POSADAS DE SAN JUAN ASSOCIATES
JOINT VENTURE AGREEMENT
Agreement made the 27th day of July, 1984 by and among ESJ HOTEL
CORPORATION, a Delaware corporation with offices at 767 Fifth Avenue, New York,
New York 10153 ("ESJ"), GREAT AMERICAN INDUSTRIES, INC., a Delaware corporation
with offices at 300 Plaza Drive, Binghampton, New York 13903 ("GAI"), IHS
ASSOCIATES, LTD., a Delaware corporation with offices at 100 West Tenth Street,
Wilmington, Delaware 19801, ("HIS") and MILTK INC., a Delaware corporation with
offices at 300 Plaza Drive, Binghampton, New York 13903 ("MILTK") (ESJ, GAI, IHS
and MILTK are hereinafter sometimes referred to collectively as the "Venturers"
and separately as a "Venturer").
W I T N E S S E T H:
WHEREAS, the Venturers desire to associate themselves and to form a
joint venture (the "Venture") for the purpose of acquiring, owning and operating
the facility now known as the El San Juan Hotel and Casino (the "Hotel") in San
Juan, Puerto Rico; and
WHEREAS, the parties desire their rights and obligations in connection
with the Venture and their participation in any profits or liabilities derived
therefrom be defined by an agreement in writing;
NOW, THEREFORE, the parties hereto agree as follows:
1. The Venture.
1.1. The Venturers hereby form the Venture under the general
partnership law of the State of New York for the purpose of engaging in the
business of acquiring, owning and operating the Hotel, and performing any and
all acts and services necessary or desirable in connection with the foregoing.
1.2. The name of the Venture shall be POSADAS DE SAN JUAN
ASSOCIATES. Promptly after the execution hereof, the Venturers shall execute and
cause to be filed a certificate of doing business under an assumed name as
required by Section 130 of the New York General Business Law and such other
documents as may be required by law to authorize the Venture to conduct its
business, including compliance with the applicable laws of the Commonwealth of
Puerto Rico.
1.3. The principal office of the Venture shall be located in such
place as the Venturers may agree.
1.4. The term of the Venture shall commence as of the date of this
Agreement and continue for 40 years from the date hereof, unless sooner
terminated as provided in Article 9 hereof.
1.5. The relationship between the Venturers shall be limited to the
performance of the specific purposes and objectives of the Venture as set forth
in this Agreement. Nothing herein shall be construed to create a general purpose
partnership between the Venturers; to authorize any Venturer to act as general
agent for any other; or to confer or grant to any Venturer any proprietary
interest in, or to subject any Venturer to any liability for or in respect of,
the business, assets, profits or obligations of any other Venturer, except only
to the extent contemplated by this Agreement.
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2. Management of the Venture.
2.1. The business and affairs of the Venture shall be supervised by
a Venturers Committee (the "Committee"). The Committee shall consist of four
persons, two of whom shall be designated in writing by ESJ, and one of whom
shall be designated in writing by GAI, and one of whom shall be designated in
writing by IHS. The initial designees of the Venturers to serve on the Committee
shall be Louis J. Nicastro and Norman J. Menell for ESJ, Burton I. Koffman for
GAI and Hugh A. Andrews for IHS. Any Venturer may change its Committee designees
by notice given to the other Venturers not less than ten days prior to the
effective date of such change.
2.2. The Committee shall meet at times and places fixed by the
Committee as necessary for conducting the business of the Venture and mutually
convenient to the members of the Committee upon at least two days' notice. At
any meeting, a majority of the full number of members of the Committee shall be
required for any and all action to be taken by the Committee.
2.3. The Committee shall have authority to appoint and employ such
managers, employees, consultants and agents for the Venture as it shall deem
appropriate and may delegate to them any and all of its power and authority
hereunder. Concurrently herewith, Norman J. Menell has been appointed the
Manager of the Venture and Hugh A. Andrews has been appointed the Assistant
Manager of the Venture. Williams Hospitality Management Corporation, a Delaware
corporation ("Hospitality"), will be appointed to perform technical assistance
services in connection with the renovation and refurbishment of the Hotel and
will be appointed the agent of the Venture
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for the supervision, direction and control of the operation and management of
the Hotel in the Venture's behalf commencing on the date the Hotel opens for
business pursuant to the terms of a Management Letter Agreement between the
Venture and Hospitality in substantially the form presented to the Venturers.
3. Capital Contributions and Liabilities.
3.1. Initial capital contributions to the Venture shall be made as
follows: On the date hereof, ESJ shall contribute $50,000 to the capitol of the
Venture, GAI shall contribute $30,000 to the capital of the Venture and IHS
shall contribute $10,000 to the capital of the Venture, MILTK shall contribute
$10,000 to the capital of the Venture.
3.2. Each Venturer shall, upon written request of the Committee from
time to time, make additional capital contributions to the Venture up to the
following maximum amounts: ESJ - $3,450,000; GAI - $2,070,000; MILTK - $690,000;
and IHS - $690,000. Such additional capital contributions shall be made within
two days after receipt of such written request.
3.3. No interest shall be payable to the Venturers by the Venture on
such capital contributions.
3.4. All liabilities of the Venture in excess of the assets of the
Venture shall be borne by each of the Venturers in proportion to their capital
accounts.
4. Books and Records, Reports, etc.
4.1. The Venture shall maintain at its principal office full and
proper records and books of account based upon generally accepted accounting
principles consistently applied and the Uniform System of Accounts for Hotels,
copyrighted by the
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Hotel Association for New York City, 7th edition of 1977, as amended from time
to time. The fiscal year for the Venture shall be the twelve months ended
September 30 or such other fiscal year as shall be mutually determined by the
Venturers and permitted by law.
4.2. Each of the Venturers shall have the right at all reasonable
times to have any and all of the Venturer's records and books of account
inspected at its own expense by its own employees, attorneys or accountants.
4.3. Ernst & Whinney or such other firm as may hereafter audit the
financial statements of Williams Electronics, Inc., a Delaware corporation,
shall review or audit generally the Venture's financial statements and perform
such accounting services necessary in the day-to-day conduct of the operations
of the Venture (such firm being hereinafter referred to as the "General
Accountants"). ESJ is hereby designated as the Tax Matter Partner within the
meaning of Section 6231(a)(7) of the Internal Revenue Code of 1954, as amended.
4.4. The Venture shall maintain such bank accounts as shall be
approved by the Committee.
5. Profits/Losses and Distributions
5.1. Net profits and losses of the Venture shall be determined
annually by the General Accountants in accordance with generally accepted
accounting principles consistently applied. The General Accountants shall
prepare the income tax returns for the Venture as soon as possible after the end
of each of the Venture's fiscal years, and shall supply such tax returns to each
of the Venturers for their review and reasonable
5
approval prior to the filing thereof with the appropriate governmental agencies.
5.2. The net profits and losses of the Venture, together with any
investment or other tax credits available, shall be allocated to the Venturers
as follows: 50% to ESQ; 30% to GAI; 10% to MILTK; and 10% to IHS (the "Venturers
Percentage Interests").
5.3. Separate capital accounts shall be maintained for each
Venturer. All net profits and losses of the Venture, and all capital
contributions by, and all distributions to, the Venturers shall be credited or
charged, as the case may be, to the separate capital accounts of the Venturers
as the General Accountants may deem appropriate in accordance with the
provisions of this Agreement and applicable law and practice.
5.4. The Venture shall distribute to each Venturer such amounts at
such times as shall be determined by the Committee; provided, however, such
distributions shall be pro rata to the Venturers in proportion to the Venturers
Percentage Interests.
6. Restriction on Dispositions of Interests in the Venture.
For a period of five years from the date hereof, no Venturer may
sell, assign, transfer, pledge, encumber, hypothecate, mortgage or in any manner
dispose of all or any portion of its interest in the Venture without the prior
written consent of all other Venturers, and any attempted sale, assignment,
transfer, pledge, encumbrance, hypothecation, mortgage or other dispositions by
a Venturer without such consent shall be null and void.
7. Representations and Warranties.
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Each Venturer represents and warrants to each other Venturer that:
7.1. Such Venturer is a corporation duly organized, validly existing
and in good standing under the laws of the State of its incorporation.
7.2. The execution, delivery and performance by such Venturer of
this Agreement have been duly authorized by all necessary corporate action on
the part of such Venturer, and no further action or approval is required in
order to constitute this Agreement as the valid and binding obligation of such
Venturer enforceable in accordance with its terms.
7.3. This Agreement constitutes the legal, valid and binding
obligation of such Venturer enforceable against such Venturer in accordance with
its terms, except as enforcement may be limited by bankruptcy, insolvency and
other similar laws affecting the enforcement of creditors' rights generally.
7.4. Such Venturer is acquiring its interest in the Venture for its
own account and without a view to distribution other than in accordance with the
provisions of this Agreement and applicable securities laws.
8. Puerto Rico Gaming Authority Approvals; Tax Exemptions.
Each party hereto shall use its best efforts to obtain and
thereafter maintain all consents, approvals and authorizations which must be
obtained and maintained by such party in order to consummate the transactions
contemplated hereby, including all consents, approvals and authorizations from
the Treasury of the Commonwealth of Puerto Rico and any other governmental body
or agency having authority over licensing of gambling in the Commonwealth of
Puerto Rico and any tax exemption granted to the
7
Venture by the Commonwealth of Puerto Rico; provided, however, that nothing
contained in this Article 8 shall require any party to consent to modify any
provisions of this Agreement or any other document referred to herein in any
manner materially adverse to its best interests.
9. Termination and Liquidation.
9.1. The Venture may be terminated at any time by mutual agreement
of the Venturers.
9.2. Upon termination of the Venture for any reason, the Venture
shall continue its business solely for the purpose of winding up its affairs and
shall be liquidated as rapidly as business judgment permits. All decisions with
respect to disposition of Venture assets, collection or compromise of any
amounts receivable and payment or compromise of any amounts payable by the
Venture shall be made by the Committee. The assets of the Venture shall be
applied for the following purposes in the following order:
9.2.1. First, to the payment or provision for payment of all just
debts and obligations of the Venture to creditors other than the Venturers, and
for the expenses of winding up the affairs of the Venture.
9.2.2. Next, to the payment of all amounts due from the Venture
to the Venturers other than in respect of the Venturers' capital accounts.
9.2.3. All remaining assets of the Venture shall be distributed
pro rata to the Venturers in accordance with the Venturers Percentage Interests.
10. Miscellaneous.
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10.1. All of the representations, warranties, covenants and
agreements made by the parties to this Agreement shall survive for the full
period of any applicable statute of limitations.
10.2. This Agreement constitutes the entire agreement of the parties
with respect to the subject matter hereof. No change, modification, amendment,
addition or termination of this Agreement or any part thereof shall be valid
unless in writing and signed by or on behalf of the party to be charged
therewith.
10.3. This Agreement may be executed in one or more counterparts,
and shall become effective when one or more counterparts has been signed by each
of the parties.
10.4. Any and all notices or other communications or deliveries
required or permitted to be given pursuant to any of the provisions of this
Agreement shall be deemed to have been duly given for all purposes if sent by
certified or registered mail, return receipt requested and postage prepaid, hand
delivered or sent by telegraph or telex to the parties hereto at the address
specified at the head hereof or at such other address as any party may specify
by notice given to the other parties in accordance with this Section 10.4. The
date of giving of any such notice shall be the date of receipt.
10.5. No waiver of the provisions hereof shall be effective unless
in writing and signed by the party to be charged with such waiver. No waiver
shall be deemed a continuing waiver or waiver in respect of any subsequent
breach or default, either of similar or different nature, unless expressly so
stated in writing.
10.6. Should any clause, section or part of this Agreement be held
or
9
declared to be void or illegal for any reason, all other clauses, sections or
parts of this Agreement which can be effected without such illegal clause,
section or part shall nevertheless continue in full force and effect.
10.7. This Agreement shall be governed, interpreted and construed in
accordance with the laws of the State of New York.
10.8. Each of the parties hereto consents to the jurisdiction of the
Courts of the State of New York and the United States District Court for the
Southern District of New York with respect to any matter arising with respect to
this Agreement, shall subject itself to the jurisdiction of such courts and
agrees that service of process upon it may be made in any manner permitted by
the laws of the State of New York. Without limiting the generality of the
foregoing, service of process will be deemed sufficient if sent by registered or
certified mail to a party hereto at the address for such party set forth in
Section 10.4 hereof. In addition, the parties hereto agree that the venue for
any state court action shall be New York County.
10.9. This Agreement and the various rights and obligations arising
hereunder shall inure to the benefit of and be binding upon the parties hereto
and their respective successors and assigns. This Agreement shall not be
assignable by any of the parties hereto without the prior written consent of all
other parties hereto and any attempt to assign this Agreement shall be void and
of no effect.
10.10. The headings or captions under sections of this Agreement are
for convenience and reference only and do not in any way modify, interpret or
construe the intent of the parties or effect any of the provisions of this
Agreement.
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IN WITNESS WHEREOF, this Agreement has been made and executed as of the
date and year first above written.
ESJ HOTEL CORPORATION
By: /s/
-------------------------------
[SEAL] Norman J. Menell, President
GREAT AMERICAN INDUSTRIES, INC.
[SEAL] By: /s/
-------------------------------
Burton I. Koffman, President
IHS ASSOCIATES, LTD.
[SEAL] By: /s/
-------------------------------
Hugh A. Andrews, Chairman of
the Board and President
MILTK INC.
By: /s/
-------------------------------
Milton Koffman, President
11
POSADAS DE SAN JUAN ASSOCIATES
AMENDMENT OF JOINT VENTURE AGREEMENT
Agreement made as of the 15th day of October, 1984 by and among ESJ
HOTEL CORPORATION, a Delaware corporation with offices at 767 Fifth Avenue, New
York, New York 10153 ("ESJ"), GREAT AMERICAN INDUSTRIES, INC., a Delaware
corporation with offices at 300 Plaza Drive, Binghamton, New York 13902 ("Great
American"), IHS ASSOCIATES, LTD., a Delaware corporation with offices at 1209
Orange Street, Wilmington, Delaware 19801 ("IHS"), MILTK, INC., a Delaware
corporation with offices at 300 Plaza Drive, Binghamton, New York 13902
("MILTK"), MIDWEST PROPERTY CORP., a New York corporation with offices at 300
Plaza Drive, Binghamton, New York 13902 ("Midwest"), and MILTK ASSOCIATES, a New
York limited partnership with offices at 300 Plaza Drive, Binghamton, New York
13902 ("Associates").
W I T N E S S E T H :
WHEREAS, on July 27, 1984, ESJ, IHS, MILTK and Great American executed
a joint venture agreement (the "Agreement") organizing and creating POSADAS DE
SAN JUAN ASSOCIATES as a joint venture pursuant to the Partnership Law of the
State of New York (the "Venture");
WHEREAS, on the date hereof, Great American (a) transferred a
Twenty-five percent (25%) interest in the Venture to Midwest, an affiliate of
Burton and Richard Koffman, (b) transferred a Five percent (5%) interest in the
Venture to Associates, an affiliate of MILTK, and (c) withdrew as a venturer in
the Venture;
WHEREAS, on the date hereof, MILTK transferred all of its interest in
the Venture to Associates and withdrew as a venturer in the Venture;
WHEREAS, ESJ and IHS desire to continue the existence of the Venture
with Midwest and Associates as venturers; and
WHEREAS, the parties desire that the Agreement be amended to replace
Great American as a venturer in the Venture by Midwest and to replace MILTK as a
venturer in the Venture by Associates;
NOW, THEREFORE, the parties hereto agree as follows:
1. From and after the date hereof, Midwest shall be substituted for
Great American for all purposes as a venturer in the Venture and all references
in the Agreement to GAI shall be deemed to refer to Midwest, Midwest shall be
deemed included within the definition of Venturer for purposes of the Agreement,
and Midwest shall have all of the rights and obligations which Great American
would have had under the Agreement as an owner of an interest in the Venture.
2. From and after the date hereof, Associates shall be substituted for
MILTK for all purposes as a venturer in the Venture and all references in the
Agreement to MILTK shall be deemed to refer to Associates, Associates shall be
deemed included within the definition of Venturer for purposes of the Agreement,
and Associates shall have all of the rights and obligations which MILTK would
have had under the Agreement as an owner of an interest in the Venture.
3. Section 5.2 of the Agreement shall be deleted in its entirety and be
of no further force and effect and the following shall be substituted therefor:
2
"5.2 The net profits and losses of the Venture, together with any
investment or other tax credits available, shall be allocated to the
Venturers as follows: 50% to ESJ; 25% to Midwest; 15% to Associates;
and 10% to IHS (the "Venturers Percentage Interests")."
4. The Venture shall continue its existence and business uninterrupted
with Midwest and Associates following the execution of this Amendment on the
terms stated herein and in the Agreement, as amended.
IN WITNESS WHEREOF, this Agreement has been made and executed as of the
date and year first above written.
ESJ HOTEL CORPORATION
By: /s/
---------------------------------
[SEAL] Norman J. Menell, President
GREAT AMERICAN INDUSTRIES, INC.
By: /s/
---------------------------------
[SEAL] Burton I. Koffman, President
IHS ASSOCIATES, LTD.
By: /s/
---------------------------------
[SEAL] Hugh A. Andrews, Chairman of
the Board and President
MILTK, INC.
By: /s/
---------------------------------
[SEAL] Milton Koffman, President
3
MIDWEST PROPERTY CORP.
By: /s/
---------------------------------
[SEAL] Burton I. Koffman, President
MILTK ASSOCIATES
[SEAL] By: MILTK, INC., its general partner
By: /s/
---------------------------------
Milton Koffman, President
4
POSADAS DE SAN JUAN ASSOCIATES
SECOND AMENDMENT OF JOINT VENTURE AGREEMENT
Agreement made as of the 30th day of September, 1986 to become
effective as of the close of business on the 30th day of September, 1986 by and
among ESJ HOTEL CORPORATION, a Delaware corporation with offices at 767 Fifth
Avenue, New York, New York 10153 ("ESJ"), IHS ASSOCIATES, LTD., a Delaware
corporation with offices at 1209 Orange Street, Wilmington, Delaware 19801
("IHS"), MIDWEST PROPERTY CORP., a New York corporation with offices at 300
Plaza Drive, Binghamton, New York 13902 ("Midwest"), MILTK ASSOCIATES, a New
York limited partnership with offices at 300 Plaza Drive, Binghamton, New York
13902 ("Associates") and MILTK, INC., a Delaware corporation with offices at 300
Plaza Drive, Binghamton, New York 13902 ("MILTK").
W I T N E S S E T H :
WHEREAS, on July 27, 1984, ESJ, IHS, MILTK, and Great American
Industries, Inc., a Delaware corporation ("Great American"), executed a joint
venture agreement (as heretofore amended, the "Agreement") organizing and
creating POSADAS DE SAN JUAN ASSOCIATES as a joint venture pursuant to the
Partnership Law of the State of New York (the "Venture");
WHEREAS, on October 15, 1984: (a) Great American (i) transferred a
Twenty- five percent (25%) interest in the Venture to Midwest, an affiliate of
Burton and Richard Koffman, (ii) transferred a Five percent (5%) interest in the
Venture to Associates, an affiliate of MILTK, and (iii) withdrew as a venturer
in the Venture; (b) MILTK transferred all of its interest in the Venture to
Associates and withdrew as a venturer in the Venture; and (c) the
Agreement was amended to reflect such transfers;
WHEREAS, at the close of business on September 30, 1986, Associates
shall transfer all of its interest in the Venture to MILTK, and withdraw as a
venturer in the Venture;
WHEREAS, ESJ, IHS, and Midwest desire to continue the existence of the
Venture with MILTK as a venturer; and
WHEREAS, the parties desire that the Agreement be amended, effective as
of September 30, 1986, to replace Associates as a venturer in the Venture by
MILTK;
NOW, THEREFORE, the parties hereto agree as follows:
1. From and after the close of business on September 30, 1986: MILTK
shall be substituted for Associates for all purposes as a venturer in the
Venture and all references in the Agreement to Associates shall be deemed to
refer to MILTK; MILTK shall be deemed included within the definition of Venturer
for purposes of the Agreement; and MILTK shall have all of the rights and
obligations which Associates would have had under the Agreement as an owner of
an interest in the Venture.
2. Section 5.2 of the Agreement shall be deleted in its entirety and be
of no further force and effect and the following shall be substituted therefor:
"5.2 The net profits and losses of the Venture, together with any
investment or other tax credits available shall be allocated to the
Venturers as follows: 50% to ESJ; 25% to Midwest; 15% to MILTK; and
10% to IHS (the "Venturers Percentage Interests").
3. The Venture shall continue its existence and business uninterrupted
with MILTK following the date this Amendment shall become effective on the terms
stated herein and in the Agreement, as amended.
2
IN WITNESS WHEREOF, this Agreement has been made and executed as of the
date and year first above written.
ESJ HOTEL CORPORATION
By: /s/
---------------------------------
[SEAL] Norman J. Menell, President
IHS ASSOCIATES, LTD.
By: /s/
---------------------------------
[SEAL] Hugh A. Andrews, Chariman of
the Board and President
MILTK, INC.,
By: /s/
---------------------------------
[SEAL] Milton Koffman, President
MIDWEST PROPERTY CORP.
By: /s/
---------------------------------
[SEAL] Burton I. Koffman, President
MILTK ASSOCIATES
[SEAL] By: MILTK, INC., its general partner
By: /s/
---------------------------------
Milton Koffman, President
3
POSADAS DE SAN JUAN ASSOCIATES
THIRD AMENDMENT OF JOINT VENTURE AGREEMENT
Agreement made as of the 30th day of December, 1989 to become effective
as of the close of business on November 1, 1986 by and among ESJ HOTEL
CORPORATION ("ESJ"), a Delaware corporation with offices at 767 Fifth Avenue,
New York, New York 10153, IHS ASSOCIATES, LTD. ("IHS"), a Delaware corporation
with offices at 300 Plaza Drive, Binghamton, New York 13902, MILTK, INC.
("MILTK"), a Delaware corporation with offices at 300 Plaza Drive, Binghamton,
New York 13902 and MILTK ASSOCIATES ("Associates"), a New York limited
partnership with offices at 300 Plaza Drive, Binghamton, New York 13902.
W I T N E S S E T H:
WHEREAS, pursuant to the terms of the Joint Venture Agreement dated
July 27, 1984, as amended October 15, 1984 and September 30, 1986 (the
"Agreement") of POSADAS DE SAN JUAN ASSOCIATES, a joint venture organized
pursuant to the Partnership Law of the State of New York (the "Venture"), the
partners of the Venture are as follows:
Partner Interest
------- --------
ESJ Hotel Corporation,
a Delaware corporation 50%
IHS Associates, Ltd.,
a Delaware corporation 10%
Midwest Property Corp.,
a New York corporation 25%
MILTK Inc.,
a Delaware corporation 15%
WHEREAS, Midwest desires to transfer Ten percent (10%) of its interest
in the Venture to Associates, an affiliate of MILTK and MILTK desires to
withdraw as a venturer in the Venture; and
WHEREAS, ESJ, IHS, and Midwest desire to continue the existence of the
Venture with Associates as a venturer; and
WHEREAS, the parties desire that the Agreement be amended, effective as
of November 1, 1986 ("Effective Date"), to replace MILTK as a venturer in the
Venture by Associates and effect the transfers noted above;
NOW, THEREFORE, the parties hereto agree as follows:
1. ESJ and IHS hereby consent to the transfer by Midwest of Ten percent
(10%) of its interest in the Venture to Associates and to the transfer by MILTK
of its entire Fifteen Percent (15%) interest in the Venture to Associates.
2. As of the Effective Date, Associates shall be substituted for MILTK
for all purposes as a venturer in the Venture and shall have all of the rights
and obligations of an owner of an interest in the Venture.
3. Section 5.2 of the Agreement shall be deleted as of the Effective
Date in its entirety and be of no further force and effect and the following
shall be substituted therefor:
"5.2 The net proceeds and losses of the Venture, together with
any investment or other tax credits available shall be allocated to
the Venturers as follows: 50% to ESJ; 25% to Associates; 15% to
Midwest; and 10% to IHS (the "Venturers Percentage Interests").
4. The Venture shall continue its existence and business uninterrupted
with the partners as set forth on the terms stated herein.
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IN WITNESS WHEREOF, the undersigned hereunto affix the signature of an
authorized officer.
ESJ HOTEL CORPORATION
By: /s/
---------------------------------
Norman J. Menell, President
IHS ASSOCIATES, LTD.
By: /s/
---------------------------------
Hugh A. Andrews, Chairman of the
Board and President
MILTK, INC.
By: /s/
---------------------------------
Milton Koffman, President
MIDWEST PROPERTY CORP.
By: /s/
---------------------------------
Burton I. Koffman, President
MILTK ASSOCIATES
By: /s/
---------------------------------
Milton Koffman, Partner
3
CONSENT TO TRANSFER AND INDEMNIFICATION
Agreement made as of the 30th day of December, 1989 to become effective
as of the close of business on November 1, 1986 by and among ESJ HOTEL
CORPORATION ("ESJ"), a Delaware corporation with offices at 767 Fifth Avenue,
New York, New York 10153, IHS ASSOCIATES, LTD. ("IHS"), a Delaware corporation
with offices at 1209 Orange Street, Wilmington, Delaware 19801, MIDWEST PROPERTY
CORP. ("Midwest"), a New York corporation with offices at 300 Plaza Drive,
Binghamton, New York 13902, MILTK, Inc. ("MILTK"), a Delaware corporation with
offices at 300 Plaza Drive, Binghamton, New York 13902 and MILTK ASSOCIATES
("Associates"), a New York limited partnership with offices at 300 Plaza Drive,
Binghamton, New York 13902.
W I T N E S S E T H:
WHEREAS, pursuant to the terms of the Joint Venture Agreement dated
July 27, 1984, as amended October 15, 1984 and September 30, 1986 (the
"Agreement") of POSADAS DE SAN JUAN ASSOCIATES, a joint venture organized
pursuant to the Partnership Law of the State of New York (the "Venture"), the
partners of the Venture are as follows:
Partner Interest
------- --------
ESJ Hotel Corporation,
a Delaware corporation 50%
IHS Associates, Ltd.,
a Delaware corporation 10%
Midwest Property Corp.,
a New York corporation 25%
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MILTK Inc.,
a Delaware corporation 15%
WHEREAS, Midwest desires to transfer on the books and records of the
Venture Ten percent (10% of its interest in the Venture to Associates and MILTK
desires to transfer on the books and records of the Venture all of its interest
in the Venture to Associates, an affiliate of MILTK effective as of November 1,
1986 (hereinafter the foregoing transfers are referred to jointly as the
"Transfers"); and
WHEREAS, Midwest, MILTK and Associates desire to obtain the consent of
ESJ and IHS to the Transfers as required by Section 6 of the Agreement;
NOW, THEREFORE, the parties hereto agree as follows:
1. Midwest, MILTK and Associates hereby indemnify ESJ and IHS and hold
ESJ, IHS and their affiliates harmless from any and all losses, liabilities,
damages, costs and expenses (including reasonable attorneys' fees) incurred by
them by reason of the Transfers.
2. In consideration of the foregoing, ESJ and IHS hereby consent to the
Transfers.
IN WITNESS WHEREOF, the undersigned hereunto affix the signature of an
authorized officer.
ESJ HOTEL CORPORATION
By:/s/
---------------------------------
Norman J. Menell, President
IHS ASSOCIATES, LTD.
By:/s/
---------------------------------
Hugh A. Andrews, Chairman of the
Board and President
5
MILTK, INC.
By:/s/
---------------------------------
Milton Koffman, President
MIDWEST PROPERTY CORP.
By:/s/
---------------------------------
Burton I. Koffman, President
MILTK ASSOCIATES
By: MILTK, INC., its general partner
By:/s/
---------------------------------
Milton Koffman, Partner
6
POSADAS DE SAN JUAN ASSOCIATES
FOURTH AMENDMENT OF JOINT VENTURE AGREEMENT
Agreement made as of the 13th day of August, 1992 by and among ESJ
HOTEL CORPORATION ("ESJ"), a Delaware corporation with offices at______________,
IHS ASSOCIATES, LTD. ("IHS"), a Delaware corporation with offices at 1209 Orange
Street, Wilmington, Delaware 19801, MIDWEST PROPERTY CORP. ("Midwest"), a New
York corporation with offices at 300 Plaza Drive, Vestal, New York 13850, and
MILTK ASSOCIATES ("MILTK"), a New York limited partnership with offices at 300
Plaza Drive, Vestal, New York 13850.
W I T N E S S E T H :
WHEREAS, pursuant to the terms of the Joint Venture Agreement dated
July 27, 1984, as amended October 15, 1984 and September 30, 1986 and December
30, 1989 (the "Agreement") of POSADAS DE SAN JUAN ASSOCIATES, a joint venture
organized pursuant to the Partnership Law of the State of New York (the
"Venture"), the partners of the Venture are as follows:
WHEREAS, MILTK desires to transfer Ten percent (10%) of its interest in
the Venture to Midwest; and
WHEREAS, ESJ, IHS, and Midwest desire to continue the existence of the
Venture with MILTK as a venturer; and
WHEREAS, the parties desire that the Agreement be amended, effective
August 13, 1992 ("Effective Date");
NOW, THEREFORE, the parties hereto agree as follows:
1. ESJ and IHS hereby consent to the transfer by MILTK of Ten percent
(10%) of its interest in the Venture to Midwest.
2. Section 5.2 of the Agreement shall be deleted as of the Effective
Date in its entirety and be of no further force and effect and the following
shall be substituted therefor:
"5.2 The net profits and losses of the Venture, together with any
investment or other tax credits available shall be allocated to the
Venturers as follows: 50% to ESJ; 25% to Midwest; 15% to MILTK; and
10% to IHS (the "Venturers Percentage Interests").
3. The Venture shall continue its existence and business uninterrupted
with the partners set forth on the terms stated herein.
IN WITNESS WHEREOF, the undersigned hereunto affix the signature of an
authorized officer.
ESJ HOTEL CORPORATION
By:
---------------------------------
IHS ASSOCIATES, LTD.
By: /s/
---------------------------------
Hugh A. Andrews, Chairman of the
Board and President
MIDWEST PROPERTY CORP.
By: /s/
---------------------------------
Burton L. Koffman, President
MILTK ASSOCIATES
By: MILTK, Inc., its general partner
By: /s/
---------------------------------
Milton Koffman, Partner
CONSENT TO TRANSFER AND INDEMNIFICATION
Agreement made as of the 13th day of August, 1992 by and among ESJ
HOTEL CORPORATION ("ESJ"), a Delaware corporation with offices at
_________________________, IHS ASSOCIATES, LTD. ("IHS"), a Delaware corporation
with offices at 1209 Orange Street, Wilmington, Delaware 19801, MIDWEST PROPERTY
CORP. ("Midwest"), a New York corporation with offices at 300 Plaza Drive,
Vestal, New York 13850 and MILTK ASSOCIATES ("MILTK"), a New York limited
partnership with offices at 300 Plaza Drive, Vestal, New York 13850.
W I T N E S S E T H :
WHEREAS, pursuant to the terms of the Joint Venture Agreement dated
July 27, 1984, as amended October 15, 1984 and September 30, 1986 and December
30, 1989 (the "Agreement") of POSADAS DE SAN JUAN ASSOCIATES, a joint venture
organized pursuant to the Partnership Law of the State of New York (the
"Venture"), the partners of the Venture are as follows:
Partner Interest
ESJ Hotel Corporation 50%
a Delaware corporation
IHS Associates, Ltd. 10%
a Delaware corporation
Midwest Property Corp., 15%
a New York corporation
MILTK Associates 25%
a New York limited partnership
WHEREAS, MILTK desires to transfer on the books and records of the
Venture Ten Percent (10%) of its interest in the Venture to Midwest effective as
of August 13, 1992 (hereinafter the foregoing transfer is referred to jointly as
the "Transfer"); and
WHEREAS, Midwest and MILTK desire to obtain the consent of ESJ and IHS
to the Transfers as required by Section 6 of the Agreement;
NOW, THEREFORE, the parties hereto agree as follows:
1. Midwest and MILTK hereby indemnify ESJ and IHS and hold ESJ, IHS and
their affiliates harmless from any and all losses, liabilities, damages, costs
and expenses (including reasonable attorneys' fees) incurred by them by reason
of the Transfer.
2. In consideration of the foregoing ESJ and IHS hereby consent to the
Transfer.
IN WITNESS WHEREOF, the undersigned hereunto affix the signature of an
authorized officer.
ESJ HOTEL CORPORATION
By:
---------------------------------
IHS ASSOCIATES, LTD.
By: /s/
---------------------------------
Hugh A. Andrews, Chairman of the
Board and President
MIDWEST PROPERTY CORP.
By: /s/
---------------------------------
Burton I. Koffman, President
MILTK ASSOCIATES
By: MILTK, Inc., its general partner
By: /s/
---------------------------------
Milton Koffman, Partner