UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K
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ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the fiscal year ended June 30, 2018
or
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TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the transition period from _______ to_________
Commission File Number 1-10324
THE INTERGROUP CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE
(State or other jurisdiction of
Incorporation or organization)
13-3293645
(I.R.S. Employer
Identification No.)
11620 Wilshire Boulevard, Suite 350, Los Angeles, California 90025
(Address of principal executive offices) (Zip Code)
(310) 889-2500
(Registrant’s telephone number, including area code)
Securities registered pursuant to Section 12(b) of the Act:
Title of each class
Common Stock $.01 par value
Name of each exchange on which registered
The NASDAQ Stock Market, LLC
Securities registered pursuant to Section 12(g) of the Act: None
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act.
Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or 15(d) of the Act.
(cid:133) Yes (cid:95) No
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Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the
preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90
days.
(cid:95) Yes (cid:133) No
Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Website, if any, every Interactive Data File required to be
submitted and posted pursuant to Rule 405 of Regulation S-T (Section 232.405 of this chapter) during the preceding 12 months (or for such shorter period that the
registrant was required to submit and post such files).
(cid:95) Yes (cid:133) No
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K (Section 229.405 of this chapter) is not contained herein, and will not be
contained, to the best of registrant's knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendments
to this Form 10-K.
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Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, smaller reporting company, or an emerging growth
company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the
Exchange Act.
Large Accelerated Filer
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Accelerated Filer
Non-Accelerated Filer
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Smaller reporting company
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Emerging growth company
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If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised
financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. (cid:133)
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Act):
(cid:133) Yes (cid:95) No
The aggregate market value of the Common Stock, no par value, held by non-affiliates computed by reference to the average bid and asked price on December 29, 2017
was $19,823,000.
The number of shares outstanding of registrant’s Common Stock, as of August 30, 2018 was 2,334,197.
DOCUMENTS INCORPORATED BY REFERENCE: None
TABLE OF CONTENTS
PART I
Item 1.
Business.
Item 1A.
Risk Factors.
Item 1B.
Unresolved Staff Comments.
Item 2.
Properties.
Item 3.
Legal Proceedings.
Item 4.
Mine Safety Disclosures.
Item 5.
Market for Registrant’s Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities
PART II
Item 6.
Selected Financial Data.
Item 7.
Management’s Discussion and Analysis of Financial Condition and Results of Operations.
Item 7A.
Quantitative and Qualitative Disclosures About Market Risk.
Item 8.
Financial Statements and Supplementary Data.
Item 9.
Changes in and Disagreements with Accountants on Accounting and Financial Disclosure.
Item 9A.
Controls and Procedures.
Item 9B.
Other Information.
Item 10.
Directors, Executive Officers and Corporate Governance.
Item 11.
Executive Compensation.
PART III
Item 12.
Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters.
Item 13.
Certain Relationships and Related Transactions, and Director Independence.
Item 14.
Principal Accounting Fees and Services
Item 15.
Exhibits, Financial Statement Schedules
Signatures
PART IV
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FORWARD-LOOKING STATEMENTS
This Annual Report on Form 10-K contains certain “forward-looking statements” within the meaning of the Private Securities Litigation reform Act of 1995. Forward-
looking statements give our current expectations or forecasts of future events. You can identify these statements by the fact that they do not relate strictly to historical or
current facts. They contain words such as “anticipate,” “estimate,” “expect,” “project,” “intend,” “plan,” “believe” “may,” “could,” “might” and other words or phrases of
similar meaning in connection with any discussion of future operating or financial performance. From time to time we also provide forward-looking statements in our
Forms 10-Q and 8-K, Annual Reports to Shareholders, press releases and other materials we may release to the public. Forward looking statements reflect our current
views about future events and are subject to risks, uncertainties, assumptions and changes in circumstances that may cause actual results or outcomes to differ materially
from those expressed in any forward-looking statement. Consequently, no forward-looking statement can be guaranteed and our actual future results may differ
materially.
Factors that may cause actual results to differ materially from current expectations include, but are not limited to:
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risks associated with the lodging industry, including competition, increases in wages, labor relations, energy and fuel costs, actual and threatened pandemics,
actual and threatened terrorist attacks, and downturns in domestic and international economic and market conditions, particularly in the San Francisco Bay area;
risks associated with the real estate industry, including changes in real estate and zoning laws or regulations, increases in real property taxes, rising insurance
premiums, costs of compliance with environmental laws and other governmental regulations;
the availability and terms of financing and capital and the general volatility of securities markets;
changes in the competitive environment in the hotel industry;
risks related to natural disasters;
litigation; and
other risk factors discussed below in this Report.
We caution you not to place undue reliance on these forward-looking statements, which speak only as to the date hereof. We undertake no obligation to publicly update
any forward looking statements, whether as a result of new information, future events or otherwise. You are advised, however, to consult any further disclosures we make
on related subjects on our Forms 10-K and 10-Q, and Current Reports on Form 8-K filed with the Securities and Exchange Commission.
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Item 1. Business.
GENERAL
PART I
The InterGroup Corporation (“InterGroup” or the “Company” and may also be referred to as “we” “us” or “our” in this report) is a Delaware corporation formed in 1985,
as the successor to Mutual Real Estate Investment Trust ("M-REIT"), a New York real estate investment trust created in 1965. The Company has been a publicly-held
company since M-REIT's first public offering of shares in 1966.
The Company was organized to buy, develop, operate, rehabilitate and dispose of real property of various types and descriptions, and to engage in such other business
and investment activities as would benefit the Company and its shareholders. The Company was founded upon, and remains committed to, social responsibility. Such
social responsibility was originally defined as providing decent and affordable housing to people without regard to race. In 1985, after examining the impact of federal,
state and local equal housing laws, the Company determined to broaden its definition of social responsibility. The Company changed its form from a REIT to a
corporation so that it could pursue a variety of investments beyond real estate and broaden its social impact to engage in any opportunity which would offer the potential
to increase shareholder value within the Company's underlying commitment to social responsibility.
As of June 30, 2018, the Company owned approximately 81.9% of the common shares of Santa Fe Financial Corporation (“Santa Fe”), a public company (OTCBB:
SFEF). Santa Fe’s revenue is primarily generated through its 68.8% owned subsidiary, Portsmouth Square, Inc. (“Portsmouth”), a public company (OTCBB: PRSI).
InterGroup also directly owns approximately 13.4% of Portsmouth. Portsmouth’s primary business is conducted through its general and limited partnership interest in
Justice Investors, a California limited partnership (“Justice” or the “Partnership”). Portsmouth has a 93.1% limited partnership interest in Justice and is the sole general
partner. The financial statements of Justice are consolidated with those of the Company. See Note 2 to the consolidated financial statements.
Justice, through its subsidiaries Justice Operating Company, LLC (“Operating”), Justice Mezzanine Company, LLC (“Mezzanine”) and Kearny Street Parking, LLC
(“Parking”) 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 underground parking garage. Mezzanine and Parking are both wholly-owned subsidiaries of the Partnership; Operating is a
wholly-owned subsidiary of Mezzanine. Mezzanine is the borrower under certain mezzanine indebtedness of Justice, and in December 2013, the Partnership conveyed
ownership of the Hotel to Operating. The Hotel is operated by the partnership as a full-service Hilton brand hotel pursuant to a Franchise License Agreement with HLT
Franchise Holding LLC (Hilton). Justice had a management agreement with Prism Hospitality L.P. (“Prism”) to perform certain management functions for the Hotel. The
management agreement with Prism had an original term of ten years, subject to the Partnership’s right to terminate at any time with or without cause. Effective January
2014, the management agreement with Prism was amended by the Partnership to change the nature of the services provided by Prism and the compensation payable to
Prism, among other things. Prism’s management agreement was terminated upon its expiration date of February 2, 2017. Justice entered into a Hotel management
agreement (“HMA”) with Interstate Management Company, LLC (“Interstate”) to manage the Hotel with an effective takeover date of February 3, 2017. The term of the
management agreement is for an initial period of ten years commencing on the takeover date and automatically renews for successive one (1) year periods, to not exceed
five years in the aggregate, subject to certain conditions. Under the terms on the HMA, base management fee payable to Interstate shall be one and seven-tenths (1.70%)
of total Hotel revenue.
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In addition to the operations of the Hotel, the Company also generates income from the ownership, management and, when appropriate, sale of real estate. Properties
include sixteen apartment complexes, one commercial real estate property and three single-family houses. The properties are located throughout the United States but are
concentrated in Texas and Southern California. The Company also has an investment in unimproved real property. As of June 30, 2018, all of the Company’s operating
real estate properties are managed in-house.
The Company acquires its investments in real estate and other investments utilizing cash, securities or debt, subject to approval or guidelines of the Board of Directors
and its Real Estate Investment Committee. The Company may also look for new real estate investment opportunities in hotels, apartments, office buildings and
development properties. The acquisition of any new real estate investments will depend on the Company’s ability to find suitable investment opportunities and the
availability of sufficient financing to acquire such investments. To help fund any such acquisition, the Company may borrow funds to leverage its investment capital. The
amount of any such debt will depend on a number of factors including, but not limited to, the availability of financing and the sufficiency of the acquisition property’s
projected cash flows to support the operations and debt service.
The Company also derives income from the investment of its cash and investment securities assets. The Company has invested in income-producing instruments, equity
and debt securities and will consider other investments if such investments offer growth or profit potential. See Item 7. Management’s Discussion and Analysis of
Financial Condition and Results of Operations for a discussion of the Company’s marketable securities and other investments.
HILTON HOTELS FRANCHISE LICENSE AGREEMENT
The Partnership entered into a Franchise License Agreement (the “License Agreement”) with the HLT Existing Franchise Holding LLC (Hilton) on November 24, 2004.
The term of the License Agreement was for an initial period of fifteen years commencing on the date the Hotel began operating as a Hilton hotel, with an option to extend
the License Agreement for another five years, subject to certain conditions. On June 26, 2015, Operating and Hilton entered into an amended franchise agreement that,
among other things, extended the License Agreement through 2030, and also provided the Partnership with certain key money cash incentives to be earned through 2030.
HOTEL MANAGEMENT COMPANY AGREEMENT
On February 2, 2007, the Partnership entered into a management agreement with Prism to manage and operate the Hotel as its agent. The original management agreement
was effective for a term of ten years, but was amended in January 2014. Effective January 2014, the required base management fees were amended to a fixed rate of
$20,000 per month. Under the amended management agreement, Prism could also earn an incentive fee of $11,000 for each month that the revenues per room of the
Hotel exceeded the average revenues per room of a defined set of competing hotels. Base management fees and incentives paid to Prism during the years ended June 30,
2018 and 2017 were $0 and $120,000, respectively. The management agreement with Prism was terminated on February 2, 2017.
On February 1, 2017, Justice entered into a Hotel management agreement with Interstate Management Company, LLC to manage the Hotel with an effective takeover
date of February 3, 2017. The term of the management agreement is for an initial period of ten years commencing on the takeover date and automatically renews for
successive one (1) year periods, to not exceed five years in the aggregate, subject to certain conditions. Under the terms on the HMA, base management fee payable to
Interstate shall be one and seven-tenths (1.70%) of total Hotel revenue. For the fiscal years ended June 30, 2018 and 2017, Interstate management fees were $957,000 and
$372,000, respectively, and are included in Hotel operating expenses in the consolidated statements of operations.
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GARAGE OPERATIONS
On October 31, 2010, the Partnership and Ace Parking entered into an amendment of their original parking agreement to extend the term commencing on November 1,
2010 and terminating on December 31, 2015. The parking agreement with Ace Parking was terminated with an effective termination date of October 4, 2016. Base
management and incentive fees to Ace Parking were $39,000 for the year ended June 30, 2017. The Partnership began managing the parking garage in-house after the
termination of Ace Parking. As part of the Hotel management agreement, Interstate, through the Partnership’s wholly-owned subsidiary, Kearny Street Parking LLC,
began managing the parking garage in-house effective February 3, 2017.
CHINESE CULTURE FOUNDATION LEASE
On March 15, 2005, the Partnership entered into an amended lease with the Chinese Culture Foundation of San Francisco (the “Foundation”) for the third-floor space of
the Hotel commonly known as the Chinese Culture Center, which the Foundation had right to occupy pursuant to a 50-year nominal rent lease that began in 1967.
The amended lease, among other things, requires the Partnership to pay to the Foundation a monthly event space fee in the amount of $5,000, adjusted annually based on
the local Consumer Price Index. As of June 30, 2018, monthly event space fee is $5,800. The term of the amended lease expires on October 17, 2023, with an automatic
extension for another 10-year term if the property continues to be operated as a hotel.
SALES AND REFINANCINGS OF REAL ESTATE PROPERTIES
In July 2015, the Company purchased a residential house in Los Angeles, California as a strategic asset for $1,975,000 in cash. In August 2016, the Company obtained a
$1,000,000 mortgage note payable on this property and received net proceeds of $983,000. The interest on the note is 5.75% with interest only payments for twenty-three
months. The loan matures on September 1, 2018 and will be paid off at maturity.
In June 2016, the Company refinanced its $1,929,000 mortgage note payable on its 12-unit apartment complex located in Los Angeles, California and obtained a new
mortgage in the amount of $2,300,000. The interest rate on the mortgage is 3.60% and matures in June 2026.
In April 2016, the Company entered into an interest rate agreement on its $923,000 mortgage note payable on its commercial property located in Los Angeles, California
in order to settle the variable rate as of March 31, 2016 of 4.22% into a fixed rate of 3.99%, the swap agreement matures in January 2021. A swap is a contractual
agreement to exchange interest rate payments.
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MARKETABLE SECURITIES INVESTMENT POLICIES
In addition to its Hotel and real estate operations, the Company also invests from time to time in income producing instruments, corporate debt and equity securities,
publicly traded investment funds, mortgage backed securities, securities issued by REITs and other companies which invest primarily in real estate.
The Company’s securities investments are made under the supervision of a Securities Investment Committee of the Board of Directors (the “Committee”). The
Committee currently has three members and is chaired by the Company’s Chairman of the Board and President, John V. Winfield. The Committee has delegated
authority to manage the portfolio to the Company’s Chairman and President together with such assistants and management committees he may engage. The Committee
generally follows certain established investment guidelines for the Company’s investments. These guidelines presently include: (i) corporate equity securities should be
listed on the New York Stock Exchange (NYSE), NYSE MKT, NYSE Arca or the Nasdaq Stock Market (NASDAQ); (ii) the issuer of the listed securities should be in
compliance with the listing standards of the applicable national securities exchange; and (iii) investment in a particular issuer should not exceed 10% of the market value
of the total portfolio. The investment guidelines do not require the Company to divest itself of investments, which initially meet these guidelines but subsequently fail to
meet one or more of the investment criteria. The Committee has in the past approved non-conforming investments and may in the future approve non-conforming
investments. The Committee may modify these guidelines from time to time.
The Company may also invest, with the approval of the Securities Investment Committee, in unlisted securities, such as convertible notes, through private placements
including private equity investment funds. Those investments in non-marketable securities are carried at cost on the Company’s balance sheet as part of other investments
and reviewed for impairment on a periodic basis. As of June 30, 2018 and 2017, the Company had other investments of $813,000 and $1,211,000, respectively.
As part of its investment strategies, the Company may assume short positions in marketable securities. Short sales are used by the Company to potentially offset normal
market risks undertaken in the course of its investing activities or to provide additional return opportunities. As of June 30, 2018 and 2017, the Company had obligations
for securities sold (equities short) of $1,935,000 and $3,710,000, respectively.
In addition, the Company may utilize margin for its marketable securities purchases through the use of standard margin agreements with national brokerage firms. The
margin used by the Company may fluctuate depending on market conditions. The use of leverage could be viewed as risky and the market values of the portfolio may be
subject to large fluctuations. Margin balances due at June 30, 2018 and 2017 were $1,887,000 and $3,012,000, respectively.
As Chairman of the Securities Investment Committee, the Company’s President and Chief Executive Officer (CEO), John V. Winfield, directs the investment activity of
the Company in public and private markets pursuant to authority granted by the Board of Directors. Mr. Winfield also serves as Chief Executive Officer and Chairman of
the Portsmouth and Santa Fe and oversees the investment activity of those companies. Depending on certain market conditions and various risk factors, the Chief
Executive Officer, Portsmouth and Santa Fe may, at times, invest in the same companies in which the Company invests. Such investments align the interests of the
Company with the interests of related parties because it places the personal resources of the Chief Executive Officer and the resources of the Portsmouth and Santa Fe, at
risk in substantially the same manner as the Company in connection with investment decisions made on behalf of the Company.
Further information with respect to investment in marketable securities and other investments of the Company is set forth in Management Discussion and Analysis of
Financial Condition and Results of Operations section and Notes 5 and 6 of the Notes to Consolidated Financial Statements.
Seasonality
Hotel’s operations historically have been seasonal. Like most hotels in the San Francisco area, the Hotel generally maintains high occupancy and room rates during the
entire year except for the weeks starting Thanksgiving through the end of the calendar year due to the holiday season. These seasonal patterns can be expected to cause
fluctuations in the quarterly revenues of the Hotel.
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Competition
The hotel industry is highly competitive. Competition is based on a number of factors, most notably convenience of location, brand affiliation, price, range of services
and guest amenities or accommodations offered and quality of customer service. Competition is often specific to the individual market in which properties are located.
The San Francisco market is a very competitive market with a high supply of guest rooms and meeting space in the area. During fiscal 2017, we began the work with
Hilton-approved providers to overhaul all technical aspects of the Hotel whereby when completed, we expect to have an edge over our competitors by implementing
advanced state of the art systems for which we anticipate a complete implementation during fiscal 2019. Specifically, the complete overhaul of the infrastructure of the
Internet in the guest rooms and meeting space will enable the Hotel to compete in this market. This investment will allow the hotel to go to market with specific
measurable statistics that will help win the much-coveted technology company meetings. We have purchased 55” 4k smart televisions for all guest rooms and common
areas which will be installed during the second quarter of fiscal 2019. In fiscal 2018, an architecture firm has been contracted to design the new guest rooms which have
been approved by Hilton and the model room is in the works. We plan to bring back 14 guest rooms on the 5th floor as part of the initial phase of this renovation project
and the next phase will include additional rooms being added on the 27th and 26th floor.
Our highest priority is guest satisfaction. We believe that enhancing the guest experience differentiates the Hotel from our competition and is critical to the Hotel’s
objective of building sustainable guest loyalty. In order to make a large impact on guest experience, the Hotel will continue training team members on Hilton brand
standards and guest satisfaction, hiring and retaining talents in key operations, and enhancing the arrival experience.
The Hotel is focusing on high-end clients with more banquets and meeting room requirements. Moving forward, the Hotel will continue to focus on cultivating
international business, especially from China, and capturing a greater percentage of the higher rated business, leisure and group travel. We believe that our Hotel’s
location in the San Francisco Financial District lends itself to greater opportunities than our competitors when it comes to developing relationships with the financial
district entities and will focus on establishing a greater client base. The Hotel will also continue in our efforts to expand guest rooms and facilities and explore new and
innovative ways to differentiate the Hotel from its competition. The hotel will capitalize on the increased hotel occupancy, rates and overall hotel property value upon
completion of the Moscone Center expansion and improvement project which is scheduled to be completed in December of 2018. However, like all hotels, the Hotel will
remain subject to the uncertain domestic and global economic environment and other risk factors beyond our control, such as the effect of natural disasters and economic
uncertainties.
The Hotel is also subject to certain operating risks common to all of the hotel industry, which could adversely impact performance. These risks include:
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Competition for guests and meetings from other hotels including competition and pricing pressure from internet wholesalers and distributors;
increases in operating costs, including wages, benefits, insurance, property taxes and energy, due to inflation and other factors, which may not be offset in the
future by increased room rates;
labor strikes, disruptions or lock outs;
dependence on demand from business and leisure travelers, which may fluctuate and is seasonal;
increases in energy costs, cost of fuel, airline fares and other expenses related to travel, which may negatively affect traveling;
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terrorism, terrorism alerts and warnings, wars and other military actions, pandemics or other medical events or warnings which may result in decreases in
business and leisure travel;
natural disasters; and
adverse effects of downturns and recessionary conditions in international, national and/or local economies and market conditions.
Environmental Matters
In connection with the ownership of the Hotel, the Company is subject to various federal, state and local laws, ordinances and regulations relating to environmental
protection. Under these laws, a current or previous owner or operator of real estate may be liable for the costs of removal or remediation of certain hazardous or toxic
substances on, under or in such property. Such laws often impose liability without regard to whether the owner or operator knew of, or was responsible for, the presence
of hazardous or toxic substances.
Environmental consultants retained by the Partnership or its lenders conducted updated Phase I environmental site assessments in fiscal year ended June 30, 2014 on the
Hotel property. These Phase I assessments relied, in part, on Phase I environmental assessments prepared in connection with the Partnership’s first mortgage loan
obtained in December 2013. Phase I assessments are designed to evaluate the potential for environmental contamination on properties based generally upon site
inspections, facility personnel interviews, historical information and certain publicly-available databases; however, Phase I assessments will not necessarily reveal the
existence or extent of all environmental conditions, liabilities or compliance concerns at the properties.
Although the Phase I assessments and other environmental reports we have reviewed disclose certain conditions on our property and the use of hazardous substances in
operation and maintenance activities that could pose a risk of environmental contamination or liability, we are not aware of any environmental liability that we believe
would have a material adverse effect on our business, financial position, results of operations or cash flows.
The Company believes that the Hotel is in compliance, in all material respects, with all federal, state and local environmental ordinances and regulations regarding
hazardous or toxic substances and other environmental matters, the violation of which could have a material adverse effect on the Company. The Company has not
received written notice from any governmental authority of any material noncompliance, liability or claim relating to hazardous or toxic substances or other
environmental matters in connection with any of its present properties.
Competition – Rental Properties
The ownership, operation and leasing of multifamily rental properties are highly competitive. The Company competes with domestic and foreign financial institutions,
other REITs, life insurance companies, pension trusts, trust funds, partnerships and individual investors. In addition, The Company competes for tenants in markets
primarily on the basis of property location, rent charged, services provided and the design and condition of improvements. The Company also competes with other
quality apartment owned by public and private companies. The number of competitive multifamily properties in a particular market could adversely affect the Company’s
ability to lease its multifamily properties, as well as the rents it is able to charge. In addition, other forms of residential properties, including single family housing and
town homes, provide housing alternatives to potential residents of quality apartment communities or potential purchasers of for-sale condominium units. The Company
competes for residents in its apartment communities based on resident service and amenity offerings and the desirability of the Company’s locations. Resident leases at
the Company’s apartment communities are priced competitively based on market conditions, supply and demand characteristics, and the quality and resident service
offerings of its communities.
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EMPLOYEES
As of June 30, 2018, the Company had a total of 33 full-time employees. Effective August 2014, the Company entered into a client service agreement with ADP, a
professional employer organization serving as an off-site, full service human resource department for its employees. ADP personnel management services are delivered
by entering into a co-employment relationship with the Company’s employees. The employees and the Company are not party to any collective bargaining agreement,
and the Company believes that its employee relations are satisfactory.
Effective February 3, 2017, the Partnership had no employees. On February 3, 2017, Interstate assumed all labor union agreements and retained employees of their
choice to continue providing services to the Hotel. As of June 30, 2018, approximately 85% of those employees were represented by one of four labor unions, and their
terms of employment were determined under various collective bargaining agreements (“CBAs”) to which the Partnership was a party. During the year ended June 30,
2018, the Partnership renewed the CBA for Local 856 (International Brotherhood of Teamsters). The present CBAs for Local 2 (Hotel and Restaurant Employees), Local
39 (Stationary Engineers), and Local 665 (Parking Employees) will expire on August 13, 2018, July 31, 2018, and November 30, 2018, respectively.
Negotiation of collective bargaining agreements, which includes not just terms and conditions of employment, but scope and coverage of employees, is a regular and
expected course of business operations for the Partnership. The Partnership expects and anticipates that the terms of conditions of CBAs will have an impact on wage and
benefit costs, operating expenses, and certain hotel operations during the life of each CBA, and incorporates these principles into its operating and budgetary practices.
ADDITIONAL INFORMATION
The Company files annual and quarterly reports on Forms 10-K and 10-Q, current reports on Form 8-K and other information with the Securities and Exchange
Commission (“SEC” or the “Commission”). The public may read and copy any materials that we file with the Commission at the SEC’s Public Reference Room at 100 F
Street, NE, Washington, DC 20549, on official business days during the hours of 10:00 a.m. to 3:00 p.m. You may obtain information on the operation of the Public
Reference Room by calling the Commission at 1-800-SEC-0330. The Commission also maintains an Internet site at http://www.sec.gov that contains reports, proxy and
information statements, and other information regarding issuers that file electronically with the Commission.
Other information about the Company can be found on its website www.intgla.com. Reference in this document to that website address does not constitute incorporation
by reference of the information contained on the website.
Item 1A. Risk Factors.
Adverse changes in the U.S. and global economies could negatively impact our financial performance.
Due to a number of factors affecting consumers, the outlook for the lodging industry remains uncertain. These factors have resulted at times in the past and could
continue to result in the future in fewer customers visiting, or customers spending less, in San Francisco, as compared to prior periods. Leisure travel and other leisure
activities represent discretionary expenditures, and participation in such activities tends to decline during economic downturns, during which consumers generally have
less disposable income. As a result, in those times customer demand for the luxury amenities and leisure activities that we offer may decline. Furthermore, during periods
of economic contraction, revenues may decrease while some of our costs remain fixed or even increase, resulting in decreased earnings.
We operate a single property located in San Francisco and rely on the San Francisco market. Changes adversely impacting this market could have a material effect on
our business, financial condition and results of operations.
Our business has a limited base of operations and substantially all of our revenues are currently generated by the Hotel. Accordingly, we are subject to greater risks than a
more diversified hotel or resort operator and the profitability of our operations is linked to local economic conditions in San Francisco. The combination of a decline in
the local economy of San Francisco, reliance on a single location and the significant investment associated with it may cause our operating results to fluctuate
significantly and may adversely affect us and materially affect our total profitability.
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We face intense local and increasingly national competition which could impact our operations and adversely affect our business and results of operations.
We operate in the highly-competitive San Francisco hotel industry. The Hotel competes with other high-quality Northern California hotels and resorts. Many of these
competitors seek to attract customers to their properties by providing, food and beverage outlets, retail stores and other related amenities, in addition to hotel
accommodations. To the extent that we seek to enhance our revenue base by offering our own various amenities, we compete with the service offerings provided by these
competitors.
Many of the competing properties have themes and attractions which draw a significant number of visitors and directly compete with our operations. Some of these
properties are operated by subsidiaries or divisions of large public companies that may have greater name recognition and financial and marketing resources than we do
and market to the same target demographic group as we do. Various competitors are expanding and renovating their existing facilities. We believe that competition in the
San Francisco hotel and resort industry is based on certain property-specific factors, including overall atmosphere, range of amenities, price, location, entertainment
attractions, theme and size. Any market perception that we do not excel with respect to such property-specific factors could adversely affect our ability to compete
effectively. If we are unable to compete effectively, we could lose market share, which could adversely affect our business and results of operations.
The San Francisco hotel and resort industry is capital intensive; financing our renovations and future capital improvements could reduce our cash flow and adversely
affect our financial performance.
The Hotel has an ongoing need for renovations and other capital improvements to remain competitive, including replacement, from time to time, of furniture, fixtures and
equipment. We will also need to make capital expenditures to comply with applicable laws and regulations.
Renovations and other capital improvements of hotels require significant capital expenditures. In addition, renovations and capital improvements of hotels usually
generate little or no cash flow until the project’s completion. We may not be able to fund such projects solely from cash provided from our operating activities.
Consequently, we will rely upon the availability of debt or equity capital and reserve funds to fund renovations and capital improvements and our ability to carry them
out will be limited if we cannot obtain satisfactory debt or equity financing, which will depend on, among other things, market conditions. No assurances can be made
that we will be able to obtain additional equity or debt financing or that we will be able to obtain such financing on favorable terms.
Renovations and other capital improvements may give rise to the following additional risks, among others: construction cost overruns and delays; temporary closures of
all or a portion of the Hotel to customers; disruption in service and room availability causing reduced demand, occupancy and rates; and possible environmental issues.
As a result, renovations and any other future capital improvement projects may increase our expenses, reduce our cash flows and our revenues. If capital expenditures
exceed our expectations, this excess would have an adverse effect on our available cash.
We have substantial debt, and we may incur additional indebtedness, which may negatively affect our business and financial results.
We have substantial debt service obligations. Our substantial debt may negatively affect our business and operations in several ways, including: requiring us to use a
substantial portion of our funds from operations to make required payments on principal and interest, which will reduce funds available for operations and capital
expenditures, future business opportunities and other purposes; making us more vulnerable to economic and industry downturns and reducing our flexibility in
responding to changing business and economic conditions; limiting our flexibility in planning for, or reacting to, changes in the business and the industry in which we
operate; placing us at a competitive disadvantage compared to our competitors that have less debt; limiting our ability to borrow more money for operations, capital or to
finance acquisitions in the future; and requiring us to dispose of assets, if needed, in order to make required payments of interest and principal.
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Our business model involves high fixed costs, including property taxes and insurance costs, which we may be unable to adjust in a timely manner in response to a
reduction in our revenues.
The costs associated with owning and operating the Hotel are significant. Some of these costs (such as property taxes and insurance costs) are fixed, meaning that such
costs may not be altered in a timely manner in response to changes in demand for services. Failure to adjust our expenses may adversely affect our business and results of
operations. Our real property taxes may increase as property tax rates change and as the values of properties are assessed and reassessed by tax authorities. Our real estate
taxes do not depend on our revenues, and generally we could not reduce them other than by disposing of our real estate assets.
Insurance premiums have increased significantly in recent years, and continued escalation may result in our inability to obtain adequate insurance at acceptable premium
rates. A continuation of this trend would appreciably increase the operating expenses of the Hotel. If we do not obtain adequate insurance, to the extent that any of the
events not covered by an insurance policy materialize, our financial condition may be materially adversely affected.
In the future, our property may be subject to increases in real estate and other tax rates, utility costs, operating expenses, insurance costs, repairs and maintenance and
administrative expenses, which could reduce our cash flow and adversely affect our financial performance. If our revenues decline and we are unable to reduce our
expenses in a timely manner, our business and results of operations could be adversely affected.
Risk of declining market values in marketable securities.
The Company invests from time to time in marketable securities. As a result, the Company is exposed to market volatility in connection with these investments. The
Company's financial position and financial performance could be adversely affected by worsening market conditions or sluggish performance of such investments.
Illiquidity risk in nonmarketable securities
Nonmarketable securities are, by definition, instruments that are not readily salable in the capital markets, and when sold are usually at a substantial discount. Thus, the
holder is limited to return on investment from any income producing feature of the instrument, as any sale of such an instrument would be subject to a substantial
discount. Thus, a holder may need to hold such instruments for long period of time and not be able to realize a return of their cash investment should there be a need to
liquidate to obtain cash at any given time.
Litigation and legal proceedings could expose us to significant liabilities and thus negatively affect our financial results.
We are a party, from time to time, to various litigation claims and legal proceedings, government and regulatory inquiries and/or proceedings, including, but not limited
to, intellectual property, premises liability and breach of contract claims. Material legal proceedings are described more fully in Note 17, Commitments and
Contingencies, to our consolidated financial statements, included in Item 8 of this Annual Report on Form 10-K.
Litigation is inherently unpredictable, and defending these proceedings can result in significant ongoing expenditures and the diversion of our management’s time and
attention from the operation of our business, which could have a negative effect on our business operations. Our failure to successfully defend or settle any litigation or
legal proceedings could result in liabilities that, to the extent not covered by our insurance, could have a material adverse effect on our financial condition, revenue and
profitability.
The threat of terrorism could adversely affect the number of customer visits to the Hotel.
The threat of terrorism has caused, and may in the future cause, a significant decrease in customer visits to San Francisco due to disruptions in commercial and leisure
travel patterns and concerns about travel safety. We cannot predict the extent to which disruptions in air or other forms of travel as a result of any further terrorist act,
outbreak of hostilities or escalation of war would adversely affect our financial condition, results of operations or cash flows. The possibility of future attacks may
hamper business and leisure travel patterns and, accordingly, the performance of our business and our operations.
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We depend on third party management companies for the future success of our business and the loss of one or more of their key personnel could have an adverse effect
on our ability to manage our business and operate successfully and competitively, or could be negatively perceived in the capital markets.
The Hotel is managed by Interstate. Their ability to manage the Company’s business and operate successfully and competitively is dependent, in part, upon the efforts
and continued service of their managers. The departure of key personnel of current or future management companies could have an adverse effect on our business and
our ability to operate successfully and competitively, and it could be difficult to find replacements for these key personnel, as competition for such personnel is intense.
Seasonality and other related factors such as weather can be expected to cause quarterly fluctuations in revenue at the Hotel.
The hotel and resort industry is seasonal in nature. This seasonality can tend to cause quarterly fluctuations in revenues at the Hotel. Our quarterly earnings may also be
adversely affected by other related factors outside our control, including weather conditions and poor economic conditions. As a result, we may have to enter into short-
term borrowings in certain quarters in order to offset these quarterly fluctuations in our revenues.
The hotel industry is heavily regulated and failure to comply with extensive regulatory requirements may result in an adverse effect on our business.
The hotel industry is subject to extensive regulation and the Hotel must maintain its licenses and pay taxes and fees to continue operations. Our property is subject to
numerous laws, including those relating to the preparation and sale of food and beverages, including alcohol. We are also subject to laws governing our relationship with
our employees in such areas as minimum wage and maximum working hours, overtime, working conditions, hiring and firing employees and work permits. Also, our
ability to remodel, refurbish or add to our property may be dependent upon our obtaining necessary building permits from local authorities. The failure to obtain any of
these permits could adversely affect our ability to increase revenues and net income through capital improvements of our property. In addition, we are subject to the
numerous rules and regulations relating to state and federal taxation. Compliance with these rules and regulations requires significant management attention.
Furthermore, compliance costs associated with such laws, regulations and licenses are significant. Any change in the laws, regulations or licenses applicable to our
business or a violation of any current or future laws or regulations applicable to our business or gaming license could require us to make substantial expenditures or could
otherwise negatively affect our gaming operations. Any failure to comply with all such rules and regulations could subject us to fines or audits by the applicable taxation
authority.
Violations of laws could result in, among other things, disciplinary action. If we fail to comply with regulatory requirements, this may result in an adverse effect on our
business.
Uninsured and underinsured losses could adversely affect our financial condition and results of operations.
There are certain types of losses, generally of a catastrophic nature, such as earthquakes and floods or terrorist acts, which may be uninsurable or not economically
insurable, or may be subject to insurance coverage limitations, such as large deductibles or co-payments. We will use our discretion in determining amounts, coverage
limits, deductibility provisions of insurance and the appropriateness of self-insuring, with a view to maintaining appropriate insurance coverage on our investments at a
reasonable cost and on suitable terms. Uninsured and underinsured losses could harm our financial condition and results of operations. We could incur liabilities resulting
from loss or injury to the Hotel or to persons at the Hotel. Claims, whether or not they have merit, could harm the reputation of the Hotel or cause us to incur expenses to
the extent of insurance deductibles or losses in excess of policy limitations, which could harm our results of operations.
In the event of a catastrophic loss, our insurance coverage may not be sufficient to cover the full current market value or replacement cost of our lost investment. Should
an uninsured loss or a loss in excess of insured limits occur, we could lose all or a portion of the capital we have invested in the Hotel, as well as the anticipated future
revenue from the property. In that event, we might nevertheless remain obligated for any mortgage debt or other financial obligations related to the Hotel. In the event of
a significant loss, our deductible may be high and we may be required to pay for all such repairs and, as a consequence, it could materially adversely affect our financial
condition. Inflation, changes in building codes and ordinances, environmental considerations and other factors might also keep us from using insurance proceeds to
replace or renovate the Hotel after it has been damaged or destroyed. Under those circumstances, the insurance proceeds we receive might be inadequate to restore our
economic position on the damaged or destroyed property.
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It has generally become more difficult and expensive to obtain property and casualty insurance, including coverage for terrorism. When our current insurance policies
expire, we may encounter difficulty in obtaining or renewing property or casualty insurance on our property at the same levels of coverage and under similar terms. Such
insurance may be more limited and for some catastrophic risks (for example, earthquake, flood and terrorism) may not be generally available at current levels. Even if we
are able to renew our policies or to obtain new policies at levels and with limitations consistent with our current policies, we cannot be sure that we will be able to obtain
such insurance at premium rates that are commercially reasonable. If we were unable to obtain adequate insurance on the Hotel for certain risks, it could cause us to be in
default under specific covenants on certain of our indebtedness or other contractual commitments that require us to maintain adequate insurance on the Hotel to protect
against the risk of loss. If this were to occur, or if we were unable to obtain adequate insurance and the Hotel experienced damage which would otherwise have been
covered by insurance, it could materially adversely affect our financial condition and the operations of the Hotel.
In addition, insurance coverage for the Hotel and for casualty losses does not customarily cover damages that are characterized as punitive or similar damages. As a
result, any claims or legal proceedings, or settlement of any such claims or legal proceedings that result in damages that are characterized as punitive or similar damages
may not be covered by our insurance. If these types of damages are substantial, our financial resources may be adversely affected.
You may lose all or part of your investment.
There is no assurance that the Company’s initiatives to improve its profitability or liquidity and financial position will be successful. Accordingly, there is substantial risk
that an investment in the Company will decline in value.
The price of the Company’s common stock may fluctuate significantly, which could negatively affect the Company and holders of its common stock.
The market price of the Company’s common stock may fluctuate significantly from time to time as a result of many factors, including: investors’ perceptions of the
Company and its prospects; investors’ perceptions of the Company’s and/or the industry’s risk and return characteristics relative to other investment alternatives;
difficulties between actual financial and operating results and those expected by investors and analysts; changes in our capital structure; trading volume fluctuations;
actual or anticipated fluctuations in quarterly financial and operational results; volatility in the equity securities market; and sales, or anticipated sales, of large blocks of
the Company’s common stock.
The concentrated beneficial ownership of our common stock and the ability it affords to control our business may limit or eliminate other shareholders' ability to
influence corporate affairs.
The Company’s President, Chief Executive Officer, and Chairman of the Board of Directors, John V. Winfield, owns more than 60% of the Company’s outstanding
common stock. Because of this concentrated stock ownership, Mr. Winfield will be in a position to significantly influence the election of the Company’s board of
directors and all other decisions on all matters requiring shareholder approval. As a result, the ability of other shareholders to determine the management and policies of
the Company is significantly limited. The interests of the Company’s largest shareholder may differ from the interests of other shareholders with respect to the issuance
of shares, business transactions with or sales to other companies, selection of officers and directors and other business decisions. This level of control may also have an
adverse impact on the market value of our shares because our largest shareholder may institute or undertake transactions, policies or programs that may result in losses,
may not take any steps to increase our visibility in the financial community and/or may sell sufficient numbers of shares to significantly decrease our price per share.
Item 1B. Unresolved Staff Comments.
None.
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Item 2. Properties.
SAN FRANCISCO HOTEL PROPERTY
The Hotel is owned by the Partnership through its wholly-owned subsidiary, Operating. The Hotel is centrally located in the Financial District in San Francisco, one
block from the Transamerica Pyramid. The Embarcadero Center is within walking distance and North Beach is two blocks away. Chinatown is directly across the bridge
that runs from the Hotel to Portsmouth Square Park. The Hotel is a 31-story (including parking garage), steel and concrete, A-frame building, built in 1970. The Hotel
has 544 well-appointed guest rooms and luxury suites situated on 22 floors. The third floor houses the Chinese Culture Center and grand ballroom. The Hotel has
approximately 22,000 square feet of meeting room space, including the grand ballroom. Other features of the Hotel include a 5-level underground parking garage and
pedestrian bridge across Kearny Street connecting the Hotel and the Chinese Culture Center with Portsmouth Square Park in Chinatown. The bridge, built and owned by
the Partnership, is included in the lease to the Chinese Culture Center.
The Partnership expects to expend at least 4% of gross annual Hotel revenues each year for capital improvements. In the opinion of management, the Hotel is adequately
covered by insurance.
HOTEL FINANCINGS
On December 18, 2013: (i) Justice Operating Company, LLC, a Delaware limited liability company (“Operating”), entered into a loan agreement (“Mortgage Loan
Agreement”) with Bank of America (“Mortgage Lender”); and (ii) Justice Mezzanine Company, LLC, a Delaware limited liability company (“Mezzanine”), entered into
a mezzanine loan agreement (“Mezzanine Loan Agreement” and, together with the Mortgage Loan Agreement, the “Loan Agreements”) with ISBI San Francisco Mezz
Lender LLC (“Mezzanine Lender” and, together with Mortgage Lender, the “Lenders”). The Partnership is the sole member of Mezzanine, and Mezzanine is the sole
member of Operating.
The Loan Agreements provide for a $97,000,000 Mortgage Loan and a $20,000,000 Mezzanine Loan. The proceeds of the Loan Agreements were used to fund the
redemption of limited partnership interests and the pay-off of the prior mortgage.
The Mortgage Loan is secured by the Partnership’s principal asset, the Hotel. The Mortgage Loan bears an interest rate of 5.275% per annum and matures in January
2024. The term of the loan is ten years with interest only due in the first three years and principal and interest payments to be made during the remaining seven years of
the loan based on a thirty-year amortization schedule. The Mortgage Loan also requires payments for impounds related to property tax, insurance and capital
improvement reserves. As additional security for the Mortgage Loan, there is a limited guaranty (“Mortgage Guaranty”) executed by the Company in favor of Mortgage
Lender.
The Mezzanine Loan is secured by the Operating membership interest held by Mezzanine and is subordinated to the Mortgage Loan. The Mezzanine Loan bears interest
at 9.75% per annum and matures on January 1, 2024. Interest only payments are due monthly. As additional security for the Mezzanine Loan, there is a limited guaranty
executed by the Company in favor of Mezzanine Lender (the “Mezzanine Guaranty” and, together with the Mortgage Guaranty, the “Guaranties”).
The Guaranties are limited to what are commonly referred to as “bad boy” acts, including: (i) fraud or intentional misrepresentations; (ii) gross negligence or willful
misconduct; (iii) misapplication or misappropriation of rents, security deposits, insurance or condemnation proceeds; and (iv) failure to pay taxes or insurance. The
Guaranties are full recourse guaranties under identified circumstances, including failure to maintain “single purpose” status which is a factor in a consolidation of
Operating or Mezzanine in a bankruptcy of another person, transfer or encumbrance of the Property in violation of the applicable loan documents, Operating or
Mezzanine incurring debts that are not permitted, and the Property becoming subject to a bankruptcy proceeding. Pursuant to the Guaranties, the Partnership is required
to maintain a certain minimum net worth and liquidity. Effective as of May 12, 2017, InterGroup agreed to become an additional guarantor under the limited guaranty
and an additional indemnitor under the environmental indemnity for Justice Investors limited partnership’s $97,000,000 mortgage loan and the $20,000,000 mezzanine
loan. Pursuant to the agreement, InterGroup is required to maintain a certain net worth and liquidity. As of June 30, 2018, management believes that InterGroup is in
compliance with both requirements.
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Each of the Loan Agreements contains customary representations and warranties, events of default, reporting requirements, affirmative covenants and negative
covenants, which impose restrictions on, among other things, organizational changes of the respective borrower, operations of the Property, agreements with affiliates
and third parties. Each of the Loan Agreements also provides for mandatory prepayments under certain circumstances (including casualty or condemnation events) and
voluntary prepayments, subject to satisfaction of prescribed conditions set forth in the Loan Agreements.
On July 2, 2014, the Partnership obtained from Intergroup an unsecured loan in the principal amount of $4,250,000 at 12% per year fixed interest, with a term of two
years, payable interest only each month. Intergroup received a 3% loan fee. The loan may be prepaid at any time without penalty. The proceeds of the loan were applied
to the July 2014 payments to Holdings described in Note 2. The loan was extended to December 31, 2018. As of June 30, 2018, the balance of the loan was $3,000,000.
In March 2017, Portsmouth obtained from InterGroup an unsecured loan in the principal amount of $2,700,000 at 5% per year fixed interest, with a term of one-year,
payable interest only each month. In April 2017, the balance of the loan was repaid along with all accrued interest.
In April 2017, Portsmouth obtained from InterGroup an unsecured short-term loan in the principal amount of $1,000,000 at 5% per year fixed interest, with a term of five
months and maturing September 6, 2017. Accrued interest and monthly principal installments in the amount of $200,000 were due and payable commencing on May 1,
2017 and continuing on the first day of each calendar month thereafter, until five months after the date of the loan at which time any unpaid balance of principal and
interest on the note was due and payable. The loan was extended to September 15, 2017 and paid off on September 13, 2017.
RENTAL PROPERTIES
As June 30, 2018, the Company's investment in real estate consisted of twenty properties located throughout the United States, with a concentration in Texas and
Southern California. These properties include sixteen apartment complexes, three single-family houses as strategic investments and one commercial real estate property.
All properties are operating properties. In addition to the properties, the Company owns approximately 2 acres of unimproved land in Maui, Hawaii.
MANAGEMENT OF RENTAL PROPERTIES
As of June 30, 2018, all of the Company’s operating real estate properties are managed in-house.
Description of Properties
Las Colinas, Texas. The Las Colinas property is a water front apartment community along Beaver Creek that was developed in 1993 with 358 units on approximately
15.6 acres of land. The Company acquired the complex on April 30, 2004 for approximately $27,145,000. Depreciation is recorded on the straight-line method, based
upon an estimated useful life of 27.5 years. Real estate property taxes for the year ended June 30, 2018 were approximately $964,000. The outstanding mortgage balance
was approximately $17,404,000 at June 30, 2018 with an interest rate of 3.73% and the maturity date of the mortgage is December 1, 2022.
Morris County, New Jersey. The Morris County property is a two-story garden apartment complex that was completed in June 1964 with 151 units on approximately 8
acres of land. The Company acquired the complex on September 15, 1967 at an initial cost of approximately $1,600,000. Real estate property taxes for the year ended
June 30, 2018 were approximately $235,000. Depreciation is recorded on the straight-line method, based upon an estimated useful life of 40 years. The outstanding
mortgage balance was approximately $9,068,000 at June 30, 2018 and the maturity date of the mortgage is July 31, 2022. In June 2014, the Company obtained a second
mortgage on this property in the amount of $2,701,000. The term of the loan is approximately 8 years with the interest rate fixed at 4.51%. The outstanding mortgage
balance was approximately $2,563,000 at June 30, 2018. The loan matures in August 2022.
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St. Louis, Missouri. The St. Louis property is a two-story project with 264 units on approximately 17.5 acres. The Company acquired the complex on November 1, 1968
at an initial cost of $2,328,000. For the year ended June 30, 2018, real estate property taxes were approximately $214,000. Depreciation is recorded on the straight-line
method, based upon an estimated useful life of 40 years. The outstanding mortgage balance was approximately $5,491,000 at June 30, 2018 with an interest rate of 4.05%
and the maturity date of the mortgage is May 31, 2023.
Florence, Kentucky. The Florence property is a three-story apartment complex with 157 units on approximately 6.0 acres. The Company acquired the property on
December 20, 1972 at an initial cost of approximately $1,995,000. For the year ended June 30, 2018, real estate property taxes were approximately $47,000. Depreciation
is recorded on the straight-line method, based upon an estimated useful life of 40 years. In March 2015, the Company refinanced the $3,636,000 mortgage note payable
for a new mortgage in the amount of $3,492,000. The Company paid down approximately $210,000 of the old mortgage as part of the refinancing. The new mortgage has
a fixed interest rate of 3.87% for ten years and matures in April 2025. The outstanding mortgage balance was approximately $3,291,000 at June 30, 2018.
Los Angeles, California. The Company owns one commercial property, twelve apartment complexes, and three single-family houses in the general area of West Los
Angeles.
The first Los Angeles commercial property is a 5,500 square foot, two story building that served as the Company's corporate offices until it was leased out, effective
October 1, 2009 and the Company leased a new space for its corporate office. The Company acquired the building on March 4, 1999 for $1,876,000. The property taxes
for the year ended June 30, 2018 were approximately $31,000. Depreciation is recorded on the straight-line method, based upon an estimated useful life of 40 years. In
April 2016, the Company refinanced the $1,007,000 mortgage note payable for a new mortgage in the amount of $921,000. The new mortgage has a fixed interest rate
swap with the floating rate loan. By combing both rates rate through maturity of the credit facility (1.49% swap + 2.50% credit spread), the all-in fixed rate is 3.99%. The
outstanding mortgage balance was approximately $842,000 at June 30, 2018 and the note matures in January 2021.
The first Los Angeles apartment complex is a 10,600 square foot two-story apartment with 12 units. The Company acquired the property on July 30, 1999 at an initial
cost of approximately $1,305,000. For the year ended June 30, 2018, real estate property taxes were approximately $22,000. Depreciation is recorded on the straight-line
method, based upon an estimated useful life of 40 years. In June 2016, the Company refinanced the $2,095,000 mortgage note payable for a new mortgage in the amount
of $2,300,000 with an interest rate of 3.59%. The outstanding mortgage balance was approximately $2,218,000 at June 30, 2018 and the maturity date of the mortgage is
June 23, 2026.
The second Los Angeles apartment complex is a 29,000 square foot three-story apartment with 27 units. This complex is held by Intergroup Woodland Village, Inc.
("Woodland Village"), which is 55.4% and 44.6% owned by Santa Fe and the Company, respectively. The property was acquired on September 29, 1999 at an initial cost
of approximately $4,075,000. For the year ended June 30, 2018, real estate property taxes were approximately $66,000. Depreciation is recorded on the straight-line
method, based upon an estimated useful life of 40 years. The outstanding mortgage balance was approximately $2,843,000 at June 30, 2018 with an interest rate of 4.85%
and the maturity date of the mortgage is December 1, 2020. In July 2018, InterGroup obtained a revolving $5,000,000 line of credit (“RLOC”). On July 31, 2018,
$2,969,000 was drawn from the RLOC to pay off the mortgage. This property will undergo major renovation which is scheduled to be completed during fiscal 2019.
The third Los Angeles apartment complex is a 12,700 square foot apartment with 14 units. The Company acquired the property on October 20, 1999 at an initial cost of
approximately $2,150,000. For the year ended June 30, 2018, real estate property taxes were approximately $36,000. Depreciation is recorded on the straight-line
method, based upon an estimated useful life of 40 years. The outstanding mortgage balance was approximately $1,665,000 at June 30, 2018 with an interest rate of 5.89%
and the maturity date of the mortgage is March 1, 2021.
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The fourth Los Angeles apartment complex is a 10,500 square foot apartment with 9 units. The Company acquired the property on November 10, 1999 at an initial cost
of approximately $1,675,000. For the year ended June 30, 2018, real estate property taxes were approximately $27,000. Depreciation is recorded on the straight-line
method, based upon an estimated useful life of 40 years. The outstanding mortgage balance was approximately $1,135,000 at June 30, 2018 with an interest rate of 5.89%
and the maturity date of the mortgage is March 1, 2021.
The fifth Los Angeles apartment complex is a 26,100 square foot two-story apartment with 31 units. The Company acquired the property on May 26, 2000 at an initial
cost of approximately $7,500,000. For the year ended June 30, 2018, real estate property taxes were approximately $114,000. Depreciation is recorded on the straight-
line method, based upon an estimated useful life of 40 years. The outstanding mortgage balance was approximately $5,048,000 at June 30, 2018 with an interest rate of
4.85% and the maturity date of the mortgage is December 1, 2020.
The sixth Los Angeles apartment complex is a 27,600 square foot two-story apartment with 30 units. The Company acquired the property on July 7, 2000 at an initial
cost of approximately $4,411,000. For the year ended June 30, 2018, real estate property taxes were approximately $72,000. Depreciation is recorded on the straight-line
method, based upon an estimated useful life of 40 years. The outstanding mortgage balance was approximately $5,907,000 at June 30, 2018 with an interest rate of 5.97%
and the maturity date of the mortgage is September 1, 2022.
The seventh Los Angeles apartment complex is a 3,000 square foot apartment with 4 units. The Company acquired the property on July 19, 2000 at an initial cost of
approximately $1,070,000. For the year ended June 30, 2018, real estate property taxes were approximately $17,000. Depreciation is recorded on the straight-line
method, based upon an estimated useful life of 40 years. The outstanding mortgage balance was approximately $352,000 at June 30, 2018 with an interest rate of 3.75%
and the maturity date of the mortgage is September 1, 2042.
The eighth Los Angeles apartment complex is a 4,500 square foot two-story apartment with 4 units. The Company acquired the property on July 28, 2000 at an initial
cost of approximately $1,005,000. For the year ended June 30, 2018, real estate property taxes were approximately $16,000. Depreciation is recorded on the straight-line
method, based upon an estimated useful life of 40 years. The outstanding mortgage balance was approximately $594,000 at June 30, 2018 with an interest rate of 3.75%
and the maturity date of the mortgage is September 1, 2042.
The ninth Los Angeles apartment complex is a 7,500 square foot apartment with 7 units. The Company acquired the property on August 9, 2000 at an initial cost of
approximately $1,308,000. For the year ended June 30, 2018, real estate property taxes were approximately $22,000. Depreciation is recorded on the straight-line
method, based upon an estimated useful life of 40 years. The outstanding mortgage balance was approximately $868,000 at June 30, 2018 with an interest rate of 3.75%
and the maturity date of the mortgage is September 1, 2042.
The tenth Los Angeles apartment complex is a 13,000 square foot two-story apartment with 8 units. The Company acquired the property on May 1, 2001 at an initial cost
of approximately $1,206,000. For the year ended June 30, 2018, real estate property taxes were approximately $20,000. Depreciation is recorded on the straight-line
method, based upon an estimated useful life of 40 years. In July 2013, the Company refinanced its $466,000 adjustable rate mortgage note payable on this property for a
new 30-year mortgage in the amount of $500,000. The interest rate on the new loan is fixed at 3.75% per annum for the first five years and variable for the remaining of
the term. The note matures in July 2043. The outstanding mortgage balance was approximately $451,000 at June 30, 2018.
The eleventh Los Angeles apartment complex, which is owned 100% by the Company’s subsidiary Santa Fe, is a 4,200 square foot two-story apartment with 2 units.
Santa Fe acquired the property on February 1, 2002 at an initial cost of approximately $785,000. For the year ended June 30, 2018, real estate property taxes were
approximately $12,000. Depreciation is recorded on the straight-line method based upon an estimated useful life of 40 years. The outstanding mortgage balance was
approximately $356,000 at June 30, 2018 with an interest rate of 3.75% and the maturity date of the mortgage is September 1, 2042.
The twelfth apartment which is located in Marina del Rey, California, is a 6,316 square foot two-story apartment with 9 units. The Company acquired the property on
April 29, 2011 at an initial cost of approximately $4,000,000. For the year ended June 30, 2018, real estate property taxes were approximately $54,000. Depreciation is
recorded on the straight-line method, based upon an estimated useful life of 27.5 years. The outstanding mortgage balance was approximately $1,331,000 at June 30,
2018 with an interest rate of 5.60% and the maturity date of the mortgage is May 1, 2021.
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The first Los Angeles single-family house is a 2,771 square foot home. The Company acquired the property on November 9, 2000 at an initial cost of approximately
$660,000. For the year ended June 30, 2018, real estate property taxes were approximately $11,000. Depreciation is recorded on the straight-line method, based upon an
estimated useful life of 40 years. The outstanding mortgage balance was approximately $383,000 at June 30, 2018 with an interest rate of 3.75% and the maturity date of
the mortgage is September 1, 2042.
The second Los Angeles single-family house is a 2,201 square foot home. The Company acquired the property on August 22, 2003 at an initial cost of approximately
$700,000. For the year ended June 30, 2018, real estate property taxes were approximately $12,000. Depreciation is recorded on the straight-line method, based upon an
estimated useful life of 40 years. The outstanding mortgage balance was approximately $409,000 at June 30, 2018 with an interest rate of 3.75% and the maturity date of
the mortgage is September 1, 2042.
The third Los Angeles single-family house is a 2,387 square foot home. The company acquired the property in July of 2015 as a strategic asset for $1,975,000 in cash. In
August 2016, the Company obtained a $1,000,000 mortgage note payable and received net proceeds of $983,000. The interest on note is 4.50% with interest only
payments for twenty-three months. The loan matures on September 1, 2018 and will be paid off at maturity. For the year ended June 30, 2018, real estate property taxes
were approximately $27,000. Depreciation is recorded on the straight-line method, based upon an estimated useful life of 40 years.
In August 2004, the Company purchased an approximately two-acre parcel of unimproved land in Kihei, Maui, Hawaii for $1,467,000.
MORTGAGES
Further information with respect to mortgage notes payable of the Company is set forth in Note 10 of the Notes to Consolidated Financial Statements.
ECONOMIC AND PHYSICAL OCCUPANCY RATES
The Company leases units in its residential rental properties on a short-term basis, with no lease extending beyond one year. The economic occupancy (gross potential
less rent below market, vacancy loss, bad debt, discounts and concessions divided by gross potential rent) and the physical occupancy (gross potential rent less vacancy
loss divided by gross potential rent) for each of the Company's operating properties for fiscal year ended June 30, 2018 are provided below.
19
Property
1. Las Colinas, TX
2. Morris County, NJ
3. St. Louis, MO
4. Florence, KY
5. Los Angeles, CA (1)
6. Los Angeles, CA (2)
7. Los Angeles, CA (3)
8. Los Angeles, CA (4)
9. Los Angeles, CA (5)
10. Los Angeles, CA (6)
11. Los Angeles, CA (7)
12. Los Angeles, CA (8)
13. Los Angeles, CA (9)
14. Los Angeles, CA (10)
15. Los Angeles, CA (11)
16. Los Angeles, CA (12)
17. Los Angeles, CA (13)
18. Los Angeles, CA (14)
19. Los Angeles, CA (15)
Economic
Occupancy
Physical
Occupancy
89%
96%
84%
93%
85%
36%
94%
100%
67%
94%
97%
100%
97%
100%
95%
73%
67%
100%
100%
92%
98%
89%
95%
95%
53%
91%
98%
85%
96%
94%
100%
96%
100%
95%
82%
67%
100%
100%
The Company’s Los Angeles, California properties are subject to various rent control laws, ordinances and regulations which impact the Company’s ability to adjust and
achieve higher rental rates.
Item 3. Legal Proceedings.
In 2013, the City and County of San Francisco ("CCSF") Office of the Assessor Recorder claimed that Justice owed $2.1 million for Transient Occupancy Tax and
Tourist Improvement District Assessment. This amount exceeded Justice’s estimate of the taxes owed, and Justice disputed the claim. The Partnership paid the full
amount in March 2014 as part of the appeals process. On December 18, 2013, a Documentary Transfer Tax of approximately $4.7 million was paid under protest to
CCSF. CCSF had required payment as a condition of recording the transfer of the Hotel, which was necessary to affect the Loan Agreements. The Partnership then filed
a lawsuit challenging the transfer tax in San Francisco County Superior Court. During the year ended June 30, 2016, the Partnership settled the two CCSF lawsuits,
receiving $1.45 million.
In 2014, Evon Corporation ("Evon") filed a complaint in San Francisco Superior Court against the Partnership, Portsmouth, and a limited partner and related party
asserting contract and tort claims based on Justice’s withholding of $4.7 million to pay the transfer tax described above. Evon’s complaint asserted various tort and
contract claims against Justice and Portsmouth; and a tort against a Justice limited partner and related party. In July 2014, Justice paid to Holdings $4.7 million, the
amount Evon claimed to be incorrectly withheld. In June 2014, the Partnership sued Evon and related defendants, seeking a judicial declaration as to certain issues
arising out of the partnership redemption documents. Evon filed a cross-complaint in December 2014, alleging torts against the Partnership in connection with the
redemption transaction. On May 5, 2016, Justice Investors and Portsmouth (parent company) settled these actions via a global settlement agreement. The Partnership
agreed to pay Evon $5,575,000. As of January 10, 2017, the Company has satisfied all conditions of the settlement agreement.
In March 2017, Justice entered into a settlement agreement with RSUI Indemnity Company (“RSUI”), the insurer for Portsmouth’s Directors and Officers Liability
Policies. Under this settlement agreement, Justice received $900,000 from RSUI to resolve allegations that RSUI had committed breach of contract and bad faith in
handling a claim. The $900,000 was recorded as a reduction of legal expense for the fiscal year ended June 30, 2017.
In April 2014, the Partnership commenced an arbitration action against Glaser Weil Fink Howard Avchen & Shapiro, LLP (formerly known as Glaser Weil Fink Jacobs
Howard Avchen & Shapiro, LLP), Brett J. Cohen, Gary N. Jacobs, Janet S. McCloud, Paul B. Salvaty, and Joseph K. Fletcher III (collectively, the “Respondents”) in
connection with the redemption transaction. The arbitration alleged legal malpractice against the Respondents and sought declaratory relief regarding provisions of the
option agreement in the redemption transaction and regarding the engagement letter with Respondents. Prior to arbitration proceedings, the parties agreed in principle to
settle the matter, and entered into a settlement agreement and mutual general release in April 2018. The Respondents agreed to pay $8,300,000, which was received in
May of 2018. $5,575,000 was recorded as a recovery of legal settlement cost and $2,725,000 was recorded as a reduction of legal expense for the fiscal year ended June
30, 2018.
20
The Company is subject to legal proceedings, claims, and litigation arising in the ordinary course of business. The Company defends itself vigorously against any such
claims. Management does not believe that the impact of such matters will have a material effect on the financial conditions or result of operations when resolved.
Item 4. Mine Safety Disclosures.
Not applicable.
Item 5. Market for Common Equity and Related Stockholder Matters.
MARKET INFORMATION
PART II
The Company's Common Stock is listed and trades on the NASDAQ Capital Market tier of the NASDAQ Stock Market, LLC under the symbol: “INTG”. The following
table sets forth the high and low sales prices for the Company’s common stock for each quarter of the last two fiscal years ended June 30, 2018 and 2017 as reported by
NASDAQ.
Fiscal 2018
High
Low
First Quarter (7/ 1 to 9/30)
Second Quarter (10/1 to 12/31)
Third Quarter (1/1 to 3/31)
Fourth Quarter (4/1 to 6/30)
First Quarter (7/ 1 to 9/30)
Second Quarter (10/1 to 12/31)
Third Quarter (1/1 to 3/31)
Fourth Quarter (4/1 to 6/30)
Fiscal 2017
$
$
$
$
$
$
$
$
27.65 $
24.80 $
25.17 $
27.00 $
23.10
22.70
22.45
23.10
High
Low
25.15 $
27.21 $
29.77 $
28.50 $
24.15
22.32
25.20
25.00
As of June 30, 2018, the approximate number of holders of record of the Company’s Common Stock was 224. Such number of owners was determined from the
Company’s shareholders records and does not include beneficial owners of the Company’s Common Stock whose shares are held in names of various brokers, clearing
agencies or other nominees.
DIVIDENDS
The Company has not declared any cash dividends on its common stock and does not foresee issuing cash dividends in the near future.
SECURITIES AUTHORIZED FOR ISSUANCE UNDER EQUITY COMPENSATION PLANS.
This information appears in Part III, Item 12 of this report.
21
ISSUER PURCHASES OF EQUITY SECURITIES
The following table reflects purchases of InterGroup’s common stock made by The InterGroup Corporation, for its own account, during the fourth quarter of its fiscal
year ending June 30, 2018.
SMALL BUSINESS ISSUER PURCHASES OF EQUITY SECURITIES
Fiscal
2018
Period
Month #1 (April 1- April 30)
Month #2 (May 1- May 31)
Month #3 (June 1- June 30)
TOTAL:
(a) Total
Number of
Shares
Purchased
(b)
Average
Price Paid
Per Share
(c) Total Number
of Shares Purchased
as Part of Publicly
Announced Plans
or Programs
(d) Maximum Number
of shares that May
Yet be Purchased
Under the Plans
or Programs
-
6,600
9,300
15,900
$
$
$
-
25.94
26.36
26.12
-
6,600
9,300
15,900
57,314
50,714
41,414
41,414
The Company has only one stock repurchase program. The program was initially announced on January 13, 1998 and was amended on February 10, 2003 and October
12, 2004. The total number of shares authorized to be repurchased pursuant to those prior authorizations was 870,000, adjusted for stock splits. On June 3, 2009, the
Board of Directors authorized the Company to purchase up to an additional 125,000 shares of Company’s common stock. On November 15, 2012, the Board of Directors
authorized the Company to purchase up to an additional 100,000 shares of Company’s common stock. The purchases will be made, in the discretion of management,
from time to time, in the open market or through privately negotiated third party transactions depending on market conditions and other factors. The Company’s
repurchase program has no expiration date and can be amended and increased, from time to time, in the discretion of the Board of Directors. No plan or program expired
during the period covered by the table.
Item 6. Selected Financial Data.
Not required for smaller reporting companies.
Item 7. Management Discussion and Analysis of Financial Condition and Results of Operations.
RESULTS OF OPERATIONS
As of June 30, 2018, the Company owned approximately 81.9% of the common shares of its subsidiary, Santa Fe, and Santa Fe owned approximately 68.8% of the
common shares of Portsmouth Square, Inc. Intergroup also directly owns approximately 13.4% of the common shares of Portsmouth. The Company's principal sources of
revenue continue to be derived from the general and limited partnership interests of its subsidiary, Portsmouth, in the Justice Investors limited partnership (“Justice” or
the “Partnership”), rental income from its investments in multi-family and commercial real estate properties, and income received from investment of its cash and
securities assets. Justice owns a 544 room hotel property located at 750 Kearny Street, San Francisco, California 94108, known as the “Hilton San Francisco Financial
District” (the “Hotel” or the “Property”) and related facilities, including a five-level underground parking garage. The financial statements of Justice have been
consolidated with those of the Company.
22
The Hotel is operated by the Partnership as a full-service Hilton brand hotel pursuant to a License Agreement with Hilton. The Partnership entered into the License
Agreement on December 10, 2004. The term of the License Agreement was for an initial period of 15 years commencing on the reopening date, upon completion of a
major renovation, with an option to extend the License Agreement for another five years, subject to certain conditions. On June 26, 2015, the Partnership and Hilton
entered into an amended franchise agreement which extended the License Agreement through 2030, modified the monthly royalty rate, extended geographic protection to
the Partnership and also provided the Partnership certain key money cash incentives to be earned through 2030. The key money cash incentive of $4,750,000 was
received on July 1, 2015.
After a lengthy review process of several national third-party hotel management companies, on February 1, 2017, Justice entered into a Hotel management agreement
(“HMA”) with Interstate Management Company, LLC (“Interstate”) to manage the Hotel with an effective takeover date of February 3, 2017. The term of management
agreement is for an initial period of 10 years commencing on the takeover date and automatically renews for an additional year not to exceed five years in the aggregate
subject to certain conditions. The HMA also provides for Interstate to advance a key money incentive fee to the Hotel for capital improvements in the amount of
$2,000,000 under certain terms and conditions described in a separate key money agreement.
The parking garage that is part of the Hotel property was managed by Ace Parking pursuant to a contract with the Partnership. The contract was terminated with an
effective termination date of October 4, 2016. The Company began managing the parking garage in-house after the termination of Ace Parking. Effective February 3,
2017, Interstate took over the management of the parking garage along with the Hotel.
In addition to the operations of the Hotel, the Company also generates income from the ownership and management of real estate. Properties include sixteen apartment
complexes, one commercial real estate property, and three single-family houses as strategic investments. The properties are located throughout the United States, but are
concentrated in Texas and Southern California. The Company also has an investment in unimproved real property.
The Company acquires its investments in real estate and other investments utilizing cash, securities or debt, subject to approval or guidelines of the Board of Directors.
The Company also invests in income-producing instruments, equity and debt securities and will consider other investments if such investments offer growth or profit
potential.
Fiscal Year Ended June 30, 2018 Compared to Fiscal Year Ended June 30, 2017
The Company had a net income of $5,813,000 for the year ended June 30, 2018 compared to a net loss of $1,676,000 for the year ended June 30, 2017. The change is
primarily attributable to the receipt of $8,300,000 in settlement proceeds related to the Glaser matter as described in Item 3 - Legal Proceedings. The increase in net
income was offset by $2,535,000 increase in provision for income tax expense.
Hotel Operations
The Company had net income from Hotel operations of $12,827,000 for the year ended June 30, 2018 compared to net income of $3,494,000 for the year ended June 30,
2017. The increase in net income was primarily attributable to the receipt of $8,300,000 in settlement proceeds related to the Glaser matter.
23
The following table sets forth a more detailed presentation of Hotel operations for the years ended June 30, 2018 and 2017.
For the year ended June 30,
Hotel revenues:
Hotel rooms
Food and beverage
Garage
Other operating departments
Total hotel revenues
Operating expenses, excluding non-recurring charges, interest, depreciation and amortization
Operating income before non-recurring charges, interest, depreciation and amortization
Recovery of legal settlement costs
Income before interest, depreciation and amortization
Interest expense – mortgage
Depreciation and amortization expense
Net income from Hotel operations
$
2018
2017
$
46,475,000
7,222,000
3,011,000
391,000
57,099,000
(40,103,000)
16,996,000
5,775,000
22,771,000
(7,237,000)
(2,707,000)
45,012,000
5,934,000
2,695,000
693,000
54,334,000
(40,717,000)
13,617,000
-
13,617,000
(7,066,000)
(3,057,000)
$
12,827,000
$
3,494,000
For the year ended June 30, 2018, the Hotel generated operating income of $16,996,000 before non-recurring charges, interest, depreciation, and amortization on total
operating revenues of $57,099,000 compared to operating income of $13,617,000 before non-recurring charges, interest, depreciation, and amortization on total operating
revenues of $54,334,000 for the year ended June 30, 2017. Room revenues increased by $1,463,000 for the year ended June 30, 2018 compared to the year ended June
30, 2017 primarily as a result of increased occupancy due to strategic changes of our sales strategy along with increased group room nights. Hotel focused on sellout
efficiency specifically on shoulder days and months. Food and beverage revenue increased by $1,288,000 for the year ended June 30, 2018 compared to the year ended
June 30, 2017 primarily due to the increased per group room night banquet food and beverage contribution as well as increased audio-visual spending.
Operating expenses decreased by $614,000 for the year ended June 30, 2018 to $40,103,000 compared to the year ended June 30, 2017 of $40,717,000 primarily due to
the receipt of settlement proceeds related to the Glaser matter. The reduction of $2,725,000 in legal expense related to the Glaser matter was offset by increase in legal
expenses due to the same matter.
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 year
ended June 30, 2018 and 2017.
For the Year
Ended June 30,
2018
2017
Average
Daily Rate
Average
Occupancy %
RevPAR
$
$
250
250
94% $
91% $
235
227
The Hotel’s continued focus on growing occupancy during off peak timeframes resulted in the $8 RevPAR growth from fiscal year 2017. While the Hotel focused on
rate growth over peak demands of midweek, the growth of occupancy came over weekends and holidays which resulted in the overall rate remaining flat year over year
at $250.
We believe that enhancing the Hotel’s technology is critical and to that end, we are currently working with all Hilton approved vendors to upgrade all technical aspects of
the Hotel and the implementation of state-of-the-art systems that will set us apart from our competitors. We have made ten additional rooms available by eliminating the
Justice administrative office from the Hotel and relocating the accounting department to administrative space and eliminated the unprofitable Wellness Center that was
added by previous management. We anticipate that the additional ten rooms will be placed into service within the fiscal year ending June 30, 2019. Additionally, the
fitness center which is occupying the equivalent of five rooms and the executive lounge which is occupying the equivalent of three rooms, will be relocated to a different
area within the hotel. The eight equivalent rooms will be placed back into service. Part of this renovation will be funded by the Hotel’s furniture, fixture and equipment
reserve account with our lender as well as the $2,000,000 key money incentive provided by Interstate. Lastly, we anticipate the completion of the installation of a
complete exterior building maintenance system during fiscal 2019 in order to wash the windows periodically.
24
Real Estate Operations
Revenue from real estate operations decreased to $14,480,000 for the year ended June 30, 2018 from $14,671,000 for the year ended June 30, 2017 primarily as a result
of increased vacancy loss. Real estate operating expenses increased to $7,579,000 from $7,166,000 primarily as a result of higher real estate taxes. Management
continues to review and analyze the Company’s real estate operations to improve occupancy and rental rates and to reduce expenses and improve efficiencies.
Investment Transactions
The Company had a net loss on marketable securities of $1,777,000 for the year ended June 30, 2018 compared to a net loss on marketable securities of $3,496,000 for
the year ended June 30, 2017. For the year ended June 30, 2018, the Company had an unrealized loss of $2,337,000 and a realized loss of $6,007,000, related to the
Company’s investment in the common stock of Comstock Mining Inc. (“Comstock” - NYSE MKT: LODE). For the year ended June 30, 2017, the Company had an
unrealized loss of $4,517,000 and zero realized loss related to the Company’s investment in the common stock of Comstock.
As of June 30, 2018 and 2017, investments in Comstock represent approximately 7% and 28%, respectively, of the Company’s investment portfolio. For the year ended
June 30, 2018, the Company had a net realized loss of $5,375,000 and a net unrealized gain of $3,598,000. For the year ended June 30, 2017, the Company had a net
realized gain of $356,000 and a net unrealized gain of $3,852,000. 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.
During the years ended June 30, 2018 and 2017, the Company performed an impairment analysis of its other investments and determined that its investments had an
other than temporary impairment and recorded impairment losses of $200,000 and $178,000, respectively.
The Company and its subsidiaries, Portsmouth and Santa Fe, compute and file income tax returns and prepare discrete income tax provisions for financial reporting. The
income tax expense during the year ended June 30, 2018 and 2017 represents primarily the combined income tax effect of Portsmouth’s pretax income which includes its
share in net income from the Hotel and the pre-tax loss from Intergroup (standalone).
MARKETABLE SECURITIES AND OTHER INVESTMENTS
As of June 30, 2018 and 2017, the Company had investments in marketable equity securities of $13,841,000 and $17,177,000, respectively. The following table shows
the composition of the Company’s marketable securities portfolio by selected industry groups as:
25
As of June 30, 2018
Industry Group
REITs and real estate companies
Corporate bonds
Technology
Healthcare
Communications
Other
As of June 30, 2017
Industry Group
Basic materials
Technology
REITs and real estate companies
Corporate bonds
Energy
Other
Fair Value
4,300,000
2,282,000
1,813,000
1,777,000
1,071,000
2,598,000
13,841,000
Fair Value
6,222,000
4,134,000
1,820,000
1,683,000
1,345,000
1,973,000
17,177,000
$
$
$
$
% of Total
Investment
Securities
31.1%
16.5%
13.1%
12.8%
7.7%
18.8%
100.0%
% of Total
Investment
Securities
36.2%
24.1%
10.6%
9.8%
7.8%
11.5%
100.0%
The Company’s investment portfolio is diversified with 35 different equity positions The Company holds two equity securities that comprised more than 10% of the
equity value of the portfolio. The largest security position represents 15.8% of the portfolio and consists of the common stock of Colony Financial Inc. which is included
in the REITs and real estate companies industry group.
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 years.
For the years ended June 30,
Net loss on marketable securities
Net unrealized loss on other investments
Impairment loss on other investments
Dividend and interest income
Margin interest expense
Trading expenses
FINANCIAL CONDITION AND LIQUIDITY
2018
2017
(1,777,000)
(42,000)
(200,000)
277,000
(632,000)
(555,000)
(2,929,000)
$
$
(3,496,000)
-
(178,000)
287,000
(652,000)
(508,000)
(4,547,000)
$
$
The Company’s cash flows are primarily generated from its Hotel operations, general partner management fees from Justice Investors, its real estate operations and from
the investment of its cash in marketable securities and other investments.
To fund the redemption of limited partnership interests and to repay the prior mortgage, Justice obtained a $97,000,000 mortgage loan and a $20,000,000 mezzanine loan
in December of 2013. The mortgage loan is secured by the Partnership’s principal asset, the Hotel. The mortgage loan bears an interest rate of 5.275% per annum and
matures in January 2024. As additional security for the mortgage loan, there is a limited guaranty executed by the Company in favor of Mortgage Lender. The mezzanine
loan is a secured by the Operating membership interest held by Mezzanine and is subordinated to the Mortgage Loan. The mezzanine loan bears interest at 9.75% per
annum and matures in January 2024. As additional security for the mezzanine loan, there is a limited guaranty executed by the Company in favor of mezzanine lender.
Effective as of May 12, 2017, InterGroup agreed to become an additional guarantor under the limited guaranty and an additional indemnitor under the environmental
indemnity for Justice Investors limited partnership’s $97,000,000 mortgage loan and the $20,000,000 mezzanine loan.
26
Management believes that its cash, securities assets, real estate and the cash flows generated from those assets and from partnership management fees, will be adequate to
meet the Company’s current and future obligations. Additionally, management believes there is significant appreciated value in the Hotel and other real estate properties
to support additional borrowings if necessary.
MATERIAL CONTRACTUAL OBLIGATIONS
The following table provides a summary of the Company’s material financial obligations which also includes interest.
Mortgage notes payable
Other notes payable
Interest
Total
Total
$178,238,000
7,089,000
49,815,000
$235,142,000
Year 1
$ 3,995,000
763,000
9,898,000
$14,656,000
Year 2
$ 3,104,000
935,000
9,584,000
$13,623,000
Year 3
$15,172,000
916,000
9,154,000
$25,242,000
Year 4
$ 3,079,000
930,000
8,603,000
$12,612,000
Year 5
$37,825,000
592,000
7,593,000
$46,010,000
Thereafter
$115,063,000
2,953,000
4,983,000
$122,999,000
OFF-BALANCE SHEET ARRANGEMENTS
The Company has no material 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 Interstate 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 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 7A. Quantitative and Qualitative Disclosures about Market Risk.
Not required for smaller reporting companies.
Item 8. Financial Statements and Supplementary Data.
INDEX TO CONSOLIDATED FINANCIAL STATEMENTS
Independent Auditor’s Report
Consolidated Balance Sheets - June 30, 2018 and 2017
Consolidated Statements of Operations - For years ended June 30, 2018 and 2017
Consolidated Statements of Shareholders’ Deficit - For years ended June 30, 2018 and 2017
Consolidated Statements of Cash Flows - For years ended June 30, 2018 and 2017
28
PAGE
29-30
31
32
33
34
Report of Independent Registered Public Accounting Firm
To the Shareholders and the Board of Directors of
The Intergroup Corporation
Opinion on the Financial Statements
We have audited the accompanying consolidated balance sheet of The Intergroup Corporation and its subsidiaries (the “Company”) as of June 30, 2018, the related
consolidated statements of operations, shareholders’ deficit and cash flows for the year then ended, and the related notes (collectively referred to as the “consolidated
financial statements”). In our opinion, the consolidated financial statements present fairly, in all material respects, the consolidated financial position of the Company as
of June 30, 2018, and the consolidated results of its operations and its cash flows for the year then ended, in conformity with accounting principles generally accepted in
the United States of America.
Basis for Opinion
These consolidated financial statements are the responsibility of the Company’s management. Our responsibility is to express an opinion on the Company’s consolidated
financial statements based on our audit. We are a public accounting firm registered with the Public Company Accounting Oversight Board (United States) (“PCAOB”)
and are required to be independent with respect to the Company in accordance with the U.S. federal securities laws and the applicable rules and regulations of the
Securities and Exchange Commission and the PCAOB.
We conducted our audit in accordance with the standards of the PCAOB. Those standards require that we plan and perform the audit to obtain reasonable assurance about
whether the consolidated financial statements are free of material misstatement, whether due to error or fraud. The Company is not required to have, nor were we
engaged to perform, an audit of its internal control over financial reporting. As part of our audit we are required to obtain an understanding of internal control over
financial reporting but not for the purpose of expressing an opinion on the effectiveness of the Company’s internal control over financial reporting. Accordingly, we
express no such opinion.
Our audit included performing procedures to assess the risks of material misstatement of the consolidated financial statements, whether due to error or fraud, and
performing procedures to respond to those risks. Such procedures included examining, on a test basis, evidence regarding the amounts and disclosures in the consolidated
financial statements. Our audit also included evaluating the accounting principles used and significant estimates made by management, as well as evaluating the overall
presentation of the consolidated financial statements. We believe that our audit provides a reasonable basis for our opinion.
/s/ Moss Adams LLP
Irvine, California
August 31, 2018
We have served as the Company’s auditor since 2018.
29
To the Board of Directors and Shareholders of
The Intergroup Corporation:
INDEPENDENT AUDITOR’S REPORT
We have audited the accompanying consolidated balance sheet of The Intergroup Corporation and its subsidiaries (the Company) as of June 30, 2017, and the related
consolidated statements of operations, shareholders’ deficit and cash flows for the year then ended (collectively, the financial statements). These consolidated financial
statements are the responsibility of the Company’s management. Our responsibility is to express an opinion on these financial statements based on our audit.
We conducted our audit in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and
perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. The Company is not required to have, nor were
we engaged to perform, an audit of its internal control over financial reporting. Our audits included consideration of internal control over financial reporting as a basis for
designing audit procedures that are appropriate in the circumstances, but not for the purpose of expressing an opinion on the effectiveness of the Company’s internal
control over financial reporting. Accordingly, we express no such opinion. An audit also includes examining, on a test basis, evidence supporting the amounts and
disclosures in the financial statements, assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial
statement presentation. We believe that our audit provides a reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred to above present fairly, in all material respects, the consolidated financial position of InterGroup
Corporation and its subsidiary as of June 30, 2017, and the results of their operations and their cash flows for the year then ended, in conformity with U.S. generally
accepted accounting principles.
/s/ Hein & Associates LLP
Irvine, California
October 13, 2017
30
THE INTERGROUP CORPORATION
CONSOLIDATED BALANCE SHEETS
As of June 30,
ASSETS
Investment in Hotel, net
Investment in real estate, net
Investment in marketable securities
Other investments, net
Cash and cash equivalents
Restricted cash
Other assets, net
Deferred tax asset
Total assets
LIABILITIES AND SHAREHOLDERS' DEFICIT
Liabilities:
Accounts payable and other liabilities
Accounts payable and other liabilities - Hotel
Due to securities broker
Obligations for securities sold
Related party and other notes payable
Capital leases
Mortgage notes payable - Hotel
Mortgage notes payable - real estate
Deferred tax liability
Total liabilities
Commitments and contingencies - Note 18
Shareholders' deficit:
Preferred stock, $.01 par value, 100,000 shares authorized; none issued
Common stock, $.01 par value, 4,000,000 shares authorized; 3,395,616 and 3,395,616 issued; 2,334,197 and 2,359,724
outstanding as of June 30, 2018 and 2017
Additional paid-in capital
Accumulated deficit
Treasury stock, at cost, 1,061,419 and 1,035,892 shares as of June 30, 2018 and 2017
Total Intergroup shareholders' deficit
Noncontrolling interest
Total shareholders' deficit
Total liabilities and shareholders' deficit
The accompanying notes are an integral part of these consolidated financial statements.
31
2018
2017
$
40,961,000
53,369,000
13,841,000
813,000
8,053,000
9,458,000
5,185,000
-
$
42,092,000
54,984,000
17,177,000
1,211,000
2,871,000
7,402,000
3,365,000
4,107,000
$ 131,680,000
$ 133,209,000
$
3,299,000
9,946,000
1,887,000
1,935,000
5,735,000
1,355,000
114,372,000
62,873,000
245,000
201,647,000
$
2,947,000
12,833,000
3,012,000
3,710,000
6,112,000
-
115,615,000
64,298,000
-
208,527,000
-
-
33,000
10,522,000
(41,217,000)
(13,268,000)
(43,930,000)
(26,037,000)
(69,967,000)
33,000
10,346,000
(45,298,000)
(12,626,000)
(47,545,000)
(27,773,000)
(75,318,000)
$ 131,680,000
$ 133,209,000
THE INTERGROUP CORPORATION
CONSOLIDATED STATEMENTS OF OPERATIONS
For the years ended June 30,
Revenues:
Hotel
Real estate
Total revenues
Costs and operating expenses:
Hotel operating expenses
Recovery of legal settlement costs
Real estate operating expenses
Depreciation and amortization expense
General and administrative expense
Total costs and operating expenses
Income from operations
Other income (expense):
Interest expense - mortgage
Net loss on marketable securities
Net unrealized loss on other investments
Impairment loss on other investments
Dividend and interest income
Trading and margin interest expense
Net other expense
Income (loss) before income taxes
Income tax expense
Net income (loss)
Less: Net (income) loss attributable to the noncontrolling interest
Net income (loss) attributable to InterGroup
Net income (loss) per share
Basic
Diluted
Net income (loss) per share attributable to InterGroup
Basic
Diluted
Weighted average number of common shares outstanding
Weighted average number of diluted shares outstanding
The accompanying notes are an integral part of these consolidated financial statements.
32
2018
2017
$
57,099,000
14,480,000
71,579,000
$
54,334,000
14,671,000
69,005,000
(40,103,000)
5,775,000
(7,579,000)
(5,054,000)
(3,053,000)
(40,717,000)
-
(7,166,000)
(5,305,000)
(2,821,000)
(50,014,000)
(56,009,000)
21,565,000
12,996,000
(9,767,000)
(1,777,000)
(42,000)
(200,000)
277,000
(1,187,000)
(12,696,000)
8,869,000
(3,056,000)
5,813,000
(1,732,000)
4,081,000
2.47
2.18
1.73
1.53
(9,604,000)
(3,496,000)
-
(178,000)
287,000
(1,160,000)
(14,151,000)
(1,155,000)
(521,000)
(1,676,000)
23,000
(1,653,000)
(0.71)
(0.71)
(0.70)
(0.70)
$
$
$
$
$
2,354,489
2,672,489
2,371,765
2,371,765
$
$
$
$
$
THE INTERGROUP CORPORATION
CONSOLIDATED STATEMENTS OF SHAREHOLDERS' DEFICIT
Common Stock
Shares
Amount
Additional
Paid-in
Capital
Accumulated Deficit
Treasury
Stock
InterGroup
Shareholders'
Deficit
Noncontrolling
Interest
Total
Shareholders'
Deficit
Balance at July 1, 2017
3,395,616
$
33,000
$
10,363,000
$
(43,645,000)
$
(12,082,000)
$
(45,331,000)
$
(27,916,000)
$
(73,247,000)
Net loss
Stock options expense
Investment in Santa Fe
Investment in Portsmouth
Purchase of treasury stock
-
-
-
-
-
-
-
-
-
-
-
(1,653,000)
268,000
(188,000)
(97,000)
-
-
-
-
-
-
-
-
-
(1,653,000)
(23,000)
(1,676,000)
268,000
-
268,000
(188,000)
105,000
(97,000)
61,000
(83,000)
(36,000)
(544,000)
(544,000)
-
(544,000)
Balance at June 30, 2017
3,395,616
33,000
10,346,000
(45,298,000)
(12,626,000)
(47,545,000)
(27,773,000)
(75,318,000)
Net Income
Stock options expense
Investment in Santa Fe
Purchase of treasury stock
-
-
-
-
-
-
-
-
-
4,081,000
184,000
(8,000)
-
-
-
-
-
-
-
184,000
(8,000)
(642,000)
(642,000)
-
4,000
-
184,000
(4,000)
(642,000)
4,081,000
1,732,000
5,813,000
Balance at June 30, 2018
3,395,616
$
33,000
$
10,522,000
$
(41,217,000)
$
(13,268,000)
$
(43,930,000)
$
(26,037,000)
$
(69,967,000)
The accompanying notes are an integral part of these consolidated financial statements.
33
THE INTERGROUP CORPORATION
CONSOLIDATED STATEMENTS OF CASH FLOWS
For the years ended June 30,
Cash flows from operating activities:
Net income (loss)
Adjustments to reconcile net loss to net cash provided by operating activities:
Net unrealized (gain) loss on marketable securities
Deferred taxes
Unrealized loss on other investments
Impairment loss on other investments
Depreciation and amortization
Stock compensation expense
Changes in assets and liabilities:
Investment in marketable securities
Other assets, net
Accounts payable and other liabilities
Due to securities broker
Obligations for securities sold
Net cash provided by operating activities
Cash flows from investing activities:
Investment in Hotel, net
Investment in real estate, net
Proceeds from (purchase of) other investments
Investment in Santa Fe
Investment in Portsmouth
Net cash used in investing activities
Cash flows from financing activities:
Net payments of mortgage and other notes payable
Restricted cash for capital improvements and mortgage impounds
Purchase of treasury stock
Net cash used in financing activities
Net increase (decrease) in cash and cash equivalents
Cash and cash equivalents at the beginning of the year
Cash and cash equivalents at the end of the year
Supplemental information:
Income tax paid
Interest paid
Non-cash transactions:
Additions to Hotel equipment through capital lease
The accompanying notes are an integral part of these consolidated financial statements.
34
2018
2017
$
5,813,000
$
(1,676,000)
(3,598,000)
4,352,000
42,000
200,000
4,776,000
184,000
6,934,000
(1,820,000)
(2,535,000)
(1,125,000)
(1,775,000)
11,448,000
(212,000)
(732,000)
156,000
(4,000)
-
(792,000)
(2,776,000)
(2,056,000)
(642,000)
(5,474,000)
5,182,000
2,871,000
8,053,000
171,000
10,399,000
$
$
$
3,852,000
(122,000)
-
178,000
5,389,000
268,000
(6,747,000)
2,806,000
(2,720,000)
1,519,000
3,547,000
6,294,000
(328,000)
(875,000)
(360,000)
(83,000)
(36,000)
(1,682,000)
(2,420,000)
(4,181,000)
(544,000)
(7,145,000)
(2,533,000)
5,404,000
2,871,000
1,063,000
10,256,000
1,364,000
$
-
$
$
$
$
THE INTERGROUP CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTE 1 - BUSINESS AND SIGNIFICANT ACCOUNTING POLICIES AND PRACTICES:
Description of the Business
The InterGroup Corporation, a Delaware corporation, (“InterGroup” or the “Company”) was formed to buy, develop, operate and dispose of real property and to engage
in various investment activities to benefit the Company and its shareholders.
As of June 30, 2018, the Company had the power to vote 85.9% of the voting shares of Santa Fe Financial Corporation (“Santa Fe”), a public company (OTCBB: SFEF).
This percentage includes the power to vote an approximately 4% interest in the common stock in Santa Fe owned by the Company’s Chairman and President pursuant to
a voting trust agreement entered into on June 30, 1998.
Santa Fe’s primary business is conducted through the management of its 68.8% owned subsidiary, Portsmouth Square, Inc. (“Portsmouth”), a public company (OTCBB:
PRSI). Portsmouth has a 93.1% limited partnership interest in Justice and is the sole general partner. InterGroup also directly owns approximately 13.4% of the common
stock of Portsmouth.
Justice, through its subsidiaries Justice Operating Company, LLC (“Operating”), Justice Mezzanine Company, LLC (“Mezzanine”), and Kearny Street Parking, LLC
(“Parking”) 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 underground parking garage. Mezzanine and Parking are both wholly-owned subsidiaries of the Partnership; Operating is a
wholly-owned subsidiary of Mezzanine. Mezzanine is the borrower under certain mezzanine indebtedness of Justice, and in December 2013, the Partnership conveyed
ownership of the Hotel to Operating. The Hotel is operated by the partnership as a full-service Hilton brand hotel pursuant to a Franchise License Agreement with HLT
Franchise Holding LLC (Hilton). Justice had a management agreement with Prism Hospitality L.P. (“Prism”) to perform certain management functions for the Hotel. The
management agreement with Prism had an original term of ten years, subject to the Partnership’s right to terminate at any time with or without cause. Effective January
2014, the management agreement with Prism was amended by the Partnership to change the nature of the services provided by Prism and the compensation payable to
Prism, among other things. Prism’s management agreement was terminated upon its expiration date of February 3, 2017. Effective December 1, 2013, GMP
Management, Inc. (“GMP”), a company owned by a Justice limited partner and a related party, also provided management services for the Partnership pursuant to a
management services agreement, with a three-year term, subject to the Partnership’s right to terminate earlier for cause. In June 2016, GMP resigned. After a lengthy
review process of several national third-party hotel management companies, on February 1, 2017, Justice entered into a Hotel management agreement (“HMA”) with
Interstate Management Company, LLC (“Interstate”) to manage the Hotel with an effective takeover date of February 3, 2017. The term of management agreement is for
an initial period of 10 years commencing on the takeover date and automatically renews for an additional year not to exceed five years in the aggregate subject to certain
conditions. The HMA also provides for Interstate to advance a key money incentive fee to the Hotel for capital improvements in the amount of $2,000,000 under certain
terms and conditions described in a separate key money agreement. The $2,000,000 is included in the restricted cash and related party and other notes payable balances in
the consolidated balance sheets as of June 30, 2018 and 2017.
In addition to the operations of the Hotel, the Company also generates income from the ownership of real estate. Properties include apartment complexes, commercial
real estate, and three single-family houses as strategic investments. The properties are located throughout the United States, but are concentrated in Texas and Southern
California. The Company also has investments in unimproved real property. All of the Company’s residential rental properties are managed in-house.
35
Principles of Consolidation
The consolidated financial statements include the accounts of the Company and Santa Fe. All significant inter-company transactions and balances have been eliminated.
Investment in Hotel, Net
Property and equipment are stated at cost. Building improvements are depreciated on a straight-line basis over their useful lives ranging from 3 to 39 years. Furniture,
fixtures, and equipment are depreciated on a straight-line basis over their useful lives ranging from 3 to 7 years.
Repairs and maintenance are charged to expense as incurred. Costs of significant renewals and improvements are capitalized and depreciated over the shorter of its
remaining estimated useful life or life of the asset. The cost of assets sold or retired and the related accumulated depreciation are removed from the accounts; any
resulting gain or loss is included in other income (expenses).
The Company reviews property and equipment for impairment whenever events or changes in circumstances indicate that the carrying amount of an asset may not be
recoverable in accordance with generally accepted accounting principles (“GAAP”). If the carrying amount of the asset, including any intangible assets associated with
that asset, exceeds its estimated undiscounted net cash flow, before interest, the Partnership will recognize an impairment loss equal to the difference between its carrying
amount and its estimated fair value. If impairment is recognized, the reduced carrying amount of the asset will be accounted for as its new cost. For a depreciable asset,
the new cost will be depreciated over the asset’s remaining useful life. Generally, fair values are estimated using discounted cash flow, replacement cost or market
comparison analyses. The process of evaluating for impairment requires estimates as to future events and conditions, which are subject to varying market and economic
factors. Therefore, it is reasonably possible that a change in estimate resulting from judgments as to future events could occur which would affect the recorded amounts
of the property. No impairment losses were recorded for the years ended June 30, 2018 and 2017.
Investment in Real Estate, Net
Rental properties are stated at cost less accumulated depreciation. Depreciation of rental property is provided on the straight-line method based upon estimated useful
lives of 5 to 40 years for buildings and improvements and 5 to 10 years for equipment. Expenditures for repairs and maintenance are charged to expense as incurred and
major improvements are capitalized.
The Company also reviews its rental property assets for impairment. No impairment losses on the investment in real estate have been recorded for the years ended June
30, 2018 and 2017.
The fair value of the tangible assets of an acquired property, which includes land, building and improvements, is determined by valuing the property as if they were
vacant, and incorporates costs during the lease-up periods considering current market conditions and costs to execute similar leases such lost rental revenue and tenant
improvements. The value of tangible assets is depreciated using straight-line method based upon the assets estimated useful lives.
Investment in Marketable Securities
Marketable securities are stated at fair value as determined by the most recently traded price of each security at the balance sheet date. Marketable securities are classified
as trading securities with all unrealized gains and losses on the Company's investment portfolio recorded through the consolidated statements of operations.
36
Other Investments, Net
Other investments include non-marketable securities (carried at cost, net of any impairments loss) and non-marketable debt instruments. 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. For the years ended June 30, 2018 and 2017, the Company recorded
impairment losses related to other investments of $200,000 and $178,000, respectively. As of June 30, 2018 and 2017, the allowance for impairment losses was
$6,269,000 and $6,154,000, respectively.
Cash and Cash Equivalents
Cash equivalents consist of highly liquid investments with an original maturity of three months or less when purchased and are carried at cost, which approximates fair
value.
Restricted Cash
Restricted cash is comprised of amounts held by lenders for payment of real estate taxes, insurance, replacement and capital addition reserves for the Hotel. It also
includes key money received from Interstate that is restricted for capital improvements.
Other Assets, Net
Other assets include prepaid insurance, accounts receivable, franchise fees, tax refund receivable, and other miscellaneous assets. Franchise fees are stated at cost and
amortized over the life of the agreement (15 years).
Accounts receivable from the Hotel and rental property customers are carried at cost less an allowance for doubtful accounts that is based on management’s assessment
of the collectability of accounts receivable. The Company extends unsecured credit to its customers but mitigates the associated credit risk by performing ongoing credit
evaluations of its customers.
Due to Securities Broker
The Company may utilize margin for its marketable securities purchases through the use of standard margin agreements with national brokerage firms. Various securities
brokers have advanced funds to the Company for the purchase of marketable securities under standard margin agreements. These advanced funds are recorded as a
liability.
Obligation for Securities Sold
Obligation for securities sold represents the fair market value of shares sold with the promise to deliver that security at some future date and the fair market value of
shares underlying the written call options with the obligation to deliver that security when and if the option is exercised. The obligation may be satisfied with current
holdings of the same security or by subsequent purchases of that security. Unrealized gains and losses from changes in the obligation are included in the statement of
operations.
Accounts Payable and Other Liabilities
Accounts payable and other liabilities include trade payables, advance customer deposits, accrued wages, accrued real estate taxes, and other liabilities.
37
Treasury Stock
The Company records the acquisition of treasury stock under the cost method. During the years ended June 30, 2018 and 2017, the Company purchased 25,527 and
22,002 shares of treasury stock, respectively.
Fair Value of Financial Instruments
Fair value is defined as the price that would be received to sell an asset or paid to transfer a liability (i.e., the “exit price”) in an orderly transaction between market
participants at the measurement date. Accounting standards for fair value measurement establishes a hierarchy for inputs used in measuring fair value that maximizes the
use of observable inputs and minimizes the use of unobservable inputs by requiring that the most observable inputs be used when available. Observable inputs are inputs
that market participants would use in pricing the asset or liability developed based on market data obtained from sources independent of the Company. Unobservable
inputs are inputs that reflect the Company’s assumptions about the assumptions market participants would use in pricing the asset or liability developed based on the best
information available in the circumstances. The hierarchy is broken down into three levels based on the observability of inputs as follows:
Level 1–inputs to the valuation methodology are quoted prices (unadjusted) for identical assets or liabilities in active markets.
Level 2–inputs to the valuation methodology include quoted prices for similar assets and liabilities in active markets, and inputs that are observable for the assets or
liability, either directly or indirectly, for substantially the full term of the financial instruments.
Level 3–inputs to the valuation methodology are unobservable and significant to the fair value.
Revenue Recognition
Room revenue is recognized on the date upon which a guest occupies a room and/or utilizes the Hotel’s services. Food and beverage revenues are recognized upon
delivery. Garage revenue is recognized when a guest uses the garage space. The Company records a liability for payments collected in advance of revenue recognition.
This liability is included in accounts payable and other liabilities.
Revenue recognition from apartment rentals commences when an apartment unit is placed in service and occupied by a rent-paying tenant. Apartment units are leased on
a short-term basis, with no lease extending beyond one year.
Advertising Costs
Advertising costs are expensed as incurred and are included in Hotel operating expenses in the consolidated statements of operations. Advertising costs were $302,000
and $294,000 for the years ended June 30, 2018 and 2017, respectively.
Income Taxes
Deferred income taxes are calculated under the liability method. Deferred income tax assets and liabilities are based on differences between the financial statement and
tax basis of assets and liabilities at the current enacted tax rates. Changes in deferred income tax assets and liabilities are included as a component of income tax expense.
Changes in deferred income tax assets and liabilities attributable to changes in enacted tax rates are charged or credited to income tax expense in the period of enactment.
Valuation allowances are established for certain deferred tax assets where realization is not likely.
Assets and liabilities are established for uncertain tax positions taken or positions expected to be taken in income tax returns when such positions are judged to not meet
the “more-likely-than-not” threshold based on the technical merits of the positions.
38
Earnings (Loss) Per Share
Basic net income (loss) per share is computed by dividing net income (loss) available to common stockholders by the weighted average number of common shares
outstanding. The computation of diluted net income per share is similar to the computation of basic net income per share except that the weighted-average number of
common shares is increased to include the number of additional common shares that would have been outstanding if potential dilutive common shares had been issued.
The Company's only potentially dilutive common shares are stock options. The basic and diluted earnings per share were the same for the year ended June 30, 2017
because the Company had a net loss.
Use of Estimates
The preparation of financial statements in conformity with accounting principles generally accepted in the United States of America (U.S. GAAP) requires the use of
estimates and assumptions regarding certain types of assets, liabilities, revenues, and expenses. Such estimates primarily relate to the recording of allowance for doubtful
accounts and allowance for impairment losses which are based on management’s assessment of the collectability of accounts receivable and the fair market value of
nonmarketable securities, respectively, as of the end of the fiscal year. Actual results may differ from those estimates.
Debt Issuance Costs
Debt issuance costs related to a recognized debt liability are presented in the consolidated balance sheets as a direct deduction from the carrying amount of the debt
liability and are amortized over the life of the debt. Loan amortization costs are included in interest expense in the consolidated statement of operations.
Recent Accounting Pronouncements and U.S. Tax Reform
In May 2014, the FASB issued Accounting Standards Update No. 2014-09, Revenue from Contracts with Customers (Topic 606) (ASU 2014-09), which amends the
existing accounting standards for revenue recognition. In August 2015, the FASB issued ASU No. 2015-14, Revenue from Contracts with Customers (Topic 606):
Deferral of the Effective Date, which delays the effective date of ASU 2014-09 by one year. The FASB also agreed to allow entities to choose to adopt the standard as of
the original effective date. In March 2016, the FASB issued Accounting Standards Update No. 2016-08, Revenue from Contracts with Customers (Topic 606): Principal
versus Agent Considerations (Reporting Revenue Gross versus Net) (ASU 2016-08) which clarifies the implementation guidance on principal versus agent
considerations. The guidance includes indicators to assist an entity in determining whether it controls a specified good or service before it is transferred to the customers.
The new standard permits two methods of adoption: retrospectively to each prior reporting period presented (full retrospective method), or retrospectively with the
cumulative effect of initially applying the guidance recognized at the date of initial application (the modified retrospective method). We adopted the new standard
effective July 1, 2018 using the modified retrospective method. The standard has no significant impact on the Company’s consolidated financial statements and related
disclosures.
In February 2016, the FASB issued ASU No. 2016-02, Leases (Topic 842) (ASU 2016-02), which supersedes existing guidance on accounting for leases in Leases (Topic
840) and generally requires all leases, including operating leases, to be recognized in the statement of financial position as right-of-use assets and lease liabilities by
lessees. The provisions of ASU 2016-02 are to be applied using a modified retrospective approach and are effective for reporting periods beginning after December 15,
2018; early adoption is permitted. We intend to adopt the standard on July 1, 2019. The Company is currently reviewing the effect of ASU No. 2016-02.
On June 16, 2016, the FASB issued ASU 2016-13, “Financial Instruments - Credit Losses (Topic 326): Measurement of Credit Losses on Financial Instruments.” This
ASU modifies the impairment model to utilize an expected loss methodology in place of the currently used incurred loss methodology, which will result in the timelier
recognition of losses. ASU No. 2016-13 will be effective for us as of January 1, 2020. The Company is currently reviewing the effect of ASU No. 2016-13.
On December 22, 2017, the U.S. government enacted comprehensive tax legislation commonly referred to as the Tax Cuts and Jobs Act (the “Tax Act”). The Tax Act
significantly revises the future ongoing corporate income tax by, among other things, lowering corporate income tax rates. As the Company has a June 30 fiscal year-end,
the lower corporate income tax rate was phased in, resulting in a statutory federal rate of approximately 28% for our fiscal year ending June 30, 2018, and 21% for
subsequent fiscal years. The decrease in corporate tax rate reduced the Company’s deferred tax assets and liabilities to the lower federal base rate of 21%. As a result, a
provisional net credit of $404,000 was included in the income tax expense for the year ended June 30, 2018.
The changes included in the Tax Act are broad and complex. The final transition impacts of the Tax Act may differ from the above estimate, possibly materially, due to,
among other things, changes in interpretations of the Tax Act, any legislative action to address questions that arise because of the Tax Act, any changes in accounting
standards for income taxes or related interpretations in response to the Tax Act, or any updates or changes to estimates the company has utilized to calculate the transition
impact. The Securities Exchange Commission has issued rules that would allow for a measurement period of up to one year after the enactment date of the Tax Act to
finalize the recording of the related tax impacts.
39
NOTE 2 - JUSTICE INVESTORS
Justice Investors Limited Partnership, a California limited partnership (“Justice” or the “Partnership”), was formed in 1967 to acquire real property in San Francisco,
California, for the development and lease of the Hotel and related facilities. The Partnership has one general partner, Portsmouth Square, Inc., a California corporation
(“Portsmouth”) and approximately 24 voting limited partners, including Portsmouth.
Management believes that the revenues and cash flows expected to be generated from the operations of the Hotel, garage and leases will be sufficient to meet all of the
Partnership’s current and future obligations and financial requirements. Management also believes that there is significant appreciated value in the Hotel property in
excess of the net book value to support additional borrowings, if necessary.
NOTE 3 – INVESTMENT IN HOTEL, NET
Investment in Hotel consisted of the following as of:
June 30, 2018
Land
Furniture and equipment
Building and improvements
June 30, 2017
Land
Furniture and equipment
Building and improvements
Cost
Accumulated
Depreciation
Net Book
Value
$
$
$
$
2,738,000
29,350,000
64,336,000
96,424,000
$
-
(25,876,000)
(29,587,000)
$ (55,463,000)
Cost
Accumulated
Depreciation
2,738,000
27,681,000
64,308,000
94,727,000
$
-
(24,569,000)
(28,066,000)
$ (52,635,000)
$
$
$
$
2,738,000
3,474,000
34,749,000
40,961,000
Net Book
Value
2,738,000
3,112,000
36,242,000
42,092,000
NOTE 4 - INVESTMENT IN REAL ESTATE, NET
At June 30, 2018, the Company's investment in real estate consisted of twenty properties located throughout the United States. These properties include sixteen apartment
complexes, three single-family houses as strategic investments, and one commercial real estate property. The Company also owns unimproved land located in Maui,
Hawaii.
40
Investment in real estate included the following:
As of June 30,
Land
Buildings, improvements and equipment
Accumulated depreciation
NOTE 5 - INVESTMENT IN MARKETABLE SECURITIES
2018
2017
$ 25,033,000 $ 25,033,000
66,804,000
67,536,000
(39,200,000)
(36,853,000)
$ 53,369,000 $ 54,984,000
The Company’s investment in marketable securities consists primarily of corporate equities. The Company has also periodically invested in corporate bonds and income
producing securities, which may include interests in real estate based companies and REITs, where financial benefit could insure to its shareholders through income
and/or capital gain.
At June 30, 2018 and 2017, all of the Company’s marketable securities are classified as trading securities. The change in the unrealized gains and losses on these
investments are included in earnings. Trading securities are summarized as follows:
Investment
As of June 30, 2018
Corporate Equities
As of June 30, 2017
Corporate Equities
Cost
Gross
Gross
Unrealized Gain Unrealized Loss Unrealized Loss
Net
Fair
Value
$ 22,388,000
$
2,450,000
$
(10,997,000) $
(8,547,000) $ 13,841,000
$ 29,170,000
$
1,768,000
$
(13,761,000) $
(11,993,000) $ 17,177,000
As of June 30, 2018 and 2017, approximately 7% and 28% of the investment marketable securities balance above is comprised of the common stock of Comstock Mining
Inc.
As of June 30, 2018 and 2017, the Company had $10,819,000 and $13,294,000, respectively, of unrealized losses related to securities held for over one year.
Net loss on marketable securities on the statement of operations is comprised of realized and unrealized gains (losses). Below is the composition of the two components
for the years ended June 30, 2018 and 2017, respectively.
For the year ended June 30,
Realized loss on marketable securities related to Comstock
Realized gain on marketable securities
Unrealized loss on marketable securities related to Comstock
Unrealized gain on marketable securities
Net loss on marketable securities
NOTE 6 – OTHER INVESTMENTS, NET
2018
2017
$(6,007,000) $
632,000
(2,337,000)
5,935,000
-
356,000
(4,517,000)
665,000
$(1,777,000) $(3,496,000)
The Company may also invest, with the approval of the Securities Investment Committee and other Company guidelines, in private investment equity funds and other
unlisted securities. 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.
41
Other investments, net consist of the following:
Private equity hedge fund, at cost
Other investments
Type
NOTE 7 - FAIR VALUE MEASUREMENTS
June 30, 2018 June 30, 2017
782,000
$
429,000
1,211,000
554,000 $
259,000
813,000 $
$
The carrying values of the Company’s financial instruments not required to be carried at fair value on a recurring basis approximate fair value due to their short
maturities (i.e., accounts receivable, other assets, accounts payable and other liabilities, due to securities broker and obligations for securities sold) or the nature and terms
of the obligation (i.e., other notes payable and mortgage notes payable).
The assets measured at fair value on a recurring basis are as follows:
As of June 30, 2018
Assets:
Investment in marketable securities:
REITs and real estate companies
Corporate bonds
Technology
Healthcare
Communications
Other
As of June 30, 2017
Assets:
Investment in marketable securities:
Basic materials
Technology
REITs and real estate companies
Energy
Corporate bonds
Other
Level 1
$ 4,300,000
2,282,000
1,813,000
1,777,000
1,071,000
2,598,000
$13,841,000
Level 1
$ 6,222,000
4,134,000
1,820,000
1,345,000
1,683,000
1,973,000
$17,177,000
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 impairment or adjusted to record the fair value of new instruments
received (i.e., preferred shares) in exchange for old instruments (i.e., debt instruments). The following table shows the fair value hierarchy for these assets measured at
fair value on a non-recurring basis as follows:
42
Assets
Net loss for the year
Level 3 June 30, 2018 ended June 30, 2018
Other non-marketable investments
$813,000 $
813,000 $
(242,000)
Assets
Level 3
Net loss for the year
June 30, 2017 ended June 30, 2017
Other non-marketable investments
$1,211,000 $
1,211,000 $
(178,000)
For fiscal year ended June 30, 2018, we received distribution from other non-marketable investments of $131,000.
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. When determining the fair value of these investments
on a non-recurring basis, the Company uses valuation techniques such as the market approach and the unobservable inputs include factors such as conversion ratios and
the stock price of the underlying convertible instruments. 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.
NOTE 8 – OTHER ASSETS, NET
Other assets consist of the following as of June 30:
Accounts receivable, net
Prepaid expenses
Miscellaneous assets, net
Tax Refund Receivable
Total other assets
2018
$ 1,843,000
490,000
1,159,000
1,693,000
2017
$ 1,489,000
602,000
1,274,000
-
$ 5,185,000
$ 3,365,000
As mentioned in Note 5 – Investment in Marketable Securities, the Company had realized loss of $6,007,000 in the current fiscal year related to the sale of common
stock of Comstock. The Company plans to file a carry back claim to carry back this loss to fiscal year ended June 30, 2015. The carry back claim will generate a federal
income tax refund of approximately $1,975,000 which is included in other assets in the consolidated balance sheet as of June 30, 2018.
NOTE 9 – RELATED PARTY AND OTHER FINANCING TRANSACTIONS
On July 2, 2014, the Company provided the Partnership an unsecured loan in the principal amount of $4,250,000 at 12% per year fixed interest, with a term of 2 years,
payable interest only each month. InterGroup received a 3% loan fee. The loan may be prepaid at any time without penalty. The loan was extended to December 31,
2018. The balance of this loan was $3,000,000 and $4,250,000 as of June 30, 2018 and 2017, respectively, and are included in the related party and other note payable in
the consolidated balance sheets.
Also included in the balance of the related party note payable at June 30, 2018 and 2017 is the obligation to Hilton (Franchisor) in the form of a self-exhausting, interest
free development incentive note which will be reduced approximately $316,000 annually through 2030 by Hilton if the Partnership is still a Franchisee with Hilton. As of
June 30, 2018 and 2017, the balance of the note was $3,642,000 and $3,958,000, respectively.
On February 1, 2017, Justice entered into a Hotel management agreement (“HMA”) with Interstate Management Company, LLC (“Interstate”) to manage the Hotel with
an effective takeover date of February 3, 2017. The term of management agreement is for an initial period of 10 years commencing on the takeover date and
automatically renews for an additional year not to exceed five years in the aggregate subject to certain conditions. The HMA also provides for Interstate to advance a key
money incentive fee to the Hotel for capital improvements in the amount of $2,000,000 under certain terms and conditions described in a separate key money agreement.
The key money contribution shall be amortized in equal monthly amounts over an eight (8) year period commencing on the second (2nd) anniversary of the takeover date.
The $2,000,000 is included in restricted cash and related party note payable balances in the consolidated balance sheets as of June 30, 2018 and 2017.
As of June 30, 2018, the Company had capital lease obligations outstanding of $1,355,000. These capital leases expire in various years through 2023 at rates ranging
from 5.77% to 6.53% per annum. Minimum future lease payments for assets under capital leases as of June 30, 2018 are as follows:
For the year ending June 30,
2019
2020
2021
2022
2023
Total minimum lease payments
Less interest on capital lease
Present value of future minimum lease payments
43
$
358,000
384,000
384,000
376,000
26,000
1,528,000
(173,000)
1,355,000
Future minimum principle payments for all related party and other financing transactions are as follows:
For the year ending June 30,
2019
2020
2021
2022
2023
Thereafter
$
$
763,000
935,000
916,000
930,000
592,000
2,954,000
7,090,000
NOTE 10 - MORTGAGE NOTES PAYABLE
On December 18, 2013: (i) Justice Operating Company, LLC, a Delaware limited liability company (“Operating”), entered into a loan agreement (“Mortgage Loan
Agreement”) with Bank of America (“Mortgage Lender”); and (ii) Justice Mezzanine Company, a Delaware limited liability company (“Mezzanine”), entered into a
mezzanine loan agreement (“Mezzanine Loan Agreement” and, together with the Mortgage Loan Agreement, the “Loan Agreements”) with ISBI San Francisco Mezz
Lender LLC (“Mezzanine Lender” and, together with Mortgage Lender, the “Lenders”). The Partnership is the sole member of Mezzanine, and Mezzanine is the sole
member of Operating.
The Loan Agreements provide for a $97,000,000 Mortgage Loan and a $20,000,000 Mezzanine Loan. The proceeds of the Loan Agreements were used to fund the
redemption of limited partnership interests and the pay-off of the prior mortgage.
The Mortgage Loan is secured by the Partnership’s principal asset, the Hilton San Francisco-Financial District (the “Property”). The Mortgage Loan bears an interest rate
of 5.275% per annum and matures in January 2024. The term of the loan is 10 years with interest only due in the first three years and principle and interest on the
remaining seven years of the loan based on a thirty-year amortization schedule. The Mortgage Loan also requires payments for impounds related to property tax,
insurance and capital improvement reserves. As additional security for the Mortgage Loan, there is a limited guaranty (“Mortgage Guaranty”) executed by the Company
in favor of Mortgage Lender.
The Mezzanine Loan is a secured by the Operating membership interest held by Mezzanine and is subordinated to the Mortgage Loan. The Mezzanine Loan bears
interest at 9.75% per annum and matures on January 1, 2024. Interest only, payments are due monthly. As additional security for the Mezzanine Loan, there is a limited
guaranty executed by the Company in favor of Mezzanine Lender (the “Mezzanine Guaranty” and, together with the Mortgage Guaranty, the “Guaranties”).
The Guaranties are limited to what are commonly referred to as “bad boy” acts, including: (i) fraud or intentional misrepresentations; (ii) gross negligence or willful
misconduct; (iii) misapplication or misappropriation of rents, security deposits, insurance or condemnation proceeds; and (iv) failure to pay taxes or insurance. The
Guaranties are full recourse guaranties under identified circumstances, including failure to maintain “single purpose” status which is a factor in a consolidation of
Operating or Mezzanine in a bankruptcy of another person, transfer or encumbrance of the Property in violation of the applicable loan documents, Operating or
Mezzanine incurring debts that are not permitted, and the Property becoming subject to a bankruptcy proceeding. Pursuant to the Guaranties, the Partnership is required
to maintain a certain minimum net worth and liquidity. As of June 30, 2018 and 2017, the Partnership is in compliance with both requirements.
Each of the Loan Agreements contains customary representations and warranties, events of default, reporting requirements, affirmative covenants and negative
covenants, which impose restrictions on, among other things, organizational changes of the respective borrower, operations of the Property, agreements with affiliates
and third parties. Each of the Loan Agreements also provides for mandatory prepayments under certain circumstances (including casualty or condemnation events) and
voluntary prepayments, subject to satisfaction of prescribed conditions set forth in the Loan Agreements.
44
In June 2016, The Company refinanced its $1,929,000 mortgage note payable on its 12-unit apartment complex located in Los Angeles, California and obtained a new
mortgage in the amount of $2,300,000. The interest rate on the new mortgage is 3.59% and matures in June 2026.
In April 2016, the Company entered into an interest rate agreement on its $923,000 mortgage note payable on its commercial property located in Los Angeles, California
in order to settle the variable rate as of March 31, 2016 of 4.22% into a fixed rate of 3.99%, the swap agreement matures in January 2021. A swap is a contractual
agreement to exchange interest rate payments. As of June 30, 2018, the fair market value of the swap agreement is immaterial.
Each mortgage notes payable is secured by real estate or the Hotel. As of June 30, 2018 and 2017, the mortgage notes payable are summarized as follows:
Property
SF Hotel
SF Hotel
Florence
Las Colinas
Morris County
Morris County
St. Louis
Los Angeles
Los Angeles
Los Angeles
Los Angeles
Los Angeles
Los Angeles
Los Angeles
Los Angeles
Los Angeles
Los Angeles
Los Angeles
Los Angeles
Los Angeles
Los Angeles
Los Angeles
Los Angeles
As of June 30, 2018
Number
of Units
Note
Origination Date
Note
Maturity Date
Mortgage Balance
Interest Rate
544 rooms December
544 rooms December
2013 January
2013 January
Mortgage notes payable - Hotel
Debt issuance costs
Total mortgage notes payable - Hotel
157 March
358 November
151 July
151 June
264 May
4 September
2 September
1 August
31 November
30 August
27 November
14 April
12 June
9 April
9 April
8 July
7 August
4 August
1 September
1 August
Office April
2015 April
2012 December
2012 August
2014 August
2013 May
2012 September
2012 September
2012 September
2010 December
2007 September
2010 December
2011 March
2016 June
2011 May
2011 March
2013 July
2012 September
2012 September
2012 September
2016 August
2016 January
Mortgage notes payable - real estate
Debt issuance costs
Total mortgage notes payable - real estate
45
2024 $
2024
$
2025 $
2022
2022
2022
2023
2042
2042
2042
2020
2022
2020
2021
2026
2021
2021
2043
2042
2042
2042
2018
2021
$
95,018,000
20,000,000
115,018,000
(646,000)
114,372,000
3,291,000
17,404,000
9,068,000
2,563,000
5,491,000
352,000
356,000
383,000
5,048,000
5,907,000
2,843,000
1,665,000
2,218,000
1,331,000
1,135,000
451,000
868,000
594,000
409,000
1,000,000
842,000
63,219,000
(346,000)
62,873,000
5.28%
9.75%
3.87%
3.73%
3.51%
4.51%
4.05%
3.75%
3.75%
3.75%
4.85%
5.97%
4.85%
5.89%
3.59%
5.60%
5.89%
3.75%
3.75%
3.75%
3.75%
5.75%
4.55%
As of June 30, 2017
Number
of Units
Note
Origination Date
Note
Maturity Date
Mortgage Balance
Interest Rate
Property
SF Hotel
SF Hotel
Florence
Las Colinas
Morris County
Morris County
St. Louis
Los Angeles
Los Angeles
Los Angeles
Los Angeles
Los Angeles
Los Angeles
Los Angeles
Los Angeles
Los Angeles
Los Angeles
Los Angeles
Los Angeles
Los Angeles
Los Angeles
Los Angeles
Los Angeles
543 rooms December
543 rooms December
2013 January
2013 January
Mortgage notes payable - Hotel
Debt issuance costs
Total mortgage notes payable - Hotel
157 March
358 November
151 July
151 June
264 May
4 September
2 September
1 August
31 November
30 August
27 November
14 April
12 June
9 April
9 April
8 July
7 August
4 August
1 September
1 August
Office April
2015 April
2012 December
2012 August
2014 August
2013 May
2012 September
2012 September
2012 September
2010 December
2007 September
2010 December
2011 March
2016 June
2011 May
2011 March
2013 July
2012 September
2012 September
2012 September
2016 August
2016 January
Mortgage notes payable - real estate
Debt issuance costs
Total mortgage notes payable - real estate
Future minimum payments for all mortgage notes payable are as follows:
For the year ending June 30,
2019
2020
2021
2022
2023
Thereafter
5.28%
9.75%
3.87%
3.73%
3.51%
4.51%
4.05%
3.75%
3.75%
3.75%
4.85%
5.97%
4.85%
5.89%
3.59%
5.60%
5.89%
3.75%
3.75%
3.75%
3.75%
5.25%
3.99%
2024 $
2024
$
2025 $
2022
2022
2022
2023
2042
2042
2042
2020
2022
2020
2021
2026
2021
2021
2043
2042
2042
2042
2018
2021
$
96,343,000
20,000,000
116,343,000
(728,000)
115,615,000
3,357,000
17,818,000
9,387,000
2,611,000
5,611,000
360,000
364,000
392,000
5,165,000
6,041,000
2,909,000
1,697,000
2,261,000
1,356,000
1,156,000
461,000
890,000
610,000
418,000
1,000,000
878,000
64,742,000
(444,000)
64,298,000
$
3,995,000
3,104,000
15,172,000
3,079,000
37,825,000
115,062,000
$178,237,000
NOTE 11 – GARAGE OPERATIONS
The parking garage that is part of the Hotel property was managed by Ace Parking pursuant to a contract with the Partnership. The contract was terminated with an
effective termination date of October 4, 2016. The Company began managing the parking garage in-house after the termination of Ace Parking. Effective February 3,
2017, Interstate took over the management of the parking garage along with the Hotel.
46
NOTE 12 – MANAGEMENT AGREEMENTS
Justice had a management agreement with Prism Hospitality L.P. (“Prism”) to perform certain management functions for the Hotel. The management agreement with
Prism had an original term of ten years, subject to the Partnership’s right to terminate at any time with or without cause. Effective January 2014, the management
agreement with Prism was amended by the Partnership to change the nature of the services provided by Prism and the compensation payable to Prism, among other
things. Prism’s management agreement was terminated upon its expiration date of February 3, 2017. Effective December 1, 2013, GMP Management, Inc. (“GMP”), a
company owned by a Justice limited partner and a related party, also provided management services for the Partnership pursuant to a management services agreement,
with a three-year term, subject to the Partnership’s right to terminate earlier for cause. In June 2016, GMP resigned. After a lengthy review process of several national
third-party hotel management companies, on February 1, 2017, Justice entered into a Hotel management agreement (“HMA”) with Interstate Management Company,
LLC (“Interstate”) to manage the Hotel with an effective takeover date of February 3, 2017. The term of management agreement is for an initial period of 10 years
commencing on the takeover date and automatically renews for an additional year not to exceed five years in the aggregate subject to certain conditions. The HMA also
provides for Interstate to advance a key money incentive fee to the Hotel for capital improvements in the amount of $2,000,000 under certain terms and conditions
described in a separate key money agreement. The key money contribution shall be amortized in equal monthly amounts over an eight (8) year period commencing on
the second (2nd) anniversary of the takeover date. The $2,000,000 is included in restricted cash and related party note payable balances in the balance sheets as of June
30, 2018 and 2017. During the years ended June 30, 2018 and 2017, Interstate management fees were $957,000 and $372,000, respectively, and are included in Hotel
operating expenses in the consolidated statements of operations.
NOTE 13 – CONCENTRATION OF CREDIT RISK
As of June 30, 2018 and 2017, all accounts receivables are related to Hotel customers. The Hotel had two customers that accounted for 32%, or $572,000 of accounts
receivable at June 30, 2018, and one customer that accounted for 27%, or $390,000 of accounts receivable at June 30, 2017.
The Partnership maintains its cash and cash equivalents and restricted cash with various financial institutions that are monitored regularly for credit quality. At times,
such cash and cash equivalents holdings may be in excess of the Federal Deposit Insurance Corporation (“FDIC”) or other federally insured limits.
NOTE 14 – INCOME TAXES
The provision for the Company’s income tax expense is comprised of the following:
For the years ended June 30,
Federal
Current tax benefit (expense)
Deferred tax expense
State
Current tax expense
Deferred tax (expense) benefit
Income Tax Expense
2018
2017
$ 1,455,000
(3,567,000)
(2,112,000)
$ (333,000)
(168,000)
(501,000)
(227,000)
(717,000)
(944,000)
(310,000)
290,000
(20,000)
$(3,056,000) $ (521,000)
47
The provision for income taxes differs from the amount of income tax computed by applying the federal statutory income tax rate to income before taxes as a result of the
following differences:
For the years ended June 30,
Statutory federal tax rate
State income taxes, net of federal tax benefit
Dividend received deduction
Valuation allowance
Other
2018
2017
$(2,218,000) $
(623,000)
24,000
(330,000)
91,000
440,000
(25,000)
56,000
(521,000)
(471,000)
$(3,056,000) $ (521,000)
On December 22, 2017, the U.S. government enacted comprehensive tax legislation commonly referred to as the Tax Cuts and Jobs Act (the “Tax Act”). The Tax Act
significantly revises the future ongoing corporate income tax by, among other things, lowering corporate income tax rates. As the Company has a June 30 fiscal year-end,
the lower corporate income tax rate was phased in, resulting in a statutory federal rate of approximately 28% for our fiscal year ending June 30, 2018, and 21% for
subsequent fiscal years. The decrease in corporate tax rate reduced the Company’s deferred tax assets and liabilities to the lower federal base rate of 21%. As a result, a
provisional net credit of $404,000 was included in the income tax expense for the year ended June 30, 2018.
The components of the deferred tax asset and liabilities are as follows:
Deferred tax assets:
Net operating loss carryforwards
Capital loss carryforwards
Investment impairment reserve
Accruals and reserves
Unrealized loss on marketable securities
Tax credits
Other
Valuation allowance
Deferred tax assets (liabilities):
Equity earnings
Deferred gains on real estate sale and depreciation
Unrealized gains on marketable securities
State taxes
Net deferred tax (liability) asset
June 30, 2018 June 30, 2017
$
7,413,000 $ 14,302,000
1,122,000
1,132,000
1,778,000
1,276,000
1,182,000
766,000
284,000
-
516,000
733,000
289,000
190,000
(3,388,000)
(2,610,000)
16,085,000
8,900,000
(2,564,000)
(5,638,000)
(765,000)
(178,000)
(9,145,000)
$
(245,000) $
(2,624,000)
(8,816,000)
-
(538,000)
(11,978,000)
4,107,000
As of June 30, 2018, the Company had estimated net operating losses (NOLs) of $27,633,000 and $18,784,000 for federal and state purposes, respectively. Below is the
break-down of the NOLs for Intergroup, Santa Fe and Portsmouth. The carryforward expires in varying amounts through the year 2037.
Federal
State
InterGroup
Santa Fe
Portsmouth
$
- $
8,893,000
18,740,000
-
3,664,000
15,120,000
$27,633,000 $18,784,000
Utilization of the net operating loss carryover may be subject a substantial annual limitation if it should be determined that there has been a change in the ownership of
more than 50 percent of the value of the Company's stock, pursuant to Section 382 of the Internal Revenue Code of 1986 and similar state provisions. The annual
limitation may result in the expiration of net operating loss carryovers before utilization.
Assets and liabilities are established for uncertain tax positions taken or positions expected to be taken in income tax returns when such positions are judged to not meet
the “more-likely-than-not” threshold based on the technical merits of the positions. As of June 30, 2018, it has been determined there are no uncertain tax positions likely
to impact the Company.
48
The Partnership files tax returns as prescribed by the tax laws of the jurisdictions in which it operates and is subject to examination by federal, state and local
jurisdictions, were applicable.
As of June 30, 2018, tax years beginning in fiscal 2012 remain open to examination by the major tax jurisdictions and are subject to the statute of limitations.
NOTE 15 – SEGMENT INFORMATION
The Company operates in three reportable segments, the operation of the Hotel (“Hotel Operations”), the operation of its multi-family residential properties (“Real Estate
Operations”) and the investment of its cash in marketable securities and other investments (“Investment Transactions”). 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 information.
Information below represents reported segments for the years ended June 30, 2018 and 2017. Segment income from Hotel operations consists of the operation of the
Hotel and operation of the garage. Segment income from real estate operations consists of the operation of the rental properties. Loss from investments consists of net
investment loss, dividend and interest income and investment related expenses.
As of and for the year
ended June 30, 2018
Revenues
Segment operating expenses
Segment income (loss) from operations
Interest expense - mortgage
Recovery of legal settlement costs
Depreciation and amortization expense
Loss from investments
Income tax expense
Net income (loss)
Total assets
As of and for the year
ended June 30, 2017
Revenues
Segment operating expenses
Segment income (loss) from operations
Interest expense - mortgage
Depreciation and amortization expense
Loss from investments
Income tax expense
Net income (loss)
Total assets
Hotel
Operations
Real Estate
Operations
$
$
$
$
$
$
57,099,000
(40,103,000)
16,996,000
(7,237,000)
5,775,000
(2,707,000)
-
-
12,827,000
58,019,000
Hotel
Operations
54,334,000
(40,717,000)
13,617,000
(7,066,000)
(3,057,000)
-
-
3,494,000
48,739,000
$
$
$
$
$
$
14,480,000
(7,579,000)
6,901,000
(2,530,000)
(2,347,000)
-
-
2,024,000
53,369,000
Real Estate
Operations
14,671,000
(7,166,000)
7,505,000
(2,538,000)
(2,248,000)
-
-
2,719,000
54,984,000
Investment
Transactions
-
$
-
-
-
-
(2,929,000)
-
(2,929,000)
14,654,000
$
$
Investment
Transactions
-
$
-
-
-
-
(4,547,000)
-
(4,547,000)
18,388,000
$
$
$
$
$
$
$
$
Other
-
(3,053,000)
(3,053,000)
-
-
-
(3,056,000)
(6,109,000)
5,638,000
$
Total
71,579,000
(50,735,000)
20,844,000
(9,767,000)
5,775,000
(5,054,000)
(2,929,000)
(3,056,000)
$
5,813,000
$ 131,680,000
Other
-
(2,821,000)
(2,821,000)
-
-
-
(521,000)
(3,342,000)
11,098,000
$
Total
69,005,000
(50,704,000)
18,301,000
(9,604,000)
(5,305,000)
(4,547,000)
(521,000)
(1,676,000)
$
$ 133,209,000
NOTE 16 – STOCK-BASED COMPENSATION PLANS
The Company follows the Statement of Financial Accounting Standards 123 (Revised), "Share-Based Payments" ("SFAS No. 123R"), which was primarily codified into
ASC Topic 718 “Compensation – Stock Compensation”, which addresses accounting for equity-based compensation arrangements, including employee stock options and
restricted stock units.
The Company currently has two equity compensation plans, each of which has been approved by the Company’s stockholders. The InterGroup Corporation 2008
Restricted Stock Unit Plan (the “2008 RSU Plan”) and the Intergroup 2010 Omnibus Employee Incentive Plan are described below. Any outstanding options issued
under the Key Employee Plan or the Non-Employee Director Plan remain effective in accordance with their terms.
49
The InterGroup Corporation 2008 Restricted Stock Unit Plan
On December 3, 2008, the Board of Directors adopted, subject to shareholder approval, an equity compensation plan for its officers, directors and key employees entitled,
The InterGroup Corporation 2008 Restricted Stock Unit Plan (the “2008 RSU Plan”). The 2008 RSU Plan was approved and ratified by the shareholders on February 18,
2009.
The 2008 RSU Plan authorizes the Company to issue restricted stock units (“RSUs”) as equity compensation to officers, directors and key employees of the Company on
such terms and conditions established by the Compensation Committee of the Company. RSUs are not actual shares of the Company’s common stock, but rather
promises to deliver common stock in the future, subject to certain vesting requirements and other restrictions as may be determined by the Committee. Holders of RSUs
have no voting rights with respect to the underlying shares of common stock and holders are not entitled to receive any dividends until the RSUs vest and the shares are
delivered. No awards of RSUs shall vest until at least six months after shareholder approval of the Plan. Subject to certain
adjustments upon changes in capitalization, a maximum of 200,000 shares of the common stock are available for issuance to participants under the 2008 RSU Plan. The
2008 RSU Plan will terminate ten (10) years from December 3, 2008, unless terminated sooner by the Board of Directors. After the 2008 RSU Plan is terminated, no
awards may be granted but awards previously granted shall remain outstanding in accordance with the Plan and their applicable terms and conditions.
The shares of common stock to be delivered upon the vesting of an award of RSUs have been registered under the Securities Act, pursuant to a registration statement
filed on Form S-8 by the Company on June 16, 2010. The grant of RSUs is personal to the recipient and is not transferable. Once received, shares of common stock
issuable upon the vesting of the RSUs are freely transferable subject to any requirements of Section 16(b) of the Exchange Act. Under the 2008 RSU Plan, the
Compensation Committee also has the power and authority to establish and implement an exchange program that would permit the Company to offer holders of awards
issued under prior shareholder approved compensation plans to exchange certain options for new RSUs on terms and conditions to be set by the Committee. The
exchange program is designed to increase the retention and motivational value of awards granted under prior plans. In addition, by exchanging options for RSUs, the
Company will reduce the number of shares of common stock subject to equity awards, thereby reducing potential dilution to stockholders in the event of significant
increases in the value of its common stock.
As of June 30, 2018, there were no RSUs outstanding.
50
Intergroup Corporation 2010 Omnibus Employee Incentive Plan
On February 24, 2010, the shareholders of the Company approved The Intergroup Corporation 2010 Omnibus Employee Incentive Plan (the “2010 Incentive Plan”),
which was formally adopted by the Board of Directors following the annual meeting of shareholders. The Company believes that such awards better align the interests of
its employees with those of its shareholders. Option awards are generally granted with an exercise price equal to the market price of the Company’s stock at the date of
grant; those option awards generally vest based on 5 years of continuous service. Certain option and share awards provide for accelerated vesting if there is a change in
control, as defined in the 2010 Incentive Plan. The 2010 Incentive plan as modified in December 2013, authorizes a total of up to 400,000 shares of common stock to be
issued as equity compensation to officers and employees of the Company in an amount and in a manner to be determined by the Compensation Committee in accordance
with the terms of the 2010 Incentive Plan. The 2010 Incentive Plan authorizes the awards of several types of equity compensation including stock options, stock
appreciation rights, performance awards and other stock-based compensation. The 2010 Incentive Plan will expire on February 23, 2020, if not terminated sooner by the
Board of Directors upon recommendation of the Compensation Committee. Any awards issued under the 2010 Incentive Plan will expire under the terms of the grant
agreement.
The shares of common stock to be issued under the 2010 Incentive Plan have been registered under the Securities Act, pursuant to a registration statement filed on Form
S-8 by the Company on June 16, 2010. Once received, shares of common stock issued under the Plan will be freely transferable subject to any requirements of Section 16
(b) of the Exchange Act.
On March 16, 2010, the Compensation Committee authorized the grant of 100,000 stock options to the Company’s Chairman, President and Chief Executive, John V.
Winfield to purchase up to 100,000 shares of the Company’s common stock pursuant to the 2010 Incentive Plan. The exercise price of the options is $10.30, which is
100% of the fair market value of the Company’s Common Stock as determined by reference to the closing price of the Company’s Common Stock as reported on the
NASDAQ Capital Market on March 16, 2010, the date of grant. The options expire ten years from the date of grant, unless earlier terminated in accordance with the
terms of the 2010 Incentive Plan. The options shall be subject to both time and market based vesting requirements, each of which must be satisfied before options are
fully vested and eligible to be exercised. Pursuant to the time vesting requirements, the options vest over a period of five years, with 20,000 options vesting upon each
one-year anniversary of the date of grant. Pursuant to the market vesting requirements, the options vest in increments of 20,000 shares upon each increase of $2.00 or
more in the market price of the Company’s common stock above the exercise price ($10.30) of the options. To satisfy this requirement, the common stock must trade at
that increased level for a period of at least ten trading days during any one quarter. As of June 30, 2018, all the market vesting requirements have been met.
In February 2012, the Compensation Committee awarded 90,000 stock options to the Company’s Chairman, President and Chief Executive, John V. Winfield to purchase
up to 90,000 shares of common stock. The per share exercise price of the options is $19.77 which is the fair value of the Company’s Common Stock as reported on
NASDAQ on February 28, 2012. The options expire ten years from the date of grant. The options are subject to both time and market based vesting requirements, each of
which must be satisfied before the options are fully vested and eligible to be exercised. Pursuant to the time vesting requirements, the options vest over a period of five
years, with 18,000 options vesting upon each one-year anniversary of the date of grant. Pursuant to the market vesting requirements, the options vest in increments of
18,000 shares upon each increase of $2.00 or more in the market price of the Company’s common stock above the exercise price ($19.77) of the options. To satisfy this
requirement, the common stock must trade at that increased level for a period of at least ten trading days during any one quarter. As of June 30, 2018, 90,000 of these
options have met the market vesting requirements.
On December 26, 2013, the Compensation Committee authorized, subject to shareholder approval, a grant of non-qualified and incentive stock options for an aggregate
of 160,000 shares (the “Option Grant”) to the Company’s President and Chief Executive Officer, John V. Winfield. The stock option grant was approved by shareholders
on February 19, 2014. The grant of stock options was made pursuant to, and consistent with, the 2010 Incentive Plan, as proposed to be amended. The non-qualified
stock options are for 133,195 shares and have a term of ten years, expiring on December 26, 2023, with an exercise price of $18.65 per share. The incentive stock options
are for 26,805 shares and have a term of five years, expiring on December 26, 2018, with an exercise price of $20.52 per share. In accordance with the terms of the 2010
Incentive Plan, the exercise prices were based on 100% and 110%, respectively, of the fair market value of the Company’s common stock as determined by reference to
the closing price of the Company’s common stock as reported on the NASDAQ Capital Market on the date of grant. The stock options are subject to time vesting
requirements, with 20% of the options vesting annually commencing on the first anniversary of the grant date.
51
In March 2017, the Compensation Committee awarded 18,000 stock options to the Company’s Vice President of Real Estate, David C. Gonzalez, to purchase up to
18,000 shares of common stock. The per share exercise price of the options is $27.30 which is the fair value of the Company’s Common Stock as reported on NASDAQ
on March 2, 2017. The options expire ten years from the date of grant. Pursuant to the time vesting requirements, the options vest over a period of five years, with 3,600
options vesting upon each one-year anniversary of the date of grant.
During the years ended June 30, 2018 and 2017, the Company recorded stock option compensation expense of $184,000 and $268,000, respectively, related to stock
options previously issued. As of June 30, 2018, there was an estimated total of $120,000 of unamortized compensation related to stock options which is expected to be
recognized over the weighted-average of 2.73 years.
Option-pricing models require the input of various subjective assumptions, including the option’s expected life, estimated forfeiture rates and the price volatility of the
underlying stock. The expected stock price volatility is based on analysis of the Company’s stock price history. The Company has selected to use the simplified method
for estimating the expected term. The risk-free interest rate is based on the U.S. Treasury interest rates whose term is consistent with the expected life of the stock
options. No dividend yield is included as the Company has not issued any dividends and does not anticipate issuing any dividends in the future.
The following table summarizes the stock options activity from July 1, 2016 through June 30, 2018:
Outstanding at
Granted
Exercised
Forfeited
Exchanged
Outstanding at
Exercisable at
Vested and Expected to vest at
Outstanding at
Granted
Exercised
Forfeited
Exchanged
Outstanding at
Exercisable at
Vested and Expected to vest at
Number of
Shares
Weighted Average
Exercise Price
Weighted Average
Remaining Life
Aggregate
Intrinsic Value
350,000
18,000
-
-
-
368,000
286,000
368,000
368,000
-
-
-
-
368,000
318,000
368,000
$
$
$
$
$
$
$
$
16.70
27.30
-
-
-
17.21
16.19
17.21
17.21
-
-
-
-
17.21
16.47
17.21
5.95 years $
3,082,000
5.17 years $
5.20 years $
5.17 years $
3,046,000
2,635,000
3,046,000
5.17 years $
3,046,000
4.17 years $
3.79 years $
4.17 years $
3,505,000
3,257,000
3,505,000
July 1, 2016
June 30, 2017
June 30, 2017
June 30, 2017
July 1, 2017
June 30, 2018
June 30, 2018
June 30, 2018
NOTE 17 – RELATED PARTY TRANSACTIONS
In connection with the redemption of limited partnership interests of Justice described in Note 2 above, Justice Operating Company, LLC agreed to pay a total of
$1,550,000 in fees to certain officers and directors of the Company for services rendered in connection with the redemption of partnership interests, refinancing of
Justice’s properties and reorganization of Justice. This agreement was superseded by a letter dated December 11, 2013 from Justice, in which Justice assumed the
payment obligations of Justice Operating Company, LLC. The first payment under this agreement was made concurrently with the closing of the loan agreements
described in Note 2 above, with the remaining payments due upon Justice Investor’s having adequate available cash as described in the letter. As of June 30, 2018,
$200,000 of these fees remain payable.
As Chairman of the Securities Investment Committee, the Company’s President and Chief Executive Officer (CEO), John V. Winfield, directs the investment activity of
the Company in public and private markets pursuant to authority granted by the Board of Directors. Mr. Winfield also serves as Chief Executive Officer and Chairman of
the Portsmouth and Santa Fe and oversees the investment activity of those companies. Depending on certain market conditions and various risk factors, the Chief
Executive Officer, Portsmouth and Santa Fe may, at times, invest in the same companies in which the Company invests. Such investments align the interests of the
Company with the interests of related parties because it places the personal resources of the Chief Executive Officer and the resources of the Portsmouth and Santa Fe, at
risk in substantially the same manner as the Company in connection with investment decisions made on behalf of the Company.
52
NOTE 18 – COMMITMENTS AND CONTINGENCIES
Franchise Agreements
The Partnership entered into a Franchise License Agreement (the “License Agreement”) with the HLT Existing Franchise Holding LLC (“Hilton”) on November 24,
2004. The term of the License agreement was for an initial period of 15 years commencing on the date the Hotel began operating as a Hilton hotel, with an option to
extend the License Agreement for another five years, subject to certain conditions. On June 26, 2015, Operating and Hilton entered into an amended franchise agreement
which amongst other things extended the License Agreement through 2030, and also provided the Partnership certain key money cash incentives to be earned through
2030.
Since the opening of the Hotel in January 2006, the Partnership has incurred monthly royalties, program fees and information technology recapture charges equal to a
percent of the Hotel’s gross room revenue. Fees for such services during fiscal year 2018 and 2017 totaled approximately $3.8 million and $3.3 million, respectively.
Hotel Employees
Effective February 3, 2017, the Partnership had no employees. On February 3, 2017, Interstate assumed all labor union agreements and retained employees of their
choice to continue providing services to the Hotel. As of June 30, 2018, approximately 85% of those employees were represented by one of four labor unions, and their
terms of employment were determined under a collective bargaining agreement (“CBA”) to which the Partnership was a party. During the year ended June 30, 2018, the
Partnership renewed the CBA for Local 856 (International Brotherhood of Teamsters). The present CBAs for Local 2 (Hotel and Restaurant Employees), Local 39
(Stationary Engineers), and Local 665 (Parking Employees) will expire on August 13, 2018, July 31, 2018, and November 30, 2018, respectively.
Negotiation of collective bargaining agreements, which includes not just terms and conditions of employment, but scope and coverage of employees, is a regular and
expected course of business operations for the Partnership. The Partnership expects and anticipates that the terms of conditions of CBAs will have an impact on wage and
benefit costs, operating expenses, and certain hotel operations during the life of each CBA, and incorporates these principles into its operating and budgetary practices.
Legal Matters
In 2014, Evon Corporation ("Evon") filed a complaint in San Francisco Superior Court against the Partnership, Portsmouth, and a limited partner and related party
asserting contract and tort claims based on Justice’s withholding of $4.7 million to pay the transfer tax described in Item 3 - Legal Proceedings. Evon’s complaint
asserted various tort and contract claims against Justice and Portsmouth; and also a tort against a Justice limited partner and related party. In July 2014, Justice paid to
Holdings $4.7 million, the amount Evon claimed to be incorrectly withheld. In June 2014, the Partnership sued Evon and related defendants, seeking a judicial
declaration as to certain issues arising out of the partnership redemption documents. Evon filed a cross-complaint in December 2014, alleging torts against the
Partnership in connection with the redemption transaction. On May 5, 2016, Justice Investors and Portsmouth (parent company) settled these actions via a global
settlement agreement. The Partnership agreed to pay Evon $5,575,000. As of January 10, 2017, the Company has satisfied all conditions of the settlement agreement.
In March 2017, Justice entered into a settlement agreement with RSUI Indemnity Company (“RSUI”), the insurer for Portsmouth’s Directors and Officers Liability
Policies. Under this settlement agreement, Justice received $900,000 from RSUI to resolve allegations that RSUI had committed breach of contract and bad faith in
handling a claim. The $900,000 was recorded as a reduction of legal expense for the fiscal year ended June 30, 2017.
In April 2014, the Partnership commenced an arbitration action against Glaser Weil Fink Howard Avchen & Shapiro, LLP (formerly known as Glaser Weil Fink Jacobs
Howard Avchen & Shapiro, LLP), Brett J. Cohen, Gary N. Jacobs, Janet S. McCloud, Paul B. Salvaty, and Joseph K. Fletcher III (collectively, the “Respondents”) in
connection with the redemption transaction. The arbitration alleged legal malpractice against the Respondents and also sought declaratory relief regarding provisions of
the option agreement in the redemption transaction and regarding the engagement letter with Respondents. Prior to arbitration proceedings, the parties agreed in principle
to settle the matter, and entered into a settlement agreement and mutual general release in April 2018. The Respondents agreed to pay $8,300,000, which was received in
May of 2018. $5,575,000 was recorded as a recovery of legal settlement cost and $2,725,000 was recorded as a reduction of legal expense for the fiscal year ended June
30, 2018.
The Company is subject to legal proceedings, claims, and litigation arising in the ordinary course of business. The Company defends itself vigorously against any such
claims. Management does not believe that the impact of such matters will have a material effect on the financial conditions or result of operations when resolved.
53
NOTE 19 – SUBSEQUENT EVENTS
In July 2018, Intergroup obtained a revolving $5,000,000 line of credit (“RLOC”). On July 31, 2018, $2,969,000 was drawn from the RLOC to pay off the mortgage note
payable at one of the Company’s Los Angeles properties that will undergo a major renovation. The RLOC carries a variable interest rate of 30-day LIBOR plus 3%.
Interest is paid on a monthly basis. The RLOC and all accrued and unpaid interest are due in June 2019.
Item 9. Changes in and Disagreements with Accountants on Accounting and Financial Disclosure.
None.
Item 9A. 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) or 15d-15(e) under the Exchange Act) as of the end of the fiscal period covered by this
Annual Report on Form 10-K. Based upon such evaluation, management has concluded that the 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.
MANAGEMENT’S REPORT ON INTERNAL CONTROL OVER FINANCIAL REPORTING
Management is responsible for establishing and maintaining internal control over financial reporting, as such term is defined in Rules 13a-15(f) and 15d-15(f) of the
Exchange Act. The internal control over financial reporting is a process, under the supervision of our Chief Executive Officer and Principal Financial Officer, designed to
provide reasonable assurance regarding the reliability of financial reporting and the preparation of our financial statements for external purposes in accordance with
accounting principles generally accepted in the United States of America.
The internal control over financial reporting include those policies and procedures that:
• pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect our transactions and dispositions of our assets;
• provide reasonable assurance that our transactions are recorded as necessary to permit preparation of our financial statements in accordance with accounting principles
generally accepted in the United States of America, and that our receipts and expenditures are being made only in accordance with authorizations of our management and
our directors; and
• provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use, or disposition of our assets that could have a material effect on
the financial statements.
Management, including our Chief Executive Officer and Principal Financial Officer, conducted an evaluation of the effectiveness of our internal control over financial
reporting using the criteria set forth by the Committee of Sponsoring Organizations of the Treadway Commission (COSO) in Internal Control-Integrated Framework.
Based on its evaluation, management concluded that there was a material weakness in our internal control over financial reporting. A material weakness is a deficiency,
or a combination of control deficiencies, in internal control over financial reporting such that there is a reasonable possibility that a material misstatement of our annual
or interim financial statements will not be prevented or detected on a timely basis.
The material weakness is related to the Company’s preparation of its tax provision.
54
During the fourth quarter of fiscal 2017, we identified a material weakness in internal controls over financial reporting related to our accounting for deferred income
taxes and income tax expense. Specifically, we did not design and maintain effective controls to identify items within the deferred tax balances that could be materially
incorrect. We did not provide appropriate oversight of our third-party tax CPA firm preparer. This material weakness did not have, but could have resulted in various
material adjustments to deferred tax accounts for fiscal 2017 and 2016. Since the material weakness was identified, we have undergone evaluation and improvements in
our internal control over financial reporting. Management’s remediation activities have included the following:
In order to mitigate the material weakness to the fullest extent possible, management hired a new tax CPA specialist to review and do a detailed analysis which was
completed for the year ended June 30, 2017. The Company has also assigned to its audit committee oversight responsibilities with regard to this analysis. The
preparation of the Company’s deferred tax assets and liabilities will be reviewed annually by tax experts as well as the Principal Financial Officer and the Chief
Executive Officer.
As of June 30, 2018, these controls were not operating effectively as noted by a computational error in estimating the transition impact of the Tax Act on our deferred tax
balances. As a result, management concludes that the material weakness has not been remediated and will continue to enhance its controls over the preparation of its tax
provision.
This annual report does not include an attestation report of our independent registered public accounting firm regarding internal control over financial reporting.
Management’s report was not subject to attestation by our independent registered public accounting firm, pursuant to provisions of the Dodd-Frank Wall Street Reform
and Consumer Protection Act that permit us to provide only management’s report in this Annual Report on Form 10-K.
This report shall not be deemed to be filed for purposes of Section 18 of the Exchange Act, or otherwise subject to the liabilities of that section, and is not incorporated
by reference into any filing of the Company, whether made before or after the date hereof, regardless of any general incorporation language in such filing.
CHANGES IN INTERNAL CONTROL OVER FINANCIAL REPORTING
As stated in our report on internal control over financial reporting, the material weakness related to tax provision preparation has not been remediated in fiscal year 2018.
While significant progress has been made as of June 30, 2018, these controls were not operating effectively. As a result, management concludes that the material
weakness has not been remediated and will continue to enhance its controls over the preparation of its tax provision.
Item 9B. Other Information.
None.
55
Item 10. Directors, Executive Officers and Corporate Governance
PART III
The following table sets forth certain information with respect to the Directors and Executive Officers of the Company as of June 30, 2018:
Name
Class A Directors:
John V. Winfield (1)(4)(6)(7)
Jerold R. Babin (2)(3)
Class B Directors:
Yvonne L. Murphy (1)(5)(7)
William J. Nance (1)(2)(3)(4)(6)
Class C Director:
John C. Love (2)(3)(4)(5)(6)(7)
Executive Officers:
David C. Gonzalez
Danfeng Xu
Position with the Company
Age
Term to Expire
Chairman of the Board; President and Chief Executive Officer
71
Fiscal 2018 Annual Meeting
Director
Director
Director
Director
84
Fiscal 2018 Annual Meeting
61
Fiscal 2019 Annual Meeting
74
Fiscal 2019 Annual Meeting
78
Fiscal 2020 Annual Meeting
Vice President Real Estate
Treasurer, Controller (Principal Financial Officer), and
Secretary
51 N/A
31 N/A
(1) Member of the Executive Committee
(2) Member of the Administrative and Compensation Committee
(3) Member of the Audit Committee
(4) Member of the Real Estate Investment Committee
(5) Member of the Nominating Committee
(6) Member of the Securities Investment Committee
(7) Member of the Special Strategic Options Committee
Business Experience:
The principal occupation and business experience during the last five years for each of the Directors and Executive Officers of the Company are as follows:
John V. Winfield — Mr. Winfield was first appointed to the Board in 1982. He currently serves as the Company's Chairman of the Board, President and Chief Executive
Officer, having first been appointed as such in 1987. Mr. Winfield also serves as President, Chairman and Chief Executive Officer of the Company’s subsidiaries, Santa
Fe and Portsmouth, both public companies. Mr. Winfield’s extensive experience as an entrepreneur and investor, as well as his managerial and leadership experience
from serving as a chief executive officer and director of public companies, led to the Board’s conclusion that he should serve as a director of the Company.
56
Jerold R. Babin — Mr. Babin was first appointed as a Director of the Portsmouth, a subsidiary of the Company, on February 1996. Mr. Babin was elected to the Board
of InterGroup in February 2014. Mr. Babin is a retail securities broker. From 1974 to 1989, he worked at Drexel Burnham and from 1989 to June 30, 2010, he worked for
Prudential Securities (later Wachovia Securities and now Wells Fargo Advisors) where he held the title of First Vice-President. Mr. Babin retired from his position at
Wells Fargo advisors in June 2010. For the past 20 years, until present, Mr. Babin has also served as an arbitrator for FINRA (formerly NASD). Mr. Babin’s extensive
experience in the securities and financial markets as well has his experience in the securities and public company regulatory industry led to the Board’s conclusion that he
should serve as a director of the Company.
Yvonne L. Murphy — Mrs. Murphy was elected to the Board of InterGroup in February 2014. She was a member of Governor Kenny C. Guinn’s executive staff in
Nevada, and was employed for years by the prestigious Jones Vargas law firm in Reno, Nevada. She served in nine legislative sessions during the most challenging
years in Nevada’s history. Prior to starting her own lobbying firm, Ms. Murphy worked for RR Partners in its corporate office in Las Vegas, Nevada and in the
Government Affairs Division in Reno. She has a Doctorate and a Master’s in Business Administration from the California Pacific University. Mrs. Murphy’s impressive
experience in corporate management, legal research and legislative lobbying led to the Board’s conclusion that she should serve as a director of the Company.
William J. Nance — Mr. Nance is a Certified Public Accountant and private consultant to the real estate and banking industries. He is also President of Century Plaza
Printers, Inc. Mr. Nance was first elected to the Board in 1984. He served as the Company’s Chief Financial Officer from 1987 to 1990 and as Treasurer from 1987 to
June 2002. Mr. Nance is also a Director of Santa Fe and Portsmouth. Mr. Nance also serves as a director of Comstock Mining, Inc. Mr. Nance’s extensive experience as a
CPA and in numerous phases of the real estate industry, his business and management experience gained in running his own businesses, his service as a director and
audit committee member for other public companies and his knowledge and understanding of finance and financial reporting, led to the Board’s conclusion that he
should serve as a director of the Company.
John C. Love — Mr. Love was appointed to the Board in 1998. Mr. Love is an international hospitality and tourism consultant. He is a retired partner in the national
CPA and consulting firm of Pannell Kerr Forster and, for the last 30 years, a lecturer in hospitality industry management control systems and competition & strategy at
Golden Gate University and San Francisco State University. He is Chairman Emeritus of the Board of Trustees of Golden Gate University and the Executive Secretary of
the Hotel and Restaurant Foundation. Mr. Love is also a Director of Santa Fe and Portsmouth. Mr. Love’s extensive experience as a CPA and in the hospitality industry,
including teaching at the university level for the last 30 years in management control systems, and his knowledge and understanding of finance and financial reporting,
led to the Board’s conclusion that he should serve as a director of the Company.
David C. Gonzalez — Mr. Gonzalez was appointed Vice President Real Estate of the Company on January 31, 2001. Over the past 29 years, Mr. Gonzalez has served in
numerous capacities with the Company, including Controller and Director of Real Estate.
Danfeng Xu – Ms. Xu was appointed as Treasurer and Controller of the Company on October 16, 2017. Ms. Xu also serves as Treasurer and Controller of Portsmouth
and Santa Fe, having been appointed to those positions on October 16, 2017. On June 1, 2018, she was appointed Secretary of the Company, Portsmouth and Santa Fe.
Prior to joining the Company, she had served as Controller and worked in other positions at the Hotel from July 2010 to February 2017. She obtained her Bachelor of
Science degree in Business Administration, Accounting and Finance from The Ohio State University and her Master of Professional Accounting, with a concentration in
Audit and Assurance from University of Washington.
57
Family Relationships: There are no family relationships among directors, executive officers, or persons nominated or chosen by the Company to become directors or
executive officers.
Involvement in Certain Legal Proceedings: No director or executive officer, or person nominated or chosen to become a director or executive officer, was involved in
any legal proceeding requiring disclosure.
Compliance with Section 16(a) of the Securities Exchange Act of 1934
Section 16(a) of the Securities Exchange Act of 1934 requires the Company’s officers and directors, and each beneficial owner of more than ten percent of the Common
Stock of the Company, to file reports of ownership and changes in ownership with the Securities and Exchange Commission. Officers, directors and greater than ten-
percent shareholders are required by SEC regulations to furnish the Company with copies of all Section 16(a) forms they file.
Based solely on its review of the copies of Forms 3 and 4 and amendments thereto furnished to the Company during its most recent fiscal year and Forms 5 and
amendments thereto furnished to the Company with respect to its most recent fiscal year, or written representations from certain reporting persons that no Forms 5 were
required for those persons, the Company believes that during fiscal 2018 all filing requirements applicable to its officers, directors, and greater than ten-percent beneficial
owners were complied with.
Code of Ethics.
The Company has adopted a Code of Ethics that applies to its principal executive officer, principal financial officer, principal accounting officer or controller, or persons
performing similar functions, including its Board of Directors. A copy of the Code of Ethics is posted on the Company’s website at www.intgla.com. The Company will
provide to any person without charge, upon request, a copy of its Code of Ethics by sending such request to: The InterGroup Corporation, Attn: Treasurer, 11620
Wilshire Blvd., Suite 350, Los Angeles, CA, 90025. The Company will promptly disclose any amendments or waivers to its Code of Ethics on Form 8-K and will post
such information on its website.
BOARD AND COMMITTEE INFORMATION
InterGroup’s common stock is listed on the NASDAQ Capital Market tier of the NASDAQ Stock Market, LLC (“NASDAQ”). InterGroup is a Smaller Reporting
Company under the rules and regulations of the Securities and Exchange Commission (“SEC”). With the exception of the Company’s President and CEO, John V.
Winfield, all of InterGroup’s Board of Directors consists of “independent” directors as independence is defined by the applicable rules of the SEC and NASDAQ.
Nominating Committee
The Company's Nominating Committee is comprised of two “independent” directors as independence is defined by the applicable rules of the SEC and NASDAQ.
Directors Love and Murphy serve as the current members of the Nominating Committee. The Company has not established a charter for the Nominating Committee, and
the Committee has no policy with regard to consideration of any director candidates recommended by security holders. As a smaller reporting company whose directors
own in excess of sixty percent of the voting shares of the Company, InterGroup has not deemed it appropriate to institute such a policy. There have not been any material
changes to the procedures by which security holders may recommend nominees to the Company’s board of directors.
58
Audit Committee and Audit Committee Financial Expert
The Company is a Smaller Reporting Company under SEC rules and regulations. The Company’s Audit Committee is currently comprised of three members: Directors
Nance (Chairperson), Babin and Love, each of whom meets the independence requirements of the SEC and NASDAQ as modified or supplemented from time to time.
The Company’s Board of Directors has determined that Directors Nance and Love also meet the Audit Committee Financial Expert requirement as defined by the SEC
and NASDAQ based on their qualifications and business experience discussed above in this Item 10.
Administrative and Compensation Committee
The Company's Administrative and Compensation Committee (the “Compensation Committee”) is comprised of three “independent” members of the Board of Directors
as independence is defined by the applicable rules of the SEC and NASDAQ. Mr. Nance serves as Chairman of the Compensation Committee. The Company has not
established a charter for the Compensation Committee. The Compensation Committee reviews and recommends to the Board of Directors the compensation for the
Company’s Chief Executive Officer and other executive officers, including equity or performance-based compensation and plans. The Compensation Committee seeks to
design and set compensation to attract and retain highly qualified executive officers and to align their interests with those of long-term owners of the Company. The
Compensation Committee may also make recommendations to the Board of Directors as to the amount and form of director compensation. The Compensation
Committee has not engaged any compensation consultants in determining the amount or form of executive of director compensation but does review and monitor
published compensation surveys and studies. The Compensation Committee may delegate to the Company’s Chief Executive Officer the authority to determine the
compensation of certain executive officers. The Compensation Committee also oversees the Company’s 2008 RSU Plan and the 2010 Incentive Plan.
Item 11. Executive Compensation
The following table provides certain summary information concerning compensation awarded to, earned by, or paid to the Company’s principal executive officer and
other named executive officers of the Company whose total compensation exceeded $100,000 for all services rendered to the Company and its subsidiaries for each of
the Company’s last two completed fiscal years ended June 30, 2018 and 2017. There was no non-equity incentive plan compensation or nonqualified deferred
compensation earnings. There are currently no employment contracts with the executive officers.
Name and Position
John V. Winfield
Chairman, President and
Chief Executive Officer
David C. Gonzalez
Vice President Real Estate
David T. Nguyen
Treasurer and Controller
(Principal Financial Officer, resigned October 2017)
Danfeng Xu
Treasurer and Controller
(Principal Financial Officer, effective October 2017)
SUMMARY COMPENSATION TABLE
Fiscal Year
Salary
Bonus
Other
Compensation
Total
2018 $
2017 $
2018 $
2017 $
2018 $
2017 $
2018 $
2017 $
844,000(1) $
784,000(1) $
324,000
252,000
$
$
70,000(3) $
240,000(3) $
130,000(3) $
46,000(3) $
-
-
200,000
-
-
-
6,000
-
$
$
$
$
$
$
$
$
63,000(2) $
151,000(2) $
907,000
935,000
$
-
28,000(4) $
180,000(5) $
$
-
524,000
280,000
250,000
240,000
-
-
$
$
136,000
46,000
(1) Mr. Winfield also serves as President and Chairman of the Board of the Company’s subsidiary, Santa Fe, and Santa Fe’s subsidiary, Portsmouth. Mr. Winfield
received a salary from Santa Fe and Portsmouth in the aggregate amount of $440,000 and $447,000 from those entities for the fiscal years 2018 and 2017, respectively.
The amounts include director’s fees totaling $12,000 for each year.
(2) Amounts include annual premiums for split dollar whole life insurance policies owned by, and the beneficiary of which are, a trust for the benefit of Mr. Winfield's
family and compensation for a portion of the salary of an assistant. The amount of compensation related to the assistant was approximately $63,000 and $54,000 for the
fiscal years 2018 and 2017, respectively. The annual insurance premiums paid were $85,000 for fiscal year 2017. Santa Fe and Portsmouth paid $43,000 of that amount.
The Company did not pay any premiums during fiscal year 2018 and the policy benefiting the Company has expired as of June 30, 2018.
59
(3) Salary is allocated approximately 50% to the Company and 50% to Santa Fe and Portsmouth.
(4) For fiscal l 2017, the dollar amount reflects aggregate grant date fair value of options expected to vest, computed in accordance with FASB ASC Topic 718, of 18,000
stock options granted to Mr. Gonzalez on March 2, 2017 pursuant to the Company’s 2010 Incentive Plan.
(5) Includes severance received from the Company’s subsidiary, Santa Fe, in the amount of $90,000. Mr. Nguyen resigned as Treasurer and Controller of the Company,
InterGroup and Portsmouth effective October 16, 2017 and received $180,000 in total severance pay.
Outstanding Equity Awards at Fiscal Year Ended June 30, 2018
The following table sets forth information concerning option awards and stock awards for each named executive officer that were outstanding as of the end of the
Company’s last completed fiscal year ended June 30, 2018. There were no other equity incentive plan awards that were outstanding.
Name
John V. Winfield
John V. Winfield
John V. Winfield
John V. Winfield
David C. Gonzalez
Option Awards
Number of
securities
underlying
unexercised
options (#)
exercisable
Number of
securities
underlying
unexercised
options (#)
unexercisable
Option
exercise
price $
100,000(1)
90,000(2)
106,556(3)
21,444(3)
$
-
-
$
26,639(3) $
5,361(3) $
-
18,000(4) $
10.30
19.77
18.65
20.52
27.30
Option
expiration
date
3/16/20
2/28/22
12/26/23
12/26/23
3/2/22
(1) Stock options issued to Mr. Winfield pursuant to the Company’s 2010 Incentive Plan are subject to both time and performance based vesting requirements, each of
which must be satisfied before the options are fully vested and eligible to be exercised. Pursuant to the time vesting requirements, the options vest over a period of five
years, with 20,000 options vesting upon each one year anniversary of the date of grant, March 16, 2010. Pursuant to the performance vesting requirements, the options
vest in increments of 20,000 shares upon each increase of $2.00 or more in the market price of the Company’s common stock above the exercise price ($10.30) of the
options. To satisfy this requirement, the common stock must trade at that increased level for a period of at least ten trading days during any one quarter. As of June 30,
2018, the performance vesting requirements of the options were satisfied.
(2) Stock options issued to Mr. Winfield pursuant to the Company’s 2010 Incentive Plan are subject to both time and performance-based vesting requirements, each of
which must be satisfied before the options are fully vested and eligible to be exercised. Pursuant to the time vesting requirements, the options vest over a period of five
years, with 18,000 options vesting upon each one year anniversary of the date of grant, February 28, 2012. Pursuant to the performance vesting requirements, the options
vest in increments of 18,000 shares upon each increase of $2.00 or more in the market price of the Company’s common stock above the exercise price ($19.77) of the
options. To satisfy this requirement, the common stock must trade at that increased level for a period of at least ten trading days during any one quarter. As of June 30,
2018, 90,000 options have met the performance vesting requirements.
(3) On December 26, 2013, the Compensation Committee authorized, subject to shareholder approval, a grant of non-qualified and incentive stock options for an
aggregate of 160,000 shares (the “Option Grant”) to the Company’s President and Chief Executive Officer, John V. Winfield. The stock option grant was approved by
shareholders on February 19, 2014. The grant of stock options was made pursuant to, and consistent with, the 2010 Incentive Plan, as proposed to be amended. The non-
qualified stock options are for 133,195 shares and have a term of ten years, expiring on December 26, 2023, with an exercise price of $18.65 per share. The incentive
stock options are for 26,805 shares and have a term of five years, expiring on December 26, 2018, with an exercise price of $20.52 per share. In accordance with the
terms of the 2010 Incentive Plan, the exercise prices were based on 100% and 110%, respectively, of the fair market value of the Company’s common stock as
determined by reference to the closing price of the Company’s common stock as reported on the NASDAQ Capital Market on the date of grant. The stock options are
subject to time vesting requirements, with 20% of the options vesting annually commencing on the first anniversary of the grant date.
60
(4) Mr. Gonzalez’s stock options vest over a period of five years, with 3,600 options vesting upon each one-year anniversary of the date of grant, March 2, 2017.
Internal Revenue Code Limitations
Section 162(m) of the Internal Revenue Code of 1986, as amended (the “Code”), provides that, in the case of a publicly held corporation, the corporation is not generally
allowed to deduct remuneration paid to its chief executive officer and certain other highly compensated officers to the extent that such remuneration exceeds $1,000,000
for the taxable year. Certain remuneration, however, is not subject to disallowance, including compensation paid on a commission basis and, if certain requirements
prescribed by the Code are satisfied, other performance based compensation. Since InterGroup, Santa Fe and Portsmouth are each public companies, the $1,000,000
limitation applies separately to the compensation paid by each entity. Stock option expenses are also amortized over a several years. For fiscal years 2018 and 2017, no
compensation paid by the Company to its CEO or other executive officers was subject the deduction disallowance prescribed by Section 162(m) of the Code.
EQUITY COMPENSATION PLANS
The Company currently has two equity compensation plans, each of which has been approved by the Company’s stockholders. However, any outstanding stock options
issued under the Company’s prior equity compensation plans remain effective in accordance with their terms.
The purpose of the Company’s equity compensation plans is to provide a means whereby officers, directors and key employees of the Company develop a sense of
proprietorship and personal involvement in the development and financial success of the Company, and to encourage them to devote their best efforts to the business of
the Company, thereby advancing the interests of the Company and its shareholders. A further purpose of these plans is to provide a means through which the Company
may attract able individuals to become employees or serve as directors of the Company and to provide a means for such individuals to acquire and maintain stock
ownership in the Company, thereby strengthening their concern for the welfare of the Company.
The InterGroup Corporation 2008 Restricted Stock Unit Plan
On December 3, 2008, the Board of Directors adopted, subject to shareholder approval, an equity compensation plan for its officers, directors and key employees entitled,
The InterGroup Corporation 2008 Restricted Stock Unit Plan (the “2008 RSU Plan”). The 2008 RSU Plan was approved and ratified by the shareholders on February 18,
2009.
The 2008 RSU Plan authorizes the Company to issue restricted stock units (“RSUs”) as equity compensation to officers, directors and key employees of the Company on
such terms and conditions established by the Compensation Committee of the Company. RSUs are not actual shares of the Company’s common stock, but rather
promises to deliver common stock in the future, subject to certain vesting requirements and other restrictions as may be determined by the Committee. Holders of RSUs
have no voting rights with respect to the underlying shares of common stock and holders are not entitled to receive any dividends until the RSUs vest and the shares are
delivered. No awards of RSUs shall vest until at least six months after shareholder approval of the Plan. Subject to certain adjustments upon changes in capitalization, a
maximum of 200,000 shares of the common stock are available for issuance to participants under the 2008 RSU Plan. The 2008 RSU Plan will terminate ten (10) years
from December 3, 2008, unless terminated sooner by the Board of Directors. After the 2008 RSU Plan is terminated, no awards may be granted but awards previously
granted shall remain outstanding in accordance with the Plan and their applicable terms and conditions.
61
The shares of common stock to be delivered upon the vesting of an award of RSUs have been registered under the Securities Act, pursuant to a registration statement
filed on Form S-8 by the Company on June 16, 2010. The grant of RSUs is personal to the recipient and is not transferable. Once received, shares of common stock
issuable upon the vesting of the RSUs are freely transferable subject to any requirements of Section 16(b) of the Exchange Act. Under the 2008 RSU Plan, the
Compensation Committee also has the power and authority to establish and implement an exchange program that would permit the Company to offer holders of awards
issued under prior shareholder approved compensation plans to exchange certain options for new RSUs on terms and conditions to be set by the Committee. The
exchange program is designed to increase the retention and motivational value of awards granted under prior plans. In addition, by exchanging options for RSUs, the
Company will reduce the number of shares of common stock subject to equity awards, thereby reducing potential dilution to stockholders in the event of significant
increases in the value of its common stock.
As of June 30, 2018, there were no RSUs outstanding.
The InterGroup Corporation 2010 Omnibus Employee Incentive Plan
On February 24, 2010, the shareholders of the Company approved The InterGroup Corporation 2010 Omnibus Employee Incentive Plan (the “2010 Incentive Plan”),
which was formally adopted by the Board of Directors following the annual meeting of shareholders. The 2010 Incentive Plan as modified in December 2013, authorizes
a total of up to 400,000 shares of common stock to be issued as equity compensation to officers and employees of the Company in an amount and in a manner to be
determined by the Compensation Committee in accordance with the terms of the Plan. The 2010 Incentive Plan authorizes the awards of several types of equity
compensation including stock options, stock appreciation rights, performance awards and other stock based compensation. The 2010 Incentive Plan will expire on
February 23, 2020, if not terminated sooner by the Board of Directors upon recommendation of the Compensation Committee. Any awards issued under the Plan will
expire under the terms of the grant agreement.
The shares of common stock to be issued under the 2010 Incentive Plan have been registered under the Securities Act, pursuant to a registration statement filed on Form
S-8 by the Company on June 16, 2010. Once received, shares of common stock issued under the Plan will be freely transferable subject to any requirements of Section 16
(b) of the Exchange Act.
On March 16, 2010, the Compensation Committee authorized the grant of 100,000 stock options to the Company’s Chairman, President and Chief Executive, John V.
Winfield to purchase up to 100,000 shares of the Company’s common stock pursuant to the 2010 Incentive Plan. The exercise price of the options is $10.30, which is
100% of the fair market value of the Company’s Common Stock as determined by reference to the closing price of the Company’s Common Stock as reported on the
NASDAQ Capital Market on March 16, 2010, the date of grant. The options expire ten years from the date of grant, unless earlier terminated in accordance with the
terms of the 2010 Incentive Plan. The options shall be subject to both time and market based vesting requirements, each of which must be satisfied before options are
fully vested and eligible to be exercised. Pursuant to the time vesting requirements, the options vest over a period of five years, with 20,000 options vesting upon each
one-year anniversary of the date of grant. Pursuant to the market vesting requirements, the options vest in increments of 20,000 shares upon each increase of $2.00 or
more in the market price of the Company’s common stock above the exercise price ($10.30) of the options. To satisfy this requirement, the common stock must trade at
that increased level for a period of at least ten trading days during any one quarter. As of June 30, 2018, all the market vesting requirements have been met.
On February 28, 2012, the Compensation Committee authorized the grant of 90,000 stock options to the Company’s Chairman, President and Chief Executive, John V.
Winfield to purchase up to 90,000 shares of the Company’s common stock pursuant to the 2010 Incentive Plan. The exercise price of the options is $19.77, which equals
100% of the fair market value of the Company’s common stock as determined by reference to the closing price of the Company’s common stock as reported on the
NASDAQ Capital Market on February 28, 2012 the date of grant. The options expire ten years from the date of grant, unless earlier terminated in accordance with the
terms of the 2010 Plan. The options shall be subject to both time and market based vesting requirements, each of which must be satisfied before options are fully vested
and eligible to be exercised. Pursuant to the time vesting requirements, the options vest over a period of five years, with 18,000 options vesting upon each one year
anniversary of the date of grant. Pursuant to the market vesting requirements, the options vest in increments of 18,000 shares upon each increase of $2.00 or more in the
market price of the Company’s common stock above the exercise price ($19.77) of the options. To satisfy this requirement, the common stock must trade at that
increased level for a period of at least ten trading days during any one quarter. As of June 30, 2018, 90,000 options have met the market vesting requirements.
62
On December 26, 2013, the Compensation Committee authorized, subject to shareholder approval, a grant of non-qualified and incentive stock options for an aggregate
of 160,000 shares (the “Option Grant”) to the Company’s President and Chief Executive Officer, John V. Winfield. The stock option grant was approved by shareholders
on February 19, 2014. The grant of stock options was made pursuant to, and consistent with, the 2010 Incentive Plan, as proposed to be amended. The non-qualified
stock options are for 133,195 shares and have a term of ten years, expiring on December 26, 2023, with an exercise price of $18.65 per share. The incentive stock options
are for 26,805 shares and have a term of five years, expiring on December 26, 2018, with an exercise price of $20.52 per share. In accordance with the terms of the 2010
Incentive Plan, the exercise prices were based on 100% and 110%, respectively, of the fair market value of the Company’s common stock as determined by reference to
the closing price of the Company’s common stock as reported on the NASDAQ Capital Market on the date of grant. The stock options are subject to time vesting
requirements, with 20% of the options vesting annually commencing on the first anniversary of the grant date.
In March 2017, the Compensation Committee awarded 18,000 stock options to the Company’s Vice President of Real Estate, David C. Gonzalez, to purchase up to
18,000 shares of common stock. The exercise price of the options is $27.30 which is the fair value of the Company’s Common Stock as reported on NASDAQ on March
2, 2017. The options expire ten years from the date of grant. Pursuant to the time vesting requirements, the options vest over a period of five years, with 3,600 options
vesting upon each one-year anniversary of the date of grant.
Compensation of Directors
Effective as of fiscal year ended June 30, 2011, annual cash compensation payable to non-employee directors has been $12,000. With the exception of members of the
Audit Committee, non-employee directors do not receive any additional fees for attending Board or Committee meetings, but are entitled to reimbursement of their
reasonable expenses to attend such meetings. Members of the Audit Committee are paid a fee of $1,000 per quarter, with the Chair of that Committee to receive $1,500
per quarter. As an executive officer, the Company’s Chairman has elected to forego his annual board fees.
Non-employee directors are also eligible for grants of equity compensation under the Company’s 2007 Stock Plan and 2008 RSU Plan. Pursuant to the 2007 Stock Plan,
each non-employee director was entitled to an annual grant of a number of shares of common stock of the Company equal in value to $18,000 based on the fair market
value of the Common Stock on the date of grant. To compensate for the $4,000 reduction in annual cash compensation payable to non-employee directors as discussed
above, the Board of Directors, upon recommendation of the Compensation Committee, increased the annual grant of common stock to an amount equal in value to
$22,000, effective as of the July 1, 2011 grant. In July 2016, the Compensation Committee, the Board of Directors, voted to amend the 2007 Stock Plan and pay the
$22,000 in cash in lieu of the annual grant of stock.
Non-employee directors may also be eligible to participate in exchange offers as may be authorized by the Compensation Committee under the 2008 RSU Plan to
exchange previously issued stock options for RSUs.
The following table sets forth the compensation paid to directors during the fiscal year ended June 30, 2018:
DIRECTOR COMPENSATION
Name
John C. Love
William J. Nance
Jerold R. Babin
Yvonne L. Murphy
John V. Winfield (4)
*Amounts shown include board retainer fees, committee fees and meeting fees.
Fees Earned or
Paid in Cash*
Stock Awards
All Other
Compensation
Total
-
-
-
-
-
76,000
78,000
66,000
56,000
- $
- $
- $
- $
-
76,000(1)
78,000(2)
66,000(3)
56,000
-
$
$
$
$
63
(1) Mr. Love also serves as a director of the Company’s subsidiaries, Santa Fe and Portsmouth. Amounts shown include $8,000 in regular board and audit committee fees
paid by Santa Fe and $8,000 in regular board and audit committee fees paid by Portsmouth.
(2) Mr. Nance also serves as a director of the Company’s subsidiaries, Santa Fe and Portsmouth. Amounts shown include $8,000 in regular board and audit committee fees
paid by Santa Fe and $8,000 in regular board and audit committee fees paid by Portsmouth.
(3) Mr. Babin also serves as a director of the Company’s subsidiary, Portsmouth. Amounts shown include $6,000 in regular board fees paid by Portsmouth.
(4) As Chief Executive Officer, the Company’s Chairman, John V. Winfield, was not paid any board, committee or meetings fees. Mr. Winfield did receive a total of
$12,000 in regular board fees from the Company’s subsidiaries, which is reported on the Summary Compensation Table.
Change in Control or Other Arrangements
Except for the foregoing, there are no other arrangements for compensation of Directors and there are no employment contracts between the Company and its Directors
or any change in control arrangements.
Item 12. Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters
Security Ownership of Certain Beneficial Owners.
The following table sets forth, as of August 31, 2018, certain information with respect to the beneficial ownership of Common Stock of the Company owned by those
persons or groups known by the Company to own more than five percent of the outstanding shares of Common Stock.
John V. Winfield
11620 Wilshire Blvd. Suite 350
Los Angeles, CA 90025
Name and Address
of Beneficial Owner
Amount and Nature of
Beneficial Ownership(1)
Percent
of Class(2)
1,706,907(3)
64.4%
(1) Unless otherwise indicated and subject to applicable community property laws, each person has sole voting and investment power with respect to the shares
beneficially owned.
(2) Percentages are calculated on the basis of 2,334,197 shares of Common Stock outstanding at August 31, 2018, plus any securities that person has the right to acquire
within 60 days pursuant to options, warrants, conversion privileges or other rights.
(3) Includes 318,000 shares that Mr. Winfield has a right to acquire pursuant to vested stock options.
Security Ownership of Management.
The following table sets forth, as of August 31, 2018, certain information with respect to the beneficial ownership of Common Stock of the Company owned by (i) each
Director and each of the named Executive Officers, and (ii) all Directors and Executive Officers as a group.
64
Name of
Beneficial Owner
John V. Winfield
William J. Nance
John C. Love
David C. Gonzalez
Jerold R. Babin
Yvonne L. Murphy
Amount and Nature of
Beneficial Ownership(1)
Percent
of Class(2)
1,706,907(3)
64.4%
50,346
19,161
26,769
2,282
.
2,282
1.9%
0.7%
1.0%
*
*
All Directors and Executive Officers as a Group (6 persons)
1,807,747
68.2%
* Ownership does not exceed 1%.
(1) Unless otherwise indicated and subject to applicable community property laws, each person has sole voting and investment power with respect to the shares
beneficially owned.
(2) Percentages are calculated on the basis of 2,334,197 shares of Common Stock outstanding at August 31, 2018, plus any securities that person has the right to acquire
within 60 days pursuant to options, warrants, conversion privileges or other rights.
(3) Includes 318,000 shares that Mr. Winfield has a right to acquire pursuant to vested stock options.
Changes in Control.
There are no arrangements that may result in a change in control of the Company.
65
SECURITIES AUTHORIZED FOR ISSUANCE UNDER EQUITY COMPENSATION PLANS.
The following table sets forth information as of June 30, 2018 with respect to compensation plans (including individual compensation arrangements) under which equity
securities of the Company are authorized for issuance, aggregated as follows:
Plan category
Equity compensation plans approved by security holders
Equity compensation plans not approved by security holders
Total
(a) There were 368,000 stock options outstanding as of June 30, 2018.
(b) Reflects the weighted average exercise price of all outstanding options.
Number of securities
to be issued upon
exercise of outstanding
options, warrants and
rights
(a)
Weighted-average
exercise price of
outstanding options
warrants and
rights
(b)
Remaining available for
future issuance under
equity compensation
plans (excluding securities
reflected in column (a))
(c)
368,000 $
None
368,000 $
17.21
N/A
17.21
83,893
None
83,893
(c) As of June 30, 2018, the Company had 79,847 RSUs available for future issuance under the 2008 RSU Plan. As of June 30, 2018, there were no shares available for
future issuance under the 2010 Omnibus Employee Incentive Pan.
Item 13. Certain Relationships and Related Transactions, and Director Independence.
On December 4, 1998, the Compensation Committee authorized the Company to obtain whole life and split dollar insurance policies covering the Company’s President
and Chief Executive Officer, Mr. Winfield. During fiscal 2017, the Company paid annual premiums in the amount of approximately $85,000 for the split dollar insurance
policy owned by, and the beneficiary of which is, a trust for the benefit of Mr. Winfield’s family. The Company did not pay any premiums during fiscal year 2018 and
the policy benefiting the Company has expired as of June 30, 2018.
On June 30, 1998, the Company’s Chairman and President entered into a voting trust agreement with the Company giving the Company the power to vote his 4.0%
interest in the outstanding shares of the Santa Fe common stock.
In connection with the redemption of limited partnership interests of Justice Investors, Limited Partnership described in Note 2 above, Justice Operating Company, LLC
agreed to pay a total of $1,550,000 in fees to certain officers and directors of the Company for services rendered in connection with the redemption of partnership
interests, refinancing of Justice’s properties and reorganization of Justice Investors. This agreement was superseded by a letter dated December 11, 2013 from Justice
Investors, Limited Partnership, in which Justice Investors Limited Partnership assumed the payment obligations of Justice Operating Company, LLC. The first payment
under this agreement was made concurrently with the closing of the loan agreements described in Note 2 above, with the remaining payments due upon Justice Investor’s
having adequate available cash as described in the letter. As of June 30, 2018, $200,000 of these fees remain payable.
66
Two general partners provided services to the Partnership through December 17, 2013. On December 18, 2013, the Partnership redeemed Evon’s partnership interest and
Portsmouth Square became the sole general partner. The Partnership’s obligation to pay Evon, Justice’s former general partner, terminated as of December 18, 2013.
Under the terms of the Justice Partnership Agreement, its current general partner, Portsmouth, receives annual compensation of one percent of Hotel Revenue. During
each of the years ended June 30, 2018 and 2017, total compensation paid to Portsmouth under the new and previous agreements was $570,000 and $518,000,
respectively. Amounts paid to Portsmouth are eliminated in consolidation.
As Chairman of the Securities Investment Committee, the Company’s President and Chief Executive Officer (CEO), John V. Winfield, directs the investment activity of
the Company in public and private markets pursuant to authority granted by the Board of Directors. Mr. Winfield also serves as Chief Executive Officer and Chairman of
the Portsmouth and Santa Fe and oversees the investment activity of those companies. Depending on certain market conditions and various risk factors, the Chief
Executive Officer, Portsmouth and Santa Fe may, at times, invest in the same companies in which the Company invests. Such investments align the interests of the
Company with the interests of related parties because it places the personal resources of the Chief Executive Officer and the resources of the Portsmouth and Santa Fe, at
risk in substantially the same manner as the Company in connection with investment decisions made on behalf of the Company.
Director Independence
InterGroup’s common stock is listed on the NASDAQ Capital Market tier of the NASDAQ Stock Market LLC (“NASDAQ”). InterGroup is a Smaller Reporting
Company under the rules and regulations of the SEC. The Board of Directors of InterGroup currently consists of five members. With the exception of the Company’s
President and CEO, John V. Winfield, all of InterGroup’s Board of Directors consists of “independent” directors as independence is defined by the applicable rules of the
SEC and NASDAQ. There are no members of the Company’s compensation, nominating or audit committees that do not meet those independence standards.
Item 14. Principal Accounting Fees and Services.
On November 16, 2017, the Audit Committee appointed Moss Adams LLP (“Moss Adams”) as the Company’s independent registered public accounting firm for the
fiscal year ended June 30, 2018. Prior to the appointment of Moss Adams, Hein & Associates LLP (“Hein”) served as our independent registered public accounting firm
for fiscal year ended June 30, 2017. Burr Pilger Mayer, Inc. (“BPM”) also provided services in connection with the audit of the Company’s annual financial statements
for fiscal year ended June 30, 2017.
Audit Fees - The aggregate fees billed for each of the last two fiscal years ended June 30, 2018 and 2017 for professional services rendered by the Company’s
independent registered public accounting firms are set forth in the tables below. These fees were billed for audit of the Company’s annual financial statements, review of
financial statements included in the Company’s Form 10-Q reports, and services provided in connection with statutory and regulatory filings and engagements for those
fiscal years.
Audit fees - Moss Adams
Audit fees - Hein
Audit fees - BPM
Tax fees - Moss Adams
Tax fees - Hein
TOTAL:
Audit Committee Pre-Approval Policies
Fiscal Year
2018
2017
$
$
240,000
32,000
-
43,000
-
-
300,000
41,000
-
48,000
$
315,000
$
389,000
The Audit Committee shall pre-approve all auditing services and permitted non-audit services (including the fees and terms thereof) to be performed for the Company by
its independent registered public accounting firm, subject to any de minimis exceptions that may be set for non-audit services described in Section 10A(i)(1)(B) of the
Exchange Act which are approved by the Committee prior to the completion of the audit. The Committee may form and delegate authority to subcommittees consisting
of one or more members when appropriate, including the authority to grant pre-approvals of audit and permitted non-audit services, provided that decisions of such
subcommittee to grant pre-approvals shall be presented to the full Committee at its next scheduled meeting. All of the services described herein were approved by the
Audit Committee pursuant to its pre-approval policies.
67
None of the hours expended on the independent registered public accounting firms’ engagement to audit the Company’s financial statements for the most recent fiscal
year were attributed to work performed by persons other than the independent registered public accounting firm’s full-time permanent employees.
Item 15. Exhibits, Financial Statement Schedules.
(a)(1) Financial Statements
PART IV
The following financial statements of the Company are included in Part II, Item 8 of this Report at pages 28 through 54:
Independent Auditor's Reports
Consolidated Balance Sheets - June 30, 2018 and 2017
Consolidated Statements of Operations for Years Ended June 30, 2018 and 2017
Consolidated Statements of Shareholders’ Deficit for Years Ended June 30, 2018 and 2017
Consolidated Statements of Cash Flows for Years Ended June 30, 2018 and 2017
Notes to the Consolidated Financial Statements
(a)(2) Financial Statement Schedules
All other schedules for which provision is made in Regulation S-X have been omitted because they are not required or are not applicable or the required
information is shown in the consolidated financial statements or notes to the consolidated financial statements.
(a)(3) Exhibits
Set forth below is an index of applicable exhibits filed with this report according to exhibit table number.
Exhibit Number
Description
3.(i)
3.1
3.2
3.3
Articles of Incorporation:
Certificate of Incorporation, dated September 11, 1985, incorporated by reference to Exhibit 3.1 of the Company’s Registration Statement on
Form S-4, filed on September 6, 1985 (Registration No. 33-00126) and Amendment 1 to that Registration Statement filed on October 23, 1985.
Restated Certificate of Incorporation, dated March 9, 1998, incorporated by reference to Exhibit 3 of the Company’s Amended Quarterly Report
on Form 10-QSB/A for the period ended March 31, 1998, as filed on May 19, 1998.
Certificate of Amendment to Certificate of Incorporation, dated October 2, 1998, incorporated by reference to Exhibit 3 of the Company’s
Quarterly report on Form 10-QSB for the period ended September 30, 1998, as filed on November 13, 1998.
68
3.4
3.(ii)
4.
9.
10.
10.1
10.2
10.3
10.4
10.5
10.6
10.7
10.8
Certificate of Amendment of Certificate of Incorporation filed with the Delaware Secretary of State on August 6, 2007, incorporated by
reference to Exhibit 3.4 of the Company’s Annual Report on Form 10-KSB for the year ended June 30, 2007 as filed on September 28, 2007.
Amended and Restated By-Laws of The InterGroup Corporation, effective as of December 10, 2007, incorporated by reference to Exhibit 3.1 to
the Company’s Current Report on Form 8-K as filed on December 12, 2007.
Instruments defining the rights of security holders including indentures*
Voting Trust Agreement: Voting Trust Agreement dated June 30, 1998 between John V. Winfield and The InterGroup Corporation is
incorporated by reference to the Company’s Annual Report on Form 10-KSB filed with the Commission on September 28, 1998.
Material Contracts:
1998 Stock Option Plan for Non-Employee Directors approved by the Board of Directors on December 8, 1998 and ratified by the shareholders
on January 27, 1999 (incorporated by reference to the Company’s Proxy Statement on Schedule 14A filed with the Commission on December
21, 1998).
1998 Stock Option Plan for Selected Key Officers, Employees and Consultants approved by the Board of Directors on December 8, 1998 and
ratified by the shareholders on January 27, 1999 (incorporated by reference to the Company’s Proxy Statement on Schedule 14A filed with the
Commission on December 21, 1998).
The InterGroup Corporation 2007 Stock Compensation Plan for Non-Employee Directors (incorporated by reference to the Company’s Proxy
Statement on Schedule 14A filed with the Commission on January 26, 2007).
Amended and Restated Agreement of Limited Partnership of Justice Investors, effective November 30, 2010 (incorporated by reference to
Exhibit 10.1 to the Company’s Form 10-Q Report for the quarterly period ended December 31, 2010, filed with the Commission on February
11, 2011).
General Partner Compensation Agreement, dated December 1, 2008 (incorporated by reference to Exhibit 10.2 to Company’s Form 10-Q
Report for the quarterly period ended December 31, 2008, filed with the Commission on February 13, 2009).
The InterGroup Corporation 2008 Restricted Stock Unit Plan, adopted by the Board of Directors on December 3, 2008, and ratified by the
shareholders on February 18, 2009 (incorporated by reference to the Company’s Proxy Statement on Schedule 14A, filed with the Commission
on January 21, 2009).
Restricted Stock Unit Agreement, dated February 18, 2009, between The InterGroup Corporation and John V. Winfield (incorporated by
reference to Exhibit 10.7 of the Company’s Annual Report on Form 10-K for the fiscal year ended June 30, 2009, as filed with the Commission
on October 13, 2009).
The InterGroup Corporation 2010 Omnibus Employee Incentive Plan, approved by the shareholders and adopted by the Board of Directors on
February 24, 2010 (incorporated by reference to the Company’s Proxy Statement on Schedule 14A, filed with the Commission on January 27,
2010).
69
10.9
10.10
10.11
10.12
10.13
10.14
10.15
10.16
14.
21.
31.1
31.2
32.1
32.2
101.INS
101.SCH
101.CAL
101.DEF
101.LAB
101.PRE
Employee Stock Option Agreement, dated March 16, 2010, between The InterGroup Corporation and John V. Winfield (incorporated by
reference to Exhibit 10.9 of the Company’s report on Form 10-K for the fiscal year ended June 30, 2010, as filed with the Commission on
September 27, 2010).
Franchise License Agreement, dated December 10, 2004, between Justice Investors and Hilton Hotels (incorporated by reference to Exhibit
10.10 of the Company’s amended report on Form 10-K/A for the fiscal year ended June 30, 2011, as filed with the Commission on August 24,
2012).
Management Agreement, dated February 2, 2012, between Justice Investors and Prism Hospitality, L.P. (incorporated by reference to Exhibit
10.11 of the Company’s amended report on Form 10-K/A for the fiscal year ended June 30, 2011, as filed with the Commission on August 24,
2012).
Management Agreement, dated August 1, 2005, between Century West Properties, Inc. and The InterGroup Corporation (incorporated by
reference to Exhibit 10.12 of the Company’s amended report on Form 10-K/A for the fiscal year ended June 30, 2011, as filed with the
Commission on August 24, 2012).
Employee Stock Option Agreement, dated February 28, 2012, between The InterGroup Corporation and John V. Winfield (incorporated by
reference to Exhibit 10.13 of the Company’s annual report on Form 10-K for the fiscal year ended June 30, 2014, as filed with the Commission
on September 20, 2012).
Property Management Agreement, effective June 17, 2013, between R & K Interests, Inc., a California Corporation, doing business as
Investors’ Property Services and The InterGroup Corporation (incorporated by reference to Exhibit 10.1 of the Company’s current report on
Form 8-K as filed with the Commission on June 20, 2013).
Asset Management Agreement, effective July 1, 2013, between The InterGroup Corporation and Delta Alliance Capital Management, LLC, a
California limited liability company (incorporated by reference to Exhibit 10.2 or the Company’s current report on Form 8-K as filed with the
Commission on June 20, 2013).
Management Agreement, dated February 1, 2017, between Justice Operating Company, LLC and Interstate Management Company, LLC. (filed
herewith).
Code of Ethics (filed herewith).
Subsidiaries (filed herewith).
Certification of Principal Executive Officer of Periodic Report Pursuant to Rule 13a-14(a) and Rule 15d-14(a) (filed herewith).
Certification of Principal Financial Officer of Periodic Report Pursuant to Rule 13a-14(a) and Rule 15d-14(a) (filed herewith).
Certification of Principal Executive Officer Pursuant to 18 U.S.C. Section 1350 (filed herewith).
Certification of Principal Financial Officer Pursuant to 18 U.S.C. Section 1350 (filed herewith).
XBRL Instance Document
XBRL Taxonomy Extension Schema
XBRL Taxonomy Extension Calculation Linkbase
XBRL Taxonomy Extension Definition Linkbase
XBRL Taxonomy Extension Label Linkbase
XBRL Taxonomy Extension Presentation Linkbase
* All Exhibits marked by one asterisk are incorporated herein by reference to the Trust's Registration Statement on Form S-4 as filed with the Securities and Exchange
Commission on September 6, 1985, Amendment No. 1 to Form S-4 as filed with the Securities and Exchange Commission on October 23, 1985, Exhibit 14 to Form 8
Amendment No. 1 to Form 8 filed with the Securities & Exchange Commission November 1987 and Form 8 Amendment No. 1 Item 4 filed with the Securities &
Exchange Commission October 1988.
70
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
SIGNATURES
Date:
August 31, 2018
Date:
August 31, 2018
THE INTERGROUP CORPORATION
(Registrant)
by
by
/s/ John V. Winfield
John V. Winfield, President,
Chairman of the Board and
Chief Executive Officer
/s/ Danfeng Xu
Danfeng Xu, Treasurer
and Controller
Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the registrant and in the
capacities and on the dates indicated.
Signatures
/s/ John V Winfield
John V. Winfield
/s/ Danfeng Xu
Danfeng Xu
/s/ Jerold R. Babin
Jerold R. Babin
/s/ John C. Love
John C. Love
/s/ Yvonne L. Murphy
Yvonne L. Murphy
/s/ William J. Nance
William J. Nance
Title and Position
President, Chief Operating Officer and Chairman
of the Board (Principal Executive Officer)
Date
August 31, 2018
Treasurer and Controller (Principal Financial Officer)
August 31, 2018
Director
Director
Director
Director
71
August 31, 2018
August 31, 2018
August 31, 2018
August 31, 2018
Exhibit 10.16
HOTEL MANAGEMENT AGREEMENT
By and Between
JUSTICE OPERATING COMPANY LLC
and
INTERSTATE MANAGEMENT COMPANY, LLC
HILTON SAN FRANCISCO FINANCIAL DISTRICT
FEBRUARY 1, 2017
TABLE OF CONTENTS
Article I The Hotel
Article II Operating Term
Article III Appointment and Engagement of Operator
Article IV Hotel Employees
Article V Agency; Provision of Funds
Article VI Centralized Services; Information Technology
Article VII Working Capital and Bank Accounts
Article VIII Books, Records and Statements; Annual Plan
Article IX Management Fees and Payments to Operator and Owner
Article X Intentionally reserved
Article XI FF&E Reserve
Article XII Insurance
Article XIII Property Taxes
Article XIV Repairs and Maintenance and Capital Expenditures
Article XV Owner Covenants and Representations
Article XVI Damage or Destruction; Condemnation
Article XVII Events of Default
Article XVIII Termination of Agreement
Article XIX Assignment
Article XX Notices
Article XXI Subordination; Estoppels; Recognition
Article XXII Indemnification
Article XXIII Miscellaneous
Definition Annex
Exhibit A
Centralized Services
Exhibit B
Pro Forma Approved Annual Plan
Exhibit C
Form of Daily Cash Management Excel Spreadsheet
Exhibit D
Centralized Accounting Services
1
1
2
8
11
11
13
14
20
21
21
22
25
25
26
26
27
29
33
34
35
35
37
THIS HOTEL MANAGEMENT AGREEMENT (this “Agreement”) is entered into on this 1st day of February, 2017 (the “Commencement Date”), between
JUSTICE OPERATING COMPANY LLC, a Delaware limited liability company (the “Owner”) and INTERSTATE MANAGEMENT COMPANY, LLC, a
Delaware limited liability company (the “Operator”).
HOTEL MANAGEMENT AGREEMENT
RECITALS
A. Owner is the owner of the hotel known as the Hilton San Francisco Financial District located at 750 Kearny Street, San Francisco, CA 94108 (the
“Hotel”); and
B. Owner and Operator desire to evidence their agreement with respect to the operation, direction, management, and supervision of the Hotel as more
particularly set forth below.
NOW, THEREFORE, for and in consideration of the premises, and other good and valuable consideration, Owner and Operator agree as follows:
ARTICLE I
THE HOTEL
1.1. Owner and Operator acknowledge that the Hotel consists of and contains the Building, together with the parcel of land on which the Building is located, the
Installations, the FF&E, the Operating Equipment, the Operating Supplies and fitness facilities and any parking areas or other facilities located on such land, including,
without limitation, the Chinese Cultural Center premises, and the spa premises. Operator and Owner agree that while the operation and management of any parking areas
will be included in the definition of the Hotel and therefore shall be managed by Operator pursuant to the terms of this Agreement, Owner hereby reserves the right to
have all or any portion of such parking areas managed by any person or entity other than Operator (the “Owner Parking Facility Rights”) and as result thereof such
parking areas shall no longer be included as part of the Hotel for purposes of Operator’s management thereof. In addition, Operator agrees that Owner shall have the right
to repurpose various portions of the Hotel at any time during the Operating Term.
ARTICLE II
OPERATING TERM
2.1. This Agreement shall have an initial term commencing on the Takeover Date and expiring on the tenth (10th) anniversary of the Takeover Date (the “Initial
Term”), unless sooner terminated in accordance with the provisions of this Agreement or unless extended as provided by the terms of this Agreement or as otherwise
provided by the written agreement of Owner and Operator. This Agreement shall automatically renew for the applicable Renewal Term unless either party gives the other
party written notice of termination no less than ninety (90) days before the end of the Initial Term or the then applicable Renewal Term (such date, the “Renewal
Termination Date”); provided that no such renewal shall be effective if an Operator Event of Default is ongoing on either the Renewal Termination Date or the
commencement date of any such Renewal Term.
1
ARTICLE III
APPOINTMENT AND ENGAGEMENT OF OPERATOR
3.1. Subject to the terms of this Agreement, Owner hereby engages Operator as its agent and exclusive operator of the Hotel during the Operating Term and
Operator hereby accepts such engagement.
3.2. Subject to (a) Operator being provided with sufficient funds in accordance with the terms of this Agreement and (b) the terms of the then applicable Approved
Annual Plan, Operator shall operate the Hotel and all of its facilities and activities (i) in such a manner to meet the Standard at all times throughout the Operating Term
and (ii) in compliance in all material respects with the Legal Requirements. Operator shall also operate and manage the Hotel for Owner in a commercially reasonable,
business-like, prudent and professional manner.
3.3. Operator acknowledges and agrees that (a) Owner has an office in the Building and intends to oversee actively the operation of the Hotel, (b) if Owner
exercises its Owner Parking Facility Rights, the success of the operation of such parking areas by a person or entity other than Operator will be partially dependent upon
the operations and success of the Hotel and (c) Owner may engage an asset manager for the purpose of overseeing Operator’s management of the Hotel. Operator will
consult regularly (at least monthly or as otherwise reasonably requested by Owner) with Owner to provide Owner with a status report of the Hotel operations and discuss
any other matters concerning the operation or condition of the Hotel, including, without limitation, any policies or procedures affecting any aspect of the Hotel’s (i)
physical components, (ii) operations, (iii) financial performance and/or (iv) relative performance in the marketplace. In furtherance of the foregoing, Operator shall, and
shall instruct its executive staff, to provide Owner with access to real-time information concerning the Hotel, which shall be in addition to the periodic reports on the
operation of the Hotel required elsewhere in this Agreement. Operator shall take into account Owner’s recommendations and the impact of decisions made by Operator
on the anticipated operating and financial performance of the Hotel. Operator shall in all events consult with Owner before implementing any material changes in policies
and procedures relating to the Hotel (and, if another provision of this Agreement requires approval for such changes, obtain Owner’s approval). Owner shall consult
directly with the Vice President of Operations or such other corporate employee of Operator as Owner may reasonably request, and shall not contact any Hotel
Employee, regarding the operations of the Hotel, other than the General Manager, the Director of Sales and Marketing and the Director of Finance. Notwithstanding the
foregoing, but subject to Section 3.5, nothing in this Section 3.3 shall negate the authority granted to Operator under this Agreement and all Hotel Employees will be
directed by Operator as employer.
3.4. Subject to the terms of this Agreement, Operator shall have control and discretion in all aspects of the operation, direction, management and supervision of the
Hotel. Specifically, during the Operating Term, Operator, as agent and for the account of Owner, shall in accordance with and subject to the then applicable Approved
Annual Plan and the other applicable provisions of this Agreement (including Section 3.2), and only to the extent Owner has provided sufficient funds therefor, either
through Hotel operations or directly from Owner:
2
A.
B.
C.
D.
E.
F.
G.
H.
I.
Determine Hotel policies including but not limited to (i) credit policies (including entering into agreements with credit card organizations), (ii) terms
of admittance, (iii) charges for rooms, (iv) food and beverage policies, (v) Employment Policies, and (vi) entertainment policies;
Recruit, train, direct, supervise, employ and dismiss the Hotel Employees for the operation of the Hotel, and in connection therewith establish and
maintain an affirmative action plan for the Hotel to the extent required for Operator and/or the Hotel to maintain its status as a federal contractor;
Develop and implement advertising, marketing, promotion, publicity and similar programs for the Hotel;
(i) Negotiate and enter into Leases, collect the rent under such Leases and otherwise administer the Leases and (ii) negotiate and enter into contracts
for the provision of services to the Hotel;
Upon receipt of all necessary information from Owner, apply for, process and take all necessary steps to procure and keep in effect in Owner’s name
(or, if required by the licensing authority, in Operator’s name or both) all licenses and permits and the sales tax registration(s) required for the
operation of the Hotel;
Provide purchasing services for routine replacements and renewals of FF&E, Operating Equipment and Operating Supplies necessary for the
operation of the Hotel; non-routine purchases of such items may be provided pursuant to a separate written agreement on terms and conditions set
forth therein (including a separate fee); provided, however, to the extent that Owner purchases any of the FF&E, Operating Equipment or Operating
Supplies used in connection with the operation of the Hotel, Owner will provide to Operator sufficient information for Operator to maintain accurate
books and records regarding sales tax accruals and pay such accruals out of Total Revenues from the Hotel, and Owner agrees to fully cooperate with
Operator in the event of any related tax audit;
Provide routine accounting services as required in the ordinary course of business;
Comply with all applicable laws, ordinances, regulations, rulings and orders of governmental authorities affecting or issued in connection with the
Hotel, as well as with orders and requirements of any board of fire underwriters or any other body which may exercise similar functions. Owner
agrees to promptly deliver to Operator any notice of violation thereof received with respect thereto;
Cause all needed ordinary repairs and maintenance to the Hotel in accordance with the Standard, the Franchise Agreement any Mortgage and any
applicable Legal Requirements, and supervise such repairs and maintenance;
3
J.
K.
Subject to Section 3.6 below, operate the Hotel in accordance with (i) the Major Agreements, (ii) any agreement related to the operation of the Hotel
which was entered into prior to the date hereof provided a copy of such agreement has been delivered to Operator or is then in the actual or
construction possession or control of Operator, and (iii) any agreement related to the operation of the Hotel which (y) Operator enters into on behalf
of Owner or (z) Owner has entered into at Operator’s request; and
Provide such other services as are required under the terms of this Agreement or as are customarily performed without additional fee by management
companies of similar properties in the area of the Hotel.
3.5. Notwithstanding the foregoing or anything to the contrary in this Agreement and other than as expressly provided in the then applicable Approved Annual Plan,
Operator shall not, without Owner’s approval:
A.
B.
C.
D.
E.
F.
enter into any service or other arrangement (or series of related contracts or arrangements) if (i) the contract or other arrangement would or are
reasonably anticipated to, exceed $10,000 in the aggregate, (ii) the term of such contract or arrangement is in excess of one (1) year (and in no event
beyond the Initial Term), or (iii) the contract or other arrangement is not terminable by Owner or Operator without payment or penalty upon not less
than thirty (30) days notice. Operator shall nevertheless promptly report to Owner the execution of each such contract having a liability to the Hotel in
excess of $5,000;
enter into any agreement creating a voluntary lien or encumbrance affecting any portion of the Hotel;
enter into any Lease or enter into any lease for the use of any item of FF&E or other property;
borrow any money, guaranty the debts of any third person or execute any credit documents or incur any obligation in the name of, or on behalf of
Owner or the “Hotel”, except in the ordinary course of business and consistent with the Approved Annual Plan;
incur any liabilities or obligations to third parties which are unrelated to the operation, maintenance and security of the Hotel which create any
contractual obligation upon the Owner or the Hotel;
settle any (i) condemnation awards with respect any portion of the Hotel regardless of amount or (ii) casualty insurance claims with respect to the
Hotel or Owner which involve, or which may be reasonably estimated to involve (x) amounts in excess of $10,000, or (y) any admission of liability
on the part of the Hotel or Owner;
G.
employ any professional firm out of the ordinary course of business;
4
H.
I.
J.
K.
L.
M.
N.
O.
P.
prosecute or settle any tax claims or appeals;
except as approved in advance and in writing by Owner (in the Approved Annual Plan or otherwise), or as expressly permitted in this Agreement
(including Article VI), purchase any goods, supplies and services from itself or any Affiliate of Operator, or enter into any other transaction with an
Affiliate of Operator;
provide complimentary rooms or services to (i) any guests other than in connection with (A) settling guest satisfaction issues provided that in
Operator’s reasonable and prudent judgment, it is in the best interest of Owner and the Hotel and (B) group sales agreements, provided that (y) in
Operator’s reasonable and prudent judgment, it is in the best interest of Owner and (z) such complimentary rooms or services are normal and
customary practices with respect to group sales agreements in the San Francisco market, taking into account the size of the group, the value of the
group sales agreement and the length of stay, and (ii) any other person as expressly provided in, and subject to, the terms of Section 4.3;
acquire on behalf of Owner any land or any interest therein;
acquire any personal property or capital assets (either by purchase or lease) of or from the Hotel or any interest therein;
participate in any condemnation proceeding relating to the Hotel or any portion thereof, provided that Operator may assert a claim and file such
necessary documents with respect to the assertion of such claim in any such proceeding, subject to consultation with Owner and further provided that
Operator shall not assert any claims or take any substantive or procedural positions adverse to Owner’s interests in such proceeding;
sell, transfer or otherwise dispose of all or any portion of the Hotel except for dispositions of FF&E to the extent expressly permitted herein or
expressly provided for in the then applicable Approved Annual Plan;
perform any alterations to the Hotel or any portion thereof except to the extent Operator’s performance of any such alternation shall be expressly
provided for in the then applicable Approved Annual Plan;
institute or defend any legal proceedings with respect to the Hotel; provided that, Operator may, without Owner’s consent (i) institute claims for
collection of bad debts after reasonably determining that it is in the best interest of Owner and/or the Hotel, (ii) defend employment-related claims
(provided that Owner’s approval shall be required for settlement of any employment claim requiring payment of Owner’s funds or admission of
liability on the part of the Hotel or Owner), (iii) defend and/or settle claims involving amounts less than $10,000 and (iv) defend insured claims
(provided that Owner’s consent shall be required for settlement of any insured claim requiring payment by Owner of more than $5,000 or admission
of liability of the Hotel or Owner);
5
Q.
R.
lease or rent any one or more of the Hotel’s ballroom, conference room, and banquet room for periods in excess of twenty-one (21) days or the
Hotel’s bar or restaurant for periods in excess of five (5) consecutive days;
take any other action which, under the terms of this Agreement, is prohibited or requires the approval of Owner.
For the purposes of Section 3.5(Q), Operator shall request Owner’s approval in writing, which request shall be accompanied by such information as is reasonably
necessary to enable Owner to make an informed decision. In the event Owner fails to notify Operator in writing of its approval or disapproval within a twenty-four (24)
hour period, such failure shall be conclusively deemed to be Owner’s approval of same. For all other purposes of this Section 3.5, Operator shall request Owner’s
approval in writing, which request shall be accompanied by such information as is reasonably necessary to enable Owner to make an informed decision. In the event
Owner fails to notify Operator in writing of its approval or disapproval within five (5) business days, Operator shall deliver to Owner of a second notice following such
original five (5) business day period, indicating in ALL CAPITAL TYPE that Owner’s failure to deliver its objection as provided in this Section 3.5 in the next five (5)
business days shall result in Owner’s deemed approval of the item set forth in the request and Owner’s failure to respond within said five (5) business day period shall be
conclusively deemed to be Owner’s approval of same.
3.6. Operator’s obligations with respect to any Major Agreement shall be limited to the extent (a) complete and accurate copies thereof, or summaries of the
relevant provisions thereof, have been delivered to Operator, or are then in the actual or constructive possession or control of Operator or the Hotel’s general manager,
and (b) the provisions thereof and/or compliance with such provisions by Operator (i) are applicable to the day to day operation, maintenance and non-capital repair and
replacement of the Hotel or any portion thereof (including cash management), (ii) do not require contribution of capital from the Operator, (iii) do not materially increase
Operator’s obligations hereunder or materially decrease Operator’s other rights hereunder, (iv) do not limit or purport to limit any corporate activity or transaction with
respect to Operator or its affiliates or any other activity, transfer, transaction, property or other matter involving Operator or its affiliates other than at the site of the Hotel
except to the extent set forth in Article XIX of this Agreement or otherwise agreed to by Operator in a subordination agreement and (iv) are otherwise contemplated to be
within the scope of Operator’s duties under this Agreement. Owner acknowledges and agrees that any failure of Operator or the Hotel to comply with the provisions of
any Major Agreement that is a direct result of (A) the condition of the Hotel and/or the failure of the Hotel to comply with the provisions of such Major Agreement, prior
to the Takeover Date, (B) construction activities at the Hotel, (C) latent defects in the design and/or construction of the Hotel, (D) written instructions from Owner to
operate the Hotel in breach of its obligations under such Major Agreement and/or (E) Owner’s failure to approve any matter requested by Operator that is necessary to
comply with the applicable Major Agreement, shall not be deemed a breach by Operator of its obligations under this Agreement.
6
3.7. Operator agrees to pay to Owner a contribution (the “Key Money Contribution”) in the form of a loan in the amount of two million dollars ($2,000,000) within
seven (7) days after the Takeover Date. The Key Money Contribution shall be amortized in equal monthly amounts over an eight (8) year period commencing on the
second (2nd) anniversary of the Takeover Date. If this Agreement is terminated for any reason prior to the tenth (10th) anniversary of the Takeover Date, then Owner
shall pay to Operator, concurrent with the effective date of termination of this Agreement the unamortized portion of the Key Money Contribution (the “Unamortized
Key Money”). Repayment of the Unamortized Key Money shall not be considered a waiver by Owner of any right to seek any and all damages against Operator if Owner
terminates this Agreement due to an Event of Default by Operator.
3.8. Notwithstanding anything in the foregoing to the contrary, in connection with the Franchise Agreement, Operator (a) shall work closely with Owner and
Franchisor to cause Owner and the Hotel to comply with the Franchise Agreement, (b) is authorized to communicate with Franchisor (provided Operator provides Owner
with 24 hours’ notice prior to any communication other than day-to-day operational matters) in order that Owner may participate in such communications), purchase
supplies and services as may be required by the Franchise Agreement, (c) promptly provide Owner with the results of any reports, inspections, or other matters provided
to Operator by Franchisor with regard to the Hotel, and (d) promptly advise Owner of notice of default by Owner or the Hotel received from Franchisor.
3.9. Operator agrees to perform the following obligations in all material respects in connection with the transition of operation of the Hotel that will occur on the
Takeover Date:
A.
B.
C.
D.
E.
Operator shall honor any reservations for Hotel guest rooms and other Hotel facilities on or after the Takeover Date which have been made by guests
or customers before the Takeover Date with the current operator of the Hotel or Owner. Owner shall cause to be transferred to Operator any guest and
customer deposits held by the current operator of the Hotel with respect to those reservations;
Operator shall assume responsibility for guest tray ledger transferred by the current operator of the Hotel and the care and protection of the contents
of safe deposit boxes and any luggage, parcels, packages, faxes, messenger and overnight courier packages and mail of guests held by the current
Hotel operator or Owner on the Takeover Date;
Operator shall accept as agent for Owner and perform the obligations being assumed by Owner from and after the Takeover Date under space leases,
concession and license agreements, equipment leases and service contracts of the current Hotel operator or lessee;
Operator shall assist Owner with the transfer of existing permits, to the extent transferable, and in applying for and obtaining all other necessary
permits for the lawful operation of the Hotel from and after the Takeover Date;
If requested by Owner, Operator shall acquire from the existing hotel operator, Owner or their Affiliates and lawfully transfer into its name or one of
its Affiliates acceptable to Owner the liquor license for the sale of alcoholic beverages at the Hotel and the liquor inventory of the Hotel; and
7
F.
Operator shall otherwise assist and cooperate with Owner in the orderly and smooth transition of operation of the Hotel from the current operator to
Operator on the Takeover Date.
ARTICLE IV
HOTEL EMPLOYEES
4.1.
A.
B.
All Hotel Employees shall be employees of Operator. Operator shall comply with all applicable Legal Requirements, Union Agreements, including,
without limitation, worker’s compensation, social security, unemployment insurance, hours or labor, wages, working conditions, and other employer-
employee related subjects respecting the Hotel Employees. To the extent possible, Operator shall use local labor in the operation of the Hotel.
Notwithstanding anything to the contrary herein, upon commencement of management of the Hotel, Operator agrees to offer employment to a
sufficient number of former employees of the Hotel who desire employment by Operator on sufficient terms and conditions to avoid the notification
requirements of the WARN Act and similar state law requirements. The Operator may not knowingly hire any individuals for employment at the
Hotel who are related to the officers, directors or shareholders of Operator without Owner’s prior approval. Operator shall use its reasonable efforts to
design, promote and implement employment practices which emphasize the continuity of management (including but not limited to the executive
staff), minimize training and moving costs and reduce personnel turnover and shall consider the objective of minimizing Operating Expenses when
making staffing, employee transfer and staff reduction decisions.
Owner shall have the right to consult with Operator with respect to the hiring, initially and with respect to any replacement of, the Hotel’s General
Manager, Director of Sales and Marketing, Director of Finance, Director of Human Resources, Director of Food and Beverage, Director of Catering,
Chief Engineer and Executive Chef (the “Core Executive Staff”). Owner shall have the right to approve, which approval shall not be unreasonably
withheld, delayed or conditioned, the hiring or replacement of the Core Executive Staff within five (5) business days after written request from
Operator, which request shall be accompanied by such information as is reasonably necessary to enable Owner to make an informed decision. In the
event Owner fails to notify Operator in writing of its approval or disapproval within such five (5) business day period, Operator shall deliver to
Owner of a second notice following such original five (5) business day period, indicating in ALL CAPITAL TYPE that Owner’s failure to deliver its
objection as provided in this Section 4.1 in the next five (5) business days shall result in Owner’s deemed approval of the item set forth in the request
and Owner’s failure to respond within said five (5) business day period shall be conclusively deemed to be Owner’s approval of same. All
compensation (including, without limitation, all wages, costs of payroll and similar taxes, employee benefits, relocation expenses, fringe benefits,
bonuses and severance payments) of the Hotel Employees (“Employee Expenses”) shall be an Operating Expense and shall be borne by Owner and
paid or reimbursed to Operator out of the Agency Account or if the amounts therein are insufficient by Owner upon demand therefor by Operator.
Owner acknowledges and agrees that Operator shall have the right to institute compensation, employee benefit, severance payment and bonus policies
and programs for the Hotel Employees so long as such policies are reasonable and customary in the industry for similar positions in comparable
hotels, provided, Owner shall have the right to approve such policies and programs in the aggregate within each Approved Annual Plan. The
aggregate amount of Employee Expenses, including, without limitation, Employee Expenses for Core Executive Staff and department heads, shall be
subject to Owner’s approval as part of the Proposed Annual Plan review and approval process, or otherwise approved by Owner. If this Agreement is
terminated in the middle of any Fiscal Year, Owner shall pay a pro-rata portion of any Hotel Employee’s bonus that accrued during the Operating
Term. Notwithstanding anything here in the contrary, the parties hereby agree that Owner’s liability to pay for (or reimburse Operator for) any
severance obligations relating to any member of the Core Executive Staff shall be limited to an amount equal to the ratio, expressed as a percentage,
of (a) such person’s tenure as a member of the Core Executive Staff at the Hotel to (b) such person tenure as an employee of Operator and its
Affiliates.
8
4.2. Operator shall comply with all applicable laws with respect to pension, medical, health, life insurance, retirement, welfare and similar employee benefits in the
name of Operator, and may, enroll the Hotel Employees in additional retirement, health and welfare employee benefit plans substantially similar to corresponding plans
implemented in other hotels with similar service levels managed by Operator and in accordance with industry standards. Such plans may be, at Operator’s option, joint
plans for the benefit of employees at more than one hospitality property owned, leased or managed by Operator or its Affiliates, subject to the provisions of applicable
laws. Employer contributions to such plans (including any withdrawal liability incurred upon termination of this Agreement) and reasonable administrative fees which
Operator may expend in connection therewith shall be the responsibility of Owner and shall be an Operating Expense; provided that, other than withdrawal liability, such
employer contributions shall be subject to the then-applicable Annual Plan. Operator agrees to request an annual estimate of withdrawal liability from any applicable
Union. The administrative expenses of any joint plans will be equitably apportioned by Operator among properties covered by such plan, based on the Hotel’s payroll
expense as it relates to the total expense of such joint plan. Operator shall not recognize any labor union for purposes of representing Hotel Employees, except (i) any
currently recognized by the employer prior to the Takeover Date and (ii) pursuant to a lawful final order of the National Labor Relations Board. Operator shall negotiate
for the mutual best interests of Owner and Operator with any labor unions representing Hotel Employees, but any collective bargaining agreement or labor contract
resulting therefrom will be executed by Operator as the employer with the prior approval of Owner, which approval shall not be unreasonably withheld or delayed. It is
understood that, with respect to any labor negotiations applicable to the Hotel, Operator shall consult with Owner in advance of, and during the course of, negotiations
with any labor union. Operator shall receive input from Owner in connection with the negotiation of collective bargaining agreements and Operator shall reflect such
input in such negotiations. Operator agrees that, with respect to any collective bargaining agreement negotiations, Operator will review with Owner all economic terms of
any collective bargaining agreement proposal before making or agreeing to such proposed economic terms. Operator shall not enter into any multiemployer bargaining
arrangement applicable to the Hotel and other hotel properties not owned or managed by Operator without Owner’s prior written approval, which approval shall not be
unreasonably withheld or delayed. If a collective bargaining agreement is in place for the Hotel Employees immediately prior to the termination of this Agreement,
Operator may request that Owner, in connection with such termination, seek an assessment regarding the amount of withdrawal liability incurred under any related
benefit plan, if any. At Operator’s option, Owner shall post a bond or establish an escrow account to cover the costs of such withdrawal liability relating to the
termination of this Agreement. Owner hereby acknowledges and agrees that (a) any employee benefit plan withdrawal liability and (b) compliance with the provisions of
the WARN Act upon any disposition of the Hotel, upon any termination of this Agreement or upon the occurrence of any other event giving rise to the application of the
WARN Act are the responsibility and obligation of Owner, and Owner shall use commercially reasonably efforts to (i) cause the succeeding employer to hire a sufficient
number of employees at the Hotel to avoid the occurrence of a “closing” under the WARN Act or (ii) provide Operator with sufficient notice of termination to allow
Operator to comply with the WARN Act and avoid any liability thereunder, and Owner hereby agrees to indemnify, defend and hold Operator harmless in connection
with any employee benefit plan withdrawal liability or any breach or claimed breach of the WARN Act in connection with any such disposition, termination or other
occurrence, to the extent set forth in Section 22.2.
9
4.3. Operator, in its reasonable discretion, but always in accordance with the system-wide policies and procedures of Operator (which shall limit accommodations
to space projected to be available and not reserved or occupied by members of the public), may, as an Operating Expense of the Hotel, (a) provide lodging for Operator’s
executive employees visiting the Hotel in connection with the performance of Operator’s services and allow them the use of Hotel facilities and (b) provide the General
Manager of the Hotel and other Core Executive Staff temporary living quarters within the Hotel and the use of all Hotel facilities for up to thirty (30) days, in either case
without charge, as the case may be, subject to the Approved Annual Plan.
4.4. Operator shall not be liable for any failure of the Hotel to comply prior to the Commencement Date with any Employment Laws.
4.5. Operator shall make available from time to time, and for the period of time reasonably required, its Senior Vice President of Operations for the purpose of
providing services in connection with the operation or control of the Hotel, including, without limitation, for the purpose of improving the operations of the Hotel or
supervising the operation of the Hotel to ensure that the Standard is achieved and maintained.
4.6. Operator may, in its discretion, transfer one or more employees of Operator (or any of its Affiliates) to perform operational services at the Hotel on a temporary
basis whenever it determines that circumstances have made it impractical for Operator to hire a qualified permanent employee, in which event such employee of Operator
(or its Affiliate) shall be provided with room and food at the Hotel free or charge for a reasonable temporary period.
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ARTICLE V
AGENCY; PROVISION OF FUNDS
5.1. In the performance of its duties as Operator of the Hotel, Operator shall act solely as agent of, and for the account of, Owner. Nothing in this Agreement shall
constitute or be construed to be or create a partnership or joint venture between Owner and Operator. Except as otherwise provided in this Agreement, (a) all debts and
liabilities to third persons incurred by Operator in the course of its operation and management of the Hotel in accordance with the provisions of this Agreement shall be
the debts and liabilities of Owner only and (b) Operator shall not be liable for any such obligations by reason of its management, supervision, direction and operation of
the Hotel as agent for Owner. Operator may so inform third parties with whom it deals on behalf of Owner and may take any other reasonable steps to carry out the intent
of this paragraph.
5.2. Operator shall in no event be required (a) to advance any of its funds (whether by waiver or deferral of its management fees or otherwise) for the operation of
the Hotel or (b) to incur any liability unless Owner shall have furnished Operator with funds necessary for the discharge thereof prior to incurring such liability. Operator
shall not be deemed to be in default of its obligations under this Agreement to the extent it is unable to perform any obligation due to the lack of available funds from the
operation of the Hotel or as otherwise provided by Owner.
ARTICLE VI
CENTRALIZED SERVICES; INFORMATION TECHNOLOGY
6.1. Operator may, subject to the then applicable Approved Annual Plan, provide or cause its Affiliated companies to provide for the Hotel and its guests the
Centralized Services. The current list of Centralized Services offered by Operator is attached to this Agreement as Exhibit A (other than the Centralized Accounting
Services, which are as separately defined in this Agreement), and will be modified on an annual basis in connection with the review and approval of the Approved
Annual Plan. Subject to the provisions of the applicable Approved Annual Plan, Operator or such of Operator’s Affiliated companies as provide Centralized Services
shall be entitled to be reimbursed for the Hotel’s share of the total costs that are reasonably incurred in providing such Centralized Services on a system-wide basis to
hotels and motels managed by Operator or its Affiliates which costs may include, without limitation, salaries (including payroll taxes and employee benefits) of
employees of Operator and its Affiliates, costs of all equipment employed in the provision of such services and a reasonable charge for overhead. The Hotel’s share of
such costs shall be determined in an equitable manner by Operator (which shall be reasonably satisfactory to Owner) and substantiated to Owner after each Fiscal Year,
shall be an Operating Expense of the Hotel and shall be paid or reimbursed to Operator out of the Agency Account, or if the amounts therein are insufficient such costs
shall be borne and paid by Owner in accordance with Section 7.1. Operator shall maintain and make available to Owner invoices or other evidence supporting all of the
charges for Centralized Services. Notwithstanding the foregoing, Operator’s fee for providing Centralized Accounting Services shall be the Centralized Accounting
Services Fee. Owner acknowledges and agrees that (a) Operator has disclosed to Owner the types of Centralized Services Operator currently makes available to
properties which it operates, including those that require mandatory participation by the Hotel, (b) the Hotel is likely to receive substantial benefit from its participation
in such Centralized Services, (c) Operator is not obligated to provide such Centralized Services under Article III of this Agreement, but will offer such Centralized
Services to the Hotel so long as Operator continues to offer them to other similar hotels operated by Operator or its Affiliates, and (d) the receipt by Operator of the
Centralized Accounting Services Fee does not breach any fiduciary or other duty which Operator may have to Owner.
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6.2. Operator shall arrange for the procurement, as an Operating Expense, of all operating supplies, inventory, and/or services necessary for the normal and ordinary
course of operation of the Hotel. Owner acknowledges and agrees that Operator, subject to the Major Agreements and the Approved Annual Plan, may enter into certain
Multi-Property Programs pursuant to which Operator or affiliates of Operator may receive rebates or other volume- based incentive compensation from participating
vendors or suppliers of goods or services under such Multi-Property Programs (“Operator Rebates”). Owner acknowledges and agrees that (i) Operator has disclosed to
Owner the types of Multi-Property Programs Operator currently makes available to properties which it operates and (ii) the Hotel is likely to receive a benefit from its
participation in such Multi-Property Programs, which the Hotel could not obtain on its own. The receipt by Operator of any Operator Rebates does not breach any
fiduciary or other duty which Operator may have to Owner. Owner may opt-in or-out of the Multi-Property Programs during the Annual Plan approval process each year.
6.3. Operator may, subject to the then applicable Approved Annual Plan, provide certain information technology services, including, but not limited to: (a) de-
centralized accounting support services, (b) Operator’s IT Central Support Services (support desk and e-mail services), (c) Operator’s IT Delphi System Support
(centralized sales and catering software application), (d) use of certain Microsoft software applications at the Hotel, and (e) Virtual Private Network Connectivity and
Support (connection to Operator’s software applications via secure internet connection) (the “IT Services”). For purposes of the Virtual Private Network, Operator may
install hardware at the Hotel, which hardware shall be Owner’s property (installation in connection with Operator’s initial takeover of management of the Hotel shall be
at no cost to Owner pursuant to Section 9.8; installations after 2017 shall be as provided in the Approved Annual Plan). In addition, Operator shall make all necessary
business process changes from time to time, including, without limitation, necessary changes to information technology equipment and software to (i) comply with the
operating standards required by the Major Agreements, (ii) make reasonable adaptations to changing technology, (iii) be otherwise consistent with the Standard, and (iv)
achieve and sustain compliance on an on-going basis with the then current Payment Card Industry Data Security Standards and other applicable information security and
operating rules and regulations of the credit card associations, and applicable data protection and privacy laws and regulations. A list of the IT Services (and the current
estimated costs therefor) is included in Exhibit A, subject to change in connection with the then applicable Approved Annual Plan review and approval process for each
Fiscal Year.
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6.4. To the extent requested by Owner, Operator may provide project management services in connection with the procurement and installation of information
technology for the Hotel during the Operating Term on terms and conditions (including separate fees for such services) mutually agreed upon by Owner and Operator.
ARTICLE VII
WORKING CAPITAL AND BANK ACCOUNTS
7.1. Commencing immediately prior to the Takeover Date, Owner will provide Operator with the Minimum Working Capital for the Hotel. Owner shall at all times
provide, either from Total Revenues or from other funds of Owner, sufficient funds as reasonably determined by Operator to constitute normal working capital for the
uninterrupted and efficient operation of the Hotel (but which, in no event, shall be an amount less than the Minimum Working Capital), in accordance with this
Agreement, and to maintain the Standard as required herein (but without negating Operator’s obligation to obtain Owner’s consent to exceed budget amounts if required
under Section 8.6). Operator agrees that in determining the required working capital, Operator shall take into account the anticipated Operating Expenses and anticipated
Total Revenues of the Hotel for the applicable rolling thirty (30) day period. In furtherance thereof, Operator shall provide to Owner monthly cash flow forecasts
covering the next ninety (90) days of the Hotel’s financial needs as part of Operator’s Monthly Cash Flow Forecast. Operator shall manage accounts receivable and
inventories as would a prudent operator of a hotel similar to the Hotel and consistent with its operation of its other hotels.
Within fourteen (14) days following Operator’s notice to Owner that additional funds are required to pay payroll expenses and other necessary Operating Expenses,
Owner shall provide such funds necessary to pay such Operating Expenses. Any such failure to provide such funding within the required time period shall constitute a
breach under Section 17.1(A) of this Agreement. Operator may, but shall not be required to, fund such expenses, and in such event, Operator may, in addition to all other
rights, repay itself as soon as any funds are available.
7.2. All funds received by Operator in the operation of the Hotel, including working capital furnished by Owner, shall be deposited in an Agency Account in such
federally insured financial institution as may be selected by Operator and reasonably approved by Owner and approved by any Mortgagee. Such funds shall not be
commingled with Operator’s other funds. To the extent funds are currently available in the Agency Account, Operator shall pay all Operating Expenses and Fixed
Charges on behalf of Owner from the Agency Account. Upon Owner’s written request and direction, Operator shall pay on behalf of Owner from the Agency Account
(but only to the extent that such funds are available in the Agency Account following the payment of all Operating Expenses and Fixed Charges), such other Owner
Expenses as may be requested by Owner; provided, however, Operator will not be required to pay such Owner Expenses until Operator receives Owner’s Expense
Notice. Owner agrees to provide Owner’s Expense Notice at least thirty (30) days prior to the date on which the first payment by Operator is due, and such Owner’s
Expense Notice shall only be revocable upon thirty (30) days prior written notice from Owner.
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7.3. In addition to the Agency Account established pursuant to Section 7.2, the FF&E Reserve Account shall be established at the same institution for a reserve for
replacements, substitutions and additions to the FF&E. Such funds shall not be commingled with Operator’s other funds.
7.4. The Agency Account and the FF&E Reserve Account, shall be opened and maintained at all times in the name of Operator as agent for Owner doing business
as the “Hilton San Francisco Financial District” and shall be under the control of Operator. Notwithstanding the foregoing, checks or other documents of withdrawal may
be signed only by authorized representatives of Operator, provided that such representatives shall be bonded or otherwise insured in a manner reasonably satisfactory to
Owner. Owner shall have read-only access to the Agency Account and FF&E Reserve Account. The premiums for bonding or other insurance shall be an Operating
Expense except for premiums for bonding off-site executive employees of Operator. Operator shall prepare all bank reconciliations and do all necessary accounting with
respect to the Agency Account and the FF&E Reserve Account. Owner may review such bank reconciliations in detail at any time.
7.5. The provisions of this Article VII and any other provisions of this Agreement regarding cash management or the handling of Hotel funds (including any
reserves) are subject to, and Operator shall comply with, any requirements regarding cash management and handling of all or any portion of Total Revenues and other
Hotel funds including with respect to any reserves and any lock box or similar arrangements, of any Mortgagee, and within ten (10) days after being requested in writing
to do so, Operator will join in any commercially reasonable agreement, acknowledgement or consent with respect thereto required by any Mortgagee. Nothing in this
Section 7.5 shall negate or reduce Owner’s obligations to provide sufficient funds for operation in accordance with the other provisions of this Agreement.
ARTICLE VIII
BOOKS, RECORDS AND STATEMENTS; ANNUAL PLAN
8.1. Operator shall keep full and accurate books of account and other records reflecting all transactions of the Hotel and the results of the operation of the Hotel in
accordance with GAAP and the Uniform System with such exceptions as may be required by the provisions of this Agreement; provided, however, that Operator may,
with prior written notice to Owner, make such modifications to the methodology in the Uniform System as are consistent with Operator’s standard practice in accounting
for its operations under management contracts generally, so long as such modifications (a) do not affect the determination of the Basic Fee, the Incentive Fee, Total
Revenues, Operating Expenses or Fixed Charges, (b) are consistent with good hotel accounting practices and the requirements of this Agreement, and (c) do not impair
Owner’s ability to comply with any requirement of any laws applicable to Owner and/or the Hotel. All financial books and records for the Hotel, including, without
limitation, all books of account, invoices, financial reports and analyses, financial statements and bank account statements, shall be uploaded to an appropriate remote
electronic storage system utilized by Operator’s accounting department (the “Electronic Storage System”). Operator shall provide Owner with the necessary information
for Owner to create and establish its own user name and password for the Electronic Storage System in order to allow Owner to have remote read-only access to all data
on the Electronic Storage System without interruption on a 24-hour basis throughout the Operating Term. In addition, Operator shall prepare and provide to Owner a
daily cash management excel spreadsheet in substantially the form attached hereto as Exhibit C, subject to updates to the form as reasonably requested by Owner from
time to time. Notwithstanding the foregoing, all physical books and records (including those which may be kept in Operator’s home office or other suitable location
pursuant to the adoption of a central billing system or other centralized service, but excluding employment records other than employee census information), shall be
available to Owner and its representatives during normal business hours and at all other reasonable times, upon reasonable prior notice by Owner and its agents, for
examination, audit, inspection and transcription. Promptly upon Owner’s written request, Operator shall deliver a copy of such books and records to Owner. All books
and records including, without limitation, books of account, guest records and front office records (but excluding any employment records other than employee census
information), shall be the property of Owner and shall not be removed from the Hotel without Owner’s prior written approval, except that (i) such books and records
shall be uploaded to the Electronic Storage System and (ii) Operator shall have the right to make copies of such records and have access to the records after termination
of this Agreement. Operator shall be prohibited from using any of the guest records for the Hotel in the management, operation, advertising, marketing or promotion of
any other hotel, condominium, condo-hotel, timeshare, resort property or other transient hospitality product, provided that Operator may use guest records in connection
with its national group sales program and in accordance with the programs available pursuant to the Franchise Agreement.
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8.2.
A.
B.
C.
D.
Operator shall deliver to Owner in electronic format weekly “flash” reports.
Operator shall deliver to Owner in electronic format within fifteen (15) days after the end of each month, the Monthly Reports covering operations for
the prior month and the year-to-date through the prior month. On or before two (2) business days after the delivery of any internal financial and
operation reports concerning the Hotel, including, without limitation, month end “flash” reports, Operator shall deliver to Owner a copy of the report.
Within twenty (20) days after the end of each calendar quarter, Operator shall deliver to Owner unaudited financial statements and reports for such
quarter (the “Quarterly Operating Statements”), providing the same information as contained in the Monthly Reports, but adjusted to reflect the
applicable portion of the Fiscal Year.
Within fifteen (15) days after the end of each Fiscal Year, Operator shall deliver to Owner an unaudited annual accounting (the “Annual Operating
Statement”). The Annual Operating Statement shall provide the same information as contained in the Monthly Reports, but adjusted to reflect the
entire Fiscal Year and shall show the results of operations of the Hotel during the Fiscal Year and a computation of Total Revenues, Operating
Expenses, and Distributable Cash, if any, and any other information necessary to make the computations required hereby or which may be reasonably
requested by Owner, all for such Fiscal Year. Subject to the reconciliation set forth in Section 8.3 below, the Annual Operating Statement for any
Fiscal Year shall be controlling over the interim accountings for such year.
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E.
The Monthly Reports, the Quarterly Operating Statements and the Annual Operating Statement shall each be prepared in accordance with the
Uniform System and/or GAAP unless otherwise set forth in this Agreement. Any financial statements included in the Monthly Reports, the Quarterly
Operating Statements or the Annual Operating Statement must be accompanied by a certificate of Operator’s designated accounting officer certifying
that such statements were prepared under such officer’s supervision and that such statements were true and correct as of the date prepared.
8.3. Operator shall provide reasonable assistance to an accounting firm selected by Owner in order to permit such accounting firm to deliver to Owner annual
audited financial statements of Owner for the immediately preceding Fiscal Year. At Owner’s request and for an additional fee, Operator shall provide the SAS-70
(SSAE- SOC 16) audit to Owner. The fee to Owner shall be determined by allocating pro-rata the total fee incurred by Operator for such audit among the owners of all
hotels operated by Operator or its Affiliates that request such audit. If any audit discloses any discrepancies from the Annual Operating Statement, Owner shall notify
Operator thereon within sixty (60) days after delivery of the audited Annual Operating Statement. Except for any such discrepancies of which Owner notifies Operator
based upon the audit on or before expiration of the sixty (60) day period after delivery of the audited Annual Operating Statement, at the end of such sixty (60) day
period, the Annual Operating Statement shall be deemed to be final and binding upon the parties absent any intentional misrepresentation or concealment of information
with respect to the operation of the Hotel by Operator. Any adjustments to the Basic Fee or Incentive Fee or any other amounts paid under this Agreement required
because of the results of such audit shall be made by the parties within ten (10) business days of Operator’s receipt of written notice from Owner regarding any
discrepancies disclosed by the audit. The cost of any audit of the Annual Operating Statement shall be an Operating Expense. For the avoidance of doubt, when
determining whether there has been an overpayment of the Basic Fee and/or the Incentive Fee and/or any other amounts paid under this Agreement for any Fiscal Year,
such determination shall be based on such fees that have been paid for such Fiscal Year and the calculation by Operator of those fees to be paid by Owner pursuant to the
Annual Operating Statement for such Fiscal Year.
8.4. With respect to the first (1st) Fiscal Year, the Approved Annual Plan shall be the pro forma Approved Annual Plan attached hereto as Exhibit B. With respect to
each other Fiscal Year, on or before each November 15 during the Operating Term, Operator shall submit to Owner for Owner’s approval, a proposed Annual Plan for
the Hotel (the “Proposed Annual Plan”), which shall include for the ensuing Fiscal Year, the following proposed budgets and programs:
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A.
A proposed operating budget (the “Proposed Operating Budget”) on a monthly and yearly basis with detailed departmental schedules for each line item
and the assumptions underlying the same, including, without limitation: (a) projected occupancy and average room rates by month broken down by
room segment; (b) projected Total Revenues; (c) proposed Hotel room rates and charges for other services; (d) projected Operating Expenses of the
Hotel; (e) proposed staff scheduling and compensation (including, without limitation, any bonuses or other incentive compensation for Hotel
Employees); (f) a narrative comparison of budgeted revenue and expense levels to the previous Fiscal Year’s estimated and accrual results, highlighting
material changes for the upcoming Fiscal Year, (g) anticipated depreciation and amortization of fixed assets at the Hotel; (h) annual debt service with
respect to the Hotel; (i) projected contributions by, and distributions to, Owner as a result of Hotel operations; (j) an estimate of working capital balance
required to be maintained, as of the end of each month; (k) projected amount of reductions for accounts receivable; and (l) all other items reasonably
requested by Owner in order to provide the projected cash flow for the Hotel during such upcoming calendar year;
B.
A proposed capital budget (“Proposed Capital Budget”) setting forth Operator’s estimate of the capital expenditures to be made respecting the Hotel for
both of the following:
(I) major repairs, alternations, improvements, renewals and replacements (which repairs, alterations, improvements and renewals are not routine
maintenance, repairs and alterations referred to in Section 8.4(C)) to the structural, mechanical, electrical, heating, ventilating, air conditioning,
plumbing and vertical transportation elements of the Hotel building (“Major Capital Expenditures”); and
(II) non-routine repairs and maintenance to the Building which are normally capitalized under GAAP, such as exterior and interior repainting,
resurfacing building walls, floors, roofs and parking areas, and replacing folding walls and the like, but which are not Major Capital Expenditures.
A proposed budget (the “Proposed FF&E Budget”) setting forth Operator’s estimate of the FF&E expenditures to be made and the sources of funds for
the replacements and renewals to the Hotel’s FF&E.
A market overview of local competitive properties of the Hotel including narrative descriptions of (i) local competitive properties of the Hotel
(including the Competitive Set) including narrative descriptions and allocable costs of (x) such hotel’s national or regional or business segment
marketing plans, (y) local marketing, and (z) sales initiatives, (ii) the Hotel’s target market and the Hotel’s relative position in such market, and (iii) the
proposed room rate structures and occupancy for the target market.
A marketing plan for the Hotel including narrative descriptions and allocable costs of (i) Operator’s national or regional or business segment marketing
plans, (ii) local Hotel marketing, and (iii) intended sales initiatives.
A staffing plan describing the general staffing needs for the operation and management of the Hotel.
C.
D.
E.
F.
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The budget components of the Proposed Annual Plan shall be prepared in accordance with the Uniform System to the extent applicable and shall otherwise be prepared
in accordance with Operator’s standard financial reporting and budgeting practices. Owner shall make the final determination respecting the approval of the Proposed
Annual Plan. Owner shall notify Operator in writing of its approval or disapproval of the Proposed Annual Plan not later than thirty (30) days after Owner’s receipt of the
Proposed Annual Plan and, if Owner disapproves of the Proposed Annual Plan, Owner shall state in such notice the reasons therefor with reasonable particularity. In the
event Owner fails to notify Operator in writing of its approval or disapproval of the Proposed Annual Budget within five (5) days of Operator’s delivery to Owner of a
second notice following such thirty (30) day period, indicating in ALL CAPITAL TYPE that Owner’s failure to deliver its objection(s) to the Proposed Annual Plan as
provided in this Section 8.4 in the next five (5) days shall result in the Proposed Annual Plan becoming the Approved Annual Plan for the Fiscal Year to which it relates,
then such Proposed Annual Plan shall be deemed approved by Owner and shall be deemed the Approved Annual Plan for the Fiscal Year to which it relates.
If any item or items contained in the Proposed Annual Plan are disapproved by Owner in writing, Operator shall submit to Owner a new Proposed Annual Plan or
appropriate portion thereof within fifteen (15) days following Operator’s receipt of Owner’s written notice of disapproval. If any item contained in the revised Proposed
Annual Plan is then disapproved by Owner in writing within fifteen (15) days thereafter, Operator shall submit to Owner a further revised Proposed Annual Plan or
appropriate portion thereof within fifteen (15) days following Operator’s receipt of Owner’s written notice of disapproval of the revised Proposed Annual Plan.
8.5. In the event Operator and Owner are unable to agree on the Proposed Annual Plan (including all revised versions thereof) prior to January 31st of the Fiscal
Year to which such Proposed Annual Plan relates, the dispute shall be resolved by an independent internationally recognized hotel consultant, selected and retained
jointly by Owner and Operator, which consultant (a) shall have not fewer than ten (10) years of experience in the hotel business; (b) shall not be an Affiliate or a person
who has any past, present, or currently contemplated future business or personal relationship with either Owner or Operator; and (c) whose compensation is not fixed
based upon the results of the issue at dispute (the “Industry Expert”). Until the Proposed Annual Plan is approved in writing by Owner, Operator shall (i) operate the
Hotel in accordance with those items of the Proposed Annual Plan which are not in dispute, and (ii) with regard to such items that are in dispute, Operator shall operate
the Hotel consistent with the most recent Approved Annual Plan until such dispute is resolved, except for, or as modified by, (x) an adjustment to the disputed items so as
to increase (but not decrease) disputed expense items by the same percentage as any percentage increase in the CPI, from the CPI in effect on the first day of the first
month of the Fiscal Year applicable to such last Approved Annual Plan to the CPI in effect on the first day of the first month of the Fiscal Year applicable to the disputed
Proposed Annual Plan, (y) Necessary Expenses which shall be paid as required, and (z) Emergency Expenses which shall be paid as required. Upon the Owner’s
approval of the Proposed Annual Plan or the resolution of any dispute in connection therewith, the Proposed Annual Plan shall be deemed to be the “Approved Annual
Plan”, the Proposed Operating Budget shall be deemed to be the “Operating Budget”, the Proposed Capital Budget shall be deemed to be the “Capital Budget”, and the
Proposed FF&E Budget shall be deemed to be the “FF&E Budget”.
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8.6. Upon approval of the Proposed Annual Plan by Owner, Operator shall use diligent and commercially reasonable efforts to operate the Hotel substantially in
accordance with the Approved Annual Plan. Operator shall not, without Owner’s prior written approval, which approval may be withheld in Owner’s sole and absolute
discretion, materially deviate from the then applicable Approved Annual Plan or:
A.
B.
Incur any expense for any line-item in the Operating Budget which causes (i) the aggregate expenditures for such line item to exceed the budgeted
amount by the greater of (x) 10% or (y) $10,000 or (ii) the Operating Budget to be exceeded by more than 10% in the aggregate, in each case for the
applicable fiscal period set forth in the Operating Budget, provided that Operator may at Owner’s cost and expense, without Owner’s approval pay
any (1) Necessary Expenses, and/or (2) Emergency Expenses.
Incur any expense for any line-item in the Capital Budget which causes (i) the aggregate expenditures for such departmental category to exceed the
budgeted amount by the greater of (x) 10% or (y) $10,000 or (ii) the Capital Budget to be exceeded by more than 5% in the aggregate, in each case
for the applicable fiscal period set forth in the Capital Budget, provided that Operator may, without Owner’s approval, pay any Emergency Expenses
which are capital in nature up to a cap of $50,000 in any Fiscal Year.
8.7. Subject to Operator’s obligation to operate the Hotel in Owner’s best interest, if Operating Expenses increase as a result of (a) occupancy (based on guests
paying the then market room rates), or (b) the volume of the overall business of the Hotel (“Business Opportunities”) that were not contemplated in the Approved Annual
Plan, permitted Operating Expenses shall be equitably adjusted upward to reflect the increased Operating Expenses for the period of time that the Business Opportunities
exist (“Opportunity Costs”). Any dispute with respect to the Business Opportunities or Opportunity Costs shall be resolved by an Industry Expert.
8.8. In entering into this Agreement, each of Operator and Owner acknowledges that neither Operator nor Owner has made any representation to the other regarding
projected earnings, the possibility of future success or any other similar matter respecting the Hotel, and that Operator and Owner understand that no guarantee is made to
the other as to any specific amount of income to be received by Operator or Owner or as to the future financial success of the Hotel. Operator is not warranting or
guaranteeing in any respect that the actual operating results of the Hotel during the period covered by the then applicable Approved Annual Plan will not materially vary
from the then applicable Approved Annual Plan.
8.8. Any reference to compliance with the Approved Annual Plan or subject to the Approved Annual Plan or similar phrases in this Agreement shall include all
variances to the Annual Plan expressly permitted pursuant to the terms of Section 8.6.
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ARTICLE IX
MANAGEMENT FEES
AND PAYMENTS TO OPERATOR AND OWNER
9.1. Owner shall pay to Operator, on a monthly basis, a Basic Fee equal to one and seven-tenths percent (1.70%) of Total Revenues for services rendered under this
Agreement commencing on the Takeover Date and continuing through the remainder of the Operating Term.
9.2. In addition to the Basic Fee, Owner shall pay to Operator, on a monthly basis, a fee equal to two thousand five hundred ($2,500) per month (the “Centralized
Accounting Services Fee”), or a pro-rata percentage for any partial month, commencing on the Takeover Date and continuing through the remainder of the Operating
Term and for three (3) months after the termination of this Agreement. The Centralized Accounting Services Fee shall be increased (but not decreased) annually on the
first day of each succeeding Fiscal Year by the same percentage as any percentage increase in the CPI from the first day of the prior Fiscal Year through the first day of
such succeeding Fiscal Year.
9.3. Beginning on the first (1st) anniversary of the Takeover Date (i.e., beginning on the commencement of the second Fiscal Year) and in addition to the Basic Fee
and the Centralized Accounting Services Fee, Operator shall be entitled to an Incentive Fee for each Fiscal Year (or any partial Fiscal Year at the beginning or at the end
of the Operating Term) equal to ten percent (10%) of the amount by which Gross Operating Profit in the current Fiscal Year (or the pro-rated portion thereof) exceeds the
previous Fiscal Year’s Gross Operating Profit or the pro-rated portion thereof). The Incentive Fee will be due and payable to Operator on an annual basis within thirty
(30) days following Owner’s receipt, review and approval of the Annual Operating Statement for the applicable Fiscal Year in accordance with Sections 8.2 and 8.3.
9.4. In each month during the Operating Term, Operator shall be paid out of the Agency Account the following payments for the preceding month: (a) the Basic
Fee, (b) the Centralized Accounting Services Fee, (c) any expenses for Centralized Services, and (d) any expense reimbursements due to Operator, as determined from
the monthly income and expense statement, which expense reimbursement for avoidance of doubt shall not include Operator’s Expenses. Such payment shall, be due and
made upon delivery of the income and expense statement for such month and shall be deducted by Operator out of the Agency Account.
9.5. On or before the twentieth (20th) day following the last day of each calendar quarter (or such other fiscal period as Owner and Operator may determine) of each
Fiscal Year during the Operating Term, after (a) payment of Operating Expenses, Fixed Charges and, to the extent the same are to be paid by Operator under this
Agreement, Owner Expenses, (b) deposits to the FF&E Reserve Account in accordance with the FF&E Budget, (c) any required payment to Operator pursuant to Section
9.6 below and (d) retention of working capital sufficient in the reasonable opinion of Operator to assure the uninterrupted and efficient operation of the Hotel as required
under Section 7.1 above, all remaining funds in the Agency Account shall be paid to Owner (such funds, “Distributable Cash”).
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9.6. At the end of each Fiscal Year and following receipt and approval by Owner of the Annual Operating Statement, an adjustment to the Basic Fee and Incentive
Fee will be made, if necessary in accordance with Section 8.3 above.
9.7. Owner shall be liable for and shall pay Operator for any applicable sales, use, excise consumption or similar taxes that are payable to any taxing jurisdiction
with respect to any fees, reimbursements or other amounts due to Operator under this Agreement to ensure that the net amount of such fees, reimbursements or other
amounts received by Operator shall be equal to the full amount that Operator would have otherwise received if no such taxes applied to such amounts. This Section 9.7
does not apply to federal or state income taxes payable by Operator as a result of its gross or net income relating to any fees collected under this Agreement.
9.8. Operator shall not charge a fee to or require reimbursement of any expense from Owner relating to standard Operator transition or start-up expenses (including
costs for Payment Card Industry (PCI) compliance) incurred by Operator strictly related to Operator’s commencement of management of the Hotel on the Takeover Date,
until the total of such fees and expenses exceeds one hundred fifty thousand dollars ($150,000), at which point Owner shall be fully liable for such fees and costs. For the
avoidance of doubt, Owner is liable for any transition costs relating to the liquor license or other licenses held for the Hotel.
ARTICLE X
INTENTIONALLY RESERVED
ARTICLE XI
FF&E RESERVE
11.1. During each Fiscal Year there shall be allocated and paid on a monthly basis to the FF&E Reserve Account from Total Revenues an amount equal to four
percent (4%) of Total Revenues for such Fiscal Year. Notwithstanding the foregoing, Operator agrees that to the extent a Mortgagee requires Owner to cause a portion of
Total Revenues to be maintained in a separate FF&E reserve account or equivalent thereof (“Lender Reserve Account”), the sums held in the Lender Reserve Account
will be included in determining the amount of Total Revenues necessary to be deposited in the FF&E Reserve Account in accordance with the terms hereof.
11.2. All funds in the FF&E Reserve Account, together with any interest earned thereon shall be used solely for purposes of replacing, substituting, adding to or
refurbishing the FF&E in accordance with the applicable portion of the Approved Annual Plan. Any funds remaining in the FF&E Reserve Account at the end of a Fiscal
Year shall be carried forward to the next Fiscal Year.
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ARTICLE XII
INSURANCE
12.1. The following insurance with respect to the Hotel, to the extent such insurance is commercially available, shall be obtained by Operator and maintained
throughout the Operating Term at Owner’s sole cost and expense provided, however, Owner may elect, at the beginning of the Operating Term or no more than once per
year during the Operating Term, so long as such election is at least sixty (60) days prior to any then-current policy renewal, to provide such insurance upon written notice
to Operator and delivery of certificates of insurance acceptable to Operator:
A.
B.
C.
D.
E.
insurance covering the Building, the Installations and the FF&E on an special peril broad form basis, against such risks as are customarily covered by
such insurance (including, without limitation, boiler and machinery insurance, but excluding damage resulting from earthquake, war, and nuclear
energy), in aggregate amounts which shall be not less than the full replacement cost of the Building, the Installations and the FF&E (exclusive of
foundations, footings and land);
commercial general liability insurance with a combined single limit of not less than $1,000,000 for each occurrence and $2,000,000 per location
aggregate including the following coverages: (i) bodily injury including sickness and disease, (ii) death, (iii) property damage, (iv) assault and
battery, (v) mental anguish as a result of bodily injury, (vi) sexual assault, (vii) personal and advertising injury including false arrest, false
imprisonment, unlawful detention, malicious prosecution, libel, slander or violation of the right of privacy, (viii) wrongful entry or eviction, (ix)
liquor liability (if the Hotel sells, serves or furnishes alcoholic beverages) and host liquor liability if the sale or service of alcohol is provided by a
third party, (x) innkeeper’s liability, (xi) contractual liability, (xii) independent contractors, (xiii) premises and operation, (xiv) products and
completed operations, and (xv) pollution coverage for liability arising out of heat, smoke or fumes from a hostile fire vapor or soot produced by or
originating from equipment that it utilized by HVAC equipment and bacteria, fungi, carbon monoxide or pool chemicals.;
umbrella excess liability insurance with a $50,000,000 per occurrence and per location limit applying on an excess and follow form basis over the
commercial general liability and auto liability insurance coverages;
business interruption insurance covering loss of income for a minimum period of eighteen (18) months resulting from interruption of business
resulting from physical damage caused by the occurrence of any of the risks affecting the Hotel insured against under “special perils” policy referred
to in Sections 12.1 (A), (E) and (F);
if the Hotel is located within an area designated “high hazard flood zone” pursuant to the Federal Emergency Management Agency, as the same may
be amended from time to time, flood insurance in such amount as Owner may reasonably require;
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F.
G.
H.
business automobile liability insurance with limits of $1,000,000 insuring against damage due to bodily injury, death of any person or property
damage arising out of the ownership, maintenance or use of any motor vehicles, whether owned, non-owned, hired or leased, in connection with
Hotel operations and garage-keeper’s liability if the Operator provides parking services for guest vehicles;
earthquake insurance if the Hotel is located in an “earthquake zone” as determined by the U.S. Geological Survey in reasonable amount for a hotel of
this type in the geographic area; and
Such other or additional insurance as may be (i) required under the provisions of any applicable Major Agreement (provided Operator has been given
detailed written notice of such requirements) or (ii) requested by Owner in writing and customarily carried by prudent operators of similar service
level hotels in the geographic area of the Hotel.
12.2. Operator shall obtain the following insurance with respect to the Hotel employees and shall maintain such insurance during the Operating Term of this
Agreement at Owner’s sole cost and expense:
A.
B.
worker’s compensation insurance not less than amounts prescribed by applicable state law and employers liability coverage having a minimum per
occurrence limit of $1,000,000 per accident/disease;
crime insurance, in such amounts and with such deductibles that are commercially available and economically feasible, covering Operator’s
employees at the Hotel (other than executive employees of Operator) or in job classifications normally insured in other hotels it manages in the
United States or otherwise required by law; and
C.
Employment Insurance with reasonable limits and commercially available and economically feasible deductibles.
12.3. All insurance policies shall name Operator as the insured party and shall name as additional insureds Owner and such other parties as may be required by the
terms of the Major Agreements as appropriate. Owner understands that coverage afforded the Owner as an additional insured is solely for liability arising out of
Operator’s activities performed by Operator by or on behalf of Owner and that it may be necessary for Owner to purchase separate policies to cover Owner activities not
performed by or on behalf of Operator. In the event that Owner shall obtain any insurance as required under Section 12.1 of this Agreement, other than through the
program established by Operator, such insurance policy shall name Operator, Interstate Hotels & Resorts, Inc., its subsidiaries and employees as an additional insured by
endorsement and Owner’s coverage will be primary and noncontributory to coverage carried by the Operator.
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12.4. All insurance policies shall be in such form and with such companies having an A.M. Best’s Rating of A- XV or better and provided Owner has given Operator
detailed written notice of such requirements, shall comply with the requirements of any Major Agreement. Insurance may be provided under blanket or master policies
covering one or more other hotels operated by Operator or owned by Owner. The portion of the premium for any blanket or master policy which is allocated to the Hotel
as an Operating Expense or Fixed Charge shall be determined in an equitable manner by Operator and reasonably approved by Owner and paid out of the Agency
Account or, if the funds therein are insufficient, by Owner upon demand therefor by Operator. Such amount shall be determined by a suitable and customary formula
applying the specific hotel exposures against appropriate rates to determine the premium allocation for the Hotel.
12.5. All insurance policies shall specify that they cannot be canceled or materially modified on less than twenty (20) days prior written notice to both Owner and
Operator and any additional insureds (or such longer period as may be required under a Major Agreement, provided that Operator has been advised in writing of such
period) and shall provide that claims shall be paid notwithstanding any act or negligence of Owner, or Operator unilaterally or on behalf of Owner, including without
limitation their respective agents or employees.
12.6. All insurance policies shall provide, to the extent customarily obtainable from the insurance company providing such insurance, that the insurance company will
have no right of subrogation against Owner, Operator any party to a Major Agreement or any of their respective agents, employees, partners, members, officers, directors
or beneficial owners.
12.7. Owner and Operator hereby release one another from any and all liability, to the extent of the waivers of subrogation obtained under Section 12.6, associated
with any damage, loss or liability with respect to which property insurance coverage is provided pursuant to this Article or otherwise.
12.8. The proceeds of any insurance claim (other than proceeds payable to third parties under the terms of the applicable policy) shall be paid into the Agency
Account to the extent of Owner’s interest therein unless otherwise required by the terms of a Major Agreement.
12.9. Operator shall have the right to pay for, or reimburse itself for, insurance required under this Article XII out of the Agency Account. Notwithstanding anything
to the contrary set forth in this Agreement, Operator shall have no obligation to obtain or maintain any insurance set forth in this Article if funds from Total Revenues or
funds otherwise provided by Owner are not made available to Operator to purchase the same.
12.10. Subject to the provisions of the Approved Annual Plan, Operator may act, directly or indirectly, in a brokerage capacity with respect to the insurance required
under this Article or as a direct insurer or reinsurer with respect to the same.
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ARTICLE XIII
PROPERTY TAXES
13.1. If requested by Owner and provided that funds from Total Revenues or funds otherwise provided by Owner are available, Operator shall (a) pay or shall cause
to be paid all Property Taxes on behalf of Owner not less than ten (10) days prior to the applicable due dates and (b) furnish to Owner, before the respective dates on
which Property Taxes will become delinquent, proof of payment thereof, in accordance with applicable laws and in form satisfactory to Owner, Operator shall promptly
furnish Owner with proof of payment of Property Taxes.
13.2. Owner may initiate a Tax Contest, and if requested by Owner, Operator agrees to cooperate with Owner in a Tax Contest and execute any documents or
pleadings required for such purpose, provided that the facts set forth in such documents or pleadings are accurate and that such cooperation or execution does not impose
any liability on Operator. All costs and expenses incurred by Owner and Operator in connection with a Tax Contest shall be Fixed Charges.
ARTICLE XIV
REPAIRS AND MAINTENANCE AND CAPITAL EXPENDITURES
14.1. Subject to the then applicable Approved Annual Plan and Owner’s provision of the required working capital pursuant to Section 7.1, Operator shall from time to
time make such repairs and maintenance (other than Major Capital Expenditures) as are required to maintain the Hotel in a manner to allow the Hotel to meet the
physical elements of the Standard.
14.2. Owner shall maintain the Hotel in accordance with the Standard and shall approve, in the Proposed Annual Plan or an amendment to any Approved Annual
Plan, any Major Capital Expenditures proposed by Operator which are required to maintain the Hotel in accordance with the Standard. Operator shall not make any
Major Capital Expenditure without Owner’s prior written approval even if such Major Capital Expenditure is contemplated in the then applicable Approved Annual Plan
and Operator shall provide details and documentation requested by Owner in connection therewith in order for Owner to make such approval determination.
Notwithstanding anything herein to the contrary, Owner may, at its option, make any Major Capital Expenditure without the consent of Operator.
14.3. If Owner directly performs or contracts for repair, maintenance, refurbishing, construction or renovations at the Hotel, Owner must coordinate, and require its
contractors and subcontractors to coordinate, with Operator including, but not limited to, causing any Owner employees, contractors or subcontractors to comply with
safety and security rules of the Hotel and communicate on a regular basis the activities being performed at the Hotel to assure the health, safety and efficient operation of
the Hotel and its guests and employees. Owner shall use commercially reasonably efforts to comply with all laws, obtain all necessary permits and shall provide Operator
copies of any permits prior to commencement of any such activities.
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ARTICLE XV
OWNER COVENANTS AND REPRESENTATIONS
15.1. Owner represents, warrants and covenants that it holds good and marketable fee title to the Hotel and that it will maintain good and marketable fee title to the
Hotel free of any and all liens, encumbrances or other charges except for easements or encumbrances that do not adversely affect the operation of the Hotel, mortgages or
liens for taxes, assessment levies or other public charges not yet due or payable.
15.2. Owner represents, warrants and covenants that neither it, nor any of its Affiliates (or any of their respective principals, partners or funding sources), is, nor will
become (a) a person designated by the U.S. Department of Treasury’s Office of Foreign Asset Control as a “specially designated national or blocked person” or similar
status, (b) a person described in Section 1 of U.S. Executive Order 13224 issued on September 23, 2001; (c) a person otherwise identified by a government or legal
authority as a person with whom Owner or Operator is prohibited from transacting business; (d) directly or indirectly owned or controlled by the government of any
country that is subject to an embargo by the United States government; or (e) a person acting on behalf of a government of any country that is subject to an embargo by
the United States government. Owner agrees that it will notify Operator in writing immediately upon the occurrence of any event which would render the foregoing
representations and warranties contained in this Section 15.2 incorrect.
15.3. Owner represents, warrants and covenants: (a) that it is familiar with the FCPA, and the purposes of the FCPA, and in particular, the FCPA’s prohibition of the
payment or the gift of any item of value, either directly or indirectly, by a company organized under the laws of the United States of America, or any of its states, to an
official of a foreign government for the purpose of influencing an act or decision in such person’s official capacity, or inducing such person to use influence with the
foreign government to assist a company in obtaining or retaining business for, with, or in that foreign country or directing business to any person or company or
obtaining an improper advantage, and (b) that it has not taken, and during the Operating Term of this Agreement it will not take, any action that would constitute a
violation of the FCPA or any similar law.
15.4. Owner represents, warrants and covenants that to its knowledge it is in compliance in all material respects with all Major Agreements, that Owner has not
received any written notice of breach of any of currently effective Major Agreements and that Owner will continue to comply in all material respects with all Major
Agreements during the Operating Term of this Agreement. Owner agrees to promptly provide to Operator copies of any written notice of default or breach received under
any Major Agreement.
ARTICLE XVI
DAMAGE OR DESTRUCTION; CONDEMNATION
16.1. If the Hotel is damaged by fire or other casualty, Operator shall promptly notify Owner. This Agreement shall remain in full force and effect subsequent to such
casualty provided that either party may terminate this Agreement upon thirty days’ prior written notice to the other party if (a) Owner shall elect to close the Hotel as a
result of such casualty (except on a temporary basis for repairs or restoration) or (b) Owner shall determine in good faith not to proceed with the restoration of the Hotel;
provided further, Operator may terminate this Agreement upon thirty days’ prior written notice to Owner if forty percent (40%) or more of the rooms in the Hotel are
unavailable for rental for a period of one hundred eighty (180) days or more as a result of such casualty.
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16.2. If all or any portion of the Hotel becomes the subject of a condemnation proceeding or if Operator learns that any such proceeding may be commenced,
Operator shall promptly notify Owner upon Operator’s receipt of written notice thereof. Either party may terminate this Agreement on thirty (30) days’ notice to the other
party if (a) all or substantially all of the Hotel is taken through condemnation or (b) less than all or substantially all of the Hotel is taken, but, in the reasonable judgment
of the party giving the termination notice, the Hotel cannot, after giving effect to any restoration as might be reasonably accomplished through available funds from the
condemnation award, be profitably operated in accordance with the Standard.
16.3. Any condemnation award or similar compensation shall be the property of Owner, provided that Operator shall have the right to bring a separate proceeding
against the condemning authority for any damages and expenses specifically incurred by Operator as a result of such condemnation.
17.1. Each of the following shall constitute an event of default (“Event of Default”):
ARTICLE XVII
EVENTS OF DEFAULT
A.
B.
C.
D.
If Owner shall fail to provide funding in accordance with Section 7.1, and such default continues for a period of five (5) business days after written
notice from the Operator;
In addition to the Event of Default described in Section 17.(a) above, if either party shall be in default in the payment of any amount required to be paid
under the terms of this Agreement, and such default continues for a period of ten (10) days after written notice from the other party;
If either party is in Material Default hereunder (with the exception of any such failure constituting an Event of Default under any other subsection of
this Section 17.1), and such Material Default continues for a period of fifteen (15) days after written notice from the other party; provided that in case of
a Material Default that poses an imminent threat to the health and safety of the Hotel Employees or guests, the non-defaulting party may terminate this
Agreement upon written notice if such default is not cured within three (3) business days following receipt of written notice thereof from the non-
defaulting party;
If either party shall (i) make an assignment for the benefit of creditors, (ii) institute any proceeding seeking relief under any federal or state bankruptcy
or insolvency laws, (iii) institute any proceeding seeking the appointment of a receiver, trustee, custodian or similar official for its business or assets or
(iv) consent to the institution against it of any Involuntary Proceeding;
27
E.
F.
G.
H.
I.
J.
K.
If an Involuntary Proceeding shall be commenced against either party and shall remain undismissed for a period of sixty (60) days;
If Owner violates Sections 15.2 or 15.33 hereof, in which case Operator may terminate this Agreement immediately;
An assignment by Operator in violation of the provisions of Article XIX;
The failure of Operator to deliver to Owner on or before three (3) business days after the date when due any financial report or statement required to be
delivered to Owner under this Agreement, and such failure continues for a period of three (3) business days after written notice thereof from Owner;
The failure of Operator to execute and deliver any commercially reasonable instrument requested by Owner to effectuate or evidence the subordination
of Operator’s rights hereunder or any estoppels certificate under Article XXI of this Agreement; provided that Operator shall have five (5) business
days after the receipt of written notice of such default to cure; or
If any act is committed by corporate executive personnel of Operator which constitutes fraud, theft, embezzlement or any gross misdemeanor or greater
crime or any similar criminal act involving dishonesty (which, for the avoidance of doubt, would include any acts committed which constitute fraud,
theft, embezzlement or any gross misdemeanor or greater crime or any similar criminal act involving dishonesty of Operator’s corporate executive
personnel in the supervision and training of all Hotel Employees) in the course of performing his or her duties on behalf of Operator with respect to the
Hotel; provided, however, that if, and only if, any of the foregoing acts or events are committed (a) by corporate executive personnel of Operator who
are not corporate executives of Operator with the responsibilities of an executive vice president or higher and (b) without the actual prior knowledge of
any person who controls Operator, such act or event committed by such corporate executive may be cured by Operator if, within ten (10) Business
Days after being notified in writing of the occurrence of such act or event, Operator makes full restitution to Owner of any and all damages caused by,
or resulting from, such act or event (less any portion of such damages which has been recovered) and promptly takes all appropriate actions necessary
to remediate the situation and protect the interests of Owner and the Hotel.
If, because of any wrongful act or omission on the part of Operator, (A) a written notice of default shall be issued under the Franchise Agreement
which may, if uncured, permit the Franchise Agreement to be terminated (a “Franchise Agreement Default”) and (B) Operator fails to take corrective
action to cure such default within any applicable notice or grace period or otherwise within sufficient time to avoid such termination (for the avoidance
of doubt, a wrongful act or omission on the part of Operator shall not include an act or omission which was due to Owner’s failure to provide sufficient
funds in accordance with the terms of this Agreement).
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17.2. Unless otherwise stated in Section 17.1 hereof, if any event of default shall occur, the non-defaulting party may terminate this Agreement on five (5) days prior
written notice to the defaulting party.
17.3. The right of termination set forth in Section 17.2 shall not be in substitution for, but shall be in addition to, any and all rights and remedies for breach of contract
available in law or at equity.
17.4. Neither party shall be deemed to be in default of its obligations under this Agreement if, and to the extent that, such party is unable to perform such obligation
as a direct result of earthquakes, hurricanes, floods, fires, or other casualties, strike or other labor unrest not involving Hotel Employees, takings, war, terrorist acts, riot
or other civil commotion (which shall not include the inability of such party to meet its financial obligations or an adverse change in general economic or market
conditions, unless such adverse change is the result of one of the foregoing events). The foregoing list of events and circumstances is exclusive and not merely a list of
examples.
17.5. Each of the parties hereto irrevocably waives any right such party may have against the other party hereto at law, in equity or otherwise to any consequential
damages, punitive damages or exemplary damages.
ARTICLE XVIII
TERMINATION OF AGREEMENT
18.1. Provided Owner gives Operator forty-five (45) days’ prior written notice, Owner may terminate this Agreement effective as of and conditioned upon the closing
of the sale of the Hotel to a bona fide third-party purchaser who is not an Affiliate of Owner without any termination fee or penalty being due to Operator (other than
amounts accrued prior to the effective date of termination as set forth in Section 18.9).
18.2. Beginning on the second (2nd) anniversary of the Takeover Date and upon at least sixty (60) days’ written notice to Operator, Owner may terminate this
Agreement, without cause and without any termination fee or penalty being due to Operator (other than amounts accrued prior to the effective date of termination as set
forth in Section 18.9).
18.3.
A.
Beginning on the second (2nd) anniversary of the Takeover Date (such that the first “testing year” commencing on the first day of the third year after
the Takeover Date) and upon at least sixty (60) days’ written notice to Operator, Owner may terminate this Agreement without any termination fee or
penalty being due to Operator (other than amounts accrued prior to the effective date of termination as set forth in Section 18.9), in the event that the
operations of the Hotel fail both of the following performance tests in any Fiscal Year, which shall be deemed a “Performance Failure”:
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(I)
the Gross Operating Profit for any Fiscal Year is less than ninety percent (90%) of the Gross Operating Profit set forth in the Approved Annual
Plan for such Fiscal Year (without regard to any amendments or changes to such Approved Annual Plan, whether Owner’s approval thereof is
either required or obtained), and
(II)
the RevPAR Index is less than 90% (the “RevPAR Test”).
In the event of a Performance Failure, Owner only shall be permitted to exercise its termination right under this Section 18.3 during the ninety (90) day
period following Owner’s receipt of the Monthly Reports (as described in Section 8.2) for the last month of the Fiscal Year in which such Performance
Failure occurred. Notwithstanding the foregoing, if within thirty (30) days after receipt of the notice to terminate due to a Performance Failure,
Operator pays Owner an amount equal to the difference between (x) actual Gross Operating Profit and (y) budgeted Gross Operating Profit set forth in
the Approved Annual Plan for the Fiscal Year that gave rise to the Performance Failure under this Section 18.3, then such Performance Failure shall be
deemed fully cured by Operator, such that the notice to terminate due to a Performance Failure is automatically deemed rescinded and no basis for a
Performance Failure shall be deemed to exist; provided that Operator may only cure a Performance Failure twice during the Operating Term.
B.
C.
Notwithstanding anything to the contrary contained in this Agreement, if at any time after the Takeover Date: (i) a hotel in the then existing
Competitive Set is no longer operating at a level substantially equivalent to the higher of (x) the Standard; or (y) as of the date hereof, (ii) information
with respect to a hotel in the then existing Competitive Set is no longer available through the Smith Travel Research; and/or (iii) a material change to a
hotel in the then existing Competitive Set occurs, including the cessation of operation of a hotel or a change to the standards of operation of a hotel,
then either party may request that the other party consent to the removal and replacement of such hotel in the Competitive Set.
In the event that the removal of a hotel from the Competitive Set is requested by either party and the other party consents to such removal, Owner and
Operator, each acting reasonably, shall endeavor to agree upon one or more replacement hotels to be included in the Competitive Set that consist of
hotels in the Hotel’s immediate market area that are most comparable to the Hotel in quality, price and market position (with due consideration given to
location, age, quality, size, amenities, amount of meeting space and business mix); provided that: (i) any replacement hotel must have been in operation
for at least five full years; (ii) the Competitive Set includes at least four hotels and no more than six hotels, and (iii) a single hotel in the Competitive
Set does not account for more than 30% of the total guest rooms of all hotels included in the Competitive Set (the “Replacement Hotel Requirements”).
If the parties are unable to reach agreement as to: (x) whether a hotel should be removed from the Competitive Set, and/or (y) which hotels are to be
included in the Competitive Set, either party may submit the matter to the Industry Expert for resolution.
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D.
E.
In connection with the removal of a hotel from the Competitive Set or the selection of a replacement hotel or hotels for the Competitive Set, either party
may also request that the RevPAR Test be modified to account for the changes to the Competitive Set. If the parties are unable to reach agreement as to
a modification of the RevPAR Test, either party may request that the Industry Expert resolve such dispute, concurrently with the resolution of whether a
hotel should be removed from the Competitive Set and/or which hotels are to be included in the Competitive Set.
In the event a hotel or hotels are removed from the Competitive Set pursuant to the procedure set forth in this Section 18.3, and the parties determine
that the immediate market area does not include a replacement hotel which meets the Replacement Hotel Requirements, either party may propose: (i) a
replacement hotel which does not meet the Replacement Hotel Requirements for the other party’s consideration; and (ii) in connection with such
proposal, a modification to the RevPAR Test to account for the changes to the Competitive Set that result from the addition of a hotel which does not
meet the Replacement Hotel Requirements. If the parties are unable to reach agreement as to: (x) the inclusion of a hotel which does not meet the
Replacement Hotel Requirements, and/or (y) a modification to the RevPAR Test in connection therewith, either party may submit the matter to the
Industry Expert for resolution.
F.
The Competitive Set shall be reviewed and amended as requested under this Section 18.3 and as part of the approval of the then applicable Proposed
Annual Plan.
18.4. Operator and Owner agree that upon termination, there may be certain adjustments to the final accounting for which information may not be available at the
time of the final accounting and the parties agree to readjust such amounts and make the required cash adjustments when such information becomes available; provided,
however, but subject to the provisions of Article XXII hereof, all accounts shall be deemed final one (1) year after termination of the Agreement.
18.5. No later than ninety (90) days following the termination of this Agreement Operator shall transfer to Owner all remaining amounts in the Agency Account and
the FF&E Reserve Account.
18.6. Following termination of this Agreement, Operator shall transfer to Owner all books and records (excluding employment records other than (i) employee census
information and (ii) union employee records that must remain at the Hotel) with respect to the Hotel following termination of this Agreement.
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18.7. To the extent permitted by applicable laws, upon termination of this Agreement for any reason Operator shall use reasonable efforts to assist Owner in
assigning any contracts, permits or licenses (including restaurant and liquor licenses) to Owner or the subsequent manager or owner and. shall use reasonable efforts to
obtain all consents necessary therefor; provided that (a) Owner shall give Operator sufficient time to effect such transfers; (b) Owner shall cooperate and require that the
new manager and/or owner to cooperate, with Operator with respect to such transfers; (c) Owner shall pay or reimburse any costs or expenses, including reasonable
attorney fees, incurred by Operator in connection with these efforts.
18.8.
A.
B.
C.
All intellectual technology or intellectual property, including any software or systems, used on a system wide basis at Operator’s properties shall
remain the exclusive property of Operator (“Operator IP”). Upon termination of this Agreement for any reason Operator shall have the right to remove
such Operator IP, and remove Owner’s access to any proprietary systems related to such Operator IP without compensation to Owner. Owner assumes
all liability if Owner uses illegally licensed software that constitutes Operator IP. Notwithstanding the foregoing, upon termination of this Agreement
for any reason, Operator shall provide to Owner a copy of all data and information relating to the operation of the Hotel during the twelve (12) months
immediately preceding the termination date and the right to copy such data and information, but not the Operator IP itself.
Operator shall cause any intellectual technology or intellectual property, including any software or systems, specific to the Hotel itself, (“Owner IP”) to
be in the name of Owner in order that such Owner IP shall be owned, licensed and proprietary to Owner. The Owner IP shall remain the exclusive
property of Owner and upon termination, Operator shall have no right to remove such Owner IP or remove Owner’s access to any system related to
such Owner IP. Operator assumes all liability if Operator uses illegally licensed software that constitutes Owner IP.
All hardware or other software equipment installed at the Hotel (excluding leased equipment) shall remain the exclusive property of Owner and upon
termination, Operator shall have no right to remove such non-leased hardware or equipment.
18.9. If this Agreement is terminated for any reason, a Termination Reserve shall be established to (i) reimburse Operator for all costs and expenses incurred by
Operator in terminating its employees at the Hotel (such as severance pay, unemployment compensation, employment relocation, earned and accrued vacation pay, bonus
accruals, estimated tax payments and any other employee liability costs arising out of termination of employment of Operator’s employees at the Hotel), but specifically
excluding withdrawal liability from any applicable Union (which is addressed in Section 4.2 of this Agreement); (ii) pay outstanding accounts payable for liabilities and
obligations incurred during the Operating Term; and (iii) make any required adjustments as described in Section 18.4 hereof. On or before the effective date of
termination, Operator shall provide Owner an estimate of such costs and expenses, based on known liabilities with reasonable evidence to substantiate this estimate for
review and mutual reasonable approval by the parties.
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18.10. Upon termination of this Agreement for any reason during, or at the end of, the Operating Term of this Agreement, (a) Operator and Owner agree to sign any
documents reasonably necessary to effect such termination or change in management for the Hotel, (b) Owner shall pay to Operator all Basic Fees, Centralized Services
Fees, Incentive Fees, reimbursable expenses and other amounts due under this Agreement through the effective date of termination, including, if applicable, the
Unamortized Key Money in accordance with Section 3.7, and (c) Operator shall pay to Owner any amounts due and owing to Owner under this Agreement. For
avoidance of doubt, the Unamortized Key Money shall not be payable if this Agreement is terminated as a result of an Operator Event of Default.
18.11. Upon termination of this Agreement for any reason, subject to Owner performing its obligations with respect to the termination, Operator shall peaceably and
quietly surrender and deliver up to Owner possession of the Hotel in accordance with its obligations contained herein, with the specific intent to effectuate a smooth
transition of management of the Hotel to Owner or a third party so as to minimize any potential disturbance of guests.
ARTICLE XIX
ASSIGNMENT
19.1. Operator shall not assign or pledge this Agreement without the prior written consent of Owner; provided that, Operator may, without the consent of Owner,
assign this Agreement to (a) any entity controlling, controlled by or under common control with Operator (control being deemed to mean the ownership of fifty percent
(50%) or more of the stock or other beneficial interest in such entity and/or the irrevocable power to direct the day-to-day and long-term operations and policies of such
entity); (b) any entity which is the successor by merger, consolidation or reorganization of Operator or Operator’s general partner, managing member or parent
corporation or (c) the purchaser of all or substantially all of the hotel management business of Operator or Operator’s general partner, managing member or parent
corporation. Should Operator assign this Agreement under subsection (a), (b) or (c) above, Owner agrees to attorn to the assignee. Nothing in this Agreement shall
prohibit or be deemed to prohibit any pledge by Operator of the Basic Fee, Incentive Fee or any other amounts received by Operator under this Agreement to any
institutional lender as collateral security for debt of Operator and/or Operator’s Affiliates.
19.2. Owner shall not assign this Agreement without the prior written consent of Operator; provided that, Owner may assign this Agreement without Operator’s
consent to any person or entity acquiring Owner’s fee interest in the Hotel as of the effective date of such acquisition if (a) Owner provides Operator with thirty (30) days
prior written notice of such assignment, and (b) such assignee agrees in writing to be bound by this Agreement and assumes in writing all of Owner’s obligations under
this Agreement from and after the effective date of such assignment. Nothing in this Agreement shall prohibit or be deemed to prohibit any mortgage, charge, pledge or
other encumbrance of all or any part of Owner’s right, title and interest in the Hotel to any institutional lender as collateral security for debt of Owner and/or Owner’s
Affiliates, subject to the terms of Article XXI.
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19.3. Upon any permitted assignment of this Agreement and the assumption of this Agreement by the assignee, the assignor shall not be relieved of any obligation or
liability under this Agreement arising after the effective date of the assignment unless (a) such assignee assumes liabilities that arose prior to the effective date of the
assignment (which, in the case of Owner, shall include any obligation to repay the Unamortized Key Money) or (b) the non-assigning party receives other written
assurance with respect to such liabilities reasonably acceptable to such non-assigning party, in which case of either (a) or (b) the assigning party shall be automatically
released from any and all liability arising from, or relating to, this Agreement and the ownership and operation of the Hotel (including without limitation, in the case of
Owner, any obligations with respect to the Unamortized Key Money).
20.1. Any notice, statement or demand required to be given under this Agreement shall be in writing, sent by certified mail, postage prepaid, return receipt requested,
or by facsimile transmission, receipt electronically or verbally confirmed, or by nationally-recognized overnight courier, receipt confirmed, addressed if to:
ARTICLE XX
NOTICES
Owner:
with a copy to:
and Operator:
Justice Operating Company LLC
10940 Wilshire Boulevard, Suite 2150
Los Angeles, CA 90024
Attention: David Gonzalez
Facsimile No.: (310) 496-1605
Email: dgonzalez@intgla.com
Justice Operating Company LLC
10940 Wilshire Boulevard, Suite 2150
Los Angeles, CA 90024
Attention: John Winfield
Facsimile No.: (310) 889-2525
Email: jwinfield@intgla.com
Interstate Management Company, LLC
c/o Interstate Hotels & Resorts, Inc.
4501 N. Fairfax Drive, Suite 500
Arlington, VA 22203
Attention: Executive Vice President and General Counsel
Facsimile No.: (703) 387-3389
or to such other addresses as Operator and Owner shall designate in the manner provided in this Section 20.1. Any notice or other communication shall be deemed given
(a) on the date three (3) business days after it shall have been mailed, if sent by certified mail, (b) on the business day it shall have been sent by facsimile transmission
(unless sent on a non-business day or after business hours in which event it shall be deemed given on the following business day), or (c) on the date received if it shall
have been given to a nationally-recognized overnight courier service.
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ARTICLE XXI
SUBORDINATION; ESTOPPELS; RECOGNITION
21.1. Operator agrees that its rights under this Agreement are subject and subordinate to any Mortgage now, or hereafter in effect, as well as with respect to any
security agreements, pledge agreements or other secured financing documents encumbering any direct or indirect interests in the Hotel or the Owner itself (collectively,
the “Lenders’ Liens”); provided that such Lenders’ Liens are held by Institutional Lenders, and further provided that, such subordination shall not be deemed a waiver or
forbearance from (a) receiving from Owner, on a current basis and as and when due, any and all fees and expenses due to it under this Agreement prior to an event of
default under any such mortgage or deed of trust or (b) exercising any right Operator may have to terminate this Agreement pursuant to Article 17 above, subject to
granting reasonable cure rights to such Institutional Lender. Operator further agrees to execute and deliver within ten (10) days after written request therefor any
document or certificate containing customary and reasonable terms confirming subordination and attornment, as Owner or any holder of any such Lenders’ Liens may
reasonably request.
21.2. Owner and Operator agree that from time to time upon the request of the other party or a party to a Major Agreement, it shall execute and deliver within ten (10)
days after the request a certificate confirming that this Agreement is in full force and effect, stating whether this Agreement has been modified and supplying such other
information as the requesting party may reasonably require.
ARTICLE XXII
INDEMNIFICATION
22.1. To the fullest extent permitted by law, Operator hereby agrees to indemnify, defend and hold Owner and its Affiliates (and each of their respective agents,
principals, contractors, shareholders, partners, members, officers, directors and employees, and each of their respective successors and assigns (individually, an “Owner
Indemnitee” and collectively, “Owner Indemnitees”)) harmless from and against any and all liabilities, losses, claims, damages, costs and expenses (including, but not
limited to, reasonable attorneys’ fees and expenses) that may be incurred by or asserted against any Owner Indemnitee and that arise from or relates to (a) the fraud,
willful misconduct or gross negligence of the off-site employees of Operator, General Manager or Director of Finance, (b) the breach by Operator of any provision of this
Agreement caused by the fraud, willful misconduct or gross negligence of the off-site employees of Operator, General Manager or Director of Finance, or (c) any action
taken by Operator, General Manager or Director of Finance which is beyond the scope of Operator’s authority under this Agreement (the “Operator Indemnity
Obligations”); provided that, Operator shall not be obligated with regard to the foregoing for the Hotel’s Director of Finance if the Director of Finance (i) was the Hotel’s
Director of Finance (or equivalent position) immediately prior to the Takeover Date and (ii) less than six (6) months have elapsed since the Takeover Date. Owner shall
promptly provide Operator with written notice of any claim or suit brought against any Owner’s Indemnitee by a third party which might result in such indemnification.
Owner shall cooperate with the Operator or its counsel in the preparation and conduct of any defense to any such claim or suit.
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22.2. To the fullest extent permitted by law, Owner hereby agrees to indemnify, defend and hold Operator and its affiliates (and each of their respective agents,
principals, contractors, shareholders, partners, members, officers, directors and employees, and each of their respective successors and assigns (individually, an “Operator
Indmenitee” and collectively, “Operator Indemnitees”)) harmless from and against all liabilities, losses, claims (including, but not limited to Employment Claims)
damages, costs and expenses (including, but not limited to, reasonable attorneys’ fees and expenses; and any additional tax as set forth in Section 9.7 and interest and
penalties thereon) that may be incurred by or asserted against any Operator Indemnitee and that arise from or relates to (a) the performance of Operator’s services in
accordance with this Agreement, (b) any act or omission (whether or not willful, tortious, or negligent) of Owner or any third party, (c) any liabilities arising from a tax
audit with respect to the Hotel whether conducted during or after the Operating Term, (d) Owner’s failure to promptly remove any Hazardous Materials on any portion of
the Hotel or its surrounding site or otherwise remedy the problem in accordance with all laws, rules and regulations of any governmental authority or (e) or any other
occurrence related to the Hotel and/or Operator’s duties under this Agreement whether arising before, during or after the Operating Term (the “Owner Indemnity
Obligations”). Operator shall promptly provide Owner with written notice of any claim or suit brought against it by a third party which might result in such
indemnification. Operator shall cooperate with the Owner or its counsel in the preparation and conduct of any defense to any such claim or suit. IT IS EXPRESSLY
AGREED AND UNDERSTOOD THAT THIS AGREEMENT INCLUDES INDEMNIFICATION PROVISIONS WHICH, IN CIRCUMSTANCES OTHER
THAN AS PROVIDED FOR IN SECTION 22.1, COULD INCLUDE AN INDEMNIFICATION BY OWNER OF OPERATOR FROM CLAIMS OR LOSSES
ARISING AS A RESULT OF OPERATOR’S OWN NEGLIGENCE OR THE NEGLIGENCE OF OPERATOR’S EMPLOYEES WHETHER OR NOT
SUCH NEGLIGENCE IS PASSIVE OR ACTIVE. It is agreed that none of the Operator Indemnitees shall have any right to indemnity with respect to any Owner
Indemnity Obligations if such Owner Indemnity Obligations result from, were caused by or otherwise constitute an Operator Indemnity Obligation for which Operator is
required to indemnify the Owner Indemnitees in accordance with Section 22.1.
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22.3. If any action, lawsuit or other proceeding shall be brought against any Indemnified Party hereunder arising out of or based upon any of the matters for which
such party is indemnified under this Agreement, such Indemnified Party shall promptly notify the Obligor in writing (which may be in the form of email) thereof and,
except in the case of an Employment Claim (which shall be defended by Operator subject to the indemnity set forth in Section 22.2). Obligor shall promptly assume the
defense thereof (including without limitation the employment of counsel selected by Obligor) unless otherwise agreed to in writing by the parties as provided herein,
such defense to be subject to the prior written consent of the Indemnified Party, which consent shall not be unreasonably withheld (provided, however, by way of
illustration and not limitation, it shall be reasonable for the Indemnified Party to deny consent to any settlement that requires the Indemnified Party to admit guilt or
liability). The Indemnified Party shall cooperate with the Obligor in the defense of any such action, lawsuit or proceeding, on the condition that the Obligor shall
reimburse the Indemnified Party for any out-of-pocket costs and expenses incurred in connection therewith. Subject to the terms of this Agreement, the Obligor shall
have the right to negotiate settlement or consent to the entry of judgment with respect to the matters indemnified hereunder; provided, however, that if any such
settlement or consent judgment contemplates any action or restraint on the part of the Indemnified Party, then such settlement or consent judgment shall require the
written consent of the Indemnified Party, which consent shall not be unreasonably withheld. In addition to the foregoing, the Indemnified Party shall have the right (at its
own expense) to employ separate counsel in any such action and to participate in the defense thereof. An Indemnified Party may settle any action on its own behalf (i.e.,
with respect to its own liability and with no requirement of Obligor to admit guilt or liability) only with the prior written consent of Obligor, which consent shall not be
unreasonably withheld (provided, however, by way of illustration and not limitation, it shall be reasonable for Obligor to deny consent to any settlement that requires
Obligor to expend funds in an amount Obligor reasonably determines is inappropriate so long as the Indemnified Party remains adequately protected at all times). In the
event that Obligor fails to use reasonable efforts to defend or compromise any action, lawsuit or other proceeding for which an Indemnified Party is indemnified
hereunder or as the parties may agree, the Indemnified Party may, at Obligor’s expense and without limiting Obligor’s liability under the applicable indemnity, assume
the defense of such action and the Obligor shall pay the charges and expenses of such attorneys and other persons on a current basis within thirty (30) days of submission
of invoices or bills therefor. In the event the Obligor is Owner and Owner neglects or refuses to pay such charges, Operator may pay such charges out of the Agency
Account and deduct such charges from any amounts due Owner, or add such charges to any amounts due Operator from Owner under this Agreement. If Operator is the
Obligor and Operator neglects or refuses to pay such charges, the amount of such charges shall be deducted from any amounts due Operator under this Agreement.
22.4. The provisions of this Article shall survive the termination of this Agreement with respect to acts, omissions and occurrences arising during the Operating
Term.
ARTICLE XXIII
MISCELLANEOUS
23.1. Owner and Operator shall execute and deliver all other appropriate supplemental agreements and other instruments, and take any other action necessary to make
this Agreement fully and legally effective, binding, and enforceable as between them and as against third parties; provided, however, that neither party shall be required
to execute any other document or instrument or perform any other action that would materially increase its liability or decrease its rights under this Agreement.
23.2. This Agreement constitutes the entire agreement between the parties relating to the subject matter hereof, superseding all prior agreements or undertakings, oral
or written. Owner acknowledges that in entering into this Agreement, Owner has not relied on any projection of earnings, statements as to the possibility of future
success, or other similar matter which may have been prepared by Operator.
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23.3 The. headings of the titles to the articles of this Agreement are inserted for convenience only and are not intended to affect the meaning of any of the provisions
hereof.
23.4. A waiver of any of the terms and conditions of this Agreement may be made only in writing and shall not be deemed a waiver of such terms and conditions on
any future occasion.
23.5. This Agreement shall be binding upon and inure to the benefit of Owner and Operator and their respective successors and permitted assigns.
23.6. This Agreement shall be construed, both as to its validity and as to the performance of the parties, in accordance with the laws of the state of California without
reference to its conflict of laws provisions.
23.7. This Agreement may be executed in any number of counterparts each of which shall, when executed, be deemed to be an original and all of which shall be
deemed to be one and the same instrument. Signatures on this Agreement delivered by facsimile shall be deemed to be original signatures for all purposes of this
Agreement.
23.8.
(a) The parties shall first attempt in good faith to resolve disputes informally prior to pursuing formal dispute resolution under Section 23.8(b). Upon receiving notice
of any claim or dispute, the parties shall first meet in good faith at a mutually agreeable time and location to discuss the dispute and attempt to settle the matter without
resort to formal dispute resolution. This meeting shall proceed in advance of further arbitration or other legal proceedings, provided that either party may initiate
arbitration or other legal proceedings as necessary in order to avoid the expiration of any statutes of limitation, statutes of repose, or similar time limitations. In such
event, the arbitration or legal proceeding shall be stayed pending completion of the informal meeting.
(b) Except as provided in Section 8.5, all disputes and claims related to or arising out of the Agreement shall be resolved by arbitration conducted through any
nationally recognized arbitration provider, in accordance with the Commercial Arbitration Rules and Mediation Procedures of the American Arbitration Association then
currently in effect. The arbitrator shall be independent and impartial, and shall be a judge or lawyer with at least ten (10) years of experience handling claims related to
the hospitality industry, unless otherwise agreed to by the parties. All arbitration proceedings shall be held in San Francisco, California unless otherwise agreed to by the
parties. Any arbitration arising out of or relating to this Agreement may include, by consolidation or joinder or in any other manner, other persons substantially involved
in a common question of fact or law whose presence is required if complete relief is to be accorded in arbitration. Consent to arbitration involving an additional person or
entity shall not constitute consent to arbitration of a claim not described therein or with a person or entity not named or described therein. This agreement to arbitrate
shall be specifically enforceable under applicable law in any court having jurisdiction thereof. The award of the arbitrators may be entered as a judgment in any court of
competent jurisdiction.
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(c) The parties shall equally share all costs and expenses related to payment of arbitrators or filing fees or other similar expenses assessed by arbitration institutions.
(d) WAIVER OF JURY TRIAL. EACH PARTY TO THIS AGREEMENT HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY
RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY DISPUTE BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION
WITH, THIS AGREEMENT, OR ANY COURSE OR CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN), OR ACTIONS OF
THE PARTIES.
23.9. If any provision of this Agreement or its application to any party or circumstances is determined by any court of competent jurisdiction to be invalid and
unenforceable to any extent, the remainder of this Agreement or the application of such provision to such person or circumstances, other than those as to which it is so
determined invalid or unenforceable, will not be affected thereby, and each provision hereof will be valid and will be enforced to the fullest extent permitted by law.
23.10. Owner or Owner’s agent shall have the continuing right during the term of this Agreement upon reasonable prior notice and at reasonable times to inspect the
Hotel.
23.11. Time shall be of the essence in the performance of the obligations of the parties under this Agreement.
23.12. This Agreement may not be modified, amended, surrendered or changed, except by a written document signed by Owner and Operator agreeing to be bound
thereby.
23.13. Notwithstanding anything herein to the contrary, if Owner’s approval or consent is required under this Agreement, Operator shall request such approval or
consent in writing and Owner shall deliver its response to such request in writing. For the avoidance of doubt, as used in this Section 23.13 “in writing” shall include
email communications.
[SIGNATURES APPEAR ON THE FOLLOWING PAGE]
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IN WITNESS WHEREOF, Operator and Owner have duly executed this Agreement the day and year first above written.
JUSTICE OPERATING COMPANY, LLC,
a Delaware limited liability company
By:
Justice Mezzanine Company, LLC, a Delaware limited liability company,
its sole Member
By:
Justice Investors, LP, a California Limited partnership, its sole
Member
By:
Portsmouth Square, Inc.,
its sole General Partner
By:
Name:
Its:
/s/ John V. Winfield
John V. Winfield
President
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INTERSTATE MANAGEMENT COMPANY, LLC
By:
Interstate Operating Company, L.P., member
By:
Interstate Hotels & Resorts, Inc., general partner
By:
Name:
Title:
/s/ Monica L. Bernstein
Monica L. Bernstein
Vice president of LegaI
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DEFINITION ANNEX
“Affiliate” or “Affiliated” - shall mean any person which, directly or indirectly, controls, is controlled by or is under common control with, such person. The term
“control” (including, with correlative meaning, the terms “controlled by” and “under common control with”), as used with respect to any person, means the possession,
directly or indirectly, or the power to direct or cause the direction of the management and policies of such person, whether through the ownership of voting securities or
by contract or otherwise, including, without limitation, control exists when a person is a managing member, managing partner, trustee, president and/or chief executive
officer of a person and/or of an Affiliate of such person. A “person” shall mean an individual, corporation, partnership, limited liability company, limited partnership
and/or trust. A natural person is an Affiliate to another natural person if he or she is a spouse, parent or lineal descendent of the other person.
“Agency Account” - shall mean, collectively, one or more accounts bearing the name of the Hotel where all funds received by Operator in the operation of the Hotel are
deposited.
“Agreement” - shall mean the Hotel Management Agreement.
“Annual Operating Statement” - has the meaning set forth in Section 8.2(D).
“Approved Annual Plan” - shall mean the then applicable Proposed Annual Plan approved in accordance with the provisions of Section 8.5.
“Basic Fee” - shall mean the base management fee paid by Owner to pursuant to Section 9.1.
“Building” - shall mean a building with 543 guest rooms (with the potential of 19 additional rooms), restaurant(s), lounge(s), conference and meeting rooms and a
5-level underground parking garage.
“Capital Budget” - has the meaning set forth in Section 8.5.
“Centralized Accounting Services” - shall mean services provided to create, maintain and verify financial statements by the general ledger group in Operator’s shared
services center along with providing sales and use tax services and filing, as set forth in Exhibit D.
“Centralized Accounting Services Fee” - has the meaning set forth in Section 9.2.
“Centralized Services” - shall mean the Centralized Accounting Services and any and each of the purchasing services, other group benefits and services, revenue
management services, on-site sales training, associate satisfaction surveys, Operator’s national training program and other training, as are made available generally to
similar properties managed by Operator.
“Competitive Set” - shall mean the hotels within the Hotel’s market area that are most closely comparable to the Hotel in quality, price and market (with due
consideration given to age, quality, size, location, amenities, amount of meeting space and business mix). The initial Competitive Set shall be determined by the parties
within thirty (30) days after the Commencement Date, provided that if the parties disagree as to whether any hotel should be included and/or excluded from the
Competitive Set and the parties cannot reach a resolution within such thirty (30) day period, then such dispute shall be resolved by the Industry Expert.
1
“Commencement Date” - shall mean the date of this Agreement as set forth in the introductory paragraph hereto.
“Comparable Aggregate Cost Test” - has the meaning set forth in Section 6.2.
“Core Executive Staff” - has the meaning set forth in Section 4.1(B).
“CPI” - shall mean the Consumer Price Index - All Urban Consumers (U.S. City Average) (1982-1984 =100), or any successor index thereto appropriately adjusted.
“Distributable Cash” - has the meaning set forth in Section 9.5.
“Electronic Storage System” - has the meaning set forth in Section 8.1.
“Emergency Expenses” - shall mean expenses, regardless of amount, which in Operator’s good faith judgment are immediately necessary to protect the physical
integrity or lawful operation of the Hotel or the health or safety of its occupants.
“Employee Expenses” - has the meaning set forth in Section 4.1(B).
“Employment Claim” - shall mean any claim based upon a violation or alleged violation of the Employment Laws.
“Employment Insurance” - shall mean Employment Practices Liability Insurance.
“Employment Laws” - shall mean any federal, state, local and foreign statutes, laws, ordinances, regulations, rules, permits, judgments, orders and decrees affecting
labor union activities, civil rights or employment in the United States, including, without limitation, the Civil Rights Act of 1870, 42 U.S.C. §1981, the Civil Rights Acts
of 1871, 42 U.S.C. §1983 the Fair Labor Standards Act, 29 U.S.C. §201, et seq., the Civil Rights Act of 1964, 42 U.S.C. §2000e, et seq., as amended, the Age
Discrimination in Employment Act of 1967, 29 U.S.C. §621, et seq., the Rehabilitation Act, 29 U.S.C. §701, et seq., the Americans With Disabilities Act of 1990, 29
U.S.C. §706,42 U.S.C. §12101, et seq., the Employee Retirement Income Security Act of 1974,29 U.S.C. § 301, et seq., the Equal Pay Act, 29 U.S.C. §201, et seq., the
National Labor Relations Act, 29 U.S.C. §151, et seq., and any regulations promulgated pursuant to such statutes (as amended from time to time, and together with any
similar laws now or hereafter enacted).
“Employment Policies” - shall mean the policies, procedures and programs for the Hotel relating to the employment of Hotel Employees, including wage, benefits and
severance policies. The Employment Policies shall be reasonably designed to effect compliance with the Employment Laws and shall be consistent with industry
standards from time to time for reputable hotel management companies.
“Event of Default” - has the meaning set forth in Section 17.1.
2
“FCPA” - shall mean the United States Foreign Corrupt Practices Act, 15 U.S.C. §§ 778dd-2.
“FF&E” - shall mean the furniture, furnishings, wall coverings, floor coverings, window treatments, fixtures and hotel equipment and vehicles.
“FF&E Budget” - has the meaning set forth in Section 8.5.
“FF&E Reserve Account” - shall mean an account established for a reserve for replacements, substitutions and additions to the FF&E.
“Fiscal Year” - shall mean each twelve (12) consecutive calendar month period or partial twelve (12) consecutive calendar month period within the Term commencing
on January 1st (or, with respect to the first year of the Term, the Commencement Date) and ending on December 31st (or, with respect to the last year of the Term, the
expiration or earlier termination of the Term) unless Owner and Operator otherwise agree.
“Fixed Charges” - shall mean the cost of the following items relating to the Hotel or its facilities which are properly attributable under the Uniform System to the period
in question:
(i)
(ii)
Property Taxes;
Insurance premiums (or the allocable portion thereof in the case of blanket policies) for all insurance maintained under Section 12.1; and
(iii)
The Basic Fee.
“Franchise Agreement” - shall mean the franchise or license agreement from time to time issued to owner with respect to the operation of the Hotel, if any. Presently,
“Franchise Agreement” means the Franchise License Agreement having an effective date of November 24, 2004 between Hilton Inns, Inc., as Franchisor, and Owner, as
franchisee, as the same has been and may be modified and amended.
“Franchisor” - shall mean any issuer of a franchise or license agreement with respect to the operation of the Hotel from time to time. Presently, the Franchisor is Hilton
Inns, Inc.
“GAAP” - shall mean generally accepted accounting principles in the United States.
“Gross Operating Profit” - shall mean the amount, if any, by which Total Revenues exceed Operating Expenses.
“Hotel” - shall mean the hotel known as Hilton San Francisco Financial District located at 750 Kearny Street, San Francisco, CA 94108.
“Hotel Employees” - shall mean the on-site staff of the Hotel.
“Hotel Purchases” - has the meaning set forth in Section 6.2.
“Incentive Fee” - shall mean the incentive management fee paid by Owner to Operator pursuant to Section 9.3.
3
“Indemnified Party” - shall mean any Owner Indemnitee or Operator Indemnitee, as the context requires.
“Industry Expert” - has the meaning set forth in Section 8.5.
“Initial Term” - has the meaning set forth in Section 2.1.
“Installations” - shall mean the mechanical systems and built-in installations of the Building including, but not limited to, heating, ventilation, air conditioning,
electrical and plumbing systems, elevators and escalators, and built-in laundry, refrigeration and kitchen equipment.
“Institutional Lender” - shall mean a foreign or domestic commercial bank, trust company, savings bank, savings and loan association, life insurance company, real
estate investment trust, pension trust, pension plan or pension fund, a public or privately-held fund engaged in real estate and/or corporate lending, or any other financial
institution commonly known as an institutional lender (or any Affiliate thereof); provided further that such entity shall not be an Affiliate of Owner.
“Involuntary Proceeding” - shall mean any of the following instituted against a party by any other person or entity: (i) assignment for the benefit of creditors, (ii)
proceeding seeking relief under any federal or state bankruptcy or insolvency laws, or (iii) proceeding seeking the appointment of a receiver, trustee, custodian or similar
official for such party’s business or assets.
“IT Services” - has the meaning set forth in Section 6.3.
“Key Money Contribution” - has the meaning set forth in Section 3.8.
“Leases” - shall mean the leases, licenses and concession agreements for or any other arrangement granting any rights to occupy or use any portion of the Hotel for any
purpose, including, without limitation, for retail space, office space, kiosk space and lobby space at the Hotel (including without limitation, car rental counters and gift
shops) and commercial space, if any, that is adjacent to or otherwise part of the Hotel (including without limitation, rooftop antennas), provided, however, “Leases” shall
not include any guest room rentals or banquet or conference space rentals consistent with the then applicable Approved Annual Plan or in the ordinary course of business.
“Legal Requirements” - shall mean (a) all federal, state, county, city and local laws, ordinances, statutes, regulations and orders relating to the Hotel now or hereafter in
effect, including, but not limited to, environmental laws and (b) all terms, conditions, requirements and provisions of all permits.
“Lender Reserve Account” - has the meaning set forth in Section 11.1.
“Lenders’ Liens” - has the meaning set forth in Section 21.1.
“Major Agreements” - shall mean any Mortgage, any Franchise Agreement and the Union Agreements.
4
“Major Capital Expenditures” - has the meaning set forth in Section 8.4(B).
“Material Default” - shall mean any breach or failure by either Owner or Operator to comply with any of its covenants and agreements contained in this Agreement,
other than any such breach or failure that in the context hereof is minor, immaterial or insubstantial and not reasonably likely to prejudice any other party or any part of
the Hotel in any material way.
“Minimum Working Capital” - shall mean an amount equal to (i) from the Takeover Date to July 31, 2017, four hundred thousand dollars ($400,000), and (ii) from
August 1, 2017 through the remainder of the Operating Term, eight hundred thousand dollars ($800,000).
“Monthly Cash Flow Forecast” - shall mean a monthly cash flow forecast for the Hotel with projections for the next 90-day period.
“Monthly Reports” - shall mean, collectively, with respect to each month during the Operating Term (a) a balance sheet as of the last day of such month; (b) a source
and use of funds statement for such month; (c) an income and expense statement for such month, including departmental details; (d) Monthly Cash Flow Forecast; (e) a
comparison of the monthly, quarterly and year-to-date actual revenues and expenses with the then applicable Approved Annual Plan as well as a periodic and year-to-
date comparison of such actual revenues and expenses with those of the prior Fiscal Year; (f) a calculation and computation of Operator’s Basic Fee and Incentive Fee
and any expense reimbursement to Operator or its Affiliates; (g) a calculation and computation of the distribution of Distributable Cash; (d) a reserve reconciliation
showing an acquisition and disposal report of all FF&E, the Capital Budget and the FF&E Budget and any expenditures year-to-date; (h) the applicable STAR Report for
the Hotel; (i) any QA Scoring Guide reports issued by the Franchisor and (j) such other reports or information as reasonably required by Owner. The Monthly Reports for
the last month of a Fiscal Year shall include year-end unaudited financial statements.
“Mortgage” - shall mean (a) any existing and future mortgage or deed of trust or similar security instrument that, from time to time, encumbers the Hotel or any portion
thereof to secure any indebtedness of Owner or any holder of a direct or indirect equity interest in Owner or any other obligations secured by the Hotel or any portion
thereof or (b) any existing and future pledge agreement, security agreement or similar instrument that, from time to time, encumbers the direct or indirect equity interests
of any person or entity that directly or indirectly owns all, or any portion of, the Owner, provided that in the case of both (a) and (b), such security instruments relate to
the financing of the Hotel.
“Mortgagee” - shall mean the mortgagee or beneficiary under any Mortgage.
“Necessary Expenses” - shall mean expenses, regardless of amount, that are necessary for the continued operation of the Hotel in accordance with the requirements of
any Major Agreement and the operational standards set forth in this Agreement and which are not within the reasonable control of Operator (including, but not limited to,
those for insurance, taxes, utility charges and debt service).
“Obligor” - shall mean the party required to provide indemnification under this Agreement.
5
“Operating Budget” -has the meaning set forth in Section 8.5.
“Operating Equipment” - shall mean the chinaware, glassware, silverware, linens, and other items of a similar nature.
“Operating Expenses” - shall mean all costs and expenses of maintaining, conducting and supervising the operation of the Hotel and all of its facilities which are
properly attributable under the Uniform System to the period in question.
A.
Operating Expenses shall include, without limitation:
(i)
(ii)
The cost of all Operating Equipment and Operating Supplies;
Salaries and wages of Hotel Employees, including costs of payroll taxes, employee benefits and severance payments. The salaries or wages of
off-site employees of Operator or its Affiliates shall not be Operating Expenses, provided that if it becomes necessary for an off-site employee
of Operator or an Affiliate to temporarily perform services at the Hotel of a nature normally performed by Hotel Employees, his or her salary
(including payroll taxes and employee benefits) for such period only as well as his or her traveling expenses shall be Operating Expenses and
reimbursed to Operator;
(iii)
The cost of all other goods and services obtained in connection with the operation of the Hotel including, without limitation, heat and utilities,
laundry, landscaping and exterminating services and office supplies;
(iv)
The cost of all non-capital repairs to and maintenance of the Hotel;
(v)
(vi)
Insurance premiums (or the allocable portion thereof in the case of blanket policies) for all insurance maintained under Section 12.2 and losses
incurred on any self-insured risks (including deductibles);
All taxes, assessments, permit fees, inspection fees, and water and sewer charges and other charges (other than income or franchise taxes)
payable by or assessed against Owner with respect to the operation of the Hotel, excluding Property Taxes;
(vii)
Legal fees and fees of any independent certified public accountant for services directly related to the operation of the Hotel and its facilities;
(viii)
All expenses for advertising the Hotel and all expenses of sales promotion and public relations activities;
6
(ix)
All out-of-pocket expenses and disbursements reasonably incurred by Operator, pursuant to, in the course of, and directly related to, the
management and operation of the Hotel under this Agreement, which fees, expenses and disbursements shall be paid out of the Agency
Account or paid or reimbursed by Owner to Operator upon demand. Without limiting the generality of the foregoing, such charges may
include all reasonable travel, telephone, telegram, facsimile, air express and other incidental expenses and any fees or expenditures required
for Operator to operate the Hotel in the given jurisdiction, but, except as otherwise provided in this Agreement, shall not include any of the
regular expenses of the central offices maintained by Operator, other than offices maintained at the Hotel exclusively for the management of
the Hotel. Operator shall maintain and make available to Owner invoices or other evidence supporting such charges;
(x)
The Centralized Accounting Services Fee and any fees or tax levied on those charges by the local jurisdiction;
(xi)
Periodic payments made in the ordinary course of business under any applicable franchise agreement;
(xii)
Any other item specified as an Operating Expense in this Agreement and
(xiii)
Any other cost or charge classified as an Operating Expense or an Administrative and General Expense under the Uniform System unless
specifically excluded under the provisions of this Agreement.
B.
Operating Expenses shall not include:
(i)
(ii)
(iii)
(iv)
(v)
(vi)
Amortization and depreciation;
The making of or the repayment of any loans or any interest thereon;
The costs of any alterations, additions or improvements which for Federal income tax purposes or under the Uniform System or GAAP must
be capitalized and amortized over the life of such alteration addition or improvement;
Payments on account of any equipment lease that is to be capitalized under GAAP;
Payments under any ground lease, space lease or easement agreement;
Payments into or out of the FF&E Reserve Account;
(vii)
Operator’s Expenses; or
(viii)
Any item defined as a Fixed Charge.
“Operating Supplies” - shall mean the stock and inventories of paper supplies, cleaning materials and similar consumable items and food and beverage.
7
“Operating Term” - shall mean the Initial Term and any Renewal Term(s).
“Operator” - shall have the meaning set forth in the preamble.
“Operator’s Expenses” - shall mean:
A.
B.
C.
D.
E.
F.
G.
Except to the extent set forth in Section 6.1, all costs, expenses, salaries, wages or other compensation of any corporate, regional or other
headquarters/corporate level employees of Operator, except to the extent such employees are regularly employed full time at the Hotel by Operator;
Any expenses of Operator’s principal or branch offices;
Any part of Operator’s capital expenses;
Except to the extent set forth in Section 6.1, Operator’s overhead or general expenses, including but not limited to telex, duplicating, stationery and
postage expenses incurred at Operator’s principal or branch offices, except as may be expressly assumed by Owner pursuant to the terms of this
Agreement;
Except to the extent set forth in Section 6.1, all costs and expenses of providing centralized data processing and accounting services to the Hotel;
Any expenses for advertising or promotional materials that feature Operator’s name or activities but which do not promote the Hotel, unless and to the
extent approved in advance by Owner to be an Operating Expense;
Any travel expenses of Operator’s corporate, regional or headquarters office employees for a period that are (i) in excess of the amount shown on the
Approved Annual Plan for Operator’s travel expenses for such period (or otherwise approved by Owner) (ii) are not reasonable and necessary travel
expenses incurred while engaged in the performance of this Agreement, (iii) in the case of air travel, exceed the coach or economy fare reasonably
available under the circumstances for the flight in question; provided, however, that for purposes of including travel expenses in Operating Expenses,
all expenses incurred on any trip which includes visits to more than one property managed by Operator or its Affiliates or is otherwise for purposes
related to the Hotel and other properties managed by Operator or its Affiliates shall be equitably allocated among all the properties visited or benefited;
and
H.
Any cost for which Operator is liable under Article XXII or any other provision of this Agreement.
“Operator Indemnitee” - shall have the meaning set forth in Section 22.1.
“Operator IP” - shall have the meaning set forth in Section 18.8.A).
“Owner” - shall have the meaning set forth in the preamble.
8
“Owner Expenses” - shall mean fixed expenses (e.g., debt service, ground lease payments, capital costs, etc.) that Owner requests Operator to pay on behalf of Owner
from the Agency Account.
“Owner Indemnitee” - shall have the meaning set forth in Section 22.1.
“Owner IP” - shall have the meaning set forth in Section 18.8.B).
“Owner Parking Facility Rights” - has the meaning set forth in Section 1.1.
“Owner’s Expense Notice” - shall mean Owner’s written request and direction (including copies of any material agreements) for Operator to pay Owner Expenses.
“Performance Failure” - has the meaning set forth in Section 18.3(A).
“Procuring Party” - has the meaning set forth in Section 6.2.
“Property Taxes” - shall mean real estate taxes, assessments, personal property taxes and any other ad valorem taxes imposed on or levied in connection with the Hotel,
the Installations and the FF&E.
“Proposed Annual Plan” - has the meaning set forth in Section 8.4.
“Proposed Capital Budget” - has the meaning set forth in Section 8.4(B).
“Proposed FF&E Budget” - has the meaning set forth in Section 8.4(C).
“Proposed Operating Budget” - has the meaning set forth in Section 8.4(A).
“QA Scoring Guide” - shall mean the Hilton Worldwide Quality Assurance Evaluation and the equivalent of the same for any successor of Hilton as the Franchisor.
“Quarterly Operating Statements” - has the meaning set forth in Section 8.2(C).
“Renewal Term” - shall mean additional successive terms of one (1) year each, not to exceed five (5) years in the aggregate.
“Renewal Termination Date” - has the meaning set forth in Section 2.1.
“Replacement Hotel Requirements” - has the meaning set forth in Section 18.3(C).
“RevPAR” - shall have the meaning set forth in the Uniform System.
“RevPAR Index” - shall mean the ratio, expressed as a percentage, of (a) the RevPAR of the Hotel to (b) the average RevPAR of the Competitive Set.
“RevPAR Test” - shall have that meaning set forth in Section 18.3(A)(1).
9
“Standard” - shall mean the physical and operational standard of operation that (a) is equal to or greater than the standard of operation of those hotels comprising the
Competitive Set, (b) provides for operation of the Hotel on a seven-day-a-week, twenty-four-hour-a-day basis, with, adequate, staffing to. provide first-class staffing and
food, beverage, housekeeping, banquet, security personnel, bellmen and porter services at a level that is equal to, or higher, than those applied at the hotels comprising
the Competitive Set, (c) consistently meets the then applicable requirements set forth in the Franchise Agreement, and (d) is intended to maximize the present value of
the Hotel.
“Takeover Date” - shall mean the date Operator commences management of the Hotel, which date shall be confirmed by the parties and memorialized by a separate
writing executed by both Owner and Operator within five (5) business days following the Takeover Date.
“Tax Contest” - shall mean contesting the validity or amount of any Property Tax.
“Total Revenues” - shall mean:
A.
All income, revenue, receipts and proceeds resulting directly or indirectly from the operation of the Hotel and all of its facilities (net of refunds and
credits to guests and other items deemed “Allowances” under the Uniform System) which are properly attributable under the Uniform System to the
period in question. Subject to subsection (B) below, Total Revenues shall include, without limitation, all amounts derived from:
(i)
(ii)
(iii)
(iv)
(v)
(vi)
The rentals of rooms, banquet facilities and conference facilities;
The sale of food and beverage whether sold in a bar, lounge or restaurant, delivered to a guest room, sold through an in-room facility or
vending machines, provided in meeting or banquet rooms or sold through catering operations, including for any events held off-site of Hotel
premises;
Charges for admittance to or the use of any parking facilities, recreational facilities or any entertainment events at the Hotel;
Rentals paid under Leases, including, without limitation, any Leases for the Chinese Cultural Center, the spa premises, any parking areas, any
telecommunications, rooftop antennas or billboards;
Charges for other Hotel services or amenities, including, without limitation, telephone service, in-room movies, laundry services and spa
services; and
The gross revenue amount on which the proceeds of business interruption or similar insurance are determined, with respect to any period for
which such proceeds are received.
B.
Total Revenues shall not include:
10
(i)
(ii)
(iii)
(iv)
(v)
Sales or use taxes or similar governmental impositions collected by Owner or Operator;
Proceeds of insurance except as set forth in subsection (A) above;
Proceeds of the sale or condemnation of the Hotel, any interest therein or any other asset of Owner not sold in the ordinary course of business,
or the proceeds of any loans or financings;
Capital contributed by Owner to the Hotel; and
The receipts of. any tenant, licensee or concessionaire under a Lease.
“Unamortized Key Money” - has the meaning set forth in Section 3.8.
“Uniform System” - shall mean the “Uniform System of Accounts” (Eleventh Revised Edition 2014, as further revised from time to time) as adopted by the American
Hotel and Motel Association of the United States and Canada.
“Union” - shall mean the Bartenders and Service employees Culinary Local 2; Stationary Engineers Local 39; Front Desk, Accounting, Reservations Teamsters Local
856 and any other labor unions at any time representing Hotel Employees.
“Union Agreement” - shall mean any collective bargaining agreement or other agreement entered into by Operator or Owner with any Union with respect to employees
of the Hotel, which has been approved by Owner.
“WARN Act” - shall mean the Worker Adjustment and Retraining Notification Act and/or any similar state or local laws (together with all rules and regulations
promulgated thereunder and including, without limitation, any such state or local laws).
11
EXHIBIT A
Centralized Services
1
INTERSTATE HOTELS & RESORTS
Breakdown of Reimbursable Costs by Category per month
Changeback/Reimbursement Category
TOTAL CHARGEBACKS/ REIMBURSEMENTS
Sales & Marketing
$
$
13,226
2,701
Revenue Management Services, Top Performers Annual Sales Stars of Excellence, Group Sales - Meetings Made Simple (MMS), Smith Travel Research Reports,
E-Commerce, Intersate Summer Sales Training
Information Technology
$
6,528
IT Central Support Services, IHR1 Business Intelligence Portal, E-Mail/lway, Lync, Lawson, PCI Compliance, Help Desk Managed Services, Network Management
Services, Firewall Management, Penetration and Phishing Testing, BlackLine
Human Resources
$
3,997
Workday (HRIS), I-9 Management, Job Marketing, Sourcing and Placement Service, Pre-Hire Assessments, Management Training and College internships, Associate
Engagement Survey, Employee Assistance Program, Affirmative Action Plan, Employee Communication, Service Anniversary Program, Core Compliance Training,
Preventing Workplace Harassment, Leadership and Skills Development, Wage & Hour / FLSA Training, Foreign Corrupt Practices (FCPA), ECPAT Human Trafficking
Awareness, California Legal and Litigation Training, Crisis Communications
2
EXHIBIT B
Pro Forma Approved Annual Plan
1
2
3
4
5
6
EXHIBIT C
Form of Daily Cash Management Excel Spreadsheet
1
2
3
4
5
6
7
8
9
10
11
12
Subgroup: [53.010] Accounts Receivable - Trade
GUEST LEDGER
CITY LEDGER 1-30 DAYS
CITY LEDGER 31-60 DAYS
CITY LEDGER 61-90 DAYS
CITY LEDGER 91-120 DAYS
CITY LEDGER OVER 120 DAYS
A/R MISCELLANEOUS
Subtotal [53.010] Accounts Receivable - Trade
Subgroup: [53.020] Allowance for Doubtful Accounts
ALLOW FOR DOUBTFUL ACCOUNTS
Subtotal [53.020] Allowance for Doubtful Accounts
Subgroup: [53.030] Other Receivables
EMPLOYEE ADVANCES
Subtotal [53.030] Other Receivables
Total [53] Accounts Receivable
13
449,400.28
296,972.36
14,551.76
12,000.00
14,110.33
787,034.73
(60,862.64)
(60,862.64)
14,307.00
14,307.00
740,479.09
EXHIBIT D
Centralized Accounting Services
Centralized Accounting Services include the following:
Property Accounting Services
(cid:120) Accounts Receivable
o Billing and Collection
(cid:120) Accounts Payable
o Market Basket purchase orders
(cid:120)
Treasury
o General Cashier
(cid:120) House banks
(cid:120) Daily Deposits
(cid:120) Over/Short reconciliation
o Daily Cash report
(cid:120)
Payroll
o
o
Time clock edits and processing
Processing of vacation, sick time
(cid:120) General Ledger
o
Journal Entry support
(cid:120)
(cid:120)
(cid:120)
Forecasting
Budgeting
Reporting
Shared Accounting Services
(cid:120) Accounts Payable
(cid:120)
(cid:120)
o
o
o
Set up of vendors
Invoice auditing
Printing and Processing
Treasury
o Credit Card Processor review
o Bank Reconciliations
Processing of weekly payroll
Payroll
o
o Quarterly tax filings
o Annual tax filings
o W-2s and year-end reporting
(cid:120) General Ledger
Journal Entries
o
o Reconciliation of E-Daily to PMS, Income Journal
o City Ledger Review
o Guest Ledger Review
o Advance Deposit Review
Inventory validation and reconciliation
o
o
Franchise Fees payment and reconciliation
o Management Fee payment and reconciliation
o Accruals
o
Financial Statements preparation
(cid:120)
Sales & Use Tax
Preparation of Returns
Filing of Returns including payment
o
o
o Coordination for audits.
1
THE INTERGROUP CORPORATION
CODE OF ETHICS
FOR
SENIOR FINANCIAL OFFICERS
EXHIBIT 14
This Code of Ethics applies to The InterGroup Corporation ("InterGroup" or the "Company") Senior Financial Officers. "Senior Financial Officers" shall include the
principal executive officer, the principal accounting officer or controller, or persons performing similar functions, including InterGroup's President and Chief Executive
Officer, Chief Financial Officer, Treasurer, Controller, Vice President, the Company’s Board of Directors and such other individuals as determined from time to time by
the Audit Committee of the Company for purposes of this Code of Ethics. The Company expects all employees, in carrying out their job responsibilities, to act in
accordance with the highest standards of personal and professional integrity, to comply with all applicable laws, and to abide by InterGroup's other corporate policies and
procedures adopted from time to time by the Company. This Code of Ethics supplements the foregoing with respect to all Senior Financial Officers.
InterGroup's Senior Financial Officers will:
1. Engage in and promote honest and ethical conduct, acting with integrity and exercising at all times their best independent judgment;
2. Avoid actual or apparent conflicts of interest between personal and professional relationships and disclose to the Company's Audit Committee and counsel
any material transaction or relationship that reasonably could be expected to give rise to such a conflict;
3. Produce full, fair, accurate, timely and understandable disclosure in reports and documents that InterGroup files with, or submits to, the Securities and
Exchange Commission and in other public communications made by InterGroup;
4. Comply with applicable governmental laws, rules and regulations, as well as the rules and regulations of self-regulatory organizations of which InterGroup is
a member;
5. Maintain the confidentiality of Company information, except when authorized or otherwise required to make any disclosure, and avoid the use of any
Company information for personal advantage;
6. Promote ethical and honest behavior among employees under your supervision; and
7. Promptly report any possible violation of this Code of Ethics to the Audit Committee and the Company's counsel.
All Senior Financial Officers are prohibited from directly or indirectly taking any action to coerce, manipulate, mislead or fraudulently influence InterGroup's
independent public accountant engaged in the performance of an audit or review of the financial statements of the Company for the purpose of rendering the financial
statements of InterGroup misleading.
The Audit Committee of the Board of Directors shall approve any waiver or amendment of this Code of Ethics, and any such waiver or amendment shall be disclosed
promptly as required by law and SEC regulations.
All Senior Financial Officers will be held accountable for their adherence to this Code of Ethics. Failure to observe the terms of this Code of Ethics may result in
disciplinary action, up to and including termination of employment. Violations of this Code of Ethics may also constitute violations of law, and may result in civil and
criminal penalties for the individual, his or her supervisor and/or InterGroup.
If a Senior Financial Officer has any questions regarding the best course of action in a particular situation, he or she should promptly contact the Chairman of the Audit
Committee or the Company's counsel. An individual may choose to remain anonymous in reporting any possible violation of this Code of Ethics.
SUBSIDIARIES OF THE INTERGROUP CORPORATION
EXHIBIT 21
(1) Intergroup Summit Hills, Inc. (incorporated on August 12, 1993 in TX)
(2) Intergroup Mariposa, Inc. (incorporated on June 23, 1994 in TX)
(3) Intergroup Arlington Arms, Inc. (incorporated on August 5, 1993 in TX)
(4) Intergroup Woodland Village, Inc. (incorporated on August 5, 1993 in OH)*
(5) Intergroup Cross Keys, Inc. (incorporated on April 1, 1994 in MO)
(6) Intergroup Bridgeton, Inc. (incorporated on May 12, 1994 in MO)
(7) Intergroup Whisperwood, Inc. (incorporated on June 20, 1994 in PA)
(8) Intergroup Entertainment Corp. (incorporated on December 23, 1993 in DE)
(9) Mutual Real Estate Corp. (incorporated on March 10, 1994 in TX)
(10) Broadview Enterprises, Inc. (incorporated April 14, 1995 in MO)
(11) Wayward, Inc. (incorporated April 18, 1995 in MO)
(12) Golden West Entertainment, Inc. (incorporated February 15, 1990 in CA)
(13) Golden West Television Productions, Inc. (incorporated September 17, 1991 in CA)
(14) Golden West Television Productions, Inc. (incorporated March 17, 1986 in NY)
(15) Intergroup Meadowbrook Gardens, Inc. (incorporated on June 23, 1994 in NJ)
(16) Intergroup Pine Lake, Inc. (incorporated on February 9, 1996 in KY)
(17) Bellagio Capital Fund, LLC (established on June 18, 1997 in NV)
(18) Healthy Planet Communications, Inc. (incorporated July 3, 1997 in CA)
(19) Santa Fe Financial Corporation (incorporated July 25, 1967 in NV)**
(20) Portsmouth Square, Inc. (incorporated July 6, 1967 in CA)***
(21) 2301 Bel-Air Equity, Inc. (incorporated May 25, 2000 in CA)
(22) 11371 Ovada Properties, Inc. (incorporated May 25, 2000 in CA)
(23) 11361 Ovada Properties, Inc. (incorporated June 1, 2000 in CA)
(24) 11680 Bellagio Properties, Inc. (incorporated May 25, 2000 in CA)
(25) North Sepulveda Properties, Inc. (incorporated June 21, 2000 in CA)
(26) 11650 Bellagio Properties, Inc. (incorporated August 17, 2000 in CA)
(27) 11720 Bellagio Properties, Inc. (incorporated January 17, 2001 in CA)
(28) 636 Acanto Properties, Inc. (incorporated February 15, 2001 in CA)
(29) 614 Acanto Properties, Inc. (incorporated November 7, 2001 in CA)
(30) Intergroup Uluniu, Inc. (incorporated August 12, 2004 in HI)****
(31) 850 Moraga Properties LLC (formed on October 19, 2010 in CA)
(32) 855 Moraga Properties LLC (formed on October 19, 2010 in CA)
(33) 11666 Bellagio Properties LLC (formed on July 8, 2015 in CA)
(34) 801 26th Street Properties LLC (formed on June 23, 2016 in CA)
Unless otherwise indicated, all subsidiaries are 100%-owned.
* The InterGroup Corporation owns 44.6% of Intergroup Woodland Village, Inc. and 55.4% is owned by Santa Fe Financial Corporation.
** Santa Fe Financial Corporation is an approximately 81.9%-owned subsidiary of The InterGroup Corporation.
*** Santa Fe owns approximately 68.8% of Portsmouth Square, Inc. and The InterGroup Corporation owns approximately 13.4% of Portsmouth Square.
**** The InterGroup Corporation owns 50% of Intergroup Uluniu, Inc. and Portsmouth Square, Inc. owns 50%.
*** Santa Fe owns approximately 68.8% of Portsmouth Square, Inc. and The InterGroup Corporation owns approximately 13.3% of Portsmouth Square.
**** The InterGroup Corporation owns 50% of Intergroup Uluniu, Inc. and Portsmouth Square, Inc. owns 50%.
CERTIFICATION
EXHIBIT 31.1
I, John V. Winfield, certify that:
1. I have reviewed this annual report on Form 10-K of The InterGroup 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 the 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 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: August 31, 2018
/s/ John V. Winfield
John V. Winfield
President and Chief Executive Officer
(Principal Executive Officer)
CERTIFICATION
EXHIBIT 31.2
I, Danfeng Xu, certify that:
1. I have reviewed this annual report on Form 10-K of The InterGroup 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 the 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 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: August 31, 2018
/s/ Danfeng Xu
Danfeng Xu
Treasurer and Controller
(Principal Financial Officer)
Certification of Principal Executive Officer Pursuant to
18 U.S.C. Section 1350,
As Adopted Pursuant to
Section 906 of The Sarbanes-Oxley Act Of 2002
EXHIBIT 32.1
In connection with the Annual Report of The InterGroup Corporation (the "Company") on Form 10-K for the fiscal year ended June 30, 2018, 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:
(cid:120)
(cid:120)
The Report fully complies with the requirements of Section 13(a) or 5(d) of the Securities Exchange Act of 1934; and
The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.
/s/ John V. Winfield
John V. Winfield
President and Chief Executive Officer
(Principal Executive Officer)
Date: August 31, 2018
A signed original of this written statement required by Section 906 has been provided to The InterGroup Corporation and will be retained by The InterGroup Corporation
and furnished to the Securities and Exchange Commission or its staff upon request.
Certification of Principal Financial Officer Pursuant to
18 U.S.C. Section 1350,
As Adopted Pursuant to
Section 906 of The Sarbanes-Oxley Act Of 2002
EXHIBIT 32.2
In connection with the Annual Report of The InterGroup Corporation (the "Company") on Form 10-K for the fiscal year ended June 30, 2018, as filed with the Securities
and Exchange Commission on the date hereof (the "Report"), I, Danfeng Xu, 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:
(cid:120)
(cid:120)
The Report fully complies with the requirements of Section 13(a) or 5(d) of the Securities Exchange Act of 1934; and
The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.
/s/ Danfeng Xu
Danfeng Xu
Treasurer and Controller
(Principal Financial Officer)
Date: August 31, 2018
A signed original of this written statement required by Section 906 has been provided to The InterGroup Corporation and will be retained by The InterGroup Corporation
and furnished to the Securities and Exchange Commission or its staff upon request.