MASTER DEVELOPMENT AGREEMENT
THIS MASTER DEVELOPMENT AGREEMENT (the "Agreement") is made and
entered into as of June 5, 1998, between PRIME HOSPITALITY CORP., a Delaware
corporation, having its principal place of business at 700 Route 46 East,
Fairfield, New Jersey 07004 ("Prime"), and HOSPITALITY WORLDWIDE SERVICES, INC.,
a New York corporation, having its principal place of business at 450 Park
Avenue, Suite 2603, New York, New York 10022 ("HWS") (Prime and HWS may
individually be referred to herein as a "Party" or collectively as the
"Parties").
R E C I T A L S :
WHEREAS, the Parties desire to collectively identify, purchase,
acquire, own, hold, plan, design, construct, finance, lease, manage, operate
and/or sell hotel properties under the "AmeriSuites" brand name, pursuant to a
franchise agreement with AmeriSuites Hospitality, Inc. (all such activities
being hereinafter referred to, collectively, as the "Business") through
individual limited liability companies (each a "Company" and together the
"Companies"), formed for the exclusive purpose of developing a single hotel
property (each a "Project") purchased pursuant to the Business; and
WHEREAS, the Parties desire to set forth the terms and conditions of
their agreement to operate the Business, form the Companies, and develop the
Projects, all as more particularly described herein.
NOW, THEREFORE, in consideration of the mutual agreements, promises,
and undertakings hereinafter set forth, the receipt and sufficiency of which are
hereby acknowledged, the Parties hereto hereby agree that the following shall
constitute the Agreement between the Parties:
ARTICLE I
OPERATION OF THE BUSINESS
1.1 HWS BUSINESS PLAN; TRACKING REPORTS.
(a) HWS shall prepare and present to Prime a business plan
specifying the markets and submarkets in which it proposes to conduct the
Business (the "Business Plan"). The initial Business Plan will include the
following regions: (i) the east coast market from Boston south through
Washington, D.C., and (ii) the west coast market from Seattle to San Diego
(collectively, the "Target Market"). The Parties agreed that HWS may explore
other sites outside the Target Market (the "Opportunity"), provided that HWS
submits such Opportunity to Prime for its approval.
(b) HWS shall provide to Prime a monthly tracking report,
containing, with regard to each Project identified, including, without
limitation, those for which a "PAP" (as defined in Section 1.3) has yet to be
prepared and approved and those for which an Operating Agreement (as defined in
Section 1.4) has been executed, the information described on Exhibit 1.1(b)
hereto, specifying HWS' progress in the identification of markets, the progress
of specific Projects and other matters reasonably specified by Prime.
1.2 IDENTIFICATION OF PROJECTS. HWS shall be primarily responsible
for identifying the location of sites within the Target Market for a Project.
Notwithstanding, Prime shall also have the right to identify and present
potential development sites to HWS for its approval as part of the Business.
However, in either case, the Party that identifies a potential development site
must prepare and submit a PAP to the other Party in accordance with Section 1.3
of this Agreement.
1.3 PRELIMINARY APPROVAL PACKAGE ("PAP"); AUTHORIZATION TO PROCEED.
(a) Once a potential site is identified pursuant to Section 1.2, HWS
or Prime, as the case may be, shall prepare a "Preliminary Approval Package" or
"PAP" which shall set forth all of the pertinent information relating to the
subject property, including, without limitation, the information described on
Exhibit 1.3(a)-1 attached hereto, and submit such information to the other Party
for its approval. The receiving Party shall have five (5) days from the date of
receipt of the PAP to either approve or disapprove of the proposed site in
writing. Either Party's failure to respond in writing within the five-day period
shall be deemed as an approval of the proposed site. In the event that Prime
rejects a site proposal, HWS shall then be restricted from developing any
AmeriSuites Competitive Hotel on the site independent of this Agreement. For
purposes of this paragraph, an "AmeriSuites Competitive Hotel" shall be deemed
to mean any mid-to-upper scale suite hotel without food and beverage service
(for purposes of this restriction, a complimentary breakfast bar shall not
constitute food and beverage service), including, without limitation, those
hotels listed on Exhibit 1.3(a)-2 attached hereto, provided, however, Prime may
waive this restriction in writing to allow HWS to develop an AmeriSuites
Competitive Hotel on the site.
(b) Once a PAP is approved, the Parties, in advance of forming the
Company and executing the Operating Agreement (as hereafter defined) for the
Project pursuant to Section 1.4 below, may elect to authorize HWS to initiate
the process of obtaining one or more the contracts, plans and studies described
in Article 3 of the Operating Agreement, by completing and executing the form
attached hereto as Exhibit 1.3(b) (the "Authorization to Proceed"). Upon
execution of the Authorization to Proceed, HWS shall initiate the process of
obtaining the items described thereon in a manner consistent with the applicable
provisions of the Operating Agreement, with the Parties agreeing to share
equally in the costs incurred by HWS in connection therewith. Additionally, as
more particularly set forth in the Operating Agreement and subject to the
limitations set forth therein, upon approval of a PAP for a Project, Prime and
HWS each shall be entitled to reimbursement by the Company for the out-of-pocket
costs incurred by such Party in preparing and/or evaluating the PAP and Project
site generally.
1.4 FORMATION OF COMPANIES. Once a PAP is approved and the Parties
elect to proceed with a Project, a Company shall be formed for the purpose of
purchasing, acquiring, owning, holding, planning, designing, financing,
constructing, leasing, managing, operating and selling such Project. The
operating agreement for each Company shall be substantially in the form of the
base form of operating agreement attached hereto as Exhibit 1.4 and incorporated
herein by this reference (the "Operating Agreement"), which shall define the
rights, obligations and responsibilities of the Company and each of the Parties
with respect to each such Project. Upon execution of an Operating Agreement for
a Project, except as specifically provided otherwise herein, the terms of this
Agreement shall be superseded by the terms of the Operating Agreement (and any
agreements executed in connection therewith) with respect to said Project, and
the terms of the Operating Agreement (and any agreements executed in connection
therewith) thereafter shall govern all aspects of said Project, including,
without limitation, the relationship of the Parties with respect to said
Project. Except as set forth in the Operating Agreement or as otherwise agreed
to by the Parties, no investors or partners other than Prime and HWS shall be
permitted to own any interest, whether beneficial or nominal, in a Company
formed or a Project undertaken pursuant to this Agreement; provided, however, it
is acknowledged and agreed that the foregoing limitation shall not apply to a
five percent (5%) equity interest which was granted by HWS to Hospitality
Investment Counselors, Inc. ("HIC") pursuant to a contractual arrangement
between HIC and HWS in each Project. Consequently, the five percent (5%) equity
interest granted by HWS to HIC shall effectively reduce HWS' percentage
ownership interest in a Company, but shall not in any way dilute Prime's
percentage ownership interest (50%) in a Company.
1.5 CAPITALIZATION OF THE COMPANIES; FINANCING OF PROJECTS.
(a) The mutual goal of the Parties is to develop approximately ten
(10) to twenty (20) Projects pursuant to this Agreement. The total equity
necessary to achieve this goal is estimated to be approximately Sixty Million
Dollars ($60,000,000). In accordance with and subject to the terms of the
Operating Agreement, for each Project approved pursuant to Section 1.3 above,
Prime and HWS shall make equity contributions to the Company on a 50%-50% PRO
RATA pari passu basis, either directly or indirectly, for the purpose of
purchasing, developing and constructing a final Project.
(b) Unless otherwise agreed by the Parties, each Company shall elect
to finance the acquisition, construction and permanent financing of a Project
through the effort of Prime. Upon the execution of this Agreement, Prime shall
attempt or shall continue to attempt to arrange for construction and permanent
financing for the Projects. Prime shall endeavor to negotiate to obtain such
financing from one or more third party institutional lenders on commercially
reasonable terms which will be subject to approval by Prime and HWS. If required
by the lender, Prime and HWS will jointly and severally guarantee completion of
the hotels associated with each Project. Once financing for all or a portion of
the Projects has been arranged by Prime and approved by both parties, Prime and
HWS each agree to pay 50% of all costs and fees payable in connection with said
financing (the "Financing Fees"), as and when such Financing Fees are due and
payable, regardless of whether the specific Projects which will utilize such
financing have been identified. Once the parties have executed an Operating
Agreement for a Project, a pro rata portion of the Financing Fees (the "Project
Financing Fees") will be allocated to such Project and the Company formed for
that Project will reimburse Prime and HWS for the Project Financing Fees in
accordance with the terms of the Operating Agreement.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE PARTIES
2.1 IN GENERAL. As of the date hereof, each of the Parties hereby
makes each of the representations and warranties applicable to such Party as set
forth in Section 2.2 hereof.
2.2 REPRESENTATIONS AND WARRANTIES. Each Party hereby represents and
warrants that:
(a) DUE INCORPORATION OR FORMATION; AUTHORIZATION OF AGREEMENT. It
is duly organized or duly formed, validly existing, and in good standing under
the laws of the jurisdiction of its incorporation or formation and has the
corporate power and authority to own its property and carry on its business as
owned and carried on at the date hereof and as contemplated hereby. Such Party
is duly licensed or qualified to do business and in good standing in each of the
jurisdictions in which the failure to be so licensed or qualified would have a
material adverse effect on its financial condition or its ability to perform its
obligations hereunder. Such Party has the individual or corporate, power and
authority to execute and deliver this Agreement and to perform its obligations
hereunder and, the execution, delivery, and performance of this Agreement has
been duly authorized by all necessary corporate action. This Agreement
constitutes the legal, valid and binding obligation of such Party.
(b) NO CONFLICT WITH RESTRICTIONS; NO DEFAULT. Neither the
execution, delivery, and performance of this Agreement nor the consummation by
such Party of the transactions contemplated hereby (i) will conflict with,
violate, or result in a breach of any of the terms, conditions, or provisions of
any law, regulation, order, writ, injunction, decree, determination, or award of
any court, any governmental department, board, agency, or instrumentality,
domestic or foreign, or any arbitrator, applicable to such Party or any of its
wholly-owned affiliates, (ii) will conflict with, violate, result in a breach
of, or constitute a default under any of the terms, conditions, or provisions of
the articles of incorporation or bylaws of such Party or any of its wholly-owned
affiliates if such Party is a corporation or of any material agreement or
instrument to which such Party or any of its wholly-owned affiliates is a party
or by which such Party or any of its wholly-owned affiliates is or may be bound
or to which any of its material properties or assets is subject, (iii) will
conflict with, violate, result in a breach of, constitute a default under
(whether with notice or lapse of time or both), accelerate or permit the
acceleration of the performance required by, give to others any material
interests or rights, or require any consent, authorization, or approval under
any indenture, mortgage, lease agreement, or instrument to which such Party or
any of its wholly-owned affiliates is a party or by which such Party or any of
its wholly-owned affiliates is or may be bound, or (iv) will result in the
creation or imposition of any lien upon any of the material properties or assets
of such Party or any of its wholly-owned affiliates.
(c) GOVERNMENTAL AUTHORIZATIONS. Any registration, declaration or
filing with or consent, approval, license, permit or other authorization or
order by, any governmental or regulatory authority, domestic or foreign, that is
required in connection with the valid execution,
delivery, acceptance, and performance by such Party under this Agreement or the
consummation by such Party of any transaction contemplated hereby has been
completed, made, or obtained, on or before the effective date of this Agreement.
(d) LITIGATION. There are no actions, suits, proceedings, or
investigations pending or, to the knowledge of such Party or any of its
wholly-owned affiliates, threatened against or affecting such Party or any of
its wholly-owned affiliates or any of their properties, assets, or businesses in
any court or before or by any governmental department, board, agency, or
instrumentality, domestic or foreign, or any arbitrator which could, if
adversely determined (or, in the case of an investigation could lead to any
action, suit, or proceeding, which if adversely determined could) reasonably be
expected to materially impair such Party's ability to perform its obligations
under this Agreement or to have a material adverse effect on the consolidated
financial condition of such Party; and such Party or any of its wholly-owned
affiliates has not received any currently effective notice of any default, and
such Party or any of its wholly-owned affiliates is not in default, under any
applicable order, writ, injunction, decree, permit, determination, or award of
any court, any governmental department, board, agency, or instrumentality,
domestic or foreign, or any arbitrator which could reasonably be expected to
materially impair such Party's ability to perform its obligations under this
Agreement or to have a material adverse effect on the consolidated financial
condition of such Party.
(e) INVESTIGATION. Each Party is entering into this Agreement based
upon its own investigation, and the exercise by such Party of its rights and the
performance of its obligations under this Agreement will be based upon its own
investigation, analysis, and expertise, and not in reliance on any
representation or promise of the other Party which is not contained in this
Agreement.
(f) NO BROKERS. No brokers have been involved in either the
consummation of this Agreement or any Company formed hereunder and no
commissions, finder's fees or other compensation are due to any brokers or
agents with regard to this Agreement or any Company to be formed hereunder. The
foregoing representation does not extend to any brokers which may be involved
with, or commissions which may be payable in connection with, the purchase of
any real property for a Project.
ARTICLE III
MUTUAL COVENANTS OF THE PARTIES
3.1 MUTUAL EFFORTS. The Parties agree to endeavor to purchase,
develop, own, operate and sell each Project to achieve the purpose of this
Agreement.
3.2 COMMUNICATION. Both Parties commit to communicate regularly with
one another through their respective development representatives in a particular
market and inform one another of any potential conflicts which would affect this
Agreement or any other related agreements.
3.3 INDEPENDENT IDENTIFICATION AND DEVELOPMENT. Except as otherwise
stated herein, each of the Parties, and their affiliates, shall be free to
identify, purchase and develop sites independent of this Agreement and to
receive the income and benefits thereof (and no other Party shall have any
interest therein by reason of this Agreement). HWS specifically acknowledges
Prime's continuing right to develop sites independently and through alliances
with other third parties, and to grant other franchise rights, in all markets,
including, without limitation, those markets and sub-markets targeted by HWS.
3.4 NO JOINT VENTURE OR PARTNERSHIP CREATED HEREBY. By entering into
this Agreement, the Parties are not creating a joint venture or partnership and
are not authorizing the other to bind either of them in any way not expressly
set forth herein.
3.5 COSTS. Except as expressly provided otherwise herein, in the
Operating Agreement, or in any other agreements executed by the Parties hereto,
each Party shall bear solely the costs incurred by such Party in connection with
this Agreement.
ARTICLE IV
NONDISCLOSURE OF INFORMATION
4.1 CONFIDENTIALITY. All disclosures of trade secrets, know-how,
financial information, or other confidential information made to any Party or
made by any Party under or in connection with this Agreement, shall be received
and maintained in confidence by the recipient during the term hereof and for
three (3) years after termination of this Agreement and each Party shall treat
all such trade secrets, know-how, financial information or other confidential
information as confidential except:
(a) as to the persons directly responsible for the
performance of the obligations of this Agreement and for
the effective operation of the Business;
(b) as to the professional advisers of the Parties and the
Companies;
(c) as to such information as is required by law to be
disclosed by the Parties or the Companies; and
(d) as to such information as is or may fall within the
public domain otherwise than in violation of the
provisions of this Article.
4.2 DUTY OF CARE. Each Party shall endeavor to assume that all
managers, officers and employees of the Companies, to whom confidential
information is disclosed, take all proper precautions to prevent the
unauthorized disclosure and use of the confidential information referenced in
this Article.
ARTICLE V
TERMINATION AND DISSOLUTION
5.1 RIGHT TO TERMINATE. Notwithstanding any other provision of this
Agreement to the contrary, Prime or HWS may terminate this Agreement (the
"Termination Option"). The Termination Option may be exercised by either Prime
or HWS at any time by giving ninety (90) days' written notice to the other Party
of its intention to terminate. No Party shall be in default of this Agreement by
virtue of its exercise of the Termination Option. Further, the Parties shall
thereafter be released from all obligations and restrictions under this
Agreement, except as specifically set forth herein. The exercise of the
Termination Option by any Party shall not affect the rights, responsibilities
and obligations of the Parties under any previously executed Operating Agreement
or contract to purchase land or any liabilities of the Parties arising under
this Agreement prior to the date of exercise of the Termination Option.
ARTICLE VI
DISPUTE RESOLUTION
6.1 ARBITRATION. Any dispute, controversy or claim of whatever
nature (except an interlocutory hearing for an action for a temporary
restraining order, preliminary injunction or similar equitable relief) asserted
by any Party against another Party arising out of or relating to this Agreement
or the breach hereof, shall be settled by arbitration if requested by any Party
pursuant to Section 6.2. The arbitration shall be conducted by one arbitrator,
who shall be appointed pursuant to the Commercial Arbitration Rules of the
American Arbitration Association ("AAA"). The arbitration shall be held in New
York, New York, and shall be conducted in accordance with the Commercial
Arbitration Rules of the AAA, except that the rules set forth in this Article
shall govern such arbitration to the extent that they conflict with the rules of
the AAA. Notwithstanding anything herein which may be to the contrary, upon the
execution of an Operating Agreement for a Project, any disputes arising in
connection with said Project will be governed solely by the terms of the
Operating Agreement (and by any other agreements executed in connection
therewith).
6.2 NOTICE. Upon written notice by a Party to another Party of a
request by arbitration hereunder, the Parties shall use their best efforts to
cause the arbitration to be conducted in an expeditious manner with such
arbitration to be completed within sixty (60) days after selection of an
arbitrator. In the arbitration, New York law shall govern except to the extent
those laws conflict with the Commercial Arbitration Rules of the AAA and the
provisions of this Article. There shall be no discovery except as the arbitrator
shall permit following determination by the arbitrator that the Party seeking
such discovery has a substantial demonstrable need. All other procedural matters
shall be within the discretion of the arbitrator. In the event of a Party fails
to comply with the procedures in any arbitration in any manner determined by the
arbitrator, the arbitrator shall fix a reasonable period of time for compliance
and, if the Party fails to comply within such period, a remedy deemed just by
the arbitrator including without limitation, an award of default, may be
imposed.
6.3 BINDING NATURE. The determination and award of the arbitrator
shall be final and binding on the Parties. Judgment upon the award rendered by
the arbitrator may be entered in any court of competent jurisdiction thereof.
ARTICLE VII
MISCELLANEOUS
7.1 AMENDMENTS. Amendments to this Agreement may only be made by the
unanimous written consent of all of the Parties hereto.
7.2 NOTICES. All notices and other communications required or
permitted to be given or made under this Agreement shall be given or made in
writing and shall be effective upon receipt if hand delivered or sent by
telecopy or similar electronic means or one (1) business day following deposit
with any nationally recognized overnight delivery service. Such notices shall be
delivered by hand delivery, by telecopy, or similar electronic means, or by
nationally recognized overnight courier providing next business day service,
fees prepaid, addressed as follows:
If to HWS: Hospitality Worldwide Services, Inc.
450 Park Avenue, Suite 2603
New York, New York 10022
ATTN: Mr. Cory Rapkin
With a copy to: c/o HWS Realty Estate Advisory Group, Inc.
1700 Broadway, Suite 1400
Denver, Colorado 80290
ATTN: Mr. Geoff Davis
With a copy to: c/o HWS Realty Estate Advisory Group, Inc.
1281 East Main Street
Stamford, Connecticut 06902
ATTN: Thomas Prins
With a copy to: c/o HWS Real Estate Advisory Group, Inc.
225 W. Washington Street, Suite 2200
Chicago, Illinois 60606
ATTN: Mr. Scott Kaniewski
With a copy to: Hospitality Development Services Corp.
711 Third Avenue, 14th Floor
New York, New York 10017
ATTN: Adrian Werner
With a copy to: Varner, Stephens, Humphries & White, LLP
3350 Cumberland Circle
Suite 1700 Riverwood
Atlanta, Georgia 30339
ATTN: Louis C. Schwartz, Esq.
If to Prime: Prime Hospitality Corp.
700 Route 46 East
Fairfield, New Jersey 07004
ATTN: Mr. David A. Simon
With a copy to: Prime Hospitality Corp.
700 Route 46 East
Fairfield, New Jersey 07004
ATTN: Mr. Ethan P. Kramer
With a copy to: Prime Hospitality Corp.
700 Route 46 East
Fairfield, New Jersey 07004
ATTN: Mr. Stephen Siegel
With a copy to: Prime Hospitality Corp.
700 Route 46 East
Fairfield, New Jersey 07004
ATTN: Kathleen T. Kneis, Esq.
Any Party may change its address for the purpose of this Section 7
by notice to the other given in the manner set forth above.
7.3 GOVERNING LAW. This Agreement shall be governed by and
interpreted in accordance with the laws of the State of New York in a like
manner as an agreement made and wholly to be performed in the State of New York.
7.4 VENUE. Each of the Parties consents to the jurisdiction of any
court in New York County, New York, for any action arising out of matters
related to this Agreement. Each of the Parties waives the right to commence an
action in connection with this Agreement in any court outside of such County.
7.5 ATTORNEY FEES. If any Party obtains an award in arbitration
against any other Party by reason of the breach of this Agreement or the failure
to comply with the terms hereof, reasonable attorneys' fees and costs as fixed
by the arbitrator shall be included in such award.
7.6 HEADINGS. The Article and Section headings of this Agreement are
for convenience only, do not form a part of this Agreement, and shall not in any
way affect the interpretation hereof.
7.7 CAPITALIZED TERMS. Any capitalized terms not defined herein
shall have the meaning ascribed to such term in the Operating Agreement.
7.8 EXTENSION NOT A WAIVER. No delay or omission in the exercise of
any power, remedy or right herein provided or otherwise available to a Party
shall impair or affect the right of such Party thereafter to exercise the same.
Any extension of time or other indulgence granted to a Party hereunder shall not
otherwise alter or affect any power, remedy or right of any other Party, or the
obligations of the Party to whom such extension or indulgence is granted.
7.9 CREDITORS NOT BENEFITED. Nothing contained in this Agreement is
intended or shall be deemed to benefit any creditor of the Parties or any other
third party.
7.10 PUBLICITY. No Party shall issue any press release or otherwise
publicize or disclose the terms of this Agreement or the terms of the Parties'
acquisition of the interests in any Company, without the consent of the other
Parties, except as such disclosure may be made in the course of normal reporting
practices by a Party to its partners, shareholders, consultants or members or as
otherwise required by law.
7.11 CONSTRUCTION AND AMENDMENT. No oral explanation of or oral
information relating to this Agreement offered by either party hereto shall
alter the meaning or interpretation of this Agreement.
7.12 FURTHER ACTION. Each Party agrees to perform all further acts
and execute, acknowledge, and deliver any documents which may be reasonably
necessary, appropriate, or desirable to carry out the provisions of this
Agreement.
7.13 VARIATION OF PRONOUNS. All pronouns and any variations thereof
shall be deemed to refer to masculine, feminine, or neuter, singular or plural,
as the identity of the person or persons may require.
7.14 SUCCESSORS AND ASSIGNS. Subject to the restrictions on
transferability set forth in the Operating Agreement, this Agreement shall bind
and inure to the benefit of the parties hereto and their respective successors.
This Agreement may not be assigned by either Party to this Agreement without the
prior written consent of the other Party, which consent may be withheld in such
Party's sole and absolute discretion.
7.15 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original and all of which
shall constitute one and the same agreement.
7.16 AMBIGUITIES. All of the parties to this Agreement have
participated in the negotiation and drafting hereof. Accordingly, it is
understood and agreed that the general rule that ambiguities are to be construed
against the drafter shall not apply to this Agreement. In the event that any
language of this Agreement is found to be ambiguous, each Party shall have an
opportunity, in any proceeding, to present evidence as to the actual intent of
the parties with respect to any such ambiguous language at the time the
Agreement was executed.
7.17 ENTIRE AGREEMENT. The terms and conditions contained herein,
including those contained in the exhibits attached hereto, constitute the entire
agreement between the Parties concerning the subject matter hereof, and shall
supersede all previous communications, either oral or written, between the
parties hereto, and no agreement or understanding varying or extending this
Agreement shall be binding upon any Party unless in writing, signed by a duly
authorized officer or representative of each Party.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be
executed by their duly authorized representatives as of the day and year first
set forth above.
PRIME HOSPITALITY CORP., a Delaware
corporation
By:/s/ David A. Simon
-----------------------------------------
Title: President
HOSPITALITY WORLDWIDE SERVICES, INC.,
a New York corporation
By: /s/ Cory Rapkin
-----------------------------------------
Title: Vice President