-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, DD++rnUP/MkiMqthB6Gogv7Ebska9/GA+PFCbT5OvyektA+L5xPCFn7czTGzP1r0 xZn5xHKL9A46ijvWSRUllA== 0000086759-09-000002.txt : 20090213 0000086759-09-000002.hdr.sgml : 20090213 20090213102708 ACCESSION NUMBER: 0000086759-09-000002 CONFORMED SUBMISSION TYPE: 10-Q PUBLIC DOCUMENT COUNT: 7 CONFORMED PERIOD OF REPORT: 20081231 FILED AS OF DATE: 20090213 DATE AS OF CHANGE: 20090213 FILER: COMPANY DATA: COMPANY CONFORMED NAME: SANTA FE FINANCIAL CORP CENTRAL INDEX KEY: 0000086759 STANDARD INDUSTRIAL CLASSIFICATION: REAL ESTATE [6500] IRS NUMBER: 952452529 STATE OF INCORPORATION: NV FISCAL YEAR END: 0630 FILING VALUES: FORM TYPE: 10-Q SEC ACT: 1934 Act SEC FILE NUMBER: 000-06877 FILM NUMBER: 09598836 BUSINESS ADDRESS: STREET 1: 820 MORAGA DRIVE CITY: LOS ANGELES STATE: CA ZIP: 90049 BUSINESS PHONE: (310) 889-2500 MAIL ADDRESS: STREET 1: 820 MORAGA DRIVE CITY: LOS ANGELES STATE: CA ZIP: 90049 10-Q 1 sf10q123109.txt SANTA FE 10-Q 12-31-2009 UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D. C. 20549 FORM 10-Q [X] QUARTERLY REPORT UNDER SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 For the quarterly period ended December 31, 2008 [ ] TRANSITION REPORT UNDER SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 For the transition period from ______ to _____ Commission File Number: 0-6877 SANTA FE FINANCIAL CORPORATION ------------------------------ (Exact name of registrant as specified in its charter) NEVADA 95-2452529 ------------------------------ ------------------ (State or other jurisdiction of (IRS Employer incorporation or organization) Identification No.) 820 Moraga Drive Los Angeles, CA 90049 -------------------------------------- (Address of principal executive offices) (310) 889-2500 ----------------------------- (Registrant's telephone number) Indicate by check mark whether the registrant (1) filed all reports required to be filed by Section 13 or 15(d) of the Exchange Act during the past 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. [x] Yes [ ] No Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. Large accelerated filer [ ] Accelerated filer [ ] Non-accelerated filer [ ] Smaller reporting company [x] Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act.) [ ] Yes [x] No INDEX SANTA FE FINANCIAL CORPORATION PART I FINANCIAL INFORMATION PAGE Item 1. Condensed Consolidated Financial Statements Condensed Consolidated Balance Sheets As of December 31, 2008(Unaudited) and June 30, 2008(Audited) 3 Condensed Consolidated Statements of Operations(Unaudited) For the Three Months ended December 31, 2008 and 2007 4 Condensed Consolidated Statements of Operations(Unaudited) For the Six Months ended December 31, 2008 and 2007 5 Condensed Consolidated Statements of Cash Flows(Unaudited) For the Six Months ended December 31, 2008 and 2007 6 Notes to Condensed Consolidated Financial Statements (Unaudited) 7 Item 2. Management's Discussion and Analysis of Financial Condition and Results of Operations 17 Item 4T. Controls and Procedures 28 PART II. OTHER INFORMATION Item 2. Unregistered Sales of Equity Securities and Use of Proceeds 29 Item 6. Exhibits. 29 SIGNATURES 30 -2- PART I FINANCIAL INFORMATION Item 1. Condensed Consolidated Financial Statements SANTA FE FINANCIAL CORPORATION CONDENSED CONSOLIDATED BALANCE SHEETS December 31, 2008 June 30, 2008 (Unaudited) (Audited) ------------ ------------ ASSETS Investment in hotel, net $ 42,124,000 $ 43,540,000 Investment in real estate, net 5,331,000 5,369,000 Investment in marketable securities 4,045,000 4,328,000 Other investments, net 4,365,000 4,239,000 Cash and cash equivalents 138,000 763,000 Accounts receivable, net 1,300,000 1,140,000 Other assets, net 2,108,000 1,893,000 Deferred tax asset 4,038,000 3,517,000 Minority interest of Justice Investors 7,122,000 6,793,000 ----------- ----------- Total assets $ 70,571,000 $ 71,582,000 =========== =========== LIABILITIES AND SHAREHOLDERS' EQUITY Liabilities Accounts payable and other liabilities $ 8,548,000 $ 7,722,000 Due to securities broker 1,159,000 1,440,000 Line of credit 1,756,000 1,513,000 Mortgage notes payable - real estate 2,154,000 2,175,000 Mortgage notes payable - hotel 47,124,000 47,482,000 ----------- ----------- Total liabilities 60,741,000 60,332,000 ----------- ----------- Minority interest 3,218,000 3,580,000 ----------- ----------- Commitments and contingencies Shareholders' equity Common stock - par value $.10 per share Authorized - 2,000,000 Issued 1,339,638 and outstanding 1,241,810 134,000 134,000 Additional paid-in capital 8,808,000 8,808,000 Accumulated deficit (1,379,000) (321,000) Treasury stock, at cost, 97,828 shares (951,000) (951,000) ----------- ----------- Total shareholders' equity 6,612,000 7,670,000 ----------- ----------- Total liabilities & shareholders' equity $ 70,571,000 $ 71,582,000 =========== ===========
The accompanying notes are an integral part of these condensed consolidated financial statements. -3- SANTA FE FINANCIAL CORPORATION CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS (UNAUDITED) For the three months ended December 31, 2008 2007 ---------- ----------- Hotel operations: Hotel and garage revenue $ 8,644,000 $ 9,619,000 Operating expense (7,101,000) (8,201,000) Real estate taxes (176,000) (177,000) Interest expense (724,000) (703,000) Depreciation and amortization (1,145,000) (1,118,000) Loss on termination of garage lease (684,000) - ---------- ---------- Loss from hotel operations (1,186,000) (580,000) ---------- ---------- Real estate operations: Rental income 135,000 140,000 Property operating expense (60,000) (48,000) Mortgage interest expense (41,000) (43,000) Depreciation expense (19,000) (20,000) ---------- ---------- Income from real estate operations 15,000 29,000 ---------- ---------- Investment transactions: Net loss on marketable securities 457,000 850,000 Dividend and interest income 30,000 38,000 Margin interest and trading expenses (110,000) (126,000) ---------- ---------- Income from investment transactions 377,000 762,000 ---------- ---------- General and administrative expenses (259,000) (244,000) ---------- --------- Loss before income tax and minority interest (1,053,000) (33,000) Minority interest - Justice Investors, pre-tax - 257,000 ---------- --------- Income(loss) before income tax (1,053,000) 224,000 Provision for income tax benefit(expense) 174,000 (93,000) ---------- --------- Income(loss) before minority interest (879,000) 131,000 Minority interest, net of tax 261,000 (32,000) ---------- ---------- Net income(loss) (618,000) 99,000 ========== ========== Basic and diluted loss per share $ (0.50) $ 0.08 ========== ========== Weighted average number of shares outstanding 1,241,810 1,241,810 ========== ==========
The accompanying notes are an integral part of these condensed consolidated financial statements. -4- SANTA FE FINANCIAL CORPORATION CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS (UNAUDITED) For the six months ended December 31, 2008 2007 ---------- ----------- Hotel operations: Hotel and garage revenue $ 17,943,000 $ 19,405,000 Operating expense (14,166,000) (16,557,000) Real estate taxes (353,000) (354,000) Interest expense (1,443,000) (1,405,000) Depreciation and amortization (2,267,000) (2,201,000) Loss on termination of garage lease (684,000) - ---------- ---------- Loss from hotel operations (970,000) (1,112,000) ---------- ---------- Real estate operations: Rental income 274,000 278,000 Property operating expense (123,000) (97,000) Mortgage interest expense (83,000) (86,000) Depreciation expense (38,000) (40,000) ---------- ---------- Income from real estate operations 30,000 55,000 ---------- ---------- Investment transactions: Net loss on marketable securities 210,000 (86,000) Impairment loss on other investments (527,000) (90,000) Dividend and interest income 67,000 81,000 Margin interest and trading expenses (218,000) (288,000) ---------- ---------- Loss from investment transactions (468,000) (383,000) ---------- ---------- General and administrative expenses (437,000) (481,000) ---------- --------- Loss before income tax and minority interest (1,845,000) (1,921,000) Minority interest - Justice Investors, pre-tax (96,000) 535,000 ---------- --------- Loss before income tax (1,941,000) (1,386,000) Provision for income tax benefit 521,000 549,000 ---------- --------- Loss before minority interest (1,420,000) (837,000) Minority interest, net of tax 362,000 180,000 ---------- ---------- Net loss (1,058,000) (657,000) ========== ========== Basic and diluted loss per share $ (0.86) $ (0.53) ========== ========== Weighted average number of shares outstanding 1,241,810 1,241,810 ========== ==========
The accompanying notes are an integral part of these condensed consolidated financial statements. -5- SANTA FE FINANCIAL CORPORATION CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS (UNAUDITED) For the six months ended December 31, 2008 2007 ---------- ---------- Cash flows from operating activities: Net loss $ (1,058,000) $ (657,000) Adjustments to reconcile net loss to net cash provided by operating activities: Net unrealized (gain)loss on marketable securities (520,000) 133,000 Impairment loss on other investments 527,000 90,000 Minority interest (266,000) (715,000) Depreciation and amortization 2,305,000 2,241,000 Loss on termination of garage lease 684,000) - Changes in assets and liabilities: Investment in marketable securities 803,000 3,717,000 Other investments (653,000) (340,000) Accounts receivable (160,000) (169,000) Other assets (215,000) (366,000) Accounts payable and other liabilities (52,000) 1,040,000 Due to securities broker (281,000) (1,931,000) Obligations for securities sold - (857,000) Deferred tax asset (521,000) (549,000) ---------- ---------- Net cash provided by operating activities 593,000 1,637,000 ---------- ---------- Cash flows from investing activities: Capital expenditures for furniture, equipment and building improvements (657,000) (1,909,000) Investment in real estate - (973,000) Restricted cash - 1,500,000 ---------- ---------- Net cash used in investing activities (657,000) (1,382,000) ---------- ---------- Cash flows from financing activities: Draw on line of credit 243,000 - Principal payments on mortgage notes payable (379,000) (356,000) Distribution to minority partners (425,000) (500,000) ---------- ---------- Net cash used in financing activities (561,000) (856,000) ---------- ---------- Net decrease in cash and cash equivalents (625,000) (601,000) Cash and cash equivalents at beginning of period 763,000 851,000 ---------- ---------- Cash and cash equivalents at end of period $ 138,000 $ 250,000 ========== ========== Supplemental information: Interest paid $ 1,548,000 $ 1,584,000 ========== ========== Non cash investing activities: Note payable on termination of garage lease $ (727,000) $ - ========== ========== Fixed assets acquired, net of liabilities, upon termination of garage lease $ 43,000 $ - ========== ==========
The accompanying notes are an integral part of these condensed consolidated financial statements. -6- SANTA FE FINANCIAL CORPORATION NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED) NOTE 1 - BASIS OF PRESENTATION AND SIGNIFICANT ACCOUNTING POLICIES The consolidated financial statements included herein have been prepared by Santa Fe Financial Corporation ("Santa Fe" or the "Company"), without audit, according to the rules and regulations of the Securities and Exchange Commission. Certain information and footnote disclosures normally included in the consolidated financial statements prepared in accordance with generally accepted accounting principles have been condensed or omitted pursuant to such rules and regulations, although the Company believes the disclosures that are made are adequate to make the information presented not misleading. Further, the consolidated financial statements reflect, in the opinion of management, all adjustments (which included only normal recurring adjustments) necessary for a fair statement of the financial position, cash flows and results of operations as of and for the periods indicated. Santa Fe owns approximately 68.8% of the outstanding common shares of Portsmouth Square, Inc. ("Portsmouth"), a public company. Santa Fe is a 75.9%- owned subsidiary of The InterGroup Corporation ("InterGroup"), a public company. InterGroup also directly owns approximately 11.7% of the common stock of Portsmouth. The Company's principal business is conducted through the management of Portsmouth's general and limited partnership interest in Justice Investors, a California limited partnership ("Justice" or the "Partnership"). Portsmouth has a 50.0% limited partnership interest in Justice and serves as one of the two general partners. The other general partner, Evon Corporation ("Evon") served as the managing general partner until December 1, 2008. As further discussed in Note 2, the Limited Partnership Agreement was amended, effective December 1, 2008, to provide for a change in the respective roles of the general partners. Pursuant to that amendment, Portsmouth became the Managing General Partner of Justice while Evon assumed the role of Co-General Partner of Justice. The financial statements of Justice are consolidated with those of the Company. Justice owns a 544 room hotel property located at 750 Kearny Street, San Francisco, California, known as the "Hilton San Francisco Financial District" (the "Hotel") and related facilities, including a five level parking garage. The Hotel was temporarily closed for major renovations from May 2005 to January 2006. The total construction costs related to the renovation project was approximately $37 million. The Hotel is operated by the Partnership as a full service Hilton brand hotel pursuant to a Franchise License Agreement with Hilton Hotels Corporation. Justice has a Management Agreement with Prism Hospitality L.P. ("Prism") to perform the day-to-day management functions of the Hotel. Until September 30, 2008, the Partnership also derived income from the lease of the parking garage to Evon. As further discussed in Note 8, effective October 1, 2008, Justice entered into an installment sale agreement with Evon to purchase the remaining term of the garage lease and related garage assets. Justice also leases a portion of the lobby level of the Hotel to a day spa operator. Portsmouth also receives management fees as a general partner of Justice for its services in overseeing and managing the Partnership's assets. Those fees are eliminated in consolidation. -7- In addition to the operations of the Hotel, the Company also generates income from the ownership and management of real estate. On December 31, 1997, the Company acquired a controlling 55.4% interest in Intergroup Woodland Village, Inc. ("Woodland Village") from InterGroup. Woodland Village's major asset is a 27-unit apartment complex located in Los Angeles, California. The Company also owns a two-unit apartment building in Los Angeles, California. Minority interests in the net assets and earnings or losses of consolidated subsidiaries are reflected in the caption "Minority interest" in the Company's condensed consolidated balance sheet and condensed consolidated statements of operations. Minority interest adjusts the Company's consolidated results of operations to reflect only the Company's share of the earnings or losses of the consolidated subsidiaries. As of December 31, 2008 and June 30, 2008, the Company reported the minority interest of Justice Investors as an asset in the condensed consolidated balance sheet as the result of the accumulated deficit at Justice Investors. The accumulated deficit was primarily attributable to the temporary closing of the Hotel to undergo major renovations from May 2005 to January 2006 and subsequent net losses incurred by Justice due to substantial depreciation and amortization costs resulting from the renovations and operating losses as the Hotel ramped up operations after reopening. The Company expects the Hotel to be profitable in the future and the minority interest asset to be recoverable. Additionally, management believes that there is more than sufficient equity in the Hotel to support the carrying value of this asset on the Company's consolidated financial statements. However, due to impact that the sharp deterioration of the U.S. economy has had on the lodging sector since September 2008, and facing the prospect of a significant recession for the immediate future, the Company believed that it would be most appropriate not to add to the existing minority interest asset of $7,122,000 balance beginning in the quarterly period ended December 31, 2008. As the result, the Company did not record a minority interest benefit of $608,000 representing 50% of the loss from the hotel operations on its consolidated statement of operations for the three ended December 31, 2008. Basic loss per share is calculated based upon the weighted average number of common shares outstanding during each fiscal year. During the three and six months ended December 31, 2008 and 2007, the Company did not have any potentially dilutive securities outstanding. Certain prior period balances have been reclassified to conform with the current period presentation. It is suggested that these financial statements be read in conjunction with the audited financial statements and the notes therein included in the Company's Form 10-KSB for the year ended June 30, 2008. The results of operations for the three and six months ended December 31, 2008 are not necessarily indicative of results to be expected for the full fiscal year ending June 30, 2009. In May 2008, the Financial Accounting Standards Board (FASB) issued Statement of Financial Accounting Standards No. 162(SFAS No. 162), The Hierarchy of Generally Accepted Accounting Principles. This new standard is intended to improve financial reporting by identifying a consistent framework, or hierarchy, for selecting accounting principles to be used in preparing financial statements that are presented in conformity with GAAP for nongovernmental entities. SFAS No. 162 is effective on November 15, 2008. The Company does not believe SFAS No. 162 will have a significant impact on its financial statements. -8- In December 2007, the FASB issued SFAS No. 160, "Noncontrolling Interests in Consolidated Financial Statements, and amendment to Accounting Research Bulletin (ARB) No. 51," (SFAS No. 160). This standard prescribes the accounting by a parent company for minority interests held by other parties in a subsidiary of the parent company. SFAS No. 160 is effective for the Company for fiscal year ending June 30, 2010. The Company is currently assessing the impact of SFAS No. 160 on its consolidated financial statements. In December 2007, the FASB issued SFAS No. 141 (revised 2007), "Business Combinations" ("SFAS 141R"), which replaces SFAS No. 141. SFAS 141R establishes principles and requirements for how an acquirer in a business combination recognizes and measures in its financial statements the identifiable assets acquired, the liabilities assumed, and any controlling interest; recognizes and measures the goodwill acquired in the business combination or a gain from a bargain purchase; and determines what information to disclose to enable users of the financial statements to evaluate the nature and financial effects of the business combination. SFAS 141R is to be applied prospectively to business combinations for which the acquisition date is on or after an entity's fiscal year that begins after December 15, 2008. The provisions of SFAS 141R are effective for the Company for the fiscal year ending June 30, 2010. The Company is currently assessing the impact of SFAS 141R on its financial statements. NOTE 2 - JUSTICE INVESTORS PARTNERSHIP AMENDMENTS On December 1, 2008, Portsmouth and Evon, as the two general partners of Justice, entered into a 2008 Amendment to the Limited Partnership Agreement (the "Amendment") that provides for a change in the respective roles of the general partners. Pursuant to the Amendment, Portsmouth will assume the role of Managing General Partner and Evon will continue on as the Co-General Partner of Justice. The Amendment was ratified by approximately 98% of the limited partnership interests. The Amendment also provides that future amendments to the Limited Partnership Agreement may be made only upon the consent of the general partners and at least seventy five percent (75%) of the interests if the limited partners. Consent of at least 75% of the interests of the limited partners will also be required to remove a general partner pursuant to the Amendment. Concurrent with the Amendment to the Limited Partnership Agreement, a new General Partner Compensation Agreement (the "Compensation Agreement") was entered into on December 1, 2008, among Justice, Portsmouth and Evon to terminate and supersede all prior compensation agreement for the general partners. Pursuant to the Compensation Agreement, the general partners of Justice will be entitled to receive an amount equal to 1.5% of the gross annual revenues of the Partnership (as defined), less $75,000 to be used as a contribution toward the cost of Justice engaging an asset manager. In no event shall the annual compensation be less than a minimum base of approximately $285,000, with eighty percent (80%) of that amount being allocated to Portsmouth for its services as managing general partner and twenty percent (20%) allocated to Evon as the co-general partner. Compensation earned by the general partners in each calendar year in excess of the minimum base, will be payable in equal fifty percent (50%) shares to Portsmouth and Evon. -9- NOTE 3 - INVESTMENT IN HOTEL, NET Property and equipment consisted of the following: As of December 31, 2008 Accumulated Net Book Cost Depreciation Value ------------ ------------ ------------ Land $ 1,896,000 $ - $ 1,896,000 Furniture and equipment 15,852,000 (8,805,000) 7,047,000 Building and improvements 49,215,000 (16,034,000) 33,181,000 ------------ ------------ ------------ $ 66,963,000 $(24,839,000) $ 42,124,000 ============ ============ ============ As of June 30, 2008 Accumulated Net Book Cost Depreciation Value ------------ ------------ ------------ Land $ 1,896,000 $ - $ 1,896,000 Furniture and equipment 16,279,000 (8,005,000) 8,274,000 Building and improvements 48,975,000 (15,605,000) 33,370,000 ------------ ------------ ------------ $ 67,150,000 $(23,610,000) $ 43,540,000 ============ ============ ============ NOTE 4 - INVESTMENT IN REAL ESTATE, NET The Company owns and operates a 27-unit and 2-unit multi-family apartment complex located in Los Angeles, California and owns land held for development located in Maui, Hawaii. Investment in real estate included the following: December 31, 2008 June 30, 2008 ------------------ ------------- Land $ 2,430,000 $ 2,430,000 Buildings, improvements and equipment 2,574,000 2,575,000 Accumulated depreciation (646,000) (609,000) --------- --------- 4,358,000 4,396,000 Land held for development 973,000 973,000 --------- --------- Investment in real estate, net $ 5,331,000 $ 5,369,000 ========= =========
-10- NOTE 5 - INVESTMENT IN MARKETABLE SECURITIES The Company's investment in marketable securities consists primarily of corporate equities. The Company has also invested in corporate bonds and in income producing securities, which may include interests in real estate based companies and REITs, where financial benefit could inure to its shareholders through income and/or capital gain. At December 31, 2008 and June 30, 2008, all of the Company's marketable securities are classified as trading securities. In accordance with SFAS No. 115, "Accounting for Certain Investments in Debt and Equity Securities," the change in the unrealized gains and losses on these investments are included in earnings. Trading securities are summarized as follows: Gross Gross Net Fair Investment Cost Unrealized Gain Unrealized Loss Unrealized Gain Value - ---------- ----------- --------------- --------------- --------------- ------------ As of December 31, 2008: Corporate Equities $ 2,959,000 $ 2,012,000 $ (926,000) $ 1,086,000 $ 4,045,000
As of June 30, 2008: Corporate Equities $ 3,763,000 $ 1,496,000 $ (931,000) $ 565,000 $ 4,328,000
As of December 31, 2008 and June 30, 2008, the Company had unrealized losses of $661,000 and $522,000, respectively, related to securities held for over one year. Net gain(loss) on marketable securities on the statement of operations are comprised of realized and unrealized gains(losses). Below is the composition of the two components for the three and six months ended December 31, 2008 and 2007, respectively. For the three months ended December 31, 2008 2007 ----------- ----------- Realized (loss)gain on marketable securities $ (35,000) $ 300,000 Unrealized gain on marketable securities 492,000 550,000 ----------- ----------- Net gain on marketable securities $ 457,000 $ 850,000 =========== =========== For the six months ended December 31, 2008 2007 ----------- ----------- Realized (loss)gain on marketable securities $ (310,000) $ 47,000 Unrealized gain(loss) on marketable securities 520,000 (133,000) ----------- ----------- Net gain(loss) on marketable securities $ 210,000 $ (86,000) =========== ===========
-11- NOTE 6 - OTHER INVESTMENTS The Company may also invest, with the approval of the Securities Investment Committee, in private investment equity funds and other unlisted securities, such as convertible notes through private placements. Those investments in non- marketable securities are carried at cost on the Company's balance sheet as part of other investments net of other than temporary impairment losses. As of December 31, 2008 and June 30, 2008, the Company had net other investments of $4,365,000 and $4,239,000, which consist of the following: Type December 31, 2008 June 30, 2008 --------------------------- ------------------ ---------------- Private equity hedge fund $ 3,865,000 $ 3,975,000 Corporate debt instruments 300,000 64,000 Other 200,000 200,000 ----------------- ---------------- $ 4,365,000 $ 4,239,000 ================= ================ In accordance with Emerging Issues Task Force No. 03-01, "The Meaning of Other- Than-Temporary Impairment and Its Application to Certain Investments", the Company recorded impairment losses $527,000 and $90,000, respectively, during the six months ended December 31, 2008 and 2007. NOTE 7 - FAIR VALUE MEASUREMENTS In September 2006, the FASB issued SFAS No. 157, "Fair Value Measurements" ("SFAS No. 157"), which defines fair value, establishes a framework for measuring fair value and expands disclosures about fair value measurements. SFAS No. 157 is effective as of the beginning of the Company's 2009 fiscal year. In February 2008, the FASB deferred the effective date of SFAS No. 157 for non-financial assets and liabilities that are recognized or disclosed at fair value on a nonrecurring basis until the beginning of fiscal year 2010. The Company adopted SFAS No. 157 with respect to financial assets and liabilities on July 1, 2008. There was no material effect on the financial statements upon adoption of this new accounting pronouncement. The impact on the financial statements from adoption of SFAS No. 157 as it pertains to non-financial assets and liabilities has not yet been determined. SFAS No. 157 discusses valuation techniques, such as the market approach (comparable market prices), the income approach (present value of future income or cash flow), and the cost approach (cost to replace the service capacity of an asset or replacement cost). The statement utilizes a fair value hierarchy that prioritizes the inputs to valuation techniques used to measure fair value into three broad levels: Level 1: Unadjusted quoted prices in active markets that are accessible at the measurement date for identical, unrestricted assets or liabilities. Level 2: Inputs, other than quoted prices, that are observable for the asset or liability, either directly or indirectly. These include quoted prices for similar assets or liabilities in active markets and quoted prices for identical or similar assets or liabilities in markets that are not active. -12- Level 3: Unobservable inputs that reflect the reporting entity's own assumptions The assets measured at fair value on a recurring basis as of December 31, 2008 are as follows: Assets: Level 1 Level 2 Level 3 December 31, 2008 - ----------- --------- --------- --------- ------------------ Cash $ 138,000 - - $ 138,000 Investment in marketable securities 4,045,000 - - 4,045,000 --------- --------- --------- --------- $4,183,000 - - $4,183,000 ========= ========= ========= =========
The fair values of investments in marketable securities are determined by the most recently traded price of each security at the balance sheet date. Financial assets that are measured at fair value on a non-recurring basis and are not included in the tables above include "Other investments in non- marketable securities," that were initially measured at cost and have been written down to fair value as a result of an impairment. The following table shows the fair value hierarchy for these assets measured at fair value on a non-recurring basis as of December 31, 2008: Loss for the Six months ended Assets: Level 1 Level 2 Level 3 December 31, 2008 December 31, 2008 - ----------- --------- --------- --------- ------------------ ------------------ Other non-marketable investments - - $4,365,000 $4,365,000 $(527,000)
Other investments in non-marketable securities are carried at cost net of any impairment loss. The Company has no significant influence or control over the entities that issue these investments. These investments are reviewed on a periodic basis for other-than-temporary impairment. The Company reviews several factors to determine whether a loss is other-than-temporary. These factors include but are not limited to: (i) the length of time an investment is in an unrealized loss position, (ii) the extent to which fair value is less than cost, (iii) the financial condition and near term prospects of the issuer and (iv) our ability to hold the investment for a period of time sufficient to allow for any anticipated recovery in fair value. In February 2007, the FASB issued SFAS No. 159, "The Fair Value Option for Financial Assets and Financial Liabilities-Including an Amendment of FASB Statement No. 115." SFAS No. 159 provides entities with an irrevocable option to report selected financial assets and financial liabilities at fair value. It also establishes presentation and disclosure requirements that are designed to facilitate comparisons between entities that choose different measurement attributes for similar types of assets and liabilities. The Company adopted SFAS No. 159 on July 1, 2008 and chose not to elect the fair value option for its financial assets and liabilities that had not been previously carried at fair value. Therefore, material financial assets and liabilities not carried at fair value, such as other assets, accounts payable, line of credit, and mortgage payables are reported at their carrying values. -13- NOTE 8 - TERMINATION OF GARAGE LEASE Effective October 1, 2008, Justice and Evon entered into an Installment Sale Agreement whereby Justice purchased all of Evon's right title and interest in the remaining term of its lease of the parking garage, which was to expire on November 30, 2010, and other related assets. Justice also agreed to assume Evon's contract with Ace Parking for the management of the garage and any other liabilities related to the operation of the garage commencing October 1, 2008. The purchase price for the garage lease and related assets was approximately $755,000, payable in one down payment of approximately $28,000 and 26 equal monthly installments of approximately $29,000, which includes interest at the rate of 2.4% per annum. During the three and six months ended December 31, 2008, the Company recorded a loss on the termination of the garage lease of $684,000 on the Company's condensed consolidated statements of operations. Future installment payments are as follows: For the year ending June 30, 2009 $172,000 2010 345,000 2011 144,000 -------- Total $661,000 ======== As of December 31, 2008, the total installment liability of $631,000 was included in the accounts payable and other liabilities balance of $8,548,000 on the Company's condensed consolidated balance sheet. NOTE 9 - LINE OF CREDIT On December 12, 2008, Justice obtained a modification and extension of its unsecured revolving line of credit facility from United California Bank ("UCB") which was to mature on February 2, 2009. The modification extends the term of the credit facility to February 2, 2010, but reduced the limit of funds available to the Partnership for short term capital for the Hotel's business operations from $3,000,000 to $2,500,000. The annual interest rate is based on an index selected by Justice at the time of advance, equal to the Wall Street Journal Prime Rate plus 1.0%, or the LIBOR Rate plus 3.5%, with an interest rate floor of 5% per annum. As of December 31, 2008, there was a balance of $1,756,000 drawn by Justice under the line of credit facility, with an annual interest rate of 5% since the selected rate of Prime (3.25% as of December 31, 2008) plus 1% was less than the floor rate. As of December 31, 2008, Justice was not in compliance with a financial covenant pertaining to the line of credit. The non-compliance resulted from the one-time, non-recurring loss of $684,000 on the termination of the garage lease and related professional fees. The Company is working on obtaining a waiver of non-compliance from the bank and does not believe it will have a material impact on the financial statements. -14- NOTE 10 - SEGMENT INFORMATION The Company operates in three reportable segments, the operation of the hotel, its multi-family residential properties and the investment of its cash in marketable securities and other investments. These three operating segments, as presented in the financial statements, reflect how management internally reviews each segment's performance. Management also makes operational and strategic decisions based on this same information. Information below represents reporting segments for the three and six months ended December 31, 2008 and 2007, respectively. Operating income (loss) for rental properties consist of rental income. Operating income from hotel operations consists of the operation of the hotel and operation of the garage. Operating income from investment transactions consist of net investment gain(loss) and dividend and interest income. As of and for the Three months ended Hotel Real Estate Investment December 31, 2008 Operations Operations Transactions Other Total ----------- ----------- ------------ ----------- ------------ Operating income $ 8,644,000 $ 135,000 $ 487,000 $ - $ 9,266,000 Operating expenses (9,830,000) (120,000) (110,000) - (10,060,000) ----------- ----------- ----------- ----------- ------------ (1,186,000) 15,000 377,000 - (794,000) General and administrative Expense - - - (259,000) (259,000) Income tax benefit - - - 174,000 174,000 Minority interest - - - 261,000 261,000 ----------- ----------- ----------- ----------- ------------ Net income (loss) $(1,186,000) $ 15,000 $ 377,000 $ 176,000 $ (618,000) =========== =========== =========== =========== ============ Total Assets $45,136,000 $ 5,331,000 $ 8,410,000 $11,694,000 $ 70,571,000 =========== =========== =========== =========== ============
As of and for the Three months ended Hotel Real Estate Investment December 31, 2007 Operations Operations Transactions Other Total ----------- ----------- ------------ ----------- ------------ Operating income $ 9,619,000 $ 140,000 $ 888,000 $ - $ 10,647,000 Operating expenses (10,199,000) (111,000) (126,000) - (10,436,000) ----------- ----------- ----------- ----------- ------------ (580,000) 29,000 762,000 - 211,000 General and administrative Expense - - - (244,000) (244,000) Income tax expense - - - (93,000) (93,000) Minority interest 257,000 - - (32,000) 225,000 ----------- ----------- ----------- ----------- ------------ Net income (loss) $ (323,000) $ 29,000 $ 762,000 $ (369,000) $ 99,000 =========== =========== =========== =========== ============ Total Assets $47,952,000 $ 5,408,000 $14,268,000 $ 9,403,000 $ 77,031,000 =========== =========== =========== =========== ============
-15- As of and for the Six months ended Hotel Real Estate Investment December 31, 2008 Operations Operations Transactions Other Total ----------- ----------- ------------ ----------- ------------ Operating income $17,943,000 $ 274,000 $ (250,000) $ - $ 17,967,000 Operating expenses (18,913,000) (244,000) (218,000) - (19,375,000) ----------- ----------- ----------- ----------- ------------ (970,000) 30,000 (468,000) - (1,408,000) General and administrative Expense - - - (437,000) (437,000) Income tax benefit - - - 521,000 521,000 Minority interest (96,000) - - 362,000 266,000 ----------- ----------- ----------- ----------- ------------ Net income (loss) $(1,066,000) $ 30,000 $ (468,000) $ 446,000 $ (1,058,000) =========== =========== =========== =========== ============ Total Assets $45,136,000 $ 5,331,000 $ 8,410,000 $11,694,000 $ 70,571,000 =========== =========== =========== =========== ============
As of and for the Six months ended Hotel Real Estate Investment December 31, 2007 Operations Operations Transactions Other Total ----------- ----------- ------------ ----------- ------------ Operating income $19,405,000 $ 278,000 $ (95,000) $ - $ 19,588,000 Operating expenses (20,517,000) (223,000) (288,000) - (21,028,000) ----------- ----------- ----------- ----------- ------------ (1,112,000) 55,000 (383,000) - (1,440,000) General and administrative Expense - - - (481,000) (481,000) Income tax benefit - - - 549,000 549,000 Minority interest 535,000 - - 180,000 715,000 ----------- ----------- ----------- ----------- ------------ Net income (loss) $ (577,000) $ 55,000 $ (383,000) $ 248,000 $ (657,000) =========== =========== =========== =========== ============ Total Assets $47,952,000 $ 5,408,000 $14,268,000 $ 9,403,000 $ 77,031,000 =========== =========== =========== =========== ============
NOTE 11 - RELATED PARTY TRANSACTIONS Certain shared costs and expenses primarily administrative expenses including rent and insurance, are allocated among the Company and its subsidiary, Portsmouth, and the Company's parent, InterGroup, based on management's estimate of the pro rata utilization of resources. For the three months ended December 31, 2008 and 2007, the Company and Portsmouth made payments to InterGroup of $36,000 for each respective period. For the six months ended December 31, 2008 and 2007, the Company and Portsmouth made payments to InterGroup of $72,000 for each respective period. Evon, a general partner of Justice, was the lessee of the parking garage until September 30, 2008. Under the terms of the lease agreement, Evon paid the Partnership $319,000 and $415,000 for the six months ended December 31, 2008 and 2007, respectively. As discussed in Note 7, Justice and Evon entered into an installment sale agreement whereby Justice purchased the remaining term of the lease agreement and related assets for a total of approximately $755,000. During the three months and six months ended December 31, 2008, the Company received management fees from Justice Investors totaling $52,000 and $97,000, respectively. These amounts were eliminated in consolidation. -16- John V. Winfield serves as Chief Executive Officer and Chairman of the Company, Portsmouth, and InterGroup. Depending on certain market conditions and various risk factors, the Chief Executive Officer, his family, Portsmouth and InterGroup may, at times, invest in the same companies in which the Company invests. The Company encourages such investments because it places personal resources of the Chief Executive Officer and his family members, and the resources of Portsmouth and InterGroup, at risk in connection with investment decisions made on behalf of the Company. Item 2 - MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS FORWARD-LOOKING STATEMENTS AND PROJECTIONS The Company may from time to time make forward-looking statements and projections concerning future expectations. When used in this discussion, the words "anticipate," "estimate," "expect," "project," "intend," "plan," "believe," "may," "could," "might" and similar expressions, are intended to identify forward-looking statements. These statements are subject to certain risks and uncertainties, such as national and worldwide economic conditions, including the impact of recessionary conditions on tourism, travel and the lodging industry, the impact of terrorism and war on the national and international economies, including tourism and securities markets, energy and fuel costs, natural disasters, general economic conditions and competition in the hotel industry in the San Francisco area, seasonality, labor relations and labor disruptions, partnership distributions, the ability to obtain financing at favorable interest rates and terms, securities markets, regulatory factors, litigation and other factors discussed below in this Report and in the Company's Annual Report on Form 10-KSB for the fiscal year ended June 30, 2008, that could cause actual results to differ materially from those projected. Readers are cautioned not to place undue reliance on these forward-looking statements, which speak only as to the date hereof. The Company undertakes no obligation to publicly release the results of any revisions to those forward- looking statements, which may be made to reflect events or circumstances after the date hereof or to reflect the occurrence of unanticipated events. RESULTS OF OPERATIONS The Company's principal sources of revenue continue to be derived from the investment of its 68.8% owned subsidiary, Portsmouth, in the Justice Investors limited partnership ("Justice" or the "Partnership"), rental income from its investments in multi-family real estate properties and income received from investment of its cash and securities assets. Portsmouth has a 50.0% ownership interest in the Justice and serves as one of the general partners. Justice owns the land, improvements and leaseholds at 750 Kearny Street, San Francisco, California, known as the Hilton San Francisco Financial District hotel (the "Hotel"). The financial statements of Justice have been consolidated with those of the Company. The Hotel is operated by the Partnership as a full service Hilton brand hotel pursuant to a Franchise License Agreement with Hilton Hotels Corporation. The term of the Agreement is for a period of 15 years commencing on January 12, 2006, with an option to extend the license term for another five years, subject to certain conditions. Justice also has a Management Agreement with Prism Hospitality L.P. ("Prism") to perform the day-to-day management functions of the Hotel. -17- Until September 30, 2008, the Partnership also derived income from the lease of the parking garage to Evon Corporation ("Evon") the other general partner of Justice. As discussed below, effective October 1, 2008, Justice entered into an installment sale agreement with Evon to purchase the remaining term of the garage lease and related garage assets. Justice also leases a portion of the lobby level of the Hotel to a day spa operator. Portsmouth also receives management fees as a general partner of Justice for its services in overseeing and managing the Partnership's assets. Those fees are eliminated in consolidation. RECENT DEVELOPMENTS Effective October 1, 2008, Justice and Evon entered into an Installment Sale Agreement whereby the Partnership purchased all of Evon's right title and interest in the remaining term of its lease of the parking garage, which was to expire on November 30, 2010, and other related assets. The partnership also agreed to assume Evon's contract with Ace Parking for the management of the garage and any other liabilities related to the operation of the garage commencing October 1, 2008. The purchase price for the garage lease and related assets was $755,000, payable in one downpayment of $28,000 and 26 equal monthly installments of $29,000, which includes interest at the rate of 2.4% per annum. On December 1, 2008, Portsmouth and Evon, as the two general partners of Justice, entered into a 2008 Amendment to the Limited Partnership Agreement (the "Amendment") that provides for a change in the respective roles of the general partners. Pursuant to the Amendment, Portsmouth will assume the role of Managing General Partner and Evon will continue on as the Co-General Partner of Justice. The Amendment was ratified by approximately 98% of the limited partnership interests. The Amendment also provides that future amendments to the Limited Partnership Agreement may be made only upon the consent of the general partners and at least seventy five percent (75%) of the interests if the limited partners. Consent of at least 75% of the interests of the limited partners will also be required to remove a general partner pursuant to the Amendment. A copy of the full text of the Amendment is filed as Exhibit 10.1 to this Report. Concurrent with the Amendment to the Limited Partnership Agreement, a new General Partner Compensation Agreement (the "Compensation Agreement") was entered into on December 1, 2008, among Justice, Portsmouth and Evon to terminate and supersede all prior compensation agreement for the general partners. Pursuant to the Compensation Agreement, the general partners of Justice will be entitled to receive an amount equal to 1.5% of the gross annual revenues of the Partnership (as defined), less $75,000 to be used as a contribution toward the cost of Justice engaging an asset manager. In no event shall the annual compensation be less than a minimum base of $285,000, with eighty percent (80%) of that amount being allocated to Portsmouth for its services as managing general partner and twenty percent (20%) allocated to Evon as the co-general partner. Compensation earned by the general partners in each calendar year in excess of the minimum base, will be payable in equal fifty percent (50%) shares to Portsmouth and Evon. A copy of the full text of the Compensation Agreement is filed as Exhibit 10.2 to this Report. -18- Three Months Ended December 31, 2008 Compared to Three Months Ended December 31, 2007 The Company had a net loss of $618,000 for the three months ended December 31, 2008 compared to net income of $99,000 for the three months ended December 31, 2007. As discussed in Note 1, the Company stopped recording a minority interest benefit in Justice Investors beginning the quarter ended December 31, 2008 resulting in the recording of a additional $608,000 in the net loss. During the three months ended December 31, 2008, the Company had a loss on hotel operations of $1,186,000 compared to a loss of $580,000 primarily due to one-time loss related to the termination of the hotel garage lease. During the same period, income from investment transactions decreased to $377,000 for the three months ended December 31, 2008 from $762,000 for the three months ended December 31, 2007. The following table sets forth a more detailed presentation of Hotel operations for the three months ended December 31, 2008 and 2007. For the three months ended December 31, 2008 2007 ---------- ---------- Hotel revenues: Hotel rooms $ 6,612,000 $ 7,309,000 Food and beverage 1,268,000 1,659,000 Garage 571,000 421,000 Other operating departments 193,000 230,000 ---------- ---------- Total hotel revenues 8,644,000 9,619,000 ---------- ---------- Operating expenses excluding interest, depreciation and amortization (7,277,000) (8,353,000) ---------- ---------- Operating income 1,367,000 1,266,000 Loss on termination of garage lease (684,000) - Interest expense (724,000) (703,000) Depreciation and amortization expense (1,145,000) (1,143,000) ---------- ---------- Loss from hotel operations $(1,186,000) $ (580,000) ========== ==========
For the three months ended December 31, 2008, the Hotel generated operating income of approximately $1,367,000, before the loss on termination of garage lease, interest, depreciation and amortization, on operating revenues of approximately $8,644,000 compared to operating income of approximately $1,266,000 before interest, depreciation and amortization, on operating revenues of approximately $9,619,000 for the three months ended December 31, 2007. The increase in Hotel operating income is primarily attributable to lower operating expenses and an increase in garage revenues partially offset by a decrease in room and food and beverage revenues. Management expects that the termination of the garage lease will result in greater operating income in the future and promote greater efficiencies with the garage operations now integrated into those of the Hotel. Room revenues decreased by $697,000 for the three months ended December 31, 2008 when compared to the three months ended December 31, 2007 and food and beverage revenues decreased by $391,000 for the same periods. That decrease in revenues was attributable to both a lower average daily rate and occupancy percentage compared to the prior period. The decrease in operating expenses is primarily attributable to the decline in hotel occupancy during the current quarter and management's efforts to reduce operating costs and to achieve greater efficiencies. -19- The following table sets forth the average daily room rate, average occupancy percentage and room revenue per available room ("RevPar") of the Hotel for the three months ended December 31, 2008 and 2007. Three Months Ended Average Average December 31, Daily Rate Occupancy% RevPar - ----------------- ---------- --------- -------- 2008 $166 79% $132 2007 $171 85% $146 The operations of the Hotel were severely impacted by the dramatic downturn in the domestic and international economies and markets during the three months ended December 31, 2008. Average daily rate, occupancy and RevPar all declined compared to the three months ended December 31, 2007. That impact is expected to continue through fiscal 2009. If that remains true, we expect Hotel operating revenues to be less than fiscal 2008. Facing an uncertain economy and the prospect of a lingering recession, management has continued to focus on ways to improve efficiencies and reduce operating costs and other expenses in its efforts to stabilize and maintain operating income of the Hotel. As a result of those efforts, we have seen further reductions in operating costs of the Hotel as a percentage of Hotel revenues for the three months ended December 31, 2008. Management has also increased its sales and marketing efforts in what has become an even more competitive hotel market in San Francisco as hotels have slashed rates in an effort to maintain occupancy levels. Management will also continue to explore new and innovative ways to improve operations and enhance the guest experience. One significant step was to move lunch and dinner service from the restaurant to the lounge to create a more intimate, yet lively, atmosphere and to complement the new wine bar "Flyte" in the lobby of the Hotel. The Company had income on marketable securities of $457,000 for the three months ended December 31, 2008 compared to income on marketable securities of $850,000 for the three months ended December 31, 2007. For the three months ended December 31, 2008, the Company had a net realized loss of $35,000 and a net unrealized gain of $492,000. For the three months ended December 31, 2007, the Company had a net realized gain of $300,000 and a net unrealized gain of $550,000. Gains and losses on marketable securities may fluctuate significantly from period to period in the future and could have a significant impact on the Company's results of operations. However, the amount of gain or loss on marketable securities for any given period may have no predictive value and variations in amount from period to period may have no analytical value. For a more detailed description of the composition of the Company's marketable securities see the Marketable Securities section below. As discussed in Note 1, during the three months December 31, 2008, the Company did not record a minority interest benefit of $608,000 related to the loss from hotel operations. In the comparable quarter ended December 31, 2007, the Company recorded a minority interest benefit of $257,000. The provision for income tax changed to a tax benefit of $174,000 for the three months ended December 31, 2008 from an tax expense of $93,000 for the three months end December 31, 2007 primarily as the result of the pre-tax loss incurred during the three months ended December 31, 2008. As noted above and in Note 1, the Company did not record a pre-tax minority interest benefit for -20- the three months ended December 31, 2008. As the result the effective tax rate during the three months ended December 31, 2008 is lower compared to the three months ended December 31, 2007. Minority interest related to Portsmouth and Woodland Village changed to a benefit of $261,000 for the three months ended December 31, 2008 from an expense of $32,000 for the three months ended December 31, 2007 primarily due to the higher loss incurred by Portsmouth during the three months ended December 31, 2008. Six Months Ended December 31, 2008 Compared to Six Months Ended December 31, 2007 The Company had a net loss of $1,058,000 for the six months ended December 31, 2008 compared to net loss of $657,000 for the six months ended December 31, 2007. As discussed in Note 1, the Company stopped recording a minority interest benefit in Justice Investors beginning the quarter ended December 31, 2008 resulting in the recording of a additional $608,000 in the net loss. During the six months ended December 31, 2008, the Company had a loss on hotel operations of $970,000 compared to a loss of $1,112,000. During the same period, the loss from investment transactions increased to $468,000 for the six months ended December 31, 2008 from $383,000 for the six months ended December 31, 2007. The following table sets forth a more detailed presentation of Hotel operations for the six months ended December 31, 2008 and 2007. For the six months ended December 31, 2008 2007 ---------- ---------- Hotel revenues: Hotel rooms $14,200,000 $ 15,224,000 Food and beverage 2,527,000 2,948,000 Garage 970,000 836,000 Other operating departments 246,000 397,000 ---------- ---------- Total hotel revenues 17,943,000 19,405,000 ---------- ---------- Operating expenses excluding interest, depreciation and amortization (14,519,000) (16,911,000) ---------- ---------- Operating income 3,424,000 2,494,000 Loss on termination of garage lease (684,000) - Interest expense (1,443,000) (1,405,000) Depreciation and amortization expense (2,267,000) (2,201,000) ---------- ---------- Loss from hotel operations $ (970,000) $(1,112,000) ========== ==========
For the six months ended December 31, 2008, the Hotel generated operating income of approximately $3,424,000, before the loss on the termination of garage lease, interest, depreciation and amortization, on operating revenues of approximately $17,943,000 compared to operating income of approximately $2,494,000 before interest, depreciation and amortization, on operating revenues of approximately $19,405,000 for the six months ended December 31, 2007. The increase in Hotel operating income is primarily due to a significant decrease in operating expenses of approximately $2,343,000, partially offset by a decrease in operating revenues of approximately $1,462,000. The decrease in operating expenses is primarily attributable to certain nonrecurring legal and -21- consulting fees incurred in the three months ended September 30, 2007 related to construction litigation that was settled as of June 30, 2008 and for zoning issues. Operating expenses also decreased due to a decline in hotel occupancy during the current period and management's efforts to reduce costs and achieve greater efficiencies. That decline in occupancy was also the primary reason for the decrease in operating revenues compared to the prior period. Management expects that the termination of the garage lease will result in greater operating income in the future and promote greater efficiencies with the garage operations now integrated into those of the Hotel. The following table sets forth the average daily room rate, average occupancy percentage and room revenue per available room ("RevPar") of the Hotel for the six months ended December 31, 2008 and 2007. Six Months Ended Average Average December 31, Daily Rate Occupancy% RevPar - ----------------- ---------- --------- -------- 2008 $177 80% $142 2007 $173 87% $152 While the Hotel was able to achieve a modest increase of approximately $4 in its average daily room rates for the six months ended December 31, 2008 compared to the six months ended December 31, 2007, that increase was primarily attributable to the three months ended September 30, 2008. The full impact of the dramatic downturn in the domestic and international economies and markets was not felt by the operations of the Hotel until September 2008 and is expected to continue at least through fiscal 2009. As a result, average occupancy percentage declined approximately 7% for the six months ended December 31, 2008 and RevPar was down approximately $10 from the comparable period. Facing the prospect of a recession and a decline in business, group and leisure travel, both domestic and international, management has continued to focus on ways to improve efficiencies and reduce operating costs and other expenses in its efforts to stabilize and maintain operating income of the Hotel. As a result of those efforts, we have seen further reductions in operating costs of the Hotel as a percentage of Hotel revenues for the three months ended December 31, 2008. Management will also increase its sales and marketing efforts in what is expected to become an even more competitive hotel market in San Francisco. Management will also continue to explore new and innovative ways to improve operations and enhance the guest experience. One significant step was to move lunch and dinner service from the restaurant to the lounge to create a more intimate, yet lively, atmosphere and to complement the new wine bar "Flyte" in the lobby of the Hotel. Income from real estate operations decreased to income of $30,000 for the six months ended December 31, 2008 from income of $55,000 for the six months ended December 31, 2007. The decrease in the income from real estate operations is primarily due to the increase in operating expenses to $123,000 from $97,000 as the result of higher repairs and maintenances expenses as well as make ready expenses related to the turn over of several tenants. The Company had income on marketable securities of $210,000 for the six months ended December 31, 2008 compared to a loss on marketable securities of $86,000 for the six months ended December 31, 2007. For the six months ended December -22- 31, 2008, the Company had a net realized loss of $310,000 and a net unrealized gain of $520,000. For the six months ended December 31, 2007, the Company had a net realized gain of $47,000 and a net unrealized loss of $133,000. Gains and losses on marketable securities may fluctuate significantly from period to period in the future and could have a significant impact on the Company's results of operations. However, the amount of gain or loss on marketable securities for any given period may have no predictive value and variations in amount from period to period may have no analytical value. For a more detailed description of the composition of the Company's marketable securities see the Marketable Securities section below. For the six months ended December 31, 2008, general and administrative expenses decreased to $437,000 from $481,000 for the six months ended December 31, 2007. The decrease is primarily attributable to the decrease in accounting related expenses. Minority interest related to Justice Investors changed to an expense of $96,000 for the six months ended December 31, 2008 from a benefit of $535,000 for the six months ended December 31, 2007. As discussed in Note 1, during the three months December 31, 2008, the Company did not record a minority interest benefit of $608,000 related to the loss from hotel operations. The $96,000 minority interest expense was recorded during the three months ended September 30, 2008. During the six months ended December 31, 2007, the Company recorded a minority interest benefit of $535,000. The provision for income tax benefit decreased to $521,000 for the six months ended December 31, 2008 from $549,000 for the six months end December 31, 2007. As noted above and in Note 1, the Company did not record a pre-tax minority interest benefit for the three months ended December 31, 2008. As the result the effective tax rate during the six months ended December 31, 2008 is lower compared to the six months ended December 31, 2007. Minority interest related to Portsmouth and Woodland Village increased to $362,000 for the six months ended December 31, 2008 from $180,000 for the six months ended December 31, 2007 primarily due to the higher loss incurred by Portsmouth during the six months ended December 31, 2008. MARKETABLE SECURITIES AND OTHER INVESTMENTS The Company's investment portfolio is diversified with 37 different equity positions. The portfolio contains six equity securities that are more than 5% of the equity value of the portfolio, with the largest being 51.8% of the value of the portfolio. The amount of the Company's investment in any particular issuer may increase or decrease, and additions or deletions to its securities portfolio may occur, at any time. While it is the internal policy of the Company to limit its initial investment in any single equity to less than 5% of its total portfolio value, that investment could eventually exceed 5% as a result of equity appreciation or reduction of other positions. Marketable securities are stated at market value as determined by the most recently traded price of each security at the balance sheet date. As of December 31, 2008 and June 30, 2008, the Company had investments in marketable equity securities of $4,045,000 and $4,328,000, respectively. The following tables show the composition of the Company's marketable securities portfolio by selected industry groups as of December 31, 2008 and June 30, 2008. -23- As of December 31, 2008: % of Total Investment Industry Group Fair Value Securities -------------- ------------ ---------- Dairy products $ 1,617,000 40.0% Basic materials and energy 630,000 15.6% Financial services and REITs 393,000 9.7% Healthcare 323,000 8.0% Consumer cyclical 316,000 7.8% Industrial 274,000 6.8% Other 492,000 12.1% ------------ ---------- $ 4,045,000 100.0% ============ ========== As of June 30, 2008: % of Total Investment Industry Group Fair Value Securities -------------- ------------ ---------- Dairy products $ 1,036,000 23.9% Communications 610,000 14.1% Financial 555,000 12.8% Basic materials 393,000 9.1% Transportation 285,000 6.6% Medical 270,000 6.2% Other 1,179,000 27.3% ---------- ------ $ 4,328,000 100.0% ========== ====== The following table shows the net gain or loss on the Company's marketable securities and the associated margin interest and trading expenses for the respective period. For the three months ended December 31, 2008 2007 ---------- ----------- Net gain on marketable securities $ 457,000 $ 850,000 Dividend and interest income 30,000 38,000 Margin interest expense (7,000) (27,000) Trading and management expenses (103,000) (99,000) ---------- ---------- $ 377,000 $ 762,000 ========== ========== For the six months ended December 31, 2008 2007 ---------- ----------- Net gain(loss) on marketable securities $ 210,000 $ (86,000) Impairment loss on other investments (527,000) (90,000) Dividend and interest income 67,000 81,000 Margin interest expense (22,000) (94,000) Trading and management expenses (196,000) (194,000) ---------- ---------- $ (468,000) $ (383,000) ========== ========== -24- The Company may also invest, with the approval of the Securities Investment Committee, in private investment equity funds and other unlisted securities, such as convertible notes through private placements. Those investments in non- marketable securities are carried at cost on the Company's balance sheet as part of other investments, net of other than temporary impairment losses. As of December 31, 2008 and June 30, 2008, the Company had net other investments of $4,365,000 and $4,239,000, respectively. During the six months ended December 31, 2008 and 2007, the Company made investments in corporate debt instruments of a public company in the basic materials sector totaling $750,000 and $340,000, respectively. During the six months ended December 31, 2008 and 2007, the Company received common stock issued upon conversion or as payment of interest and penalties on convertible notes in this company. During the six months ended December 31, 2008, the Company sold approximately $141,000 and $30,000, respectively, of this company's stock. As of December 31, 2008, The Company had $492,000 of this company's common stock included in its investment in marketable securities balance of $4,045,000. FINANCIAL CONDITION AND LIQUIDITY The Company's cash flows are primarily generated from the operations of the Hotel. The Company also generates revenues from its real estate operations and from the investment of its cash and marketable securities, and other investments. Since the operations of the Hotel operations of the Hotel were temporarily suspended on May 31, 2005, and significant amounts of money were expended to renovate and reposition the Hotel as a Hilton, Justice did not pay any partnership distributions until the end of March 2007. As a result, the Company had to depend more on the revenues generated from the investment of its cash and marketable securities during that transition period. The Hotel started to generate cash flows from its operations in June 2006, which have continued to improve since that time. For the six months ended December 31, 2008, Justice paid a total of $850,000 in limited partnership distributions, of which the Company received $425,000. For the six months ended December 31, 2007, Justice paid a total of $1,000,000 in limited partnership distributions, of which the Company received $500,000. The general partners expect to conduct regular reviews to set the amount of any future distributions that may be appropriate based on the results of operations of the Hotel and other factors, including establishment of reasonable reserves for debt payments and operating contingencies. The recent dramatic downturn in domestic and international economies and markets, and the prospect of a prolonged recession, are expected to have a negative impact on the operating results of the Hotel in fiscal 2009, which will limit amounts available for limited partnership distributions. To meet its substantial financial commitments for the renovation and transition of the Hotel to a Hilton, Justice had to rely on borrowings to meet its obligations. On July 27, 2005, Justice entered into a first mortgage loan with The Prudential Insurance Company of America in a principal amount of $30,000,000 (the "Prudential Loan"). The term of the Prudential Loan is for 120 months at a fixed interest rate of 5.22% per annum. The Prudential Loan calls for monthly installments of principal and interest in the amount of approximately $165,000, calculated on a 30-year amortization schedule. The Prudential Loan is collateralized by a first deed of trust on the Partnership's Hotel property, including all improvements and personal property thereon and an -25- assignment of all present and future leases and rents. The Prudential Loan is without recourse to the limited and general partners of Justice. As of December 31, 2008 the Prudential Loan balance was approximately $28,492,000. On March 27, 2007, Justice entered into a second mortgage loan with Prudential (the "Second Prudential Loan") in the principal amount of $19,000,000. The term of the Second Prudential Loan is for approximately 100 months and matures on August 5, 2015, the same date as the first Prudential Loan. The Second Prudential Loan is at a fixed interest rate of 6.42% per annum and calls for monthly installments of principal and interest in the amount of approximately $119,000, calculated on a 30-year amortization schedule. The Second Prudential Loan is collateralized by a second deed of trust on the Partnership's Hotel property, including all improvements and personal property thereon and an assignment of all present and future leases and rents. The Second Prudential Loan is without recourse to the limited and general partners of Justice. As of December 31, 2008, the Second Prudential Loan balance was approximately $18,662,000. On December 12, 2008, Justice obtained a modification and extension of it unsecured revolving line of credit facility from United California Bank ("UCB") which was to mature on February 2, 2009. The modification extends the term of the credit facility to February 2, 2010, but reduced the limit of funds available to the Partnership for short term capital for the Hotel's business operations from $3,000,000 to $2,500,000. The annual interest rate is based on an index selected by Justice at the time of advance, equal to the Wall Street Journal Prime Rate plus 1.0%, or the LIBOR Rate plus 3.5%, with an interest rate floor of 5% per annum. As of December 31, 2008, there was a balance of $1,756,000 drawn by Justice under the line of credit facility, with an annual interest rate of 5% since the selected rate of Prime (3.25% as of December 31, 2008) plus 1% was less than the floor rate. While the debt service requirements related to the two Prudential loans, as well as the utilization of the UCB line of credit, may create some additional risk for the Company and its ability to generate cash flows in the future since the Partnership's assets had been virtually debt free for an number of years, management believes that cash flows from the operations of the Hotel and the garage will continue to be sufficient to meet all of the Partnership's current and future obligations and financial requirements. Management also believes that there is sufficient equity in the Hotel assets to support future borrowings, if necessary, to fund any new capital improvements and other requirements. The Company has invested in short-term, income-producing instruments and in equity and debt securities when deemed appropriate. The Company's marketable securities are classified as trading with unrealized gains and losses recorded through the statements of operations. Management believes that its cash, marketable securities, other investments, real estate operations and the cash flows generated from those assets and from partnership distributions and management fees, will be adequate to meet the Company's current and future obligations. -26- MATERIAL CONTRACTUAL OBLIGATIONS The Company does not have any material contractual obligations or commercial commitments other than the mortgages of its rental properties, Justice Investors' mortgage loans with Prudential and its revolving line of credit facility with UCB. OFF BALANCE SHEET ARRANGEMENTS The Company has no off balance sheet arrangements. IMPACT OF INFLATION Hotel room rates are typically impacted by supply and demand factors, not inflation, since rental of a hotel room is usually for a limited number of nights. Room rates can be, and usually are, adjusted to account for inflationary cost increases. Since Prism has the power and ability under the terms of its management agreement to adjust hotel room rates on an ongoing basis, there should be minimal impact on partnership revenues due to inflation. Partnership revenues are also subject to interest rate risks, which may be influenced by inflation. For the two most recent fiscal years, the impact of inflation on the Company's income is not viewed by management as material. The Company's residential rental properties provide income from short-term operating leases and no lease extends beyond one year. Rental increases are expected to offset anticipated increased property operating expenses. CRITICAL ACCOUNTING POLICIES Critical accounting policies are those that are most significant to the portrayal of our financial position and results of operations and require judgments by management in order to make estimates about the effect of matters that are inherently uncertain. The preparation of these condensed financial statements requires us to make estimates and judgments that affect the reported amounts in our consolidated financial statements. We evaluate our estimates on an on-going basis, including those related to the consolidation of our subsidiaries, to our revenues, allowances for bad debts, accruals, asset impairments, other investments, income taxes and commitments and contingencies. We base our estimates on historical experience and on various other assumptions that we believe to be reasonable under the circumstances, the results of which form the basis for making judgments about the carrying values of assets and liabilities. The actual results may differ from these estimates or our estimates may be affected by different assumptions or conditions. -27- Item 4T. Controls and Procedures. EVALUATION OF DISCLOSURE CONTROLS AND PROCEDURES The Company's management, with the participation of the Company's Chief Executive Officer and Principal Financial Officer, has evaluated the effectiveness of the Company's disclosure controls and procedures (as defined in Rules 13a-15(e) and 15d-15(e) under the Exchange Act) as of the end of the quarterly period covered by this Quarterly Report on Form 10-Q. Based upon such evaluation, the Chief Executive Officer and Principal Financial Officer have concluded that, as of the end of such period, the Company's disclosure controls and procedures are effective in ensuring that information required to be disclosed in this filing is accumulated and communicated to management and is recorded, processed, summarized and reported within the time periods specified in the Securities and Exchange Commission rules and forms. CHANGES IN INTERNAL CONTROL OVER FINANCIAL REPORTING There have been no changes in the Company's internal control over financial reporting during the last quarterly period covered by this Quarterly Report on Form 10-Q that have materially affected, or are reasonably likely to materially affect, the Company's internal control over financial reporting. -28- PART II. OTHER INFORMATION Item 2. Unregistered Sales of Equity Securities and Use of Proceeds (a) None. (b) Not applicable. (c) Purchases of equity securities by the small business issuer and affiliated purchasers. Santa Fe did not repurchase any of its own securities during the second quarter of its fiscal year ending June 30, 2009 and does not have any publicly announced repurchase program. The following table reflects purchases of Santa Fe's common stock made by The InterGroup Corporation, for its own account, during the second quarter of fiscal 2009. InterGroup can be considered an affiliated purchaser. SMALL BUSINESS ISSUER PURCHASES OF EQUITY SECURITIES (c)Total Number (d)Maximum Number (a)Total (b) of Shares Purchased of Shares that May Fiscal Number of Average as Part of Publicly Yet Be Purchased 2009 Shares Price Paid Announced Plans Under the Plans Period Purchased Per Share or Programs or Programs - -------------------------------------------------------------------------------------- Month #1 (Oct. 1- - - - N/A Oct. 31) - -------------------------------------------------------------------------------------- Month #2 (Nov. 1- - - - N/A Nov. 30) - -------------------------------------------------------------------------------------- Month #3 (Dec. 1- 200 $12.35 - N/A Dec. 31) - -------------------------------------------------------------------------------------- Total 200 $12.35 - N/A - --------------------------------------------------------------------------------------
Item 6. Exhibits. (a) Exhibits 10.1 2008 Amendment to the Limited Partnership Agreement, dated December 1, 2008. 10.2 General Partner Compensation Agreement, dated December 1, 2008. 31.1 Certification of Chief Executive Officer of Periodic Report Pursuant to Rule 13a-14(a) and Rule 15d-14(a). -29 31.2 Certification of Principal Financial Officer of Periodic Report Pursuant to Rule 13a-14(a) and Rule 15d-14(a). 32.1 Certification of Chief Executive Officer Pursuant to 18 U.S.C. Section 1350. 32.2 Certification of Principal Financial Officer Pursuant to 18 U.S.C. Section 1350. SIGNATURES Pursuant to the requirements 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. SANTA FE FINANCIAL CORPORATION (Registrant) Date: February 12, 2009 by /s/ John V. Winfield --------------------------- John V. Winfield, President, Chairman of the Board and Chief Executive Officer Date: February 12, 2009 by /s/ Michael G. Zybala --------------------------- Michael G. Zybala, Vice President, and Secretary Date: February 12, 2009 by /s/ David Nguyen -------------------------- David Nguyen, Treasurer and Controller (Principal Financial Officer -30- EX-10 2 sf10qex101.txt EXHIBIT 10.1 EXHIBIT 10.1 2008 AMENDMENT TO THE LIMITED PARTNERSHIP AGREEMENT THIS 2008 AMENDMENT TO THE LIMITED PARTNERSHIP AGREEMENT ("Amendment"), dated as of December 1, 2008 (the "Effective Date"), is made by JUSTICE INVESTORS, a California partnership (the "Partnership"), PORTSMOUTH SQUARE, INC., a California corporation ("Portsmouth" or "Managing General Partner"), EVEN CORPORATION, formerly known as "Evon Garage Corporation", a California corporation ("Evon" or "Co-General Partner") (Portsmouth and Evon, each a "General Partner" and collectively, the "General Partners"), and the parties listed on the signature pages of this Amendment (each a "Limited Partner" and collectively, the "Limited Partners") (the General Partners and the Limited Partners, each a "Partner" and collectively, the "Partners") (the Partnership and the Partners, each a "Party" and collectively, the "Parties"). RECITALS A. On July 10, 1967, certain Partners formed the Partnership by filing a Certificate of Limited Partnership with the Office of the Recorder of the City and County of San Francisco on July 10, 1967. The Partners are subject to that certain Limited Partnership Agreement dated July 10, 1967, as amended by that certain Amended Limited Partnership Agreement dated March 20, 1968, as amended by that certain Amended Limited Partnership Agreement dated January 1, 1979 ("1979 Restated Agreement"), as amended by that certain Amendment of Partnership Agreement dated as of June 27, 2005 ("2005 Amendment"). The Partners agree that the 1979 Restated Agreement, as amended by the 2005 Amendment (collectively, the "Partnership Agreement") is the operative document of the Partnership. B. In or around 1983, Justice Enterprises, Inc., which was one of the two original general partners, withdrew as a general partner and Evon was made a general partner with Portsmouth. Evon has been acting as the Managing General Partner of the Partnership, and Portsmouth has been acting as the other General Partner. C. The Partnership is the owner of that certain real property located at 750 Kearny Street, San Francisco, California (the "Property"), on which a hotel (the "Hotel") and a garage (the "Garage") are located. The Hotel is currently managed by Prism Hospitality, L.P., a Texas limited partnership ("Prism") pursuant to that certain Management Agreement dated as of February 2, 2007, by and between the Partnership and Prism (the "Hotel Management Agreement"). The persons operating the Hotel are employees of a subsidiary of the Partnership. The Garage is currently managed by Ace Parking Management, Inc. ("Ace") pursuant to that certain Parking Facility Management Agreement dated as of September, 1, 2005, by and between Evon and Ace, which was assigned to the Partnership as of July 1, 2008 (the "Garage Management Agreement"). The Partnership also leases portions of the Property to various tenants. These tenants include the Chinese Cultural Center, a spa and various antennae on the roof of the Hotel. D. The General Partners have determined that it will be beneficial to the Partnership to modify the powers and duties of the General Partners so that Portsmouth takes on Evon's former role as Managing General Partner and Evon takes on Portsmouth's former role as the other General Partner. The General Partners have therefore recommended to the Limited Partners that the Partnership Agreement be amended to modify the management roles and compensation of the General Partners. E. The Partners desire to amend the Partnership Agreement pursuant to the terms and conditions of this Amendment. NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and the mutual provisions contained in this Amendment, the Parties agree as follows: AGREEMENT 1. Managing General Partner; Co-General Partner. The Partnership has two General Partners. Notwithstanding any contrary language in any prior Partnership agreements, as of the Effective Date, the Managing General Partner is Portsmouth (the "Managing General Partner") and the other General Partner is Evon (the "Co-General Partner"). 2. Partnership Office. Each General Partner shall have access to the office of the Partnership located at 750 Kearny Street, Room 502, San Francisco, California 94108 ("Partnership Office") and the Property. The furniture, fixtures, and equipment currently located at the Partnership Office shall remain the property of the Partnership. At the sole cost of the Partnership, each General Partner shall be provided with a computer terminal, desk, file space, access to all Partnership office equipment, and incidental assistance from the Partnership clerical staff as may be necessary to assist such General Partner in the performance of such General Partner's duties. 3. Removal of a General Partner. A General Partner may be removed only upon the consent of at least seventy-five percent (75%) of the interests of the Limited Partners. 4. Amendment of Partnership Agreement. Amendments to the Partnership Agreement may be made only upon the consent of the General Partners and at least seventy five percent (75%) of the interests of the Limited Partners. 5. Purpose of Partnership. Paragraph 4 of the Partnership Agreement is hereby repealed and replaced with the following Paragraph 4: 4. Business of the Partnership. The business of the Partnership is limited to the acquisition, development, management, operation, leasing and sale of the real property commonly known as the Hilton San Francisco Financial District in the City and County of San Francisco, California. A description of said property is attached hereto, marked Exhibit "A", and made a part hereof. The Partnership shall not engage in any other business or activity which is not directly or indirectly related to such primary purpose. 2 6. Powers and Duties of the Partners. Paragraph 9 of the Partnership Agreement is hereby repealed and replaced with the following Paragraph 9: 9. Powers and Duties of the Partners. 9.1 Powers and Duties of the Managing General Partner. The Managing General Partner shall devote such time to the Partnership as shall be necessary to conduct the Partnership business. Subject to the remaining provisions of this Agreement, the Managing General Partner shall be responsible for the management of the Partnership business and shall have all rights, powers and duties generally conferred by law or necessary, advisable or consistent in connection therewith, or in connection with the business of the Partnership. Without limiting the foregoing, and subject to any restrictions set forth in this Agreement (including, without limitation, any consulting and participation rights of Evon as set forth in subparagraph 9.3, the approval rights of Evon as set forth in subparagraph 9.4, and the requirements of subparagraph 9.5 as to the asset manager, the Managing General Partner shall have the following rights and obligations: 9.1.1 Expenditures. To expend the capital and revenues of the Partnership in furtherance of the Partnership business, in accordance with the budget approved by both General Partners. 9.1.2 Agreements and Other Documents. To enter into and carry out agreements of any kind and to do any and all other acts and things necessary, proper or convenient to carry out the Partnership purpose; and to prepare, execute, acknowledge, record, file and/or deliver any and all reports, instruments or documents and to take all actions, required or deemed necessary, reasonable or desirable by the Managing General Partner to effectuate any of the foregoing, to comply with requirements of applicable law or to comply with the provisions of this Agreement. 9.1.3 Insurance. To acquire and enter into any contract of insurance of any type which the Managing General Partner deems necessary or desirable for the protection of the Partnership, for the conversion of its assets, for compliance with loan covenants made by the Partnership, or for any purpose convenient or beneficial to the Partnership. 9.1.4 Employment of Personnel. To employ or engage persons in the operation and management of the Partnership business or assets, including but not limited to supervisory managing agents, building contractors, engineers, appraisers, insurance brokers, real estate brokers and loan brokers, on such terms and for such compensation as the Managing General Partner shall determine. 3 9.1.5 Investments. To invest Partnership cash or, pending other investment in furtherance of the Partnership's purpose, the proceeds derived from the sale of Partnership interests, in United States Treasury obligations, prime quality commercial paper, certificates of deposit, deposit or other obligations of insured commercial banks, savings banks or savings and loan associations, or in any other similar interim investments; provided that such investments are generally considered to be safe, cash-equivalent liquid investments. Partnership funds shall not be used to make any speculative investments or purchase any equity interests. 9.1.7 Partnership Expenses. To pay Partnership expenses (including expenses in connection with an audit or review of Partnership tax returns or a Partnership matter in a Partner's tax return) and to make all decisions relative to Partnership accounting, including without limitation, determining the source of Partnership Disbursements, and whether disbursements are to be made from Partnership operating income or from some other source such as Partnership reserves, proceeds from the sale of Partnership interests, or proceeds from the sale or refinancing of Partnership property. 9.1.8 Reimbursable Expenses. To be reimbursed by, or to charge, the Partnership for reasonable expenses incurred by the Managing General Partner on behalf of the Partnership, provided such expenses were included in the approved budget or are otherwise approved by the Co-General Partner. The Managing General Partner will endeavor to have such Partnership expenses billed directly to the Partnership whenever feasible. The foregoing notwithstanding, the Managing General Partner shall not charge to the Partnership, and shall reimburse the Partnership for, any legal, accounting or other costs incurred by the Managing General Partner or the Partnership due to requirements of the Managing General Partner (including but not limited to costs related to the public reporting and/or Sarbanes- Oxley requirements applicable to the Managing General Partner), but only to the extent those costs exceed the costs that would be incurred by the Partnership if the Managing General Partner had no such requirements. 9.2 Duty to Cooperate with Co-General Partner. In addition to its other obligations, the Managing General Partner shall inform and coordinate with the Co-General Partner as follows: 9.2.1 Information. The Managing General Partner has the obligation to inform Co-General Partner of all significant operational matters concerning the Partnership and the Property with enough time and sufficient detail to permit Co-General Partner to carry out and perform Co-General Partner's fiduciary duties as a General Partner. Specifically, and not by way of limitation, the Managing General Partner, directly or by direction to the Asset Manager (a) will prepare and deliver to Co-General Partner notices of any of the 4 matters set forth in subparagraph 9.4 (Decisions of Both General Partners) or joint decisions identified in subparagraph 9.5 (Asset Manager) within a reasonable time after learning of a matter requiring a joint decision; (b) will provide Co-General Partner with timely and thorough copies of any reports received by the Managing General Partner about Hotel and Garage operations, including, without limitation, the results of audits, auditor's recommendation letters, financial projections, hotel management reports, proposed budgets, significant proposals to change a budget that has been previously adopted, materials prepared for meetings with the Managing General Partner, notices by any governmental entity, and any legal notices, which reports shall include the same level of detail as the reports that have been made available to the Managing General Partner; (c) will provide the Co-General Partner with complete copies of any written materials that Managing General Partner prepares concerning the Hotel and Garage operations, including meeting agendas and materials; (d) upon request by Co- General Partner, will prepare and deliver to Co-General Partner reports concerning the Partnership, the Property and the operations of the Hotel and Garage within a reasonable time after such request; and (e) upon request by the Co-General Partner, will facilitate Co- General Partner's access to senior staff of the Hotel and Garage within a reasonable time after such request. 9.2.2 Meetings. The Managing General Partner shall meet with the Co-General Partner on at least a quarterly basis. The Managing General Partner and the Co-General Partner shall set a schedule of regular meeting to facilitate the Co-General Partner's participation in management decisions which shall include, without limitation, decisions concerning budgets (including forecasts and other budget updates) and capital improvements. The Managing General Partner will provide the Co-General Partner with reasonable advance notice of any meeting with the Asset Manager or the managers or operators of the Hotel and Garage, to the extent that those meetings relate to a change in senior staff of the Hotel or Garage or a material change (a) in Hotel or Garage operations or (b) in the use or management of the Property. 9.3 Powers and Duties of the Co-General Partner. The Co-General Partner shall devote such time to the Partnership as shall be necessary to conduct the Partnership business. The Co-General Partner shall consult with the Managing General Partner and participate in decisions that require the consent of both General Partners, which are listed below in subparagraphs 9.4 and, as applicable, 9.5. Without limiting the foregoing, and subject to the Managing General Partner's primary responsibility for the management of the Partnership's business, the Co-General Partner has the following obligations and express rights, as applicable, to participate in the following activities of the Partnership: 5 9.3.1. Documents. When required by the Partnership Agreement or applicable law, the Co-General Partner shall execute and deliver partnership documents on behalf of the Partnership in a timely fashion. 9.3.2 Service Providers. The Co-General Partner has the right to participate (through oversight and consultation) in supervising and evaluating the work of all persons necessary to provide services for the management and operation of the Hotel and Garage and, as set forth in subparagraphs 9.4.1 below, to participate in making decisions concerning the employment of senior Hotel and Garage staff. 9.3.3 Reports. The Co-General Partner shall have the right to participate (through oversight and consultation) in preparing or causing to be prepared all reports to be provided to the Partners or lenders on a monthly, quarterly, or annual basis consistent with the requirements of this Agreement. 9.3.4 Coordination. The Co-General Partner shall have the right to participate (through oversight and consultation) in coordinating all present and future development, construction, or rehabilitation of the Property. 9.3.5 Compliance. The Co-General Partner shall have the right to assist the Managing General Partner in monitoring compliance with all government regulations and files and to assist in supervising the filing of all required documents with government agencies in a timely fashion. 9.3.6 Communications with Managers. Except as prohibited or otherwise restricted by the Hotel Management Agreement, the Garage Management Agreement, other written agreements between the Partnership and a manager or lessee of a portion of the Property or of the business of the Partnership and any and all successor agreements, the Co-General Partner shall have the right to communicate directly with senior staff of the Hotel and Garage and to request and to receive the same information from such persons as is provided by them to the Managing General Partner. 9.3.7 Reimbursable Expenses. To be reimbursed by, or to charge, the Partnership for reasonable expenses incurred by the Co-General Partner on behalf of the Partnership, provided such expenses were included in the approved budget or are otherwise approved by the Managing General Partner. The Co-General Partner will endeavor to have such Partnership expenses billed directly to the Partnership whenever feasible. The foregoing notwithstanding, the Co-General Partner shall not charge to the Partnership, and shall reimburse the Partnership for, any legal, accounting or other costs incurred by the Co-General Partner or the Partnership due to requirements of the Co-General Partner, but only to the extent those costs exceed the costs that would be incurred by the Partnership if the Co-General Partner had no such requirements. 6 9.4 Decisions of Both General Partners. Notwithstanding any other provision of this Agreement to the contrary, the following matters, as well as any joint decisions related to the Asset Manager identified in subparagraph 9.5, require the approval of both the Managing General Partner and the Co-General Partner in a timely fashion: 9.4.1 Senior Hotel and Garage Managers. To determine the duties of, to engage, to retain, and/or to terminate the employment of the Hotel's General Manager and the Garage's senior manager; 9.4.2 Hotel and Garage Agreements. To enter into, amend or terminate the Hotel Management Agreement or Garage Management Agreement and any subsequent management agreements relating to the Hotel and Garage; 9.4.3 Leasing Decisions. To enter into, amend or terminate any lease of any portion of the Property; 9.4.4 Legal Matters. To initiate or undertake any legal action, to confess any judgment against the Partnership or to settle any legal matter for an amount in excess of ten thousand dollars ($10,000.00); 9.4.5 New Partners. To admit any person as a General Partner or a Limited Partner, except as permitted by Paragraph 17 of this Agreement; 9.4.6 Bankruptcy, Etc. To file a bankruptcy case, to execute or deliver any assignment for the benefit of the creditors of the Partnership, or otherwise take any act or action to seek protection from the Partnership's creditors; 9.4.7 Transfer of General Partner Interest. To transfer a General Partner's interest as the General Partner in the Partnership, except as permitted in this Agreement; 9.4.8 Borrowing. To borrow money from any lender, including any Partner; to mortgage or subject to any other security device any portion of the Property or any other property of the Partnership; to obtain replacements of any mortgage or other security device; and to prepay in whole or in part, refinance, increase, modify, consolidate or extend any mortgage or other security device, all of the foregoing on such terms, in such amounts and by such means identified in such security devices or modifications thereto; 9.4.9 Appraisals. To approve the draft of any appraisal of the Partnership or the Property; 7 9.4.10 Budgets. To approve the annual budgets for the Hotel, the Garage and the Partnership, including, without limitation, capital improvements, reserves and partnership distributions, insurance coverage, material contracts and expenditures, and engagement of consultants, and any revisions or reforecasts thereto; 9.4.11 Reserves and Distributions. To establish cash reserves for contingencies and to make distributions of Partnership income in accordance with Paragraph 13 of the Partnership Agreement, provided, however, that the General Partners may jointly elect not to make a distribution in any calendar quarter if they reasonably determine that by doing so the Partnership would not be able to maintain adequate reserves; 9.4.12 Development, Construction or Rehabilitation. To approve major decisions concerning the present or future development, construction or rehabilitation of the Property; 9.4.13 Non-Recurring Expenditures. To approve any non-recurring expenditure or contract in excess of twenty thousand dollars ($20,000); 9.4.14 Modifications. To approve any modification of a non- recurring expenditure or contract in excess of ten thousand dollars ($10,000); and 9.4.15 Tax Elections. To make elections (or revocations thereof) under federal or state tax law. 9.5 Asset Manager. The Partners agree as follows with respect to the asset manager engaged by the Partnership to oversee the Property and the day-to-day operations of the Partnership (including any service providers engaged in the future to perform any of the functions currently being performed by the Asset Manager) (the "Asset Manager"): 9.5.1 Partnership Employee. The Asset Manager will be employed by the Partnership, rather than by either of the General Partners, and may not be an employee or director of either of the General Partners unless the other General Partner gives its consent. 9.5.2 Employment of Asset Manager. The Managing General Partner will be responsible for interviewing candidates, negotiating and recommending compensation agreements and employment terms commensurate with the Asset Manager's job description and with industry standards, and for making recommendations as to hiring and compensation decisions. Decisions to determine or change the duties or compensation of, to engage, to retain, and/or to terminate the employment of the Asset Manager will be made by mutual consent of both General Partners. The General Partners have agreed to hire Geoffrey M. Palermo as the initial Asset Manager on such terms and for such compensation as the General Partners shall jointly determine. 8 9.5.3 Supervision and Evaluation. The Managing General Partner shall have the obligation to supervise and evaluate the work of the Partnership's Asset Manager, and the Co-General Partner shall have the right to assist the Managing General Partner in such supervision and evaluation. 9.5.4 Communication with Co-General Partner. The Co-General Partner shall have the right to communicate directly with the Asset Manager and to receive the same information from the Asset Manager as is provided by the Asset Manager to the Managing General Partner. 9.6 Management Decisions. With respect to the management, conduct and operation of the Partnership business, and subject to the exceptions set forth in subparagraph 9.4 (Decisions of Both General Partners) and, as applicable, subparagraph 9.5 (Asset Manager), the decisions of the Managing General Partner shall prevail. 7. General Partner Compensation. Paragraph 10 of the 1979 Restated Agreement is hereby repealed and replaced with the following Paragraph 10: 10.The General Partners shall be entitled to receive reasonable compensation for services rendered to the Partnership consistent with past practices. The General Partners are hereby authorized to enter into a Compensation Agreement for the purpose of setting the compensation that the General Partners shall be entitled to receive. The Compensation Agreement may be amended, modified and restated by agreement of the General Partners. In the event that there is only one (1) General Partner, the Compensation Agreement may be amended only with approval of at least seventy-five percent (75.0 %) of the interests of the Limited Partners. 8. Resolution of Disputes. Paragraph 11 of the Partnership Agreement is hereby repealed and replaced with the following Paragraph 11: 11. Resolution of Disputes. 11.1 Mediation. If a dispute, controversy or claim: (i) occurs, in law or in equity; (ii) involves any of the Parties; and (iii) arises under, out of, in connection with, or in relation to the Partnership, the Property, this Agreement, any amendments to this Agreement or a breach of this Agreement, the disputing Parties agree first to try in good faith to settle the dispute by mediation under the mediation rules of JAMS or its successor organization before resorting to arbitration. The disputing Parties agree that mediation shall be completed within thirty (30) days of a notification of a dispute, unless otherwise agreed by such Parties in writing. 11.2 Arbitration of Disputes. If the mediation provided by subparagraph 11.1 (Mediation) under the time period provided under subparagraph 11.1 (Mediation) does not resolve the dispute, the disputing Parties agree that neutral binding arbitration shall 9 decide and settle such dispute. The disputing Parties agree to hold the arbitration in San Francisco, California, and to follow the rules then applicable of JAMS or its successor organization. The disputing Parties agree that the arbitration shall be completed within one hundred twenty (120) days of the completion of the mediation under subparagraph 11.1 (Mediation). 11.2.1 Selection of Arbitrators. The disputing Parties shall select one (1) neutral arbitrator in accordance with the rules of JAMS. The arbitrator shall have significant experience in commercial real estate and management matters. 11.2.2 Decision of Arbitrator. The disputing Parties shall have a mandatory pre-hearing document exchange. The arbitrator shall issue a written decision which does not need to be a reasoned award. The decision in writing of the arbitrator shall be final and binding on each and all of the Parties. Judgment may be entered on such award in any court having jurisdiction thereof. 11.3 Injunctive Relief and Remedies to Enforce Arbitration and Mediation. The Parties recognize that each Party will have no adequate remedy at law for breach by any of the other Party of any of the agreements contained in this Agreement and, in the event of any such breach, the Parties agree and consent that any of the other Parties shall be entitled to a judicial decree of specific performance, mandamus or other appropriate remedy to enforce this Agreement. The filing of a judicial action to enable the recording of a notice of pending action, order of attachment, receivership, injunction or other provisional remedy, shall not constitute a waiver of the right to mediate or arbitrate under this Agreement. In no event shall a Party have the right to demand mediation or arbitration after the date when institution of legal or equitable proceedings based on such claim, dispute or other matter in question would be barred by the applicable statute of limitations. This agreement to mediate or arbitrate shall be specifically enforceable under the prevailing mediation and arbitration laws. 11.4 Legal Fees and Costs. Notwithstanding any contrary language in any prior documents relating to the management and operations of the Partnership or the compensation of the Partnership's General Partners, any legal fees and costs arising out of any dispute, controversy or claim of the type described in subparagraph 11.1 above shall be borne by the party that incurred such fees and costs. 9. Limited Partnership Interest Transfers. Paragraph 17 of the Partnership Agreement is hereby repealed and replaced with the following Paragraph 17: 17. Limited Partnership Interest Transfers. The interest of a Limited Partner is transferable (including transfers to a Permitted Transferee) only with the consent of both General Partners, which 10 consent shall not be unreasonably withheld. For purposes of this Paragraph 17, a "Permitted Transferee" is: (i) the spouse or member of the family of the Limited Partner; (ii) a custodian, trustee (including a trustee of a voting trust), executor, or other fiduciary for the account of the Limited Partner, the spouse of the Limited Partner or members of the family of the Limited Partner; or (iii) a trust for the benefit of the Limited Partner. 17.1 Representations by Portsmouth and Proposed Transferee. When any transfer of a Limited Partner interest is proposed (other than a transfer to a Permitted Transferee), Portsmouth and the Proposed Transferee each shall separately provide the Partnership and Evon with affirmative written representations (a) that to the knowledge of the party making the representation, the proposed transferee is not an Affiliate of Portsmouth (b) that the party making the representation has not entered into and it does not presently intend to enter into any agreement by which such interest will be transferred to Portsmouth, or an Affiliate of Portsmouth, and (c) that the party making the representation is not aware of any other reason that the proposed transfer reasonably could result in a Material Reassessment of the Property. For purposes of this Paragraph 17, an "Affiliate" of Portsmouth is any party that is 50% or more owned by Portsmouth or any Affiliate of Portsmouth. 17.2 Withholding Consent. Within ten business (10) days after Portsmouth and the Proposed Transferee have delivered the written representation described in Paragraph 17.1, either General Partner may withhold consent to a proposed transfer of a Limited Partner interest. The non-consenting General Partner shall provide, at the time such consent is withheld, a written explanation to the other General Partner specifying in reasonable detail (including specific citations to applicable legal authority and factual evidence) the reasons why consent was withheld. The written explanation will also include any specific information that the non-consenting General Partner reasonably needs in order to provide its approval. The withholding of consent is not unreasonable if the objecting General Partner reasonably believes that the proposed transfer would materially harm the Partnership or the Property or if the proposed transfer reasonably could result in a Material Reassessment of the Property. "Material Reassessment of the Property" shall mean that as a result of the proposed transfer, the Property is subject to reassessment and that such reassessment would result in a material increase in property taxes assessed against the Property that are payable by the Partnership in any year or years. 17.3 Material Reassessment Risk. If a General Partner withholds consent to a proposed transfer on grounds that a Material Reassessment of the Property reasonably could result, the refusal of such General Partner to consent to the proposed transfer shall be reasonable unless the proposed transferee or the other General 11 Partner has provided to the objecting General Partner written materials (including specific citations to applicable legal authority and factual evidence) reasonably satisfactory to the objecting General Partner demonstrating that the proposed transfer will not result in a Material Reassessment of the Property. In the event that such written materials are delivered to the objecting General Partner, the consent of the objecting General Partner shall be presumed to have been given unless, within ten business (10) days after receipt of such written materials, the objecting General Partner notifies the other General Partner of its continuing objection. In such event, either General Partner may pursue dispute resolution as provided in Paragraph 11 of the Partnership Agreement. 17.4 New Partners to Be Bound by Partnership Agreement. Notwithstanding any other provision in the Partnership Agreement, a transferee shall be admitted as a Limited Partner only upon the transferee's agreement to being bound by the terms of this Partnership Agreement. 17.5 Assignment of Distribution Rights. Notwithstanding any other provision in the Partnership Agreement, each Limited Partner shall have the right to assign his, her or its right to distributions from the partnership. 17.6 Examination Rights. Each Partner shall have the right to examine the books and records of the Partnership upon reasonable notice to the General Partners. 10. Partnership Interests. Updated schedules of the percentage ownership interests of all Partners are attached hereto as Exhibit B, replacing Exhibit B to the 1979 Restated Agreement and Exhibits A, B and C to the 2005 Amendment. 11. Conflict Between Documents. In the event of a conflict between the Partnership Agreement and this Amendment, the Partners agree that this Amendment shall control. 12 12. Partnership Documents. Except as expressly set forth herein, all provisions of the Partnership Agreement remain in full force and effect. The General Partners Compensation Agreement dated as of February 23, 2006, has been replaced as of the Effective Date by the General Partners Compensation Agreement of even date herewith. IN WITNESS WHEREOF, the Partners have caused this Amendment to be executed as of the Effective Date. "MANAGING GENERAL PARTNER" "CO-GENERAL PARTNER" PORTSMOUTH SQUARE, INC. EVON CORPORATION a California corporation a California corporation By: /s/ Michael G. Zybala By: /s/ Charles H. Evans, Jr. --------------------- ------------------------- MICHAEL G. ZYBALA, CHARLES H. EVANS, JR., Vice President Chairman of the Board By: /s/ Roger A. Smith ------------------------- ROGER A. SMITH, Secretary 12 [Exhibits and limited partner signature pages omitted] EX-10 3 sf10qex102.txt EXHIBIT 10.2 EXHIBIT 10.2 GENERAL PARTNER COMPENSATION AGREEMENT THIS GENERAL PARTNER COMPENSATION AGREEMENT (this "Agreement") is made and entered into as of December 1, 2008 (the "Effective Date") by and among JUSTICE INVESTORS, a California limited partnership ("Justice"), PORTSMOUTH SQUARE, INC., a California corporation ("Portsmouth" or "Managing General Partner") , and EVON CORPORATION, a California corporation ("Evon" or "Co- General Partner") (Justice, Portsmouth and Evon, each a "Party" and collectively, the "Parties"). RECITALS A. Portsmouth and Evon and are the general partners (collectively, the "General Partners") of Justice. Evon was formerly known as Evon Garage Corporation, a California corporation. The General Partners operate and provide essential asset management services to Justice. B. Justice is the owner of that certain real property located at 750 Kearny Street, San Francisco, California (the "Property"), on which a hotel (the "Hotel") and a garage (the "Garage") are located. C. Effective as of the Effective Date, Portsmouth is the Managing General Partner of Justice and Evon is the Co-General Partner of Justice. The duties and responsibilities of Evon and Portsmouth are set forth in that certain Amended Limited Partnership Agreement dated January 1, 1979, as amended by that certain Amendment of Partnership Agreement dated as of June 27, 2005, as amended by that certain 2008 Amendment to Limited Partnership Agreement dated as of the Effective Date (collectively, the "Partnership Agreement"). D. The Partnership Agreement provides that Evon and Portsmouth are to receive compensation from Justice for acting as its General Partners and assuming the responsibilities and performing their respective duties and are authorized to enter into a Compensation Agreement for the purpose of setting such compensation. E. Justice receives substantially all its revenues from operating and/or leasing the Property. F. Justice, Portsmouth and Evon have previously executed that certain Amended and Restated General Partner Compensation Agreement that became effective as of February 23, 2006 (the "Prior Agreement"). Upon the Effective Date and subject to the payment of all compensation due under the Prior Agreement (as pro-rated through the Effective Date), the Parties desire the Prior Agreement to be terminated and superseded by this Agreement. G. NOW, THEREFORE, for in consideration of the mutual covenants herein contained, the Parties agree as follows: AGREEMENT 1. Definitions. The capitalized words set forth below shall have the meanings ascribed thereto as used in this Agreement. a. "Asset Manager Fee Contribution". The Asset Manager Fee Contribution shall be $75,000. b. "Gross Revenue". Gross Revenue shall mean all of the revenue received by Justice in any given calendar year on account of the Hotel, the Garage and all leases of the Property, net of hotel tax, parking tax and similar taxes and fees on gross revenue. c. "Minimum Annual Base Compensation". Minimum Annual Base Compensation shall be $285,275.00. 2. Special Provisions for Compensation in 2008. The compensation of the General Partners beginning as of January 1, 2008 through the Effective Date shall be determined using the terms and conditions of the Prior Agreement (as pro-rated for the number of days between January 1, 2008 through the Effective Date). The compensation of the General Partners beginning as of the Effective Date through December 31, 2008 shall be determined using the terms and conditions of this Agreement (as pro-rated from the Effective Date through December 31, 2008). 3. Base Compensation. During each calendar year, Justice shall pay Base Compensation to the General Partners in an amount equal to the product of one and one-half percent (1.5 %) times Gross Revenue, such product being reduced by the Asset Manager Fee Contribution; provided that in no event will the Base Compensation be less than the Minimum Annual Base Compensation. The parties acknowledge and agree that Base Compensation will not limited by any maximum, nor will compensation to the General Partners be increased by any inflation adjustment or incentive compensation in excess of the Base Compensation calculated in accordance with this paragraph. a. First Level of Division of Base Compensation. The Minimum Annual Base Compensation paid to the General Partners in each calendar year shall be divided between Portsmouth and Evon as follows: (i) eighty percent (80.0 %) shall be paid to Portsmouth for its services as Managing General Partner; and (ii) twenty percent (20.0 %) shall be paid to Evon for its services as Co-General Partner. b. Second Level of Division of Base Compensation. Base Compensation earned by the General Partners in each calendar year that is in excess of the Minimum Annual Base Compensation shall be payable in equal fifty percent (50.0 %) shares to Portsmouth and to Evon. 4. Payments of Base Compensation. The Minimum Annual Base Compensation shall be payable on a prorated basis to the General Partners by Justice in 2 twelve (12) equal monthly installments. Base Compensation in sums greater than the Minimum Annual Base Compensation shall be payable to the General Partners by Justice in installments to be determined by agreement of both the General Partners in their reasonable discretion based upon (i) the cash available to Justice to make such payments in a fiscally responsible manner; and (ii) a reasonable estimate made by the General Partners of the total amount of Base Compensation that will be earned by each General Partner during the calendar year ("Estimated Installments"). Within ninety (90) days after the end of each calendar year, Justice shall pay to the General Partners all Base Compensation that was earned by the General Partners during the previous calendar year that has not then been paid. 5. Repayment of Excess Estimated Installments of Base Compensation. In the event that either or both of the General Partners receives Estimated Installments of Base Compensation that are in excess of the Base Compensation actually earned during the calendar year, such excess shall be repaid to Justice by the General Partner that received the excess within thirty (30) days of demand therefor by the other General Partner. 6. Term This Agreement shall commence as of the Effective Date and continue in effect until the earlier of: (i) the date on which either party ceases to be a General Partner of Justice; (ii) the date on which Justice no longer is the owner of the Property; or (iii) is otherwise terminated by the agreement of the General Partners (the "Term"). 7. Counterpart; Facsimile. This Agreement may be executed in counterparts, each of which when executed and delivered shall be deemed an original, but all such counterparts together shall constitute but one and the same instrument. A facsimile or other electronically transmitted copy of this Agreement shall have the same force and effect as an original hereof personally delivered to the intended recipient. 8. Further Assurances. The General Partners each agree to execute and deliver such agreements, documents and instruments, and do such further acts as may reasonably be necessary or appropriate to create, preserve, perfect or evidence the actions contemplated by this Agreement. 9. Recitals. The Recitals are true and correct and are incorporated herein by reference. 10. Notices. Any notice which either party may be required or may desire to give to the other party under any provision of this Agreement shall be in writing and given by personal delivery, by facsimile or by overnight delivery, such as FedEx, to the Parties at the addresses set forth next to their respective signatures below. Any notice, request or other communication sent by overnight delivery shall be effective when received by the addressee thereof. Any notice sent by facsimile shall be effective as of the time that a printed confirmation sheet shows a communication has been 3 completed. The Parties hereto may change the addresses to which all notices, requests and other communications are to be sent by giving notice of which change in address to the other Parties in conformity with the preceding section. 11. Dispute Resolution. If a dispute, controversy or claim: (i) occurs, in law or in equity; (ii) involves any Party to this Agreement; and (iii) arises under, out of, in connection with, or in relation to this Agreement and any amendments to this Agreement or a breach of this Agreement, the procedures outlined in Section 11 of the Partnership Agreement, as defined herein, shall govern the resolution of any such dispute, controversy or claim. 12. Confidentiality. Each Party shall maintain confidentiality with respect to all documents, data and other information derived with respect to the Agreement. Notwithstanding the foregoing, the Parties may disclose the existence and contents of this Agreement to potential lenders to the Parties and as may be required by law. 13. Choice of Law. The validity, construction and effect of this Agreement shall be governed by the laws of the State of California. 14. Modification. This Agreement can be modified only by a writing signed by the Parties, or if there is only one General Partner, as set forth in the Partnership Agreement. 15. Time. Time is of the essence in this Agreement. 16. Successors and Assigns. All rights of each party hereunder inure to the benefit of their respective successors and assigns and shall be valid and fully enforceable. 17. Integration. This Agreement is intended by the Parties as a final expression of their agreement and is intended as a complete and exclusive statement of the terms and conditions thereof. Acceptance of or acquiescence in a course of performance rendered under this Agreement shall not be relevant in determining the meaning of this Agreement, even though the accepting or acquiescing party had knowledge of the nature of the performance and opportunity for objection. 18. Captions. The captions in this Agreement are for convenience of reference only and shall not modify or alter the operative provisions hereof. IN WITNESS WHEREOF, the Parties each have caused this Agreement to be executed on their behalf as of the Effective date. 4 "JUSTICE" JUSTICE INVESTORS, a California limited partnership By its Managing General Partner: PORTSMOUTH SQUARE, INC. a California corporation By: /s/ Michael G. Zybala --------------------- MICHAEL G. ZYBALA Vice President and Secretary By its Co-General Partner: EVON CORPORATION a California corporation By: /s/ Charles H. Evans, Jr. ------------------------- CHARLES H. EVANS, JR. Chairman, Board of Directors By: /s/ Roger A. Smith ------------------ ROGER A. SMITH Secretary Address for Notice: Justice Investors c/o Evon Corporation 750 Kearny Street, Room 502 San Francisco, CA 94108 Facsimile (415) 984-0783 With copy to: Justice Investors c/o President of Portsmouth Square, Inc. P.O. Box 270828 San Diego, CA 92198-2828 Facsimile: (858) 673-5406 5 "EVON" EVON CORPORATION a California corporation By: /s/ Charles H. Evans, Jr. ------------------------- CHARLES H. EVANS, JR. Chairman, Board of Directors By: /s/ Roger A. Smith ------------------ ROGER A. SMITH Secretary Address for Notice: c/o Evon Corporation 750 Kearny Street, Room 502 San Francisco, CA 94108 Facsimile (415) 984-0783 "PORTSMOUTH" PORTSMOUTH SQUARE, INC. a California corporation By: /s/ Michael G. Zybala --------------------- MICHAEL G. ZYBALA Vice President and Secretary Address for Notice: c/o President of Portsmouth P.O. Box 270828 San Diego, CA 92198-2828 Facsimile: (858) 673-5406 6 EX-31 4 sf10qex311.txt EXHIBIT 31.1 CEO CERTIFICATION EXHIBIT 31.1 CERTIFICATION I, John V. Winfield, certify that: 1. I have reviewed this quarterly report on Form 10-Q of Santa Fe Financial Corporation; 2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; 3. Based on my knowledge, the financial statements and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report; 4. The registrant's other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal controls over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15(d)- 15(f)) for the registrant and have: a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles; c) Evaluated the effectiveness of registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and d) Disclosed in this report any change in the registrant's internal control over financial reporting that occurred during the registrant's most recent fiscal quarter (the registrant's fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant's internal control over financial reporting; and 5. The registrant's other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and the audit committee of the registrant's board of directors (or persons performing the equivalent functions): a) All significant deficiencies and material weakness in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial information; and b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal control over financial reporting. Date: February 12, 2009 /s/ John V. Winfield --------------------------- John V. Winfield, President and Chief Executive Officer EX-31 5 sf10qex312.txt EXHIBIT 31.2 PFO CERTIFICATION EXHIBIT 31.2 CERTIFICATION I, David T. Nguyen, certify that: 1. I have reviewed this quarterly report on Form 10-Q of Santa Fe Financial Corporation; 2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; 3. Based on my knowledge, the financial statements and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report; 4. The registrant's other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal controls over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15(d)- 15(f)) for the registrant and have: a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles; c) Evaluated the effectiveness of registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and d) Disclosed in this report any change in the registrant's internal control over financial reporting that occurred during the registrant's most recent fiscal quarter (the registrant's fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant's internal control over financial reporting; and 5. The registrant's other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and the audit committee of the registrant's board of directors (or persons performing the equivalent functions): a) All significant deficiencies and material weakness in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial information; and b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal control over financial reporting. Date: February 12, 2009 /s/ David T. Nguyen --------------------------- David T. Nguyen, Treasurer and Controller (serving as Principal Financial Officer) EX-32 6 sf10qex321.txt EXHIBIT 32.1 CEO CERTIFICATION EXHIBIT 32.1 CERTIFICATION PURSUANT TO 18 U.S.C. SECTION 1350, AS ADOPTED PURSUANT TO SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002 In connection with the Quarterly Report of Santa Fe Financial Corporation (the "Company") on Form 10-Q for the quarterly period ended December 31, 2008, as filed with the Securities and Exchange Commission on the date hereof (the "Report"), I, John V. Winfield, President and Chief Executive Officer of the Company, certify, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, to the best of my knowledge, that: (1) The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and (2) The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company. Date: February 13, 2009 /s/ John V. Winfield ---------------------------- John V. Winfield, President and Chief Executive Officer [A signed original of this written statement required by Section 906 has been provided to Santa Fe Financial Corporation and will be retained by Santa Fe Financial Corporation and furnished to the Securities and Exchange Commission or its staff upon request.] EX-32 7 sf10qex322.txt EXHIBIT 32.2 PFO CERTIFICATION EXHIBIT 32.2 CERTIFICATION PURSUANT TO 18 U.S.C. SECTION 1350, AS ADOPTED PURSUANT TO SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002 In connection with the Quarterly Report of Santa Fe Financial Corporation (the "Company") on Form 10-Q for the quarterly period ended December 31, 2008, as filed with the Securities and Exchange Commission on the date hereof (the "Report"), I, David T. Nguyen, Treasurer and Controller of the Company, serving as its Principal Financial Officer, certify, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, to the best of my knowledge, that: (1) The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and (2) The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company. Date: February 13, 2009 /s/ David T. Nguyen ---------------------------- David T. Nguyen, Treasurer and Controller (serving as Principal Financial Officer) [A signed original of this written statement required by Section 906 has been provided to Santa Fe Financial Corporation and will be retained by Santa Fe Financial Corporation and furnished to the Securities and Exchange Commission or its staff upon request.] -----END PRIVACY-ENHANCED MESSAGE-----