EXHIBIT 10.1(f)
COLLATERAL PLEDGE AND ESCROW AGREEMENT
($1,000,000)
THIS COLLATERAL PLEDGE AND ESCROW AGREEMENT (the "Agreement") is made as of
this ___ day of December, 2000, by and among FLAGLER ON THE PARK, INC., a
Florida corporation ("FOTP"), FLAGLER MUTINY BAY, INC., a Florida corporation
("FMB"), SPECTRO REALTY, INC., a Delaware corporation ("Spectro") (FOTP, FMB and
Spectro are hereinafter referred to individually as a "Partner" and collectively
as the "Partners"), MUTINY ON THE PARK, LTD., a Florida limited partnership (the
"Debtor"), SONESTA COCONUT GROVE, INC., a Florida corporation (the "Secured
Party"), and GUNSTER, YOAKLEY & XXXXXXX, P.A., a professional association (the
"Escrow Agent"), each with an address as set forth in Section 5 hereof.
FOR AND IN CONSIDERATION of the sum of Ten ($10.00) Dollars each to the
other in hand paid, and for other good and valuable considerations, the receipt
and sufficiency of which are hereby acknowledged, the parties hereby agree upon
the following terms and condition:
T E R M S
1. CREATION OF THE SECURITY INTEREST. To induce the Secured Party to extend
credit to the Debtor, which indebtedness is evidenced by a promissory note by
Debtor in the amount of One Million and No/100 Dollars (1,000,000.00) plus
interest thereon (the "Note"), which Note is attached hereto as EXHIBIT "B" and
incorporated herein by this reference, and to secure the prompt payment and
performance of Debtor's obligations under the Note and all reasonable costs,
fees, charges, expenses, including attorneys' fees incurred in enforcing the
Note (collectively the "Obligations"), the Partners (who hereby warrant and
represent to the Secured Party that they collectively own 100% of the
partnership interests in the Debtor as set forth in EXHIBIT A attached hereto)
hereby grant to Secured Party a continuing security interest in the collateral
described in paragraph 2 hereof (the "Collateral").
2. COLLATERAL. The Collateral under this Agreement is the partnership
interests in the Debtor owned by each Partner and as more particularly set forth
in the attached hereto EXHIBIT "A" and incorporated herein by this reference
(the "Interests"). Each Partner has executed and delivered, in escrow, an
Assignment of Partner's Interest (individually an "Assignment" and collectively
the "Assignments"), which Assignments have been deposited with Escrow Agent
contemporaneously with the execution of this Agreement.
3. DEFAULT. A default ("Default") under this Agreement shall exist upon the
occurrence of
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any one or more of the following: (a) any payment required to be made in
connection with the Note, the Obligations or this Agreement shall not be made
when due, and Debtor or the Partners shall fail to cure such default within
fifteen (15) days of receipt of written notice of the same; (b) the breach by
Debtor or the Partners of any other term, obligation or condition of this
Agreement or the Note, and the failure of Debtor or the Partners to remedy the
same within thirty (30) days of written notice by Secured Party advising of such
lack of compliance, provided, however, that if such default cannot be remedied
within such thirty (30) day period, Debtor or the Partners shall be permitted
additional time to effect such cure so long as the Debtor or the Partners shall
have promptly commenced and shall diligently prosecute such cure and the same is
capable of being cured; (c) the filing by Debtor or the Partners of any
voluntary petition seeking liquidation, reorganization, arrangement,
readjustment of debts or for any other relief under the U.S. Bankruptcy Code or
under any other act or law pertaining to insolvency or debtor relief, whether
state, federal or foreign, now or hereafter existing; or (d) the filing against
Debtor or the Partners of any involuntary petition seeking liquidation,
reorganization, arrangement, readjustment of debts or for any other relief under
the U.S. Bankruptcy Code or under any other act or law pertaining to insolvency
or debtor relief, whether state, federal or foreign, now or hereafter existing,
and the failure of the same to be dismissed within ninety (90) days of the
filling thereof.
4. REMEDIES OF SECURED PARTY ON DEFAULT. Upon the occurrence of a Default
hereunder, the Secured Party shall have all rights and remedies at law or in
equity, including, without limitation those remedies provided by the Uniform
Commercial Code in the State of Florida which include (among others) the right
to sell the Collateral at public or private sale and to become the purchaser of
the Collateral at any such sale, free and clear of any claim, right or equity of
redemption, all of which are expressly waived and released by the Partners. For
purposes of any notice required to be given to dispose of all or any part of the
Collateral, seven (7) days' notice computed from the date of the giving of such
notice shall be reasonable and adequate.
5. NOTICE. Any notice required to be given to any of the parties hereto
shall be effective when received and shall be made by: (a) first class postage
prepaid, registered or certified mail, return receipt requested, or (b)
overnight courier, provided delivery is evidenced by a written receipt, at the
following addresses or such other addresses as the parties may hereafter
designate in writing:
To Secured Party: SONESTA COCONUT GROVE, INC.
c/o Sonesta International Hotels Corporation
000 Xxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Office of the Treasurer
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To Partners: FLAGLER ON THE PARK, INC.
0000 X. Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxx, Xxxxxxx 00000
Attention: President
FLAGLER MUTINY BAY, INC.
0000 X. Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxx, Xxxxxxx 00000
Attention: President
SPECTRO REALTY, INC.
X/X Xxxxxxx Xxxxx, Xxx.
Xxxx, Xxxxx & Partners
000 Xxxx Xxx., 0xx Xxxxx
Xxx Xxxx, XX 00000
To Debtor: MUTINY ON THE PARK, LTD.
0000 X. Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxx, Xxxxxxx 00000
Attention: General Partner
To Escrow Agent: Gunster, Yoakley & Xxxxxxx, P.A.
000 Xxxx Xxxxxxx Xxxxxxxxx, Xxxxx 0000
Xxxx Xxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
6. RECEIPT OF COLLATERAL BY ESCROW AGENT. Escrow Agent hereby acknowledges
receipt of the Assignments, as Collateral. Escrow Agent further agrees to hold
the Assignments as Collateral hereunder and serve as Escrow Agent subject only
to the terms of this Agreement. No implied duties or obligations shall be read
into this Agreement against Escrow Agent.
7. RELEASE AND DELIVERY OF ASSIGNMENT.
7.1 The Escrow Agent shall release and deliver the Assignments to:
8.1.1 each Partner, with respect to its separate Assignment,
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immediately upon receipt of written notice from the
Secured Party (but signed by both the Secured Party and
the Partners) that the Note has been paid in full, that
any applicable preference periods under applicable
federal and state bankruptcy law have expired, that no
petition has been filed by or against the Partners or
the Debtor pursuant to applicable federal or state
bankruptcy law, and directing that the Assignments be
delivered to the Partners, or
8.1.2 each Partner, with respect to its separate Assignment,
on the tenth (10th) business day after receipt of
written notice (signed only by the Partners) that the
Note has been paid in full, that any applicable
preference periods under applicable federal and state
bankruptcy law have expired, that no petition has been
filed by or against the Partners or the Debtor pursuant
to applicable federal or state bankruptcy law, and
directing that the Assignments be delivered to the
Partners but only if (in the interim) the Secured Party
has not given the Escrow Agent written notice that any
of the foregoing conditions have not been satisfied, or
8.1.3 Secured Party immediately upon receipt of written
notice (signed by the Secured Party and Debtor) that
the Note is in Default and directing that the
Assignments be delivered to the Secured Party, or
7.1.4 Secured Party on the tenth (10th) business day after
the receipt of written notice (signed only by the
Secured Party) that the Note is in default and
directing that the Assignments be delivered to the
Secured Party but only (if in the interim) the Debtor
or the Partners have not given written notice to the
effect that the Note is not in Default.
7.2 Upon delivery of the Assignments to Secured Party pursuant
to section 7.1.3 or 7.1.4 hereof, Secured Party (or its
permitted assignee(s) hereunder) shall accept the
Assignments, at which point the Assignments shall become
effective. If the Escrow Agent has received
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notice under subparagraph 7.1 above signed only by one
party, the Escrow Agent shall immediately notify the
non-signing parties, by both telephone and in writing, to
the effect that the other party has given written notice
directing that the Assignments be released from escrow on
the basis that the Note has been paid in full (and that any
applicable preference periods under applicable federal and
state bankruptcy law have expired and no petition has been
filed by or against the Partners or the Debtor pursuant to
applicable federal or state bankruptcy law), or a Default
exists under the Note, as the case may be.
7.3 The Escrow Agent shall act as depository only and shall be
obligated to perform only the duties that are expressly set
forth herein. Escrow Agent shall not be under any obligation
to take any legal action in connection with the enforcement
of this Agreement. The Escrow Agent may act in reliance upon
any writing or instrument or signature which it, in good
faith, believes to be genuine, may assume the validity and
accuracy of any statements or assertions contained in such
writing or instrument, and may assume that any person
purporting to give any writing, notice, advice or
instruction in connection with the provisions hereof has
been duly authorized to do so. The Escrow Agent shall not be
liable in any manner for the sufficiency or correctness as
to form, manner of execution or validity of any written
instructions delivered to it, the sufficiency of the title
to the property to be conveyed, nor as to the identity,
authority, or rights of any person executing the same. The
duties of the Escrow Agent shall be limited to the
safekeeping of the Assignments and to disbursements of same
in accordance with the written instructions described
herein. The Escrow Agent undertakes to perform only such
duties as are expressly set forth herein, and no implied
duties or obligations shall be read into this Agreement
against the Escrow Agent. Upon the Escrow Agent's delivery
of the Assignments in accordance with the provisions hereof,
the escrow shall terminate, and the Escrow Agent shall
thereafter be released of all liability hereunder.
8.1 The Escrow Agent may consult with counsel of its own choice
and shall have full and complete authorization and
protection for any action taken or suffered by it hereunder
in good faith and in accordance with the
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opinion of such counsel. The Escrow Agent shall otherwise
not be liable for any mistakes of fact or error of
judgement, or for any acts or omissions of any kind unless
caused by its willful misconduct or gross negligence, and
the parties hereto (jointly and severally) agree to
indemnify and hold the Escrow Agent harmless from any
claims, demands, causes of action, liability, damages,
judgements, including the cost of defending any action
against it, together with any reasonable attorney's fees
incurred therewith, in connection with Escrow Agent's
undertaking pursuant to the terms and conditions of this
Escrow Agreement, unless such act or omission is a result of
the willful misconduct or gross negligence of the Escrow
Agent. The Escrow Agent shall be vested with a lien on all
property deposited hereunder, for indemnification, for
attorneys' and accountants' fees, court costs, and any and
all expenses regarding any suit, interpleader or otherwise,
or any other expenses, fees or charges of any character or
nature which may be incurred by said Escrow Agent by reason
of disputes arising among the parties or by any one of them
to this escrow as to the correct interpretation of this
Agreement and instructions given to the Escrow Agent
hereunder, or otherwise, with the right of said Escrow
Agent, regardless of the instructions aforesaid, to hold the
Collateral and Assignment until and unless all of said
expenses, fees and charges shall be fully paid to the Escrow
Agent.
8.2 In the event of disagreement about the interpretation of
this Agreement, or about the rights and obligations or the
propriety of any action contemplated by the Escrow Agent
hereunder, Escrow Agent may, at its sole discretion, file an
action in interpleader to resolve the said disagreement. The
parties hereby agree to jointly and severally indemnify and
hold Escrow Agent harmless from any fine, penalty, loss, or
liability arising out of or related to this Agreement, and
for all costs and expenses, including the fees and expenses
of counsel, incurred in connection with such Escrow Agent's
performance of the Escrow Agent's duties hereunder, except
in case of such Escrow Agent's own gross negligence or
willful misconduct; including reasonable attorney's fees, in
connection with the aforesaid interpleader action.
8.1 The Escrow Agent may resign at any time upon the giving of
thirty (30)
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days written notice to the Secured Party, the Partners and
Debtor. Within said thirty (30) day period, the Secured
Party and Debtor shall have the sole right to appoint by a
writing signed by both parties, a successor Escrow Agent
upon notice to the Escrow Agent. Thereupon, the Assignment
may be transferred from the Escrow Agent to the successor
Escrow Agent. If a successor Escrow Agent is not appointed
by them within thirty (30) days after notice of
registration, the Escrow Agent may name a successor Escrow
Agent, and the Escrow Agent herein shall be fully relieved
of all liability under this Agreement to any and all
parties, upon the transfer of, and due accounting for, the
escrow deposits to the successor Escrow Agent designated
either by the Secured Party and Debtor or appointed by the
Escrow Agent.
8.2 Nothing contained herein or any performance by the Escrow
Agent or any party hereunder shall impair or affect Escrow
Agent's ability and full right and authority to represent
the Debtor in connection with any matter (including, without
limitation, any interpleader action instituted by the Escrow
Agent arising from this Agreement), whether or not related
to the subject matter hereof, nor shall Escrow Agent's
agreement to act as Escrow Agent hereunder create any
impropriety or conflict of interest (or any appearance
thereof) in connection with Escrow Agent's representation of
the Debtor. For the purposes of avoidance of any doubt,
Secured Party hereby expressly waives any claim of conflict
of interest against Escrow Agent arising from its status as
escrow agent hereunder.
8. MISCELLANEOUS.
8.1 The terms "Secured Party," "Partners" and "Debtor," as used
in this Agreement shall include their respective
transferees, heirs, legal representatives, successors and
assigns. Secured Party shall have the right to assign this
Agreement (including, without limitation, any specific
rights herein) to any affiliate of the Secured Party or any
entity controlled by the Secured Party without the consent
of, or notice to, the Partners or Debtor.
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8.2 If either the Secured Party, the Partners or the Debtor is
required to enforce or defend under this Agreement, all of
the costs incurred by the Secured Party, Partners or the
Debtor, as the case may be, including reasonable attorney's
fees, shall be paid by the non-prevailing party. All costs
and expenses of the Escrow Agent hereunder shall be paid by
both the Debtor and the Secured Party in equal amounts,
provided that if any of such costs and/or expenses of the
Escrow Agent are incurred as a result of actions of any
party hereto which are contrary to the terms of this
Agreement, such party shall be responsible for such costs
and/or expenses.
8.3 Upon payment or other satisfaction in full of all
Obligations of the Debtor to the Secured Party and the
expiration of any applicable preference periods under
applicable federal and state bankruptcy law provided that no
petition has been filed by or against the Partners or the
Debtor pursuant to applicable federal or state bankruptcy
law, the security interest herein granted shall terminate
and Secured Party shall cause the transfer and delivery of
the Assignments held by Escrow Agent hereunder to each of
the Partners to whom each Assignment relates free and clear
of this Agreement and the security interest granted
hereunder.
8.4 Wherever used herein, the singular shall include the plural
and the plural shall include the singular, and the use of
the masculine, feminine or neuter gender shall include the
use of any other gender where applicable.
8.5 This Agreement may be executed in counterparts, each of
which shall be deemed an original, but all of which taken
together shall constitute one and the same instrument.
8.6 If any term or provision of this Agreement or the
application thereof to any person or circumstances shall, to
any extent, be held invalid or unenforceable, the remainder
of this Agreement, or the application of such term or
provision to persons or circumstances other than those as to
which it is held invalid or unenforceable, shall not be
affected thereby, and such term and provision of this
Agreement shall be valid
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and be enforceable to the fullest extent provided by law.
8.7 This Agreement, the Note, and all other documents to which
reference is made herein, constitute the entire and complete
Agreement of the parties hereto, and supersede any prior
agreements, arrangements or understandings relating to the
subject matter hereof, and may not be amended, modified,
superseded or canceled unless in writing and executed by the
Debtor, Secured Party, and Escrow Agent; or, in the case of
a party waiving compliance, executed by the waiving party
and shall be binding upon and inure to the benefit of, and
be enforceable by, the parties hereto and their respective
heirs-at-law, legatees, distributees, executors,
administrators, successors and assigns and other legal
representatives. Any agreement hereafter made shall be
ineffective to change, modify, waive, release, discharge,
terminate or effect an abandonment of this Agreement, in
whole or in part, unless such agreement is in writing and
signed by the party against whom enforcement of the change,
modification, waiver, release discharge, termination or the
effecting of the abandonment is sought.
8.8 The parties hereto agree that they will execute and/or
endorse and deliver to the others any documents reasonably
requested by the others including but not limited to any
financing statement required to perfect Secured Party's
security interest and do all other things which are or may
become necessary to fully effectuate the intent of this
Agreement. Simultaneously with the execution of this
Agreement, the Debtor, the Partners and the Secured Party
shall execute a UCC-1 financing statement, which shall be
filed with the Florida Secretary of State and any other
office, as appropriate to perfect Secured Party's security
interest in the Collateral.
8.9 This Agreement shall be governed by and in all respects
construed in accordance with the laws of the State of
Florida.
8.10 The parties hereto agree that, in the event of a breach by
any party of any of the terms and conditions of this
Agreement, the calculation of money damages would be
impossible or difficult of determination. The parties hereby
specifically agree that in the event of any actual,
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pending or threatened breach of such terms and conditions,
each party shall have the right to seek any and all
equitable relief as it, in its sole discretion, may
determine, including, but not by way of limitation, the
right of a temporary or permanent order restraining any
action contrary to the provisions of this Agreement or to
the intention of the parties represented herein. Any party
against whom such action or proceeding is brought hereby
waives the claim or defense therein that such party bringing
any such action or proceeding is brought shall not urge in
any such action or proceeding the claim or defense that such
remedy at law exists.
IN WITNESS WHEREOF, the parties hereto and the Escrow Agent have entered
into this Agreement on the date first set forth above.
SECURED PARTY:
SONESTA COCONUT GROVE, INC.
By: /s/
--------------------------
Name:
--------------------------
Title:
--------------------------
DEBTOR:
MUTINY ON THE PARK, LTD.
By: Flagler on the Park, Inc., its sole
general partner
By: /s/ Xxxxxxx Xxxxx
-------------------------
Xxxxxxx Xxxxx, President
THE PARTNERS:
FLAGLER ON THE PARK, INC.
By: /s/ Xxxxxxx Xxxxx
---------------------------------
Xxxxxxx Xxxxx, President
FLAGLER MUTINY BAY, INC.
By: /s/ Xxxxxxx Xxxxx
---------------------------------
Xxxxxxx Xxxxx, President
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SPECTRO REALTY, INC.
By: /s/
--------------------------
Name:
--------------------------
Title:
--------------------------
ESCROW AGENT:
GUNSTER, YOAKLEY & XXXXXXX, P.A.
By: /s/
--------------------------
Name:
--------------------------
Title:
--------------------------
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EXHIBIT "A"
PARTNER PERCENTAGE INTEREST
Flagler on the Park, Inc. 1% (General Partner)
Flagler Mutiny Bay, Inc. 52.625% (Limited Partner)
Spectro Realty, Inc. 46.375% (Limited Partner)
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