incurred shall constitute the "Incremental
Indebtedness." The Incremental Indebtedness need not be a separate
loan facility, rather it may be part of the Bridge Loan or the
Construction Loan. The Partners have further agreed that in the event
the General Partner is unable, at any time or from time to time, to
obtain third party financing to pay for the cost of the Designated
Expense Items, the General Partner shall notify all of the Partners of
its inability to do so and shall request that the Partners make loans
to the Partnership for their pro rata share of the then necessary cost
of the Designated Expense Items. All Partners electing to make such
loans, which shall be discretionary in all events, shall make such
loans in proportion to their Percentage Interests or in such other
proportions as they agree. All such loans shall be "DESIGNATED EXPENSE
ITEM LOANS" and shall bear interest at the lowest applicable federal
rate in effect on the date on which the Designated Expense Item Loan
is made and shall be repayable prior to any other distribution to the
Partners pursuant to Article 7; provided however that in the event
that only Sonesta, on the one hand, or either of the Fortune Partners,
on the other hand, elect to make such Designated Expense Item Loans,
such loans shall bear interest at the rate of fifteen percent (15%)
per annum compounded annually."
5. Except as and to the extent modified herein, the Existing Agreement
shall remain in full force and effect according to its terms and is hereby
ratified.
6. All of the terms and conditions herein contained shall be binding upon
and inure to the benefit of the parties and their respective successors and
assigns.
7. This Second Amendment shall be governed by Florida law.
8. The Second Amendment may be executed in one or more counterparts, each
of which shall be deemed an original but all of which together will constitute
one and the same instrument. Counterparts received by facsimile shall be treated
the same as originals.
[SIGNATURE PAGE FOLLOWS.]
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IN WITNESS WHEREOF, the parties have executed the Second Amendment as of
the day and year provided above.
GENERAL PARTNER:
FORTUNE KB GP, LLC, a Florida limited liability
company
By: Fortune International Management, Inc., Manager
By: /S/
----------------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: President
LIMITED PARTNERS:
FORTUNE KB, LLC, a Florida limited liability
company
By: Fortune International Management, Inc., Manager
By: /S/
----------------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: President
SONESTA BEACH RESORT LIMITED
PARTNERSHIP, a Delaware limited partnership
By: Florida Sonesta Corporation, a Florida
corporation
By: /S/
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Name: Xxxxx Xxxxxxxxx
Title: Vice-President
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