Exhibit 10.14(a)
AGREEMENT
OF
LIMITED LIABILITY LIMITED PARTNERSHIP OF
SBR-FORTUNE ASSOCIATES, LLLP
DATED AS OF JANUARY 17, 2005
71
PRELIMINARY STATEMENTS ................................................................................ 76
ARTICLE 1 DEFINED TERMS ........................................................................... 77
1.1 Definitions ............................................................................... 77
1.2 Certain Other Terms ....................................................................... 97
1.3 Accounting Terms .......................................................................... 98
1.4 Schedules and Exhibits .................................................................... 98
ARTICLE 2 FORMATION OF PARTNERSHIP ................................................................ 98
2.1 Formation; Admission of Partners .......................................................... 98
2.2 Name ...................................................................................... 98
2.3 Certificates and Documents ................................................................ 99
2.4 Principal Offices ......................................................................... 99
ARTICLE 3 TERM .................................................................................... 99
ARTICLE 4 PURPOSE AND POWERS OF THE PARTNERSHIP ................................................... 99
4.1 Purpose ................................................................................... 99
4.2 Powers ................................................................................... 103
4.3 Title to Partnership Property ............................................................ 103
4.4 Summary of Transaction ................................................................... 103
ARTICLE 5 CAPITAL CONTRIBUTIONS; PERCENTAGE INTERESTS; FINANCING ................................. 113
5.1 Initial Capital Contributions ............................................................ 113
5.2 Additional Capital Contributions; Guarantees; Financing .................................. 114
5.3 Failure to Contribute Additional Contributions ........................................... 116
5.4 Computation of Capital Accounts .......................................................... 119
5.5 Capital Accounts Generally; No Interest on Capital ....................................... 120
ARTICLE 6 PROFITS AND LOSSES; SPECIAL ALLOCATIONS ................................................ 120
6.1 Profits and Losses ....................................................................... 120
6.2 Special Allocations. ..................................................................... 122
ARTICLE 7 DISTRIBUTIONS .......................................................................... 126
7.1 Net Cash Flow ............................................................................ 126
7.2 Distributions Resulting from Refinancings, a Sale of All or a Portion of the
Property not in the Ordinary Course and the Dissolution and Winding Up of the
Partnership .............................................................................. 126
7.3 Distributions In-Kind .................................................................... 127
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7.4 Assignment of Distributions .............................................................. 128
7.5 Withholding Taxes with Respect to Partners ............................................... 128
7.6 Profits, Losses and Net Cash Flow from Hotel Operations .................................. 129
ARTICLE 8 MANAGEMENT OF THE PARTNERSHIP .......................................................... 129
8.1 Management; General Partner .............................................................. 129
8.2 General Rights and Duties of General Partner ............................................. 134
8.3 Execution of Purchase and Sale Agreements ................................................ 138
8.4 Sales and Marketing Offices .............................................................. 138
8.5 Services of Partners ..................................................................... 138
8.6 Miscellaneous Management Provisions ...................................................... 140
8.7 Hotel Operations ......................................................................... 142
8.8 Bank Accounts ............................................................................ 143
ARTICLE 9 POWERS, RIGHTS AND LIABILITIES OF THE LIMITED PARTNERS ................................. 144
9.1 No Right to Manage or Represent Partnership .............................................. 144
9.2 Limitations on Liability ................................................................. 144
9.3 No Priority .............................................................................. 144
ARTICLE 10 DISSOLUTION AND TERMINATION ............................................................ 145
10.1 Events Triggering Dissolution ............................................................ 145
10.2 Termination .............................................................................. 146
ARTICLE 11 RESTRICTION ON TRANSFERS OF PERCENTAGE INTERESTS ....................................... 146
11.1 Assignment ............................................................................... 146
11.2 Changes in Control of Corporation or Entity .............................................. 146
11.3 Permitted Transfers ...................................................................... 147
11.4 Effect of Assignment: Documents .......................................................... 148
11.5 Transfer in Violation .................................................................... 148
ARTICLE 12 LIABILITY AND INDEMNIFICATION .......................................................... 149
12.1 Liability of General Partner ............................................................. 149
12.2 Indemnification of General Partner ....................................................... 149
12.3 Indemnification of Guarantors ............................................................ 150
12.4 Contractual Provisions ................................................................... 150
12.5 Indemnification of Limited Partners ...................................................... 151
12.6 Indemnification by Sonesta with respect to Hotel Operations .............................. 151
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ARTICLE 13 ACCOUNTING ............................................................................. 152
13.1 Method of Accounting: Accountants ........................................................ 152
13.2 Books and Records ........................................................................ 152
13.3 Federal Tax Returns ...................................................................... 152
ARTICLE 14 REPORTS AND STATEMENTS ................................................................. 153
14.1 Tax Return Information ................................................................... 153
14.2 Financial Statements ..................................................................... 153
14.3 Reports .................................................................................. 153
14.4 Inspection Rights ........................................................................ 155
ARTICLE 15 DEALINGS IN GOOD FAITH; BEST EFFORTS ................................................... 155
ARTICLE 16 REPRESENTATIONS AND WARRANTIES ......................................................... 155
16.1 Sonesta Representations .................................................................. 155
16.2 Fortune Representations and Agreements ................................................... 158
16.3 Patriot Act and OFAC Representations, Warranties and Covenants ........................... 159
16.4 Survival of Representations .............................................................. 159
16.5 Brokers .................................................................................. 159
16.6 Indemnification .......................................................................... 159
ARTICLE 17 MISCELLANEOUS .......................................................................... 160
17.1 Governing Law ............................................................................ 160
17.2 Partition of the Property ................................................................ 160
17.3 Notices .................................................................................. 160
17.4 No Waivers ............................................................................... 162
17.5 Joinder of Xxxxxxx Xxxxxxxxx and
Sonesta International Hotels Corp ....................... 162
17.6 Severability ............................................................................. 162
17.7 Benefits: Binding Effect ................................................................. 162
17.8 Interpretation ........................................................................... 162
17.9 Counterparts ............................................................................. 162
17.10 Enforcement and Waiver of Jury Trial ..................................................... 163
17.11 No Third Party Beneficiary ............................................................... 163
17.12 Integration .............................................................................. 163
17.13 Third Party Costs ........................................................................ 164
17.14 Confidentiality of Information ........................................................... 164
17.15 Dispute Resolution ....................................................................... 164
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AGREEMENT
OF
LIMITED LIABILITY LIMITED PARTNERSHIP OF
SBR-FORTUNE ASSOCIATES, LLLP
THIS AGREEMENT OF LIMITED LIABILITY LIMITED PARTNERSHIP (the
"Agreement"), is made and entered into as of the 17th day of January, 2005, by
and between Fortune KB GP, LLC, a
Florida limited liability company ("Fortune
GP") as the general partner (Fortune GP is hereinafter sometimes referred to as
the "General Partner"), and Fortune KB, LLC, a
Florida limited liability company
("Fortune LP") and Sonesta Beach Resort Limited Partnership, a Delaware limited
partnership("Sonesta"), as limited partners (Sonesta and Fortune LP are
hereinafter sometimes referred to collectively as the "Limited Partners" and
individually as a "Limited Partner").
PRELIMINARY STATEMENTS
A. A Certificate of Limited Partnership was filed by the General
Partner with the Secretary of State of the State of
Florida on January 13, 2005
to form SBR-Fortune Associates, Ltd. (the "Partnership").
B. The Partnership has filed a Statement of Qualification in the
Office of the Secretary of State of the State of
Florida and has obtained the
status of a limited liability limited partnership named SBR-Fortune Associates,
LLLP.
C. The General Partner and the Limited Partners (collectively, the
"Partners") desire to form the Partnership for the purpose of acquiring the
Land, developing the Project and selling condominium units and other parcels of
real estate comprising the Project.
D. All of the parties hereto desire to set forth in writing the terms
and provisions of their agreement of limited partnership, including but not
limited to terms concerning the interim
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operation of the Hotel, commencement of Pre-Development Activities and the
budgeting for and funding of the cost of development, construction and sale of
the Project.
E. All terms appearing herein in initial capitalized letters but not
otherwise defined herein shall have the meanings ascribed to such terms in
Section 1.1 below.
NOW, THEREFORE, in consideration of the mutual promises, covenants and
agreements herein contained, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Partners hereby
agree as follows:
ARTICLE 1
DEFINED TERMS
1.1 DEFINITIONS. As used in this Agreement, the following terms shall
have the meanings set forth below.
ACT: The
Florida Revised Uniform Limited Partnership Act (1986) as
enacted in the State of
Florida and as hereafter amended.
ADDITIONAL CAPITAL CONTRIBUTIONS: Amounts, if any, contributed to the
capital of the Partnership by the Partners pursuant to Subsection 5.2(a) or as
otherwise provided in this Agreement.
ADDITIONAL CAPITAL CONTRIBUTION DEFAULT: Shall have the meaning set forth
in Subsection 5.3(a).
AFFILIATE: Means (a) any officer, director, employee, shareholder,
manager, member or partner of a Partner; (b) any corporation, partnership,
limited liability company, trust or other entity controlling, controlled by or
under common control with such Partner (or other party as applicable); and (c)
any officer, director, employee, shareholder, manager, member or partner of any
entity described in clause (b) above. For purposes of this definition, the term
"control" when used with respect to any specified "Person" shall mean the power
to direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities
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or other beneficial interest, by contract or otherwise. "CONTROL" shall be
conclusively presumed to exist with respect to any Person that owns, directly or
indirectly, twenty-five percent (25%) or more of the beneficial interests in a
Person.
AGREEMENT: This Agreement of Limited Liability Limited Partnership and
any amendments thereto.
ANCILLARY AGREEMENTS: The Escrow Agreement, Interim Lease, the Listing
Agreement, the Sonesta License Agreement, the Realty Purchase Agreement and the
Long-Term Management Agreement.
APPROVE, APPROVED or APPROVAL: As to the subject matter thereof and as
the context may require or permit, an express consent or approval contained in a
written statement signed by the approving Person, and if any Person is requested
to approve any item or matter pursuant to this Agreement within a specified time
frame and such Person fails to approve such item in writing within such a time
frame, such failure shall constitute and be deemed a rejection of the applicable
request. To the extent no time frame is provided with respect to any particular
Approval requested hereunder, such Approval must be provided (or not) within ten
(10) days of the request for same. Notwithstanding the foregoing, in the event
that no response is received to a request for approval within said ten (10) day
period, the party requesting the approval may, if it desires to continue to
pursue such approval, send a notice (in accordance with Section 17.3) to the
other party which would include the following language: "THIS SECOND REQUEST FOR
APPROVAL IS ISSUED PURSUANT TO THAT CERTAIN AGREEMENT OF LIMITED LIABILITY
LIMITED PARTNERSHIP OF SBR-FORTUNE ASSOCIATES, LLLP. FAILURE TO RESPOND TO THIS
REQUEST WITHIN FIVE (5) DAYS FOLLOWING THE DATE THIS NOTICE HAS BEEN GIVEN SHALL
BE DEEMED AN APPROVAL OF THE REQUESTED MATTER." Failure to respond within said
five (5) day period described in the immediately preceding sentence shall de
deemed an approval of the requested matter.
ATTORNEYS' FEES: All reasonable fees charged by an attorney for his
services and the services of any paralegals, legal assistants or law clerks,
including (but not limited to) reasonable fees charged for representation at the
trial level and in all appeals.
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BRIDGE LOAN: The financing, if any, obtained by Fortune GP on behalf of
the Partnership and secured by a mortgage encumbering the Property unless such
financing meets the definition of the Construction Loan.
BUDGET: The budget for the pre-development, development, construction,
marketing and sale of the Project which shall be substantially in the form
attached hereto as EXHIBIT A, as such Budget may be revised or amended. The
Partners acknowledge that in preparing the attached Budget, they did not have
all of the information necessary for such Budget to be final and recognize that
such Budget will be preliminary in nature and subject to modification including
further refinement and elaboration, as provided herein. Upon approval by the
Partners, revisions of the Budget shall be adopted by sequentially numbered
amendments to EXHIBIT A of this Agreement.
BUSINESS DAY: Any day other than (i) Saturday or Sunday or (ii) those
during which banks in the State of
Florida or the Commonwealth of Massachusetts
are not open for business.
CAPITAL ACCOUNT: The account established and maintained for each Partner
by the Partnership in accordance with the provisions of Section 5.4 hereof.
CAPITAL CONTRIBUTIONS: The aggregate contributions made by a Partner to
the capital of the Partnership which are designated as "Capital Contributions"
pursuant to the provisions of Article V hereof.
CESSATION NOTICE: The written notice described in Subsection 4.4(d)(1)
below.
CLAIMS: Shall have the meaning as set forth in Subsection 16.6.
CODE: The Internal Revenue Code of 1986, as amended, and any successor
statute thereto.
CONSTRUCTION LENDER: The maker of the Construction Loan.
CONSTRUCTION LOAN: The construction loan to be obtained by the
Partnership to construct the Project. Unless otherwise agreed by the Partners,
the Partnership shall solicit no less than three (3) proposals to provide such
financing from major lenders.
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CONSTRUCTION LOAN BUDGET: The budget submitted to and approved by the
Construction Lender (and the Partners), as such budget may be revised from time
to time upon the agreement of the Partners and the Construction Lender.
CONTRIBUTED LAND: An undivided two-thirds (2/3rds) interest in the Land
which is being contributed to the capital of the Partnership by Sonesta as its
Initial Capital Contribution pursuant to Subsection 5.1(b) below.
CONTRACTS: All contracts, arrangements, leases, licenses, concessions,
easements, service contracts, maintenance agreements, listing agreements,
brokerage agreements, employment agreements, management agreements, construction
agreements, architectural agreements and any other agreements, either recorded
or unrecorded, written or oral, affecting the use, ownership or operation of the
Hotel and/or all or any portion of the Property, other than the Permitted
Exceptions. A schedule of the Contracts existing as of the Effective Date shall
be presented by Sonesta to the Fortune Partners within ten (10) Business Days of
the Effective Date and shall thereupon be incorporated into this Agreement as
EXHIBIT B. Upon termination of the Interim Lease EXHIBIT B will be updated to
reflect the Contracts existing as of such date.
CONVEYANCE DOCUMENTS: All documents necessary to convey title to the Land
to the Partnership, including but not limited to those set forth in Exhibit "B"
to the Escrow Agreement entitled "Escrowed Documents".
CURRENT OPERATING EXPENDITURES: The expenditures of the Partnership for
each Fiscal Year, or part thereof, arising from the ordinary course of the
Partnership's business, including, without limitation, the following:
(1) general operating expenses including, but not limited to,
insurance, taxes, assessments, architectural, engineering,
permitting, legal, accounting and other professional fees,
Deferred Fees, marketing, construction and any other
expenses expended on behalf of the Partnership in relation
to its business operation, but excluding the Hotel Shutdown
Payments;
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(2) payments of principal and interest upon indebtedness of the
Partnership entered into in accordance with the terms of
this Agreement excluding Default Financings;
(3) establishment of appropriate reserves for debt service,
capital improvements and repairs, to provide working
capital or any other contingency of the Partnership;
(4) expenses incurred in connection with and the establishment
of reserves for the restoration of the Property resulting
from the casualty or condemnation of the Property; and
(5) defeasance, prepayment or comparable expenses or charges
required to be paid in connection with the retirement or
replacement of the Existing Indebtedness.
Notwithstanding the foregoing, the Partners acknowledge that Hotel operations
prior to the Cessation Date shall be conducted by the Hotel Manager pursuant to
the Interim Lease and that except for those items which by the express terms of
this Agreement or the Interim Lease are to be paid by the Partnership, the
expenses of operating the Hotel shall be borne by the Hotel Manager.
DEFAULT FINANCINGS: The financings advanced pursuant to Subsection 5.3
below.
DEFAULT NOTICE: Shall have the meaning as set forth in Subsection 5.3.
DEFAULTING PARTNER: Shall have the meaning as set forth in Subsection
5.3.
DEFERRED FEES: Shall have the meaning set forth in Subsection 8.5(b).
DEPRECIATION: For each Fiscal Year or other period, an amount equal to
the depreciation, amortization, or other cost recovery deduction allowable with
respect to an asset for such year or other period, except that if the Gross
Asset Value of an asset differs from its adjusted basis for
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federal income tax purposes at the beginning of such year or other period,
Depreciation shall be an amount which bears the same ratio to such beginning
Gross Asset Value as the federal income tax depreciation, amortization, or other
cost recovery deduction for such year or other period bears to such beginning
adjusted tax basis; provided, however, that if the federal income tax
depreciation, amortization, or other cost recovery deduction for such year is
zero, Depreciation shall be determined with reference to such beginning Gross
Asset Value using any reasonable method selected by the Partners.
DESIGNATED HOTEL CLOSING DATE: August 31, 2006 or such other date agreed
to by the Partners, as described in Subsection 4.4(d)(1), as the date on which
Hotel operations should cease.
DUE DILIGENCE PERIOD: The period of time commencing on the Effective Date
and ending thirty (30) days thereafter.
EFFECTIVE DATE: January 17, 2005.
ESCROW AGENT: Bilzin Xxxxxxx Xxxxx Price & Xxxxxxx LLP.
ESCROW AGREEMENT: That certain Escrow Agreement to be entered into by and
among the Partnership, the Partners and the Escrow Agent. The form of said
agreement shall be appended as EXHIBIT C promptly after the Effective Date. The
Partners have agreed that there will be no substantive terms of the Escrow
Agreement which are in conflict with or otherwise inconsistent with the terms
and intention of this Agreement.
ESCROW RELEASE ACTIONS: Shall have the meaning set forth in the Escrow
Agreement, all of which are to be ministerial in nature.
ESCROW RELEASE CONDITIONS: Shall have the meaning set forth in the Escrow
Agreement, which conditions shall include the following (and no others unless
such conditions are solely ministerial in nature): (i) payment by Fortune of
Tranche 1, Xxxxxxx 0, Xxxxxxx 0 xxx Xxxxxxx 0, (xx) satisfaction of the Existing
Indebtedness either by payment or refinancing and the release of Sonesta from
its obligations thereunder, (iii) all documents that are contemplated to be
entered into by the parties hereto prior to the Escrow Release Date shall have
been agreed upon, either
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voluntarily or by binding arbitration, and (iv) all other conditions required by
this Agreement for the release of the Escrowed Items shall have been satisfied
and all actions shall have been performed by the applicable parties hereto.
ESCROW RELEASE DATE: The earlier of (i) the fifth (5th) Business Day
after the date on which the Fortune Partners provide written notice of their
election not to proceed with the transactions described herein, which notice
must be provided in accordance with Subsection 4.4(a)(3) and Section 17.3 below,
or (ii) the date on which the Escrow Release Conditions have been satisfied.
ESCROWED ITEMS: Shall mean collectively, (i) the Conveyance Documents,
(ii) the Ancillary Agreements, and (iii) Tranche 1, Tranche 2, Tranche 3 and
Tranche 4 of the Fortune Partners' Initial Capital Contributions, each of which
are to be deposited with the Escrow Agent in accordance with the terms of
Section 5.1(a) of this Agreement.
EXCESS DEVELOPMENT AND CONSTRUCTION OVERRUNS: All costs incurred in
achieving Project Completion (including without limitation any fines or
penalties) in excess of one hundred fifteen percent (115%) of the aggregate
expenditures (including contingencies) set forth in the Construction Loan
Budget, provided however, costs incurred in connection with the Project which
arise from any of the following shall not be deemed to give rise to Excess
Development and Construction Overruns (i) changes in the scope of the Project
which are acceptable to both the Fortune Partners and Sonesta, (ii) delays to
the extent caused by or increased costs attributable to any acts of Sonesta, or
any of Sonesta's Affiliates, Related Parties, agents, directors, employees, and
representative, (iii) Force Majeure, or (iv) excess costs incurred with respect
to the payment of sales commissions as a result of increased sales prices
provided that such commissions are not in excess of the amounts described in the
Listing Agreement.
EXCESS FINANCING COSTS: Shall mean the sum of (a) that portion of the
interest expense of the Partnership for each period in which the drawn down
portion of the Non-Construction Loan Indebtedness exceeds Thirty-Nine Million
Dollars ($39,000,000.00) and which is attributable to such excess, plus (b) the
portion of the costs incurred in connection with obtaining, negotiating and
closing all Non-Construction Loan Indebtedness which are either (I) agreed by
the Partners, or (II) in the absence of such an agreement, equal to the product
of (i) all such costs described in
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clause (b) incurred by the Partnership as a result of such Non-Construction Loan
Indebtedness (but only to the extent such costs would not otherwise have been
incurred had the Non-Construction Loan Indebtedness not been in excess of the
Indebtedness Threshold), and (ii) a fraction, the numerator of which is the
excess of (x) the total Non-Construction Loan Indebtedness, over (y) Thirty-Nine
Million Dollars ($39,000,000.00) and the denominator of which is the total
Non-Construction Loan Indebtedness.
EXCESS INDEBTEDNESS: Shall have the meaning set forth in Subsection
5.2(a)(ii).
EXISTING INDEBTEDNESS: Shall have the meaning as set forth in Subsection
4.4(c)(2).
EXISTING INDEBTEDNESS BALANCE: Shall have the meaning as set forth in
Subsection 4.4(c)(2).
FISCAL YEAR: The fiscal year of the Partnership, which shall be the
calendar year.
FORCE MAJEURE shall mean an act of God (including but not limited to
hurricanes), war, enemy action, civil insurrection, or substantial labor dispute
(including strike or lockout) which is beyond the reasonable control of the
Fortune GP and has a demonstrable material adverse economic and/or timing effect
on the ability of the Fortune GP to procure necessary goods or services,
Governmental Requirements not foreseeable on the date of execution of this
Agreement, fire, casualty, act of terrorism or any other act or circumstance
beyond the reasonable control of the Fortune GP for which no blame or fraud can
be imputed and which has a demonstrable material adverse economic and/or timing
effect on the ability of the Fortune GP to procure necessary goods or services.
FORTUNE EXCESS BALANCE: Shall have the meaning as set forth in Subsection
6.1(b)(2).
FORTUNE PARTNERS: The Fortune GP and the Fortune LP. Any amount payable
or otherwise allocable to or from the Fortune Partners hereunder shall, unless
specifically indicated herein to the contrary, be paid to or from the Fortune GP
and the Fortune LP pro rata in accordance with their respective Percentage
Interests.
GENERAL PARTNER: Fortune GP or any successor General Partner appointed in
accordance with the terms of this Agreement.
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GOVERNMENTAL AUTHORITY: Any federal, state, county, municipal or other
governmental department or quasi governmental/citizens group, entity, authority,
commission, board, bureau, court, agency or any instrumentality of any of them.
GOVERNMENTAL REQUIREMENT: Any law, enactment, statute, code, ordinance,
rule, regulation, judgment, decree, writ, injunction, permit, certificate,
license, authorization, agreement, or other direction or requirement of any
Governmental Authority existing on the date on which the applicable Governmental
Requirement must be satisfied.
GROSS ASSET VALUE: With respect to any asset, the asset's adjusted basis
for federal income tax purposes, except as follows:
(1) The initial Gross Asset Value of any asset contributed by a
Partner to the Partnership shall be the gross fair market
value of such asset, as determined by the contributing
Partner and the General Partner;
(2) The Gross Asset Values of all Partnership assets shall be
adjusted to equal their respective gross fair market
values, as determined by the General Partner, as of the
following times: (a) the acquisition of an additional
interest in the Partnership by any new or existing Partner
in exchange for more than a de minimis Capital
Contribution; (b) the distribution by the Partnership to a
Partner of more than a de minimis amount of Property as
consideration for an interest in the Partnership; and (c)
the liquidation of the Partnership within the meaning of
Regulations Section 1.704-l(b)(2)(ii)(g); provided,
however, that adjustments pursuant to clauses (a) and (b)
above shall not be made if the General Partner reasonably
determines that such adjustments are not necessary or
appropriate to reflect the relative economic interests of
the Partners in the Partnership;
(3) The Gross Asset Value of any Partnership asset distributed
to any Partner shall be the gross fair market value of such
asset on the date of distribution; and
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(4) The Gross Asset Values of Partnership assets shall be
increased (or decreased) to reflect any adjustments to the
adjusted basis of such assets pursuant to Code Section
734(b) or Code Section 743(b), but only to the extent that
such adjustments are taken into account in determining
Capital Accounts pursuant to Regulations Section
1.704-l(b)(2)(iv)(m) and Section 6.2 hereof; provided,
however, that Gross Asset Values shall not be adjusted
pursuant to this subsection (4) to the extent that the
General Partner determines that an adjustment pursuant to
subsection (3) above is necessary or appropriate in
connection with a transaction that would otherwise result
in an adjustment pursuant to this subsection (4).
If the Gross Asset Value of an asset has been determined or adjusted pursuant to
subsections (1), (2) or (4) hereof, such Gross Asset Value shall thereafter be
adjusted by the Depreciation taken into account with respect to such asset for
purposes of computing Profits and Losses.
GROSS REVENUE: The gross revenue of the Partnership arising from the
ordinary course of the Partnership's business, including, prior to the date on
which the Hotel is demolished, only the gross revenue derived by the Partnership
(as opposed to by the Hotel Manager) under the Interim Lease, if any, will be
gross revenue of the Partnership (the Partners acknowledge that Gross Revenue
attributable to the Hotel operations prior to the Cessation Date shall be the
property of the Hotel Manager as provided in the Interim Lease, as more fully
described in Subsection 8.7 below, and shall not constitute Gross Revenues of
the Partnership). Gross Revenue shall include Capital Contributions and the
proceeds of loans, and shall also include any property insurance or condemnation
proceeds unless such proceeds are being used to rebuild or restore the Project
or repay indebtedness encumbering the Project.
HOTEL: That certain two hundred ninety four (294) room hotel currently
operated by Sonesta on the Land under the name Sonesta Beach Resort Key Biscayne
on the Land.
HOTEL MANAGER: Sonesta or its Affiliate which is retained as the manager
of the Hotel during the Interim Hotel Operating Period.
HOTEL OPENING DATE: The date upon which Project Completion has occurred.
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HOTEL SHUTDOWN PAYMENTS: The sum of One Hundred Twenty-Five Thousand
Dollars ($125,000.00) per month, or a prorated amount for partial months, which
will be paid to Sonesta, in arrears, on the thirtieth (30th) day of each month
commencing with the month in which the Hotel is closed to guests pursuant to the
Cessation Notice and continuing until the Hotel Opening Date; provided however
that notwithstanding anything to the contrary contained herein, in no event
shall the Hotel Shutdown Payments commence earlier than June 30, 2006.
INDEBTEDNESS THRESHOLD: Forty-Five Million Dollars ($45,000,000.00).
INDEMNITEES: Shall have the meaning as set forth in Section 16.5.
INDEMNITOR: Shall have the meaning as set forth in Section 16.5.
INITIAL CAPITAL CONTRIBUTIONS: The amount initially required to be
contributed to the capital of the Partnership by a Partner pursuant to Sections
5.1(a) and 5.1(b) below.
INSPECTIONS: Shall have the meaning set forth in Subsection 4.4(a)(1).
INTERIM LEASE: That certain Interim Lease pursuant to which lease Sonesta
or an Affiliate of Sonesta shall lease the Hotel from the Partnership during the
Interim Hotel Operating Period. The form of the Interim Lease will be in
accordance with the terms attached hereto as EXHIBIT D, will be agreed to by the
parties thereto during the Due Diligence Period, and which form of agreement,
once finalized, will be appended hereto as EXHIBIT D. The Interim Lease will be
executed by the parties thereto at the end of the Due Diligence Period and will
be deposited with the Escrow Agent as an Escrowed Item.
INTERIM HOTEL OPERATING PERIOD: The period of time prior to the Cessation
Date, during which the Hotel shall be leased by the Partnership to an Affiliate
of Sonesta pursuant to the Interim Lease.
LAND: The approximately 10.6 acre parcel of land (the "REALTY") described
in EXHIBIT E attached hereto, located on Key Biscayne, in Miami-Dade County,
Florida on which the Hotel is operated, together with Sonesta's interest in and
to the following property and rights:
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(1) All strips and gores of land lying adjacent to the Realty,
together with all easements, privileges, rights-of-way, riparian
and other water rights, lands underlying any adjacent streets or
roads, and appurtenances pertaining to or accruing to the benefit
of the Realty.
(2) All deposits, licenses, permits, authorizations, approvals and
contract rights pertaining to ownership and/or operation of the
Hotel and/or the Project including the Contracts.
(3) The existing telephone number(s) for the Hotel (which the Partners
agree shall be the phone number for the hotel to be contained
within the New Development), general intangible rights pertaining
to the ownership and/or operation of the Hotel and/or the Project
and brochures and other sales materials (expressly excluding,
however, any rights to the name "Sonesta" and any related Sonesta
intellectual property).
(4) All general intangible rights pertaining to the ownership and/or
operation of the Hotel and/or the Project (expressly excluding the
name Sonesta and any related Sonesta intellectual property).
(5) All architectural and engineering plans and specifications,
surveys and drawings in connection with the Hotel and/or the
Project and the improvements to be constructed thereon.
LIMITED PARTNERS: Fortune LP and Sonesta and any permitted successors and
assigns thereto and any additional limited partners admitted to the Partnership
in accordance with the terms of this Agreement.
LISTING AGREEMENT: That certain Listing Agreement to be entered into by
and between the Partnership and Fortune Development Sales Corp., pursuant to
which Fortune Development Sales Corp. shall be retained as the exclusive sales
agent for the Partnership, as described therein, and shall be paid a listing fee
in connection with bona fide third party sales of 2.75%, which agreement shall
be agreed upon by the parties thereto by no later than the end of the Due
Diligence Period and, once finalized, will be appended hereto as EXHIBIT F. The
Listing
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Agreement will be executed by the parties thereto at the end of the Due
Diligence Period and will be deposited with the Escrow Agent as an Escrowed
Item. The Listing Agreement will provide, without limitation, that the
Partnership shall have the option to terminate it in the event that the Fortune
Partners cease to Control at least forty (40%) percent of the Percentage
Interests in the Partnership.
LONG TERM MANAGEMENT AGREEMENT: That certain long term hotel management
agreement between Hotel Manager and the Partnership pursuant to which the Hotel
Manager, or an affiliate, shall operate the New Hotel following the
redevelopment contemplated as part of the Project, which agreement shall include
the terms set forth in the term sheet attached hereto as EXHIBIT G and which
agreement shall be agreed upon by the parties thereto by no later than the
Escrow Release Date, the initial draft of which shall be provided by Sonesta
during the Due Diligence Period, and, once finalized, will be appended hereto as
EXHIBIT G.
MAJOR DECISIONS: Shall have the meaning set forth in Section 8.1(b).
MILESTONES: Those specific benchmarks set forth in EXHIBIT H.
NET CASH FLOW: Commencing on the date of execution of this Agreement, Net
Cash Flow shall mean the Gross Revenue for an applicable period less the Current
Operating Expenditures for the same period.
NET DEFICIT: A Net Deficit shall arise when the funds of the Partnership
are insufficient to pay (i) all expenses relating to the development and
construction of the Project, (ii) all expenses relating to the sale, operation,
marketing and management of the Project actually incurred and currently due by
the Partnership, including, without limitation, insurance, real estate taxes,
utilities, salaries, costs of maintenance, cleaning, and costs of repairs, (iii)
current debt service payments and similar obligations of the Partnership in
respect of the Project or the Partnership and (iv) satisfying any current
indebtedness of the Partnership (whether secured or unsecured).
NEW DEVELOPMENT: Shall have the meaning attributed to it in Section
4.4(e) of this Agreement.
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NEW HOTEL: Shall mean the hotel component of the New Development to be
operated by a Sonesta Affiliate pursuant to the Long Term Management Agreement.
NON-ARBITRABLE MATTERS: The Major Decisions set forth in Subsections
8.1(b)(5), 8.1(b)(6), 8.1(b)(7), 8.1(b)(8), 8.1(b)(10), 8.1(b)(11), 8.1(b)(13),
8.1(b)(22), and 8.1(b)(29). It is the intention of the Partners that either
Partner may prevent Non-Arbitrable Matters from being arbitrated.
NON-CONSTRUCTION LOAN INDEBTEDNESS: The aggregate of the Bridge Loan and
any other indebtedness secured by a mortgage or mortgages encumbering the
Property and incurred by the Partnership prior to the closing of the
Construction Loan. In no event may the principal amount of the Non-Construction
Loan Indebtedness outstanding at any time and from time to time exceed Sixty
Million Dollars ($60,000,000.00) without the consent of Sonesta.
PARTNERS: The General Partner and the Limited Partners.
PARTNERSHIP: The limited liability partnership described by this
Agreement.
PARTNERSHIP INTEREST: All the right, title and interest of a Partner in
the Property, the Project and the Partnership, as the same may vary from time to
time pursuant to the terms of this Agreement, including the rights of a Partner
to a return of its Capital Contributions, a distribution of the Partnership's
Property and all other rights under or interest in this Agreement and the
Property.
PERCENTAGE INTEREST: The ultimate percentage interest of the Partners in
the profits and losses of the Partnership. The Percentage Interest of Fortune GP
shall be one percent (1%) as a General Partner, the Percentage Interest of
Fortune LP shall be forty nine percent (49%) as a Limited Partner, and the
Percentage Interest of Sonesta shall be fifty percent (50%) as a Limited
Partner, none of which shall be subject to change.
PERMITTED EXCEPTIONS: The title exceptions to be set forth in EXHIBIT I
attached hereto. The Permitted Exceptions shall be mutually agreed to by the
Partners promptly following the Effective Date.
PERMITTED OPPORTUNITY: Shall have the meaning set forth in Section
4.1(e).
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PERMITTED TRANSFEREES: Shall have the meaning as set forth in Section
11.3.
PERMITTED VARIANCE: With respect to the matters contained in the Budget
(including any revised or amended Budget adopted in accordance with the terms of
this Agreement) when (a) the aggregate expenditures in any line item does not
exceed one hundred ten percent (110%) of the amounts previously approved for
such line item and (b) the aggregate expenditures by the Partnership do not
exceed one hundred five percent (105%) of the total aggregate amount contained
in such Budget.
PERSON: Any individual, partnership, firm, corporation, trust, limited
liability company or other entity, association or organization.
PRE-DEVELOPMENT ACTIVITIES: Those activities necessary to develop, sell
and construct the Project and related infrastructure on the Property, including
without limitation, licensing, permitting, arranging for appropriate financing,
coordinating selling efforts, obtaining zoning, entitlements, mapping, and
approvals, contracting engineers, architects, contractors and consultants to
begin all working construction drawings and shop drawings, and performing other
construction, management and consulting activities relating thereto.
PRE-DEVELOPMENT PERIOD: The period during which the Hotel shall continue
to be operated on the Land pursuant to the Interim Lease.
PRESENTING PARTNER: Shall have the meaning set forth in Subsection
4.1(e).
PROFITS AND LOSSES: For each Fiscal Year or other period, an amount equal
to the Partnership's taxable income or loss for such year or period, determined
in accordance with Code Section 703(a) (for this purpose, all items of income,
gain, loss, or deduction required to be stated separately pursuant to Code
Section 703(a)(1) shall be included in taxable income or loss), with the
following adjustments:
(1) Any income of the Partnership that is exempt from federal
income tax and not otherwise taken into account in
computing Profits or Losses pursuant to this subsection
shall be added to such taxable income or loss;
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(2) Any expenditures of the Partnership described in Code
Section 705(a)(2)(B) or treated as Code Section
705(a)(2)(B) expenditures pursuant to Regulations Section
1.704-l(b)(2)(iv)(i), and not otherwise taken into account
in computing Profits or Losses pursuant to this subsection
shall be subtracted from such taxable income or loss;
(3) In the event the Gross Asset Value of any Partnership asset
is adjusted pursuant to Subsections (2) or (3) of the
definition of Gross Asset Value above, the amount of such
adjustment shall be taken into account as gain or loss from
the disposition of such asset for purposes of computing
Profits or Losses;
(4) Gain or loss resulting from any disposition of Property
with respect to which gain or loss is recognized for
federal income tax purposes shall be computed by reference
to the Gross Asset Value of the property disposed of,
notwithstanding that the adjusted tax basis of such
property differs from its Gross Asset Value;
(5) In lieu of the depreciation, amortization, and other cost
recovery deductions taken into account in computing such
taxable income or loss, there shall be taken into account
Depreciation for such fiscal year or other period; and
(6) Notwithstanding any other provision of this subsection, any
items which are separately allocated pursuant to Section
6.2 hereof shall not be taken into account in computing
Profits or Losses.
PROJECT: (i) The development and construction on the Land of a luxury
resort facility to be composed of such components as the Partners mutually
agree, provided that unless otherwise expressly agreed to by the Partners such
components shall include at a minimum: (a) three hundred fifty (350) hotel keys
(including lockouts)(each hotel room being not less than approximately 500
square feet), 25,000 square feet of meeting space, two full service restaurants
and one upscale cafe and two swimming pools and related lounge areas; together
with hotel
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shops, spa, support space, parking and related amenities and commercial/retail
space, and (b) the maximum permissible number of residential condominium units,
as well as such other facilities as are agreed to by the Partners and are
reflected in the approved plans and specifications; and (ii) the marketing and
sale of the condominium and any non-condominium parcels or real property on the
Land. Notwithstanding the Partners' inability to definitively agree, upon
execution of this Agreement, on all components of the Project, the Partners have
agreed that, subject to applicable Governmental Requirements, in all events, the
Project shall include those components included in clause (a) above.
PROJECT COMPLETION: Shall be deemed to occur on the date (i) the Project
has been completed (including the installation of hotel furniture, fixtures and
equipment) in accordance with the plans and specifications therefor approved by
the Partners, subject to only punch-list items, (ii) a final certificate of
occupancy or equivalent approval has been issued by a Governmental Authority
permitting occupancy of substantially all of the Project and the operation
thereof for its intended purpose, and (iii) all material permits and licenses
necessary to operate the New Hotel have been received from applicable
Governmental Authorities.
PROJECT COSTS: All direct and indirect costs shown on the Budget and
actually incurred by the Partnership (including the value of the Land, which for
this purpose shall be as reflected in the Budget).
PROJECT STANDARD: Project Standard refers to that quality of design and
construction established pursuant to the plans and specifications for the
Project approved by the Partners, which shall be at or above the standard of
design and construction used at the Xxxx-Xxxxxxx (Key Biscayne) and Four Seasons
(Miami).
PROPERTY: The Land, the Hotel and the Project, as applicable.
PURCHASED LAND: An undivided one-third (1/3rd) interest in the Land which
is being purchased by the Partnership pursuant to the Realty Purchase Agreement.
QUALIFIED ARBITRATOR: Means an independent consulting firm or individual
who is well respected in South
Florida or nationally and who or which is
qualified by experience and ability with respect to the subject matter being
arbitrated, appointed in each instance by agreement of the
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parties or, failing agreement, each party shall select one (1) such consulting
firm or individual and the two (2) respective firms and/or individuals so
selected shall select another such consulting firm or individual to be the
Qualified Arbitrator, and in the event that such firms and/or individuals do not
select another such consulting firm or individual within fifteen (15) days of
the date they first confer on the subject, either party shall be authorized to
request that the American Arbitration Association designate the individual to
serve as the Qualified Arbitrator.
REALTY PURCHASE AGREEMENT: The agreement between Sonesta and the
Partnership pursuant to which the Partnership shall purchase the Purchased Land,
in a form containing the salient terms set forth on EXHIBIT K hereto and which
agreement, which shall be agreed upon by the parties by no later than the end of
the Due Diligence Period and, once finalized, will be appended hereto as EXHIBIT
K.
REASONABLE AND CUSTOMARY EFFORTS: Shall mean that the Person in question
shall do all acts and take all steps that would be done and taken by reputable
and experienced development, management and/or condominium sales Persons, as
applicable, of properties similar to the Project in South
Florida.
RECIPIENT PARTNER: Shall have the meaning set forth in Subsection 4.1(e).
RELATED OPPORTUNITY: Shall have the meaning set forth in Subsection
4.1(e).
RELATED PARTY: When used with reference to any Person, (i) an Affiliate
of such specified Person (ii) an officer, director, general partner or trustee
of, or a Person who serves in a similar capacity with respect to, the specified
Person, (iii) any Person in which the specified Person owns, directly or
indirectly, any class of equity securities or in which the specified Person or
entity has a beneficial interest; provided that this provision shall not apply
to the ownership of equity securities or beneficial interests in a Person if
such securities or beneficial interests were acquired solely as an investment of
any issuer that is registered under Section 12(b) or 12(g) of the Securities
Exchange Act of 1934, as amended, and that are listed or admitted for trading on
any United States national securities exchange or that are quoted on the
National Association of Securities Dealers Automated Quotations System, or any
similar system or automated dissemination of quotations of securities prices in
common use, so long as neither such specified Person nor any Affiliate of such
specified Person is a member of any control group (within the
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meaning of the rules and regulations of the Securities and Exchange Commission)
of any such issuer (iv) any relative or spouse of the specified Person, or (v)
any trust created by the specified Person for the benefit of such Person's
spouse or children.
REPRESENTATIVES: The persons designated from time to time by the Partners
to represent their respective interests in all matters requiring the consent or
approval of the Partners, as such persons may vary from time to time. The
initial Representative of the Fortune Partners shall be Xxxxxxx Xxxxxxxxx, and
the initial Representative of Sonesta shall be Xxxxx Xxxxxxxxx. Each Partner
may, upon written notice to other Partners at any time and from time to time,
appoint, substitute and replace a Representative. The written statements or
representations of a Representative shall be deemed to be the authorized
statements and representations of the Partner represented, and the other
Partners shall be entitled to rely upon such statements and representations as
being the statements or representations of the Partner represented. Any
representative may resign for any reason whatsoever; provided, however, that
such resignation shall only be effective upon the earlier to occur of: (i) ten
(10) days from the mailing of written notice to each Partner informing each
Partner of such intention, or (ii) the appointment of a successor representative
by the Partner who appointed the resigning representative, which appointment
shall be in such Partner's sole discretion. A representative may be removed at
any time, without cause; provided, however, that such representative may only be
removed by the Partner who initially appointed him as a representative. In such
event, the Partner who initially appointed the removed representative may
appoint a successor representative.
RESTRICTED PERIOD: Shall have the meaning set forth in Subsection 4.1(d).
SALES AND MARKETING PLAN: Shall mean the plan for the marketing and sale
of condominium units more particularly described in Section 4.4(f) of this
Agreement.
SALES OFFICE: The sales center for the Project.
SONESTA EXCESS BALANCE: Shall have the meaning set forth in Subsection
6.1(b)(iii).
SONESTA GUARANTEED AMOUNT: An amount to be paid by the Fortune Partners
to Sonesta, if at all, immediately prior to the liquidation of the Partnership,
if, as a result of aggregate distributions made by the Partnership to Sonesta
pursuant to Section 7.1 and Section 7.2, Sonesta's Unreturned Capital has not
been reduced to zero. In such event, the Fortune Partners
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shall pay to Sonesta an amount equal to the difference between (i) the amount
Sonesta would have received pursuant to Sections 7.1 and 7.2 if the Existing
Indebtedness had been satisfied by a Capital Contribution made by the Fortune
Partners, and (ii) the amount actually received by Sonesta pursuant to Sections
7.1 and 7.2. The operation of this definition is illustrated on SCHEDULE SGA
attached hereto.
SONESTA INTERNATIONAL: Shall mean
Sonesta International Hotels
Corporation, a New York corporation.
SONESTA LICENSE AGREEMENT: Shall mean the agreement described in Section
8.5(f) below.
SONESTA PREFERRED DISTRIBUTION: An amount payable to Sonesta pursuant to
Article 7 in an amount equal to the Excess Financing Costs.
SUBORDINATED CAPITAL: Means the amount contributed by the Fortune
Partners as Additional Capital Contributions necessary to fund any Excess
Development and Construction Overruns.
SUBORDINATED RETURN: An amount payable to Sonesta pursuant to Article 7
in the event that there are Excess Development and Construction Overruns which
amount is equal to twenty-five percent (25%) of the amount of the Excess
Development and Construction Overruns.
TARGET FINAL BALANCES: Shall have the meaning as set forth in Subsection
6.2(k).
TRANCHE 1: Shall have the meaning set forth in Subsection 5.1(a)(i).
TRANCHE 2: Shall have the meaning set forth in Subsection 5.1(a)(ii).
TRANCHE 3: Shall have the meaning set forth in Subsection 5.1(a)(iii).
TRANCHE 4: Shall have the meaning set forth in Subsection 5.1(a)(iv).
TRANSFER: The assignment, transfer, sale, hypothecation, mortgage, pledge
or encumbrance, directly, indirectly, by operation of law, or otherwise, of a
Partnership Interest.
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UNPAID SONESTA PREFERRED DISTRIBUTION: With respect to Sonesta, as of any
given time, the excess of the Sonesta Preferred Distribution over all
distributions to Sonesta in payment thereof pursuant to Sections 7.1(c) or 7.2.
UNPAID SUBORDINATED CAPITAL: At any given time, the excess of the
Subordinated Capital over all distributions made to the Fortune Partners in
repayment thereof pursuant to Sections 7.1(f) or 7.2.
UNPAID SUBORDINATED RETURN: With respect to Sonesta, as of any given
time, the excess of Sonesta's Subordinated Return over all distributions to
Sonesta in payment thereof pursuant to Sections 7.1(e) or 7.2.
UNRETURNED CAPITAL: With respect to any Partner, at any given time, the
excess of its Capital Contributions over all distributions made to such Partner
pursuant to Section 7.1(a) and Section 7.1(b) in the case of Sonesta (including
by reason of Section 7.2) and Section 7.1(d) in the case of the Fortune Partners
(including by reason of Section 7.2).
1.2 CERTAIN OTHER TERMS. In this Agreement, unless otherwise specified
(a) singular words include the plural and plural words include the singular; (b)
words which include a number of constituent parts, things or elements, including
the terms "Hotel," "Property" and "Project" shall be construed as referring
separately to each constituent part, thing or element thereof, as well as to all
such constituent parts, things or elements as a whole; (c) words importing any
gender include the other gender; (d) references to any Partner include such
Partner's permitted successors and assigns; (e) references to any statute or
other law include all applicable rules, regulations and orders adopted or made
thereunder and all statutes or other laws amending, consolidating or replacing
the statute or law referred to; (f) references to any agreement or other
document, including this Agreement, include all subsequent amendments,
modifications, or supplements to such agreement or document; (g) the words
"include" and "including" and words of similar import, shall be deemed to be
followed by the words "without limitation"; (h) the words "hereto", "herein",
"hereof", "hereunder" and words of similar import, refer to this Agreement in
its entirety; (i) references to Articles, Sections, Subsections, paragraphs,
Schedules and Exhibits are to the Articles, Sections, Subsections, paragraphs,
Schedules and Exhibits of this Agreement; (j) numberings and headings of
Articles, Sections,
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Subsections, paragraphs, Schedules and Exhibits are inserted as a matter of
convenience and shall not affect the construction of this Agreement; and (k) all
Schedules and Exhibits to this Agreement are incorporated herein by this
reference thereto as if fully set forth herein, and all references herein to
this Agreement shall be deemed to include all such incorporated Schedules and
Exhibits.
1.3 ACCOUNTING TERMS. Unless otherwise specified, (a) all accounting
terms used herein shall be interpreted, (b) all accounting determinations
hereunder shall be made, and (c) all financial statements required to be
delivered hereunder shall be prepared, in accordance with United States
generally accepted accounting principles as in effect from time to time,
consistently applied.
1.4 SCHEDULES AND EXHIBITS. The parties acknowledge that they are
executing this Agreement at a time when all of the required Schedules and
Exhibits have either not been prepared, have not been finalized or have not been
finally agreed to. Notwithstanding anything herein to the contrary, and subject
always to the provisions of Section 4.4(b)(4), the parties agree to use their
good faith best efforts to prepare all such Schedules and Exhibits within the
time periods set forth in this agreement or, in the absence of a specific time
period, as promptly as possible.
ARTICLE 2
FORMATION OF PARTNERSHIP
2.1 FORMATION; ADMISSION OF PARTNERS. The Partners hereby acknowledge
the formation of the Partnership as a limited liability limited partnership
designated SBR-Fortune Associates, LLLP. for the purposes and scope set forth
herein. In the event of any conflict between the provisions of the Act and the
provisions of this Agreement, the provisions of this Agreement shall control to
the fullest extent permitted by applicable law.
2.2 NAME. The business and affairs of the Partnership shall be
conducted solely under the name "SBR-Fortune Associates, LLLP" and such name
shall be used at all times in connection with the Partnership's business and
affairs; provided that for all periods during which
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the Hotel is continued to be operated under the Interim Lease, it shall be
operated under the "Sonesta Beach Resort Key Biscayne" name. The General Partner
shall, on behalf and in the name of the Partnership, execute such assumed or
fictitious name certificates as may be desirable or required by law to be filed
in connection with the formation of the Partnership and shall cause such
certificates to be filed in all appropriate public records.
2.3 CERTIFICATES AND DOCUMENTS. The General Partner agrees to execute
and timely file, record and, to the extent required by law, publish, such
certificates and other documents and to take such other acts, as may be
necessary or appropriate to comply with the requirements of the Act for
formation, continuation and operation of the Partnership.
2.4 PRINCIPAL OFFICES. The Partnership's principal offices shall be
located at 0000 Xxxxxxxx Xxxxxx, Xxxxx, Xxxxxxx 00000 or such other location in
Miami-Dade County as the General Partner may determine from time to time.
ARTICLE 3
TERM
The Partnership commenced on the date the Certificate of Limited
Partnership was filed with the Florida Secretary of State and shall continue
until terminated as provided in Article 10.
ARTICLE 4
PURPOSE AND POWERS OF THE PARTNERSHIP
4.1 PURPOSE.
(a) The purpose of the Partnership shall be to:
1. acquire the Land in accordance with the terms hereof and
the Realty Purchase Agreement (assuming all conditions precedent set forth in
such agreements have been satisfied);
2. pursue the Project (including permitting the Hotel
Manager to continue to operate the Hotel under the Interim Lease until the
Designated Hotel Closing Date);
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3. prepare the site and construct improvements upon, market
and sell, and otherwise act with respect to all or any part of the Property; and
4. engage in such other activities as are reasonably
incidental to the purpose and business of the Partnership set forth in this
Section 4.l(a).
Notwithstanding anything to the contrary contained herein, the Partners
recognize and agree that the Hotel will be operated during the Interim Hotel
Operating Period by the Hotel Manager as further described in Section 4.4 of
this Agreement.
Except by the decision of all of the Partners, evidenced in writing, the
Partnership shall not engage in any other business or activity.
(b) In no event shall this Agreement be held or construed to imply
the existence of a partnership among the Partners with regard to matters, trades
or businesses or enterprises outside the scope of this Partnership, and no
Partner shall have any power or authority under this Agreement to act as the
partner, agent or representative of any other Partner with regard to any matter
beyond the scope of this Partnership.
(c) The General Partner shall be required to manage the
Partnership as its sole and exclusive function and may not have other business
interests or engage in the making or management of other investments or in any
other activities in addition to those relating to the Partnership.
(d) Each Partner covenants and agrees, and acknowledges that it is
a material inducement to the other Partners in entering into this Agreement,
that such Partner shall not, directly or indirectly, engage in the development,
ownership, operation or management of a hotel, condominium hotel or fractional
ownership resort within the Village of Key Biscayne until the earlier of (i) two
years from the Hotel Opening Date, or (ii) the date on which eighty-five (85%)
percent of the hotel condominium units for the Project are conveyed to third
parties (such period, the "RESTRICTED PERIOD"), other than pursuant to this
Agreement, either for such Partner's own account, as a partner, joint venturer,
employee, agent or independent contractor of any person or entity, through any
Affiliate, as an officer, director or shareholder of any corporation or
otherwise. Notwithstanding the foregoing, this Section 4.1(d) shall not apply to
either (y) the
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acquisition solely as an investment, of securities of any issuer that is
registered under Section 12(b) or 12(g) of the Securities Exchange Act of 1934,
as amended, and that are listed or admitted for trading on any United States
national securities exchange or that are quoted on the National Association of
Securities Dealers Automated Quotations System, or any similar system or
automated dissemination of quotations of securities prices in common use, so
long as such Partner or any Related Party of such Partner is not a member of any
control group (within the meaning of the rules and regulations of the Securities
and Exchange Commission) of any such issuer, or (z) a Permitted Opportunity (as
such term is defined in Subsection 4.1(e) below). Without limiting the
generality of the foregoing and except as limited by the provision of this
Section 4.1(d) and by Section 4.1(e), each Partner recognizes that the Limited
Partners and their Affiliates (other than the General Partner) each may and do
have other business interests and that each may and will engage in the making or
management of other investments consistent with such interests, including,
without limitation, investing in, owning, operating, transferring, leasing and
otherwise using real property and interests therein for profit, and engaging in
any and all activities related or incidental thereto and neither the Partnership
nor any Partner shall have any right by virtue of this Agreement or the
partnership relationship created hereby in or to any other ventures or
activities in which any Limited Partner or its Affiliates are involved or to the
income or proceeds derived therefrom. Except as limited by the provision of this
Section 4.1(d) and by Section 4.1(e), the pursuit of other ventures and
activities by each Limited Partner or its Affiliates (other than the General
Partner), even if competitive with, or adverse to, the business of the
Partnership is hereby consented to by all other Partners and shall not be deemed
wrongful or improper under this Agreement. Subject to this paragraph and Section
4.1(e), no Partner or its Affiliate shall be obligated to present any particular
investment opportunity to the Partnership or to any other Partner, even if such
opportunity is of a character which, if presented to the Partnership, could be
taken by the Partnership, and each Partner and each Affiliate shall have the
right to take for its own account, or to recommend to others, any such
particular investment opportunity.
(e) Notwithstanding the foregoing provision, during the Restricted
Period, each of the Fortune Partners and Sonesta (and their Affiliates) shall be
obligated to present to the other Partners any opportunity such Partner may have
with respect to the development of either the Grand Bay Beach Club property or
the Silver Sands Hotel property (a "RELATED OPPORTUNITY").
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The Partner presenting the Related Opportunity (the "PRESENTING PARTNER") shall
provide to the other Partner (the "RECIPIENT PARTNER") all materials and
information within its possession which are relevant to the Related Opportunity
(for this purpose, the Fortune Partners shall be treated as one partner). The
Recipient Partner shall have a period of thirty (30) days from receipt of the
above described information to elect to participate in the Related Opportunity.
In the event the Partners elect to pursue the Related Opportunity, they shall do
so in a newly formed limited partnership (or such other legal entity agreed by
the Partners), which would be owned fifty percent (50%) by each of Sonesta and
the Fortune Partners, all capital contributions shall be made and credit
enhancements shall be provided fifty percent (50%) by each of Sonesta and the
Fortune Partners and all decision making shall be made fifty percent (50%) by
Sonesta and fifty percent (50%) by the Fortune Partners. In addition, each of
the Presenting Partner and the Recipient Partner shall be required to deposit
fifty percent (50%) of all required deposits, up to Two Million Dollars
($2,000,000.00) each, with their respective counsel within ninety (90) days of
the date on which all relevant materials are submitted to the Recipient Partner.
No further deposits or payments (in excess of Two Million Dollars
($2,000,000.00) each) shall be due prior to the end of the above described
ninety (90) day period. In the event that the Recipient Partner elects not to
participate in the Related Opportunity or in the event the Recipient Partner
fails to post the required deposit, up to Two Million Dollar ($2,000,000.00),
within the ninety (90) day period described above and the Presenting Partner
does deposit such amount, then, in such event, the Presenting Partner shall be
permitted to pursue the Related Opportunity for its own account (with or without
third parties), the Recipient Partner shall have no rights to any of the
revenues or profits derived therefrom, and in such event the Related Opportunity
shall be deemed to be a "PERMITTED OPPORTUNITY." In the event the Presenting
Partner fails to make the required deposit but the Recipient Partner makes the
required deposit, then the Recipient Partner shall be permitted to pursue the
Related Opportunity for its own account (with or without third parties), the
Presenting Partner shall have no right to any of the revenues or profits derived
therefrom, and in such event the Related Opportunity shall be deemed to be a
"Permitted Opportunity." In the event neither the Presenting Partner nor the
Participating Partner makes the required deposit within the ninety (90) day
period described above, the restrictions of this Subsection 4.1(e) shall
continue to apply with respect to each Related Opportunity.
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4.2 POWERS. Subject to the Section 8.1(b) regarding Major Decisions,
the Partnership is authorized to sell, hold, lease, own, mortgage, manage,
encumber, transfer, exchange or otherwise convey and deal with the Property, or
any portion thereof, enter into contracts and agreements, and to do all other
things necessary or appropriate to carry out the purpose of the Partnership as
set forth in Section 4.1 hereof.
4.3 TITLE TO PARTNERSHIP PROPERTY. Legal title to the Property and all
other assets acquired by the Partnership shall be taken and at all times held in
the name of the Partnership, provided, however, prior to the satisfaction of the
Escrow Release Conditions neither the Partnership nor the Fortune Partners shall
have any legal or equitable interest in the Property or in the right of Sonesta
or any Affiliate of Sonesta to operate, develop or redevelop the Property.
4.4 SUMMARY OF TRANSACTION. In order to avoid any question or
ambiguity, the Partners have agreed as follows:
(a) DUE DILIGENCE PERIOD.
1. During the Due Diligence Period, Sonesta shall give the
Fortune Partners, and their attorneys, engineers and other advisers, reasonable
access to the Hotel premises and the Property and the books and records of
Sonesta as they relate or pertain to the Property, including, but not limited
to, all existing environmental reports, all documents relating to encumbrances
and easements on the Property, and any documents relating to compliance with
zoning regulations, and will permit the Fortune Partners and their advisers to
make copies of such books and records and to conduct such examinations, surveys
or other engineering due diligence respecting the Property that the Fortune
Partners reasonably deem necessary, including, without limitation, a review of
the environmental condition of the Property, the physical condition of the
Property, land use, zoning and entitlement issues concerning the Property, title
searches, and surveys (without limitation, the "INSPECTIONS"), provided that:
(i) All such due diligence shall be performed in a
manner that the Partners believe in good faith will minimize the impact on the
operation of the Hotel.
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(ii) The Fortune Partners will obtain advance approval
from Xxxxx Xxxxxxxxx (or such other person identified in writing by Xxxxx
Xxxxxxxxx or Sonesta to the Fortune Partners), for physical inspections of
records or the Property which require entry onto the Land, such approval not to
be unreasonably withheld, delayed or conditioned.
(iii) Any independent party that is to enter the Property
and perform Inspections shall provide to Sonesta a certificate of insurance
evidencing liability insurance, and if applicable, professional errors and
omissions insurance, coverages in an amount equal to not less than $1,000,000
and reflecting Sonesta, the tenant pursuant to the Interim Lease and the
Partnership as an additional insured with respect to any damage arising out of
the Inspections.
(iv) Upon completion of any physical inspection or test,
the Fortune Partners and their representatives shall restore the Property to
substantially the same condition which existed prior to such inspection or test.
(v) To the extent permitted by applicable agreements
with applicable third party providers (which the Fortune Partners shall in good
faith seek to permit), copies of any report issued by a third party in
connection with an Inspection shall be promptly provided to Sonesta, and all
such due diligence shall be at the expense of the Fortune Partners and shall not
be an expense of the Partnership. Notwithstanding the foregoing, in all events
reports issued with respect to market and feasibility analysis, environmental
and engineering aspects of the Project and the survey shall be provided to
Sonesta.
(vi) All parties assisting the Fortune Partners with the
Inspections or the due diligence shall agree to abide by the confidentiality
provision set forth in Section 17.14 hereto and the Fortune Partners hereby
indemnify Sonesta for any breach of such confidentiality
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requirement with respect to any such third party in the event that such third
party does not sign a statement reasonably satisfactory to Sonesta in which such
party agrees to abide by the confidentiality requirements.
2. During the Due Diligence Period, the Partners shall
agree on various exhibits to this Agreement, as provided herein, and cause the
same to be incorporated into this Agreement by Amendment hereto, as if contained
on the Effective Date.
3. In the event the Fortune Partners elect, for any reason,
during the Due Diligence Period to not proceed with the transactions
contemplated by this Agreement, they shall provide written notice to Sonesta and
to the Escrow Agent, in which event the Escrow Agent shall release the Escrowed
Items in accordance with the Escrow Agreement and this Agreement, other than the
provisions which expressly survive the termination hereof, shall thereafter be
terminated without penalty to any of the Partners. In addition, in the event
that the Fortune Partners terminate this Agreement pursuant to this provision,
the Fortune Partners shall reimburse Sonesta for all of its documented
reasonable out of pocket expenses incurred by Sonesta in connection with
negotiating the transactions contemplated by this Agreement or in taking actions
requested by either of the Fortune Partners, provided that the Fortune Partners
shall have no obligation to reimburse Sonesta for such costs if the Fortune
Partners elect not to proceed due to a material misrepresentation or material
breach of this Agreement by Sonesta.
4. The Fortune Partners and Xxxxxxx Xxxxxxxxx,
individually, by execution of this Agreement hereby agree to indemnify and hold
harmless Sonesta, of, from and against any and all costs, losses, claims,
damages, liabilities, expenses and other obligations (including, without
limitation, reasonable attorney's fees and court costs) arising from, out of or
in connection with or otherwise relating to the Inspections, including, without
limitation, the entry by any one or more of the Fortune Partners and their
agents, employees, contractors and other representatives in or upon the Property
for the purposes of the Inspections. The foregoing indemnification obligations
of the Fortune Partners and Xxxxxxx Xxxxxxxxx shall survive any expiration or
termination of this Agreement.
(b) ESCROW RELEASE; ESCROW RELEASE CONDITIONS; BREAKUP FEE.
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1. In the event that the Fortune Partners do not elect to
terminate this Agreement on or before the end of the Due Diligence Period, the
Partners shall work diligently and in good faith to close the transactions
described herein on the Escrow Release Date. In the event that the Escrow
Release Conditions have not been satisfied within sixty (60) days of the end of
the Due Diligence Period, either party may elect not to proceed with the
transaction described herein by providing written notice to the other party and
to the Escrow Agent, in which event the (i) Escrow Agent shall release the
Escrowed Items in accordance with the terms of the Escrow Agreement, and (ii)
this Agreement, other than the provisions which expressly survive the
termination hereof, shall thereafter be terminated.
2. On the Escrow Release Date, the Escrow Agent shall take
the Escrow Release Actions.
3. The Partners acknowledge that each of them will be
investing substantial effort in pursuing the Project and that there are
significant possible lost opportunities to each Partner as a result of pursuing
the Project. In consideration of the foregoing, each Partner agrees that in the
event that either Sonesta, on the one hand, or the Fortune Partners, on the
other hand, fail to take those steps necessary to satisfy the Escrow Release
Conditions and this Agreement has not been terminated during the Due Diligence
Period, then in such event, (i) if Fortune fails to take the necessary steps,
Fortune shall forfeit Tranche 1, Tranche 2 and Tranche 3 and (ii) if Sonesta
fails to take the necessary steps, Fortune may bring an action for specific
performance against Sonesta (the "BREAKUP CONSEQUENCE"), provided, however, that
the Partner who benefits from the Breakup Consequence has complied with all of
its material obligations as to the Escrow Release Conditions.
4. Notwithstanding anything else herein to the contrary, by
their execution below, each of the Partners acknowledges their desire and
intention that they be bound to consummate the transactions described herein in
accordance with the terms of this Agreement. They further acknowledge that there
are several agreements, including the Ancillary Agreements, which remain to be
finalized between the date of execution of this Agreement and the Escrow Release
Date, all of which will be based on the terms attached hereto in various
exhibits. In the event that the terms of any such agreements can not be agreed
to by the parties,
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in spite of their good faith efforts to do so, they agree that the sole recourse
for their failure to agree shall be to submit the issues at question to
arbitration as provided in Section 17.15 below; their failure to so agree shall
not be grounds for failing to close the transactions described herein.
(c) LAND ACQUISITION AND CONTRIBUTION.
1. The Partnership's closing of the acquisition of the Land
will occur on the Escrow Release Date. The Land is comprised of the Purchased
Land, which is being purchased by the Partnership from Sonesta pursuant to the
Realty Purchase Agreement, and the Contributed Land, which is being contributed
to the Partnership by Sonesta pursuant to Subsection 5.1(b) below. The Land will
be acquired by the Partnership subject to and encumbered by the Existing
Indebtedness described below and the other Permitted Exceptions.
2. The Partners have agreed to value the Land (being the
aggregate of the Purchased Land and the Contributed Land), as of both the
Effective Date and the Escrow Release Date, for the purpose of establishing
Capital Accounts pursuant to this Agreement, at One Hundred Twenty Million
Dollars ($120,000,000.00). As of the date of this Agreement, the Realty and the
Hotel are encumbered by a mortgage securing that certain Consolidated and
Renewed Promissory Note, dated May 30, 2000, by Sonesta in favor of SUNAMERICA
LIFE INSURANCE COMPANY in the original face amount of $31,000,000 (the "EXISTING
INDEBTEDNESS"), which indebtedness has an outstanding balance of approximately
Thirty Million Dollars ($30,000,000.00). The Partners have agreed that the
Purchased Land has a gross fair market value of Forty Million Dollars
($40,000,000.00), but because it is encumbered by one-third (1/3rd) of the
Existing Indebtedness, the Purchased Land is being acquired by the Partnership
pursuant to the Realty Purchase Agreement for a cash purchase price of Thirty
Million Dollars ($30,000,000.00), subject to one-third (1/3rd) of the Existing
Indebtedness. Pursuant to Subsection 5.1(b) below, Sonesta is contributing to
the Partnership the Contributed Land, which the Partners have agreed has a gross
fair market value of Eighty Million Dollars ($80,000,000.00), but which is
subject to two-thirds (2/3rds) of the Existing Indebtedness, resulting in the
Initial Capital Contribution of Sonesta being approximately Sixty Million
Dollars ($60,000,000.00). As of the Escrow Release Date, the General Partner and
Sonesta shall mutually determine and agree upon the aggregate amount of the
unpaid principal balance and all
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accrued but unpaid interest on the Existing Indebtedness (such aggregate amount
referred to as the "EXISTING INDEBTEDNESS BALANCE"). The Partners have agreed
that the Initial Capital Contribution of Sonesta, shall be equal to Eighty
Million Dollars ($80,000,000.00) reduced by the two-thirds (2/3rds) of the
Existing Indebtedness Balance. The Partners acknowledge that Sonesta is not
contributing to the Partnership the furniture, equipment and items of tangible
personal property (including all art work) used or useful in connection with the
Hotel, and title to such assets will remain with Sonesta.
3. On the Escrow Release Date the Fortune Partners shall
cause the Existing Indebtedness to be repaid from the proceeds of either (i) a
Capital Contribution by the Fortune Partners to the Partnership, or (ii) a
Bridge Loan to the Partnership (which Bridge Loan shall permit Sonesta to be
released from all obligations in connection with the Existing Indebtedness); the
Fortune Partners having the sole discretion to elect either (i) or (ii) above.
Any guarantees required to secure any Bridge Loan shall be provided by the
Fortune Partners and/or Xxxxxxx Xxxxxxxxx. In the event that the Partnership
undertakes a Bridge Loan to refinance the Existing Indebtedness, (i) the
Partnership shall be required to pay the interest on such indebtedness; and (ii)
the Partnership shall be required to pay the reasonable costs incurred in
obtaining, negotiating and closing such financing. Any payments required to be
made pursuant to or in settlement of the defeasance provisions contained in the
documents evidencing and governing the Existing Indebtedness shall be satisfied
as part of the satisfaction of the Existing Indebtedness and sums expended for
that purpose shall be an expense of the Partnership and shall be funded through
an Additional Capital Contribution by the Fortune Partners or from the proceeds
of a Bridge Loan, as determined by the Fortune Partners. Any requirement of the
documents evidencing or governing the Existing Indebtedness regarding the
repayment of principal in connection with the hotel owned by an Affiliate of
Sonesta in Cambridge, Massachusetts shall be satisfied by
Sonesta International
Hotels Corp., a New York corporation or other Affiliate of Sonesta and shall not
be an obligation of the Partnership or the Fortune Partners.
(d) INTERIM HOTEL OPERATIONS AND SHUTDOWN.
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1. Sonesta shall have the right to operate the Hotel
pursuant to the Interim Lease during the Interim Hotel Operating Period. Sonesta
and the Fortune GP shall mutually agree on the appropriate date to cease
operating the Hotel in order to develop the site for the Project if other than
August 31, 2006 (the "DESIGNATED HOTEL CLOSING DATE") and the General Partner
shall provide written notice (the "CESSATION NOTICE") to the Hotel Manager no
less than ninety (90) days prior to the Designated Hotel Closing Date. Sonesta
covenants and agrees to cause the Hotel Manager to discontinue operation of the
Hotel on or before the Designated Hotel Closing Date provided the Cessation
Notice is delivered at least ninety (90) days in advance of the Designated Hotel
Closing Date. In addition, Sonesta shall take reasonable steps as may be
necessary to assure that all Contracts affecting the Hotel (other than those
specifically identified in writing by the General Partner) are terminated on or
before the Designated Hotel Closing Date. Although the Partners acknowledge that
it is their current contemplation that the Designated Hotel Closing Date will be
August 31, 2006, they further acknowledge that such date may change (either
earlier or later) and that the exact Designated Hotel Closing Date shall be as
provided in the Cessation Notice or such earlier date as is determined by
Sonesta. The Partners will work together, in good faith, to determine the
appropriate Designated Hotel Closing Date (if to be other than August 31, 2006).
On or before July 1 of each year (commencing July 1, 2005), the Fortune GP shall
advise Sonesta whether it believes that demolition of the hotel will occur on or
before June 1 of the following year. In the event that Fortune GP indicates in
writing that it does not believe that demolition of the Hotel will occur on or
before the next succeeding June 1, Sonesta shall be permitted to continue to
operate the Hotel under the terms and conditions set forth in the Interim Lease,
through the end of the applicable season (May 31).
2. The costs and expenses incident to the closing of the
Hotel, which the Hotel Manager shall use its best efforts to minimize, including
without limitation, the out of pocket costs associated with terminating
contracts, as referred to above, any additional cost under Sonesta's defined
benefit pension plan from the closing of the Hotel, employee severance payments,
and all long and short term obligations of the Hotel including but not limited
to notes payable and accrued vacation, shall be borne by the Partnership.
Severance payments may include (i) four (4) weeks of severance compensation for
each employee with more than one year of service plus one (1) week of severance
compensation for each year of service (but not less
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than a minimum of 2 weeks of severance compensation for each employee), (ii) the
retention, at pre-existing compensation levels, of up to ten (10) employees (all
of whom shall remain as employees of Sonesta but whose compensation shall be
funded by the Partnership), and (iii) such other severance arrangements as are
commonly made by Sonesta or its Affiliates in other similar situations.
Notwithstanding anything to the contrary contained herein, the aggregate costs
to be paid or incurred by the Partnership incident to the closing of the Hotel,
which Sonesta represents are described in this Subsection 3.3(d)(2), shall not
exceed Four Million and No/100 ($4,000,000.00) Dollars.
3. In conjunction with the shutdown of the Hotel, Sonesta
shall receive payments in the amount of one hundred twenty five thousand and
No/100 ($125,000) Dollars for each month, and a prorated amount for partial
months, from and after the Designated Hotel Closing Date and until the Hotel
Opening Date (the "HOTEL SHUTDOWN PAYMENTS"). In the event that the Partnership
shall have insufficient funds to pay the Hotel Shutdown Payments, the Fortune
Partners shall provide Additional Capital Contributions pursuant to Section
5.2(a) to the extent necessary to provide the Partnership with the cash with
which to make such payments. Notwithstanding anything to the contrary contained
herein, in no event (and without regard to the actual date on which the Hotel
ceases to operate) shall the first Hotel Shutdown Payment be due or payable on
or before June 30, 2006.
(e) NEW DEVELOPMENT.
1. The Partners presently contemplate that the Partnership
will redevelop the Land after the Designated Hotel Closing Date as a luxury
condominium hotel together with a possible luxury condominium ("NEW
DEVELOPMENT"). By their execution of this Agreement the Partners agree that the
New Development shall in all events be built in accordance with the plans and
specifications approved by the Partners and the Project Standard and shall
include a condominium hotel component consisting of at least three hundred fifty
(350) keys (including lockouts)(each hotel room being not less than
approximately 500 square feet), with consent and approval rights vested in
Sonesta as to any and all uses of the "Sonesta" or other names and marks. As to
the hotel component thereof, the Fortune GP agrees that, unless otherwise agreed
by Sonesta in its sole and absolute discretion, the Hotel Manager or another
Affiliate of Sonesta
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will manage the hotel component of the New Development (the "New Hotel") under
the Sonesta "brand" and pursuant to the Long Term Hotel Management Agreement
which shall take effect at a date to be determined after the demolition and
reconstruction of the existing Hotel upon the Property. Certain of the material
terms of the Long Term Hotel Management Agreement shall be as set forth in
EXHIBIT G, with the final agreement containing other customary terms and
conditions for comparable hotel management agreements. The failure to agree on
such terms shall be subject to arbitration as provided in Section 17.15 below.
Sonesta or an Affiliate of Sonesta shall further be appointed by the Partnership
as the manager of any condominium association for the condominium units within
the New Development to the extent that the Partnership has the legal right to do
so. Sonesta shall be paid management fees customary in the market for acting as
the manager of such an association or associations.
(f) SALES AND MARKETING ACTIVITIES. The Fortune GP shall be
responsible for preparing a Sales and Marketing Plan for the Project that is
satisfactory to Sonesta in its reasonable discretion. The costs and expenses
expected to be incurred in implementing the Sales and Marketing Plan shall be
included in the Budget, and the Sales and Marketing Plan shall include projected
sales activity, key marketing strategies and other information reasonably
requested by Sonesta.
(g) SALE OF HOTEL LOT. The Partners acknowledge that the primary
purpose for which the Partnership has been formed is to develop and sell
residential condominium units (the "RESIDENTIAL UNITS") and to provide for the
operation of a condominium hotel within the Project. The Project shall be a
mixed use project to be comprised of residential condominium units which shall
include at least three hundred fifty (350) hotel keys (including lockouts) and
one or more additional parcels of real estate, which may or may not be
condominium units, and which shall contain, as determined by the Fortune GP and
Sonesta, public spaces, back of the house, restaurants, spas and athletic
facilities, other recreational amenities, meeting space and facilities that will
be used in connection with the operation of a hotel (whether one or more lots,
the "ANCILLARY LOT"). By their execution below, the Partners agree to (i)
consult on the structure of the condominium regime and other covenants and
restrictions that would comprise the governance documents for the operation of
the Project and to develop legal descriptions for the Ancillary Lot (which may
be multiple condominium or non-condominium parcels) and the other
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condominium units; (ii) submit the Project to the governance regime, including
the submission of a condominium filing with the Secretary of State of Florida;
(iii) form a new entity (the form of which (partnership, limited liability
company or other form of entity) will be mutually determined by the Partners)
which will be owned seventy percent (70%) by Sonesta (or Affiliates thereof) and
thirty percent (30%) by the Fortune Partners (or Affiliates thereof), and (iv)
sell to the newly formed entity described in (iii) above the Ancillary Lot for a
sales price equal to Five Million and No/100 ($5,000,000) Dollars (it being
agreed by the Partners that the determination of the fair market value of the
Ancillary Units being difficult to value and highly speculative and the parties
desiring to agree upon the price for such property at this time). At the
election of the new entity, the purchase price shall be paid either (i) all cash
at closing or (ii) 20% in cash and the remaining portion payable by negotiable
promissory note in favor of the Partnership, which note provides for a term of
three (3) years, with mandatory payments of principal and interest in amounts
equal to the amounts distributable to the Partners pursuant to Section 7.1(g)
hereof (whether directly or by virtue of the operation of Section 7.2) [which
amounts shall be funded seventy percent (70%) by Sonesta (or Affiliates thereof)
and thirty percent (30%) by the Fortune Partners (or Affiliates thereof)], and
which note shall bear interest compounded annually at the applicable federal
rate established under Code Section 1274(d) on the date of the closing. The sale
of the Ancillary Lot shall be closed on such date subsequent to the date on
which the Construction Loan has been repaid in full which is agreed to by
Fortune GP and Sonesta. The Ancillary Lot will include all of the furniture,
fixtures and equipment necessary to operate the New Hotel as reflected in the
plans and specifications for the New Hotel agreed to by the Partners. Capital
will be contributed to the new entity seventy percent (70%) by Sonesta and
thirty percent (30%) by the Fortune Partners (or their Affiliates). Sonesta and
the Fortune Partners (or their Affiliates) will enter into a partnership
agreement, operating agreement or other similar such agreement containing
provisions relating to the new entity in accordance with the terms of EXHIBIT K
hereto.
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ARTICLE 5
CAPITAL CONTRIBUTIONS; PERCENTAGE INTERESTS; FINANCING
5.1 INITIAL CAPITAL CONTRIBUTIONS.
(a) The Fortune Partners (pro rata in accordance with their
respective Partnership Interests) shall contribute the following amounts at the
following times to be applied to their Initial Capital Contributions to the
capital of the Partnership:
1. One Million Dollars ($1,000,000.00) on the Effective
Date ("TRANCHE 1"), which shall be paid to the Escrow Agent;
2. Assuming this Agreement has not been terminated earlier
pursuant to Subsection 4.5(b) above, Two Million Dollars ($2,000,000.00) on the
first Business Day following the last day of the Due Diligence Period ("TRANCHE
2"), which shall be paid to the Escrow Agent;
3. Three Million Dollars ($3,000,000.00) on the thirtieth
(30th) day following the last day of the Due Diligence Period ("TRANCHE 3").
Tranche 3 shall be paid to the Escrow Agent; provided, however, that when
Sonesta has complied with all of its obligations under the Escrow Agreement, the
Escrow Agent shall be authorized to release the Tranche 3 payment to Sonesta;
and
4. Twenty-Four Million Dollars ($24,000,000.00) on the
sixtieth (60th) day following the last day of the Due Diligence Period ("TRANCHE
4"). Tranche 4 shall be paid to the Escrow Agent.
The Partners acknowledge that all sums contributed by the Fortune Partners
pursuant to Subsection 5.1(a) shall be utilized by the Partnership to fund the
cash payment required to be made by the Partnership pursuant to the Realty
Purchase Agreement.
(b) On the same day on which Tranche 2 is funded, Sonesta shall
execute and deliver to the Escrow Agent all documents necessary to convey good
title to the Contributed Land (and all rights related thereto, including without
limitation, any development and
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appurtenant rights with respect to the Land, together with all necessary
consents to their use by the Partnership) to the Partnership, subject only to
the Permitted Exceptions and those liabilities to be set forth on SCHEDULE
5.1(b). The conveyance of the Contributed Land shall be evidenced by such
documents of conveyance as are reasonably requested by the General Partner
(which shall be in form and substance similar to those provided for in the
Realty Purchase Agreement which are provided with respect to the Purchased
Land). The conveyance documents referred to above shall be released from escrow
and recorded on the Escrow Release Date. Effective as of the Escrow Release
Date, Sonesta shall receive a credit to its Capital Account in the agreed and
stipulated amount of Eighty Million Dollars ($80,000,000.00) reduced by
two-thirds (2/3rds) of the balance of the Existing Indebtedness, notwithstanding
the fact that the Land will be encumbered by one hundred percent (100%) of the
Existing Indebtedness.
5.2 ADDITIONAL CAPITAL CONTRIBUTIONS; GUARANTEES; FINANCING.
(a) (i) The Partners acknowledge that additional funds (in
addition to those described in Subsections 5.1(a)-(b)) may be required in order
for the Partnership to have sufficient equity to conduct the Pre-Development
Activities on the Land, to satisfy the requirements for closing on a
Construction Loan, to pay the Hotel Shutdown Payments and to fund the balance of
the costs to complete the Project, including cost overruns in excess of the
Budget. To the extent otherwise unavailable from third party lenders, Fortune
shall fund such amounts (any such amount so funded referred to as "ADDITIONAL
CAPITAL CONTRIBUTIONS") from time to time on or after the Escrow Release Date as
required pursuant to and consistent with the Budget, or as otherwise may be
required, and provided further that, subject to the other terms and conditions
of this Agreement, Sonesta shall have no obligation to provide any additional
funds to or for the benefit of the Project or the Partnership.
(ii) Notwithstanding anything to the contrary contained
herein, if and to the extent that at any time prior to the closing of the
Construction Loan, Fortune GP desires to cause the Partnership to encumber the
Property with indebtedness of any kind or nature, including but not limited to
the Bridge Loan, in an aggregate principal amount in excess of the Indebtedness
Threshold (such excess, the "EXCESS INDEBTEDNESS"), as a condition to drawing
down any such additional indebtedness the Fortune Partners must
contemporaneously therewith
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make Additional Capital Contributions if and to the extent necessary so that the
aggregate Capital Contributions made by the Fortune Partners while such Excess
Indebtedness is outstanding is not less than the sum of (i) Thirty Million
Dollars ($30,000,000.00) and (ii) the then funded Excess Indebtedness. In no
event, however, shall the total amount of the total Non-Construction Loan
Indebtedness incurred by the Partnership prior to the closing of the
Construction Loan exceed Sixty Million Dollars ($60,000,000.00) without
Sonesta's prior consent.
(b) To the extent any personal guarantees are required in order to
obtain any institutional financing for the Project, then such guarantees shall
be provided by Xxxxxxx Xxxxxxxxx or such other Affiliate of the Fortune Partners
which is acceptable to the lender. Any payment made pursuant to a loan guaranty
will be considered as an Additional Capital Contribution hereunder (by the
Partner making such payment or by the Partner whose Affiliate made such
payment). In addition, any payment to a lender in respect of prepayment of a
loan or the settlement of the defeasance obligations and any similar payment
required to be paid to the holder of the Existing Indebtedness or any other
lender shall be treated as an expense of the Partnership, which amount if
necessary (and if unavailable from third party lenders upon reasonable market
terms and conditions) shall be funded by the Fortune Partners as an Additional
Capital Contribution.
(c) Except as provided in this Section 5.2 and Section 5.3 below,
no Partner shall be required, nor entitled, to make (i) any Additional Capital
Contributions, or (ii) any loans to the Partnership.
(d) Notwithstanding anything to the contrary contained herein, in
the event all or any portion a Net Deficit arises from or is attributable to the
willful misconduct, fraud or gross negligence, or material breach of this
Agreement by a Partner or an Affiliate thereof (collectively, the "RESPONSIBLE
PARTNER") which is not cured by such Partner within the specified cure periods,
then the Responsible Partner alone shall be required to fund all (or the
applicable portion) of such amounts. Said amount shall not be treated as an
Additional Capital Contribution or a loan; it shall be funded out of the
Responsible Partner's funds and shall not be repaid or returned by the
Partnership. For purposes of this Subsection 5.2(d) the following cure periods
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shall apply: (A) in the case of fraud, willful misconduct or gross negligence
there shall be no cure period; and (B) in the case of material breach, the cure
period is thirty (30) days following written notice of such matter from a
Partner other than the Responsible Partner to all of the Partners, provided that
if such matter is curable but the cure cannot be effected within such thirty
(30) day period, the cure period shall be extended for such additional period of
time during which all reasonable efforts are being taken to effect such cure.
5.3 FAILURE TO CONTRIBUTE ADDITIONAL CONTRIBUTIONS. (a) In the event
that either (i) the Fortune Partners fail to make any Additional Capital
Contribution required to be made by them pursuant to Section 5.2 (each, an
"ADDITIONAL CAPITAL CONTRIBUTION DEFAULT") (excluding amounts required to be
advanced by a Partner pursuant to Subsection 5.2(d) which in all events, must be
made by the Responsible Partner), or (ii) either Sonesta or the Hotel Manager
fail to pay and discharge all expenses, claims or amounts required to be paid by
them pursuant to Section 8.7 below or the Interim Lease (the Partner failing to
make the required Additional Capital Contribution or payment referred to as the
"DEFAULTING PARTNER" and the other Partner referred to as the "NON-DEFAULTING
PARTNER"; for this purpose, the Fortune Partners shall be treated as one
Partner) and such failure remains unremedied for thirty (30) days following the
date of receipt of written notice from the Non-Defaulting Partner, then in
addition to the other rights and/or remedies as provided elsewhere in this
Agreement, the amount which the Defaulting Partner failed to contribute shall be
referred to as the "UNCONTRIBUTED AMOUNT" and the Non-Defaulting Partner shall
provide written notice (the "DEFAULT NOTICE") to the Defaulting Partner of such
default and of the Uncontributed Amount. In such event, the Non-Defaulting
Partner shall decide by providing written notice to the Defaulting Partner
whether or not to contribute the Uncontributed Amount. In all events, the amount
so contributed by the Non-Defaulting Partner shall be treated initially as a
recourse, demand loan by the Non-Defaulting Partner to the Defaulting Partner(a
"DEFAULT FINANCING"), which Default Financing shall bear interest at the rate of
fifteen percent (15%) per annum compounded annually from the date advanced until
repaid. The interest shall accrue thereon from the date of the Non-Defaulting
Partner's advance of the Default Financing until the occurrence of the earliest
of the following events:
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(1) the Default Financing is eliminated due to the
payment by the Defaulting Partner to the Non-Defaulting Partner of
an amount equal to the Default Financing plus interest accrued
thereon to the date of payment;
(2) the satisfaction of the Default Financing plus
interest accrued thereon as the result of distributions made
pursuant to Section 7.4 hereof; or
(3) the Non-Defaulting Partner elects to purchase the
Defaulting Partner's Partnership Interests pursuant to Subsection
5.3(b) below.
Upon the occurrence of any such events, the Default Financing shall be
deemed to have been satisfied and discharged. In no event shall any agreed to or
actual exaction charged, reserved or taken as an advance or forbearance as
consideration for a Partner making a Default Financing exceed the limits (if
any) imposed or provided by the law applicable from time to time to the Default
Financing for the use or detention of money or for forbearance in seeking its
collection; any Partner providing the Default Financing hereby waives any right
to demand such excess.
(b) In the event that (i) a Partner fails for any reason to make an
Additional Capital Contribution required by Subsection 5.2(a) of this Agreement
within the thirty (30) day period referred to in Subsection 5.3(a) above, (ii)
the Non-Defaulting Partner provides Default Financing as described in Subsection
5.3(a) above, and (iii) the Defaulting Partner, within thirty (30) days after
written demand therefore (which demand may not be made before 90 days following
the date of such Default Financing), fails to repay any such Default Financing,
together with any and all interest thereon, then, in any such event, the
Non-Defaulting Partner (or its designated Affiliate) may elect, at any time
within ninety (90) days of the end of the thirty (30) day period described in
(iii) above, and by written notice thereof to the Defaulting Partner, to
purchase the Defaulting Partner's Partnership Interests in accordance with the
following terms:
(1) The purchase price ("PURCHASE PRICE") for the Defaulting
Partner's Partnership Interest shall be an amount equal to
seventy-five percent (75%) of such Defaulting Partner's
Unreturned Capital.
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(2) The Purchase Price shall be paid in twelve (12) equal
quarterly payments of principal and interest. The first
payments shall be made at the closing for the sale of the
offered interest, and all subsequent payments shall include
interest compounded annually at the applicable federal rate
established under Code Section 1274(d) on the date of the
closing added to each installment after the first
installment; PROVIDED, HOWEVER, in the case of the purchase
by Sonesta of the Fortune Partners Partnership Interests,
the first installment shall not be due until such time as
Sonesta shall have received payments from either the
Partnership or in connection with the admission of a new
Partner, in an amount equal to its Unreturned Capital. The
Non-Defaulting Partner will prepare and give the Defaulting
Partner a negotiable promissory note secured by the
Partnership Interest being purchased as evidence of this
debt. Such note shall permit the Non-Defaulting Partner to
prepay all or any part of the principal balance of the note
at any time without penalty or premium.
(c) The purchase of the Defaulting Partner's interest pursuant
to this Section 5.3(b) will take place at a closing, held
at 1:00 P.M. on the fifteenth (15th) day after the date of
notice given to the Defaulting Partner, at the
Partnership's primary place of business, or at any other
place to which the parties agree. At the closing, the
Non-Defaulting Partner will pay for the Defaulting
Partner's interest as provided above, and the Partnership
will change its books to indicate that the interest has
been Transferred. If the Defaulting Partner does not appear
at the closing, then the Non-Defaulting Partner shall
deposit the purchase price by check and note, with the
Partnership and the Partnership shall deposit such funds
with any bank with which the Partnership has a bank account
on the date of the closing, to be paid to the Defaulting
Partner as soon as is reasonably practicable, less an
appropriate fee to the Partnership (not to exceed five
hundred dollars ($500.00)) to pay for the additional
administrative costs and the
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Partnership will adjust its transfer books to reflect that
the interest has been Transferred.
(d) Each Partner appoints the Partnership as its agent and
attorney-in-fact to execute and deliver all documents
needed to convey its Partnership Interest, if such
Defaulting Partner is not present at the closing. This
power of attorney is coupled with an interest, does not
terminate on the Partner's disability or death, and
continues for as long as this Agreement is in effect.
(e) Without limitation to the rights of the Non-Defaulting
Partner hereunder, in the event that a Defaulting Partner's
interests are purchased pursuant to this Section 5.3(b),
the Partnership shall take all steps necessary to obtain
the Defaulting Partner's release from any guarantees on any
indebtedness previously provided by such Defaulting Partner
or its Affiliates; provided, however, the failure of the
Partnership to obtain such release shall not be grounds to
prevent to sale of the Defaulting Partner's interest as
provided herein if the Partnership provides an indemnity to
the Defaulting Partner, with respect to any and all
liabilities under said guarantees.
5.4 COMPUTATION OF CAPITAL ACCOUNTS. Each Partner shall have a Capital
Account which shall be maintained in accordance with the following provisions:
(a) to each Partner's Capital Account there shall be credited such
Partner's Capital Contributions, such Partner's distributive share of Profits
and any items in the nature of income or gain which are specially allocated to
such Partner, and the amount of any Partnership liabilities assumed by such
Partner or which are secured by any property distributed to such Partner;
(b) to each Partner's Capital Account there shall be debited the
amount of cash and the fair market value of any Property distributed to such
Partner pursuant to any provision of this Agreement (other than distributions
made in repayment of loans, if any, made by the Partner
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to the Partnership or in payment of services rendered by a Partner to the
Partnership), such Partner's distributive share of Losses and any items in the
nature of expenses or losses which are specially allocated to such Partner, and
the amount of any liabilities of such Partner assumed by the Partnership or
which are secured by any property contributed by such Partner to the
Partnership; and
(c) in determining the amount of any liability for purposes of
Subsections 5.4(a) and 5.4(b) hereof, there shall be taken into account Code
Section 752(c) and any other applicable provisions of the Code and Regulations.
The foregoing provisions and the other provisions of this Agreement
relating to the maintenance of Capital Accounts are intended to comply with
Regulations Section 1.704-l(b), and shall be interpreted and applied in a manner
consistent with such Regulations.
5.5 CAPITAL ACCOUNTS GENERALLY; NO INTEREST ON CAPITAL.
(a) Whenever it is necessary to determine the Capital Account of
any Partner for any purpose hereunder, the Capital Account of such Partner shall
be determined after giving effect to all adjustments provided for in Section 5.4
hereof for the current Fiscal Year in respect of transactions effected prior to
the date such determination is to be made.
(b) No Partner shall be entitled to withdraw any part of its
Capital Account, or to receive any distribution from the Partnership except as
specifically provided in this Agreement.
(c) No interest shall be paid on any capital contributed to the
Partnership.
ARTICLE 6
PROFITS AND LOSSES; SPECIAL ALLOCATIONS
6.1 PROFITS AND LOSSES. For purposes of applying this Section 6.1, a
Partner's Capital Account balance shall be deemed to be increased by such
Partner's share of (i) the allocation for such Fiscal Year pursuant to Sections
6.2(g) and 6.2(h) and (ii) any Partnership Minimum Gain and Partner Nonrecourse
Debt Minimum Gain remaining after such allocation as determined
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under the Regulations under Code Section 704(b). Subject to Section 6.2, Profits
and Losses shall be allocated in the following order of priority:
(a) Any Profits shall be allocated as follows:
1. first, to any Partner previously allocated losses under
Section 6.l(b) below, Profits shall be allocated ratably and in the inverse
order to the manner in which such Losses were allocated, until the cumulative
Profits allocated pursuant to this Section 6.l(a)(i) for the current and all
prior Fiscal Years are equal to the cumulative Losses allocated pursuant to
Section 6.l(b) hereof for all prior Fiscal Years;
2. second, to Sonesta until the aggregate Profits allocated
to Sonesta pursuant to this Subsection 6.1(a)(2) equal the aggregate amount paid
to Sonesta under Section 7.1(c) relating to the Sonesta Preferred Distribution
and under Section 7.1(e) relating to Sonesta's Subordinated Return; and
3. thereafter, Profits shall be allocated to the Partners
in proportion to their respective Percentage Interests.
(b) Any Losses shall be allocated:
1. first, to the Partners to the extent and in proportion
to any Profits allocated to the Partners pursuant to Section 6.1(a)(3);
2. second, to Sonesta to the extent of any Profits, if any,
allocated to it pursuant to Section 6.1(a)(2);
3. third, to the Fortune Partners to the extent that the
balance in the Fortune Partners' Capital Account exceeds their Unreturned
Capital (a "FORTUNE EXCESS BALANCE"), in the proportion that such Partner's
Fortune Excess Balance bears to the Fortune Excess Balances of all of the
Fortune Partners until all of such Fortune Excess Balances are reduced to zero;
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4. forth, to Sonesta to the extent that the balance in
Sonesta's Capital Account exceeds its Unreturned Capital (a "SONESTA EXCESS
BALANCE"), until the Sonesta Excess Balance is reduced to zero;
5. fifth, to the Partners, in proportion to their positive
Capital Accounts until such Capital Account balances shall be reduced to zero;
6. sixth, among the Partners that bear the "economic risk
of loss" (as that term is defined in Regulations Section 1.752-2) with respect
to Partnership indebtedness, to the extent of such indebtedness in proportion to
the manner in which such Partners share such risk of loss; and
7. Thereafter, among the Partners in proportion to their
Percentage Interests.
6.2 SPECIAL ALLOCATIONS.
(a) SECTION 754 ADJUSTMENT. To the extent an adjustment to the
adjusted tax basis of any Partnership asset pursuant to Code Section 734(b) or
Code Section 743(b) is required, pursuant to Regulations Section
1.704-(b)(2)(iv)(m), to be taken into account in determining Capital Accounts,
the amount of such adjustment to the Capital Accounts shall be treated as an
item of gain (if the adjustment increases the basis of the asset) or loss (if
the adjustment decreases such basis) and such gain or loss shall be specially
allocated to the Partners in a manner consistent with the manner in which their
Capital Accounts are required to be adjusted pursuant to such section of the
Regulations.
(b) GENERAL ALLOCATION PROVISIONS.
1. Except as otherwise provided in this Agreement, all
items of Partnership income, gain, loss, deduction, and any other allocations
not otherwise provided for shall be divided among the Partners in the same
proportions as they share Profits or Losses, as the case may be, for the year.
2. For purposes of determining the Profits, Losses, or any
other items allocable to any period, Profits, Losses, and any such other items
shall be determined on a daily,
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monthly, or other basis, as determined by the Partners using any permissible
method under Code Section 706 and the Regulations thereunder.
(c) CODE SECTION 704(c) ALLOCATIONS. To the extent required under
Code Section 704(c) and the Treasury Regulations thereunder, income, gain, loss
and deduction with respect to any property contributed to the capital of the
Partnership by a Partner shall, solely for tax purposes, be allocated among the
Partners so as to take into account the difference, if any, between the tax
basis of the property to the Partnership and its fair market value at the time
of contribution to the Partnership.
(d) PRINCIPLES OF ALLOCATION. It is the intention of the Partners
that the allocations of income and losses hereunder have substantial economic
effect in accordance with the tests therefore set forth in the Treasury
Regulations promulgated under Section 704(b) of the Code. Accordingly,
allocations not specifically provided for in this Agreement shall be made in
such a manner as shall conform to the allocation rules and principles as set
forth in such Treasury Regulations as in effect from time to time, and the
Capital Accounts of the Partners shall be maintained in accordance with the
provisions hereof construed and interpreted in the light of such Treasury
Regulations. The General Partner may amend the provisions of this Agreement if
such amendment would not have a materially adverse effect on the Partners and
if, in the opinion of counsel for the Partnership, such amendment is advisable
for purposes of complying with Section 1.704-1(b) or Section 1.704-2 of the
Treasury Regulations, as may be amended or supplemented from time to time.
(e) LIMITATION ON LOSS ALLOCATIONS. Partnership Losses allocated
to any Partner pursuant to Section 6.1(b), above, shall not exceed the maximum
amount of Losses that can be so allocated without causing the Capital Account of
such Partner to have a deficit Capital Account balance (after taking into
account reductions to such Capital Account balance pursuant to Treasury
Regulations Section 1.704-1(b)(2)(ii)(d)(4), 1.704-1(b)(2)(ii)(d)(5) and
1.704-1(b)(2)(ii)(d)(6)) which exceeds the sum of (i) the amount of such deficit
the Partner is obligated to restore, and (ii) the amount of such deficit the
Partner is deemed to be obligated to restore pursuant to the penultimate
sentences of Treasury Regulations Sections 1.704-2(g)(1) and 1.704-2(i)(5).
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(f) QUALIFIED INCOME OFFSET. In the event any Partner unexpectedly
receives any adjustments, allocations or distributions described in Treasury
Regulations Sections 1.704-1(b) (2) (ii) (d) (4), 1.704-1(b)(2)(ii)(d)(5) or
1.704-1(b)(2)(ii)(d)(6) which results in such Partner having a deficit Capital
Account balance, or otherwise has a deficit Capital Account balance, which
exceeds the sum of (i) the amount of such deficit the Partner is obligated to
restore, and (ii) the amount of such deficit the Partner is deemed to be
obligated to restore pursuant to the penultimate sentences of Treasury
Regulations Sections 1.704-2(g)(1) and 1.704-2(i)(5), such Partner shall be
specially allocated items of Partnership income and gain in an amount and manner
sufficient to eliminate, to the extent required by the Treasury Regulations, the
deficit in such Partner's Capital Account as quickly as possible. Any special
allocation made under this Section 6.2(f) shall be taken into account for
purposes of determining subsequent allocations of income and losses, so that the
total allocations will, to the extent possible, equal the allocations which
would have been made if this Section 6.2(f) had not previously applied.
(g) MINIMUM GAIN CHARGEBACK. Except as otherwise provided in
Section 1.704-2(f) of the Treasury Regulations, and notwithstanding any other
provision of this Article 6, if there is a net decrease in partnership minimum
gain (as such term is defined in Treasury Regulations Section 1.704-2(d)) during
any Partnership taxable year, each Partner shall be specially allocated items of
Partnership income and gain for such year (and, if necessary, subsequent years)
in an amount equal to that Partner's share of the net decrease in partnership
minimum gain, as determined in accordance with Treasury Regulations Section
1.704-2(g). The items to be so allocated shall be determined in accordance with
Sections 1.704-2(f)(6) and 1.704-2(j)(2) of the Treasury Regulations. This
Section 6.2(g) is intended to comply with the minimum gain chargeback
requirement in Section 1.704-2(f) of the Treasury Regulations and shall be
interpreted consistently therewith.
(h) PARTNER MINIMUM GAIN CHARGEBACK. Notwithstanding any other
provision of this Article VI (other than Section 6.2(g), if there is a net
decrease in Partner Nonrecourse Debt Minimum Gain (as such term is defined in
Treasury Regulations Section 1.704-2(i)(2)) during any Partnership taxable year,
each Partner shall be specially allocated items of Partnership income and gain
for such year (and, if necessary, subsequent years) in an amount equal to that
Partner's share of the net decrease in Partner Nonrecourse Debt Minimum Gain, as
determined in
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accordance with Treasury Regulations Section 1.704-2(g)(2). The items to be so
allocated shall be determined in accordance with Section 1.704-2(g) of the
Treasury Regulations. This Section 6.2(h) is intended to comply with the partner
nonrecourse debt minimum gain chargeback requirements of the Treasury
Regulations and shall be interpreted consistently therewith and will be subject
to all exceptions provided therein.
(i) NONRECOURSE DEDUCTIONS. Nonrecourse deductions (as such term
is defined in Treasury Regulations Section 1.704- 2(b)), if any, for any taxable
year or other period shall be allocated among the Partners in proportion to
their Percentage Interests.
(j) PARTNER NONRECOURSE DEDUCTIONS. Any partner nonrecourse
deductions (as such term is defined in Treasury Regulations Section 1.704-2(i))
for any taxable year or other period shall be specially allocated to the Partner
who bears the risk of loss with respect to the partner nonrecourse debt (as such
term is defined in Treasury Regulations Section 1.704-2(b)(4)) to which such
partner nonrecourse deductions are attributable, in accordance with Treasury
Regulations Section 1.704-2(i).
(k) CURATIVE ALLOCATIONS. The allocation provisions in this
Agreement are intended to produce final Capital Account balances that are at
levels ("TARGET FINAL BALANCES") which would permit liquidating distributions,
if made in accordance with such final Capital Account balances, to be equal to
the distributions that occur pursuant to Section 7.2 (or, if applicable, Section
7.4). To the extent that the allocations in this Agreement would not produce the
Target Final Balances, the General Partner is authorized to take such actions as
are necessary to amend such provisions to produce such Target Final Balances.
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ARTICLE 7
DISTRIBUTIONS
7.1 NET CASH FLOW. During the term of the Partnership, Net Cash Flow,
if any, shall be distributed to the Partners monthly or more frequently as
determined by the General Partner and shall be distributed among the Partners as
follows:
(a) first, for all applicable periods, to Sonesta in payment of
any then accrued but unpaid Hotel Shutdown Payments;
(b) second, to Sonesta in payment of its Unreturned Capital until
the Unreturned Capital of Sonesta is reduced to zero;
(c) third, to Sonesta in payment of the Unpaid Sonesta Preferred
Distribution until the Unpaid Sonesta Preferred Distribution is reduced to zero;
(d) fourth, to the Fortune Partners in payment of their Unreturned
Capital (excluding any Subordinated Capital) in the ratio that each such
Partner's Unreturned Capital bears to the Unreturned Capital of all Fortune
Partners until the Unreturned Capital of the Fortune Partners is reduced to
zero;
(e) fifth, to Sonesta in payment of its Subordinated Return, if
any, until the Unpaid Subordinated Return is reduced to zero;
(f) sixth, to the Fortune Partners in payment of their
Subordinated Capital in the ratio that each such Partner's Subordinated Capital
bears to the Unpaid Subordinated Capital of all Fortune Partners until the
Unpaid Subordinated Capital of the Fortune Partners is reduced to zero; and
(g) the balance of Net Cash Flow shall be distributed to the
Partners in proportion to their Percentage Interests.
7.2 DISTRIBUTIONS RESULTING FROM REFINANCINGS, A SALE OF ALL OR A
PORTION OF THE PROPERTY NOT IN THE ORDINARY COURSE AND THE DISSOLUTION AND
WINDING UP OF THE PARTNERSHIP.
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The net proceeds from the sale, refinancing or other disposition of all or any
portion of the Property and the Project not in the ordinary course, after making
payment of or provision for the payment of all liabilities and obligations of
the Partnership (as described below in the event of the dissolution and winding
up of the Partnership), including payment in full of the unpaid principal of and
interest on any third party indebtedness, shall be distributed as expeditiously
as possible after the occurrence of the event in question (but in all events
within thirty (30) days of said occurrence) to the Partners in the following
order of priority:
1. first, to the setting up of such reserves as the General
Partner and Sonesta determine to be reasonably necessary to wind up the
Partner's affairs or provide for any contingent liabilities or obligations of
the Partnership (and to the extent such reserves are no longer necessary they
shall be distributed pursuant to paragraph (2) below); and
2. the balance, shall be distributed to the Partners in
order of priority specified in Section 7.1.
In addition to the foregoing, in the event that after all available funds of the
Partnership have been distributed to the Partners in connection with the
dissolution and winding up of the Partnership, either Sonesta's Unreturned
Capital or the Unpaid Sonesta Preferred Distribution has not been reduced to
zero as a result of such distributions, then, in such event, the Fortune
Partners shall pay to Sonesta an amount equal to the sum of (i) the Sonesta
Guaranteed Amount, if any , and (ii) the remaining Unpaid Sonesta Preferred
Distribution. The obligation set forth in the immediately preceding sentence
shall be, and by execution of this Agreement, are hereby personally guaranteed
by Xxxxxxx Xxxxxxxxx.
7.3 DISTRIBUTIONS IN-KIND. If any assets of the Partnership shall be
distributed in kind, such assets shall be distributed to the Partners entitled
thereto as tenants-in-common in the same proportions (and subject to a
proportionate share of liabilities) as such Partners would have been entitled to
cash distributions if (i) such assets had been sold for cash by the Partnership
at the fair market value of such property (taking Code Section 7701(g) into
account) on the date of distribution, (ii) any unrealized income, gain, loss and
deduction inherent in such property (that has not been reflected in the Capital
Accounts previously) that would be realized by the Partnership from such sale
were allocated among the Partners in accordance with Article 6, and
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(iii) the cash proceeds were distributed to the Partners in accordance with
Section 7.2. The Capital Accounts of the Partners shall be increased by the
amount of any unrealized income or gain inherent in such property or decreased
by the amount of any loss or deduction inherent in such property that would be
allocable to them, and shall be reduced by the fair market value of the assets
distributed to them under the preceding sentence. Unless otherwise agreed to by
the Partners, each asset distributed hereunder shall be distributed as provided
above, as opposed to certain assets being distributed to one (1) or more
Partners and other assets being distributed to one (1) or more other Partners.
7.4 ASSIGNMENT OF DISTRIBUTIONS. In the event that a Default Financing
has not been fully satisfied and discharged as provided in Subsection 5.3(a)
hereof, then, in any such event, such Non-Defaulting Partner shall receive
directly any distributions (or loan repayments) under this Article 7 to which
the Defaulting Partner would otherwise be entitled under this Article 7 hereof
up to the amount of the outstanding balance of any such Default Financing plus
accrued and unpaid interest thereon. Any distributions made pursuant to this
Section 7.4 shall be applied first to interest and then to principal and shall
(for Capital Account purposes) be deemed to have been made directly to the
Defaulting Partner and then deemed paid by the Defaulting Partner to the
Non-Defaulting Partner in repayment of the Default Financing.
7.5 WITHHOLDING TAXES WITH RESPECT TO PARTNERS. The Partnership shall
comply with any withholding requirements under federal, state, local and foreign
law and shall remit any amounts withheld to, and file required forms with, the
applicable jurisdictions. All amounts withheld from Partnership revenues or
distributions by or for the Partnership pursuant to the Code or any provision of
any federal, state, local or foreign law, and any taxes, fees or assessments
levied upon the Partnership, shall be treated for purposes of this Article 7 as
having been distributed to those Partners who received tax credits with respect
to the withheld amounts, or whose identity or status caused the withholding
obligations, taxes, fees or assessments to be incurred. If the amount withheld
was not withheld from the affected Partner's actual share of cash available for
distribution, the General Partner on behalf of the Partnership may, at its
option, (a) require such Partner to reimburse the Partnership for such
withholding or (b) reduce any subsequent distributions to which such Partner is
entitled by the amount of such withholding. Each Partner agrees to furnish the
Partnership with such representations and forms as the General
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Partner shall reasonably request to assist it in determining the extent of, and
in fulfilling, the Partnership's withholding obligations, if any. As soon as
practicable after becoming aware that any withholding requirement may apply to a
Partner, the General Partner shall advise such Partner of such requirement and
the anticipated effect thereof. Each Partner shall pay or reimburse to the
Partnership all identifiable costs or expenses of the Partnership caused by or
resulting from withholding taxes with respect to such Partner.
7.6 PROFITS, LOSSES AND NET CASH FLOW FROM HOTEL OPERATIONS.
Notwithstanding anything to the contrary contained herein, the parties have
agreed that one hundred percent (100%) of all the Profits, Losses and Net Cash
Flow derived from the operations of the existing Hotel through the Designated
Hotel Closing Date in the Cessation Notice shall be payable to the Hotel Manager
under the Interim Lease and the Partnership shall have no right to such Profits,
Losses and Net Cash Flow through such date.
ARTICLE 8
MANAGEMENT OF THE PARTNERSHIP
8.1 MANAGEMENT; GENERAL PARTNER.
(a) Except as expressly set forth below, the day-to-day management
of the Partnership shall be vested solely with Fortune GP, as the General
Partner.
(b) Notwithstanding the designation of the Fortune GP as the
General Partner, the Partners affirm their intention that regular meetings of
the Representatives (with the participation of such others as each
Representative determines in good faith are necessary or appropriate to attend
such meetings) shall be held at either the offices of Fortune GP or at the Sales
Office (once constructed) at least once a month or as otherwise may be agreed to
by the Representatives. Notwithstanding anything to the contrary contained
herein, the following "MAJOR DECISIONS" shall require the prior written consent
of the Representative of the General Partner and Sonesta and without such
consent the General Partner may not:
1. do any act in contravention of this Agreement;
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2. knowingly perform any act that would subject any Limited
Partner to liability beyond those described in this Agreement or the Act;
3. approve any decreases in the gross sales price of the
aggregate condominium units by more than ten percent (10%) in the aggregate from
that set forth in the then applicable Budget or establish any priority or
preferential pricing policies for the sale of condominium units;
4. revise in a material manner the agreed upon scope of the
Project or, once approved by the Partners, revise the agreed upon architectural
plans and specifications of the Project; provided, however, that field changes
that do not change the scope of or quality of the Hotel or the functionality or
intended operating standard of the Hotel from that determined by the Partners
and changes required by any Governmental Requirement shall not be considered
material;
5. amend this Agreement in any material respect, or waive
any material rights in, any agreement the entering into of which was a Major
Decision;
6. admit any additional partners into the Partnership;
7. redeem Partnership Interests;
8. sell, lease, transfer or dispose of all or any portion
of the Project, the Land or the Property other than the sale of the Ancillary
Lot and the sale of condominium units in the ordinary course of business;
9. approve the Budget or adopt or approve any revision or
supplement to the Budget beyond the Permitted Variance, except as otherwise
provided in Subsection 8.1(c) hereof (it being understood that all revisions to
the Budget in excess of the applicable Permitted Variances shall constitute a
Major Decision);
10. authorize or enter into any agreement, commitment or
other transaction, or any series of related agreements, commitments or other
transactions, requiring payment(s) by the Partnership exceeding the Budget (or
any revised Budget) by more than the Permitted Variance, except as otherwise
provided in Subsection 8.1(c) hereof;
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11. authorize or enter into any agreement, commitment or
other transaction with a Partner or an Affiliate of any Partner, other than as
contemplated herein;
12. in the event the Listing Agreement is terminated in
accordance with its terms, the selection of a new listing agent and the terms
pursuant to which such listing agent shall be retained;
13. create, incur, assume, refinance, extend, modify or
otherwise become liable with respect to any obligation for borrowed money
(including guarantees of the indebtedness or other obligations of any person or
of any subsidiary or affiliate of the Partnership), issue any bonds, debentures,
notes or other evidences of indebtedness, in any transaction or series of
transactions, that result or will result in such obligations and indebtedness
being outstanding at any time in excess of any obligation or indebtedness
approved in the Budget (or any revised Budget) by more than the Permitted
Variance, except as otherwise provided in Subsection 8.1(c) hereof;
14. pledge, mortgage, hypothecate or otherwise encumber any
of the Partnership's assets, other than as security for loans permitted by this
Agreement or the Budgets;
15. except as otherwise provided in this Agreement, make
any distributions to the Partners;
16. commence, join in or settle any claim, action, suit or
proceeding by, against or involving the Partnership that may materially affect
the financial condition or operations of the Partnership;
17. acquire any real or personal property to the extent not
contemplated, or provided for, in any Budget (as increased by the applicable
Permitted Variance);
18. make any Tax Matters Partner (as such term is defined
in the Code) decision, including entering into any settlement with the Internal
Revenue Service, agree to extend any statute of limitations, or pursue any other
"determination" as such term is defined in Code Section 1313(a);
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19. make any distributions of property in kind by the
Partnership or accept any contributions by any Partner of property other than
cash or as provided in Section 5.1 hereof;
20. allow the Partnership to lend money;
21. establish insurance requirements;
22. except as provided in Section 4.1(e) with respect to a
Related Opportunity, any decision to pursue any business opportunity not
directly and centrally related to Project;
23. adopt accounting principles, accounting methods and
other non-routine accounting matters or approve the Partnership's financial
statements;
24. change the characterization of the Partnership as a
partnership for federal income tax purposes;
25. file a voluntary petition or otherwise initiate
proceedings to have the Partnership adjudicated bankrupt or insolvent, or
consent to the institution of bankruptcy or insolvency proceedings against the
Partnership, or file a petition seeking or consenting to reorganization or
relief of the Partnership as debtor under any applicable federal or state law
relating to bankruptcy, insolvency, or other relief for debtors with respect to
the Partnership; or seek or consent to the appointment of any trustee, receiver,
conservator, assignee, sequestrator, custodian, liquidator (or other similar
official) of the Partnership or of all or any substantial part of the properties
and assets of the Partnership; or make any general assignment for the benefit of
creditors of the Partnership; or admit in writing the inability of the
Partnership to pay its debts generally as they become due or declare or effect a
moratorium on Partnership debt or take any action in furtherance of any such
action;
26. select the architects, designers, land planners, and
general contractor for the Project;
27. approve the plans and specifications for the Project or
any material changes thereto;
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28. approve, file or record against the Property any
condominium regime or declaration of covenants or other document affecting title
to the Property or any rental program or significant marketing material with
respect to the Project;
29. select the accountants and attorneys for the
Partnership; and
30. dissolve or wind up the Partnership except as provided
in Sections 10.1 and 10.2.
(c) By their execution below, each of the Partners acknowledges
that the Budget will control the Partnership's operations. The General Partner
shall implement the Budget and shall, subject to (b) above, be authorized,
without the need for further approval by the Partners, to make the expenditures
and incur the obligations provided for in the Budget. The General Partner shall,
in the performance of its duties hereunder, comply with the Budget and shall not
(except as otherwise expressly permitted hereunder or in circumstances involving
imminent risk or loss or damage to person or property) deviate therefrom, incur
additional expenses that exceed the Permitted Variance, or materially change the
manner of operation of the Partnership without the approval of Sonesta. If at
any time the General Partner shall, determine that the Budget is no longer
appropriate because of any reason, including, without limitation, the need to
incur additional expenses that in the aggregate exceed the Permitted Variance,
the General Partner shall submit to Sonesta a revised Budget for the Project.
Upon approval thereof by Sonesta, the General Partner shall implement the
revised Budget and shall be authorized, without the need for further approval by
the Partners, to make the expenditures and incur the obligations provided for in
the revised Budget or within the Permitted Variance. At all times, the General
Partner shall be authorized to (i) reallocate items of expense from one line
item to another so long as the increase in line items and in the aggregate do
not exceed the Permitted Variance, and (ii) utilize the contingency as it deems
appropriate.
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8.2 GENERAL RIGHTS AND DUTIES OF GENERAL PARTNER.
(a) Except as otherwise provided or limited herein, the General
Partner shall be responsible, at the expense of and on behalf of the
Partnership, to conduct the day-to-day business and affairs of the Partnership
in accordance with and as limited by this Agreement. Fortune GP, as the General
Partner, covenants and agrees that it will use Reasonable and Customary Efforts,
in good faith, to undertake the development and completion of the Project.
Except as provided in Section 8.1(b) and Section 8.7 hereof and subject to the
terms thereof the General Partner shall be fully empowered by the Partners to
do, and shall, at the expense and on behalf of the Partnership, do, the
following:
1. prepare and implement the Budget and any revised Budget;
2. subject to the terms of this Agreement with respect to
approval of Major Decisions, execute such contracts or agreements as are
desirable or necessary to accomplish the purposes of the Partnership;
3. protect and preserve the title and interest of the
Partnership with respect to the Property, the Project and other assets owned by
the Partnership;
4. render for taxation and pay with Partnership funds all
ad valorem taxes, assessments, and other impositions applicable to the Property
and the Project;
5. subject to the terms of this Agreement, retain, contract
with, or employ and coordinate the services, of all employees, supervisors,
accountants, attorneys, suppliers, salesmen, consultants and other persons
necessary or appropriate to carry out the business of the Partnership (provided,
however, that the selection of accountants and attorneys for the Partnership
shall constitute a Major Decision);
6. to the extent funds of the Partnership are available
therefor, pay with Partnership funds all debts and other obligations of the
Partnership, including amounts due under financings and the cost of operation
and maintenance of the Property and/or the Project and the improvements thereof;
maintain all funds of the Partnership in a Partnership account, make
distributions on a monthly basis (or more frequently) of all Net Cash Flow to
the respective
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Partners entitled thereto in accordance with Section 7.1 above, subject to
retention of reasonable reserves for working capital contingencies, capital
improvements, replacements and other reasonable contingencies, as are determined
by the General Partner;
7. perform other normal business functions and otherwise
operate and manage the business and affairs of the Partnership in accordance
with and as limited by this Agreement;
8. obtain insurance of any kind, nature, or description
whatsoever upon or in connection with the management, use, ownership and/or
operation of any of the Property and/or the Project belonging to the
Partnership;
9. demand, xxx for, collect, recover, and receive in the
Partnership's name all sums of money that may hereafter come due or belong to
the Partnership, including the right to institute any action, suit, or other
legal proceeding for the recovery of same;
10. do and perform all such other acts and things as are
necessary or appropriate to the conduct of the Partnership's business;
11. file and record all reports, declarations, other papers
and documents as the General Partner deems necessary or advisable in connection
with the development of the Project;
12. make application for all consents, permits and
approvals required pursuant to applicable zoning or other laws with respect to
the Property; and
13. undertake all Pre-Development Activities and incur the
expenses associated therewith.
In connection with such activities on behalf of the Partnership, the General
Partner shall make available to Sonesta copies of all material agreements,
instruments and other documents which it executes in the name of the Partnership
within a reasonable period of time following receipt thereof on behalf of the
Partnership.
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(b)(i) Subject to Fortune's right to contest described in
Subsection 8.2(b)(iii) below, Sonesta shall have the right to remove Fortune GP
as the General Partner as a result of any of the following ("ACT OF REMOVAL"):
1. misappropriation by the General Partner of any of the
Partnership's funds or Partnership Assets;
2. a conviction of, entrance of a guilty plea or plea of no
contest with respect to any felony involving moral turpitude in regard to the
General Partner or Xxxxxxx Xxxxxxxxx;
3. the General Partner's gross negligence, breach of
fiduciary duty, willful misconduct or material violation of law which has a
material adverse effect on the Partnership;
4. the Bankruptcy (as defined in Section 10.1(b)) or
voluntary dissolution of the General Partner;
5. the General Partner's breach of a material provision of
this Agreement which has a material adverse effect on the Partnership's ability
to complete the Project within the time periods described herein; or
6. the failure of the General Partner to achieve the
Milestones identified in EXHIBIT H attached hereto.
(ii) In the event that Sonesta believes that there has
been an occurrence of an Act of Removal, Sonesta shall give written notice (the
"REMOVAL NOTICE") to the General Partner of the Act of Removal, including within
such Removal Notice specific details regarding the facts giving rise to the Act
of Removal. Subject to Fortune's right to contest described in Subsection
8.2(b)(iii) below, in the case of a Removal Notice in connection with Subsection
(b)(1) committed by any person other than Xxxxxxx Xxxxxxxxx, Subsection (b)(5),
or Subsection (b)(6), such Removal Notice shall afford the General Partner a
grace period of thirty (30) days after receipt of notice of default to cure any
breach or failure to reach a Milestone (or if such breach or failure is
susceptible to cure but by its nature cannot be cured within thirty (30) days,
then such longer period as may be reasonable under the circumstances, provided
that the General
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Partner is diligently proceeding to cure the default; provided that the
applicable grace and cure periods for failure to satisfy the Milestones shall be
as provided in EXHIBIT H). In the event an Act of Removal is predicated on a
misappropriation described in Subsection 8.2(b)(i)(1) by anyone other than
Xxxxxxx Xxxxxxxxx, the cure period shall apply only in the event the person
committing the misappropriation is terminated promptly following the discovery
of the misappropriation and no cure period shall be provided for the third or
any subsequent misappropriation. In the event the General Partner is removed
pursuant to this Section, the Partnership shall have the right to recover the
actual, out-of-pocket costs incurred by the Partnership which are the direct and
proximate result of the Act of Removal.
(iii) At any time within fifteen (15) days of receipt of a
Removal Notice, the Fortune GP may initiate an arbitration pursuant to Section
17.15 on the specific issue of whether the Fortune GP's acts are sufficient to
give rise to an Act of Removal as specified in the Removal Notice. During the
period from the date of issuance of the Removal Notice until the date on which a
decision is issued by the Qualified Arbitrator, any decisions of or affecting
the Partnership shall be made by Fortune GP and Sonesta.
(iv) If Fortune GP is removed as the General Partner
pursuant to this Section 8.2(b), then in addition to the other rights set forth
in this Section 8.2(b), the following consequences shall apply:
(A) the Partnership Interest of Fortune GP shall be converted from
that of a General Partner to that of a Limited Partner and Fortune GP
automatically shall be deemed to have relinquished all of the rights provided to
it herein to participate in the making of joint decisions with Sonesta;
(B) Sonesta shall have the sole right to make all decisions on
behalf of the Partnership, and shall be entitled to designate a replacement
General Partner, including an affiliate of Sonesta as replacement General
Partner;
(C) the Fortune Partners shall forfeit any and all right to the
thirty percent (30%) interest in the entity formed to acquire the Ancillary Lot
in accordance with Section 4.6(b) and the Listing Agreement and the Development
Agreement shall, at the option of Sonesta, be
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terminated in accordance with their terms without penalty and the payments
pursuant to Subsection 8.5(g)(1) shall cease; and
(D) in the case of an Act of Default under paragraphs (1)-(5) of
this Section 8.2(b), Sonesta shall have the right to purchase the Fortune
Partners' Partnership Interests for a purchase price and under the same terms
and conditions as set forth in Section 5.3(b).
8.3 EXECUTION OF PURCHASE AND SALE AGREEMENTS. Notwithstanding
anything to the contrary contained herein, the Partners have agreed that the
signature of the General Partner shall be required on each purchase and sale
agreement for the sale of condominium units.
8.4 SALES AND MARKETING OFFICES. The General Partner may, in its
reasonable discretion and at the cost of the Partnership, erect a sales and
marketing office (the "SALES OFFICE") either on-site or off-site. The
Partnership shall pay directly the amounts due under all leases of real and
personal property utilized by the Partnership (including but not limited to the
real property utilized as the sales and marketing offices of the Partnership) as
well as pay for all personal property utilized in the Sales Office.
8.5 SERVICES OF PARTNERS.
(a) Except as provided in this Section 8.5 or with the consent of
the General Partner, the Partnership is not authorized to enter into agreements
with a Partner or any Affiliates of the Partners.
(b) The Partnership shall pay a development fee to an Affiliate of
the Fortune Partners which shall equal two percent (2%) of the Project Costs,
which fee shall not exceed an aggregate of Eight Million Dollars
($8,000,000.00). The development fee shall be paid in such number of equal
monthly installments as equals the projected construction period and shall be
paid out of the proceeds available from the Construction Loan to the extent
permitted to be disbursed by the construction lender until paid in full. Any
portion of the development fees that are unable to be disbursed from the
proceeds of the construction loan (the "DEFERRED FEES") shall be paid as part of
the Current Operating Expenditures.
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(c) The Partnership shall enter into the Listing Agreement which
shall be attached hereto as EXHIBIT F and which shall include, amongst other
terms as the parties shall agree upon, that compensation payable to Fortune
Development Sales Corp. shall be two and three-quarters percent (2.75%) of the
gross sales proceeds derived from sales consummated under or pursuant to the
Listing Agreement; provided that no such commission shall be paid in connection
with the sale of the Ancillary Lot.
(d) The Partnership shall enter into the Interim Lease in
accordance with the terms set forth in EXHIBIT F.
(e) The Partnership shall enter into the Realty Purchase Agreement
in accordance with the terms set forth in EXHIBIT J.
(f) The Partnership shall enter into a license agreement with
Sonesta International or an Affiliate (the "SONESTA LICENSE Agreement") pursuant
to which the Partnership shall be permitted to use the Sonesta brand identity in
connection with the sale of condominiums in the Project, in return for which the
entity entering into the license shall earn a fee equal to one and one-half
percent (1.5%) of the gross sales proceeds derived from sales consummated under
or pursuant to the Listing Agreement, such fee not to exceed Eight Million
Dollars ($8,000,000.00). Such fee shall be paid from the proceeds derived form
the sale of condominium units, to the extent permitted to be paid by the
Construction Lender. If such fee can not be paid at such time, such fee shall be
treated as a "Deferred Fee" hereunder. The terms of the Sonesta License
Agreement shall be agreed to during the Due Diligence Period.
(g) In addition to the foregoing, the Partners have agreed that:
1. Fortune shall be paid a project administration fee of
One Hundred Thousand Dollars ($100,000.00) per month, commencing on the Escrow
Release Date, which administration fee is intended to cover all of the fixed and
indirect administrative and overhead expenses incurred by Fortune on behalf of
the Partnership including the salaries for any Fortune employees providing
services to or on behalf of the Partnership (other than commissionable sales
activities), office rent and other corporate overhead expenses not directly
relating to the Project (expressly excluding any sales center expenses);
provided that in no event may the aggregate
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project administration fees payable to Fortune pursuant to this Subsection
8.5(g)(1) exceed Four Million Four Hundred Thousand Dollars ($4,400,000.00);
2. Sonesta shall be paid a fee of Ninety-Six Thousand
Dollars ($96,000.00) for technical support services, which shall be paid in
twelve (12) equal installments of Eight Thousand Dollars ($8,000.00), commencing
upon completion of sixty percent (60%) of construction;
3. Sonesta will be reimbursed its direct out-of-pocket
costs for that portion of the time of certain mutually agreed key employees
dedicated to the Project; and
4. Sonesta shall retain and the Partnership shall pay the
reasonable fees of an "owner's representative" who shall be selected by Sonesta,
with the prior consent of Fortune GP, such consent not to be unreasonably
withheld, delayed or conditioned. It is the intention of the Partners that the
owner's representative will have substantial experience with respect to the
development and construction of projects similar to the Project and will be in a
position to "add value" to the Project.
8.6 MISCELLANEOUS MANAGEMENT PROVISIONS.
(a) The Project will be presented to the public, in all materials
and press releases, as a joint development of Fortune International Development
and Sonesta Hotels Resorts and Cruises. Xxxxxxx Xxxxxxxxx will serve as the
public spokesman for the Project for all maters related to construction,
development, marketing and sales, and Xxxxx Xxxxxxxxx or other designee of
Sonesta shall serve as the public spokesman with respect to the hotel component
of the Project.
(b) The construction contract for the Project will provide for a
Guaranteed Maximum Price ("GMP") and shall be entered into with a general
contractor with a proven track record and relevant experience. A third party
general contractor will be selected by the General Partner, with the consent and
approval of Sonesta, such approval not to be unreasonably withheld, delayed or
conditioned.
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(c) The General Partner will, unless otherwise agreed by the
Partners, solicit construction loan proposals from a minimum of three (3) major
lenders. Selection of the construction lender shall be subject to the approval
of the Partners and any loan documents shall provide for notice to Sonesta of
any defaults by the Partnership.
(d) The project administration fee will be funded first from
available cash on a monthly basis or will be treated as Deferred Fees to the
extent of amounts not funded by the construction lender.
(e) The Partnership shall endeavor to obtain, on or before the
Escrow Release Date (or as soon thereafter as possible) "key man" life
insurance, in the amount of Twenty-Five Million and No/100 Dollars
($25,000,000), upon the life of Xxxxxxx Xxxxxxxxx. The cost of such insurance
shall be an expense of the Partnership and the Partnership shall be the
beneficiary of the policy. Unless with the consent of Sonesta, the Partnership
shall not cancel or terminate the policy prior to such time as the Project is
completed. Upon completion of the Project, the Partnership shall, at the request
and direction of Xxxxxxx Xxxxxxxxx, transfer or assign such policy to Xxxxxxx
Xxxxxxxxx or such person as he may direct.
(f) The costs and expenses incurred by the Partners, including
attorneys' fees, in connection with the Project shall be considered as expenses
of the Partnership. In the event such costs and expenses are paid directly by a
Partner, and are not reimbursed by the Partnership, then such amounts shall be
treated as Additional Capital Contributions by such Partner for purposes of
determining its Unreturned Capital in accordance with the provisions of
Article 7.
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8.7 HOTEL OPERATIONS.
(a) Until the Designated Hotel Closing Date (as such term is
defined in Subsection 4.1(a) above), Sonesta or its Affiliate shall operate the
Hotel pursuant to the terms of the Interim Lease. In so operating the Hotel,
Sonesta covenants and agrees not to enter into any agreements which are not
either terminable at will or which cannot be terminated on thirty (30) days
notice without the prior written consent of the General Partner. Furthermore,
from and of the date of delivery of the Cessation Notice, Sonesta shall not
enter into any Contracts without the prior written consent of the General
Partner.
(b) The salient terms of the Interim Lease shall include, but not
be limited to, the following:
1. The Hotel Manager shall be responsible for conducting
all of the Hotel operations during the Interim Hotel Operating Period. In no
event may Sonesta or the Hotel Manager be permitted or authorized to allow any
lien or encumbrance of any nature whatsoever to be placed on the Property, the
Hotel or Sonesta's Partnership Interest, other than those imposed in respect of
real estate taxes without the prior written consent of the Fortune GP.
2. One hundred percent (100%) of all revenues and one
hundred percent (100%) of all expenses incurred by or with respect to the Hotel
and the Property during the Interim Hotel Operating Period other than the
expenses incurred in connection with the Pre-Development Activities shall accrue
to the benefit and/or detriment of Sonesta (and/or the Hotel Manager). Neither
the Fortune Partners nor the Partnership shall be entitled to the benefit of any
revenue generated by the Hotel or bear any of the expenses incurred by or with
respect to the Hotel during the Pre-Development Period. The expenses to be paid
by Sonesta and/or the Hotel Manager shall include but not be limited to all
accounts payable existing on the Effective Date, all employee costs and claims,
the costs of all food, linens, dishes, glasses and all other inventory items,
real estate, personal property, ad valorem, occupancy and sales taxes, utility,
phone, cable, television, gas, water, sewer and electricity, all costs of
litigation involving or attributable to the Hotel operations, insurance
premiums, municipal or other governmental improvements liens and special
assessments (but only such portion payable through the Cessation Date), license
and permit fees, and all other revenues and expenses of the Property, including,
but not limited to,
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such things as restaurant, bar and meeting room income and expenses and the
like. Expenses relating to required principal and interest payments on the
Existing Indebtedness and the Non-Construction Loan Indebtedness, and expenses
relating to the shut down of the Hotel as set forth in Section 4.4(d)(2) shall
remain expenses of the Partnership and shall be funded by the Fortune Partners
or through other third party sources.
3. All employees at the Hotel shall be employees of the
Hotel Manager. Subject to the provisions of this paragraph, the Partnership
shall have no employees unless and until retained in writing by the General
Partner. Notwithstanding the foregoing, Sonesta shall have the right to
designate up to ten (10) employees of the Hotel which shall, after the shut down
of the Hotel, be retained as employees of Sonesta (but the attendant costs shall
be reimbursed to Sonesta by the Partnership as provided in Subsection 4.4(d)(2))
with compensation and benefits substantially similar to those provided to such
employees prior to the shut down.
4. Sonesta and the Hotel Manager shall be solely
responsible for the safekeeping of the contents of all safe deposit boxes, all
baggage inventory and other assets and property entrusted by hotel guests to the
Hotel.
5. Sonesta shall be solely responsible to fund one hundred
percent (100%) of all capital expenditures deemed necessary by Sonesta with
respect to the Hotel. All such amounts shall be funded from its own funds and
shall not be treated as a Capital Contribution or loan to the Partnership and
shall not be recoupable hereunder.
6. Sonesta, Sonesta International and the Hotel Manager
shall indemnify and hold harmless the Fortune Partners for any cost, expense or
claim of any nature whatsoever arising out of the operations of the Hotel during
the Pre-Development Period (excluding any and all expenses relating to the
Pre-Development activities of the Partnership) and shall execute such documents
and instruments reasonably requested by the Fortune Partners to evidence such
indemnity.
8.8 BANK ACCOUNTS. The cash Capital Contributions of the Partners and
other funds of the Partnership shall be deposited in a segregated bank account
or accounts in the name of the Partnership. All withdrawals from any such
accounts may be made only for the purposes set
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forth herein. The Partners have agreed that the signature cards with the
relevant bank(s) shall provide for funds to be withdrawn upon the signature
solely of the Representative designated by Fortune GP (or its designee);
provided, however, that checks in excess of Twenty-Five Thousand Dollars
($25,000.00) which are not subject to any construction draw approval mechanism
shall be signed by Fortune GP and a designee of Sonesta. No funds of the
Partnership shall be commingled with any other funds or placed in any other
accounts of the Partners.
ARTICLE 9
POWERS, RIGHTS AND LIABILITIES OF THE LIMITED PARTNERS
9.1 NO RIGHT TO MANAGE OR REPRESENT PARTNERSHIP. No Limited Partner
shall take part in the management of the business of the Partnership, transact
any business for the Partnership, or have the power to sign for or to bind the
Partnership to any agreement or documents, said powers being vested solely and
exclusively in the General Partner; provided, however that the Partners
acknowledge and agree that the exercise of any of the powers or rights granted
to the Limited Partners hereunder shall not be deemed taking part in the
management of the business of the Partnership.
9.2 LIMITATIONS ON LIABILITY. Except as otherwise provided herein, no
Limited Partner shall have any personal liability whatsoever, whether to the
Partnership, to any of the Partners, or to the creditors of the Partnership, for
the debts of the Partnership or for any of the Losses of the Partnership except
for (i) the amount contributed by it to the capital of the Partnership as set
forth in Article 5 hereof, (ii) its share of undistributed Profits and (iii) the
amount of any distributions required to be returned to the Partnership in
accordance with the provisions of the Act.
9.3 NO PRIORITY. Except as otherwise specifically set forth herein, no
Limited Partner shall have the right to demand or receive property other than
cash in any Partnership distribution.
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ARTICLE 10
DISSOLUTION AND TERMINATION
10.1 EVENTS TRIGGERING DISSOLUTION.
(a) The Partnership shall be dissolved upon the earliest to occur
of the following events:
1. December 31, 2014;
2. the unanimous agreement of the Partners that the
Partnership should be dissolved;
3. the Bankruptcy (as defined below) of the Partnership or
of the General Partner;
4. the closing of the sale or other disposition of all of
the Property and/or the condominium units within the Project; provided that the
General Partner shall be entitled to cause a dissolution of the Partnership at
such time as substantially all of the condominium units have been closed and
assign all then remaining unsold condominium units (other than the Ancillary
Lot) to a new partnership comprised of the Partners in the same ownership
percentages and under the same terms and conditions as are set forth herein and
the Ancillary Lot to the entity provided for in Section 4.4(g);
5. the Fortune Partners elect prior to the end of the Due
Diligence Period not to proceed with the transactions contemplated by this
Agreement.
Provided, however, and without limitation to the rights of Sonesta to issue a
Removal Notice pursuant to Subsection 8.2(b)(i)(4), if, within ninety (90) days
from the withdrawal, dissolution, or adjudication of bankruptcy of the General
Partner, if the other Partners (excluding any Limited Partner who is also a
General Partner) elects to continue the Partnership, then: (a) the Partnership
will not be dissolved and it will continue under this Agreement; and (b) the
remaining Limited Partners will, elect one (1) or more new General Partners (and
the Agreement and certificate will be amended); and (c) the Partnership
Interests of the former General Partner
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will be converted into Limited Partnership Interests, and such former General
Partner (or its trustees in bankruptcy, successors or assigns, or other personal
or legal representatives) will be Limited Partners.
(b) For the purposes of this Agreement, a "Bankruptcy" shall be
deemed to occur when a Person:
1. files a petition in bankruptcy, or voluntarily takes
advantage of any bankruptcy or insolvency law;
2. is the subject of a petition or answer proposing the
adjudication of such Person as a bankrupt and such Person either consents to the
filing thereof, or fails to cause such petition or answer to be discharged or
denied prior to the expiration of ninety (90) days from the date of such filing;
or
3. is the subject of an order for relief entered by any
bankruptcy court or tribunal of competent jurisdiction.
10.2 TERMINATION. Except as otherwise provided in this Agreement, upon
the dissolution of the Partnership, the Partnership shall be terminated. Upon
the termination of the Partnership for any reason, the Partners shall cause the
independent public accountant then acting for the Partnership to make a complete
and final audit of the Partnership's books, records and accounts, and all final
adjustments between the Partners shall be made upon the basis of such audit.
ARTICLE 11
RESTRICTION ON TRANSFERS OF PERCENTAGE INTERESTS
11.1 ASSIGNMENT. Except as provided in Sections 11.2 or 11.3 hereof, no
Partner may Transfer the whole or any part of its Partnership Interest without
the written consent of both the General Partner and Sonesta.
11.2 CHANGES IN CONTROL OF CORPORATION OR ENTITY. If and to the extent
that any Partnership Interest is now or in the future held by a corporation or
other entity, a change in
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control of such corporation or entity (which shall only be deemed to occur when
(A) with respect to Sonesta, the Xxxxxxxxx Family fails to Control, directly or
indirectly, Sonesta or (B) with respect to the Fortune Partners, Xxxxxxx
Xxxxxxxxx fails to Control, directly or indirectly, the Fortune Partners) shall
constitute a Transfer for the purposes of this Agreement and shall be subject to
the provisions of this Article 11. For purposes of Article 11, the Xxxxxxxxx
Family shall include Xxxxx Xxxxxxxxx, Xxxx Xxxxxxxxx and Xxxxxx Xxxxxxxxx and
their descendants.
11.3 PERMITTED TRANSFERS. Notwithstanding anything to the contrary
contained herein, the following transfers shall be permitted hereunder (and the
transferees hereinafter referred to as "PERMITTED TRANSFEREES"):
1. the transfer of all or any portion of the Partnership
Interest owned by Sonesta to any person who, as of the date of execution of this
Agreement, is an Affiliate of Sonesta, provided that in all events the Xxxxxxxxx
Family (or such Person acceptable to the Fortune GP) shall continue to have full
authority and control to act for and bind the aggregate interests of Sonesta;
2. the transfer of all or any portion of the Partnership
Interest owned by the Fortune LP to any person who, as of the date of execution
of this Agreement, is a beneficial owner of an interest in Fortune GP or Fortune
LP, provided that in all events Xxxxxxx Xxxxxxxxx continues to have full
authority and control to act for and bind the aggregate interests of the Fortune
Partners and each separate transfer of a greater than ten percent (10%) interest
in either Fortune GP or Fortune LP to any person other than Xxxxxxx Xxxxxxxxx or
his immediate family shall be subject to prior notice and consent of Sonesta,
such consent not to be unreasonably withheld, conditioned or delayed;
and further provided with respect to clauses (i) and (ii) above (A) such
Transfer does not result in material adverse tax consequences to any Partner
resulting from a termination of the Partnership under Section 708 of the Code,
(B) the assignee agrees in writing to be bound by the terms of this Agreement,
and (C) the transferee satisfies any conditions necessary to comply with the
Federal securities laws, as determined by counsel selected by the General
Partner, (D) the aggregate interests of the Partner and its Permitted Transferee
shall be represented by the assigning Partner who shall have full authority and
control to act for and bind the aggregate
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interests of the Partner and its Permitted Transferee for all matters affecting
the Partnership, (E) the Permitted Transferee is a "United States Person" as
defined in the Code, (F) the Transfer is not prohibited by any institutional
lender to the Partnership and does not give rise to any acceleration of payments
or payments of any material additional amounts under any financing documents and
(G) the transferee provides the Partnership with the representations, warranties
and covenants contained in EXHIBIT L.
11.4 EFFECT OF ASSIGNMENT: DOCUMENTS. In the event of any Transfer
permitted hereunder, then the assignee shall be substituted hereunder for the
assignor as a Partner of the Partnership to the extent of the interest assigned
or transferred, and the Partnership shall not be dissolved or wound up but
instead shall continue as before with, however, the addition or substitution of
such new Partner. No such assignment shall relieve the assignor from any of its
obligations under this Agreement existing as of the date of execution of this
Agreement or accruing prior to such assignment or transfer nor from any
obligations under any other agreement. Each Partner shall execute such
instruments and documents (including, but not limited to, amendments to this
Agreement) as any other Partner shall reasonably request in order to confirm the
foregoing and accomplish such transfer and assignment. Notwithstanding the
foregoing, as a condition to such assignment, (i) the assignee must execute a
written assumption agreement assuming all of the obligations of the assignor as
to the interest being assigned and agreeing to be bound by the terms of this
Agreement (as the same may have been amended from time to time) and a signed,
original counterpart copy of which shall be filed with the Partnership records,
and (ii) such assignee must be approved as a substitute Partner by all of the
Partners other than the assigning Partner.
11.5 TRANSFER IN VIOLATION. No Transfer of the interest of a Partner in
violation of the provisions hereof shall be valid or effective for any purpose.
In addition, in the event of any Transfer in violation of this Agreement
(including any transfer by reason of Section 11.2) and anything in this
Agreement to the contrary notwithstanding, the transferring Partner shall not be
entitled (to the extent otherwise permitted hereunder) to participate in the
management of the Partnership from and after the date of the purported transfer
and all decisions regarding the Partnership shall be made exclusively by the
non-transferring Partner(s) (to the extent otherwise permitted hereunder) and in
the case of a Transfer involving a General Partner then, from and
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after the date of any such Transfer, the transferring General Partner shall also
have its Partnership Interest converted to that of a Limited Partner. No consent
to one or more such Transfers shall be construed as a consent to any other
Transfer of the same or any other Partner's interest in the Partnership.
ARTICLE 12
LIABILITY AND INDEMNIFICATION
12.1 LIABILITY OF GENERAL PARTNER. The General Partner and its
officers, directors, partners, employees, agents, affiliates, successors or
assigns shall not be liable to the Partnership or the Partners for any loss or
damage incurred by reason of any act performed or omitted in connection with the
activities of the Partnership or in dealing with third parties on behalf of the
Partnership, if such act or omission was determined, in good faith, to be in the
best interests of the Partnership and if such act or omission does not
constitute fraud, gross negligence, willful misconduct or a material breach of
this Agreement.
12.2 INDEMNIFICATION OF GENERAL PARTNER. The Partnership, its receiver
or its trustee, shall indemnify, save harmless and pay all judgments and claims
against the General Partner and its officers, directors, partners, employees,
agents, Affiliates, successors and assigns, for any liability, loss or damage
incurred by them or by the Partnership by reason of any act performed or omitted
to be performed in connection with the activities of the Partnership or in
dealing with third parties on behalf of the Partnership, including reasonable
costs and attorneys' fees (which attorneys' fees may be paid as incurred) and
any amounts expended in the settlement of any claims of liability, loss or
damage provided that the act or omission of the General Partner was determined,
in good faith, to be in the best interests of the Partnership and does not
constitute fraud, gross negligence, willful misconduct or a material breach of
this Agreement and provided further that any such indemnification shall be
recoverable only from assets of the Partnership and not from the assets of any
Limited Partner. The Partnership shall not pay for any insurance covering
liability of any General Partner or of its officers, directors, partners,
employees, agents, Affiliates, successors and assigns for actions or omissions
for which indemnification is not permitted hereunder; provided, that nothing
contained herein shall preclude the Partnership from
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purchasing and paying for such types of insurance, including extended coverage
liability and casualty and worker's compensation, as would be customary for any
Person owning comparable property and engaged in a similar business or from
naming the General Partner and any of their Affiliates as additional insured
parties thereunder. The indemnification provided herein shall survive the
termination of the ownership by the Partners of their Partnership Interests in
accordance with this Agreement and the dissolution of the Partnership.
12.3 INDEMNIFICATION OF GUARANTORS. The Partnership, its receiver or
its trustee, shall indemnify, save harmless and pay all judgments and claims
against the Partners or their Affiliates which guaranty any indebtedness of the
Partnership, including but not limited to the Existing Indebtedness, the
Non-Construction Loan Indebtedness and the Construction Loan for any liability,
loss or damage incurred by them in making payments under any said guaranty,
including reasonable costs and attorneys' fees (which attorneys' fees may be
paid as incurred) and any amounts expended in the settlement of any claims of
liability, loss or damage provided that any such indemnification shall be
recoverable only from assets of the Partnership and not from the assets of any
Limited Partner. The indemnification provided herein shall survive the
termination of the ownership by the Partners of their Partnership Interests in
accordance with this Agreement and the dissolution of the Partnership.
Notwithstanding anything in this Section 12.3, the Partnership shall not be
obligated to indemnify any Partner or Affiliate as guarantor for any amounts
unless and until Sonesta shall have first received back a return of its
Unreturned Capital and Unpaid Sonesta Preferred Distribution (either directly or
via the payment of the Sonesta Guaranteed Amount). The right of any Partner or
Affiliate as guarantor to receive indemnification from the Partnership with
respect to any indebtedness or other amounts is expressly subordinate to the
right of Sonesta to receive a return of its Unreturned Capital and Unpaid
Sonesta Preferred Distribution as aforesaid.
12.4 CONTRACTUAL PROVISIONS. The General Partner shall have the right
and authority to require a provision in all Partnership contracts that the
General Partner is not personally liable thereon and that the Person contracting
with the Partnership is to look solely to the Partnership and its assets for
satisfaction.
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12.5 INDEMNIFICATION OF LIMITED PARTNERS. The Partnership will
indemnify, to the extent of Partnership assets, each Limited Partner against any
claim of liability asserted against a Limited Partner (i) because it is a
Limited Partner of the Partnership or (ii) arising from or in connection with
the Partnership; provided, however that no such indemnification shall be
provided with respect to the breach of any representations or warranties made
hereunder by such Limited Partner, and provided further, that no indemnification
shall be provided pursuant to this Section 12.5 in the event the claim of
liability asserted against the Limited Partner arises out of fraud, gross
negligence, willful misconduct or a material breach of this Agreement.
12.6 INDEMNIFICATION BY SONESTA WITH RESPECT TO HOTEL OPERATIONS.
Notwithstanding anything to the contrary contained herein, Sonesta and Sonesta
International shall indemnify, save harmless and pay all judgments and claims
against the Partnership and the Fortune Partners and their officers, directors,
partners, employees, agents, Affiliates, successors and assigns, for any
liability, loss or damage incurred by them or by the Partnership by reason of
any act performed or omitted to be performed in connection with the activities
of the Hotel during the Interim Hotel Operating Period or in dealing with third
parties on behalf of the Hotel during the Interim Hotel Operating Period,
including reasonable costs and attorneys' fees (which attorneys' fees may be
paid as incurred) and any amounts expended in the settlement of any claims of
liability, loss or damage related thereto; PROVIDED, HOWEVER, nothing herein
shall require Sonesta or Sonesta International to indemnify the Partnership or
the Fortune Partners for any claims, judgments or amounts relating in any way to
any development activities by the Partnership or the Fortune Partners. By their
execution below, and notwithstanding anything to the contrary herein and not in
limitation of anything provided herein, the Partners affirm their intention and
agree that Sonesta and Sonesta International shall be solely responsible for all
liabilities, losses, expenses and damages arising from or attributable to the
operations of the Hotel during the Interim Hotel Operating Period.
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ARTICLE 13
ACCOUNTING
13.1 METHOD OF ACCOUNTING: ACCOUNTANTS. The books and records of the
Partnership shall be kept in accordance with principles and practices generally
accepted for the accrual method of accounting, unless otherwise required under
the Code, and the Partnership shall establish, upon the determination of the
outside accountants for the Partnership, such controls and procedures as are
required to comply with the Xxxxxxxx-Xxxxx Act of 2002 ("SARBANES OXLEY"). By
their execution below, the Partners agree that all day to day accounting
functions shall be performed by in-house personnel retained by the General
Partner. Unless otherwise consented to by Sonesta, the accounting firm of
Xxxxxx, Xxxxxxxx & Company shall serve as the outside accountants for the
Partnership.
13.2 BOOKS AND RECORDS. A complete set of books of account of the
Partnership shall, at all times, be maintained at the Partnership's principal
office. Such principal offices shall be open during normal business hours for
the reasonable examination of the books of account and other books, documents,
and records of the Partnership by the Partners or their authorized
representatives. The right to examination provided by this Section 13.2 shall
include the right to make copies of the books of accounts and other books,
documents and records of the Partnership for any lawful purpose, including,
without limitation, conducting an evaluation of the Partnership's internal
controls over financial reporting, or as otherwise required by Sarbanes Oxley
(as reasonably determined by the outside accountants for the Partnership).
13.3 FEDERAL TAX RETURNS. The General Partner shall cause the
Partnership's accountants to prepare at the expense of the Partnership, for each
Fiscal Year (or part thereof), a Federal information tax return in compliance
with the provisions of the Code and any required state and local tax returns.
All such returns shall be submitted to such person(s) designated by the Partners
for their review at least fifteen (15) days prior to the filing of same. The
General Partner shall serve as the Partnership's "Tax Matters Partner" as such
term is defined in the Code.
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ARTICLE 14
REPORTS AND STATEMENTS
14.1 TAX RETURN INFORMATION. By March 1st of each Fiscal Year, the
General Partner, at the expense of the Partnership, shall cause to be delivered
to each Partner such information as shall be necessary (including a statement
for that year of each Partner's share of net income, net losses and other items
of the Partnership) for the preparation by the Partners of their Federal, state
and local income and other tax returns.
14.2 FINANCIAL STATEMENTS. The General Partner, at the expense of the
Partnership, shall cause to be delivered to each Partner promptly upon receipt
of same from the outside Accountants (which the General Partner shall seek to
obtain by February 15th of each Fiscal Year) a financial statement of the
Partnership for the prior Fiscal Year, audited by the independent certified
public accountants then serving the Partnership, which financial statement shall
set forth, as of the end of and for such Fiscal Year, the following:
(a) a profit and loss statement and a balance sheet of the
Partnership;
(b) the balance in each Partner's Capital Account; and
(c) such other information as shall be reasonably necessary for
the Partners to be advised of the financial status and results of operations of
the Partnership.
14.3 REPORTS. In addition to the financial statements specified in
Section 14.2, the General Partner shall cause to be delivered to each Partner,
at the expense of the Partnership, the following reports:
(a) a quarterly report of the revenues and expenses of the
Partnership together with a reconciliation to the Budget and such other
information as shall be reasonably necessary for the Partners to be advised of
the financial status and results of the Partnership for the previous quarter;
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(b) prior to obtaining the first certificate of occupancy for the
Project, a quarterly report of Project Costs delineating the stages of
construction;
(c) a quarterly report of sales showing all pending contracts, all
signed contracts out of rescission with deposits and all contracts signed with
deposits but subject to rescission;
(d) a monthly report of the revenues and expenses of the
Partnership; and
(e) after obtaining the first certificate of occupancy for the
Project, a monthly report of the status of closings of the units.
Any and all monthly reports shall be provided within fifteen (15) days
after the end of each month and any and all quarterly reports shall be provided
within thirty (30) days after the end of each quarter.
In addition, the General Partner shall provide each Partner with copies
of the following items:
(a) any information regarding the Project reasonably requested by
such Partner;
(b) notice of any casualty involving the Project in excess of
$50,000 and notice of any condemnation involving the Project;
(c) copies of each construction draw request, including all
exhibits thereto; and
(d) any notice of default by any lender to the Partnership.
In the event that the General Partner shall fail to timely provide information
which Sonesta has previously (at least sixty (60) days in advance) indicated in
writing is needed by Sonesta in order to enable the Sonesta to comply, in a
timely fashion with reporting requirements applicable to Sonesta and its
Affiliates under applicable securities laws, then provided that (i) such failure
was
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within the reasonable control of the General Partner and (ii) the General
Partner had a minimum of thirty (30) after receipt of any necessary information
from Sonesta or its Affiliates to compile such information and provide it to the
Accountants, Sonesta shall be entitled from that time forward to undertake those
functions necessary to enable Sonesta to file such reports in a timely fashion.
14.4 INSPECTION RIGHTS. In addition to the foregoing, each Partner
shall have the right, at its own cost and expense, to have an independent
certified public accountant of its choosing (A) audit the books and records of
the Partnership and (B) conduct an evaluation of the internal controls over
financial reporting of the Partnership.
ARTICLE 15
DEALINGS IN GOOD FAITH; BEST EFFORTS
Each party hereto agrees to act in good faith with respect to the other
parties in exercising its rights and discharging its obligations under this
Agreement. Each party further agrees to use its best efforts to ensure that the
purposes of this Agreement are realized and to take all steps as are reasonable
in order to implement the operational provisions of this Agreement. Each party
agrees to execute, deliver and file any document or instrument necessary or
advisable to realize the purposes of this Agreement.
ARTICLE 16
REPRESENTATIONS AND WARRANTIES
16.1 SONESTA REPRESENTATIONS. Sonesta represents and warrants to and
agrees with the Partnership, and the Fortune Partners, as of the date hereof, as
follows:
(a) ORGANIZATION, STANDING AND POWER. Sonesta is a limited
partnership duly organized, existing and in good standing under the laws of
Delaware. Sonesta has full power and authority to own its Partnership Interest
and to comply with the terms of this Agreement.
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(b) AUTHORIZATION. The execution and delivery of this Agreement by
Sonesta and the consummation by Sonesta of the transactions contemplated by this
Agreement are within its capacity and all requisite action has been taken to
make this Agreement valid and binding on Sonesta in accordance with its terms.
(c) NO VIOLATION. Except as disclosed in SCHEDULE 16.1(c), the
execution by Sonesta of this Agreement and the consummation by Sonesta of the
transactions hereby contemplated does not result in a breach of or default under
any indenture, agreement, instrument or obligation to which Sonesta is a party
or which affects all or any portion of the Property.
(d) LITIGATION; OTHER MATTERS. Except as disclosed in SCHEDULE
16.1(d) and for routine matters covered by insurance, there are no lawsuits
pending or, to the knowledge of Sonesta, claims or demands threatened against
Sonesta, the Partnership, the Hotel or the Property. In addition, there has been
no receipt by Sonesta of written notice of: (i) any violations of zoning
ordinances or other governmental regulations with respect to the Property; or
(ii) any pending or threatened condemnation proceedings with respect to the
Property.
(e) COMMITMENTS TO GOVERNMENTAL AUTHORITIES. To the best of
Sonesta's knowledge and belief, except as disclosed in the Permitted Exceptions
no commitments relating to the Property have been made to any governmental
authority, utility company, school board, church or other religious body or any
merchant's association or any other organization, group or individual which
would impose an obligation upon the Partnership or the Fortune Partners or their
successors or assigns to make any contribution or dedication of money or land or
to construct, install or maintain any improvements of a public or private nature
on or off the Land, and no governmental authority has imposed any requirement
that any owner of the Land pay directly or indirectly any special fees or
contributions or incur any expenses or obligations in connection with the Land.
(f) RIGHTS OF THIRD PARTIES. No Person has any right or option to
acquire the Property or any portion thereof or lease any space therein except as
set forth in the Permitted Exceptions.
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(g) CONTRACTS. The schedule of Contracts attached to this
Agreement as EXHIBIT B constitutes a list of all of the material Contracts
affecting the Property or the Partnership other than the Permitted Exceptions,
and there are no other material Contracts affecting or with respect to the
Property as of the date hereof. Sonesta is not aware that, any party to any
Contract intends to cancel or terminate its Contract or alleging any default
under any Contract. All contracts or agreements not expressly set forth on
EXHIBIT B shall be the obligation of Sonesta, at its sole cost and expense and
Sonesta hereby agrees to indemnify, defend and hold the Partnership, the Fortune
Partners and each of their officers, directors, agents and representatives
harmless from all liabilities, damages, claims, costs, fees and expenses
whatsoever (including reasonable attorney's fees and court costs at trial and
all appellate levels) with respect to any contracts or agreements relating to
the Property other than those set forth on EXHIBIT B.
(h) TRUE AND CORRECT COPIES. All copies of the Contracts delivered
by Sonesta or their Affiliates to the Fortune Partners or their Affiliates in
connection with the transactions contemplated hereby, are true, correct and
complete.
(i) HAZARDOUS MATERIALS. To the best of Sonesta's knowledge and
belief, and except as disclosed on SCHEDULE 16.1(i), there has not been nor is
there now: (i) any Hazardous Substance (as hereinafter defined) present on the
Land, (ii) any present or past generation, recycling, reuse, sale, storage,
handling, transport and/or disposal of any Hazardous Substance on the Land, or
(iii) any failure to comply with any applicable local, state or federal
environmental laws, regulations, ordinances or administrative or judicial orders
relating to the generation, recycling, reuse, sale, storage, handling, transport
and/or disposal of any Hazardous Substance. In addition, there is no presence of
any Hazardous Substance, any present or past generation, recycling, reuse, sale,
storage, handling, transport and/or disposal of any Hazardous Substance or any
failure to comply with any applicable local, state or federal environmental
laws, regulations, ordinances or administrative or judicial orders relating to
the generation, recycling, reuse, sale, storage, handling, transport and/or
disposal of any Hazardous Substance. As used herein, the term "Hazardous
Substance" means any substance or material defined or designated as a hazardous
or toxic waste material or substance, or other similar term by any federal,
state or local environmental statute, regulation or ordinance presently or
hereinafter in effect, as such statute, regulation or ordinance may be amended
from time to time.
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(j) U.S. PERSONS. Sonesta is a "United States Person" as defined
in the Code.
(k) TAX BASIS. SCHEDULE 16.1(k) set forth a true, correct and
complete list of the tax bases of the assets contributed by Sonesta pursuant to
Section 5.1(b).
(l) INCORPORATION OF REALTY PURCHASE AGREEMENT. All of the
representations and warranties made by Sonesta under the Realty Purchase
Agreement are incorporated herein by reference thereto, the same as if said
representations and warranties were repeated verbatim herein.
16.2 FORTUNE REPRESENTATIONS AND AGREEMENTS. The Fortune Partners
jointly and severally represent and warrant to and agree with the Partnership
and Sonesta, as follows:
(a) ORGANIZATION, STANDING AND POWER OF THE GENERAL PARTNER. The
General Partner is a limited liability company duly organized, existing and in
good standing under the laws of Florida. The General Partner has full power and
authority to own its Partnership Interest and to comply with the terms of this
Agreement.
(b) ORGANIZATION, STANDING AND POWER OF FORTUNE LP. Fortune LP is
a limited liability company duly organized, existing and in good standing under
the laws of Florida. Fortune LP has full power and authority to own its
Partnership Interest and to comply with the terms of this Agreement.
(c) AUTHORIZATION. The execution and delivery of this Agreement by
the Fortune Partners and the consummation by the Fortune Partners of the
transactions contemplated by this Agreement are within the Fortune Partners'
capacity and all requisite action has been taken to make this Agreement valid
and binding on the Fortune Partners in accordance with its terms.
(d) BENEFICIAL OWNERS. The beneficial owners of Fortune GP and the
Fortune LP are identified on SCHEDULE 16.2(d) attached hereto, which Schedule
shall, at the request of Sonesta, be updated on June 30 and December 30 of each
year during the term of this Agreement.
(e) NO VIOLATIONS. The execution by the Fortune Partners of this
Agreement and the consummation by the Fortune Partners of the transactions
hereby contemplated does not
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result in a breach of or default under any indenture, agreement, instrument or
obligation to which the Fortune Partners are a party or which affects all or any
portion of the Property.
16.3 PATRIOT ACT AND OFAC REPRESENTATIONS, WARRANTIES AND COVENANTS.
The representations, warranties and other provisions set forth on EXHIBIT L,
annexed hereto, are made a part hereof.
16.4 SURVIVAL OF REPRESENTATIONS. All of the representations and
warranties set forth in Sections 16.1, 16.2 and 16.3 of this Agreement expressly
survive the execution of this Agreement for the entire term of the Partnership.
16.5 BROKERS. The parties hereto each represent and warrant to the
other that there is no real estate broker, salesman or finder involved in this
transaction (as opposed to in connection with the sale of condominium units). If
a claim for brokerage in connection with the transaction is made by any broker,
salesman or finder claiming to have dealt through or on behalf of one of the
parties hereto ("INDEMNITOR"), Indemnitor shall indemnify, defend and hold
harmless the Partnership and the other parties hereunder ("INDEMNITEES"), and
Indemnitees' officers, directors, Affiliates, agents and representatives, from
all liabilities, damages, claims, costs, fees and expenses whatsoever (including
reasonable attorney's fees and court costs at trial and all appellate levels)
with respect to said claim for brokerage. The provisions of this Article shall
survive any cancellation or termination of this Agreement.
16.6 INDEMNIFICATION. Each Partner hereby agrees to indemnify, defend
and hold harmless the other Partners and the Partnership (and their respective
direct and indirect agents, employees, representatives, officers, directors,
shareholders. members or partners) from and against all claims, losses, damages,
cost, expense, demands, liabilities, obligations, and liens, of any kind or
nature ("CLAIMS"), which may arise as a result of any breach of any of the
representations or warranties contained herein or out of the breach of any of
the covenants or agreements contained herein. Such indemnity shall survive the
termination or liquidation of the Partnership, the sale of all of the Property
and the transfer or sale of the Partnership Interests of the indemnifying
Partner.
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ARTICLE 17
MISCELLANEOUS
17.1 GOVERNING LAW. This Agreement shall be governed by, and construed
and interpreted in accordance with, the laws of the State of Florida. The
parties hereto agree to submit to the jurisdiction of Florida in connection with
any claims or controversy arising out of this Agreement and that venue for such
actions shall be in Miami-Dade County, Florida.
17.2 PARTITION OF THE PROPERTY. Each Partner agrees that it shall have
no right to partition the Property, or any portion thereof, and each Partner
agrees that it shall not make application to any court or authority having
jurisdiction in the matter to commence or prosecute any action or proceeding for
partition of the Property, or any portion thereof. Upon the breach of this
Section 17.2 by any Partner, the other Partners, in addition to all other rights
and remedies in law and equity, shall be entitled to a decree or order
restraining and enjoining such application, action or proceeding.
17.3 NOTICES. All notices required or permitted by this Agreement shall
be in writing and shall be hand delivered or sent by recognized overnight
courier (such as Federal Express) or by certified mail, return receipt
requested, in a postage prepaid envelope, addressed as follows:
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If to Sonesta:
Attn: Boy XxxXxxx
Sonesta International Hotels Corp.
000 Xxxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Fax: (000) 000-0000
With a copy to:
Xxxxxx X. Xxxxxx, Esq.
Xxxxxxx Xxxxxxx
000 Xxxx Xxxxxxx Xxxxxxxxx, Xxxxx 0000
Xxxx Xxxxxxxxxx, XX 00000-0000
Fax: (000) 000-0000
If to either of the
Fortune Partners:
Attn: Xxxxxxx Xxxxxxxxx
0000 Xxxxxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000
Facsimile No. (000) 000-0000
With a copy to:
Bilzin Xxxxxxx Xxxxx Price & Xxxxxxx LLP
Attn: Xxxxxxxx X. Xxxxxxxxxx, Esq.
000 Xxxxx Xxxxxxxx Xxxx., Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Fax: (000) 000-0000
or to such other address as shall, from time to time, be supplied in writing by
such Partner. Any such notice shall be deemed given upon the earlier of receipt
by the addressees if hand delivered
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or sent by overnight courier or three (3) business days following the date
mailed, if mailed certified mail, return receipt requested.
17.4 NO WAIVERS. The waiver of any breach or default of any of the
terms, provisions or covenants of this Agreement shall not be deemed to be, nor
shall the same constitute, a waiver of any subsequent breach or default of such
term, provision or covenant or of any other term, provision or covenant
contained herein.
17.5 JOINDER OF XXXXXXX XXXXXXXXX AND
SONESTA INTERNATIONAL HOTELS
CORP. Xxxxxxx Xxxxxxxxx and
Sonesta International Hotels Corp. join in the
execution and delivery of this Agreement for purposes of acknowledging and
confirming their obligations hereunder as set forth on the signature page
hereto.
17.6 SEVERABILITY. If any court of competent jurisdiction shall
determine any provision of this Agreement or its application to any party or
circumstance to be invalid and unenforceable to any extent, then the remainder
of this Agreement or the application of any such provision to any other Person
or circumstance shall not be affected thereby, and each provision of this
Agreement shall be valid and shall be enforced to the fullest extent permitted
by law.
17.7 BENEFITS: BINDING EFFECT. The covenants and agreements contained
herein shall inure to the benefit of and be binding upon the parties and their
respective permitted successors and permitted assigns. Any permitted Person
succeeding to the interest of a Partner hereunder shall succeed to all of such
Partner's rights, interests and obligations under this Agreement and be subject
to all of the terms and conditions of this Agreement.
17.8 INTERPRETATION. Each of the parties and their respective legal
counsel actively participated in the negotiation and drafting of this Agreement,
and in the event of any ambiguity or mistake herein, this Agreement shall not be
construed unfavorably toward a party or parties on the ground that the party or
parties or their legal counsel was the draftsman thereof.
17.9 COUNTERPARTS./FACSIMILES. This Agreement may be executed in
several counterparts, and all so executed shall constitute one Agreement,
binding on all of the parties hereto, notwithstanding that all of the parties
are not signatory to the original or the same counterpart. Signatures received
by facsimile shall be treated as original signatures.
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17.10 ENFORCEMENT AND WAIVER OF JURY TRIAL.
(a) WAIVER OF JURY TRIAL. THE PARTIES HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT THAT ANY PARTY MAY HAVE TO A TRIAL
BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER OR
IN CONNECTION WITH THE PROJECT, THIS AGREEMENT OR ANY OTHER DOCUMENTS EXECUTED
IN CONNECTION HEREWITH, OR IN RESPECT OF ANY COURSE OF CONDUCT, STATEMENTS
(WHETHER ORAL OR WRITTEN), OR ACTIONS OF EITHER PARTY. THIS PROVISION IS A
MATERIAL INDUCEMENT FOR EACH OF THE PARTIES TO ENTER INTO THIS TRANSACTION.
(b) ATTORNEY'S FEES. If any action or proceeding to enforce this
Agreement or any provision hereof is brought by any Partner, the prevailing
party shall be entitled to recover from the non-prevailing party its Attorneys'
Fees and its costs and expenses of suit, including actual attorneys' and
consultants' fees. In the event that any party hereto secures a judgment in any
proceeding brought to enforce or interpret this Agreement, then any cost of
expense incurred in enforcing or in successfully appealing from such judgment,
including, without limitation, actual Attorneys' Fees shall be paid by the party
or parties against whom such judgment has been rendered or against whom an
appeal is won, and shall be recoverable separately from and in addition to any
other amount included in such judgment. This section is intended to be severable
from the other provisions of this Agreement and to survive and not be merged
into any such judgments.
17.11 NO THIRD PARTY BENEFICIARY. Nothing expressed or implied in this
Agreement is intended, or shall be construed, to confer upon or give any Person,
other than the parties hereto and their respective legal representatives and
permitted successors and assigns, any rights or remedies under or by reason of
this Agreement.
17.12 INTEGRATION. This Agreement and the documents referred to herein
constitutes the entire agreement and understanding among the parties hereto with
respect to the subject of this Agreement, and cancels all prior memorandums,
discussions and agreements with respect to such
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subject matter, and no alteration, modification, amendment or interpretation of
this Agreement shall be binding unless in writing and signed by the Partner
against whom enforcement is sought.
17.13 THIRD PARTY COSTS. Subject to compliance with the Budget, all
third party costs incurred in forming the Partnership and transferring the Land
to the Partnership, including but not limited to transfer taxes and legal fees
shall be considered as expenses of the Partnership. In the event any of the
Partners advance amounts necessary to pay any such costs, such advances shall be
considered as Additional Capital Contributions and shall be repaid in accordance
with Article 7.
17.14 CONFIDENTIALITY OF INFORMATION. Except as required in the normal
conduct of a Partner's business or by law, no Partner without the Approval of
the Partners, during the continuance of the Partnership or after its termination
shall at any time during the term of this Agreement or thereafter, divulge to
any person not a member of the Partnership, other than its attorneys',
accountants, employees, lenders and professional advisors, any confidential
information concerning the business of the Partnership or the content of this
Agreement or any other contract or agreement entered into by the Partnership. A
Partner may, however, disclose to third parties the existence of the Partnership
and the names of the Partners.
17.15 DISPUTE RESOLUTION.
(a) Other than as provided in Section 17.15(b), any dispute
regarding a Major Decision, any matter specifically identified herein as being
capable of being submitted to arbitration, or any other material item concerning
the Partnership, the Hotel, the Property or the Project, shall be submitted to
binding arbitration before a Qualified Arbitrator under the rules of the
American Arbitration Association that are in effect as of the date of this
Agreement (the "RULES"). The place of arbitration shall be Miami, Florida.
Notwithstanding anything to the contrary in the Rules, the rules for "Expedited
Procedures" shall apply to all disputes arising under this Agreement and no
party can elect mediation notwithstanding anything to the contrary in the Rules.
The parties further agree that the ["Optional Procedures for Large, Complex
Commercial Disputes"] shall not apply and not be used for any dispute under this
Agreement. In the event that any party calls for a determination in arbitration
pursuant to the terms of this Section 17.15, the parties shall have a period of
ten (10) days from the date of such request to
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appoint the Qualified Arbitrator. The Qualified Arbitrator shall decide the
issues submitted to him/her in accordance with (i) the language, commercial
purpose and restrictions contained in this Agreement and the exhibits hereto and
(ii) to the extent not governed by the written agreements of the parties to the
dispute, what is just and equitable under the circumstances, provided that all
substantive issues shall be determined under the laws of Florida and provided
further that each issue to be arbitrated shall be arbitrated and decided as a
separate issue and the arbitrator shall be obligated to select the position of
one of the parties to the dispute rather than creating a compromise or different
resolution. Because a prolonged dispute between the Partners may have a serious
adverse effect on the Partnership, the Partners hereby instruct the Qualified
Arbitrator to render a decision as quickly as necessary and minimize all time
periods for conducting the arbitration to the greatest extent possible. The
dispute shall be decided by the Qualified Arbitrator based solely on the
submissions of the parties and without discovery or third party testimony unless
the Qualified Arbitrator deems such discovery or third party testimony necessary
to make a decision. Each party to the arbitration shall cooperate with one
another in the production and discovery of requested documents, and in the
submission and presentation of arguments to the Qualified Arbitrator at the
earliest practicable date; and the Qualified Arbitrator shall unilaterally
decide the dispute in a written opinion which shall be conclusive and binding
upon them. The Qualified Arbitrator conducting any arbitration shall be bound by
the provisions of this Agreement and shall not have the power to add to,
subtract from or otherwise modify such provisions. The Partners hereby renounce
all recourse to litigation with respect to the matters in this Agreement which
direct the dispute in question to be resolved under this arbitration provision,
and agree that, with respect to such matters only, (i) no reference shall be
made to any court on any point of law and (ii) that the ruling and award (if
any) of the Qualified Arbitrator shall be final and subject to no judicial
review. Judgment on the award of the Qualified Arbitrator may be entered in any
court having jurisdiction over the party against which enforcement of the award
is being sought, and any party may institute judicial proceedings to compel
arbitration in accordance with the provisions hereof. The arbitration costs,
fees and expenses shall be borne as determined by the Qualified Arbitrator, the
Partners intending that the Partners which fail to prevail with a preponderance
of the dollar items in dispute be responsible for the legal and other fees
incurred by the prevailing party, including all arbitration fees.
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(b) Except in the case of an arbitration initiated by the Fortune
GP with respect to the determination of an Act of Removal under Section
8.2(b)(ii), allegations of fraud, gross negligence and willful misconduct shall
be addressed through judicial resolution in the State Courts of Florida located
in Miami-Dade County.
SIGNATURE PAGE FOLLOWS ON NEXT PAGE
166
IN WITNESS WHEREOF, the parties hereto have executed this Agreement of
Limited Partnership as of the day and year first above written.
GENERAL PARTNER:
FORTUNE KB GP, LLC, a Florida limited liability
company
By: Fortune International Management, Inc.,
Manager
By: /S/
--------------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: President
LIMITED PARTNERS:
FORTUNE KB, LLC, a Florida limited liability
company
By: Fortune International Management, Inc.,
Manager
By: /S/
--------------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: President
SONESTA BEACH RESORT LIMITED
PARTNERSHIP, a Delaware limited partnership
By: Florida Sonesta Corporation, a Florida
corporation
By: /S/
--------------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Chairman
167
JOINDER
For purposes of agreeing to the provisions of Sections 4.4(a)(4),4.4(c)(3)
and 7.2.
/S/
-------------------------------------
Xxxxxxx Xxxxxxxxx
For purposes of agreeing to the provisions of Sections 4.4(c)(3),
8.7(b)(6), and 12.6.
Sonesta International Hotels Corp.
By: /S/
--------------------------------------
Xxxxx Xxxxxxxxx, Chairman
168
EXHIBITS
A Budget
B Contracts
C Escrow Agreement
D Terms--Interim Lease
E Legal Description of Property
F Listing Agreement
G Terms--Long Term Hotel Management Agreement
H Milestones
I Permitted Exceptions
J Realty Purchase Agreement Terms
K Terms--New Hotel Operating Entity
L OFAC and Patriot Act Compliance Representations, Warranties and
Covenants
SCHEDULES
SGA Sonesta Guaranteed Amount Examples
5.1(b) Assumed Liabilities
16.1(c) Violations of Law
16.1(d) Litigation
16.1(k) Tax Bases
16.2(d) Fortune Beneficial Owners
169
EXHIBIT A
BUDGET
170
EXHIBIT B
CONTRACTS
171
EXHIBIT C
ESCROW AGREEMENT
To be appended upon completion
172
EXHIBIT D
TERMS--INTERIM LEASE
(a) Parties: Lease between SKB-Fortune Associates, LLLP, as "Landlord" and
an Affiliate of
Sonesta International Hotels Corporation, a New York
corporation ("SIHC"), as Tenant. SIHC to indemnify the Landlord as
provided in Subsection 8.7(b)(6) of the Partnership Agreement.
(b) Leased Property: Lease extends to all of the Land and the Hotel.
(c) Maintenance of Improvements: The improvements will not be required to
be maintained in the same or better condition than they are currently
in, the parties recognizing the intention to demolish the improvements
after the termination of the lease.
(d) Rent: One ($1.00) Dollar per annum.
(e) Lease Term: Commencing upon transfer of the Land and Hotel to the
Landlord and terminating on the Cessation Date.
(f) Allocation of Property Expenses: Shall be as set forth in Section
8.7(b) of the Partnership Agreement. Landlord only to bear those
expenses specifically described in the Partnership Agreement.
(g) Special Termination Right: Tenant may terminate the lease without
penalty or damages upon sixty (60) days written notice to Landlord.
(h) Insurance: Property and casualty as well as liability insurance to be
carried by and to be an expense of Tenant. Landlord shall acknowledge
that Tenant shall not be required to maintain property insurance with
respect to the improvements.
(i) Risk of Loss: Landlord shall bear the risk of loss in connection with
condemnation or settlements in lieu of condemnation and shall be
entitled to receive the proceeds derived from condemnation or
settlements in lieu thereof. Tenant shall bear the risk of loss in
connection with casualty and shall receive all proceeds of casualty
insurance claims; provided, that Tenant shall pay to Landlord the
proceeds of insurance to the extent that such proceeds are in excess
of Tenant's furniture, fixtures and equipment and the amounts expended
by Tenant under the Lease for any and all capital improvements to the
premises. Tenant shall bear the risk of liability claims other than
those resulting from the activity of Landlord pursuant to the license
granted to Landlord.
(j) License in favor of Landlord:
173
a. Subject to the limitations and other provisions in the Partnership
Agreement, the license shall permit Landlord to engage in
pre-development activities.
174
EXHIBIT E
LEGAL DESCRIPTION OF PROPERTY
175
EXHIBIT F
LISTING AGREEMENT
To be appended upon completion
176
EXHIBIT G
TERMS--LONG TERM MANAGEMENT AGREEMENT
OUTLINE OF MAJOR LONG TERM MANAGEMENT AGREEMENT TERMS
1. Parties:
a. Operator:
Sonesta International Hotels Corporation, a New York
corporation, or an Affiliate.
b. Owner: A Florida limited liability limited partnership or other
entity acceptable to the parties, to be formed.
2. Term: a. Initial Term - 20 years.
b. Renewal Term - 2 renewal terms of 10 years each, at election of
Sonesta.
3. Fees:
a. Base fee - The greater of (a) 3% of Gross Revenues (rooms and
non-rooms) before any split with condominium unit owners or
expenses, and (b) $500,000 per year, commencing on the Opening
Date and prorated for stub years, and being increased to the
extent of increases in the cost of living commencing with the
second full fiscal year of operations.
b. Incentive Fees - 10% of cash flow before debt service but after
other fixed expenses.
c. Marketing and License Fees - 2.5% of Gross Revenues (subject to
adjustment based on review of Maintenance Fees)
d. Other centralized services on same basis as borne by other Sonesta
branded properties; provided, the costs of such services shall be
competitive with those charged by outside providers and such
services shall be approved by the Owner, such approval not to be
unreasonably withheld.
3. Rental Program: Sonesta shall provide input into design of condominium
regime, other property governance documents and structure of rental
program. All such documents to be acceptable to the Partners.
4. Funding Obligations:
a. Pre-opening expenses to be an obligation of Operator.
b. Operator responsible for working capital, operating shortfalls and
capital expenditures related to the Hotel. Risk of collection of
assessments for certain operating or capital costs is on Operator.
c. FF&E reserve to be established for units in rental program and for
Hotel Lot.
5. Budget Meetings. Operator shall provide Owner with a proposed annual
operating budget for the hotel during November or December of each year
covering the ensuing year and shall meet with Owner regarding approval of
the budget. Operator shall also meet with Owner during May or June of the
operating year to review the budget and determine whether any material
adjustments or changes to the budget may be necessary.
177
6. Standard for operation. A standard of operations comparable to that
currently existing at the Xxxx-Xxxxxxx Key Biscayne and the Four Seasons,
Miami.
178
EXHIBIT H
MILESTONES
Fortune shall have accomplished the following on or before the dates set
forth below:
a. Preliminary conceptual plans for the Project shall have been prepared
and delivered to the Partners on or before the later of (i) August 1,
2005, or (iii) ninety (90) days following the selection of an
architect by the Partners.
b. A preliminary detailed development and construction budget and
timetable shall have been delivered to the Partners on or before
thirty (30) days after the delivery of preliminary conceptual plans as
described in item (a) above.
c. A preliminary capital budget for the project reflecting the proposed
amount of mortgage financing shall be provided to Sonesta on or before
thirty (30) days after the delivery of preliminary conceptual plans as
described in item (a) above.
d. Site plan approval for the proposed Project, together with any other
then required material approvals or authorizations required in
connection with the development of the Project, with the exception of
demolition and building permits, shall be obtained on or before
December 31, 2006.
e. A construction loan for the financing of the Project shall have been
closed and initial funding thereunder shall have been obtained and the
installation of pilings or footers in connection with the foundation
of the Project, shall have been completed on or before January 31,
2008.
f. Issuance of temporary certificate of occupancy on or before 3 years of
"commencement of construction."
All of the above are subject to prompt responsiveness from Sonesta on all
matters needing their consent and all time periods above shall be extended for a
number of days equal to the number of days on which Sonesta failed to promptly
respond.
In addition, each of the foregoing shall be extended by any events or
circumstances which constitute Force Majeure.
In the event that any of the items listed in (a) through (f) have not been
satisfied on the specified date, Sonesta shall give written notice (the
"MILESTONE NOTICE") to the Fortune GP, specifically indicating which of the
Milestones have not been achieved. Such Milestone Notice shall afford the
Fortune GP a grace period of thirty (30) days after receipt of the Milestone
Notice to cure any failure to reach a Milestone (or if such failure is
susceptible to cure but by its nature cannot be cured within thirty (30) days,
then such longer period as may be reasonable under the circumstances, provided
that the Fortune GP is diligently proceeding to cure the failure).
179
EXHIBIT I
PERMITTED EXCEPTIONS
To be appended upon completion
180
EXHIBIT J
REALTY PURCHASE AGREEMENT TERMS
1. The contract values the entire real property at $120,000,000 and relates to
the purchase and sale of a 1/3 interest in the same.
2. The contract contemplates a $40,000,000 purchase price payable by a
$30,000,000 payment at closing and the buyer's assumption of 1/3 of the existing
indebtedness on the property.
3. Title would be conveyed free and clear of all liens and encumbrances other
than the Permitted Exceptions (to be defined).
4. The property would be conveyed in "AS-IS" condition without any warranties,
except as to title, and except as otherwise expressly agreed to.
5. Subject to 4, above, the representations and warranties of the seller are
intended to mirror the reps and warranties of Sonesta under the Partnership
Agreement.
6. The contract provides for a survey and title review contingency and anything
not objected to will constitute Permitted Exceptions.
7. Inspection period and rights to be consistent with the Partnership Agreement.
8. The closing would occur on the Escrow Release Date.
9. At closing the following documents would be delivered: Special Warranty Deed
for the undivided 1/3 interest to be sold; good standing certificates and
authorizations of seller; title affidavit, FIRPTA affidavit, assignment of 1/3
interest in all agreements affecting the use and possession of the property;
consent to the assumption of the existing debt; closing statement; estoppel
certificates from existing tenants; and any other documents reasonable required
by the title company.
The Parties agree to take reasonable steps to minimize the obligation to pay
documentary stamp taxes in connection with the contribution and conveyance of
the real property. To that end, the Parties shall cooperate in a possible
restructuring as may be agreed upon as appropriate in order to accomplish the
objective of minimizing the obligation to pay documentary stamp taxes.
181
EXHIBIT K
TERMS--NEW HOTEL OPERATING ENTITY
The form of operating agreement and/or partnership agreement for the New
Hotel entity shall provide for the following:
1. Form of Entity. Limited liability limited partnership or limited
liability company unless otherwise agreed upon by the parties.
2. Ownership: 70% Sonesta or its designated affiliate
30% Fortune or its designated affiliate
3. Funding: 70% Sonesta/30% Fortune. Amount to be determined.
4. Management: Sonesta will be the sole general partner or
managing member, as the case may be, with sole authority to operate
the business of the entity except for "major decisions" which shall
require the consent of Fortune.
5. Major Decisions: Major Decisions shall include, but not be
limited to:
(a) admission of any additional members/partners;
(b) sale, lease, transfer or disposition of the Hotel;
(c) authorizing or entering into any agreement, commitment or
other transaction with a member/partner, other than the Hotel
Management Contract and other agreements contemplated by the
Partnership Agreement;
(d) approval of budgets, centralized services and other major
decision items to be agreed upon which are contained in the
Long-term Management Agreement and which require the consent
of the Owner thereunder;
(e) creating or incurring any debt in excess of an agreed
threshhold other than trade debt in the ordinary course of the
Hotel's business and reasonable financing (including capital
leases) of equipment;
(f) pledging or mortgaging assets in excess of an agreed
threshhold;
(g) acquiring any property (real or personal) not in connection
with the Hotel's business or a decision to pursue any business
opportunity not directly and centrally related to the Hotel;
and
(h) filing bankruptcy or declaring insolvency (including any
assignment for the benefit of creditors).
182
6. Transfer of Membership/Partnership Interests:
A. Right of first refusal: In the event any partner/member desires to
sell an interest, the offering partner must first offer the interest to the
other partner/member on the same terms.
B. Drag along provisions: In the event that Sonesta determines to sell
its interest in the Hotel entity, subject to Fortune's right of first
refusal (other than in the case of a sale by Sonesta of all or
substantially all of its hotels to a third party), it can require Fortune
to sell its interest upon the same terms and conditions, provided that in
the event of any sale by Sonesta of assets in addition to the Hotel entity,
the proceeds of any sale shall be allocated upon such basis as the parties
shall reasonably agree.
7. Meetings: The managing member/general partner will meet
regularly with the members/partners regarding the operations and
business of the entity.
183
EXHIBIT L
FURTHER REPRESENTATIONS, WARRANTIES AND PROVISIONS RELATING TO THE PATRIOT ACT
AND OFAC
1. Each Partner represents, warrants and covenants to each other as
follows:
(A) That it is in compliance with all applicable anti-money laundering
laws, regulations, rules, and government guidance including the Bank
Secrecy Act ("BSA"), as amended by The International Money Laundering
Abatement and Financial Anti-Terrorism Act of 2001, Title III of the USA
PATRIOT Act, and other anti-terrorism laws, (collectively, "Anti-Money
Laundering Laws and Regulations"), and all authorizing statutes, executive
orders, and regulations administered by the Office of Foreign Asset Control
of the U.S. Department of the Treasury (hereinafter, "OFAC") and OFAC
guidance (collectively, "OFAC Laws and Regulations"), and that each Partner
has policies, procedures, internal controls and systems that are reasonably
designed to ensure such compliance.
(B) That neither: (i) its Principal(s), any Affiliate of such Partner
or its Principal(s) nor any Person Controlled by such Partner or its
Principal(s); nor (ii) to the best of knowledge of each Partner, after
making due inquiry, any Person who owns a controlling interest in or
otherwise Controls such Partner; nor (iii) to the best of knowledge of each
Partner, after making due inquiry, if such Partner is a privately held
entity, any person otherwise having a direct or indirect beneficial
interest (other than with respect to an interest in a publicly traded
entity) in such Partner; nor (iv) any Person for whom such Partner is
acting as agent or nominee in connection with this investment, is a
country, territory, government, Person, organization, or entity named on an
OFAC List, or is a prohibited country, territory, government, Person,
organization, or entity under any economic sanctions program administered
or maintained by OFAC.
(C) That, unless disclosed in writing to the other Partners on the
date hereof, it is not a Senior Foreign Political Figure, or an Immediate
Family Partner or a Close Associate of a Senior Foreign Political Figure,
that it is not Controlled by a Senior Foreign Political Figure, or an
Immediate Family Partner or a Close Associate of a Senior Foreign Political
Figure, and that, to the best of each Partner's knowledge, after making due
inquiry, none of the direct or indirect owners of such Partner (other than
any owner(s) of any interest(s) in a publicly-traded entity) is a Senior
Foreign Political Figure, or an Immediate Family Partner or a Close
Associate of a Senior Foreign Political Figure.
(D) That, upon receiving a written request from any other Partner,
such Partner shall provide information reasonably required by such other
Partner to confirm that the foregoing representations, warranties and
covenants continue to be true and to comply with all applicable Anti-Money
Laundering Laws and Regulations including all anti-terrorist laws and OFAC
Laws and Regulations. Each Partner consents to the disclosure to the
relevant regulators and law enforcement authorities by the other
184
Partner(s) and its Affiliates of such information about such Partner that
the other Partner(s) reasonably deems necessary or appropriate to comply
with such Laws and Regulations.
2. Each Partner agrees that as a condition of any Transfer of any direct
or indirect interest of such Partner (other than the Transfer of any interest in
a publicly-traded entity), the other Partners shall have the right to require
full compliance with these representations, warranties and covenants, to its
reasonable satisfaction, with respect to any transferee and any person who,
directly or indirectly, owns or otherwise controls the transferee.
3. Each Partner acknowledges and agrees that if, at any time subsequent to
the execution of this Agreement, it is determined by a court of competent
jurisdiction or applicable Governmental Authority that a Partner (an "OFFENDING
PARTNER") has breached any of the representations, warranties or covenants set
forth in Item 1 of this EXHIBIT L, the other Partner (the "NON-OFFENDING
PARTNER") shall, if legally permitted to do so, provide notice of such violation
to the Offending Partner. Upon receipt of said notice or upon receipt of notice
from the applicable Governmental Authority, the Offending Partner shall promptly
take all steps necessary to cure any such breaches - including, without
limitation, redeeming the interest of any constituent beneficial owner within
the Offending Partner's ownership group, if legally permitted. In addition, the
Non-Offending Partner and/or the Partnership may take any other action as may be
required by law or regulation, including temporarily freezing or blocking the
investment or any distributions thereon, prohibiting additional investments by
the Offending Partner, segregating the assets constituting the investment of the
Offending Partner in accordance with the applicable Anti-Money Laundering Laws
and Regulations or OFAC Laws and Regulations and/or to report such action to
Governmental Authorities. Each Partner further acknowledges that the Offending
Partner will have no claim against the Partnership and/or the Non-Offending
Partner or its Affiliates for any form of damages as a result of any of the
foregoing actions.
185
SCHEDULE SGA
ASSUMPTIONS
1. Sonesta Unreturned Capital $60 million
2. Fortune Unreturned Capital $33 million (comprised of initial $30
million plus $3 million used to fund Hotel Shutdown Payments)
3. Existing Indebtedness balance $30 million
4. Existing Indebtedness refinanced with "New Indebtedness" of $45 million
5. No interim distributions are made during the life of the Project other than
the Hotel Shutdown Payments, which are paid in full each month for 2 years
(aggregate payments of $3 million), all of which were funded via Capital
Contributions of the Fortune Partners).
SCENARIO 1 - The Property is sold for $80 million.
1. The $80 million of proceeds would be distributed $45 million to the lender
providing the "New Indebtedness" and the remaining $35 million would be
distributed as follows:
(a) Subsection 7.1(a)--zero, because all Hotel Shutdown Payments were
funded currently
(b) Subsection 7.1(b)--$35 million to Sonesta
2. In the event the Fortune Partners would have satisfied the Existing
Indebtedness with a Capital Contribution of $30 million, the $65 million of
proceeds available for distribution derived from the sale ($80 million less
$15 million net New Indebtedness) would have been distributed under Section
7.2 (and Section 7.1) as follows:
(k) Section 7.1(a) - zero, because all Hotel Shutdown Payments were funded
currently
(b) Section 7.1(b) - $57 million to Sonesta (to reduce its Unreturned
Capital to zero)
(c) Section 7.1(c) - assume zero
(d) Section 7.1(c) - $8 million balance to the Fortune Partners
Therefore, under these facts, the Sonesta Guaranteed Amount will equal the
difference between the $57 million Sonesta would have received if the Existing
Indebtedness had been satisfied by a Capital Contribution made by the Fortune
Partners and the $35 million actually received. Thus, the Sonesta Guaranteed
Amount would be $22 million which shall be payable by the Fortune Partners as
provided in Section 7.2 and guaranteed by Xxxxxxx Xxxxxxxxx.
186
SCENARIO 2 - The Property is sold for $105 million.
1. The $105 million of proceeds would be distributed $45 million to the lender
providing the "New Indebtedness" and the remaining $60 million would be
distributed as follows:
(a) Subsection 7.1(a)-- zero, because all Hotel Shutdown Payments were
funded currently
(b) Subsection 7.1(b)--$57 million to Sonesta
(c) Subsection 7.1(c)--assume zero
(d) Subsection 7.1(d)-- $3 million to the Fortune Partners
2. In the event the Fortune Partners would have satisfied the Existing
Indebtedness with a Capital Contribution of $30 million, the $90 million of
proceeds available for distribution derived from the sale ($105 million
less $15 million net New Indebtedness) would have been distributed under
Section 7.2 (and Section 7.1) as follows:
(a) Section 7.1(a) - zero, because all Hotel Shutdown Payments were funded
currently
(b) Section 7.1(b) - $57 million to Sonesta (to reduce its Unreturned
Capital to zero)
(c) Section 7.1(c) - assume zero
(d) Section 7.1(d) - $33 million balance to the Fortune Partners
Therefore, under these facts, as a result of Sonesta receiving a return of all
of its Unreturned Capital,, the Sonesta Guaranteed Amount is zero.
SCENARIO 3 - The Property is sold for $160 million.
1. The $160 million of proceeds would be distributed $45 million to the lender
providing the "New Indebtedness" and the remaining $115 million would be
distributed as follows:
(a) Subsection 7.1(a)--zero, because all Hotel Shutdown Payments were
funded currently
(b) Subsection 7.1(b)--$57 million to Sonesta
(c) Subsection 7.1(c) - assume zero
(d)
Subsection 7.1(d)--$33 million to the Fortune Partners
(e) Subsection 7.1(e)--assume zero
(f) Subsection 7.1(f)--assume zero
(g) Subsection 7.1(g)--$12.5 million to each of Sonesta and the Fortune
Partners
2. In the event the Fortune Partners would have satisfied the Existing
Indebtedness with a Capital Contribution of $30 million, the $145 million
of proceeds available for distribution derived from the sale ($160 million
less $15 million net New Indebtedness) would have been distributed under
Section 7.2 (and Section 7.1) as follows:
(a) Subsection 7.1(a)-- zero, because all Hotel Shutdown Payments were
funded currently
187
(b) Subsection 7.1(b)--$57 million to Sonesta
(c) Subsection 7.1(c) - assume zero
(c) Subsection 7.1(d)--$63 million to the Fortune Partners
(d) Subsection 7.1(e)--assume zero
(e) Subsection 7.1(f)--assume zero
(d) Subsection 7.1(f)--$20 million to each of Sonesta and the Fortune
Partners
Therefore, under these facts, as a result of Sonesta receiving a return of all
of its Unreturned Capital, the Sonesta Guaranteed Amount is zero.
SCENARIO 4 - The Property is sold for $60 million.
1. The $60 million of proceeds would be distributed $45 million to the lender
providing the "New Indebtedness" and the remaining $15 million would be
distributed as follows:
(a) Subsection 7.1(a)--zero, because all Hotel Shutdown Payments were
funded currently
(b) Subsection 7.1(b)--$15 million to Sonesta
2. In the event the Fortune Partners would have satisfied the Existing
Indebtedness with a Capital Contribution of $30 million, the $45 million of
proceeds available for distribution derived from the sale ($60 million less
$15 million net New Indebtedness) would have been distributed under Section
7.2 (and Section 7.1) as follows:
(a) Section 7.1(a) - zero, because all Hotel Shutdown Payments were funded
currently
(b) Section 7.1(b) - $45 million to Sonesta (to reduce its Unreturned
Capital to zero)
(c) Subsection 7.1(c) - zero
(d) Section 7.1(c) - zero
Therefore, under these facts, the Sonesta Guaranteed Amount will equal the
difference between the $45 million Sonesta would have received if the Existing
Indebtedness had been satisfied by a Capital Contribution made by the Fortune
Partners and the $15 million actually received. Thus, the Sonesta Guaranteed
Amount would be $30 million which shall be payable by the Fortune Partners as
provided in Section 7.2 and guaranteed by Xxxxxxx Xxxxxxxxx.
188
SCHEDULE 5.1(b)
PERMITTED LIABILITIES
To be appended upon completion
189
SCHEDULE 16.1(c)
VIOLATIONS OF LAW
SunAmerica Loan Agreement and related loan documents
190
SCHEDULE 16.1(d)
LITIGATION
I. PENDING LAWSUITS:
None
II. KNOWN PENDING CLAIMS (other than routine matters covered by insurance):
None
191
SCHEDULE 16.1(k)
TAX BASES
To be provided during Due Diligence
192
SCHEDULE 16.1(i)
HAZARDOUS MATERIALS
Asbestos floor tile located in basement level, service corridors.
193
SCHEDULE 16.2(d)
FORTUNE BENEFICIAL OWNERS
Xxxxxxx Xxxxxxxxx
194
