| By: Rob
Nicholas, Esq If the global recession of 2008 was an earthquake, its aftershocks are still being felt throughout the hotel industry. The recession has caused occupancy and rates to plummet, sending hotel values into a downward spiral. HVS recently reported that the average value of hotels across the United States is expected to drop to $50,000 per key in 2010, down 50% from the high water mark of $100,000 per key in 2006. In light of the high prices paid by many hotel buyers during the period 2005 through 2007 (and the highly leveraged loans they were able to get), you can understand why many owners owe more than their hotels are worth today. Additionally, since the gross operating income generated by many of these hotels is not sufficient to cover all or some portion of debt service, operating expenses, taxes, insurance and compliance with “brand” standards, many owners are having to fund operating shortfalls from their own funds, while others are defaulting in paying their monthly debt service or in paying their loan balance at maturity. In an effort to stave off foreclosure, the owners of these distressed hotels are turning to their lenders hoping to restructure their loans. In order to have meaningful “work-out” discussions with their lenders, they soon learn that they must provide their lenders with a detailed plan for turning around their hotel’s performance. This, of course, requires the involvement of the party who has the most knowledge about the hotel’s operations and performance…the hotel manager. As will be discussed in this article, unless the interests of the major hotel companies under their brand management agreements are aligned with the interests of the owners and their lenders, the hotel manager will have little or no incentive to cooperate in the workout discussions. For owners, this may mean that they will not be able to modify their loans and will not be able to improve their cash flow by restructuring their hotel brand management agreements. For lenders, this may mean that they will be unable to find a buyer willing to pay top dollar for the hotel after acquiring the hotel by foreclosure or deed in lieu of foreclosure. While the proliferation of hotel construction leading up to the recession and the recession itself have wreaked havoc on hotels, the seeds for this destruction were sown when many of the major brands opted to manage hotels rather than to own them. The hotel companies found that they could avoid the risks of ownership and operation while securing a constant stream of income by entering into long term, non-terminable management agreements. The more stable and uninterrupted the stream of income, the greater the value Wall Street placed on these companies. Consequently, hotel company management agreements became more and more favorable to the hotel companies, as evidenced by the following:
Hopefully, owners and lenders will learn a few lessons from the downturn and won’t forget them once the market turns around. Some of these lessons should include the following:
The items listed above are just some of the ways an owner can try to align its own interests with those of its management company. They all share a common denominator: to incentivize the hotel companies to participate in and to contribute to turning around a hotel’s performance. Alignment is necessary to insure the profitability of the hotel for the owner in good times, and to enable the owner to cause the management company to cooperate in bad times. Without alignment, owners and lenders will remain at risk. While some owners have tried to negotiate for provisions that encourage alignment, the bargaining power of the hotel companies has been too great and owners, anxious to make a deal, have been too quick to give in. In order to reverse this trend, owners and lenders will need to identify the provisions that are of importance to them and to aggressively negotiate to have them included in the management agreement. Otherwise, history will surely repeat itself. * Hotel brand or company management agreement is meant to refer to those agreements with any number of the major hotel companies who manage and lend their brand to the hotel, in contrast to an independent third party management agreement, under which the hotel is managed by a manager who is not associated with any particular brand.  ABOUT
THE AUTHOR: Rob Nicholas, a partner at Haas & Najarian
LLP, specializes in
representing owners, developers and managers in the acquisition,
financing,
management, leasing, construction and disposition of commercial real
property,
with an emphasis on hotels. He also has
extensive experience in the negotiation and drafting of hotel
management
agreements (on behalf of owners and managers) and in the review and
negotiation
of hotel license agreements, subordination and non-disturbance
agreements and
comfort letters. Mr. Nicholas is an
allied member of the Asian American Hotel Owners Association, the
Academy of
Hospitality Industry Attorneys, the American Hotel & Lodging
Association,
and is a member of the Real Property Section of the American Bar
Association
(Hotels and Hospitality Subsection) and the California State Bar and
San
Francisco Bar Association. Mr. Nicholas enjoys an “AV” rating in
Martindale-Hubbell.  ABOUT HAAS &
NAJARIAN: Since its inception in 1973, Haas & Najarian
LLP has provided legal
counsel to a diverse client base in the areas of real estate, entity
structuring and formation, taxation, estate planning and trust
administration,
employment law and litigation/alternative dispute resolution.
The
Firm’s Hotel Real Estate Practice Group represents owners and
developers
locally and nationally in the acquisition, disposition, financing,
leasing,
construction and management of hotels and other hospitality
properties. Many of the Firm’s attorneys have significant
experience in negotiating hotel management, license and operating
agreements. In order to better serve its
hotel and restaurant clients, the Firm recently hired Baxter Rice, a
past
director of the California Department of Alcoholic Beverage Control, as
an in-house
consultant to advise clients on and to facilitate the acquisition and
transfer
of liquor licenses in California. Mr.
Rice works with Dan Kramer, Esq. in providing legal representation and
counsel
regarding all aspects of liquor licensing, including working with
lenders and
receivers in making sure a troubled hotel will be able to continue to
provide
alcoholic beverages to its guests. To learn more about Haas & Najarian, visit its website at www.hnattorneys.com. |