MANAGEMENT AGREEMENT
THIS AGREEMENT is made and entered into this _____ day of December, 2000,
by and between Mutiny on the Park, Ltd., a limited partnership organized and
existing under the laws of Florida (hereinafter called "OWNER"), and Sonesta
Coconut Grove, Inc., a corporation organized and existing under the laws of
Florida (hereinafter called "OPERATOR").
W I T N E S S E T H :
WHEREAS, Owner or an affiliate of Owner intends to construct a condominium
hotel of up to a maximum of 364-hotel keys and create other improvements on a
certain parcel of land described in EXHIBIT "A" hereto annexed; and
WHEREAS, Owner will be the owner of a certain commercial condominium unit
referred to as the Hotel Unit pursuant to a certain Declaration of Mutiny Park
Condominium by Owner, as developer, and to be recorded in the Public Records of
Miami-Dade County, Florida, a copy of which is attached hereto as EXHIBIT "B"
(the "DECLARATION"); and
WHEREAS, Operator is a wholly-owned subsidiary of Sonesta International
Hotels Corporation, a corporation organized and existing under the laws of the
State of New York, U.S.A. (hereinafter called "SONESTA") and
WHEREAS, Owner wishes to engage Operator to manage and operate said Hotel
Unit and condominium hotel rental program as provided herein, and Operator
desires to enter into an agreement with Owner for that purpose.
NOW, THEREFORE, in consideration of the mutual promises herein contained,
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree as follows:
ARTICLE I
DEFINITIONS
For the purpose of this Agreement:
1.1. "AFFILIATE" shall mean, with respect to either party, any person,
firm, corporation or other entity:
(a) in which such party, such party's beneficial owners collectively,
or both, hold, directly or indirectly, more than fifty (50%)
percent voting interest; or
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(b) which holds, directly or indirectly, more than fifty (50%)
percent voting interest in such party. (Sonesta and its
Affiliates shall together be known as the "SONESTA GROUP".)
1.2. "ANNUAL PLAN" shall mean and refer to the operating forecast prepared
by Operator each year and further described in Section 5.9.
1.3. "BASE FEE" shall mean and refer to the base management fee payable to
Operator under Section 7.1(a).
1.4. "CALENDAR YEAR" shall mean any consecutive twelve-month period
commencing upon the first day of January and ending upon the last day of
December during the Term (as hereinafter defined).
1.5. "CAPITAL RESERVE ACCOUNT" shall mean the account described in Section
5.7.
1.6. "COMMENCEMENT DATE" shall mean the date upon which Operator commences
full business operation of the Hotel under this Agreement. Notwithstanding the
foregoing, the Commencement Date shall be evidenced by the following:
(a) A Certificate of Substantial Completion (AIA Document G704)
signed by Owner's architect, with a copy to Operator, certifying
that the Hotel Unit and not fewer than 100 Keys in the Rental
Program have been constructed and completed in substantial
compliance with the Plans, and any supplemental plans, and in
accordance with all applicable laws, ordinances, rules and
regulations;
(b) All necessary occupancy or use permits for the Hotel Unit and not
fewer than 100 Keys in the Rental Program have been issued or
will be issued upon appropriate application by Owner;
(c) The Furnishings and Equipment have been provided and installed in
the Hotel Unit and not fewer than 100 Keys in the Rental Program
have been fully furnished and equipped in accordance with the
plans and specifications therefore, but allowing, in the case of
both the Hotel Unit and the 100 Keys in the Rental Program, for
punchlist items which, in Operator's reasonable judgment, do not
materially impact the guest experience or the ability of Operator
to operate the Hotel;
(d) The landscaping of the Hotel shall be substantially complete in
accordance with plans and specifications therefore;
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(e) The Hotel Unit and not fewer than 100 Keys in the Rental Program
are in all respects ready for occupancy and full business
operation by Operator, except for minor details (i.e."punchlist
items") which, in Operator's reasonable judgment, do not
materially interfere with the normal operations of the Hotel or
the quality of the guest experience at the Hotel; and
(f) None of the construction work, equipping and furnishing which is
to be done in the remaining Keys (i.e. in those Keys in excess of
the 100 Keys described in items (a) through (e) above) shall
cause a disturbance to the operation of the Hotel or impact the
experience of guests in the 100 Keys in the Rental Program
described in items (a) through (e) above.
1.7. "CONDOMINIUM ASSOCIATION" shall mean the association of Condominium
Unit Owners formed and existing pursuant to the Declaration and in accordance
with the laws of the State of Florida.
1.8. "CONDOMINIUM UNITS" shall mean and refer to the approximately 211
Residential Units (sometimes referred to as a "Residential Unit" or "Residential
Units"), including up to a maximum of 364 separately keyed bedroom units (for a
total maximum of up to 364 keyed hotel rental units; each sometimes referred to
as a "Key"), the Commercial Unit (as such term is defined in the Declaration;
the "Commercial Unit"), and the Hotel Unit.
1.9. "CONDOMINIUM UNIT OWNER" shall mean the holder of fee simple title to
a Condominium Unit.
1.10. "CONSUMABLE SUPPLIES" shall mean office, cleaning, engineering, guest
laundry and valet supplies, banquet and food service decorations, menus, guest
supplies (including stationery, soap, matches, toilet and facial tissues) and
such other supplies as are customarily consumed on a daily basis in the
operation of a high quality, first-class hotel from time to time.
1.11. "DECLARATION" shall have the meaning attributed in the second Whereas
clause.
1.12. "EXPENSE" OR "EXPENSES" shall mean any and all expenses paid or
incurred by Operator in its reasonable discretion in connection with the
operation of the Hotel which are includable in determining Net Income, as
determined in accordance with the now current "Uniform System of Accounts for
Hotels", 9th Revised Edition, 1996, (the "Uniform System") on the accrual basis
in accordance with general accepted accounting principles consistently applied,
except that Expenses shall not include lease charges for equipment (other than
as set forth in clause(o) below), income taxes, depreciation and amortization,
or interest expenses.
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Without limiting the generality of the foregoing, Expenses shall include
the following items, provided, however, that to the extent that any portion of
the following items is actually collected by Owner or Operator from Condominium
Unit Owners as Hotel Shared Costs pursuant to the Declaration, then the
following items shall be deemed to include only that portion of any such item
which is not so collected by Owner or Operator:
(a) The Base Fee, as defined in Section 7.1(a).
(b) The Marketing and Licensing Fee, as defined in Section 7.1(b).
(c) Out-of-pocket expenses incurred specifically for, on account of
or in connection with the operation of the Hotel, including
reasonable travel expenses of employees and executives of any of
the Sonesta Group, consistent with the Annual Plan.
(d) Commission payments made to Sonesta's regional sales offices for
reservations made for the Hotel, which commissions shall be
reasonable in amount and shall be no greater than that generally
charged to other hotels operated or franchised by Operator or its
Affiliates.
(e) Payments to Sonesta for its central and individual reservations
services (including without limitation reservations booked and/or
processed by an independent contractor--such as Resolutions or
Supranational) at its flat rate charge (as established by Sonesta
from time-to-time, presently $15.00), for each guestroom booking.
(f) Real estate and personal property taxes.
(g) Property and liability insurance premiums, as well as premiums
for all other coverages customarily obtained with respect to
comparable properties, all in accordance with Section 5.1 hereof.
(h) Reasonable payments to a "shopping" service as part of a program
of quality assurance.
(i) Amounts contributed and/or credited to the Capital Reserve
Account, pursuant to Section 5.7.
(j) Payments to Sonesta referenced in Section 3.6.
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(k) Rent paid to Residential Unit Owners in the Rental Program
pursuant to Section 6 of the Rental Agreement.
(l) Repairs and maintenance, and utilities, for the Hotel Unit.
(m) Condominium assessments relative to the Hotel Unit (but excluding
any assessment for the cost of capital replacements or additions
to the common elements of the Condominium as described in the
Declaration) and, to the extent not already addressed, the
portion of the Hotel Shared Costs required to be funded by Owner
pursuant to the Declaration.
(n) Any and all Hotel employee costs, expenses and taxes (including,
without limitation, salaries, wages, benefits, bonuses and other
compensation).
(o) Charges under leases for equipment used in the operation of the
Hotel Unit, which are entered into prior to the Commencement
Date, not to exceed an aggregate of $300,000 per year.
The following shall not be treated as Expenses, but shall be repaid out of
the Capital Reserve Account (as described in SECTION 5.7):
(a) Payment(s) made to Sonesta for the services of employees of its
Design Division(s), if and when rendered specifically to the
Hotel and with the prior approval of Owner.
(b) A xxxx-up on sales to the Hotel by Sonesta or its purchasing
subsidiary or affiliate, presently seven percent (7%), on such
capital items as are normally purchased by Sonesta or such
purchasing subsidiary or affiliate for use by hotels or resorts
in the Sonesta Group, provided the cost to the Hotel, including
said xxxx-up, is competitive with the cost of purchasing any such
item(s) from a third party with due regard to quality and timing
of delivery.
1.13. "FRACTIONAL YEAR" shall mean the period from the Commencement Date
(if such date is not the first day of January) to the last day of December next
following and the period from the first day of January of the Calendar Year in
which this Agreement terminates to the date of such termination (if such date is
not the last day of December).
1.14. "FURNISHINGS AND EQUIPMENT" shall mean Specialized Hotel Equipment,
Operating Equipment, hotel and restaurant furniture and furnishings, office
furniture and equipment, signs, carpets,
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television receivers and other electrical and electronic equipment, any
vehicles, and such other furnishings and equipment as are used in connection
with the operation of the Hotel from time to time; provided, however, that
"Furnishings and Equipment" shall not include "Working Capital", as hereinafter
defined, or the furnishings and equipment located in Residential Units, the
Commercial Unit and in levels B-1 and B-2 of the parking garage of the building.
1.15. "GROSS REVENUE" shall mean any and all revenues, fees or service
charges derived directly or indirectly from the operation of the Hotel;
(a) Excluding (i) funds furnished by Operator, Condominium Unit
Owners (as Hotel Shared Costs or otherwise) or Owner, (ii)
federal, state and municipal excise, sales, and use taxes
collected directly from patrons and guests or as a part of the
sales price of any goods, services or displays, such as gross
receipts, admissions, cabaret or similar or equivalent taxes and
paid over to federal, state or municipal governments, (iii) tips
and gratuities, (iv) proceeds of insurance and condemnation
(except as provided in Section 8.3 hereof), (v) proceeds from the
sale or other disposition of the Residential Condominium Units,
the Commercial Unit, the Hotel or any part thereof, or of other
assets of Owner other than sales in the ordinary course of
business of operating a Hotel, (vi) all loan proceeds from
financing or refinancings of the Hotel Unit or interests therein
or components thereof, (vii) judgments and awards, except any
portion thereof arising from normal business operations of the
Rental Program, (viii) items constituting "allowances" under the
Uniform System, and (ix) rental or concession payments or
operating income from the ground floor restaurant located in the
Commercial Unit, or the commercial parking garage within the
Hotel Unit and levels B-1 and B-2 of the building constructed
within the Site; and
(b) including: (i) rental or other payments received from any tenants
or concessionaires within the Hotel Unit other than the ground
floor restaurant located in the Commercial Unit, or the
commercial parking garage within the Hotel Unit and levels B-1
and B-2 of the building constructed within the Site, and (ii)
revenues from the Rental Program, before deducting rent to
Residential Unit Owners.
1.16. "HOTEL" shall mean the Furnishings and Equipment, the Hotel Unit
(including, without limitation, the parking garage located within the Hotel
Unit), the Rental Program, and all Residential Units
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subject to the Rental Program, together with all entrances, exits, rights of
egress and ingress, easements and appurtenances thereon belonging to or
pertaining.
1.17. "HOTEL SHARED COSTS" shall mean those items defined as such in
Section 12.1 of the Declaration.
1.18. "HOTEL UNIT" shall mean Condominium Unit CU-1, as more particularly
described in the Declaration, together with all improvements now or hereafter
comprising a portion thereof or constructed thereon and all of Owner's
Furnishings and Equipment (hereafter defined) now or hereafter placed or
installed within such condominium unit (collectively, the "Premises"), which
shall generally be considered to include the building constructed on the Site
exclusive of Residential Units, the Commercial Unit, and the parking garage
located in levels B-1 and B-2 of the building constructed on the Site. The Hotel
Unit includes the structure and systems that support the remainder of the Hotel.
1.19. "INCENTIVE FEE" shall mean and refer to the profit-based fee payable
to Operator under Section 7.1(c).
1.20. "INDEX" shall mean the Consumer Price Index for all Urban Consumers,
U.S. City Average, All Items, 1982-1984 = 100, published by the Bureau of Labor
Statistics, United States Department of Labor. If the compilation and/or
publication of the Index shall be transferred to any other department, bureau or
agency of the United States Government, or if the Bureau shall adopt a successor
Index, the Index published by such successor department, bureau or agency shall
be adopted and used as a standard for computing cost of living adjustments
hereunder. In the event no Index level is published for the date of this
Agreement or any other date on which an adjustment is required to be made
thereof, the levels for computation shall be arrived at by interpolation from
the published levels nearest to the dates on which the levels are to be
determined. The base year for Index-based adjustments shall be the calendar year
in which the Commencement Date occurs, provided it occurs between January 1 and
June 30, or the following calendar year, if it occurs between July 1 and
December 31.
1.21. "LOANS" shall have the meaning ascribed to such term in the Loan Term
Sheet.
1.22. "LOAN TERM SHEET" shall mean and refer to the term sheet attached
hereto as Exhibit 1.22 and incorporated herein by this reference.
1.23. "MARKETING AND LICENSING FEE" shall mean and refer to the marketing
services and licensing fee payable to Operator under Section 7.1(b).
1.24. "NET OPERATING PROFIT" shall mean Gross Revenues less Expenses, on an
annual basis and calculated on an accrual basis.
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1.25. "OPERATING EQUIPMENT" shall mean chinaware, glassware, linens,
silverware, uniforms, utensils and other items of similar nature used in the
operation of the Hotel from time to time.
1.26. "OPERATING SHORTFALL" shall mean the extent to which, for any
Operating Year, Expenses and any other expenditures which are normal and
customary in connection with a hotel or condohotel operation other than those
explicitly excluded under the definition of "Expenses", exceed Gross Revenues.
1.27. "OPERATING YEAR" shall mean and refer to the 365-day period
commencing with the Commencement Date and each subsequent 365-day period, except
for leap years, in which such period shall consist of 366 days.
1.28. "OWNER'S RETURN" shall be applicable commencing on the first
anniversary of the Commencement Date, shall apply to subsequent periods only,
and shall mean and refer to a minimum of $500,000.00 per Calendar Year (which
minimum amount shall be prorated for Fractional Years, and shall be subject to
adjustment as more particularly set forth in this Section 1.28). The Owner's
Return shall be distributed to Owner on a quarterly basis in installments within
30 business days of the end of each calendar quarter, or portion thereof, for
which such payment is due. In the event that in any calendar quarter the amount
of Net Operating Profit distributed to Owner pursuant to Section 3.3 of this
Agreement is less than the amount necessary to bring the amount paid against the
Owner's Return to a cumulative amount equal to at least twenty-five (25%)
percent of the Owners Return for each calendar quarter that has elapsed within
the subject Calendar Year, Operator shall pay any such deficiency to Owner out
of Operator's separate funds not later than thirty (30) days after the last day
of the calendar quarter. For example, assuming an Owner's Return of $500,000 and
Net Operating Profit paid to Owner in the first calendar quarter of $150,000 and
in the second calendar quarter of $90,000, Operator would be obligated to pay
$10,000 against the Owner's Return from Operator's own funds within 30 days of
the end of the second calendar quarter. Amounts of Net Operating Profit paid to
Owner in excess of the amount required (as calculated on a year to date basis)
shall be carried forward to subsequent calendar quarters within the same
Calendar Year. Any overpayment by Operator that exists at the end of a Calendar
Year shall be refunded promptly by Owner or credited to the next payment of
Owner's Return. The Owner's Return shall be adjusted, commencing with the second
Operating Year, by increases in the Index. In addition, the Owner's Return shall
be adjusted downward, commencing in the second Operating Year in the event that
fewer than 175 Keys have been enrolled in the Rental Program prior to the end of
such year, such proration being based on the ratio between the number of Keys
enrolled at the end of each month during such year and the benchmark of 175
Keys. In the event that 175 Keys are enrolled in the Rental Program at any point
in time prior to the end of the second Operating Year, no downward adjustment of
the Owner's Return shall be performed for any Operating Year after the second
Operating Year. In the event that 175 Keys are not enrolled in the Rental
Program at any point in time prior to the
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end of such Operating Year, the downward adjustment shall be applicable to each
year until 175 Keys are enrolled at a single point in time. Such adjustments
shall not be reinstated if the number of Keys in the Rental Program thereafter
falls below 175. Notwithstanding the foregoing to the contrary, in the event
that any principal or interest shall be due and payable to the Operator in
connection with any of the Loans, Operator shall have the right to set-off
amounts otherwise due to Owner as Owner's Return hereunder against amounts
outstanding with respect to the Loans, except to the extent of any money damages
claimed by Owner against Operator in any pending arbitration or judicial
proceeding brought by or against Owner, and provided that Operator shall
promptly advise Owner of any amounts set off pursuant to this Agreement. To the
extent that Operator is not permitted to set-off certain amounts as a result of
Owner's claim for money damages against Operator in any pending arbitration or
judicial proceeding as provided in the preceding sentence, such amounts
otherwise payable to the Owner shall be placed in an escrow account by the
parties pending resolution of the arbitration or judicial proceeding with
respect to the same.
1.29. "OWNER'S TARGET RETURN" shall be applicable commencing on the second
anniversary of the Commencement Date, shall apply to subsequent periods only,
and shall mean and refer to the sum of $1,000,000.00 per Calendar Year (which
minimum amount shall be prorated for Fractional Years, and shall be subject to
adjustment as more particularly set forth in this Section 1.29). The Owner's
Target Return shall be distributed to Owner on an annual basis within sixty (60)
days of the end of the Calendar Year, or a portion thereof. The Owner's Target
Return shall be adjusted, commencing with the third Operating Year, by increases
in the Index. In addition, the Owner's Target Return shall be adjusted downward,
commencing in the third Operating Year in the event that fewer than 175 Keys
have been enrolled in the Rental Program prior to the end of such year, such
proration being based on the ratio between the number of Keys enrolled at the
end of each month during such year and the benchmark of 175 Keys. In the event
that 175 Keys are enrolled in the Rental Program at any point in time prior to
the end of the third Operating Year, no downward adjustment of the Owner's
Return shall be performed for any Operating Year after the year in which 175
Keys are so enrolled in the Rental Program. In the event that 175 Keys are not
enrolled in the Rental Program at any point in time prior to the end of the
third Operating Year, the downward adjustment shall be applicable to each year
until 175 Keys are enrolled at a single point in time. Such adjustments shall
not be reinstated if the number of Keys in the Rental Program thereafter falls
below 175. Notwithstanding the foregoing to the contrary, in the event that any
principal or interest shall be due and payable to the Operator in connection
with any of the Loans, Operator shall have the right to set-off amounts
otherwise available for distribution to Owner as Owner's Target Return hereunder
against amounts outstanding with respect to the Loans, except to the extent of
any money damages claimed by Owner against Operator in any pending arbitration
or judicial proceeding brought by or against Owner, and provided that Operator
shall promptly advise Owner of any amounts set off pursuant to this Agreement.
To the extent that Operator is not permitted to set-off certain amounts as a
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result of Owner's claim for money damages against Operator in any pending
arbitration or judicial proceeding as provided in the preceding sentence, such
amounts otherwise available for distribution to Owner shall be placed in an
escrow account by the parties pending resolution of the arbitration or judicial
proceeding with respect to the same.
1.30. "PLANS" shall mean full and adequate plans, specifications, drawings
and designs, both interior and exterior, of the Hotel Unit and other
improvements constituting the Hotel, and any changes thereto.
1.31. "PRE-OPENING EXPENSES" shall mean all costs and expenses of preparing
the Hotel for business operation (including without limitation those for
staffing the Hotel, advertising, promotion, literature, technical services,
opening ceremonies, travel and business entertainment) whether incurred prior to
or concurrently with the beginning of business operation of the Hotel, by
Operator for the account of the Owner. Pre-Opening Expenses shall also include
payments to be made to Sonesta for the services of its employees, if and when
rendered with the prior approval of Owner in connection with the opening of the
Hotel. All Pre-Opening Expenses shall be in accordance with a budget submitted
to and approved by Owner no later than twelve (12) months prior to the
anticipated Commencement Date (the "Pre-Opening Budget").
1.32. "PRE-OPENING LOAN" shall have the meaning ascribed to such term in
the Loan Term Sheet.
1.33. "RENTAL PROGRAM" shall mean and refer to those Residential Units that
are used by Operator for hotel purposes (i.e. rented for transient
accommodations) from time to time under a rental program. Residential Units in
the Rental Program shall be operated by Operator, as agent of Owner, pursuant to
a "Rental Agreement" between the Owner and the Condominium Unit Owner of the
Residential Unit. The form of and the provisions in the Rental Agreement
relating to the terms under which Residential Units will be utilized in the
Hotel operation and the revenue-sharing resulting therefrom, and any amendment
thereto with respect to the same, shall be subject to Operator's prior written
consent. The Rental Agreement shall provide (among other things) that the rent
payable to the Condominium Unit Owners shall be based on rooms revenue collected
from guests net of various charges to be described therein, including without
limitation, if Owner determines that the same is feasible and practical from a
marketing perspective, a reasonable charge to compensate Owner for the use of
meeting space in the case of group bookings that utilize meeting or function
space at the Hotel and do not pay separately for such space (or pay a discounted
rate for such space).
1.34. "SITE" shall mean and include the parcels of land described in
Exhibit A attached hereto.
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1.35. "SOFT OPENING DATE" shall mean the date identified by Owner, subject
to Operator's reasonable approval, for the acceptance of guests but shall not be
prior to the satisfaction of the following conditions:
(a) A Certificate of Substantial Completion (AIA Document G704)
signed by Owner's architect, with a copy to Operator, certifying
that the Hotel Unit and not fewer than seventy (70) Keys in the
Rental Program have been constructed and completed in substantial
compliance with the Plans, and any supplemental plans, and in
accordance with all applicable laws, ordinances, rules and
regulations;
(b) All necessary occupancy or use permits for the Hotel Unit and not
fewer than seventy (70) Keys in the Rental Program have been
issued or will be issued upon appropriate application by Owner
(with respect to the occupancy permits) and by Operator (with
respect to the use permits);
(c) The Furnishings and Equipment have been provided and installed in
the Hotel Unit; and not fewer than seventy (70) Keys in the
Rental Program have been furnished and equipped in accordance
with the Plans therefore, but allowing, in the case of both the
Hotel Unit and the completed Residential Units for punchlist
items which do not materially impact the guest experience or the
ability of Operator to operate the Hotel;
(d) The landscaping of the Hotel is substantially complete in
accordance with Plans; and
(e) The Hotel Unit and not fewer than seventy (70) Keys have been
placed in the Rental Program and are in all respects ready for
occupancy and full business operation by Operator, except for
minor details (i.e."punchlist items") which, in Operator's
reasonable judgment, do not materially interfere with the full
normal operations of the Hotel or the quality of the guest
experience at the Hotel.
1.36. "SPECIALIZED HOTEL EQUIPMENT" shall mean such equipment as is used in
the operation of kitchens, laundries, dry cleaning facilities, bars, special
lighting and other facilities contained in the Hotel Unit from time to time.
1.37. "TERM" shall mean that period beginning on the Commencement Date and
ending at midnight on December 31 of the fifteenth (15th) complete Calendar Year
following the Commencement Date.
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1.38. "WORKING CAPITAL" shall mean those items which are included in the
definition of Working Capital under generally accepted accounting principles,
including without limitation cash, accounts receivable, inventories of food and
beverages, Consumable Supplies, prepaid expenses, accounts payable and accrued
expenses.
ARTICLE II
ENGAGEMENT OF OPERATOR, TERM
2.1. Owner engages Operator, and Operator accepts engagement, as the
manager and operator of the Hotel, as Owner's agent, which agency is
acknowledged by the parties to be for the benefit of Owner and Operator, upon
the terms and conditions of this Agreement. Owner covenants, warrants and
represents that during the Term Operator's engagement hereunder shall, subject
to any conflicting terms of this Agreement, be exclusive and undisturbed by
Owner or any person, corporation or other entity claiming either by, through or
under Owner.
2.2. The term of this Agreement shall be the Term unless it is sooner
terminated as hereinafter provided.
2.3. Owner covenants, warrants and represents that Operator shall and may
peaceably manage and operate the Hotel Unit throughout the Term, free from
molestation, eviction or disturbance by Owner or any person, corporation or
other entity claiming by, through or under Owner. Owner further promises to pay
and discharge, forthwith when due, any charges or other sums payable by Owner in
respect of the Hotel Unit (other than Operating Shortfalls that are Operator's
obligation under Section 3.4(a) of this Agreement) to assure Operator's quiet
and peaceable management and operation thereof, and to undertake and prosecute
at its own expense all judicial or other actions required to assure quiet and
peaceable management and operation to Operator, in either case so that
Operator's operation of the Hotel Unit pursuant to this Agreement will not, in
Operator's reasonable judgment, be adversely affected or impaired, or to permit
Operator to do the same, after notice to Owner, and charge all costs thereof to
Owner, such costs not to be treated as Expenses.
ARTICLE III
OPERATOR'S RESPONSIBILITIES
3.1. Operator agrees to operate the Hotel during the Term in a prudent
manner as a high quality, first-class, four-star hotel and to provide or cause
to be provided all activities in connection therewith which are customary and
usual to such an operation, to the extent consistent with the facilities
provided by Owner and/or the Residential Unit Owners from time to time. Based
upon Operator's
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experience and having reviewed the Plans, Operator has no reason to believe that
the Hotel's facilities are or will be inadequate to enable Operator to achieve a
four-star hotel standard.
3.2. Subject to the provisions of this Agreement, including without
limitation Section 5.9 regarding the Annual Plan, and the right of Owner (with
the consent of Operator as and to the extent required pursuant to Section 1.33
hereof) to modify the terms of the documents governing the use of a Residential
Unit in the Rental Program, Operator shall have control and discretion in the
management and operation of the Hotel Unit and the operation of the Rental
Program and of all properties and funds relating thereto. Without limiting the
generality of the foregoing, said control and discretion shall include the use
of the Hotel Unit for all customary purposes, and shall permit and require
Operator to do the following in the name and for the account of Owner and to
charge any cost thereof as an Expense:
(a) Employ, pay, supervise and discharge all employees and personnel,
including the General Manager of the Hotel, all of whom shall be
employees of Operator; provided, however, that the employees of
the Hotel shall not include any persons who are properly the
personnel of Sonesta's Central Office. Such authority or any part
thereof may be delegated by Operator to one or more persons
employed by Operator. Owner's approval shall be required
regarding the hiring of the General Manager, Sales/Marketing
Director and Controller. Owner shall indemnify and hold Operator
harmless from all liability and damages incurred by Operator in
relation to the employment, payment, supervision and discharge of
Hotel employees in the performance of Operator's duties
hereunder, but only to the extent that any such liability and/or
damages shall not have been caused by the gross negligence,
willful misconduct or bad faith of Operator.
(b) Supervise and maintain complete books and records as described in
Section 4.2(a), including without limitation the books of account
and accounting procedures of the Hotel.
(c) Make or cause to be made all ordinary and necessary repairs to
the Hotel and Furnishings and Equipment, so that it shall be
adequately maintained as part of a high quality, first-class
hotel. To the extent of Operating Shortfalls resulting from the
Condominium Unit Owners' failure to pay the Hotel Shared Costs
(or a portion thereof), which Operating Shortfalls arise (i)
prior to the Commencement Date, Owner shall fund such Operating
Shortfalls upon request by the Operator, and (ii) after the
Commencement Date, Operator shall fund such Operating Shortfalls.
In the event that either Owner or Operator funds any Operating
Shortfall under this
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subsection, such party shall thereafter be reimbursed from
subsequent amounts collected by the Operator from Condominium
Unit Owners pursuant to the enforcement of remedies contained in
the Declaration. Operator shall be diligent in taking such
actions as are provided for under the Declaration to enforce, or
cause to be enforced, Owner's rights with respect to those
Condominium Unit Owners that are delinquent with regard to such
payments, and to impose or cause to be imposed such special
assessments as are necessary to permit the proper maintenance,
repair and replacements of the improvements, Furnishings and
Equipment comprising the Hotel hereunder. Notwithstanding
anything herein to the contrary, the portion of the Hotel Shared
Costs required to be funded by Owner pursuant to the Declaration,
shall be funded hereunder from Gross Revenues and treated as an
Expense. Subject to the terms of any security agreement permitted
hereunder and relating thereto, Operator may from time to time
sell or dispose of any of the Furnishings and Equipment or
fixtures of the Hotel Unit which it reasonably deems to have
become obsolete or unsuitable. The proceeds of any such sale
shall be credited to the Capital Reserve Account (as defined in
Section 5.7).
(d) Negotiate and enter into service contracts which Operator deems
prudent in the ordinary course of business in operating the
Hotel, including without limitation: contracts for gas, security,
pest extermination, telephone and other services which Operator
deems advisable. Any such contract that is not terminable upon
termination of this Agreement without penalty or premium, or that
is for a period longer than one year, or that requires total
payments in excess of $15,000 per year, shall be subject to
Owner's prior approval.
(e) Purchase Furnishings and Equipment and Consumable Supplies which
are appropriate for the maintenance and operation of the Hotel
Unit as part of the Hotel in the normal course of business, at
competitive rates, and to consume the same in the operation of
the Hotel Unit.
(f) Determine the charges to be made for guest and function rooms,
commercial space, privileges, entertainment, recreation
facilities and food and beverages and all other services of the
Hotel.
(g) Determine and carry out the labor policies of the Hotel
(including for this purpose the Rental Program) relating, among
other things, to wage rates, hours and
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conditions of employment, hire and discharge of employees, and
institution in the Hotel of such profit sharing or other
retirement or employee benefit plans as Operator may in its
discretion deem advisable. The institution of any pension plan
for Hotel employees shall be subject to Owner's prior written
approval if the pension plan which Operator intends to institute
would (i) be instituted during the last three (3) years of the
Term, (ii) give credit for past service, and (iii) not be legally
terminable by Owner upon the termination of this Agreement
without cost or liability to Owner in excess of accrued benefits
on a termination basis.
(h) Determine and carry out all phases of marketing, advertising,
promotion and publicity.
(i) Negotiate and enter into leases, sub-leases, licenses and
concession agreements for commercial space and services at the
Hotel Unit, including without limitation shops, stores and
boutiques; provided, however, that any such contract that (A)
exceeds one (1) year in duration, or (B) would continue beyond
the Term, shall be subject to Owner's prior approval.
(j) Provide or arrange for a reservation system for the Hotel.
(k) Offer all Residential Unit Owners the opportunity to have their
Residential Units included in the Rental Program.
(l) Establish food and beverage policies and procedures.
(m) As needed in Operator's reasonable judgment, retain attorneys
and/or accountants and, in addition, deal with lawsuits against
the Hotel regarding claims not covered by insurance; provided
that the settlement of any such claim against the Hotel in excess
of $20,000 shall require the Owner's prior written consent.
(n) To use diligent efforts to obtain, with Owner's cooperation, the
licenses and permits required in the operation of the Hotel which
are listed in Exhibit 3.2(n) attached hereto prior to the Soft
Opening Date.
(o) To cooperate in good faith with Owner to obtain the licenses and
permits required in the operation of the Hotel which are listed
in Exhibit 3.2(o) attached hereto prior to the Soft Opening Date.
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3.3. Subject to this Agreement, Operator shall have exclusive possession
and control (for the account of Owner or, in the case of the Rental Program,
Residential Unit Owners and Owner) of all Gross Revenues and other moneys
involved in the operation of the Hotel (including for this purpose the Rental
Program), all of which will be the property of Owner, and of any bank accounts
in which any such moneys may be deposited. Operator will be responsible for
disbursing such moneys on behalf of Owner and/or such Residential Unit Owners
(but only in accordance with the terms of this Agreement and/or the Rental
Agreement(s) referenced in Section 1.33). After making the disbursements
pursuant to this Section, any excess funds remaining in such bank accounts over
such amounts for Working Capital as are necessary in Operator's reasonable
judgment for the continuing operation of the Hotel pursuant to the approved
Annual Plan, including contingencies and reserves, shall then be disbursed to
Owner on a quarterly basis within ten (10) business days after the end of each
calendar quarter. All funds used in the operation of the Hotel, and all receipts
and disbursements thereof (except insofar as funds are maintained in the Hotel)
shall be deposited in and withdrawn from one or more bank accounts from time to
time established in the name of Operator at such bank or banks in Coconut Grove
or Miami as Operator may, with the reasonable approval of Owner, select. The
only person or persons to withdraw funds from any such account(s) shall be
individuals approved by Operator.
3.4. (a) For the period from the Soft Opening Date until the Commencement
Date, Operator will not be obliged under any circumstances to
advance its own funds for any Operating Shortfall; provided,
however, that the foregoing shall not be a limitation with
respect to advances of funds from the Pre-opening Loan for the
funding of such shortfalls. The provisions of this SECTION 3.4
shall apply only during such period of operation. During the
period following the Commencement Date, Operator shall be
responsible for Operating Shortfalls, as provided in SECTION 5.12
of this Agreement. The following subsections shall apply to the
period between the Soft Opening Date and the Commencement Date
only.
(b) Within ten (10) business days following receipt of written notice
from Operator that the Hotel Unit has (or shall shortly have)
insufficient funds to properly operate the Hotel Unit, Owner
shall provide such funds as Operator deems necessary in its
reasonable discretion to be expended under this Agreement for the
operation of the Hotel Unit to the extent provided in this
section.
(c) If Owner does not provide such funds within said ten (10) days,
Operator shall have the right (but not the obligation) to provide
such funds, for which it will be reimbursed by Owner out of
Owner's separate funds (not those of the Hotel Unit) with
interest at a floating rate of interest equal to the prime or
base rate of
35
Citibank, N.A., New York, plus four (4) percentage points.
(d) If Operator is not reimbursed as described in subsection (c)
above, within ten (l0) days after Operator so provides such funds
and notifies Owner of same, Operator may reimburse itself (with
interest as aforesaid) out of Gross Revenues, such interest not
to be an Expense.
(e) In addition to the foregoing, Operator shall also have the right,
in the event of the failure by Owner timely to make any payment
required by the provisions of this Section 3.4 to be made by it,
to elect to terminate this Agreement upon thirty (30) days prior
written notice to Owner, and unless such payment is made within
twenty (20) days of the giving of such notice, this Agreement
shall (at the option of Operator) thereupon terminate and come to
an end.
(f) The aforementioned rights of reimbursement and termination shall
be in addition to any other rights which Operator may have with
respect to any provision of this Agreement or otherwise,
including without limitation the right of Operator to seek, by
any legal means, repayment from Owner for any funds which
Operator provides under the provisions of Section 3.4(c).
3.5. To the extent of Gross Revenues and moneys provided by Owner or on
behalf of Owner, Operator will make disbursements in the manner and to the
extent provided in this Agreement, directly to the obligees thereof.
3.6. Operator shall be entitled to charge reasonable amount(s) as an
Expense(s) for any services provided to the Hotel by Sonesta's in-house
executives and/or staff, which services would have been provided by third
parties had such executives and/or staff not been available, provided such
charge(s) are competitive with non-Affiliates providing similar services, with
due regard to quality and timing of delivery, and provided further that the
charges are consistent with the Annual Plan. Such services may include, without
limitation, advertising, public relations, purchasing, design, specialized
training, and computer programming and installation. Operator shall not, without
Owner's consent, receive any rebates, commissions, adjustments in connection
with purchases for accounts other than Owner's, or other benefits as a result of
purchases on Owner's behalf unless a proportionate amount of such benefits or
rebates is passed along to Owner. Additionally, Operator shall, at the request
of Owner, provide Owner with information reasonably requested by Owner in
connection with any goods, services or materials acquired for the Hotel from
Affiliates or suppliers of Operator.
36
3.7. Once per month or more frequently as reasonably requested by Owner,
the Hotel General Manager shall meet at the Hotel Unit with Owner and/or Owner's
representative(s), at a mutually convenient time, to discuss Hotel operations.
Operator agrees to also make other key staff members available for such meeting,
as reasonably requested by Owner.
3.8. In accordance with Section 5.12 of this Agreement, Operator shall be
responsible for and fund in a prompt manner any Operating Shortfall such that
the operations of the Rental Program shall not be disturbed or impaired.
3.9. To promptly pay all Expenses in a manner consistent with customary
business practices within the hotel industry.
ARTICLE IV
ANNUAL STATEMENTS
4.1. On or before March 31 of each Calendar Year or Fractional Year,
Operator shall submit to Owner a profit and loss statement and balance sheet
audited by Ernst & Young, Certified Public Accountants, or by such other
national firm of independent public accountants as may be selected by Owner from
time to time, so long as the same shall be reasonably acceptable to Operator
(the "Audited Financial Statements"). Notwithstanding anything to the contrary
contained herein, the accountants engaged for purposes of preparing the Audited
Financial Statements shall be engaged by Owner and shall perform such work for
the Owner and not for the Operator.
(a) The Audited Financial Statements shall be prepared in accordance
with Uniform System (as defined in Section 1.12 hereof), on the
accrual basis in accordance with generally accepted principles of
accounting applicable to the operation of hotels, (except as this
Agreement may otherwise provide), and shall set forth the profit
or loss of the operation of the Hotel (including for this purpose
the Rental Program) for the prior Calendar Year or Fractional
Year.
(b) The Audited Financial Statements shall set forth in reasonable
detail the amounts of the Base, Marketing and Licensing, and
Incentive Fees payable to Operator.
4.2. (a) Operator shall keep or cause to be kept, for the account of
Owner, complete and adequate books of account and other records
reflecting the results of occupancy and operation of the Hotel in
accordance with the Uniform System and generally accepted
principles of accounting consistently applied and applicable to
the operation of hotels. Owner may, at its own expense and
through its duly
37
appointed agents, inspect such books and records at reasonable
times and during normal business hours. All such books and
records shall belong to Owner and the same shall be delivered to
Owner upon expiration or earlier termination of this Agreement.
(b) If Owner questions any of the amounts for any period as shown by
the Audited Financial Statements, or the computations used in
determining the same, and if Owner and Operator are unable to
agree thereon, then the matter in dispute shall be submitted for
a binding decision to a Certified Public Accountant (other than
the Accountant) selected by the parties hereto. If Owner and
Operator shall be unable to agree on the selection of a Certified
Public Accountant for this purpose within ten (10) days after
their failure to agree upon Owner's questions, the matter shall
be referred to arbitration pursuant to the provisions of ARTICLE
XII hereof. Notwithstanding anything herein contained to the
contrary, Owner shall, absent manifest error, be conclusively
deemed to have accepted the said accounts and the accuracy
thereof as shown in any Audited Financial Statements, and the
computations used in determining the same, unless Owner, within
sixty (60) days after the receipt of any such Audited Financial
Statements, notifies Operator that Owner questions the amount of
such items shown thereon or the computations used therein and
specifies the items or other computations which Owner questions.
ARTICLE V
OBLIGATIONS OF OPERATOR
5.1. Operator covenants and agrees to perform and carry out the following,
in the name and for the account of Owner, and subject to Section 3.4:
(a) To keep the Hotel Unit (at all times during the Term), and the
Association Property, Common Elements and Limited Common Elements
of the Condominium, as such terms are defined in the Declaration
(but only for so long as Operator shall also be the manager of
the Condominium Association), insured against damage or loss by
fire, flood and casualties covered by the broad form,
comprehensive perils (all risk subject to standard exclusions and
limitations) on a replacement cost basis, in an amount equal to
at least the full replacement value thereof (less any customary
"deductible" amount), and to deliver certificates of such
insurance to Owner and the Condominium Association (if
applicable)
38
promptly upon obtaining such insurance. Such policies and all
other policies obtained by Operator pursuant to this Agreement
shall be written to insure Owner and Operator, and (if
applicable) the Condominium Association and Condominium Unit
Owners, and such other parties as Owner may reasonably request,
as their respective interests may appear; the proceeds thereof
shall be payable in case of loss to Owner's mortgagee(s) or a
commercial bank trustee and shall be released in accordance with
the provisions of ARTICLE VIII. To the extent that Operator is
not the manager of the Condominium Association, Operator shall,
if requested by Owner, use reasonable diligence (recognizing that
Operator may not have the legal authority to influence the
Condominium Association's decisions) in causing the Condominium
Association to obtain the coverages described herein on behalf of
the Association.
(b) To maintain a policy or policies of comprehensive general
liability insurance, including primary and umbrella layers of
coverage, indemnifying Owner and Operator against all claims and
demands (less any customary "deductible" amounts), for any
personal injuries to, or death of, any person(s) and for damage
to or destruction or loss of property, which may have (or be
claimed to have) occurred in, on or in connection with the
operation of the Hotel, in amounts not less than Twenty-Five
Million Dollars ($25,000,000.00) for injury to or death of one
person and Twenty-Five Million Dollars ($25,000,000.00) for
injury to or death of more than one person in any single
occurrence, and for not less than Five Million Dollars
($5,000,000.00) for damage to or destruction or loss of property.
Such limits shall be increased (or decreased) from time to time
by Operator as prudence dictates or as Owner reasonably directs.
(c) To maintain and keep current such of the following types of
insurance, at such times and in such amounts as Operator shall
deem necessary or advisable, or as Owner reasonably directs, if
such insurance is available on usual terms and at customary rates
consistent with industry standards:
(i) Elevator liability insurance, and insurance against theft
of or damage to guests' property;
(ii) Worker's compensation, employer's liability or similar
insurance;
(iii) Rental value and use and occupancy insurance against loss
or damage by fire and the hazards included in an extended
coverage endorsement;
39
(iv) Boiler and machinery insurance;
(v) Comprehensive crime bond;
(vi) Innkeeper's insurance (to the extent not otherwise
covered);
(vii) Automobile, bodily injury and property damage liability
and physical damage insurance;
(viii) Insurance as is carried by other hotels in the Sonesta
Group, where the nature of the business and the geological
and climatic nature of the area where the Hotel is located
makes the same appropriate.
(d) Operator shall cooperate in obtaining such additional insurance
coverages as Owner may advise Operator in writing that Owner
reasonably requires, pursuant to the Declaration or otherwise,
provided, however, Operator shall not be obligated to obtain any
such coverage if in the exercise of Operator's reasonable
business judgment Operator does not believe such insurance is
appropriate for the Hotel and Operator advises Owner of the same
in writing. Owner or Operator may submit any disagreement
regarding insurance coverage to arbitration in accordance with
the terms of ARTICLE XII of this Agreement but Operator shall not
be required to obtain or maintain any insurance coverage, the
appropriateness of which has been submitted to arbitration,
pending a determination of the arbitration proceeding provided
that appropriateness of such insurance has been challenged in
good faith.
(e) Operator may maintain any insurance permitted or required by this
Agreement under a blanket policy covering the Hotel and other
properties in the Sonesta Group. The premiums for any insurance
maintained under blanket policies shall be at least at market
rate and may be allocated by Sonesta on a reasonable basis, among
the various properties covered by said policies. Operator will
deliver to Owner certificates of all such insurance promptly upon
obtaining such insurance. Owner's mortgagees shall be reflected
on such policies in accordance with the applicable loan
documents, as requested by Owner in writing. All insurance
policies permitted or required to be obtained by Operator
pursuant to this Agreement shall be issued with insurers having
an A.M. Best Rating of A- or better unless otherwise agreed to by
Owner in its sole and absolute discretion.
40
(f) Any dispute between Owner and Operator as to full replacement
value shall be determined at the expense of the Hotel Unit by an
appraiser selected by them jointly. The determination of the
appraiser so selected shall be binding upon both parties until
changed by subsequent appraisal, which may be required by either
party within three (3) years after an appraisal has been made in
accordance with this provision. If the parties are unable to
agree upon an appraiser within thirty (30) days after the request
by one of them for such agreement, the matter may be submitted
for arbitration under the provisions of ARTICLE XII hereof.
(g) Provided Operator maintains the insurance coverages required
pursuant to the terms of this Agreement or as otherwise agreed to
by Owner, and notwithstanding any provision in this Agreement to
the contrary, Operator shall not be liable to Owner or any other
party for damages in connection with its failure to obtain or
maintain levels or types or classes of insurance coverage
sufficient to satisfy the cost of any casualty, claim, award,
judgment, etc. If Operator is unable to obtain or maintain the
insurance coverages set forth in, or otherwise required pursuant
to, this Agreement at commercially reasonable rates, Operator
shall not be liable to Owner in connection with its failure to
obtain or maintain such insurance coverages so long as Operator
promptly notifies Owner of the same and no contrary determination
with respect to such insurance has not been reached pursuant to
an arbitration proceeding in accordance with ARTICLE XII of this
Agreement.
(h) Any insurance permitted or required by this Agreement to be
obtained by the Operator may be obtained by the Owner in its
discretion upon notice to the Operator prior to Operator
obtaining such insurance or prior to Operator's renewal of the
same, but only if Owner is able to obtain such insurance on the
same or equivalent terms as Operator would have obtained and at a
lower cost to the Hotel than otherwise obtainable by Operator.
5.2. (a) To pay when and as the same are due and payable (with the
right to pay the same in installments to the extent permitted by
law subject to Owner's prior approval), all real estate taxes,
personal property taxes and betterment assessments levied or
assessed on or against the Hotel Unit or any portion thereof for
any fiscal period of the taxing authority, all or any part of
which period is included in the term of this Agreement. The
unreimbursed portion of any such amount which is applicable to
the term of this Agreement shall be an Expense.
41
The portion not so applicable shall be repaid to Operator by
Owner out of its separate funds upon demand, but if Owner does
not pay such portion within fifteen (15) days of such demand,
Operator shall be entitled to recover the same in accordance with
the provisions of SECTION 3.4 hereof.
(b) Owner, or Operator in Owner's name, may in good faith at any time
contest the validity or the amount of any such tax or assessment,
and any refund or rebate shall be a reduction of the Expenses for
the year in which such refund or rebate was received.
Expenditures in any contest hereunder shall be Expenses.
5.3. To keep and maintain the Hotel in good operating order and first class
condition subject to reasonable use and wear, fire or casualty, and subject to
the provisions of Section 5.5, and not to commit waste upon the Hotel.
Notwithstanding anything in this Agreement to the contrary, if any
"structural repairs, alterations or changes" (as such phrase is defined below)
in or to the Hotel Unit shall be required by reason of any Structural Defects
(as such term is defined below), such repairs, alterations or changes shall be
made and such defects shall be cured by Owner (or, at Owner's request, by
Operator as Owner's agent) and paid for out of the Capital Reserve Account (if
such funds are available and not allocated for other purposes) or from funds
charged or assessed to Condominium Unit Owners pursuant the terms of the
Declaration as Hotel Shared Costs.
To the extent that funds are to be furnished by Condominium Unit Owners
pursuant to the Declaration as Hotel Shared Costs for payment of the items
described in the preceding paragraph and such funds have not been received by
Operator, the obligation of both Owner and Operator to perform the foregoing
repairs, alterations or changes shall be delayed until such funds are received
by Operator, unless the repairs, alterations or changes in question are of an
emergency nature or are required for purposes of compliance with applicable law.
In the event that the foregoing repairs, alterations or changes are required to
be made prior to Operator's receipt of assessed funds from the Condominium Unit
Owners as provided in the preceding sentence, Operator shall advance as a loan
the funds otherwise not received from Condominium Unit Owners (other than
Owner's portion of the Hotel Shared Costs as the owner of the Hotel Unit as
provided in the Declaration, the "OWNER'S HOTEL SHARED COST PORTION") for
purposes of performing such repairs, alterations or changes up to a total
maximum outstanding amount of $300,000 at any one time (including any then
outstanding amounts loaned by Operator in relation to Capital Refurbishing
Programs pursuant to the first paragraph of SECTION 5.9(B) hereof). Any such
loan by Operator shall bear interest (compounded annually) at a floating rate of
interest equal to the prime or base rate of Citibank, N.A., New York, plus one
percentage point, from the date that such funds are advanced
42
by Operator until repaid from subsequent amounts collected by the Operator from
Condominium Unit Owners pursuant to the enforcement of remedies contained in the
Declaration or from amounts credited to the Capital Reserve Account for
subsequent months pursuant to SECTION 5.7 hereof.
Owner's Hotel Shared Cost Portion assessed by Operator for purposes of
repairs, alterations or changes for the items described in the preceding
paragraphs and any amounts not required to be loaned by Operator as provided
above, shall be funded first out of the Hotel's Gross Revenues and treated as an
Expense hereunder (to the extent of available Gross Revenues therefor), and
thereafter through Owner's own funds.
For purposes of this Agreement, the phrase "structural repairs, alterations
or changes" shall be those which involve or affect the concrete and cement
elements (functional and decorative), and any supporting steel or wooden
elements of the Hotel Unit, including (without limitation) all pilings, columns,
beams, joists, slabs, walls, roofs, decks, facades, balconies and planters. For
purposes of this Agreement the term "STRUCTURAL DEFECTS" shall include, without
limitation, cracking, heaving, buckling, abnormal movement and other signs of
distress as well as inadequate anchorage, inability to withstand a computed load
which the element was or should have been designed to withstand and, for the
purposes hereof, ineffective waterproofing in any area of the Hotel Unit.
5.4. To use reasonable good faith efforts to comply with all federal, state
and local laws and ordinances affecting the use of the Hotel; provided that
Operator's obligation shall be subject to the limitations contained in Section
5.3 hereof. With respect to any alleged violation of any such laws or
ordinances, Operator, after notice to Owner, shall have the right to contest the
allegation in the name of Owner and postpone compliance pending the
determination of such contest, if permitted by law.
5.5. Upon the expiration or earlier termination of this Agreement, or on
the cessation of its operation of the Hotel, to yield up to Owner the Hotel Unit
(including all replacements and additions thereto made after the commencement of
this Agreement) in the same condition in which it was received, or may be put
in, excepting reasonable wear and tear and damage by fire or casualty and
subject to the provisions of Section 5.3. Operator shall, at that time, also
turn over xxxxx cash and other funds, accounts, books and records, combinations,
computer records (and passwords), including hard copies and electronic media in
a non-proprietary format to Owner. In connection with any such termination of
this Agreement, Operator and Owner shall cooperate in effecting an orderly
transition to new management.
5.6. Owner or its agents shall be welcome in and upon the Hotel to examine
the condition thereof, at all reasonable times; provided, however, that such
entry shall in no way interfere with the operation of the Hotel.
43
5.7. Operator shall create a separate book account ("Capital Reserve
Account") and, monthly, shall credit to said account out of Gross Revenues
attributable to the Hotel Unit an amount determined by Operator and reasonably
approved by Owner, on a annual basis in conjunction with the Annual Plan (or
more frequently as reasonably deemed necessary by Operator and approved by Owner
pursuant to an amendment to the Annual Plan), which shall be sufficient to fund:
(i) Condominium assessments allocated to the Hotel Unit for the cost of capital
replacements or additions to the common elements of the Condominium as described
in the Declaration, and (ii) the portion of capital additions and replacements
in and to the Hotel Unit which are not funded pursuant to Section 12.1 of the
Declaration, including, without limitation, those "structural repairs,
alterations or changes" (as such phrase is defined in Section 5.3 hereof) in or
to the Hotel Unit required whether by reason of ordinary use and wear, or by any
laws, ordinances, rules, regulations or orders of any governmental or municipal
authority, or otherwise. Any amount not expended for these purposes shall be
carried forward to subsequent periods. Notwithstanding the foregoing provisions
of this Section, the parties acknowledge the following:
(a) The budget for capital additions and replacements for the Hotel
Unit for each Calendar Year (or Fractional Year) is based on
revenue projections made prior to the beginning of the year and
actual revenues will be different; and
(b) Capital additions are made during the year before the actual
revenues for the Hotel Unit for the year are known;
therefore, the parties agree that Operator shall be deemed to have properly
performed its obligations hereunder if the amount actually spent for capital
additions and replacements in and to the Hotel Unit in a Calendar Year (or
Fractional Year) does not exceed the higher of (a) the applicable percentage of
such originally forecasted revenues or (b) the applicable percentage of actual
revenues achieved for capital additions and replacements. The amount actually
spent or incurred by Operator for capital additions and replacements, in and to
the Hotel Unit, either under (a) or (b) above or by agreement of the parties,
for a Calendar Year (or Fractional Year) shall be deemed to be the amount
allocated to the Capital Reserve Account under this Section.
5.8. Within fifteen (15) days after the end of each calendar month, to
provide Owner with monthly financial statements regarding the operation of the
Hotel, which statements shall contain the information specified in Exhibit 5.8
attached hereto and incorporated herein and a balance sheet.
5.9. The following provisions shall control the parties' obligations with
respect to the Annual Plan:
(a) Operator shall submit to Owner not later than forty-five (45)
days before the
44
beginning of each Calendar Year or Fractional Year (except as
otherwise agreed to by Owner in its sole and absolute discretion)
a proposed Annual Plan for the Hotel, which shall include a
marketing plan and a repairs and maintenance budget, and
otherwise contain the information referenced in Exhibit 5.9(a)
attached hereto and incorporated herein. Commencing with the
budget for the second year of operations of the Hotel, Operator
shall include a line item in the annual budget for purposes of
funding a reserve in a sufficient amount, based on Operator's
experience and past practice, to cover any unpaid portion of the
Hotel Shared Costs by the Condominium Unit Owners. The funding of
the foregoing reserve shall be a part of the Hotel Shared Costs.
If required by an institutional mortgage lender, and with
appropriate advance notice to Operator, Operator shall submit the
Annual Plan to Owner earlier than 45 days prior to the beginning
of a Calendar Year.
(b) Operator shall submit to Owner at the same time as it submits the
Annual Plan or as part of the Annual Plan (except as otherwise
agreed to by Owner in its sole and absolute discretion), and at
such other times as Operator deems appropriate, details of
proposed capital refurbishing programs (including those items
described in Section 5.7 hereof, the "Capital Refurbishing
Programs") for Owner's approval, provided, however, that in the
event, Owner does not give its approval to the proposed Capital
Refurbishing Programs within twenty (20) business days, those
areas of the Hotel Unit affected by the failure of Owner to
approve such capital refurbishing, including services provided
therein, shall be excluded in any determination of whether
Operator is in default of its obligations to operate the Hotel
Unit as a high quality hotel insofar as the physical
characteristics of the Hotel Unit and the replacement of
Furnishings and Equipment, Specialized Hotel Equipment and
fixtures in the Hotel Unit would impair Operator's ability to
meet that obligation. Any dispute as to the necessity to
implement any such Capital Refurbishing Program, or any portion
thereof, in order to so operate the Hotel Unit shall be resolved
by arbitration pursuant to ARTICLE XII. Operator shall provide
funds for any such Capital Refurbishing Program by special
assessment to Condominium Unit Owners as a Hotel Shared Cost, and
through an allocation of a portion of Gross Revenues or from the
Capital Reserve Account to the extent such costs (or any portion
thereof) are not assessable or capable of being lawfully charged
to Condominium Unit Owners pursuant to the Declaration. In the
event that there are insufficient funds in the Capital Reserve
Account for
45
purposes of implementing the Capital Refurbishing Program due to
failure of the Condominium Unit Owners to pay their portion (or a
part thereof) of the Hotel Shared Cost assessment with respect to
the Capital Refurbishing Program in accordance with the
Declaration (other than failure of Owner to fund the Owner's
Hotel Shared Cost Portion of the same), the Operator shall fund
any such deficiency as a loan to Owner up to a total maximum
outstanding amount of $300,000 at any one time (including any
then outstanding amounts loaned by Operator in relation to
structural repairs, alterations or changes pursuant to Section
5.3 hereof). Any such loan by Operator shall be repaid from
amounts credited to the Capital Reserve Account for subsequent
months pursuant to Section 5.7 hereof, and shall bear interest
(compounded annually) at a floating rate of interest equal to the
prime or base rate of Citibank, N.A., New York, plus one
percentage point, from the date that such funds were advance by
Operator until repaid in accordance herewith.
(c) Owner's Hotel Shared Cost Portion assessed by Operator for
purposes of implementing the foregoing Capital Refurbishing
Programs shall be funded first out of the Hotel's Gross Revenues
and treated as an Expense hereunder (to the extent of available
Gross Revenues therefor), and thereafter by Operator as a loan,
which loan shall bear interest (compounded annually) at a
floating rate of interest equal to the prime or base rate of
Citibank, N.A., New York, plus one percentage point and shall be
repaid from amounts credited to the Capital Reserve Account for
subsequent months pursuant to Section 5.7 hereof. No amounts
loaned by Operator pursuant to this paragraph shall be included
for purposes of calculating the total maximum outstanding amount
of loans required from Operator pursuant to the immediately
preceding paragraph and Section 5.3 hereof.
(d) Any amounts in excess of those required to be loaned by Operator
as provided in this section shall be Owner's responsibility and
shall be funded first out of the Hotel's Gross Revenues and
treated as an Expense hereunder (to the extent of available Gross
Revenues therefor), and thereafter through Owner's own funds.
(e) Owner shall notify Operator in writing of any and all comments
Owner has regarding the Annual Plan, or of its approval or its
disapproval of the Annual Plan, not later than twenty (20)
business days after receipt thereof. If no such notice is given
by Owner within such twenty (20) day period, then Owner shall be
deemed
46
to have approved of the Annual Plan as submitted by Operator. If
Owner disapproves of all or any portion of the Annual Plan within
such twenty (20) day period, Owner shall furnish Operator with
detailed reasons for its objections to the Annual Plan and Owner
and Operator shall attempt to agree in respect of the items to
which Owner objects within twenty-one (21) days after notice of
disapproval has been given, and if such agreement is not reached
before such time, then either of the parties may refer the matter
to arbitration pursuant to the provisions of ARTICLE XII hereof.
Pending the arbitration decision, the undisputed parts of the
Annual Plan submitted by the Operator shall be deemed to be the
approved Annual Plan for the Calendar Year insofar as those parts
are concerned and the disputed parts shall be dealt with as
follows:
(i) if an Expense item appeared on the Annual Plan for the
preceding Calendar Year, that item shall be adjusted based
on increases in the Index relative to the previous year and
shall be deemed to be part of the Annual Plan for the
Calendar Year, and
(ii) for all other items, comparable provisions covering the
disputed items which appear in other approved annual plans
for similar hotels or resorts managed by Operator or its
Affiliates shall be deemed to be part of the Annual Plan for
the Calendar Year.
(f) Notwithstanding any of the foregoing, Owner acknowledges that,
despite Operator's experience and expertise in relation to the
operation of hotels and resorts, the projections contained in
each Annual Plan are subject to and may be affected by changes in
financial, economic and other conditions and circumstances beyond
Operator's control.
5.10. If any major category of income or expense for operations during any
year shall be materially different from the results envisioned by the approved
Annual Plan for such year, Operator shall (except as otherwise agreed to by
Owner in its sole and absolute discretion) submit revisions to the Annual Plan
for the remainder of such year, in reasonable detail, which revised Annual Plan
shall be subject to approval of the Owner in the same manner as the original
Annual Plan and shall be subject to arbitration if the revised Annual Plan shall
not be approved by Owner. "Materially different" shall mean as to any major
category of income a decrease of more than fifteen percent (15%) that is not
offset by a corresponding decrease in expenses and as to any major category of
expense an increase of more than fifteen (15%) that is not offset by a
corresponding increase in revenues.
47
5.11. To pay the Owner's Return to Owner in accordance with this Agreement
on a quarterly basis in four (4) installments within thirty (30) business days
after the end of each calendar quarter.
5.12. Operator shall be responsible for funding Operating Shortfalls;
provided, however, to the extent an Operating Shortfall exists as to any
Operating Year (or any portion thereof, with respect to the last Operating Year
of the Hotel, if any), Owner shall pay to Operator with respect to such
Operating Year (or any portion thereof, with respect to the last Operating Year
of the Hotel, if any), out of Owner's separate funds, the lesser of (i) the
amount of such Operating Shortfall, or (ii) the amount of any equipment lease
payments, plus the cost of auditing the Annual Statements delivered by Operator
to Owner pursuant to Section 5.16 hereof if such an audit is required by either
party pursuant to Section 5.16 hereof. Any such payment from Owner to Operator
shall be made on or before fourteen (14) days following Owner's receipt of the
Annual Statements delivered by Operator and accepted by Owner pursuant to
Section 5.16 hereof for such Operating Year (or any portion thereof, with
respect to the last Operating Year of the Hotel, if any), and if such payment
(or any portion thereof) is not paid by said date, then Operator may (but shall
not be obligated to) make such payment to itself and treat same as an advance
pursuant to subsections 3.4(b) and (c) hereof.
5.13. Unless otherwise agreed to by Owner and Operator, Operator shall
operate a shuttle bus between the Hotel Unit and Sonesta Beach Resort, in Key
Biscayne, Florida, pursuant to an Agreement between Operator and Florida Sonesta
Corporation (the General Partner of Sonesta Beach Resort Limited Partnership),
the terms of which shall be agreed upon by the parties after execution hereof
and shall be subject to Owner's prior consent. So long as the guests of the
Sonesta Beach Resort are not allowed to use the shuttle bus, all expenses
incurred in operating the shuttle bus shall be Hotel Shared Costs or, if not
chargeable as Hotel Shared Costs for any reason, an Expense. In the event that
the guests of the Sonesta Beach Resort are allowed to use the shuttle bus,
Owner, Operator and Florida Sonesta Corporation shall agree on a reasonable
allocation of the expenses incurred in operating the shuttle bus between the
Hotel and the Sonesta Beach Resort.
5.14. Operator shall use good faith efforts to cause the enforcement of
Owner's rights and to carry out Owner's responsibilities under the Rental
Agreements.
5.15. To provide to Owner the Loans described in the Loan Term Sheet in
accordance with the terms thereof.
5.16. Within thirty (30) days after the end of each Operating Year, to
provide Owner with an annual financial statement regarding the operation of the
Hotel for the immediately preceding Operating Year, which statements shall
contain the information specified in Exhibit 5.8 attached hereto and
incorporated herein but on an annual basis and a balance sheet (the "Annual
Statements"). Upon receipt
48
of the Annual Statements by Owner, Owner shall have thirty (30) days to review
the Annual Statements. In the event that Owner questions any matter shown in the
Annual Statements within such thirty (30) day review period, either party shall
have the right to require that the Annual Statements be audited in accordance
with the provisions in Section 4.1 hereof. Upon Owner's receipt of the foregoing
audited Annual Statements, the provisions of Section 4.2(b) hereof shall apply
to Owner's review of, and objection to, or acceptance of, the same, including,
without limitation, Owner's right to arbitrate any dispute in relation thereto.
ARTICLE VI
ADDITIONAL COVENANTS BY OWNER
Owner further covenants and agrees:
6.1. That other than with respect to the Encumbrances permitted pursuant to
Section 6.2 below, Owner shall remove, discharge or bond promptly any and all
liens suffered to be placed on the Hotel Unit or any part thereof, not caused by
Operator, in order that the possession of the Hotel Unit by Operator shall not
be disturbed.
6.2. (a) Until the Loans have been repaid in full, Owner shall incur
no encumbrances, easements, liens, covenants, charges, burdens,
claims, restrictions or other rights of third persons
("ENCUMBRANCES") with respect to the Hotel Unit, except for (i)
the construction loan which is secured by a mortgage encumbering
Owner's interest in the Hotel Unit (as to which an agreement
providing that the Operator shall not be disturbed following
foreclosure or deed-in-lieu of foreclosure has been or shall be
obtained in accordance with SECTION 13.16 hereof; the
"CONSTRUCTION LOAN"), and (ii) customary easements in favor of
utility providers or governmental bodies or other routine
Encumbrances arising in the development and construction process
which do not impair the operation of the Hotel or the suitability
or desirability of the Hotel Unit for its intended purpose.
(b) After the Loans have been repaid in full and, thereafter, until
termination of this Agreement (by expiration of the Term or
otherwise), to incur no Encumbrances with respect to the Hotel
Unit, including rights and obligations secured thereby, except
for the Construction Loan and other mortgages of Owner's interest
in the Hotel Unit where a nondisturbance agreement in favor of
Operator has been obtained pursuant to Section 13.16 hereof and
those described in Section 6.2(a)(ii), which Encumbrances may
have more than a de minimus adverse effect on or impair in more
than a de minimus manner, Operator's management of the
49
Hotel pursuant to this Agreement; provided, however, financing or
leasing secured by the Hotel Unit or any of the contents of the
Hotel Unit shall not, in and of itself, be deemed to have such an
effect.
6.3. Not to do or fail to do anything that would violate the terms,
covenants, conditions and obligations to be made, kept, observed or performed by
Owner under any concession, security instrument or other agreement in respect of
the Hotel Unit or any property relating to the Hotel Unit that would adversely
affect the operation of the Hotel Unit.
6.4. To provide adequate Working Capital as of the Commencement Date in the
amount set forth in the approved Pre-Opening Budget, although it is contemplated
that such Working Capital will be funded from the proceeds of the Pre-Opening
Loan.
6.5. To pay the Pre-Opening Expenses out of its separate funds (not those
of the Hotel Unit) directly to the obligees (whether they be Sonesta, Operator
or third parties) within ten (10) days after Operator gives Owner written notice
of the amount thereof together with any supporting statements submitted by such
obligees, provided, however, such expenses will be funded from the proceeds of
the Pre-Opening Loan.
6.6. To make available to the Operator sufficient parking within the Hotel
Unit at no more than market rate for the operation of the Rental Program and the
Hotel Unit.
6.7. To perform such acts and execute such documents as may be necessary to
enable Operator to assess and collect, on behalf of Owner, the Hotel Shared
Costs and to enforce such rights and remedies with respect to the collection
thereof as are granted to the Owner in the Declaration.
6.8. To use diligent efforts to obtain, with Operator's cooperation, the
licenses and permits required in the operation of the Hotel which are listed in
Exhibit 3.2(o) attached hereto prior to the Soft Opening Date.
6.9. To cooperate in good faith with Operator to obtain the licenses and
permits required in the operation of the Hotel which are listed in Exhibit
3.2(n) attached hereto prior to the Soft Opening Date.
6.10. To make the payment to Operator referenced in Section 5.12 hereof.
ARTICLE VII
REMUNERATION AND FEES
50
7.1. As remuneration for its services hereunder Operator shall be entitled
to the following fees, at the time and in the manner hereafter provided:
(a) A "Base Fee" equal to three (3%) percent of Gross Revenues,
payable on the tenth (10th) day of each month in arrears;
(b) A "Marketing and Licensing Fee" equal to two (2%) percent of
Gross Revenues, payable on the tenth (10th) day of each month, in
arrears, as a contribution to Sonesta's marketing overhead; and
(c) An annual "Incentive Fee" equal to twenty-five (25%) percent of
Net Operating Profit, as defined in Section 1.24.
Operator hereby acknowledges that the Management Fee (as defined in the
Rental Agreements) payable to the Operator under the Rental Agreement is
included within the Base Fee and Marketing and Licensing Fee described above,
and that Operator shall not be entitled to collect the Management Fee (as
defined in the Rental Agreements) under the Rental Agreement in addition to the
Base Fee and Marketing and Licensing Fee described herein.
7.2. Provided the Annual Plan for the current year indicates that Net
Operating Profit will be sufficient to cover the Owner's Return, the Incentive
Fee shall be paid quarterly in four (4) installments throughout the Term,
twenty-five (25) days following the end of each calendar quarter. As the result
of the payment of such annual Incentive Fee on a quarterly basis, the parties
acknowledge that subsequent months' operations may make the amount of such Fee
previously paid result in an overpayment or underpayment on a year-to-date
basis. In such event, an appropriate adjustment shall be made against current
payments to Operator and Owner. If at the end of a year there is an overpayment,
Operator shall promptly repay such overpayment.
7.3. Operator shall have the right to waive the receipt of any of the fees
referenced in Section 7.1 in order to increase Net Operating Profit for purposes
of paying the Owner's Return.
ARTICLE VIII
DAMAGE BY FIRE OR CASUALTY
8.1. Subject to the rights of any mortgagee to receive and apply available
insurance proceeds to discharging Owner's indebtedness, Operator, as agent for
Owner, shall repair, restore, rebuild and replace any damage to the Hotel Unit,
caused by fire or insured casualty to the extent of (i) available insurance
proceeds and (ii) funds otherwise available to Owner (i.e. as a loan(s) on
reasonable terms). Operator shall negotiate the adjustment of the insurance
loss, in consultation with Owner, and Owner shall
51
consent to any adjustment agreed to, reasonably and in good faith, by Operator;
provided, however, if the insurance loss claimed is greater than $100,000, (as
adjusted pursuant to the Index), Owner shall be entitled to participate directly
in such negotiation and if the amount of the adjustment is (i) more than
$250,000 (as adjusted pursuant to the Index) or (ii) less than the sum of (a)
the costs of repairs plus (b) any applicable deductible, such adjustment shall
require Owner's prior approval. Any insurance proceeds to which Owner is
entitled shall be delivered to and held by a mortgagee or commercial bank
trustee, in a separate interest-bearing account, to be applied to the cost of
such work. In the event that a third party adjuster is to be engaged by the
Operator under this Section, Operator's selection of such third party adjuster
shall be subject to Owner's prior approval.
8.2. If more than 50% of the Hotel Unit shall be damaged so that it is not
useable as a resort hotel, Owner shall have no obligation to Operator to rebuild
that portion of the Hotel, in which event Operator shall have the right to
terminate this Agreement on ninety (90) days notice to Owner.
8.3. Operator's fees, including without limitation the fees described in
ARTICLE VII, shall continue to be paid to Operator following a casualty and
shall be based on the revenues realized for the most recent comparable period(s)
of a calendar year in which there occurred no extraordinary event (such as a
casualty).
8.4. Notwithstanding anything to the contrary in this Agreement, the rights
of Operator pursuant to this Article shall be modified as necessary or
appropriate to enable Owner to comply with the Declaration and to avoid legal
liability in connection with the handling of casualty losses arising from
reasonable claims by, or the rights of, Condominium Unit Owners and their
mortgagees.
ARTICLE IX
CONDEMNATION
9.1. If all or any portion of the Hotel Unit shall be taken or condemned in
any eminent domain, condemnation, or like proceeding by any competent authority,
or if such a portion thereof shall be taken or condemned as to make it imprudent
or unreasonable, in Operator's reasonable opinion, to use the remaining portion
as a hotel of the type and class immediately preceding such taking or
condemnation, then in either event this Agreement shall cease and terminate as
of the date upon which the parties shall be required to surrender possession.
Any award for such taking or condemnation, or any portion thereof, which Owner
may receive shall be deposited promptly into and held in an escrow account in
the name of Owner and Operator. After the payment of all institutional mortgages
with respect to the Hotel Unit and, if so required by the Declaration, after
payment of all institutional mortgages with respect to all Residential Units and
the Commercial Unit and payment to Residential Unit Owners and to the owner of
the Commercial Unit of their share of the award as required by the Declaration,
Owner shall pay to Operator
52
any and all unpaid fees and costs. The termination of this Agreement pursuant to
the terms of this paragraph shall not excuse Owner from obligations hereunder
which accrued prior to termination.
9.2. If only a part of the Hotel Unit shall be taken or condemned, and
Operator does not terminate this Agreement under Section 9.1, Owner shall repair
any damage or alter or modify said part of the Hotel Unit, so as to render it a
complete and satisfactory architectural unit of the type and class immediately
preceding the taking or condemnation in accordance with plans and specifications
approved by Operator to the extent of available funds.
9.3. Notwithstanding anything to the contrary in this ARTICLE IX, the
obligations of Owner under this Article IX shall be qualified to the extent
necessary to allow compliance with the Declaration, which as of the date of
execution hereof provides that in the event of a condemnation of all or a
portion of the Shared Components (as such term is defined in the Declaration)
within the Hotel Unit where repair of any damage or modification of the Hotel
Unit is feasible and the cost of the same is $1,000,000 or less, Owner shall
repair or modify the same in accordance with the provisions of the Declaration.
The Owner hereby covenants that so long as Owner controls the Condominium
Association, Owner shall not amend the condemnation provisions in the
Declaration without Operator's consent.
ARTICLE X
TERMINATION OF AGREEMENT BY OWNER
10.1. If one or more of the following events shall occur:
(a) Except as otherwise provided in subsection (b) below, if Operator
shall be in default in the performance of any material term,
covenant or condition which this Agreement requires it to
perform, and Operator shall fail to cure such default within
thirty (30) days after receipt of written notice from Owner
specifying such default, or such longer period as may be
necessary to cure any such default using due diligence (provided
Operator has commenced said cure within thirty (30) days of such
notice from Owner and diligently pursues such cure to completion;
provided, however, that the cure period regarding payment of the
Owner's Return and any other defaults that can be cured through
the payment of money, shall be five (5) days); or
(b) Following Owner's receipt of the audited Profit and Loss
Statement for any year which includes a portion of the third
Operating Year, and for each Calendar Year thereafter, if Owner
has not received the Owner's Target Return for said year, which
amount shall be prorated for Fractional Years, and Operator fails
to remit
53
the amount of such deficiency to Owner within ten (10) business
days following Owner's notice of termination, which notice must
be given by Owner to Operator within thirty (30) days of Owner's
receipt of the audited Profit and Loss Statement for the
preceding Calendar Year;
then, so long as any such event is continuing, Owner may by notice in writing to
Operator terminate this Agreement forthwith; provided, however, that following a
termination under subsection (b) above, Operator shall continue operating the
Hotel pursuant to this Agreement in order to effectuate an orderly transition to
a new operator for such period of time as determined by Owner, which shall be no
more than nine (9) months but no less than ninety (90) days from the date of
termination, and during said period of time (A) Operator shall continue to
receive its fees hereunder, and (B) Operator shall have no obligation to fund
amounts that would otherwise accrue under SECTIONS 1.26 AND 1.27 of this
Agreement or otherwise hereunder after the date of the notice of termination by
Owner as provided in this paragraph.
10.2. If one or more of the following events shall occur, this Agreement
shall automatically terminate without notice or any other act from Owner:
(a) If Operator shall make any assignment of its property for the
benefit of creditors; or
(b) If Operator's interest under this Agreement shall be taken on
execution; or
(c) If Operator files a petition for adjudication as a bankrupt, for
reorganization or for an arrangement under any bankruptcy or
insolvency law, or if a receiver or trustee in bankruptcy shall
be appointed to take over the affairs of Operator; or
(d) If any involuntary petition under any such law is filed against
Operator and not dismissed within ninety (90) days thereafter.
10.3. The rights of termination granted Owner in this ARTICLE X shall be in
addition to any other right or remedy that may otherwise be available to Owner,
in law or in equity, including without limitation rights to damages or specific
performance.
ARTICLE XI
TERMINATION OF AGREEMENT BY OPERATOR
11.1. If Owner shall be in default of the due performance of any term,
covenant or condition which this Agreement requires it to perform, and shall
fail to cure, correct or remedy such default within the period of time specified
in the provision relating to such term, covenant or condition (or, if there
shall
54
be none, then within thirty (30) days after written notice from Operator
specifying such default), or such longer period as may be necessary to cure any
defaults using due diligence, then so long as any such event is continuing,
Operator may by notice in writing to Owner terminate this Agreement forthwith.
11.2. The rights of termination granted Operator in this ARTICLE XI shall
be in addition to any other right or remedy that may otherwise be available to
Operator, in law or in equity, including without limitation rights to damages or
specific performance.
ARTICLE XII
ARBITRATION
12.1. Any dispute (the settlement of which is not otherwise provided for
herein) arising hereunder between Owner and Operator shall be referred for
decision to arbitration as follows. Within twenty (20) days of the receipt by
one party of written notice from the other requesting arbitration and describing
in detail the dispute to be resolved, each party shall choose an arbiter with at
least ten (10) years' experience in or in connection with the hotel industry,
and both of said arbiters shall together resolve said dispute. In the event that
said arbiters have been unable to resolve said dispute within thirty (30) days
of the date the last of them was appointed, they shall together select a third
arbiter. Within thirty (30) days of the selection of said third arbiter with
like experience in or in connection with the hotel industry, said third arbiter
shall issue written notice to Owner and Operator choosing the position advocated
by either one of the parties' arbiters, without compromise. If the parties'
arbiters are unable to agree on a third arbiter within twenty (20) days, then
either party may apply to the American Arbitration Association, Miami Office,
for the appointment of a third arbiter to decide the dispute. Any arbitration
hereunder shall be conducted in Miami, Florida and the arbiters representing the
respective parties shall have the opportunity to submit written or documentary
evidence and oral testimony for the consideration of said third arbiter.
12.2. The decision in writing of the third arbiter so selected or appointed
shall be final and conclusive upon both parties. The costs and expenses of such
arbitration, including the compensation and expenses of such third arbiter, but
excluding attorneys' fees, shall be borne by the parties as the arbiters may
determine, but failing such determination, as an Expense; provided, however,
that if the third arbiter finds that a claim submitted for arbitration was
frivolous or that a party's conduct during the arbitration procedure was
unreasonable, the party making said claim or conducting itself unreasonably
shall bear all such costs and expenses. Either party may apply to any court of
competent jurisdiction for an order confirming the award; judgment of the court
shall be entered upon the award unless the award is vacated, modified or
corrected as provided by law.
55
12.3. All arbiters shall be bound by the provisions of this Agreement and
shall not have the power to subtract from, add to, or modify same. If requested
by either party, an arbitration shall be conducted in accordance with the
Expedited Procedures provisions of the Commercial Arbitration Rules of the
American Arbitration Association (or any similar successor rules) applicable as
of the date of the initiation of arbitration.
12.4. The pendency of arbitration proceedings hereunder shall stay the
rights and/or obligations of the parties as to the matter in dispute.
ARTICLE XIII
MISCELLANEOUS
13.1. Sonesta Marks. In its operation of the Hotel, Operator may utilize
trade names or trademarks which in whole or in part may be the same as or
similar to the trade names or trademarks used by it, Sonesta or members of the
Sonesta Group in connection with the operation of other hotels or resorts
("Sonesta Marks"). Operator shall take such actions as are necessary or
appropriate to ensure that it has the right to use the Sonesta Marks in
connection with the Hotel. The exclusive rights to the use of the trade names
and trademarks will belong to Operator, Sonesta or members of the Sonesta Group,
and are not in any way to be considered appurtenant to the Hotel; upon the
termination (by expiration or otherwise) of this Agreement, all further rights
to the use of any such trade names or trademarks shall remain in Operator,
Sonesta or members of the Sonesta Group, and neither Owner nor any other
occupant of the Hotel shall have any rights thereto. Owner shall bear the cost
of removing any signs referring to such trade names or trademarks from the Hotel
upon termination (by expiration or otherwise) of this Agreement; provided,
however, that nothing herein is intended to limit Owner's right to collect
damages in connection with the cost of removing such items upon termination of
this Agreement by Owner due to Operator's breach hereunder. The foregoing shall
also apply to any trade names or trademarks of Operator, Sonesta or members of
the Sonesta Group which may be hereafter adopted. Any trade names or trademarks
in existence on the Commencement Date in connection with the Hotel and belonging
to Owner, or thereafter developed specifically for the Hotel, (and not including
the trade name "Sonesta"), shall be and remain the property of Owner and upon
termination of this Agreement Operator shall have no further rights thereto.
13.2. No Waiver. No assent, express or implied, by Owner or Operator to any
breach of or default in any term, covenant or condition which this Agreement
requires to be performed or observed by the other party shall constitute a
waiver of or assent to any succeeding breach or default in the same or any other
term, covenant or condition hereof.
13.3. Assignment and Sale.
56
(a) Except as expressly otherwise provided, those terms, covenants
and conditions which this Agreement requires to be performed and
observed by Operator shall be binding upon Operator and its
authorized successors and assigns and shall inure to the benefit
of Operator and its authorized successors and assigns.
(b) Either party shall have the right to assign this Agreement to any
Affiliate, provided, as to Operator, that any such assignee
enjoys the same rights to the Sonesta Marks as Operator enjoyed.
(c) Owner may transfer its interest in the Hotel to a third party at
any time during the Term, so long as (i) such third party
transferee assumes this Agreement as part of the transfer, (ii)
such third party transferee does not enjoy a bad reputation in
its business dealings, and (iii) the transfer and assignment to
such transferee will not affect the ability of Operator or the
Sonesta Group to obtain or retain liquor and gaming licenses for
the Hotel or any other Hotel then operated by the Sonesta Group.
(d) Neither party shall have the right to make any other assignment
of this Agreement or any interest therein, or in the case of
Owner to transfer its interest in and to the Hotel Unit, without
the prior written consent of the other, provided, however, such
consent shall not be required if:
(i) Such assignment is to and is contemporaneous with a
transfer by Owner of its interest in the Hotel, and said
transferee does not assume the Owner's obligations under
this Agreement but Owner provides Operator with the Right
of First Offer described in and completes the transfer in
accordance with the terms of Section 13.25 of this
Agreement, including the payment of the Termination Fee
described therein (if applicable); provided, however, that
Owner shall not have the right pursuant to this subsection
to transfer its interest in the Hotel to a third party at
any time prior to the end of the third year following the
Commencement Date;
(ii) The transfer in question is a transfer of a portion or
portions of the Hotel Unit to the Condominium Association,
to the extent such a transfer is permitted or otherwise
required pursuant to the Declaration, or to the extent
required by applicable law, court order or administrative
ruling, provided that with respect to transfers which are
permitted under the Declaration (but which are not
otherwise required thereunder or pursuant
57
to applicable law, court order or administrative ruling),
the transfer does not have an adverse economic effect on
the Operator's ability to manage the Hotel or materially
impair the ability of Operator to manage the Hotel;
(iii) With respect to an assignment by Operator of this Agreement
or any of Operator's rights or duties hereunder, such
assignment is by Operator to any person, company or legal
entity with which or into which it is being
contemporaneously merged or to which it is
contemporaneously transferring substantially all of its
assets, so long as the surviving entity acquires rights to
the Sonesta Marks.
(e) Nothing in this Agreement express or implied, shall confer upon
any person or entity, other than the parties hereto and their
authorized successors and assigns, any rights or remedies under
or by reason of this Agreement.
(f) All references to "Owner" and "Operator" throughout this
Agreement shall include and apply to their respective authorized
successors and assigns; provided, however, that no permitted
assignment of this Agreement shall relieve the Assignor of its
obligations and liabilities under this Agreement, except with
respect to a permitted assignment of this Agreement by Owner in
connection with a sale of the Hotel as described in Section
13.3(c) above, or as otherwise agreed by the parties at the time
of such permitted assignment.
13.4. Notices. All notices to Owner shall be addressed to Owner at 0000 X.
Xxxxxxxx Xxxxx, Xxxxx 000, Xxxxx, Xxxxxxx 00000, or to such other place as may
be designated by written notice to Operator. All notices to Operator shall be
addressed to Operator at c/o Sonesta International Hotels Corporation, 000
Xxxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, Attention: Office of the
Treasurer, or to such other place as may be designated by written notice to
Owner. Any notice hereunder shall specify the Section(s) of this Agreement to
which it applies or under which it is given, if any. Notice shall be sufficient
if given by (i) registered mail, postage prepaid, return receipt requested, or
(ii) by overnight courier, provided delivery is evidenced by a written receipt.
Notices hereunder shall be addressed to the party at its address as described
above, and shall be effective when received. Unless otherwise notified in
writing, each party shall direct all sums payable to the other party at its
address for notice purposes.
13.5. Right to Handle Claims. If any claim which is not subject to contest,
whether for taxes or otherwise, arising in connection of the operation of the
Hotel, shall be asserted against Owner or against the Hotel, or any part
thereof, and Operator in good faith shall feel that such claim constitutes an
imminent threat to or would otherwise imminently jeopardize or interfere with
Operator's operation of the Hotel as
58
herein contemplated, Operator shall have the right to pay such claim on behalf
of Owner, being reimbursed in accordance with the provisions of Section 3.4,
provided, however, Operator shall have provided prior written notice to Owner of
the claim and the imminent threat or jeopardy resulting therefrom, and
indicating Operator's intent to pay such claim in the event that Owner does not,
0and shall thereupon provide Owner twenty (20) days from the date of receipt by
Owner of the foregoing notice in which to pay such claim or otherwise remove
such imminent threat or jeopardy in a reasonable manner.
13.6. Governing Law. This Agreement shall be governed by and construed and
interpreted in accordance with the laws of the State of Florida.
13.7. Force Majeure. Neither party shall be liable to the other in damages,
nor shall this Agreement be terminated, because of any failure to perform
hereunder caused by action or inaction of governmental authorities (not caused
by the non-performing party), fire, earthquake, flood, explosion, casualty,
strike, unavoidable accident, riot, insurrection, civil disturbance, act of
public enemy, embargo, war, act of God, inability to obtain labor, material or
supplies or any other similar cause beyond its control.
13.8. Captions. The captions and headings throughout this Agreement and its
Table of Contents (if any) are for convenience and reference only, and they
shall in no way be held or deemed to define, modify or add to the meaning, scope
or intent of any provision of this Agreement.
13.9. Consents. Except as herein otherwise provided, whenever in this
Agreement the consent or approval of Owner or Operator is requested by the other
party in writing, and provided the following legend is set forth in a
conspicuous typeface at the top of the first page of such request, with the
appropriate period of time inserted, such consent or approval shall be deemed
granted unless Owner or Operator (as the case may be) delivers a written denial
thereof to the requesting party within ten (10) business days of its receipt of
the request. Any such denial must be reasonable and must set forth the reason(s)
for denial in reasonable detail. Unless the party from whom consent is sought is
granted the right, pursuant to this Agreement, to exercise its sole and absolute
discretion as to the matter in question (which is evidenced by words of similar
import), any such denial of consent must be reasonable and must set forth the
reason(s) for denial in reasonable detail.
THE CONSENT REQUESTED HEREIN IS GOVERNED BY SECTION 13.9 OF THAT MANAGEMENT
AGREEMENT BETWEEN MUTINY ON THE PARK, LTD. AND SONESTA _______________
DATED _________, 2000. THE FAILURE TO DENY THE CONSENT REQUESTED WITHIN __
(BUSINESS) DAYS OF RECEIPT OF THIS NOTICE, TOGETHER WITH AN EXPLANATION OF
THE BASIS FOR ANY DENIAL, IF REQUIRED, SHALL BE DEEMED THE GRANT OF
CONSENT.
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13.10. Agency. Nothing herein contained shall constitute or be construed to
be or create a co-partnership or joint venture between Owner and Operator. For
the avoidance of doubt, however, it is recognized and agreed that the agency and
powers hereby granted to Operator are and shall be deemed throughout the Term to
be coupled with an interest in the Hotel Unit.
13.11. Invalid 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 does not contain such phrases,
sentences, clauses or paragraphs.
13.12. Name of Hotel. The name of the Hotel initially shall be: Sonesta
Hotel & Suites, Coconut Grove. Operator shall have the right to change such
name, or the name of any portion of the Hotel, from time to time, subject to
Owner's prior approval, which shall not be unreasonably withheld.
13.13. Amounts Owed on Termination. Upon any termination of this Agreement,
whether by expiration or under ARTICLE X or otherwise, Owner will forthwith pay
Operator all amounts owed to Operator under Sections 3.4 and 4.1, or otherwise,
net of amounts of Owner's Return owed by Operator to Owner (pro-rated for any
Fractional Year).
13.14. Recording of Notice. Either party shall have the right to record a
notice of this Agreement at the Public Records or other location where
instruments pertaining to the title of real estate are filed, provided that the
business terms of this Agreement shall not be disclosed in any such notice
without the prior consent of both parties.
13.15. Plans. The Plans and changes thereto which have a Material Adverse
Effect (as such term is defined below) on the improvements or their operation
shall be subject to Operator's review and approval. Any modifications to the
Plans required to be approved hereunder by Operator which are not approved or
disapproved in writing, within five (5) business days of receipt of such
proposed modifications, with objections stated with specificity, shall be deemed
approved by Operator. For purposes of this paragraph, a change or modification
shall be deemed to have a Material Adverse Effect on the improvements and their
operation if such change or modification: (a) causes any item or feature of the
Hotel to be below the standard customary for a four-star hotel, or (b) causes a
change in the size, configuration or finish of portions of the improvements in a
manner that materially impacts the guest experience or the operation of the
Hotel in an adverse manner or materially increases the expense or materially
diminishes efficiencies of maintaining or operating the Hotel.
13.16. Nondisturbance. Notwithstanding any other provision herein, if Owner
shall mortgage its interest in the Hotel Unit, Owner shall obtain from any
mortgagee a consent and nondisturbance
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agreement, in form prescribed by the mortgagee and reasonably acceptable to
Operator (but in any event in recordable form), by which any such mortgagee
agrees not to terminate or otherwise disturb the Operator's operation of the
Hotel under this Agreement in the event it acquires control of the Hotel Unit by
foreclosure or otherwise as long as Operator is not in default hereunder beyond
any applicable cure period. Any such nondisturbance agreement shall contain
provisions limiting the liability of the mortgagee with respect to the acts or
omissions of Owner prior to the date of transfer. Operator shall, upon written
request from Owner, subordinate this Agreement to any mortgagee which delivers
such a consent and nondisturbance agreement to Operator.
13.17. Entire Agreement. This Agreement and the appendices and exhibits
annexed hereto contain the entire agreement between the parties and supersede
all prior understandings, agreements and undertakings between the parties of any
kind or nature, whether written or oral, relating to the subject matter hereof.
This Agreement may be amended or modified only by a written instrument executed
by both parties. If, pursuant to the terms of any non-disturbance agreement
between Operator and any mortgage lender, such lender's consent is required
regarding any modification, amendment, cancellation, termination or assignment
of this Agreement ("Amendment/Assignment"), no such Amendment/Assignment shall
be effective unless and until any such required lender's consent is obtained in
writing. Notwithstanding the foregoing, a termination or cancellation of this
Agreement in accordance with the terms hereof shall not be deemed an
Amendment/Assignment for purposes of the preceding sentence.
13.18. Delay in Commencement. In the event that the Commencement Date has
not occurred (or cannot, as a practical matter, occur) by December 1, 2002,
Operator may terminate this Agreement by written notice to Owner.
13.19. Time of the Essence. Time is of the essence with respect to
Operator's and Owner's respective obligations hereunder; provided, however, that
any delay in the performance of any such obligations due to causes set forth in
Section 13.7 shall be deemed to extend the time for performance of such
obligations for the period of such delay.
13.20. Days. Any reference in this Agreement to "days" shall mean calendar
days, unless a contrary intent is clearly set forth.
13.21. Condominium Documentation.
(a) Use of Name. All references to Operator, any of its Affiliates,
or to the Sonesta Marks (as such term is defined in Section 13.1
hereof) in (i) any promotional, marketing, sales, or advertising
literature, (ii) any legal documents or agreements,
61
or (iii) in any official documents or instruments to be filed
with governmental or municipal departments or offices, shall in
all cases be subject to Operator's prior written approval.
(b) Modification of Condominium Documentation.
(i) Modifications Within Owner's Control. Any modification to
the terms and provisions of any Condominium documentation,
to which subsection (a) above does not apply, that
financially or operationally affects Operator in a
materially adverse manner shall be subject to Operator's
prior written approval, but only if at such time the
Condominium Association is under the control of Owner or
Owner's approval to such amendment is required under the
Condominium documentation prior to adoption of such
amendment; provided, however, that the parties hereto
acknowledge that any modification which financially affects
Operator shall be deemed to be materially adverse.
Notwithstanding anything in this Agreement to the contrary,
in the event that a modification to the Condominium
documents which requires the Operator's consent pursuant to
the preceding sentence will have a materially adverse
financial effect on the Operator, Operator's consent
thereto may be withheld in Operator's sole and absolute
discretion, including (without limitation) modifications
which increase Owner's Hotel Shared Cost Portion (as
defined in Section 5.3 hereof).
(ii) Modifications Outside of Owner's Control. If a modification
to the Declaration, which Owner did not have the right to
approve or did not initiate, or an order, ruling or
determination by a court or administrative body, results in
a modification of the allocation of the Hotel Shared Costs
(as they are described in the Declaration on the date of
execution hereof) between the Hotel Unit owner and the
other Condominium Unit Owners, and as a result thereof
Owner's Hotel Shared Cost Portion (as defined in Section
5.3 hereof) is increased to a percentage greater than ten
percent (10%), then Owner and Operator hereby agree to
attempt in good faith to revise this agreement to
compensate Operator for the economic impact of the amount
of the Owner's Hotel Shared Cost Portion which exceeds
seven and one half percent (7.5%). In the event that Owner
and Operator are unable to reach agreement with respect to
the foregoing
62
matter, the parties shall submit the matter to arbitration
in accordance with Article XII hereof.
13.22. Exclusivity. While this Agreement is in effect, neither Operator,
nor its Affiliates, shall own or operate another hotel, resort, time-share or
like facility (including any other hospitality or leisure-related concepts) in
Coconut Grove, the City of Coral Gables, or the Brickell Avenue corridor of
Miami, without Owner's prior written consent.
13.23. Providing Information. Operator shall cooperate with Owner in
providing financial and other information requested by Owner's lenders regarding
the operation of the Hotel Unit.
13.24. Parking and Ground Floor Restaurant. Operator shall have the right
to review and approve any entity proposed by Owner as an operator or manager
(other than Owner or an Affiliate of Owner) for the restaurant within the
Commercial Unit or for the parking garage located within the Hotel Unit,
provided that Operator shall not unreasonably withhold its approval of any
candidate which is not (a) a person, or owned or controlled by persons, whose
business reputation, integrity or activities would reasonably be expected to
impair Operator's ability to obtain liquor or gaming licenses for other
properties owned or operated by Operator or its affiliates, or to reflect
adversely on the Hotel's or Operator's business reputation; and (b) Owner shall
cause the restaurant within the Commercial Unit and the parking garage located
within the Hotel Unit to be operated and maintained at all times in accordance
with physical and operational standards complimentary to and consistent with the
Hotel.
13.25. (a) Operator's Right of First Offer. In the event that
Owner decides to sell the Hotel Unit at any time after the
end of the third year following the Commencement Date to a
transferee who will not assume Owner's obligations under
this Agreement, Owner shall provide Operator a right of
first offer to purchase the Hotel Unit (the "OPTION") at a
gross sales price determined by Owner (the "SALES PRICE").
During the period commencing with the end of the third year
following the Commencement Date until the end of the
seventh year following the Commencement Date, Operator may
exercise such Option by payment to Owner of 75% of the
Sales Price (the "DISCOUNTED SALES PRICE") payable as
follows: (i) at least 50% of the Discounted Sales Price
shall be payable in cash at closing, and (ii) the remainder
of the Discounted Sales Price shall be paid by delivery of
a purchase money promissory note to Owner in a principal
amount equal to the remainder of the Discounted Sales
Price, at an annual interest rate equal to Prime Rate plus
two percentage points (adjusted on a monthly basis), and
maturing at the end of the seventh year following the
Commencement Date (but
63
prepayable at any time on five (5) business days written
notice), which amount shall be secured by a mortgage on the
Hotel Unit (the "SELLER FINANCING MORTGAGE"). The Seller
Financing Mortgage may be subordinated to a first mortgage
securing the cash portion of the Discounted Sales Price. No
other debts shall be secured by the Hotel Unit. Any amounts
due to Operator under the Loans at closing, shall reduce
the principal amount of the purchase money note described
in (ii) above and, to the extent of any deficiency, shall
thereafter reduce the amount of cash payable by Operator
pursuant to (i) above.
During the period commencing with the end of the seventh
year following the Commencement Date until the end of the
eleventh year following the Commencement Date, Operator may
exercise such Option by payment to Owner of the Discounted
Sales Price in cash at closing. Any amounts due to Operator
under the Loans at closing, shall reduce the amount of cash
payable by Operator.
During the period commencing with the end of the eleventh
year following the Commencement Date until the end of the
Term of the Management Agreement, Operator may exercise
such Option by payment to Owner of the Sales Price reduced
by the lesser of (i) 25% of the Sales Price, or (ii) the
fair market value of the unexpired Term of the Management
Agreement.
In the event that Operator fails to accept the Option
within 30 days of receipt of the same from Owner, Owner
shall be entitled to sell the Hotel Unit to any third party
purchaser (and in connection with such sale terminate this
Agreement after 30 days notice of termination to Operator)
for a price not less than ninety-five (95%) percent of the
Sales Price specified in such Option and on other
reasonable terms, including, without limitation,
allocations and adjustments, provided that the contract for
sale is entered into within nine (9) months of delivery of
the Option to Operator and the transaction closes within
180 days of the execution of the contract, PROVIDED THAT,
the Owner shall pay to Operator, contemporaneously with the
closing, (i) the Termination Fee set forth below, and (ii)
all outstanding amounts under the Loans.
Notwithstanding anything to the contrary contained in this
Agreement, Owner shall have the right to sell the Hotel
Unit (or a portion thereof) to a third party at any time
prior to the end of the third year following the
Commencement Date so long as such third party assumes this
Agreement in writing with a copy of such
64
assumption being contemporaneously delivered to Operator,
and otherwise satisfies the provisions of SECTION13.3(C)
hereof. In addition, in no event shall Owner have the right
to terminate this Agreement in connection with the sale of
the Hotel Unit to a third party prior to the end of the
third year following the Commencement Date.
(b) Termination of Management Agreement Upon Sale of Hotel Unit
to Third Party. In the event that Operator fails to accept
the Option within 30 days of receipt of the same from Owner
and Owner transfers the Hotel Unit to a third party as set
forth above, Owner shall be entitled to terminate the
Management Agreement upon the payment to Operator of the
following amounts (the "Termination Fee"):
(i) if such sale shall occur at any time after the end
of the third year following the Commencement Date but
before the end of the of the eleventh year following
the Commencement Date, a Termination Fee equal to 25%
of the Net Sales Proceeds (as defined below) received
by Owner for the sale of the Hotel Unit; or
(ii) if such sale shall occur at any time after the end
of the of the eleventh year following the Commencement
Date, a Termination Fee equal to the lesser of (x) 25%
of the Net Sales Proceeds received by Owner for the
sale of the Hotel Unit, or (y) the fair market value of
the unexpired Term of the Management Agreement. The
term Net Sales Proceeds shall mean the gross sales
price for the Hotel Unit minus all reasonable and
customary costs associated with the sale and closing of
the same (including, without limitation, attorney's
fees, taxes, recording costs, brokerage fees and other
customary closing costs which are seller's
responsibility under the purchase contract for the sale
of the same), but before deducting the indebtedness
secured by the Hotel Unit.
13.26 Parent Guaranty. By executing the attached joinder, Sonesta
International Hotels Corporation does hereby guaranty the obligations of
Operator hereunder, including without limitation, the obligation to provide the
Loans and to comply with the funding criteria for such Loans, as more
particularly set forth in EXHIBIT 1.22 to this Agreement.
65
IN WITNESS WHEREOF, the parties have caused this instrument to be executed
and their respective seals to be affixed hereto by their duly authorized
representatives, as of the day and year first above written.
Attest: MUTINY ON THE PARK, LTD.
By:/s/ By: Flagler on the Park, Inc.,
------------------- as sole general partner
Name:
--------------------
Title:
--------------------- By: /s/
------------------------------
Name:
--------------------------------
Title:
-------------------------------
Attest: SONESTA COCONUT GROVE, INC.
By:/s/ By:/s/
--------------------- ------------------------------
Name: Name:
---------------------- --------------------------------
Title: Title:
--------------------- -------------------------------
JOINDER OF OPERATOR'S PARENT:
Sonesta International Hotels Corporation does join into this Agreement for the
purpose of guaranteeing the obligations of Operator hereunder, including without
limitation, the obligation to provide the Loans and to comply with the funding
criteria for such loans, as more particularly set forth in EXHIBIT 1.22 to this
Agreement.
Attest: SONESTA INTERNATIONAL HOTELS CORPORATION
By: /s/ By: /s/
----------------------------- ---------------------------------
Name: Name:
------------------------------- -----------------------------------
Title: Title:
------------------------------ ----------------------------------
66
EXHIBIT A
PROPERTY DESCRIPTION
67
EXHIBIT B
DECLARATION
68
EXHIBIT 1.22
LOAN TERM SHEET
As an inducement to Owner to grant the Management Agreement, Operator has agreed
to provide three (3) loan facilities to Owner (the "LOANS"), as follows:
(a) A One Million and No/100 ($1,000,000.00) Dollar facility (the "PRE-OPENING
LOAN") to be funded as and when needed for (i) all pre-opening expenses,
technical services and initial working capital in connection with Hotel, and
(ii) if Operator reasonably determines that there will be sufficient funds
remaining after funding the items in (i) above, for operating deficiencies
during the soft opening period, provided that any amounts funded by Owner for
operating deficiencies during the soft opening period (based on Operator's
determination that there would not be sufficient funds for the funding of the
same from the Pre-Opening Loan) shall be refunded to Owner to the extent of any
unfunded amounts from the Pre-Opening Loan after payment of all items described
in (i) above; (b) a Two Million and No/100 ($2,000,000.00) Dollar facility (the
"FURNISHINGS AND EQUIPMENT LOAN") to offset a portion of the cost of the
Furnishings and Equipment within the Premises; and (c) a Two Million and No/100
($2,000,000.00) Dollar facility (the "CONSTRUCTION AND FF & E LOAN") to fund a
combination of (i) changes in construction which may be based on recommendations
of Operator, (ii) Furnishings and Equipment not funded pursuant to the
Furnishings and Equipment Loan, and (iii) such other expenses as shall arise
from time to time in connection with the development and operation of the
Premises. The funding of the last $1,000,000 out of the $4,000,000 comprising
the Furnishings and Equipment Loan and the Construction and FF&E Loan shall be
made as required for the purposes described above only after the first Temporary
Certificate of Occupancy on the Hotel Unit (the "TCO") has been issued;
provided, however, that in the event that the issuance of such TCO is delayed by
reasons beyond the control of Owner and the building is in substantially the
condition that would entitle Owner to obtain such TCO, Operator shall be
reasonable in considering the funding of such amounts.
GENERAL CONDITIONS TO FUND THE LOANS: The following shall be conditions
precedent to Operator's obligation to fund any of the Loans: (a) Operator is
satisfied that there are sufficient funds available to the Owner to complete the
improvements in accordance with the plans and specifications, provided that (i)
the continued funding by the construction lender under the construction loan
shall be deemed to be sufficient evidence of sufficiency of funds to complete,
and (ii) after the construction loan is fully funded, Operator shall be
reasonable in its determination of adequacy of funds to complete; (b) Owner
shall have entered into binding condominium unit purchase agreements providing
for purchase prices totaling not less than $34,000,000; (c) Owner shall have
entered into a bonded lump sum construction contract with Xxxxxx Construction;
(d) Owner shall have covenanted not to incur any indebtedness with respect to
the project
69
prior to repayment in full of all Loans other than (i) a
construction loan from Ocean Bank, (ii) the indebtedness to Xxxxxxx Xxxxx (or
his assignee) of up to $2,700,000 plus interest thereon (the "XXXXXXX XXXXX
LOAN"), (iii) the Loans, and (iv) other unsecured trade credit in the ordinary
course of business; (e) upon satisfaction in full of the construction loan, all
sales proceeds from the residential units received by Owner shall be used to
repay the Xxxxxxx Xxxxx Loan in full (up to $2,700,000 plus interest thereon)
prior to making any distributions to the partners of Owner; (f) Owner shall have
obtained from its construction lender a consent and nondisturbance agreement, in
form prescribed by the construction lender and reasonably acceptable to
Operator, pursuant to which the construction lender agrees not to terminate or
otherwise disturb the Operator's operation of the Hotel under the Management
Agreement in the event it acquires control of the Hotel by foreclosure or
otherwise as long as Operator is not in default under the Management Agreement
beyond any applicable cure period, provided that such nondisturbance agreement
shall contain provisions limiting the liability of the construction lender with
respect to the acts or omissions of Owner prior to the date of transfer, and
Operator shall, upon written request from Owner, subordinate the Management
Agreement to such construction lender (a "NON-DISTURBANCE AGREEMENT"); (g) Owner
shall have obtained from Xxxxxxx Xxxxx (or his assignee) a Non-disturbance
Agreement in favor of Operator in the event that Xxxxxxx Xxxxx (or his assignee)
forecloses on his first priority collateral pledge of the Owner's partnership
interests; (h) none of the indebtedness described in clause (d) above, with the
exception of that referred to in sub-clauses (i) and (iii) shall be secured by a
mortgage lien; (i) Owner shall have perfected in favor of Operator a first lien
security interest (the "FIRST PRIORITY ASSIGNMENT OF PARTNERSHIP INTERESTS") on
all of the partnership interests comprising Owner to secure the funding of the
third $1,000,000 (plus interest thereon) out of the $4,000,000 comprising the
Furnishing and Equipment Loan and the Construction and FF&E Loan, which security
interest shall supercede, among other interests, the security interest securing
the Xxxxxxx Xxxxx Loan (the "SECOND PRIORITY ASSIGNMENT OF PARTNERSHIP
INTERESTS"); (j) Owner shall have perfected in favor of Operator a third lien
security interest on all of the partnership interests comprising Owner (the
"THIRD PRIORITY ASSIGNMENT OF PARTNERSHIP INTERESTS") to secure all amounts of
principal and interest outstanding pursuant to the Loans which shall be
subordinate only to the First Priority Assignment of Partnership Interests and
the Second Priority Assignment of Partnership Interests; (k) Owner shall have
executed promissory notes evidencing the Loans in form and substance
substantially similar to the form of note attached hereto as EXHIBIT 1.22A; and
(l) Xxxxxxx Xxxxx (in his personal capacity) shall have executed a guaranty in
favor of Operator in form and substance substantially similar to the guaranty
attached hereto as EXHIBIT 1.22B (the "XXXXXXX XXXXX GUARANTY").
INTEREST: The Furnishings and Equipment Loan and the Construction and FF & E
Loan shall bear interest at an annual rate equal to a prime or base rate quoted
from time to time by Citibank, N.A. (or alternative to be specified in the
promissory notes) ("PRIME RATE") plus seventy-five (75) basis points, such rate
being
70
adjusted on a monthly basis. The interest on the Furnishings and Equipment
Loan and the Construction and FF&E Loan shall be compounded annually. The
Pre-Opening Loan shall not bear interest, except that in the event that the
principal amount that would otherwise have been repaid pursuant to the terms of
the paragraph below entitled "Pre-Opening Loan" is reduced as a result of making
payments for equipment lease charges as permitted Expenses under Section 1.12(o)
of the Management Agreement, interest at the Prime Rate plus .75 shall accrue,
compound annually, and be payable by Owner with respect to that portion of the
principal amount of the Pre-Opening Loan that would have been repaid if the
payments for such equipment lease charges had not been made.
PRE-OPENING LOAN: Until the Pre-Opening Loan has been repaid in full, all
payments otherwise due Owner pursuant to the Management Agreement shall be
applied to the repayment of principal under the Pre-Opening Loan.
CONSTRUCTION AND FF & E LOAN: Following repayment of the Pre-Operating Loan and
until such time as the Construction and FF & E Loan has been repaid in full
(together with all interest accrued thereon) all payments otherwise due to Owner
pursuant to the Management Agreement shall be applied first to the payment of
accrued and unpaid interest and thereafter to the repayment of outstanding
principal under such loan. All amounts of principal and interest outstanding
under the Construction and FF & E Loan on the first (1st) day of the fifteenth
(15th) year of operation of the Hotel shall be immediately due and payable on
such first (1st) day of such fifteenth (15th) year.
FURNISHINGS AND EQUIPMENT LOAN: No payments on the Furnishings and Equipment
Loan shall be made until all amounts outstanding pursuant to the Pre-Operating
Loan and Construction and FF & E Loan have been paid in full. Following
repayment of the Pre-Operating Loan and Construction and FF & E Loan all of the
payments otherwise due Owner pursuant to the Management Agreement shall be
applied first to the repayment of accrued and unpaid interest and thereafter to
outstanding principal pursuant to the Furnishings and Equipment Loan. All
amounts of principal and interest outstanding under the Furnishings and
Equipment Loan on the first (1st) day of the fifteenth (15th) year of operation
of the Hotel shall be immediately due and payable on such first (1st) day of
such fifteenth (15th) year.
SET OFF: Operator shall have the right to setoff amounts due Owner pursuant to
the Management Agreement against amounts due Operator in connection with the
Loans except to the extent of money damages claimed by Owner against Operator in
any pending arbitration or judicial proceeding brought by or against Owner.
Operator shall promptly advise Owner of any amounts set off pursuant to this
Agreement. To the extent that Operator is not permitted to set-off certain
amounts as a result of Owner's claim for money damages against Operator in any
pending arbitration or judicial proceeding as provided in
71
the preceding sentence, such amounts otherwise payable to Owner shall be placed
in an escrow account by the parties pending resolution of the arbitration or
judicial proceeding with respect to the same.
COLLATERAL: Except as provided in subsection (i) of the paragraph captioned
"General Conditions to Fund the Loans" regarding the First Priority Assignment
of Partnership Interests, the Loans shall be secured by the Third Priority
Assignment of Partnership Interests, PROVIDED, HOWEVER, that further pledges of
Owner's partnership interests shall be permitted so long as the same are subject
and subordinate to Operator's collateral pledges described herein. A transfer of
partnership interests in the Owner to Xxxxxxx Xxxxx (or his assignee) shall be
permitted under the Management Agreement without the prior consent of the
Operator.
Owner and Operator hereby acknowledge, for themselves and any assignee,
successor or assign of their respective interests in the collateral described
herein, that the rights of each holder of an interest in such collateral,
relative to competing or conflicting rights of other holders of an interest in
the collateral, shall be governed by the terms and conditions of the
Intercreditor Agreement between Operator and Dunin, a copy of which attached
hereto as EXHIBIT 1.22 E and is incorporated herein by this reference.
As additional collateral to Operator for repayment of the Loans, Operator may
require that upon satisfaction of the construction loan, Owner shall provide a
first priority mortgage lien on the Hotel Unit securing all principal and
interest then owed to the Operator under the Loans, which mortgage shall be in
form and substance substantially similar to the form mortgage attached hereto as
EXHIBIT 1.22C. Neither a breach by Operator of the terms of the Management
Agreement, nor the termination of the Management Agreement shall impair
Operator's right to require or maintain such a mortgage. In the event that such
additional collateral shall be required by Operator, all costs relating to such
mortgage (including, without limitation, attorney's fees, recording costs and
taxes) shall be borne by both parties in equal amounts. Upon the perfection of
such first mortgage lien on the Hotel Unit, the First Priority Assignment of
Partnership Interests, the Third Priority Assignment of Partnership Interests
and the Xxxxxxx Xxxxx Guaranty in favor of Operator shall be discharged.
In the event that the Management Agreement is terminated prior to the expiration
of the Term thereof for any reason other than a breach of the Management
Agreement by Operator (failure to pay the Owner's Target Return shall not be
considered a breach for this purpose) or the sale of the Hotel Unit, the
outstanding balance of the three (3) Loans shall be paid in quarterly
installments based on a twenty (20) year amortization schedule and the interest
rates established herein above, with all accrued and unpaid interest and
outstanding principal becoming due and payable in full in a final balloon
payment on the fifth (5th) anniversary of the date that Operator ceases to
occupy the Premises, provided Owner provides
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Operator the collateral described hereinabove, which collateral shall not be
required to include a mortgage lien on the Hotel Unit so long as the
construction loan thereon has not been fully repaid. In the event that the
Management Agreement is terminated prior to the expiration of the Term thereof
as a consequence of Operator's breach of the Management Agreement, the Loans
shall be repaid from Net Operating Profit as specified in the Management
Agreement provided that Owner provides Operator the collateral described
hereinabove, which collateral shall not be required to include a mortgage lien
on the Hotel Unit so long as the construction loan thereon has not been fully
repaid. Nothing herein is intended to preclude Owner from setting off against
the Loans any damages in connection with such a breach. In the event that the
Management Agreement is terminated prior to the expiration of the Term thereof
in connection with the sale of the Hotel Unit, the outstanding balance of the
Loans and all accrued interest thereon shall become immediately due and payable.
PROCEDURE FOR ADVANCES: Advances under the Loans shall be made by wire transfer
or deposit to an account specified by Owner in accordance with the draw
procedures set forth in the side letter attached hereto as EXHIBIT 1.22D.
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EXHIBIT 1.22A
FORM OF NOTE
74
EXHIBIT 1.22B
XXXXXXX XXXXX GUARANTY
75
EXHIBIT 1.22C
FORM OF MORTGAGE
76
EXHIBIT 1.22D
MUTINY ON THE PARK LTD.
0000 X. XXXXXXXX XXXXX, XXXXX 000
XXXXX, XX. 00000
August 31, 2000
Boy xxx Xxxx
SONESTA INTERNATIONAL VIA EMAIL
Re: Mutiny Park Loan Draw Procedures
Dear Boy:
Further to our conversation of yesterday, please find attached a summary of my
understanding of the proposed loan draw procedures. It would be great if you
could take a look and acknowledge that my understanding is correct by initialing
below.
An obvious precursor to the entire process would be finalization of our
management agreement. I am cautiously optimistic that that will be achieved
soon.
We would then agree on a tentative breakdown of the FF&E and Construction loan
amounts. We would reallocate between line items as we gather additional
information and the project proceeds. Clearly the initial draws would be related
to the construction changes and the associated architects and engineering
expenses.
We would provide you with a standard draw breakdown indicating on a category by
category basis: the original budget amount, budget revisions, revised budget,
amount drawn to date, current draw request, balance to complete. We would
present draw requests as needed but would make every effort not to exceed two
per month.
We would attach appropriate invoice back up for our draw amounts, and you would
always be free to have someone come in and review all the appropriate back up
and inspect the site and work completed.
Provided that the draw requests and back up is in order we would receive funding
within a week following receipt.
Thank for your assistance and please call with any questions or concerns
Best Regards,
AGREED AS WRITTEN
Xxxx Xxxxxxxx
/s/
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77
EXHIBIT 1.22E
INTERCREDITOR AGREEMENT
78
EXHIBIT 3.2(n)
PERMITS TO BE OBTAINED BY OPERATOR
1. CITY OCCUPATIONAL LICENSE. Upon receipt of a Certificate of Use, it is
necessary to obtain a City of Miami Occupational License for the use or uses to
be conducted on the premises.
2. COUNTY OCCUPATIONAL LICENSE. After receipt of a Certificate of Use and
City Occupational Licenses, an Occupational License from Miami-Dade County must
be obtained.
3. STATE HOTEL LICENSE. Prior to operating a hotel or food service
establishment on the premises, the Operator must obtain a License from the State
of Florida, in accordance with Chapter 509 Florida Statutes.
4. STATE LIQUOR LICENSE. The hotel and/or restaurants or bars that operate
on the premises must obtain a Liquor License from the State. Pursuant to Fla.
Stat. Section 561.20(2)(a), any hotel, or ancillary bar/restaurant, which meets
certain minimums (100 rooms in Miami-Dade) is eligible for a special "hotel
liquor license".
79
EXHIBIT 3.2(o)
PERMITS TO BE OBTAINED BY OWNER
1. CERTIFICATE OF USE. A Certificate of Use must be obtained from the City
following receipt of a Certificate of Occupancy, but prior to operation and
prior to obtaining an Occupational License.
2. CITY FIRE SAFETY PERMIT. A City Fire Safety Permit for the use or uses
to be conducted on the premises.
80
EXHIBIT 5.8
FORM OF MONTHLY FINANCIAL STATEMENT
81
EXHIBIT 5.9(a)
FORM OF ANNUAL PLAN
82
