EXECUTION COPY June 18, 2009
Exhibit
10.26
EXECUTION COPY
June 18,
2009
▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Dear
▇▇▇▇▇:
As you know, we have had many
conversations over the past several months regarding SBR-Fortune Associates,
LLLP, a Florida limited liability limited partnership (the "Partnership"). This
letter agreement is intended to supersede all such discussions and
conversations, none of which shall have any force or effect. All
terms appearing in initial capitalized letters below shall have the meanings
ascribed thereto in the Agreement of Limited Liability Limited Partnership of
the Partnership, dated as of January 17, 2005, as amended by that certain First
Amendment to Agreement of Limited Liability Limited Partnership of SBR-Fortune
Associates, LLLP dated as of February 25, 2005, by that certain Second Amendment
to Agreement of Limited Liability Limited Partnership of SBR-Fortune Associates,
LLLP dated as of March 2, 2005, and by that certain Third Amendment to
Agreement of Limited Liability Limited Partnership of SBR-Fortune Associates,
LLLP dated as of April 15, 2005, as so amended, the ("Partnership
Agreement").
This letter will constitute the
agreement of the Partners and is intended to modify and amend the Partnership
Agreement as follows:
1. All funds
advanced by or on behalf of any of the Partners or from third parties from and
after January 20, 2009 shall be referred to below as "New
Monies." The repayment of all New Monies and the payment to
HSBC Realty Credit Corporation (USA) ("HSBC") of all sums
due to HSBC pursuant to that certain Loan Agreement, dated as of April 19, 2005,
entered into by HSBC and the Partnership, as amended to the date hereof (the
"HSBC
Indebtedness") shall be governed by the provisions of Paragraph 5(a)
below or as otherwise provided herein. By their execution below, the
parties have agreed that the sum of the principal amount of the New Monies and
the principal amount of the HSBC Indebtedness shall not exceed Sixty-Eight
Million Dollars ($68,000,000.00) (the "Debt Cap"), unless
Sonesta, in its sole and absolute discretion, elects to permit the funding of
indebtedness in excess of such amount by or on behalf of either the Fortune
Partners or Sonesta. All New Monies funded which, when added to the principal
amount of the HSBC Indebtedness, do not exceed the Debt Cap are referred to as
the "First Tier New
Monies." All New Monies funded which, when added to the principal amount
of the HSBC Indebtedness, exceed the Debt Cap are referred to as the "Second Tier New
Monies."
▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇, Executive Chairman
June 18,
2009
Page - 2
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2. All New
Monies funded by Sonesta shall bear simple interest at the rate of fifteen
percent (15%) per annum. All New Monies caused to be funded by the
Fortune Partners from any person or party not controlled by ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
("Defortuna")
shall bear simple interest at the rate of thirteen and one-half percent (13.5%)
per annum. All New Monies caused to be funded by Defortuna or any
person or party controlled by Defortuna (which shall include any funding as to
which any of the Fortune Partners, Defortuna and/or any person or party
controlled by Defortuna bear the ultimate financial risk) shall not bear
interest. All New Monies shall be funded in the form of a loan and,
in the case of New Monies which are not funded by Sonesta or any of its
affiliates, will be evidenced by a promissory note in the form attached hereto
as Exhibit "A", or in the case of New Monies funded by
Sonesta or any of its affiliates, in the form attached hereto as Exhibit "A-1" (each of the promissory notes evidencing New
Monies are referred to as a "New Monies Promissory
Note"), which in each case shall provide (i) a waiver by the applicable
lender of any rights it may have at law or in equity to initiate insolvency or
Bankruptcy proceedings against the Partnership in connection with the loans
evidenced by each such New Monies Promissory Note, and (ii) for a "maturity
date" as provided in said New Monies Promissory Note.
3. The first
Six Million Dollars ($6,000,000.00) of New Monies to be funded from and after
January 20, 2009, shall be funded (i) fifty percent (50%) by or through Sonesta
and (ii) fifty percent (50%) by or through loans arranged by the Fortune
Partners; it being agreed that New Monies funds shall be contributed from time
to time in a manner that results in the New Monies contributions made on behalf
of Sonesta and the Fortune Partners to remain approximately equal until each has
reached the Three Million Dollar ($3,000,000.00) threshold. Sonesta
shall not be required to provide any New Monies funds pursuant to this Paragraph
3 until Sonesta has received confirmation that the Fortune Partners or third
parties have satisfied their equivalent New Monies funding
obligation. From and after the date on which Sonesta and the Fortune
Partners have funded or caused to be funded their respective Three Million
Dollar ($3,000,000.00) New Monies obligations, and except as otherwise provided
herein, such as, for example, upon the election by Sonesta of the Forced Sale
Option, the Fortune Partners shall be solely responsible for causing all further
New Monies to be funded through the borrowing of additional funds from third
parties or Defortuna under additional New Monies Promissory Notes. As
of the date of execution of this letter agreement, each of Sonesta and the
Fortune Partners have funded or caused to be funded Nine Hundred Thirty-Three
Thousand Nine Hundred Forty Dollars and 04/100 ($933,940.04) of New
Monies. One hundred percent (100%) of the New Monies funded by the
Fortune Partners to date has been funded by Defortuna. Each such
funding has been made in accordance with the terms of a New Monies Promissory
Note, dated as of the date hereof (provided that interest shall be retroactive
to the date of actual funding).
▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇, Executive Chairman
June 18,
2009
Page - 3
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4.
(a) The
Partners have agreed to sell the Property (and/or all of the Partnership
Interests). During the period commencing on the date hereof and ending on [**],
the Partnership will accept any Bona Fide Offer (defined below) received by it
for an all-cash purchase price of [**] or more. Any Bona Fide Offer that
includes a proposal for purchase money financing shall be subject to the mutual
agreement of the Partners acting reasonably. As used herein, the term
"Bona Fide
Offer" means a binding written offer to purchase the Property (or all of
the Partnership Interests) from a person or entity reasonably likely to have the
financial resources and/or access to financing necessary to close the offered
transaction, containing terms and conditions that are generally typical in the
then current market for properties similar to the Property, provided that in all
events such Bona Fide Offer must (a) provide for a cash security deposit in an
amount not less than [**], (b) a due diligence period of no more than thirty
(30) days, and (c) at the end of the due diligence period no less than [**] must
be 'hard" (i.e., at risk).
(b) If the
Partnership is not then party to a binding agreement to sell the Property (and
the Partners are not then party to a binding agreement to sell all of the
Partnership Interests), then during the period commencing on [**] and ending on
[**], Sonesta shall have the sole right to cause the Partnership to enter into
an agreement (a "Sonesta Approved
Agreement") to sell the Property (or all of the Partnership Interests)
pursuant to a Bona Fide Offer (provided that the purchase price thereunder may
be less than [**], if such purchase price is acceptable to Sonesta; provided,
however, that the consent of the Fortune Partners shall be required for any
above described proposed transaction whereby Sonesta retains, directly or
indirectly, any non de
minimis interest in the Property (or
Partnership Interests) unless (i) as a result of the transaction, including any
funds advanced by Sonesta or third parties, the Fortune Partners, Defortuna and
third parties funding New Monies on behalf of the Fortune Partners receive at
the closing of said transaction the greater of (A) the amount said parties would
have received pursuant to the provisions of Paragraph 5(a) below if the Property
was sold for an all cash purchase price of [**] or (B) the amount said parties
would receive pursuant to the provisions of Paragraph 5(a) below if the Property
is sold for the consideration set forth in the Sonesta Approved Agreement, and
(ii) the closing date of said transaction is no greater than ninety (90) days
after the date of execution of the Sonesta Approved Agreement.
[**] THE
CONFIDENTIAL PORTION HAS BEEN SO OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT AND HAS BEEN FILED SEPARATELY WITH THE COMMISSION.
▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇, Executive Chairman
June 18,
2009
Page - 4
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(c) If the
Partnership is not then party to a binding agreement to sell the Property (and
the Partners are not then party to a binding agreement to sell all of the
Partnership Interests), then during the period commencing on [**] and continuing
thereafter, if either the Fortune Partners or Sonesta notifies the other that it
elects to accept the then current all-cash Bona Fide Offer having the highest
proposed purchase price of all then current all-cash Bona Fide Offers, then the
Partnership shall accept such highest all-cash Bona Fide Offer; provided,
however, that if Sonesta notifies the Fortune Partners that Sonesta rejects such
proposed sale (which it may do only if it is not a Fortune Approved Bona Fide
Offer which Sonesta must accept pursuant to Paragraph 4(d)(ii) below), then (i)
the provisions of Paragraph 4(d) below shall apply and from and after the date
of a closing under the Buy Out Option described below, Sonesta shall have the
sole right to cause the Partnership to sell the Property (or all of the
Partnership Interests) on terms and conditions acceptable to Sonesta and (ii)
from and after the date on which Sonesta rejects the proposed Bona Fide Offer,
and notwithstanding anything to the contrary contained in Paragraph 3 above, the
Fortune Partners shall have no obligation to provide any additional funding to
the Partnership.
(d)
(i) In the
event the Partnership receives a Bona Fide Offer on or after [**] to sell the
Property or to have all of the Partners sell all of the Partnership Interests
which the Fortune Partners desire to accept, the Fortune Partners shall
notify Sonesta in writing of such Bona Fide Offer and their desire to
accept such offer (such notice, an "Acceptable Sale
Notice", which shall include a copy of the Bona Fide Offer in question
[the "Fortune Approved
Bona Fide Offer"]); provided, however, that in order for a Bona Fide
Offer to be capable of constituting a Fortune Approved Bona Fide Offer under
this Paragraph 4(d), in addition to qualifying as a Bona Fide Offer pursuant to
Paragraph 4(a) above, such offer must also (A) provide no financing contingency
and (B) provide a due diligence period of no greater than fifteen (15) days if
no funds are at risk or a due diligence period of up to forty-five (45) days if
an "at risk" deposit of no less than [**] is placed in escrow. In addition, the
Partners have agreed that the first Five Hundred Thousand Dollars ($500,000.00)
of any forfeited due diligence deposit contained in a Fortune Approved Bona Fide
Offer shall be distributed to Sonesta and treated as a reduction in its
Unreturned Capital (provided that any other forfeited deposit shall be
distributed to the Partnership and not Sonesta exclusively). Sonesta,
within ten (10) Business Days of receipt of the Acceptable Sale Notice, must
notify the Fortune Partners in writing whether Sonesta accepts or rejects the
Fortune Approved Bona Fide Offer. In the event Sonesta fails to
notify the Fortune Partners in writing within the above described ten (10)
Business Day period, then Sonesta shall be deemed to have accepted the Fortune
Approved Bona Fide Offer and the Partners shall pursue a closing
thereunder. In the event Sonesta indicates in writing within the
above described ten (10) Business Day period that it rejects the Fortune
Approved Bona Fide Offer, then Sonesta shall be deemed to have elected to
purchase the Partnership Interests of the Fortune Partners (the "Buy-Out
Option"). In the event Sonesta elects the Buy-Out Option, (i)
the Partnership shall not accept the Fortune Approved Bona Fide Offer, and (ii)
the provisions of Paragraph 7.2 shall apply.
[**] THE
CONFIDENTIAL PORTION HAS BEEN SO OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT AND HAS BEEN FILED SEPARATELY WITH THE COMMISSION.
▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇, Executive Chairman
June 18,
2009
Page - 5
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(ii) Notwithstanding
anything to the contrary contained in Paragraph 4(c) or Paragraph 4(d)(i) above,
Sonesta must accept (and shall be deemed to accept) any Fortune Approved Bona
Fide Offer otherwise described in Paragraph 4(d)(i) which provides for
either: (A) a purchase price that after deducting for reasonably
anticipated closing costs would result in sales proceeds [**], or (B) a purchase
price that after deducting for reasonably anticipated closing costs would result
in sales proceeds [**]. In the event Fortune proffers a Fortune
Approved Bona Fide Offer which provides for a purchase price that after
deducting for reasonably anticipated closing costs would result in sales
proceeds [**], but less than [**], then, in such event, Sonesta may reject such
Fortune Approved Bona Fide Offer, in which event, it shall be deemed to have
elected the Buy-Out Option, provided that, as a condition to doing so, Sonesta
must provide an indemnity to Defortuna from Sonesta International Hotels
Corporation, a New York corporation, in an amount equal to the lesser of (i)
[**], or (ii) [**]. Such indemnity shall be provided in a written
agreement containing operative indemnity provisions identical to those contained
in Section 5 of the Release and Indemnity Agreement referred to in Paragraph 7.1
below.
(iii) In the
event of a sale under Paragraph 4(d)(ii)(A) above, Defortuna must either
(x) pay to Sonesta upon the closing of such sale an amount equal to [**],
in which event the guaranty provided by Defortuna described in Paragraph 8 below
shall be extinguished in its entirety upon such payment, or (y) not make any
payment to Sonesta in which event the guaranty provided by Defortuna
described in Paragraph 8 below shall remain in full force and
effect.
5.
(a) Assuming
the Fortune Partners have not defaulted in funding New Monies (as described in
and required by Paragraph 3 above) beyond the applicable Cure Period (as defined
in Paragraph 6(a)) (or for such additional cure period of time provided in the
Partnership Agreement in the event Sonesta elects the Partnership Agreement
Default Option) or if the Fortune Partners default in their New Monies funding
obligations and Sonesta elects the "Third Fork Option"
described in Paragraph 7.3 below, the net proceeds derived from any sale of the
Property or all of the Partnership Interests will be distributed as
follows:
(i) first, to
the payment of the HSBC Indebtedness;
(ii) next, to
the payment of all Partnership liabilities, excluding (x) any amounts payable to
any of the Partners (which exclusion includes amounts payable in respect of
project administration fees or other fees or compensation payable to the Fortune
Partners and Hotel Shutdown Payments payable to Sonesta (which Hotel Shutdown
Payments shall be added to the Unreturned Capital of Sonesta)) and (y) all New
Monies;
(iii) next, to
the principal and interest on all New Monies Promissory Notes issued in respect
of First Tier New Monies (with all accrued interest being payable to all First
Tier New Monies lenders pari passu (in proportion to which the accrued interest
payable to each such lender in respect of the First Tier New Monies bears to the
total outstanding interest payable to all such lenders in respect of the First
Tier New Monies)) prior to the pari passu repayment of outstanding principal in
respect of the First Tier New Monies;
[**] THE
CONFIDENTIAL PORTION HAS BEEN SO OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT AND HAS BEEN FILED SEPARATELY WITH THE COMMISSION.
▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇, Executive Chairman
June 18,
2009
Page - 6
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(iv) next, to
the payment of the Sales Incentive Amount (as such term in defined in Paragraph
5(b) below) to Fortune International Management, Inc.;
(v) next, to
the principal and interest on all New Monies Promissory Notes issued in respect
of Second Tier New Monies (with all accrued interest being payable to all Second
Tier New Monies lenders pari passu (in proportion to which the accrued interest
payable to each such lender in respect of the Second Tier New Monies bears to
the total outstanding interest payable to all such lenders in respect of the
Second Tier New Monies)) prior to the pari passu repayment of outstanding
principal in respect of the Second Tier New Monies; and
(vi) then, the
remaining proceeds shall be distributed pari passu to the Fortune Partners in an
amount equal to the Fortune Residual Distribution (as such term is defined in
Paragraph 5(b) below) and to Sonesta in an amount equal to the Sonesta Residual
Distribution (as such term is defined in Paragraph 5(b) below).
(b) For
purposes of Paragraph 5(a) above, the following terms shall be defined as
follows:
(i) The
"Sales Incentive
Amount" shall be $1.5 million plus the Additional Amount as determined by
reference to the "gross sales price" of the Property or Partnership Interests,
as the case may be, as follows:
|
Gross Sales Price
|
Additional Amount
|
|
less
than [**]
|
$0
|
|
[**]
up to but less than [**]
|
$250,000
|
|
[**]or
more
|
$500,000
|
For purposes of this letter agreement,
the "gross sales price" shall equal the cash and fair market value of any
property received in the sale transaction, any portion of the purchase price to
be paid subsequent to the closing of the sale transaction, including the face
amount of any promissory notes received in the sale transaction and the face
amount of any and all liabilities of the Partnership assumed by the purchaser
upon the closing of the sale transaction. In calculating the “gross
sales price,” closing costs shall be allocated in conformity with the standard
of practice for similar commercial transactions in Miami-Dade County,
Florida.
(ii) The
"Fortune Residual Distribution" shall mean that portion of the aggregate
proceeds distributable to the Partners pursuant to Paragraph 5(a)(vi) above
determined by the product of (A) fifty percent (50%), and (B) a fraction the
numerator of which shall be the Capital Contributions of the Fortune Partners
and the denominator of which is the Capital Contributions of all of the
Partners. For example, if, on or before October 31, 2009, the
aggregate proceeds distributable to the Partners pursuant to Paragraph 5(a)(vi)
above is Twenty Million Dollars ($20,000,000.00) and the Capital Contributions
of the Fortune Partners is Thirty-Eight Million Dollars ($38,000,000.00) and the
aggregate Capital Contributions of Sonesta is Fifty-Eight Million Dollars
($58,000,000.00), the Fortune Residual Distribution would be
[**] THE
CONFIDENTIAL PORTION HAS BEEN SO OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT AND HAS BEEN FILED SEPARATELY WITH THE COMMISSION.
▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇, Executive Chairman
June 18,
2009
Page - 7
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[$20,000.000
x 50% x (38 / 38+58) = $3,958,333]
(iii) The
"Sonesta Residual Distributions" shall mean the excess of (A) the aggregate
proceeds distributable to the Partners pursuant to Paragraph 5(a)(vi) above,
over (B) the Fortune Residual Distributions. Accordingly, under the
example set forth in Paragraph 5(b)(ii) above, the Sonesta Residual
Distributions shall be
[$20,000,000
- $3,958,333 = $16,041,667]
6.
(a) If the
Fortune Partners default in funding New Monies as provided in Paragraph 3 above,
then (i) the Fortune Partners shall promptly deliver written notice of the facts
and circumstances of such non-payment to Sonesta and (ii) the Fortune Partners
shall be in default hereunder. Upon being notified of such default by
Fortune or becoming aware of such default independently, Sonesta shall promptly
provide the Fortune Partners a written default notice related thereto and the
Fortune Partners shall be permitted a period of thirty (30) days from the date
of receipt of the written notice from Sonesta to cure such default (the "Cure
Period"). If the Fortune Partners do not cure such default
within the Cure Period, then within fifteen (15) Business Days following the
expiration of the Cure Period, Sonesta shall provide written notice (the "Election Notice") to
the Fortune Partners in which Sonesta must affirmatively elect to either (x)
pursue its rights under Section 5.3 of the Partnership Agreement (the "Partnership Agreement
Default Option"), (y) pursue the "Third Fork Option"
provided in Paragraph 7.3 below, or (z) elect to cause the assignment of the
Partnership Interests of the Fortune Partners in accordance with Paragraph 7.1
hereof (the "Forced
Sale Option"); provided that as a condition precedent to exercising the
Forced Sale Option or the Partnership Agreement Default Option, Sonesta must,
simultaneous to its exercise of the Forced Sale Option or Partnership Agreement
Default Option, as the case may be, fund the amount of the Fortune Partners’
default. Immediately upon the delivery of the Election Notice to the
Fortune Partners by Sonesta under this Paragraph 6(a) to exercise the Forced
Sale Option, all rights to exercise control over the day-to-day management of
the Partnership shall automatically vest in Sonesta (or its designee), and such
rights to control the day-to-day operations of the Partnership shall remain
vested in Sonesta (or its designee), unless and until the provisions of the last
sentence of Paragraph 18 are applicable.
(b) In the
event that Sonesta elects the Partnership Agreement Default Option, the terms of
Section 5.3 of the Partnership Agreement shall apply, the amount advanced by
Sonesta to cure defaults shall be treated as a Default Financing and the Cure
Period provided in Paragraph 6(a) above shall be considered to be and shall
satisfy the thirty (30) day cure period required to be provided pursuant to
Section 5.3(a) of the Partnership Agreement.
(c) In the
event that Sonesta elects the Forced Sale Option, the provisions of Paragraph
7.1 below shall apply.
▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇, Executive Chairman
June 18,
2009
Page - 8
-
7.1 Effect of Forced Sale
Option
(a) In
the event Sonesta elects the Forced Sale Option either (i) within the time
period provided in Paragraph 6(a) above or (ii) after Sonesta has elected the
Third Fork Option as provided and in accordance with Paragraph 7.3 below (and
after the expiration of the applicable cure period provided therein without a
cure by the Fortune Partners), Sonesta shall direct the Escrow Agent (as such
term is defined in Paragraph 7.1(b) below) to insert the "Effective Date" in
each of the Escrowed Documents (as such term is defined in Paragraph 7.1(b)
below) and deliver the original Escrowed Documents from escrow to the party in
whose favor the particular Escrow Document has been executed, with copies of
each of the Escrow Documents provided to both Sonesta and the Fortune
Partners. As used herein, the term “Effective Date” means
the date the Escrow Agent receives the Election Notice electing the Forced Sale
Option.
(b) In
order to effectuate the provisions of this Paragraph 7.1 and in order to assure
an expedited closing in the event Sonesta elects to exercise the Forced Sale
Option, the following documents (the "Escrowed Documents")
shall be executed, in the forms attached hereto, contemporaneously with the
execution of this letter agreement, and deposited with Bilzin ▇▇▇▇▇▇▇ ▇▇▇▇▇
Price & ▇▇▇▇▇▇▇ LLP (the "Escrow Agent") to be
held in escrow in accordance with the terms of this letter agreement and the
Escrow Agreement referred to below:
|
(i)
|
Sales
Incentive Amount Promissory Note in the form attached hereto as Exhibit "B";
|
(ii) Assignments
of Partnership Interest;
|
(iii)
|
Release
and Indemnity Agreement in the form attached hereto as Exhibit "C";
and
|
(iv) Escrow
Agreement.
7.2 Effect of Buy-Out
Option.
(a) In the
event Sonesta elects the Buy-Out Option pursuant to Paragraph 4(d) above,
Sonesta shall direct the Escrow Agent to insert the "Effective Date" in each of
the Escrowed Documents and deliver the original Escrowed Documents from escrow
to the party in whose favor the particular Escrow Document has been executed,
with copies of each of the Escrow Documents provided to both Sonesta and the
Fortune Partners. As used in this Paragraph 7.2, the term “Effective Date” means
the date on which date the Escrow Agent receives a copy of a written notice from
Sonesta notifying the Fortune Partners of Sonesta’s election of the Buy-Out
Option in accordance with Paragraph 4(d)(i) above.
▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇, Executive Chairman
June 18,
2009
Page - 9
-
(b) In
addition to the release of the Escrowed Documents, as a condition to a closing
under the Buy-Out Option, Sonesta shall pay to the holders of the New Monies
Promissory Notes the sum of all principal and interest due under the New Monies
Promissory Notes held by them to the extent proceeds would have been available
for such payments under the transaction contemplated by the Fortune Approved
Bona Fide Offer, which payments shall be made on or before the earliest to occur
of (i) ninety (90) days following the Effective Date (as such term is defined in
Paragraph 7.2(a) above), (ii) the closing date of a sale of the Property (or all
or substantially all of the Partnership Interests) or (iii) the date of
admission of a new partner into the Partnership. In addition, the following
amounts shall be paid to the extent proceeds would have been available for such
payments under the transaction contemplated by the Fortune Approved Bona Fide
Offer on the earliest to occur of (x) twelve (12) months after the Effective
Date (as such term is defined in Paragraph 7.2(a) above), (y) the date of
admission of a new partner into the Partnership, or (z) the closing date of a
sale of the Property (or all or substantially all of the Partnership
Interests): (A) to Fortune International Management, Inc., the Sales
Incentive Amount and (B) to the Fortune Partners an amount equal to fifty
percent (50%) of the Fortune Residual Distributions to which Fortune would have
been entitled if the Property or Partnership Interests, as the case may be, were
sold for the sales price provided in the Fortune Approved Bona Fide
Offer.
7.3 Third Fork
Option.
In the event Sonesta elects
the Third Fork Option pursuant to Paragraph 6(a) above, then in
such event, all of the provisions of this letter agreement other than Paragraphs
7.1, 7.2, 11 and 14 shall remain operative. Notwithstanding the
election by Sonesta of the Third Fork Option, Sonesta may thereafter either (i)
fund the amount of the Fortune Partners' default and invoke the Forced Sale
Option described in Paragraph 7.1 above; provided, however that as a condition
to electing the Forced Sale Option pursuant to this Paragraph 7.3, Sonesta must
first provide the Fortune Partners with written notice that it has funded the
Fortune Partners' default amount and provide the Fortune Partners with a period
of thirty (30) days from receipt of said notice to cure the default, and in the
event the Fortune Partners do not cure said default, the provisions of Paragraph
7.1 shall apply or in the event the Fortune Partners do cure said default within
said thirty (30) day period, the default shall be deemed cured for all purposes
of this letter agreement or (ii) fund the amount of the Fortune Partners'
default and invoke the Partnership Agreement Default Option.
▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇, Executive Chairman
Sonesta
International Hotels Corp.
June 18,
2009
Page - 10
-
8. Except as
provided in Paragraph 4(d)(iii) hereof, upon the occurrence of a (i) sale
of the Property (whether effected directly or via merger or consolidation of the
Partnership), (ii) sale of all or substantially all of the Partnership Interests
(whether effected directly or via merger or consolidation of the Partnership or
via the sale of all or substantially all of the equity interests in Sonesta or
Florida Sonesta Corporation), (iii) admission of one (1) or more persons or
entities as partners in the Partnership (or the Partnership closing on a loan
which contains either a conversion feature allowing the holder to acquire equity
in the Partnership or provides for some level of participation by the lender in
the Partnership's revenues, profits or cash flow), or (iv) the entering into by
the Partnership of a joint venture or similar arrangement pursuant to which a
third party or parties obtain(s) more than a de minimis direct or indirect
interest in the Property, Defortuna shall be deemed released from any and all of
his individually guaranteed obligations under the Partnership Agreement,
including but not limited to those obligations set forth in Sections 4.4(a)(4),
4.4(c)(3), 7.2 and 8.6(e) of the Partnership Agreement. As a condition to
a closing of any of the transactions described in this Section 8, the Release
and Indemnity Agreement in the form attached hereto as Exhibit "8" shall be executed and delivered by all of the
parties thereto.
9. As of the
Effective Date of the Release and Indemnity Agreement attached hereto in the
form of Exhibit "C" or the Release or Indemnity
Agreement attached hereto in the form of Exhibit "8" and
continuing for so long as Sonesta has an interest in the Property, Defortuna
agrees not to make any public statements which disparage Sonesta or the Property
or which are materially likely to impair the value or marketability of the
Property (which agreement shall not prohibit the Fortune Partners and/or
Defortuna from maximizing the value of projects that are competitive to the
Property).
10. Notwithstanding
anything to the contrary contained in the Partnership Agreement, as amended
hereby, under no circumstances shall a Bankruptcy or the dissolution of one or
both of the Fortune Partners result in the automatic dissolution of the
Partnership without the written consent of Sonesta.
11. If
Sonesta exercises the Partnership Agreement Default Option or the Forced Sale
Option, then, notwithstanding any other prior agreement to the contrary, Sonesta
shall have the right to engage the consulting services of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇") through the
Fortune Partners (or their respective affiliates) for consulting services to the
Property at a rate based upon ▇▇▇▇▇▇▇’▇ current actual pay rate plus a
twenty-five percent (25%) overhead fee. In such event, ▇▇▇▇▇▇▇ shall
be permitted by the Fortune Partners (or their affiliates) to perform services
for the benefit of the Property substantially similar to those he has performed
prior to the date hereof (unless otherwise directed by Sonesta).
12. This
letter agreement shall be governed by Florida law. Except to the
extent specifically amended or modified by the terms of this letter agreement,
the terms of the Partnership Agreement shall remain in full force and
effect.
13. Each
party hereto hereby represents and warrants that the individual executing this
letter agreement on behalf of such party is duly authorized to execute, deliver
and perform this letter agreement on behalf of such party and to bind such party
to its agreements herein and that this letter agreement is enforceable against
such party in accordance with its terms.
▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇, Executive Chairman
Sonesta
International Hotels Corp.
June 18,
2009
Page - 11
-
14. In the
event that under the terms of this letter agreement Sonesta acquires the
Partnership Interests of the Fortune Partners, whether as a result of the
exercise of the Forced Sale Option or the Buy-Out Option, then the Fortune
Partners agree that as of the effective date of such acquisition, they shall
facilitate an orderly transition of the day-to-day operation of the Property and
of the books and records of the Partnership to Sonesta.
15. In
addition to the foregoing, by their execution below, the Partners have agreed
that:
(a) from and
after the date of execution of this letter agreement, each of the Partners shall
be authorized and permitted to speak with ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, ▇.▇.
and one or more third parties concerning a possible sale of the Property or the
Partnership Interests (and shall advise the other Partners of such meetings in
advance thereof, to the extent practicable); and
(b) from and
after the date of execution of this letter agreement, Sonesta shall be
authorized and permitted to meet and/or have discussions with HSBC provided that
Sonesta shall endeavor to notify Fortune GP at least two (2) days in advance of
any such meeting/discussion so that the Fortune GP may participate
therein.
16. Notwithstanding
anything to the contrary contained in this letter agreement, when the term
"admission of new partners" or words of similar import are used herein, such
term shall include the closing of any financing or loan transaction which
contains either a conversion feature allowing the holder to acquire equity in
the Partnership or provides for some level of participation by the lender in the
Partnership's revenues, profits or cash flow (excluding agreements, such as an
assignment of leases and rents, that are typically a part of a mortgage
financing transaction).
17. The Partners
agree and understand that confidentiality of the existence and the terms of
this letter agreement are material and essential elements of this letter
agreement. Accordingly, the Partners agree that each will keep the
terms of this letter agreement confidential at all times, except in the event
disclosure shall be required by a subpoena, an order of a court of competent
jurisdiction or a governmental agency empowered to compel or require such
disclosure, or, if necessary to enforce any provision of this letter agreement,
or such disclosure is required by law. Each Partner acknowledges
that no remedy of law may be adequate to compensate the injured party for a
violation of this Paragraph 17 and each of them hereby agrees that, in addition
to any legal or other rights that may be available in the event of a breach
hereunder, the injured party may seek equitable relief to enforce this Paragraph
17 in any court of competent jurisdiction. In any such action
brought by any of the Partners, the prevailing party shall be entitled
to recover reasonable attorneys’ fees, court costs and expenses through and
including all appeals. The Fortune Parties hereby acknowledge that Sonesta is
directly or indirectly controlled by entities that are publicly traded
companies. Sonesta shall be permitted to rely on the advice of its
outside legal counsel in determining the extent to which disclosure of this
letter agreement or portions thereof may be legally required. Any
third party providing New Monies on behalf of the Fortune Partners hereunder
shall be required to execute a Confidentiality Agreement in the form attached
hereto as Exhibit "E".
▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇, Executive Chairman
Sonesta
International Hotels Corp.
June 18,
2009
Page - 12
-
18. From and
after the date on which any monetary or material, non-monetary default arises
under the HSBC Indebtedness and the holder of the HSBC Indebtedness either
provides a notice of default or commences or threatens to commence enforcement
actions, and in all events from and after the date which is thirty (30) days
prior to the maturity date of the HSBC Indebtedness, as extended, in recognition
of the personal guaranty of the HSBC Indebtedness executed by Defortuna, the
Partners have agreed that, if such personal guaranty then remains in effect,
Defortuna shall be permitted to participate in unilateral conversations
with HSBC in respect of said indebtedness. In addition, in the event
that, as of twenty (20) days prior to the maturity date of the HSBC
Indebtedness, as extended, (a) such personal guaranty then remains in effect,
(b) the Partnership is not then a party to a binding agreement to sell the
Property for a purchase price equal to or greater than the principal balance due
under the HSBC Indebtedness or an amount less than the HSBC Indebtedness if such
binding sales agreement was the subject of a Fortune Approved Bona Fide Offer,
then the Partners agree that the Partnership shall enter into a transaction
whereby Defortuna (y) obtains exclusive control of the Property (whether by the
Partnership's execution of a deed in his favor or otherwise) at least ten (10)
days prior to the maturity date of the HSBC Indebtedness, as extended, and (z)
agrees that the proceeds of any sale of the Property thereafter shall be
distributed in accordance with Paragraphs 5(a)(i) through (vi)
hereof.
19. In no
event and under no circumstance may any of the Partners initiate or consent to
any Bankruptcy (as defined in Section 10.1(b) of the Partnership Agreement) or
transaction having similar force or effect without the prior written consent of
all Partners; provided that the Fortune Partners may initiate or consent to any
Bankruptcy without the prior consent of Sonesta from and after the date, if any,
on which exclusive control of the Property is transferred to Defortuna as
provided in Paragraph 18 above; provided that as a condition precedent to such
Bankruptcy filing, the Fortune Partners must first take an assignment of the
Sonesta Partnership Interest or otherwise obtain the consent of
Sonesta. In furtherance of the forgoing, Sonesta agrees that upon
issuance of a written notice from the Fortune GP which written notice can only
be issued under the circumstances and within the time frame set forth in
Paragraph 18 above, Sonesta shall be deemed to have transferred and assigned its
Partnership Interest to the Fortune LP effective as of three (3) Business Days
prior to the actual Bankruptcy filing; it being agreed that Sonesta shall have
the right to cause Fortune LP to reassign Sonesta its Partnership Interest in
the event such Bankruptcy filing does not occur.
20. This
letter agreement, together with the Partnership Agreement, contains the entire
understanding among the parties and supersedes any prior understandings and
agreements among them respecting the subject matter of this letter
agreement. The Partnership Agreement, as modified hereby, remains in
full force and effect.
21. The
Fortune Partners hereby represent and warrant to Sonesta that the schedule set
forth on Exhibit “D” attached hereto is a true and
compete list of all material agreements and instruments underlying the HSBC
Indebtedness and any other obligations of the Partners or Defortuna with respect
thereto.
▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇, Executive Chairman
Sonesta
International Hotels Corp.
June 18,
2009
Page - 13
-
22. Notwithstanding
anything to the contrary contained herein, under no circumstances shall (i) any
transfer of the Partnership Interests of the Fortune Partners to Sonesta in
accordance with Paragraphs 7.1 or 7.2 hereof, (ii) any foreclosure action by any
lender or (iii) any transfers or conveyances effectuated between the Partners or
to any lender in accordance with clause (y) of Paragraph 18 hereof be deemed to
be a transfer of Partnership Interests or a sale of the Property for the
purposes of Paragraphs 5 and 8 hereof; provided that nothing contained in this
Paragraph 22 shall in any way invalidate or limit the effectiveness of the
Release and Indemnity Agreement to be executed and delivered in the event of a
transfer of the Partnership Interests of the Fortune Partners to Sonesta in
accordance with Paragraphs 7.1 or 7.2 hereof.
23. each
of sonesta and the fortune parties acknowledge that the funding of new monies
contributions by the other in the amount of Nine Hundred Thousand Dollars
($900,000.00) on or before June 25, 2009 is essential to each party’s
willingness to enter into this letter agreement. Accordingly,
notwithstanding anything to the contrary contained herein, in the event that
either the fortune partners or sonesta breaches its obligation to fund or cause
to be funded New Monies in an amount not less than Nine Hundred Thousand Dollars
($900,000.00) on or before June 25, 2009 in accordance with the provisions of
Paragraph 3 hereof, then the non-defaulting party shall have the right to
terminate this letter agreement upon written notice delivered to the defaulting
party within ten (10) business days following the date of such
default. If such termination occurs, then the Partnership Agreement
shall be operative as if this letter Agreement had never been
executed.
24. This
letter agreement may be executed in several counterparts and all so executed
shall constitute one agreement binding on all of the parties, notwithstanding
that all of the parties are not signatory to the original or the same
counterpart. In addition, any counterpart signature page may be
executed and delivered by facsimile or portable document format
("PDF") and any such faxed or PDF signature pages may be attached to one or more
counterparts of this letter agreement, and such faxed or PDF signature(s) shall
have the same force and effect as if original signatures had been executed and
delivered in person.
25. The
parties acknowledge that this is a negotiated agreement, and that in no event
shall the terms of this letter agreement be construed against any party on the
basis that such party, or its counsel, drafted this letter
agreement
[EXECUTIONS
COMMENCE ON FOLLOWING PAGE]
▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇, Executive Chairman
Sonesta
International Hotels Corp.
June 18,
2009
Page - 14
-
Please
indicate your consent to the terms of this letter agreement by signing and
dating a duplicate copy of this letter and returning it to the
undersigned.
Fortune KB GP, LLC,
a Florida limited liability
company
By: Fortune
International Management, Inc.,
Manager
By: /s/ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
President
Fortune KB, LLC,
a Florida
limited liability company
By: Fortune
International Management, Inc.,
Manager
By: /s/ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
President
Agreed
and accepted this 18th
day of
June,
2009.
Sonesta
Beach Resort Limited Partnership,
a
Delaware limited partnership
By: Florida
Sonesta Corporation,
a Florida corporation
By: /s/ ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
Vice President
FINAL
FORM
PROMISSORY
NOTE
|
U.S.
$____________
|
As
of _________ __, 20__ ("Effective
Date")
|
RECITALS
A. As
of the Effective Date, __________________, a ___________ ("Lender") advanced to
SBR-Fortune Associates, LLLP, a Florida limited liability limited
partnership (the
"Partnership" or "Borrower"), the sum of
__________________ Dollars ($__________).
B. The
Partnership is governed by that certain Agreement of Limited Liability Limited
Partnership dated as of January 17, 2005, as amended by that certain First
Amendment to Agreement of Limited Liability Limited Partnership of SBR-Fortune
Associates, LLLP dated as of February 25, 2005, and by that certain Second
Amendment to Agreement of Limited Liability Limited Partnership of SBR-Fortune
Associates, LLLP dated as of March 2, 2005, and by that certain Third
Amendment to Agreement of Limited Liability Limited Partnership of SBR-Fortune
Associates, LLLP dated as of April 15, 2005, and by that certain letter
agreement (the "Letter
Agreement"), dated as of June 18, 2009 (collectively, the "Partnership
Agreement"). All terms appearing herein in initial capitalized
letters but not otherwise defined herein shall have the meanings ascribed
thereto in the Partnership Agreement.
C. The
Partners agreed that "New Monies" (as such term is defined in the Letter
Agreement) advanced to the Partnership on or after January 20, 2009 would bear
interest, under certain circumstances, at stated rates and would be entitled to
certain priorities of repayment, as more fully provided in the Letter
Agreement. This Promissory Note (the "Note") is evidence of an
advance of New Monies, and more specifically of [First Tier/Second Tier New Monies
(as defined in the Letter Agreement)].
D. This
Note evidences that, as of the Effective Date, Lender advanced
to Borrower the sum of ____________________Dollars
($_______).
THEREFORE, FOR VALUE RECEIVED,
Borrower hereby promises to pay to Lender the principal amount of
____________ Dollars ($___________), together with all other amounts added
thereto pursuant to this Note, together with interest accrued from the Effective
Date on the balance of principal from time to time outstanding, in United States
currency, at the rates and at the times hereinafter
described. Payments shall be made to Lender at ________________,
Suite _____, _____________, _______ _____, Attn: ____________ (or
such other address as Lender may hereinafter designate in writing to
Borrower).
1. Principal and Interest
Payments.
1.1 All of
the principal and accrued but unpaid interest under this Note shall be due and
payable without notice or demand of any kind or nature on the "Maturity Date"; provided
however, that mandatory prepayments shall be required under the circumstances
described in and pursuant to Section 2 below. By its execution below,
Borrower agrees that, without Lender's written consent, it shall not issue or
incur any indebtedness of any type or nature which is senior in payment or
priority to all sums hereunder other than the HSBC Indebtedness (as defined
below); provided that if this Note evidences an advance of "Second Tier New
Monies" (as such term is defined in the Letter Agreement), the repayment of the
principal and interest due hereunder shall be subordinated to certain payments
as provided in Paragraph 5(a) of the Letter Agreement. Subject to the preceding
sentence, Borrower shall not distribute any cash or property to its constituent
partners prior to the full and complete repayment of all principal and interest
under this Note. For purposes of this Note, the Maturity Date will be
the day (such day, the "HSBC
Discharge Date") on which all sums due to HSBC Realty Credit Corporation
(USA) ("HSBC") under
that certain Loan Agreement entered into by and between HSBC and the Partnership
as of April 19, 2005, (as the same may be extended, the "HSBC Indebtedness") are paid
in full resulting in the HSBC Indebtedness being extinguished and satisfied in
full; provided however that in the event any of the dates set forth in clauses
(A) through (F) of Section 1.2 below occurs prior to the HSBC Discharge Date,
the Maturity Date shall be accelerated to be the first of the dates set forth in
clauses (A) through (F) of Section 1.2 below (each, an "Accelerated Maturity
Date").
1.2 For
purposes of this Note, the Accelerated Maturity Dates shall be:
(A) the
date of the closing of a sale of all or substantially all of the property owned
by the Partnership (the "Property") (whether effected
directly or via merger or consolidation of the Partnership), but specifically
excluding (i) any transfer of the Partnership Interests of the Fortune Partners
to Sonesta in accordance with Paragraphs 7.1 or 7.2 of the Letter Agreement and
(ii) any transfers or conveyances made in accordance with clause (y) of
Paragraph 18 of the Letter Agreement;
(B) five
(5) years from the Effective Date;
(C) the
date of the closing of a sale of all or any portion of the partnership interests
owned by one or more partners in the Partnership (whether effected directly or
via merger or consolidation of the Partnership or via the sale of all or
substantially all of the equity interests in Sonesta Beach Resort Limited
Partnership, Florida Sonesta Corporation or via the entering into by
the Partnership of a joint venture or similar arrangement pursuant to which a
third party or parties obtain(s) more than a de minimis direct or indirect
interest in the Property), but specifically excluding (i) any transfer of the
Partnership Interests of the Fortune Partners to Sonesta in accordance with
Paragraphs 7.1 or 7.2 of the Letter Agreement and (ii) any transfers or
conveyances made in accordance with clause (y) of Paragraph 18 of the Letter
Agreement;
(D) the
date of the closing of a refinancing of the HSBC Indebtedness provided however
that on such Accelerated Maturity Date, the payment required hereunder shall be
limited to the "Excess Available Proceeds" as such term is defined in Section 2
below and the accrued interest and outstanding principal under this Note which
remains unpaid on such Accelerated Maturity Date shall be paid in full on the
next occurring Accelerated Maturity Date or the Maturity Date, as the case may
be;
(E) the
date of admission of one or more partner(s) in the Partnership subsequent to the
Effective Date (such date, the "New Partner Admission Date");
or
(F) ninety
(90) days after the "Effective Date" of the exercise of the Buy-Out Option as
provided in Paragraph 7.2 of the Letter Agreement, provided that the payments
required to be made in such circumstance may be limited to and as provided in
said Paragraph 7.2 of the Letter Agreement.
Notwithstanding
anything to the contrary contained herein, in the event the Accelerated Maturity
Date is determined pursuant to either (i) clause (C) above in a case in which
Sonesta maintains an interest of no less than fifty percent (50%) of the
Partnership Interests in the Partnership (a "Sonesta Retained Interest
Transaction"), or (ii) clause (E) above as a result of the admission of
one or more persons as partners in the Partnership on or after the Effective
Date, the Partnership may elect to extend the Maturity Date to a date (the
"Extended Maturity
Date") that is twelve (12) months following the closing date under clause
(C) above or the New Partner Admission Date, as applicable (whichever of such
dates is applicable is referred to as the "Trigger Date"); provided that
such election must be made in writing by the Partnership and delivered to Lender
no later than ten (10) Business Days following the Trigger Date and as a
condition precedent to the extension of the Maturity Date to the Extended
Maturity Date, from and after the Trigger Date, interest shall be paid monthly
in arrears on the last day of each month and in the event all amounts due
hereunder are not paid on the Extended Maturity Date, Lender shall have the
unilateral right to cause the Partnership to sell the Property pursuant to the
provisions of Section 6(n) below. In the event the Maturity Date is
extended to the Extended Maturity Date, all references in other provisions of
this Note to the Maturity Date shall be deemed to be references to the Extended
Maturity Date.
1.3 In all
events in which an Accelerated Maturity Date is determined by reference to
clauses (A), (C) or (D) of Section 1.2 above, or in which the Extended Maturity
Date applies as a result of a Sonesta Retained Interest Transaction, the payment
of any amount under this Note shall be subordinated as follows:
(a) first, to
the satisfaction and discharge in full of the HSBC Indebtedness;
(b) next, to
the payment of all Partnership liabilities, excluding (x) any amounts payable to
any of the Partners (which exclusion includes amounts payable in respect of
project administration fees or other fees or compensation payable to the Fortune
Partners and Hotel Shutdown Payments payable to Sonesta (which Hotel Shutdown
Payments shall be added to the Unreturned Capital of Sonesta)) and (y) all New
Monies;
(c) next, to
the holders of all First Tier New Monies promissory notes, with all accrued
interest being payable to such holders pari passu in proportion to which the
accrued interest payable to each such holder in respect of the First Tier New
Monies bears to the total outstanding interest payable to all such holders in
respect of the First Tier New Monies, prior to the pari passu repayment of
outstanding principal in respect of the First Tier New Monies; provided,
however, that in the event the Accelerated Maturity Date is determined by
reference to clause (D) of Section 1.2 above, or in which the Extended Maturity
Date applies as a result of a Sonesta Retained Interest Transaction, the accrued
interest and outstanding principal, if any, in respect of First Tier New Monies
which remains unpaid on the Accelerated Maturity Date, shall be paid in full on
the next occurring Accelerated Maturity Date or the Maturity Date, as the case
may be;
[and
in the case of Second Tier New Monies]
(d) next, to
the payment of the Sales Incentive Amount (as such term is defined and
calculated in accordance with the Letter Agreement); and
(e) next, to
the holders of all Second Tier New Monies promissory notes, with all accrued
interest being payable to such holders pari passu in proportion to which the
accrued interest payable to each such holder in respect of the Second Tier New
Monies bears to the total outstanding interest payable to all such holders in
respect of the Second Tier New Monies, prior to the pari passu repayment of
outstanding principal in respect of the Second Tier New Monies; provided,
however, that in the event the Accelerated Maturity Date is determined by
reference to clause (D) of Section 1.2 above or in which the Extended Maturity
Date applies as a result of a Sonesta Retained Interest Transaction above, the
accrued interest and outstanding principal, if any, in respect of Second Tier
New Monies which remains unpaid on the Accelerated Maturity Date, shall be paid
in full on the next occurring Accelerated Maturity Date or the Maturity Date, as
the case may be.
2. Mandatory
Prepayments. A mandatory prepayment shall be required
hereunder on the date of a closing of a refinancing of the HSBC Indebtedness
(which refinancing is for an amount in excess of the balance of the HSBC
Indebtedness existing on the date of the closing of the refinancing) to the
extent that proceeds are available therefrom following the payment of all
related loan refinancing closing costs (such excess, the "Excess Available
Proceeds"). Such mandatory prepayment shall be in the amount
of all Excess Available Proceeds and shall be subject to the terms of Section
1.3 above.
3. Interest
Rate. From and after the Effective Date through and including
the Maturity Date, interest shall accrue upon the unpaid principal balance of
this Note at the annual rate of _________ percent (__%) per annum [No interest
for Defortuna/Defortuna controlled person/entity; otherwise
13.5%]. All interest which is unpaid at the end of any calendar year
shall be added to the principal amount of this Note on the first day of the
succeeding calendar year. Except as provided in the penultimate sentence of
Section 1.2 above, all interest accruing under this Note shall be payable on the
Maturity Date.
4. Prepayment. This
Note shall be prepayable, in whole or in part, at any time and from time to time
without premium or penalty at the sole option of Borrower, with the amount of
the prepayment being credited first to accrued but unpaid interest and then to
principal.
5. Default. The
occurrence of any one or more of the following events, circumstances, or
conditions shall constitute a default hereunder ("Event of Default"): (a)
failure of Borrower (which term shall mean and include Borrower and/or each
borrower, endorser, surety, and guarantor of this Note) to pay to Lender within
five (5) days of the due date (whether at scheduled maturity, upon acceleration
or otherwise) any installment of principal or of interest due under this Note or
any fees owing to Lender; (b) the failure of Borrower to comply with any of the
provisions of Section 1 above; (c) Borrower makes a general
assignment for the benefit of creditors; (d) a receiver, custodian, liquidator,
trustee or like officer of Borrower is appointed to take custody, possession or
control over any property and such appointment is not discharged within sixty
(60) days thereafter; (e) proceedings are instituted by or against Borrower
under any bankruptcy code or act or insolvency law and such proceedings remain
undismissed for a period of sixty (60) days thereafter; (f) the Partnership
receives a notice of acceleration of the HSBC Indebtedness following a default
by the Partnership thereunder and delivers such notice promptly upon receipt to
Lender; or (g) the Partnership issues, promises to issue or otherwise becomes
liable for repayment of loans or borrowings which provide for priority of
repayment senior to the "new monies" evidenced by this Note; provided that if
this Note evidences an advance of Second Tier New Monies, the repayment of the
principal and interest due hereunder shall be
subordinated
to certain payments as provided in Paragraph 5(a) of the Letter Agreement. At
any time after the occurrence of an Event of Default, the indebtedness evidenced
by this Note and/or any note(s) or other obligation(s) which may be taken in
renewal, extension, substitution, or modification of all or any part of the
indebtedness evidenced hereby or thereby and all other obligations of Borrower
to Lender howsoever created shall, at the option of Lender, immediately become
due and payable without demand upon or notice to Borrower, and Lender shall be
entitled to exercise all remedies available at law. Any failure to
exercise this option of acceleration shall not constitute a waiver of the right
to exercise the same at any future time or for any other
event. Lender's remedies contained in this Note shall be cumulative
and concurrent, and may be pursued singly, successively, or together at the sole
discretion of Lender, and may be exercised as often as occasion therefor shall
occur. Upon the occurrence of an Event of Default interest shall
accrue under this Note on the outstanding principal balance at the interest rate
of eighteen percent (18%) per annum (the "Default Rate").
6. Enforcement
Costs. If this Note is
not paid promptly in accordance with its terms and is placed in the hands of an
attorney for collection or if suit be instituted on the Note, and as often as
this Note is placed in the hands of an attorney for collection and as often as
suit is filed to collect this Note, Borrower agrees to pay, in addition to the
unpaid principal balance and all accrued and unpaid interest, reasonable
attorneys' fees and paralegal fees through all tribunal levels, plus all costs
and expenses of collection together with all other expenses in connection
therewith, and interest on any judgment obtained by Lender at the Default Rate,
including interest at the Default Rate from and after the date of the occurrence
of such Event of Default until actual payment is made to Lender of the full
amount due Lender.
7. General
Provisions.
(a) Extensions and
Renewals. Without notice and without releasing the liability
of a party, Lender may grant extensions, renewals and indulgences from time to
time and for any term or terms.
(b) Waiver. Borrower
waives presentment for payment, demand, notice of demand, notice of nonpayment
or dishonor, protest and notice of protest of this Note, and all other notices
in connection with delivery, acceptance, performance, default, or enforcement of
the payment of this Note, and agrees that its liability shall be unconditional,
without regard to the liability of any other party, and shall not be affected in
any manner by any indulgence, extension of time, renewal, waiver or modification
granted or consented to by Lender. Borrower consents to any and all
extensions of time, renewals, waivers, or modifications that may be granted by
Lender with respect to the payment or other provisions of this Note and agrees
that additional borrowers, endorsers, guarantors or sureties may become parties
hereto without notice to them or affecting its liability.
(c) Delay. No
delay or omission of Lender to exercise any right, power or remedy accruing
under or pursuant to this Note, at law, in equity, or otherwise, shall exhaust
or impair any such right, power or remedy or shall be construed to waive any
such right, power or remedy. Every right, power and remedy of Lender
created under this Note may be exercised from time to time and as often as may
be deemed expedient by Lender in its sole discretion. No right, power
or remedy conferred upon or reserved to Lender is exclusive of any other right,
power or remedy, but each and every such right, power and remedy shall be
cumulative and concurrent and shall be in addition to any other right, power and
remedy given under this Note or under any other instrument executed in
connection with this Note or now or hereafter existing at law, in equity, or
otherwise. No obligation of Borrower under this Note shall be deemed
waived
by any
course or pattern of conduct by any party and Lender acknowledges that it would
be unreasonable of Borrower to rely on any such conduct, or any oral statements,
for any such purpose.
(d) Usury. If
Lender shall ever receive, as interest or otherwise, an amount which would
exceed the highest lawful rate of interest, such amount which would be excessive
interest shall be applied to the reduction of the principal amount owing or on
account of any other principal indebtedness of Borrower to Lender and not to the
payment of interest or, if such excessive interest exceeds the unpaid balance of
principal and such other indebtedness, such excess shall be refunded to
Borrower. All sums paid or agreed to be paid to Lender for the use or
detention of the indebtedness of Borrower to Lender shall, to the extent
permitted by applicable law, be amortized, prorated, allocated and spread
throughout the full term of such indebtedness until payment in full so that the
actual rate of interest on account of such indebtedness is uniform throughout
the term thereof.
(e) Severability. If
any provision of this Note shall be deemed unenforceable under applicable law,
such provision shall be ineffective, but only to the extent of such
unenforceability, without invalidating the remainder of such provision or the
remaining provisions of this Note.
(f) Writing. No
amendment, modification, waiver or discharge of this Note, or any provision of
this Note, shall be valid or effective unless in writing and signed by
Lender.
(g) Binding on
Successors. This Note and all provisions hereof shall be
binding upon Borrower and all persons claiming under or through Borrower, and
shall inure to the benefit of Lender, together with its successors and assigns,
including each owner and holder from time to time of this Note.
(h) Time of
Essence. Time is of the essence as to all dates set forth
herein.
(i) Governing Law;
Severability. This Note shall be governed by, and construed
and enforced in accordance with, the internal laws of the State of Florida
(without regard to conflicts of law principles), and any applicable
laws of the United States of America. Borrower and Lender agree that
jurisdiction and venue of any dispute arising from this Note shall be Miami-Dade
County, Florida.
(j) WAIVER OF TRIAL BY
JURY. BORROWER KNOWINGLY (AFTER CONSULTATION WITH BORROWER'S
COUNSEL), VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY IN RESPECT OF ANY LITIGATION ARISING OUT OF, UNDER, OR IN CONNECTION
WITH THIS NOTE, OR THE TRANSACTIONS OR OBLIGATIONS UNDER WHICH THIS NOTE WAS
DELIVERED, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENT (WHETHER ORAL
OR WRITTEN) OR ACTIONS OF ANY PARTY RELATING TO THIS NOTE. BORROWER
ACKNOWLEDGES THAT THE PROVISIONS OF THIS PARAGRAPH ARE A MATERIAL INDUCEMENT TO
LENDER'S ACCEPTANCE OF THIS NOTE.
(k) No
Offset. No amounts due or owing under this Note may be offset
by or against any amounts due Borrower by Lender.
(l) Notice Of Defaults Under
HSBC Indebtedness. In the event Borrower receives written
notice from HSBC alleging a default under or in connection with the HSBC
Indebtedness, Borrower shall promptly provide a copy of said notice to
Lender.
(m) Power and
Authority. Borrower hereby represents and warrants that the
individual executing this Note on behalf of Borrower is duly authorized to
execute and deliver this Note and to perform the obligations
hereunder on behalf of Borrower and to bind Borrower to its agreements herein
and that this Note is enforceable against Borrower in accordance with its
terms.
(n) Forced Sale of the
Property.
(i) In the
event Lender has the right to cause the Partnership to sell the Property
pursuant to the penultimate sentence of Section 1.2 above, then at any time
following the Extended Maturity Date, Lender may notify the Partnership in
writing that it has elected to cause the Partnership to sell the Property. In
such case, Lender shall be permitted to market and sell the
Property. The Partnership by its execution below irrevocably makes,
constitutes and appoints Lender as its true and lawful agent and
attorney-in-fact, with full power of substitution to its affiliates and full
power and authority in its name, place and stead, to make, execute, sign,
acknowledge, swear to, record and file any and all certificates and instruments
of any kind or nature deemed advisable by Lender to permit or cause the
Partnership to market and sell the Property.
(ii) The
foregoing power of attorney.
(a) is
coupled with an interest, shall be irrevocable and shall survive the incapacity
or bankruptcy of the Partnership or any Partner;
(b) may be
exercised by Lender acting as attorney-in-fact for the Partnership;
and
(c) shall
survive the delivery of an assignment by any Partner of the whole or any
fraction of its Partnership Interest.
(o) Waiver of Bankruptcy
Proceedings. To the fullest extent permitted by applicable
law, Lender hereby waives any and all rights it may have at law or in equity to
initiate insolvency or Bankruptcy proceedings against the Partnership in
connection with any action arising under this Note or the loans evidenced
hereby.
(p) Limitation on
Interest. In agreeing to pay
interest under Section 3 above, the Partnership has relied upon the
representation and warranty that Lender bears the ultimate financial risk
associated with making the loan contemplated hereunder. Accordingly,
notwithstanding anything to the contrary contained herein, no interest shall be
payable in accordance with Section 3 above if Lender has advanced funds
hereunder in a manner resulting, directly or indirectly, in ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ or
an entity or person controlled by him (other than the Partnership) bearing the
risk of loss hereunder.
[SIGNATURES
TO FOLLOW ON NEXT PAGE]
Borrower
has delivered this Note as of the day and year first set forth
above.
BORROWER:
SBR-FORTUNE
ASSOCIATES, LLLP
a Florida
limited liability limited partnership
By:
Name:
Title:
FINAL
FORM
PROMISSORY
NOTE
|
U.S.
$____________
|
As
of _________ __, 20__ ("Effective
Date")
|
RECITALS
A. As
of the Effective Date, Sonesta Beach Resort Limited Partnership, a Delaware
limited partnership ("Lender") advanced to
SBR-Fortune Associates, LLLP, a Florida limited liability limited
partnership ("Partnership" or "Borrower"), the sum of
__________________ Dollars ($__________).
B. The
Partnership is governed by that certain Agreement of Limited Liability Limited
Partnership dated as of January 17, 2005, as amended by that certain First
Amendment to Agreement of Limited Liability Limited Partnership of SBR-Fortune
Associates, LLLP dated as of February 25, 2005, and by that certain Second
Amendment to Agreement of Limited Liability Limited Partnership of SBR-Fortune
Associates, LLLP dated as of March 2, 2005, and by that certain Third
Amendment to Agreement of Limited Liability Limited Partnership of SBR-Fortune
Associates, LLLP dated as of April 15, 2005, and by that certain letter
agreement (the "Letter
Agreement"), dated as of June 18, 2009 (collectively, the "Partnership
Agreement"). (All terms appearing herein in initial
capitalized letters but not otherwise defined herein shall have the meanings
ascribed thereto in the Partnership Agreement.)
C. The
Partners agreed that "New Monies" (as such term is defined in the Letter
Agreement) advanced to the Partnership on or after January 20, 2009 would bear
interest, under certain circumstances, at stated rates and would be entitled to
certain priorities of repayment, as more fully provided in the Letter
Agreement. This Promissory Note (the "Note") is evidence of an
advance of New Monies, and more specifically of [First Tier/Second Tier New
Monies](as defined in the Letter Agreement).
D. This
Note evidences that, as of the Effective Date, Lender advanced to Borrower the
sum of ____________________Dollars ($_______).
THEREFORE, FOR VALUE RECEIVED,
Borrower hereby promises to pay to Lender the principal amount of
____________ Dollars ($___________), together with all other amounts added
thereto pursuant to this Note, together with interest accrued from the date set
forth in Section 3 below on the balance of principal from time to time
outstanding, in United States currency, at the rates and at the times
hereinafter described. Payments shall be made to Lender at
________________, Suite _____, _____________, _______ _____,
Attn: ____________ (or such other address as Lender may hereinafter
designate in writing to Borrower).
1. Principal
and Interest Payments.
1.1 All of
the principal and accrued but unpaid interest under this Note shall be due and
payable without notice or demand of any kind or nature on the "Maturity Date"; provided
however, that mandatory prepayments shall be required under the circumstances
described in and pursuant to Section 2 below. By its execution below,
Borrower agrees that, without Lender's written consent, it shall not issue or
incur any indebtedness of any type or nature which is senior in payment or
priority to all sums hereunder other than the HSBC Indebtedness; provided that
if this Note evidences an advance of "Second Tier New Monies" (as such term is
defined in the Letter Agreement), the repayment of the principal and interest
due hereunder shall be subordinated to certain payments as provided in Paragraph
5(a) of the Letter Agreement. Subject to the preceding sentence, Borrower shall
not distribute any cash or property to its constituent partners prior to the
full and complete repayment of all principal and interest under this
Note. For purposes of this Note, the Maturity Date will be the day
(such day, the "HSBC Discharge
Date") on which all sums due to HSBC Realty Credit Corporation (USA)
("HSBC") under that
certain Loan Agreement entered into by and between HSBC and the Partnership as
of April 19, 2005 (as the same may be extended, the "HSBC Indebtedness") are paid
in full resulting in the HSBC Indebtedness being extinguished and satisfied in
full; provided however that in the event any of the dates set forth in clauses
(A) through (C) of Section 1.2 below occurs prior to the HSBC Discharge Date,
the Maturity Date shall be accelerated to be the first of the dates set forth in
clauses (A) through (C) of Section 1.2 below (each, an "Accelerated Maturity
Date").
1.2 For
purposes of this Note, the Accelerated Maturity Dates shall be:
(A) the
date of the closing of a sale of all or substantially all of the property owned
by the Partnership (the "Property") (whether effected
directly or via merger or consolidation of the Partnership) but specifically
excluding (i) any transfer of the Partnership Interests of the Fortune Partners
to Sonesta in accordance with Paragraphs 7.1 or 7.2 of the Letter Agreement and
(ii) any transfers or conveyances made in accordance with clause (y) of
Paragraph 18 of the Letter Agreement; provided that if Lender or any person or
entity affiliated with Lender retains an interest in the Property (whether via
an ownership interest in the purchaser of the Property or otherwise), the
closing date of such sale shall not constitute an Accelerated Maturity
Date;
(B) five
(5) years from the Effective Date; or
(C) the
date of the closing of a refinancing of the HSBC Indebtedness provided however
that on such Accelerated Maturity Date, the payment required hereunder shall be
limited to the "Excess Available Proceeds" as such term is defined in Section 2
below and the accrued interest and outstanding principal under this Note which
remains unpaid on such Accelerated Maturity Date shall be paid in full on the
next occurring Accelerated Maturity Date or the Maturity Date, as the case may
be:
In the
event the Maturity Date is accelerated (in whole or in part) to the Accelerated
Maturity Date, all references in other provisions of this Note to the Maturity
Date shall be deemed to be references to the Accelerated Maturity
Date.
1.3 In all
events in which an Accelerated Maturity Date is determined by reference to
clauses (A), or (C) of Section 1.2 above, the payment of any amount under this
Note shall be subordinated as follows:
(a) first, to
the satisfaction and discharge in full of the HSBC Indebtedness;
(b) next, to
the payment of all Partnership liabilities, excluding (x) any amounts payable to
any of the Partners (which exclusion includes amounts payable in respect of
project administration fees or other fees or compensation payable to the Fortune
Partners and Hotel Shutdown Payments payable to Sonesta (which Hotel Shutdown
Payments shall be added to the Unreturned Capital of Sonesta)) and (y) all New
Monies;
(c) next, to
the holders of all First Tier New Monies promissory notes, with all accrued
interest being payable to such holders pari passu in proportion to which the
accrued interest payable to each such holder in respect of the First Tier New
Monies bears to the total outstanding interest payable to all such holders in
respect of the First Tier New Monies, prior to the pari passu repayment of
outstanding principal in respect of the First Tier New Monies; provided,
however, that in the event the Accelerated Maturity Date is determined by
reference to clause (C) of Section 1.2 above, the accrued interest and
outstanding principal, if any, in respect of First Tier New Monies which remains
unpaid on the Accelerated Maturity Date, shall be paid in full on the next
occurring Accelerated Maturity Date or the Maturity Date, as the case may
be;
[and
in the case of Second Tier New Monies]
(d) next, to
the payment of the Sales Incentive Amount (as such term is defined and
calculated in accordance with the Letter Agreement); and
(e) next, to
the holders of all Second Tier New Monies promissory notes, with all accrued
interest being payable to such holders pari passu in proportion to which the
accrued interest payable to each such holder in respect of the Second Tier New
Monies bears to the total outstanding interest payable to all such holders in
respect of the Second Tier New Monies, prior to the pari passu repayment of
outstanding principal in respect of the Second Tier New Monies; provided,
however, that in the event the Accelerated Maturity Date is determined by
reference to clause (C) of Section 1.2 above the accrued interest and
outstanding principal, if any, in respect of Second Tier New Monies which
remains unpaid on the Accelerated Maturity Date, shall be paid in full on the
next occurring Accelerated Maturity Date or the Maturity Date, as the case may
be.
2. Mandatory
Prepayments. A mandatory prepayment shall be required
hereunder on the date of a closing of a refinancing of the HSBC Indebtedness
(which refinancing is for an amount in excess of the balance of the HSBC
Indebtedness existing on the date of the closing of the refinancing) to the
extent that proceeds are available therefrom following the payment of all
related loan refinancing closing costs (such excess, the "Excess Available
Proceeds"). Such mandatory prepayment shall be in the amount
of all Excess Available Proceeds and shall be subject to the terms of Section
1.3 above.
3. Interest
Rate. From and after the Effective Date through and including
the Maturity Date, interest shall accrue upon the unpaid principal balance of
this Note at the annual rate of fifteen percent (15%) per annum. All
interest which is unpaid at the end of any calendar year shall be added to the
principal amount of this Note on the first day of the succeeding calendar
year.
4. Prepayment. This
Note shall be prepayable, in whole or in part, at any time and from time to time
without premium or penalty at the sole option of Borrower, with the amount of
the prepayment being credited first to accrued but unpaid interest and then to
principal.
5. Default. The
occurrence of any one or more of the following events, circumstances, or
conditions shall constitute a default hereunder ("Event of Default"): (a)
failure of Borrower (which term shall mean and include Borrower and/or each
borrower, endorser, surety, and guarantor of this Note) to pay to Lender within
five (5) days of the due date (whether at scheduled maturity, upon acceleration
or otherwise) any installment of principal or of interest due under this Note or
any fees owing to Lender; (b) the failure of Borrower to comply with any of the
provisions of Section 1 above; (c) Borrower makes a general
assignment for the benefit of creditors; (d) a receiver, custodian, liquidator,
trustee or like officer of Borrower is appointed to take custody, possession or
control over any property and such appointment is not discharged within sixty
(60) days thereafter; (e) proceedings are instituted by or against Borrower
under any bankruptcy code or act or insolvency law and such proceedings remain
undismissed for a period of sixty (60) days thereafter; (f) the Partnership
receives a notice of acceleration of the HSBC Indebtedness following a default
by the Partnership thereunder and delivers such notice promptly upon receipt to
Lender; or (g) the Partnership issues, promises to issue or otherwise becomes
liable for repayment of loans or borrowings which provide for priority of
repayment senior to the "new monies" evidenced by this Note; provided that if
this Note evidences an advance of Second Tier New Monies, the repayment of the
principal and interest due hereunder shall be subordinated to certain payments
as provided in Paragraph 5(a) of the Letter Agreement. At any time after the
occurrence of an Event of Default, the indebtedness evidenced by this Note
and/or any note(s) or other obligation(s) which may be taken in renewal,
extension, substitution, or modification of all or any part of the indebtedness
evidenced hereby or thereby and all other obligations of Borrower to Lender
howsoever created shall, at the option of Lender, immediately become due and
payable without demand upon or notice to Borrower, and Lender shall be entitled
to exercise all remedies available at law. Any failure to exercise
this option of acceleration shall not constitute a waiver of the right to
exercise the same at any future time or for any other event. Lender's
remedies contained in this Note shall be cumulative and concurrent, and may be
pursued singly, successively, or together at the sole discretion of Lender, and
may be exercised as often as occasion therefor shall occur. Upon the
occurrence of an Event of Default interest shall accrue under this Note on the
outstanding principal balance at the interest rate of eighteen percent (18%) per
annum (the "Default
Rate").
6. Enforcement
Costs. If this Note is
not paid promptly in accordance with its terms and is placed in the hands of an
attorney for collection or if suit be instituted on the Note, and as often as
this Note is placed in the hands of an attorney for collection and as often as
suit is filed to collect this Note, Borrower agrees to pay, in addition to the
unpaid principal balance and all accrued and unpaid interest, reasonable
attorneys' fees and paralegal fees through all tribunal levels, plus all costs
and expenses of collection together with all other expenses in connection
therewith, and interest on any judgment obtained by Lender at the Default Rate,
including interest at the Default Rate from and after the date of the occurrence
of such Event of Default until actual payment is made to Lender of the full
amount due Lender.
7. General
Provisions.
(a) Extensions and
Renewals. Without notice and without releasing the liability
of a party, Lender may grant extensions, renewals and indulgences from time to
time and for any term or terms.
(b) Waiver. Borrower
waives presentment for payment, demand, notice of demand, notice of nonpayment
or dishonor, protest and notice of protest of this Note, and all other notices
in connection with delivery, acceptance, performance, default, or enforcement of
the payment of this Note, and agrees that its liability shall be unconditional,
without regard to the liability of any other party, and shall not be affected in
any manner by any indulgence, extension of time, renewal, waiver or modification
granted or consented to by Lender. Borrower consents to any and all
extensions of time, renewals, waivers, or modifications that may be granted by
Lender with respect to the payment or other provisions of this Note and agrees
that additional borrowers, endorsers, guarantors or sureties may become parties
hereto without notice to them or affecting its liability.
(c) Delay. No
delay or omission of Lender to exercise any right, power or remedy accruing
under or pursuant to this Note, at law, in equity, or otherwise, shall exhaust
or impair any such right, power or remedy or shall be construed to waive any
such right, power or remedy. Every right, power and remedy of Lender
created under this Note may be exercised from time to time and as often as may
be deemed expedient by Lender in its sole discretion. No right, power
or remedy conferred upon or reserved to Lender is exclusive of any other right,
power or remedy, but each and every such right, power and remedy shall be
cumulative and concurrent and shall be in addition to any other right, power and
remedy given under this Note or under any other instrument executed in
connection with this Note or now or hereafter existing at law, in equity, or
otherwise. No obligation of Borrower under this Note shall be deemed
waived by any course or pattern of conduct by any party and Lender acknowledges
that it would be unreasonable of Borrower to rely on any such conduct, or any
oral statements, for any such purpose.
(d) Usury. If
Lender shall ever receive, as interest or otherwise, an amount which would
exceed the highest lawful rate of interest, such amount which would be excessive
interest shall be applied to the reduction of the principal amount owing or on
account of any other principal indebtedness of Borrower to Lender and not to the
payment of interest or, if such excessive interest exceeds the unpaid balance of
principal and such other indebtedness, such excess shall be refunded to
Borrower. All sums paid or agreed to be paid to Lender for the use or
detention of the indebtedness of Borrower to Lender shall, to the extent
permitted by applicable law, be amortized, prorated, allocated and spread
throughout the full term of such indebtedness until payment in full so that the
actual rate of interest on account of such indebtedness is uniform throughout
the term thereof.
(e) Severability. If
any provision of this Note shall be deemed unenforceable under applicable law,
such provision shall be ineffective, but only to the extent of such
unenforceability, without invalidating the remainder of such provision or the
remaining provisions of this Note.
(f) Writing. No
amendment, modification, waiver or discharge of this Note, or any provision of
this Note, shall be valid or effective unless in writing and signed by
Lender.
(g) Binding on
Successors. This Note and all provisions hereof shall be
binding upon Borrower and all persons claiming under or through Borrower, and
shall inure to the benefit of Lender, together with its successors and assigns,
including each owner and holder from time to time of this Note.
(h) Time of
Essence. Time is of the essence as to all dates set forth
herein.
(i) Governing Law;
Severability. This Note shall be governed by, and construed
and enforced in accordance with, the internal laws of the State of Florida
(without regard to conflicts of law principles), and any applicable
laws of the United States of America. Borrower and Lender agree that
jurisdiction and venue of any dispute arising from this Note shall be Miami-Dade
County, Florida.
(j) WAIVER OF TRIAL BY
JURY. BORROWER KNOWINGLY (AFTER CONSULTATION WITH BORROWER'S
COUNSEL), VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY IN RESPECT OF ANY LITIGATION ARISING OUT OF, UNDER, OR IN CONNECTION
WITH THIS NOTE, OR THE TRANSACTIONS OR OBLIGATIONS UNDER WHICH THIS NOTE WAS
DELIVERED, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENT (WHETHER ORAL
OR WRITTEN) OR ACTIONS OF ANY PARTY RELATING TO THIS NOTE. BORROWER
ACKNOWLEDGES THAT THE PROVISIONS OF THIS PARAGRAPH ARE A MATERIAL INDUCEMENT TO
LENDER'S ACCEPTANCE OF THIS NOTE.
(k) No
Offset. No amounts due or owing under this Note may be offset
by or against any amounts due Borrower by Lender.
(l) Notice Of Defaults Under
HSBC Indebtedness. In the event Borrower receives written
notice from HSBC alleging a default under or in connection with the HSBC
Indebtedness, Borrower shall promptly provide a copy of said notice to
Lender.
(m) Power and
Authority. Borrower hereby represents and warrants that the
individual executing this Note on behalf of Borrower is duly authorized to
execute and deliver this Note and to perform the obligations
hereunder on behalf of Borrower and to bind Borrower to its agreements herein
and that this Note is enforceable against Borrower in accordance with its
terms.
(n) Waiver of Bankruptcy
Proceedings. To the fullest extent permitted by applicable
law, Lender hereby waives any and all rights it may have at law or in equity to
initiate insolvency or Bankruptcy proceedings against the Partnership in
connection with any action arising under this Note or the loans evidenced
hereby.
Borrower
has delivered this Note as of the day and year first set forth
above.
BORROWER:
SBR-FORTUNE
ASSOCIATES, LLLP
a Florida
limited liability limited partnership
By:
Name:
Title:
FINAL
FORM
PROMISSORY
NOTE
U.S.
$_________________ ________________
____, 20__ (the "Effective
Date")
FOR VALUE
RECEIVED, the undersigned, SBR-Fortune Associates, LLLP,
a Florida limited liability limited partnership (the "Partnership" or
"Maker")
promises to pay to the order of Fortune International Management,
Inc., a Florida corporation ("Holder") a fixed sum,
the amount of which shall be determined pursuant to Section 2 below (the "Indebtedness"). Payments
shall be made to Holder at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇. The Partnership is governed by that certain Agreement
of Limited Liability Limited Partnership dated as of January 17, 2005, as
amended by that certain First Amendment to Agreement of Limited Liability
Limited Partnership of SBR-Fortune Associates, LLLP dated as of February 25,
2005, and by that certain Second Amendment to Agreement of Limited Liability
Limited Partnership of SBR-Fortune Associates, LLLP dated as of March 2,
2005, and by that certain Third Amendment to Agreement of Limited Liability
Limited Partnership of SBR-Fortune Associates, LLLP dated as of April 15, 2005,
and by that certain letter agreement (the "Letter Agreement"), dated as
of June 18, 2009 (collectively, the "Partnership
Agreement"). All terms appearing herein in initial capitalized
letters but not otherwise defined herein shall have the meanings ascribed
thereto in the Partnership Agreement
1. Maturity
Date. This Note shall mature on the earliest of (A) the date
of the closing of a sale of all or substantially all of the property owned by
the Partnership (the "Property") (whether
effected directly or via merger or consolidation of the Partnership) but
specifically excluding (i) any transfer of the Partnership Interests of the
Fortune Partners to Sonesta in accordance with Paragraphs 7.1 or 7.2 of the
Letter Agreement and (ii) any transfers or conveyances made in accordance with
clause (y) of Paragraph 18 of the Letter Agreement, (B) five (5) years from the
Effective Date, (C) the date of the closing of a sale of all or any portion of
the partnership interests owned by one or more partners in the Partnership
(whether effected directly or via merger or consolidation of the Partnership or
via the sale of all or substantially all of the equity interests in Sonesta
Beach Resort Limited Partnership, Florida Sonesta Corporation or
via the entering into by the Partnership of a joint venture or
similar arrangement pursuant to which a third party or parties obtain(s) more
than a de minimis direct or indirect interest in the Property) but specifically
excluding (i) any transfer of the Partnership Interests of the Fortune Partners
to Sonesta in accordance with Paragraphs 7.1 or 7.2 of the Letter Agreement and
(ii) any transfers or conveyances made in accordance with clause (y) of
Paragraph 18 of the Letter Agreement, (D) the date of the closing of a refinance
of the Partnership's indebtedness (the "HSBC Indebtedness")
owed to HSBC Realty Credit Corporation (USA) ("HSBC") pursuant to
that certain Loan Agreement dated as of April 19, 2005, as amended, and entered
into by and between HSBC and the Partnership, or (E) the date of admission of
one or more partner(s) in the Partnership subsequent to the Effective Date (the
earliest of such dates referred to as the "Maturity Date").
Notwithstanding anything to the contrary contained herein, in the event Sonesta
exercises the Buy-Out Option pursuant to Section 7.2 of the Letter
Agreement, the time period provided in (B) above shall be reduced to twelve (12)
months after the Effective Date.
2. Principal Amount. The
principal amount of this Note shall be One Million Five Hundred Thousand Dollars
($1,500,000.00); provided however that in the event the Maturity Date is the
date described in clause (A) of Section 1 or clause (C) of Section 1, the
principal amount of this Note shall be increased by an "Additional Amount" which
shall be determined by reference to the gross sales price ("GSP") of the Property
or the partnership interests, as applicable, as follows:
|
GSP
|
Additional Amount
|
|
less
than $87.5 million
|
$0
|
|
$87.5
million up to but less than $95 million
|
$250,000
|
|
$95
million or more
|
$500,000
|
For
purposes of the Note, the GSP of the Property shall equal the sum of the cash
and fair market value of any property received in the sale transaction, any
portion of the purchase price to be paid subsequent to the closing of the sale
transaction, including the face amount of any promissory notes received in the
sale transaction and the face amount of any and all liabilities of the
Partnership assumed by the purchaser upon the closing of the sale transaction.
In calculating the GSP, closing costs shall be allocated in conformity with the
standard of practice for similar commercial transactions in Miami-Dade County
Florida. Notwithstanding anything to the contrary contained herein, if Sonesta
Beach Resort Limited Partnership, Florida Sonesta Corporation, or Sonesta
International Hotels Corporation, or any of their affiliates owns any direct or
indirect interest in the purchaser of the Property or the partnership interests
subsequent to the closing of the sale transaction, the principal amount of this
Note shall be One Million Five Hundred Thousand Dollars ($1,500,000.00) plus an
"Additional Amount" which shall be determined by reference to the gross fair
market value ("GFMV") of the
Property or the partnership interests, as applicable, as follows:
|
GFMV
|
Additional Amount
|
|
less
than $87.5 million
|
$0
|
|
$87.5
million up to but less than $95 million
|
$250,000
|
|
$95
million or more
|
$500,000
|
The GFMV
shall be equal to the "Appraised Value" of
the Property determined as follows: each of (i) Sonesta on the one hand, and
(ii) Holder on the other hand, shall choose an M.A.I. appraiser with no prior
relationship with the parties or their respective affiliates, to furnish a
written appraisal setting forth the GFMV of the Property as of the Maturity
Date, both of whom shall be paid for by the Partnership. The
appraisers selected by the parties shall have at least fifteen (15) years
experience with appraisal of properties similar to the Property in the Southeast
United States. The determination of the GFMV of the Property by the
appraisers so selected shall be in writing and in the event the two appraisals
of the GFMV of the Property vary by less than ten percent (10%), the GFMV of the
Property shall be the average of the two appraisals. If the GFMV of
the Property as set forth in the two appraisals vary by more than ten percent
(10%), a third appraisal shall be performed by an M.A.I. appraiser selected by
the two appraisers described above possessing the qualifications described above
("Third
Appraisal"), and the GFMV of the Property shall be the average of the
Third Appraisal and whichever of the other two appraisals of GFMV is closest in
value to the Third Appraisal. The cost of the Third Appraisal shall
be paid for by the Partnership.
3. Interest and Default
Rate. Unless and until the occurrence of an Event of Default
(as such term is defined below), the principal amount of this Note shall not
bear interest. Upon the occurrence of an Event of Default interest
shall accrue under this Note on the outstanding principal balance at the
interest rate of eighteen percent (18%) per annum compounded monthly (the "Default Rate"). The
occurrence of any one or more of the following events, circumstances, or
conditions shall constitute a default hereunder ("Event of
Default"): (a) failure of Borrower (which term shall mean and
include Borrower and/or each borrower, endorser, surety, and guarantor of this
Note) to pay to Holder within five (5) days of the due date (whether
at scheduled maturity, upon acceleration or otherwise) any installment of
principal or of interest due under this Note or any fees owing to Holder; (b)
Borrower makes a general assignment for the benefit of creditors; (c) a
receiver, custodian, liquidator, trustee or like officer of Borrower is
appointed to take custody, possession or control over any property and such
appointment is not discharged within sixty (60) days thereafter; (d) proceedings
are instituted by or against Borrower under any bankruptcy code or act or
insolvency law and such proceedings remain undismissed for a period of sixty
(60) days thereafter; or (e) the Partnership receives a notice of acceleration
of the HSBC Indebtedness following a default by the Partnership thereunder and
delivers such notice promptly upon receipt to Holder. At any time after the
occurrence of an Event of Default, the indebtedness evidenced by this Note
and/or any note(s) or other obligation(s) which may be taken in renewal,
extension, substitution, or modification of all or any part of the indebtedness
evidenced hereby or thereby and all other obligations of Borrower to Holder
howsoever created shall, at the option of Holder, immediately become due and
payable without demand upon or notice to Borrower, and Holder shall be entitled
to exercise all remedies available at law. Any failure to exercise
this option of acceleration shall not constitute a waiver of the right to
exercise the same at any future time or for any other event. Holder's
remedies contained in this Note shall be cumulative and concurrent, and may be
pursued singly, successively, or together at the sole discretion of Holder, and
may be exercised as often as occasion therefor shall occur.
4. Prepayment. Maker
hereby reserves the right to prepay the Indebtedness in whole, or in part, at
any time without penalty or premium.
5. Enforcement
Costs. If
this Note is not paid promptly in accordance with its terms and is placed in the
hands of an attorney for collection or if suit be instituted on this Note, and
as often as this Note is placed in the hands of an attorney for collection and
as often as suit is filed to collect this Note, Maker agrees to pay, in addition
to the unpaid principal balance and all accrued and unpaid interest, if any,
reasonable attorneys' fees and paralegal fees through all tribunal levels, plus
all costs and expenses of collection together with all other expenses in
connection therewith, and interest on any judgment obtained by Holder at the
Default Rate, including interest at the Default Rate from and after the date of
the occurrence of such Event of Default until actual payment is made to Holder
of the full amount due Holder.
6. General
Provisions.
(a) Extensions and
Renewals. Without notice and without releasing the liability
of a party, Holder may: (i) grant extensions, renewals and indulgences from time
to time and for any term or terms; and (ii) add or release one or more parties
without releasing any other party to this Note.
(b) Waiver. Maker
waives presentment for payment, demand, notice of demand, notice of nonpayment
or dishonor, protest and notice of protest of this Note, and all other notices
in connection with delivery, acceptance, performance, default, or enforcement of
the payment of this Note, and agrees that its liability shall be unconditional,
without regard to the liability of any other party, and shall not be affected in
any manner by any indulgence, extension of time, renewal, waiver or modification
granted or consented to by Holder. Maker consents to any and all
extensions of time, renewals, waivers, or modifications that may be granted by
Holder with respect to the payment or other provisions of this Note, and agree
that additional borrowers, endorsers, guarantors or sureties may become parties
hereto without notice to them or affecting its liability.
(c) Delay. No
delay or omission of Holder to exercise any right, power or remedy accruing
under or pursuant to this Note, at law, in equity, or otherwise, shall exhaust
or impair any such right, power or remedy or shall be construed to waive any
such right, power or remedy. Every right, power and remedy of Holder
created under this Note may be exercised from time to time and as often as may
be deemed expedient by Holder in its sole discretion. No right, power
or remedy conferred upon or reserved to Holder is exclusive of any other right,
power or remedy, but each and every such right, power and remedy shall be
cumulative and concurrent and shall be in addition to any other right, power and
remedy given under this Note or under any other instrument executed in
connection with this Note or now or hereafter existing at law, in equity, or
otherwise. No obligation of Maker under this Note shall be deemed
waived by any course or pattern of conduct by any party and Holder acknowledges
that it would be unreasonable of Maker to rely on any such conduct, or any oral
statements, for any such purpose.
(d) Usury. If
Holder shall ever receive, as interest or otherwise, an amount which would
exceed the highest lawful rate of interest, such amount which would be excessive
interest shall be applied to the reduction of the principal amount owing or on
account of any other principal indebtedness of Maker to Holder and not to the
payment of interest or, if such excessive interest exceeds the unpaid balance of
principal and such other indebtedness, such excess shall be refunded to
Maker.
(e) Severability. If
any provision of this Note shall be deemed unenforceable under applicable law,
such provision shall be ineffective, but only to the extent of such
unenforceability, without invalidating the remainder of such provision or the
remaining provisions of this Note.
(f) Writing. No
amendment, modification, waiver or discharge of this Note, or any provision of
this Note, shall be valid or effective unless in writing and signed by
Holder.
(g) Binding on
Successors. This Note and all provisions hereof shall be
binding upon Maker and all persons claiming under or through Maker, and shall
inure to the benefit of Holder, together with its successors and assigns,
including each owner and holder from time to time of this Note.
(h) Time of
Essence. Time is of the essence as to all dates set forth
herein.
(i) Governing Law;
Severability. This Note shall be governed by, and construed
and enforced in accordance with, the internal laws of the State of Florida
(without regard to conflicts of law principles), and any applicable
laws of the United States of America. Maker agrees that jurisdiction and venue
of any dispute arising from this Note shall be Miami-Dade County,
Florida.
(j) WAIVER OF TRIAL BY
JURY. MAKER KNOWINGLY (AFTER CONSULTATION WITH MAKER'S
COUNSEL), VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT THEY MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF ANY LITIGATION ARISING OUT OF, UNDER, OR IN
CONNECTION WITH THIS NOTE, OR THE TRANSACTIONS OR OBLIGATIONS UNDER WHICH THIS
NOTE WAS DELIVERED, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENT
(WHETHER ORAL OR WRITTEN) OR ACTIONS OF ANY PARTY RELATING TO THIS
NOTE. MAKER ACKNOWLEDGES THAT THE PROVISIONS OF THIS PARAGRAPH ARE A
MATERIAL INDUCEMENT TO HOLDER'S ACCEPTANCE OF THIS NOTE.
(k) No
Offset. No amounts due or owing under this Note may be offset
by or against any amounts due Maker by Holder.
(l) Notice Of Defaults Under
HSBC Indebtedness. In the event Borrower receives written
notice from HSBC alleging a default under or in connection with the HSBC
Indebtedness, Borrower shall promptly provide a copy of said notice to
Holder.
(m) Power and
Authority. Maker hereby represents and warrants that the
individual executing this Note on behalf of Maker is duly authorized to
execute and deliver this Note and to perform the obligations
hereunder on behalf of Maker and to bind Maker to its agreements herein and that
this Note is enforceable against Maker in accordance with its
terms.
[SIGNATURES
TO FOLLOW ON NEXT PAGE]
Maker has
delivered this Note as of the Effective Date.
MAKER:
SBR-FORTUNE
ASSOCIATES, LLLP
a Florida
limited liability limited partnership
|
|
By:
|
FLORIDA
SONESTA CORPORATION, a Florida corporation, as successor General
Partner
|
By:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Vice President
EXECUTION
COPY
RELEASE AND INDEMNIFICATION
AGREEMENT
This
Release and Indemnification Agreement ("Agreement") is made
and entered into as of ________, __ 20__ (the "Effective Date") by
and among Fortune KB GP,
LLC, a Florida limited liability company ("Fortune GP"), Fortune KB, LLC, a Florida
limited liability company, ("Fortune LP" and together with Fortune GP, the
"Fortune
Partners") ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, an individual ("Defortuna"), SBR-Fortune Associates, LLLP,
a Florida limited liability limited partnership ("Partnership") and
Sonesta Beach Resort Limited
Partnership, a Delaware limited partnership ("Sonesta Beach" and
together with the Partnership, the "Releasing
Parties").
WHEREAS, Sonesta Beach and the Fortune
Partners are all of the partners in the Partnership, pursuant to the Agreement
of Limited Liability Limited Partnership of SBR-Fortune Associates, LLLP dated
as of January 17, 2005, as amended by that certain First Amendment to Agreement
of Limited Liability Limited Partnership of SBR-Fortune Associates, LLLP dated
as of February 25, 2005, and by that certain Second Amendment to Agreement of
Limited Liability Limited Partnership of SBR-Fortune Associates, LLLP dated as
of March 2, 2005, and by that certain Third Amendment to Agreement of
Limited Liability Limited Partnership of SBR-Fortune Associates, LLLP dated as
of April 15, 2005, and by that certain letter agreement (the “Letter Agreement ”),
among Fortune GP, Fortune LP and Sonesta Beach, dated as of June __, 2009
(collectively, the "Partnership
Agreement"); (all terms appearing herein in initial capitalized letters
but not otherwise defined herein shall have the meanings ascribed thereto in the
Partnership Agreement);
WHEREAS,
Sonesta Beach has exercised either its "Forced Sale Option" or its "Buy Out
Option" under and pursuant to the terms of the Letter Agreement (the exercise of
either such option referred to as a "Sonesta Initiated
Event");
WHEREAS,
subject to the terms of this Agreement, the Releasing Parties have agreed to
release the Fortune Partners from all of their obligations under the Partnership
Agreement as more particularly described herein, and, to release Defortuna from
all of his individually guaranteed obligations under the Partnership Agreement,
including but not limited to those obligations set forth in Sections 4.4(a)(4),
4.4(c)(3), 7.2 and 8.6(e) of the Partnership Agreement; and
WHEREAS,
subject to the terms of this Agreement, the Releasing Parties have agreed that
upon the occurrence of a Sonesta Initiated Event, they shall make certain
efforts as more particularly described below to cause HSBC Realty Credit
Corporation (USA) ("HSBC") to release
Defortuna from any and all liabilities and obligations (the "HSBC Release")
arising under or related to that certain Loan Agreement entered into by and
between HSBC and the Partnership as of April 19, 2005, as amended to the date
hereof (such indebtedness, the "HSBC Indebtedness"),
and if such efforts fall short of obtaining the HSBC Release, to indemnify
Defortuna from any and all liabilities and obligations arising under or related
to the HSBC Indebtedness;
NOW
THERFORE, in consideration of the mutual promises and other consideration, the
value of which is hereby acknowledged, it is agreed by and between the parties
as follows:
1. Recitals. The
foregoing preliminary statements are true and correct and incorporated herein by
reference
2. Partnership Agreement
Release. Effective as of the Effective Date, the Releasing
Parties, on their own behalf and on behalf of their Affiliates, hereby
unconditionally and irrevocably release, remise, acquit, waive and discharge the
Fortune Partners and Defortuna of and from any and all actual or potential
rights, damages, demands, liabilities, obligations, actions, causes of action,
suits, losses, costs and expenses, whether direct or indirect, contingent or
consequential, liquidated or unliquidated, known or unknown, suspected or
unsuspected that any of the Releasing Parties might have against the Fortune
Partners and/or Defortuna, of whatever kind or nature, whether in law, equity,
or otherwise, from the beginning of the world to the Effective Date arising out
of, under or attributable to the Partnership Agreement, including but not
limited to those certain obligations set forth in Sections 4.4(a)(4), 4.4(c)(3),
7.2 and 8.6(e) of the Partnership Agreement, but specifically excluding matters
arising out of the gross negligence, willful misconduct or fraud of
the Fortune Partners and/or Defortuna. Effective as of the Effective
Date, the Fortune Partners and Defortuna, on their own behalf and on behalf of
their Affiliates, hereby unconditionally and irrevocably release, remise,
acquit, waive and discharge the Releasing Parties of and from any and all actual
or potential rights, damages, demands, liabilities, obligations, actions, causes
of action, suits, losses, costs and expenses, whether direct or indirect,
contingent or consequential, liquidated or unliquidated, known or unknown,
suspected or unsuspected that any of the Fortune Partners and Defortuna might
have against the Releasing Parties, of whatever kind or nature, whether in law,
equity, or otherwise, from the beginning of the world to the Effective Date
arising out of, under or attributable to the Partnership Agreement, but
specifically excluding matters arising out of the gross
negligence, willful misconduct or fraud of any one or more of the
Releasing Parties.
3. Partnership Agreement
Indemnification. The Releasing Parties jointly and severally
agree to, shall and hereby indemnify and hold harmless the Fortune Partners and
Defortuna, of, from and against any and all liabilities, costs, losses,
expenses, claims or damages of any kind or nature, including, without
limitation, any suits, proceedings, claims or demands (including, but
not limited to, attorneys' fees and costs paid or incurred in connection
therewith at both trial and appellate levels) incurred or arising by reason of
or in connection with any third party claims brought against any of the
Releasing Parties, the Fortune Partners or Defortuna, relating to the
Partnership or the Partnership Agreement. Attached as Exhibit A is a
list of all of the claims for which Fortune GP has received written notice or
has actual knowledge of as of the Effective Date ("Noticed
Claims"). The Fortune Partners and Defortuna each hereby
represent and warrant to the Releasing Parties, that, to the best knowledge of
the Fortune Partners and Defortuna, the schedule of Noticed Claims attached as
Exhibit A hereto is true, accurate and complete.
4. HSBC Indebtedness
Guarantee. As of the effective date of a Sonesta Initiated
Event, the Partnership shall take commercially reasonable efforts to cause HSBC
to issue the HSBC Release to Defortuna; it being agreed that the Releasing
Parties shall be under no obligation to undertake litigation in order to obtain
the HSBC Release. The Partnership shall take all steps necessary to cause the
HSBC Release to be delivered to the Fortune Partners and Defortuna on the
earlier to occur of (i) twelve (12) months after the Effective Date, or (ii) the
maturity date of the HSBC Indebtedness (as extended, if applicable) (the earlier
of such dates the "Mandatory Release
Date")
5. HSBC Indebtedness
Indemnification. In the event of a Sonesta Initiated Event, from and
after the Effective Date and continuing through and until the effective date of
the HSBC Release, Sonesta Beach and the Partnership jointly and severally agree
to, shall and hereby indemnify and hold harmless the Fortune Partners and
Defortuna, of, from and against any and all obligations, liabilities, costs,
losses, expenses, claims or damages of any kind or nature, whether direct or
indirect, contingent or consequential, liquidated or unliquidated, known or
unknown, suspected or unsuspected that HSBC might have against the Fortune
Partners and/or Defortuna, of whatever kind or nature, whether in law, equity,
or otherwise, from the beginning of the world to the effective date of the HSBC
Release arising out of, under or attributable to the HSBC
Indebtedness. In addition, from and after the Effective Date and
continuing through and until the effective date of the HSBC Release, the
Releasing Parties shall act in good faith, shall keep the HSBC Indebtedness
current and shall use commercially reasonable efforts to avoid taking any
actions which could give rise to liability of the Fortune Partners and/or
Defortuna under or in respect of the HSBC Indebtedness.
6. Affiliate. For
purposes of this Agreement, the term "Affiliate" means with
respect to any Person, a Person directly or indirectly controlling or controlled
by or under common control with such Person. "Person" means an
individual, corporation, partnership, business trust, limited liability company,
unincorporated association, joint stock company, trust, joint venture, or other
entity or organization.
7. Representations and
Warranties. Each party hereto hereby represents and warrants
that the individual executing this Agreement on behalf of such party is duly
authorized to execute, deliver and perform this Agreement on behalf of such
party and to bind such party to its agreements herein and that this Agreement is
enforceable against such party in accordance with its terms.
8. Entire Agreement;
Amendments. This Agreement constitutes the entire agreement
between the parties and supersedes all prior agreements, promises and
understandings, whether oral or written regarding the release and
indemnification of the Fortune Partners and Defortuna. This Agreement
shall not be modified, amended, supplemented or revised, except by a written
document signed by all parties.
9. Governing
Law/Venue. This Agreement shall be governed by and construed
in accordance with the local laws of the State of Florida without reference to
that state's rules regarding choice of law. The exclusive venue for
all actions or disputes relating to this Agreement shall be the state or federal
courts located in Miami-Dade County in the State of Florida, and the Parties
hereby agree not to assert, by way of motion, as a defense, or otherwise in any
such suit, action or proceeding that the suit, action or proceeding is brought
in an inconvenient forum, that the venue of the suit, action or proceeding is
improper or that this Agreement or the subject matter hereof may not be enforced
by such courts.
10. Severability. Any
provision of this Agreement, which is unenforceable in any jurisdiction, shall
be ineffective in such jurisdiction to the extent of such unenforceability
without invalidating the remaining provisions of this Agreement, and any
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
11. No Waiver. 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.
12. Counterparts. This
Agreement may be executed in several counterparts and all so executed shall
constitute one agreement binding on all of the parties, notwithstanding that all
of the parties are not signatory to the original or the same
counterpart. In addition, any counterpart signature page may be
executed and delivered by facsimile or portable document format ("PDF") and any
such faxed or PDF signature pages may be attached to one or more counterparts of
this Agreement, and such faxed or PDF signature(s) shall have the same force and
effect as if original signatures had been executed and delivered in
person.
13. No Construction Against
Draftsmen. The
parties acknowledge that this is a negotiated agreement, and that in no event
shall the terms of this Agreement be construed against any party on the basis
that such party, or its counsel, drafted this Agreement.
[EXECUTIONS
COMMENCE ON FOLLOWING PAGE]
FORTUNE
GP
FORTUNE KB GP,
LLC,
a Florida
limited liability company
By: Fortune
International Management, Inc.,
a Florida corporation, its
Manager
By: /s/ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, President
FORTUNE
LP
FORTUNE KB, LLC,
a Florida
limited liability company
By: Fortune
International Management, Inc.,
a Florida corporation, its
Manager
By: /s/ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, President
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
(First
signature page to Release and Indemnification Agreement)
SBR-FORTUNE
ASSOCIATES, LLLP
a Florida
limited liability limited partnership
|
|
By:
|
FLORIDA
SONESTA CORPORATION, a Florida corporation, as successor General
Partner
|
By: /s/ ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Vice President
SONESTA BEACH RESORT LIMITED
PARTNERSHIP, a Delaware limited partnership
|
|
By:
|
FLORIDA
SONESTA CORPORATION, a Florida
corporation
|
By: /s/ ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Vice President
(Final
signature page to Release and Indemnification Agreement)
Exhibit
A
Noticed
Claims
IN THE
CIRCUIT COURT OF THE 11TH
JUDICIAL CIRCUIT, IN AND FOR MIAMI-DADE COUNTY, FLORIDA GENERAL JURISDICTION
DIVISION CASE NO. 07-15905 CA 31. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and CAROLINA ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇, Plaintiffs, v. VILLAGE OF KEY BISCAYNE, Defendant, and SBR-FORTUNE
ASSOCIATES, LLLP, Intervenor.
List
of HSBC Indebtedness Material Agreements and Instruments
|
1.
|
Replacement
Promissory Note ($41,000,000.00).
|
|
2.
|
Replacement
Promissory Note ($20,000,000.00).
|
|
3.
|
Assignment
and Acceptance dated September 1, 2005 to Allied Irish Banks,
p.l.c.
|
LOAN DOCUMENTS
(Closing Date April 19, 2005)
|
1.
|
Amended
and Restated Renewal Promissory Note (allonge and original notes being
renewed are attached to this
instrument)
|
|
2.
|
Assignment,
Assumption and Release of Note and
Mortgage
|
|
3.
|
Amended
and Restated Mortgage, Assignment of Rents, Security Agreement and Notice
of Future Advance
|
|
4.
|
Loan
Agreement and Upfront Fee Letter
|
|
5.
|
Assignment
of Leases and Rents
|
|
6.
|
UCC-1
Financing Statement
(County/Fixture)
|
|
7.
|
UCC-1
Financing Statement (State)
|
|
8.
|
Guaranty
of Payment (▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇)
|
|
9.
|
Affidavit
of Title
|
|
10.
|
Assignment
of Contracts, Licenses and Permits
|
|
11.
|
ADA
and Environmental Indemnification
Agreement
|
|
12.
|
Loan
Funding Statement
|
|
13.
|
Closing
Statement and Loan Disbursement
Approval
|
|
14.
|
Flood
Insurance Acknowledgement
|
|
15.
|
Anti-Coercion
Insurance Acknowledgment
|
|
16.
|
Side
Letters Regarding Waiver of Terrorism Insurance and
Mold
|
|
17.
|
Agreement
Regarding Instructions Given by Telephone or
Facsimile
|
|
18.
|
Requisition
Authorization Statement
|
TITLE AND SURVEY
INFORMATION
|
19.
|
Title
Insurance Commitment
|
|
20.
|
Insured
Closing Letter
|
|
21.
|
Property
Taxes/Proof of Payment
|
|
22.
|
UCC-1
Searches
|
|
23.
|
Title
Insurance Policy (Owner and Loan)
|
|
24.
|
Survey
|
|
25.
|
Closing
Instruction Letter to Title Company
|
ZONING
INFORMATION
|
26.
|
Zoning
Letter issued by the City of Key
Biscayne
|
|
27.
|
Opinion
Letter of Counsel regarding Zoning and Land
Use
|
MISCELLANEOUS
|
28.
|
Purchase
Agreement/Agreement of Merger regarding Acquisition of
Property
|
|
29.
|
Lease
Agreement with Sonesta Beach Resort Limited
Partnership
|
|
30.
|
Existing
Mortgages and Related Documents Assigned to
Lender
|
LOAN DOCUMENTS (Closing Date
April 19, 2007)
|
1.
|
Promissory
Note Extension and Mortgage Modification
Agreement
|
|
2.
|
Borrower’s
Representations, Warranties and
Affidavit
|
|
3.
|
Confirmation
of Guaranty
|
|
4.
|
Loan
Extension Settlement Statement
|
|
5.
|
Borrower’s
Counsel Legal Opinion
|
|
6.
|
Marked-Up
Commitment to Endorse
|
|
7.
|
Endorsement
No. 1 to the Title Insurance Policy issued by Title Company (P/C) and
Borrower’s Title Affidavit
|
LOAN DOCUMENTS (Closing Date
October 19, 2007)
|
1.
|
Second
Promissory Note Extension and Mortgage Modification
Agreement
|
|
2.
|
Amendment
to Loan Agreement
|
|
3.
|
Borrower’s
Representation, Warranties and
Affidavit
|
|
4.
|
Second
Confirmation and Modification of
Guaranty
|
|
5.
|
Loan
Extension Settlement Statement
|
|
6.
|
Borrower’s
Counsel Legal Opinion
|
|
7.
|
Marked-Up
Commitment to Endorse
|
|
8.
|
Title
Affidavit
|
|
9.
|
Endorsement
No. 2 to the Title Insurance Policy issued by Title Company
(P/C)
|
LOAN DOCUMENTS (Closing Date:
January 16, 2009)
________________________________________________________
|
1.
|
Third
Promissory Note Extension and Mortgage Modification Agreement recorded
January 27, 2009, in Official Records Book 26730, Page 3050, Miami-Dade
County Public Records.
|
|
2.
|
Loan
Extension Settlement Statement
|
|
3.
|
Second
Amendment to Loan Agreement
|
|
4.
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Borrower’s
Representations, Warranties and
Affidavit
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5.
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Third
Confirmation and Modification of
Guaranty
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6.
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Borrower’s
Title Affidavit
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7.
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Endorsement
No. 3 to Loan Policy No.
FA-M-960776
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FINAL
FORM
CONFIDENTIALITY
AGREEMENT
June __,
2009
[Proposed
3rd
Party Lender]
Ladies
and Gentlemen:
In
connection with the proposed making of a loan (the “Loan”) from you to
SBR-Fortune Associates, LLLP, a Florida limited liability limited partnership
(the “Partnership”), the
Partnership proposes to furnish you with certain documents and information
related to the Partnership and its affiliates (herein collectively referred to
as the “Confidential
Information”). Confidential Information includes not only
written information but also information transferred orally, visually,
electronically or by any other means. The fact that such information
has been delivered to you, that the making of a Loan to the Partnership is under
consideration, that discussions or negotiations have occurred or are occurring
regarding the Loan, and the status of any such discussions or negotiations, are
considered Confidential Information for purposes of this confidentiality
agreement (this "Agreement"). In
consideration of our furnishing you with the Confidential Information, and as a
condition to such disclosure, you agree as follows:
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1.
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The
Confidential Information will be used by you solely for the purpose of
your evaluation of the desirability of making the Loan and for no other
purpose.
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2.
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You
shall keep all Confidential Information confidential and shall not,
without the prior written consent of the Partnership, disclose it to
anyone except to a limited group of your own employees, agents and
advisors (collectively, “Representatives”)
who are actually involved in evaluating, and need to know, such
Confidential Information to perform the evaluation referred to above, each
of whom must be advised of the confidential nature of the Confidential
Information and of the terms of this Agreement and must agree to abide by
such terms. You shall be responsible for any breach of this
Agreement by any of your
Representatives.
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3.
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Upon
any termination of your evaluation of the Loan or upon written notice from
the Partnership to you (i) you will return to the Partnership or destroy
the Confidential Information which is in tangible form, including any
copies which you may have made, and you will destroy all abstracts,
summaries thereof or references thereto in your documents, and you will
delete all electronic or computerized information, and notify us that you
have done so, and (ii) you and your Representatives will continue to
maintain the confidentiality of all Confidential Information, and neither
you nor your Representatives will use any of the Confidential Information
with respect to, or in furtherance of, your business, any of their
respective businesses, or in the business of anyone else, whether or not
in competition with the Partnership, or for any other purpose
whatsoever.
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4.
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Confidential
Information includes all analyses, compilations, forecasts, reports,
investigations, studies or other documents prepared by us, our
representatives, you or your Representatives in connection with your
evaluation of the Loan. Confidential Information does not
include any information which was publicly available prior to your receipt
of such information or thereafter became publicly available (other than as
a result of disclosure by you or any of your
Representatives). Information shall be deemed “publicly
available” if it becomes a matter of public knowledge or is contained in
materials available to the public or is obtained from any source other
than the Partnership (or their respective partners, officers, directors,
equity holders, employees, representatives, agents or outside advisors),
provided that such source is not prohibited from disclosing such
information by a legal, contractual or fiduciary obligation to the
Partnership and did not obtain the information from an entity or person
prohibited from disclosing such information by a legal, contractual or
fiduciary obligation to the
Company.
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5.
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You
understand that we have endeavored to include in the Confidential
Information those materials which we believe to be reliable and relevant
for the purpose of your evaluation, but you acknowledge that neither the
Partnership nor any of their respective partners, officers, directors,
equity holders, employees, representatives, agents or outside advisors
make any representation or warranty as to the accuracy or completeness of
the Confidential Information and you agree that such persons shall have no
liability to you or any of your Representatives resulting from any use of
the Confidential Information.
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6.
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In
the event that you or any of your Representatives is requested in any
proceeding to disclose any of the Confidential Information, you will
provide the Partnership with prompt prior notice so that the Partnership
may seek a protective order or other appropriate remedy and/or waive
compliance with the provisions of this Agreement. In the event
that the Partnership is unable to obtain such protective order or other
appropriate remedy, you will furnish only that portion of the Confidential
Information which you are advised by a written opinion of counsel is
legally required, you will give the Partnership written notice of the
information to be disclosed as far in advance as practicable and you will
cooperate with the Partnership to obtain a protective order or other
reliable assurance that confidential treatment will be accorded the
Confidential Information so
disclosed.
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7.
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Without
impairing any other provision hereof, you will promptly advise the
Partnership of any prohibited disclosure or other breach of this Agreement
of which you become aware.
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8.
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You
understand and agree that money damages may not be a sufficient remedy for
any breach of this Agreement by you or your Representatives, and that the
Partnership, and their respective partners, officers, directors, equity
holders, employees, representatives, agents and advisors, shall be
entitled to specific performance and/or injunctive relief as a remedy for
any such breach. Such remedy may not be deemed to be the
exclusive remedy for any such breach of this Agreement, but shall be in
addition to all other remedies available at law or in
equity. You further agree that no failure or delay by the
Partnership, or their respective partners, officers, directors, equity
holders, employees, representatives, agents or advisors, in exercising any
right, power or privilege under this Agreement shall operate as a waiver
thereof, nor shall any single or partial exercise thereof preclude any
other or further exercise thereof or the exercise of any right, power or
privilege under this Agreement.
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9.
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Nothing
in this Agreement shall impose any obligation upon you or us to provide
Confidential Information, consummate the Loan or to enter into
any discussions or negotiations with respect
thereto.
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10.
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This
Agreement shall be governed by the laws of the State of Florida (without
giving effect to any conflicts of law
principles).
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11.
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If
any provision of this Agreement is determined to be invalid or
unenforceable for any reason, in whole or in part, the remaining
provisions of this Agreement shall be unaffected thereby and shall remain
in full force and effect to the fullest extent permitted by applicable
law.
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12.
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This
Agreement may be executed in several counterparts and all so executed
shall constitute one agreement binding on all of the parties,
notwithstanding that all of the parties are not signatory to the original
or the same counterpart. In addition, any counterpart signature
page may be executed and
delivered by facsimile or portable document format ("PDF") and any
such faxed or PDF signature pages may be attached to one or more
counterparts of this Agreement, and such faxed or PDF signature(s) shall
have the same force and effect as if original signatures had been executed
and delivered in person.
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If you
are in agreement with the foregoing, please sign and return the enclosed copy of
this letter which will constitute our agreement with respect to the subject
matter of this letter as of the date first above written.
Very
truly yours,
SBR-FORTUNE
ASSOCIATES, LLLP
a Florida
limited liability limited partnership
By:
Name:
Title:
AGREED TO
AND ACCEPTED:
[________________________]
By:
_____________________
Name:
Title:
FINAL
FORM
RELEASE AND INDEMNIFICATION
AGREEMENT
This
Release and Indemnification Agreement ("Agreement") is made
and entered into as of ________, __ 20__ (the "Effective Date") by
and among Fortune KB GP,
LLC, a Florida limited liability company ("Fortune GP"), Fortune KB, LLC, a Florida
limited liability company, ("Fortune LP" and together with Fortune GP, the
"Fortune
Partners") ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, an individual ("Defortuna"), SBR-Fortune Associates, LLLP,
a Florida limited liability limited partnership ("Partnership") and
Sonesta Beach Resort Limited
Partnership, a Delaware limited partnership ("Sonesta Beach" and
together with the Partnership, the "Releasing
Parties").
WHEREAS, Sonesta Beach and the Fortune
Partners are all of the partners in the Partnership, pursuant to the Agreement
of Limited Liability Limited Partnership of SBR-Fortune Associates, LLLP dated
as of January 17, 2005, as amended by that certain First Amendment to Agreement
of Limited Liability Limited Partnership of SBR-Fortune Associates, LLLP dated
as of February 25, 2005, and by that certain Second Amendment to Agreement of
Limited Liability Limited Partnership of SBR-Fortune Associates, LLLP dated as
of March 2, 2005, and by that certain Third Amendment to Agreement of
Limited Liability Limited Partnership of SBR-Fortune Associates, LLLP dated as
of April 15, 2005, and by that certain letter agreement (the “Letter Agreement ”),
among Fortune GP, Fortune LP and Sonesta Beach, dated as of June 18, 2009
(collectively, the "Partnership
Agreement"); (all terms appearing herein in initial capitalized letters
but not otherwise defined herein shall have the meanings ascribed thereto in the
Partnership Agreement);
WHEREAS,
as of the Effective Date, there has been a closing pursuant to which there has
been a (i) sale of the Property (whether effected directly or via a merger or
consolidation of the Partnership), (ii) sale of all or substantially all of the
Partnership Interests (whether effected directly or via merger or consolidation
of the Partnership or via the sale of all or substantially all of the equity
interests in Sonesta Beach, Florida Sonesta Corporation or via the
entering into by the Partnership of a joint venture or similar arrangement
pursuant to which a third party or parties obtain(s) more than a de minimis
direct or indirect interest in the Property), (iii) admission of one (1) or more
persons or entities as partners in the Partnership (or the Partnership closing
on a loan which contains either a conversion feature allowing the holder to
acquire equity in the Partnership or provides for some level of participation by
the lender in the Partnership's revenues, profits or cash flow), or (iv) the
entering into by the Partnership of a joint venture or similar arrangement (any
of the transactions described in (i) through (iv) are referred to as a "Triggering
Transaction");
WHEREAS,
subject to the terms of this Agreement, the Releasing Parties have agreed to
release the Fortune Partners from all of their obligations under the Partnership
Agreement as more particularly described herein, and, to release Defortuna from
all of his individually guaranteed obligations under the Partnership Agreement,
including but not limited to those obligations set forth in Sections 4.4(a)(4),
4.4(c)(3), 7.2 and 8.6(e) of the Partnership Agreement;
WHEREAS,
subject to the terms of this Agreement, the Releasing Parties have agreed that
upon the occurrence of a Triggering Transaction, they shall cause HSBC Realty
Credit Corporation (USA) ("HSBC") to release
Defortuna from any and all liabilities and obligations (the "HSBC Release")
arising under or related to that certain Loan Agreement entered into by and
between HSBC and the Partnership as of April 19, 2005, as amended to the date
hereof (such indebtedness, the "HSBC Indebtedness");
and
NOW
THERFORE, in consideration of the mutual promises and other consideration, the
value of which is hereby acknowledged, it is agreed by and between the parties
as follows:
1. Recitals. The
foregoing preliminary statements are true and correct and incorporated herein by
reference
2. Partnership Agreement
Release. Effective as of the Effective Date, the Releasing
Parties, on their own behalf and on behalf of their Affiliates, hereby
unconditionally and irrevocably release, remise, acquit, waive and discharge the
Fortune Partners and Defortuna of and from any and all actual or potential
rights, damages, demands, liabilities, obligations, actions, causes of action,
suits, losses, costs and expenses, whether direct or indirect, contingent or
consequential, liquidated or unliquidated, known or unknown, suspected or
unsuspected that any of the Releasing Parties might have against the Fortune
Partners and/or Defortuna, of whatever kind or nature, whether in law, equity,
or otherwise, from the beginning of the world to the Effective Date arising out
of, under or attributable to the Partnership Agreement, including but not
limited to those certain obligations set forth in Sections 4.4(a)(4), 4.4(c)(3),
7.2 and 8.6(e) of the Partnership Agreement, but specifically excluding matters
arising out of the gross negligence, willful misconduct or fraud of
the Fortune Partners and/or Defortuna. Effective as of the Effective
Date, the Fortune Partners and Defortuna, on their own behalf and on behalf of
their Affiliates, hereby unconditionally and irrevocably release, remise,
acquit, waive and discharge the Releasing Parties of and from any and all actual
or potential rights, damages, demands, liabilities, obligations, actions, causes
of action, suits, losses, costs and expenses, whether direct or indirect,
contingent or consequential, liquidated or unliquidated, known or unknown,
suspected or unsuspected that any of the Fortune Partners and Defortuna might
have against the Releasing Parties, of whatever kind or nature, whether in law,
equity, or otherwise, from the beginning of the world to the Effective Date
arising out of, under or attributable to the Partnership Agreement, but
specifically excluding matters arising out of the gross
negligence, willful misconduct or fraud of any one or more of the
Releasing Parties.
3. Partnership Agreement
Indemnification. The Releasing Parties jointly and severally
agree to, shall and hereby indemnify and hold harmless the Fortune Partners and
Defortuna, of, from and against any and all liabilities, costs, losses,
expenses, claims or damages of any kind or nature, including, without
limitation, any suits, proceedings, claims or demands (including, but
not limited to, attorneys' fees and costs paid or incurred in connection
therewith at both trial and appellate levels) incurred or arising by reason of
or in connection with any third party claims brought against any of the
Releasing Parties, the Fortune Partners or Defortuna, relating to the
Partnership or the Partnership Agreement. Attached as Exhibit A is a
list of all of the claims for which Fortune GP has received written notice or
has actual knowledge of as of the Effective Date ("Noticed
Claims"). The Fortune Partners and Defortuna each hereby
represent and warrant to the Releasing Parties, that, to the best knowledge of
the Fortune Partners and Defortuna, the schedule of Noticed Claims attached as
Exhibit A hereto is true, accurate and complete.
4. HSBC Indebtedness
Guarantee. As a condition precedent to a closing under any Triggering
Transaction, there shall be an absolute obligation on the part of the
Partnership to obtain the HSBC Release and deliver same to the Fortune Partners
and Defortuna prior to a closing under any such Triggering
Transaction.
5. Intentionally
Omitted.
6. Affiliate. For
purposes of this Agreement, the term "Affiliate" means with
respect to any Person, a Person directly or indirectly controlling or controlled
by or under common control with such Person. "Person" means an
individual, corporation, partnership, business trust, limited liability company,
unincorporated association, joint stock company, trust, joint venture, or other
entity or organization.
7. Representations and
Warranties. Each party hereto hereby represents and warrants
that the individual executing this Agreement on behalf of such party is duly
authorized to execute, deliver and perform this Agreement on behalf of such
party and to bind such party to its agreements herein and that this Agreement is
enforceable against such party in accordance with its terms.
8. Entire Agreement;
Amendments. This Agreement constitutes the entire agreement
between the parties and supersedes all prior agreements, promises and
understandings, whether oral or written regarding the release and
indemnification of the Fortune Partners and Defortuna. This Agreement
shall not be modified, amended, supplemented or revised, except by a written
document signed by all parties.
9. Governing
Law/Venue. This Agreement shall be governed by and construed
in accordance with the local laws of the State of Florida without reference to
that state's rules regarding choice of law. The exclusive venue for
all actions or disputes relating to this Agreement shall be the state or federal
courts located in Miami-Dade County in the State of Florida, and the Parties
hereby agree not to assert, by way of motion, as a defense, or otherwise in any
such suit, action or proceeding that the suit, action or proceeding is brought
in an inconvenient forum, that the venue of the suit, action or proceeding is
improper or that this Agreement or the subject matter hereof may not be enforced
by such courts.
10. Severability. Any
provision of this Agreement, which is unenforceable in any jurisdiction, shall
be ineffective in such jurisdiction to the extent of such unenforceability
without invalidating the remaining provisions of this Agreement, and any
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
11. No Waiver. 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.
12. Counterparts. This
Agreement may be executed in several counterparts and all so executed shall
constitute one agreement binding on all of the parties, notwithstanding that all
of the parties are not signatory to the original or the same
counterpart. In addition, any counterpart signature page may be
executed and delivered by facsimile or portable document format ("PDF") and any such
faxed or PDF signature pages may be attached to one or more counterparts of this
Agreement, and such faxed or PDF signature(s) shall have the same force and
effect as if original signatures had been executed and delivered in
person.
13. No Construction Against
Draftsmen. The
parties acknowledge that this is a negotiated agreement, and that in no event
shall the terms of this Agreement be construed against any party on the basis
that such party, or its counsel, drafted this Agreement.
[EXECUTIONS
COMMENCE ON FOLLOWING PAGE]
FORTUNE
GP
FORTUNE KB GP,
LLC,
a Florida
limited liability company
By: Fortune
International Management, Inc.,
a Florida corporation, its
Manager
By:
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, President
FORTUNE
LP
FORTUNE KB, LLC,
a Florida
limited liability company
By: Fortune
International Management, Inc.,
a Florida corporation, its
Manager
By:
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, President
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
__________________________
(First
signature page to Release and Indemnification Agreement)
SBR-FORTUNE
ASSOCIATES, LLLP
a Florida
limited liability limited partnership
By:
Name:
Title:
SONESTA BEACH RESORT LIMITED
PARTNERSHIP, a Delaware limited partnership
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By:
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FLORIDA
SONESTA CORPORATION, a Florida
corporation
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By:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Vice President
(Final
signature page to Release and Indemnification Agreement)
Exhibit
A
Noticed
Claims
IN THE
CIRCUIT COURT OF THE 11TH
JUDICIAL CIRCUIT, IN AND FOR MIAMI-DADE COUNTY, FLORIDA GENERAL JURISDICTION
DIVISION CASE NO. 07-15905 CA 31. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and CAROLINA ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇, Plaintiffs, v. VILLAGE OF KEY BISCAYNE, Defendant, and SBR-FORTUNE
ASSOCIATES, LLLP, Intervenor.