PRIVILEGED AND CONFIDENTIAL — ATTORNEY WORK PRODUCT
MEMORANDUM
TO: Priya Anand, Responsible Partner, Litigation (General)
FROM: Yuki Nakamura, Lead Associate, Litigation (General)
DATE: March 28, 2024
RE: Settlement Agreement — Key Terms and Drafting Issues; Verimark Hospitality Group Inc. v. Coastal Palms Franchise Holdings LLC et al., Case No. 1021-00006 (Circuit Court of the 17th Judicial Circuit, Broward County, Florida)
CLIENT: Verimark Hospitality Group Inc. (Nasdaq: VHMK)
COPIES: Douglas Carmichael (Billing Partner); Carlos Espinoza (Working Associate)
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I. Purpose and Background
The purpose of this memorandum is to identify and analyze fourteen (14) open drafting issues that must be resolved in converting the executed Term Sheet dated March 22, 2024 into a definitive Settlement Agreement and Mutual Release (the "Settlement Agreement") in the above-referenced matter. This memorandum is intended to guide the drafting process, flag areas requiring partner-level decision-making and client input, and establish a framework for efficient negotiation with opposing counsel.
A. Procedural Background
Verimark Hospitality Group Inc. ("Verimark" or the "Company") commenced this action in April 2022 against Coastal Palms Franchise Holdings LLC ("Coastal Palms"), Randall Brecker, Nolan Prescott, Gulf Breeze Hospitality LLC, Savannah Lodging Partners LLC, and Suncoast Room Management Inc. ("Suncoast"), asserting ten counts arising from the systematic underreporting and diversion of Gross Room Revenue ("GRR") at twenty-two (22) hotel properties operating under Verimark franchise brands. The operative ten-count Complaint alleges, among other things, breach of contract under the Franchise License Agreements ("FLAs"), unjust enrichment, civil conspiracy, and fraudulent concealment.
On February 9, 2024, the Court entered an Order granting Verimark's motion for partial summary judgment on Count I (Breach of Contract — Royalties) and Count II (Breach of Contract — Marketing Fund), finding as a matter of law that Coastal Palms' systematic exclusion of revenues collected by Suncoast Room Management Inc. from the definition of Gross Room Revenue constituted a material breach of FLA §§ 4.1 and 4.2. The Court's Order was significant in that it established liability on the two core contractual counts, leaving only the issues of damages, the remaining eight counts, and Coastal Palms' $12 million counterclaim for trial, which had been scheduled for June 10, 2024.
B. Mediation and Term Sheet
Following the Court's partial summary judgment ruling, the parties participated in a two-day mediation on March 14–15, 2024, before the Honorable Patricia Everwood (Ret.) at Everwood Dispute Resolution PLLC, 2 Alhambra Plaza, Suite 1200, Coral Gables, Florida 33134. After extensive negotiations over the course of both days, the parties reached a tentative settlement, the material terms of which were memorialized in a Term Sheet executed on March 22, 2024. The Term Sheet was signed by Verimark Hospitality Group Inc. (by Renata Solis-Vega, General Counsel), Coastal Palms Franchise Holdings LLC (by Randall Brecker, Managing Member), Randall Brecker individually, and Nolan Prescott individually.
The Term Sheet is expressly non-binding in all respects except for (i) the exclusivity provision requiring the parties to negotiate exclusively toward a definitive Settlement Agreement for a period of forty-five (45) days and (ii) the confidentiality provision restricting disclosure of the settlement discussions and terms.
C. Settlement Value
The total settlement value is $87.5 million, structured as follows:
• Cash at Closing: $25 million, to be funded by wire transfer from an escrow account at Ironclad National Bank.
• Structured Payments: $62.5 million, payable in eight (8) semi-annual installments of $7,812,500 each, with the first installment due on October 22, 2024 and the final installment due on April 22, 2028. Interest accrues at the rate of 6.5% per annum, simple interest, on the outstanding principal balance.
D. Additional Non-Monetary Terms
In addition to the monetary settlement, the Term Sheet contemplates the following non-monetary terms:
• Franchise Surrender: Coastal Palms will surrender its franchise rights to fourteen (14) of the twenty-two (22) hotel properties currently operating under Verimark brands;
• Enhanced Audit Protocol: The eight (8) retained properties will be subject to an enhanced audit and reporting protocol, including quarterly (rather than annual) audits and real-time POS integration with Verimark's revenue-management system;
• Mutual Release: Broad mutual release of all claims arising from or related to the FLAs through the effective date of the Settlement Agreement;
• Counterclaim Dismissal: Coastal Palms will dismiss its $12 million counterclaim (alleging brand-standard violations and over-billing) with prejudice;
• Mutual Non-Disparagement: Mutual non-disparagement obligation with a three-year term.
E. Opposing Counsel
Defense counsel in this matter is Nathan Whitfield III and Gabriela Montes at Whitfield, Barrow & Crane LLP, 1221 Brickell Avenue, Suite 3000, Miami, Florida 33131. All communications regarding the definitive Settlement Agreement should be directed to Mr. Whitfield and Ms. Montes.
F. Drafting Timeline
Our target is to circulate a first draft of the definitive Settlement Agreement to opposing counsel by April 2, 2024, which is five (5) business days from the date of this memorandum. The target execution date for the fully executed Settlement Agreement and Mutual Release is mid-to-late April 2024, with a specific target of April 22, 2024.
II. Summary of Settlement Terms from Term Sheet
Set forth below is a comprehensive summary of the material terms reflected in the executed Term Sheet. This summary provides the baseline from which the definitive Settlement Agreement will be drafted.
A. Total Settlement Amount
The total settlement amount is $87,500,000.
B. Cash at Closing
$25,000,000 is payable in cash at the closing of the Settlement Agreement, to be funded by wire transfer from an escrow account maintained at Ironclad National Bank. The specific escrow account has not yet been established or identified; coordination with Ironclad will be required, as discussed in Issue 2 and Issue 5 below.
C. Structured Payments
The remaining $62,500,000 is payable in eight (8) semi-annual installments of $7,812,500 each, with the following schedule:
D. Interest on Deferred Payments
Interest accrues at the rate of 6.5% per annum, simple interest, on the outstanding principal balance. The Term Sheet does not specify whether interest is payable concurrently with each installment or in a separate payment, which is an open issue to be addressed in drafting (Issue 3).
E. Security. Verimark will receive a first-priority lien on eight (8) unencumbered hotel properties owned by Coastal Palms or its property-level LLCs. The aggregate appraised value of these eight properties is approximately $71.2 million. In addition, personal guaranties will be provided by Randall Brecker (60% equity holder and Managing Member of Coastal Palms) and Nolan Prescott (25% equity holder and passive investor in Coastal Palms).
F. Franchise Surrender
Coastal Palms will surrender its franchise rights to fourteen (14) of the twenty-two (22) properties within 120 days of the Settlement Agreement effective date. The surrendered properties are located in the following markets:
• Sarasota, Florida: 3 properties
• Fort Myers, Florida: 4 properties
• Jacksonville, Florida: 2 properties
• Savannah, Georgia: 3 properties
• Brunswick, Georgia: 2 properties
G. Retained Properties
Eight (8) properties will be retained under new ten-year Franchise License Agreements incorporating enhanced audit and reporting requirements. The retained properties are located in the following markets:
• Naples, Florida: 4 properties
• Marco Island, Florida: 2 properties
• Tampa, Florida: 2 properties
H. Enhanced Audit Protocol
The retained properties will be subject to a significantly enhanced audit protocol, including: (i) quarterly (not annual) audits; (ii) real-time POS integration with Verimark's revenue-management system; and (iii) Coastal Palms bearing all audit costs for a period of five (5) years from the effective date of the Settlement Agreement.
I. Counterclaim Dismissal
Coastal Palms will dismiss its $12 million counterclaim (Count I of the Counterclaim, alleging brand-standard violations; Count II of the Counterclaim, alleging over-billing of technology fees) with prejudice.
J. Mutual Release
The parties will exchange a broad mutual release of all claims arising from or related to the FLAs through the effective date of the Settlement Agreement, subject to carve-outs for obligations arising under the Settlement Agreement itself.
K. Confidentiality. The settlement amount and terms are to be treated as confidential, subject to Verimark's SEC disclosure obligations as a public company. Verimark anticipates disclosing the settlement as a "material litigation settlement" in its Q2 2024 Form 10-Q filing.
L. Non-Disparagement. Mutual non-disparagement with a three-year term.
M. Settling Parties
The Term Sheet contemplates the following settling parties:
1. Verimark Hospitality Group Inc.
2. Coastal Palms Franchise Holdings LLC
3. Randall Brecker
4. Theresa Brecker
5. Nolan Prescott
6. Gulf Breeze Hospitality LLC
7. Savannah Lodging Partners LLC
8. Suncoast Room Management Inc.
As discussed in Issue 1 below, although the Term Sheet was signed only by Verimark, Coastal Palms, Randall Brecker, and Nolan Prescott, the definitive Settlement Agreement must include all eight parties listed above.
III. Open Drafting Issues
The following fourteen issues have been identified as requiring resolution before the definitive Settlement Agreement can be finalized. Each issue is discussed in detail below, together with a recommended approach and specific drafting actions.
Issue 1: Parties to the Settlement Agreement
The Problem. The Term Sheet was signed by only four parties: Verimark Hospitality Group Inc., Coastal Palms Franchise Holdings LLC, Randall Brecker, and Nolan Prescott. However, the definitive Settlement Agreement must include at least four additional parties to ensure that the mutual release is comprehensive and that all entities and individuals with claims or potential claims are bound.
Additional Parties Required. The following additional parties must be included:
1. Theresa Brecker — Theresa Brecker holds a 15% equity membership interest in Coastal Palms Franchise Holdings LLC. She is not a defendant in the underlying litigation, but her membership interest in the principal defendant entity, combined with her status as Randall Brecker's spouse, makes it essential that she be a party to the mutual release to foreclose any argument that she retains derivative or individual claims.
2. Gulf Breeze Hospitality LLC — Gulf Breeze Hospitality LLC is a Florida limited liability company that owns and operates six (6) Verimark Suites properties in Southwest Florida. It is a property-level entity that is a party to individual FLAs with Verimark and that holds title to certain properties that may be among the surrendered or collateral properties. While Gulf Breeze was not named as a defendant in the Complaint, it is a direct counterparty to certain FLAs that are being terminated as part of the settlement, and its cooperation is essential to the franchise-surrender and de-identification process.
3. Savannah Lodging Partners LLC — Savannah Lodging Partners LLC is a Georgia limited liability company that owns and operates four (4) Verimark Suites properties in coastal Georgia (three in Savannah and one in Brunswick, with one additional Brunswick property owned directly by Coastal Palms). Like Gulf Breeze, Savannah Lodging is a party to individual FLAs with Verimark and holds title to certain surrendered properties.
4. Suncoast Room Management Inc. — Suncoast Room Management Inc. is the Florida corporation at the center of the revenue-diversion scheme that gave rise to this litigation. Suncoast is a named defendant in Count VII (Unjust Enrichment) and Count X (Civil Conspiracy) of the Complaint. The mutual release must bind Suncoast to preclude any future claims against it arising from its collection of off-platform guest-room revenues through the gulfcoastrooms.com booking channel and related activities.
Drafting Actions.
(a) Include all eight (8) entities and individuals identified above as named parties to the definitive Settlement Agreement. Each party must execute the Settlement Agreement and deliver a separate signature page.
(b) Confirm authority for Randall Brecker to sign on behalf of Coastal Palms Franchise Holdings LLC, Gulf Breeze Hospitality LLC, Savannah Lodging Partners LLC, and Suncoast Room Management Inc. Mr. Brecker serves as Managing Member of Coastal Palms, Gulf Breeze, and Savannah Lodging, and as President of Suncoast. However, the organizational documents of each entity should be reviewed to confirm that Mr. Brecker has actual authority to bind each entity to the Settlement Agreement. Request certified copies of operating agreements and corporate bylaws, as applicable, to the extent not already in our files from discovery.
(c) Theresa Brecker must sign individually. She is not an officer, director, or managing member of any defendant entity and therefore must execute the Settlement Agreement in her personal capacity.
(d) Include representations and warranties from each party regarding: (i) authority to execute and deliver the Settlement Agreement and to perform its obligations thereunder; (ii) organizational existence and good standing (for entity parties); (iii) no prior assignment of claims being released; (iv) no pending or threatened bankruptcy or insolvency proceedings; and (v) that execution of the Settlement Agreement does not conflict with or violate any other agreement, order, or applicable law.
Issue 2: Payment Mechanics — Initial $25 Million Cash Payment
The Problem. The Term Sheet provides that the $25 million initial cash payment will be made by wire transfer from an escrow account at Ironclad National Bank but does not specify the mechanics of the wire transfer, the conditions under which the escrow will be funded, or the consequences of a failure to fund.
Drafting Requirements. The definitive Settlement Agreement must address the following:
(a) Source Account. The Settlement Agreement should identify or provide a mechanism for identifying the Ironclad National Bank escrow account from which the $25 million payment will be funded. If the escrow account has not yet been established, the Settlement Agreement should require Coastal Palms to establish the account and fund it no later than a specified number of business days prior to the Closing Date (recommend three (3) business days).
(b) Recipient Account. The Settlement Agreement should either identify Verimark's recipient account directly or provide that Verimark will deliver wire-transfer instructions to Coastal Palms (or the escrow agent) in a closing-day funds-flow memorandum, to be delivered no later than two (2) business days prior to the Closing Date.
(c) Timing. The $25 million payment must be made at or before the Closing. I recommend defining "Closing" as the consummation of the transactions contemplated by the Settlement Agreement, and "Closing Date" as the date on which all conditions precedent have been satisfied or waived and all deliverables have been exchanged. The $25 million wire transfer should be a condition precedent to the Closing — that is, the Closing does not occur unless and until the wire has been sent and receipt has been confirmed.
(d) Definition of "Receipt." The Settlement Agreement should specify that payment is deemed "received" upon confirmation of a federal-reference confirmed wire transfer to Verimark's designated account. This is standard practice for settlement payments of this magnitude and avoids disputes about when the payment obligation has been satisfied.
(e) Consequence of Failure to Fund. The Settlement Agreement must address what happens if Coastal Palms fails to fund the $25 million initial payment on the Closing Date. Two approaches are available:
(i) Automatic Termination. If the $25 million is not received by the Closing Date (or any extended closing date agreed to by the parties), the Settlement Agreement is automatically void and of no further force or effect, and both parties' litigation rights are preserved. This approach protects Verimark from being bound to a settlement without receiving the initial consideration but may be too rigid.
(ii) Cure Period. The Settlement Agreement provides Coastal Palms with a limited cure period (recommend three (3) business days) to fund the $25 million, after which Verimark may elect to either (A) terminate the Settlement Agreement or (B) declare an immediate event of default and pursue remedies under the guaranties and security instruments.
I recommend the cure period approach (option (ii)) as it provides both flexibility and protection. However, this is a point on which opposing counsel may have strong views, and it should be discussed with Priya Anand before including a specific proposal in the first draft.
Ironclad National Bank Coordination. The $25 million initial payment is to be funded through an escrow account at Ironclad National Bank. Devon Schultz, Senior Vice President, Commercial Real Estate Lending, at Ironclad's Atlanta office (225 Peachtree Street NE, Suite 2600, Atlanta, Georgia 30303) is the primary relationship manager for Coastal Palms' lending facilities. Ironclad holds first-lien mortgage loans on eighteen (18) of the twenty-two (22) Coastal Palms properties, with an aggregate outstanding balance of approximately $94 million. The source of the escrow funds — whether from a refinancing, a drawdown on an existing credit facility, or Coastal Palms' own deposits — has not been disclosed. Ironclad's consent may be required for the escrow arrangement and for the wire transfer, depending on the source of funds and any restrictions in Ironclad's loan documents. This issue overlaps substantially with Issue 5 below.
Recommended Conditions Precedent to Closing. I recommend that the Settlement Agreement include the following conditions precedent to the Closing:
(a) Delivery of fully executed Settlement Agreement by all parties;
(b) Receipt of the $25 million initial payment via federal-reference confirmed wire transfer;
(c) Delivery of fully executed Personal Guaranties by Randall Brecker and Nolan Prescott;
(d) Filing of UCC-1 Financing Statements and recording of mortgages/deeds of trust on the eight (8) collateral properties (or confirmation that such filings and recordings will be effected within a specified number of business days following Closing);
(e) Receipt of Ironclad National Bank consent letter (if required); and
(f) Delivery of all other closing deliverables specified in the Settlement Agreement.
Issue 3: Structured-Payment Schedule and Interest Calculation
The Problem. While the Term Sheet establishes the basic parameters of the structured-payment obligation ($62.5 million in eight semi-annual installments at 6.5% simple interest), several mechanical and computational details are left unaddressed.
Payment Schedule. The eight semi-annual installments of $7,812,500 each are payable on the following dates:
Drafting Points.
(a) Amortization Schedule (Exhibit A). A detailed amortization and payment schedule should be prepared and attached to the Settlement Agreement as Exhibit A. For each payment date, the schedule should specify: (i) the installment amount ($7,812,500); (ii) accrued interest for the applicable period; (iii) total payment due (principal installment plus accrued interest); and (iv) remaining outstanding principal balance after application of the installment. Carlos Espinoza will prepare this exhibit. At 6.5% simple interest per annum on the declining balance, the total interest payable over the four-year payment period will be significant, and the schedule must be precise to avoid future disputes.
(b) Interest Payment Timing. The Term Sheet does not specify whether interest is payable concurrently with each installment or in separate payments. I recommend that interest be payable concurrently with each semi-annual principal installment — that is, each payment consists of the $7,812,500 principal installment plus accrued simple interest on the outstanding balance for the preceding six-month period. This is the simpler and more conventional approach for structured settlement payments.
(c) Payment Method. All structured payments should be made by wire transfer to an account designated by Verimark. The Settlement Agreement should specify that payment instructions will be provided at Closing or by written notice at least ten (10) business days prior to any change in account details.
(d) Business-Day Convention. If any payment date falls on a Saturday, Sunday, or bank holiday, payment should be due on the next succeeding business day. The Settlement Agreement should define "business day" as any day other than a Saturday, Sunday, or day on which banks in the State of Florida or the State of New York are authorized or required by law to be closed.
(e) Definition of "Late" Payment. A payment should be deemed "late" if it is not received by the close of business on the payment date (or the next business day, if applicable). The distinction between a "late" payment and a default triggering acceleration is critical and is addressed in Issue 7 below. A payment that is late but cured within the grace period should incur only a late charge, not full acceleration.
(f) Partial Payments. The Settlement Agreement should specify whether partial payments are permitted. I recommend that each installment must be paid in full — no partial payments accepted — unless Verimark provides express written consent. This avoids the administrative burden of tracking partial payments and ensures clean enforcement of the payment schedule.
(g) Late-Payment Penalty. For payments not received on or before the applicable due date, the Settlement Agreement should impose a late charge. I recommend a late charge of 1.5% per month (18% per annum), which is consistent with the late-payment rate specified in FLA § 4.6 and is enforceable under Florida law. In addition, if a late payment is not cured within the applicable grace period (see Issue 7), the outstanding balance should accrue interest at a default rate (recommend the greater of 12% per annum or the applicable statutory judgment rate under Florida Statutes § 55.03).
(h) Prepayment. The Settlement Agreement should address whether Coastal Palms has the right to prepay all or a portion of the structured payments without penalty. I recommend permitting prepayment without penalty in order to encourage early satisfaction of the obligation, but this point may be negotiated by opposing counsel. If prepayment is permitted, the Settlement Agreement should specify how prepayments are applied (i.e., first to accrued interest, then to principal, and in inverse order of maturity unless otherwise agreed).
Issue 4: Security Interest — Perfection and UCC-1 Filings
The Problem. The Term Sheet provides that Verimark will receive a "first-priority lien" on eight (8) unencumbered hotel properties owned by Coastal Palms or its property-level LLCs, with an aggregate appraised value of $71.2 million. The Term Sheet does not address the mechanics of perfecting this security interest or the specific form of security documentation required.
Drafting Requirements.
(a) Security Agreement (Exhibit F). A formal Security Agreement must be prepared and attached to the Settlement Agreement as Exhibit F. The Security Agreement must identify each of the eight (8) specific unencumbered properties by: (i) property name; (ii) street address; (iii) legal description (metes and bounds or plat reference, as applicable); (iv) the entity holding title to each property; and (v) Broward County, Collier County, Lee County, Hillsborough County, or other applicable county property-tax identification numbers.
(b) Identification of Owning Entities. It is critical to confirm which entity holds title to each of the eight unencumbered properties. The properties may be owned by Coastal Palms Franchise Holdings LLC directly, by Gulf Breeze Hospitality LLC, by Savannah Lodging Partners LLC, or by another property-level LLC that has not yet been identified. The Security Agreement must be executed by the entity holding title to each property, and if multiple entities hold title to different properties, separate security agreements (or a single agreement with multiple debtors) will be required. Title searches (discussed in subsection (e) below) will resolve this question.
(c) UCC-1 Financing Statements. UCC-1 Financing Statements must be prepared for filing with the Florida Secured Transaction Registry (for all Florida properties among the eight) and with the Georgia Secured Transaction Registry (for any Georgia properties among the eight, if applicable). The debtor name on each UCC-1 must exactly match the entity name as filed with the applicable Secretary of State. Any discrepancy in the debtor name could render the filing ineffective for priority purposes under the Uniform Commercial Code. We must obtain certified copies of the certificates of formation and articles of organization for each owning entity from the Florida Division of Corporations and, if applicable, the Georgia Secretary of State.
(d) Real-Property Collateral — Mortgage/Deed of Trust. This is a critical drafting issue. UCC-1 filings perfect security interests in personal property (including fixtures and certain personalty associated with hotel operations) but do not perfect security interests in real property itself. The eight collateral properties are hotel real estate — land and improvements. To obtain a first-priority lien on the real-property interest in these eight hotel properties, Verimark must record mortgages (in Florida) and/or deeds to secure debt (if any of the eight properties are in Georgia, which uses deeds to secure debt rather than mortgages). A UCC-1 alone is insufficient to encumber the fee-simple interest in the underlying real estate.
I strongly recommend that Verimark insist on recording mortgages (or deeds to secure debt) on the eight collateral properties in addition to filing UCC-1s. Without recorded mortgages, Verimark's "first-priority lien" on these properties would be limited to personal property and fixtures and would not encumber the land and improvements — which is the vast majority of the $71.2 million aggregate appraised value. This issue should be raised with Priya Anand for resolution before the first draft is circulated.
(e) Title Searches. Before the Closing, title searches must be conducted on each of the eight properties designated as collateral to confirm that they are, in fact, unencumbered — that is, not subject to mortgages, liens, judgments, tax liens, or other encumbrances held by Ironclad National Bank or any other party. I recommend engaging a title company (suggest First Coastal Title Company, which has handled our title work in other Verimark matters) to conduct full title searches and issue title commitments for each of the eight properties. The title searches should be commenced on or before April 1, 2024 to ensure that results are available before the target execution date.
(f) Timing of Filings and Recordings. UCC-1 filings and mortgage recordings should be either (i) conditions precedent to the Closing, requiring completion before the Closing Date, or (ii) closing deliverables to be effected concurrently with the Closing. I recommend the concurrent approach — the parties close and exchange signature pages, and UCC-1s and mortgages are filed/recorded within two (2) business days after Closing, with an escrow holdback or other mechanism to protect Verimark in the interim.
(g) Anti-Subordination and Negative Covenant. The Settlement Agreement and/or the Security Agreement must include a covenant prohibiting Coastal Palms and the property-level owning entities from further encumbering, mortgaging, pledging, or granting any lien on the eight collateral properties without Verimark's prior written consent. This covenant should also restrict the sale, transfer, or disposition of any collateral property without Verimark's consent and should survive for so long as any portion of the $62.5 million structured-payment obligation remains outstanding.
Issue 5: Ironclad National Bank — Subordination / Consent / Intercreditor Issues
The Problem. Ironclad National Bank ("Ironclad") holds first-lien mortgages on eighteen (18) of the twenty-two (22) Coastal Palms properties, with an aggregate outstanding loan balance of approximately $94 million. The eight properties designated as collateral for the settlement structured payments are described in the Term Sheet as "unencumbered," which we understand to mean that they are among the four (4) properties not subject to Ironclad's existing mortgage liens. However, several issues related to Ironclad must be addressed.
Key Drafting Considerations.
(a) Confirmation of Unencumbered Status. We must obtain written confirmation from Ironclad that it does not hold liens on the eight designated collateral properties. As an initial matter, the description of eight properties as "unencumbered" needs to be reconciled with the fact that Ironclad holds mortgages on only eighteen of twenty-two properties, leaving only four properties outside Ironclad's mortgage portfolio. If there are only four Ironclad-unencumbered properties, we cannot designate eight properties as "unencumbered" collateral without further investigation. It is possible that some or all of the eight designated properties are among the eighteen Ironclad-mortgaged properties but that Ironclad has released its lien on those specific properties, or that certain properties are owned by entities that are not borrowers under the Ironclad facility. This is a factual question that must be resolved urgently.
I recommend that we request from Devon Schultz at Ironclad (i) a list of all properties subject to Ironclad's mortgage liens, identified by property name and address, and (ii) lien-release letters or a comfort letter confirming that the eight designated collateral properties are free and clear of Ironclad liens.
(b) Negative-Covenant Review. Even if the eight designated properties are not subject to Ironclad's existing mortgage liens, Ironclad's loan agreements with Coastal Palms may contain negative covenants that restrict Coastal Palms' ability to grant additional security interests or liens on any of its properties — including properties that are not part of Ironclad's collateral pool. Such "negative pledge" covenants are common in commercial real estate lending and could prohibit Coastal Palms from granting Verimark a first-priority lien on the eight properties without Ironclad's prior written consent. We must obtain and review the relevant Ironclad loan documents (credit agreement, security agreement, mortgage instruments, and any intercreditor agreements) to confirm whether such covenants exist.
(c) Waiver or Consent from Ironclad. If Ironclad's loan covenants do contain negative-pledge restrictions that would be triggered by the grant of a security interest to Verimark, Coastal Palms will need to obtain a waiver or consent from Ironclad before closing the Settlement Agreement. I recommend preparing a draft consent and acknowledgment letter for Ironclad's signature, acknowledging (i) that Coastal Palms is entering into the Settlement Agreement and granting Verimark a first-priority lien on the eight designated properties; (ii) that such grant does not constitute a default or event of default under the Ironclad loan documents; and (iii) that Ironclad has no lien on, or other interest in, the eight designated properties. This letter should be circulated to Devon Schultz for Ironclad's review and execution prior to the Closing Date.
(d) Source of Escrow Funds for Initial Payment. Ironclad is involved in the funding of the $25 million initial payment, which is to be disbursed from an escrow account at Ironclad. The source of these funds is unclear. If the $25 million is coming from a refinancing or drawdown on the existing Ironclad credit facility, Ironclad's cooperation is essential, and the terms of the refinancing or drawdown may affect Ironclad's willingness to consent to the Verimark security interest on the eight properties. If the $25 million consists of Coastal Palms' own deposits held at Ironclad, the arrangement may be simpler but may still implicate deposit-account control agreements or other restrictions. This issue should be clarified with opposing counsel as soon as practicable.
(e) Cross-Default Provisions. We should consider whether to include a cross-default provision in the Settlement Agreement providing that a default by Coastal Palms under its Ironclad loan facilities constitutes an event of default under the Settlement Agreement. The rationale is that if Coastal Palms defaults on its $94 million senior lending facility, its ability to make the structured settlement payments to Verimark is likely to be materially impaired, and Verimark should have the ability to accelerate and enforce its remedies before the collateral properties are consumed by Ironclad's enforcement actions. However, a cross-default provision also creates risk for Verimark if Ironclad seeks to include a reciprocal cross-default in its loan documents — i.e., a default under the Settlement Agreement triggering a default under the Ironclad loans. This is a policy question that should be discussed with Priya Anand before inclusion in the first draft.
(f) Representation from Coastal Palms. At a minimum, the Settlement Agreement should include a representation and warranty from Coastal Palms that the grant of the security interest to Verimark does not violate any existing loan covenant, mortgage restriction, or contractual obligation, and that all consents or waivers necessary for the grant of such security interest have been obtained prior to the Closing Date.
Issue 6: Personal Guaranties — Scope and Limitations
The Problem. The Term Sheet provides for personal guaranties from Randall Brecker and Nolan Prescott, but does not specify the scope, limitations, or form of the guaranties.
Drafting Issues.
(a) Scope of Guaranty. The guaranty should be a full, unconditional, and irrevocable guaranty of the entire $62.5 million structured-payment obligation, including all principal, accrued interest, late charges, default interest, costs, and expenses. The guaranty should be joint and several — meaning Verimark may pursue either or both guarantors for the full amount without first exhausting remedies against Coastal Palms or the collateral. I recommend against any cap on the guaranty amount or any limitation on the guaranteed obligations. This will likely be a point of negotiation with opposing counsel, as guarantors typically resist open-ended exposure, but given the collectibility risks in this case (as discussed in Section VIII below), a full and uncapped guaranty is appropriate.
(b) Waiver of Suretyship Defenses. The guaranty should include comprehensive waivers of all suretyship defenses available under Florida law, including but not limited to: (i) notice of acceptance of the guaranty; (ii) presentment, demand, protest, and notice of dishonor; (iii) notice of any amendment, modification, or extension of the Settlement Agreement or payment schedule; (iv) the right to require Verimark to proceed first against Coastal Palms or the collateral (waiver of marshaling); (v) the defense of impairment of collateral; and (vi) any defense based on the bankruptcy, insolvency, or discharge of Coastal Palms. These waivers are generally enforceable under Florida law, subject to certain limitations on waiver of fraud-based defenses.
(c) Financial Condition Representations. Each guarantor should provide representations and warranties regarding his personal financial condition, including that (i) he is solvent and able to pay his debts as they come due; (ii) he has disclosed all material liabilities; and (iii) there has been no material adverse change in his financial condition since a specified date. I recommend requiring each guarantor to deliver a current personal financial statement at or before the Closing, and annually thereafter for so long as any guaranteed obligations remain outstanding.
(d) Guarantor Profiles. Randall Brecker is the 60% equity holder and Managing Member of Coastal Palms; he is 58 years old and is the operational principal of the Coastal Palms enterprise. Nolan Prescott is the 25% equity holder and a passive investor; he is 67 years old. Both guarantors' net worth and liquidity should be evaluated to confirm that the guaranties provide meaningful credit support. We should request personal financial statements from opposing counsel as a condition of closing.
(e) Theresa Brecker. Theresa Brecker holds a 15% equity interest in Coastal Palms but is not identified as a guarantor in the Term Sheet. Given her ownership stake and the risk that Randall Brecker could transfer assets to Theresa to place them beyond the reach of the guaranty, I recommend that we raise with Priya Anand the question of whether to request Theresa Brecker's personal guaranty as well. If the client determines that requesting her guaranty would create undue friction in the negotiation, an alternative approach would be to include restrictions on asset transfers by Randall Brecker to Theresa Brecker or to any family trust or estate-planning vehicle.
(f) Form of Guaranty (Exhibit E). Separate guaranty forms should be prepared for Randall Brecker and Nolan Prescott. Carlos Espinoza will prepare the initial drafts of these forms as Exhibit E to the Settlement Agreement.
(g) Ongoing Obligations of Guarantors. The guaranty should impose the following ongoing obligations on each guarantor: (i) delivery of annual personal financial statements within ninety (90) days of the end of each calendar year; (ii) prompt notice of any material adverse change in financial condition; (iii) restrictions on transfer of assets in excess of a specified threshold without Verimark's consent; (iv) restrictions on guaranteeing or pledging assets for the benefit of third parties without Verimark's consent; and (v) cooperation with any reasonable request by Verimark for information regarding the guarantor's financial condition.
(h) Events of Default Under Guaranty. The guaranty should define the following events of default: (i) failure by the guarantor to pay any amount due under the guaranty within the applicable grace period; (ii) breach of any representation or warranty made by the guarantor; (iii) filing of a voluntary or involuntary bankruptcy petition by or against the guarantor; (iv) a material adverse change in the guarantor's financial condition; and (v) any transfer of assets in violation of the restrictions described in subsection (g) above.
Issue 7: Acceleration Triggers and Events of Default
The Problem. The Term Sheet does not define events of default or acceleration triggers. The definitive Settlement Agreement must include a comprehensive events-of-default provision that specifies the circumstances under which the entire outstanding balance of the $62.5 million structured-payment obligation (plus all accrued interest) becomes immediately due and payable.
Recommended Acceleration Triggers. I recommend the following events of default, each of which should trigger acceleration of the outstanding balance at Verimark's election:
(a) Payment Default. Failure by Coastal Palms to make any installment payment or interest payment within a specified grace period after written notice of nonpayment. I recommend a grace period of ten (10) business days after Verimark delivers written notice to Coastal Palms that a payment is past due. This grace period is intended to accommodate inadvertent delays in wire processing or similar administrative issues but is short enough to protect Verimark's interests. Opposing counsel may seek a longer grace period; I recommend resisting any period exceeding fifteen (15) business days.
(b) Breach of Representation or Warranty. Any representation or warranty made by Coastal Palms or any other party to the Settlement Agreement proves to have been materially false or misleading when made, including representations regarding authority, organizational existence, financial condition, absence of prior claims assignments, and unencumbered status of the collateral properties.
(c) Breach of Enhanced Audit Protocol. Failure by Coastal Palms to comply with any material obligation under the Enhanced Audit Protocol (Exhibit D) for the eight retained properties, including failure to permit quarterly audits, failure to implement or maintain real-time POS integration, or failure to pay audit costs. A cure period of thirty (30) days after written notice is appropriate for audit-protocol breaches, given the operational complexity of the audit obligations.
(d) Failure to De-Identify Surrendered Properties. Failure by Coastal Palms to comply with the de-identification requirements for the fourteen surrendered properties within the 120-day deadline (August 20, 2024, assuming an April 22, 2024 effective date). This default should be subject to a limited cure period (recommend fifteen (15) business days after written notice) to account for the possibility that minor items of branded collateral may remain at a property after the deadline.
(e) Bankruptcy or Insolvency. The filing of a voluntary petition under the United States Bankruptcy Code (Title 11, U.S.C.) by Coastal Palms, Gulf Breeze Hospitality LLC, Savannah Lodging Partners LLC, Suncoast Room Management Inc., Randall Brecker, or Nolan Prescott. For involuntary petitions filed against any of these parties, the default should be triggered only if the petition is not dismissed within sixty (60) days of filing. General assignments for the benefit of creditors, appointment of a receiver, and similar insolvency events should also constitute defaults.
(f) Material Adverse Change. A material adverse change in the financial condition of Coastal Palms, any property-level LLC, Suncoast, or either guarantor, such that, in Verimark's reasonable judgment, the obligor's ability to perform its obligations under the Settlement Agreement is materially impaired. This is inherently a subjective trigger and may be resisted by opposing counsel; however, it provides important protection given the four-year payout period and the significant senior-lien position held by Ironclad.
(g) Breach of Negative Covenants. Breach of any negative covenant in the Settlement Agreement or Security Agreement, including (i) further encumbrance of the collateral properties without Verimark's consent; (ii) transfer of equity interests in Coastal Palms, Gulf Breeze, Savannah Lodging, or Suncoast without Verimark's consent; (iii) dissolution or liquidation of any obligor entity; or (iv) any sale, transfer, or disposition of collateral properties.
(h) Cross-Default with Ironclad Loan Facilities. If a cross-default provision is included (which remains an open question — see Issue 5(e) above), a default by Coastal Palms under its Ironclad loan agreements that is not cured within any applicable cure period thereunder would constitute an event of default under the Settlement Agreement. I recommend raising this issue with Priya Anand for decision before the first draft is circulated.
Remedies Upon Acceleration. Upon the occurrence of an event of default and the election by Verimark to accelerate, the entire outstanding principal balance plus all accrued and unpaid interest should become immediately due and payable. Verimark may thereupon exercise all rights and remedies available under the Settlement Agreement, the Security Agreement, and the Personal Guaranties, including but not limited to (i) foreclosure on the collateral properties; (ii) collection from the guarantors; and (iii) any other remedies available at law or in equity.
Cure Rights. The Settlement Agreement should distinguish between curable and incurable defaults:
• Curable defaults (payment defaults, audit-protocol breaches, de-identification failures) are subject to cure within the applicable grace period specified for each type of default. If cured within the grace period, the default is deemed waived (subject to recurrence provisions).
• Incurable defaults (bankruptcy filings, dissolution of obligor entities, material fraud) are not subject to cure and trigger immediate acceleration upon written notice by Verimark.
Default Interest Rate. Upon acceleration, the outstanding balance should accrue interest at a default rate of the greater of (i) 12% per annum or (ii) the applicable statutory judgment rate under Florida Statutes § 55.03, from the date of the default until paid in full.
Issue 8: Franchise Surrender — Interaction with Existing FLA Termination Provisions
The Problem. The fourteen properties to be surrendered are each governed by an individual Franchise License Agreement with a twenty-year initial term. The existing FLAs contain specific provisions regarding termination, including a liquidated-damages clause. The Settlement Agreement's franchise-surrender provisions must be drafted to harmonize with, and where appropriate supersede, the existing FLA termination provisions.
Relevant FLA Provisions.
FLA § 14.2(c) provides that "systematic underreporting of Gross Room Revenue shall constitute a material breach that is incapable of cure." The Court's February 9, 2024 Order found as a matter of law that Coastal Palms' exclusion of Suncoast revenues from GRR constituted a material breach under FLA §§ 4.1 and 4.2, which is functionally a finding that the predicate for § 14.2(c) termination has been satisfied.
FLA § 15.3 provides for liquidated damages upon termination for cause, calculated as "three (3) times the trailing-twelve-month aggregate Royalty Fees and Marketing Fund Contributions" for each terminated property. In the Complaint, Verimark asserted $105.5 million in liquidated damages across all twenty-two properties under this provision.
Drafting Considerations.
(a) Negotiated Termination, Not Unilateral Termination for Cause. The Settlement Agreement should characterize the franchise surrender as a negotiated termination of the fourteen FLAs pursuant to the mutual agreement of the parties — not as a unilateral termination for cause by Verimark under FLA § 14.2(c). This distinction is critical because a unilateral termination for cause would independently trigger the § 15.3 liquidated-damages provision, creating a potential argument that Verimark is entitled to liquidated damages in addition to the $87.5 million settlement amount. The Settlement Agreement should contain explicit language that the franchise surrender is in full satisfaction of any termination rights, claims, or remedies (including liquidated damages) under the existing FLAs for the fourteen surrendered properties.
(b) Waiver of Additional Liquidated Damages. The Settlement Agreement should include an explicit waiver by Verimark of any claim for additional liquidated damages under FLA § 15.3 beyond the $87.5 million settlement amount. This waiver should be limited to the fourteen surrendered properties and should not affect Verimark's rights under the new FLAs for the eight retained properties.
(c) Termination Effective Date. Each of the fourteen FLAs should be terminated effective as of the Closing Date, subject to the 120-day de-identification period during which Coastal Palms retains certain limited rights to operate the properties while completing the de-identification process. During the 120-day period, the properties should be deemed to be operating under a transitional license rather than under the full FLA, with Coastal Palms continuing to pay royalties and marketing-fund contributions during the transition period.
(d) Surviving Post-Termination Obligations. Each existing FLA contains post-termination obligations that, by their terms, survive termination. These typically include (i) non-compete covenants (FLA § 17.1 — two-year non-compete within a 25-mile radius of any Verimark-branded property); (ii) confidentiality obligations regarding Verimark proprietary systems, operations manuals, and trade secrets (FLA § 18.3); and (iii) return of proprietary materials (FLA § 15.5). The Settlement Agreement must specify which of these post-termination obligations are superseded by the Settlement Agreement and which survive. I recommend that the non-compete and confidentiality obligations survive, as they provide ongoing protection for Verimark's brand and intellectual property, but that the return-of-materials obligations be subsumed into the de-identification provisions of the Settlement Agreement (Issue 9 below).
(e) Characterization of Surrender. Opposing counsel may seek to characterize the franchise surrender as a voluntary termination by the franchisee rather than a termination arising from Coastal Palms' material breach, in order to avoid the stigma of a for-cause termination in future regulatory filings and franchise-disclosure documents. The Settlement Agreement should be drafted in neutral terms — "negotiated termination" or "mutual termination" — without characterizing it as either voluntary or for cause. This neutral characterization serves both parties' interests and avoids potential disputes over the nature of the termination in any future context.
Issue 9: De-Identification Requirements and Timeline
The Problem. The fourteen surrendered properties must be de-identified — i.e., all Verimark branding, proprietary systems, and trade dress must be removed — within 120 days of the Settlement Agreement effective date. If the effective date is April 22, 2024, the de-identification deadline is August 20, 2024.
De-Identification Requirements. The Settlement Agreement should require Coastal Palms to complete the following de-identification actions for each of the fourteen surrendered properties within the 120-day period:
(a) Signage and Trade Dress. Removal of all exterior and interior signage bearing the Verimark Suites or Verimark Select brand names, logos, or trade dress. This includes building-mounted signage, monument signs, directional signs, lobby signage, pool-area signage, and any other physical display of Verimark branding.
(b) Central Reservation System. disconnection of each surrendered property from Verimark's central reservation system ("CRS"). All future reservations booked through the CRS after the Closing Date should be redirected to the applicable retained property or, if no comparable retained property is available in the market, handled in accordance with a reservation-handling protocol to be agreed upon by the parties.
(c) Proprietary Technology Platforms. disconnection from Verimark's proprietary technology platforms, including the revenue-management system, the guest-loyalty program platform (Verimark Rewards), the property-management system interface, and any other Verimark-licensed software applications.
(d) In-Room Materials and Collateral. Removal of all Verimark-branded in-room materials, including but not limited to guest directories, stationery, pens, notepads, key cards, key-card sleeves, "Do Not Disturb" hangers, room-service menus, laundry bags, tent cards, and any other guest-facing materials bearing the Verimark brand.
(e) Advertising and Digital Platforms. Cessation of use of Verimark trademarks and trade names in all advertising, including print advertising, digital advertising, social-media accounts, website content, and online travel agency ("OTA") listings (Aldermere Technologies, Bramwell Holdings, Drayton Software, etc.). Coastal Palms must update all OTA listings for the surrendered properties to remove Verimark branding and property descriptions referencing the Verimark brand.
(f) Return of Proprietary Materials. Return to Verimark of all proprietary materials, including but not limited to operations manuals, training materials, brand-standards manuals, quality-assurance checklists, and software licenses. These materials are Verimark's confidential and proprietary property, and Coastal Palms must certify their return and the destruction of any copies.
Drafting Points.
(a) De-Identification Checklist. A detailed de-identification checklist should be prepared and attached as a schedule to Exhibit B (List of Surrendered Properties). The checklist should itemize every category of branded material and proprietary system that must be removed or returned, with a certification line for a Coastal Palms officer to sign upon completion for each property. I will prepare this checklist with input from Deidre Langston's franchise-operations team at Verimark.
(b) Verimark Inspection Rights. The Settlement Agreement should provide Verimark with the right to inspect each surrendered property during the 120-day de-identification period and at the conclusion of the period. Inspections should be conducted upon reasonable prior notice (recommend forty-eight (48) hours' notice) and during normal business hours. At the conclusion of the 120-day period, Verimark should conduct a final inspection of each surrendered property and issue a written de-identification completion certificate or a written notice of non-compliance identifying remaining items of non-compliance.
(c) Consequences of Non-Compliance. The Settlement Agreement should define clear consequences for failure to complete de-identification within the 120-day period. I recommend two concurrent remedies: (i) liquidated damages of $2,500 per day per property for each day of non-compliance after the expiration of the 120-day period (or a shorter cure period following written notice of non-compliance), to compensate Verimark for ongoing damage to its brand reputation; and (ii) treatment of non-compliance as an event of default under Issue 7 above, potentially triggering acceleration of the outstanding structured-payment balance.
(d) Geographic Considerations. The fourteen surrendered properties are located in both Florida and Georgia. The three Savannah properties and two Brunswick properties are in Georgia. De-identification in Georgia may involve different state regulatory requirements, including signage permits, business-license changes, and compliance with Georgia's Uniform Deceptive Trade Practices Act (O.C.G.A. § 10-1-370 et seq.) with respect to the cessation of use of Verimark trade names. The de-identification checklist should include a separate section addressing Georgia-specific requirements, and I will research applicable Georgia regulatory requirements before finalizing the checklist.
(e) Suncoast and gulfcoastrooms.com. Suncoast Room Management Inc. must cease operating gulfcoastrooms.com as a booking channel for any property that bears, or has recently borne, Verimark branding. The Settlement Agreement should require Suncoast to (i) remove all references to Verimark, Verimark Suites, and Verimark Select from the gulfcoastrooms.com website within thirty (30) days of the Closing Date; (ii) cease accepting reservations through gulfcoastrooms.com for any surrendered property that has not yet completed de-identification; and (iii) provide written certification of compliance with these requirements. This obligation addresses the core conduct that gave rise to the litigation — Suncoast's operation of an off-platform booking channel that diverted revenues from the GRR calculation.
Issue 10: New FLAs for 8 Retained Properties
The Problem. Eight properties are being retained under new ten-year Franchise License Agreements that must be negotiated and executed concurrently with the Settlement Agreement. The new FLAs must incorporate lessons learned from the underlying litigation and include enhanced protections against the type of revenue-diversion scheme that precipitated this dispute.
Retained Properties. The eight retained properties are:
Form of New FLA (Exhibit C). A draft form of the new FLA will be prepared and attached to the Settlement Agreement as Exhibit C. The new FLA will serve as the template for all eight retained properties, with property-specific information (property name, address, room count, etc.) inserted into schedules.
Key Differences from Existing FLAs. The new FLAs must incorporate the following changes from the existing FLA form:
(a) Enhanced Audit Protocol. Quarterly (rather than annual) audits, real-time POS integration with Verimark's revenue-management platform, and Coastal Palms' obligation to bear all audit costs for five (5) years. The enhanced audit protocol is addressed in detail in Issue 11 below and will be attached to the Settlement Agreement as Exhibit D. The new FLAs should incorporate the Enhanced Audit Protocol by reference.
(b) Updated Fee Provisions. The existing FLAs provide for royalty fees of 5% of GRR, marketing-fund contributions of 2.5% of GRR, and technology fees of $12.50 per room per month. I need to confirm with Deidre Langston, SVP, Franchise Operations, whether these rates will remain unchanged for the new FLAs or whether Verimark intends to revise them. Given that the retained properties are in premium markets (Naples, Marco Island, Tampa), there may be a business justification for maintaining or even increasing rates. This is a business decision that should be made by Verimark's franchise-operations team.