2 April 2009
Please see “troubled hotel loans – workouts, bankruptcies & receiverships” for the latest articles on troubled hotels.
How do you terminate a long-term hotel management agreement or HMA? The hotel bankruptcy trump card. This is an increasingly popular question regularly put to the hotel lawyers of JMBM’s Global Hospitality Group®.
It’s no secret. The right management agreement can add a lot of value to a property. But in times like these, a long-term, no cut, hotel management agreement can be a big “encumbrance” on value. In fact, we have seen a number of real-life situations where hotel is worth up to TWICE as much without the branded hotel management agreement.
The hotel lawyers in JMBM’s Global Hospitality Group® have received a lot of questions lately from hotel owners and hotel lenders about termination of hotel management agreements. So, to get some straight talk on some sensitive questions, we went to one of the most experienced hotel attorneys in the world on this subject — Jim Butler. Jim got started in the hotel business more than 20 years ago when the economy and hotel values were suffering as badly as it looks like they will this time around. That’s when Jim Butler and our Global Hospitality Group® started working with troubled hotel projects and helping owners and lenders understand their options to optimize asset value — often by terminating (or at least re-negotiating) these long-term, no cut, hotel management agreements without liability to owner or lender.
Doubling the value of the hotel by terminating the management agreement?
Not every hotel will double in value by terminating its branded management agreement, but some will. One reason is that over the past 25 years, more than 80 percent of the buyers for hotels costing more than $10 million are either competing hotel companies or a joint ventures of a hotel company and a capital source. If the branded management agreement cannot be terminated, then the seller loses 80 percent of the potential buyers of the property.
The SNDA or Subordination Non Disturbance and Attornment
No wonder that owners and lenders alike want to understand more about termination options for long-term hotel management agreements (or HMAs). Of course, most of the branded HMAs came along with Subordination Non Disturbance and Attornment Agreements (SNDAs). These are the troublesome agreements which bind lenders to honor the terms of the branded management agreement if the lender should ever become the owner of the property, or property should be sold by or through the lender, whether by foreclosure, deed-in-lieu of foreclosure, bankruptcy, or otherwise.
By the way, if you are interested in this article, you will likely be interested in the library of articles on hotel management agreements, and the troubled hotel asset articles available at workouts on www.HotelLawBlog.com.
Ask the Hotel Lawyer™: Terminating hotel agreements without liability
As Marty Collins, CEO of Gatehouse Hospitality, likes to say, “the brands never invite Jim Butler to their Christmas party.” And there is a reason . . . Although JMBM’s Global Hospitality Group® has virtually never failed to consummate a hotel management agreement or other transaction with a brand when the client wanted to do so, we focus on representing owners and lenders, and we preserve our independence vis-à-vis the brands.
Is there any other firm of lawyers or consultants that has built its position in the hospitality industry by focusing on representing owners and lenders? We don’t think so. Most of them can’t afford to be adverse to the brands. Most are conflicted.
We have negotiated, re-negotiated, litigated or arbitrated and advised on many HUNDREDS of hotel management agreements — we believe the number is more than 1,000. We have represented operators and owners, dealt with the most complex issues of hotel managers as fiduciaries, and advised on virtually every aspect of hotel management agreements. We understand how the contract relates to the operations of the hotel business associated with the real estate. We know the players, the norms and customs, and the practices of the industry.
So here are some answers to the most common questions being asked today.
Hotel management agreements can be terminated without liability in the right circumstances.
Q: Is it true that you guys got into the hospitality business by breaking long-term, no cut, management agreements?
"Yes. In the late 1980s, we combined an extensive banking, securities, and real estate expertise with the street knowledge of a hotel partner who had done more than 200 hotel deals. All the brands already had their lawyers. We were primarily representing lenders and owners suffering great pain in the late 1980s and early 1990s.
When we started doing this, terminating these long-term hotel management agreements was virtually unheard of, and the hotel industry was an “old boys” network. The brands wielded incredible authority. It just didn’t look right or seem fair to me, and we saw an opportunity to really help our lender and owner clients. The best place for us was to go against the brands. And we did! We have been there ever since."
Q: But let’s cut to the chase. Most branded hotel management agreements typically run for 20, 30, 50 years or more, with unilateral options by the brand to extend for additional 10- or 20- year terms. Are you saying that you have terminated these agreements?
"Yes. "
Q: Even when there is an SNDA — a Subordination Non-Disturbance and Attornment agreement?
"Yes. "
Q: How do you terminate a branded hotel management agreement, with an SNDA, without liability to owner or lender?
"First, termination is not always the right answer. Often, simple discussions or renegotiation of the management agreement are more appropriate. Who wants to re-brand, unless it’s really necessary?
Second, you really have to look at each individual client’s goals. Again, termination is often not the answer. But one does need to recognize the available options in making intelligent decisions. Sometimes, you just can’t get the brand’s attention or cooperation, and termination is the answer.
We like to think that we help clients identify and evaluate the options and select the right one. This is the benefit of understanding hotels from a business standpoint in addition to a thorough understanding of the legal issues."
Q: Okay. But sometimes termination will be the answer. How do you do it?
"There are at least three ways to terminate a long-term, no cut, hotel management agreement — other than pursuant to express terms (e.g. by expiration of term, termination on sale, termination windows or options, and the like).
In general, they are as follows:
- Talk to the operator and see if they will walk away as a matter of honor, or fairness, or possibly a trade-off of value.
- Terminate the hotel management agreement for breach of contract or breach of fiduciary duty. These are subjects far deeper than one might initially suspect, and really are the subject of a whole different discussion. We specialize in evaluating situations in these areas, and have written many articles on these subjects over the past decade.
- Terminate the hotel management agreement by “rejection” in owner’s bankruptcy. A management agreement will almost always be an “executory contract” as defined in the bankruptcy laws. Such contracts can be rejected, as a matter of law, in bankruptcy by a borrower, and on rejection, the injured party (i.e. the management company) becomes an unsecured creditor in the bankruptcy. Where the value of an asset is less than the amount of the senior encumbrance, the hotel operator stands in line with all the other unsecured creditors and receives nothing or whatever amount is negotiated to facilitate the bankruptcy. By this process, potentially tens of millions or hundreds of millions of dollars of damages are converted to nothing or pennies on the dollar. "
Q: So it’s really that simple? A borrower rejects a hotel management agreement in bankruptcy and sheds the management agreement for free?
"That is an oversimplification, but it is the basic approach. There can be a lot of complications and questions, and you need someone who’s been through this before to run the traps for you, or you can get tangled up.
A borrower can reject a hotel management agreement as an executory contract without liability, and the lender will not be bound by the SNDA — at least if the asset is sold through a bankruptcy, or a prepackaged bankruptcy. This can add tremendous value to an asset for both the borrower and the lender. "
Q: In other words, the borrower and the lender recover substantial value for the hotel asset that has otherwise been sucked out of the asset by the operator through the long-term, no cut, management agreement?
"Yes. I am sure that operators would like to put it another way, but much of the suppressed value is recovered by the borrower (and, indirectly, the lender) when a long-term hotel management agreement is terminated. "
So why doesn’t every hotel borrower and lender take the option to terminate the long-term agreement?
"As I said, termination is not the right answer in every case. It is always preferable to discuss the options and problems with the hotel operator to see if a business solution can be reached. But it is important to know your options. Hotel operators can be tough and don’t usually tell you what your other options are.
The bankruptcy rejection solution also requires that the hotel be “underwater” — the value of the hotel is less than the value of the senior debt. Otherwise, the unsecured damage claim of the hotel operator for breach of contract will come out of somebody’s pocket. So this resolution is generally reserved for cases where hotel is severely underwater.
And in these cases, one tries to avoid the bankruptcy trump card, if possible. In other words, it is preferable to arrive at the end solution without going through the “bankruptcy process” if possible. Sometimes, when checkmate is obvious in three moves, operators may accommodate the result without going through the process of all the plays to get the checkmate. "
As economic pain in the hospitality industry drives deeper and deeper, more owners and lenders will look to parties to share their pain. An obvious party that usually is “above the fray” is a branded hotel operator, hotel brand, or union. All are susceptible to rejection of their executory contracts in bankruptcy along the lines discussed above.
Additional resources on Hotel Management Agreements and Troubled Hotel Assets
The Hospitality Lawyers of JMBM’s Global Hospitality Group® recommend the resources available by clicking on the links for Hotel Management Agreements and Hotel Workouts, Receiverships and Bankruptcies — available for free on www.HotelLawBlog.com. They can help you create millions of dollars of value with your hotel. The following are a few selections from these libraries:
Other articles on Hotel Law Blog about terminating hotel management agreements
More on M Waikiki Edition lawsuit against Marriott – What Marriott’s General Counsel says
M Waikiki’s Edition lawsuit against Marriott and Ian Schrager – an owner’s HMA dispute with Marriott
Terminating hotel operators: Turnberry Resort drops Fairmont flag
Hotel management agreement terminations — Is there a better way?
Terminating hotel management agreements when things don’t work? Not easy, but not impossible either.
Ritz-Carlton Bali hotel management agreement termination further court order
How to terminate a hotel management agreement when an operator really deserves it!
This is Jim Butler, author of www.HotelLawBlog.com and hotel lawyer, signing off. We’ve done more than $87 billion of hotel transactions and more than 100 hotel mixed-used deals in the last 5 years alone. Who’s your hotel lawyer?
Our Perspective. We represent developers, owners and lenders. We have helped our clients as business and legal advisors on more than $125 billion of hotel transactions, involving more than 4,700 properties all over the world. For more information, please contact Jim Butler at jbutler@jmbm.com or 310.201.3526.
Jim Butler is one of the top hospitality attorneys in the world. GOOGLE “hotel lawyer” or “hotel mixed-use” or “condo hotel lawyer” and you will see why.
Jim devotes 100% of his practice to hospitality, representing hotel owners, developers and lenders. Jim leads JMBM’s Global Hospitality Group® — a team of 50 seasoned professionals with more than $87 billion of hotel transactional experience, involving more than 3,900 properties located around the globe. In the last 5 years alone, Jim and his team have assisted clients with more than 100 hotel mixed-use projects — frequently integrated with energizing lifestyle elements.
Jim and his team are more than “just” great hotel lawyers. They are also hospitality consultants and business advisors. They are deal makers. They can help find the right operator or capital provider. They know who to call and how to reach them.
Contact him at jbutler@jmbm.com or 310.201.3526. For his views on current industry issues, visit www.HotelLawBlog.com.