EXHIBIT 10.1(c)
INTERCREDITOR AGREEMENT
This INTERCREDITOR AGREEMENT (the "AGREEMENT") is entered into as of the
____ day of December, 2000 by and between XXXXXXX XXXXX XXXXXXXXX ("DUNIN"),
SONESTA COCONUT GROVE, INC. ("SONESTA"), and MUTINY ON THE PARK, LTD. ("OWNER")
RECITALS:
X. Xxxxx has provided certain credit to Owner in the maximum aggregate
amount of Two Million Seven Hundred Thousand and No/100 ($2,700,000.00) Dollars
(the "XXXXXXX XXXXX LOAN"), which Xxxxxxx Xxxxx Loan is secured by one or more
collateral assignments of the partnership interests in the Owner (the
"COLLATERAL"; the "SECOND PRIORITY ASSIGNMENT OF PARTNERSHIP INTERESTS").
B. Sonesta has provided financing in the aggregate amount of up to Five
Million and No/100 ($5,000,000.00) Dollars to the Owner (the "SONESTA LOANS")
which are secured in part by two separate collateral assignments of the
partnership interests in the Owner (being the same as the "Collateral" described
in Recital A, above), the first of which secures the sum of up to One Million
and No/100 ($1,000,000.00) Dollars of principal to be funded by Sonesta,
together with interest accrued and unpaid thereon (the "FIRST PRIORITY
ASSIGNMENT OF PARTNERSHIP INTERESTS") and the second of which shall secure any
other amounts funded by Sonesta in connection with the Loans (the "THIRD
PRIORITY ASSIGNMENT OF PARTNERSHIP INTERESTS").
NOW, THEREFORE, in order to clarify the relative priorities between Dunin
and Sonesta and the rights which each shall have with respect to the exercise of
rights against the Collateral, the parties hereto agree as follows:
1. INCORPORATION BY REFERENCE. The matters set forth in the recitals to
this Agreement are affirmed and incorporated by this reference herein.
2. CERTAIN DEFINITIONS. The First Priority Assignment of Partnership
Interests, the Second Priority Assignment of Partnership Interests and the Third
Priority Assignment of Partnership Interests are sometimes hereinafter referred
to individually as a "COLLATERAL ASSIGNMENT" and collectively as the "COLLATERAL
Assignments" and any holder of such Collateral Assignment is hereinafter
referred to as a "COLLATERAL ASSIGNEE". For the purpose of this Agreement the
First Priority Assignment of Partnership Interests shall be deemed to be
superior to the Second Priority Assignment of Partnership Interests and the
Third Priority Assignment of Partnership Interests and the Second Priority
Assignment of Partnership Interests shall be deemed to be superior to the Third
Priority Assignment of Partnership Interests. Such designations are for the
purpose of description only and shall not affect the rights of the holders of
such Collateral Assignments with respect to each other.
85
3. BENEFICIARIES OF THIS AGREEMENT. Nothing contained in this Agreement is
intended to affect or limit, in any way, the security interests that each of
Dunin and Sonesta has in any of the Collateral, insofar as the rights of Owner
and third parties are involved. Dunin and Sonesta specifically reserve all
respective rights, security interests, and rights to assert security interests
against Owner.
4. NOTICE OF DEFAULT; RIGHT TO CURE. Sonesta and Dunin agree to provide
copies of any notices of default in connection with the Xxxxxxx Xxxxx Loan and
the Sonesta Loans, respectively, contemporaneously with the delivery of such
notice to the Owner and further acknowledge that each shall have an opportunity
to cure such default for a period of fifteen (15) days following the expiration
of the Owner=s opportunity to cure such default, as set forth in the default
notice. Neither Dunin nor Sonesta shall take possession of, foreclose upon, or
exercise any other right or remedy with respect to the Collateral, judicially or
non-judicially, and with or without the consent of Owner, without first
providing the other party an opportunity to cure the default upon which such
actions are based.
5. SUBORDINATION.
x. Xxxxx and Sonesta hereby acknowledge, for themselves and any
assignee, successor or assign of their respective interests in the Collateral,
that the rights of each holder of an interest in the Collateral, relative to
competing or conflicting rights of other holders of an interest in the
Collateral, shall be governed by this Intercreditor Agreement.
x. Xxxxx and Sonesta agree that upon a liquidation of the Collateral,
the proceeds of such liquidation shall be applied first to the obligations
(including interest on any such obligations, if applicable) secured by the First
Priority Assignment of Partnership Interests, thereafter to the extent of
remaining proceeds, to the obligations (including interest on any such
obligations, if applicable) secured by the Second Priority Assignment of
Partnership Interests, and thereafter to the extent of remaining proceeds, to
the obligations (including interest on any such obligations, if applicable)
secured by the Third Priority Assignment of Partnership Interests; provided,
however, that to the extent Dunin is personally obligated to Sonesta under a
written guaranty, the terms of that guaranty shall not be affected by, and shall
have precedence over, the foregoing provisions of this Section.
c. Notwithstanding the right of a collateral assignee of an interest
in the Collateral to exercise its rights to foreclose such assignment pursuant
to the applicable loan documents:
i. such Collateral Assignee shall be required to first pay in
full the obligations secured by any superior lien with
respect to the Collateral,
ii. any junior lien with respect to the Collateral shall be
unaffected by the exercise of rights against the Collateral
by a senior lien holder and shall not be extinguished by
virtue of the exercise of such rights, and
iii. An obligation of the Owner that is secured by a lien against
the Collateral
86
shall not be impaired by the exercise of rights against the
Collateral by a superior lien holder.
d. This Intercreditor Agreement shall be incorporated by reference in
each UCC-1 Financing Statement filed in connection with any of the Collateral
Assignments such that third parties shall be on notice of the priorities
established herein. Each of the terms and conditions of this Agreement shall
bind any purchaser of the Collateral through a judicial or non-judicial sale or
otherwise.
e. In the event that title to the Collateral is acquired by a party
that is also the holder of legal or beneficial title to a Collateral Assignment,
the rights of such party as Collateral Assignee shall not merge into the
ownership interest in the Collateral or be extinguished or impaired as a result
thereof.
6. DISTRIBUTIONS IN LIQUIDATION AND BANKRUPTCY. This Agreement shall be
enforceable both before and after the commencement, whether voluntary or
involuntary, of any case by or against Owner under the Federal Bankruptcy Code
or any state bankruptcy, insolvency or similar law, and all references herein to
Owner shall be deemed to apply to the owner of the partnership interests that
comprise the Collateral as a debtor-in-possession and to any trustee in
bankruptcy for the estate of the owner of such Collateral.
7. NO COMMITMENT TO PROVIDE ADDITIONAL FINANCING. This Agreement shall not
be construed in any fashion as a commitment or agreement by any party hereto to
continue, extend or modify the financing arrangements with Owner.
8. SUCCESSORS AND ASSIGNS. All of the terms, covenants, and conditions
herein contained shall inure to the benefit of and be binding upon the parties
hereto and their respective successors and assigns.
9. NO CHALLENGE TO LIENS. Except as provided herein, no party hereto shall
contest the validity, perfection, priority, or enforceability of any lien or
security interest granted by Owner to the other party hereto, and each party
agrees to cooperate in the defense of any action contesting the validity,
perfection, priority, or enforceability of any such lien or security interest at
the cost of the party defending such action.
10. REINSTATEMENT. If, after payment in full of the obligations to either
Dunin or Sonesta that are secured by the Collateral, Owner thereafter becomes
liable to either party on account of such obligations, or any payment made
thereon shall be required to be returned or refunded by virtue of a claim of
preference or fraudulent transfer or a comparable claim, this Agreement shall
thereupon in all respects become effective with respect to such subsequent or
reinstated obligations, without the necessity of any further act or agreement
between the parties.
11. NOTICES. All notices to Dunin shall be addressed to Dunin at 0000 X.
Xxxxxxxx Xxxxx, Xxxxx 000, Xxxxx, Xxxxxxx 00000, or to such other place as may
be designated by written notice to Sonesta. All notices to Sonesta shall be
addressed to Sonesta 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. Notice shall be sufficient if given by (i) registered mail, postage
87
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.
12. INTEGRATION. All of the understandings, agreements, representations,
and warranties contained herein are solely for the benefit of Dunin and Sonesta,
and there are no other parties (including without limitation Owner) who are
intended to be benefitted in any way by this Agreement.
13. RELATIONSHIP OF PARTIES. The Parties are in no manner to be construed
to be partners or joint venturers or to have any other legal relationship other
than as expressly set forth in the written agreements between them. The parties
each agrees to execute all such documents and instruments and take all such
actions as either party hereto shall reasonably request to carry out the
purposes of this Agreement.
14. MISCELLANEOUS. This Agreement shall be governed by and construed in
accordance with the laws of the State of Florida. Unless the context otherwise
requires, all terms used herein which are defined in the Uniform Commercial Code
as adopted in the State of Florida shall have the meanings therein stated. This
Agreement may be amended only in a writing signed by the party or parties to be
bound thereby. This Agreement constitutes the entire agreement between the
parties with respect to the subject matter hereof and supersedes any and all
oral or written agreements or understandings between the parties pertaining to
such subject matter. If any party brings any action or proceeding to enforce,
protect, or establish any right or remedy provided for herein, the prevailing
party or parties shall be entitled to recover reasonable attorneys= fees and
costs. Unless otherwise provided for in this Agreement, all notices or demands
by any party relating to this Agreement shall be in writing and sent by regular
United States mail, postage prepaid, properly addressed to the other party at
the address shown above or to such other address as any party may from time to
time specify to the other in writing or otherwise actually delivered to the
other party. This Agreement may be executed in counterparts, each of which shall
be deemed an original and all of which taken together shall constitute one and
the same Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers or representatives, thereunto duly
authorized, as of the date first above written.
/s/ XXXXXXX XXXXX BORKOWSKY
--------------------------------------
XXXXXXX XXXXX XXXXXXXXX
SONESTA COCONUT GROVE, INC.
By:/s/
------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
88
MUTINY ON THE PARK, LTD.
By: Flagler on the Park, Inc.,
as sole general partner
By: /s/
-----------------------------
Name:
------------------------------
Title:
------------------------------
89
JOINDER OF SEAGULL INVESTMENTS HOLDINGS, LTD.:
Seagull Investments Holdings, LTD. ("SEAGULL"), as collateral assignee of the
Second Priority Assignment of Partnership Interests from Dunin pursuant to that
certain Collateral Pledge and Escrow Agreement dated as of ________________,
2000 by and among Seagull, Dunin and Escrow Agent, does hereby join into this
Agreement for the purpose of: (a) acknowledging the rights and obligations of
Dunin to Sonesta and Owner with respect to the Xxxxxxx Xxxxx Loan and the Second
Priority Assignment of Partnership Interests as the same are set forth in this
Agreement, and (b) agreeing to be bound by the terms of this Agreement as they
relate to the Xxxxxxx Xxxxx Loan and the Second Priority Assignment of
Partnership Interests in the event that Seagull receives an absolute assignment
of the Xxxxxxx Xxxxx Loan and/or the Second Priority Assignment of Partnership
Interests.
SEAGULL INVESTMENTS HOLDINGS, LTD.
BY: /s/
----------------------------------------------
NAME:
------------------------------------------------
TITLE:
-----------------------------------------------
90
