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EXHIBIT 10.78
[APCOA/STANDARD PARKING LETTERHEAD]
AMENDMENT OF PARKING MANAGEMENT AGREEMENT
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THIS AMENDMENT OF PARKING MANAGEMENT AGREEMENT ("Amendment") is made and
entered into as of this ____ day of ________, 2000 by and between SEAVIEW
RESTAURANTS, INC. (hereinafter referred to as "Owner"), and APCOA/STANDARD
PARKING, INC., a Delaware corporation and successor in interest to Executive
Parking, Inc. (hereinafter referred to as "Operator"),
RECITALS:
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A. Owner is the concessionaire under a Concession Agreement with the
County of Los Angeles dated as of November 1, 1997, as amended, with respect to
certain restaurant and related operations on real property controlled by said
County, which real property includes that certain parking lot described as
follows: Gladstone's 4 Fish Parking Lot, 17300 Pacific Coast Highway, Pacific
Palisades, California ("Parking Lot").
B. Owner and Operator are parties to a certain Parking Management
Agreement dated January 19, 1995 ("Agreement"), pursuant to which Operator
provides parking services at the Parking Lot, all as further described in the
Agreement.
C. Owner and Operator desire to amend the Agreement upon the terms and
conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements herein set forth, Owner and Operator agree as follows:
1. RECITALS. The above recitals are true and correct and incorporated
herein. The terms defined in the Agreement shall have the same meanings when
used herein, unless expressly defined otherwise herein.
2. EXTENSION OF TERM. The term of the Agreement, currently
month-to-month, is hereby extended for a fixed term of two (2) years, from
January 1, 2001, through and including December 21, 2002 ("Extended Term"), and
automatically continuing thereafter from month to
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3. TERMINATION RIGHTS. From the date of this Amendment and through the
duration of the Extended Term, the Agreement may be terminated only for cause.
Causes for termination shall include: (a) default (subject to the defaulting
party's right to written notice and right to cure, as described in Section 7
herein); (b) termination or expiration of Owner's Concession Agreement with the
County, without replacement thereof; and (c) any inability to use the Parking
Lot for parking purposes in connection with Owner's operations (for example,
but without limitation, eminent domain proceedings or damage or destruction of
the underlying real property). During any month to month extension beyond the
Extended Term, either party may terminate the Agreement, without cause, upon at
least 30 days prior written notice to the other party.
4. MANAGEMENT FEES. During the Extended Term and any further extension
of the Agreement, Operator's base management fee and incentive management fee
shall continue to be determined as set forth in Section 4 of the Agreement.
However, Operator agrees that any portion of the incentive management fee based
on net operating profit over $200,000 but less than $210,000 shall be paid to
Operator's staff at the Parking Lot ("Staff's Share of the Incentive Fee").
Operator shall have sole discretion as to how the Staff's Share of the
Incentive Fee shall be allocated among the Parking Lot staff. In addition, for
purposes of calculating the Staff's Share of the Incentive Fee, Park Media
Revenues (defined in Section 5 herein) shall not be included in the calculation
of net operating profit. Park Media Revenues for all other purposes are
included in the calculation of net operating profit and Operator's incentive
management fee.
5. PARK MEDIA REVENUES. Subject to Owner's approval, which approval may
not be unreasonably withheld or delayed, Operator shall have the right to use
the Parking Lot for advertising, staging of promotional events and distribution
of product samples (collectively, "Park Media Events") and the revenues from
such Park Media Events shall be deemed gross revenues and included in the
calculation of Operator's incentive management fee.
6. LOAN TO OWNER. During calendar year 2000 and during each year of the
Extended Term, upon request of Owner, Operator shall loan to Owner an amount
(each such loan, a "Loan to Owner") not to exceed One Hundred Fifty Thousand
Dollars ($150,000) in any calendar year. Said annual Loan to Owner shall not be
made prior to November 1, nor later than December 31, of any calendar year. The
annual Loan to Owner, plus interest at the prime rate of interest as published
in The Wall Street Journal as of the date said loan is made, shall be repaid to
Operator by Owner by July 31 of the calendar year immediately following the
calendar year in which the Loan to Owner is made (thus, for example, a Loan to
Owner made in December 2000 must be repaid to Operator by July 31, 2001).
Accordingly, in order to repay the Loan to Owner, plus interest as aforesaid,
Operator is hereby authorized to retain all net operating profit derived from
the Parking Lot operations (including Park Media revenues) from the date each
Loan to Owner is made until
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such time as Operator is repaid in full. The interest hereunder shall be charged
on the unpaid balance of the Loan to Owner, less any net operating profit
retained by Operator.
Although the Agreement is terminable only for cause, as set forth in this
Amendment, if the Agreement should terminate for any reason prior to complete
repayment of the Loan to Owner, plus interest as aforesaid, or if the Parking
Lot's net operating income should be insufficient to fully repay Operator by
September 30 of the calendar year immediately following the calendar year in
which the Loan to Owner is made, then Owner shall reimburse the unpaid amount as
of the date of such early termination or as of such September 30, as applicable.
In the event Owner should fail to repay the Loan to Owner plus accrued interest
when due hereunder, Operator shall be entitled to: (a) recover from Owner its
costs and fees, including, without limitation, reasonable attorneys fees and
court costs, incurred in attempting to enforce its rights hereunder; and (b)
pursue any and all other remedies available at law or in equity to collect the
amounts due.
7. DEFAULT. Either party shall have the right to terminate the Agreement
upon a breach by the other party of any of the covenants, terms and conditions
of the Agreement, provided the defaulting party first receives written notice
of such breach and fails to remedy same within thirty (30) days after said
notice thereof is received, or fails to commence curing such breach within said
thirty-day period in the event such breach cannot be reasonably cured within
thirty days.
Either party shall also have the right to terminate this Amendment of
Parking Management Agreement in the event the other party files a voluntary
petition or similar action in bankruptcy, insolvency, receivership or makes an
assignment for the benefit of creditors, which action is not dismissed within
sixty (60) days.
8. NOTICES. Any notice or communication required to be given to or
served upon either party hereto shall be given or served by personal service
or express delivery or by mailing the same, postage prepaid, by United States
registered or certified mail, return receipt requested, at the following
addresses:
TO OWNER: SEAVIEW RESTAURANTS, INC.
17383 Sunset Blvd., Suite 140
Pacific Palisades, CA 90272
TO OPERATOR: APCOA/STANDARD PARKING, INC.
707 Wilshire Boulevard, 35th Floor
Los Angeles, CA 90017
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With copy to: APCOA/STANDARD PARKING, INC.
Attn: Legal Dept.
900 N. Michigan Avenue
Suite 1600
Chicago, IL 60611
Either party may designate a substitute address at any time hereafter by
written notice thereof to the other party.
9. NO OTHER CHANGES. Except as modified herein, the Agreement remains in
full force and effect upon its original terms and conditions.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment of
Parking Management Agreement the date first above written.
OWNER
SEAVIEW RESTAURANTS, INC.
By: /s/ ALAN REDHEAD
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(Name) Alan Redhead, C.E.O.
OPERATOR
APCOA/STANDARD PARKING, INC.
By: /s/ EDWARD SIMMONS
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Edward Simmons
Chief Executive Officer, Western Region
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