EXHIBIT 10.14
DEVELOPMENT RESTRICTION AGREEMENT
BY AND AMONG
JOHN Q. HAMMONS HOTELS, L.P., AND
JOHN Q. HAMMONS HOTELS TWO, L.P. AND
[TRS] AND
JONATHAN D. EILIAN AND
ANY AFFILIATES OF ANY OF THEM
(COLLECTIVELY, "OWNERS"),
AND
JOHN Q. HAMMONS ("JQH") AND
THE REVOCABLE TRUST OF JOHN Q. HAMMONS DATED DECEMBER 28, 1989,
AS AMENDED AND RESTATED (THE "JQH TRUST") AND
ANY AFFILIATE OF JQH OR JQH TRUST
(COLLECTIVELY, THE "JQH ENTITIES')
DATED AS OF [JUNE __], 2005
DEVELOPMENT RESTRICTION AGREEMENT
THIS DEVELOPMENT RESTRICTION AGREEMENT (this "Agreement") is made as of
[June __], 2005 by and among John Q. Hammons Hotels, L.P., a Delaware limited
partnership, ("LP"), John Q. Hammons Hotels Two, L.P., a Delaware limited
partnership, ("II LP") and [TRS], each on behalf of itself and its Subsidiaries
(collectively, the "Owners" and each, an "Owner") and Jonathan D. Eilian
("JDE"), Atrium Hotels, LLC, a Delaware limited liability company ("GP") and
John Q. Hammons ("JQH"), the Revocable Trust of John Q. Hammons dated December
28, 1989, as amended and restated (the "JQH Trust") and any Affiliate of JQH or
the JQH Trust which develops or constructs hotels and related facilities
(collectively, the "JQH Entities" and each, a "JQH Entity").
WHEREAS, in connection with a transaction whereby JQH Aquisition LLC, a
Delaware limited liability company, through merger of its wholly-owned
subsidiary with John Q. Hammons Hotels, Inc., a Delaware corporation ("JQH,
Inc."), acquired all of the interests in JQH, Inc. and, indirectly, certain of
the partnership interests of LP and of II LP, in each case owned by JQH, Inc.,
JQH or certain of his Affiliates (the "Formation Transaction"), the Owners
acquired ownership interests in certain hotels and related facilities listed on
Exhibit A attached hereto and made a part hereof (collectively, so long as such
hotels and related facilities are at least 50% owned or leased or subleased by
any Owner, the "Owner Hotels" and each, an "Owner Hotel").
WHEREAS, the JQH Entities currently own, lease or operate certain hotel
properties and associated convention and banquet facilities, specifically
including those properties and facilities set forth and more particularly
described in Exhibit B attached hereto (the "Existing JQH Properties");
WHEREAS, the JQH Entities intend to develop, build and operate new hotels,
including owner-occupied/guest rental time-share projects and "condo" hotels or
similar nightly rental hospitality projects, and related convention and banquet
facilities from and after the date hereof (the "New JQH Facilities" and each, a
"New JQH Facility", and collectively, with the Existing JQH Properties, the "JQH
Hotels" and each, a "JQH Hotel"), and the Owners and the JQH Entities desire to
enter into this Agreement to evidence their agreement relating to the
development and construction of any New JQH Facility which could affect the
ownership and operation of any Owner Hotel.
WHEREAS, Owner, JDE or any of either of their Affiliates (other than iStar
Financial) may develop, build and operate new hotels, including
owner-occupied/guest rental time-share projects "condo" hotels or similar
nightly rental hospitality projects, and related convention and banquet
facilities from and after the date hereof (collectively, the "Owner Developed
Hotels" and each, an "Owner Developed Hotel"), and the Owners, JDE and the JQH
Entities desire to enter into this Agreement to evidence their agreement
relating to the development and construction of any Owner Developed Hotel which
could affect the ownership and operation of any JQH Hotel.
WHEREAS, GP may develop, build and operate new hotels, including
owner-occupied/guest rental time-share projects "condo" hotels or similar
nightly rental hospitality projects, and related convention and banquet
facilities from and after the date hereof
(collectively, the "GP Developed Hotels" and each, a "GP Developed Hotel"), and
the Owners and GP desire to enter into this Agreement to evidence their
agreement relating to the development and construction of any GP Developed Hotel
which could affect the ownership and operation of any Owner Hotel.
NOW, THEREFORE, in consideration of the mutual covenants herein contained
and for other good and valuable consideration given and received by each party,
receipt of which is hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
IMPACT STUDY REQUIREMENTS
1.1 SOLICITATION OF IMPACT STUDY RELATING TO A NEW JQH FACILITY
(a) Owner, JDE and JQH agree that (i) the New JQH Facility proposed to be
developed as a Marriott Hotel to be located in North Charleston, South Carolina,
(ii) the New JQH Facility proposed to be developed as an Embassy Suites Hotel to
be located in Oklahoma City, Oklahoma, (iii) the New JQH Facility proposed to be
developed as a Residence Inn by Marriott to be located in Oklahoma City,
Oklahoma, and (iv) the New JQH Facility proposed to be developed as a Residence
Inn by Marriott to be located in Kansas City, Missouri are specifically excluded
from this Agreement. In all other instances, at least 60 days prior to entering
into any agreements in connection with the development or construction (but not
the acquisition) of any New JQH Facility, including any convention or banquet
facility, JQH or the applicable JQH Entity shall deliver written notice to LP or
II LP (the "JQH Notice"), as applicable, describing the location, type, number
of rooms, physical amenities and intended franchise designation of any New JQH
Facility proposed to be developed. Within fifteen (15) days after receipt of the
JQH Notice, the applicable Owner shall (i) deliver written notice to JQH or the
applicable JQH Entity if Owner decides to commission from an unrelated
third-party provider experienced in the analysis of such matters an impact study
(an "Impact Study"), which will analyze the relevant market area and facts to
determine the effect such a proposed New JQH Facility would be expected to have
on the revenues and results of operations of any Owner Hotel, and (ii) if such
Impact Study is commissioned, contract with such third party provider for the
completion and delivery of such Impact Study in accordance herewith. In the
event that Owner does not (i) deliver such written notice, or (ii) subsequently
contract with such third party provider within such 15-day period, then Owner
shall be deemed to have waived such right, and JQH or the applicable JQH Entity
may proceed with the development or construction of such proposed New JQH
Facility. Owners and JQH or the applicable JQH Entity shall cooperate to ensure
that such Impact Study will be delivered within thirty (30) days after being
commissioned, and such Impact Study shall, in any event, be completed within
forty-five (45) days after being commissioned, subject to any delays (y) caused
by JQH or any JQH Entity, or (z) as a result of "force majeure" events outside
of the control of such provider or Owner.
(b) In the event the Impact Study indicates that the New JQH Facility
would have no impact, a positive impact or a negative impact quantified as less
than 2% of the annual gross revenues for the most recent full year of operation
of such Owner Hotel, on the revenues and operation of such Owner Hotel, then the
Owner of such Owner Hotel shall pay the costs of the
Impact Study, and JQH or the applicable JQH Entity shall have the right to
proceed with the development of such proposed New JQH Facility.
(c) In the event the Impact Study indicates that the New JQH Facility
would have a negative impact quantified as 2% or more of the annual gross
revenues for the most recent full year of operation of such Owner Hotel, on the
revenues and operation of such Owner Hotel, then JQH shall pay the costs of the
Impact Study, and either (i) Owner and the applicable JQH Entity shall enter
into a joint venture or other equity-sharing arrangement on mutually agreed
terms with respect to such proposed New JQH Facility, or (ii) the applicable JQH
Entity shall not proceed with the development of such proposed New JQH Facility.
1.2 SOLICITATION OF IMPACT STUDY RELATING TO A NEW OWNER FACILITY
(a) At least 60 days prior to entering into any agreements in connection
with the development or construction (but not an acquisition) of any Owner
Developed Hotel, including any convention or banquet facility, the applicable
Owner or JDE or any of his Affiliates shall deliver written notice to JQH or the
applicable JQH Entity (the "Owner Notice"), as applicable, describing the
location, type, number of rooms, physical amenities and intended franchise
designation of any Owner Developed Hotel proposed to be developed (a "New Owner
Facility"). Within fifteen (15) days after receipt of the Owner Notice, JQH or
the applicable JQH Entity shall (i) deliver written notice to JDE or the
applicable Owner if JQH or the applicable JQH Entity decides to commission an
Impact Study, which will analyze the relevant market area and facts to determine
the effect such a proposed New Owner Facility would be expected to have on the
revenues and results of operations of any JQH Hotel, and (ii) if such Impact
Study is commissioned, contract with such third party provider for the
completion and delivery of such Impact Study in accordance herewith. In the
event that JQH or the applicable JQH Entity does not (i) deliver such written
notice, or (ii) subsequently contract with such third party provider within such
15-day period, then JQH or the applicable JQH Entity shall be deemed to have
waived such right, and Owner may proceed with the development or construction of
such proposed New Owner Facility. Owners or JDE, as applicable, and JQH or the
applicable JQH Entity shall cooperate to ensure that such Impact Study will be
delivered within thirty (30) days after being commissioned, and such Impact
Study shall, in any event, be completed within forty-five (45) days after being
commissioned, subject to any delays (y) caused by JQH or any JQH Entity, or (z)
as a result of "force majeure" events outside of the control of such provider or
JQH or the applicable JQH Entity.
(b) In the event the Impact Study indicates that the New Owner Facility
would have no impact, a positive impact or a negative impact quantified as less
than 2% of the annual gross revenues for the most recent full year of operation
of such JQH Hotel, on the revenues and operation of such JQH Hotel, then JQH or
the JQH Entity which owns such JQH Hotel shall pay the costs of the Impact
Study, and the applicable Owner or JDE shall have the right to proceed with the
development of such proposed New Owner Facility.
(c) In the event the Impact Study indicates that the New Owner Facility
would have a negative impact quantified as 2% or more of the annual gross
revenues for the most recent full year of operation of such JQH Hotel, on the
revenues and operation of such JQH Hotel, then
Owner or JDE, as applicable shall pay the costs of the Impact Study, and either
(i) the applicable JQH Entity and Owner or JDE, as applicable, shall enter into
a joint venture or other equity-sharing arrangement on mutually agreed terms
with respect to such proposed New Owner Facility, or (ii) the applicable Owner
or JDE shall not proceed with the development of such proposed New Owner
Facility.
1.3 SOLICITATION OF IMPACT STUDY RELATING TO A NEW GP FACILITY
(a) At least 60 days prior to entering into any agreements in connection
with the development or construction (but not an acquisition) of any GP
Developed Hotel, including any convention or banquet facility, the GP shall
deliver written notice to LP and JQH (the "GP Notice"), describing the location,
type, number of rooms, physical amenities and intended franchise designation of
any GP Developed Hotel proposed to be developed (a "New GP Facility"). Within
fifteen (15) days after receipt of the GP Notice, LP or JQH shall (i) deliver
written notice to GP if LP or JQH decides to commission an Impact Study, which
will analyze the relevant market area and facts to determine the effect such a
proposed New GP Facility would be expected to have on the revenues and results
of operations of any Owner Hotel, and (ii) if such Impact Study is commissioned,
contract with such third party provider for the completion and delivery of such
Impact Study in accordance herewith. In the event that neither LP nor JQH (i)
delivers such written notice, or (ii) subsequently contracts with such third
party provider within such 15-day period, then LP and JQH shall be deemed to
have waived such right, and GP may proceed with the development or construction
of such proposed New GP Facility. LP, JQH and GP shall cooperate to ensure that
such Impact Study will be delivered within thirty (30) days after being
commissioned, and such Impact Study shall, in any event, be completed within
forty-five (45) days after being commissioned, subject to any delays (y) caused
by LP or JQH, or (z) as a result of "force majeure" events outside of the
control of such provider or LP or JQH.
(b) In the event the Impact Study indicates that the New GP Facility would
have no impact, a positive impact or a negative impact quantified as less than
2% of the annual gross revenues for the most recent full year of operation of
such Owner Hotel, on the revenues and operation of such Owner Hotel, then LP or
JQH shall pay the costs of the Impact Study, and GP shall have the right to
proceed with the development of such proposed New GP Facility.
(c) In the event the Impact Study indicates that the New GP Facility would
have a negative impact quantified as 2% or more of the annual gross revenues for
the most recent full year of operation of such Owner Hotel, on the revenues and
operation of such Owner Hotel, then GP shall pay the costs of the Impact Study,
and either (i) the GP and LP shall enter into a joint venture or other
equity-sharing arrangement on terms mutually agreed among GP, LP and JQH with
respect to such proposed New GP Facility, or (ii) the GP shall not proceed with
the development of such proposed New GP Facility.
ARTICLE II
GENERAL PROVISIONS
2.1 Term of Agreement. This Agreement shall continue in effect until the
later to occur of (i) the demise of JQH or (ii) such time as the Preferred
Redemption Price (as defined below) has been paid in full to the holders of
Hammons Preferred Units (as defined below) on or
prior to the Liquidation Completion Deadline (as defined below) in accordance
with the terms and conditions of that certain Fourth Amended and Restated
Agreement of Limited Partnership of [John Q. Hammons Hotels], L.P., dated as of
the date hereof, as amended, supplemented or otherwise modified from time to
time in accordance with its terms (the "Partnership Agreement"). "Preferred
Redemption Price," "Hammons Preferred Units," and "Liquidation Completion
Deadline" shall have the meanings accorded to such terms in the Partnership
Agreement.
2.2 Successors and Assigns. This Agreement is personal to each of Owner,
and each of their Affiliates and JDE and GP and JQH, each JQH Entity and each of
their Affiliates, and neither party may assign its interest in this Agreement
without the consent of the other party hereto. Each of Owner, JDE, GP, JQH and
JQH Entity shall irrevocably designate in writing and appoint one or more
individuals as its exclusive representative(s) ("Designated Representative") to
act for and on behalf of all Owners and JDE and GP and JQH Entities and JQH, as
the case may be, and to exercise any of the rights of each of Owners and JDE and
GP and the JQH Entities and JQH, respectively, in all respects under this
Agreement, including, without limitation, to give and receive notices and
communications, and to take all other actions on behalf of any Owner or JDE or
GP and any JQH Entity or JQH, respectively, as necessary or appropriate under
this Agreement. Any Designated Representative may be replaced by Owner or JDE or
GP or JQH or any JQH Entity, as the case may be, from time to time upon not less
than thirty (30) days' prior written notice to the other party hereto. Any
decision, act, approval, consent or instruction taken or given by any Designated
Representative pursuant to this Agreement shall be and constitute a decision,
act, approval, consent or instruction of the applicable Owner, JDE, GP, JQH or
JQH Entity, as the case may be, and shall be final, binding and conclusive upon
such Owner, JDE, GP, JQH and such JQH Entity, respectively, and the other party
hereto, in each case, may rely upon any such decision, act, approval, consent or
instruction of the applicable Owner or JDE or GP or JQH Entity or JQH, as the
case may be. This Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors, permitted assigns, heirs and
legatees.
2.3 Amendments; Waivers. This Agreement may not be amended or modified
except by an instrument in writing signed by, or on behalf of, each of the
parties hereto. The failure of a party to insist upon strict adherence to any
term of this Agreement on any occasion shall not be considered a waiver or
deprive such party of the right to insist later on adherence hereto, or
thereafter to insist upon strict adherence to that term or any other term of
this Agreement. Any waiver must be in writing and signed by the party against
whom enforcement is sought in order to be effective.
2.4 Governing Law. The interpretation and construction of this Agreement
and (unless otherwise expressly provided herein) all amendments hereof and
waivers and consents hereunder shall, to the extent the particular subject
matter is controlled by state law, be governed by and be construed in accordance
with the substantive law of the State of Delaware, without regard to the
conflicts of laws principles thereof.
2.5 Waiver of Jury Trial. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY
CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE
COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE IT
HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT AND ANY OF THE AGREEMENTS DELIVERED IN CONNECTION
HEREWITH OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. EACH PARTY
CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE SUCH WAIVER, (B) IT UNDERSTANDS
AND HAS CONSIDERED THE IMPLICATIONS OF SUCH WAIVER, (C) IT MAKES SUCH WAIVER
VOLUNTARILY AND (D) IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG
OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 2.5.
2.6 Jurisdiction; Service of Process. Any action or proceeding seeking to
enforce any provision of, or based on any right arising out of, this Agreement
shall be brought against any of the parties only in the Courts of the State of
Delaware or, if it has or can acquire jurisdiction, in the United States
District Court for the District of Delaware, and each of the parties consents to
the exclusive jurisdiction of such courts (and of the appropriate appellate
courts) in any such action or proceeding and waives any objection to venue laid
therein. Process in any action or proceeding referred to in the preceding
sentence may be served on any party anywhere in the world.
2.7 Entire Agreement. This Agreement constitutes a complete statement of
all of the binding agreements among the parties as of the date hereof with
respect to the subject matter contained herein and supersedes all prior
agreements, understandings, negotiations and discussions, whether oral or
written, between them with respect to such subject matter.
2.8 Notices. All notices and other communications under this Agreement
shall be in writing and shall be deemed given (a) when delivered by hand or
certified mail, return receipt requested, postage prepaid, (b) when transmitted
by telecopier (providing electronic confirmation of transmission) or (c) when
received if sent by overnight courier (providing proof of delivery), to the
addressee at the following addresses or telecopier numbers (or to such other
address or telecopier number as a party may specify from time to time by notice
hereunder):
(i) If to JQH or any JQH Entity:
John Q. Hammons
300 John Q. Hammons Parkway,
Suite 900
Springfield, Missouri 65806
Telephone: (417) 864-4300
Facsimile: (417) 873-3511
with a copy (which shall not constitute notice) to:
Blackwell Sanders Peper Martin LLP
4801 Main Street, Suite 1000
Kansas City, Missouri 64112
Attn: Gary D. Gilson and
David C. Agee
Telephone: (816) 983-8000
Facsimile: (816) 983-8080
(ii) If to any Owner:
Jonathan D. Eilian
JD Holdings, LLC
152 West 57th Street, 56th Floor
New York, New York 10023
Telephone: (212) 884-8827
Facsimile: (212) 884-8753
with a copy (which shall not constitute notice) to:
Kaye Scholer, LLC
Three First National Plaza,
70 West Madison Street, Suite 4100
Chicago, Illinois 60602
Attention: Gary R. Silverman and
Lauretta J. Moran
Telephone: (312) 583-2300
Facsimile: (312) 583-2360
(iii) If to GP:
Jonathan D. Eilian
JD Holdings, LLC
152 West 57th Street, 56th Floor
New York, New York 10023
Telephone: (212) 884-8827
Facsimile: (212) 884-8753
with a copy (which shall not constitute notice) to:
Kaye Scholer, LLC
Three First National Plaza,
70 West Madison Street, Suite 4100
Chicago, Illinois 60602
Attention: Gary R. Silverman and
Lauretta J. Moran
Telephone: (312) 583-2300
Facsimile: (312) 583-2360
2.9 Titles and Headings. Titles and headings to sections herein are
inserted for the convenience of reference only and are not intended to be a part
of or to affect the meaning or interpretation of this Agreement. References to
"Sections" refer to Sections of this Agreement, unless otherwise stated.
2.10 Severability. If any term or provision of this Agreement or the
application thereof to any party hereto or set of circumstances shall, in any
jurisdiction and to any extent, be finally held to be invalid or unenforceable,
such term or provision shall only be ineffective as to such jurisdiction, and
only to the extent of such invalidity or unenforceability, without invalidating
or rendering unenforceable any other terms or provisions of this Agreement or
under any other circumstances, and the parties shall negotiate in good faith a
substitute provision which comes as close as possible to the invalidated or
unenforceable term or provision, and puts the parties in a position as nearly
comparable as possible to the position they would have been in but for such
finding of invalidity or unenforceability, while remaining valid and
enforceable.
2.11 Counterparts. This Agreement may be executed in several counterparts,
each of which shall be considered an original, but all of which together shall
constitute one and the same instrument.
2.12 Remedies Including Injunction and Specific Performance. In the event
that any of any JQH Entity or JQH or any Owner or JDE shall default in the
performance of any of its respective obligations hereunder in any material
respect, then the other party hereto shall have the right (i) to seek specific
performance or injunctive relief from any court of competent jurisdiction to
enforce Owner's or any JQH Entity's respective rights under this Agreement, as
the case may be, and (ii) to payment by the nonprevailing party of any and all
attorneys' fees and costs, including any court costs and costs of any
consultants incurred by such Owner, JDE or JQH Entity or JQH, as the case may
be, which is the prevailing party in any action, negotiation or proceeding to
enforce such party's rights under this Agreement.
2.13 Confidentiality. Except as otherwise required by law or judicial
order or decree or by any governmental authority, each Owner, JDE, JQH and each
JQH Entity shall maintain the confidentiality of all nonpublic information
delivered in a JQH Notice or an Owner Notice and corresponding Impact Study, as
the case may be, under this Agreement, unless such information becomes known to
the public in a manner unrelated to such party. It is understood and agreed that
such nonpublic information may be disclosed to attorneys, consultants, officers,
directors, members or agents of each Owner, JDE, JQH and JQH Entity, to the
extent deemed necessary by each such Owner, JDE, JQH and JQH Entity, subject to
such attorneys', consultants', officers', directors', members' or agents'
maintaining the confidentiality of such information as set forth herein.
2.14 Definitions.
(a) "Affiliate" shall mean any individual or entity, directly or
indirectly through one or more intermediaries, controlling, controlled by, or
under common control with a party. The term "control," as used in the
immediately preceding sentence, means, with respect to a corporation, the right
to exercise, directly or indirectly, fifty percent (50%) or more of the voting
rights attributable to the shares of the controlled corporation and, with
respect to an entity that is not a corporation, the possession, directly or
indirectly, of the power to direct or cause the direction of the management or
policies of the controlled entity.
(b) "Person" means any individual, corporation, partnership, joint
venture, trust, unincorporated organization, other entity or governmental body,
in each case whether in such individual's or entity's own capacity or as an
agent or fiduciary of another Person.
(c) "Subsidiary" of any Person means any other Person that, now or at any
time hereafter, is directly or indirectly owned 50% or more (in terms of voting
securities or other voting ownership or partnership interest) by such first
Person; provided, however, that such other Person shall be deemed to be a
"Subsidiary" only so long as the foregoing test continues to be met.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first written above.
JOHN Q. HAMMONS HOTELS, L.P.
By: John Q. Hammons Hotels, Inc.,
its general partner
By: ______________________________________
Name:_____________________________________
Title:____________________________________
JOHN Q. HAMMONS HOTELS TWO, L.P.
By: John Q. Hammons Hotels, L.P.,
its general partner
By:John Q. Hammons Hotels, Inc.,
its general partner
By: ______________________________________
Name:_____________________________________
Title:____________________________________
[TRS]
By: ________________________________________________
Name: ______________________________________________
Title: _____________________________________________
____________________________________________________
JONATHAN D. EILIAN
____________________________________________________
JOHN Q. HAMMONS
____________________________________________________
___________________, as Trustee of the
REVOCABLE TRUST OF JOHN Q. HAMMONS