-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: keymaster@town.hall.org Originator-Key-Asymmetric: MFkwCgYEVQgBAQICAgADSwAwSAJBALeWW4xDV4i7+b6+UyPn5RtObb1cJ7VkACDq pKb9/DClgTKIm08lCfoilvi9Wl4SODbR1+1waHhiGmeZO8OdgLUCAwEAAQ== MIC-Info: RSA-MD5,RSA, IOZ1VkoUr2Ionu2WonxjmTvaTYH/6QCF91UR1Ow8lX1sWbmCqYR0ttaTu6d86WvW BbIg0hL6ZaRAMzy+OjG1rg== 0000950123-95-000504.txt : 19950615 0000950123-95-000504.hdr.sgml : 19950615 ACCESSION NUMBER: 0000950123-95-000504 CONFORMED SUBMISSION TYPE: 10-K405 PUBLIC DOCUMENT COUNT: 18 CONFORMED PERIOD OF REPORT: 19941231 FILED AS OF DATE: 19950310 SROS: NYSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: PRIME HOSPITALITY CORP CENTRAL INDEX KEY: 0000080293 STANDARD INDUSTRIAL CLASSIFICATION: HOTELS & MOTELS [7011] IRS NUMBER: 221890234 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 10-K405 SEC ACT: 1934 Act SEC FILE NUMBER: 001-06869 FILM NUMBER: 95520166 BUSINESS ADDRESS: STREET 1: 700 RTE 46 EAST CITY: FAIRFIELD STATE: NJ ZIP: 07004 BUSINESS PHONE: 2018821010 MAIL ADDRESS: STREET 1: 700 RTE 46 EAST CITY: FAIRFIELD STATE: NJ ZIP: 07004 FORMER COMPANY: FORMER CONFORMED NAME: PRIME MOTOR INNS INC DATE OF NAME CHANGE: 19920609 FORMER COMPANY: FORMER CONFORMED NAME: PRIME EQUITIES INC DATE OF NAME CHANGE: 19731120 10-K405 1 PRIME HOSPITALITY CORP. 1 ================================================================================ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 -------- FORM 10-K (MARK ONE) x ANNUAL REPORT PURSUANT TO SECTION 13 OR 15 (D) OF THE SECURITIES --- EXCHANGE ACT OF 1934 FOR THE FISCAL YEAR ENDED DECEMBER 31, 1994 --- OR TRANSITION REPORT PURSUANT TO SECTION 13 OR 15 (D) OF THE SECURITIES EXCHANGE ACT OF 1934 [NO FEE REQUIRED] FOR THE TRANSITION PERIOD FROM TO ----- ----- COMMISSION FILE NO. 1-6869 ----------------- PRIME HOSPITALITY CORP. (Exact name of Registrant as specified in its charter) DELAWARE 22-2640625 (State or other jurisdiction of (I.R.S. employer incorporation or organization) identification no.) 700 ROUTE 46 EAST, FAIRFIELD, NEW JERSEY 07004 (address of principal executive offices) (Zip Code) REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE:(201)882-1010 SECURITIES REGISTERED PURSUANT TO SECTION 12(B) OF THE ACT: Name of each exchange Title of each class on which registered ------------------- --------------------- Common Stock, New York Stock Exchange Par Value $.01 Per Share Securities registered pursuant to Section 12(g) of the Act: Warrants To Purchase Common Stock Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes x No ------- ------- Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K is not contained herein, and will not be contained, to the best of registrant's knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K. x --------- The aggregate market value of the registrant's common stock held by non-affiliates on March 8, 1995 based on the last sale price as reported by the National Quotation Bureau, Inc. on that date was approximately $282,643,000. The Registrant had 30,556,385 shares of Common Stock outstanding as of March 8, 1995. APPLICABLE ONLY TO REGISTRANTS INVOLVED IN BANKRUPTCY PROCEEDINGS DURING THE PRECEDING FIVE YEARS Indicate by check mark whether the Registrant has filed all documents and reports required to be filed by Section 12, 13 or 15(d) of the Securities Exchange Act of 1934 subsequent to the distribution of securities under a plan confirmed by a court. Yes x No ------- ------- =============================================================================== 2 THIS ANNUAL REPORT ON FORM 10-K IS SUBMITTED FOR THE FISCAL YEAR ENDED DECEMBER 31, 1994 FOR PRIME HOSPITALITY CORP., A DELAWARE CORPORATION ("THE COMPANY" OR "PRIME"), AND ITS PREDECESSOR CORPORATION PRIME MOTOR INNS, INC. ("PMI"). ON JULY 31, 1992 (THE "EFFECTIVE DATE"), PMI MERGED WITH AND INTO THE COMPANY, WHICH PRIOR TO SUCH MERGER HAD BEEN A WHOLLY-OWNED SUBSIDIARY OF PMI. THE COMPANY WAS THE SURVIVING CORPORATION IN THE MERGER. THE COMPANY IMPLEMENTED "FRESH START REPORTING" ON JULY 31, 1992 AND CHANGED ITS FISCAL YEAR END FROM JUNE 30 TO DECEMBER 31. THIS REPORT CONTAINS THE (A) COMPANY'S CONSOLIDATED BALANCE SHEETS AS OF JULY 31, 1992, DECEMBER 31, 1993 AND 1994 AND CONSOLIDATED STATEMENTS OF INCOME, STOCKHOLDERS' EQUITY AND CASH FLOWS FOR THE FIVE MONTHS ENDED DECEMBER 31, 1992 AND THE YEARS ENDED DECEMBER 31, 1993 AND 1994 AND (B) PMI'S CONSOLIDATED BALANCE SHEET AS OF JUNE 30, 1992 AND THE CONSOLIDATED STATEMENTS OF OPERATIONS, STOCKHOLDERS' EQUITY AND CASH FLOWS FOR THE YEAR ENDED JUNE 30, 1992 AND THE ONE MONTH ENDED JULY 31, 1992. THE CONSOLIDATED FINANCIAL STATEMENTS OF THE COMPANY PRESENTED HEREIN WILL VARY SIGNIFICANTLY FROM THE CONSOLIDATED FINANCIAL STATEMENTS OF PMI. ACCORDINGLY, THE CONSOLIDATED FINANCIAL STATEMENTS OF THE COMPANY AS OF AND SUBSEQUENT TO JULY 31, 1992 ARE NOT COMPARABLE IN ALL MATERIAL RESPECTS TO STATEMENTS OF PMI AS OF ANY DATE PRIOR TO JULY 31, 1992. THE HISTORICAL CONSOLIDATED FINANCIAL STATEMENTS OF PMI AND ITS SUBSIDIARIES HAVE BEEN PREPARED IN ACCORDANCE WITH THE AICPA STATEMENT OF POSITION 90-7. 1 3 PART I and PART II Items 1 and 2. Business and Properties General BUSINESS THE COMPANY Prime is a leading hotel owner/operator with a portfolio of 86 hotels totalling 12,617 rooms. Located primarily in secondary markets in 19 states and the U.S. Virgin Islands, Prime's hotels operate either under franchise agreements with hotel brands such as Marriott, Radisson, Sheraton, Holiday Inn, Ramada and Howard Johnson, or under the Company's proprietary brand names, AmeriSuites(R) and Wellesley Inns(R). The Company owns or leases 49 hotels and manages 37 hotels for third parties. Prime holds financial interests in the form of mortgages or profit participations in 17 of the Managed Hotels. In total, the Company has equity or financial interests in 66 hotels containing approximately 10,000 rooms. The Company operates in three major lodging industry segments: full-service, all-suites and limited-service. Approximately 53% of Prime's hotel rooms are in full-service hotels. The AmeriSuites hotels, which comprise approximately 12% of the Company's hotel rooms, are mid-priced, all-suites hotels, situated near office parks and travel destinations in the Southern and Central United States. Prime also competes in the limited-service segment, which comprises approximately 35% of its hotel rooms, primarily through its economically priced Wellesley Inns, which are located in Florida, the Middle Atlantic and the Northeast. Prime is fundamentally committed to hotel equity ownership. Significant elements of Prime's ownership strategy are strong in-house hotel management and control of its proprietary brands, both of which have contributed to improved hotel operating performance. Reflecting Prime's operating strengths, the Company's hotels generated average operating profit margins that exceeded comparable industry averages for 1993, as reported by industry sources, by approximately 25% for full-service hotels, 21% for all-suites hotels and 6% for limited-service hotels. The Company's growth strategy is to: - generate improved results at existing hotels through increased operating efficiencies; - acquire full-service hotels with potential for operating and marketing improvements; and - expand the AmeriSuites hotel brand to meet growing all-suites segment demand. The Company's strategy for improving results at its existing hotels includes using sophisticated operating, marketing and financial systems and capitalizing on the operating leverage inherent in the lodging industry. Implementation of the Company's strategy, together with positive industry trends, has produced significantly improved performance in recent years. Exemplifying the Company's operating leverage, during 1994 room revenues increased 7.4% while net operating income increased 17.0%, as compared to the prior year, for Company-owned comparable hotels, which are hotels that have been open for all of 1993 and 1994. Lodging industry analysts expect further improvement for the lodging sector, and the Company expects to continue to improve the performance of its existing hotels. The Company seeks to capitalize on its strength as a full-service hotel owner/operator and the favorable outlook for the full-service segment by continuing to pursue the acquisition of full-service hotels. In 1994 the Company acquired four full-service hotels with approximately 1,000 rooms. With a continued industry outlook for limited new room supply, steady demand growth and acquisition prices at discounts to replacement cost in the full-service segment, Prime believes that the acquisition of full-service hotels will continue to provide significant growth opportunities. Prime is also committed to developing its AmeriSuites all-suites hotel brand. The Company believes that AmeriSuites provides an excellent guest experience, and offers desirable suite accommodations and other amenities at mid-scale prices. The performance of AmeriSuites improved significantly in 1994 with REVPAR and net operating income for comparable hotels increasing by 13.1% and 19.3% over 1993, respectively. During the first quarter of 1995, the Company will acquire the option of ShoLodge, Inc. to purchase a 50% interest in 11 of the Company's 12 AmeriSuites hotels and will also acquire the only AmeriSuites hotel not already owned by Prime (collectively, the "ShoLodge Transaction"), thereby establishing Prime's exclusive control over the AmeriSuites brand. In 1994 the Company opened four new AmeriSuites. The Company 2 4 currently plans to open or commence construction of ten new AmeriSuites in 1995 with approximately 1,250 rooms. The Company already owns six development sites for new AmeriSuites hotels and has begun construction at sites in Atlanta, Greensboro and Miami. The Company is the successor in interest to Prime Motor Inns, Inc. and certain of its subsidiaries ("PMI"), which restructured its operations and capital structure pursuant to a bankruptcy reorganization completed on July 31, 1992. Under its restructuring, PMI recruited new management and directors, reduced its liabilities by $448.8 million, revalued its assets to reflect fair market value, and eliminated unprofitable contract commitments. During the period from July 31, 1992 through December 31, 1994, the Company further reduced its debt by $82.6 million from $266.4 million to $183.8 million, and reduced its portfolio of notes receivable through cash collections and collateral recoveries by $143.4 million from $226.6 million to $83.2 million. In the process, the Company increased its investment in hotel fixed assets by $138.9 million from $160.4 million to $299.3 million, and increased shareholders' equity by $68.5 million from $135.6 million to $204.1 million. With a strengthened balance sheet, a diminished note receivable portfolio and a significantly increased base of Owned Hotels, the Company believes that it is well positioned to implement its growth strategy. LODGING INDUSTRY Overview As a leading owner/operator of hotels, Prime believes that it is well positioned to benefit from the continuing recovery occurring in the lodging industry. The recovery has been driven by a favorable supply/demand imbalance resulting primarily from increased economic activity and the sharp decline in the growth of the supply of new hotel rooms since 1991. Demand growth exceeded new supply growth by 3.0% in 1993 and by 3.3% in 1994. Since 1991, demand growth has outpaced new room supply growth, resulting in an increase in industry-wide occupancy levels from 60.9% in 1991 to 65.2% in 1994. Higher occupancy levels have allowed the industry to increase rates. In 1994, ADR increased by 3.8% over 1993 levels, marking the first inflation-adjusted ADR growth since 1986. REVPAR increased by 7.3% in 1994. Because of the operating leverage inherent in the lodging industry, increases in REVPAR have had a major impact on hotel operating performance, with industry pretax profits growing from breakeven levels in 1992 to approximately $4.6 billion in 1994, as estimated by Smith Travel Research. U.S. Lodging Industry Profile The following table was compiled from industry operating data as reported by Smith Travel Research and highlights industry data for the United States and the regions in which most of the Company's hotels are located: the Middle Atlantic region, which is comprised of New Jersey, New York and Pennsylvania; and the South Atlantic region, which is comprised of Florida, Georgia, South Carolina, North Carolina, Virginia, Maryland and Delaware. The table also includes operating data concerning the three price levels in which the Company competes: upscale, mid-price and economy.
OPERATING PERFORMANCE FOR THE TWELVE MONTHS % CHANGE IN: ENDED DECEMBER 31 --------------------------------------------------------- --------------------------------------------------- ROOM SUPPLY ROOM DEMAND REVPAR OCCUPANCY PERCENTAGE ADR ----------------- ----------------- ----------------- ---------------------- ------------------------ 1993 1994 1993 1994 1993 1994 1992 1993 1994 1992 1993 1994 V. 1992 V. 1993 V. 1992 V. 1993 V. 1992 V. 1993 ---- ---- ---- ------ ------ ------ ------- ------- ------- ------- ------- ------- United States.... 61.9% 63.1% 65.2% $59.62 $61.30 $63.63 1.0% 1.4% 4.0% 4.7% 4.8% 7.3% BY REGION: Middle Atlantic....... 61.8% 64.2% 66.5% $77.03 $78.79 $84.03 0.6% 0.4% 4.8% 4.0% 6.3% 10.5% South Atlantic... 62.7% 64.0% 65.4% $59.29 $60.47 $62.09 0.7% 1.1% 4.1% 3.2% 4.1% 4.9% BY SERVICE (PRICE LEVEL): Upscale.......... 64.7% 66.8% 68.0% $73.11 $72.05 $74.32 0.9% 2.0% 2.9% 3.8% 1.7% 5.0% Mid-Price........ 62.9% 63.9% 65.3% $53.98 $54.99 $56.78 1.4% 2.0% 2.9% 4.2% 3.5% 5.5% Economy.......... 61.4% 61.3% 62.1% $43.76 $42.66 $44.21 0.8% 1.1% 1.6% 2.6% (2.7)% 5.0%
3 5 Lodging industry analysts expect further improvement for the lodging sector. The primary reasons contributing to continued growth include: - Overall supply growth is expected to remain modest in 1995 and 1996 as replacement costs continue to exceed acquisition prices and the availability of construction financing remains limited. However, these disincentives are not equally prevalent in all segments of the industry as evidenced by the new supply growth in the budget and economy price levels. - Room demand growth is expected to continue due to continued economic growth, expected increases in leisure and international travel and favorable demographics. - Higher occupancy rates have provided the industry with pricing power as evidenced by the 3.8% increase in ADR in 1994, which outpaced the growth in the consumer price index. PRIME'S LODGING OPERATIONS The following table sets forth information with respect to the Owned and Managed Hotels as of December 31, 1994:
MANAGED WITH FINANCIAL OWNED(1) INTEREST(2) OTHER MANAGED TOTAL -------------- -------------- -------------- --------------- HOTELS ROOMS HOTELS ROOMS HOTELS ROOMS HOTELS ROOMS ------ ----- ------ ----- ------ ----- ------ ------ FULL-SERVICE: Marriott.............................. 1 517 0 0 1 525 2 1,042 Radisson.............................. 0 0 1 204 1 192 2 396 Sheraton.............................. 4 927 0 0 0 0 4 927 Holiday Inn........................... 2 362 4 868 0 0 6 1,230 Ramada................................ 9 1,494 4 912 2 277 15 2,683 Howard Johnson........................ 0 0 2 326 1 115 3 441 -- -- -- -- ----- ----- ----- ------ Total Full-Service.......... 16 3,300 11 2,310 5 1,109 32 6,719 ALL SUITES: AmeriSuites(3)........................ 12 1,497 0 0 0 0 12 1,497 LIMITED-SERVICE: Wellesley Inn......................... 14 1,505 5 478 11 1,030 30 3,013 Howard Johnson........................ 6 610 1 149 2 284 9 1,043 Other................................. 1 140 0 0 2 205 3 345 -- -- -- -- ----- ----- ----- ------ Total Limited-Service....... 21 2,255 6 627 15 1,519 42 4,401 Total....................... 49 7,052 17 2,937 20 2,628 86 12,617 ===== ===== ===== ===== ===== ===== ===== ======
- --------------- (1) Of the 49 Owned Hotels, nine are leased. The leases covering the Company's leased hotels provide for fixed lease rents and, in most instances, additional percentage rents based on a percentage of room revenues. The leases also generally require the Company to pay the cost of repairs, insurance and real estate taxes. In addition, some of the Company's Owned Hotels are located on land subject to long-term leases, generally for terms in excess of the depreciable lives of the improvements. (2) Seventeen Managed Hotels in which the Company holds a mortgage or profit participation on the property. (3) Eleven of the AmeriSuites presently owned by the Company are managed by ShoLodge but will be managed by the Company effective March 31, 1995. 4 6 The following table sets forth the location of the Company's hotels as of December 31, 1994:
MANAGED WITH FINANCIAL OWNED(1) INTEREST(2) OTHER MANAGED TOTAL ---------------- ------------------ ---------------- ----------------- HOTELS ROOMS HOTELS ROOMS HOTELS ROOMS HOTELS ROOMS ------ ----- ------ ----- ------ ----- ------ ------ Arizona............... 1 118 -- -- -- -- 1 118 Arkansas.............. 1 130 -- -- -- -- 1 130 California............ -- -- -- -- 1 95 1 95 Connecticut........... 4 589 -- -- -- -- 4 589 Delaware.............. 1 142 -- -- -- -- 1 142 Florida............... 13 1,417 3 395 5 527 21 2,339 Georgia............... 1 114 -- -- 1 189 2 303 Indiana............... 1 126 -- -- -- -- 1 126 Kansas................ 1 126 -- -- -- -- 1 126 Kentucky.............. 1 126 -- -- -- -- 1 126 Maryland.............. -- -- -- -- 2 609 2 609 Nevada................ 1 201 -- -- -- -- 1 201 New Jersey............ 11 1,691 10 2,021 4 559 25 4,271 New York.............. 4 577 1 99 4 361 9 1,037 Ohio.................. 3 380 -- -- -- -- 3 380 Oregon................ 1 161 -- -- -- -- 1 161 Pennsylvania.......... 1 280 3 422 1 90 5 792 Tennessee............. 2 251 -- -- -- -- 2 251 Virginia.............. 1 106 -- -- 2 198 3 304 Virgin Islands........ 1 517 -- -- -- -- 1 517 -- ----- -- ----- -- ----- -- ------ Total....... 49 7,052 17 2,937 20 2,628 86 12,617 ===== ===== ===== ===== ===== ===== ===== ======
- --------------- (1) Of the 49 Owned Hotels, nine are leased. The leases covering the Company's leased hotels provide for fixed lease rents and, in most instances, additional percentage rents based on a percentage of room revenues. The leases also generally require the Company to pay the cost of repairs, insurance and real estate taxes. In addition, some of the Company's Owned Hotels are located on land subject to long-term leases, generally for terms in excess of the depreciable lives of the improvements. (2) Seventeen Managed Hotels in which the Company holds a mortgage or profit participation on the property. 5 7 The following table sets forth for the five years ended December 31, 1994, annual operating data for the 49 hotels in the Company's portfolio as of December 31, 1994. Operating data for the hotels built or acquired during the five-year period are presented from the date such hotel commenced operations or became an Owned Hotel. For purposes of showing operating trends, the results of six hotels that were managed by the Company prior to their acquisition by the Company during the five-year period are presented as if they had been owned by the Company since the Company began managing the hotels.
MANAGED WITH FINANCIAL OWNED INTEREST OTHER MANAGED TOTAL --------------------------- --------------------------- --------------------------- ------------------------- HOTELS ROOMS HOTELS ROOMS HOTELS ROOMS HOTELS ROOMS ------------- ------------- ------------- ------------- ------------- ------------- ------------ ------------ 1990...... 33 5,013 16 2,710 17 2,235 66 9,958 1991...... 34 5,143 17 2,957 17 2,234 68 10,334 1992...... 37 5,476 17 2,951 17 2,236 71 10,663 1993...... 42 6,116 17 2,946 18 2,347 77 11,409 1994...... 49 7,052 17 2,937 20 2,628 86 12,617
OCCUPANCY ADR REVPAR OCCUPANCY ADR REVPAR OCCUPANCY ADR REVPAR OCCUPANCY ADR REVPAR --------- ------ ------ --------- ------ ------ --------- ------ ------ --------- ------ ------ 1990...... 64.0% $69.99 $44.81 72.6% $58.39 $42.38 68.2% $59.77 $40.78 67.5% $63.88 $43.14 1991...... 64.7 64.45 41.70 64.2 57.95 37.19 65.7 59.79 39.31 64.8 61.61 39.91 1992...... 66.4 64.70 42.97 69.5 60.04 41.75 69.3 59.52 41.24 67.9 62.23 42.26 1993...... 70.3 66.66 46.88 70.8 61.68 43.68 72.5 60.19 43.61 70.9 63.95 45.34 1994...... 68.4 68.80 47.04 70.4 65.96 46.44 72.1 61.88 44.60 69.7 66.51 46.35
Full-Service Hotels The Company currently operates 32 full-service hotels under franchise agreements with Marriott, Radisson, Sheraton, Holiday Inn (including Crowne Plaza), Ramada and Howard Johnson. The full-service hotels are concentrated in the Northeast region of the United States. The hotels are generally positioned along major highways within close proximity to corporate headquarters, office parks, airports, convention or trade centers and other major facilities. The customer base for full-service hotels consists primarily of business travelers and tourists. Consequently, the Company's sales force markets to companies which have a significant number of employees travelling in the Company's operating regions who consistently produce a high volume demand for hotel room nights. In addition, the Company's sales force actively markets meeting and banquet services to groups and individuals for seminars, business meetings, holiday parties and weddings. The Company owns and operates one resort hotel, the Frenchman's Reef in St. Thomas, U.S. Virgin Islands. The Frenchman's Reef is a 517-room resort hotel which includes a 421-room eight-story building and 96 rooms in the adjacent Morningstar Beach Resort. The Frenchman's Reef has seven restaurants, extensive convention facilities, complete sports and beach facilities and a self-contained total energy and desalinization system. The Frenchman's Reef is marketed directly through its own sales force in New York City and at the hotel, and through the Marriott reservation system. The Frenchman's Reef markets primarily to tour groups, corporate meetings, conventions and individual vacationers. The full-service hotels generally have between 150 and 300 rooms, pool, restaurant, lounge, banquet and meeting facilities. Other amenities include fitness rooms, room service, remote-control cable television and facsimile services. In order to enhance guest satisfaction, the Company has recently introduced or expanded theme concept lounges such as sports bars, fifties clubs and country and western bars in a number of its hotels. In recent years, the Company has received recognition from various franchisors and associations for its hotel quality and service. 6 8 The following table sets forth for the five years ended December 31, 1994, annual operating data for the 32 full-service hotels in the Company's portfolio as of December 31, 1994. Operating data for the hotels built or acquired during the five-year period are presented from the date such hotel commenced operations. For purposes of showing operating trends, the results of six hotels that were managed by the Company prior to their acquisition by the Company during the five-year period are presented as if they had been owned by the Company since the Company began managing the hotels.
MANAGED WITH FINANCIAL OWNED INTEREST OTHER MANAGED TOTAL --------------------------- --------------------------- --------------------------- ------------------------- HOTELS ROOMS HOTELS ROOMS HOTELS ROOMS HOTELS ROOMS ------------- ------------- ------------- ------------- ------------- ------------- ------------ ------------ 1990...... 15 3,032 10 2,079 4 992 29 6,103 1991...... 15 3,032 11 2,327 4 992 30 6,351 1992...... 15 3,017 11 2,322 4 995 30 6,334 1993...... 15 3,015 11 2,317 5 1,110 31 6,442 1994...... 16 3,300 11 2,310 5 1,109 32 6,719
OCCUPANCY ADR REVPAR OCCUPANCY ADR REVPAR OCCUPANCY ADR REVPAR OCCUPANCY ADR REVPAR --------- ------- ------ --------- ------- ------ --------- ------- ------ --------- ------- ------ 1990...... 61.8% $ 84.41 $52.16 71.6% $ 61.72 $44.17 60.5% $ 84.77 $51.27 65.1% $ 75.55 $49.16 1991...... 63.0 77.76 48.96 62.4 60.81 37.95 61.6 82.44 58.74 62.5 72.55 45.37 1992...... 64.2 79.27 50.89 68.8 62.99 43.30 66.1 82.83 54.81 66.2 73.63 48.72 1993...... 69.8 83.02 57.94 69.7 64.86 45.22 67.2 84.09 56.47 69.4 76.51 53.06 1994...... 67.7 88.33 59.77 70.0 69.79 48.85 69.3 86.69 60.08 68.8 81.26 55.90
The Company believes opportunities exist for acquisitions of full-service hotels at attractive multiples of cash flow or at significant discounts to replacement values. During 1994, the Company acquired the 183-room Ramada Inn in Clifton, New Jersey, the 280-room Ramada Inn in Trevose, Pennsylvania, which the Company has since converted to a Radisson, the 340-room Sheraton in Hasbrouck Heights, New Jersey and the 225-room Sheraton hotel in Mahwah, New Jersey. In addition, the Company obtained ownership of the 517-room Frenchman's Reef hotel through a note receivable settlement in 1994. The Company currently plans to pursue the acquisition of additional full-service hotels in 1995. With a continued outlook for limited new room supply, steady demand growth and acquisition prices at discounts to replacement cost in the full-service segment, Prime believes that the acquisition of full-service hotels will continue to provide significant growth opportunities. The majority of the Company's repositioning efforts have been performed at the full-service hotels. During 1993 and 1994, the Company successfully completed the repositioning of nine of its full-service hotels which included changing the franchise affiliations of four such hotels. The Company is in the process of repositioning two additional full-service hotels, including an $8.5 million project to reposition the recently acquired Hasbrouck Heights Sheraton. All-Suites Hotels The Company currently owns 12 AmeriSuites hotels, which are positioned in the all-suites segment of the lodging industry. AmeriSuites hotels offer guests an attractively designed suite unit with a complimentary continental breakfast in a spacious lobby cafe, remote-control cable television and facsimile/computer service. AmeriSuites is a limited-service concept which offers group meeting space, but does not include restaurant or lounge facilities. AmeriSuites attract customers who typically stay in mid-market limited-service and full-service hotels principally because of the quality of the guest suites, which offer distinct living, sleeping and kitchen areas. AmeriSuites contain approximately 125 suites and two to four meeting rooms. AmeriSuites are 7 9 primarily located near corporate office parks and travel destinations in the Southern and Central parts of the United States. The target customer is primarily the business traveler with an average length of stay of two to three nights. AmeriSuites are marketed on a local level primarily through direct sales and use the ShoLodge reservation system. In February 1995, the Company entered into the agreements pertaining to the ShoLodge Transaction, pursuant to which the Company will acquire the option of ShoLodge to purchase a 50% interest in 11 of the Company's 12 AmeriSuites hotels. As part of this transaction, the Company will also acquire the only remaining AmeriSuites not already owned by Prime, thereby establishing Prime's exclusive control over the AmeriSuites brand. The following table sets forth for the five years ended December 31, 1994, certain data with respect to AmeriSuites hotels owned by the Company.
YEAR ENDED DECEMBER 31, HOTELS ROOMS OCCUPANCY ADR REVPAR - --------------------------------------- ------ ----- --------- ------ ------ 1990................................. 3 367 37.9% $60.23 $22.81 1991................................. 4 497 48.5% 55.33 26.83 1992................................. 6 749 60.0% 54.99 32.97 1993................................. 8 993 64.1% 56.21 36.01 1994................................. 12 1,497 65.9% 59.90 39.50
The Company believes that the all-suites segment will continue to be a high growth segment of the industry. For 1994, REVPAR for the all-suites segment grew by 7.8%. The REVPAR growth at the Company's AmeriSuite hotels exceeded this favorable industry trend. For the six owned AmeriSuites hotels which were opened for all of 1993 and 1994, REVPAR increased by 13.1% in 1994 resulting in a 19.3% increase in operating income. The Company plans to develop the AmeriSuites brand through new construction. All of the AmeriSuites were constructed within the past five years. The Company has historically built AmeriSuites at a cost of approximately $50,000 per room. AmeriSuites have a low cost structure and have generally had stabilization periods of 24 to 36 months after opening. During 1994, the Company opened four newly constructed AmeriSuites hotels in Overland Park, Kansas, Columbus, Ohio, Tampa, Florida, and Louisville, Kentucky. The Company has begun developing or has plans to develop AmeriSuites on sites it currently owns in Atlanta, Greensboro, Miami, Baltimore, Detroit and Cleveland areas and has entered into a contract to purchase an additional AmeriSuites site in the Dallas area. The Company currently plans to open or commence construction on 10 new AmeriSuites hotels in 1995 and has already begun construction at the Atlanta, Greensboro and Miami sites. Limited-Service Hotels The Company's limited service hotels consist of 30 Wellesley Inns and 12 other hotels operated under franchise agreements primarily with Howard Johnson. Of the Company's 30 Wellesley Inns, 16 are located in Florida and the remainder in the Middle Atlantic and Northeast United States. The Company owns and operates 14 Wellesley Inns and manages 16 Wellesley Inns for independent owners. Of the Company-owned Wellesley Inns, ten are located in Florida and four are located in the Middle Atlantic and the Northeast. The Company has developed separate strategies for the Wellesley Inns located in Florida and the Wellesley Inns outside of Florida. In Florida, where the population has grown rapidly and development opportunities continue to exist, it has built a geographically concentrated group of Wellesley Inns thereby developing brand name recognition in Florida. In 1994, the Florida Wellesley Inns average occupancy was approximately 84.7% and gross operating profits averaged over 51% of hotel revenues. The prototypical Florida Wellesley Inn has 105 8 10 rooms and is distinguished by its classic stucco exterior, spacious lobby and amenities such as continental breakfast, remote control cable television and facsimile services. The Florida properties are operated through the Company's Florida regional office. Marketing efforts rely heavily on direct marketing and billboard advertising. In the Middle Atlantic and Northeast where the Company believes new development opportunities are limited, the Company has focused on building the Wellesley Inns system through acquisition and conversion of existing properties. In 1994, the Wellesley Inns outside of Florida had an average occupancy of 71.1% and average gross operating profits of 46.6%. The Company's other limited-service hotels have an average of between 100 and 120 rooms and offer complimentary continental breakfast, remote control cable television, pool facilities and facsimile services, generally with restaurant facilities within a short distance of the hotel. They are designed to appeal primarily to business travelers. The following table sets forth for the five years ended December 31, 1994, annual operating data for the 42 limited-service hotels in the Company's portfolio as of December 31, 1994.
MANAGED WITH FINANCIAL OWNED INTEREST OTHER MANAGED TOTAL --------------------------- --------------------------- --------------------------- ------------------------- HOTELS ROOMS HOTELS ROOMS HOTELS ROOMS HOTELS ROOMS ------------- ------------- ------------- ------------- ------------- ------------- ------------ ------------ 1990...... 15 1,614 13 1,243 6 631 34 3,488 1991...... 15 1,614 13 1,242 6 630 34 3,486 1992...... 16 1,710 13 1,241 6 629 35 3,580 1993...... 19 2,108 13 1,237 6 629 38 3,974 1994...... 21 2,255 15 1,519 6 627 42 4,401
OCCUPANCY ADR REVPAR OCCUPANCY ADR REVPAR OCCUPANCY ADR REVPAR OCCUPANCY ADR REVPAR --------- ------ ------ --------- ------ ------ --------- ------ ------ --------- ------ ------ 1990...... 71.7% $45.82 $32.87 74.3% $43.97 $32.65 76.0% $48.03 $36.49 73.5% $45.55 $33.49 1991...... 71.9 44.03 31.66 69.1 43.68 30.18 70.2 49.17 34.54 70.6 44.83 31.65 1992...... 73.2 44.12 32.31 71.8 42.29 30.35 72.4 49.71 36.01 72.6 44.48 32.28 1993...... 74.3 45.15 33.55 76.8 43.20 33.16 74.8 50.80 38.02 75.2 45.45 34.19 1994...... 70.7 47.08 33.28 74.1 44.94 33.30 72.0 52.26 37.61 72.1 47.06 33.92
The majority of the Florida Wellesley Inns were constructed within the past five years. The Company historically has constructed these properties at a cost of approximately $40,000 per room, depending on land costs. Florida Wellesley Inns have a low cost structure and have had rapid stabilization periods generally within six to twelve months of opening. During 1994, the Company completed construction of Wellesley Inns in Fort Lauderdale and Lakeland, Florida and converted a Howard Johnson's hotel in Penns Grove, New Jersey to a Wellesley Inn. REFURBISHMENT PROGRAM The Company continuously refurbishes its Owned Hotels in order to maintain consistent quality standards. The Company generally spends approximately 4% to 6% of hotel revenue on capital improvements at its Owned Hotels and typically refurbishes each hotel approximately every five years. The Company believes that its Owned Hotels are in generally good physical condition, with over half of the Owned Hotels being five years old or less. The Company recommends the refurbishment and repair projects on its Managed Hotels although spending amounts vary based on the financial strength of the hotel and its owner and the significance of the Company's interest as a mortgagee. 9 11 In addition to making normal capital improvements, the Company reviews on an on-going basis each hotel's competitive position in the local market in order to decide the types of product that will best meet the market's demand characteristics. During the past two years, the Company has implemented a program of repositioning its Owned Hotels. Repositioning a hotel generally requires renovation and refurbishment of the exterior and interior of the building and may result in a change of brand name. In 1993 and 1994, the Company spent $2.8 million and $8.9 million on the repositioning of 12 of its Owned Hotels, which included changing the franchise affiliation of six of such hotels. While the major refurbishment efforts at the Company's existing hotels have substantially been completed, the Company's future refurbishing spending will focus on newly acquired hotels. During 1995, the Company currently plans to spend approximately $10.8 million to reposition or refurbish recently acquired hotels. MORTGAGES AND NOTES RECEIVABLE As of December 31, 1994, mortgages and notes receivable totalled $83.2 million (including current portion) and consisted of an aggregate principal amount of $60.6 million of mortgages and notes secured by Owned and Managed Hotels and $22.6 million of other mortgages and notes secured primarily by other hotels. The Company has pursued a strategy of converting its mortgage and notes receivable into cash or operating hotel assets. Since July 31, 1992, the Company has received $98.5 million in cash and added seven operating hotel assets through note settlements and lease terminations. During 1994, the Company reduced its long-term mortgage and notes receivable portfolio by $81.8 million to $81.3 million at December 31, 1994. This reduction is primarily attributable to the settlement of the Rose and Cohen note receivable, which carried a book value of $25.0 million, for $31.2 million in cash, and the conversion of the Company's mortgage note receivable secured by the Frenchman's Reef with a book value of $50.0 million into an operating hotel asset. The Company will continue to pursue settlements with mortgage and note obligors and will utilize the cash for debt repayments or for general corporate purposes. The Company's mortgage notes secured by hotel properties consist of notes with a book value of $46.5 million secured primarily by mortgages on ten Managed Hotels. These notes currently bear interest at rates ranging from 8.5% to 13.5% per annum and have various maturities through 2017. The mortgages were primarily derived from the sales of hotel properties. The Company has restructured approximately $33.0 million of these mortgages and notes to receive the majority of available cash flow and a participation in the future excess cash flow of such hotel properties. The restructurings generally include senior mandatory- payment notes and junior notes payable annually based on cash flow. The Company believes that these senior, mandatory-payment notes generally do not exceed the current realizable value of the hotels they encumber. However, the Company believes that, taken together, the restructured senior and junior mortgage notes often exceed the value of the properties they encumber. As a result, these junior notes bear many of the characteristics and risks of operating hotel equity investments and are not reflected on the Company's balance sheet. See "Management's Discussion and Analysis of Financial Condition and Results of Operations --Liquidity and Capital Resources." In addition to the mortgage positions referred to above, the Company also holds the junior, accruing or cash flow notes and other interests on other properties managed by the Company. With regard to these properties, third parties generally hold significant senior mortgages. Because there is substantial doubt that the Company will recover any of the value on its junior notes, none of these subordinated financial interests are valued on the Company's balance sheet. In 1994, the Company recognized $15.9 million of interest on mortgages and notes receivable. Approximately $4.6 million, or 28.9%, of the 1994 interest was derived from the Company's note receivable secured by the Frenchman's Reef which was converted into an equity ownership position in December 1994. Approximately $2.0 million or 12.6% of 1994 interest was derived from the junior notes which are not valued on the Company's balance sheet. See "Management's Discussion and Analysis of Financial Condition and Results of Operations." 10 12 In addition to mortgages and notes receivable, as of December 31, 1994, the Company had other assets that totalled $16.9 million, which consisted of real property not related to Owned Hotels (approximately $8.0 million of which consisted of an office building). MANAGEMENT AGREEMENTS The Company provides hotel management services to third party hotel owners of 37 Managed Hotels including 16 Wellesley Inns for which the Company provides the brand name. The number of Managed Hotels declined during 1994 due to the sale of ten hotels by independent owners, four of which were acquired by the Company. Management fees are derived from the Managed Hotels based on fixed percentages of the property's total revenues and performance related incentive payments based on certain measures of hotel income. Additional fees are also generated from the rendering of specific services such as accounting services, construction services, design services and sales commissions. The Company's fixed management fee percentages range from 1.0% to 5.0% and average 3.5% of the Managed Hotel's total revenues before giving consideration to performance related incentive payments. The base and incentive fees comprised approximately 59%, or $5.9 million, of the total management and other fees in 1994. Terms of the management agreements vary but the majority are short-term and, therefore, there are risks associated with termination of these agreements. Furthermore, management agreements may be terminated in connection with a change in ownership of the underlying hotels. Although such risks may be limited due to the Company's role as lender or provider of the Wellesley Inn brand name, 18 of the Managed Hotels, including the 16 Wellesley Inns referenced above, are highly leveraged with debt maturing in December 1995. There can be no assurance that such debt can be repaid or restructured by the third party hotel owners in a manner that would permit the Company to continue as manager of such properties. The Company holds financial interests in the form of mortgages or profit participations in 17 of the 37 Managed Hotels and other interests and control rights (primarily brand control) in 13 of the remaining 20 Managed Hotels. OPERATIONS As a leading domestic hotel operating company, the Company enjoys a number of operating advantages over other lodging companies. With 86 hotels covering a number of price points and broad geographic regions, the Company possesses the critical mass to support sophisticated operating, marketing and financial systems. The Company believes that its broad array of central services permits on-site hotel general managers to effectively focus on providing guest services, results in economies of scale and leads to above-market hotel profit margins. As a result of these operating strategies, the Company's hotels generated average operating profit margins that exceeded comparable industry averages for 1993, as reported by industry sources, by approximately 25% for full-service hotels, approximately 21% for all-suites hotels and approximately 6% for limited-service hotels. The Company's operating strategy combines operating service and guidance from its central management team, with decentralized decision-making authority delegated to each hotel's on-site management. The on-site hotel management teams focus on providing guest services and consist of a general manager and, depending on the hotel's size and market positioning, managers of sales and marketing, food and beverage, front desk services, housekeeping and engineering. The Company's operating objective is to exceed guest expectations by providing quality services and comfortable accommodations at the lowest cost consistent with each hotel's market position. On-site hotel management is responsible for efficient expense controls and uses operating standards provided by the Company. Within parameters established in the operating and capital planning process, on-site management possesses broad decision-making authority on operating issues such as guest services, marketing strategies, hiring practices and incentive programs. Each hotel's management team is empowered to take all necessary steps to ensure guest satisfaction within established guidelines. Key on-site personnel participate in an incentive program based on hotel revenues and profits. 11 13 The central management team, located in Fairfield, New Jersey, provides four major categories of services: (i) operations management, (ii) sales and marketing management, (iii) financial reporting and control and (iv) hotel support services. Operations Management. Operations management consists of the development, implementation and monitoring of hotel operating standards and is provided by a network of regional operating officers who are each responsible for the operations of 10 to 15 hotels. They are supported by training, food and beverage and human resources departments, each staffed full-time by specialized professionals. The cornerstone of operations management is employee training, with a staff of professionals dedicated to training in sales, housekeeping, food service, front desk services and leadership. The Company believes these efforts increase employee effectiveness, reduce turnover and improve the level of guest services. The Company's cost-effective centralized management services benefit not only its existing operations but also provide additional opportunities for growth and development from acquisitions. In all of the recently acquired hotels, the Company's headquarters have assumed certain of the operational responsibilities which previously had been performed by the on-site hotel management. In addition, the Company believes it has improved operating efficiencies for each of these hotels that it has acquired. Sales and Marketing Management. Aggressive sales and marketing is a top operating priority. Sales and marketing management is directed by a corporate staff of 20 professionals, including regional marketing directors who are responsible for each hotel's sales and marketing strategies, and the Company's 12-member national sales group, Market Segments, Inc. ("MSI"). In cooperation with the regional marketing and organization staff, on-site sales management develops and implements short- and intermediate-term marketing plans. The Company focuses on yield management techniques, which optimize the relationship between hotel rates and occupancies and seek to maximize profitability. In addition, the Company assumes prominent roles in franchise marketing associations to obtain maximum benefit from franchise affiliations. The Company's in-house creative department creates hotel advertising materials and programs at cost-effective rates. Complementing regional and on-site marketing efforts, MSI's marketing team targets specific hotel room demand generators including tour operators, major national corporate accounts, athletic teams, religious groups and others with segment-specialized sales initiatives. MSI's primary objective is to book hotel rooms at the Company's hotels and its secondary objective is to market its services on a commission basis to major operators throughout the industry. Sales activities on behalf of non-affiliated hotels increase the number of hotels where bookings can be made to support marketing efforts and defray the costs of the marketing organization. Financial Reporting and Control. The Company's system of centralized financial reporting and control permits management to closely monitor decentralized hotel operations without the cost of financial personnel on site. Centralized accounting personnel produce detailed financial and operating reports for each hotel. Additionally, central management directs budgeting and analysis, processes payroll, handles accounts payable, manages each hotel's cash, oversees credit and collection activities and conducts on-site hotel audits. Hotel Support Services. The Company's hotel support services combine a number of technical functions in central, specialized management teams to attain economies of scale and minimize costs. Central management handles purchasing, directs construction and maintenance and provides design services. Technical staff teams support each hotel's information and communication systems needs. Additionally, the Company directs safety/risk management activities and provides central legal services. 12 14 FRANCHISE AGREEMENTS The Company enters into non-exclusive franchise licensing agreements with various franchisors, which agreements typically have a ten year term and allow the Company to benefit from franchise brand recognition and loyalty. The non-exclusive nature of the franchise agreement allows the Company the flexibility to continue to develop properties with the brands that have shown success in the past or to develop in conjunction with other brand names. This flexibility also plays an important role in the Company's repositioning strategy for continued earnings growth which emphasizes proper positioning of its properties within these respective markets to maximize their return on investment. Over the past two years, the Company has repositioned several hotels that were either owned or managed or recently acquired. These repositionings include the Portland, Oregon Crowne Plaza (formerly Howard Johnson), the Las Vegas, Nevada Crowne Plaza (formerly Howard Johnson), the Saratoga Springs, New York Sheraton (formerly Ramada Renaissance), the Fairfield, New Jersey Radisson (formerly Sheraton), the Orlando, Florida Shoney's Inn (formerly Howard Johnson), and the Trevose, Pennsylvania Radisson (formerly Ramada). The Company believes its relationships with numerous nationally recognized franchisors provides significant benefits for both its existing hotel portfolio and prospective hotel acquisitions. While the Company currently enjoys good relationships with its franchisors, there can be no assurance that a desirable replacement would be available if any of the franchise agreements were to be terminated. The franchise agreements require the Company to pay annual fees, to maintain certain standards and to implement certain programs which require additional expenditures by the Company such as remodeling or redecorating. The payment of annual fees, which typically total 7% to 8% of room revenues, cover royalty fees and the costs of marketing and reservation services provided by the franchisors. The use of franchisor reservation systems typically result in increased occupancy. Franchise agreements, when initiated, generally provide for an initial fee in addition to annual fees payable to the franchisor. 13 15 Working Capital The Company has financed its operations and capital needs principally through a combination of cash flow from operations, cash from note receivable settlements and proceeds from mortgage financings. See "Item 7. Management's Discussion and Analysis of Financial Condition and Results of Operation - Financial Condition." Seasonality The impact of seasonality on the Company as a whole is insignificant due to the seasonal balance achieved from the geographical location of the Company's hotel properties in the Northeast and Southeast. Competition The Company operates and manages hotel properties in areas that contain numerous other hotels, some of which are affiliated with national or regional brands. The Company competes with other hotels primarily on the basis of price, physical facilities and customer service. Employees As of December 31, 1994, the Company employed approximately 4,600 employees. Certain of the Company's employees are covered by collective bargaining agreements. The Company believes that relations with its employees are good. Environmental Matters The Hotels are subject to environmental regulations under Federal, state and local laws. Certain of these laws may require a current or previous owner or operator of real estate to clean up designated hazardous or toxic substances or petroleum product releases affecting the property. In addition, the owner or operator may be held liable to a governmental entity or to third parties for damages or costs incurred by such parties in connection with the contamination. The Company does not believe that it is subject to any material environmental liability. Item 3. Legal Proceedings. In April 1994, the Company received a favorable ruling from the U.S. Bankruptcy Court for the Southern District of Florida in its litigation with Financial Security Assurance, Inc. ("FSA") to recover a payment to be made to the Company under the Rose and Cohen note receivable. In 1993, the Company reached a 14 16 settlement with Rose and Cohen of an adversary proceeding regarding a promissory note and personal guarantee. The settlement provided for Rose or his affiliate to pay the Company the sum of $25.0 million, all of which was paid into escrow in February 1994, plus proceeds from the sale of approximately 1.1 million shares of the Company's common stock held by Rose. FSA asserted that it was entitled to receive the settlement proceeds under the terms of an intercreditor agreement. Upon receipt of the Bankruptcy Court order in April 1994, the Company used the $25.0 million of settlement proceeds to retire its Senior Secured Notes. On April 21, 1994, FSA filed its notice of appeal of the Bankruptcy Court's order. The appeal was argued before the United States District Court in November 1994 and the decision of the District Court is pending. During 1994, Rose sold approximately 1.0 million shares of the Company's common stock under the terms of the settlement for net proceeds of approximately $6.2 million. Subject to further court order, the Company is required to use the stock proceeds principally to retire Senior Secured Notes. As the Rose and Cohen note had a book value of $25.0 million on the Company's balance sheet, approximately $6.2 million was recorded as other income in the Company's statement of operations. In December 1994, the Company obtained ownership of the Frenchman's Reef through a pre-negotiated plan of reorganization. The Company had previously reached an agreement in 1993 to restructure its mortgage notes receivable secured by the Frenchman's Reef with the general partner of Frenchman's Reef Beach Associates ("FRBA"), the owner of the hotel. In conjunction with the agreement, FRBA filed a pre-negotiated chapter 11 petition in September 1993. During the reorganization period, the Company continued to receive cash payments on its mortgage notes receivable under a cash collateral order approved by the Bankruptcy Court. Under the plan of reorganization, which was approved by the Bankruptcy Court on November 29, 1994, the Company obtained ownership and control of the hotel. PMI did not submit its Annual Report on Form 10-K for the fiscal year ended June 30, 1990 and Quarterly Reports on Form 10-Q during the pendency of its reorganization, except for its Quarterly Report on Form 10-Q for the quarter ended March 31, 1992. In addition to the foregoing legal proceedings, the Company is involved in various other proceedings incidental to the normal 15 17 course of its business. Management does not expect that any of such other proceedings will have a material adverse effect on the Company's financial position. Item 4. Submission of Matters to a Vote of Security Holders. No matters were submitted during the fiscal quarter ended December 31, 1994 to a vote of the security holders of the Company. PART II Item 5. Market for Registrant's Common Equity and Related Stockholder Matters. The Company's common stock, par value $.01 per share, commenced trading on the New York Stock Exchange (the "NYSE") on August 3, 1992 under the symbol "PDQ". As of March 8, 1995 there were 30,556,385 shares of common stock outstanding. The Company's Plan of Reorganization ("the Plan") provided for the issuance of 33,000,000 shares of common stock to holders of claims under the Plan. The number of shares ultimately distributed under the Plan was reduced to 29,913,000 shares based upon the final outcome of disputed claims. In addition, under the Plan warrants to purchase an aggregate of 1,738,872 shares of common stock are outstanding as of March 8, 1995. The warrants are not listed on any exchange. The following table sets forth the reported high and low closing sales prices of the common stock on the NYSE.
Five Months Ended December 31, 1992 High Low Dividend/Share - ----------------- ---- ----- -------------- Third Quarter (August 3, . . . . . 2 1/8 1 1/2 -0- 1992 - September 30, 1992) Fourth Quarter . . . . . . . . . . 2 1/4 1 1/2 -0- Year Ended December 31, 1993 - ----------------- First Quarter . . . . . . . . . . . 3 5/8 2 1/8 -0- Second Quarter . . . . . . . . . . 4 1/2 3 1/2 -0- Third Quarter . . . . . . . . . . . 4 3/4 3 1/8 -0- Fourth Quarter . . . . . . . . . . 6 4 3/8 -0-
16 18
Year Ended December 31, 1994 First Quarter . . . . . . . . . . . 8 1/8 5 3/8 -0- Second Quarter . . . . . . . . . . 7 5/8 5 3/8 -0- Third Quarter . . . . . . . . . . . 8 3/4 6 3/4 -0- Fourth Quarter . . . . . . . . . . 9 6 7/8 -0-
As of March 8, 1995, the closing sales price of the common stock on the NYSE was $9 1/4. As of March 8, 1995, there were approximately 2,900 holders of record of common stock. The Company has not declared any cash dividends on its common stock since the Effective Date and does not currently anticipate paying any dividends on the common stock in the foreseeable future. The Company currently anticipates that it will retain any future earnings for use in its business. Covenants contained in certain of the Company's debt instruments prohibit the paying of cash dividends. 17 19 Item 6. Selected Financial Data SELECTED CONSOLIDATED FINANCIAL DATA OF THE COMPANY AND ITS PREDECESSOR The Company is the successor in interest to the Company's predecessor, PMI, which emerged from chapter 11 reorganization on the Effective Date, July 31, 1992. PMI had filed for protection under chapter 11 of the United States Bankruptcy Code in September 1990. The Company implemented "fresh start" reporting pursuant to the Statement of Position 90-7, "Financial Reporting by Entities in Reorganization under the Bankruptcy Code" of the American Institute of Certified Public Accountants, as of the Effective Date. Accordingly, the consolidated financial statements of the Company are not comparable in all material respects to any such financial statement as of any date or any period prior to the Effective Date. Subsequent to the Effective Date, the Company changed its fiscal year end from June 30 to December 31. The table below presents selected consolidated financial data derived from: (i) the Company's historical financial statements for the years ended December 31, 1993 and 1994, (ii) the Company's historical financial statements as of and for the five-month period ended December 31, 1992, (iii) the Company's "fresh start" balance sheet as of the Effective Date, and (iv) the historical consolidated financial statements of PMI for the one month ended July 31, 1992 and for the years ended June 30, 1990, 1991 and 1992. This data should be read in conjunction with the Consolidated Financial Statements, related notes and other financial information included herein.
PRE-REORGANIZATION POST-REORGANIZATION --------------------------------------------------- --------------------------------------------- AS OF AND AS OF AND FOR THE FOR THE FOR THE YEAR ENDED AS OF AND FOR THE YEAR ENDED JUNE 30, ONE MONTH FIVE MONTHS ENDED AS OF ENDED DECEMBER 31, -------------------------------------- JULY 31, JULY 31, DEC. 31, ------------------- 1990(1)(2) 1991(1) 1992(1) 1992(1) 1992(1) 1992 1993 1994 ---------- -------- -------------- ---------- -------- ------------ -------- -------- (IN THOUSANDS) (IN THOUSANDS) STATEMENT OF OPERATIONS DATA: Total revenues........... $277,239 $205,699 $134,190 $ 8,793 -- $ 41,334 $108,860 $134,303 Valuation writedowns and reserves............... (240,855) (59,149) (62,123) (13,000) -- -- -- -- Reorganization items..... -- (181,655) (23,194) 1,796 -- -- -- -- Income (loss) from continuing operations before extraordinary items(3)............... (280,387) (246,110) (71,965) (10,274) -- 1,393 8,175 18,258 Extraordinary items-gains on discharge of indebtedness (net of income taxes).......... -- -- -- 249,600 -- -- 3,989 172 Net income (loss)........ (267,075) (227,188) (71,965) 239,326 -- 1,393 12,164 18,430 BALANCE SHEET DATA: Total assets............. $934,116 $679,916 $554,118 -- $468,650 $403,314 $410,685 $434,932 Long-term debt, net of current portion........ 368,925 2,851 8,921 -- 204,438 192,913 168,618 178,545 Stockholders' equity (deficiency)........... 66,681 (157,327) (229,292) -- 135,600 137,782 171,364 204,065
- --------------- (1) PMI filed for chapter 11 bankruptcy protection on September 18, 1990, at which time it owned or managed 141 hotels. During its approximately two-year reorganization, PMI restructured its assets, operations and capital structure. On the Effective Date, the Company emerged from chapter 11 reorganization with 75 Owned or Managed Hotels, $135.6 million of stockholders' equity and $266.4 million of total debt. (2) PMI effectively discontinued the operations of its franchise segment on July 1, 1990 with the sales of the Howard Johnson, Ramada and Rodeway franchise businesses in July, 1990. (3) Approximately $2.3 million, $28.0 million and $25.3 million of contractual interest expense during the one month ended July 31, 1992 and for the fiscal years ended June 30, 1992 and 1991, respectively, was not accrued and was not paid due to the chapter 11 proceeding. 18 20 Item 6. (Continued) Selected Quarterly Financial Data (Unaudited) Quarterly financial data for the years ending December 31, 1993 and 1994 is presented as follows (in thousands, except per share amounts).
Three Months Ended ------------------------------------------------------------------------------------------------------ March 31, June 30, September 30, December 31, March 31, June 30, September 30, 1993(a) 1993 (a) 1993 (a) 1993 (a) 1994 (a) 1994 (a) 1994 ------------------------------------------- --------------- ------------------------------------------ Net revenue . . . . . . . . $24,785 $26,689 $29,480 $27,906 $28,079 $33,194 $36,063 Operating income . . . . . 5,594 6,366 7,545 5,391 6,850 8,632 9,394 Net income before extraordinary items . . 995 1,588 3,379 2,213 2,840 6,869 4,117 Extraordinary items (net of tax) . . . . . 3,426 631 -- (68) 111 58 3 Net income . . . . . . . . 4,421 2,219 3,379 2,145 2,951 6,927 4,120 Income per common share: Income before extraordinary items . . 0.03 0.06 0.11 0.07 0.08 0.22 0.13 Extraordinary items . . . . 0.12 0.01 -- -- 0.01 -- -- ---------------------------------------------------------------------------------------------------- Net income. . . . . . . . . $0.15 $0.07 $0.11 $0.07 $0.09 $0.22 $0.13 ====================================================================================================
Three Months Ended ----------------------- December 31, 1994 ----------------------- Net revenue . . . . . . . $36,967 Operating income . . . . 8,492 Net income before extraordinary items . 4,432 Extraordinary items (net of tax) . . . . -- Net income . . . . . . . 4,432 Income per common share: Income before extraordinary items . 0.14 Extraordinary items . . . -- ------------ Net income . . . . . . . $0.14 ============
(a) Income per share has been restated to reflect a 9.4% retroactive reduction in the number of shares distributed under PMI's plan of reorganization. 19 21 Item 7. Management's Discussion and Analysis of Financial Condition and Results of Operations MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS GENERAL The Company is a leading hotel owner/operator which owns or leases 49 Owned Hotels and manages 37 Managed Hotels for third parties. The Company has a financial interest in the form of mortgages or profit participations in 17 of the Managed Hotels. The Company records the direct revenues, operating expenses and depreciation of its Owned Hotels and management fees and interest income, where applicable, on the Managed Hotels. The Company has implemented a growth strategy which focuses on improving results at existing hotels through increased operating efficiencies, acquiring full-service hotels and expanding its AmeriSuites hotel brand in the all-suites segment. Operating results have continued to improve at comparable hotels due to repositioning efforts, yield management programs and overall improvements in the industry. The Company also added 11 Owned Hotels in 1994 through acquisition, construction or settlements of notes receivable, thereby increasing its Owned Hotel rooms by approximately 40%. The Company believes that it is well positioned to benefit from current industry trends due to its hotel equity ownership position. The Company has restated net income per common share for all periods to reflect a 9.4% reduction in the number of shares distributed under the plan of reorganization (the "Plan") of the Company's predecessor, PMI. The financial statements had previously given effect to the maximum amount of 33,000,000 shares of Common Stock issuable under the Plan, whereas the Company in total distributed only 29,913,000 shares under the Plan. RESULTS OF OPERATIONS FOR THE YEAR ENDED DECEMBER 31, 1994 COMPARED TO THE YEAR ENDED DECEMBER 31, 1993 The following table presents the components of operating income, operating expense margins and other data for the Company and the Company's comparable Owned Hotels for 1993 and 1994. The results of the four hotels divested during 1993 and 1994 are not material to an understanding of the results of the Company's operations in such periods and, therefore, are not separately discussed.
COMPARABLE OWNED TOTAL HOTELS(1) ------------------- ------------------- 1993 1994 1993 1994 ------- ------- ------- ------- (DOLLARS IN THOUSANDS, EXCEPT ADR AND REVPAR) Revenues: Room.............................................. $69,487 $88,753 $62,305 $66,821 Food and Beverage................................. 12,270 18,090 10,875 11,410 Management Fees................................... 10,831 10,021 Interest on Mortgages and Notes Receivable........ 14,765 15,867 Rental and Other.................................. 1,507 1,572 ------- ------- Total Revenues................................. 108,860 134,303
20 22
COMPARABLE OWNED TOTAL HOTELS(1) ------------------- ------------------- 1993 1994 1993 1994 ------- ------- ------- ------- (DOLLARS IN THOUSANDS, EXCEPT ADR AND REVPAR) Direct Hotel Operating Expenses: Room.............................................. $19,456 $24,539 $16,870 $17,281 Food and Beverage................................. 10,230 13,886 9,029 9,143 Selling and General............................... 20,429 26,733 17,779 18,889 Occupancy and Other Operating....................... 11,047 11,261 General and Administrative.......................... 15,685 15,089 Depreciation and Amortization....................... 7,117 9,427 ------- ------- Operating Income.................................... 24,896 33,368 Operating Expense Margins: Direct Hotel Operating Expenses: Room, as a percentage of room revenue............. 28.0% 27.6% 27.1% 25.9% Food and Beverage, as a percentage of food and beverage revenue............................... 83.4% 76.8% 83.0% 80.1% Selling and General, as a percentage of room and food and beverage revenue...................... 25.0% 25.0% 24.3% 24.1% Occupancy and Other, as a percentage of room and food and beverage revenue......................... 13.5% 10.5% General and Administrative, as a percentage of total revenue........................................... 14.4% 11.2% Other Data: ADR................................................. $ 66.66 $ 68.80 $ 56.84 $ 61.16 REVPAR.............................................. $ 46.88 $ 47.04 $ 41.61 $ 44.71 Occupancy........................................... 70.3% 68.4% 73.2% 73.1% Gross Operating Profit.............................. $31,642 $41,685 $29,500 $32,917
- --------------- (1) For purposes of this discussion of results of operations for 1994 compared to 1993, comparable Owned Hotels refers to the 31 Owned Hotels that were owned or leased by the Company during all of 1994 and 1993. Room revenues increased by $19.3 million, or 27.7%, from $69.5 million in 1993 to $88.8 million in 1994. This increase was primarily due to incremental room revenues of $17.6 million from hotels acquired or built in 1993 and 1994 and an increase in room revenues at comparable Owned Hotels. Room revenues for comparable Owned Hotels increased by $4.5 million, or 7.2%, in 1994 compared to 1993 due to improvements in ADR which increased by $4.32, or 7.6%, reflecting repositioning and refurbishment efforts at several full-service hotels and improving industry fundamentals. Occupancy rates for comparable Owned Hotels remained relatively constant in 1994 compared to the prior year. Food and beverage revenues increased by $5.8 million, or 47.4%, from $12.3 million in 1993 to $18.1 million in 1994. This increase was primarily due to the impact of incremental revenues of $5.6 million from additional food and beverage operations of four full-service hotels acquired in 1994. Food and beverage revenues for comparable Owned Hotels increased by $535,000, or 4.9%, in 1994 compared to 1993 primarily as a result of increased banquet sales and the repositioning of three lounges to a sports bar theme. Management and other fees consist of base and incentive fees earned under management agreements, fees for additional services rendered to Managed Hotels and sales commissions earned by the Company's national sales group, Market Segments, Inc. Management and other fees decreased by $810,000, or 7.5%, from $10.8 million in 1993 to $10.0 million in 1994 primarily due to the loss of management fees on four Managed Hotels acquired by the Company during 1994. In addition, the Company's management contracts covering six additional hotels were terminated during 1994 upon divestiture of those hotels by the third party 21 23 hotel owners. Partially offsetting these decreased management fees were the addition of two new management contracts and increased revenues associated with the remaining Managed Hotels. Interest on mortgages and notes receivable in 1993 and 1994 primarily related to mortgages secured by certain Managed Hotels including the Frenchman's Reef. Interest income on mortgages and notes receivable increased by $1.1 million, or 7.5%, from $14.8 million in 1993 to $15.9 million in 1994 primarily due to interest recognized on the Company's cash flow notes, which are subordinated or junior mortgages which remit payment based on hotel cash flow. These cash flow notes bear many of the characteristics and risks of operating hotel equity investments and are assigned no value on the Company's balance sheet due to substantial doubt as to their recoverability. The Company's policy is to recognize interest on cash flow notes when cash is received. In 1994, the portion of interest on mortgages and other notes receivable attributable to cash flow notes increased to $2.0 million from $1.0 million in 1993 primarily due to the execution of revised cash flow note agreements on three hotels and the improved operating performance of the underlying hotels. See "Business -- Mortgages and Notes Receivable." Approximately $4.3 million and $4.6 million of interest on mortgages and notes receivable in 1993 and 1994, respectively, was derived from the Company's $50.0 million note receivable secured by the Frenchman's Reef. This note was restructured in December 1994 and pursuant to such restructuring, the Company obtained ownership and control of the Frenchman's Reef (see "-- Liquidity and Capital Resources"). Direct room expenses increased by $5.0 million, or 26.1%, from $19.5 million in 1993 to $24.5 million in 1994 due primarily to the addition of new hotels. As a percentage of room revenue, direct room expenses decreased from 28.0% in 1993 to 27.6% in 1994 primarily due to increases in ADR which had minimal corresponding increases in expenses. For comparable Owned Hotels, direct room expenses increased $411,000, or 2.4%, but decreased as a percentage of comparable room revenue from 27.1% in 1993 to 25.9% in 1994. Direct food and beverage expenses increased by $3.7 million, or 35.7%, from $10.2 million in 1993 to $13.9 million in 1994 due primarily to the addition of new full-service hotels. As a percentage of food and beverage revenue, direct food and beverage expenses decreased from 83.4% in 1993 to 76.8% in 1994 primarily due to increased revenues in higher margin areas such as banquet departments and sports lounges. For comparable Owned Hotels, direct food and beverage expenses increased $114,000, or 1.3%, but decreased as a percentage of food and beverage revenue from 83.0% in 1993 to 80.1% in 1994. Direct hotel selling and general expenses consist primarily of hotel expenses which are not specifically allocated to rooms or food and beverage activities, such as administration, selling and advertising, utilities, repairs and maintenance. Direct hotel selling and general expenses increased by $6.3 million, or 30.9%, from $20.4 million in 1993 to $26.7 million in 1994 due primarily to the addition of new hotels. As a percentage of hotel revenues (defined as rooms and food and beverage revenues), direct hotel selling and general expenses remained relatively constant at 25.0% in 1994 and 1993. For comparable Owned Hotels, direct selling and general expenses increased $1.1 million, or 6.2%, but decreased slightly as a percentage of comparable Owned Hotel revenues from 24.3% in 1993 to 24.1% in 1994. Occupancy and other operating expenses which consist primarily of insurance, real estate and other taxes, and rent expense, increased by $214,000, or 1.9%, from $11.0 million in 1993 to $11.3 million in 1994. As a percentage of hotel revenues, occupancy and other operating expenses decreased from 13.5% in 1993 to 10.5% in 1994 primarily due to operating leverage, lower property and liability insurance charges based on favorable claims experiences and reductions in real estate taxes as a result of successful tax appeals on certain properties. General and administrative expenses consist primarily of centralized management expenses such as operations management, sales and marketing, finance and hotel support services associated with operating both the Owned and Managed Hotels and general corporate expenses. General and administrative expenses decreased by $596,000, or 3.8%, from $15.7 million in 1993 to $15.1 million in 1994 primarily due to savings realized from the restructuring of the Company's centralized management operations in 1993. As a percentage of total revenues, general and administrative expenses decreased from 14.4% in 1993 to 11.2% in 1994. 22 24 Depreciation and amortization expense increased by $2.3 million, or 32.5%, from $7.1 million in 1993 to $9.4 million in 1994, due to the impact of new hotel properties acquired in the past year and refurbishment efforts at several hotels. Interest expense decreased by $2.1 million, or 13.2%, from $16.1 million in 1993 to $14.0 million in 1994, primarily due to the net reduction of approximately $27.4 million of debt over the past two years. Interest income on cash investments increased $701,000, or 63.2%, from $1.3 million in 1993 to $2.0 million in 1994 due to higher average cash balances in 1994. Other income for 1994 consisted of a gain of approximately $6.2 million related to the settlement of the Rose and Cohen note receivable (see "-- Liquidity and Capital Resources"), gains on sales of other hotel assets of approximately $1.0 million and rebates of prior years' insurance premiums of $1.3 million. Pretax extraordinary gains of approximately $292,000 for 1994 relate to the retirement of secured notes with a face value of $8.3 million. Pretax extraordinary gains of approximately $6.8 million in 1993 relate to the retirement of debt with a face value of $25.8 million. RESULTS OF OPERATIONS FOR THE YEAR ENDED DECEMBER 31, 1993 COMPARED TO THE YEAR ENDED DECEMBER 31, 1992 The Company is the successor in interest to PMI, which emerged from chapter 11 reorganization on the Effective Date. During its approximately two-year reorganization, PMI restructured its assets, operations and capital structure. As a result, the Company (i) eliminated numerous unprofitable lease and management agreements, (ii) revalued its assets to reflect the then approximate current fair market value of such assets on its financial statements and (iii) reduced its liabilities by $448.8 million. On the Effective Date, the Company emerged from chapter 11 reorganization with 75 Owned or Managed Hotels (as compared to 141 hotels prior to the chapter 11 reorganization), $135.6 million of total equity and $266.4 million of long-term debt. The Company implemented "fresh start" reporting in accordance with Statement of Position 90-7 of the American Institute of Certified Public Accountants upon its emergence from reorganization on the Effective Date. Under "fresh start" reporting, the purchase method of accounting was used and the assets and liabilities of the Company were restated to reflect their approximate fair value at the Effective Date. In addition, during the reorganization period (September 18, 1990 to the Effective Date), the Company's financial statements were prepared under accounting principles for entities in reorganization which include reporting interest expense only to the extent paid and recording transactions and events directly associated with the reorganization proceedings. Accordingly, the consolidated financial statements of the Company are not comparable in all material respects to any such financial statement as of any date or for any period prior to the Effective Date. Subsequent to the Effective Date, the Company elected to change its fiscal year end from June 30 to December 31. For purposes of an analysis of the results of operations, comparisons of the Company's results of operations for 1993 to 1992 are made only when, in management's opinion, such comparisons are meaningful. Prior to the Effective Date, the Company did not employ "fresh start" reporting thereby making comparisons to certain financial statement data prior to such date less meaningful. The financial information set forth below presents the revenues and expenses which can be meaningfully compared. The table excludes the items which were affected by the changes in accounting such as interest expense, occupancy and other operating expense and depreciation expense for 1992 and 1993. The financial information below should be read in conjunction with the Consolidated Financial Statements of the Company included elsewhere in this Prospectus and incorporated by reference. Since the Company changed its fiscal year in 1992, management has compiled unaudited data for the calendar year ended December 31, 1992. 23 25 The following table presents the components of operating income, operating expense margins and other data for the Company and the Company's comparable Owned Hotels for 1992 and 1993.
COMPARABLE OWNED TOTAL HOTELS(1) --------------------- ------------------- 1992 1993 1992 1993 -------- -------- ------- ------- (DOLLARS IN THOUSANDS, EXCEPT ADR AND REVPAR) Revenues: Room............................................ $ 62,379 $ 69,487 $51,679 $55,219 Food and Beverage............................... 13,062 12,270 9,549 10,055 Management Fees................................. 11,452 10,831 Interest on Mortgages and Notes Receivable...... 20,063 14,765 Rental and Other................................ 2,232 1,507 -------- -------- Total Revenues............................... 109,188 108,860 Direct Hotel Operating Expenses: Room............................................ 17,858 19,456 14,003 14,848 Food and Beverage............................... 11,402 10,230 8,278 8,480 Selling and General............................. 22,119 20,429 16,004 16,200 General and Administrative........................ 17,162 15,685 Operating Expense Margins: Room, as a percentage of room revenue........... 28.6% 28.0% 27.1% 26.9% Food and Beverage, as a percentage of food and beverage revenue............................. 87.3% 83.4% 86.7% 84.3% Selling and General, as a percentage of room and food and beverage revenue.................... 29.3% 25.0% 26.1% 24.8% General and Administrative, as a percentage of total revenue................................ 15.7% 14.4% Other Data: ADR............................................. $ 64.70 $ 66.66 $ 54.66 $ 55.96 REVPAR.......................................... $ 42.97 $ 46.88 $ 37.23 $ 40.38 Occupancy....................................... 66.4% 70.3% 68.11% 72.15% Gross Operating Profit.......................... $ 24,062 $ 31,642 $22,943 $25,746
- --------------- (1) For purposes of this discussion of results of operations for the year ended December 31, 1993 compared to the year ended December 31, 1992, Comparable Owned Hotels refers to the 29 Owned Hotels that were owned or leased by the Company during all of 1993 and 1992. Room revenue increased by $7.1 million, or 11.4%, from $62.4 million in 1992 to $69.5 million in 1993. This increase was primarily due to incremental room revenues of $10.9 million from hotels acquired or built during 1993 and 1992 and increased occupancy and ADR at comparable hotels. The increase was partially offset by a decrease in room revenues of $7.4 million resulting from the divestiture of four hotels in 1992 and 1993. Room revenues for comparable Owned Hotels increased by $3.5 million, or 6.8%, in 1993 compared to 1992, primarily due to an increase in occupancy of 5.9% for 1993, reflecting improved economic conditions and continued limited new room supply. ADR increased $1.30, or 2.4%, in 1993. Food and beverage revenues decreased by $792,000, or 6.1%, from $13.1 million in 1992 to $12.3 million in 1993. The decrease was primarily due to the loss of food and beverage operations at divested hotels which was partially offset by an increase in food and beverage revenue at comparable Owned Hotels of $506,000, or 5.3%, in 1993. Management and other fees decreased by $621,000, or 5.4%, from $11.5 million in 1992 to $10.8 million in 1993. The decrease was primarily attributable to the loss of five management contracts due to property divestitures by independent owners, of which two properties were acquired by the Company. This decrease was 24 26 partially offset by increases in management fees attributable to improved operating results of the Managed Hotels. Interest on mortgages and notes receivable decreased by $5.3 million, or 26.4%, from $20.1 million in 1992 to $14.8 million in 1993. This decrease was primarily due to the Company's early collection of a $58.0 million note receivable in August 1992. The decrease was partially offset by interest income of $1.0 million recognized on cash flow notes in 1993 due to the improved performance of the underlying hotels. Rental and other revenues decreased by $725,000, or 32.5% from $2.2 million in 1992 to $1.5 million in 1993. The decrease was primarily attributable to the loss of rental revenues on properties which the Company converted into operating hotel assets. Direct room expenses increased by $1.6 million, or 8.9%, from $17.9 million in 1992 to $19.5 million in 1993. As a percentage of room revenue, direct room expenses decreased from 28.6% in 1992 to 28.0% in 1993, primarily due to increases in ADR which had minimal corresponding increases in expenses. Direct room expenses for comparable Owned Hotels increased by $845,000, or 6.0%, but decreased as a percentage of room revenue from 27.1% in 1992 to 26.9% in 1993. Direct food and beverage expenses decreased by $1.2 million, or 10.3%, from $11.4 million in 1992 to $10.2 million in 1993. As a percentage of food and beverage revenue, direct food and beverage expenses decreased from 87.3% in 1992 to 83.4% in 1993 which reflected an increase in higher margin beverage sales. For comparable hotels, direct food and beverage expenses increased by $202,000, or 2.4%, but decreased as a percentage of food and beverage revenue from 86.7% in 1992 to 84.3% in 1993. Direct selling and general expenses decreased by $1.7 million, or 7.6%, from $22.1 million in 1992 to $20.4 million in 1993. As a percentage of hotel revenue, direct selling and general expenses decreased from 29.3% in 1992 to 25.0% in 1993, primarily due to the divestiture of four full-service hotels in 1992 and 1993, which generally required increased overhead costs. For comparable Owned Hotels, direct selling and general expenses decreased as a percentage of hotel revenue from 26.1% in 1992 to 24.8% in 1993, primarily due to the restructuring of the Company's centralized operations which eliminated certain allocated central office charges. These cost savings were offset by higher utility charges as a result of an unusually warm summer in 1993. General and administrative expenses decreased by $1.5 million, or 8.6%, from $17.2 million in 1992 to $15.7 million in 1993. As a percentage of total revenue, general and administrative charges decreased from 15.7% in 1992 to 14.4% in 1993. These decreases were primarily due to the restructuring of the Company's centralized management operations in February 1993 which eliminated approximately $2.5 million of annual costs. Other income in 1993 consisted primarily of a gain on the sale of a hotel of $1.0 million, settlement of closing adjustments of $625,000 related to the sale of a hotel in a prior year, interest of $1.2 million received as part of a federal tax refund and $500,000 received in settlement of prior year's fees on a Managed Hotel. Pretax extraordinary gains of $6.8 million in 1993 relate to the repurchase of debt. LIQUIDITY AND CAPITAL RESOURCES The Company has financed its operations and capital needs through a combination of cash flow from operations, conversion of non-operating assets to cash and proceeds from mortgage financings. The Company believes that its cash flow from operations is sufficient to fund its anticipated working capital needs, routine capital expenditures and debt service obligations due through 1995. An important component of the Company's growth strategy is to increase its equity ownership in hotels, particularly in the full-service and all-suites segments of the market. The Company intends to actively pursue acquisitions of full-service hotels or hotel portfolios which may also require additional capital for the costs of any necessary renovation or refurbishment. Additionally, the Company plans to expand its AmeriSuites hotel brand by opening or commencing construction on ten AmeriSuites hotels in 1995. The Company plans to fund its development and acquisition program in 1995 with the proceeds of debt or equity offerings, mortgage financings of $42.6 million being 25 27 incurred in the first quarter of 1995 and additional mortgage financings on its unencumbered properties, as well as, potentially, on any properties acquired. The Company believes that these sources will be adequate to fund the implementation of its growth strategy in 1995. At December 31, 1994, the Company had cash and cash equivalents of $12.5 million and restricted cash of $9.7 million, which was primarily collateral for various debt obligations. Cash and cash equivalents decreased by $29.0 million during 1994 primarily due to capital expenditures related to the Company's development plan. Cash flow from operations was approximately $28.7 million in 1994 as compared to $19.7 million in 1993. Cash flow from operations was positively impacted by the utilization of net operating loss carryforwards ("NOLs") of $5.9 million and $4.5 million for 1994 and 1993, respectively. At December 31, 1994, the Company had federal NOLs relating to its predecessor, PMI, of approximately $117.5 million which are subject to annual utilization limitations and expire beginning in 2005 and continuing through 2007. The Company's other major sources of cash in 1994 were a settlement of the Rose and Cohen note receivable for $31.2 million, mortgage financing and other borrowings of $19.0 million and other collections of mortgages and notes receivable of $5.0 million. The Company's major uses of cash in 1994 were payments of debt of $43.8 million, capital expenditures of $63.4 million and purchases of debt and other securities of $5.9 million. Debt. During the first quarter of 1994, the Company purchased at a discount $7.2 million of its Senior Secured Notes and Junior Secured Notes for an aggregate purchase price of $7.0 million and retired the debt for a gain of approximately $200,000. In addition, during the first quarter of 1994, the Company purchased through a third party agent approximately $5.2 million of its Senior Secured Notes and Junior Secured Notes for aggregate consideration of $4.8 million. These notes were held by the third party agent and were not retired due to certain restrictions under the note agreements. The purchases were recorded as investments on the Company's balance sheet and gains will not be recorded on these transactions until the notes mature or are redeemed. In April 1994, approximately $1.1 million of these notes were retired with a portion of the proceeds from settlement of the Rose and Cohen note receivable, resulting in a pretax gain of approximately $100,000. In April 1994, the Company retired its Senior Secured Notes, due July 31, 1997, with a prepayment of $26.4 million from proceeds of the settlement of the Rose and Cohen note receivable and other collections from the collateral for the Senior Secured Notes. The Company issued the Senior Secured Notes on July 31, 1992. In July 1994, the Company received the required consents from holders of its Junior Secured Notes to remove certain debt covenants which placed limitations on the Company's hotel development spending. In consideration of the consent to the amendment, the Company agreed to increase the interest rate of the Junior Secured Notes from 9.2% to 10.0% per annum and to shorten the maturity from July 31, 2000 to July 31, 1999. In addition, the designation of the Junior Secured Notes changed to Senior Secured Notes as the original Senior Secured Notes were retired. In November 1994, the Company obtained mortgage financing of $10.8 million on two of its unencumbered properties, the proceeds of which were used for the Company's acquisition and development program in 1994. These notes bear interest at 11.2% and mature in 2004. In February 1995, the Company obtained $39.0 million of mortgage financing on 11 of its unencumbered hotels under two separate loan agreements. Both loans bear interest at variable rates (approximately 10.5% at closing) and have five-year maturities. The funds will be used to finance the Company's acquisition and development program. The Company also expects to incur an additional $3.6 million of debt in connection with the ShoLodge Transaction. See "-- Capital Investments." The Company has $34.9 million of debt obligations related to the Frenchman's Reef due in December 1996. The Company intends to seek an extension of the maturity of such debt or refinance it. The debt is secured by the property which has a book value of $50.0 million. 26 28 At December 31, 1994, as adjusted to give effect to the incurrence by the Company of $42.6 million of mortgage debt in the first quarter of 1995, the Company would have had $83.7 million in debt that will bear interest at floating rates. The Company has not entered into interest rate protection agreements with respect to its floating rate debt, and, accordingly, the interest the Company pays on such debt will increase or decrease depending on the movement of interest rates generally. Capital Investments. The Company has implemented a hotel development and acquisition program which focuses on the acquisition of strategically positioned full-service hotels or hotel portfolios and the development of AmeriSuites hotels. The Company spent approximately $51.0 million and assumed $18.7 million of debt in connection with its development and acquisition program in 1994. The cash portion was funded by a combination of existing cash balances, cash flow from operations and mortgage financing. As part of the Company's full-service acquisition program in 1994, the Company acquired four full-service hotels: the 183-room Ramada Inn in Clifton, New Jersey, the 280-room Ramada Inn in Trevose, Pennsylvania (which the Company has since converted to a Radisson hotel), the 340-room Sheraton hotel in Hasbrouck Heights, New Jersey, and the 225-room Sheraton hotel in Mahwah, New Jersey. The Company is continuing to pursue opportunities to acquire full-service hotels or hotel portfolios to the extent that attractive acquisition opportunities are available. During 1994, the Company opened four newly constructed AmeriSuites hotels in Overland Park, Kansas, Columbus, Ohio, Tampa, Florida, and Louisville, Kentucky, and two newly constructed Wellesley Inns in Lakeland and Fort Lauderdale, Florida. The Company has begun developing or has plans to develop AmeriSuites on sites it currently owns in the Atlanta, Greensboro, Miami, Baltimore, Detroit and Cleveland areas and has entered into a contract to purchase an additional AmeriSuites site in the Dallas area. The Company currently plans to spend approximately $70.0 million to open or commence construction on 10 new AmeriSuites hotels in 1995 and has already begun construction at the Atlanta, Greensboro and Miami sites. In February 1995, the Company agreed to purchase an AmeriSuites hotel in Richmond, Virginia and ShoLodge Inc.'s option to acquire a 50% interest in 11 of the Company's 12 AmeriSuites hotels. The acquisition is scheduled to close on March 31, 1995. The total consideration payable by the Company in the ShoLodge Transaction is $34.6 million, of which $16.1 million will be paid in three cash installments during 1995, and the remaining $18.5 million will be paid in notes maturing in 1997. The transaction will result in a net increase of $3.6 million of long-term debt as ShoLodge will forgive certain other existing debt on five of the 11 AmeriSuites. As a result of the transaction, the Company will manage these 12 AmeriSuites bringing to 13 the number of AmeriSuites hotels to be owned and operated by the Company. The Company continues to pursue its program of refurbishing certain of its Owned Hotels and repositioning them in order to meet the local market's demand characteristics. In some instances, this may involve a change in franchise affiliation. The refurbishment and repositioning program primarily involves hotels which the Company has recently acquired through mortgage foreclosures or settlements, lease evictions/terminations or acquisitions. During 1993 and 1994, the Company spent approximately $5.0 million and $11.9 million on capital improvements at its Owned Hotels, of which approximately $2.8 million and $8.9 million related to refurbishments and repositionings on 12 Owned Hotels. In 1995, the Company intends to spend approximately $18.0 million on capital improvements, of which $10.8 million relates to the refurbishing and repositioning of recently acquired hotels. Asset Realizations. The Company has pursued a strategy of converting the mortgage notes receivable and other assets that it owns into cash or operating hotel assets. Since July 31, 1992, the Company has received $98.5 million in cash and added seven operating hotel assets through note settlements and lease terminations. During 1994, the Company reduced its long-term mortgage and notes receivable portfolio by $81.8 million to $81.3 million at December 31, 1994. This reduction is primarily attributable to the settlement of the note receivable from Rose and Cohen described below, which carried a book value of $25.0 million, for $31.2 million in cash, and the conversion of the Company's mortgage note receivable secured by the Frenchman's Reef with a book value of $50.0 million into an operating hotel asset. The Company will 27 29 continue to pursue settlement with mortgage and note obligors and will utilize the cash for debt repayments or general corporate purposes. In April 1994, the Company received a favorable ruling from the U.S. Bankruptcy Court for the Southern District of Florida in litigation with Financial Security Assurance, Inc. ("FSA"), with respect to FSA's attempt to recover a payment made to the Company under the Rose and Cohen note receivable. In 1993, the Company reached a settlement with Rose and Cohen of an adversary proceeding regarding a promissory note and personal guarantee. The settlement provided for Rose or his affiliate to pay the Company the sum of $25.0 million, all of which was paid into escrow in February 1994, plus proceeds from the sale of approximately 1.1 million shares of the Company's Common Stock held by Rose. FSA asserted that it was entitled to receive the settlement proceeds under the terms of an intercreditor agreement. Upon receipt of the Bankruptcy Court order in April 1994, the Company used the $25.0 million of settlement proceeds to retire its Senior Secured Notes. On April 21, 1994, FSA filed its notice of appeal of the Bankruptcy Court's order. The appeal was argued before the United States District Court in November 1994 and the decision of the District Court is pending. During 1994, Rose sold approximately 1.0 million shares of the Company's Common Stock under the terms of the settlement for net proceeds of approximately $6.2 million. Subject to further court order, the Company is required to use the stock proceeds principally to retire Senior Secured Notes. As the Rose and Cohen note had a book value of $25.0 million on the Company's balance sheet, approximately $6.2 million was recorded as income in the Company's statement of operations. In December 1994, the Company obtained ownership of the Frenchman's Reef through a pre-negotiated plan of reorganization. The Company had previously reached an agreement in 1993 to restructure its mortgage notes receivable secured by the Frenchman's Reef with the general partner of Frenchman's Reef Beach Associates ("FRBA"), the owner of the hotel. In conjunction with the agreement, FRBA filed a pre-negotiated chapter 11 petition in September 1993. During the reorganization period, the Company continued to receive cash payments on its mortgage notes receivable under a cash collateral order approved by the Bankruptcy Court. Under the plan of reorganization, which was approved by the Bankruptcy Court on November 29, 1994, the Company obtained ownership and control of the hotel. In addition, during 1994, the Company received $2.2 million in settlement of other mortgage notes receivable realizing a gain of $125,000. The Company also sold its fee interests in two hotels in 1994 for a combination of cash and notes of $2.5 million and realized gains of $1.0 million. Item 8. Financial Statements and Supplementary Data. See Index to Financial Statements included in Item 14. Item 9. Changes in and Disagreements with Accountants on Accounting and Financial Disclosure. None. 28 30 PART III Item 10. Directors and Executive Officers of the Registrant. MANAGEMENT DIRECTORS AND EXECUTIVE OFFICERS Set forth below are the names, ages and positions of the directors and executive officers of the Company:
NAME AGE POSITION - ------------------------------------------- ---- -------------------------------------------- David A. Simon............................. 42 President, Chief Executive Officer and Chairman of the Board of Directors John M. Elwood............................. 40 Executive Vice President, Chief Financial Officer and Director Howard M. Lorber(1)........................ 46 Director Herbert Lust, II(1)........................ 66 Director Jack H. Nusbaum............................ 54 Director Allen J. Ostroff(1)........................ 58 Director A.F. Petrocelli(1)......................... 50 Director Paul H. Hower.............................. 60 Executive Vice President Timothy E. Aho............................. 51 Senior Vice President/Development Denis W. Driscoll.......................... 50 Senior Vice President/Human Resources John H. Leavitt............................ 41 Senior Vice President/Sales and Marketing Joseph Bernadino........................... 48 Senior Vice President, Secretary and General Counsel Richard T. Szymanski....................... 37 Vice President and Corporate Controller Douglas W. Vicari.......................... 35 Vice President and Treasurer
- --------------- (1) Member of the Compensation and Audit Committee. The following is a biographical summary of the experience of the directors and executive officers of the Company: David A. Simon has been President, Chief Executive Officer and a Director since 1992 and Chairman of the Board of Directors of the Company since 1993. Mr. Simon was a director of PMI from 1990 to 1992. Mr. Simon was the Chief Executive Officer of PMI from 1990 to 1992 and was an executive officer in September 1990 when PMI filed for protection under chapter 11 of the United States Bankruptcy Code. John M. Elwood has been a Director and Executive Vice President of the Company since 1992 and Chief Financial Officer since 1993. Mr. Elwood was the Director of Reorganization of PMI from September 1990, when PMI filed for protection under chapter 11 of the United States Bankruptcy Code, through the Effective Date, and during 1990 was the Director of Reorganization of Allegheny International, Inc. prior to its emergence from chapter 11 bankruptcy protection that year. Howard M. Lorber has been a Director and a member of the Compensation and Audit Committee since 1994. Mr. Lorber is Chairman of the Board of Directors of Nathan's Famous, Inc., Hallman & Lorber, Inc. and Skybox International, Inc., and a director of New Valley Corporation, United Capital Corp. and Alpine Lace Brands, Inc. Mr. Lorber has been Chief Executive Officer of Hallman & Lorber, Inc. for more than the past five years, President and Chief Operating Officer of New Valley Corporation since 1994, and Chief Executive Officer of Nathan's Famous, Inc. since 1993. Mr. Lorber has also been a general partner or shareholder of a corporate general partner of various limited partnerships organized to acquire and operate real estate properties. Several of these partnerships filed for protection under the federal bankruptcy laws in 1990 and 1991. Herbert Lust, II has been a Director since 1992 and Chairman of the Compensation and Audit Committee of the Company since 1993. Mr. Lust was a member of the Committee of Unsecured Creditors of PMI from 1990 to 1992. Mr. Lust has been a private investor and President of Private Water Supply Inc. for more than the past five years. Mr. Lust is a director of BRT Realty Trust. 29 31 Jack H. Nusbaum has been a Director since 1994. Mr. Nusbaum has been a senior partner and Co-Chairman of the law firm of Willkie Farr & Gallagher for more than the past five years. He also is a director of W.R. Berkley Corporation, The Topps Company, Inc., GEV Corporation, Signet Star Holdings, Inc., Republic New York Securities Corporation, and a director and a member of the Executive Committee of the New York City Economic Development Corporation. Allen J. Ostroff has been a Director since 1992 and a member of the Compensation and Audit Committee since 1993. Mr. Ostroff has been a Senior Vice President of the Prudential Realty Group, a subsidiary of the Prudential Insurance Company of America, for more than the last five years. A.F. Petrocelli has been a Director since 1992 and a member of the Compensation and Audit Committee since 1993. Mr. Petrocelli has been the Chairman of the Board of Directors and Chief Executive Officer of United Capital Corp. for more than the past five years. Paul H. Hower has been an Executive Vice President of the Company since 1993. Mr. Hower was President of Integrity Hospitality Services from 1992 to 1993 and Vice President and Hotel Division Manager of B.F. Saul Co. from 1990 to 1991. Timothy E. Aho has been a Senior Vice President of the Company since 1994. Mr. Aho was a Senior Vice President of Development for Boykin Management Company from 1993 to 1994 and Vice President of Development for Interstate Hotels Corporation from 1990 to 1993. Denis W. Driscoll has been a Senior Vice President of the Company since 1993. Mr. Driscoll was President of Driscoll Associates, a human resources consulting organization, from 1990 to 1993. John H. Leavitt has been a Senior Vice President of the Company since 1992. Mr. Leavitt was a Senior Vice President of PMI from 1991 to 1992 and a Senior Vice President of Medallion Hotel corporation from 1990 to 1991. Joseph Bernadino has been Senior Vice President, Secretary and General Counsel of the Company since 1992. Mr. Bernadino was an Assistant Secretary and Assistant General Counsel of PMI from 1990 to 1992 and held such position when PMI filed for chapter 11 bankrupcty protection. Richard T. Szymanski has been a Vice President and Corporate Controller of the Company since 1992. Mr. Szymanski was Corporate Controller of PMI from 1990 to 1992 and held such position when PMI filed for chapter 11 bankrupcty protection. Douglas W. Vicari has been a Vice President and Treasurer of the Company since 1992 and was Vice President and Treasurer of PMI during 1992. Mr. Vicari was the Director of Budget and Financial Analysis of PMI from 1990 to 1992 and held such position when PMI filed for chapter 11 bankrupcty protection. 30 32 Item 11. Executive Compensation The following summary compensation table sets forth information concerning compensation for services in all capacities awarded to, earned by or paid to the persons who were, at December 31, 1994, the Company's Chief Executive Officer and the four other most highly compensated executive officers of the Company. The information shown reflects compensation for services in all capacities awarded to, earned by or paid to these persons for the years ending December 31, 1992, 1993 and 1994.
SUMMARY COMPENSATION TABLE Long-Term Annual Compensation Compensation ------------------- ------------ Securities Other Annual Underlying All Other ------------ ----- --------- Name and Principal Position Year Salary Bonus Compensation Options Compensation --------------------------- ---- ------ ----- ------------ ------- ------------ David A. Simon . . . . . . . . . . . 1994 $312,552 $161,538 $-0- -0- $ 5,507(1) President and Chief . . . . . . . . 1993 303,853 -0- -0- 45,000 6,211 Executive Officer . . . . . . . . . 1992 298,175 655,045 -0- 330,000 1,402 John M. Elwood . . . . . . . . . . . 1994 $249,423 $129,231 $-0- 50,000 $ 3,147(2) Executive Vice President . . . . . . 1993 240,000 -0- -0- 45,000 21,981 and Chief Financial Officer . . . . 1992 295,170 554,205 -0- 20,000 252 Paul H. Hower . . . . . . . . . . . 1994 $190,000 $ 20,000 $-0- 15,000 $ 5,410(3) Executive Vice President . . . . . . 1993 94,320 -0- -0- 20,000 113 1992 -0- -0- -0- -0- -0- Denis W. Driscoll . . . . . . . . . . 1994 $159,961 $ 10,000 $-0- 8,000 $ 959(4) Senior Vice President - Human . . . 1993 68,565 -0- -0- 8,000 73 Resources 1992 -0- -0- -0- -0- -0- Joseph Bernadino . . . . . . . . . . 1994 $126,184 $ 24,150 $-0- 8,000 $ 614(5) Senior Vice President, . . . . . . 1993 120,750 -0- -0- 8,000 87 Secretary and General Counsel . . . 1992 114,648 43,125 -0- -0- 252
1. Represents $102 for premiums of Company-provided life insurance, $141 related to 401K matching contributions and $5,264 in value of use of Company-provided car. 2. Represents $102 for premiums for Company-provided life insurance, $3,045 in value of use of Company-provided car. 3. Represents $702 for premiums for Company-provided life insurance, $826 related to 401K matching contributions and $3,882 in value of use of Company-provided car. 4. Represents $280 for premiums for Company-provided life insurance and $679 related to 401K matching contributions. 5. Represents $87 for premiums for Company-provided life insurance and $527 related to 401K matching contributions. Stock Option Grants During Year Ended December 31, 1994 The following table sets forth information concerning individual grants of stock options made during the year ending December 31, 1994 to each of the officers listed below. The Company did not grant any stock appreciation rights during such period. 31 33
Individual Grants ----------------- % of Total ---------- Number of Options Potential Realized Value at --------- ------- --------------------------- Securities Granted to Assumed Annual Rates of ---------- ---------- ----------------------- Underlying Employees Exercise Stock Price Appreciation For ---------- --------- -------- ---------------------------- Options in Fiscal Price Per Expiration Option Terms ------- --------- --------- ---------- ------------ Name Granted Year Share Date 0% 5% 10% ---- ------- ---- ----- ---- -- -- --- David A. Simon . . . . . . -0- -0- -0- -0- -0- -0- -0- John M. Elwood . . . . . . 50,000(1) 13.6% $7.38 1/23/2000 -0- 142,161 284,513 Paul H. Hower . . . . . . . 15,000(2) 4.0% $7.63 8/2/2000 -0- 38,898 88,247 Denis W. Driscoll . . . . . 8,000(2) 2.1% $7.63 8/2/2000 -0- 20,746 47,065 Joseph Bernadino . . . . . 8,000(2) 2.1% $7.63 8/2/2000 -0- 20,746 47,065 - ---------------
(1) These stock options were granted to John M. Elwood under an employment contract dated January 24, 1994, which options vest in equal annual installments of 12,500 each on January 24, 1995, 1996, 1997 and 1998 and will continue to be exercisable through January 23, 2000. These options become immediately exercisable upon a change in control of the Company. (2) These stock options vest with respect to one third of the grant on each of August 2, 1995, 1996, and 1997 and will continue to be exercisable through August 2, 2000. These options become immediately exercisable upon a change in control of the Company. Aggregated Option Exercises in the Year Ended December 31, 1994 and Year-End Option Values
Number of Securities -------------------- Shares Underlying Unexercised Value of Unexercised In- ------ ---------------------- ------------------------ Acquired on Value Options at Year End The-Money Options ----------- ----- ------------------- ----------------- Name Exercise Realized Exercisable Unexercisable Exercisable Unexercisable ---- -------- -------- ----------- ------------- ----------- ------------- David A. Simon . . . . . . . -0- -0- 250,000 125,000 $1,182,800 $591,400 John M. Elwood . . . . . . . -0- -0- 62,500 52,500 $ 204,425 $ 69,375 Paul H. Hower . . . . . . . . -0- -0- 20,000 15,000 $ 70,000 -- Denis W. Driscoll . . . . . . -0- -0- 2,666 13,334 $ 10,317 $ 19,603 Joseph Bernadino . . . . . . -0- -0- 2,666 13,334 $ 10,317 $ 19,603
Employment Agreement Under the Plan As provided in the PMI Second Amended Joint Plan of Reorganization (the "Plan"), Mr. Simon and the Company executed an employment agreement dated July 31, 1992 which provides for an initial term of three years, with automatic successive one-year extensions unless a prior election is made by either party not to extend the agreement. 32 34 The employment agreement provides for an annual base salary of $300,000 (which will increase annually based upon increases in the consumer price index), a discretionary annual bonus based on attainment of performance objectives set by the Board of Directors, a life insurance policy in an amount not less than $1,000,000, an automobile and other customary welfare benefits, including medical and disability insurance. The agreement also provides that, to the extent payments made by the Company for disability insurance, life insurance and the use of the automobile are subject to federal, state or local income taxes, the Company will pay Mr. Simon the amount of such additional taxes plus such additional amount as will be reasonable to hold him harmless from the obligation to pay such taxes. Pursuant to this employment agreement, Mr. Simon was granted stock options on July 31, 1992 to purchase 330,000 shares of Common Stock. Such stock options are exercisable with respect to 110,000 shares at the end of each of the first, second and third years of his employment, provided his employment has not been terminated by such date. This employment agreement may be terminated by the Company at any time, with or without cause. If the agreement is terminated by the Company prior to the expiration of the initial three-year term without cause, or if Mr. Simon resigns because of circumstances amounting to constructive termination of employment, severance would be paid in a single lump sum equal to one-year's base salary or, if greater, the base salary that would have been payable over the remainder of the initial term. All stock options would become fully vested and remain exercisable for 90 days after termination or, if longer, until the expiration of the initial three year term. Any bonus awarded for the year of termination would be prorated. If the Company does not terminate the agreement prior to the expiration thereof, but elects not to extend the agreement beyond the initial term, severance would be payable in a single lump sum equal to one-year's base salary. If the agreement is terminated by the Company for cause (as such term is defined in the employment agreement), or if Mr. Simon resigns voluntarily under circumstances not amounting to a constructive termination of employment, no benefits are payable other than accrued but unpaid salary. Employment Agreements Subsequent to the Plan As of January 24, 1994, Mr. Elwood and the Company executed an employment agreement which had a term of one year. This employment agreement provided for an annual base salary of $250,000, a discretionary annual bonus based on attainment of performance objectives set by the Board of Directors, a life insurance policy in the amount of $500,000 (of which the Company will not pay 33 35 premiums which exceed $5,000), an automobile, and other customary welfare benefits, including medical and disability insurance. Pursuant to the agreement, Mr. Elwood was granted stock options to purchase 50,000 shares of Common Stock pursuant to the 1992 Stock Option Plan, which options vest in equal annual installments of 12,500 shares each on January 24, 1995, 1996, 1997 and 1998. This employment agreement has expired. The Company intends to execute a new agreement with Mr. Elwood. As of May 18, 1993, Mr. Paul H. Hower and the Company executed an employment agreement which terminated on June 30, 1994. This employment agreement provides for an annual base salary of $180,000, a cash bonus of $10,000, a discretionary annual bonus based on attainment of performance objectives set by the Board of Directors, a life insurance policy in an amount not less than $360,000, an automobile, and other customary welfare benefits, including medical and disability insurance. Pursuant to the agreement, Mr. Hower was granted stock options as of June 23, 1993 to purchase 20,000 shares of Common Stock. Change in Control Agreements As of February 15, 1995, the Company executed change in control agreements with ten officers of the Company, including each named executive officer. These agreements provide that, if within two years of a change in control of the Company, the officer's employment with the Company is terminated by the Company without cause or if the officer resigns for good reason (as defined in the agreements), the Company will pay the beneficiary two and one-half times the aggregate cash compensation earned by the beneficiary during the fiscal year immediately preceding the termination of employment. Such payments are to be reduced, however, to the extent necessary to avoid characterization as "excess parachute payments" within the meaning of Section 280G of the Internal Revenue Code. In addition, any outstanding options to purchase shares of the Company held by the officer will vest and become exercisable as of the date of the change in control. 34 36 Board of Directors Compensation and Benefits Directors who are employees of the Company do not receive additional compensation for serving on the Board of Directors. Non-employee Directors receive $24,000 annually. In addition, each non-employee Director receives $1,500 for each Board of Directors meeting attended, $1,500 for each committee meeting attended and $500 for each telephonic meeting if such meeting extends beyond a period of 15 minutes. The Chairman of the Compensation and Audit Committee receives an additional $15,000 annually. The Directors' remuneration is paid quarterly. All Directors are reimbursed for their expenses. Compensation and Audit Committee Interlocks and Insider Participation The members of the Compensation and Audit Committee are Herbert Lust, II (Chairman), A. F. Petrocelli, Allen J. Ostroff and Howard M. Lorber. Mr. Petrocelli has certain business relationships with the Company, which are described under the heading "Certain Relationships and Related Transactions." Item 12. Security Ownership of Certain Beneficial Owners and Management. The following table sets forth as of February 16, 1995, information with respect to the beneficial ownership of the Company's common stock by (i) each person known by the Company to own beneficially 5% or more of the Company's common stock, (ii) each director of the Company, (iii) the Company's Chief Executive Officer and each of the four remaining most highly compensated executive officers, and (iv) all executive officers and directors of the Company as a group.
Amount and Percent ---------- ------- Nature of of --------- -- Name of Beneficial Owner Ownership Class(p) ------------------------ --------- -------- First Interstate Bank Corp.(a) . . . . . . . . . . . . . . . . . . . . . . 2,271,500 7.4 633 17th Street Suite 1800 Denver, CO 80202 Ingalls & Snyder(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,983,179 6.5 61 Broadway New York, New York 10006 David A. Simon(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 408,895 1.3 John M. Elwood(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121,622 * Herbert Lust, II(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53,151 * Allen J. Ostroff(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35,000 * A.F. Petrocelli(g) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38,276 * Jack H. Nusbaum(h) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15,000 * Howard M. Lorber(i) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5,000 * John H. Leavitt(j) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2,777 *
35 37 Paul H. Hower(k) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20,300 * Denis W. Driscoll(l) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8,450 * Joseph Bernadino(m) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3,666 * Richard T. Szymanski(n) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,666 * Douglas W. Vicari(o) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,666 * Timothy E. Aho . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 0 * All directors and executive officers as a group (14 persons)(p) . . . . . . . . . . . . . . . . . . . . . . . . . . 715,469 2.3
(a) First Interstate Bank Corp. filed a Schedule 13G, dated February 10, 1995 with the Securities and Exchange Commission (the "SEC") reporting ownership of 2,271,500 shares of Common Stock, with sole voting power with respect to 1,443,400 shares and sole dispositive power with respect to 2,271,500 shares. (b) Ingalls & Snyder filed a Schedule 13G, dated January 13, 1995 with the SEC reporting ownership of 1,983,179 shares of Common Stock, with sole voting power with respect to 168,286 shares and sole dispositive power with respect to 1,983,179 shares. (c) Includes 151,726 shares owned by David A. Simon, 146 shares owned by his wife and 249 shares held by Mr. Simon as custodian for his children. Mr. Simon disclaims beneficial ownership of the shares owned by his wife and held as custodian for his children. Also includes warrants to purchase 5,510 shares with an exercise price of $2.71 per share owned by Mr. Simon, 467 warrants owned by his wife, and 797 warrants held as custodian for his children. Mr. Simon disclaims beneficial ownership of the warrants owned by his wife and held as custodian for his children. Also includes options to purchase 250,000 shares with an exercise price of $3.20 per share as to 30,000 shares and $2.71 as to 220,000 shares. (d) Includes 47,000 shares, warrants to purchase 12,122 shares with an exercise price of $2.71 per share and options to purchase 20,000 shares at an exercise price of $3.81 per share, options to purchase 30,000 shares at an exercise price of $3.20 per share and options to purchase 12,500 at an exercise price of $7.38 per share. (e) Includes 10,000 shares owned by Herbert Lust, 23,151 shares held by a trust under which Mr. Lust and his wife are co-trustees and beneficiaries and options held by Mr. Lust to purchase 20,000 shares with an exercise price of $3.20 per share. (f) Includes 5,000 shares and options to purchase 30,000 shares with an exercise price of $3.20 per share. 36 38 (g) Includes 8,276 shares held by United Capital Corp. of which Mr. Petrocelli is Chairman of the Board of Directors and Chief Executive Officer and options held by Mr. Petrocelli to purchase 30,000 shares with an exercise price of $3.20 per share. (h) Includes 10,000 shares and options to purchase 5,000 shares with an exercise price of $7.25 per share. (i) Includes options to purchase 5,000 shares with an exercise price of $7.25 per share. (j) Includes 26 shares, warrants to purchase 85 shares with an exercise price of $2.71 per share and options to purchase 2,666 shares with an exercise price of $3.63 per share. (k) Includes 300 shares owned by his wife and options to purchase 20,000 shares with an exercise price of $4.00 per share. (l) Includes 5,520 shares owned by Mr. Driscoll, 200 shares owned by his son and daughter, warrants to purchase 64 shares with an exercise price of $2.71 per share, and options to purchase 2,666 shares with an exercise price of $3.63 per share. (m) Includes 1,000 shares and options to purchase 2,666 shares with an exercise price of $3.63 per share. (n) Includes options to purchase 1,666 shares with an exercise price of $3.63 per share. (o) Includes options to purchase 1,666 shares with an exercise price of $3.63 per share. (p) With the exception of David Simon, the Directors and executive officers each owns less than one percent of the outstanding Common Stock and own approximately two percent of the outstanding Common Stock as a group. Percentages were based on 30,556,385 shares outstanding as of March 8, 1995. Item 13. Certain Relationships and Related Transactions. A.F. Petrocelli, a Director of the Company, is the Chairman of the Board and Chief Executive Officer of United Capital Corp. In March 1994, the Company entered into management agreements with the corporate owners of two hotels who are affiliates of United Capital Corp. The Company received $90,000 in management fees for the fiscal year ended 1994. During 1989, a partnership in which Peter E. Simon, father of David A. Simon, is a partner acquired an interest in three hotels 37 39 from PMI. In partial payment PMI received non-recourse junior loans aggregating $21,590,000. As of December 31, 1994, the aggregate balance owed on these loans was $21,472,766. The interest rates on these loans ranged from 9 1/2% to 11% per annum. The Company has restructured these loans in order to obtain payment based upon the available cash flow of the hotels. During 1994, the Company recognized $853,000 of interest income related to these loans. The Company managed these three hotels for the partnership and received $523,000 in management fees for fiscal year 1994. During 1989, this same partnership acquired PMI's interest in eight hotel properties. In partial payment PMI received a junior non-recourse mortgage note in the principal amount of $9,647,450. The Company restructured this transaction as of December 1, 1992 by (i) conveying to the partnership its interest in one hotel property, and (ii) amending the principal amount and interest rate of the note to $8,103,362 and 8.2% per annum, respectively. No debt payments were made on these loans during 1994. The Company managed these nine hotels for the partnership and received $329,000 in accounting and management fees for fiscal year 1994. During February 1990, this same partnership purchased from PMI a note owed by a third party in the original principal amount of $3,255,380. This partnership paid PMI $488,318 in cash and granted PMI an 85% note participation. In partial settlement of its claim on the note, the Company acquired a hotel located in Miami, Florida in which the partnership has a 15% interest. In December 1993, the Company entered into a management agreement with the corporate owner of a hotel in which Peter E. Simon is a stockholder. The Company received $40,000 in management fees for the fiscal year 1994. In 1991, the Company entered into an agreement with ShoLodge, a company controlled by Leon Moore, a former director, whereby ShoLodge was appointed the exclusive agent to develop and manage certain hotel properties. The Company had loans payable to ShoLodge of $39,896,000 at December 31, 1994 related to the development of hotels. The Company also uses the ShoLodge reservation system for its Wellesley and AmeriSuites properties. In February 1995, the Company entered into an agreement to acquire ShoLodge's option to purchase a 50% interest in 11 of the Company's AmeriSuites hotels and will also acquire the only AmeriSuites hotel not already owned by the Company. The total consideration payable by the Company in this transaction is $34,600,000 of which $16,100,000 will be paid in three cash installments during 1995 and the remaining $18,500,000 will be paid in notes maturing in 1997. As a result of this transaction, which 38 40 is scheduled to close on March 31, 1995, the Company will take over the management of these hotels. The Company has a note receivable from John H. Leavitt, Senior Vice President - Sales and Marketing, with a balance of $39,163 at December 31, 1994. The note bears interest at 8.5% and is due in 2011. The Company has retained Willkie Farr & Gallagher as its legal counsel involving certain matters during its last fiscal year and anticipates it will continue such relationship with the firm in this fiscal year. Mr. Nusbaum, Director of the Company, is a Senior Partner and Co-Chairman of the firm. PART IV Item 14 Exhibits, Financial Statement Schedules, and Reports on Form 8-K. (a) 1. Financial Statements The Financial Statements listed in the accompanying index to financial statements are filed as part of this Annual Report. 2. Exhibits (2) (a) Reference is made to the Disclosure Statement for Debtors' Second Amended Joint Plan of Reorganization dated January 16, 1992, which includes the Debtors' Second Amended Plan of Reorganization as an exhibit thereto filed as an Exhibit to the Company's Form 10-K dated September 25, 1992, which is incorporated herein by reference. (3) (a) Reference is made to the Restated Certificate of Incorporation of the Company dated June 5, 1992 filed as an Exhibit to the Company's Form 10-K dated September 25, 1992, which is incorporated herein by reference. (b) Reference is made to the Restated Bylaws of the Company filed as an Exhibit to the Company's Form 10-K dated September 25, 1992, which is incorporated herein by 39 41 reference. (4) (a) Reference is made to the Form of 8.20% Fixed Rate Senior Secured Note of the Company filed as an Exhibit to the Company's Form 10-K dated September 25, 1992, which is incorporated herein by reference. (b) Reference is made to the Form of Adjustable Rate Senior Secured Note of the Company filed as an Exhibit to the Company's Form 10-K dated September 25, 1992, which is incorporated herein by reference. (c) Reference is made to the Form of 9.20% Junior Secured Note of the Company filed as an Exhibit to the Company's Form 10-K dated September 25, 1992, which is incorporated herein by reference. (d) Reference is made to the Form of 8.20% Tax Note of the Company filed as an Exhibit to the Company's Form 10-K dated September 25, 1992, which is incorporated herein by reference. (e) Reference is made to the Form of 10.20% Secured UND Restructured Note of the Company filed as an Exhibit to the Company's Form 10-K dated September 25, 1992, which is incorporated herein by reference. (f) Reference is made to the Form of 8% Secured UND Restructured Note of the Company filed as an Exhibit to the Company's Form 10-K dated September 25, 1992, which is incorporated herein by reference. (g) Reference is made to the Form of 9.20% OVR Restructured Note of the Company filed as an Exhibit to the Company's Form 10-K dated September 25, 1992, which is incorporated herein by reference. 40 42 (h) Reference is made to the Collateral Agency Agreement among the Company, U.S. Trust and the Secured Parties, dated as of July 31, 1992 filed as an Exhibit to the Company's Form 10-K dated September 25, 1992, which is incorporated herein by reference. (i) Reference is made to the Security Agreement between the Company and U.S. Trust, dated as of July 31, 1992, filed as an Exhibit to the Company's Form 10-K dated September 25, 1992, which is incorporated herein by reference. (j) Reference is made to the Subsidiary Guaranty from FR Delaware, Inc. to United States Trust Company of New York, dated as of July 31, 1992, filed as an Exhibit to the Company's Form 10-K dated September 25, 1992, which is incorporated herein by reference. (k) Reference is made to the Security Agreement between FR Delaware, Inc. and United States Trust Company of New York, dated as of July 31, 1992, filed as an Exhibit to the Company's Form 10-K dated September 25, 1992, which is incorporated herein by reference. (l) Reference is made to the Subsidiary Guaranty from Prime Note Collections Company, Inc. to United States Trust Company of New York, dated as of July 31, 1992, filed as an Exhibit to the Company's Form 10-K dated September 25, 1992, which is incorporated herein by reference. (m) Reference is made to the Security Agreement between Prime Note Collections Company, Inc. and United States Trust Company of New York, dated as of July 31, 1992, filed as an Exhibit to the Company's Form 10-K dated September 25, 1992, which is incorporated herein by reference. 41 43 (n) Reference is made to a Form 8-A of the Company as filed on June 5, 1992 with the Securities and Exchange Commission, as amended by Amendment No. 1 and Amendment No. 2, which is incorporated herein by reference. (10) (a) Reference is made to the Agreement of Purchase and Sale between Flamboyant Investment Company, Ltd. and VMS Realty, Inc. dated June 3, 1985, and its related agreements, each of which was included as Exhibits to the Form 8-K dated August 14, 1985 of PMI, which are incorporated herein by reference. (b) Reference is made to PMI's Flexible Benefit Plan, filed as an Exhibit to the Form 10-Q dated February 12, 1988 of PMI, which is incorporated herein by reference. (c) Reference is made to the Employment Agreement dated as of July 31, 1992, between David A. Simon and the Company filed as an Exhibit to the Company's Form 10-K dated September 25, 1992, which is incorporated herein by reference. (d) Reference is made to the 1992 Performance Incentive Stock Option Plan of the Company dated as of July 31, 1992, filed as an Exhibit to the Company's Form 10-K dated September 25, 1992, which is incorporated herein by reference. (e) Reference is made to the 1992 Stock Option Plan of the Company filed as an Exhibit to the Company's Form 10-K dated September 25, 1992, which is incorporated herein by reference. (f) Reference is made to the 1992 Non-Qualified Stock Option Agreement between the Company and David A. Simon filed as an Exhibit to the Company's Form 10-K dated September 25, 1992, which is incorporated herein by reference. 42 44 (g) Reference is made to the 1992 Non-Qualified Stock Option Agreement between the Company and David L. Barsky filed as an Exhibit to the Company's Form 10-K dated September 25, 1992, which is incorporated herein by reference. (i) Reference is made to the Employment Agreement dated as of December 31, 1992 between John Elwood and the Company filed as an Exhibit to the Company's Form 10-K dated March 26, 1993, which is incorporated herein by reference. (j) Reference is made to the 1992 Non-Qualified Stock Option Agreement between the Company and John Elwood filed as an Exhibit to the Company's Form 10-K dated March 26, 1993, which is incorporated herein by reference. (k) Reference is made to the Employment Agreement dated as of May 18, 1993 between Paul Hower filed as an Exhibit to the Company's Form 10-K dated March 25, 1994, which is incorporated herein by reference. (l) Reference is made to the Consolidated and Amended Settlement Agreement dated as of October 12, 1993 between Allan V. Rose and the Company filed as an Exhibit to the Company's Form 10-K dated March 25, 1994, which is incorporated herein by reference. (m) Consent and Amendment to Prime Hospitality Corp. 9.20% Junior Secured Notes. (n) Agreement dated February 6, 1995 among Suites of America, Inc., ShoLodge, Inc. and the Company. (o) Change of Control Agreement dated February 15, 1995 between David A. Simon 43 45 and the Company. (p) Change of Control Agreement dated February 15, 1995 between John M. Elwood and the Company. (q) Change of Control Agreement dated February 15, 1995 between Paul H. Hower and the Company. (r) Change of Control Agreement dated February 15, 1995 between John H. Leavitt and the Company. (s) Change of Control Agreement dated February 15, 1995 between Denis W. Driscoll and the Company. (t) Change of Control Agreement dated February 15, 1995 between Timothy E. Aho and the Company. (u) Change of Control Agreement dated February 15, 1995 between Joseph Bernadino and the Company. (v) Change of Control Agreement dated February 15, 1995 between Richard T. Szymanski and the Company. (w) Change of Control Agreement dated February 15, 1995 between Douglas W. Vicari and the Company. (x) Change of Control Agreement dated February 15, 1995 between Richard Moskal and the Company. (11) Computation of Earnings Per Common Share. (12) Computation of the Ratio of Earnings to Fixed Charges. (21) Subsidiaries of the Company are as follows:
Jurisdiction of Name Incorporation ---- ------------- A.J.& R. Motor Inns, Inc. North Carolina Civic Motor Inns, Inc. Virginia Coliseum Motor Inns, Inc. Maryland Dynamic Marketing, Inc. Delaware
44 46 Fairfield Holding Corp. Delaware Fairfield-Meridian Claims Service, Inc. Delaware FR Delaware, Inc. Delaware FR Management Corporation Virginia Hartford Motor Inns, Inc. Virginia Mahwah Holding Corp. Delaware Market Segments, Incorporated Delaware OP Hotel, Inc. Kansas (subsidiary of Suites of America, Inc.) PHC Construction Corp. Delaware Prime-American Realty Corp. Delaware Prime Hotel Real Estate Investments, Inc. Delaware Prime Note Collections Company, Inc. Delaware Prime-O-Lene, Inc. New Jersey Prime-Trevose Enterprises, Inc. Pennsylvania Republic Motor Inns, Inc. Virginia Suites of America, Inc. Delaware York Motor Inns, Inc. Virginia (23) (a) Consent of Arthur Andersen LLP (b) Consent of J.H. Cohn & Company
(b) Reports on Form 8-K: None 45 47 PRIME HOSPITALITY CORP. AND SUBSIDIARIES INDEX TO FINANCIAL STATEMENTS (ITEM 14(A))
PAGE ---- FINANCIAL STATEMENTS: Report of Arthur Andersen LLP....................................................... F-2 Consolidated: Balance Sheets at December 31, 1993 and 1994..................................... F-3 Statements of Income for the Five Months Ended December 31, 1992 and the Years Ended December 31, 1993 and 1994................................................ F-4 Statements of Stockholders' Equity for the Five Months Ended December 31, 1992 and the Years Ended December 31, 1993 and 1994.................................. F-5 Statements of Cash Flows for the Five Months Ended December 31, 1992 and the Years Ended December 31, 1993 and 1994.......................................... F-6 Notes to Consolidated Financial Statements.......................................... F-7 Report of Arthur Andersen LLP....................................................... F-19 Report of J.H. Cohn & Company....................................................... F-20 Consolidated: Balance Sheets at June 30, 1992 and July 31, 1992................................ F-22 Statements of Operations for the Year Ended June 30, 1992 and the One Month Ended July 31, 1992................................................................... F-24 Statements of Stockholders' Equity (Deficiency) for the Year Ended June 30, 1992 and the One Month Ended July 31, 1992........................................... F-25 Statements of Cash Flows for the Year Ended June 30, 1992 and the One Month Ended July 31, 1992................................................................... F-26 Notes to Consolidated Financial Statements.......................................... F-28
Other schedules are omitted because of the absence of conditions under which they are required or because the required information is given in the consolidated financial statements or notes thereto. Separate financial statements of 50% or less owned entities accounted for by the equity method have been omitted because such entities considered in the aggregate as a single subsidiary would not constitute a significant subsidiary. F-1 48 REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS To the Board of Directors and Stockholders of Prime Hospitality Corp.: We have audited the accompanying consolidated balance sheets of Prime Hospitality Corp. (a Delaware corporation) and subsidiaries ("the Company") as of December 31, 1994 and 1993 and the related consolidated statements of income, stockholders' equity and cash flows for the years then ended and the five months ended December 31, 1992. These financial statements are the responsibility of the Company's management. Our responsibility is to express an opinion on these financial statements based on our audits. We conducted our audits in accordance with generally accepted auditing standards. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion. In our opinion, the financial statements referred to above present fairly, in all material respects, the financial position of Prime Hospitality Corp. and subsidiaries as of December 31, 1994 and 1993 and the results of their operations and their cash flows for the years then ended and the five months ended December 31, 1992 in conformity with generally accepted accounting principles. ARTHUR ANDERSEN LLP Roseland, New Jersey February 2, 1995 F-2 49 PRIME HOSPITALITY CORP. AND SUBSIDIARIES CONSOLIDATED BALANCE SHEETS DECEMBER 31, 1993 AND 1994 (IN THOUSANDS, EXCEPT SHARE DATA)
1993 1994 -------- -------- ASSETS Current assets: Cash and cash equivalents............................................ $ 41,569 $ 12,524 Restricted cash...................................................... 10,993 9,725 Accounts receivable, net of reserves................................. 6,266 7,819 Current portion of mortgages and notes receivable.................... 2,275 1,925 Accrued interest receivable.......................................... 3,954 1,539 Other current assets................................................. 3,145 5,657 -------- -------- Total current assets......................................... 68,202 39,189 Property, equipment and leasehold improvements, net of accumulated depreciation and amortization........................................ 172,786 299,291 Mortgages and notes receivable, net of current portion................. 163,033 81,260 Other assets........................................................... 6,664 15,192 -------- -------- TOTAL ASSETS................................................. $410,685 $434,932 ======== ======== LIABILITIES AND STOCKHOLDERS' EQUITY Current liabilities: Current portion of debt.............................................. $ 19,282 $ 5,284 Other current liabilities............................................ 22,445 23,904 -------- -------- Total current liabilities.................................... 41,727 29,188 Long-term debt, net of current portion................................. 168,618 178,545 Other liabilities...................................................... 28,976 23,134 -------- -------- Total liabilities............................................ 239,321 230,867 -------- -------- Commitments and contingencies Stockholders' equity: Preferred stock, par value $.10 per share; 20,000,000 shares authorized; none issued....................................................... -- -- Common stock, par value $.01 per share; 50,000,000 shares authorized 29,988,674 and 30,409,371 shares issued and outstanding in 1993 and 1994, respectively............................................ 300 304 Capital in excess of par value....................................... 157,507 171,774 Retained earnings.................................................... 13,557 31,987 -------- -------- Total stockholders' equity................................... 171,364 204,065 -------- -------- TOTAL LIABILITIES AND STOCKHOLDERS' EQUITY................... $410,685 $434,932 ======== ========
See Accompanying Notes to Consolidated Financial Statements. F-3 50 PRIME HOSPITALITY CORP. AND SUBSIDIARIES CONSOLIDATED STATEMENTS OF INCOME (IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
FIVE MONTHS ENDED YEAR ENDED YEAR ENDED DECEMBER 31, DECEMBER 31, DECEMBER 31, 1992 1993 1994 ------------ ------------ ------------ Revenues: Room................................................ $ 24,639 $ 69,487 $ 88,753 Food and beverage................................... 4,598 12,270 18,090 Management and other fees........................... 5,000 10,831 10,021 Interest on mortgages and notes receivable.......... 6,335 14,765 15,867 Rental and other.................................... 762 1,507 1,572 ------------ ------------ ------------ Total revenues.............................. 41,334 108,860 134,303 ------------ ------------ ------------ Costs and expenses: Direct hotel operating expenses: Room............................................. 6,952 19,456 24,539 Food and beverage................................ 4,027 10,230 13,886 Selling and general.............................. 7,811 20,429 26,733 Occupancy and other operating....................... 4,351 11,047 11,261 General and administrative.......................... 5,929 15,685 15,089 Depreciation and amortization....................... 2,918 7,117 9,427 ------------ ------------ ------------ Total costs and expenses.................... 31,988 83,964 100,935 ------------ ------------ ------------ Operating income...................................... 9,346 24,896 33,368 Interest income on cash investments................... 693 1,267 1,966 Interest expense...................................... (7,718) (16,116) (13,993) Other income.......................................... -- 3,809 9,089 ------------ ------------ ------------ Income before income taxes and extraordinary items.... 2,321 13,856 30,430 Provision for income taxes............................ 928 5,681 12,172 ------------ ------------ ------------ Income before extraordinary items..................... 1,393 8,175 18,258 Extraordinary items -- gains on discharges of indebtedness (net of income taxes of $2,772 and $120)............................................... -- 3,989 172 ------------ ------------ ------------ Net income............................................ $ 1,393 $ 12,164 $ 18,430 ========== ========== ========== Net income per common share: Income before extraordinary items................... $ .05 $ .27 $ .57 Extraordinary items................................. -- .13 .01 ------------ ------------ ------------ Net income per common share........................... $ .05 $ .40 $ .58 ========== ========== ==========
See Accompanying Notes to Consolidated Financial Statements. F-4 51 PRIME HOSPITALITY CORP. AND SUBSIDIARIES CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY (IN THOUSANDS, EXCEPT SHARE DATA)
COMMON STOCK CAPITAL IN ------------------- EXCESS OF RETAINED SHARES AMOUNT PAR VALUE EARNINGS TOTAL ---------- ------ ---------- -------- -------- Balance August 1, 1992........................ 29,912,794 $299 $ 135,301 $ -- $135,600 Net income.................................... -- -- -- 1,393 1,393 Utilization of net operating loss carryforwards............................... -- -- 789 -- 789 ---------- ------ ---------- -------- -------- Balance December 31, 1992..................... 29,912,794 299 136,090 1,393 137,782 Net income.................................... -- -- -- 12,164 12,164 Utilization of net operating loss carryforwards............................... -- -- 4,525 -- 4,525 Federal income tax refund..................... -- -- 16,462 -- 16,462 Compensation expense related to stock option plan........................................ -- -- 225 -- 225 Proceeds from exercise of stock options....... 30,000 -- 81 -- 81 Proceeds from exercise of stock warrants...... 45,880 1 124 -- 125 ---------- ------ ---------- -------- -------- Balance December 31, 1993..................... 29,988,674 300 157,507 13,557 171,364 Net income.................................... -- -- -- 18,430 18,430 Utilization of net operating loss carryforwards............................... -- -- 5,861 -- 5,861 Amortization of pre-fresh start tax basis differences........................... -- -- 6,954 -- 6,954 Federal income tax refund..................... -- -- 200 -- 200 Compensation expense related to stock option plan........................................ -- -- 60 -- 60 Proceeds from exercise of stock options....... 216,080 2 640 -- 642 Proceeds from exercise of stock warrants...... 204,617 2 552 -- 554 ---------- ------ ---------- -------- -------- Balance December 31, 1994..................... 30,409,371 $304 $ 171,774 $ 31,987 $204,065 ========= ====== ======== ======= ========
See Accompanying Notes to Consolidated Financial Statements. F-5 52 PRIME HOSPITALITY CORP. AND SUBSIDIARIES CONSOLIDATED STATEMENTS OF CASH FLOWS (IN THOUSANDS)
FIVE MONTHS ENDED DECEMBER YEAR ENDED YEAR ENDED 31, DECEMBER 31, DECEMBER 31, 1992 1993 1994 ----------- ------------ ------------ Cash flows from operating activities: Net income.............................................. $ 1,393 $ 12,164 $ 18,430 Adjustments to reconcile net income to net cash provided by operating activities: Depreciation and amortization........................ 2,918 7,117 9,427 Gain on settlement of note receivable................ -- -- (6,224) Utilization of net operating loss carryforwards...... 789 4,525 5,861 Amortization of pre-fresh start tax basis differences........................................ -- -- 6,954 Deferred income taxes................................ -- 1,541 (205) Gains on discharges of indebtedness.................. -- (6,761) (292) Gains on disposals of assets......................... -- (1,769) (1,099) Compensation expense related to stock options........ -- 225 60 Increase (decrease) from changes in other operating assets and liabilities: Accounts receivable.................................. 320 269 (1,945) Other current assets................................. (1,445) (1,791) 127 Other liabilities.................................... (248) 4,208 (2,422) ----------- ------------ ------------ Net cash provided by operating activities............ 3,727 19,728 28,672 ----------- ------------ ------------ Cash flows from investing activities: Proceeds from mortgages and other notes receivable...... 46,165 10,861 36,198 Disbursements for mortgages and other notes receivable........................................... -- (515) (1,100) Proceeds from sales of property, equipment and leasehold improvements......................................... -- 3,715 1,480 Purchases of property, equipment and leasehold improvements......................................... (1,803) (14,346) (63,360) Decrease in restricted cash............................. 9,939 1,903 1,268 Proceeds from retirement of debt securities............. -- -- 1,116 Purchase of debt and other securities................... -- -- (5,885) Other................................................... (506) 663 (3,965) ----------- ------------ ------------ Net cash provided by (used in) investing activities......................................... 53,795 2,281 (34,248) ----------- ------------ ------------ Cash flows from financing activities: Payments of debt........................................ (56,592) (30,890) (43,771) Proceeds from issuance of debt.......................... -- 2,771 19,026 Proceeds from the exercise of stock options and warrants............................................. -- 206 1,196 Principal proceeds from federal income tax refund....... -- 16,462 200 Reorganization items after emergence from bankruptcy.... (3,807) (5,605) (120) ----------- ------------ ------------ Net cash used in financing activities................ (60,399) (17,056) (23,469) ----------- ------------ ------------ Net increase (decrease) in cash and cash equivalents...... (2,877) 4,953 (29,045) Cash and cash equivalents at beginning of period.......... 39,493 36,616 41,569 ----------- ------------ ------------ Cash and cash equivalents at end of period................ $36,616 $ 41,569 $ 12,524 ========= ========== ==========
See Accompanying Notes to Consolidated Financial Statements. F-6 53 PRIME HOSPITALITY CORP. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS DECEMBER 31, 1992, 1993 AND 1994 NOTE 1 -- BUSINESS OPERATIONS AND SIGNIFICANT ACCOUNTING POLICIES BUSINESS ACTIVITIES: Prime Hospitality Corp. (the "Company") is a hotel owner/operator with ownership or management of hotels in the United States and the U.S. Virgin Islands. The Company's hotels primarily provide moderately priced, quality accommodations in secondary markets, and operate under franchise agreements with national hotel chains or under the Company's proprietary Wellesley Inns or AmeriSuites brand names. The Company emerged from the Chapter 11 reorganization proceeding of its predecessor, Prime Motor Inns, Inc. and certain of its subsidiaries ("PMI"), which consummated its Plan of Reorganization ("the Plan") on July 31, 1992 (the "Effective Date"). PMI and certain of its subsidiaries had filed for protection under Chapter 11 of the United States Bankruptcy Code in September of 1990. During the reorganization, PMI re-negotiated most of its leases, management agreements and debt commitments, resulting in the elimination of a substantial number of unprofitable contract relationships and excessive debt obligations. BASIS OF PRESENTATION: Pursuant to the American Institute of Certified Public Accountant's Statement of Position 90-7, "Financial Reporting by Entities in Reorganization Under the Bankruptcy Code" ("SOP 90-7"), the Company adopted fresh start reporting as of July 31, 1992. Under fresh start reporting, the reorganization value of the entity was allocated to the reorganized Company's assets on the basis of the purchase method of accounting. The reorganization value (the approximate fair value) of the assets of the emerging entity was determined by consideration of many factors and various valuation methods, including discounted cash flows and price/earnings and other applicable ratios believed by management to be representative of the Company's business and industry. Liabilities were recorded at face values, which approximate the present values of amounts to be paid determined at appropriate interest rates. Under fresh start reporting, the consolidated balance sheet as of July 31, 1992 became the opening consolidated balance sheet of the emerging Company. In accordance with SOP 90-7, financial statements covering periods prior to July 31, 1992 are not presented because such statements have been prepared on a different basis of accounting and are thus not comparable. PRINCIPLES OF CONSOLIDATION: The consolidated financial statements include the accounts of the Company and all of its majority-owned subsidiaries. All material intercompany accounts and transactions have been eliminated in consolidation. CASH EQUIVALENTS: Cash equivalents are highly liquid unrestricted investments with a maturity of three months or less when acquired. F-7 54 PRIME HOSPITALITY CORP. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED) RESTRICTED CASH: Restricted cash consists primarily of highly liquid investments that serve as collateral for debt obligations due within one year. MORTGAGES AND NOTES RECEIVABLE: Mortgages and notes receivable are reflected at their fair value as of July 31, 1992, adjusted for payments and other advances since that date. The amount of interest income recognized on mortgages and notes receivable is generally based on the stated interest rate and the carrying value of the notes. The Company has a number of subordinated or junior mortgages which remit payment based on hotel cash flow. Because there is substantial doubt that the Company will recover their face value, these mortgages have not been valued in the Company's consolidated financial statements. Interest on cash flow mortgages and delinquent loans is generally recognized when cash is received. PROPERTY, EQUIPMENT AND LEASEHOLD IMPROVEMENTS: Property, equipment and leasehold improvements that the Company intends to continue to operate are stated at their fair market value as of July 31, 1992 plus the cost of acquisitions subsequent to that date less accumulated depreciation and amortization from August 1, 1992. Provision is made for depreciation and amortization using the straight-line method over the estimated useful lives of the assets. Properties identified for disposal are stated at their estimated net realizable value. INCOME TAXES: The Company and its subsidiaries file a consolidated Federal income tax return. For financial reporting purposes, the Company follows Financial Accounting Standards Board Statement of Financial Accounting Standards No. 109 ("FAS 109"). In accordance with FAS 109, as well as SOP 90-7, income taxes have been provided at statutory rates in effect during the period. Tax benefits associated with net operating loss carryforwards and other temporary differences that existed at the time fresh start reporting was adopted are reflected as a contribution to stockholders' equity in the period in which they are realized. NET INCOME PER COMMON SHARE: Net income per common share is computed based on the weighted average number of common shares and common share equivalents outstanding during each period. The weighted average number of common shares used in computing primary net income per share was 29,913,000 for the five months ended December 31, 1992 and 30,721,000 and 32,022,000 for the years ended December 31, 1993 and 1994, respectively. Net income per common shares was restated for all periods to reflect a 9.4% reduction in the number of shares distributed under PMI's Plan (See Note 10). The dilutive effect of stock warrants and options during the five months ended December 31, 1992 and the years ended December 31, 1993 and 1994 was not material (see Note 10). RECLASSIFICATIONS: Certain reclassifications have been made to the December 31, 1992 and 1993 consolidated financial statements to conform them to the December 31, 1994 presentation. F-8 55 PRIME HOSPITALITY CORP. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED) NOTE 2 -- CASH AND CASH EQUIVALENTS Cash and cash equivalents are comprised of the following (in thousands):
DECEMBER 31, --------------------- 1993 1994 ------- ------- Cash........................................................... $ 3,013 $ 5,953 Commercial paper and other cash equivalents.................... 38,556 6,571 ------- ------- Totals............................................... $41,569 $12,524 ======= =======
NOTE 3 -- MORTGAGES AND NOTES RECEIVABLE Mortgages and notes receivable are comprised of the following (in thousands):
DECEMBER 31, ---------------------- 1993 1994 -------- ------- Properties operated by the Company(a)......................... $ 65,323 $60,609 Other(b)...................................................... 24,985 22,576 Frenchman's Reef resort hotel(c).............................. 50,000 -- Rose and Cohen entities(d).................................... 25,000 -- -------- ------- Total............................................... 165,308 83,185 Less current portion.......................................... (2,275) (1,925) -------- ------- Long-term portion............................................. $163,033 $81,260 ======== =======
- --------------- (a) The Company is the holder of mortgage notes receivable with a book value of $46,497,000 secured primarily by 10 hotel properties operated by the Company under management agreements and $14,112,000 in mortgages secured primarily by 4 properties operated under lease agreements. These notes currently bear interest at rates ranging from 8.5% to 13.5% and mature through 2017. The mortgages were primarily derived from the sales of hotel properties. Many of the managed properties were unable to pay in full the annual debt service required under the terms of the original mortgages. The Company has restructured approximately $33,000,000 of these loans to pay based upon available cash and a participation in the future excess cash flow of such hotel properties. The restructurings generally include a "senior portion" featuring defined payment terms, and a "junior portion" payable annually based on cash flow. The junior portion represents the difference between the original mortgage and the new senior portion and provides the Company the opportunity to recover that difference if the hotel's performance improves. In addition to the junior portion of the restructured mortgages, the Company holds junior or other cash flow mortgages and subordinated interests in other hotel properties operated by the Company under management agreements. The Company's consolidated balance sheets do not reflect any value related to the junior portions of the restructured notes or the junior mortgages and subordinated interests on the other hotels as there is substantial doubt that the Company will recover any of their face value. During 1993 and 1994, the Company recognized $976,000 and $2,000,000, respectively, of interest income related to these mortgages. (b) Other notes receivable currently bear interest at effective rates ranging from 4% to 10.5%, mature through 2011 and are secured primarily by hotel properties not currently managed by the Company. (c) The mortgage notes secured by the Frenchman's Reef Resort Hotel ("Frenchman's Reef") consisted of first and second mortgages with face values of $53,383,000 and $25,613,000, respectively, with final scheduled principal payments of $51,976,000 and $25,613,000 due on July 31, 1995. In connection with the adoption of fresh start reporting, the Company valued the notes at $50,000,000. F-9 56 PRIME HOSPITALITY CORP. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED) During the five months ended December 31, 1992, and years ended December 31, 1993 and 1994 the Company recognized $1,770,000, $4,250,000 and $4,586,000 of interest income on these notes, respectively, based on the level of cash flow generated from the hotel property available to service the notes. In December 1994, the Company obtained ownership of Frenchman's Reef in satisfaction of the mortgage note receivable through a pre-negotiated plan of reorganization. The Company had previously reached an agreement in 1993 to restructure its mortgage notes receivable secured by Frenchman's Reef with the general partner of Frenchman's Reef Beach Associates ("FRBA"), the owner of the hotel. In conjunction with the agreement, FRBA filed a pre-negotiated chapter 11 petition in September 1993. During the reorganization period, the Company continued to receive cash payments on its mortgage notes receivable under a cash collateral order approved by the Bankruptcy Court. Under the plan of reorganization, which was approved by the Bankruptcy Court on December 16, 1994, the Company obtained ownership and control of the hotel. As a result of obtaining this control, the Company reallocated its basis in the mortgage note receivable to the various operating assets acquired (principally land, hotel building and furniture and fixtures) based upon their respective fair market value. (d) The note receivable from Rose and Cohen represented the estimated fair market value as of July 31, 1992 of certain amounts loaned by PMI to entities controlled by Allan Rose and Arthur Cohen ("Rose and Cohen"). During 1993, the Company reached a settlement with Rose and Cohen of an adversary proceeding regarding a promissory note and personal guarantee, commenced by a subsidiary of PMI during 1991. The settlement provided for Rose or his affiliate to pay the Company the sum of $25 million, plus proceeds from approximately 1.1 million shares of the Company's common stock held by Rose. Financial Security Assurance, Inc. ("FSA") asserted that it was entitled to receive the settlement proceeds under the terms of a certain intercreditor agreement. In April 1994, the Court approved the settlement and ruled that the Company had an exclusive right to the settlement proceeds. Upon receipt of the order, the Company used the $25 million of settlement proceeds to retire certain senior secured notes (see Note 6). On April 21, 1994, FSA filed its notice of appeal of the Court's order. During 1994, Rose sold approximately 1.0 million shares of the Company's common stock under the terms of the settlement for net proceeds of approximately $6.2 million. Since the Rose and Cohen note had a book value of $25 million at the time of the settlement, approximately $6.2 million was recorded as income in the Company's statement of operations. All proceeds received pursuant to the settlement after April 21, 1994 have been held in escrow until an order on the appeal is received. The Company believes that FSA is unlikely to prevail on its claim, and as a result, does not believe it will have a material impact on the accompanying consolidated financial statements. Upon receipt of a favorable order from the Court, substantially all of the net proceeds are required to be used to retire additional debt (see Note 6). F-10 57 PRIME HOSPITALITY CORP. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED) NOTE 4 -- PROPERTY, EQUIPMENT AND LEASEHOLD IMPROVEMENTS Property, equipment and leasehold improvements consist of the following (in thousands):
DECEMBER 31, --------------------- YEARS OF 1993 1994 USEFUL LIFE -------- -------- ----------- Land and land leased to others..................... $ 29,407 $ 49,438 Hotels............................................. 109,671 200,706 20 to 40 Furniture, fixtures and autos...................... 21,879 46,021 3 to 10 Leasehold improvements............................. 10,222 11,336 3 to 40 Construction in progress........................... 2,555 1,457 Properties held for sale........................... 8,355 8,898 -------- -------- Sub-total........................................ 182,089 317,856 Less accumulated depreciation and amortization... (9,303) (18,565) -------- -------- Totals................................... $172,786 $299,291 ======== ========
At December 31, 1994, the Company was the lessor of land and certain restaurant facilities in Company-owned hotels with an approximate aggregate book value of $8,074,000 pursuant to noncancelable operating leases expiring on various dates through 2013. Minimum future rentals under such leases are $10,132,000, of which $3,961,000 is scheduled to be received in the aggregate during the five-year period ending December 31, 1999. Depreciation and amortization expense on property, equipment and leasehold improvements was $2,784,000 for the five months ended December 31, 1992 and $7,015,000 and $9,300,000 for the years ended December 31, 1993 and 1994, respectively. During the years ended December 31, 1993 and 1994, the Company capitalized $0 and $836,000, respectively, of interest related to borrowings used to finance hotel construction. NOTE 5 -- OTHER CURRENT LIABILITIES Other current liabilities consist of the following (in thousands):
DECEMBER 31, ------------------- 1993 1994 ------- ------- Accounts payable................................................. $ 2,025 $ 4,436 Interest......................................................... 4,454 3,115 Accrued payroll and related benefits............................. 2,190 2,490 Accrued expenses................................................. 1,592 4,182 Insurance reserves............................................... 6,206 5,123 Other............................................................ 5,978 4,558 ------- ------- Totals................................................. $22,445 $23,904 ======= =======
F-11 58 PRIME HOSPITALITY CORP. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED) NOTE 6 -- DEBT Debt consists of the following (in thousands):
DECEMBER 31, --------------------- 1993 1994 -------- -------- Secured notes(a)............................................... $ 86,683 $ 52,580 Mortgages and other notes payable(b)........................... 99,946 131,249 Borrowings under credit agreement.............................. 1,271 -- -------- -------- Total debt..................................................... 187,900 183,829 Less current maturities........................................ (19,282) (5,284) -------- -------- Debt, net of current portion.............................. $168,618 $178,545 ======== ========
- --------------- (a) Pursuant to the Plan, the Company issued two classes of Secured Notes which are identified as "Senior Secured Notes" and "Junior Secured Notes". The aggregate principal amount of Senior Secured Notes issued under the Plan was $91,300,000, comprised of $30,100,000 of 8.20% Fixed Rate Senior Secured Notes and $61,200,000 of Adjustable Rate Senior Secured Notes. The aggregate principal amount of Junior Secured Notes issued under the Plan was approximately $70,000,000. During 1994, the Company repurchased $6,527,000 of its Adjustable Rate Senior Secured Notes, $217,000 of its 8.20% Senior Secured Notes and $461,000 of its 9.20% Junior Secured Notes for an aggregate purchase price of $7,018,000. The repurchases resulted in pretax extraordinary gains of $187,000. In April 1994, the Company retired its Senior Secured Notes with a pre-payment of $26,408,000. In addition to the repurchases described above, during 1994 the Company purchased through a third party agent approximately $5,200,000 of its Senior Secured Notes and Junior Secured Notes for aggregate consideration of approximately $4,800,000. These notes are currently held by the third party agent and have not been retired due to certain restrictions under the note agreements. The purchases were recorded as investments on the Company's balance sheet and no gain will be recorded on these transactions until the notes mature or are redeemed. In April 1994, approximately $1,100,000 of the notes were retired from the proceeds of the Rose and Cohen settlement (See Note 3) resulting in a pretax extraordinary gain of approximately $100,000. In August 1994, approximately $37,000 was retired resulting in a pretax extraordinary gain of $5,000. As of December 31, 1994, the Company had unrecognized holding gains of approximately $295,000 related to these securities. In 1994, the Company received consents from the required holders of its Junior Secured Notes to remove certain debt covenants which placed limitations on the Company's hotel development spending. In consideration of the amendment consent, the Company agreed to increase the coupon interest rate from 9.2% to 10.0% and to shorten the maturity by one year, from July 31, 2000 to July 31, 1999. In addition, the designation of these notes was changed from Junior Secured Notes to Senior Secured Notes, as the original Senior Secured Notes were retired. The collateral for the Secured Notes consists primarily of mortgages and notes receivable and real property, net of related liabilities (the "Secured Note Collateral"), with a book value of $92,215,000 as of December 31, 1994. Interest on the Secured Notes is payable semi-annually. The Secured Notes require that 85% of the cash proceeds from the Secured Note Collateral be applied first to interest then to prepayment of principal. Aggregate principal payments on the Secured Notes are required in order that one-third of the principal balance outstanding on December 31, 1996 is paid by July 31, 1998 and all of the balance is paid by July 31, 1999. To the extent the cash proceeds from the Secured Note Collateral are insufficient to pay F-12 59 PRIME HOSPITALITY CORP. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED) interest or required principal payments on the Secured Notes, the Company will be obligated to pay any deficiency out of its general corporate funds. The Secured Notes contain covenants which, among other things, require the Company to maintain a net worth of at least $100,000,000, and preclude cash distributions to stockholders, including dividends and redemptions, until the Secured Notes have been paid in full. (b) The Company has mortgage and other notes payable of approximately $74,713,000 that are secured by mortgage notes receivable and hotel properties with a book value of $110,476,000. Principal and interest on these mortgages and notes are generally paid monthly. At December 31, 1994 these notes bear interest at rates ranging from 4.68% to 12.45% and mature through 2008. At December 31, 1994, the Company has outstanding loans in the amount of $39,896,000 payable to ShoLodge, Inc. ("ShoLodge"). The foregoing loans are secured by AmeriSuites hotel properties with an aggregate book value of $63,824,000. The notes bear interest at 10.25% and mature in April 1997. The Company expects to incur an additional $3,600,000 of debt in the first quarter of 1995 in connection with its purchase of ShoLodge's option to acquire a 50% interest in Suites of America, Inc., a wholly owned subsidiary of the Company (see Note 9). The Company has $11,614,000 of notes restructured under the Plan which bear interest at rates ranging from 8.00% to 9.20% per annum payable semi-annually. Prior to maturity, principal amounts outstanding will be paid semi-annually based on a thirty-year amortization schedule. Each note matures on July 31, 2002 and is secured by a lien on mortgage notes receivable and hotel properties with a book value of $11,129,000 at December 31, 1994. The Company has other notes of $3,156,000, which bear interest at rates ranging from 8.0% to 8.2% and mature through 1999. In February 1995, the Company obtained $39 million of mortgage financing secured by hotels under two separate loan agreements. Both loans bear interest at variable rates (approximately 10.50% at December 31, 1994) and mature in 2000. Maturities of long-term debt for the next five years ending December 31 are as follows (in thousands): 1995...................................................... $ 5,284 1996...................................................... 41,073 1997...................................................... 45,687 1998...................................................... 3,617 1999...................................................... 54,717 Thereafter................................................ 33,451 -------- Total..................................................... $183,829 ========
NOTE 7 -- LEASE COMMITMENTS AND CONTINGENCIES Leases The Company leases various hotels under lease agreements with initial terms expiring at various dates from 1995 through 2022. The Company has options to renew certain of the leases for periods ranging from 1 to 99 years. Rental payments are based on minimum rentals plus a percentage of the hotel properties' revenues in excess of stipulated amounts. F-13 60 PRIME HOSPITALITY CORP. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED) The following is a schedule, by year, of future minimum lease payments required under the remaining operating leases that have terms in excess of one year as of December 31, 1994 (in thousands): 1995...................................................... $ 4,630 1996...................................................... 4,597 1997...................................................... 4,565 1998...................................................... 4,533 1999...................................................... 4,500 Thereafter................................................ 95,638 -------- Total..................................................... $118,463 ========
Rental expense for all operating leases, including those with terms of less than one year, consist of the following for the five months ended December 31, 1992 and the years ended December 31, 1993 and 1994 (in thousands):
DECEMBER 31, ---------------------------- 1992 1993 1994 ------ ------ ------ Rentals.................................................. $1,844 $5,009 $4,654 Contingent rentals....................................... 266 764 823 ------ ------ ------ Rental expense................................. $2,110 $5,773 $5,477 ====== ====== ======
Employee Benefits The Company does not provide any material post employment benefits to its current or former employees. Contingent Claims The Company is involved in various other proceedings incidental to the normal course of its business. The Company believes that the resolution of these contingencies will not have a material adverse effect on the Company's consolidated financial position or results of operations. Financial Instruments and Concentration of Credit Risk The Company's accounts receivable and mortgages and other notes receivable (see Note 3) are derived primarily from and are secured by hotel properties, which constitutes a concentration of credit risk. These notes are subject to many of the same risks as the Company's operating hotel assets. A significant portion of the collateral is located in the Northeastern and Southeastern United States. In addition to the hotel property related receivables referred to above, the Company's financial instruments include (i) assets; cash and cash equivalents and restricted cash investments and (ii) liabilities; trade and notes payable and long-term debt (see Note 6). As described in Note 1, in connection with the adoption of fresh start accounting as of July 31, 1992, the Company revalued its assets and liabilities at amounts approximating fair market value. Since there have been no substantive adverse changes in market conditions since the date of the revaluation and on the basis of market quotes and experience on recent redemption offers for the Company's long-term debt, the Company believes that the carrying amount of these financial instruments approximated their fair market value as of December 31, 1993 and 1994. As a result of the reorganization proceedings and the rejection of certain leases, management contracts and other guarantees, the Company has no other material off-balance-sheet liabilities or credit risk as of December 31, 1994. F-14 61 PRIME HOSPITALITY CORP. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED) NOTE 8 -- INCOME TAXES The provision for income taxes (including amounts applicable to extraordinary items) consisted of the following for the five months ended December 31, 1992 and the years ended December 31, 1993 and 1994 (in thousands):
DECEMBER 31, ---------------------------- 1992 1993 1994 ---- ------- -------- Current: Federal................................................. $ -- $ 2,167 $ 970 State................................................... 139 220 28 ---- ------- -------- 139 2,387 998 Deferred: Federal................................................. 789 5,049 9,780 State................................................... -- 1,017 1,514 ---- ------- -------- 789 6,066 11,294 ---- ------- -------- Total........................................... $928 $ 8,453 $ 12,292 ==== ====== =======
Income taxes are provided at the applicable federal and state statutory rates. The tax effects of the temporary differences in the areas listed below resulted in deferred income tax provisions for the five months ended December 31, 1992 and the years ended December 31, 1993 and 1994 (in thousands):
DECEMBER 31, --------------------------- 1992 1993 1994 ---- ------- ------- Utilization of net operating loss......................... $789 $ 4,525 $ 5,861 Amortization of pre-fresh start basis differences -- properties and notes............................................... -- 1,322 5,632 Depreciation.............................................. -- 144 200 Leasehold reserves........................................ -- -- 450 Property transactions..................................... -- -- 320 Other..................................................... -- 75 (1,169) ---- ------- ------- Total........................................... $789 $ 6,066 $11,294 ==== ====== =======
At December 31, 1994, the Company had available federal net operating loss carryforwards of approximately $117,500,000 which will expire beginning in 2005 and continuing through 2007. Of this amount, $104,800,000 is subject to an annual limitation of $8,735,000 under the Internal Revenue Code due to a change in ownership of the Company upon consummation of the Plan. The Company also has potential state income tax benefits relating to net operating loss carryforwards of approximately $9,262,000 which will expire during various periods from 1995 to 2006. Certain of these potential benefits are subject to annual limitations similar to federal requirements due to factors such as the level of business conducted in each state and the amount of income subject to tax within each state's carryforward period. In accordance with FAS 109, the Company has not recognized the future tax benefits associated with the net operating loss carryforwards or with other temporary differences. Accordingly, the Company has provided a valuation allowance of approximately $41,000,000 against the deferred tax asset as of December 31, 1994. To the extent any available carryforwards or other tax benefits are utilized, the amount of tax benefit realized will be treated as contribution to stockholders' equity and will have no effect on the income tax provision for F-15 62 PRIME HOSPITALITY CORP. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED) financial reporting purposes. For the five months ended December 31, 1992 and the years ended December 31, 1993 and 1994 the Company recognized $789,000, $4,525,000 and $5,861,000, respectively, of such tax benefits as a contribution to stockholders' equity. Additionally, the Company recognized $6,954,000 as a contribution to stockholders' equity for the years ended December 31, 1994, which represents the amortization of pre-fresh start tax basis differences related to properties and notes receivable. NOTE 9 -- RELATED PARTY TRANSACTIONS The following summarizes significant financial information with respect to transactions with present and former officers, directors, their relatives and certain entities they control or in which they have a beneficial interest for the five months ended December 31, 1992 and the years ended December 31, 1993 and 1994 (in thousands):
DECEMBER 31, ------------------------- 1992 1993 1994 ---- ---- ------- Management and other fee income(a).......................... $312 $810 $ 1,165 Interest income(a).......................................... 72 14 1,283 Management fee expense(b)................................... 162 222 679 Interest expense(b)......................................... 332 475 461 Reservation fee expense(b).................................. 101 468 317
- --------------- (a) The Company manages 15 hotels for partnerships in which related parties own various interests. The income amounts shown above primarily include transactions related to these hotel properties. (b) In 1991, the Company entered into an agreement with ShoLodge, a company controlled by a former director, whereby ShoLodge was appointed the exclusive agent to develop and manage certain hotel properties. The Company had loans payable to ShoLodge of $39,896,000 at December 31, 1994 related to the development of hotels. The Company also uses the ShoLodge reservation system for its Wellesley and AmeriSuites properties. In February 1995, the Company entered into an agreement to acquire ShoLodge's option to purchase a 50% interest in 11 of the Company's AmeriSuites hotels and will also acquire the only remaining AmeriSuites hotel not already owned by the Company. The total consideration payable by the Company in this transaction is $34,600,000 of which $16,100,000 will be paid in three cash installments during 1995 and the remaining $18,500,000 will be paid in notes maturing in 1997. As a result of this transaction, which is scheduled to close on March 31, 1995, the Company will take over the management of these hotels. NOTE 10 -- COMMON STOCK AND COMMON STOCK EQUIVALENTS Pursuant to the Plan, on July 31, 1992 the Company began distributing shares of common stock to certain claimants and holders of PMI stock. The Plan provided for issuance of up to 33,000,000 shares of common stock; however, the number of shares ultimately distributed were 29,913,000. The consolidated financial statements had previously given full effect to the issuance of the maximum amount of 33,000,000 shares under the Plan. During 1994, when the Company resolved the final share distribution, it restated net income for all prior periods to reflect the 9.4% reduction in the number of shares. In addition to the shares distributed under the Plan, warrants to purchase 2,106,000 shares of the Company's common stock were issued to former shareholders of the Company's predecessor, PMI, in partial settlement of their bankruptcy interests. The warrants became exercisable on August 31, 1993 at an exercise price of $2.71 per share and expire five years after the date of grant. The exercise price was determined from the average per share daily closing price of the Company's common stock during the year following its reorganization on July 31, 1992. As of December 31, 1994 warrants to purchase 250,497 shares have been exercised. F-16 63 PRIME HOSPITALITY CORP. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED) On July 31, 1992, the Company adopted various stock option and performance incentive plans under which options to purchase up to 1,650,000 shares of common stock may be granted to directors, officers or key employees under terms determined by the Board of Directors. During 1992, options to purchase 350,000 shares were granted to officers and directors, 240,000 of which are exercisable at December 31, 1994. In addition, options to purchase 330,000 shares were granted to a former officer in 1992. Such options are currently exercisable and expire on July 31, 1995. At December 31, 1994, 180,000 of these options were exercised. The exercise prices of the above options are based on the average market price one year from the date of grant which was determined to be $2.71 per share. Based on this exercise price, the amount of compensation expense attributable to these options was $225,000 and $60,000 for the years ended December 31, 1993 and 1994, respectively. In June 1993, options to purchase 393,000 shares of common stock were granted to employees under the Company's stock option plan. The options were granted at $3.63, which approximates the fair market value at the date of grant. Generally, options can be exercised during a participant's employment with the Company in equal annual installments over a three-year period and expire six years after the date of grant. During 1994, 41,080 shares were exercised. In August 1993, options to purchase 315,000 shares of common stock were granted to the members of the Company's Board of Directors. The options were granted at $3.20, which approximates the fair market value at the date of grant. One-third of these options became exercisable at the date of grant and the remaining options can be exercised in equal annual installments over a two-year period. The options expire six years after the date of grant. During 1994, 25,000 shares were exercised. In January 1994, options to purchase 50,000 shares of common stock were granted to a member of the Company's Board of Directors. The options were granted at $7.375, which approximates the fair market value at the date of grant. The options can be exercised in equal annual installments over a four year period. The options expire six years after the date of grant. In August 1994, options to purchase 317,100 shares of common stock were granted to employees under the Company's performance incentive plan. The options were granted at $7.625, which approximates the fair market value at the date of grant. Generally, options can be exercised during a participant's employment with the Company in equal annual installments over a three-year period and expire six years after the date of grant. In December 1994, options to purchase 30,000 shares of common stock were granted to new members of the Company's Board of Directors. The options were granted at $7.125, which approximates the fair market value at the date of grant. One-third of these options became exercisable at the date of grant and the remaining options can be exercised in equal annual installments over a two year period. The options expire six years after the date of grant. F-17 64 PRIME HOSPITALITY CORP. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED) The following is a summary of the various stock option plans:
OPTION NUMBER PRICE OF SHARES PER SHARE --------- ----------- Outstanding -- December 31, 1992............................ 680,000 $2.71 Granted..................................................... 728,000 $2.71-$3.63 Exercised................................................... (30,000) $2.71 Cancelled................................................... (77,000) $2.71-$3.63 --------- Outstanding at December 31, 1993............................ 1,301,000 --------- Granted..................................................... 397,000 $7.38-$7.63 Exercised................................................... (216,000) $2.71-$3.63 Cancelled................................................... (40,000) $3.63-$7.63 --------- Outstanding at December 31, 1994............................ 1,442,000 ======== Exercisable at December 31, 1994............................ 700,000 $2.71-$7.63 ========
NOTE 11 -- SUPPLEMENTAL CASH FLOW INFORMATION The following summarizes non-cash investing and financing activities for the five months ended December 31, 1992 and the years ended December 31, 1993 and 1994 (in thousands):
DECEMBER 31, ----------------------------- 1992 1993 1994 ------ ------ ------- Hotels acquired in exchange for the assumption of mortgage notes payable......................................... $ -- $9,161 $18,718 Hotels received in settlement of mortgage notes receivable............................................ 7,800 3,500 54,521 Sale of hotel in exchange for a mortgage note receivable............................................ $ -- $6,500 $ 1,497
Cash paid for interest was $2,981,000 for the five months ended December 31, 1992 and $16,347,000 and $15,503,769 for the years ended December 31, 1993 and 1994, respectively. Cash paid for income taxes was $0 for the five months ended December 31, 1992 and $2,697,000 and $1,900,000 for the years ended December 31, 1993 and 1994, respectively. F-18 65 REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS To the Board of Directors and Stockholders of Prime Hospitality Corp.: We have audited the accompanying consolidated balance sheet of Prime Hospitality Corp. (a Delaware corporation) and subsidiaries ("the Company") as of July 31, 1992 and the related consolidated statements of operations, stockholders' equity and cash flows for the one month then ended. These financial statements are the responsibility of the Company's management. Our responsibility is to express an opinion on these financial statements based on our audit. We conducted our audit in accordance with generally accepted auditing standards. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audit provides a reasonable basis for our opinion. In our opinion, the financial statements referred to above present fairly, in all material respects, the financial position of Prime Hospitality Corp. and subsidiaries as of July 31, 1992 and the results of their operations and their cash flows for the one month then ended in conformity with generally accepted accounting principles. As discussed in Note 8, the Company held an investment in a mortgage note receivable from certain entities with a face value of $100,890,000 that is valued at $25,000,000 at July 31, 1992. The realization of this investment is dependent primarily on the ability of the Company to recover such amount pursuant to the personal guarantees provided by two individuals who control the entities that are the obligors under the mortgage note and own the hotel properties that serve as the underlying collateral for the note. The Company has commenced a legal action to recover pursuant to such guarantees; however, the financial statements do not include any adjustments that might result from the outcome of this matter. Roseland, New Jersey Arthur Andersen LLP March 10, 1993 F-19 66 REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS To the Board of Directors and Stockholders of Prime Motor Inns, Inc. (Debtor-in-Possession) We have audited the consolidated balance sheet of Prime Motor Inns, Inc. and Subsidiaries (Debtors-in-Possession) as of June 30, 1992, and the related consolidated statements of operations, stockholders' equity (deficiency) and cash flows for the year then ended. These financial statements are the responsibility of the Company's management. Our responsibility is to express an opinion on these financial statements based on our audit. We conducted our audit in accordance with generally accepted auditing standards. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audit provides a reasonable basis for our opinion. In our opinion, the financial statements referred to above present fairly, in all material respects, the consolidated financial position of Prime Motor Inns, Inc. and Subsidiaries (Debtors-in-Possession) as of June 30, 1992, and their results of operations and cash flows for the year then ended, in conformity with generally accepted accounting principles. As discussed in Note 7, the Company held an investment in a mortgage note receivable from certain entities with a face value of $100,890,000 that had been written down to $30,000,000 at June 30, 1992. The realization of the carrying value is dependent primarily on the ability of the Company to recover such amount pursuant to the personal guarantees provided by the two individuals who control the entities that are the obligors under the mortgage note and the owners of the hotel properties that serve as the underlying collateral for the loan. The Company has commenced a legal action to recover pursuant to such guarantees; however, the outcome of this action is not presently determinable. As discussed in Note 11, the Company has reflected pre-petition and certain post-petition claims in the consolidated balance sheet as of June 30, 1992 as liabilities subject to compromise based on its estimate of the aggregate amount that will ultimately be allowable for settlement upon consummation of the plan of reorganization; F-20 67 however, the aggregate amount claimed by creditors is substantially in excess of the liability recorded by the Company. The actual aggregate amount of allowable pre and post-petition claims cannot presently be determined. As discussed in Note 14, the Company and certain of its present and former officers and directors are defendants in certain consolidated class action complaints alleging federal securities law violations and other claims. The ultimate outcome of such litigation cannot presently be determined. The eventual outcome of the matters discussed in the three preceding paragraphs is not presently determinable and the consolidated financial statements as of June 30, 1992 and for the year then ended do not include any adjustments relating to the resolution of those uncertainties. As discussed in Note 2, the Company's plan of reorganization became effective on July 31, 1992, and it will implement the guidance as to the accounting for entities emerging from Chapter 11 set forth in Statement of Position 90-7, "Financial Reporting by Entities in Reorganization under the Bankruptcy Code" ("Fresh Start Reporting") as of that date. The Company has not presently determined the amounts that will be recorded under Fresh Start Reporting. However, the implementation of Fresh Start Reporting as a result of the Company's emergence from Chapter 11 will materially change the amounts reported in consolidated financial statements as of and for periods ending subsequent to July 31, 1992. As a result of the reorganization and the implementation of Fresh Start Reporting, assets and liabilities will be recorded at fair values and outstanding obligations relating to the claims of creditors will be discharged primarily in exchange for cash, new indebtedness and equity. The accompanying consolidated financial statements as of June 30, 1992 and for the year then ended do not give effect to any adjustments that will be made as a result of the Company's reorganization and emergence from Chapter 11. J.H. Cohn & Company Roseland, New Jersey September 24, 1992 F-21 68 PRIME HOSPITALITY CORP. AND SUBSIDIARIES CONSOLIDATED BALANCE SHEETS (IN THOUSANDS, EXCEPT SHARE DATA) FRESH START REPORTING WAS IMPLEMENTED AND THE PURCHASE METHOD OF ACCOUNTING WAS APPLIED TO RECORD THE FAIR VALUE OF ASSETS AND ASSUMED LIABILITIES OF THE REORGANIZED COMPANY AT JULY 31, 1992. ACCORDINGLY, THE ACCOMPANYING BALANCE SHEET AS OF JULY 31, 1992 IS NOT COMPARABLE IN ALL MATERIAL RESPECTS TO SUCH STATEMENT AS OF ANY DATE PRIOR TO JULY 31, 1992 SINCE THE BALANCE SHEET IS THAT OF A NEW ENTITY.
JUNE 30, | JULY 31, 1992 | 1992 -------- | -------- ASSETS | | Current assets: | Cash and cash equivalents.............................................. $ 60,142 | $ 39,493 Restricted cash........................................................ -- | 22,835 Accounts receivable, net of reserves................................... 7,962 | 9,115 Current portion of mortgages and | other notes receivable............................................. 63,506 | 48,006 Other current assets................................................... 1,895 | 4,254 -------- | -------- Total current assets............................................... 133,505 | 123,703 | Restricted cash............................................................. 43,947 | 1,232 Property, equipment and leasehold | improvements, net of accumulated | depreciation and reserves.............................................. 179,472 | 160,417 Mortgages and other notes receivable, | net of current portion, writedowns | and valuation reserves................................................. 194,443 | 178,543 Other assets................................................................ 2,751 | 4,755 -------- | -------- | TOTAL ASSETS .......................................................... $554,118 | $468,650 ======== | ========
See Accompanying Notes to Consolidated Financial Statements. F-22 69 PRIME HOSPITALITY CORP. AND SUBSIDIARIES CONSOLIDATED BALANCE SHEETS (IN THOUSANDS, EXCEPT SHARE DATA) (CONTINUED)
JUNE 30, | JULY 31, 1992 | 1992 -------- | -------- LIABILITIES AND STOCKHOLDERS' | EQUITY (DEFICIENCY) | | Current liabilities: | Notes payable..................................................... $ 5,971 | $ 5,971 Current portion of long-term debt................................. 81 | 61,917 Other current liabilities......................................... 25,944 | 31,136 --------- | -------- Total current liabilities................................ 31,996 | 99,024 | Long-term debt, net of current portion................................. 8,921 | 204,438 Deferred income........................................................ 36,243 | -- Other liabilities...................................................... -- | 29,588 --------- | -------- Total liabilities not | subject to compromise.................................. 77,160 | 333,050 --------- | -------- | Liabilities subject to compromise...................................... 706,250 | -- --------- | -------- Total liabilities........................................ 783,410 | 333,050 --------- | -------- | Commitments and contingencies | | Stockholders' equity (deficiency): | Preferred stock, par value $1.00 per | share; 5,000,000 shares authorized; | none issued; cancelled July 31, 1992.......................... -- | -- Preferred stock, par value $.10 per | share; 20,000,000 shares authorized; | none issued................................................... -- | -- Common stock; par value $.05 per | share; 100,000,000 shares authorized; | 33,662,334 shares issued; cancelled | July 31, 1992................................................. 1,683 | -- Common stock, par value $.01 per share; | 50,000,000 shares authorized; | 33,000,000 shares issued and | outstanding................................................... -- | 330 Capital in excess of par value.................................... 311,355 | 135,270 Retained earnings (accumulated deficit)........................... (539,125) | -- Treasury stock, 634,535 shares at | cost; cancelled July 31, 1992................................. (3,205) | -- --------- | -------- Total stockholders' equity | (deficiency)......................................... (229,292) | 135,600 --------- | -------- TOTAL LIABILITIES AND | STOCKHOLDERS' EQUITY | (DEFICIENCY)......................................... $ 554,118 | $468,650 ========= | ========
See Accompanying Notes to Consolidated Financial Statements. F-23 70 PRIME HOSPITALITY CORP. AND SUBSIDIARIES CONSOLIDATED STATEMENTS OF OPERATIONS (IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
YEAR ONE MONTH ENDED ENDED JUNE 30, JULY 31, 1992 1992 -------- -------- Revenues: Rooms..................................................... $ 75,082 $ 5,133 Food and beverage......................................... 20,841 693 Management and other fees................................. 11,031 785 Interest and dividend income.............................. 24,127 1,949 Other..................................................... 3,109 233 -------- -------- Total revenues................................... 134,190 8,793 -------- -------- Costs and expenses: Direct operating expenses: Rooms................................................. 21,692 1,421 Food and beverage..................................... 17,082 681 Other operating and general expenses.............................................. 65,184 4,302 Depreciation and amortization............................. 7,635 680 Interest (contractual interest of $36,252 for fiscal 1992 and $3,079 for July 1992)................................. 8,245 779 Valuation writedowns and reserves......................... 62,123 13,000 -------- -------- Total costs and expenses......................... 181,961 20,863 -------- -------- Loss before reorganization items, income taxes and extraordinary items...................... (47,771) (12,070) Reorganization items.......................................... (23,194) 1,796 -------- -------- Loss before income taxes and extraordinary items....................................... (70,965) (10,274) Provision for income taxes.................................... 1,000 -- -------- -------- Loss before extraordinary items............................... (71,965) (10,274) Extraordinary items: Gain on discharge of indebtedness......................... -- 249,600 -------- -------- NET INCOME (LOSS)............................................. $(71,965) $239,326 ======== ======== Income (loss) per common share: Primary: Operations............................................ $ (2.18) $ (.31) Extraordinary items................................... -- 7.56 -------- -------- NET INCOME (LOSS)............................................. $ (2.18) $ 7.25 ======== ========
See Accompanying Notes to Consolidated Financial Statements. F-24 71 PRIME HOSPITALITY CORP. AND SUBSIDIARIES CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY (DEFICIENCY) (IN THOUSANDS, EXCEPT SHARE DATA)
Capital in Retained Total Common Stock Excess Earnings Treasury Stock Stockholders' -------------------- of Par (Accumulated) ----------------- Equity Shares Amount Value Deficit) Shares Amount (Deficiency) - --------------------------------------------------------------------------------------------------------------------------------- Balance June 30, 1991............... 33,662,334 $ 1,683 $ 311,355 $(467,160) (634,535) $(3,205) $(157,327) Net loss............................ -- -- -- (71,965) -- -- (71,965) ---------- ------- --------- --------- -------- ------- --------- Balance June 30, 1992............... 33,662,334 1,683 311,355 (539,125) (634,535) (3,205) (229,292) Net income.......................... -- -- -- 239,326 -- -- 239,326 Cancellation of former equity interests in connection with emergence from bankruptcy................. (33,662,334) (1,683) (311,355) -- 634,535 3,205 (309,833) Issuance of new equity interests in connection with emergence from bankruptcy...................... 33,000,000 330 135,270 -- -- -- 135,600 Elimination of accumulated deficit in connection with emergence from bankruptcy........ -- -- -- 299,799 -- -- 299,799 ---------- ------- --------- --------- -------- ------- --------- Balance July 31, 1992............... 33,000,000 $ 330 $ 135,270 $ -- -- $ -- $ 135,600 ========== ======= ========= ========= ======== ======= =========
See Accompanying Notes to Consolidated Financial Statements. F-25 72 PRIME HOSPITALITY CORP. AND SUBSIDIARIES CONSOLIDATED STATEMENTS OF CASH FLOWS (IN THOUSANDS)
YEAR ONE MONTH ENDED ENDED JUNE 30, JULY 31, 1992 1992 -------- --------- Cash flows from operating activities: Net income (loss)........................................... $(71,965) $ 239,326 Adjustments to reconcile net income (loss) to net cash provided by (used in) operating activities before reorganization items: Depreciation and amortization............................ 7,635 680 Valuation writedowns and reserves........................ 62,123 13,000 Provisions for lease rejection damages, guarantees of third party debt and other bankruptcy related claims............................ 6,017 -- Loss on disposal of assets............................... 2,307 -- Reorganization items..................................... 9,072 604 Gain on discharge of indebtedness........................ -- (249,600) Increase (decrease) from changes in other operating assets and liabilities: Accounts receivable.................................. 2,200 (1,153) Tax refund receivable................................ 30,874 -- Other operating assets............................... 5,075 (2,359) Other operating liabilities.......................... (5,797) (4,857) -------- --------- Net cash provided by (used in) operating activities before reorganization items............ 47,541 (4,359) -------- --------- Reorganization items: Interest earned on accumulated cash resulting from Chapter 11 proceedings.............................. 4,427 298 Decrease in liabilities subject to compromise............... (17,183) (677) Professional fees and other expenses for services rendered in connection with Chapter 11 proceedings................................... (13,499) (902) -------- --------- Net cash used in reorganization activities........................................ (26,255) (1,281) -------- --------- Net cash provided by (used in) operating activities........................................ 21,286 (5,640) -------- ---------
See Accompanying Notes to Consolidated Financial Statements. F-26 73 PRIME HOSPITALITY CORP. AND SUBSIDIARIES CONSOLIDATED STATEMENTS OF CASH FLOWS (IN THOUSANDS) (CONTINUED)
YEAR ONE MONTH ENDED ENDED JUNE 30, JULY 31, 1992 1992 ------- --------- Cash flows from investing activities: Proceeds from mortgages and other notes receivable.................................................... 10,160 (70) Disbursements for mortgages and other notes receivable.................................................... (42) -- Sale of property, net............................................ 4,168 -- Purchases of property, equipment and leasehold improvements........................................ (14,141) (692) Additions to restricted cash..................................... (5,746) -- Decrease in restricted cash...................................... -- 19,880 Increase (decrease) in other assets.............................. -- 196 -------- -------- Net cash provided by (used in) investing activities.................................... (5,601) 19,314 -------- -------- Cash flows from financing activities: Proceeds from notes payable and long-term debt................................................ 9,613 -- Payments of notes payable and long-term debt................................................ (25,905) (34,323) -------- -------- Net cash used in financing activities.................................... (16,292) (34,323) -------- -------- NET DECREASE IN CASH AND CASH EQUIVALENTS........................... (607) (20,649) CASH AND CASH EQUIVALENTS AT BEGINNING OF PERIOD.............................................. 60,749 60,142 -------- -------- CASH AND CASH EQUIVALENTS AT END OF PERIOD.................................................... $ 60,142 $ 39,493 ======== ========
See Accompanying Notes to Consolidated Financial Statements. F-27 74 PRIME HOSPITALITY CORP. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS JUNE 30 AND JULY 31, 1992 Note 1 - Reorganization and Emergence From Chapter 11 Prime Hospitality Corp. became the successor corporation to Prime Motor Inns, Inc. on July 31, 1992. As used herein, the "Company" refers to Prime Hospitality Corp. and subsidiaries, "PMI" refers to Prime Motor Inns, Inc. and subsidiaries and "Prime Motor Inns" refers to Prime Motor Inns, Inc., the parent company only. The accompanying consolidated financial statements and notes thereto reflect the activities of the Company as of and subsequent to July 31, 1992 and PMI prior to July 31, 1992. On September 18, 1990, Prime Motor Inns (predecessor to and former parent of the Company) and fifty of its subsidiaries (together with Prime Motor Inns, the "Debtors") filed voluntary petitions under title 11 of the United States Code ("Chapter 11") in the United States Bankruptcy Court, Southern District of Florida, Miami Division (the "Bankruptcy Court") and began operating as Debtors-In-Possession. On September 23, 1991, the Debtors filed their Joint Plan of Reorganization. The Debtors filed their Disclosure Statement for Debtors' Amended Joint Plan of Reorganization and their Amended Joint Plan of Reorganization on November 15, 1991. These plans and the disclosure statement were further amended and restated by the Disclosure Statement and the Second Amended Joint Plan of Reorganization of the Debtors dated January 16, 1992 (the "Plan"). The Plan was confirmed by the Bankruptcy Court on April 6, 1992. On July 31, 1992 (the "Effective Date"), the Debtors consummated the Plan and emerged from bankruptcy. On the Effective Date, Prime Motor Inns merged with and into the Company, which had been a wholly-owned subsidiary of Prime Motor Inns. The Company was the surviving corporation in the merger. In addition, certain of the Debtors and other subsidiaries of Prime Motor Inns that did not file petitions under Chapter 11 merged, consolidated or contributed substantially all of their assets to the Company or subsidiaries of the Company. On the Effective Date, the Company assumed the obligations of each combining Debtor under the Plan. The Company has distributed Secured Notes and Restructured Notes and is in the process of distributing cash, Tax Notes, Common Stock and Warrants in settlement of pre-petition claims and F-28 75 PRIME HOSPITALITY CORP. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED) interests as such claims and interests are processed and settled. The American Institute of Certified Public Accountants has issued Statement of Position 90-7, "Financial Reporting by Entities in Reorganization Under the Bankruptcy Code" ("SOP 90-7"), which provides guidance for financial reporting by Chapter 11 debtors during and following their Chapter 11 cases. The accompanying historical consolidated financial statements of PMI for the period from September 18, 1990 to the Effective Date have been prepared in accordance with SOP 90-7 on the following basis: - - Liabilities subject to compromise are segregated. - - Transactions and events directly associated with the reorganization proceedings are reported separately. - - Interest expense is reported only to the extent it will be paid. Also pursuant to SOP 90-7, the Company implemented Fresh Start Reporting (hereinafter defined) upon the emergence of the Debtors from bankruptcy as of the Effective Date (see Note 2). Note 2 - Fresh Start Reporting SOP 90-7 provides for the implementation of Fresh Start Reporting upon the emergence of debtors from bankruptcy if the reorganization value (the approximate fair value) of the assets of the emerging entity immediately prior to emergence is less than the total of all post-petition liabilities and allowed pre-petition claims, and if the holders of existing voting shares immediately before the emergence from bankruptcy receive less than 50% of the voting shares of the emerging entity. A Fresh Start balance sheet reflects assets at their estimated fair value upon the emergence from bankruptcy and liabilities, other than deferred taxes, at the present value of amounts to be paid determined at appropriate current interest rates. The Company met the criteria for implementation of, and implemented Fresh Start Reporting as of the Effective Date. Under Fresh Start Reporting, the consolidated balance sheet as of July 31, 1992 became the opening consolidated balance sheet of the Company. Since Fresh Start Reporting has been reflected in the accompanying consolidated balance sheet as of July 31, 1992, this F-29 76 PRIME HOSPITALITY CORP. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED) consolidated balance sheet is not comparable in all material respects to any such financial statements as of any prior date or for any period prior to July 31, 1992, since the consolidated balance sheet as of July 31, 1992 is that of a new entity. The estimated reorganization value (the approximate fair value) of the assets of the emerging entity was determined by consideration of many factors and various valuation methods, including discounted cash flows and price/earnings and other applicable ratios believed by management to be representative of the Company's business and industry. Reorganization liabilities, consisting of Tax Notes, Restructured and Reinstated Notes, Senior Secured Notes and Junior Secured Notes distributed as of the Effective Date, have been recorded based on face values, which approximate the present values of amounts to be paid determined at appropriate current interest rates. Common Stock has been valued at the excess of the fair value of identifiable assets of the Company over the present value of liabilities. Other current liabilities, consisting of those arising from post-petition operating and other expenses not paid as of the Effective Date and obligations arising from certain loans to finance construction, will be paid in full under their original terms and have been presented in the following balance sheet at their historical carrying values. The effects of consummating the Plan and implementing Fresh Start Reporting are set forth on PMI's historical consolidated balance sheet as of July 31, 1992 as follows: F-30 77 PRIME HOSPITALITY CORP. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED) CONSOLIDATED FRESH START BALANCE SHEET AS OF JULY 31, 1992 (IN THOUSANDS, EXCEPT SHARE DATA)
ADJUSTMENTS TO RECORD PLAN ------------------------------------------------------------------- FRESH HISTORICAL START BALANCE BALANCE SHEET EXCHANGE FRESH SHEET 7/31/92 DISTRIBUTIONS OF STOCK START 7/31/92 ------------------------------------------------------------------- ASSETS Current assets: Cash and cash equivalents . . . . . . $ 39,500 $ -- $-- $ -- $ 39,500 Restricted cash . . . . . . . . . . . 27,800 (5,000)(a) -- -- 22,800 Accounts receivable, net . . . . . . . 9,100 -- -- -- 9,100 Current portion of mortgages and other notes receivable . . . . . 64,000 (16,000)(b) -- -- 48,000 Other current assets . . . . . . . . . 4,300 -- -- -- 4,300 ------------------------------------------------------------------- 144,700 (21,000) -- -- 123,700 Restricted cash . . . . . . . . . . . . 35,000 (33,800)(a) -- -- 1,200 Property,equipment and leasehold improvements, net . . . . . . . . . . 179,400 (3,400)(b) -- (15,600)(f) 160,400 Mortgages and other notes receivable, net . . . . . . . . . . . 180,600 (9,300)(b) -- 7,200 (f) 178,500 Other assets . . . . . . . . . . . . . . 2,500 -- -- 2,300 (f) 4,800 ------------------------------------------------------------------- TOTAL ASSETS . . . . . . . . . . . . $542,200 ($67,500) $-- ($6,100) $468,600 ===================================================================
F-31 78 PRIME HOSPITALITY CORP. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED) CONSOLIDATED FRESH START BALANCE SHEET AS OF JULY 31, 1992 (IN THOUSANDS, EXCEPT SHARE DATA)
ADJUSTMENTS TO RECORD PLAN ------------------------------------------------------------------- FRESH HISTORICAL START BALANCE BALANCE SHEET EXCHANGE FRESH SHEET 7/31/92 DISTRIBUTIONS OF STOCK START 7/31/92 ------------------------------------------------------------------- LIABILITIES AND STOCKHOLDERS' EQUITY (DEFICIENCY) Current liabilities: Notes payable and current portion of long-term debt . . . . . $ 6,100 $ 61,800 (c) $ -- $ -- $ 67,900 Other current liabilities . . . . . . 24,600 (3,800)(a) -- 10,300 (f) 31,100 ------------------------------------------------------------------- Total current liabilities . . . . . 30,700 58,000 -- 10,300 99,000 Long-term debt, net of current portion . . . . . . . . . . . 8,900 195,500 (c) -- -- 204,400 Deferred income . . . . . . . . . . . . 36,200 -- -- (36,200)(f) -- Other liabilities . . . . . . . . . . . -- 2,600 (c) -- 27,000 (f) 29,600 ------------------------------------------------------------------- Total liabilities not subject to compromise . . . . . . . . . . 75,800 256,100 -- 1,100 333,000 Liabilities subject to compromise. . . . 706,000 (35,000)(a) -- -- -- (28,700)(b) (266,400)(c) (375,900)(d) ------------------------------------------------------------------- Total liabilities . . . . . . . . . 781,800 (449,900) -- 1,100 333,000 ------------------------------------------------------------------- Stockholders' equity (deficiency): Common stock (33,000,000 shares issued; $0.05 par value)(old). . . . 1,700 -- (1,700)(e) -- -- Capital in excess of par value (old) . . . . . . . . . . . . 311,300 -- (311,300)(e) -- -- Common stock (33,000,000 shares issued and outstanding; $0.01 par value)(new) . . . . . . . . . . -- 300 (d) -- (e) -- (e) 300 Capital in excess of par value (new) . . . . . . . . . . . . . -- 132,500 (d) 309,800 (e) (307,000)(e) 135,300 Retained earnings (accumulated deficit). . . . . . . . . (549,400) 6,500 (c) -- 299,800 (f) -- 243,100 (d) Treasury stock . . . . . . . . . . . . . (3,200) -- 3,200 (e) -- -- ------------------------------------------------------------------- Total stockholders' equity (deficiency) . . . . . . . . . . . (239,600) 382,400 -- (7,200) 135,600 ------------------------------------------------------------------- TOTAL LIABILITIES AND STOCKHOLDERS' EQUITY (DEFICIENCY) . . . . . . . . . . . . . $542,200 ($67,500) $ -- ($6,100) $468,600 ===================================================================
F-32 79 PRIME HOSPITALITY CORP. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED) NOTES TO CONSOLIDATED FRESH START BALANCE SHEET (a) Reflects cash payments of $38,800,000 to creditors on or after the Effective Date in accordance with the terms of the Plan. (b) Represents mortgage notes, other notes receivable and property, which are offset against creditor claims on the Effective Date in accordance with the terms of the Plan. (c) Represents long-term debt in the principal amount of $257,300,000 distributed to creditors on or after the Effective Date in accordance with the terms of the Plan and the recognition of $6,500,000 of related gain on discharge of indebtedness. As part of the Plan, the Company distributed approximately $1,400,000 of Tax Notes, approximately $94,600,000 of Restructured and Reinstated Notes, approximately $91,300,000 of Senior Secured Notes and approximately $70,000,000 of Junior Secured Notes. Additionally, approximately $15,000,000 of construction financing related to hotel property development outstanding prior to consummation will be paid based on original terms. (d) Represents 32,300,000 shares of Common Stock with an estimated fair value of $132,800,000, which will be distributed to creditors on or after the Effective Date in accordance with the terms of the Plan and the recognition of $249,600,000 of related gain on discharge of indebtedness. (e) Represents 700,000 shares of Common Stock with an estimated fair value of $2,800,000, which was exchanged for all of the shares of Prime's old common stock outstanding on the Effective Date. (f) Represents adjustments to: record at fair value operating property, equipment and leasehold improvements, certain mortgages and other notes receivable and certain other assets and related liabilities; eliminate deferred income; and eliminate accumulated deficit in accordance with the provisions of SOP 90-7 for Fresh Start Reporting. The gain on discharge of indebtedness of $249,600,000 has been presented as an "Extraordinary Item" in the accompanying consolidated statement of operations for the one month ended July 31, 1992. F-33 80 PRIME HOSPITALITY CORP. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED) Note 3 - Summary of Significant Accounting Policies A summary of the significant accounting policies used by the Company and PMI in the preparation of the accompanying consolidated financial statements follows: Business activities: The Company focuses on three types of business activities: operation of owned and leased hotel properties; management services provided to hotel properties owned by third parties; and management of its portfolio of mortgages, notes and other financial assets. The Company retains all the revenues and pays all the expenses with respect to the owned and leased hotel properties. The Company derives management fees from the hotel properties it manages based on a fixed percentage of gross revenues, fees for services rendered and performance-related incentive payments. The Company's portfolio of mortgages, notes and other assets primarily are associated with hotel properties currently managed or formerly owned by the Company and PMI. The majority of the Company's hotel properties are moderately priced hotels comprised of 100 to 150 rooms primarily located in the Northeast and Florida, which are designed to attract business and leisure travelers desiring quality accommodations at affordable prices. The Company operates or manages many of the restaurants and cocktail lounges at its full service hotels. Its limited service hotels, such as Wellesley Inns and AmeriSuites hotels, generally do not have restaurants or cocktail lounges. Most of the hotel properties are operated or managed by the Company in accordance with franchise agreements with national hotel chains, including Howard Johnson, Ramada, Marriott, Holiday Inn, Sheraton, Days Inn and Radisson. Additionally, the Company operates or manages the Wellesley hotel properties under its trademark "Wellesley Inns." The Company owns the trademark "AmeriSuites", and all of these hotel properties are managed for the Company by a related party. Principles of consolidation: The consolidated financial statements include the accounts of F-34 81 PRIME HOSPITALITY CORP. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED) the Company and PMI and all of their majority-owned subsidiaries. All material intercompany accounts and transactions have been eliminated in consolidation. Cash equivalents: Cash equivalents are highly liquid unrestricted investments with a maturity of three months or less when acquired. Restricted cash: Restricted cash consists primarily of highly liquid investments that serve as collateral for debt obligations included in liabilities subject to compromise and is classified as either short-term or long-term depending on the date the obligation is due. Mortgages and other notes receivable: Mortgages and other notes receivable are reflected at the lower of face or market value at July 31, 1992. Generally, the carrying amount of the portfolio of mortgages and other notes receivable is reduced through write-offs and by maintaining an aggregate loan valuation reserve at a level that, in the opinion of management, is adequate to absorb potential losses in the portfolio. To determine the appropriate level for the loan valuation reserve, management evaluates various factors including: general and regional economic conditions; the credit worthiness of the borrower; the nature and level of any delinquencies in the payment of principal or interest; and the adequacy of the collateral. Interest on delinquent loans (including impaired loans that have required writedowns or specific reserves) is only recognized when cash is received. The amount of interest income recognized on mortgages and other notes receivable is generally based on the loan's effective interest rate and adjusted carrying value of the note. Property, equipment and leasehold improvements: Property, equipment and leasehold improvements that the Company intends to continue to operate are stated at cost less accumulated depreciation and amortization at June 30, 1992 and at fair market value a of July 31, 1992. Provision is made for depreciation and amortization using the straight-line method over the estimated useful lives of the assets. F-35 82 PRIME HOSPITALITY CORP. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED) The Company intends to sell or otherwise dispose of those remaining operating and non-operating properties that have generated losses or insufficient returns on investment. Properties identified for disposal are stated at their estimated net realizable value through valuation reserves or writedowns. Income recognition on property sales and deferred income: Income is generally recognized when properties used in the hotel business are sold. However, income is deferred and recognized under installment or other appropriate methods when collectibility of the sales price is not reasonably assured or other criteria for immediate profit recognition under generally accepted accounting principles are not satisfied. Gains from sales of properties under sale and leaseback transactions that are generally deferred pursuant to applicable accounting rules are amortized over the lives of the related leases. Gains from sales of properties and certain other assets acquired through business combinations accounted for as purchases are generally offset against the carrying value of the remaining purchased assets if the sale takes place within the allocation period (generally a period of one year or less) following the purchase. Construction income recognition and deferred income: Revenues under long-term construction contracts are generally recognized under the percentage-of-completion method and include a portion of the earnings expected to be realized on the contract in the ratio of costs incurred to estimated total costs. Under certain circumstances, the recognition of income is deferred until continuing involvement, in the form of operating guarantees made to the owners of the hotel property subject to the contract, has expired. Income taxes: The Company and its subsidiaries file a consolidated Federal income tax return. PMI adopted Financial Accounting Standards Board Statement of Financial Accounting Standards No. 109 ("FAS 109"), "Accounting for Income Taxes, " by applying FAS 109 to its consolidated financial statements commencing July 1, 1991. Adoption of FAS 109 did F-36 83 PRIME HOSPITALITY CORP. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED) not have a material effect on the consolidated financial statements. Deferred taxes have not been provided as of June 30, 1992 and July 31, 1992 due to the availability of significant net operating loss carryforwards and the uncertainty surrounding the ultimate realization of the future benefits, if any, to be derived from the temporary differences between the financial reporting basis and the tax basis of assets and liabilities. Income (loss) per common share: Primary net income (loss) per common share is computed based on the weighted-average number of common shares and common share equivalents (stock options) outstanding during each year. The weighted-average number of common shares and common share equivalents used in computing primary net income (loss) per share was 33,028,000 for the year ended June 30, 1992 and the month ended July 31, 1992. Fully diluted net income (loss) per common share includes, when dilutive, the effects of the elimination of interest expense and the issuance of additional common shares from the assumed conversion of the 6-5/8% convertible subordinated debentures due 2011 and the 7% convertible subordinated debentures due 2013 (collectively, the "Debentures"). The Debentures are included in the consolidated balance sheet as of June 30, 1992 as liabilities subject to compromise. The effects of assuming the conversion of the Debentures were not dilutive for the year ended June 30, 1992 and the one month ended July 31, 1992. Reclassifications: Certain reclassifications have been made to the consolidated financial statements to conform them to the July 31, 1992 classifications. Note 4 - Acquisitions and Dispositions In December 1989, PMI consummated its agreement with New World Development Co. Ltd. ("New World") to participate with and assist New World in its acquisition of the hotel business of Ramada, Inc. ("Ramada"). Under the agreement, PMI loaned approximately $58,000,000 to New World (see Note 7) and acquired certain real estate, notes receivable, the Rodeway International Franchise System ("Rodeway") and certain other assets, and assumed certain F-37 84 PRIME HOSPITALITY CORP. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED) liabilities, for aggregate cash consideration of approximately $54,000,000 plus closing adjustments. Such assets were sold in fiscal 1991. PMI entered into a license agreement to operate the domestic Ramada franchise system and agreed to indemnify New World for certain potential tax liabilities associated with the license. The potential tax liabilities to New World, and all other claims by New World and PMI against each other, were settled on August 4, 1992 (see Note 7). Note 5 - Cash and Cash Equivalents Cash and cash equivalents are comprised of the following (in thousands):
June 30, July 31, 1992 1992 -------- | -------- | Cash ...................................... $ 1,744 | $10,479 Commercial paper and other | cash equivalents...................... 58,398 | 29,014 ------- | ------- | TOTALS................................ $60,142 | $39,493 ======= | =======
Note 6 - Restricted Cash - Long Term Restricted cash consists primarily of commercial paper of $43,947,000 at June 30, 1992. Restricted cash consists of cash in bank of $360,000 and commercial paper of $872,000 at July 31, 1992. Note 7 - Mortgages and Other Notes Receivable Mortgages and other notes receivable are comprised of the following and are stated at face value, net of writedowns and valuation reserves as of June 30, 1992. As of July 31, 1992, these assets have been valued at their fair market value (in thousands): F-38 85 PRIME HOSPITALITY CORP. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
June 30, | July 31, 1992 | 1992 -------- | -------- | Frenchman's Reef resort hotel (a)...................... $ 78,996 | $ 50,000 Rose and Cohen entities (b)............................ 100,890 | 25,000 FCD and Servico (c).................................... 29,899 | 19,756 New World (d).......................................... 58,000 | 42,000 Properties managed by the Company (e).................. 198,441 | 70,089 Other (f).............................................. 52,308 | 19,704 -------- | -------- Totals........................................ 518,534 | 226,549 | Less writedowns and valuation reserves................. 260,585 | -- -------- | -------- Totals........................................ 257,949 | 226,549 Less current portion................................... 63,506 | 48,006 -------- | -------- | LONG-TERM PORTION...................................... $194,443 | $178,543 ======== | ========
(a) The mortgage notes are secured by the Frenchman's Reef resort hotel, which is managed by the Company, and consist of first and second mortgages with face values of $53,383,000 and $25,613,000, respectively, with final scheduled principal payments of $51,976,000 and $25,613,000 due on July 31, 1995. The notes bear interest at a stated rate of 13%. Interest and principal payments on the first mortgage are payable in monthly installments. Interest and scheduled principal payments on the second mortgage note are payable only to the extent of available cash flow, as defined, with any unpaid interest due at maturity. Based on a valuation of the property, PMI wrote down the second mortgage to $11,400,000 as of June 30, 1990 and discontinued the accrual of interest. As a result of the continuing decline in economic conditions and operating cash flows, the balance of the second mortgage was written off in fiscal 1992. In connection with the adoption of Fresh Start Reporting at July 31, 1992, the Company has valued these notes at $50,000,000. During the one month ended July 31, 1992, the Company recognized $345,000 of interest income on these notes (an effective rate of approximately 8.3%), based on the current levels of cash flows generated from the property available to service the notes. The Company is in the process of renegotiating the terms of these notes based on the current F-39 86 PRIME HOSPITALITY CORP. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED) level of cash flow generated by the property. (b) From 1988 through 1990, PMI loaned entities controlled by Allan Rose and Arthur Cohen (the "Rose and Cohen entities"), who at such time were significant Howard Johnson franchisees, an aggregate of $100,890,000 fully secured initially by property and/or personal guarantees. PMI was committed to make additional loans, also on a fully secured basis, to the Rose and Cohen entities of up to an aggregate of $130,000,000 if values of, and/or revenues generated by, certain hotel properties controlled by the Rose and Cohen entities attained specified levels. PMI was to receive a minimum annual return of 10% on all loans made to the Rose and Cohen entities and a maximum return of 20%. All loans and unpaid interest are payable on December 31, 1997. Due to the decline in value of the hotel properties pledged as collateral for the loan and the continuing decline in the hotel real estate market, PMI discontinued funding additional loans in fiscal 1990. Further, based on PMI's estimate of the value of the collateral and the personal guarantees of Rose and Cohen and discussions related to the possible early payment of the loan, PMI wrote down the loan to $50,000,000 as of June 30, 1990 and discontinued the accrual of interest. In 1992, certain of the Rose and Cohen entities owning a portion of the collateral that secures the loans filed for Chapter 11 protection in the United States Bankruptcy Court, Southern District of New York. Also during 1992, the Company commenced an adversary proceeding against Rose and Cohen. The complaint seeks to recover jointly and severally on the personal guarantees of $50,000,000 given by Rose and Cohen as part of the loan agreement. As a result of further evaluation of the collateral and the personal guarantees, PMI wrote down the loan to $30,000,000 as of June 30, 1992 and $25,000,000 as of July 31, 1992. (c) In April 1989, PMI loaned FCD Hospitality, Inc. ("FCD"), an unaffiliated company, approximately $74,000,000 in cash for the purpose of financing FCD's acquisition of the outstanding common stock of Servico, Inc. ("Servico"), an operator of hotels. The loan was secured by the common stock of Servico, F-40 87 PRIME HOSPITALITY CORP. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED) FCD and certain FCD affiliates, and was originally due prior to June 30, 1990. Interest was due at the prime rate plus 1%. PMI also entered into an agreement with FCD pursuant to which PMI would provide management consulting services for approximately $63,000,000 through June 1990. Additionally, in April 1989, PMI purchased approximately $80,000,000 of Servico's outstanding 12-1/4% subordinated notes due April 15, 1997 for approximately $64,000,000 (80% of par value). Subsequent to April 1989, PMI entered into certain other transactions including working capital loans and the sale of certain hotels to Servico. Servico also pledged a substantial portion of its hotel properties and mortgage notes receivable on hotel properties as collateral and/or in satisfaction of its commitments on the loan to FCD and the consulting agreement. On September 18, 1990, Servico and certain of its subsidiaries filed for Chapter 11 protection. After an extensive valuation and recovery analysis performed by PMI and Servico, PMI agreed to settle all claims and disputes with Servico and FCD in June 1991. Under the terms of the agreement, which was approved by the Bankruptcy Court, the FCD loan, the subordinated notes, loans related to sales of properties and working capital and all accrued interest relating to these notes and loans with a face value of $166,210,000 were forgiven. As part of the settlement, PMI retained ownership of certain mortgage notes receivable with a face value of approximately $30,000,000 that are secured by three hotel properties. The entity that owns one of the properties filed a voluntary petition under Chapter 11 of the United States Bankruptcy Code in December 1990. Subsequent to July 31, 1992, the Company has restructured the note receivable to receive payments based on the property's available cash flow. Based on the valuation of the mortgage notes on the three properties, PMI wrote down the FCD Loan and Servico notes to $16,757,000 as of June 30, 1990 and discontinued the accrual of interest. In connection with the adoption of Fresh Start Reporting, the Company has valued the notes at $19,756,000 at July 31, 1992. F-41 88 PRIME HOSPITALITY CORP. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED) (d) In connection with the Ramada acquisition in December 1989, PMI agreed to loan New World $58,000,000 (see Note 4). Interest was payable quarterly at a rate of 11%. Principal was to be paid in installments beginning in 1995 with a final scheduled payment of $55,499,000 due on March 31, 2005. On August 4, 1992, after extensive negotiation and approval of a settlement by the Bankruptcy Court, the Company collected net proceeds of $42,000,000 plus accrued interest in full satisfaction of the $58,000,000 loan balance offset by liabilities subject to compromise related to the Ramada acquisition with a net carrying value of $16,000,000. The net proceeds were used to prepay a portion of the Senior Secured Notes issued on the Effective Date. (e) At July 31, 1992, the Company held mortgages and other notes receivable secured by 33 hotel properties operated by the Company under management or lease agreements. These notes currently bear interest at rates ranging from 8.5% to 14% and mature through 2014. The mortgages were primarily derived from the sales of hotel properties. Many of these properties had been unable to pay in full the annual debt service required under the terms of the original mortgages. The Company has restructured $33,530,000 of these mortgages to receive the majority of available cash and to receive a participation in the future excess cash flow of such hotel properties. The Company is also in process of restructuring another $9,500,000 of these mortgages. (f) Other notes receivable bear interest at effective rates ranging from 8% to 12%, mature through 2001 and are secured primarily by hotel properties. Note 8 - Property, Equipment and Leasehold Improvements Property, equipment and leasehold improvements consist of the following and are stated at cost (other than properties held for sale) at June 30, 1992 and at fair market value as of July 31, 1992 (in thousands): F-42 89 PRIME HOSPITALITY CORP. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
June 30, July 31 Years of Useful 1992 1992 Life -------- | ------- --------------- | Land and land leased to | others.......................................... $ 25,963 | $ 24,855 Hotels............................................. 116,192 | 95,942 20 to 45 Furniture, fixtures and | autos........................................... 25,346 | 16,192 2 to 10 Leasehold improvements............................. 13,425 | 15,428 3 to 45 Property and equipment | under capital leases............................ 93 | -- 2 to 33 -------- | -------- 181,019 | 152,417 -------- | -------- Properties held for sale, at net realizable value: | Development properties........................ 15,544 | 8,000 Non-core properties........................... 7,019 | -- Properties acquired | for resale.................................. 248 | -- -------- | -------- 22,811 | 8,000 -------- | -------- Less accumulated depreciation | and amortization................................ (24,358) | -- -------- | -------- | TOTALS.................................... $179,472 | $160,417 ======== | ========
At July 31, 1992, the Company was the lessor of land and certain restaurant facilities in Company-owned hotels with an approximate aggregate book value of $12,338,000 pursuant to noncancelable operating leases expiring on various dates through 2013. Minimum future rentals under such leases are $8,095,000, of which $3,449,000 is to be received during the five year period ending June 30, 1997. Depreciation and amortization expense on property, equipment and leasehold improvements was $6,867,000 and $569,000 for the year ended June 30, 1992 and for the one month ended July 31, 1992, respectively. Capitalized interest was $139,000 and $0 for the year ended June 30, 1992 and for the one month ended July 31, 1992, respectively. F-43 90 PRIME HOSPITALITY CORP. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED) Note 9 - Other Current Liabilities Other current liabilities consist of obligations for the following (in thousands):
June 30, | July 31, 1992 | 1992 -------- | -------- | Accounts payable........................................ $ 1,803 | $ 1,801 Bankruptcy claims reserve............................... -- | 6,591 Rent.................................................... 1,355 | 945 Interest................................................ 3,824 | 196 Accrued payroll and related benefits.................... 3,484 | 3,385 Managed property reserve................................ 2,042 | 3,333 Insurance reserve....................................... 1,732 | 756 Professional fees....................................... 4,798 | 6,522 Other................................................... 6,906 | 7,607 ------- | ------- TOTALS......................................... $25,944 | $31,136 ======= | =======
Note 10 - Notes Payable Notes payable consist of the following (in thousands):
June 30, | July 31, 1992 | 1992 -------- | -------- | Notes payable to related party (a)...................... $ 5,706 | $ 5,706 Other notes payable (b)................................. 265 | 265 ------- | ------- | TOTALS......................................... $ 5,971 | $ 5,971 ======= | =======
(a) Notes payable to related party are payable to ShoLodge, Inc. ("ShoLodge"), a company controlled by a director. The notes are secured by three hotel properties with a book value of $17,354,000 that were constructed in 1992 and 1991. Interest is payable monthly at variable rates ranging from the prime interest rate (6% at July 31, 1992) plus 1% to the prime rate plus 2%. One promissory note for $3,000,000 is due in May 1993 and the remainder is due on demand (see Note 21). (b) Other notes payable are secured by a hotel property. Interest is payable at the prime rate plus 2%. The notes are due in F-44 91 PRIME HOSPITALITY CORP. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED) May 1993. Note 11 - Liabilities Subject to Compromise As a result of the Chapter 11 filing (see Note 1), enforcement of certain unsecured claims against the Debtors in existence prior to the petition date were stayed while the Debtors continued business operations as debtors-in-possession. These claims are reflected in the accompanying consolidated balance sheets as of June 30, 1992, as liabilities subject to compromise. Additional unsecured claims classified as liabilities subject to compromise arose subsequent to the Petition Date resulting from rejection of executory contracts, including lease, management and franchise agreements, and from the determination by the Bankruptcy Court (or agreements by the parties in interest) to allow claims for contingencies and other disputed amounts. Enforcement of claims secured against the Debtors' assets ("secured claims") were also stayed although the holders of such claims have the right to move the Court for relief from the stay. Secured claims are secured primarily by liens on the Debtors' property, equipment and leasehold improvements and certain mortgages and other notes receivable. Creditors have asserted pre- and post-petition claims against the Debtors alleging liabilities of approximately $9 billion plus unliquidated amounts. The Company projects that the claims asserted against the Debtors will be resolved and reduced to an amount that approximates PMI's estimate of $706,250,000 recognized as liabilities subject to compromise as of June 30, 1992. PMI has filed motions objecting to those claims that are: (a) duplicative; (b) superseded by amended claims; (c) erroneously asserted against multiple Debtors; (d) not obligations of any of the Debtors; or (e) filed after the Bar Date (as hereinafter defined). Additionally, PMI otherwise has disputed a substantial number of the claims asserted against the Debtors and has filed objections to such claims. The Bankruptcy Court established May 15, 1991 (the "Bar Date") as the deadline for filing proofs of claim, except certain specified claims, against the Debtors. A significant number of the bankruptcy claims have been resolved. As of March 1, 1993, unresolved bankruptcy claims of approximately $1 billion have been asserted against PMI. F-45 92 PRIME HOSPITALITY CORP. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED) Approximately $767 million of these unresolved claims were filed by entities controlled by Allan Rose and Arthur Cohen (see Note 7). The Company has disputed a substantial number of these unresolved bankruptcy claims and has filed objections to such claims. In addition, a number of these claims have been resolved with the claimant and are awaiting approval by the Bankruptcy Court. The Company believes that substantially all of these claims will be dismissed, disallowed or deemed paid pursuant to the Plan and estimates that unresolved bankruptcy claims will be allowed in the amount of approximately $27 million. These claims will be settled as follows: claims of $18 million will be satisfied through the issuance of Secured Notes, Restructured Notes and Tax Notes; claims of $8 million will be satisfied through the distribution of the Company's Common Stock; and claims of $1 million will be satisfied through cash payments. In accordance with SOP 90-7, the July 31, 1992 consolidated financial statements have given full effect to the issuance of these Secured Notes, Restructured Notes and Tax Notes and the distribution of the Company's Common Stock. Liabilities have been provided for the anticipated cash payments. PMI's liabilities subject to compromise, stated at management's estimate of the total amount of allowed claims and not at the amounts for which claims will be settled, consist of the following (in thousands):
June 30, 1992 -------- Estimated claims: Trade accounts payable.......................... $ 28,858 Lease rejection damages......................... 97,856 Guarantees of third party debt.................. 30,529 Other liabilities .............................. 79,943 -------- Total estimated claims ..................... 237,186 Long-term debt (Note 12) .......................... 469,064 -------- TOTAL....................................... $706,250 ========
F-46 93 PRIME HOSPITALITY CORP. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED) The amounts listed above may be subject to future adjustments depending on further developments with respect to disputes or unresolved claims. Information as to the terms of the settlement of liabilities subject to compromise under the Plan as of or subsequent to the Effective Date through the distribution of cash, new indebtedness, new equity securities and/or offset against certain assets reflected in the accompanying consolidated balance sheets is set forth in Note 2. PMI discontinued accruing interest on certain debt obligations as of the date such obligations were determined to be subject to compromise. Contractual interest not accrued and not reflected as an expense in the consolidated statements of operations, as a result of the Debtors' Chapter 11 filing, amounted to approximately $28,000,000 for the year ended June 30, 1992 and $2,300,000 for the one month ended July 31, 1992. Total contractual interest is disclosed in the accompanying consolidated statements of operations. Note 12 - Long-term Debt As a result of the Chapter 11 filing (see Notes 1 and 11), all long-term obligations of the Debtors in existence prior to the Petition Date were stayed and have been classified as liabilities subject to compromise at June 30, 1992. Long-term debt consists of the following (in thousands):
| June 30, | July 31, 1992 | 1992 -------- | -------- | Senior secured notes (a).............................. $ -- | $ 91,300 Junior secured notes (a).............................. -- | 69,999 Tax settlement notes (b).............................. -- | 1,422 Mortgage notes and bonds payable(c)................... -- | 94,639 Construction financing (d)............................ 9,002 | 8,995 -------- | -------- Total debt........................................ 9,002 | 266,355 | Pre-petition liabilities: | 7% convertible subordinated | debentures due 2013 (e)........................... 115,000 | -- 6-5/8% convertible subordinated | debentures due 2011 (e)........................... 115,000 | --
F-47 94 PRIME HOSPITALITY CORP. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
June 30, July 31, 1992 1992 -------- | -------- | Notes payable to banks under bank | credit agreement (f): | Tranche A and B............................... 31,848 | -- Tranche C..................................... 60,000 | -- Mortgage notes and bonds due | through 2008 (g)................................ 143,676 | -- Other (h)......................................... 3,540 | -- ------- | ------- Total debt.................................. 478,066 | 266,355 | Less: Liabilities subject to | compromise........................................ 469,064 | -- Current portion................................. 81 | 61,917 -------- | -------- | Long-term debt.............................. $ 6,921 | $204,438 ======== | ========
(a) Pursuant to the Plan, the Company issued two classes of Secured Notes which are identified as "Senior Secured Notes" and "Junior Secured Notes". Senior Secured Notes were issued in two series of notes which are identified as the "8.20% Fixed Rate Senior Secured Notes" and the "Adjustable Rate Senior Secured Notes" (collectively, the "Senior Secured Notes"). Each series is identical except that the interest rate on the Adjustable Rate Senior Secured Notes will be periodically adjusted to one-half of one percent over the daily "prime rate" reported by Chemical Bank, with a maximum interest rate of 10.0% per annum. The aggregate principal amount of Senior Secured Notes issued under the Plan was $91,300,000, comprised of $30,100,000 of 8.20% Fixed Rate Secured Notes and $61,200,000 of Adjustable Rate Senior Notes. On August 11, 1992, the Company prepaid $17,900,000 of the 8.20% Fixed Rate Senior Secured Notes and $36,400,000 of the Adjustable Rate Senior Secured Notes from the proceeds of collections of portions of the collateral for the Senior Secured Notes. The prepaid amounts of $54,300,000 have been classified as current at July 31, 1992. The other class of Secured Notes issued to satisfy claims was comprised of Junior Secured Notes that bear interest at a rate of 9.20% per annum and will mature on July 31, 2000. The aggregate principal amount of Junior Secured Notes issued F-48 95 PRIME HOSPITALITY CORP. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED) under the Plan was $70,000,000. The collateral for the Secured Notes consists primarily of mortgages and other notes receivable and real property (the "Secured Note Collateral") with a book value of $143,191,000 as of July 31, 1992. Interest on the Secured Notes is payable semi-annually commencing January 31, 1993. The Secured Notes require that 85% of the cash proceeds from the Secured Note Collateral be applied first to interest, second to prepayment of the Senior Secured Notes and third to prepayment of the Junior Secured Notes. Any remaining principal balance of the Senior Secured Notes is due July 31, 1997. Aggregate principal payments on the Junior Secured Notes are required in order that one-third of the principal balance outstanding on December 31, 1996 is paid by July 31, 1998; two-thirds of that balance is paid by July 31, 1999; and all of that balance is paid by July 31, 2000. To the extent the cash proceeds from the Secured Note Collateral are insufficient to pay interest or required principal payments on the Secured Notes, the Company will be obligated to pay any deficiency out of its general corporate funds. The Secured Notes contain covenants which, among other things, require the Company to maintain a net worth of at least $100,000,000, limit expenditures related to the development of hotel properties through December 31, 1996 and preclude cash distributions to stockholders, including dividends and redemptions, until the Secured Notes have been paid in full. During March 1993, the Company repurchased $9,500,000 of the Junior Secured Notes for a purchase price of $7,400,000. The repurchase resulted in an extraordinary gain of $2,100,000, which will be reflected in the Company's first quarter 1993 consolidated financial statements. These notes have been classified as long-term debt at July 31, 1992 in accordance with their terms, as repurchase was not contemplated at the balance sheet date. (b) Claims of taxing authorities were paid in Tax Notes or cash. Each Tax Note is in a face amount equal to the allowed claim F-49 96 PRIME HOSPITALITY CORP. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED) and provides for annual payments of principal and interest until maturity on July 31, 1998. Such payments will be made in equal principal installments, plus simple interest from July 31, 1992 at the rate of 8.20% per annum, with payments to commence on July 31, 1993 and with additional payments to be made on each July 31 thereafter. (c) The Company has $20,734,000 of restructured notes issued to holders of oversecured and undersecured bankruptcy claims. Each restructured note matures on July 31, 2002 and is secured by a lien on the collateral which secured the underlying claim prior to bankruptcy. The notes are secured by mortgage notes receivable and hotel properties with a book value of $16,981,000 at July 31, 1992. The oversecured restructured notes bear interest at a rate of 9.20% per annum payable semi-annually in cash. Prior to maturity, principal amounts outstanding will be paid semi-annually based on a thirty-year amortization schedule. The Company has approximately $7,173,000 of these notes outstanding at July 31, 1992. During January 1993, the Company repurchased $1,700,000 of the oversecured restructured notes for a purchase price of $1,300,000. The repurchase resulted in an extraordinary gain of $400,000, which will be reflected in the Company's first quarter 1993 consolidated financial statements. These notes have been classified as current at July 31, 1992. The undersecured restructured notes bear interest at a rate of 8% per annum with interest payable semi-annually in cash. Semi-annual principal payments begin on July 31, 1996 based on a thirty-year amortization schedule. The Company has approximately $13,561,000 of these notes outstanding at July 31, 1992. The Company has other mortgage notes and bonds payable of approximately $73,905,000 which are due through April 1, 2008 and bear interest at rates ranging from 4.68% to 10.5% at July 31, 1992. The notes are secured by mortgage notes receivable and hotel properties with a book value of $83,577,000 at July 31, 1992. F-50 97 PRIME HOSPITALITY CORP. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED) (d) Construction financing obligations primarily consist of two loans payable to banks with an aggregate balance of $5,193,000 and a loan payable to ShoLodge of $3,570,000 at July 31, 1992. The loans payable to banks are secured by mortgages on two hotel properties with a book value of $13,963,000 at July 31, 1992. Principal is payable in monthly installments with the balances due by June 1994. Interest is payable monthly at the prime rate plus 2%. The loan payable to ShoLodge is secured by a hotel with a book value of $7,670,000 at July 31, 1992. Principal is payable in September 1993. Interest is payable monthly at the prime rate plus 2% (see Note 21). (e) At June 30, 1992, PMI's 6-5/8% convertible subordinated debentures due 2011 and 7% convertible subordinated debentures due 2013 were convertible at any time prior to maturity into common stock at $40.568 per share and $43.95 per share, respectively, and 5,451,342 shares of common stock were reserved for issuance upon such conversion. Sinking fund payments of $5,750,000 annually were required commencing April 1, 1997 for the 6-5/8% Debentures and June 1, 1999 for the 7% Debentures. All Debentures were subordinated to all existing and future senior indebtedness of PMI. (f) In April 1989, PMI borrowed approximately $140,000,000 from Morgan Bank pursuant to a demand note (the "Morgan Loan") with interest at the prime rate. The note was secured by the notes receivable from FCD and Servico and certain other assets. In September 1989, PMI entered into a $263,000,000 secured bank credit agreement (the "Credit Agreement"), expiring March 1991, in which borrowings (the "Bank Group Loan") were fully utilized by December 1989. Borrowings bear interest at the prime rate plus 1/2%. The borrowings were principally incurred to extinguish the Morgan Loan issued in connection with the Servico transaction ("Tranche A") and to finance PMI's portion of the Ramada acquisition ("Tranche B"). The Bank Group Loan was secured by the notes receivable from FCD and Servico, the net assets and common stock of subsidiaries acquired in the Ramada acquisition, the New World note, certain other mortgage notes receivable and certain other assets. F-51 98 PRIME HOSPITALITY CORP. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED) In March 1990, PMI prepaid $1,000,000 of the Bank Group Loan with the proceeds of previously pledged mortgage notes receivable. In May 1990, PMI prepaid $40,000,000 of the Bank Group Loan from proceeds from the collection of a receivable related to the sale of a hotel property in fiscal 1989. In June 1990, PMI prepaid $1,000,000 of the Bank Group Loan with the proceeds of certain previously pledged mortgage notes receivable. In July 1990, PMI prepaid approximately $171,200,000 of the Bank Group Loan from the proceeds of the sale of the Howard Johnson, Ramada and Rodeway franchise businesses. In July 1990, the Credit Agreement was amended to convert $60,000,000 of $65,000,000 of unsecured demand loans then outstanding, which had been borrowed in fiscal 1990 to fund construction, into secured term loans ("Tranche C"). In addition, certain unsecured letter of credit reimbursement obligations were converted into Tranche C secured obligations. PMI also pledged additional collateral and certain then-existing defaults under the Bank Credit Agreement were waived. In July 1990, PMI paid the remaining $5,000,000 of unsecured demand notes then outstanding. (g) Other mortgage notes and bonds payable consist of debt secured by properties operated by PMI or notes receivable held by PMI. Principal is due in installments through 2009. Interest rates are generally variable ranging from 5% to 15% at June 30, 1992. (h) Other debt as of June 30, 1992 consists of an unsecured note bearing interest at the rate of 17%. At July 31, 1992, maturities of long-term debt for the next five years ending July 31 are as follows (in thousands): F-52 99 PRIME HOSPITALITY CORP. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED) 1993 ............................................................... $ 61,917 1994 ............................................................... 13,849 1995 ............................................................... 3,429 1996 ............................................................... 8,010 1997 ............................................................... 72,285 Thereafter.......................................................... 106,865 -------- TOTAL...................................................... $266,355 ========
Note 13 - Lease Commitments The Company leases various hotels under lease agreements with initial terms expiring at various dates from 1998 through 2019. The Company has options to renew certain of the leases for periods ranging from 1 to 94 years. Rental payments are based on minimum rentals plus a percentage of the hotel's revenues in excess of stipulated amounts. As a result of the Chapter 11 filing, all lease contracts were reviewed during 1991 and a determination was made as to whether to accept or reject these contracts. The commitments shown below reflect those lease contracts which the Company has assumed. The following is a schedule by year of future minimum lease payments required under the remaining operating leases for core properties that have terms in excess of one year as of July 31, 1992 (in thousands): 1993................................................................ $ 4,079 1994................................................................ 4,047 1995................................................................ 4,003 1996................................................................ 3,970 1997................................................................ 3,938 Thereafter.......................................................... 48,125 ------- TOTAL........................................................... $68,162 =======
Rental expense for all operating leases, including those with terms of less than one year, is comprised as follows (in thousands): F-53 100 PRIME HOSPITALITY CORP. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
Year One Month Ended Ended June 30, July 31, 1992 1992 -------- --------- Rentals.................................................................. $6,866 $ 520 Contingent rentals....................................................... 814 53 ------ ------ Gross rental expense..................................................... 7,680 573 Rental income from subleases............................................................. (61) (6) ------ ------ NET RENTAL EXPENSE................................................ $7,619 $ 567 ====== ======
Note 14 - Contingencies PMI and certain of its present and former officers and directors were named as defendants in purported class action lawsuits on behalf of purchasers of PMI's common stock and debentures. The lawsuits allege that PMI made materially false and misleading statements and omissions regarding its financial condition in violation of Federal securities laws and other claims. A settlement was consummated in February 1993 which was funded through insurance proceeds. The Company has responded to informal requests for information by the Staff of the United States Securities and Exchange Commission's Division of Enforcement relating to a number of significant transactions of PMI for the years 1985 through 1991. However, no formal allegations have been made by the Staff. In addition to the foregoing legal proceedings, the Company is involved in various other proceedings incidental to the normal course of its business. The Company believes that the resolutions of these contingencies will not have a material adverse effect on the Company's consolidated financial position or results of operations. F-54 101 PRIME HOSPITALITY CORP. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED) Note 15 - Reorganization Expenses The net expenses incurred as a result of the Debtors' Chapter 11 filing on September 18, 1990 and subsequent reorganization efforts have been segregated from normal operating expenses and presented as reorganization expenses in the accompanying consolidated statements of income for the year ended June 30, 1992 and for the one month ended July 31, 1992. Reorganization expenses are comprised of the following (in thousands):
Year One Month Ended Ended June 30, July 31, 1992 1992 -------- --------- Professional fees and other expenses............................................. $19,297 $ 902 Lease rejection damages................................ 981 -- Guarantees of third party debt......................... 3,250 -- Other claims arising from bankruptcy........................................... 1,786 -- Loss on disposal of assets ............................ 2,307 -- Interest earned on accumulated cash resulting from Chapter 11 proceedings.......................................... (4,427) (298) Insurance recovery proceeds............................ -- (2,400) ------- ------- TOTALS............................................ $23,194 $(1,796) ======= ======= Note 16 - Valuation Writedowns and Reserves Valuation writedowns and reserves have been recorded in order to adjust the carrying value of assets and liabilities resulting from the restructuring of PMI's business and general economic conditions and primarily consist of the following (in thousands):
F-55 102 PRIME HOSPITALITY CORP. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
Year | One Month Ended | Ended June 30, | July 31, 1992 | 1992 -------- | --------- | Accounts receivable.................................... $ 2,722 | $ -- Mortgages and notes | receivable.......................................... 49,479 | 13,000 Property, equipment and | leasehold improvements.............................. 9,000 | -- Other items............................................ 922 | -- ------- | ------- | TOTALS........................................... $62,123 | $13,000 ======= | =======
The valuation writedowns and reserves for the year ended June 30, 1992 shown above were all recognized in the fourth quarter. In addition to the above, valuation writedowns and reserves of $20,578,000 and $-0- were charged against deferred income for the year ended June 30, 1992 and for the one month ended July 31, 1992, respectively. Note 17 - Income Taxes Income taxes have been provided as follows (in thousands):
Year One Month Ended Ended June 30, July 31, 1992 1992 -------- --------- Current: State................................................ $1,000 $ -- ------ ------- Totals............................................. $1,000 $ -- ====== =======
The difference between total income taxes and the amount computed by applying the Federal statutory income tax rate of 34% to income (loss) from operations before income taxes are as follows (in thousands): F-56 103 PRIME HOSPITALITY CORP. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
Year One Month Ended Ended June 30, July 31, 1992 1992 -------- --------- Federal income tax credit at statutory rates.......................................................... $(24,128) $(3,493) Increase in tax resulting from: Accounting losses for which deferred Federal income tax cannot be recognized................................................... 24,468 3,493 State income taxes....................................................... 660 -- -------- ------- TOTALS............................................................. $ 1,000 $ -- ======== =======
The tax effects of the temporary differences in the areas listed below resulted in deferred income tax provisions (credits) (in thousands):
Year One Month Ended Ended June 30, July 31, 1992 1992 -------- --------- Reserve for doubtful accounts.............................................. $ (736) $ -- Reserve for property valuations............................................ (127) -- Net temporary differences without tax benefit..................................................... 359 -- Lease rejection damages.................................................... 423 -- Depreciation and amortization.............................................. 14 -- Gains on property sales.................................................... (33) -- Other ..................................................................... 100 -- -------- ------ TOTALS............................................................ $ -- $ -- ======== ======
No Federal income tax was payable at July 31, 1992 due primarily to the utilization of net operating loss carryforwards. At July 31, 1992, the Company had net operating loss carryforwards of approximately $347,000,000 for Federal income tax purposes. Such tax net operating loss carryforwards, if not used as offsets to future taxable income, will expire beginning in 2005 and continuing through 2007. The amount of net operating loss carryforwards available for future utilization is limited to F-57 104 PRIME HOSPITALITY CORP. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED) $130,500,000 during the carryforward period as a result of the change in ownership of the Company upon consummation of the Plan. In accordance with FAS 109, the Company has not recognized the future tax benefits associated with the net operating loss carryforwards or with other temporary differences. Accordingly, the Company has provided a valuation allowance of approximately $44,000,000 against the deferred tax assets as of June 30, 1992 and July 31, 1992. To the extent any available carryforwards or other benefits are utilized in periods subsequent to July 31, 1992, the tax benefit realized will be treated as a contribution to stockholders' equity and will have no effect on the income tax provision for financial reporting purposes. PMI's Federal income tax returns for the years 1987 through 1991 are currently under examination by the Internal Revenue Service. The Company does not believe there will be any material adverse effects on the consolidated financial statements as a result of this examination. Note 18 - Common Stock and Common Stock Equivalents Pursuant to the Plan, on July 31, 1992, the Company began distributing 33,000,000 shares of Common Stock to certain claimants and holders of PMI stock. At March 2, 1993, 22,623,100 shares of Common Stock were distributed. The remaining shares are to be distributed semi-annually to holders of previously allowed claims and pending final resolution of disputed claims (see Note 11). In addition, holders of PMI stock will receive Warrants to purchase Common Stock exercisable into an aggregate of approximately 2,100,000 shares at an exercise price equal to the average per share daily closing price during the year ending July 31, 1993. On July 31, 1992, the Company adopted a stock option plan under which options to purchase up to 1,320,000 shares of Common Stock may be granted to directors, officers or key employees under terms determined by the Board of Directors. During 1992, options to purchase 350,000 shares were granted to officers and directors none of which are exercisable at July 31, 1992. In addition, options to purchase 330,000 shares were granted to a former officer. Such options are currently exercisable and expire on July 31, 1995. The exercise prices of the above options are dependent F-58 105 PRIME HOSPITALITY CORP. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED) on the average market price one year from the date of grant and are, therefore, currently undeterminable. On July 31, 1992, the Company adopted a performance incentive plan under which stock options covering an additional 330,000 shares of Common Stock were reserved for grants to key employees at the discretion of management. No options have been issued under this plan. PMI had an employee incentive stock option plan which provided for grants of stock options covering an aggregate of 3,520,000 shares of common stock to officers and key employees. Under the terms of the plan, which expired on November 23, 1991, options were granted at a price not less than 100% of fair market value on the date of grant. Options generally were exercisable in cumulative installments of 33-1/3% after the option has been outstanding 18, 32 and 46 months from the date of grant and expired five years after the date of grant. A summary of the transactions under this plan follows:
Number Option Price of Shares Per Share --------- -------------- Outstanding - June 30, 1991..................................... 950,574 $8.25 - $40.45 Cancelled....................................................... (950,574) $8.25 - $40.45 --------- Outstanding and exercisable - June 30, 1992.............................................. -- Outstanding and exercisable - July 31, 1992.............................................. -- =========
F-59 106 PRIME HOSPITALITY CORP. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED) Note 19 - Interest and Dividend Income Included in interest and dividend income are the following (in thousands):
Year One Month Ended Ended June 30, July 31, 1992 1992 -------- --------- Interest on mortgages and other notes receivable................................................ $24,117 $ 1,949 Dividend income........................................................... 10 -- ------- ------- TOTALS............................................................. $24,127 $ 1,949 ======= =======
Note 20 - Other Revenues Included in other revenues are the following (in thousands):
Year One Month Ended Ended June 30, July 31, 1992 1992 -------- --------- Rentals of properties..................................................... $1,649 $ 144 Other 1,460 89 ------ ------- TOTALS........................................................... $3,109 $ 233 ====== =======
Note 21 - Related Party Transactions The following summarizes significant financial information with respect to transactions with present and former officers, directors, their relatives and certain entities they control or in which they have a beneficial interest (in thousands): F-60 107 PRIME HOSPITALITY CORP. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
Year One Month Ended Ended June 30, July 31, 1992 1992 -------- --------- Management and other fee income (a).............................................................. $ 746 $ 56 Interest income (a)........................................................ 1,231 74 Rental income (a).......................................................... 657 -- Management fee expense (b)................................................. 216 37 Interest expense (b)....................................................... 250 66 Reservation fee expense (b)................................................ 10 20
(a) During 1990, PMI sold eight hotel properties to partnerships controlled by former officers and/or directors for aggregate consideration of $52,500,000 resulting in deferred gains of $4,000,000. The Company held mortgages and other notes receivable with a face value of $44,992,000 at July 31, 1992, which arose primarily from those hotel sales. The mortgages mature through 2005 and bear interest at rates ranging from 9.5% to 12.5%. At July 31, 1992, the carrying value of those mortgages was reduced to $6,081,000. The income amounts shown above primarily include transactions related to these properties. (b) In 1991, PMI entered into an agreement with ShoLodge, whereby Sholodge was appointed the exclusive agent to develop and manage certain hotel properties. Six hotels have been developed and opened to date. Development fees earned by ShoLodge of $586,000 and $-0- have been capitalized into property, equipment and leasehold improvements for the year ended June 1992 and the one month ended July 1992, respectively. The Company has demand notes and loans payable to ShoLodge of $2,706,000 and $3,570,000, respectively, at July 31, 1992 concerning the development of hotels. Effective June 1992, the Company commenced using the ShoLodge reservation system for its Wellesley and AmeriSuite hotels. Note 22 - Supplemental Cash Flow Information PMI generally received mortgages and other notes as a portion of the total consideration paid by purchasers in connection with F-61 108 PRIME HOSPITALITY CORP. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED) sales of hotel properties and as consideration for certain construction and development activities. Such noncash consideration is not reflected in the accompanying consolidated statements of cash flows. Investing activities involving such noncash proceeds are summarized below (in thousands):
Year One Month Ended Ended June 30, July 31, 1992 1992 -------- --------- Net book value of assets sold............................................. $1,539 $ -- Net realized gains on property transactions.................................................. 15 -- Cash proceeds, net of selling costs.......................................................... (249) -- ------ ------ NONCASH PROCEEDS................................................... $1,305 $ -- ====== ======
Noncash proceeds consisted of the following (in thousands):
Year One Month Ended Ended June 30, July 31, 1992 1992 -------- --------- Mortgage and other notes receivable............................................................. $1,305 $ -- ====== =======
Cash paid for interest net of amounts capitalized, was $6,432,000 for the year ended June 30, 1992 and $4,407,000 for the one month ended July 31, 1992. Cash paid for income taxes was $1,460,000 for the year ended June 30, 1992 and $2,000 for the one month ended July 31, 1992. F-62 109 SIGNATURES Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized. PRIME HOSPITALITY CORP. DATE: March 9, 1995 By: /s/ DAVID A. SIMON -------------------------------- David A. Simon, President
Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the registrant and in the capacities indicated on March 9, 1995.
SIGNATURE TITLE --------- ----- /s/ DAVID A. SIMON Chairman of Board of Directors, - -------------------------- President, Chief Executive Officer David A. Simon and Director (Principal Executive Officer) /s/ JOHN M. ELWOOD Chief Financial Officer, Executive - -------------------------- Vice President and Director John M. Elwood /s/ ALLEN J. OSTROFF Director - -------------------------- Allen J. Ostroff /s/ HERBERT LUST, II Director - -------------------------- Herbert Lust, II /s/ A.F. PETROCELLI Director - -------------------------- A.F. Petrocelli /s/ JACK H. NUSBAUM Director - -------------------------- Jack H. Nusbaum /s/ HOWARD M. LORBER Director - -------------------------- Howard M. Lorber
110 Exhibit Index ------------- (2) (a) Reference is made to the Disclosure Statement for Debtors' Second Amended Joint Plan of Reorganization dated January 16, 1992, which includes the Debtors' Second Amended Plan of Reorganization as an exhibit thereto filed as an Exhibit to the Company's Form 10-K dated September 25, 1992, which is incorporated herein by reference. (3) (a) Reference is made to the Restated Certificate of Incorporation of the Company dated June 5, 1992 filed as an Exhibit to the Company's Form 10-K dated September 25, 1992, which is incorporated herein by reference. (b) Reference is made to the Restated Bylaws of the Company filed as an Exhibit to the Company's Form 10-K dated September 25, 1992, which is incorporated herein by 111 Exhibit Index (continued) ------------------------- reference. (4) (a) Reference is made to the Form of 8.20% Fixed Rate Senior Secured Note of the Company filed as an Exhibit to the Company's Form 10-K dated September 25, 1992, which is incorporated herein by reference. (b) Reference is made to the Form of Adjustable Rate Senior Secured Note of the Company filed as an Exhibit to the Company's Form 10-K dated September 25, 1992, which is incorporated herein by reference. (c) Reference is made to the Form of 9.20% Junior Secured Note of the Company filed as an Exhibit to the Company's Form 10-K dated September 25, 1992, which is incorporated herein by reference. (d) Reference is made to the Form of 8.20% Tax Note of the Company filed as an Exhibit to the Company's Form 10-K dated September 25, 1992, which is incorporated herein by reference. (e) Reference is made to the Form of 10.20% Secured UND Restructured Note of the Company filed as an Exhibit to the Company's Form 10-K dated September 25, 1992, which is incorporated herein by reference. (f) Reference is made to the Form of 8% Secured UND Restructured Note of the Company filed as an Exhibit to the Company's Form 10-K dated September 25, 1992, which is incorporated herein by reference. (g) Reference is made to the Form of 9.20% OVR Restructured Note of the Company filed as an Exhibit to the Company's Form 10-K dated September 25, 1992, which is incorporated herein by reference. 112 Exhibit Index (continued) ------------------------- (h) Reference is made to the Collateral Agency Agreement among the Company, U.S. Trust and the Secured Parties, dated as of July 31, 1992 filed as an Exhibit to the Company's Form 10-K dated September 25, 1992, which is incorporated herein by reference. (i) Reference is made to the Security Agreement between the Company and U.S. Trust, dated as of July 31, 1992, filed as an Exhibit to the Company's Form 10-K dated September 25, 1992, which is incorporated herein by reference. (j) Reference is made to the Subsidiary Guaranty from FR Delaware, Inc. to United States Trust Company of New York, dated as of July 31, 1992, filed as an Exhibit to the Company's Form 10-K dated September 25, 1992, which is incorporated herein by reference. (k) Reference is made to the Security Agreement between FR Delaware, Inc. and United States Trust Company of New York, dated as of July 31, 1992, filed as an Exhibit to the Company's Form 10-K dated September 25, 1992, which is incorporated herein by reference. (l) Reference is made to the Subsidiary Guaranty from Prime Note Collections Company, Inc. to United States Trust Company of New York, dated as of July 31, 1992, filed as an Exhibit to the Company's Form 10-K dated September 25, 1992, which is incorporated herein by reference. (m) Reference is made to the Security Agreement between Prime Note Collections Company, Inc. and United States Trust Company of New York, dated as of July 31, 1992, filed as an Exhibit to the Company's Form 10-K dated September 25, 1992, which is incorporated herein by reference. 113 Exhibit Index (Continued) ------------------------- (n) Reference is made to a Form 8-A of the Company as filed on June 5, 1992 with the Securities and Exchange Commission, as amended by Amendment No. 1 and Amendment No. 2, which is incorporated herein by reference. (10) (a) Reference is made to the Agreement of Purchase and Sale between Flamboyant Investment Company, Ltd. and VMS Realty, Inc. dated June 3, 1985, and its related agreements, each of which was included as Exhibits to the Form 8-K dated August 14, 1985 of PMI, which are incorporated herein by reference. (b) Reference is made to PMI's Flexible Benefit Plan, filed as an Exhibit to the Form 10-Q dated February 12, 1988 of PMI, which is incorporated herein by reference. (c) Reference is made to the Employment Agreement dated as of July 31, 1992, between David A. Simon and the Company filed as an Exhibit to the Company's Form 10-K dated September 25, 1992, which is incorporated herein by reference. (d) Reference is made to the 1992 Performance Incentive Stock Option Plan of the Company dated as of July 31, 1992, filed as an Exhibit to the Company's Form 10-K dated September 25, 1992, which is incorporated herein by reference. (e) Reference is made to the 1992 Stock Option Plan of the Company filed as an Exhibit to the Company's Form 10-K dated September 25, 1992, which is incorporated herein by reference. (f) Reference is made to the 1992 Non-Qualified Stock Option Agreement between the Company and David A. Simon filed as an Exhibit to the Company's Form 10-K dated September 25, 1992, which is incorporated herein by reference. 114 Exhibit Index ------------- (g) Reference is made to the 1992 Non-Qualified Stock Option Agreement between the Company and David L. Barsky filed as an Exhibit to the Company's Form 10-K dated September 25, 1992, which is incorporated herein by reference. (i) Reference is made to the Employment Agreement dated as of December 31, 1992 between John Elwood and the Company filed as an Exhibit to the Company's Form 10-K dated March 26, 1993, which is incorporated herein by reference. (j) Reference is made to the 1992 Non-Qualified Stock Option Agreement between the Company and John Elwood filed as an Exhibit to the Company's Form 10-K dated March 26, 1993, which is incorporated herein by reference. (k) Reference is made to the Employment Agreement dated as of May 18, 1993 between Paul Hower filed as an Exhibit to the Company's Form 10-K dated March 25, 1994, which is incorporated herein by reference. (l) Reference is made to the Consolidated and Amended Settlement Agreement dated as of October 12, 1993 between Allan V. Rose and the Company filed as an Exhibit to the Company's Form 10-K dated March 25, 1994, which is incorporated herein by reference. (m) Consent and Amendment to Prime Hospitality Corp. 9.20% Junior Secured Notes. (n) Agreement dated February 6, 1995 among Suites of America, Inc., ShoLodge, Inc. and the Company. (o) Change of Control Agreement dated February 15, 1995 between David A. Simon 115 Exhibit Index ------------- and the Company. (p) Change of Control Agreement dated February 15, 1995 between John M. Elwood and the Company. (q) Change of Control Agreement dated February 15, 1995 between Paul H. Hower and the Company. (r) Change of Control Agreement dated February 15, 1995 between John H. Leavitt and the Company. (s) Change of Control Agreement dated February 15, 1995 between Denis W. Driscoll and the Company. (t) Change of Control Agreement dated February 15, 1995 between Timothy E. Aho and the Company. (u) Change of Control Agreement dated February 15, 1995 between Joseph Bernadino and the Company. (v) Change of Control Agreement dated February 15, 1995 between Richard T. Szymanski and the Company. (w) Change of Control Agreement dated February 15, 1995 between Douglas W. Vicari and the Company. (x) Change of Control Agreement dated February 15, 1995 between Richard Moskal and the Company. (11) Computation of Earnings Per Common Share. (12) Computation of the Ratio of Earnings to Fixed Charges. (21) Subsidiaries of the Company are as follows:
Jurisdiction of Name Incorporation ---- ------------- A.J.& R. Motor Inns, Inc. North Carolina Civic Motor Inns, Inc. Virginia Coliseum Motor Inns, Inc. Maryland Dynamic Marketing, Inc. Delaware
(23) (a) Consent of Arthur Andersen LLP (b) Consent of J.H. Cohn & Company (27) Financial Data Schedule. EX-10.M 2 CONSENT AND AMENDMENT, 9.20 JUNIOR SECURED NOTES 1 EXHIBIT 10(m) CONSENT AND AMENDMENT TO PRIME HOSPITALITY CORP. 9.20% JUNIOR SECURED NOTES THIS CONSENT AND AMENDMENT, dated as of May 31, 1994 (the "Amendment"), among PRIME HOSPITALITY CORP., a Delaware corporation (the "Company"), PRIME NOTE COLLECTIONS COMPANY, INC. ("PNCC"), FR DELAWARE, INC. ("FR") and the holders of certain 9.20% Junior Secured Notes issued by the Company (the "Noteholders"). PREAMBLE A. The Company is the issuer of certain 9.20% Junior Secured Notes (the "Note" or Notes"), originally issued on July 31, 1992 and which on the date hereof are held of record by the Noteholders listed as signatories to this Amendment. B. The Company is a party to a certain security agreement with United States Trust Company of New York (the "Agent"), as agent for the benefit of the Noteholders, dated as of July 31, 1992 (the "Security Agreement"), in which the Company grants a security interest in certain assets to secure payment of the Notes. C. PNCC is a party to a security agreement with the Agent, as agent for the benefit of the Noteholders, dated as of July 31, 1992 (the "PNCC Security Agreement"), in which PNCC grants a security interest in certain assets to secure payment of the Notes. D. FR is a party to a security agreement with the Agent, as agent for the benefit of the Noteholders, dated as of July 31, 1992 (the "FR Security Agreement"), in which FR grants a security interest in certain assets to secure payment of the Notes. E. The Company is a party to a certain collateral agency agreement with the Agent and the Noteholders or their predecessors (the "Collateral Agent"), which provides for the appointment of the Agent as Collateral Agent for the benefit of the Noteholders. F. The Company was the issuer of certain 8.20% Fixed Rate Senior Secured Notes and certain Adjustable Rate Senior Secured Notes, which have been paid in full. 2 G. Section 6.1 of the Notes provides that the terms of all the Notes may be amended with the consent of the holders of fifty-one (51%) percent of the principal amount of the Notes then outstanding, provided that no amendment modifying the rate of interest or the maturity with respect to any individual Note will be effective without the written consent of the holder of that Note. H. The Company has requested the consent of the Noteholders to amend the Notes as follows: (i) To change the designation of the Notes from the "9.20% Junior Secured Notes" to the "10% Senior Secured Notes"; (ii) To increase the stated rate of interest on the Notes, effective as of August 1, 1994, from 9.20% per annum to 10% per annum; (iii) To change the final maturity date of the Notes from July 31, 2000 to July 31, 1999; and (iv) To delete the restrictions contained in paragraph 4.5 of the Notes. NOW THEREFORE in consideration of the mutual promises exchanged and for other good and valuable consideration, the receipt and sufficiency of which the parties acknowledge, the parties agree as follows: 1. The Notes henceforth are designated "Prime Hospitality Corp. 10% Senior Secured Notes." All references in the Security Agreement and in the Collateral Agency Agreement to "Prime Hospitality Corp. 9.20% Junior Secured Notes" will be understood to refer to the Notes as redesignated in this Amendment. 2. The rate of interest on the Notes is amended so that, as of August 1, 1994 and henceforth, the Notes will bear interest at a rate of ten (10%) percent per annum. 3. The final maturity date of the Notes is amended so that, subject to the mandatory prepayment of principal provided in Section 2.2 of the Notes or any provision of the Notes providing for an acceleration of maturity, the unpaid principal balance of the Notes is due and -2- 3 payable on July 31, 1999. Further, Section 2.2(b) of the Notes is deleted in its entirety and is of no further effect. 4. Section 4.5 and the definition of "Projected Total Development Expenditures" are deleted in their entirety and are of no further effect. 5. This Amendment is effective immediately upon its execution by Noteholders holding of record at least fifty-one (51%) percent of the principal amount of the Notes outstanding as of the date hereof and shall bind all Notes as set forth in Section 6.1 of the Notes, provided that the amendments set forth in paragraphs 2 and 3 will have effect only with respect to the Notes held of record by Noteholders who execute this Amendment. 6. Other than as expressly set forth in this Amendment, the Notes remain unmodified and in full force and effect. 7. This Amendment will be binding upon and inure to the benefit of and be enforceable by the respective successors and assigns of the parties. 8. This Amendment and any agreement, document or instrument referred to herein integrates all the terms and conditions mentioned herein or incidental hereto, and supersedes all oral negotiations and prior writings in respect to the subject matter hereof unless such prior writings are referred to herein. 9. This Amendment may be executed by the parties hereto in as many counterparts as may be deemed necessary or convenient, and each such counterpart, when so executed, will be deemed an original and all such counterparts will constitute but one and same agreement. IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be signed, the day and year first above written. PRIME HOSPITALITY CORP. By: -------------------------------- Page 1 of 9 Signature Pages To the Amendment -3- 4 PRIME NOTE COLLECTIONS COMPANY, INC. By: -------------------------------- FR DELAWARE, INC. By: -------------------------------- BOST & CO. By: -------------------------------- CENTRAL LEASING (U.S.A.) INC. By: -------------------------------- ----------------------------------- CHARLES PRINCIOTTO CITIBANK (PARIS) By: -------------------------------- Page 2 of 9 Signature Pages To the Amendment -4- 5 DEN DANSKE BANK, AKTIESELSKAB By: -------------------------------- DRAKE & COMPANY By: -------------------------------- FIRST NATIONAL BANK OF BOSTON By: -------------------------------- GENERAL AMERICAN LIFE INSURANCE CO. By: -------------------------------- ----------------------------------- HERBERT KAY HOW & COMPANY By: -------------------------------- ----------------------------------- HOWARD E. MILLER Page 3 of 9 Signature Pages To the Amendment -5- 6 HSBC INVESTMENT BANKING LIMITED By: -------------------------------- HYOGO INTERNATIONAL, LTD. By: -------------------------------- IBJ LEASING (HONG KONG) LIMITED By: -------------------------------- INCE & CO. By: -------------------------------- INGALLS & SNYDER By: -------------------------------- INTERNATIONALE NEDERLANDEN (U.S.) FINANCE CORP. By: -------------------------------- JOHN HANCOCK MUTUAL LIFE INSURANCE CO. By: -------------------------------- Page 4 of 9 Signature Pages To the Amendment -6- 7 JOHN HANCOCK VARIABLE LIFE INSURANCE CO. By: -------------------------------- KANE & CO. By: -------------------------------- KAWASAKI ENTERPRISES INC. By: -------------------------------- KLEINWORT BENSON LIMITED By: -------------------------------- KOREA FIRST BANK, NEW YORK AGENCY By: -------------------------------- KYODO LEASING (PANAMA), S.A. By: -------------------------------- ----------------------------------- MATTEO J. PRINCIOTTO Page 5 of 9 Signature Pages To the Amendment -7- 8 MELLON BANK, N.A.; as Trustee for NYNEX Master Pension Trust By: -------------------------------- ----------------------------------- MELVIN S. TAUB MEPC APACHE PROPERTIES, INC. By: -------------------------------- MORGAN STANLEY & CO. By: -------------------------------- ----------------------------------- MURRAY LIPNER MUZINICH & CO. By: -------------------------------- NAP & COMPANY By: -------------------------------- Page 6 of 9 Signature Pages To the Amendment -8- 9 NORTHERN LIFE INSURANCE COMPANY By: -------------------------------- NORTHERN TELECOM INTERNAT'L FINANCE B.V. By: -------------------------------- NORTHWESTERN NATIONAL LIFE INSURANCE CO. By: -------------------------------- NORWEST BANK MINNESOTA, NA as Servicer By: -------------------------------- OPPENHEIMER & CO., INC. By: -------------------------------- ----------------------------------- PETER E. SIMON Page 7 of 9 Signature Pages To the Amendment -9- 10 PITT & CO. By: -------------------------------- ----------------------------------- SAMUEL BRODIE SHEARSON LEHMAN BROTHERS By: -------------------------------- STANDARD CHARTERED BANK By: -------------------------------- STBL (PANAMA) S.A. By: -------------------------------- Page 8 of 9 Signature Pages to the Amendment -10- 11 TOKYO CITY FINANCE (ASIA) LTD. By: -------------------------------- UNITED JERSEY BANK By: -------------------------------- YTB LEASING (PANAMA) S.A. By: -------------------------------- Page 9 of 9 Signature Pages To the Amendment -11- EX-10.N 3 AGREEMENT DATED FEBRUARY 6, 1995 1 EXHIBIT 10(n) AGREEMENT THIS AGREEMENT (sometimes herein this "Agreement") is executed this 6th day of February, 1995, but effective as of the 31st day of December, 1994, among SUITES OF AMERICA, INC., a Delaware corporation ("SOA"); PRIME HOSPITALITY CORP., a Delaware corporation ("Prime"); and SHOLODGE, INC., a Tennessee corporation ("ShoLodge"). W I T N E S S E T H: WHEREAS, the parties hereto entered into that certain Stock Option Agreement (the "Stock Option Agreement") dated January 8, 1993; and WHEREAS, by letter dated August 12, 1993, as accepted by Prime and SOA on August 17, 1993, the parties hereto approved certain real property located in Columbus, Ohio, as described therein, as a "Site" under the Stock Option Agreement; and WHEREAS, the parties hereto entered into that certain First Amendment to Stock Option Agreement (the "First Amendment") dated as of September 17, 1993; and WHEREAS, by letter dated November 10, 1993, as accepted by Prime and SOA on December 15, 1993, the parties hereto approved certain real property located in Louisville, Kentucky, as described therein, as a "Site" under the Stock Option Agreement in substitution for the Independence, Ohio Site as described in the Stock Option Agreement; and WHEREAS, the parties hereto entered into that certain Second Amendment to Stock Option Agreement (the "Second Amendment") dated as of April 15, 1994; and WHEREAS, the parties hereto entered into that certain Third Amendment to Stock Option Agreement (the "Third Amendment") dated as of July 8, 1994; and WHEREAS, the parties hereto entered into that certain Fourth Amendment to Stock Option Agreement (the "Fourth Amendment") dated as of July 15, 1994 (the Stock Option Agreement, as modified pursuant to the August 12, 1993 letter, the First Amendment, the November 10, 1993 letter, the Second Amendment, the Third Amendment and the Fourth Amendment, is hereinafter referred to collectively as the "Stock Option Agreement"); and WHEREAS, pursuant to Section 2.1 of the Stock Option Agreement, SOA granted to ShoLodge an option to acquire from SOA the New Issue Shares (as defined in the Stock Option Agreement); and WHEREAS, the parties hereto desire to cancel and terminate ShoLodge's option to acquire the New Issue Shares, on the terms and subject to the conditions set forth herein. NOW, THEREFORE, in consideration of the premises, the consideration described in Article II below and in consideration of the mutual agreements otherwise set forth below, the parties hereto agree as follows: 2 ARTICLE I. DEFINITIONS 1.1. Definitions. Except as specified otherwise, when used in this Agreement and any amendments hereto, the following terms shall have the meanings specified: "Agreement" shall mean this Agreement, as the same shall be amended from time to time in accordance with the terms hereof. "Amendment Documents" shall have the meaning set forth in Section 4.4 below. "Cancellation Price" shall have the meaning set forth in Section 3.2 below. "Cash Portion of the Purchase Price" shall mean the portion of the Purchase Price to be paid in immediately available funds at the Closing on the Closing Date pursuant to Section 3.5 below. "Closing" shall mean the conference to be held at 10:00 a.m., Nashville, Tennessee time, on the Closing Date, at the offices of Boult, Cummings, Conners & Berry, Suite 1600, 414 Union Street, Nashville, Tennessee, or at such other time and place on the Closing Date as the parties may mutually agree to in writing, at which time the transactions contemplated by this Agreement shall be consummated. "Closing Date" shall mean such date as the parties hereto may agree upon in writing for the closing of the transactions contemplated hereby; provided, however, that such date shall not be later than March 31, 1995; provided, further, that if compliance with the Hart-Scott-Rodino Antitrust Improvements Act of 1976 is required but all statutorily required waiting periods thereunder have not expired or been terminated by the Federal Trade Commission and the Antitrust Division of the Department of Justice, the Closing Date, at the request of either party, may be postponed until such waiting periods have expired or been terminated. "Consolidation Note" shall mean the Promissory Note dated December 31, 1994 evidencing indebtedness of SOA to ShoLodge in the principal amount of Twenty-Five Million Fifteen Thousand Three Hundred Ninety-Nine Dollars ($25,015,399), as described in Section 2.1(b) below. "Development Agreement" shall mean that certain Development Agreement dated as of August 31, 1990, as amended and restated as of December 13, 1990, and as further amended and restated as of January 21, 1991, by and among Prime, SOA and ShoLodge. "Development Notes" shall mean collectively: (i) That certain Promissory Note (the "Brentwood Note") dated April 1, 1993, in the original principal amount of Four Million Thirty-Four Thousand Eight Hundred Ninety-Seven Dollars ($4,034,897) made by SOA payable to the order of ShoLodge; -2- 3 (ii) That certain Promissory Note (the "Flagstaff Note") dated September 17, 1993, in the original principal amount of Five Million Forty-Five Thousand Dollars ($5,045,000) made by SOA payable to the order of ShoLodge; (iii) That certain Promissory Note (the "Overland Park Note") dated April 21, 1994, in the original principal amount of Five Million Two Hundred Fifty Thousand Dollars ($5,250,000) made by SOA payable to the order of ShoLodge; (iv) That certain Promissory Note (the "Columbus Note") dated May 21, 1994, in the original principal amount of Five Million Four Hundred Ten Thousand Dollars ($5,410,000) made by SOA payable to the order of ShoLodge; and (v) That certain Promissory Note (the "Louisville Note") dated November 20, 1994, in the original principal amount of Five Million Eight Hundred Fifty Thousand Dollars ($5,850,000) made by SOA payable to the order of ShoLodge. "Equipment Leases" shall have the meaning as specified in Section 2.1(c) below. "Financed Portion of the Purchase Price" shall mean the portion of the Purchase Price to be financed by ShoLodge pursuant to Section 3.5 below. "Knowledge of ShoLodge" shall mean the actual knowledge of ShoLodge, without independent inquiry. "Louisville Equipment Note" shall mean that certain Promissory Note dated as of November 20, 1994 in the original principal amount of $856,000 made by SOA payable to the order of ShoLodge relating to the equipment and personal property at the Louisville, Kentucky AmeriSuites Hotel which was originally intended to be leased. "Management Agreements" shall mean (i) the ten (10) existing Management Agreements, between SOA and ShoLodge relating to the SOA Hotels other than the Richmond, Virginia and the Overland Park, Kansas AmeriSuites Hotels, and (ii) the Management Agreement dated as of April 21, 1994 between OP Hotel, Inc., a wholly owned subsidiary of SOA, and ShoLodge relating to the management of the AmeriSuites Hotel located in Overland Park, Kansas. "New Issue Shares" shall mean the one hundred thirty and twenty-eight hundredths (130.28) shares of SOA common stock which ShoLodge has an option to acquire from SOA pursuant to the terms of the Stock Option Agreement. "New Note" shall mean the Promissory Note dated the Closing Date from SOA payable to ShoLodge in the principal amount of the sum of (i) the Financed Portion of the Purchase Price, (ii) the outstanding principal balance of the Consolidation Note on the Closing Date, and (iii) the outstanding principal balance of the Louisville Equipment Note on the Closing Date. - 3 - 4 "Original Notes" shall mean collectively: (i) That certain Promissory Note (the "Nashville Note") dated May 31, 1994, in the original principal amount of Two Million Two Hundred Twenty-Five Thousand Dollars ($2,225,000) made by SOA payable to the order of ShoLodge; (ii) That certain Promissory Note (the "Atlanta Note") dated April 29, 1994, in the original principal amount of One Million Eight Hundred Sixty-Seven Thousand Five Hundred Twenty-Three and 71/100 Dollars ($1,867,523.71) made by SOA payable to the order of ShoLodge; (iii) That certain Promissory Note (the "Blue Ash Note") dated April 29, 1994, in the original principal amount of Eight Hundred Thirty-Eight Thousand Six Hundred Fourteen Dollars ($838,614) made by SOA payable to the order of ShoLodge; (iv) That certain Promissory Note (the "Little Rock Note") dated May 31, 1994, in the original principal amount of Two Million Eight Hundred Five Thousand Dollars ($2,805,000) made by SOA payable to the order of ShoLodge; (v) That certain Promissory Note (the "Indianapolis Note") dated April 29, 1994, in the original principal amount of Three Million Dollars ($3,000,000) made by SOA payable to the order of ShoLodge; and (vi) That certain Promissory Note (the "Forest Park Note") dated April 29, 1994, in the original principal amount of Three Million Five Hundred Sixty-Nine Thousand Seven Hundred One Dollars ($3,569,701) made by SOA payable to the order of ShoLodge. "Purchase Price" shall mean collectively the Cancellation Price and the Richmond Price, subject to adjustment as described in Section 4.2 below. "Reimbursement Agreement" shall mean that certain Reimbursement Agreement dated as of December 31, 1994 by and between SOA and ShoLodge, as described in Section 2.1(c) below. "Reservation Agreement" shall mean collectively that certain Reservation Agreement dated February 26, 1992 by and between ShoLodge and Prime, together with all supplemental agreements with third party owners executed pursuant thereto. "Richmond Mortgage" shall have the meaning set forth in Section 3.6 below. "Richmond Price" shall have the meaning set forth in Section 3.4 below. "Site" or "Sites" shall mean individually or collectively, as applicable, the real property upon which the SOA Hotels are located. "SOA Hotels" shall mean the AmeriSuites Hotels located in Nashville, Tennessee, Atlanta, Georgia, Blue Ash, Ohio, Little Rock, Arkansas, Indianapolis, Indiana, Forest Park, - 4 - 5 Ohio, Richmond, Virginia, Brentwood, Tennessee, Flagstaff, Arizona, Overland Park, Kansas, Columbus, Ohio and Louisville, Kentucky. 1.2. Singular/plural; gender. Where the context so requires or permits, the use of the singular form includes the plural, and use of the plural form includes the singular, and the use of any gender includes any and all genders. ARTICLE II. CONSIDERATION 2.1. Consideration for Execution of Agreement. As consideration for the execution and delivery of this Agreement, effective as of December 31, 1994: A. ShoLodge shall cancel Fourteen Million Eight Hundred Eighty Thousand Three Hundred Thirty-Seven Dollars ($14,880,337) of the indebtedness evidenced by the Development Notes, as contemplated to occur upon the exercise by ShoLodge of its option to acquire the New Issue Shares pursuant to the Stock Option Agreement. B. SOA shall execute and deliver to ShoLodge a Promissory Note (the "Consolidation Note") in the principal amount of Twenty-Five Million Fifteen Thousand Three Hundred Ninety-Nine Dollars ($25,015,399), representing the indebtedness evidenced by the Original Notes and the portion of the indebtedness evidenced by the Development Notes not cancelled pursuant to subparagraph (a) above, in return for the Original Notes and the Development Notes, as contemplated to occur upon the exercise by ShoLodge of its option to acquire the New Issue Shares pursuant to the Stock Option Agreement. C. ShoLodge and SOA shall enter into a Reimbursement Agreement pursuant to which SOA shall agree to reimburse ShoLodge and any subsidiary of ShoLodge for any payments made by ShoLodge or any such subsidiary as maker, co-maker, co-obligor, co-guarantor or otherwise under the leases of the equipment and other personal property at the SOA Hotels (the "Equipment Leases"), other than the Equipment Lease for the equipment and other personal property at the Richmond, Virginia AmeriSuites Hotel. D. All documents securing the indebtedness evidenced by the Original Notes and the Development Notes shall be modified so that such collateral secures the indebtedness evidenced by the Consolidation Note and the Reimbursement Agreement, as contemplated to occur upon the exercise by ShoLodge of its option to acquire the New Issue Shares pursuant to the Stock Option Agreement. E. The parties hereto shall enter into a Termination Agreement pursuant to which the Development Agreement shall be cancelled and terminated, as contemplated to occur upon the exercise by ShoLodge of its option to acquire the New Issue Shares pursuant to the Stock Option Agreement. - 5 - 6 ARTICLE III. CANCELLATION OF OPTION; TRANSFER OF RICHMOND, VIRGINIA PROPERTY 3.1. Cancellation of Option. Subject to the terms and conditions of this Agreement and in reliance upon the representations, warranties and agreements of the parties hereto, at the Closing on the Closing Date, the parties hereto shall enter into a document in form and substance mutually agreeable to the parties hereto whereby the Stock Option Agreement shall be cancelled and terminated as of the Closing Date. 3.2. Cancellation Price. SOA, in full payment for the cancellation and termination of the Stock Option Agreement pursuant to Section 3.1 above, at the Closing on the Closing Date, shall pay to ShoLodge in the manner set forth in Section 3.5 below the sum of Twenty- Seven Million Three Hundred Twenty-Six Thousand Five Hundred Dollars ($27,326,500) (herein the "Cancellation Price"). 3.3. Transfer of Richmond, Virginia Property. Subject to the terms and conditions of this Agreement and in reliance upon the representations, warranties and agreements of the parties hereto, at the Closing on the Closing Date, ShoLodge shall cause Richmond Inn, Inc. to transfer and convey to SOA the land, building and tangible personal property constituting the Richmond, Virginia AmeriSuites Hotel, including the fee title to the real property on which such AmeriSuites Hotel is located, pursuant to documents in form and substance mutually agreeable to the parties hereto. Such transfer documents shall be substantially in the form of the documents pursuant to which the Louisville, Kentucky AmeriSuites Hotel was conveyed to SOA, and such transfer shall be subject to the easements, restrictions and encumbrances now in existence, except for the ground lease, which shall be cancelled and terminated as of the Closing Date. 3.4. Richmond Price. SOA, in full payment for the transfer and conveyance of the land, building and tangible personal property constituting the Richmond, Virginia AmeriSuites Hotel pursuant to Section 3.3 above, at the Closing on the Closing Date, shall pay to ShoLodge in the manner set forth in Section 3.5 below the sum of Seven Million Three Hundred Thousand Dollars ($7,300,000) (herein the "Richmond Price"). 3.5. Delivery of Purchase Price. At the Closing on the Closing Date, SOA shall deliver to ShoLodge by wire transfer of immediately available funds (or pursuant to such other method as shall be mutually agreed upon by SOA and ShoLodge) an amount (the "Cash Portion of the Purchase Price") equal to Six Million One Hundred Twenty-Six Thousand Five Hundred Dollars ($6,126,500). The balance of the Purchase Price (the "Financed Portion of the Purchase Price") shall be financed by ShoLodge pursuant to the New Note which shall be delivered by SOA to ShoLodge at the Closing on the Closing Date. The New Note shall be substantially in the form of the Consolidation Note, but with interest on the principal amount evidenced thereby at the per annum rate of ten and one-quarter percent (10.25%) payable in arrears on the first day of each month, with principal payable monthly on the first day of each month based upon a twenty-five (25) year amortization, with a special principal payment in the - 6 - 7 amount of Five Million Dollars ($5,000,000) being due on July 1, 1995 and a special principal payment in the amount of Five Million Dollars ($5,000,000) being due on October 1, 1995 (at which time the regular monthly principal payment shall be recalculated using the principal amount outstanding following each such special principal payment and the remaining months of the initial twenty-five (25) year amortization period) and with the entire outstanding principal amount together with all accrued and unpaid interest being due and payable on the date two (2) years from the Closing Date. 3.6. Security. The indebtedness evidenced by the New Note shall be secured by a first priority mortgage, deed of trust or similar security instrument and related documents with respect to the Richmond, Virginia AmeriSuites Hotel, such documents to be in form and substance mutually agreeable to SOA and ShoLodge (the "Richmond Mortgage"), and shall be further secured by all collateral presently securing the indebtedness evidenced by the Consolidation Note. The Richmond Mortgage and related documents shall be substantially in the form of the mortgage, deed of trust or similar security instrument and related documents now of record in favor of ShoLodge with respect to the SOA Hotels other than the Richmond, Virginia AmeriSuites Hotel. SOA, at SOA's expense, shall also deliver to ShoLodge a title policy insuring the Richmond Mortgage in the amount of the Richmond Price. ARTICLE IV. RELATED TRANSACTIONS 4.1. Cancellation of Management Agreements. At the Closing on the Closing Date, SOA (or the owner of the applicable hotel, as appropriate) and ShoLodge shall enter into documents whereby the Management Agreements are cancelled and terminated, such documents to be in the form attached hereto as Exhibit A. 4.2. Price Adjustments. Within thirty (30) days following the Closing Date, SOA shall deliver to ShoLodge by wire transfer of immediately available funds (or pursuant to such other method as shall be mutually agreed upon by SOA and ShoLodge), as an addition to the Purchase Price, an amount equal to 1. one-half (1/2) of the working capital of SOA (including the working capital of OP Hotel, Inc.) as of December 31, 1994 after giving effect to the working capital adjustment pursuant to Section 2.7 of the Stock Option Agreement, determined as if ShoLodge had acquired the New Issue Shares pursuant to the Stock Option Agreement on December 31, 1994, plus (ii) an amount equal to interest at nine and one-half percent (9 1/2%) per annum on Fourteen Million Eight Hundred Eighty Thousand Three Hundred Thirty-Seven Dollars ($14,880,337) from January 1, 1995 to and including the Closing Date, adjusted up or down in accordance with the provisions of the third paragraph of the Overland Park Note, the Columbus Note and the Louisville Note as if such notes were still outstanding. At the Closing on the Closing Date, SOA shall deliver to ShoLodge by wire transfer of immediately available funds (or pursuant to such other method as shall be mutually agreed upon by SOA and ShoLodge), as an addition to the Purchase Price, an amount equal to the cost to Richmond Inn, Inc. to obtain fee simple title to the land on which the Richmond, Virginia AmeriSuites Hotel is located in excess of One Million One Hundred Twenty-Six Thousand Five Hundred Dollars ($1,126,500); provided, however, the decision to pay any such excess to obtain - 7 - 8 fee simple title to the land on which the Richmond, Virginia AmeriSuites is located or in lieu thereof to acquire the stock of Richmond Inn, Inc. pursuant to Section 13.2 below shall be made by SOA. 4.3. Equipment Leases. At the Closing on the Closing Date, (i) SOA shall use its best efforts to cause ShoLodge and all subsidiaries of ShoLodge to be released from any and all liability, whether as maker, co-maker, co-obligor, guarantor or otherwise, under the Equipment Leases, (ii) unless ShoLodge or a subsidiary of ShoLodge remains liable for an Equipment Lease, the Reimbursement Agreement shall be cancelled and terminated pursuant to a document in form and substance mutually agreeable to SOA and ShoLodge, and (iii) if ShoLodge or Richmond Inn, Inc. remains liable for the Equipment Lease relating to the Richmond, Virginia AmeriSuites Hotel, SOA shall assume all obligations of the lessee thereunder and the Reimbursement Agreement shall be amended to include an agreement of SOA to reimburse ShoLodge and Richmond Inn, Inc. for any payments made by ShoLodge or Richmond Inn, Inc. pursuant to such Equipment Lease from and after the Closing Date. In the event ShoLodge and all subsidiaries of ShoLodge are not released from liability for all Equipment Leases, (i) SOA, upon the request of ShoLodge, shall deliver to ShoLodge evidence of the payment of monthly lease payments due under the Equipment Leases, and (ii) SOA shall on or before the payment in full of the indebtedness evidenced by the New Note prepay in full all of the Equipment Leases for which ShoLodge or a subsidiary of ShoLodge remains liable and provide to ShoLodge evidence of such prepayment. 4.4. Modification of Existing Documents. At the Closing on the Closing Date, (i) the outstanding principal indebtedness of the Consolidation Note and the Louisville Equipment Note shall be consolidated with the Financed Portion of the Purchase Price into the New Note, such indebtedness thereafter bearing interest and being repayable in accordance with the provisions of the New Note, (ii) all documents securing the indebtedness evidenced by the Consolidation Note shall be modified (A) to reflect that the collateral described therein secures the indebtedness evidenced by the New Note, and (B) if the Reimbursement Agreement is cancelled and terminated, to delete any reference to the Reimbursement Agreement, such documentation (collectively the "Amendment Documents") to be in form and substance mutually agreeable to SOA and ShoLodge, and (iii) all title policies insuring ShoLodge shall be endorsed at the expense of SOA to reflect the recording of the Amendment Documents and the documents described in Section 2.1(d) above which are recorded. 4.5. Modification of Reservation Agreement. At the Closing on the Closing Date, the Reservation Agreement shall be amended pursuant to a document in form and substance mutually agreeable to Prime and ShoLodge to permit Prime to terminate the Reservation Agreement on six (6) months prior written notice. 4.6. De-Identification of Tampa Property. Within sixty (60) days following the Closing Date, ShoLodge shall cause Tampa Inn, Inc. to cease operating the Tampa, Florida AmeriSuites Hotel owned by Tampa Inn, Inc. as an AmeriSuites Hotel and to cease using the name "AmeriSuites" in advertising or in any other manner in connection with the operation of the Tampa, Florida AmeriSuites Hotel. - 8 - 9 ARTICLE V. CLOSING DELIVERIES 5.1. Closing Date Deliveries. At the Closing on the Closing Date: (a.) ShoLodge shall deliver, or cause to be delivered, to SOA: (i) the document pursuant to which the Stock Option Agreement is cancelled and terminated properly executed by ShoLodge; (ii) either (A) the documents necessary to consummate the transfer of the land, building and tangible personal property constituting the Richmond, Virginia AmeriSuites Hotel to SOA, properly executed by all parties thereto other than SOA and Prime, or (B) if the provisions of Section 13.2 below are applicable, the documents necessary to consummate the transfer of the stock of Richmond Inn, Inc., properly executed by ShoLodge, (iii) the Consolidation Note and the Louisville Equipment Note; (iv) the resignation of Leon Moore as a member of the Board of Directors and as an officer of SOA and OP Hotel, Inc. and the resignation of Bob Marlowe, Richard L. Johnson and John C. Buttolph as officers of SOA and OP Hotel, Inc., and, if the provisions of Section 13.2 below are applicable, the resignation of such individuals as directors and/or officers, as applicable, of Richmond Inn, Inc., all such resignations to be effective immediately following the Closing; (v) the documents pursuant to which the Management Agreements, and, if applicable, the Reimbursement Agreement are cancelled and terminated all properly executed by ShoLodge; (vi) the document pursuant to which the Reservation Agreement and, if applicable, the Reimbursement Agreement, are amended properly executed by ShoLodge; and (vii) such other documents as SOA shall reasonably request. (b.) SOA shall deliver, or cause to be delivered, to ShoLodge (i) the Cash Portion of the Purchase Price in immediately available funds; (ii) the document pursuant to which the Stock Option Agreement is cancelled and terminated properly executed by SOA and Prime, (iii) the New Note properly executed by SOA; (iv) the Amendment Documents and the Richmond Mortgage and related documents (or, if the provisions of Section 13.2 below are applicable, the documents pursuant to which ShoLodge is granted a security interest in the stock of Richmond Inn, Inc.) all properly executed by all parties thereto other than ShoLodge; (v) the documents pursuant to which the Management Agreements, and, if applicable, the Reimbursement Agreement are cancelled and terminated all properly executed by all parties thereto other than ShoLodge; (vi) the document pursuant to which the Reservation Agreement and, if applicable, the Reimbursement Agreement, are amended properly executed by Prime; and (vii) such other documents as ShoLodge shall reasonably request. - 9 - 10 ARTICLE VI. REPRESENTATIONS AND WARRANTIES OF SHOLODGE ShoLodge hereby represents and warrants to SOA and Prime as follows: 6.1. Organization of ShoLodge. ShoLodge is a corporation duly organized, validly existing and in good standing under the laws of the State of Tennessee and has the corporate power and authority to enter into and perform this Agreement. 6.2. Authorization. The execution and delivery of this Agreement by ShoLodge and the consummation by ShoLodge of the transactions contemplated hereby have been duly authorized by ShoLodge's Board of Directors. Neither the entering into this Agreement nor the consummation of the transactions contemplated herein will cause a violation or breach by ShoLodge of any contracts, agreements or instruments to which ShoLodge is a party or by which ShoLodge is bound. 6.3. Valid and Binding Agreement. This Agreement constitutes, and each of the other documents to be executed by ShoLodge to consummate the transactions contemplated herein will constitute upon execution by all parties thereto, a valid and binding agreement of ShoLodge, enforceable in accordance with its terms, subject as to enforceability to bankruptcy, insolvency and similar laws affecting creditors' rights generally and to the availability of equitable remedies. 6.4. No Violation. Neither the execution and delivery of this Agreement nor the consummation by ShoLodge of the transactions contemplated hereby violates or conflicts with the Charter or Bylaws of ShoLodge or any agreement or other restriction of any kind to which ShoLodge is as a party or by which it is bound. 6.5. Agreements with ShoLodge. Other than the Development Agreement, the Stock Option Agreement, this Agreement and the agreements entered into pursuant to the Development Agreement, the Stock Option Agreement or this Agreement, there are no other agreements between SOA and ShoLodge or any of its officers, directors or affiliates. 6.6. Employees. All employees of the SOA Hotels are listed in Schedule 6.6 attached hereto. There are no written agreements with any of such employees unless described in Schedule 6.6. To the Knowledge of ShoLodge, there are no employee claims, EEOC matters or state division of civil rights matters pending or threatened. 6.7. Litigation. Except as set forth in Schedule 6.7 hereto, there are no actions, proceedings or investigations pending or, to the Knowledge of ShoLodge, threatened against SOA, and ShoLodge knows and has no reason to know of any basis for any such action, proceeding or investigation. - 10 - 11 6.8. Site Disclosure. A. There is no pending or, to the Knowledge of ShoLodge, threatened condemnation or similar proceeding affecting the Sites or any portion thereof, and to the Knowledge of ShoLodge, no such action is presently contemplated. B. To the Knowledge of ShoLodge (i) all necessary permits and licenses required for the operation of the SOA Hotels have been obtained, and (ii) no zoning, building or other federal, state or municipal law, ordinance, regulation or restriction is violated by the continued maintenance, operation or use of the Sites or any portion thereof in any manner which would have a material adverse effect on the operations of SOA. No notice of zoning or building code violations resulting from the improvements on the Sites or the continued operation of the SOA Hotels has been received by ShoLodge. C. To the Knowledge of ShoLodge, (i) the SOA Hotels have been operated in compliance with all environmental regulations, and (ii) no material amounts of pollutants or other toxic or hazardous substances, including any solid, liquid, gaseous or thermal irritant or contaminant, such as smoke, vapor, soot, fumes, alkalis, acids, chemicals or wastes, have been stored, discharged, released, generated or allowed to escape at or from the Sites, (iii) no underground storage tanks are located on the Sites or have been removed or filled, and (iv) no investigation, administrative order, consent order or agreement, litigation or settlement with respect to any of the foregoing is proposed, threatened, anticipated or in existence with respect to the Sites. ShoLodge has not received any notice of any such investigation, administrative order, consent order or agreement, litigation or settlement. 6.9. Equipment Leases. All Equipment Leases are described in Schedule 6.9 attached hereto. To the Knowledge of ShoLodge, no event of default exists under any of the Equipment Leases that could have an adverse effect on the operation of the SOA Hotels. 6.10. Operating Contracts. All operating contracts concerning the SOA Hotels are described in Schedule 6.10 to be attached hereto on or prior to the Closing Date. To the Knowledge of ShoLodge, no event of default exists under any of the operating contracts that could have an adverse effect on the operation of the SOA Hotels. 6.11. No Undisclosed Liabilities. To the Knowledge of ShoLodge, except as set forth or reserved against in SOA's financial statements, as disclosed in or created pursuant to the Development Agreement, the Stock Option Agreement, this Agreement or a document entered into pursuant to the Development Agreement, the Stock Option Agreement or this Agreement, or as otherwise disclosed in writing to SOA, there are no other obligations, liabilities or claims pending or threatened against SOA. - 11 - 12 ARTICLE VII. REPRESENTATIONS AND WARRANTIES OF SOA SOA hereby represents and warrants to ShoLodge as follows: 7.1. Organization of SOA. SOA is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware and has the corporate power and authority to enter into and perform this Agreement. 7.2. Authorization. The execution and delivery of this Agreement by SOA and the consummation by SOA of the transactions contemplated hereby have been duly authorized by SOA's Board of Directors. Neither the entering into this Agreement nor the consummation of the transactions contemplated herein will cause a violation or breach by SOA of any contracts, agreements or instruments to which SOA is a party or by which SOA is bound. 7.3. Valid and Binding Agreement. This Agreement constitutes, and each of the other documents to be executed by SOA to consummate the transactions contemplated herein will constitute upon execution by all parties thereto, a valid and binding agreement of SOA, enforceable in accordance with its terms, subject as to enforceability to bankruptcy, insolvency and similar laws affecting creditors' rights generally and to the availability of equitable remedies. 7.4. No Violation. Neither the execution and delivery of this Agreement nor the consummation by SOA of the transactions contemplated hereby violates or conflicts with the Charter or Bylaws of SOA or any agreement or other restriction of any kind to which SOA is as a party or by which it is bound. ARTICLE VIII. REPRESENTATIONS AND WARRANTIES OF PRIME Prime hereby represents and warrants to ShoLodge as follows: 8.1. Organization of Prime. Prime is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware and has the corporate power and authority to enter into and perform this Agreement. 8.2. Authorization. The execution and delivery of this Agreement by Prime and the consummation by Prime of the transactions contemplated hereby have been duly authorized by Prime's Board of Directors. Neither the entering into this Agreement nor the consummation of the transactions contemplated herein will cause a violation or breach by Prime of any contracts, agreements or instruments to which Prime is a party or by which Prime is bound. 8.3. Valid and Binding Agreement. This Agreement constitutes, and each of the other documents to be executed by Prime to consummate the transactions contemplated - 12 - 13 herein will constitute upon execution by all parties thereto, a valid and binding agreement of Prime, enforceable in accordance with its terms, subject as to enforceability to bankruptcy, insolvency and similar laws affecting creditors' rights generally and to the availability of equitable remedies. 8.4. No Violation. Neither the execution and delivery of this Agreement nor the consummation by Prime of the transactions contemplated hereby violates or conflicts with the Charter or Bylaws of Prime or any agreement or other restriction of any kind to which Prime is as a party or by which it is bound. ARTICLE IX. CERTAIN MATTERS PENDING THE CLOSING 9.1. Antitrust Filings. Prime, SOA and ShoLodge shall, as soon as practicable after the execution of this Agreement, make or cause to be made any required governmental filings pursuant to the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (the "HSR Act") with respect to the transactions contemplated hereby and shall use their best efforts to respond as promptly as practicable to all inquiries received from the applicable governmental agencies or committees for additional information or documentation. Each of Prime, SOA and ShoLodge will notify the others of all correspondence, filings or communications between such party or its representatives, on the one hand, and the applicable governmental agencies or committees, on the other hand, with respect to this Agreement and the transactions contemplated hereby. Each of Prime, SOA and ShoLodge will furnish the others with such necessary information and reasonable assistance as such other party may request in connection with its preparation of such filings. SOA shall pay directly or reimburse ShoLodge for all filing fees and related costs in connection with all such filings. ARTICLE X. CONDITIONS PRECEDENT TO THE OBLIGATIONS OF SHOLODGE Each and every obligation of ShoLodge to be performed hereunder shall be subject to the satisfaction, prior to or on the date on which performance is due, of the following express conditions precedent: 10.1. Compliance with Agreement. Prime and SOA shall have performed and complied in all respects with all of their obligations under this Agreement which are to have been performed or complied with by them as of such date. 10.2. Representations and Warranties. The representations and warranties made by Prime and SOA in this Agreement shall have been true and correct in all respects and such representations and warranties shall be true and correct in all respects as of the Closing - 13 - 14 Date with the same force and effect as though such representations and warranties had been made on the Closing Date. 10.3. Proceedings and Instruments Satisfactory. All proceedings, corporate or other, to be taken by SOA and Prime in connection with the performance of this Agreement, and all documents incident thereto, shall be complete to the reasonable satisfaction of ShoLodge and ShoLodge's attorneys, and SOA and Prime shall have made available to ShoLodge for examination the originals or true and correct copies of all documents which ShoLodge may reasonably request in connection with the transactions contemplated by this Agreement. 10.4. Deliveries at Closing. Prime and SOA shall have delivered or caused to be delivered to ShoLodge the funds and the documents, each properly executed and dated as of the Closing Date, required pursuant to this Agreement. 10.5. Other Documents. Prime and SOA shall have delivered to ShoLodge or caused to be delivered to ShoLodge such certificates and documents of officers of SOA and Prime and public officials and opinions of counsel for SOA and Prime as shall be reasonably requested by ShoLodge's counsel to establish the existence and good standing of SOA and Prime and the due authorization and enforceability of this Agreement and the other documents to be executed by Prime and/or SOA to consummate the transactions contemplated herein and the authorization of the transactions and performance contemplated hereby by SOA and Prime. ARTICLE XI. CONDITIONS PRECEDENT TO THE OBLIGATIONS OF PRIME AND SOA Each and every obligation of Prime and SOA to be performed hereunder shall be subject to the satisfaction prior to or on the Closing Date of the following express conditions precedent: 11.1. Compliance with Agreement. ShoLodge shall have performed and complied in all respects with all of its obligations under this Agreement which are to have been performed or complied with by it prior to or on such Closing Date. 11.2. Representations and Warranties. The representations and warranties made by ShoLodge shall have been true and correct in all respects as of the Closing Date with the same force and effect as though such representations and warranties had been made on the Closing Date. 11.3. Proceedings and Instruments Satisfactory. All proceedings, corporate or other, to be taken by ShoLodge in connection with the performance of this Agreement, and all documents incident thereto, shall be complete to the reasonable satisfaction of SOA and Prime and their attorneys, and ShoLodge shall have made available to Prime and to SOA for examination the originals or true and correct copies of all documents which Prime and SOA may reasonably request in connection with the transactions contemplated by this Agreement. - 14 - 15 11.4. Deliveries at Closing. ShoLodge shall have delivered or caused to be delivered to Prime and/or to SOA the documents, each properly executed and dated as of the Closing Date, required pursuant to this Agreement. 11.5. Other Documents. ShoLodge shall have delivered to Prime and SOA or caused to be delivered to Prime and SOA such certificates and documents of officers of ShoLodge and public officials and opinions of counsel for ShoLodge as shall be reasonably requested by counsel to Prime and SOA to establish the existence and good standing of ShoLodge and the due authorization of this Agreement and the authorization of the transactions and performance contemplated hereby by ShoLodge. ARTICLE XII. SURVIVAL OF REPRESENTATIONS; INDEMNIFICATIONS 12.1. Survival of Representations. All representations, warranties and agreements made by any party in this Agreement or pursuant hereto shall be accurate as of and shall survive the Closing hereunder and any investigation at any time made by the party to whom such representation, warranty or agreement is made. 12.2. Statements as Representations. All statements contained in any certificate, list, document or other writing delivered pursuant hereto or in connection with the transactions contemplated hereby shall be deemed representations and warranties. 12.3. Indemnification by Prime and SOA. Prime and SOA, jointly and severally, hereby indemnify and hold ShoLodge harmless from and against, and agree to promptly defend ShoLodge from and reimburse ShoLodge for, any and all losses, damages, costs, expenses, liabilities, obligations, suits, actions, proceedings (formal or informal), investigations, settlements and claims of any kind (including, without limitation, reasonable attorney fees and other legal costs and expenses) which ShoLodge may at any time suffer or incur, or become subject to, as a result of or in connection with: (a.) any breach or inaccuracy of any of the representations and warranties made by Prime or SOA in or pursuant to this Agreement, or in any certificate or document delivered by Prime or SOA in accordance with the provisions of any Section hereof; or (b.) any failure by Prime or SOA to carry out, perform, satisfy and discharge any of the covenants, agreements, undertakings, liabilities or obligations of Prime or SOA under this Agreement or under any of the documents delivered by Prime or SOA pursuant to this Agreement. 12.4. ShoLodge's Indemnity. ShoLodge hereby indemnifies and holds Prime and SOA harmless from and against, and agrees promptly to defend Prime and SOA from and reimburse Prime and SOA for any and all losses, damages, costs, expenses, liabilities, obligations, suits, actions, proceedings (formal or informal), investigations, settlements and claims of any kind (including, without limitation, reasonable attorney fees and other legal costs - 15 - 16 and expenses) which Prime and SOA may at any time suffer or incur, or become subject to, as a result of or in connection with: (a.) any breach or inaccuracy of any representations and warranties made by ShoLodge in or pursuant to this Agreement, or in any certificate or document delivered by ShoLodge in accordance with the provisions of any Section hereof; or (b.) any failure by ShoLodge to carry out, perform, satisfy and discharge any of its covenants, agreements, undertakings, liabilities or obligations under this Agreement or under any of the documents delivered by ShoLodge pursuant to this Agreement. Further, ShoLodge shall indemnify and hold Prime and SOA harmless from and against any adverse judgment rendered in the lawsuits described in Schedule 6.7 styled Doster Construction Company, Inc. v. Suites of America, Inc., et al., filed in Marion County, Indiana, and in Hamilton County, Ohio. 12.5. Notification of Claims. (a.) A party or parties entitled to be indemnified pursuant to Section 12.3 or 12.4 hereof (the "Indemnified Party") shall notify the party or parties liable for such indemnification (the "Indemnifying Party") in writing of any claim or demand which the Indemnified Party has determined has given or could give rise to a right of indemnification under this Agreement. Subject to the Indemnifying Party's right to defend in good faith third party claims as hereinafter provided, the Indemnifying Party shall satisfy its obligations under this Article XII within thirty (30) days after the receipt of written notice thereof from the Indemnified Party. (b.) If the Indemnified Party shall notify the Indemnifying Party of any claim or demand pursuant to Section 12.5(a), and if such claim or demand relates to a claim or demand asserted by a third party against the Indemnified Party which the Indemnified Party asserts is a claim or demand for which the Indemnifying Party must indemnify or hold harmless the Indemnified Party under Section 12.3 or 12.4 hereof, the Indemnifying Party shall have the right to employ counsel to defend any such claim or demand asserted against the Indemnified Party. The Indemnified Party shall have the right to cooperate at its expense in the defense of any such claim or demand. The Indemnifying Party shall notify the Indemnified Party in writing, within thirty (30) days after the date of the notice of claim given by the Indemnified Party to the Indemnifying Party under Section 12.5(a) of its election to defend in good faith any such third party claim or demand. So long as the Indemnifying Party is defending in good faith any such claim or demand asserted by a third party against the Indemnified Party, the Indemnified Party shall not settle or compromise such claim or demand. The Indemnified Party shall make available to the Indemnifying Party or its agents all records and other materials in the Indemnified Party's possession reasonably required by the Indemnifying Party for its use in contesting any third party claim or demand. Whether or not the Indemnifying Party elects to defend any such claim or demand, the Indemnified Party shall have no obligation to do so. 12.6. Survival. The provisions of this Article XII shall survive the Closing of the transactions contemplated by this Agreement. - 16 - 17 ARTICLE XIII MISCELLANEOUS 13.1. Rescission of Exercise of Option. The parties hereto hereby revoke and rescind, effective as of December 31, 1994, the exercise by ShoLodge of its option to acquire the New Issue Shares pursuant to the Stock Option Agreement. The parties hereto further acknowledge and agree that should the transactions contemplated by this Agreement fail to close, other than as a result of a default by ShoLodge under this Agreement or the failure of ShoLodge to close, the terms and provisions of the Stock Option Agreement shall remain in full force and effect and ShoLodge's option to acquire the New Issue Shares pursuant thereto shall remain in effect until July 10, 1995. 13.2. Inability to Acquire Richmond, Virginia Property. In the event Richmond Inn, Inc. is unable to transfer fee title to the real property on which the Richmond, Virginia AmeriSuites Hotel is located because of a disagreement with the owner of such property over the purchase price payable to such owner, the transaction contemplated hereby shall nevertheless close on the Closing Date, and in lieu of the transfer of the land, building and tangible personal property constituting the Richmond, Virginia AmeriSuites Hotel, ShoLodge shall transfer to SOA all of the issued and outstanding stock of Richmond Inn, Inc., and ShoLodge shall be granted a first priority security interest in such stock in lieu of the Richmond Mortgage, such transfer and grant of security interest to be pursuant to documents in form and substance mutually agreeable to ShoLodge and SOA, but to be in substantially the form of the documents relating to the transfer and grant of a security interest in connection with the stock of OP Hotel, Inc. In such event (i) the Richmond Price, the Purchase Price and the Cash Portion of the Purchase Price shall be reduced by One Million One Hundred Twenty-Six Thousand Five Hundred Dollars ($1,126,500), and (ii) prior to the transfer of such stock of Richmond Inn, Inc. to SOA, all assets of Richmond Inn, Inc. other than the land, building and tangible personal property constituting the Richmond, Virginia AmeriSuites Hotel shall be transferred from Richmond Inn, Inc. to ShoLodge, Inc. 13.3. Expenses. All fees and expenses incurred by Prime or SOA in connection with this Agreement shall be paid by Prime or SOA, as appropriate. Except as otherwise expressly provided herein to the contrary, all fees and expenses incurred by ShoLodge in connection with this Agreement will be borne by ShoLodge. 13.4. Parties in Interest. Except as otherwise expressly provided herein, all the terms and provisions of this Agreement shall be binding upon, shall inure to the benefit of, and shall be enforceable by the respective heirs, beneficiaries, personal and legal representatives, successors and assigns of the parties hereto. 13.5. Entire Agreement; Amendments. This Agreement and the other documents and writings referred to herein or delivered pursuant hereto, which form a part hereof, contains the entire understanding of the parties with respect to this subject matter. There are no restrictions, agreements, promises, warranties, covenants or undertakings other than those expressly set forth herein or therein. This Agreement supersedes all prior agreements and understandings between the parties with respect to its subject matter. This Agreement may be - 17 - 18 amended only by a written instrument duly executed by the parties or their respective successors or assigns. Any condition to a party's obligations hereunder may be waived by such party in writing. 13.6. Headings. The section and paragraph headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretations of this Agreement. 13.7. Notices. All notices, requests, demands and other communications hereunder ("Notices") shall be in writing and shall be deemed to have been duly given if hand-delivered, sent via overnight delivery service or mailed (registered or certified mail, postage prepaid, return receipt requested) as follows: As to SOA or Prime: Prime Hospitality Corp. 700 Route 46 East Fairfield, New Jersey 07004 Attn: President With a copy to: Prime Hospitality Corp. Prime Law Department 700 Route 46 East Fairfield, New Jersey 07004 As to ShoLodge: ShoLodge, Inc. 217 West Main Street Gallatin, Tennessee 37066 Attn.: Leon Moore With a copy to: Boult, Cummings, Conners & Berry Suite 1600, 414 Union Street Nashville, Tennessee 37219 Attn.: Patrick L. Alexander, Esq. or to such other address as any party may have furnished to the others in writing in accordance herewith, except that Notices of change of address shall only be effective upon receipt. All Notices shall be deemed received on the date of delivery or, if mailed, on the date appearing on the return receipt therefor. - 18 - 19 13.8. Counterparts. This Agreement may be executed simultaneously in several counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument. 13.9. Severability. If any provision, clause or part of this Agreement or the application thereof under certain circumstances is held invalid, the remainder of this Agreement or the application of such provision, clause or part under other circumstances shall not be affected thereby. 13.10. No Reliance. No third party is entitled to rely on any of the representations, warranties and agreements of any party contained in this Agreement; the parties to this Agreement assume no liability to any third party because of any reliance on the representations, warranties and agreements contained in this Agreement. 13.11. Time of Essence. Time is of the essence in this Agreement, and all dates and time periods specified herein shall be strictly observed. 13.12. Enforcement Expenses. The prevailing party in any action commenced due to the breach hereof shall be entitled to recover its costs, expenses and reasonable attorney's fees incurred in the enforcement of this Agreement. 13.13. Governing Laws. This Agreement shall be construed and enforced in accordance with the laws of the State of Delaware. IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by the parties hereto on the date first above written. SUITES OF AMERICA, INC. By: ------------------------------------ Title: --------------------------------- PRIME HOSPITALITY CORP. By: ------------------------------------ Title: --------------------------------- SHOLODGE, INC. By: ------------------------------------ Title: --------------------------------- - 19 - 20 Exhibit A TERMINATION AGREEMENT THIS TERMINATION AGREEMENT (this "Agreement") is entered into as of the _____ day of ____________, 1995, by and between SUITES OF AMERICA, INC., a Delaware corporation (herein "SOA"), and SHOLODGE, INC., a Tennessee corporation formerly known as Gulf Coast Development, Inc. (herein "ShoLodge"). W I T N E S S E T H: WHEREAS, the parties hereto entered into that certain Management Agreement dated as of ____________, 19__, (herein the "Management Agreement") relating to the AmeriSuites Hotel located at ___________________________ (the "Hotel"); and WHEREAS, SOA, Prime Hospitality Corp., a Delaware corporation ("Prime"), and ShoLodge entered into that certain Stock Option Agreement dated January 8, 1993, as amended by letter dated August 12, 1993, as further amended by that certain First Amendment to Stock Option Agreement dated as of September 17, 1993, as further amended by letter dated November 10, 1993, as further amended by that certain Second Amendment to Stock Option Agreement dated as of April 15, 1994, as further amended by that certain Third Amendment to Stock Option Agreement dated as of July 8, 1994, and as further amended by that certain Fourth Amendment to Stock Option Agreement dated as of July 15, 1994 (collectively referred to herein as the "Stock Option Agreement"); and WHEREAS, SOA, Prime and ShoLodge also entered into that certain Agreement (the "Cancellation Agreement") dated February 6, 1995, but effective as of December 31, 1994, pursuant to which the parties thereto agreed to cancel and terminate the Stock Option Agreement; and WHEREAS, Section 4.1 of the Cancellation Agreement provides that upon the closing thereunder, the Management Agreement shall be cancelled and terminated. NOW THEREFORE, the parties hereto hereby agree that, notwithstanding anything to the contrary contained therein, the Management Agreement is hereby cancelled and terminated as of the date hereof; provided, however, notwithstanding such cancellation and termination, the rights and obligations of the parties with respect to activities relating to the management of the Hotel pursuant to the Management Agreement and occurring prior to the date hereof shall be governed by the Management Agreement, including, without limitation, the payment of management fees for services performed by ShoLodge prior to the date hereof. A-1 21 DATED as of the date set forth above. SUITES OF AMERICA, INC. By: ------------------------------------ Title: --------------------------------- SHOLODGE, INC. By: ------------------------------------ Title: --------------------------------- A-2 22 SCHEDULE 6.6 Employees and Related Matters List of employees attached hereto. There are no written agreements with any such employees. 23
COMPANY 55 - AMERISUITES LOUISVILLE T I M E S U M M A R Y W O R K S H E E T - B Y G R O U P (PRINT) 55 - Amerisuites-louisville PERIOD END DATE - 2/20/95 PAGE 1 APPROVED BY- SELECTION: HOURLY, SALARIED, FREQ-ALL TIME 10:58:15 ------------------------------- - ------------------------------------------------------------------------------------------------------------------------------------ EMP # EMPLOYEE NAME REGULAR OVERTIME SICK VACATION HOLIDAY TIPS BONUS OTHER - ------------------------------------------------------------------------------------------------------------------------------------ 001034 HENRY A. BENJAMIN 5.00 - ------------------------------------------------------------------------------------------------------------------------------------ 001023 THERESA DAILEY 5.00 - ------------------------------------------------------------------------------------------------------------------------------------ 001004 RAYMONT DUNCAN 5.00 - ------------------------------------------------------------------------------------------------------------------------------------ 001033 LARRY ENDSLEY 5.25 - ------------------------------------------------------------------------------------------------------------------------------------ 001019 LISA FIELDS 5.00 - ------------------------------------------------------------------------------------------------------------------------------------ 001003 DARLENE GENTRY 5.00 - ------------------------------------------------------------------------------------------------------------------------------------ 001025 WILLIAM HARDISON 5.00 - ------------------------------------------------------------------------------------------------------------------------------------ 001002 SANDRA L. HUBER 6.00 - ------------------------------------------------------------------------------------------------------------------------------------ 001011 RON HUIZAR 8.65 - ------------------------------------------------------------------------------------------------------------------------------------ 001010 SHANNA HUMBERT 7.21 - ------------------------------------------------------------------------------------------------------------------------------------ 001012 IVA J. JENNINGS 8.17 - ------------------------------------------------------------------------------------------------------------------------------------ 001015 ZARELDA DECORAH JENNINGS 5.00 - ------------------------------------------------------------------------------------------------------------------------------------ 001007 JULIA CHRISTINE KEIBLER 7.69 - ------------------------------------------------------------------------------------------------------------------------------------ 001032 NEETA KHIANI 5.50 - ------------------------------------------------------------------------------------------------------------------------------------ 001030 MICHELLE R. LITTLE 5.50 - ------------------------------------------------------------------------------------------------------------------------------------ 001014 JENNFER K. LONG 6.00 - ------------------------------------------------------------------------------------------------------------------------------------ 001029 JARROD T. MASTEN 4.75 - ------------------------------------------------------------------------------------------------------------------------------------ 001035 HELEN E. MCDANIEL 5.00 - ------------------------------------------------------------------------------------------------------------------------------------ 001005 MARY L. NEBLETT 5.00 - ------------------------------------------------------------------------------------------------------------------------------------ 001006 MICHAEL C. QUINN 6.50 - ------------------------------------------------------------------------------------------------------------------------------------ 001036 DEANNA SMITH 5.00 - ------------------------------------------------------------------------------------------------------------------------------------ 001009 PAMELA LYNNE VALENTINE 12.74 - ------------------------------------------------------------------------------------------------------------------------------------ 001008 DONNA E. WICKERSHAM 14.42 - ------------------------------------------------------------------------------------------------------------------------------------ - ------------------------------------------------------------------------------------------------------------------------------------ - ------------------------------------------------------------------------------------------------------------------------------------ - ------------------------------------------------------------------------------------------------------------------------------------
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COMPANY 42 - AMERISUITES NASHVILLE T I M E S U M M A R Y W O R K S H E E T - B Y G R O U P (PRINT) 42 - Amerisuites-Nashville PERIOD END DATE - 2/02/95 PAGE 1 APPROVED BY- SELECTION: HOURLY, SALARIED, FREQ-ALL TIME 14:47:48 ------------------------------- - ------------------------------------------------------------------------------------------------------------------------------------ EMP # EMPLOYEE NAME REGULAR OVERTIME SICK VACATION HOLIDAY TIPS BONUS OTHER - ------------------------------------------------------------------------------------------------------------------------------------ 001038 ALE ODAH ALGATRANI 5.00 - ------------------------------------------------------------------------------------------------------------------------------------ 001039 HAIDERODAH ALGATRANI 5.00 - ------------------------------------------------------------------------------------------------------------------------------------ 001009 VANESSA BALLARD 8.00 - ------------------------------------------------------------------------------------------------------------------------------------ 001077 CAROL A BRANN 5.25 - ------------------------------------------------------------------------------------------------------------------------------------ 001068 DEBBIE L BROWN 5.25 - ------------------------------------------------------------------------------------------------------------------------------------ 001054 CHRISTINA L CARMAN 5.00 - ------------------------------------------------------------------------------------------------------------------------------------ 001057 MARY R CARMAN 5.25 - ------------------------------------------------------------------------------------------------------------------------------------ 001083 DEANNA CARMAN 5.50 - ------------------------------------------------------------------------------------------------------------------------------------ 001045 DAVID R CECIL 6.00 - ------------------------------------------------------------------------------------------------------------------------------------ 001015 BESSIE CLAYBORNE 6.50 - ------------------------------------------------------------------------------------------------------------------------------------ 001080 VICTORIA COOK 5.50 - ------------------------------------------------------------------------------------------------------------------------------------ 001402 ANDREA D COOKE 6.00 - ------------------------------------------------------------------------------------------------------------------------------------ 001056 BRENDA J. CROSS 10.50 - ------------------------------------------------------------------------------------------------------------------------------------ 001341 TERRI DALZIEL 5.75 - ------------------------------------------------------------------------------------------------------------------------------------ 001001 CYNTHIA DAVIS 11.06 - ------------------------------------------------------------------------------------------------------------------------------------ 001088 ANGELA GAIL EWING 5.25 - ------------------------------------------------------------------------------------------------------------------------------------ 001079 CAROLYN SUE FILSON 5.25 - ------------------------------------------------------------------------------------------------------------------------------------ 001378 MARCUS FLANAGAN 5.50 - ------------------------------------------------------------------------------------------------------------------------------------ 001403 AMY E FRANCIS 8.00 - ------------------------------------------------------------------------------------------------------------------------------------ 001331 RENEE GARR 5.75 - ------------------------------------------------------------------------------------------------------------------------------------ 001035 RANDY L GROVES 6.00 - ------------------------------------------------------------------------------------------------------------------------------------ 001021 CARLOS HARRIS 5.25 - ------------------------------------------------------------------------------------------------------------------------------------ 001026 G GENEVIA HAWKS 13.46 - ------------------------------------------------------------------------------------------------------------------------------------ 001084 FREDIA HEYWARD 5.25 - ------------------------------------------------------------------------------------------------------------------------------------ 001087 ANDREA L HITER 5.50 - ------------------------------------------------------------------------------------------------------------------------------------ 001029 JOHN P JONES II 6.00 - ------------------------------------------------------------------------------------------------------------------------------------ 001089 RICHARD DEAN JONES 5.50 - ------------------------------------------------------------------------------------------------------------------------------------ - ------------------------------------------------------------------------------------------------------------------------------------
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COMPANY 43 - AMERISUITES ATLANTA T I M E S U M M A R Y W O R K S H E E T - B Y G R O U P (PRINT) 43 - Amerisuites-Atlanta PERIOD END DATE - 2/02/95 PAGE 1 APPROVED BY- SELECTION: HOURLY, SALARIED, FREQ-ALL TIME 14:48:18 ------------------------------- - ------------------------------------------------------------------------------------------------------------------------------------ EMP # EMPLOYEE NAME REGULAR OVERTIME SICK VACATION HOLIDAY TIPS BONUS OTHER - ------------------------------------------------------------------------------------------------------------------------------------ 001019 MARIA D ADAME 5.25 - ------------------------------------------------------------------------------------------------------------------------------------ 001136 ERICA ASHWORTH 5.25 - ------------------------------------------------------------------------------------------------------------------------------------ 001008 ISABEL BENAVIDES 5.25 - ------------------------------------------------------------------------------------------------------------------------------------ 001067 BETSY CANARI 14.42 - ------------------------------------------------------------------------------------------------------------------------------------ 001059 JUANA RAMIREZ CERON 5.00 - ------------------------------------------------------------------------------------------------------------------------------------ 001004 FRANCISCA CERUANTES 5.00 - ------------------------------------------------------------------------------------------------------------------------------------ 001058 STACEY MICHELE DUCKER 11.78 - ------------------------------------------------------------------------------------------------------------------------------------ 001142 YANET FERNANDEZ 5.25 - ------------------------------------------------------------------------------------------------------------------------------------ 001003 ARNULFO GALINDO 5.50 - ------------------------------------------------------------------------------------------------------------------------------------ 001056 MARIA ESTHER GONZALES 5.00 - ------------------------------------------------------------------------------------------------------------------------------------ 001101 SHAWN HARTMAN 6.00 - ------------------------------------------------------------------------------------------------------------------------------------ 001065 MICHAEL B HARTSOUGH 7.25 - ------------------------------------------------------------------------------------------------------------------------------------ 001055 RANULFO HERNANDEZ 5.00 - ------------------------------------------------------------------------------------------------------------------------------------ 001017 JOYCE D LEGER 8.18 - ------------------------------------------------------------------------------------------------------------------------------------ 001047 GUADALUPE H MARTINEZ 5.00 - ------------------------------------------------------------------------------------------------------------------------------------ 001063 CHARLIE N MASON 6.00 - ------------------------------------------------------------------------------------------------------------------------------------ 001068 KELLY ANNE MCCAULEY 6.00 - ------------------------------------------------------------------------------------------------------------------------------------ 001002 GONZALO ELIAS MEJIA 5.25 - ------------------------------------------------------------------------------------------------------------------------------------ 001071 LOYCE MILLER 6.50 - ------------------------------------------------------------------------------------------------------------------------------------ 001040 ELIBETH MORALES 5.25 - ------------------------------------------------------------------------------------------------------------------------------------ 001041 ORISBELLA MORALES 5.25 - ------------------------------------------------------------------------------------------------------------------------------------ 001051 MARIA MORALES 5.00 - ------------------------------------------------------------------------------------------------------------------------------------ 001138 OSCAR PULIDO 5.25 - ------------------------------------------------------------------------------------------------------------------------------------ 001064 MARIA RODRIGUEZ 5.50 - ------------------------------------------------------------------------------------------------------------------------------------ 001039 MEREDITH JEAN ROSSOMONDO 8.00 - ------------------------------------------------------------------------------------------------------------------------------------ 001074 BECKY RUARK 5.40 - ------------------------------------------------------------------------------------------------------------------------------------ 001060 CHESTER E STAHL, JR 7.00 - ------------------------------------------------------------------------------------------------------------------------------------ - ------------------------------------------------------------------------------------------------------------------------------------
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COMPANY 43 - AMERISUITES ATLANTA T I M E S U M M A R Y W O R K S H E E T - B Y G R O U P (PRINT) 43 - Amerisuites-Atlanta PERIOD END DATE - 2/02/95 PAGE 2 APPROVED BY- SELECTION: HOURLY, SALARIED, FREQ-ALL TIME 14:48:18 ------------------------------- - ------------------------------------------------------------------------------------------------------------------------------------ EMP # EMPLOYEE NAME REGULAR OVERTIME SICK VACATION HOLIDAY TIPS BONUS OTHER - ------------------------------------------------------------------------------------------------------------------------------------ 001079 SARA WARD 6.20 - ------------------------------------------------------------------------------------------------------------------------------------ 001069 KELLEY YORK 7.21 - ------------------------------------------------------------------------------------------------------------------------------------ - ------------------------------------------------------------------------------------------------------------------------------------ - ------------------------------------------------------------------------------------------------------------------------------------ - ------------------------------------------------------------------------------------------------------------------------------------
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COMPANY 44 - AMERISUITES BLUE ASH T I M E S U M M A R Y W O R K S H E E T - B Y G R O U P (PRINT) 44 - Amerisuites-Blue Ash PERIOD END DATE - 2/02/95 PAGE 1 APPROVED BY- SELECTION: HOURLY, SALARIED, FREQ-ALL TIME 14:52:16 ------------------------------- - ------------------------------------------------------------------------------------------------------------------------------------ EMP # EMPLOYEE NAME REGULAR OVERTIME SICK VACATION HOLIDAY TIPS BONUS OTHER - ------------------------------------------------------------------------------------------------------------------------------------ 001046 JODY ALLEN 5.25 - ------------------------------------------------------------------------------------------------------------------------------------ 001239 ADA BARNES 8.00 - ------------------------------------------------------------------------------------------------------------------------------------ 001043 JOSEPH W CLAY 5.50 - ------------------------------------------------------------------------------------------------------------------------------------ 001245 DONNA M DANIELS 5.50 - ------------------------------------------------------------------------------------------------------------------------------------ 001117 DEBORAH FUNCH 10.29 - ------------------------------------------------------------------------------------------------------------------------------------ 001004 LATISHA GERALDS 5.00 - ------------------------------------------------------------------------------------------------------------------------------------ 001022 EDDIE D GIBSON 9.87 - ------------------------------------------------------------------------------------------------------------------------------------ 001006 SANDRA K GILMORE 6.50 - ------------------------------------------------------------------------------------------------------------------------------------ 001243 ALAN GOFORTH 5.25 - ------------------------------------------------------------------------------------------------------------------------------------ 001065 ROBERT G. HADDOX 6.25 - ------------------------------------------------------------------------------------------------------------------------------------ 001191 ROBERT HADDOX 5.40 - ------------------------------------------------------------------------------------------------------------------------------------ 001020 CALVIN HILL 5.00 - ------------------------------------------------------------------------------------------------------------------------------------ 001034 JENNIFER M HOAR 7.80 - ------------------------------------------------------------------------------------------------------------------------------------ 001204 GREG HOOKER 7.21 - ------------------------------------------------------------------------------------------------------------------------------------ 001236 SUZANNE HUGHES 12.98 - ------------------------------------------------------------------------------------------------------------------------------------ 001049 SARAH H HYDE 5.00 - ------------------------------------------------------------------------------------------------------------------------------------ 001050 BONNIE KING 5.25 - ------------------------------------------------------------------------------------------------------------------------------------ 001010 CARMEN LOSEY 6.00 - ------------------------------------------------------------------------------------------------------------------------------------ 001025 JAMES W MARTIN 4.75 - ------------------------------------------------------------------------------------------------------------------------------------ 001002 JUANITA RHODES 5.30 - ------------------------------------------------------------------------------------------------------------------------------------ 001109 DEBRA ROBERTS 5.70 - ------------------------------------------------------------------------------------------------------------------------------------ 001032 ROSE ROJAS 5.45 - ------------------------------------------------------------------------------------------------------------------------------------ 001153 PAULINE RYCE 6.00 - ------------------------------------------------------------------------------------------------------------------------------------ 001051 ALAN T SAND 5.75 - ------------------------------------------------------------------------------------------------------------------------------------ 001045 BARBARA SESTER 5.25 - ------------------------------------------------------------------------------------------------------------------------------------ 001223 KELLY WOOD 5.00 - ------------------------------------------------------------------------------------------------------------------------------------ - ------------------------------------------------------------------------------------------------------------------------------------ - ------------------------------------------------------------------------------------------------------------------------------------
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COMPANY 46 - AMERISUITES FOREST PARK T I M E S U M M A R Y W O R K S H E E T - B Y G R O U P (PRINT) 46 - Amerisuites-Forest Park PERIOD END DATE - 2/02/95 PAGE 1 APPROVED BY- SELECTION: HOURLY, SALARIED, FREQ-ALL TIME 14:52:21 ------------------------------- - ------------------------------------------------------------------------------------------------------------------------------------ EMP # EMPLOYEE NAME REGULAR OVERTIME SICK VACATION HOLIDAY TIPS BONUS OTHER - ------------------------------------------------------------------------------------------------------------------------------------ 001058 HENRY L. ANDERSON 5.75 - ------------------------------------------------------------------------------------------------------------------------------------ 001157 TAMMY L BAYS 5.75 - ------------------------------------------------------------------------------------------------------------------------------------ 001020 BARNDI L BULTMAN 5.50 - ------------------------------------------------------------------------------------------------------------------------------------ 001083 WILLIAM D CLARK 7.15 - ------------------------------------------------------------------------------------------------------------------------------------ 001120 LISA CONLEY 5.25 - ------------------------------------------------------------------------------------------------------------------------------------ 001077 DIANE L GABRIELSON 5.50 - ------------------------------------------------------------------------------------------------------------------------------------ 001118 COREEN HAMILTON 5.50 - ------------------------------------------------------------------------------------------------------------------------------------ 001086 DEBRA J. HAMONS 5.75 - ------------------------------------------------------------------------------------------------------------------------------------ 001168 LAURA JEAN HOLLMEYER 10.58 - ------------------------------------------------------------------------------------------------------------------------------------ 001121 EUGENE JOHNSON 5.50 - ------------------------------------------------------------------------------------------------------------------------------------ 001047 MICHAEL N KEMPF 9.62 - ------------------------------------------------------------------------------------------------------------------------------------ 001038 SHERYL KIM LOREHTZ 9.13 - ------------------------------------------------------------------------------------------------------------------------------------ 001111 NORMA MITCHELL 5.50 - ------------------------------------------------------------------------------------------------------------------------------------ 001144 DARLENE MIXON 6.75 - ------------------------------------------------------------------------------------------------------------------------------------ 001114 KIM PREWITT 5.50 - ------------------------------------------------------------------------------------------------------------------------------------ 001104 RICK A PRUITT 5.50 - ------------------------------------------------------------------------------------------------------------------------------------ 001064 WEIWEI OIAN 5.50 - ------------------------------------------------------------------------------------------------------------------------------------ 001119 NICOLE RAINES 5.50 - ------------------------------------------------------------------------------------------------------------------------------------ 001109 ANDY M RICHMAN 5.50 - ------------------------------------------------------------------------------------------------------------------------------------ 001088 JONI RUFLI 7.93 - ------------------------------------------------------------------------------------------------------------------------------------ 001102 TINA M SANDERS 5.50 - ------------------------------------------------------------------------------------------------------------------------------------ 001105 RICK SMITH 5.50 - ------------------------------------------------------------------------------------------------------------------------------------ 001117 HEATHER STEVENS 5.50 - ------------------------------------------------------------------------------------------------------------------------------------ 001036 SARA ANN TENBRINK 5.50 - ------------------------------------------------------------------------------------------------------------------------------------ 001098 ANDREA WELLS 7.93 - ------------------------------------------------------------------------------------------------------------------------------------ 001112 THERMONITA WILSON 5.50 - ------------------------------------------------------------------------------------------------------------------------------------ - ------------------------------------------------------------------------------------------------------------------------------------ - ------------------------------------------------------------------------------------------------------------------------------------
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COMPANY 47 - AMERISUITES KEYSTONE T I M E S U M M A R Y W O R K S H E E T - B Y G R O U P (PRINT) 47 - Amerisuites-Keystone PERIOD END DATE - 2/02/95 PAGE 1 APPROVED BY- SELECTION: HOURLY, SALARIED, FREQ-ALL TIME 14:52:26 ------------------------------- - ------------------------------------------------------------------------------------------------------------------------------------ EMP # EMPLOYEE NAME REGULAR OVERTIME SICK VACATION HOLIDAY TIPS BONUS OTHER - ------------------------------------------------------------------------------------------------------------------------------------ 001087 MARGE ALLEN 5.50 - ------------------------------------------------------------------------------------------------------------------------------------ 001074 SHARI BODEHBERG 5.75 - ------------------------------------------------------------------------------------------------------------------------------------ 001122 DEBBI BURRIS 5.50 - ------------------------------------------------------------------------------------------------------------------------------------ 001121 TIMOTHY CAMPBELL 5.50 - ------------------------------------------------------------------------------------------------------------------------------------ 001104 BARBARA COOLEY 5.50 - ------------------------------------------------------------------------------------------------------------------------------------ 001129 DUCTY COURTRIGHT 5.50 - ------------------------------------------------------------------------------------------------------------------------------------ 005097 KIMBERLY D CRENSHAW 6.05 - ------------------------------------------------------------------------------------------------------------------------------------ 005025 NEIL FOSTER 8.13 - ------------------------------------------------------------------------------------------------------------------------------------ 001099 TRINA GERMANY 5.50 - ------------------------------------------------------------------------------------------------------------------------------------ 001060 CHAD GILBERT 6.00 - ------------------------------------------------------------------------------------------------------------------------------------ 001047 CHRIS HARDIE 5.35 - ------------------------------------------------------------------------------------------------------------------------------------ 005000 KATHRYH HEADLEY 12.50 - ------------------------------------------------------------------------------------------------------------------------------------ 001115 LAMONTE HILL 5.50 - ------------------------------------------------------------------------------------------------------------------------------------ 001112 BENJAMIN FRANKLIN HITE 5.50 - ------------------------------------------------------------------------------------------------------------------------------------ 005117 CLEO HITE 8.17 - ------------------------------------------------------------------------------------------------------------------------------------ 001094 CHARISE JACKSON 5.00 - ------------------------------------------------------------------------------------------------------------------------------------ 001090 MARY JOHNSON 5.75 - ------------------------------------------------------------------------------------------------------------------------------------ 005162 DORA JOHNSON 5.75 - ------------------------------------------------------------------------------------------------------------------------------------ 001082 TIANNA KENDALL 5.50 - ------------------------------------------------------------------------------------------------------------------------------------ 001065 BRYAN KENYON 6.25 - ------------------------------------------------------------------------------------------------------------------------------------ 001068 MARY ELLEN KNOX 8.00 - ------------------------------------------------------------------------------------------------------------------------------------ 001123 MARGARITA M LASLEY 5.50 - ------------------------------------------------------------------------------------------------------------------------------------ 001028 MEGHAN LILE 5.50 - ------------------------------------------------------------------------------------------------------------------------------------ 005067 MARKEYDA LIPSOMB 5.50 - ------------------------------------------------------------------------------------------------------------------------------------ 001125 NIA NELSON 5.50 - ------------------------------------------------------------------------------------------------------------------------------------ 001128 ISAIAH PARRISH 5.50 - ------------------------------------------------------------------------------------------------------------------------------------ 001024 LATASHA PIERSON 5.50 - ------------------------------------------------------------------------------------------------------------------------------------ - ------------------------------------------------------------------------------------------------------------------------------------
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COMPANY 47 - AMERISUITES KEYSTONE T I M E S U M M A R Y W O R K S H E E T - B Y G R O U P (PRINT) 47 - Amerisuites-Keystone PERIOD END DATE - 2/02/95 PAGE 2 APPROVED BY- SELECTION: HOURLY, SALARIED, FREQ-ALL TIME 14:52:26 ------------------------------- - ------------------------------------------------------------------------------------------------------------------------------------ EMP # EMPLOYEE NAME REGULAR OVERTIME SICK VACATION HOLIDAY TIPS BONUS OTHER - ------------------------------------------------------------------------------------------------------------------------------------ 001057 SHAWN PITTMAN 6.00 - ------------------------------------------------------------------------------------------------------------------------------------ 005160 JUNE POWELL 5.50 - ------------------------------------------------------------------------------------------------------------------------------------ 001064 ELISA RAGSDALE 6.25 - ------------------------------------------------------------------------------------------------------------------------------------ 001077 EDDIE RAGSDALE 5.75 - ------------------------------------------------------------------------------------------------------------------------------------ 005073 AMY ROBINSON 9.80 - ------------------------------------------------------------------------------------------------------------------------------------ 001073 GLENN SCHOFIELD 6.00 - ------------------------------------------------------------------------------------------------------------------------------------ 001048 MATTHEW SIGLER 5.00 - ------------------------------------------------------------------------------------------------------------------------------------ 001113 SHERTREESE SMITH 5.50 - ------------------------------------------------------------------------------------------------------------------------------------ 001014 SUSAN SNYZER 5.75 - ------------------------------------------------------------------------------------------------------------------------------------ 001120 RONDA SPURRIER 7.75 - ------------------------------------------------------------------------------------------------------------------------------------ 001126 CURRAN WARREN 5.50 - ------------------------------------------------------------------------------------------------------------------------------------ 001116 DELISA WELLS 5.50 - ------------------------------------------------------------------------------------------------------------------------------------ 001111 LAMONT WHITE 5.50 - ------------------------------------------------------------------------------------------------------------------------------------ 001124 KEITH WILLIAMS 5.50 - ------------------------------------------------------------------------------------------------------------------------------------ 001127 JAMES WRIGHT 5.50 - ------------------------------------------------------------------------------------------------------------------------------------ 001071 DANA YORK 5.75 - ------------------------------------------------------------------------------------------------------------------------------------ 001130 VICTORIA YORK 6.00 - ------------------------------------------------------------------------------------------------------------------------------------ - ------------------------------------------------------------------------------------------------------------------------------------ - ------------------------------------------------------------------------------------------------------------------------------------ - ------------------------------------------------------------------------------------------------------------------------------------
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COMPANY 48 - AMERISUITES LITTLE ROCK T I M E S U M M A R Y W O R K S H E E T - B Y G R O U P (PRINT) 48 - Amerisuites-Little Rock PERIOD END DATE - 2/02/95 PAGE 1 APPROVED BY- SELECTION: HOURLY, SALARIED, FREQ-ALL TIME 14:52:33 ------------------------------- - ------------------------------------------------------------------------------------------------------------------------------------ EMP # EMPLOYEE NAME REGULAR OVERTIME SICK VACATION HOLIDAY TIPS BONUS OTHER - ------------------------------------------------------------------------------------------------------------------------------------ 001077 CASANDRA KAY ALFORD 4.50 - ------------------------------------------------------------------------------------------------------------------------------------ 001078 TANYA LEE BOOK 5.00 - ------------------------------------------------------------------------------------------------------------------------------------ 001056 SHARON E CANADY 4.50 - ------------------------------------------------------------------------------------------------------------------------------------ 001196 JOANN CARTER 8.18 - ------------------------------------------------------------------------------------------------------------------------------------ 001139 CURTIS CRUTCHFIELD 4.80 - ------------------------------------------------------------------------------------------------------------------------------------ 001151 MICHAEL CUNNINS 5.50 - ------------------------------------------------------------------------------------------------------------------------------------ 001030 MILTON DAVIS 4.65 - ------------------------------------------------------------------------------------------------------------------------------------ 001174 CYHTHIA DELONEY 4.75 - ------------------------------------------------------------------------------------------------------------------------------------ 001102 ANITA M DYSARD 6.50 - ------------------------------------------------------------------------------------------------------------------------------------ 001162 TAMLA FRANKLIN 5.00 - ------------------------------------------------------------------------------------------------------------------------------------ 001080 VIVIAN GATEWOOD 4.50 - ------------------------------------------------------------------------------------------------------------------------------------ 001002 PHYLLIS GWIN 12.98 - ------------------------------------------------------------------------------------------------------------------------------------ 001046 JOSEPH B. HALL 5.25 - ------------------------------------------------------------------------------------------------------------------------------------ 001035 KENNETH HARTSFIELD 8.17 - ------------------------------------------------------------------------------------------------------------------------------------ 001172 PATRICA HODGE 6.00 - ------------------------------------------------------------------------------------------------------------------------------------ 001027 FREDDIE HOLMES 4.85 - ------------------------------------------------------------------------------------------------------------------------------------ 001043 CHARLENE L JACKSON 4.50 - ------------------------------------------------------------------------------------------------------------------------------------ 001090 JANICE KING 5.10 - ------------------------------------------------------------------------------------------------------------------------------------ 001076 JUANA LEDBETTER 4.50 - ------------------------------------------------------------------------------------------------------------------------------------ 001073 ZONDRA L LEWIS 4.50 - ------------------------------------------------------------------------------------------------------------------------------------ 001045 TRACY DIANE LOUTHIAN 5.15 - ------------------------------------------------------------------------------------------------------------------------------------ 001183 DELORIS MAHAN 5.25 - ------------------------------------------------------------------------------------------------------------------------------------ 001058 LAVERN MAHONES 4.70 - ------------------------------------------------------------------------------------------------------------------------------------ 001010 MARTHA S MCGOUGH 8.65 - ------------------------------------------------------------------------------------------------------------------------------------ 001039 TYJUANA M MILES 4.65 - ------------------------------------------------------------------------------------------------------------------------------------ 001114 MARSHA MORELAND 5.10 - ------------------------------------------------------------------------------------------------------------------------------------ 001127 TRACY C. MORGAN 5.10 - ------------------------------------------------------------------------------------------------------------------------------------ - ------------------------------------------------------------------------------------------------------------------------------------
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COMPANY 48 - AMERISUITES LITTLE ROCK T I M E S U M M A R Y W O R K S H E E T - B Y G R O U P (PRINT) 48 - Amerisuites-Little Rock PERIOD END DATE - 2/02/95 PAGE 2 APPROVED BY- SELECTION: HOURLY, SALARIED, FREQ-ALL TIME 14:52:33 ------------------------------- - ------------------------------------------------------------------------------------------------------------------------------------ EMP # EMPLOYEE NAME REGULAR OVERTIME SICK VACATION HOLIDAY TIPS BONUS OTHER - ------------------------------------------------------------------------------------------------------------------------------------ 001079 VERONICA NICHOLS 4.50 - ------------------------------------------------------------------------------------------------------------------------------------ 001154 LESTER E NOWDEN 6.49 - ------------------------------------------------------------------------------------------------------------------------------------ 001199 GEORGE OLSIN 5.25 - ------------------------------------------------------------------------------------------------------------------------------------ 001062 TASHA LASCHARRI SHEPHARD 4.70 - ------------------------------------------------------------------------------------------------------------------------------------ 001211 RON TOLSON 5.25 - ------------------------------------------------------------------------------------------------------------------------------------ 001049 BILLY PAUL TURPIN 6.00 - ------------------------------------------------------------------------------------------------------------------------------------ 001003 LINDA VINT 12.49 - ------------------------------------------------------------------------------------------------------------------------------------ 001126 CAPRISHA WILLIAMS 5.10 - ------------------------------------------------------------------------------------------------------------------------------------ - ------------------------------------------------------------------------------------------------------------------------------------ - ------------------------------------------------------------------------------------------------------------------------------------ - ------------------------------------------------------------------------------------------------------------------------------------
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COMPANY 45 - RICHMOND INN, INC. T I M E S U M M A R Y W O R K S H E E T - B Y G R O U P (PRINT) 45 - Richmond Inn, Inc. PERIOD END DATE - 2/02/95 PAGE 1 APPROVED BY- SELECTION: HOURLY, SALARIED, FREQ-ALL TIME 14:52:39 ------------------------------- - ------------------------------------------------------------------------------------------------------------------------------------ EMP # EMPLOYEE NAME REGULAR OVERTIME SICK VACATION HOLIDAY TIPS BONUS OTHER - ------------------------------------------------------------------------------------------------------------------------------------ 001049 DARIN S BOTTIGER 5.50 - ------------------------------------------------------------------------------------------------------------------------------------ 001055 CHAD BOTTIGER 5.25 - ------------------------------------------------------------------------------------------------------------------------------------ 001003 CHRISTY BURKE 6.25 - ------------------------------------------------------------------------------------------------------------------------------------ 001050 ROGER BURNETTE 5.50 - ------------------------------------------------------------------------------------------------------------------------------------ 001045 RAMONA FABIEN 5.00 - ------------------------------------------------------------------------------------------------------------------------------------ 001123 JAUTEHA FAUNTLEROY 5.50 - ------------------------------------------------------------------------------------------------------------------------------------ 001051 ANTHONY GARCIA 5.00 - ------------------------------------------------------------------------------------------------------------------------------------ 001069 ELAINE M. GOODE 5.25 - ------------------------------------------------------------------------------------------------------------------------------------ 001047 ROY GUNDY 5.50 - ------------------------------------------------------------------------------------------------------------------------------------ 001110 CLEVELAND HUNT 5.25 - ------------------------------------------------------------------------------------------------------------------------------------ 001025 MARIAN JONES 7.00 - ------------------------------------------------------------------------------------------------------------------------------------ 001104 SHANNON LAWRENCE 8.67 - ------------------------------------------------------------------------------------------------------------------------------------ 001132 MILDRED J MICKEY 5.00 - ------------------------------------------------------------------------------------------------------------------------------------ 001039 ALLAN REID MILLER 8.65 - ------------------------------------------------------------------------------------------------------------------------------------ 001033 TIMOTHY E NORMAN 14.42 - ------------------------------------------------------------------------------------------------------------------------------------ 001041 JULIE S NORMAN 5.00 - ------------------------------------------------------------------------------------------------------------------------------------ 001061 THOMAS E NORMAN 5.00 - ------------------------------------------------------------------------------------------------------------------------------------ 001005 KURT OLSEN 6.00 - ------------------------------------------------------------------------------------------------------------------------------------ 001052 HANNAH R. PALMER 5.50 - ------------------------------------------------------------------------------------------------------------------------------------ 001060 DERECK ROGERS 5.00 - ------------------------------------------------------------------------------------------------------------------------------------ 001004 LINDA G. SAUNDERS 9.62 - ------------------------------------------------------------------------------------------------------------------------------------ 001006 HELEN M. SIMMS 6.00 - ------------------------------------------------------------------------------------------------------------------------------------ 001057 DUANE L. SIMMS 8.15 - ------------------------------------------------------------------------------------------------------------------------------------ 001022 JERRY L SMITH 5.00 - ------------------------------------------------------------------------------------------------------------------------------------ 001121 SAM SMITHERS, JR. 5.25 - ------------------------------------------------------------------------------------------------------------------------------------ 001007 SHULISA L. TAYLOR 6.25 - ------------------------------------------------------------------------------------------------------------------------------------ 001067 FANNIE C. THOMPSON 5.75 - ------------------------------------------------------------------------------------------------------------------------------------ - ------------------------------------------------------------------------------------------------------------------------------------
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COMPANY 45 - RICHMOND INN, INC. T I M E S U M M A R Y W O R K S H E E T - B Y G R O U P (PRINT) 45 - Richmond Inn, Inc. PERIOD END DATE - 2/02/95 PAGE 2 APPROVED BY- SELECTION: HOURLY, SALARIED, FREQ-ALL TIME 14:52:39 ------------------------------- - ------------------------------------------------------------------------------------------------------------------------------------ EMP # EMPLOYEE NAME REGULAR OVERTIME SICK VACATION HOLIDAY TIPS BONUS OTHER - ------------------------------------------------------------------------------------------------------------------------------------ 001053 GRACE T. VALENTINE 12.98 - ------------------------------------------------------------------------------------------------------------------------------------ 001048 JOSEPH VELAZOUEZ 5.00 - ------------------------------------------------------------------------------------------------------------------------------------ 001056 JESSICA L. WILSON 5.50 - ------------------------------------------------------------------------------------------------------------------------------------ 001062 JERMAINE L. WINSTON 5.00 - ------------------------------------------------------------------------------------------------------------------------------------ 001031 IRENE W. WOODSON 5.50 - ------------------------------------------------------------------------------------------------------------------------------------ 001010 LILLIENCE H WYATT 5.25 - ------------------------------------------------------------------------------------------------------------------------------------ - ------------------------------------------------------------------------------------------------------------------------------------ - ------------------------------------------------------------------------------------------------------------------------------------ - ------------------------------------------------------------------------------------------------------------------------------------
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COMPANY 50 - AMERISUITES BRENTWOOD T I M E S U M M A R Y W O R K S H E E T - B Y G R O U P (PRINT) 50 - Amerisuites-Brentwood PERIOD END DATE - 2/02/95 PAGE 1 APPROVED BY- SELECTION: HOURLY, SALARIED, FREQ-ALL TIME 14:52:44 ------------------------------- - ------------------------------------------------------------------------------------------------------------------------------------ EMP # EMPLOYEE NAME REGULAR OVERTIME SICK VACATION HOLIDAY TIPS BONUS OTHER - ------------------------------------------------------------------------------------------------------------------------------------ 001111 MEIKI DAWN BAKER 5.00 - ------------------------------------------------------------------------------------------------------------------------------------ 001118 JENNIFER L BARKLEY 5.00 - ------------------------------------------------------------------------------------------------------------------------------------ 001091 AHSLI NICHOLE BOZMAN 5.00 - ------------------------------------------------------------------------------------------------------------------------------------ 001001 DONNA CARNEY 12.97 - ------------------------------------------------------------------------------------------------------------------------------------ 001071 VIVIAN SUE COX 8.65 - ------------------------------------------------------------------------------------------------------------------------------------ 001007 PATRICIA ANN EVANS 5.25 - ------------------------------------------------------------------------------------------------------------------------------------ 001199 RICHIE C FITSPATRICK 9.53 - ------------------------------------------------------------------------------------------------------------------------------------ 001160 ULYSSES GAINES 5.00 - ------------------------------------------------------------------------------------------------------------------------------------ 001110 RODERICK GILES 5.00 - ------------------------------------------------------------------------------------------------------------------------------------ 001044 OTIS GRIGGS 6.00 - ------------------------------------------------------------------------------------------------------------------------------------ 001108 CATHY GRIGGS 5.75 - ------------------------------------------------------------------------------------------------------------------------------------ 001004 RHONDA RENEE GWYN 7.35 - ------------------------------------------------------------------------------------------------------------------------------------ 001042 JOHNNY L GWYN 5.25 - ------------------------------------------------------------------------------------------------------------------------------------ 001116 MARCUS L'MONTE HILL 5.00 - ------------------------------------------------------------------------------------------------------------------------------------ 001028 LYNDA HODGES 12.02 - ------------------------------------------------------------------------------------------------------------------------------------ 001119 CHARLES S JONES 5.00 - ------------------------------------------------------------------------------------------------------------------------------------ 001097 ALGERINA KOON 5.00 - ------------------------------------------------------------------------------------------------------------------------------------ 001036 KELVIN LEE 9.33 - ------------------------------------------------------------------------------------------------------------------------------------ 001112 TINA M LENTZ 5.00 - ------------------------------------------------------------------------------------------------------------------------------------ 001043 TERRI MANLOVE 6.25 - ------------------------------------------------------------------------------------------------------------------------------------ 001095 HEATHER LEA HOWLIN 5.00 - ------------------------------------------------------------------------------------------------------------------------------------ 001006 JAMES PATT 6.75 - ------------------------------------------------------------------------------------------------------------------------------------ 001090 CHARLES PATTON 5.25 - ------------------------------------------------------------------------------------------------------------------------------------ 001086 TIMOTHY RIDLEY 5.25 - ------------------------------------------------------------------------------------------------------------------------------------ 001093 MATT ROBBINS 5.75 - ------------------------------------------------------------------------------------------------------------------------------------ 001076 TINA SCHUBERT 6.50 - ------------------------------------------------------------------------------------------------------------------------------------ 001008 MARTHA ANN SCOTT 5.25 - ------------------------------------------------------------------------------------------------------------------------------------ - ------------------------------------------------------------------------------------------------------------------------------------
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COMPANY 50 - AMERISUITES BRENTWOOD T I M E S U M M A R Y W O R K S H E E T - B Y G R O U P (PRINT) 50 - Amerisuites-Brentwood PERIOD END DATE - 2/02/95 PAGE 2 APPROVED BY- SELECTION: HOURLY, SALARIED, FREQ-ALL TIME 14:52:44 ------------------------------- - ------------------------------------------------------------------------------------------------------------------------------------ EMP # EMPLOYEE NAME REGULAR OVERTIME SICK VACATION HOLIDAY TIPS BONUS OTHER - ------------------------------------------------------------------------------------------------------------------------------------ 001003 WENDY R SCRUGGS 5.00 - ------------------------------------------------------------------------------------------------------------------------------------ 001114 KENT E SMITH 5.00 - ------------------------------------------------------------------------------------------------------------------------------------ 001115 DEBRA DEAN SMITH 5.00 - ------------------------------------------------------------------------------------------------------------------------------------ 001073 CANDICE STANFORD 5.75 - ------------------------------------------------------------------------------------------------------------------------------------ 001107 BRIDGETT E TISDALE 5.00 - ------------------------------------------------------------------------------------------------------------------------------------ 001109 VICTOR ANTONIO TISDALE 5.00 - ------------------------------------------------------------------------------------------------------------------------------------ 001164 MELANIE TOCK 5.75 - ------------------------------------------------------------------------------------------------------------------------------------ 001102 WILLIAM L VICK 6.50 - ------------------------------------------------------------------------------------------------------------------------------------ 001099 BRIAN DANIEL WHITAKER 5.75 - ------------------------------------------------------------------------------------------------------------------------------------ 001113 ANTONIO DARNELL WHITAKER 5.00 - ------------------------------------------------------------------------------------------------------------------------------------ 001069 RICHARD WHITE 6.75 - ------------------------------------------------------------------------------------------------------------------------------------ 001117 WILLIE M WHITE 5.00 - ------------------------------------------------------------------------------------------------------------------------------------ 001080 TONY BARNARD WHITSEY 6.00 - ------------------------------------------------------------------------------------------------------------------------------------ - ------------------------------------------------------------------------------------------------------------------------------------ - ------------------------------------------------------------------------------------------------------------------------------------ - ------------------------------------------------------------------------------------------------------------------------------------
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COMPANY 52 - AMERISUITES FLAGSTAFF T I M E S U M M A R Y W O R K S H E E T - B Y G R O U P (PRINT) 52 - Amerisuites-Flagstaff PERIOD END DATE - 2/02/95 PAGE 1 APPROVED BY- SELECTION: HOURLY, SALARIED, FREQ-ALL TIME 14:52:49 ------------------------------- - ------------------------------------------------------------------------------------------------------------------------------------ EMP # EMPLOYEE NAME REGULAR OVERTIME SICK VACATION HOLIDAY TIPS BONUS OTHER - ------------------------------------------------------------------------------------------------------------------------------------ 001028 KAREN E ANDERSON 5.00 - ------------------------------------------------------------------------------------------------------------------------------------ 001134 LESLIE ASHLEY 10.34 - ------------------------------------------------------------------------------------------------------------------------------------ 001168 FIRMAN BEGODY 4.50 - ------------------------------------------------------------------------------------------------------------------------------------ 001097 LENA BENALLY 5.20 - ------------------------------------------------------------------------------------------------------------------------------------ 001112 DEON BENALLY 4.50 - ------------------------------------------------------------------------------------------------------------------------------------ 001148 MARJORIE BENALLY 4.50 - ------------------------------------------------------------------------------------------------------------------------------------ 001157 MARLENA BETONE 4.50 - ------------------------------------------------------------------------------------------------------------------------------------ 001158 SANDRA BETONE 4.50 - ------------------------------------------------------------------------------------------------------------------------------------ 001027 DAVID BRITTAIN 6.00 - ------------------------------------------------------------------------------------------------------------------------------------ 001155 EMILY C COLE 4.75 - ------------------------------------------------------------------------------------------------------------------------------------ 001075 FRANK DUPLER 4.50 - ------------------------------------------------------------------------------------------------------------------------------------ 001163 SEATON EDD 4.50 - ------------------------------------------------------------------------------------------------------------------------------------ 001136 MAURA L EMERINE 4.75 - ------------------------------------------------------------------------------------------------------------------------------------ 001164 RIED FLOOD 4.75 - ------------------------------------------------------------------------------------------------------------------------------------ 001165 BRANDON FOSTER 4.75 - ------------------------------------------------------------------------------------------------------------------------------------ 001087 ALISHA GODINEZ 4.50 - ------------------------------------------------------------------------------------------------------------------------------------ 001167 ANDREA HAWKINS 4.50 - ------------------------------------------------------------------------------------------------------------------------------------ 001020 ROBERT HENDRIX 5.50 - ------------------------------------------------------------------------------------------------------------------------------------ 001015 NATHAN HIRNI 5.50 - ------------------------------------------------------------------------------------------------------------------------------------ 001069 KARLI HORN 5.00 - ------------------------------------------------------------------------------------------------------------------------------------ 001092 AARON HOWELL 4.50 - ------------------------------------------------------------------------------------------------------------------------------------ 001026 NORMAN F IDE 5.00 - ------------------------------------------------------------------------------------------------------------------------------------ 001049 DOUGLAS KINNEY 7.69 - ------------------------------------------------------------------------------------------------------------------------------------ 001166 FANNIE MAE LITTLE 4.50 - ------------------------------------------------------------------------------------------------------------------------------------ 001125 MARIO LUGO 4.50 - ------------------------------------------------------------------------------------------------------------------------------------ 001082 TINA MCCABE 4.50 - ------------------------------------------------------------------------------------------------------------------------------------ 001064 CASEY MCKOUEN 7.21 - ------------------------------------------------------------------------------------------------------------------------------------ - ------------------------------------------------------------------------------------------------------------------------------------
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COMPANY 52 - AMERISUITES FLAGSTAFF T I M E S U M M A R Y W O R K S H E E T - B Y G R O U P (PRINT) 52 - Amerisuites-Flagstaff PERIOD END DATE - 2/02/95 PAGE 2 APPROVED BY- SELECTION: HOURLY, SALARIED, FREQ-ALL TIME 14:52:49 ------------------------------- - ------------------------------------------------------------------------------------------------------------------------------------ EMP # EMPLOYEE NAME REGULAR OVERTIME SICK VACATION HOLIDAY TIPS BONUS OTHER - ------------------------------------------------------------------------------------------------------------------------------------ 001003 JEFF MCQUATTERS 6.25 - ------------------------------------------------------------------------------------------------------------------------------------ 001079 ROBERT BURKE MOORE 4.75 - ------------------------------------------------------------------------------------------------------------------------------------ 001005 DONNA MUGERDITCHIAN 12.02 - ------------------------------------------------------------------------------------------------------------------------------------ 001135 MATT MURPHY 5.50 - ------------------------------------------------------------------------------------------------------------------------------------ 001055 DANIEL W PRENOVOST 5.75 - ------------------------------------------------------------------------------------------------------------------------------------ 001038 CONNIE RIDGWAY 5.50 - ------------------------------------------------------------------------------------------------------------------------------------ 001096 KATHERINE RUSSELL 9.00 - ------------------------------------------------------------------------------------------------------------------------------------ 001059 NONA M SCHULER 4.75 - ------------------------------------------------------------------------------------------------------------------------------------ 001129 BRIAN SWEET 5.25 - ------------------------------------------------------------------------------------------------------------------------------------ 001153 EDWARD WEISS 4.50 - ------------------------------------------------------------------------------------------------------------------------------------ 001142 FLOYD WILLIAMS 4.50 - ------------------------------------------------------------------------------------------------------------------------------------ - ------------------------------------------------------------------------------------------------------------------------------------ - ------------------------------------------------------------------------------------------------------------------------------------ - ------------------------------------------------------------------------------------------------------------------------------------
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COMPANY 53 - AMERISUITES OVERLAND PARK T I M E S U M M A R Y W O R K S H E E T - B Y G R O U P (PRINT) 53 - Amerisuites-Overland Park PERIOD END DATE - 2/02/95 PAGE 1 APPROVED BY- SELECTION: HOURLY, SALARIED, FREQ-ALL TIME 14:52:53 ------------------------------- - ------------------------------------------------------------------------------------------------------------------------------------ EMP # EMPLOYEE NAME REGULAR OVERTIME SICK VACATION HOLIDAY TIPS BONUS OTHER - ------------------------------------------------------------------------------------------------------------------------------------ 001115 ALVERIA R ABERNATHY 8.65 - ------------------------------------------------------------------------------------------------------------------------------------ 001049 LYNN MARIE ASH 5.60 - ------------------------------------------------------------------------------------------------------------------------------------ 001091 ANNETTE BLACK 5.60 - ------------------------------------------------------------------------------------------------------------------------------------ 001111 FAYE M BLACK 5.35 - ------------------------------------------------------------------------------------------------------------------------------------ 001118 SHEILA BROWN 5.35 - ------------------------------------------------------------------------------------------------------------------------------------ 001123 ALFRED BROWN 5.35 - ------------------------------------------------------------------------------------------------------------------------------------ 001105 DENIELLE C CLINTON 5.35 - ------------------------------------------------------------------------------------------------------------------------------------ 001101 BARBARA COPE 12.26 - ------------------------------------------------------------------------------------------------------------------------------------ 001117 JANET DANKINS 5.35 - ------------------------------------------------------------------------------------------------------------------------------------ 001015 BRENDA EVANS 6.50 - ------------------------------------------------------------------------------------------------------------------------------------ 001007 RHONDA FOX 14.42 - ------------------------------------------------------------------------------------------------------------------------------------ 001040 MARCUS L GAY 5.60 - ------------------------------------------------------------------------------------------------------------------------------------ 001043 REBECCA GIFFORD 6.75 - ------------------------------------------------------------------------------------------------------------------------------------ 001121 KIKIA GRIFFIN 6.00 - ------------------------------------------------------------------------------------------------------------------------------------ 001112 KAREN GUNNELS 5.35 - ------------------------------------------------------------------------------------------------------------------------------------ 001044 CHRISTOPHER F HAFENRICHTE 6.25 - ------------------------------------------------------------------------------------------------------------------------------------ 001016 JOHN W HILL 8.00 - ------------------------------------------------------------------------------------------------------------------------------------ 001116 ADRIAN JOHNSON 5.35 - ------------------------------------------------------------------------------------------------------------------------------------ 001119 DAVID JOHNSON 5.35 - ------------------------------------------------------------------------------------------------------------------------------------ 001063 PATRICIA MCCAULEY 6.25 - ------------------------------------------------------------------------------------------------------------------------------------ 001098 JOHN W MCCAULEY 5.50 - ------------------------------------------------------------------------------------------------------------------------------------ 001080 JUAN KEITH MILLIGAN 5.35 - ------------------------------------------------------------------------------------------------------------------------------------ 001058 STEPHAN L PHILLIPS 5.60 - ------------------------------------------------------------------------------------------------------------------------------------ 001072 GREG PHILLIPS 6.25 - ------------------------------------------------------------------------------------------------------------------------------------ 001075 BERTHA PHILLIPS 5.75 - ------------------------------------------------------------------------------------------------------------------------------------ 001081 ROBERT POWERS 6.00 - ------------------------------------------------------------------------------------------------------------------------------------ 001022 JAMES L ROBINETTE 9.17 - ------------------------------------------------------------------------------------------------------------------------------------ - ------------------------------------------------------------------------------------------------------------------------------------
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COMPANY 53 - AMERISUITES OVERLAND PARK T I M E S U M M A R Y W O R K S H E E T - B Y G R O U P (PRINT) 53 - Amerisuites-Overland Park PERIOD END DATE - 2/02/95 PAGE 2 APPROVED BY- SELECTION: HOURLY, SALARIED, FREQ-ALL TIME 14:52:53 ------------------------------- - ------------------------------------------------------------------------------------------------------------------------------------ EMP # EMPLOYEE NAME REGULAR OVERTIME SICK VACATION HOLIDAY TIPS BONUS OTHER - ------------------------------------------------------------------------------------------------------------------------------------ 001122 GARY SLAUGHTER 5.35 - ------------------------------------------------------------------------------------------------------------------------------------ 001076 SHEILA D SYRUS 5.60 - ------------------------------------------------------------------------------------------------------------------------------------ 001023 LASHAWNA L THOMAS 6.75 - ------------------------------------------------------------------------------------------------------------------------------------ 001074 JENNIFER TILFORD 7.69 - ------------------------------------------------------------------------------------------------------------------------------------ 001113 BRUCE WITTMAN 6.50 - ------------------------------------------------------------------------------------------------------------------------------------ 001120 PAMELA WOODSON 5.35 - ------------------------------------------------------------------------------------------------------------------------------------ - ------------------------------------------------------------------------------------------------------------------------------------ - ------------------------------------------------------------------------------------------------------------------------------------
41
COMPANY 54 - AMERISUITES COLUMBUS T I M E S U M M A R Y W O R K S H E E T - B Y G R O U P (PRINT) 54 - Amerisuites-Columbus PERIOD END DATE - 2/02/95 PAGE 1 APPROVED BY- SELECTION: HOURLY, SALARIED, FREQ-ALL TIME 14:52:58 ------------------------------- - ------------------------------------------------------------------------------------------------------------------------------------ EMP # EMPLOYEE NAME REGULAR OVERTIME SICK VACATION HOLIDAY TIPS BONUS OTHER - ------------------------------------------------------------------------------------------------------------------------------------ 001038 NEAL R AUCKERMAN 9.15 - ------------------------------------------------------------------------------------------------------------------------------------ 001064 BYRON BACIGALUPO 5.75 - ------------------------------------------------------------------------------------------------------------------------------------ 001028 LAVONNE R BAYIRD 5.75 - ------------------------------------------------------------------------------------------------------------------------------------ 001065 ROBERT BLACK 5.75 - ------------------------------------------------------------------------------------------------------------------------------------ 001034 TAMMIE K BOUCHER 6.00 - ------------------------------------------------------------------------------------------------------------------------------------ 001075 JANIE CARLINI 6.00 - ------------------------------------------------------------------------------------------------------------------------------------ 001058 PATRICK DAY 6.00 - ------------------------------------------------------------------------------------------------------------------------------------ 001003 KIMBERLY FLYNN 11.06 - ------------------------------------------------------------------------------------------------------------------------------------ 001077 TIZIANA JEFFERSON 5.75 - ------------------------------------------------------------------------------------------------------------------------------------ 001078 JOSE JUAN LECHUGA 5.75 - ------------------------------------------------------------------------------------------------------------------------------------ 001074 JACQUELYN MCMILLIAN 5.75 - ------------------------------------------------------------------------------------------------------------------------------------ 001004 DIEDRE NICKERSON 6.00 - ------------------------------------------------------------------------------------------------------------------------------------ 001001 DEBORA OWENS 14.43 - ------------------------------------------------------------------------------------------------------------------------------------ 001066 JILL C PYLE 5.75 - ------------------------------------------------------------------------------------------------------------------------------------ 001023 GINA M ROUSH 8.75 - ------------------------------------------------------------------------------------------------------------------------------------ 001022 AMY J SECKEL 8.42 - ------------------------------------------------------------------------------------------------------------------------------------ 001018 MICHAEL SHROAT 6.85 - ------------------------------------------------------------------------------------------------------------------------------------ 001057 HELENA JOHNETTE SMILEY 6.00 - ------------------------------------------------------------------------------------------------------------------------------------ 001042 SONYA SPENCER 6.00 - ------------------------------------------------------------------------------------------------------------------------------------ 001076 RON D SPRADLIN 6.00 - ------------------------------------------------------------------------------------------------------------------------------------ 001070 JUDY STREETS 6.50 - ------------------------------------------------------------------------------------------------------------------------------------ 001037 TINA I THOMAS 6.00 - ------------------------------------------------------------------------------------------------------------------------------------ 001027 JAMES VIPPERMAN 6.00 - ------------------------------------------------------------------------------------------------------------------------------------ 001033 SUSAN VIPPERMAN 6.00 - ------------------------------------------------------------------------------------------------------------------------------------ 001002 JULIANN WAHLENMAIER 8.89 - ------------------------------------------------------------------------------------------------------------------------------------ 001063 REBECCA YAUSSY 5.75 - ------------------------------------------------------------------------------------------------------------------------------------ - ------------------------------------------------------------------------------------------------------------------------------------ - ------------------------------------------------------------------------------------------------------------------------------------
42 SCHEDULE 6.7 There is no litigation currently pending against Suites of America, Inc. except the matter styled Doster Construction Company, Inc. v. Suites of America, Inc., et al., filed in the Marion Circuit Court, Marion County, State of Indiana, Cause No. 49C01-9108-CP-2522, the matter styled Doster Construction Company, Inc. v. Suites of America, Inc., et al., filed in the Court of Common Pleas, Hamilton County, Ohio, Case No. A91-07250, and the matter styled Jeffery Walker and Nicole Walker v. Suites of America, Inc., individually and d/b/a AmeriSuites, et al., filed in the Circuit Court of Davidson County, Tennessee, No. 94C-3849. 43 SCHEDULE 6.9 Equipment Leases Little Rock: Lease Agreement (Lease No. 6514) dated December 5, 1991, between Telerent Leasing Corporation as Lessor and Suites of America, Inc. as Lessee, together with Schedule A, Schedule B and Schedule C thereto, all dated December 5, 1991 and all between Telerent Leasing Corporation and Suites of America, Inc. Indianapolis: Lease Agreement (Lease No. 6501-000) dated December 3, 1991, between Telerent Leasing Corporation as Lessor and Suites of America, Inc. as Lessee, together with Schedule "A" and Schedule B thereto, both dated December 3, 1991 and both between Telerent Leasing Corporation and Suites of America, Inc.; Lease Addendum I dated December 3, 1991 between Telerent Leasing Corporation and Suites of America, Inc.; Lease Addendum II dated December 3, 1991 between Telerent Leasing Corporation and Suites of America, Inc.; Lease Addendum III dated January 16, 1992 between Telerent Leasing Corporation and Suites of America, Inc.; Lease Addendum IV dated December 3, 1991 between Telerent Leasing Corporation and Suites of America, Inc.; and Addendum V dated July 1, 1994 between Telerent Leasing Corporation and Suites of America, Inc. Lease Agreement (Lease No. 6501-025) dated December 3, 1991, between Telerent Leasing Corporation as Lessor and Suites of America, Inc. as Lessee, together with Schedule A thereto dated December 3, 1991, between Telerent Leasing Corporation and Suites of America, Inc.; and Addendum I dated July 1, 1994 between Telerent Leasing Corporation and Suites of America, Inc. Lease Agreement (Lease No. 6501-050) dated December 3, 1991, between Telerent Leasing Corporation as Lessor and Suites of America, Inc. as Lessee, together with Schedule A thereto dated December 3, 1991, between Telerent Leasing Corporation and Suites of America, Inc; and Lease Addendum I dated February 27, 1992 between Telerent Leasing Corporation and Suites of America, Inc. 44 Forest Park: Lease Agreement (Lease No. 6674) dated April 20, 1992, between Telerent Leasing Corporation as Lessor and Suites of America, Inc. as Lessee, together with Schedule A thereto dated April 20, 1992 between Telerent Leasing Corporation and Suites of America, Inc. and Schedule "C" thereto dated May 4, 1992, between Telerent Leasing Corporation and Suites of America,Inc.; Lease Addendum I dated May 21, 1992 between Telerent Leasing Corporation and Suites of America, Inc.; Lease Addendum II dated May 27, 1992 between Telerent Leasing Corporation and Suites of America, Inc.; Lease Addendum III dated May 27, 1992 between Telerent Leasing Corporation and Suites of America, Inc.; and Lease Addendum IV dated July 1, 1992 between Telerent Leasing Corporation and Suites of America, Inc. Master Lease Agreement (Equipment Lease No. 26-RC-0008) dated March 18, 1992, between Mitel Finance Corporation as Lessor and Suites of America, Inc. DBA Ameri-Suites as Lessee, together with Schedule of Equipment dated June 23, 1992 between Mitel Finance Corporation and Suites of America, Inc. DBA Ameri-Suites. Brentwood: Master Equipment Lease (Lease No. 02326) dated January 20, 1993, between Cargill Leasing Corporation as Lessor and ShoLodge, Inc. and Brentwood Inn, Inc., collectively as Lessee, together with Equipment Condition Addendum To Master Equipment Lease No. 02326 dated March 9, 1993 between Cargill Leasing Corporation and ShoLodge, Inc. and Brentwood Inn, Inc., and Schedule A dated March 9, 1993 between Cargill Leasing Corporation and ShoLodge, Inc. and Brentwood Inn, Inc., as assumed by Suites of America, Inc. by Assumption of Lease Obligations dated March 9, 1993, among Cargill Leasing Corporation, Suites of America, Inc., ShoLodge, Inc., and Brentwood Inn, Inc., and as amended by letter dated May 18, 1993, from Cargill Leasing Corporation to ShoLodge, Inc. and Brentwood Inn, Inc. Flagstaff: Master Lease dated as of September 8, 1993, between Norwest Equipment Finance, Inc. as Lessor and CFO, Inc. as Lessee; Supplement to Master Lease (Supplement Number 18175-100) dated as of September 8, 1993 between Norwest Equipment Finance, Inc. and CFO, Inc.; Option to Purchase (FMV) dated September 8, 1993 between Norwest Equipment Finance, Inc. and CFO, Inc.; Interim Funding Agreement dated as of September 8, 1993 between Norwest Equipment Finance, Inc. and CFO, Inc.; as assumed by Suites of America, Inc. by Transfer and Assumption Agreement dated as of December 21, 1993 between CFO, Inc. and Suites of America, Inc.; as amended by letter dated December 27, 1993 from Norwest Equipment Finance, Inc. to CFO, Inc. 45 Columbus: Master Lease (Master Lease No. 18175-101) dated as of September 8, 1993, between Norwest Equipment Finance, Inc. as Lessor and CFO, Inc. as Lessee; Supplement to Master Lease (Supplement Number 18175-101) dated as of November 4, 1993 between Norwest Equipment Finance, Inc. and CFO, Inc.; Addendum to Supplement No. 18175-101 To Master Lease Agreement Dated As Of September 8, 1993 dated as of September 8, 1993 between Norwest Equipment Finance, Inc. and CFO, Inc.; Lease Addendum (Option to Purchase) dated November 4, 1993 between Norwest Equipment Finance, Inc. and CFO, Inc.; as amended by letter dated June 24, 1994 from Norwest Equipment Finance, Inc. to CFO, Inc.; as assumed by Suites of America, Inc. by Transfer and Assumption Agreement dated as of June 27, 1994 between CFO, Inc. and Suites of America, Inc. Overland Park: Master Lease (Master Lease No. 19142) dated as of March 8, 1994 between Norwest Equipment Finance, Inc. as Lessor and OP Hotel, Inc. as Lessee; Supplement to Master Lease (Supplement Number 19142-100) dated as of March 8, 1994 between Norwest Equipment Finance, Inc. and OP Hotel, Inc.; Addendum to Supplement No. 19141-100 to Master Lease Agreement Dated As Of March 8, 1994 dated as of March 8, 1994 between Norwest Equipment Finance, Inc. and OP Hotel, Inc.; Lease Addendum (Option to Purchase) dated March 8, 1994 between Norwest Equipment Finance, Inc. and OP Hotel, Inc.; as amended by letter dated June 27, 1994 from Norwest Equipment Finance, Inc. to OP Hotel, Inc. Richmond: Master Lease No. 3393 dated October 30, 1990, between John Hancock Leasing Corporation as Lessor and Richmond Inn, Inc. as Lessee, together with Rider to Master Lease No. 3393 dated October 30, 1990 between John Hancock Leasing Corporation and Richmond Inn, Inc.; Acceptance Supplement (Acceptance Supplement No. 0001 to Master Lease No. 3393) between John Hancock Leasing Corporation and Richmond Inn, Inc. and related Purchase Option dated December 21, 1990 between John Hancock Leasing Corporation and Richmond Inn, Inc.; Acceptance Supplement (Acceptance Supplement No. 3462 to Master Lease No. 3393) between John Hancock Leasing Corporation and Richmond Inn, Inc. and related Purchase Option dated December 31, 1990 between John Hancock Leasing Corporation and Richmond Inn, Inc.; Acceptance Supplement (Acceptance Supplement No. 3470 to Master Lease No. 3393) dated February 1, 1991 and related Purchase Option between John Hancock Leasing Corporation and Richmond Inn, Inc.; Acceptance Supplement (Acceptance Supplement No. 3481 to Master Lease No. 3393) dated March 1, 1991 and related Purchase Option dated March 1, 1991 between John Hancock Leasing Corporation and Richmond Inn, Inc.; Acceptance Supplement (Acceptance Supplement No. 3509 to Master Lease No. 3393) dated April 1, 1991 between John Hancock Leasing Corporation and Richmond Inn, Inc. and related Purchase Option dated April 1, 1991 between John Hancock Leasing Corporation and Richmond Inn, Inc.; and Acceptance 46 Supplement (Acceptance Supplement No. 3588 to Master Lease No. 3393) dated June 1, 1991 between John Hancock Leasing Corporation and Richmond Inn, Inc. and related Purchase Option dated June 1, 1991 between John Hancock Leasing Corporation and Richmond Inn, Inc. Lease Agreement (Lease No. 5920-000) dated September 27, 1990, among Telerent Leasing Corporation as Lessor, Richmond Inn, Inc., as Lessee and Gulf Coast Development, Inc., as Co-Lessee, together with Schedule A thereto dated September 27, 1990 among Telerent Leasing Corporation, Richmond Inn, Inc. and Gulf Coast Development, Inc. and Schedule B thereto dated September 27, 1990 among Telerent Leasing Corporation, Richmond Inn, Inc. and Gulf Coast Development, Inc.; and Lease Addendum I dated October 19, 1990 among Telerent Leasing Corporation, Richmond Inn, Inc. and Gulf Coast Development, Inc. 47 SCHEDULE 6.10 Operating Contracts (to be attached prior to Closing) EX-10.O 4 CHANGE OF CONTROL AGREEMENT, DAVID A. SIMON & CO. 1 EXHIBIT 10(o) CHANGE IN CONTROL AGREEMENT This Agreement, dated this 15th day of February, 1995, is between Prime Hospitality Corp., a Delaware corporation (the "Company") and David A. Simon ("Employee"). R E C I T A L S: A. Employee is a key officer and employee of the Company. B. The Board of Directors of the Company (the "Board") recognizes that Employee is one of several key officer/employees whose high quality of job performance is essential to promoting and protecting the best interests of the Company and its shareholders. C. The Board further recognizes (i) that it is possible that a Change in Control of the Company could occur at some time in the future, (ii) that the uncertainty associated with such a possibility could result in the distraction of Employee from the Employee's assigned duties and responsibilities, (iii) that it is in the best interests of the Company and its shareholders to assure the continued attention by Employee to such duties and responsibilities without such distraction and (iv) that Employee must be able to participate in the assessment and evaluation of any proposal which could effect a Change in Control of the Company without the Employee's judgment being influenced by uncertainties regarding Employee's future financial security. 2 D. The Company wishes to provide Employee with certain benefits in the event of a Change in Control of the Company as set forth herein. TERMS AND CONDITIONS For valuable consideration, the receipt of which is hereby acknowledged, the parties agree as follows: 1. Definitions. (a) For purposes of this Agreement, the Company shall have "Cause" to terminate the Employee's employment hereunder upon (A) the willful engaging by the Employee in misconduct which is demonstrably and materially injurious to the Company, monetarily or otherwise, or (B) the conviction of the Employee of a felony involving moral turpitude. For purposes of this paragraph, no act, or failure to act, on the Employee's part shall be considered "willful" unless done, or omitted to be done, by him not in good faith and without reasonable belief that his action or omission was in or not opposed to the best interests of the Company. The Employee shall not be deemed to have been terminated for Cause unless the Company shall have given or delivered to the Employee (i) reasonable notice setting forth the reasons for the Company's intention to terminate for Cause, (ii) an opportunity for the Employee to cure any such breach within thirty (30) days after receipt of such notice, (iii) an opportunity for the Employee, together with his counsel, to be heard before the Board, and (iv) a written notice of 2 3 termination stating that, in the good faith opinion of not less than a majority of the entire membership of the Board, the Employee was guilty of conduct set forth above in clauses (A) or (B) of the second preceding sentence, and specifying the particulars thereof in detail. (b) A "Change in Control" of the Company shall be considered to occur if and when: (i) more than 30% of the Company's outstanding securities entitled to vote in elections of directors are acquired by any person, entity or group (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934); or (ii) the Board determines, by a vote of a majority of its entire membership, that a tender offer statement filed by any person, entity or group (as so defined) with the Securities and Exchange Commission indicates an intention on the part of such person, entity or group to acquire control of the Company; or (iii) the Company's shareholders approve the sale of (or agreement to sell or grant of a right or option to purchase as to) all or substantially all of the assets of the Company, to any person, entity or group (as so defined) unless such sale or other transaction shall have been affirmatively recommended to the Company's shareholders by not less than two-thirds of the Board; or 3 4 (iv) during any period of two consecutive years, the individuals who, at the beginning of such period, constitute the Board cease for any reason to constitute at least a majority thereof, provided, however, that a director who was not a director at the beginning of such period shall be deemed to have satisfied the two-year requirement if such director was elected by, on the recommendation of, or with the approval of, at least two-thirds of the directors who were directors at the beginning of such period (either actually or by prior operation of this Section 1(b)(iv); or (v) such other events as the Board may designate. (c) "Good Reason" shall mean the occurrence of any of the following, without Employee's consent, after a Change in Control: (i) a material reduction or adverse alteration in the duties, authorities or responsibilities of Employee's position; (ii) a reduction in Employee's annual base salary, bonus or other compensation arrangements provided by the Company; (iii) the relocation of the Employee's place of employment by more than twenty miles; or 4 5 (iv) a material reduction in or the discontinuance of the perquisites or benefits provided by the Company to Employee. In addition, and without limiting the foregoing, "Good Reason" shall include any act or failure to act which would constitute "good reason" as such term is defined in Section 5.3 of the Employee's Employment Agreement with the Company dated July 31, 1992 (the "Employment Agreement"). (d) The term "Cash Compensation" shall mean, during any fiscal year of the Company, the Employee's aggregate cash compensation earned as an employee of the Company during the immediately preceding fiscal year (including any bonus earned but not paid by fiscal year-end). If Employee was employed by the Company for only a portion of the preceding fiscal year, "Cash Compensation" shall mean his annualized aggregate cash compensation for such year, which shall be determined based on the aggregate cash compensation earned during the portion of such year that Employee was employed. 2. Change in Control. (a) Options. In the event of a Change in Control of the Company, all stock options granted to Employee under the Company's 1992 Stock Option Plan and 1992 Performance Incentive Plan (the "Plans") shall become immediately vested and exercisable, notwithstanding any vesting schedule previously applicable to such stock options; provided, 5 6 however, that the provisions of this Section 2(a) shall not be effective until the respective committees charged with administration of each Plan have taken action to ratify the provisions of this Section 2(a). (b) Cash Payment. If, within twenty-four (24) months following a Change in Control of the Company, the Company terminates the Employee's employment without Cause, or the Employee terminates his or her employment with the Company for Good Reason, then the Company shall, within sixty (60) days of such termination of employment, pay to the Employee an amount equal to two and one- half (2 1/2) times the Employee's "Cash Compensation" as defined above. 3. Parachute Payments. (a) Basic Rule. Anything in this Agreement to the contrary notwithstanding, in the event that any independent accounting firm of national reputation acting as the Company's regular auditors (the "Auditors") determines that any payment or distribution by the Company to or for the benefit of the Employee, whether paid or payable (or distributed or distributable) pursuant to the terms of this Agreement or otherwise (a "Payment"), would be non-deductible by the Company for federal income tax purposes by reason of Section 280G of the Internal Revenue Code of 1986, as amended (the "Code"), then the aggregate present value of the amounts payable or distributable to or for the benefit of the Employee pursuant to this Agreement (the "Agreement 6 7 Payments") shall be reduced (but not below zero) to the Reduced Amount. For purposes of this Section 3, the "Reduced Amount" shall be the amount, expressed in present value, which is the maximum amount of the Agreement Payments which may be paid without causing any Payment to be non-deductible by the Company by reason of Section 280G of the Code. (b) Reduction of Payments. If the Auditors determine that any Payment would be non-deductible by the Company by reason of Section 280G of the Code, then the Company shall give the Employee notice to that effect and a copy of the detailed calculation thereof and of the Reduced Amount not more than thirty-five (35) days following his termination, and the Employee may then elect, in his sole discretion, which and how much of the Agreement Payments shall be eliminated or reduced (provided that after such election the aggregate present value of the Agreement payments equals the Reduced Amount) and shall advise the Company in writing of his election within ten (10) days of his receipt of such notice. If no such election is made by the Employee within such 10-day period, then the Company may elect which and how much of the Agreement Payments shall be eliminated or reduced (as long as after such election the aggregate present value of the Agreement Payments equals the Reduced Amount) and shall notify the Employee promptly of such election. For purposes of this Section 3, present 7 8 value shall be determined in accordance with Section 280G(d)(4) of the Code and regulations thereunder. (c) Auditor's Determinations. All determinations made by the Auditors under this Section 3 shall be binding and conclusive upon the Company and the Employee and shall be made within thirty (30) days of the date of termination of employment. 4. Waiver of Invalidity. Inasmuch as the injury caused to Employee in the event Employee's employment is terminated within twenty-four (24) months of a Change in Control is difficult or incapable of accurate estimation at the date of this Agreement, the amounts to be paid pursuant to Sections 2 and 3 are intended to be liquidated damages and not a penalty, and therefore constitute a good faith forecast of the harm which might be expected to be caused to Employee. Accordingly, the Company waives any right to assert against Employee the invalidity of any payment provided in Sections 2 and 3 by reason of Employee's failure to seek other employment or otherwise, nor shall the amount of any payment provided in Sections 2 and 3 be reduced by reason of any compensation earned or not earned by Employee as a result of employment by another employer after the date of termination or otherwise. Notwithstanding the foregoing, should the foregoing provisions of this section be held unenforceable or void for any reason, Employee shall be required to mitigate or reduce the amount of any payments hereunder only 8 9 to the extent required by law to make such provisions valid and enforceable. 5. Arbitration of Disputes. Employee may submit to arbitration any claim for payment under this Agreement as follows: After the sixtieth day following the termination of Employee's employment with the Company, the claim may be filed in writing with an arbitrator of Employee's choice and thereafter the Company shall be notified in writing of the claim and furnished with a true copy as so filed. The arbitrator must be a member of the National Academy of Arbitrators or one who currently appears on arbitration panels issued by the American Arbitration Association. The arbitration hearing shall be held within ten (10) business days after the receipt of notice of the claim by the Company. No continuance of the hearing shall be allowed without the mutual consent of Employee and the Company. Absence from or non-participation at the hearing by either party shall not prevent the issuance of an award. Hearing procedures which will expedite the hearing may be ordered at the arbitrator's discretion. The arbitrator's award shall be rendered as expeditiously as possible. In the event the arbitrator finds that the Company has breached this Agreement, the arbitrator shall order the Company to pay to Employee, within twenty- four hours after the decision is rendered, the amount due hereunder. The award of the arbitrator shall be final and binding upon the parties. Judgment may be entered on the arbitrator's award in any appropriate court as soon as possible 9 10 after its rendition without further notice to the Company. The fee of the arbitrator, all necessary expenses of the hearing, and the expenses and attorney fees of the prevailing party (collectively "expenses") shall be paid by the losing party; provided, however, that if the arbitrator finds in favor of the Company but also finds that Employee's claim was made in good faith, then the arbitrator may require the Company to pay such expenses, except for Employee's legal fees and disbursements. Except as expressly provided herein, the arbitration shall be conducted in accordance with the rules then prevailing of the American Arbitration Association. 6. Miscellaneous. (a) Waiver. The failure of any party to exercise any rights hereunder or to enforce any of the terms or conditions of this Agreement on any occasion shall not constitute or be deemed a waiver of that party's rights thereafter to exercise any rights hereunder or to enforce each and every term and condition of this Agreement. (b) Binding Effect; Successors. (i) In the event of Employee's death or a judicial determination of his incompetence, Employee's rights under this Agreement shall inure to the benefit of Employee's heirs, beneficiaries or legal representatives, as the case may be. (ii) The Company's rights, duties and obligations under this Agreement shall be binding upon, and inure to the benefit of, the Company and any successor of the Company, 10 11 including, without limitation, any entity or entities acquiring directly or indirectly all or substantially all of the Company's assets or securities whether by merger, consolidation, sale or otherwise, and such successor shall thereafter be deemed the "Company" for all purposes of this Agreement; provided that such rights, duties and obligations shall not otherwise be assignable by the Company. (iii) Within thirty (30) days following a Change in Control, the Company (including any successor of the Company) shall in writing affirm to the Employee its obligations under this Agreement. (c) Governing Law. This Agreement shall be construed and enforced in accordance with the laws of the State of Delaware. (d) Authorization and Modification. This Agreement is executed for and on behalf of the Company by an officer thereof duly authorized to do so by resolution of the Board of Directors approving this Agreement and authorizing such execution. This Agreement shall not be varied, altered, modified, changed or in any way amended except by an instruction in writing executed by the parties hereto. (e) Assignment by Employee. Except as otherwise expressly provided for in this Agreement, no right, benefit or interest of Employee arising hereunder shall be subject to anticipation, alienation, sale, assignment, encumbrance, 11 12 charge, pledge, hypothecation or set-off in respect of any claim, debt or obligation or to execution, attachment, levy or similar process, or assignment by operation of law. Any attempt, voluntary or involuntary, to effect any action specified in the immediately preceding sentence shall, to the full extent permitted by law, be null, void and of no effect. (f) Notice. For the purposes of this Agreement, notices, demands and all other communications provided for in the Agreement shall be in writing and shall be deemed to have been duly given when hand delivered or (unless otherwise specified) mailed by United States registered mail, return receipt requested, postage prepaid, addressed as follows: If to the Employee: David A. Simon, at his then current permanent home address as shown on the Company's records If to the Company: Prime Hospitality Corp. 700 Route 46 East Fairfield, NJ 07007-2700 Attn: General Counsel or to such other address as any party may have furnished to the others in writing in accordance herewith, except that notices of change of address shall be effective only upon receipt. (g) Validity. The invalidity or unenforceability of any provision or provisions of this Agreement shall not affect the validity or enforceability of any other 12 13 provisions of this Agreement, which shall remain in full force and effect. (h) Taxes. The Company shall deduct from all amounts payable under this Agreement all federal, state, local and other taxes required by law to be withheld with respect to such payments. 7. Other Arrangements. The rights of Employee under this Agreement are in addition to Employee's rights under the Employment Agreement or any successor agreement to the Employment Agreement. Nothing contained in this Agreement shall adversely affect any of Employee's rights under the Employment Agreement or as a participant or beneficiary under the Company's pension and welfare benefit plans, incentive compensation arrangements and perquisite programs, or the Employee's obligations arising under any confidentiality agreement with the Company. PRIME HOSPITALITY CORP. By /s/ JOHN ELWOOD ------------------------- Name: John Elwood Title: Exec. V.P. EMPLOYEE: /s/ DAVID A. SIMON ---------------------------- David A. Simon 13 EX-10.P 5 CHANGE OF CONTROL AGREEMENT, JOHN M. ELWOOD & CO. 1 EXHIBIT 10(p) CHANGE IN CONTROL AGREEMENT This Agreement, dated this 15th day of February, 1995, is between Prime Hospitality Corp., a Delaware corporation (the "Company") and John M. Elwood ("Employee"). R E C I T A L S: A. Employee is a key officer and employee of the Company. B. The Board of Directors of the Company (the "Board") recognizes that Employee is one of several key officer/employees whose high quality of job performance is essential to promoting and protecting the best interests of the Company and its shareholders. C. The Board further recognizes (i) that it is possible that a Change in Control of the Company could occur at some time in the future, (ii) that the uncertainty associated with such a possibility could result in the distraction of Employee from the Employee's assigned duties and responsibilities, (iii) that it is in the best interests of the Company and its shareholders to assure the continued attention by Employee to such duties and responsibilities without such distraction and (iv) that Employee must be able to participate in the assessment and evaluation of any proposal which could effect a Change in Control of the Company without the Employee's judgment being influenced by uncertainties regarding Employee's future financial security. 2 D. The Company wishes to provide Employee with certain benefits in the event of a Change in Control of the Company as set forth herein. TERMS AND CONDITIONS For valuable consideration, the receipt of which is hereby acknowledged, the parties agree as follows: 1. Definitions. (a) For purposes of this Agreement, the Company shall have "Cause" to terminate the Employee's employment hereunder upon (A) the willful engaging by the Employee in misconduct which is demonstrably and materially injurious to the Company, monetarily or otherwise, or (B) the conviction of the Employee of a felony involving moral turpitude. For purposes of this paragraph, no act, or failure to act, on the Employee's part shall be considered "willful" unless done, or omitted to be done, by him not in good faith and without reasonable belief that his action or omission was in or not opposed to the best interests of the Company. The Employee shall not be deemed to have been terminated for Cause unless the Company shall have given or delivered to the Employee (i) reasonable notice setting forth the reasons for the Company's intention to terminate for Cause, (ii) an opportunity for the Employee to cure any such breach within thirty (30) days after receipt of such notice, (iii) an opportunity for the Employee, together with his counsel, to be heard before the Board, and (iv) a written notice of 2 3 termination stating that, in the good faith opinion of not less than a majority of the entire membership of the Board, the Employee was guilty of conduct set forth above in clauses (A) or (B) of the second preceding sentence, and specifying the particulars thereof in detail. (b) A "Change in Control" of the Company shall be considered to occur if and when: (i) more than 30% of the Company's outstanding securities entitled to vote in elections of directors are acquired by any person, entity or group (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934); or (ii) the Board determines, by a vote of a majority of its entire membership, that a tender offer statement filed by any person, entity or group (as so defined) with the Securities and Exchange Commission indicates an intention on the part of such person, entity or group to acquire control of the Company; or (iii) the Company's shareholders approve the sale of (or agreement to sell or grant of a right or option to purchase as to) all or substantially all of the assets of the Company, to any person, entity or group (as so defined) unless such sale or other transaction shall have been affirmatively recommended to the Company's shareholders by not less than two-thirds of the Board; or 3 4 (iv) during any period of two consecutive years, the individuals who, at the beginning of such period, constitute the Board cease for any reason to constitute at least a majority thereof, provided, however, that a director who was not a director at the beginning of such period shall be deemed to have satisfied the two-year requirement if such director was elected by, on the recommendation of, or with the approval of, at least two-thirds of the directors who were directors at the beginning of such period (either actually or by prior operation of this Section 1(b)(iv); or (v) such other events as the Board may designate. (c) "Good Reason" shall mean the occurrence of any of the following, without Employee's consent, after a Change in Control: (i) a material reduction or adverse alteration in the duties, authorities or responsibilities of Employee's position; (ii) a reduction in Employee's annual base salary, bonus or other compensation arrangements provided by the Company; (iii) the relocation of the Employee's place of employment by more than twenty miles; or 4 5 (iv) a material reduction in or the discontinuance of the perquisites or benefits provided by the Company to Employee. In addition, and without limiting the foregoing, "Good Reason" shall include any act or failure to act which would constitute "good reason" as such term is defined in Section 5.3 of the Employee's Employment Agreement with the Company dated January 24, 1994 (the "Employment Agreement"). (d) The term "Cash Compensation" shall mean, during any fiscal year of the Company, the Employee's aggregate cash compensation earned as an employee of the Company during the immediately preceding fiscal year (including any bonus earned but not paid by fiscal year-end). If Employee was employed by the Company for only a portion of the preceding fiscal year, "Cash Compensation" shall mean his annualized aggregate cash compensation for such year, which shall be determined based on the aggregate cash compensation earned during the portion of such year that Employee was employed. 2. Change in Control. (a) Options. In the event of a Change in Control of the Company, all stock options granted to Employee under the Company's 1992 Stock Option Plan and 1992 Performance Incentive Plan (the "Plans") shall become immediately vested and exercisable, notwithstanding any vesting schedule previously applicable to such stock options; provided, 5 6 however, that the provisions of this Section 2(a) shall not be effective until the respective committees charged with administration of each Plan have taken action to ratify the provisions of this Section 2(a). (b) Cash Payment. If, within twenty-four (24) months following a Change in Control of the Company, the Company terminates the Employee's employment without Cause, or the Employee terminates his or her employment with the Company for Good Reason, then the Company shall, within sixty (60) days of such termination of employment, pay to the Employee an amount equal to two and one- half (2 1/2) times the Employee's "Cash Compensation" as defined above. 3. Parachute Payments. (a) Basic Rule. Anything in this Agreement to the contrary notwithstanding, in the event that any independent accounting firm of national reputation acting as the Company's regular auditors (the "Auditors") determines that any payment or distribution by the Company to or for the benefit of the Employee, whether paid or payable (or distributed or distributable) pursuant to the terms of this Agreement or otherwise (a "Payment"), would be non-deductible by the Company for federal income tax purposes by reason of Section 280G of the Internal Revenue Code of 1986, as amended (the "Code"), then the aggregate present value of the amounts payable or distributable to or for the benefit of the Employee pursuant to this Agreement (the "Agreement 6 7 Payments") shall be reduced (but not below zero) to the Reduced Amount. For purposes of this Section 3, the "Reduced Amount" shall be the amount, expressed in present value, which is the maximum amount of the Agreement Payments which may be paid without causing any Payment to be non-deductible by the Company by reason of Section 280G of the Code. (b) Reduction of Payments. If the Auditors determine that any Payment would be non-deductible by the Company by reason of Section 280G of the Code, then the Company shall give the Employee notice to that effect and a copy of the detailed calculation thereof and of the Reduced Amount not more than thirty-five (35) days following his termination, and the Employee may then elect, in his sole discretion, which and how much of the Agreement Payments shall be eliminated or reduced (provided that after such election the aggregate present value of the Agreement payments equals the Reduced Amount) and shall advise the Company in writing of his election within ten (10) days of his receipt of such notice. If no such election is made by the Employee within such 10-day period, then the Company may elect which and how much of the Agreement Payments shall be eliminated or reduced (as long as after such election the aggregate present value of the Agreement Payments equals the Reduced Amount) and shall notify the Employee promptly of such election. For purposes of this Section 3, present 7 8 value shall be determined in accordance with Section 280G(d)(4) of the Code and regulations thereunder. (c) Auditor's Determinations. All determinations made by the Auditors under this Section 3 shall be binding and conclusive upon the Company and the Employee and shall be made within thirty (30) days of the date of termination of employment. 4. Waiver of Invalidity. Inasmuch as the injury caused to Employee in the event Employee's employment is terminated within twenty-four (24) months of a Change in Control is difficult or incapable of accurate estimation at the date of this Agreement, the amounts to be paid pursuant to Sections 2 and 3 are intended to be liquidated damages and not a penalty, and therefore constitute a good faith forecast of the harm which might be expected to be caused to Employee. Accordingly, the Company waives any right to assert against Employee the invalidity of any payment provided in Sections 2 and 3 by reason of Employee's failure to seek other employment or otherwise, nor shall the amount of any payment provided in Sections 2 and 3 be reduced by reason of any compensation earned or not earned by Employee as a result of employment by another employer after the date of termination or otherwise. Notwithstanding the foregoing, should the foregoing provisions of this section be held unenforceable or void for any reason, Employee shall be required to mitigate or reduce the amount of any payments hereunder only 8 9 to the extent required by law to make such provisions valid and enforceable. 5. Arbitration of Disputes. Employee may submit to arbitration any claim for payment under this Agreement as follows: After the sixtieth day following the termination of Employee's employment with the Company, the claim may be filed in writing with an arbitrator of Employee's choice and thereafter the Company shall be notified in writing of the claim and furnished with a true copy as so filed. The arbitrator must be a member of the National Academy of Arbitrators or one who currently appears on arbitration panels issued by the American Arbitration Association. The arbitration hearing shall be held within ten (10) business days after the receipt of notice of the claim by the Company. No continuance of the hearing shall be allowed without the mutual consent of Employee and the Company. Absence from or non-participation at the hearing by either party shall not prevent the issuance of an award. Hearing procedures which will expedite the hearing may be ordered at the arbitrator's discretion. The arbitrator's award shall be rendered as expeditiously as possible. In the event the arbitrator finds that the Company has breached this Agreement, the arbitrator shall order the Company to pay to Employee, within twenty- four hours after the decision is rendered, the amount due hereunder. The award of the arbitrator shall be final and binding upon the parties. Judgment may be entered on the arbitrator's award in any appropriate court as soon as possible 9 10 after its rendition without further notice to the Company. The fee of the arbitrator, all necessary expenses of the hearing, and the expenses and attorney fees of the prevailing party (collectively "expenses") shall be paid by the losing party; provided, however, that if the arbitrator finds in favor of the Company but also finds that Employee's claim was made in good faith, then the arbitrator may require the Company to pay such expenses, except for Employee's legal fees and disbursements. Except as expressly provided herein, the arbitration shall be conducted in accordance with the rules then prevailing of the American Arbitration Association. 6. Miscellaneous. (a) Waiver. The failure of any party to exercise any rights hereunder or to enforce any of the terms or conditions of this Agreement on any occasion shall not constitute or be deemed a waiver of that party's rights thereafter to exercise any rights hereunder or to enforce each and every term and condition of this Agreement. (b) Binding Effect; Successors. (i) In the event of Employee's death or a judicial determination of his incompetence, Employee's rights under this Agreement shall inure to the benefit of Employee's heirs, beneficiaries or legal representatives, as the case may be. (ii) The Company's rights, duties and obligations under this Agreement shall be binding upon, and inure to the benefit of, the Company and any successor of the Company, 10 11 including, without limitation, any entity or entities acquiring directly or indirectly all or substantially all of the Company's assets or securities whether by merger, consolidation, sale or otherwise, and such successor shall thereafter be deemed the "Company" for all purposes of this Agreement; provided that such rights, duties and obligations shall not otherwise be assignable by the Company. (iii) Within thirty (30) days following a Change in Control, the Company (including any successor of the Company) shall in writing affirm to the Employee its obligations under this Agreement. (c) Governing Law. This Agreement shall be construed and enforced in accordance with the laws of the State of Delaware. (d) Authorization and Modification. This Agreement is executed for and on behalf of the Company by an officer thereof duly authorized to do so by resolution of the Board of Directors approving this Agreement and authorizing such execution. This Agreement shall not be varied, altered, modified, changed or in any way amended except by an instruction in writing executed by the parties hereto. (e) Assignment by Employee. Except as otherwise expressly provided for in this Agreement, no right, benefit or interest of Employee arising hereunder shall be subject to anticipation, alienation, sale, assignment, encumbrance, 11 12 charge, pledge, hypothecation or set-off in respect of any claim, debt or obligation or to execution, attachment, levy or similar process, or assignment by operation of law. Any attempt, voluntary or involuntary, to effect any action specified in the immediately preceding sentence shall, to the full extent permitted by law, be null, void and of no effect. (f) Notice. For the purposes of this Agreement, notices, demands and all other communications provided for in the Agreement shall be in writing and shall be deemed to have been duly given when hand delivered or (unless otherwise specified) mailed by United States registered mail, return receipt requested, postage prepaid, addressed as follows: If to the Employee: John M. Elwood, at his then current permanent home address as shown on the Company's records If to the Company: Prime Hospitality Corp. 700 Route 46 East Fairfield, NJ 07007-2700 Attn: General Counsel or to such other address as any party may have furnished to the others in writing in accordance herewith, except that notices of change of address shall be effective only upon receipt. (g) Validity. The invalidity or unenforceability of any provision or provisions of this Agreement shall not affect the validity or enforceability of any other 12 13 provisions of this Agreement, which shall remain in full force and effect. (h) Taxes. The Company shall deduct from all amounts payable under this Agreement all federal, state, local and other taxes required by law to be withheld with respect to such payments. 7. Other Arrangements. The rights of Employee under this Agreement are in addition to Employee's rights under the Employment Agreement or any successor agreement to the Employment Agreement. Nothing contained in this Agreement shall adversely affect any of Employee's rights under the Employment Agreement or as a participant or beneficiary under the Company's pension and welfare benefit plans, incentive compensation arrangements and perquisite programs, or the Employee's obligations arising under any confidentiality agreement with the Company. PRIME HOSPITALITY CORP. By /s/ DAVID A. SIMON ---------------------------- Name: Title: EMPLOYEE: /s/ JOHN M. ELWOOD ------------------------------ John M. Elwood 13 EX-10.Q 6 CHANGE OF CONTROL AGREEMENT, PAUL H. HOWER & CO. 1 EXHIBIT 10(q) CHANGE IN CONTROL AGREEMENT This Agreement, dated this 15th day of February, 1995, is between Prime Hospitality Corp., a Delaware corporation (the "Company") and Paul H. Hower ("Employee"). R E C I T A L S: A. Employee is a key officer and employee of the Company. B. The Board of Directors of the Company (the "Board") recognizes that Employee is one of several key officer/employees whose high quality of job performance is essential to promoting and protecting the best interests of the Company and its shareholders. C. The Board further recognizes (i) that it is possible that a Change in Control of the Company could occur at some time in the future, (ii) that the uncertainty associated with such a possibility could result in the distraction of Employee from the Employee's assigned duties and responsibilities, (iii) that it is in the best interests of the Company and its shareholders to assure the continued attention by Employee to such duties and responsibilities without such distraction and (iv) that Employee must be able to participate in the assessment and evaluation of any proposal which could effect a Change in Control of the Company without the Employee's judgment being influenced by uncertainties regarding Employee's future financial security. 2 D. The Company wishes to provide Employee with certain benefits in the event of a Change in Control of the Company as set forth herein. TERMS AND CONDITIONS For valuable consideration, the receipt of which is hereby acknowledged, the parties agree as follows: 1. Definitions. (a) For purposes of this Agreement, the Company shall have "Cause" to terminate the Employee's employment hereunder upon (A) the willful and continued failure by the Employee to substantially perform his duties hereunder (other than any such failure resulting from the Employee's incapacity due to physical or mental illness), (B) the engaging by the Employee in willful misconduct which is demonstrably and materially injurious to the Company, monetarily or otherwise, or (C) the conviction of the Employee of a felony involving moral turpitude. For purposes of this paragraph, no act, or failure to act, on the Employee's part shall be considered "willful" unless done, or omitted to be done, by him not in good faith and without reasonable belief that his action or omission was in the best interest of the Company. The Employee shall not be deemed to have been terminated for Cause unless the Company shall have given or delivered to the Employee (i) reasonable notice setting forth the reasons for the Company's intention to terminate for Cause, (ii) an opportunity for the Employee 2 3 to cure any such breach within thirty (30) days after receipt of such notice, (iii) an opportunity for the Employee, together with his counsel, to be heard before the Board, and (iv) a written notice of termination stating that, in the good faith opinion of not less than a majority of the entire membership of the Board, the Employee was guilty of conduct set forth above in clauses (A), (B) or (C) of the second preceding sentence, and specifying the particulars thereof in detail. (b) A "Change in Control" of the Company shall be considered to occur if and when: (i) more than 30% of the Company's outstanding securities entitled to vote in elections of directors are acquired by any person, entity or group (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934); or (ii) the Board determines, by a vote of a majority of its entire membership, that a tender offer statement filed by any person, entity or group (as so defined) with the Securities and Exchange Commission indicates an intention on the part of such person, entity or group to acquire control of the Company; or (iii) the Company's shareholders approve the sale of (or agreement to sell or grant of a right or option to purchase as to) all or substantially all of the assets of the Company, to any person, entity or 3 4 group (as so defined) unless such sale or other transaction shall have been affirmatively recommended to the Company's shareholders by not less than two-thirds of the Board; or (iv) during any period of two consecutive years, the individuals who, at the beginning of such period, constitute the Board cease for any reason to constitute at least a majority thereof, provided, however, that a director who was not a director at the beginning of such period shall be deemed to have satisfied the two-year requirement if such director was elected by, on the recommendation of, or with the approval of, at least two-thirds of the directors who were directors at the beginning of such period (either actually or by prior operation of this Section 1(b)(iv); or (v) such other events as the Board may designate. (c) "Good Reason" shall mean the occurrence of any of the following, without Employee's consent, after a Change in Control: (i) a material reduction or adverse alteration in the duties, authorities or responsibilities of Employee's position; 4 5 (ii) a reduction in Employee's annual base salary, bonus or other compensation arrangements provided by the Company; (iii) the relocation of the Employee's place of employment by more than twenty miles; or (iv) a material reduction in or the discontinuance of the perquisites or benefits provided by the Company to Employee. (d) The term "Cash Compensation" shall mean, during any fiscal year of the Company, the Employee's aggregate cash compensation earned as an employee of the Company during the immediately preceding fiscal year (including any bonus earned but not paid by fiscal year-end). If Employee was employed by the Company for only a portion of the preceding fiscal year, "Cash Compensation" shall mean his annualized aggregate cash compensation for such year, which shall be determined based on the aggregate cash compensation earned during the portion of such year that Employee was employed. 2. Change in Control. (a) Options. In the event of a Change in Control of the Company, all stock options granted to Employee under the Company's 1992 Stock Option Plan and 1992 Performance Incentive Plan (the "Plans") shall become immediately vested and exercisable, notwithstanding any vesting schedule previously applicable to such stock options; provided, 5 6 however, that the provisions of this Section 2(a) shall not be effective until the respective committees charged with administration of each Plan have taken action to ratify the provisions of this Section 2(a). (b) Cash Payment. If, within twenty-four (24) months following a Change in Control of the Company, the Company terminates the Employee's employment without Cause, or the Employee terminates his or her employment with the Company for Good Reason, then the Company shall, within sixty (60) days of such termination of employment, pay to the Employee an amount equal to two and one- half (2 1/2) times the Employee's "Cash Compensation" as defined above. 3. Parachute Payments. (a) Basic Rule. Anything in this Agreement to the contrary notwithstanding, in the event that any independent accounting firm of national reputation acting as the Company's regular auditors (the "Auditors") determines that any payment or distribution by the Company to or for the benefit of the Employee, whether paid or payable (or distributed or distributable) pursuant to the terms of this Agreement or otherwise (a "Payment"), would be non-deductible by the Company for federal income tax purposes by reason of Section 280G of the Internal Revenue Code of 1986, as amended (the "Code"), then the aggregate present value of the amounts payable or distributable to or for the benefit of the Employee pursuant to this Agreement or otherwise (the 6 7 "Agreement Payments") shall be reduced (but not below zero) to the Reduced Amount. For purposes of this Section 3, the "Reduced Amount" shall be the amount, expressed in present value, which is the maximum amount of the Agreement Payments which may be paid without causing any Payment to be non-deductible by the Company by reason of Section 280G of the Code. (b) Reduction of Payments. If the Auditors determine that any Payment would be non-deductible by the Company by reason of Section 280G of the Code, then the Company shall give the Employee notice to that effect and a copy of the detailed calculation thereof and of the Reduced Amount not more than thirty-five (35) days following his termination, and the Employee may then elect, in his sole discretion, which and how much of the Agreement Payments shall be eliminated or reduced (provided that after such election the aggregate present value of the Agreement payments equals the Reduced Amount) and shall advise the Company in writing of his election within ten (10) days of his receipt of such notice. If no such election is made by the Employee within such 10-day period, then the Company may elect which and how much of the Agreement Payments shall be eliminated or reduced (as long as after such election the aggregate present value of the Agreement Payments equals the Reduced Amount) and shall notify the Employee promptly of such election. For purposes of this Section 3, present 7 8 value shall be determined in accordance with Section 280G(d)(4) of the Code and regulations thereunder. (c) Auditor's Determinations. All determinations made by the Auditors under this Section 3 shall be binding and conclusive upon the Company and the Employee and shall be made within thirty (30) days of the date of termination of employment. 4. Waiver of Invalidity. Inasmuch as the injury caused to Employee in the event Employee's employment is terminated within twenty-four (24) months of a Change in Control is difficult or incapable of accurate estimation at the date of this Agreement, the amounts to be paid pursuant to Sections 2 and 3 are intended to be liquidated damages and not a penalty, and therefore constitute a good faith forecast of the harm which might be expected to be caused to Employee. Accordingly, the Company waives any right to assert against Employee the invalidity of any payment provided in Sections 2 and 3 by reason of Employee's failure to seek other employment or otherwise, nor shall the amount of any payment provided in Sections 2 and 3 be reduced by reason of any compensation earned or not earned by Employee as a result of employment by another employer after the date of termination or otherwise. Notwithstanding the foregoing, should the foregoing provisions of this section be held unenforceable or void for any reason, Employee shall be required to mitigate or reduce the amount of any payments hereunder only 8 9 to the extent required by law to make such provisions valid and enforceable. 5. Arbitration of Disputes. Employee may submit to arbitration any claim for payment under this Agreement as follows: After the sixtieth day following the termination of Employee's employment with the Company, the claim may be filed in writing with an arbitrator of Employee's choice and thereafter the Company shall be notified in writing of the claim and furnished with a true copy as so filed. The arbitrator must be a member of the National Academy of Arbitrators or one who currently appears on arbitration panels issued by the American Arbitration Association. The arbitration hearing shall be held within ten (10) business days after the receipt of notice of the claim by the Company. No continuance of the hearing shall be allowed without the mutual consent of Employee and the Company. Absence from or non-participation at the hearing by either party shall not prevent the issuance of an award. Hearing procedures which will expedite the hearing may be ordered at the arbitrator's discretion. The arbitrator's award shall be rendered as expeditiously as possible. In the event the arbitrator finds that the Company has breached this Agreement, the arbitrator shall order the Company to pay to Employee, within twenty- four hours after the decision is rendered, the amount due hereunder. The award of the arbitrator shall be final and binding upon the parties. Judgment may be entered on the arbitrator's award in any appropriate court as soon as possible 9 10 after its rendition without further notice to the Company. The fee of the arbitrator, all necessary expenses of the hearing, and the expenses and attorney fees of the prevailing party (collectively "expenses") shall be paid by the losing party; provided, however, that if the arbitrator finds in favor of the Company but also finds that Employee's claim was made in good faith, then the arbitrator may require the Company to pay such expenses, except for Employee's legal fees and disbursements. Except as expressly provided herein, the arbitration shall be conducted in accordance with the rules then prevailing of the American Arbitration Association. 6. Miscellaneous. (a) Waiver. The failure of any party to exercise any rights hereunder or to enforce any of the terms or conditions of this Agreement on any occasion shall not constitute or be deemed a waiver of that party's rights thereafter to exercise any rights hereunder or to enforce each and every term and condition of this Agreement. (b) Binding Effect; Successors. (i) In the event of Employee's death or a judicial determination of his incompetence, Employee's rights under this Agreement shall inure to the benefit of Employee's heirs, beneficiaries or legal representatives, as the case may be. (ii) The Company's rights, duties and obligations under this Agreement shall be binding upon, and inure to the benefit of, the Company and any successor of the Company, 10 11 including, without limitation, any entity or entities acquiring directly or indirectly all or substantially all of the Company's assets or securities whether by merger, consolidation, sale or otherwise, and such successor shall thereafter be deemed the "Company" for all purposes of this Agreement; provided that such rights, duties and obligations shall not otherwise be assignable by the Company. (iii) Within thirty (30) days following a Change in Control, the Company (including any successor of the Company) shall in writing affirm to the Employee its obligations under this Agreement. (c) Governing Law. This Agreement shall be construed and enforced in accordance with the laws of the State of Delaware. (d) Authorization and Modification. This Agreement is executed for and on behalf of the Company by an officer thereof duly authorized to do so by resolution of the Board of Directors approving this Agreement and authorizing such execution. This Agreement shall not be varied, altered, modified, changed or in any way amended except by an instruction in writing executed by the parties hereto. (e) Assignment by Employee. Except as otherwise expressly provided for in this Agreement, no right, benefit or interest of Employee arising hereunder shall be subject to anticipation, alienation, sale, assignment, encumbrance, 11 12 charge, pledge, hypothecation or set-off in respect of any claim, debt or obligation or to execution, attachment, levy or similar process, or assignment by operation of law. Any attempt, voluntary or involuntary, to effect any action specified in the immediately preceding sentence shall, to the full extent permitted by law, be null, void and of no effect. (f) Notice. For the purposes of this Agreement, notices, demands and all other communications provided for in the Agreement shall be in writing and shall be deemed to have been duly given when hand delivered or (unless otherwise specified) mailed by United States registered mail, return receipt requested, postage prepaid, addressed as follows: If to the Employee: Paul H. Hower, at his then current permanent home address as shown on the Company's records If to the Company: Prime Hospitality Corp. 700 Route 46 East Fairfield, NJ 07007-2700 Attn: General Counsel or to such other address as any party may have furnished to the others in writing in accordance herewith, except that notices of change of address shall be effective only upon receipt. (g) Validity. The invalidity or unenforceability of any provision or provisions of this Agreement shall not affect the validity or enforceability of any other 12 13 provisions of this Agreement, which shall remain in full force and effect. (h) Taxes. The Company shall deduct from all amounts payable under this Agreement all federal, state, local and other taxes required by law to be withheld with respect to such payments. 7. Other Arrangements. Nothing contained in this Agreement shall adversely affect any of Employee's rights as a participant or beneficiary under the Company's pension and welfare benefit plans, incentive compensation arrangements and perquisite programs or the Employee's obligations arising under any confidentiality agreement with the Company. PRIME HOSPITALITY CORP. By /s/ DAVID A. SIMON -------------------------- Name: Title: EMPLOYEE: /s/ PAUL H. HOWER ----------------------------- Paul H. Hower 13 EX-10.R 7 CHANGE OF CONTROL AGREEMENT, JOHN H. LEAVITT & CO. 1 EXHIBIT 10(r) CHANGE IN CONTROL AGREEMENT This Agreement, dated this 15th day of February, 1995, is between Prime Hospitality Corp., a Delaware corporation (the "Company") and John Leavitt ("Employee"). R E C I T A L S: A. Employee is a key officer and employee of the Company. B. The Board of Directors of the Company (the "Board") recognizes that Employee is one of several key officer/employees whose high quality of job performance is essential to promoting and protecting the best interests of the Company and its shareholders. C. The Board further recognizes (i) that it is possible that a Change in Control of the Company could occur at some time in the future, (ii) that the uncertainty associated with such a possibility could result in the distraction of Employee from the Employee's assigned duties and responsibilities, (iii) that it is in the best interests of the Company and its shareholders to assure the continued attention by Employee to such duties and responsibilities without such distraction and (iv) that Employee must be able to participate in the assessment and evaluation of any proposal which could effect a Change in Control of the Company without the Employee's judgment being influenced by uncertainties regarding Employee's future financial security. 2 D. The Company wishes to provide Employee with certain benefits in the event of a Change in Control of the Company as set forth herein. TERMS AND CONDITIONS For valuable consideration, the receipt of which is hereby acknowledged, the parties agree as follows: 1. Definitions. (a) For purposes of this Agreement, the Company shall have "Cause" to terminate the Employee's employment hereunder upon (A) the willful and continued failure by the Employee to substantially perform his duties hereunder (other than any such failure resulting from the Employee's incapacity due to physical or mental illness), (B) the engaging by the Employee in willful misconduct which is demonstrably and materially injurious to the Company, monetarily or otherwise, or (C) the conviction of the Employee of a felony involving moral turpitude. For purposes of this paragraph, no act, or failure to act, on the Employee's part shall be considered "willful" unless done, or omitted to be done, by him not in good faith and without reasonable belief that his action or omission was in the best interest of the Company. The Employee shall not be deemed to have been terminated for Cause unless the Company shall have given or delivered to the Employee (i) reasonable notice setting forth the reasons for the Company's intention to terminate for Cause, (ii) an opportunity for the Employee 2 3 to cure any such breach within thirty (30) days after receipt of such notice, (iii) an opportunity for the Employee, together with his counsel, to be heard before the Board, and (iv) a written notice of termination stating that, in the good faith opinion of not less than a majority of the entire membership of the Board, the Employee was guilty of conduct set forth above in clauses (A), (B) or (C) of the second preceding sentence, and specifying the particulars thereof in detail. (b) A "Change in Control" of the Company shall be considered to occur if and when: (i) more than 30% of the Company's outstanding securities entitled to vote in elections of directors are acquired by any person, entity or group (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934); or (ii) the Board determines, by a vote of a majority of its entire membership, that a tender offer statement filed by any person, entity or group (as so defined) with the Securities and Exchange Commission indicates an intention on the part of such person, entity or group to acquire control of the Company; or (iii) the Company's shareholders approve the sale of (or agreement to sell or grant of a right or option to purchase as to) all or substantially all of the assets of the Company, to any person, entity or 3 4 group (as so defined) unless such sale or other transaction shall have been affirmatively recommended to the Company's shareholders by not less than two-thirds of the Board; or (iv) during any period of two consecutive years, the individuals who, at the beginning of such period, constitute the Board cease for any reason to constitute at least a majority thereof, provided, however, that a director who was not a director at the beginning of such period shall be deemed to have satisfied the two-year requirement if such director was elected by, on the recommendation of, or with the approval of, at least two-thirds of the directors who were directors at the beginning of such period (either actually or by prior operation of this Section 1(b)(iv); or (v) such other events as the Board may designate. (c) "Good Reason" shall mean the occurrence of any of the following, without Employee's consent, after a Change in Control: (i) a material reduction or adverse alteration in the duties, authorities or responsibilities of Employee's position; 4 5 (ii) a reduction in Employee's annual base salary, bonus or other compensation arrangements provided by the Company; (iii) the relocation of the Employee's place of employment by more than twenty miles; or (iv) a material reduction in or the discontinuance of the perquisites or benefits provided by the Company to Employee. (d) The term "Cash Compensation" shall mean, during any fiscal year of the Company, the Employee's aggregate cash compensation earned as an employee of the Company during the immediately preceding fiscal year (including any bonus earned but not paid by fiscal year-end). If Employee was employed by the Company for only a portion of the preceding fiscal year, "Cash Compensation" shall mean his annualized aggregate cash compensation for such year, which shall be determined based on the aggregate cash compensation earned during the portion of such year that Employee was employed. 2. Change in Control. (a) Options. In the event of a Change in Control of the Company, all stock options granted to Employee under the Company's 1992 Stock Option Plan and 1992 Performance Incentive Plan (the "Plans") shall become immediately vested and exercisable, notwithstanding any vesting schedule previously applicable to such stock options; provided, 5 6 however, that the provisions of this Section 2(a) shall not be effective until the respective committees charged with administration of each Plan have taken action to ratify the provisions of this Section 2(a). (b) Cash Payment. If, within twenty-four (24) months following a Change in Control of the Company, the Company terminates the Employee's employment without Cause, or the Employee terminates his or her employment with the Company for Good Reason, then the Company shall, within sixty (60) days of such termination of employment, pay to the Employee an amount equal to two and one- half (2 1/2) times the Employee's "Cash Compensation" as defined above. 3. Parachute Payments. (a) Basic Rule. Anything in this Agreement to the contrary notwithstanding, in the event that any independent accounting firm of national reputation acting as the Company's regular auditors (the "Auditors") determines that any payment or distribution by the Company to or for the benefit of the Employee, whether paid or payable (or distributed or distributable) pursuant to the terms of this Agreement or otherwise (a "Payment"), would be non-deductible by the Company for federal income tax purposes by reason of Section 280G of the Internal Revenue Code of 1986, as amended (the "Code"), then the aggregate present value of the amounts payable or distributable to or for the benefit of the Employee pursuant to this Agreement or otherwise (the 6 7 "Agreement Payments") shall be reduced (but not below zero) to the Reduced Amount. For purposes of this Section 3, the "Reduced Amount" shall be the amount, expressed in present value, which is the maximum amount of the Agreement Payments which may be paid without causing any Payment to be non-deductible by the Company by reason of Section 280G of the Code. (b) Reduction of Payments. If the Auditors determine that any Payment would be non-deductible by the Company by reason of Section 280G of the code, then the Company shall give the Employee notice to that effect and a copy of the detailed calculation thereof and of the Reduced Amount not more than thirty-five (35) days following his termination, and the Employee may then elect, in his sole discretion, which and how much of the Agreement Payments shall be eliminated or reduced (provided that after such election the aggregate present value of the Agreement payments equals the Reduced Amount) and shall advise the Company in writing of his election within ten (10) days of his receipt of such notice. If no such election is made by the Employee within such 10-day period, then the Company may elect which and how much of the Agreement Payments shall be eliminated or reduced (as long as after such election the aggregate present value of the Agreement Payments equals the Reduced Amount) and shall notify the Employee promptly of such election. For purposes of this Section 3, present 7 8 value shall be determined in accordance with Section 280G(d)(4) of the Code and regulations thereunder. (c) Auditor's Determinations. All determinations made by the Auditors under this Section 3 shall be binding and conclusive upon the Company and the Employee and shall be made within thirty (30) days of the date of termination of employment. 4. Waiver of Invalidity. Inasmuch as the injury caused to Employee in the event Employee's employment is terminated within twenty-four (24) months of a Change in Control is difficult or incapable of accurate estimation at the date of this Agreement, the amounts to be paid pursuant to Sections 2 and 3 are intended to be liquidated damages and not a penalty, and therefore constitute a good faith forecast of the harm which might be expected to be caused to Employee. Accordingly, the Company waives any right to assert against Employee the invalidity of any payment provided in Sections 2 and 3 by reason of Employee's failure to seek other employment or otherwise, nor shall the amount of any payment provided in Sections 2 and 3 be reduced by reason of any compensation earned or not earned by Employee as a result of employment by another employer after the date of termination or otherwise. Notwithstanding the foregoing, should the foregoing provisions of this section be held unenforceable or void for any reason, Employee shall be required to mitigate or reduce the amount of any payments hereunder only 8 9 to the extent required by law to make such provisions valid and enforceable. 5. Arbitration of Disputes. Employee may submit to arbitration any claim for payment under this Agreement as follows: After the sixtieth day following the termination of Employee's employment with the Company, the claim may be filed in writing with an arbitrator of Employee's choice and thereafter the Company shall be notified in writing of the claim and furnished with a true copy as so filed. The arbitrator must be a member of the National Academy of Arbitrators or one who currently appears on arbitration panels issued by the American Arbitration Association. The arbitration hearing shall be held within ten (10) business days after the receipt of notice of the claim by the Company. No continuance of the hearing shall be allowed without the mutual consent of Employee and the Company. Absence from or non-participation at the hearing by either party shall not prevent the issuance of an award. Hearing procedures which will expedite the hearing may be ordered at the arbitrator's discretion. The arbitrator's award shall be rendered as expeditiously as possible. In the event the arbitrator finds that the Company has breached this Agreement, the arbitrator shall order the Company to pay to Employee, within twenty- four hours after the decision is rendered, the amount due hereunder. The award of the arbitrator shall be final and binding upon the parties. Judgment may be entered on the arbitrator's award in any appropriate court as soon as possible 9 10 after its rendition without further notice to the Company. The fee of the arbitrator, all necessary expenses of the hearing, and the expenses and attorney fees of the prevailing party (collectively "expenses") shall be paid by the losing party; provided, however, that if the arbitrator finds in favor of the Company but also finds that Employee's claim was made in good faith, then the arbitrator may require the Company to pay such expenses, except for Employee's legal fees and disbursements. Except as expressly provided herein, the arbitration shall be conducted in accordance with the rules then prevailing of the American Arbitration Association. 6. Miscellaneous. (a) Waiver. The failure of any party to exercise any rights hereunder or to enforce any of the terms or conditions of this Agreement on any occasion shall not constitute or be deemed a waiver of that party's rights thereafter to exercise any rights hereunder or to enforce each and every term and condition of this Agreement. (b) Binding Effect; Successors. (i) In the event of Employee's death or a judicial determination of his incompetence, Employee's rights under this Agreement shall inure to the benefit of Employee's heirs, beneficiaries or legal representatives, as the case may be. (ii) The Company's rights, duties and obligations under this Agreement shall be binding upon, and inure to the benefit of, the Company and any successor of the Company, 10 11 including, without limitation, any entity or entities acquiring directly or indirectly all or substantially all of the Company's assets or securities whether by merger, consolidation, sale or otherwise, and such successor shall thereafter be deemed the "Company" for all purposes of this Agreement; provided that such rights, duties and obligations shall not otherwise be assignable by the Company. (iii) Within thirty (30) days following a Change in Control, the Company (including any successor of the Company) shall in writing affirm to the Employee its obligations under this Agreement. (c) Governing Law. This Agreement shall be construed and enforced in accordance with the laws of the State of Delaware. (d) Authorization and Modification. This Agreement is executed for and on behalf of the Company by an officer thereof duly authorized to do so by resolution of the Board of Directors approving this Agreement and authorizing such execution. This Agreement shall not be varied, altered, modified, changed or in any way amended except by an instruction in writing executed by the parties hereto. (e) Assignment by Employee. Except as otherwise expressly provided for in this Agreement, no right, benefit or interest of Employee arising hereunder shall be subject to anticipation, alienation, sale, assignment, encumbrance, 11 12 charge, pledge, hypothecation or set-off in respect of any claim, debt or obligation or to execution, attachment, levy or similar process, or assignment by operation of law. Any attempt, voluntary or involuntary, to effect any action specified in the immediately preceding sentence shall, to the full extent permitted by law, be null, void and of no effect. (f) Notice. For the purposes of this Agreement, notices, demands and all other communications provided for in the Agreement shall be in writing and shall be deemed to have been duly given when hand delivered or (unless otherwise specified) mailed by United States registered mail, return receipt requested, postage prepaid, addressed as follows: If to the Employee: John Leavitt, at his then current permanent home address as shown on the Company's records If to the Company: Prime Hospitality Corp. 700 Route 46 East Fairfield, NJ 07007-2700 Attn: General Counsel or to such other address as any party may have furnished to the others in writing in accordance herewith, except that notices of change of address shall be effective only upon receipt. (g) Validity. The invalidity or unenforceability of any provision or provisions of this Agreement shall not affect the validity or enforceability of any other 12 13 provisions of this Agreement, which shall remain in full force and effect. (h) Taxes. The Company shall deduct from all amounts payable under this Agreement all federal, state, local and other taxes required by law to be withheld with respect to such payments. 7. Other Arrangements. Nothing contained in this Agreement shall adversely affect any of Employee's rights as a participant or beneficiary under the Company's pension and welfare benefit plans, incentive compensation arrangements and perquisite programs or the Employee's obligations arising under any confidentiality agreement with the Company. PRIME HOSPITALITY CORP. By /s/ DAVID A. SIMON ---------------------------- Name: DAVID A. SIMON, President Title: EMPLOYEE: /s/ JOHN LEAVITT ------------------------------- John Leavitt 13 EX-10.S 8 CHANGE OF CONTROL AGREEMENT, DENIS DRISCOLL & CO. 1 EXHIBIT 10(s) CHANGE IN CONTROL AGREEMENT This Agreement, dated this 15 day of February, 1995, is between Prime Hospitality Corp., a Delaware corporation (the "Company") and Denis Driscoll ("Employee"). R E C I T A L S: A. Employee is a key officer and employee of the Company. B. The Board of Directors of the Company (the "Board") recognizes that Employee is one of several key officer/employees whose high quality of job performance is essential to promoting and protecting the best interests of the Company and its shareholders. C. The Board further recognizes (i) that it is possible that a Change in Control of the Company could occur at some time in the future, (ii) that the uncertainty associated with such a possibility could result in the distraction of Employee from the Employee's assigned duties and responsibilities, (iii) that it is in the best interests of the Company and its shareholders to assure the continued attention by Employee to such duties and responsibilities without such distraction and (iv) that Employee must be able to participate in the assessment and evaluation of any proposal which could effect a Change in Control of the Company without the Employee's judgment being influenced by uncertainties regarding Employee's future financial security. 2 D. The Company wishes to provide Employee with certain benefits in the event of a Change in Control of the Company as set forth herein. TERMS AND CONDITIONS For valuable consideration, the receipt of which is hereby acknowledged, the parties agree as follows: 1. Definitions. (a) For purposes of this Agreement, the Company shall have "Cause" to terminate the Employee's employment hereunder upon (A) the willful and continued failure by the Employee to substantially perform his duties hereunder (other than any such failure resulting from the Employee's incapacity due to physical or mental illness), (B) the engaging by the Employee in willful misconduct which is demonstrably and materially injurious to the Company, monetarily or otherwise, or (C) the conviction of the Employee of a felony involving moral turpitude. For purposes of this paragraph, no act, or failure to act, on the Employee's part shall be considered "willful" unless done, or omitted to be done, by him not in good faith and without reasonable belief that his action or omission was in the best interest of the Company. The Employee shall not be deemed to have been terminated for Cause unless the Company shall have given or delivered to the Employee (i) reasonable notice setting forth the reasons for the Company's intention to terminate for Cause, (ii) an opportunity for the Employee 2 3 to cure any such breach within thirty (30) days after receipt of such notice, (iii) an opportunity for the Employee, together with his counsel, to be heard before the Board, and (iv) a written notice of termination stating that, in the good faith opinion of not less than a majority of the entire membership of the Board, the Employee was guilty of conduct set forth above in clauses (A), (B) or (C) of the second preceding sentence, and specifying the particulars thereof in detail. (b) A "Change in Control" of the Company shall be considered to occur if and when: (i) more than 30% of the Company's outstanding securities entitled to vote in elections of directors are acquired by any person, entity or group (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934); or (ii) the Board determines, by a vote of a majority of its entire membership, that a tender offer statement filed by any person, entity or group (as so defined) with the Securities and Exchange Commission indicates an intention on the part of such person, entity or group to acquire control of the Company; or (iii) the Company's shareholders approve the sale of (or agreement to sell or grant of a right or option to purchase as to) all or substantially all of the assets of the Company, to any person, entity or 3 4 group (as so defined) unless such sale or other transaction shall have been affirmatively recommended to the Company's shareholders by not less than two-thirds of the Board; or (iv) during any period of two consecutive years, the individuals who, at the beginning of such period, constitute the Board cease for any reason to constitute at least a majority thereof, provided, however, that a director who was not a director at the beginning of such period shall be deemed to have satisfied the two-year requirement if such director was elected by, on the recommendation of, or with the approval of, at least two-thirds of the directors who were directors at the beginning of such period (either actually or by prior operation of this Section 1(b)(iv); or (v) such other events as the Board may designate. (c) "Good Reason" shall mean the occurrence of any of the following, without Employee's consent, after a Change in Control: (i) a material reduction or adverse alteration in the duties, authorities or responsibilities of Employee's position; 4 5 (ii) a reduction in Employee's annual base salary, bonus or other compensation arrangements provided by the Company; (iii) the relocation of the Employee's place of employment by more than twenty miles; or (iv) a material reduction in or the discontinuance of the perquisites or benefits provided by the Company to Employee. (d) The term "Cash Compensation" shall mean, during any fiscal year of the Company, the Employee's aggregate cash compensation earned as an employee of the Company during the immediately preceding fiscal year (including any bonus earned but not paid by fiscal year-end). If Employee was employed by the Company for only a portion of the preceding fiscal year, "Cash Compensation" shall mean his annualized aggregate cash compensation for such year, which shall be determined based on the aggregate cash compensation earned during the portion of such year that Employee was employed. 2. Change in Control. (a) Options. In the event of a Change in Control of the Company, all stock options granted to Employee under the Company's 1992 Stock Option Plan and 1992 Performance Incentive Plan (the "Plans") shall become immediately vested and exercisable, notwithstanding any vesting schedule previously applicable to such stock options; provided, 5 6 however, that the provisions of this Section 2(a) shall not be effective until the respective committees charged with administration of each Plan have taken action to ratify the provisions of this Section 2(a). (b) Cash Payment. If, within twenty-four (24) months following a Change in Control of the Company, the Company terminates the Employee's employment without Cause, or the Employee terminates his or her employment with the Company for Good Reason, then the Company shall, within sixty (60) days of such termination of employment, pay to the Employee an amount equal to two and one- half (2 1/2) times the Employee's "Cash Compensation" as defined above. 3. Parachute Payments. (a) Basic Rule. Anything in this Agreement to the contrary notwithstanding, in the event that any independent accounting firm of national reputation acting as the Company's regular auditors (the "Auditors") determines that any payment or distribution by the Company to or for the benefit of the Employee, whether paid or payable (or distributed or distributable) pursuant to the terms of this Agreement or otherwise (a "Payment"), would be non-deductible by the Company for federal income tax purposes by reason of Section 280G of the Internal Revenue Code of 1986, as amended (the "Code"), then the aggregate present value of the amounts payable or distributable to or for the benefit of the Employee pursuant to this Agreement or otherwise (the 6 7 "Agreement Payments") shall be reduced (but not below zero) to the Reduced Amount. For purposes of this Section 3, the "Reduced Amount" shall be the amount, expressed in present value, which is the maximum amount of the Agreement Payments which may be paid without causing any Payment to be non-deductible by the Company by reason of Section 280G of the Code. (b) Reduction of Payments. If the Auditors determine that any Payment would be non-deductible by the Company by reason of Section 280G of the Code, then the Company shall give the Employee notice to that effect and a copy of the detailed calculation thereof and of the Reduced Amount not more than thirty-five (35) days following his termination, and the Employee may then elect, in his sole discretion, which and how much of the Agreement Payments shall be eliminated or reduced (provided that after such election the aggregate present value of the Agreement payments equals the Reduced Amount) and shall advise the Company in writing of his election within ten (10) days of his receipt of such notice. If no such election is made by the Employee within such 10-day period, then the Company may elect which and how much of the Agreement Payments shall be eliminated or reduced (as long as after such election the aggregate present value of the Agreement Payments equals the Reduced Amount) and shall notify the Employee promptly of such election. For purposes of this Section 3, present 7 8 value shall be determined in accordance with Section 280G(d)(4) of the Code and regulations thereunder. (c) Auditor's Determinations. All determinations made by the Auditors under this Section 3 shall be binding and conclusive upon the Company and the Employee and shall be made within thirty (30) days of the date of termination of employment. 4. Waiver of Invalidity. Inasmuch as the injury caused to Employee in the event Employee's employment is terminated within twenty-four (24) months of a Change in Control is difficult or incapable of accurate estimation at the date of this Agreement, the amounts to be paid pursuant to Sections 2 and 3 are intended to be liquidated damages and not a penalty, and therefore constitute a good faith forecast of the harm which might be expected to be caused to Employee. Accordingly, the Company waives any right to assert against Employee the invalidity of any payment provided in Sections 2 and 3 by reason of Employee's failure to seek other employment or otherwise, nor shall the amount of any payment provided in Sections 2 and 3 be reduced by reason of any compensation earned or not earned by Employee as a result of employment by another employer after the date of termination or otherwise. Notwithstanding the foregoing, should the foregoing provisions of this section be held unenforceable or void for any reason, Employee shall be required to mitigate or reduce the amount of any payments hereunder only 8 9 to the extent required by law to make such provisions valid and enforceable. 5. Arbitration of Disputes. Employee may submit to arbitration any claim for payment under this Agreement as follows: After the sixtieth day following the termination of Employee's employment with the Company, the claim may be filed in writing with an arbitrator of Employee's choice and thereafter the Company shall be notified in writing of the claim and furnished with a true copy as so filed. The arbitrator must be a member of the National Academy of Arbitrators or one who currently appears on arbitration panels issued by the American Arbitration Association. The arbitration hearing shall be held within ten (10) business days after the receipt of notice of the claim by the Company. No continuance of the hearing shall be allowed without the mutual consent of Employee and the Company. Absence from or non-participation at the hearing by either party shall not prevent the issuance of an award. Hearing procedures which will expedite the hearing may be ordered at the arbitrator's discretion. The arbitrator's award shall be rendered as expeditiously as possible. In the event the arbitrator finds that the Company has breached this Agreement, the arbitrator shall order the Company to pay to Employee, within twenty- four hours after the decision is rendered, the amount due hereunder. The award of the arbitrator shall be final and binding upon the parties. Judgment may be entered on the arbitrator's award in any appropriate court as soon as possible 9 10 after its rendition without further notice to the Company. The fee of the arbitrator, all necessary expenses of the hearing, and the expenses and attorney fees of the prevailing party (collectively "expenses") shall be paid by the losing party; provided, however, that if the arbitrator finds in favor of the Company but also finds that Employee's claim was made in good faith, then the arbitrator may require the Company to pay such expenses, except for Employee's legal fees and disbursements. Except as expressly provided herein, the arbitration shall be conducted in accordance with the rules then prevailing of the American Arbitration Association. 6. Miscellaneous. (a) Waiver. The failure of any party to exercise any rights hereunder or to enforce any of the terms or conditions of this Agreement on any occasion shall not constitute or be deemed a waiver of that party's rights thereafter to exercise any rights hereunder or to enforce each and every term and condition of this Agreement. (b) Binding Effect; Successors. (i) In the event of Employee's death or a judicial determination of his incompetence, Employee's rights under this Agreement shall inure to the benefit of Employee's heirs, beneficiaries or legal representatives, as the case may be. (ii) The Company's rights, duties and obligations under this Agreement shall be binding upon, and inure to the benefit of, the Company and any successor of the Company, 10 11 including, without limitation, any entity or entities acquiring directly or indirectly all or substantially all of the Company's assets or securities whether by merger, consolidation, sale or otherwise, and such successor shall thereafter be deemed the "Company" for all purposes of this Agreement; provided that such rights, duties and obligations shall not otherwise be assignable by the Company. (iii) Within thirty (30) days following a Change in Control, the Company (including any successor of the Company) shall in writing affirm to the Employee its obligations under this Agreement. (c) Governing Law. This Agreement shall be construed and enforced in accordance with the laws of the State of Delaware. (d) Authorization and Modification. This Agreement is executed for and on behalf of the Company by an officer thereof duly authorized to do so by resolution of the Board of Directors approving this Agreement and authorizing such execution. This Agreement shall not be varied, altered, modified, changed or in any way amended except by an instruction in writing executed by the parties hereto. (e) Assignment by Employee. Except as otherwise expressly provided for in this Agreement, no right, benefit or interest of Employee arising hereunder shall be subject to anticipation, alienation, sale, assignment, encumbrance, 11 12 charge, pledge, hypothecation or set-off in respect of any claim, debt or obligation or to execution, attachment, levy or similar process, or assignment by operation of law. Any attempt, voluntary or involuntary, to effect any action specified in the immediately preceding sentence shall, to the full extent permitted by law, be null, void and of no effect. (f) Notice. For the purposes of this Agreement, notices, demands and all other communications provided for in the Agreement shall be in writing and shall be deemed to have been duly given when hand delivered or (unless otherwise specified) mailed by United States registered mail, return receipt requested, postage prepaid, addressed as follows: If to the Employee: Denis Driscoll, at his then current permanent home address as shown on the Company's records If to the Company: Prime Hospitality Corp. 700 Route 46 East Fairfield, NJ 07007-2700 Attn: General Counsel or to such other address as any party may have furnished to the others in writing in accordance herewith, except that notices of change of address shall be effective only upon receipt. (g) Validity. The invalidity or unenforceability of any provision or provisions of this Agreement shall not affect the validity or enforceability of any other 12 13 provisions of this Agreement, which shall remain in full force and effect. (h) Taxes. The Company shall deduct from all amounts payable under this Agreement all federal, state, local and other taxes required by law to be withheld with respect to such payments. 7. Other Arrangements. Nothing contained in this Agreement shall adversely affect any of Employee's rights as a participant or beneficiary under the Company's pension and welfare benefit plans, incentive compensation arrangements and perquisite programs or the Employee's obligations arising under any confidentiality agreement with the Company. PRIME HOSPITALITY CORP. By /s/ DAVID A. SIMON -------------------------- Name: Title: EMPLOYEE: /s/ DENIS DRISCOLL ------------------------------ Denis Driscoll 13 EX-10.T 9 CHANGE OF CONTROL AGREEMENT, TIMOTHY E. AHO & CO. 1 EXHIBIT 10(t) CHANGE IN CONTROL AGREEMENT This Agreement, dated this 15th day of February, 1995, is between Prime Hospitality Corp., a Delaware corporation (the "Company") and Timothy E. Aho ("Employee"). R E C I T A L S: A. Employee is a key officer and employee of the Company. B. The Board of Directors of the Company (the "Board") recognizes that Employee is one of several key officer/employees whose high quality of job performance is essential to promoting and protecting the best interests of the Company and its shareholders. C. The Board further recognizes (i) that it is possible that a Change in Control of the Company could occur at some time in the future, (ii) that the uncertainty associated with such a possibility could result in the distraction of Employee from the Employee's assigned duties and responsibilities, (iii) that it is in the best interests of the Company and its shareholders to assure the continued attention by Employee to such duties and responsibilities without such distraction and (iv) that Employee must be able to participate in the assessment and evaluation of any proposal which could effect a Change in Control of the Company without the Employee's judgment being influenced by uncertainties regarding Employee's future financial security. 2 D. The Company wishes to provide Employee with certain benefits in the event of a Change in Control of the Company as set forth herein. TERMS AND CONDITIONS For valuable consideration, the receipt of which is hereby acknowledged, the parties agree as follows: 1. Definitions. (a) For purposes of this Agreement, the Company shall have "Cause" to terminate the Employee's employment hereunder upon (A) the willful and continued failure by the Employee to substantially perform his duties hereunder (other than any such failure resulting from the Employee's incapacity due to physical or mental illness), (B) the engaging by the Employee in willful misconduct which is demonstrably and materially injurious to the Company, monetarily or otherwise, or (C) the conviction of the Employee of a felony involving moral turpitude. For purposes of this paragraph, no act, or failure to act, on the Employee's part shall be considered "willful" unless done, or omitted to be done, by him not in good faith and without reasonable belief that his action or omission was in the best interest of the Company. The Employee shall not be deemed to have been terminated for Cause unless the Company shall have given or delivered to the Employee (i) reasonable notice setting forth the reasons for the Company's intention to terminate for Cause, (ii) an opportunity for the Employee 2 3 to cure any such breach within thirty (30) days after receipt of such notice, (iii) an opportunity for the Employee, together with his counsel, to be heard before the Board, and (iv) a written notice of termination stating that, in the good faith opinion of not less than a majority of the entire membership of the Board, the Employee was guilty of conduct set forth above in clauses (A), (B) or (C) of the second preceding sentence, and specifying the particulars thereof in detail. (b) A "Change in Control" of the Company shall be considered to occur if and when: (i) more than 30% of the Company's outstanding securities entitled to vote in elections of directors are acquired by any person, entity or group (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934); or (ii) the Board determines, by a vote of a majority of its entire membership, that a tender offer statement filed by any person, entity or group (as so defined) with the Securities and Exchange Commission indicates an intention on the part of such person, entity or group to acquire control of the Company; or (iii) the Company's shareholders approve the sale of (or agreement to sell or grant of a right or option to purchase as to) all or substantially all of the assets of the Company, to any person, entity or 3 4 group (as so defined) unless such sale or other transaction shall have been affirmatively recommended to the Company's shareholders by not less than two-thirds of the Board; or (iv) during any period of two consecutive years, the individuals who, at the beginning of such period, constitute the Board cease for any reason to constitute at least a majority thereof, provided, however, that a director who was not a director at the beginning of such period shall be deemed to have satisfied the two-year requirement if such director was elected by, on the recommendation of, or with the approval of, at least two-thirds of the directors who were directors at the beginning of such period (either actually or by prior operation of this Section 1(b)(iv); or (v) such other events as the Board may designate. (c) "Good Reason" shall mean the occurrence of any of the following, without Employee's consent, after a Change in Control: (i) a material reduction or adverse alteration in the duties, authorities or responsibilities of Employee's position; 4 5 (ii) a reduction in Employee's annual base salary, bonus or other compensation arrangements provided by the Company; (iii) the relocation of the Employee's place of employment by more than twenty miles; or (iv) a material reduction in or the discontinuance of the perquisites or benefits provided by the Company to Employee. (d) The term "Cash Compensation" shall mean, during any fiscal year of the Company, the Employee's aggregate cash compensation earned as an employee of the Company during the immediately preceding fiscal year (including any bonus earned but not paid by fiscal year-end). If Employee was employed by the Company for only a portion of the preceding fiscal year, "Cash Compensation" shall mean his annualized aggregate cash compensation for such year, which shall be determined based on the aggregate cash compensation earned during the portion of such year that Employee was employed. 2. Change in Control. (a) Options. In the event of a Change in Control of the Company, all stock options granted to Employee under the Company's 1992 Stock Option Plan and 1992 Performance Incentive Plan (the "Plans") shall become immediately vested and exercisable, notwithstanding any vesting schedule previously applicable to such stock options; provided, 5 6 however, that the provisions of this Section 2(a) shall not be effective until the respective committees charged with administration of each Plan have taken action to ratify the provisions of this Section 2(a). (b) Cash Payment. If, within twenty-four (24) months following a Change in Control of the Company, the Company terminates the Employee's employment without Cause, or the Employee terminates his or her employment with the Company for Good Reason, then the Company shall, within sixty (60) days of such termination of employment, pay to the Employee an amount equal to two and one- half (2 1/2) times the Employee's "Cash Compensation" as defined above. 3. Parachute Payments. (a) Basic Rule. Anything in this Agreement to the contrary notwithstanding, in the event that any independent accounting firm of national reputation acting as the Company's regular auditors (the "Auditors") determines that any payment or distribution by the Company to or for the benefit of the Employee, whether paid or payable (or distributed or distributable) pursuant to the terms of this Agreement or otherwise (a "Payment"), would be non-deductible by the Company for federal income tax purposes by reason of Section 280G of the Internal Revenue Code of 1986, as amended (the "Code"), then the aggregate present value of the amounts payable or distributable to or for the benefit of the Employee pursuant to this Agreement or otherwise (the 6 7 "Agreement Payments") shall be reduced (but not below zero) to the Reduced Amount. For purposes of this Section 3, the "Reduced Amount" shall be the amount, expressed in present value, which is the maximum amount of the Agreement Payments which may be paid without causing any Payment to be non-deductible by the Company by reason of Section 280G of the Code. (b) Reduction of Payments. If the Auditors determine that any Payment would be non-deductible by the Company by reason of Section 280G of the code, then the Company shall give the Employee notice to that effect and a copy of the detailed calculation thereof and of the Reduced Amount not more than thirty-five (35) days following his termination, and the Employee may then elect, in his sole discretion, which and how much of the Agreement Payments shall be eliminated or reduced (provided that after such election the aggregate present value of the Agreement payments equals the Reduced Amount) and shall advise the Company in writing of his election within ten (10) days of his receipt of such notice. If no such election is made by the Employee within such 10-day period, then the Company may elect which and how much of the Agreement Payments shall be eliminated or reduced (as long as after such election the aggregate present value of the Agreement Payments equals the Reduced Amount) and shall notify the Employee promptly of such election. For purposes of this Section 3, present 7 8 value shall be determined in accordance with Section 280G(d)(4) of the Code and regulations thereunder. (c) Auditor's Determinations. All determinations made by the Auditors under this Section 3 shall be binding and conclusive upon the Company and the Employee and shall be made within thirty (30) days of the date of termination of employment. 4. Waiver of Invalidity. Inasmuch as the injury caused to Employee in the event Employee's employment is terminated within twenty-four (24) months of a Change in Control is difficult or incapable of accurate estimation at the date of this Agreement, the amounts to be paid pursuant to Sections 2 and 3 are intended to be liquidated damages and not a penalty, and therefore constitute a good faith forecast of the harm which might be expected to be caused to Employee. Accordingly, the Company waives any right to assert against Employee the invalidity of any payment provided in Sections 2 and 3 by reason of Employee's failure to seek other employment or otherwise, nor shall the amount of any payment provided in Sections 2 and 3 be reduced by reason of any compensation earned or not earned by Employee as a result of employment by another employer after the date of termination or otherwise. Notwithstanding the foregoing, should the foregoing provisions of this section be held unenforceable or void for any reason, Employee shall be required to mitigate or reduce the amount of any payments hereunder only 8 9 to the extent required by law to make such provisions valid and enforceable. 5. Arbitration of Disputes. Employee may submit to arbitration any claim for payment under this Agreement as follows: After the sixtieth day following the termination of Employee's employment with the Company, the claim may be filed in writing with an arbitrator of Employee's choice and thereafter the Company shall be notified in writing of the claim and furnished with a true copy as so filed. The arbitrator must be a member of the National Academy of Arbitrators or one who currently appears on arbitration panels issued by the American Arbitration Association. The arbitration hearing shall be held within ten (10) business days after the receipt of notice of the claim by the Company. No continuance of the hearing shall be allowed without the mutual consent of Employee and the Company. Absence from or non-participation at the hearing by either party shall not prevent the issuance of an award. Hearing procedures which will expedite the hearing may be ordered at the arbitrator's discretion. The arbitrator's award shall be rendered as expeditiously as possible. In the event the arbitrator finds that the Company has breached this Agreement, the arbitrator shall order the Company to pay to Employee, within twenty-four hours after the decision is rendered, the amount due hereunder. The award of the arbitrator shall be final and binding upon the parties. Judgment may be entered on the arbitrator's award in any appropriate court as soon as possible 9 10 after its rendition without further notice to the Company. The fee of the arbitrator, all necessary expenses of the hearing, and the expenses and attorney fees of the prevailing party (collectively "expenses") shall be paid by the losing party; provided, however, that if the arbitrator finds in favor of the Company but also finds that Employee's claim was made in good faith, then the arbitrator may require the Company to pay such expenses, except for Employee's legal fees and disbursements. Except as expressly provided herein, the arbitration shall be conducted in accordance with the rules then prevailing of the American Arbitration Association. 6. Miscellaneous. (a) Waiver. The failure of any party to exercise any rights hereunder or to enforce any of the terms or conditions of this Agreement on any occasion shall not constitute or be deemed a waiver of that party's rights thereafter to exercise any rights hereunder or to enforce each and every term and condition of this Agreement. (b) Binding Effect; Successors. (i) In the event of Employee's death or a judicial determination of his incompetence, Employee's rights under this Agreement shall inure to the benefit of Employee's heirs, beneficiaries or legal representatives, as the case may be. (ii) The Company's rights, duties and obligations under this Agreement shall be binding upon, and inure to the benefit of, the Company and any successor of the Company, 10 11 including, without limitation, any entity or entities acquiring directly or indirectly all or substantially all of the Company's assets or securities whether by merger, consolidation, sale or otherwise, and such successor shall thereafter be deemed the "Company" for all purposes of this Agreement; provided that such rights, duties and obligations shall not otherwise be assignable by the Company. (iii) Within thirty (30) days following a Change in Control, the Company (including any successor of the Company) shall in writing affirm to the Employee its obligations under this Agreement. (c) Governing Law. This Agreement shall be construed and enforced in accordance with the laws of the State of Delaware. (d) Authorization and Modification. This Agreement is executed for and on behalf of the Company by an officer thereof duly authorized to do so by resolution of the Board of Directors approving this Agreement and authorizing such execution. This Agreement shall not be varied, altered, modified, changed or in any way amended except by an instruction in writing executed by the parties hereto. (e) Assignment by Employee. Except as otherwise expressly provided for in this Agreement, no right, benefit or interest of Employee arising hereunder shall be subject to anticipation, alienation, sale, assignment, encumbrance, 11 12 charge, pledge, hypothecation or set-off in respect of any claim, debt or obligation or to execution, attachment, levy or similar process, or assignment by operation of law. Any attempt, voluntary or involuntary, to effect any action specified in the immediately preceding sentence shall, to the full extent permitted by law, be null, void and of no effect. (f) Notice. For the purposes of this Agreement, notices, demands and all other communications provided for in the Agreement shall be in writing and shall be deemed to have been duly given when hand delivered or (unless otherwise specified) mailed by United States registered mail, return receipt requested, postage prepaid, addressed as follows: If to the Employee: Timothy E. Aho, at his then current permanent home address as shown on the Company's records If to the Company: Prime Hospitality Corp. 700 Route 46 East Fairfield, NJ 07007-2700 Attn: General Counsel or to such other address as any party may have furnished to the others in writing in accordance herewith, except that notices of change of address shall be effective only upon receipt. (g) Validity. The invalidity or unenforceability of any provision or provisions of this Agreement shall not affect the validity or enforceability of any other 12 13 provisions of this Agreement, which shall remain in full force and effect. (h) Taxes. The Company shall deduct from all amounts payable under this Agreement all federal, state, local and other taxes required by law to be withheld with respect to such payments. 7. Other Arrangements. Nothing contained in this Agreement shall adversely affect any of Employee's rights as a participant or beneficiary under the Company's pension and welfare benefit plans, incentive compensation arrangements and perquisite programs or the Employee's obligations arising under any confidentiality agreement with the Company. PRIME HOSPITALITY CORP. By /s/ DAVID A. SIMON --------------------- Name: Title: EMPLOYEE /s/ TIMOTHY E. AHO ------------------------ Timothy E. Aho 13 EX-10.U 10 CHANGE OF CONTROL AGREEMENT, JOSEPH BERNADINO & CO 1 EXHIBIT 10(U) CHANGE IN CONTROL AGREEMENT This Agreement, dated this 15th day of February, 1995, is between Prime Hospitality Corp., a Delaware corporation (the "Company") and Joseph Bernadino ("Employee"). R E C I T A L S: A. Employee is a key officer and employee of the Company. B. The Board of Directors of the Company (the "Board") recognizes that Employee is one of several key officer/employees whose high quality of job performance is essential to promoting and protecting the best interests of the Company and its shareholders. C. The Board further recognizes (i) that it is possible that a Change in Control of the Company could occur at some time in the future, (ii) that the uncertainty associated with such a possibility could result in the distraction of Employee from the Employee's assigned duties and responsibilities, (iii) that it is in the best interests of the Company and its shareholders to assure the continued attention by Employee to such duties and responsibilities without such distraction and (iv) that Employee must be able to participate in the assessment and evaluation of any proposal which could effect a Change in Control of the Company without the Employee's judgment being influenced by uncertainties regarding Employee's future financial security. 2 D. The Company wishes to provide Employee with certain benefits in the event of a Change in Control of the Company as set forth herein. TERMS AND CONDITIONS For valuable consideration, the receipt of which is hereby acknowledged, the parties agree as follows: 1. Definitions. (a) For purposes of this Agreement, the Company shall have "Cause" to terminate the Employee's employment hereunder upon (A) the willful and continued failure by the Employee to substantially perform his duties hereunder (other than any such failure resulting from the Employee's incapacity due to physical or mental illness), (B) the engaging by the Employee in willful misconduct which is demonstrably and materially injurious to the Company, monetarily or otherwise, or (C) the conviction of the Employee of a felony involving moral turpitude. For purposes of this paragraph, no act, or failure to act, on the Employee's part shall be considered "willful" unless done, or omitted to be done, by him not in good faith and without reasonable belief that his action or omission was in the best interest of the Company. The Employee shall not be deemed to have been terminated for Cause unless the Company shall have given or delivered to the Employee (i) reasonable notice setting forth the reasons for the Company's intention to terminate for Cause, (ii) an opportunity for the Employee 2 3 to cure any such breach within thirty (30) days after receipt of such notice, (iii) an opportunity for the Employee, together with his counsel, to be heard before the Board, and (iv) a written notice of termination stating that, in the good faith opinion of not less than a majority of the entire membership of the Board, the Employee was guilty of conduct set forth above in clauses (A), (B) or (C) of the second preceding sentence, and specifying the particulars thereof in detail. (b) A "Change in Control" of the Company shall be considered to occur if and when: (i) more than 30% of the Company's outstanding securities entitled to vote in elections of directors are acquired by any person, entity or group (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934); or (ii) the Board determines, by a vote of a majority of its entire membership, that a tender offer statement filed by any person, entity or group (as so defined) with the Securities and Exchange Commission indicates an intention on the part of such person, entity or group to acquire control of the Company; or (iii) the Company's shareholders approve the sale of (or agreement to sell or grant of a right or option to purchase as to) all or substantially all of the assets of the Company, to any person, entity or 3 4 group (as so defined) unless such sale or other transaction shall have been affirmatively recommended to the Company's shareholders by not less than two-thirds of the Board; or (iv) during any period of two consecutive years, the individuals who, at the beginning of such period, constitute the Board cease for any reason to constitute at least a majority thereof, provided, however, that a director who was not a director at the beginning of such period shall be deemed to have satisfied the two-year requirement if such director was elected by, on the recommendation of, or with the approval of, at least two-thirds of the directors who were directors at the beginning of such period (either actually or by prior operation of this Section 1(b)(iv); or (v) such other events as the Board may designate. (c) "Good Reason" shall mean the occurrence of any of the following, without Employee's consent, after a Change in Control: (i) a material reduction or adverse alteration in the duties, authorities or responsibilities of Employee's position; 4 5 (ii) a reduction in Employee's annual base salary, bonus or other compensation arrangements provided by the Company; (iii) the relocation of the Employee's place of employment by more than twenty miles; or (iv) a material reduction in or the discontinuance of the perquisites or benefits provided by the Company to Employee. (d) The term "Cash Compensation" shall mean, during any fiscal year of the Company, the Employee's aggregate cash compensation earned as an employee of the Company during the immediately preceding fiscal year (including any bonus earned but not paid by fiscal year-end). If Employee was employed by the Company for only a portion of the preceding fiscal year, "Cash Compensation" shall mean his annualized aggregate cash compensation for such year, which shall be determined based on the aggregate cash compensation earned during the portion of such year that Employee was employed. 2. Change in Control. (a) Options. In the event of a Change in Control of the Company, all stock options granted to Employee under the Company's 1992 Stock Option Plan and 1992 Performance Incentive Plan (the "Plans") shall become immediately vested and exercisable, notwithstanding any vesting schedule previously applicable to such stock options; provided, 5 6 however, that the provisions of this Section 2(a) shall not be effective until the respective committees charged with administration of each Plan have taken action to ratify the provisions of this Section 2(a). (b) Cash Payment. If, within twenty-four (24) months following a Change in Control of the Company, the Company terminates the Employee's employment without Cause, or the Employee terminates his or her employment with the Company for Good Reason, then the Company shall, within sixty (60) days of such termination of employment, pay to the Employee an amount equal to two and one- half (2 1/2) times the Employee's "Cash Compensation" as defined above. 3. Parachute Payments. (a) Basic Rule. Anything in this Agreement to the contrary notwithstanding, in the event that any independent accounting firm of national reputation acting as the Company's regular auditors (the "Auditors") determines that any payment or distribution by the Company to or for the benefit of the Employee, whether paid or payable (or distributed or distributable) pursuant to the terms of this Agreement or otherwise (a "Payment"), would be non-deductible by the Company for federal income tax purposes by reason of Section 280G of the Internal Revenue Code of 1986, as amended (the "Code"), then the aggregate present value of the amounts payable or distributable to or for the benefit of the Employee pursuant to this Agreement or otherwise (the 6 7 "Agreement Payments") shall be reduced (but not below zero) to the Reduced Amount. For purposes of this Section 3, the "Reduced Amount" shall be the amount, expressed in present value, which is the maximum amount of the Agreement Payments which may be paid without causing any Payment to be non-deductible by the Company by reason of Section 280G of the Code. (b) Reduction of Payments. If the Auditors determine that any Payment would be non-deductible by the Company by reason of Section 280G of the code, then the Company shall give the Employee notice to that effect and a copy of the detailed calculation thereof and of the Reduced Amount not more than thirty-five (35) days following his termination, and the Employee may then elect, in his sole discretion, which and how much of the Agreement Payments shall be eliminated or reduced (provided that after such election the aggregate present value of the Agreement payments equals the Reduced Amount) and shall advise the Company in writing of his election within ten (10) days of his receipt of such notice. If no such election is made by the Employee within such 10-day period, then the Company may elect which and how much of the Agreement Payments shall be eliminated or reduced (as long as after such election the aggregate present value of the Agreement Payments equals the Reduced Amount) and shall notify the Employee promptly of such election. For purposes of this Section 3, present 7 8 value shall be determined in accordance with Section 280G(d)(4) of the Code and regulations thereunder. (c) Auditor's Determinations. All determinations made by the Auditors under this Section 3 shall be binding and conclusive upon the Company and the Employee and shall be made within thirty (30) days of the date of termination of employment. 4. Waiver of Invalidity. Inasmuch as the injury caused to Employee in the event Employee's employment is terminated within twenty-four (24) months of a Change in Control is difficult or incapable of accurate estimation at the date of this Agreement, the amounts to be paid pursuant to Sections 2 and 3 are intended to be liquidated damages and not a penalty, and therefore constitute a good faith forecast of the harm which might be expected to be caused to Employee. Accordingly, the Company waives any right to assert against Employee the invalidity of any payment provided in Sections 2 and 3 by reason of Employee's failure to seek other employment or otherwise, nor shall the amount of any payment provided in Sections 2 and 3 be reduced by reason of any compensation earned or not earned by Employee as a result of employment by another employer after the date of termination or otherwise. Notwithstanding the foregoing, should the foregoing provisions of this section be held unenforceable or void for any reason, Employee shall be required to mitigate or reduce the amount of any payments hereunder only 8 9 to the extent required by law to make such provisions valid and enforceable. 5. Arbitration of Disputes. Employee may submit to arbitration any claim for payment under this Agreement as follows: After the sixtieth day following the termination of Employee's employment with the Company, the claim may be filed in writing with an arbitrator of Employee's choice and thereafter the Company shall be notified in writing of the claim and furnished with a true copy as so filed. The arbitrator must be a member of the National Academy of Arbitrators or one who currently appears on arbitration panels issued by the American Arbitration Association. The arbitration hearing shall be held within ten (10) business days after the receipt of notice of the claim by the Company. No continuance of the hearing shall be allowed without the mutual consent of Employee and the Company. Absence from or non-participation at the hearing by either party shall not prevent the issuance of an award. Hearing procedures which will expedite the hearing may be ordered at the arbitrator's discretion. The arbitrator's award shall be rendered as expeditiously as possible. In the event the arbitrator finds that the Company has breached this Agreement, the arbitrator shall order the Company to pay to Employee, within twenty- four hours after the decision is rendered, the amount due hereunder. The award of the arbitrator shall be final and binding upon the parties. Judgment may be entered on the arbitrator's award in any appropriate court as soon as possible 9 10 after its rendition without further notice to the Company. The fee of the arbitrator, all necessary expenses of the hearing, and the expenses and attorney fees of the prevailing party (collectively "expenses") shall be paid by the losing party; provided, however, that if the arbitrator finds in favor of the Company but also finds that Employee's claim was made in good faith, then the arbitrator may require the Company to pay such expenses, except for Employee's legal fees and disbursements. Except as expressly provided herein, the arbitration shall be conducted in accordance with the rules then prevailing of the American Arbitration Association. 6. Miscellaneous. (a) Waiver. The failure of any party to exercise any rights hereunder or to enforce any of the terms or conditions of this Agreement on any occasion shall not constitute or be deemed a waiver of that party's rights thereafter to exercise any rights hereunder or to enforce each and every term and condition of this Agreement. (b) Binding Effect; Successors. (i) In the event of Employee's death or a judicial determination of his incompetence, Employee's rights under this Agreement shall inure to the benefit of Employee's heirs, beneficiaries or legal representatives, as the case may be. (ii) The Company's rights, duties and obligations under this Agreement shall be binding upon, and inure to the benefit of, the Company and any successor of the Company, 10 11 including, without limitation, any entity or entities acquiring directly or indirectly all or substantially all of the Company's assets or securities whether by merger, consolidation, sale or otherwise, and such successor shall thereafter be deemed the "Company" for all purposes of this Agreement; provided that such rights, duties and obligations shall not otherwise be assignable by the Company. (iii) Within thirty (30) days following a Change in Control, the Company (including any successor of the Company) shall in writing affirm to the Employee its obligations under this Agreement. (c) Governing Law. This Agreement shall be construed and enforced in accordance with the laws of the State of Delaware. (d) Authorization and Modification. This Agreement is executed for and on behalf of the Company by an officer thereof duly authorized to do so by resolution of the Board of Directors approving this Agreement and authorizing such execution. This Agreement shall not be varied, altered, modified, changed or in any way amended except by an instruction in writing executed by the parties hereto. (e) Assignment by Employee. Except as otherwise expressly provided for in this Agreement, no right, benefit or interest of Employee arising hereunder shall be subject to anticipation, alienation, sale, assignment, encumbrance, 11 12 charge, pledge, hypothecation or set-off in respect of any claim, debt or obligation or to execution, attachment, levy or similar process, or assignment by operation of law. Any attempt, voluntary or involuntary, to effect any action specified in the immediately preceding sentence shall, to the full extent permitted by law, be null, void and of no effect. (f) Notice. For the purposes of this Agreement, notices, demands and all other communications provided for in the Agreement shall be in writing and shall be deemed to have been duly given when hand delivered or (unless otherwise specified) mailed by United States registered mail, return receipt requested, postage prepaid, addressed as follows: If to the Employee: Joseph Bernadino, at his then current permanent home address as shown on the Company's records If to the Company: Prime Hospitality Corp. 700 Route 46 East Fairfield, NJ 07007-2700 Attn: General Counsel or to such other address as any party may have furnished to the others in writing in accordance herewith, except that notices of change of address shall be effective only upon receipt. (g) Validity. The invalidity or unenforceability of any provision or provisions of this Agreement shall not affect the validity or enforceability of any other 12 13 provisions of this Agreement, which shall remain in full force and effect. (h) Taxes. The Company shall deduct from all amounts payable under this Agreement all federal, state, local and other taxes required by law to be withheld with respect to such payments. 7. Other Arrangements. Nothing contained in this Agreement shall adversely affect any of Employee's rights as a participant or beneficiary under the Company's pension and welfare benefit plans, incentive compensation arrangements and perquisite programs or the Employee's obligations arising under any confidentiality agreement with the Company. PRIME HOSPITALITY CORP. By /s/ DAVID A. SIMON ------------------------------------ Name: Title: EMPLOYEE: /s/ JOSEPH BERNADINO --------------------------------------- Joseph Bernadino 13 EX-10.V 11 CHANGE OF CONTROL AGREEMENT, RICHARD SZYMANSKI &CO 1 EXHIBIT 10(v) CHANGE IN CONTROL AGREEMENT This Agreement, dated this 15th day of February, 1995, is between Prime Hospitality Corp., a Delaware corporation (the "Company") and Richard Szymanski ("Employee"). R E C I T A L S: A. Employee is a key officer and employee of the Company. B. The Board of Directors of the Company (the "Board") recognizes that Employee is one of several key officer/employees whose high quality of job performance is essential to promoting and protecting the best interests of the Company and its shareholders. C. The Board further recognizes (i) that it is possible that a Change in Control of the Company could occur at some time in the future, (ii) that the uncertainty associated with such a possibility could result in the distraction of Employee from the Employee's assigned duties and responsibilities, (iii) that it is in the best interests of the Company and its shareholders to assure the continued attention by Employee to such duties and responsibilities without such distraction and (iv) that Employee must be able to participate in the assessment and evaluation of any proposal which could effect a Change in Control of the Company without the Employee's judgment being influenced by uncertainties regarding Employee's future financial security. 2 D. The Company wishes to provide Employee with certain benefits in the event of a Change in Control of the Company as set forth herein. TERMS AND CONDITIONS For valuable consideration, the receipt of which is hereby acknowledged, the parties agree as follows: 1. Definitions. (a) For purposes of this Agreement, the Company shall have "Cause" to terminate the Employee's employment hereunder upon (A) the willful and continued failure by the Employee to substantially perform his duties hereunder (other than any such failure resulting from the Employee's incapacity due to physical or mental illness), (B) the engaging by the Employee in willful misconduct which is demonstrably and materially injurious to the Company, monetarily or otherwise, or (C) the conviction of the Employee of a felony involving moral turpitude. For purposes of this paragraph, no act, or failure to act, on the Employee's part shall be considered "willful" unless done, or omitted to be done, by him not in good faith and without reasonable belief that his action or omission was in the best interest of the Company. The Employee shall not be deemed to have been terminated for Cause unless the Company shall have given or delivered to the Employee (i) reasonable notice setting forth the reasons for the Company's intention to terminate for Cause, (ii) an opportunity for the Employee 2 3 to cure any such breach within thirty (30) days after receipt of such notice, (iii) an opportunity for the Employee, together with his counsel, to be heard before the Board, and (iv) a written notice of termination stating that, in the good faith opinion of not less than a majority of the entire membership of the Board, the Employee was guilty of conduct set forth above in clauses (A), (B) or (C) of the second preceding sentence, and specifying the particulars thereof in detail. (b) A "Change in Control" of the Company shall be considered to occur if and when: (i) more than 30% of the Company's outstanding securities entitled to vote in elections of directors are acquired by any person, entity or group (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934); or (ii) the Board determines, by a vote of a majority of its entire membership, that a tender offer statement filed by any person, entity or group (as so defined) with the Securities and Exchange Commission indicates an intention on the part of such person, entity or group to acquire control of the Company; or (iii) the Company's shareholders approve the sale of (or agreement to sell or grant of a right or option to purchase as to) all or substantially all of the assets of the Company, to any person, entity or 3 4 group (as so defined) unless such sale or other transaction shall have been affirmatively recommended to the Company's shareholders by not less than two-thirds of the Board; or (iv) during any period of two consecutive years, the individuals who, at the beginning of such period, constitute the Board cease for any reason to constitute at least a majority thereof, provided, however, that a director who was not a director at the beginning of such period shall be deemed to have satisfied the two-year requirement if such director was elected by, on the recommendation of, or with the approval of, at least two-thirds of the directors who were directors at the beginning of such period (either actually or by prior operation of this Section 1(b)(iv); or (v) such other events as the Board may designate. (c) "Good Reason" shall mean the occurrence of any of the following, without Employee's consent, after a Change in Control: (i) a material reduction or adverse alteration in the duties, authorities or responsibilities of Employee's position; 4 5 (ii) a reduction in Employee's annual base salary, bonus or other compensation arrangements provided by the Company; (iii) the relocation of the Employee's place of employment by more than twenty miles; or (iv) a material reduction in or the discontinuance of the perquisites or benefits provided by the Company to Employee. (d) The term "Cash Compensation" shall mean, during any fiscal year of the Company, the Employee's aggregate cash compensation earned as an employee of the Company during the immediately preceding fiscal year (including any bonus earned but not paid by fiscal year-end). If Employee was employed by the Company for only a portion of the preceding fiscal year, "Cash Compensation" shall mean his annualized aggregate cash compensation for such year, which shall be determined based on the aggregate cash compensation earned during the portion of such year that Employee was employed. 2. Change in Control. (a) Options. In the event of a Change in Control of the Company, all stock options granted to Employee under the Company's 1992 Stock Option Plan and 1992 Performance Incentive Plan (the "Plans") shall become immediately vested and exercisable, notwithstanding any vesting schedule previously applicable to such stock options; provided, 5 6 however, that the provisions of this Section 2(a) shall not be effective until the respective committees charged with administration of each Plan have taken action to ratify the provisions of this Section 2(a). (b) Cash Payment. If, within twenty-four (24) months following a Change in Control of the Company, the Company terminates the Employee's employment without Cause, or the Employee terminates his or her employment with the Company for Good Reason, then the Company shall, within sixty (60) days of such termination of employment, pay to the Employee an amount equal to two and one- half (2 1/2) times the Employee's "Cash Compensation" as defined above. 3. Parachute Payments. (a) Basic Rule. Anything in this Agreement to the contrary notwithstanding, in the event that any independent accounting firm of national reputation acting as the Company's regular auditors (the "Auditors") determines that any payment or distribution by the Company to or for the benefit of the Employee, whether paid or payable (or distributed or distributable) pursuant to the terms of this Agreement or otherwise (a "Payment"), would be non-deductible by the Company for federal income tax purposes by reason of Section 280G of the Internal Revenue Code of 1986, as amended (the "Code"), then the aggregate present value of the amounts payable or distributable to or for the benefit of the Employee pursuant to this Agreement or otherwise (the 6 7 "Agreement Payments") shall be reduced (but not below zero) to the Reduced Amount. For purposes of this Section 3, the "Reduced Amount" shall be the amount, expressed in present value, which is the maximum amount of the Agreement Payments which may be paid without causing any Payment to be non-deductible by the Company by reason of Section 280G of the Code. (b) Reduction of Payments. If the Auditors determine that any Payment would be non-deductible by the Company by reason of Section 280G of the code, then the Company shall give the Employee notice to that effect and a copy of the detailed calculation thereof and of the Reduced Amount not more than thirty-five (35) days following his termination, and the Employee may then elect, in his sole discretion, which and how much of the Agreement Payments shall be eliminated or reduced (provided that after such election the aggregate present value of the Agreement payments equals the Reduced Amount) and shall advise the Company in writing of his election within ten (10) days of his receipt of such notice. If no such election is made by the Employee within such 10-day period, then the Company may elect which and how much of the Agreement Payments shall be eliminated or reduced (as long as after such election the aggregate present value of the Agreement Payments equals the Reduced Amount) and shall notify the Employee promptly of such election. For purposes of this Section 3, present 7 8 value shall be determined in accordance with Section 280G(d)(4) of the Code and regulations thereunder. (c) Auditor's Determinations. All determinations made by the Auditors under this Section 3 shall be binding and conclusive upon the Company and the Employee and shall be made within thirty (30) days of the date of termination of employment. 4. Waiver of Invalidity. Inasmuch as the injury caused to Employee in the event Employee's employment is terminated within twenty-four (24) months of a Change in Control is difficult or incapable of accurate estimation at the date of this Agreement, the amounts to be paid pursuant to Sections 2 and 3 are intended to be liquidated damages and not a penalty, and therefore constitute a good faith forecast of the harm which might be expected to be caused to Employee. Accordingly, the Company waives any right to assert against Employee the invalidity of any payment provided in Sections 2 and 3 by reason of Employee's failure to seek other employment or otherwise, nor shall the amount of any payment provided in Sections 2 and 3 be reduced by reason of any compensation earned or not earned by Employee as a result of employment by another employer after the date of termination or otherwise. Notwithstanding the foregoing, should the foregoing provisions of this section be held unenforceable or void for any reason, Employee shall be required to mitigate or reduce the amount of any payments hereunder only 8 9 to the extent required by law to make such provisions valid and enforceable. 5. Arbitration of Disputes. Employee may submit to arbitration any claim for payment under this Agreement as follows: After the sixtieth day following the termination of Employee's employment with the Company, the claim may be filed in writing with an arbitrator of Employee's choice and thereafter the Company shall be notified in writing of the claim and furnished with a true copy as so filed. The arbitrator must be a member of the National Academy of Arbitrators or one who currently appears on arbitration panels issued by the American Arbitration Association. The arbitration hearing shall be held within ten (10) business days after the receipt of notice of the claim by the Company. No continuance of the hearing shall be allowed without the mutual consent of Employee and the Company. Absence from or non-participation at the hearing by either party shall not prevent the issuance of an award. Hearing procedures which will expedite the hearing may be ordered at the arbitrator's discretion. The arbitrator's award shall be rendered as expeditiously as possible. In the event the arbitrator finds that the Company has breached this Agreement, the arbitrator shall order the Company to pay to Employee, within twenty- four hours after the decision is rendered, the amount due hereunder. The award of the arbitrator shall be final and binding upon the parties. Judgment may be entered on the arbitrator's award in any appropriate court as soon as possible 9 10 after its rendition without further notice to the Company. The fee of the arbitrator, all necessary expenses of the hearing, and the expenses and attorney fees of the prevailing party (collectively "expenses") shall be paid by the losing party; provided, however, that if the arbitrator finds in favor of the Company but also finds that Employee's claim was made in good faith, then the arbitrator may require the Company to pay such expenses, except for Employee's legal fees and disbursements. Except as expressly provided herein, the arbitration shall be conducted in accordance with the rules then prevailing of the American Arbitration Association. 6. Miscellaneous. (a) Waiver. The failure of any party to exercise any rights hereunder or to enforce any of the terms or conditions of this Agreement on any occasion shall not constitute or be deemed a waiver of that party's rights thereafter to exercise any rights hereunder or to enforce each and every term and condition of this Agreement. (b) Binding Effect; Successors. (i) In the event of Employee's death or a judicial determination of his incompetence, Employee's rights under this Agreement shall inure to the benefit of Employee's heirs, beneficiaries or legal representatives, as the case may be. (ii) The Company's rights, duties and obligations under this Agreement shall be binding upon, and inure to the benefit of, the Company and any successor of the Company, 10 11 including, without limitation, any entity or entities acquiring directly or indirectly all or substantially all of the Company's assets or securities whether by merger, consolidation, sale or otherwise, and such successor shall thereafter be deemed the "Company" for all purposes of this Agreement; provided that such rights, duties and obligations shall not otherwise be assignable by the Company. (iii) Within thirty (30) days following a Change in Control, the Company (including any successor of the Company) shall in writing affirm to the Employee its obligations under this Agreement. (c) Governing Law. This Agreement shall be construed and enforced in accordance with the laws of the State of Delaware. (d) Authorization and Modification. This Agreement is executed for and on behalf of the Company by an officer thereof duly authorized to do so by resolution of the Board of Directors approving this Agreement and authorizing such execution. This Agreement shall not be varied, altered, modified, changed or in any way amended except by an instruction in writing executed by the parties hereto. (e) Assignment by Employee. Except as otherwise expressly provided for in this Agreement, no right, benefit or interest of Employee arising hereunder shall be subject to anticipation, alienation, sale, assignment, encumbrance, 11 12 charge, pledge, hypothecation or set-off in respect of any claim, debt or obligation or to execution, attachment, levy or similar process, or assignment by operation of law. Any attempt, voluntary or involuntary, to effect any action specified in the immediately preceding sentence shall, to the full extent permitted by law, be null, void and of no effect. (f) Notice. For the purposes of this Agreement, notices, demands and all other communications provided for in the Agreement shall be in writing and shall be deemed to have been duly given when hand delivered or (unless otherwise specified) mailed by United States registered mail, return receipt requested, postage prepaid, addressed as follows: If to the Employee: Richard Szymanski, at his then current permanent home address as shown on the Company's records If to the Company: Prime Hospitality Corp. 700 Route 46 East Fairfield, NJ 07007-2700 Attn: General Counsel or to such other address as any party may have furnished to the others in writing in accordance herewith, except that notices of change of address shall be effective only upon receipt. (g) Validity. The invalidity or unenforceability of any provision or provisions of this Agreement shall not affect the validity or enforceability of any other 12 13 provisions of this Agreement, which shall remain in full force and effect. (h) Taxes. The Company shall deduct from all amounts payable under this Agreement all federal, state, local and other taxes required by law to be withheld with respect to such payments. 7. Other Arrangements. Nothing contained in this Agreement shall adversely affect any of Employee's rights as a participant or beneficiary under the Company's pension and welfare benefit plans, incentive compensation arrangements and perquisite programs or the Employee's obligations arising under any confidentiality agreement with the Company. PRIME HOSPITALITY CORP. By /s/ DAVID A. SIMON ---------------------------- Name: Title: EMPLOYEE: /s/ RICHARD SZYMANSKI ------------------------------ Richard Szymanski 13 EX-10.W 12 CHANGE OF CONTROL AGREEMENT, DOUGLAS VICARI & CO. 1 EXHIBIT 10(w) CHANGE IN CONTROL AGREEMENT This Agreement, dated this 15th day of February, 1995, is between Prime Hospitality Corp., a Delaware corporation (the "Company") and Douglas Vicari ("Employee"). R E C I T A L S: A. Employee is a key officer and employee of the Company. B. The Board of Directors of the Company (the "Board") recognizes that Employee is one of several key officer/employees whose high quality of job performance is essential to promoting and protecting the best interests of the Company and its shareholders. C. The Board further recognizes (i) that it is possible that a Change in Control of the Company could occur at some time in the future, (ii) that the uncertainty associated with such a possibility could result in the distraction of Employee from the Employee's assigned duties and responsibilities, (iii) that it is in the best interests of the Company and its shareholders to assure the continued attention by Employee to such duties and responsibilities without such distraction and (iv) that Employee must be able to participate in the assessment and evaluation of any proposal which could effect a Change in Control of the Company without the Employee's judgment being influenced by uncertainties regarding Employee's future financial security. 2 D. The Company wishes to provide Employee with certain benefits in the event of a Change in Control of the Company as set forth herein. TERMS AND CONDITIONS For valuable consideration, the receipt of which is hereby acknowledged, the parties agree as follows: 1. Definitions. (a) For purposes of this Agreement, the Company shall have "Cause" to terminate the Employee's employment hereunder upon (A) the willful and continued failure by the Employee to substantially perform his duties hereunder (other than any such failure resulting from the Employee's incapacity due to physical or mental illness), (B) the engaging by the Employee in willful misconduct which is demonstrably and materially injurious to the Company, monetarily or otherwise, or (C) the conviction of the Employee of a felony involving moral turpitude. For purposes of this paragraph, no act, or failure to act, on the Employee's part shall be considered "willful" unless done, or omitted to be done, by him not in good faith and without reasonable belief that his action or omission was in the best interest of the Company. The Employee shall not be deemed to have been terminated for Cause unless the Company shall have given or delivered to the Employee (i) reasonable notice setting forth the reasons for the Company's intention to terminate for Cause, (ii) an opportunity for the Employee 2 3 to cure any such breach within thirty (30) days after receipt of such notice, (iii) an opportunity for the Employee, together with his counsel, to be heard before the Board, and (iv) a written notice of termination stating that, in the good faith opinion of not less than a majority of the entire membership of the Board, the Employee was guilty of conduct set forth above in clauses (A), (B) or (C) of the second preceding sentence, and specifying the particulars thereof in detail. (b) A "Change in Control" of the Company shall be considered to occur if and when: (i) more than 30% of the Company's outstanding securities entitled to vote in elections of directors are acquired by any person, entity or group (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934); or (ii) the Board determines, by a vote of a majority of its entire membership, that a tender offer statement filed by any person, entity or group (as so defined) with the Securities and Exchange Commission indicates an intention on the part of such person, entity or group to acquire control of the Company; or (iii) the Company's shareholders approve the sale of (or agreement to sell or grant of a right or option to purchase as to) all or substantially all of the assets of the Company, to any person, entity or 3 4 group (as so defined) unless such sale or other transaction shall have been affirmatively recommended to the Company's shareholders by not less than two-thirds of the Board; or (iv) during any period of two consecutive years, the individuals who, at the beginning of such period, constitute the Board cease for any reason to constitute at least a majority thereof, provided, however, that a director who was not a director at the beginning of such period shall be deemed to have satisfied the two-year requirement if such director was elected by, on the recommendation of, or with the approval of, at least two-thirds of the directors who were directors at the beginning of such period (either actually or by prior operation of this Section 1(b)(iv); or (v) such other events as the Board may designate. (c) "Good Reason" shall mean the occurrence of any of the following, without Employee's consent, after a Change in Control: (i) a material reduction or adverse alteration in the duties, authorities or responsibilities of Employee's position; 4 5 (ii) a reduction in Employee's annual base salary, bonus or other compensation arrangements provided by the Company; (iii) the relocation of the Employee's place of employment by more than twenty miles; or (iv) a material reduction in or the discontinuance of the perquisites or benefits provided by the Company to Employee. (d) The term "Cash Compensation" shall mean, during any fiscal year of the Company, the Employee's aggregate cash compensation earned as an employee of the Company during the immediately preceding fiscal year (including any bonus earned but not paid by fiscal year-end). If Employee was employed by the Company for only a portion of the preceding fiscal year, "Cash Compensation" shall mean his annualized aggregate cash compensation for such year, which shall be determined based on the aggregate cash compensation earned during the portion of such year that Employee was employed. 2. Change in Control. (a) Options. In the event of a Change in Control of the Company, all stock options granted to Employee under the Company's 1992 Stock Option Plan and 1992 Performance Incentive Plan (the "Plans") shall become immediately vested and exercisable, notwithstanding any vesting schedule previously applicable to such stock options; provided, 5 6 however, that the provisions of this Section 2(a) shall not be effective until the respective committees charged with administration of each Plan have taken action to ratify the provisions of this Section 2(a). (b) Cash Payment. If, within twenty-four (24) months following a Change in Control of the Company, the Company terminates the Employee's employment without Cause, or the Employee terminates his or her employment with the Company for Good Reason, then the Company shall, within sixty (60) days of such termination of employment, pay to the Employee an amount equal to two and one- half (2 1/2) times the Employee's "Cash Compensation" as defined above. 3. Parachute Payments. (a) Basic Rule. Anything in this Agreement to the contrary notwithstanding, in the event that any independent accounting firm of national reputation acting as the Company's regular auditors (the "Auditors") determines that any payment or distribution by the Company to or for the benefit of the Employee, whether paid or payable (or distributed or distributable) pursuant to the terms of this Agreement or otherwise (a "Payment"), would be non-deductible by the Company for federal income tax purposes by reason of Section 280G of the Internal Revenue Code of 1986, as amended (the "Code"), then the aggregate present value of the amounts payable or distributable to or for the benefit of the Employee pursuant to this Agreement or otherwise (the 6 7 "Agreement Payments") shall be reduced (but not below zero) to the Reduced Amount. For purposes of this Section 3, the "Reduced Amount" shall be the amount, expressed in present value, which is the maximum amount of the Agreement Payments which may be paid without causing any Payment to be non-deductible by the Company by reason of Section 280G of the Code. (b) Reduction of Payments. If the Auditors determine that any Payment would be non-deductible by the Company by reason of Section 280G of the code, then the Company shall give the Employee notice to that effect and a copy of the detailed calculation thereof and of the Reduced Amount not more than thirty-five (35) days following his termination, and the Employee may then elect, in his sole discretion, which and how much of the Agreement Payments shall be eliminated or reduced (provided that after such election the aggregate present value of the Agreement payments equals the Reduced Amount) and shall advise the Company in writing of his election within ten (10) days of his receipt of such notice. If no such election is made by the Employee within such 10-day period, then the Company may elect which and how much of the Agreement Payments shall be eliminated or reduced (as long as after such election the aggregate present value of the Agreement Payments equals the Reduced Amount) and shall notify the Employee promptly of such election. For purposes of this Section 3, present 7 8 value shall be determined in accordance with Section 280G(d)(4) of the Code and regulations thereunder. (c) Auditor's Determinations. All determinations made by the Auditors under this Section 3 shall be binding and conclusive upon the Company and the Employee and shall be made within thirty (30) days of the date of termination of employment. 4. Waiver of Invalidity. Inasmuch as the injury caused to Employee in the event Employee's employment is terminated within twenty-four (24) months of a Change in Control is difficult or incapable of accurate estimation at the date of this Agreement, the amounts to be paid pursuant to Sections 2 and 3 are intended to be liquidated damages and not a penalty, and therefore constitute a good faith forecast of the harm which might be expected to be caused to Employee. Accordingly, the Company waives any right to assert against Employee the invalidity of any payment provided in Sections 2 and 3 by reason of Employee's failure to seek other employment or otherwise, nor shall the amount of any payment provided in Sections 2 and 3 be reduced by reason of any compensation earned or not earned by Employee as a result of employment by another employer after the date of termination or otherwise. Notwithstanding the foregoing, should the foregoing provisions of this section be held unenforceable or void for any reason, Employee shall be required to mitigate or reduce the amount of any payments hereunder only 8 9 to the extent required by law to make such provisions valid and enforceable. 5. Arbitration of Disputes. Employee may submit to arbitration any claim for payment under this Agreement as follows: After the sixtieth day following the termination of Employee's employment with the Company, the claim may be filed in writing with an arbitrator of Employee's choice and thereafter the Company shall be notified in writing of the claim and furnished with a true copy as so filed. The arbitrator must be a member of the National Academy of Arbitrators or one who currently appears on arbitration panels issued by the American Arbitration Association. The arbitration hearing shall be held within ten (10) business days after the receipt of notice of the claim by the Company. No continuance of the hearing shall be allowed without the mutual consent of Employee and the Company. Absence from or non-participation at the hearing by either party shall not prevent the issuance of an award. Hearing procedures which will expedite the hearing may be ordered at the arbitrator's discretion. The arbitrator's award shall be rendered as expeditiously as possible. In the event the arbitrator finds that the Company has breached this Agreement, the arbitrator shall order the Company to pay to Employee, within twenty- four hours after the decision is rendered, the amount due hereunder. The award of the arbitrator shall be final and binding upon the parties. Judgment may be entered on the arbitrator's award in any appropriate court as soon as possible 9 10 after its rendition without further notice to the Company. The fee of the arbitrator, all necessary expenses of the hearing, and the expenses and attorney fees of the prevailing party (collectively "expenses") shall be paid by the losing party; provided, however, that if the arbitrator finds in favor of the Company but also finds that Employee's claim was made in good faith, then the arbitrator may require the Company to pay such expenses, except for Employee's legal fees and disbursements. Except as expressly provided herein, the arbitration shall be conducted in accordance with the rules then prevailing of the American Arbitration Association. 6. Miscellaneous. (a) Waiver. The failure of any party to exercise any rights hereunder or to enforce any of the terms or conditions of this Agreement on any occasion shall not constitute or be deemed a waiver of that party's rights thereafter to exercise any rights hereunder or to enforce each and every term and condition of this Agreement. (b) Binding Effect; Successors. (i) In the event of Employee's death or a judicial determination of his incompetence, Employee's rights under this Agreement shall inure to the benefit of Employee's heirs, beneficiaries or legal representatives, as the case may be. (ii) The Company's rights, duties and obligations under this Agreement shall be binding upon, and inure to the benefit of, the Company and any successor of the Company, 10 11 including, without limitation, any entity or entities acquiring directly or indirectly all or substantially all of the Company's assets or securities whether by merger, consolidation, sale or otherwise, and such successor shall thereafter be deemed the "Company" for all purposes of this Agreement; provided that such rights, duties and obligations shall not otherwise be assignable by the Company. (iii) Within thirty (30) days following a Change in Control, the Company (including any successor of the Company) shall in writing affirm to the Employee its obligations under this Agreement. (c) Governing Law. This Agreement shall be construed and enforced in accordance with the laws of the State of Delaware. (d) Authorization and Modification. This Agreement is executed for and on behalf of the Company by an officer thereof duly authorized to do so by resolution of the Board of Directors approving this Agreement and authorizing such execution. This Agreement shall not be varied, altered, modified, changed or in any way amended except by an instruction in writing executed by the parties hereto. (e) Assignment by Employee. Except as otherwise expressly provided for in this Agreement, no right, benefit or interest of Employee arising hereunder shall be subject to anticipation, alienation, sale, assignment, encumbrance, 11 12 charge, pledge, hypothecation or set-off in respect of any claim, debt or obligation or to execution, attachment, levy or similar process, or assignment by operation of law. Any attempt, voluntary or involuntary, to effect any action specified in the immediately preceding sentence shall, to the full extent permitted by law, be null, void and of no effect. (f) Notice. For the purposes of this Agreement, notices, demands and all other communications provided for in the Agreement shall be in writing and shall be deemed to have been duly given when hand delivered or (unless otherwise specified) mailed by United States registered mail, return receipt requested, postage prepaid, addressed as follows: If to the Employee: Douglas Vicari, at his then current permanent home address as shown on the Company's records If to the Company: Prime Hospitality Corp. 700 Route 46 East Fairfield, NJ 07007-2700 Attn: General Counsel or to such other address as any party may have furnished to the others in writing in accordance herewith, except that notices of change of address shall be effective only upon receipt. (g) Validity. The invalidity or unenforceability of any provision or provisions of this Agreement shall not affect the validity or enforceability of any other 12 13 provisions of this Agreement, which shall remain in full force and effect. (h) Taxes. The Company shall deduct from all amounts payable under this Agreement all federal, state, local and other taxes required by law to be withheld with respect to such payments. 7. Other Arrangements. Nothing contained in this Agreement shall adversely affect any of Employee's rights as a participant or beneficiary under the Company's pension and welfare benefit plans, incentive compensation arrangements and perquisite programs or the Employee's obligations arising under any confidentiality agreement with the Company. PRIME HOSPITALITY CORP. By /s/ DAVID A. SIMON ------------------------------------ Name: Title: EMPLOYEE: /s/ DOUGLAS VICARI --------------------------------------- Douglas Vicari 13 EX-10.X 13 CHANGE OF CONTROL AGREEMENT, RICHARD MOSKAL & CO. 1 EXHIBIT 10(x) CHANGE IN CONTROL AGREEMENT This Agreement, dated this 15th day of February, 1995, is between Prime Hospitality Corp., a Delaware corporation (the "Company") and Richard Moskal ("Employee"). R E C I T A L S: A. Employee is a key officer and employee of the Company. B. The Board of Directors of the Company (the "Board") recognizes that Employee is one of several key officer/employees whose high quality of job performance is essential to promoting and protecting the best interests of the Company and its shareholders. C. The Board further recognizes (i) that it is possible that a Change in Control of the Company could occur at some time in the future, (ii) that the uncertainty associated with such a possibility could result in the distraction of Employee from the Employee's assigned duties and responsibilities, (iii) that it is in the best interests of the Company and its shareholders to assure the continued attention by Employee to such duties and responsibilities without such distraction and (iv) that Employee must be able to participate in the assessment and evaluation of any proposal which could effect a Change in Control of the Company without the Employee's judgment being influenced by uncertainties regarding Employee's future financial security. 2 D. The Company wishes to provide Employee with certain benefits in the event of a Change in Control of the Company as set forth herein. TERMS AND CONDITIONS For valuable consideration, the receipt of which is hereby acknowledged, the parties agree as follows: 1. Definitions. (a) For purposes of this Agreement, the Company shall have "Cause" to terminate the Employee's employment hereunder upon (A) the willful and continued failure by the Employee to substantially perform his duties hereunder (other than any such failure resulting from the Employee's incapacity due to physical or mental illness), (B) the engaging by the Employee in willful misconduct which is demonstrably and materially injurious to the Company, monetarily or otherwise, or (C) the conviction of the Employee of a felony involving moral turpitude. For purposes of this paragraph, no act, or failure to act, on the Employee's part shall be considered "willful" unless done, or omitted to be done, by him not in good faith and without reasonable belief that his action or omission was in the best interest of the Company. The Employee shall not be deemed to have been terminated for Cause unless the Company shall have given or delivered to the Employee (i) reasonable notice setting forth the reasons for the Company's intention to terminate for Cause, (ii) an opportunity for the Employee 2 3 to cure any such breach within thirty (30) days after receipt of such notice, (iii) an opportunity for the Employee, together with his counsel, to be heard before the Board, and (iv) a written notice of termination stating that, in the good faith opinion of not less than a majority of the entire membership of the Board, the Employee was guilty of conduct set forth above in clauses (A), (B) or (C) of the second preceding sentence, and specifying the particulars thereof in detail. (b) A "Change in Control" of the Company shall be considered to occur if and when: (i) more than 30% of the Company's outstanding securities entitled to vote in elections of directors are acquired by any person, entity or group (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934); or (ii) the Board determines, by a vote of a majority of its entire membership, that a tender offer statement filed by any person, entity or group (as so defined) with the Securities and Exchange Commission indicates an intention on the part of such person, entity or group to acquire control of the Company; or (iii) the Company's shareholders approve the sale of (or agreement to sell or grant of a right or option to purchase as to) all or substantially all of the assets of the Company, to any person, entity or 3 4 group (as so defined) unless such sale or other transaction shall have been affirmatively recommended to the Company's shareholders by not less than two-thirds of the Board; or (iv) during any period of two consecutive years, the individuals who, at the beginning of such period, constitute the Board cease for any reason to constitute at least a majority thereof, provided, however, that a director who was not a director at the beginning of such period shall be deemed to have satisfied the two-year requirement if such director was elected by, on the recommendation of, or with the approval of, at least two-thirds of the directors who were directors at the beginning of such period (either actually or by prior operation of this Section 1(b)(iv); or (v) such other events as the Board may designate. (c) "Good Reason" shall mean the occurrence of any of the following, without Employee's consent, after a Change in Control: (i) a material reduction or adverse alteration in the duties, authorities or responsibilities of Employee's position; 4 5 (ii) a reduction in Employee's annual base salary, bonus or other compensation arrangements provided by the Company; (iii) the relocation of the Employee's place of employment by more than twenty miles; or (iv) a material reduction in or the discontinuance of the perquisites or benefits provided by the Company to Employee. (d) The term "Cash Compensation" shall mean, during any fiscal year of the Company, the Employee's aggregate cash compensation earned as an employee of the Company during the immediately preceding fiscal year (including any bonus earned but not paid by fiscal year-end). If Employee was employed by the Company for only a portion of the preceding fiscal year, "Cash Compensation" shall mean his annualized aggregate cash compensation for such year, which shall be determined based on the aggregate cash compensation earned during the portion of such year that Employee was employed. 2. Change in Control. (a) Options. In the event of a Change in Control of the Company, all stock options granted to Employee under the Company's 1992 Stock Option Plan and 1992 Performance Incentive Plan (the "Plans") shall become immediately vested and exercisable, notwithstanding any vesting schedule previously applicable to such stock options; provided, 5 6 however, that the provisions of this Section 2(a) shall not be effective until the respective committees charged with administration of each Plan have taken action to ratify the provisions of this Section 2(a). (b) Cash Payment. If, within twenty-four (24) months following a Change in Control of the Company, the Company terminates the Employee's employment without Cause, or the Employee terminates his or her employment with the Company for Good Reason, then the Company shall, within sixty (60) days of such termination of employment, pay to the Employee an amount equal to two and one- half (2 1/2) times the Employee's "Cash Compensation" as defined above. 3. Parachute Payments. (a) Basic Rule. Anything in this Agreement to the contrary notwithstanding, in the event that any independent accounting firm of national reputation acting as the Company's regular auditors (the "Auditors") determines that any payment or distribution by the Company to or for the benefit of the Employee, whether paid or payable (or distributed or distributable) pursuant to the terms of this Agreement or otherwise (a "Payment"), would be non-deductible by the Company for federal income tax purposes by reason of Section 280G of the Internal Revenue Code of 1986, as amended (the "Code"), then the aggregate present value of the amounts payable or distributable to or for the benefit of the Employee pursuant to this Agreement or otherwise (the 6 7 "Agreement Payments") shall be reduced (but not below zero) to the Reduced Amount. For purposes of this Section 3, the "Reduced Amount" shall be the amount, expressed in present value, which is the maximum amount of the Agreement Payments which may be paid without causing any Payment to be non-deductible by the Company by reason of Section 280G of the Code. (b) Reduction of Payments. If the Auditors determine that any Payment would be non-deductible by the Company by reason of Section 280G of the code, then the Company shall give the Employee notice to that effect and a copy of the detailed calculation thereof and of the Reduced Amount not more than thirty-five (35) days following his termination, and the Employee may then elect, in his sole discretion, which and how much of the Agreement Payments shall be eliminated or reduced (provided that after such election the aggregate present value of the Agreement payments equals the Reduced Amount) and shall advise the Company in writing of his election within ten (10) days of his receipt of such notice. If no such election is made by the Employee within such 10-day period, then the Company may elect which and how much of the Agreement Payments shall be eliminated or reduced (as long as after such election the aggregate present value of the Agreement Payments equals the Reduced Amount) and shall notify the Employee promptly of such election. For purposes of this Section 3, present 7 8 value shall be determined in accordance with Section 280G(d)(4) of the Code and regulations thereunder. (c) Auditor's Determinations. All determinations made by the Auditors under this Section 3 shall be binding and conclusive upon the Company and the Employee and shall be made within thirty (30) days of the date of termination of employment. 4. Waiver of Invalidity. Inasmuch as the injury caused to Employee in the event Employee's employment is terminated within twenty-four (24) months of a Change in Control is difficult or incapable of accurate estimation at the date of this Agreement, the amounts to be paid pursuant to Sections 2 and 3 are intended to be liquidated damages and not a penalty, and therefore constitute a good faith forecast of the harm which might be expected to be caused to Employee. Accordingly, the Company waives any right to assert against Employee the invalidity of any payment provided in Sections 2 and 3 by reason of Employee's failure to seek other employment or otherwise, nor shall the amount of any payment provided in Sections 2 and 3 be reduced by reason of any compensation earned or not earned by Employee as a result of employment by another employer after the date of termination or otherwise. Notwithstanding the foregoing, should the foregoing provisions of this section be held unenforceable or void for any reason, Employee shall be required to mitigate or reduce the amount of any payments hereunder only 8 9 to the extent required by law to make such provisions valid and enforceable. 5. Arbitration of Disputes. Employee may submit to arbitration any claim for payment under this Agreement as follows: After the sixtieth day following the termination of Employee's employment with the Company, the claim may be filed in writing with an arbitrator of Employee's choice and thereafter the Company shall be notified in writing of the claim and furnished with a true copy as so filed. The arbitrator must be a member of the National Academy of Arbitrators or one who currently appears on arbitration panels issued by the American Arbitration Association. The arbitration hearing shall be held within ten (10) business days after the receipt of notice of the claim by the Company. No continuance of the hearing shall be allowed without the mutual consent of Employee and the Company. Absence from or non-participation at the hearing by either party shall not prevent the issuance of an award. Hearing procedures which will expedite the hearing may be ordered at the arbitrator's discretion. The arbitrator's award shall be rendered as expeditiously as possible. In the event the arbitrator finds that the Company has breached this Agreement, the arbitrator shall order the Company to pay to Employee, within twenty- four hours after the decision is rendered, the amount due hereunder. The award of the arbitrator shall be final and binding upon the parties. Judgment may be entered on the arbitrator's award in any appropriate court as soon as possible 9 10 after its rendition without further notice to the Company. The fee of the arbitrator, all necessary expenses of the hearing, and the expenses and attorney fees of the prevailing party (collectively "expenses") shall be paid by the losing party; provided, however, that if the arbitrator finds in favor of the Company but also finds that Employee's claim was made in good faith, then the arbitrator may require the Company to pay such expenses, except for Employee's legal fees and disbursements. Except as expressly provided herein, the arbitration shall be conducted in accordance with the rules then prevailing of the American Arbitration Association. 6. Miscellaneous. (a) Waiver. The failure of any party to exercise any rights hereunder or to enforce any of the terms or conditions of this Agreement on any occasion shall not constitute or be deemed a waiver of that party's rights thereafter to exercise any rights hereunder or to enforce each and every term and condition of this Agreement. (b) Binding Effect; Successors. (i) In the event of Employee's death or a judicial determination of his incompetence, Employee's rights under this Agreement shall inure to the benefit of Employee's heirs, beneficiaries or legal representatives, as the case may be. (ii) The Company's rights, duties and obligations under this Agreement shall be binding upon, and inure to the benefit of, the Company and any successor of the Company, 10 11 including, without limitation, any entity or entities acquiring directly or indirectly all or substantially all of the Company's assets or securities whether by merger, consolidation, sale or otherwise, and such successor shall thereafter be deemed the "Company" for all purposes of this Agreement; provided that such rights, duties and obligations shall not otherwise be assignable by the Company. (iii) Within thirty (30) days following a Change in Control, the Company (including any successor of the Company) shall in writing affirm to the Employee its obligations under this Agreement. (c) Governing Law. This Agreement shall be construed and enforced in accordance with the laws of the State of Delaware. (d) Authorization and Modification. This Agreement is executed for and on behalf of the Company by an officer thereof duly authorized to do so by resolution of the Board of Directors approving this Agreement and authorizing such execution. This Agreement shall not be varied, altered, modified, changed or in any way amended except by an instruction in writing executed by the parties hereto. (e) Assignment by Employee. Except as otherwise expressly provided for in this Agreement, no right, benefit or interest of Employee arising hereunder shall be subject to anticipation, alienation, sale, assignment, encumbrance, 11 12 charge, pledge, hypothecation or set-off in respect of any claim, debt or obligation or to execution, attachment, levy or similar process, or assignment by operation of law. Any attempt, voluntary or involuntary, to effect any action specified in the immediately preceding sentence shall, to the full extent permitted by law, be null, void and of no effect. (f) Notice. For the purposes of this Agreement, notices, demands and all other communications provided for in the Agreement shall be in writing and shall be deemed to have been duly given when hand delivered or (unless otherwise specified) mailed by United States registered mail, return receipt requested, postage prepaid, addressed as follows: If to the Employee: Richard Moskal, at his then current permanent home address as shown on the Company's records If to the Company: Prime Hospitality Corp. 700 Route 46 East Fairfield, NJ 07007-2700 Attn: General Counsel or to such other address as any party may have furnished to the others in writing in accordance herewith, except that notices of change of address shall be effective only upon receipt. (g) Validity. The invalidity or unenforceability of any provision or provisions of this Agreement shall not affect the validity or enforceability of any other 12 13 provisions of this Agreement, which shall remain in full force and effect. (h) Taxes. The Company shall deduct from all amounts payable under this Agreement all federal, state, local and other taxes required by law to be withheld with respect to such payments. 7. Other Arrangements. Nothing contained in this Agreement shall adversely affect any of Employee's rights as a participant or beneficiary under the Company's pension and welfare benefit plans, incentive compensation arrangements and perquisite programs or the Employee's obligations arising under any confidentiality agreement with the Company. PRIME HOSPITALITY CORP. By /s/ DAVID A. SIMON ----------------------------- Name: Title: EMPLOYEE: /s/ RICHARD MOSKAL ----------------------------- Richard Moskal 13 EX-11 14 COMPUTATION OF EARNINGS PER COMMON SHARE 1 Exhibit 11 Page 1 of 4 PRIME HOSPITALITY CORP. AND SUBSIDIARIES COMPUTATION OF EARNINGS PER COMMON SHARE DECEMBER 31, 1992, 1993 AND 1994 (IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
Five Months Ended Years Ended December 31, December 31, 1992 1993 1994 ------------ ------- ------- Primary: Income: Income from continuing operations . . . . . . . . . . . . . $ 1,393 $ 8,175 $18,258 Extraordinary items - Gains on discharge of indebtedness, net of income taxes . . . . . . . -- 3,989 172 ------- ------- ------- Net income . . . . . . . . . . . . . $ 1,393 $12,164 $18,430 ======= ======= ======= Weighted average number of common shares and common share equivalents outstanding . . . . . . . . . . . . . 29,913 30,721 32,022 ======= ======= ======= Net income per share: Continuing operations . . . . . . . . $ .05 $ .27 $ .57 Extraordinary items - Gains on discharge of indebtedness, net of income taxes . . . . . . . -- .13 .01 ---- ------- ------- Net income per share . . . . . . . . $ .05 $ .40 $ .58 ======= ======= ======= Fully diluted: Income: Income from continuing operations . . . . . . . . . . . . . $ 1,393 $ 8,175 $18,258 Extraordinary items - Gains on discharge of indebtedness, net of income taxes . . . . . . . -- 3,989 172 ------- ------- ------- Net income . . . . . . . . . . . . . $ 1,393 $12,164 $18,430 ======= ======= =======
II-2 2 Exhibit 11 Page 2 of 4 PRIME HOSPITALITY CORP. AND SUBSIDIARIES COMPUTATION OF EARNINGS PER COMMON SHARE DECEMBER 31, 1992, 1993 AND 1994 (IN THOUSANDS, EXCEPT PER SHARE AMOUNTS) (CONTINUED)
Five Months Ended Years Ended December 31, December 31, 1992 1993 1994 ------------ ------- ------- Shares: Weighted average number of common shares and common share equivalents outstanding ......................... 30,426 31,545 32,060 ======= ======= ======= Net income per share: Continuing operations................. .05 .27 .57 Extraordinary items - Gains on discharge of indebteness, net of income taxes................. -- .13 .01 ------- ------- ------- Net income per share................ $ .05 $ .40 $ .58 ======= ======= =======
II-3 3 Exhibit 11 Page 3 of 4 PRIME HOSPITALITY CORP. AND SUBSIDIARIES COMPUTATION OF EARNINGS PER COMMON SHARE JUNE 30, 1992 AND JULY 31, 1992 (IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
Year One Month Ended Ended June 30, July 31, 1992 1992 -------- --------- Primary: Income (loss): Loss from operations . . . . . . . . . . . . $(71,965) $(10,274) Extraordinary items - Gains on discharge of indebtedness . . . . . . . -- 249,600 -------- -------- Net income (loss) . . . . . . . . . . . . . $(71,965) $239,326 ======== ======== Weighted average number of common shares and common share equivalents outstanding . . . . . . . . . . 33,028 33,028 ======== ======== Net income (loss) per share: Operations . . . . . . . . . . . . . . . . . $ (2.18) $ (.31) Extraordinary items - Gains on discharge of indebtedness . . . . . . . -- 7.56 -------- -------- Net income (loss) per share . . . . . . . . $ (2.18) $ 7.25 ======== ======== Fully diluted: Income (loss): Loss from operations . . . . . . . . . . . $(71,965) $(10,274) Extraordinary items - Gains on discharge of indebtedness . . . . . . . -- 249,600 -------- -------- Net income (loss) . . . . . . . . . . . . . $(71,965) $239,326 ======== ========
II-4 4 Exhibit 11 Page 4 of 4 PRIME HOSPITALITY CORP. AND SUBSIDIARIES COMPUTATION OF EARNINGS PER COMMON SHARE JUNE 30, 1992 AND JULY 31, 1992 (IN THOUSANDS, EXCEPT PER SHARE AMOUNTS) (CONTINUED)
Year One Month Ended Ended June 30, July 31, 1992 1992 -------- --------- Shares: Weighted average number of common shares outstanding and common share equivalents outstanding................. 33,028 33,028 Assuming conversion of 6-5/8% and 7% convertible subordinated debentures................. 5,451 -- ------- ------- Weighted average number of common shares and common share equivalents outstanding as adjusted................. 38,479 33,028 ======= ======= Net income (loss) per share: Operations.............................. $ (1.87) $ (.31) Extraordinary items - Gains on discharge of indebtedness........... -- 7.56 ------- ------- Net income (loss) per share............ $ (1.87)(A) $ 7.25 (A) ======= =======
(A) This calculation is submitted in accordance with Regulation S-K item 601(b)(11) although it is contrary to paragraph 40 of APB Opinion No. 15 because it produces an anti-dilutive result. II-5 EX-12 15 COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES 1 EXHIBIT 12 PRIME HOSPITALITY CORP. STATEMENT RE: COMPUTATION OF THE RATIO OF EARNINGS TO FIXED CHARGES (S-K SECTION 503(D))
PRE-REORGANIZATION POST REORGANIZATION ---------------------------------------------------------------------------------------- FOR THE ------------------------- ONE MONTH FIVE MONTHS FOR THE YEAR FOR THE YEAR FOR THE YEAR ENDED JUNE 30, ENDED ENDED ENDED ENDED -------------------------------- JULY 31, DECEMBER 31, DECEMBER 31, DECEMBER 31, 1990 1991 1992 1992 1992 1993 1994 --------- --------- -------- ---------- ------------ ------------ ------------ (DOLLARS IN THOUSANDS) Computation of earnings: Pre-tax income (loss) from continuing operation........... $(290,392) $(260,456) $(70,965) $(10,274) $ 2,321 $ 13,856 $ 30,430 Less: Interest Capitalized........... -- -- -- -- -- -- 836 Total earnings................... $(290,392) $(260,456) $(70,965) $(10,274) $ 2,321 $ 13,856 $ 29,594 ========== ========== ========= =========== ============ ============ ============ Computation of fixed charges: For interest................... $ 56,811 $ 19,331 $ 8,245 $ 779 $ 7,718 $ 16,116 $ 13,993 For capitalized interest....... 836 For interest on rentals........ 17,855 8,091 2,540 189 703 1,924 1,826 --------- --------- -------- ---------- ------------ ------------ ------------ Total fixed charges.............. $ 74,666 $ 27,422 $ 10,785 $ 968 $ 8,421 $ 18,040 $ 16,655 ========== ========== ========= =========== ============ ============ ============ Total earnings and fixed charges........................ $(215,726) $(233,034) $(60,180) $ (9,306) $ 10,742 $ 31,896 $ 46,249 ========== ========== ========= =========== ============ ============ ============ Ratio............................ -- -- -- -- 1.28 1.77 2.78 ========== ========== ========= =========== ============ ============ ============
EX-23.A 16 CONSENT OF ARTHUR ANDERSEN LLP 1 Exhibit 23(a) CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS To the Board of Directors and Stockholders' of Prime Hospitality Corp.: As independent public accountants, we hereby consent to the incorporation of our reports included in this Form 10-K, into the Company's previously filed Registration Statement No. 33-54995. ARTHUR ANDERSEN LLP Roseland, New Jersey March 7, 1995 EX-23.B 17 CONSENT OF J.H. COHN & COMPANY 1 Exhibit 23(b) CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS We consent to the incorporation by reference in the Registration Statement on Form S-8 (Registration No. 33-54995) previously filed by Prime Hospitality Corp. (formerly Prime Motor Inns, Inc.) of our report dated September 24, 1992, (appearing in this Annual Report on Form 10-K for the fiscal year ended December 31, 1994 of Prime Hospitality Corp.), on the consolidated financial statements and the financial statement schedules of Prime Motor Inns, Inc. and Subsidiaries (Debtors-in-Possession). J.H. COHN & COMPANY Roseland, New Jersey March 7, 1995 EX-27 18 FINANCIAL DATA SCHEDULE
5 1000 YEAR DEC-31-1994 JAN-01-1994 DEC-31-1994 12,524 0 2,138 213 718 39,189 317,856 18,565 434,932 29,188 178,545 304 0 0 203,761 434,932 0 134,303 0 100,935 0 0 13,993 30,430 12,172 18,258 0 172 0 18,430 .58 .58
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