FORM OF FUTURE PAYMENTS AGREEMENT
THIS FUTURE PAYMENTS AGREEMENT (this "Agreement") dated as of
this ____ day of _____________, 1996 by and among Chartwell Canada Corp., a
Delaware corporation ("Owner"), having an office at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ 10158, Syndicated Capital Properties
Inc., an Ontario corporation ("Agent" or "Syndicated") having an office at ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ P2H 2G4, acting not
for itself but solely as nominee for the benefit of Capital Properties Limited
Partnership, an Ontario limited partnership ("CPLP"), having an office at ▇▇▇▇
▇▇▇▇▇-▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇, and CPLP.
W I T N E S S E T H:
WHEREAS, the individuals identified on Schedule A annexed hereto,
being the holders of the Class A Units and Class B Units, are the limited
partners (the "Limited Partners"), and together with Syndicated are the persons
owning all of the legal interests in CPLP and are the sole partners of CPLP;
WHEREAS, pursuant to a certain contract of sale dated as of
July___, 1996 (the "Purchase Agreement"), CPLP has sold substantially all of
its assets (the "CPLP Assets") to Owner in consideration for a sum certain
payable at closing (the "Closing Payment") and certain conditional payments
("Future Payments") as, if and when provided herein;
WHEREAS, in accordance with the terms and conditions of the
Purchase Agreement, CPLP and Syndicated have made certain representations,
warranties, covenants and agreements with Owner, the breach of which results in
certain indemnification obligations as and to the extent provided in the
Purchase Agreement;
WHEREAS, CPLP and the Limited Partners have agreed that all
Future Payments are subject to offset for the Indemnification Obligations
(hereinafter defined) as and to the extent set forth herein; and
WHEREAS, the parties hereto have agreed to set forth their
respective rights, covenants and obligations with respect to Future Payments
and Indemnification Obligations, all as more particularly set forth herein.
NOW, THEREFORE, in consideration for the mutual promises herein
contained and other good and valuable consideration, the receipt and legal
sufficiency of which is hereby acknowledged, the parties hereto do hereby agree
as follows:
C/M: 11752.0002 369570.13
1. Certain Definitions. The following capitalized terms shall
have the ---------------------- meaning set forth below:
(a) "Capital Proceeds Participation Payment" means the amount
payable to Agent, solely as nominee for CPLP, in accordance with the Capital
Proceeds Participation Payment Calculation, as Capital Proceeds Participation,
less any accrued and unpaid Indemnification Obligations.
(b) "Capital Proceeds Participation Payment Calculation" means
the manner in which a Capital Proceeds Participation Payment is determined with
respect to each Capital Proceeds Transaction, as follows:
(i) Step 1: determine Net Capital Proceeds;
(ii) Step 2: subtract the lesser of (x) Net Capital Proceeds
or (y) accrued and unpaid NLC Preferred Return;
(iii) Step 3: if any Net Capital Proceeds remain, subtract
the NLC Debt/Equity Investment (such amount, as so reduced, the
"Capital Proceeds Participation Cash");
(iv) Step 4: if there is Capital Proceeds Participation Cash
remaining, then an amount equal to twenty-five (25%) percent
thereof shall be defined as the "Capital Proceeds Participation"
for such Capital Proceeds Transaction.
(c) "Capital Proceeds Transaction" means (i) the closing of any
debt, equity or other financing transaction to which Owner is a party, and
which is not in the ordinary course of Owner's business in which Owner realizes
cash or equivalent proceeds, including, without limitation, the sale of any of
the CPLP Assets, except to the extent any such debt, equity or other financing
transaction constitutes NLC Debt/Equity Investment, or (ii) Owner's receipt of
insurance proceeds or expropriation awards with respect to CPLP Assets, if but
only if Owner has elected, in its sole discretion, to not use such proceeds or
awards to rebuild or replace the asset or assets that are the subject of such
casualty or expropriation.
(d) "Capital Tax" means, in the first instance without
duplication, any federal or provincial tax paid by Owner or NLC Lender (as
hereinafter defined) which is determined with reference to Owner's capital with
respect to the CPLP Assets, including, without limitation, taxes payable by
Owner under Part I.3 of the Income Tax Act (Canada), Part IV of the Taxation
Act (Quebec), Part III of the Corporations Tax Act (Ontario), the Corporation
Capital Tax Act (Manitoba), the Corporation Capital Tax Act (Saskatchewan), the
Corporation Capital Tax Act (British Columbia) and any other similar federal or
provincial legislation.
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(e) "Capital Transaction Date" shall mean the date on which
Owner receives the proceeds from a Capital Proceeds Transaction (i.e., the
closing thereof).
(f) "Cash Flow Participation Payment" means the amount
payable to Agent, solely as nominee for CPLP, in accordance with the Cash Flow
Participation Payment Calculation, as Cash Flow Participation, less any accrued
and unpaid Indemnification Obligations.
(g) "Cash Flow Participation Payment Calculation" means the
manner in which a Cash Flow Participation Payment is determined, as follows:
(i) Step 1: determine Net Available Cash as of the last day
of any fiscal year of Owner commencing with December 31, 1996 and each
December 31st thereafter (for each such calculation, a "Reference
Date");
(ii) Step 2: subtract an amount equal to the NLC Preferred
Return attributable to the period for which Net Available Cash is
determined (such period, being the period commencing on the day after
the immediately preceding Reference Date (or the closing date under
the Purchase Agreement in the case of the first Reference Period) and
ending on the subject Reference Date, is defined as a "Reference
Period"), as well as previously unpaid and accrued NLC Preferred
Return, less any payments and/or credits in respect of the NLC
Preferred Return made in connection with Capital Proceeds
Participation Payment distributable during such Reference Period;
(iii) Step 3: subtract an amount equal to the Capital Taxes
paid during such Reference Period less the Net Capital Tax Savings
realized during such Reference Period (such amount, as so reduced, the
"Cash Flow Participation Cash");
(iv) Step 4: determine an amount (the "First Split") as
follows:
1. If the Cash Flow Participation Cash is greater than
or equal to $600,000, then the First Split shall be
$600,000.
2. If the Cash Flow Participation Cash is less than
$600,000 and the Reference Period is either the 1997
or 1998 year, then the First Split shall be an
amount equal to the greater of the Cash Flow
Participation Cash or:
(A) For the Reference Period ending December 31,
1997, $200,000;
(B) For the Reference Period ending December 31,
1998, $400,000:
3. In all other circumstances, the First Split shall
equal the Cash Flow Partic- ipation Cash;
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provided, however, notwithstanding the foregoing, solely for the
Reference Period ending on December 31, 1996, the amount determined by
reference to subclauses 1 or 3, as applicable, of this Step 4 shall be
reduced by multiplying such amount by a fraction, the numerator of
which is the number of days in such Reference Period and the
denominator of which is 365.
(v) Step 5: if there is Cash Flow Participation Cash
remaining after subtracting the First Split (such amount, if any, is
defined as the "Remaining Balance"), divide the Remaining Balance into
two categories, (A) the first being an amount (the "Intermediate
Split") equal to the lesser of $1,800,000 and the Remaining Balance
and (B) the second being an amount (the "Final Split") equal to the
Cash Flow Participation Cash above $2,400,000, if any; and
(vi) Step 6: add the First Split plus sixteen (16%) percent
of the Intermediate Split plus twenty-five (25%) percent of the Final
Split; and
(vii) Step 7: deduct an amount equal to (x) the sum of all
Canadian income taxes (whether at the federal, provincial or local
level) paid by Owner during such Reference Period, less (y) actual
United States income tax benefits received by Owner during such
Reference Period from the payment of Canadian income taxes previously
or currently taken into account pursuant to this Step 7, without
duplication for benefits previously taken into account times (z) a
fraction, the numerator of which is the amount calculated in Step 6
above and the denominator of which is the amount calculated in Step 1
above. Such amount shall be defined as the "Cash Flow Participation"
with respect to such Reference Period.
(h) "FF&E Reserves" shall mean a reserve which shall be established
by Owner in an amount equal to: (i) three (3%) percent of Owner's revenues from
operations ("Operating Cash") for the first Reference Period; (ii) three and
one-half (3-1/2%) percent of Operating Cash for the second Reference Period;
(iii) four and one-half (4-1/2%) percent of Operating Cash for the third
Reference Period; and (iv) five (5%) percent of Operating Cash for each
Reference Period thereafter.
(i) "Indemnification Obligations" means all indemnification
obligations or other amounts payable to Owner under that certain
indemnification agreement dated as of the date hereof between Owner, NLC and NL
Hotels, Inc., on the one hand, and CPLP, Agent, Royco Hotels & Resorts, Ltd.
and NRG Management Services Inc., on the other hand (the "Indemnification
Agreement"), the Indemnification Agreement, the Purchase Agreement or any of
the other agreements executed in connection with the transactions contemplated
by the Purchase Agreement, together with interest at the Interest Rate on the
accrued and outstanding amount thereof from time to time, calculated from a
date which is sixty (60) days following the date each claim is made by Owner
for indemnification until the date such claim is paid.
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(j) "Interest Rate" shall mean a rate per annum equal to thirteen
(13%) percent.
(k) "Mortgage Debt" shall mean the Assumed Debt, the Assigned Debt
and all arms' length financings secured by mortgages, charges, security
interests, liens, hypothecations and other encumbrances on the CPLP Assets,
provided, further, that the Assigned Debt (as such term is defined in the
Purchase Agreement) shall be reduced to reflect a principal balance outstanding
of not more than $87,630,0001, bearing a contract rate of interest of thirteen
(13%) percent calculated and compounded annually, and other customary terms.
(l) "Mortgage Note" means the mortgage note to be entered into
between Owner and NLC Lender with respect to the Assigned Debt substantially in
the form annexed hereto as Exhibit A which mortgage note shall not be amended
by Owner resulting in an Event of Default thereunder.
(m) "Net Available Cash" means, as of a Reference Date, Owner's net
cash flow with respect to the Reference Period ending on such Reference Date,
taking into account (I) all of the Owner's revenues actually received/collected
from the CPLP Assets, including, without limitation, operations, sale of
assets, insurance recoveries, condemnation awards and financings, but
specifically excluding (1) capital contributions, loan proceeds or other
fundings made and/or incurred by Owner included within the definition of NLC
Debt/Equity Investment and (2) Net Capital Proceeds relating to the CPLP Assets
(collectively, "Operating Revenue") less (II) an amount ("Operating Expenses")
equal to the sum of:
(i) all cash outlays (including, without limitation, all operating
expenses incurred with respect to the CPLP Assets, interest on Mortgage Debt
(other than interest payable pursuant to the Mortgage Note or the Assigned
Debt) notional interest at 9% on all reductions in the NLC Debt/Equity
Investment as provided in Section 1(q) herein, but only to the extent that New
Third Party Debt (as hereinafter defined) has not been incurred, plus an
additional amount for amortization payments on Mortgage Debt other than
amortization payments required pursuant to the Mortgage Note or the Assigned
Debt) and other costs and expenses incurred or accrued by Owner, including,
without limitation, any reasonable accounting costs or other costs incurred in
order to comply with Canadian and United States securities laws or other laws
in respect of the payment obligations set forth in this Agreement, during such
Reference Period, as well as actual out-of-pocket costs incurred with
arms-length third parties to hedge or otherwise protect Owner's return on
investment in U.S. Dollars, not to exceed twenty-five (25%) percent of an
amount equal to the lesser of (x) $200,000 in respect of any single year's
attributable hedging or currency fluctuation protection costs, and (y) what
Owner is contractually
--------
1 To be adjusted to include Transaction Costs paid
by Owner or its Affiliates (as de- fined in the Purchase Agreement).
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C/M: 11752.0002 369570.13
ally obligated to spend in respect of such year (e.g., if Owner spends
$800,000 to contract in respect of a four (4) year hedge or other
currency fluctuation protection agreement in year 1 and spends $0 in
each of years 2, 3 and 4, Owner may claim hedging costs/investment
protection of $200,000 in each of years 1, 2, 3 and 4);
(ii) the FF&E Reserve; plus
(iii) any transfers, sales or other taxes (including, without
limitation, property taxes and business taxes), other than land
transfer tax and U.S. and Canadian income taxes and Capital Tax,
payable by Owner with respect to the CPLP Assets;
provided, however, for the avoidance of doubt, (A) except as expressly
provided in 1(m)(II)(i) hereof, in no event shall (1) the NLC
Preferred Return, (2) any other payments (including debt payments or
repayments) on account of the NLC Debt/Equity Investment, the Mortgage
Note or the Assigned Debt or (3) any expenses unrelated to the
business of financing, owning and operating the CPLP Assets be
deducted in calculating Net Available Cash; (B) prepaid expenses shall
not reduce Net Available Cash, however, prepaid expenses from a prior
Reference Period shall be appropriately deducted when determining Net
Available Cash for the current Reference Period; and (C) Net Available
Cash shall not include Net Capital Proceeds.
(n) "Net Capital Proceeds" means the proceeds realized by
Owner from any Capital Proceeds Transaction, net of: (i) expenses incident to
such Capital Proceeds Transaction; and (ii) amounts required to be paid out of
such proceeds in satisfaction of Mortgage Debt.
(o) "Net Capital Tax Savings" means, with respect to any
Reference Period, the actual savings received by Owner as a result of applying
Capital Tax paid by Owner during such Reference Period or a prior Reference
Period against U.S. and Canadian income tax obligations of Owner at the
federal, state, provincial and local level with respect to any Reference Period
and not previously taken into account.
(p) "NLC Debt/Equity Investment" means the aggregate
debt/equity investment by Owner and its affiliates (including, without
limitation, Owner and Bear Financial Corp., a Delaware corporation ("NLC
Lender")) from time to time and all other amounts expended, made or paid (A) to
acquire, own, operate, maintain, finance (including, without limitation, but
without duplication of other costs and expenses previously included in
calculating the NLC Debt/Equity Investment from time to time, the payment of
principal and interest on indebtedness incurred with respect to the CPLP
Assets) and dispose of the CPLP Assets (including any minority interests
relating to the CPLP Assets), including, without limitation, (i) amounts
expended in respect of Capital Taxes for any Reference Period less Net Capital
Tax Savings for such Reference Period (but only to the extent that (1) Capital
Taxes less Net Capital Tax Savings for such Reference Period are not deductible
under Section 1(g)(iii) hereof or (2) for the
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Reference Period ending (x) December 31, 1997 Cash Flow Participation Cash is
less than $200,000 or (y) December 31, 1998 Cash Flow Participation Cash is
less than $400,000), (ii) amounts expended in respect of capital improvements,
(iii) amounts funded for Working Capital needs which are not normally expended
from the FF&E Reserve or which exceed the FF&E Reserve, (iv) Accrued Benefits
(as defined in the Purchase Agreement) not reflected in the Working Capital
Adjustments made pursuant to Section 6 of the Purchase Agreement, but only to
the extent such Accrued Benefits relate to the period prior to the
Apportionment Date (as such term is defined in the Purchase Agreement), and (v)
costs incurred resulting from uninsured losses; provided, however, any sums
otherwise includable as NLC Debt/Equity Investment pursuant to this Section
1(p)(A) shall not be included when calculating the NLC Debt/Equity Investment
to the extent the source of such amounts was Operating Revenue or working
capital contributions previously included as NLC Debt/Equity Investment and (B)
satisfying CPLP obligations and the costs and expenses, howsoever defined or
denominated, of closing the transactions contemplated under the Purchase
Agreement, including, without limitation, all closing costs (including, without
limitation, assuming certain obligations and liabilities of CPLP) incident to
the Purchase Agreement, payment of the Purchase Price and the Additional NLC
Debt/Equity, purchasing the Assigned Debt (together with costs of realization
in respect of any of the security encumbered by the Assigned Debt in order to
obtain for NLC Lender fee simple title to the hotels and their appurtenant real
estate free and clear of any third party interests or encumbrances whatsoever),
satisfying pre-closing claimants and creditors whose claims were not fully
adjusted in the Working Capital Adjustment, to the extent NLC determines in its
sole discretion (but without obligation) to do so, and Environmental Cleanup
Costs (as such term is defined in the Purchase Agreement). Monies paid or
deemed paid to Owner or NLC Lender or their affiliates out of Net Available
Cash or from Net Capital Proceeds shall not reduce the NLC Debt/Equity
Investment unless, and only to the extent that, funds are withdrawn from the
working capital of the Business (as such term is defined in the Purchase
Agreement). For the avoidance of doubt, there shall be no reduction in the NLC
Debt/Equity Investment upon foreclosure by NLC Lender unless and to the extent
proceeds from an unaffiliated third-party are realized by NLC Lender.
(q) "NLC Preferred Return" means a preferred return on the NLC
Debt/Equity Investment, calculated at a rate of thirteen (13%) percent per
annum, compounded annually; provided, however, that solely for purposes of
calculating the NLC Preferred Return, and not otherwise, the NLC Debt/Equity
Investment shall be deemed reduced dollar for dollar from and after January 1,
1999 (such reduction not to exceed $45 million (CDN) in any event) if and to
the extent that Mortgage Debt (excluding the Assumed Debt and the Assigned
Debt, such new debt, the "New Third Party Debt") has not been incurred by
Owner, directly or indirectly; provided, however, that both the dollar for
dollar and the maximum $45,000,000 (CDN) reduction in the NLC Debt/Equity
Investment as herein provided shall be multiplied by a fraction, the numerator
of which is equal to the amount of the NLC Debt/Equity Investment funded by NLC
and its affiliates at closing remaining from time to time, and the denominator
of which is the said NLC Debt/Equity Investment funded at closing. Any amounts
in respect
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C/M: 11752.0002 369570.13
of the NLC Preferred Return not paid or deemed to be paid pursuant to
paragraphs 1(b) and 1(g) hereof during or within ninety (90) days of any
Reference Period shall accrue and be added to the principal amount of the NLC
Debt/Equity Investment as of the end of the previous Reference Period (such
amounts earning a NLC Preferred Return together with the existing NLC
Debt/Equity Investment).
2. Future Payments. (a) Owner shall deliver to Agent, solely as agent
for CPLP, a Cash Flow Participation Payment once per annum within ninety (90)
days after the end of each Reference Period; each payment to be made in respect
of such Reference Period, together with a statement, audited by Owner's third
party accountants, setting out in reasonable detail the calculation of Net
Available Cash and the Cash Flow Participation Payment.
(b) Owner shall deliver to Agent, solely as agent for CPLP, a Capital
Proceeds Participation Payment with respect to each Capital Transaction within
sixty (60) days after each Capital Transaction Date, together with a statement,
certified by Owner's third party accountants, setting out in reasonable detail
the calculation of Net Capital Proceeds and the Capital Proceeds Participation
Payment.
(c) Any amounts in respect of a Cash Flow Participation Payment not
paid within 90 days of the last day of the relevant Reference Period or any
amounts with respect of the Capital Proceeds Participation Payment not paid
within 60 days of the Capital Transaction Date, in both instances shall bear
interest at the Interest Rate from the end of the relevant Reference Period or
Capital Transaction Date, as the case may be, until paid.
(d) Any errors or omissions in computing Cash Flow Participation
Payments or Capital Proceeds Participation Payments after the end of each
Reference Period or after the applicable Capital Transaction Date, as the case
may be, shall be corrected promptly upon discovery thereof and (x) if CPLP is
due additional funds, then such additional funds shall be added to the next
payments hereunder, provided that if there is an error or omission of greater
than 5%, then such additional funds shall be delivered to CPLP within 60 days
upon discovery of such error, and (y) if Agent, on behalf of CPLP, received
funds in excess of what was due CPLP hereunder, such funds shall be withheld
from the next distributions due to Agent, on behalf of CPLP, hereunder.
3. Termination of Agreement. (a) At any time after December 31, 2000
but prior to the twelfth (12th) anniversary of the closing, Owner may, in its
sole and absolute discretion, by delivery of notice in writing (a "Termination
Notice") to Agent, on behalf of CPLP, of its intention to pay a Termination
Payment in accordance with the provisions of this Agreement, followed, within
sixty (60) days thereafter, by delivery to Agent, on behalf of CPLP, of a
statement, certified by Owner's third party accountants, setting forth in
reasonable detail the calculation of the Termination Payment, be entitled to
elect to terminate its obligation to make Future Payments and terminate this
Agreement upon payment to Agent, solely as agent
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for CPLP, ratably (i.e., in equal installments) over a four-year period,
without interest, commencing within 60 days of the giving of such Termination
Notice, of an aggregate amount (the "Termination Payment") equal to (x) 8.3
times the Cash Flow Participation Payment that would have been payable to
Agent, as agent for CPLP, if the Reference Period for the Cash Flow
Participation Payments Calculation was the twelve (12) month period immediately
preceding delivery of such Termination Notice by Owner electing to terminate
this Agreement less (y) the sum of (i) $375,000 plus (ii) any unpaid
Indemnification Obligations plus (iii) Environmental Cleanup Costs, but only to
the extent incurred to comply with present or future laws or legal
requirements. The second, third and fourth installments of the Termination
Payment shall be made not later than, respectively, the first, second and third
anniversaries of the date the first installment is paid (each such date, a
"Termination Payment Date"). For the avoidance of doubt, the Cash Flow
Participation Payments referred to in this Section 3(a) exclude Capital
Proceeds Participation Payments for the Reference Period in question and,
except for the Stub Cash Flow Participation Payment (defined below), there
shall be no Cash Flow Distribution Payments made to Agent, on behalf of CPLP,
during the four (4) year payment period for the Termination Payment.
(b) In addition to the Termination Payment, together with delivery of
the first installment, Owner shall pay to Agent, solely as agent for CPLP, an
amount (the "Stub Cash Flow Participation Payment") equal to the Cash Flow
Participation Payment which would have been due CPLP if the relevant Reference
Period commenced on January 1st of the year in which the first installment of
the Termination Payment is made and ended on the day immediately preceding the
date on which such Termination Notice is given, pro rating all expenses,
deductions and the like that would have been used to calculate the Cash Flow
Participation Payment for a full year.
(c) If Owner does not deliver to Agent, solely as agent for CPLP, the
second, third and fourth installments of the Termination Payment on or prior to
each respective Termination Payment Date, and does not then make such payment
within five (5) business days after notice from Agent that such payment was not
made when due, then such payment shall accrue interest at the Interest Rate
from the date due until the date paid.
(d) Should Owner so elect, the second, third and/or fourth
installment payments may be prepaid at any time without premium, penalty or
prior written notice of such intent to prepay.
(e) It is acknowledged and agreed that despite giving a Termination
Notice, the obligation to make the Termination Payment is revocable until, if
and when the first installment payment thereof, together with any then due Stub
Cash Flow Participation Payment, is made. If Owner does not make, or elects not
to make, the first installment of the Termination Payment, together with such
Stub Cash Flow Participation Payment, within such sixty (60) day
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period, then Owner may, at any time during or after such sixty (60) day period,
in its sole and absolute discretion, deliver subsequent Notices of such intent
to make the Termination Payment.
(f) Upon payment of the aggregate Termination Payment and any then
due Stub Cash Flow Termination Payment, Owner shall have no further obligation
or liability to CPLP or the Limited Partners, and CPLP and the Limited Partners
shall have no further obligation or liability for Indemnification Obligations
or Environmental Clean-up Costs.
4. NOTICES.
(a) All notices under this Agreement shall be written and shall be
(i) delivered personally with receipt acknowledged, (ii) sent by prepaid,
internationally (in Canada and the United States) recognized overnight delivery
service, or (iii) sent by telecopy or other facsimile transmission (following
with next-day hard copy sent by prepaid, nationally recognized overnight
delivery service).
(b) All notices shall be deemed given when actually received or
refused by the party to whom the same are directed. Any notice required to be
sent under the terms of this Agreement shall be sent as follows:
If to Agent or to CPLP, to the addresses first set forth above;
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Brans, Lehun, ▇▇▇▇▇▇▇ & Champagne
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
If to Owner, to the address first set forth above;
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
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with a copy to:
Battle ▇▇▇▇▇▇ LLP
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
By giving to the other party at least 15 days written notice thereof,
the parties hereto and their respective successors and assigns will have the
right from time to time and at any time during the term of this Agreement to
change their respective addresses and each will have the right to specify as
its address any other address.
5. MISCELLANEOUS PROVISIONS
(a) Governing Law. This Agreement has been entered into in the
Province of Ontario, Canada and the federal laws of Canada applicable therein.
This Agreement and all rights of the parties hereunder shall be governed by and
construed in accordance with the internal law of the Province of Ontario
without regard to principals of conflicts of laws.
(b) Entire Agreement. This Agreement embodies and constitutes the
entire understanding among the parties with respect to the matters herein
contained, and all prior or contemporaneous agreements, understandings,
representations and statements, oral or written, are merged into this
Agreement. No waiver or modification of any provision of this Agreement shall
be valid unless in writing and signed by the party to be charged, and then only
to the extent therein set forth.
(c) Captions. The captions in this Agreement are intended only for
convenience of reference, do not constitute a part of this Agreement and shall
not be construed to define, interpret, describe or limit the scope or intent of
any provision of this Agreement.
(d) Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original.
(e) No Assignment. CPLP is, and is intended to be, the sole
beneficiary of the right to receive Future Payments. There is no other right
accorded to CPLP or the Limited Partners hereunder and, accordingly, the right
to receive Future Payments may not be assigned to anyone other than CPLP and
the current Limited Partners thereof, and CPLP covenants and agrees that all
Future Payments shall be paid to the current Limited Partners. Any purported
assignment, pledge, hypothecation or other purported transfer by CPLP or the
Limited Partners shall be void ab initio; provided, however, Syndicated shall
have the right to assign its rights
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C/M: 11752.0002 369570.13
and obligations under this Agreement if the prior written consent of Owner is
first obtained, which consent may be withheld in Owner's sole and absolute
discretion.
(f) No Waiver. No assent, express or implied, by either party to any
breach of or default in any Term, covenant or condition herein contained on the
part of the other to be performed or observed shall constitute a waiver of or
assent to any succeeding breach of or default in the same or any other Term,
covenant or condition hereof.
(g) Invalidity of Provisions. In the event that any one or more of
the phrases, sentences, clauses or paragraphs contained in this Agreement shall
be declared invalid by the final and unappealable order, decree or judgment of
any court, this Agreement shall be construed as if it did not contain such
phrases, sentences, clauses or paragraphs; provided, however, that the parties
hereto shall endeavor in good faith to replace such invalid aspect with another
that is valid and that insofar as possible manifests the intent of the parties.
(h) Rights of Others. Nothing in this Agreement, express or implied,
is intended to confer upon any person other than the parties hereto, and their
permitted successors and assigns, any rights or remedies under or by reason of
this Agreement.
THE REMAINDER OF THIS PAGE IS LEFT INTENTIONALLY BLANK;
THE SIGNATURE PAGE FOLLOWS
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IN WITNESS WHEREOF, the parties hereto have duly signed this
Future Payments Agreement as of the day and year first above written.
OWNER:
By:
AGENT:
By:
CPLP:
By:
GUARANTY
The undersigned hereby guarantees to CPLP the payment by Owner of the
Future Payments provided for in Section 2 of the within agreement and the
Termination Payment and the Stub Cash Flow Participation Payment provided for
in Section 3 of the within agreement as, if and to the extent Owner is
obligated to make such Future Payments or Termination Payments but does not do
so within thirty (30) days after written notice of such default, and demand for
payment, is made to Owner and the undersigned.
Dated: _________________________, 1996
NATIONAL LODGING CORP. (Now known as
Chartwell Leisure Inc. as of 8/8/96)
a Delaware corporation
By:
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C/M: 11752.0002 369570.13
