Exhibit 10.2


 




	
  

  






 


MANAGEMENT
AGREEMENT


 


This MANAGEMENT AGREEMENT  (this Agreement”) is made and entered into as of
this                    day
of
                                             ,
2000, by and between CIRCLE LINE SIGHTSEEING YACHTS, INC., c/o New York Cruise
Lines, Inc., Pier 83 West 42nd Street & The Hudson River, New
York, New York 10036, hereinafter referred to as “Owner,” and APCOA/STANDARD
PARKING, INC., Two Copley Place, Suite 300, Boston, MA 02116, hereinafter
referred to as “Operator.”


 


W I T N E S S E T H:


 


THAT, WHEREAS, Owner presently controls a parking facility at The
Hudson River and Piers 81 and 83 and has the authority to contract for the
management of said facility;


 


WHEREAS, Operator is an experienced operator and manager of parking
facilities; and


 


WHEREAS, Owner and Operator desire to enter into an agreement whereby
Operator will manage parking of motor vehicles at such facility upon the terms,
covenants and conditions herein set forth.


 


NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, the parties hereto agree as follows:


 


1.                                      PREMISES.  Owner hereby grants to Operator and Operator
hereby accepts the right and obligation of administering, managing and
operating the parking operations with respect to the parking facility known as
the Circle Line Lot, servicing Pier 81 and Pier 83 and located at West 42nd
Street and the Hudson River in the City of New York, State of New York,
hereinafter referred to as the “Premises.”


 


2.                                      TERM.  The term of this Agreement shall be for
three (3) years commencing on
                             ,
2000 and expiring on
                                    ,
2003 (the “Term”).


 


3.                                      OPERATOR’S
OBLIGATIONS AND SERVICES. 
Operator hereby covenants and agrees that it will:


 


(a)                                  Operate and direct
the operation of the Premises as a parking facility, and render the usual and
customary services incidental thereto, in a 


 


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professional, businesslike and efficient manner, subject only to the
limitations contained in this Agreement, and provide supervision and inspection
adequate to properly manage the Premises. 
Owner reserves the right to establish the hours of operation and parking
rates for the Premises.


 


(b)                                 Routinely maintain the
parking equipment provided by Operator (if any) in good operating condition and
repair, and also purchase, on behalf of Owner, with Owner’s prior written
approval, equipment and supplies necessary for the operation of the Premises.


 


(c)                                  Hire, pay and
supervise sufficient experienced and qualified personnel who will render the
services required by this Agreement for the professional, businesslike and
efficient operation of the Premises. 
Such employees will be neatly uniformed and courteous to the public.  All persons so employed shall be employees
of Operator and not of Owner, and shall have no authority to act as the agent
of Owner.


 


(d)                                 Promote, advertise and
endeavor to increase the volume, efficiency and quality of the services
rendered.


 


(e)                                  Collect from
transient users of and monthly parkers at the Premises parking fees and other
charges as directed by Owner.


 


(f)                                    Maintain courteous,
businesslike relations with users of the Premises, whose requests shall be
received, considered and promptly acted upon.


 


(g)                                 Cause the Premises to
be maintained in a clean and orderly manner according to reasonable standards
acceptable to Owner, including routine cleaning, sweeping, power washing,
painting, light bulb and ballast replacement, but Operator shall not be
required to make (and shall not be authorized to make, without Owner’s prior
written approval) any structural, mechanical, electrical or other installations
or alterations to the Premises required by statutes, regulations or other
governmental requirements pertaining to air quality, environmental protection
or persons with disabilities, which matters shall be the sole responsibility of
Owner.


 


(h)                                 Promptly notify Owner
of any damage, accident, injury, or in the event of any other matter which, in
Operator’s reasonable judgment, requires Owner’s attention.


 


(i)                                     Advise
and cooperate with Owner in the development and implementation of rules and
regulations applicable to the Premises, and enforce such applicable rules and
regulations as Owner shall adopt.  Advise
and consult with Owner with respect to matters of potential changes to traffic
control systems, signage and/or any other matter that may substantially alter
the use and operation of the Premises, the implementation of any of which shall
require Owner’s written consent.


 


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(j)                                     Obtain and
maintain the policies of insurance specified in Section 8 hereof.


 


(k)                                  Maintain the
premises, systems and improvements in good condition and repair including (as
applicable) all directional signs and paint where necessary including affixing
striping to pavement.


 


(l)                                     Prepare and file
all necessary returns, reports and forms required by law in connection with
unemployment insurance, social security taxes, worker’s compensation insurance,
disability benefits, Federal and state income tax withholding and other similar
taxes and all other returns and reports required by any Federal, state or
municipal authority (other than income and property tax returns of the Owner)
including but not limited to all New York State and City Sales, Use and Parking
Taxes, collect, remit and   pay or make
all deposits required for such taxes.


 


(m)                               Annually during the
term, Operator shall prepare and deliver to Owner a budget, for Owner’s
reasonable approval, reflecting the Gross Receipts and Operating Expenses
(defined in Section 4 hereof) which Operator expects to receive and incur,
respectively, during Owners forthcoming fiscal year (the Budget), it being agreed that
if Owner for any reason does not respond to any proposed Budget within sixty
(60) days after Owners receipt thereof, said Budget shall be deemed
approved.  If at any time during the
period covered by an approved Budget it appears to Operator that the actual
total of all Operating Expenses likely to be incurred during said period will
exceed the Budget’s projected total by more than ten percent (10%), Operator
shall promptly so advise Owner, and Owner and Operator shall jointly discuss
what actions, if any, could be taken to minimize the Operating Expenses without
substantially impairing the operation of the Premises.


 


All expenses incurred in connection with performing the above
obligations and services shall be deemed Operating Expenses (defined in Section
4 hereof).


 


In addition to the above services, Operator shall provide certain
“amenities” programs as mutually agreed upon with the prior approval of
Owner.  Said approval shall be at the
sole discretion of Owner and the cost of such programs shall not be an
Operating Expense hereunder.


 


4.                                      GROSS
RECEIPTS, OPERATING EXPENSES, REIMBURSABLE COSTS AND NET PROFIT.  Operator shall account for all Gross
Receipts collected by Operator under this Agreement and deposit such receipts
in a federally insured bank account maintained by Operator.


 


“Gross
Receipts” shall mean all sums collected by Operator for the parking
and storage of motor  vehicles, or for
any other services or amenities offered by Operator on the Premises  whether on an hourly, daily, weekly, or
monthly basis, less all refunds, discounts and allowances made by Operator to
its customers.  “Net Receipts” are defined as
Gross Receipts less any sales,


 


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use, excise, occupancy, gross
receipts, parking tax, or any other tax or charge collected by Operator on
behalf of and payable to the tax collector.


 


Owner reserves the right, in its sole discretion, to allow parking at
the Premises without charge or at a reduced rate for special events or employee
parking, or at other times Owner determines. 
Accordingly, Gross Receipts shall not include the value any such free or
discounted parking privileges granted by Owner to its employees, agents,
representatives, and invitees.


 


“Operating
Expenses” shall mean all expenses related to the operation of the
Premises, including, without limitation, the aggregate of salaries and wages,
payroll taxes, fringe benefits, workers’ compensation insurance, license and
permit fees, uniforms, supplies, pagers, tools, radios, cleaning, costs of
maintenance and repair required of Operator hereunder, telephone charges,
employee recruitment/training, cost of annual audit, banking charges, credit
card system charges, postage and freight, tickets, stationery including report
forms, garagekeeper’s legal and public liability insurance premiums established
by Operator , the first $1,000 of any loss or damage claim (plus attorney’s
fees and court costs to defend Owner and/or Operator in actions brought to
recover damages for such losses) and losses due to theft or robbery.  Such expenses shall be paid from Net Receipts
if sufficient.


 


Operating
Expenses shall not include utility charges, costs of maintenance and Owner’s
carrying costs for the Premises, such as depreciation, building insurance, real
estate taxes and assessments, taxes on Owner’s personal property, debt
retirement including mortgage interest, rent and any other expenses (including
compliance with the Americans With Disabilities Act of 1990).  Payment of such expenses and costs are the
sole obligation of Owner.


 


“Reimbursable
Costs” are any expenses which are not deemed Operating Expenses and
are approved in writing by Owner prior to expenditure.


 


If Owner
disputes any Operating Expense or Reimbursable Cost, Owner shall give Operator
written notice specifying the item disputed and the reason therefor.  In such event, owner shall have the right to
withhold any money that represents a disputed item.  Payment for any Operating Expense or Reimbursable Cost which is
not disputed shall not be withheld.  The
parties shall, in good faith, diligently pursue resolution of any disputed item
within thirty (30) days of said notice. 
In the event  that after the
thirty (30) day period, the dispute is not resolved, the Owner and Operator
agree to submit this disputed matter for a non-binding mediation to JAMS, 45
Broadway, New York, New York 10006.  The
Owner and Operator understand that the role of the mediator is not to render a
decision but to assist the parties in reaching a mutually acceptable
resolution.


 


The mediator
will provide an evaluation of the Owner and Operator’s cases and of the likely
resolution if the dispute is not settled. 
The Owner and Operator agree that the mediator is not acting as an
attorney or providing legal advice on behalf of either of them.  The fees charged by JAMS will be shared and
paid equally by the Owner and Operator.


 


“Net Profit”
is the balance remaining after deducting all Operating Expenses and
Reimbursable Costs from Net Receipts. 
Net Profit, less deductions for any Net Profit Advance (defined below),
and Operator’s Management Fee, shall be paid to Owner concurrently with the
statement required in Section 9 of this Agreement.


 


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An advance of Net Profit shall be paid to Owner as follows:


 


(a)                                  On or before
December 31, 2000 or any future December 31st during the
term of the Agreement, and again on or before April 1, 2000, or any future
April 1st during the term of this Agreement, Operator shall
remit, upon Owner’s written request, to Owner an advance of Net Profit equal to
$100,000.00 for each month.  Thus, the
annual advance of Net Profit shall be equal to $200,000 (“Net Profit
Advance”).  Owner shall be responsible
for paying back the Net Profit Advance, plus interest equal to the prime rate of
interest published in The Wall Street Journal plus two (2) points,
according to Subsection (b) below.


 


(b)                                 The annual Net Profit
Advance, plus interest as aforesaid, shall be deducted by Operator from the
Premises’ Net Receipts during the months of April through December of
each year.  If, as of January 1 of
any year (after the first year), the Net Profit Advance for such year still
shall not have been fully reimbursed because Net Receipts for the months of
April through December were insufficient, then Owner must reimburse
the balance due Operator in accordance with Section 7 herein.


 


5.                                      MANAGEMENT
FEE.  As compensation for
Operator’s services hereunder, Owner shall pay Operator, each month, a
management fee based on a tiered percentage of annual Net Receipts, as follows:


 


5% of the first $700,000 of annual Net Receipts; plus


 


6% of annual Net Receipts in excess of $700,000, but less than
$1,000,000; plus


 


7% of annual Net Receipts in excess of $1,000,000.


 


In computing the Management Fee, Net Receipts (as defined in Section 4
hereof) shall not include all (i) sums due and payable and (ii) outstanding
accounts receivable, if any, for the parking of motor vehicles.  The Management Fee may be deducted by
Operator from Net Receipts to the extent such receipts are sufficient.


 


The term “year” shall mean the twelve (12) consecutive calendar months
beginning with the commencement date of the Initial Term of this Agreement and
each twelve-month period thereafter.


 


6.                                      CONDITION
AND USE OF THE PREMISES.  Owner
warrants and represents that, at the commencement of and throughout the term
herein, the Premises (including but not limited to the roof, structural
portions, and interior and exterior of any building which is part of the
Premises) are and shall, at Owner’s expense, be kept in good condition and
repair for use as a parking facility and be constructed and fixtured to comply
with all laws, regulations, ordinances and codes now in effect or which become
effective during the term hereof, including the Americans With Disabilities Act
of 1990.


 


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7.                                      REIMBURSEMENT
OF DEFICIT.  In the event the
Net Receipts actually collected by Operator during any year are exceeded by the
total of Operating Expenses, Reimbursable Costs, the Management Fee, and any
reimbursement of Net Profit Advance due Operator pursuant to Section 4 herein,
resulting in a deficit for said year, Owner agrees to pay Operator the amount
of said deficit within thirty (30) days after receipt of Operator’s annual
statement. If payment is not made by Owner to Operator within said thirty-day
period, Operator shall have the right to: 
(i) charge interest equal to prime rate of interest published in The
Wall Street Journal plus two (2) points from the date such payment became
due and payable; (ii) offset the amount of the deficit (plus accrued interest)
by deduction thereof from any Net Profit due or to become due to Owner; and
(iii) at its option, terminate this Agreement upon written notice, without
waiving or limiting any of its legal remedies which Operator may pursue to
collect the amount owed.


 


8.                                      OPERATOR’S
INSURANCE COVERAGES.


 


(a)                                  Operator
shall carry and maintain, as an Operating Expense, the following insurance
coverages:


 


(1)                                  Worker’s Compensation
insurance in compliance with the Worker’s Compensation Act of the State of New
York.


 


(2)                                  Employer’s
liability insurance on all employees for the Premises not covered by the
Worker’s Compensation Act, for occupational accidents or disease, for limits of
not less than $100,000 for any one occurrence, or whatever is necessary to
satisfy the requirements of the umbrella liability insurance specified in
Subsection (a)(6) below.


 


(3)                                  Garage liability
insurance on an occurrence form basis with limits of not less than $1,000,000
per occurrence with an annual aggregate limit of $2,000,000 per location.


 


(4)                                  Garage keeper’s legal
liability insurance (if applicable) insuring any and all automobiles that are
parked at the Premises by Operator’s attendants or for which a bailment
otherwise is created, with such limits of liability not less than $1,000,000
per occurrence.


 


(5)                                  Comprehensive crime
insurance including employee theft, premise, transit and depositor’s forgery
coverage, with limits of liability as to any given occurrence of $50,000 for
monies and securities inside and outside the Premises, and $1,000,000 on
account of any employee dishonesty.


 


(6)                                  Umbrella liability
insurance, in excess following form, with an annual aggregate limit of not less
than (i) $15,000,000, with respect to garage liability insurance, and (ii)
$15,000,000, with respect to garagekeeper’s legal liability insurance (if
applicable).


 


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(b)                                 The liability policies
affording the coverages described in Subsections (a)(3), (a)(4) and (a)(6)
above shall be endorsed to cover Owner and its employees, agents, directors and
officers as additional insureds.


 


(c)                                  All such insurance
shall be with companies as shall be reasonably satisfactory to Owner, and all
such policies shall provide that they may not be cancelled or adversely altered
without at least thirty-(30) days’ prior written notice to Owner.  Operator shall deliver satisfactory
certificates of insurance to Owner and renewal policies shall be obtained, and
certificates delivered to Owner, at least thirty (30) days prior to expiration.


 


(d)                                 Owner hereby waives
all claims for recovery from Operator and its employees, agents, directors and
officers for personal injury and/or loss or damage to Owner’s property of the
type covered by insurance actually carried by Owner or which is commonly
covered under an “all-risk” of direct physical loss insurance policy of the
type customarily available in New York, New York, in either case irrespective
of applicable deductibles.


 


9.                                      ACCOUNTING.  Within twenty (20) days after the end of
each calendar month, Operator shall mail to Owner a statement showing all Gross
Receipts, Net Receipts, Operating Expenses, Reimbursable Costs, the Management
Fee and Net Profit for the preceding calendar month.  Within forty-five (45) days following the last month of the term
of this Agreement, Operator shall mail a like final statement.  An annual statement setting forth such
information for Owner’s fiscal year shall be mailed to Owner within 45 days
after the end of each fiscal year. 
Owner’s fiscal year shall be January 1 to December 31..


 


Operator shall keep complete and accurate accounting reports and
records of Gross Receipts, Net Receipts, Operating Expenses, Reimbursable Costs
and Net Profit relating to the Premises. 
Such reports and records shall be kept in accordance with good
accounting practices.  Operator shall
permit Owner to inspect Operator’s accounting reports and records at Operator’s
offices during reasonable business hours and at Owner’s expense.


 


10.                               EQUIPMENT
AND IMPROVEMENTS.  Operator may,
with Owner’s written approval, purchase and install equipment or improvements
which the parties agree should be installed as part of the revenue and traffic
control system and operational requirements for the Premises.


 


Title to equipment and improvements so purchased and installed by
Operator shall vest in Owner upon installation.  The total cost thereof (including delivery and installation costs
and


 


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taxes) shall be reimbursed to
Operator by Owner within thirty (30) days after receipt of Operator’s statement
showing the description and cost of each item, or, at the option of Operator,
may be deducted by Operator from the Net Profit otherwise due and payable to
Owner.


 


Operator agrees that it will not make or construct any improvements,
additions or alterations to the Premises without the prior written consent of
Owner.


 


11.                               OWNER’S
OBLIGATIONS.  Owner shall, at
its expense, be responsible only for following:


 


(a)                                  Repair and
maintenance of the Premises, systems and improvements in good condition and
repair, including (as applicable): 
heating, air conditioning, ventilating, exhaust, fire protection, alarm,
utility, plumbing (including lavatory facilities), sewage, drainage, security
and lighting systems; paving; fencing; parking booths; landscaping; windows and
doors; plate glass; driveways, sidewalks and curbs (including curb cuts);
sealing and waterproofing; electrical or mechanical equipment, including
traffic control devices used at or in the Premises; and all structural repairs.


 


(b)                                 Alterations,
improvements and additions Owner deems necessary and/or as may be required by
the Americans With Disabilities Act of 1990, and payment of architectural,
engineering or consulting fees with respect thereto.


 


Owner agrees that any contract between Owner and a contractor for work
on behalf of Owner at the Premises shall require (i) the contractor to
indemnify, save and hold Owner and Operator harmless from and against and free
and clear of all claims, suits, actions, and damages which may arise, occur or
result from work performed by said contractor, and (ii) the contractor to name
Owner and Operator as additional insureds on contractor’s policy of insurance
and furnish Owner and Operator with a certificate of insurance evidencing such
coverages.


 


12.                               INDEMNIFICATION.  Operator shall indemnify and hold harmless
Owner from all loss or liability whatsoever, on account of any damage or
injury, claims and demands arising out of acts or omissions of the Operator,
its agents or employees, or by failure to keep said parking facility or
equipment in good order and repair, or for such other damage or injury caused
by any acts or events whatsoever including, but not limited to, acts or
omissions of third parties in or about said parking facility.  However, Operator shall not be liable for
damages or injury occasioned by failure of the Owner to comply with its
obligations hereunder or by reason of the negligence of the Owner, its agents
or employees or third parties.  Owner
shall indemnify and hold harmless Operator from all loss or liability
whatsoever, on account of any damage or injury, claims and demands arising out
of acts or omissions of the Owner, its agents or


 


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employees;  or by failure to keep said parking facility
or equipment in good order and repair; 
or for such other damage or injury caused by any acts or events
whatsoever including, but not limited to, acts or omissions of third parties in
or about said parking facility. 
However, Owner shall not be liable for damages or injury occasioned by
failure of the Operator to comply with its obligations hereunder or by reason
of the negligence of the Operator, its agents or employees or third
parties.  Operator guarantees to and
indemnifies Owner for payment of any liability imposed upon Owner as a result
of Operator’s failure to pay any tax due or to become due to any municipal
taxing including but not limited to any tax, penalty or interest thereon.


 


13.                               OWNER’S
INSURANCE.  Owner shall, at its
expense, provide and maintain fire and extended coverage, vandalism and
malicious mischief, and all-risk insurance coverages for buildings,
improvements and any other real or personal property of Owner located on the
Premises in an amount equal to the full replacement cost thereof.


 


14.                               RELEASE
AND WAIVER OF SUBROGATION.  In
the event all or any part of the Premises (including any buildings,
improvements or other real or personal property thereon) are damaged or
destroyed by fire or other casualty, the rights or claims of either party or
its employees, agents, successors or assigns against the other with respect to
liability for such loss, destruction or damage resulting therefrom, including
loss, destruction or damage suffered as a result of negligence of either party
or their employees or agents, are hereby released and discharged, and any and
all subrogation rights or claims are hereby waived to the extent of the insurance
coverage carried by the parties hereto.


 


All such insurance policies shall contain a clause or endorsement
providing that the insurance shall not be prejudiced if the insured has waived
its rights of recovery (including subrogation rights) against any person or
company prior to the date of loss, destruction or damage.


 


15.                               LICENSES
AND PERMITS.  Operator shall
obtain and maintain all licenses and permits required by an operator of parking
facilities by any governmental body or agency having jurisdiction over
Operator’s operations at the Premises and will abide by the terms of such
licenses and permits.  Any license or
permit fees incurred by Operator shall be deemed an Operating Expense.


 


16.                               LAWS
AND ORDINANCES.  Operator shall
not use all or any part of the Premises for any use or purpose which is (i)
forbidden by or in violation of any law of the United States, any state law or
any city ordinance, or (ii) may be dangerous to life, limb or property.


 


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17.                               LOSS
OR DAMAGE TO PREMISES.  In case
of any substantial loss of or damage to the Premises as the result of a taking
under the power of eminent domain, or by fire, storm or other casualty, Owner
may (i) repair or restore the Premises at Owner’s expense, or (ii) abandon the
operation and terminate this Agreement by giving at least ten (10) days’ prior
written notice to Operator.  If Owner so
terminates, Owner shall not be liable to Operator for Management Fees arising
after the date of taking or casualty; provided, however, if any portion of the
Premises remains suitable for parking and Operator, with Owner’s prior written
approval, continues its operations, Operator shall be entitled to receive its
Management Fees for the period during which such operations are continued. If
Owner repairs and restores the Premises, no Management Fees shall be due for
the period the Premises are unsuitable for the ordinary conduct of parking
business, and Operator shall not be required to provide services hereunder, but
this Agreement shall continue in effect and the term shall be extended for a
period equal to the period needed for repair and restoration.


 


18.                               RELATIONSHIP
OF THE PARTIES.  No partnership
or joint venture between the parties is created by this Agreement, it being
agreed that Operator is an independent contractor.


 


19.                               FORCE
MAJEURE.  Neither party shall be
in violation of this Agreement for failure to perform any of its obligations by
reason of strikes, boycotts, labor disputes, embargoes, shortages of materials,
acts of God, acts of the public enemy, acts of public authority, weather
conditions, riots, rebellion, accidents, sabotage or any other circumstances
for which it is not responsible and which are not within its control.  No Management Fee shall be due to Operator
if it suspends operations for any such cause or event.


 


20.                               GOVERNING
LAW.  This Agreement shall be
governed by and construed in accordance with the laws of the State of New York.


 


21.                               APPROVALS.  Whenever the approval of either party is required
herein, such approval shall not be unreasonably withheld or delayed except
where it is provided herein to be in the sole discretion of the Owner.


 


22.                               WAIVERS.  No waiver of default by either party of any
term, covenant or condition hereof to be performed or observed by the other
party shall be construed as, or operate as, a waiver of any subsequent default
of the same or any other term, covenant or condition hereof.


 


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23.                               SEVERABILITY.  If any provision hereof is held to be
invalid by a court of competent jurisdiction, such invalidity shall not affect
any other provision hereof, provided such invalidity does not materially
prejudice either party in its rights and obligations contained in the valid provisions
of this Agreement.


 


24.                               TERMINATION.  The Owner may terminate this Agreement
provided the Owner gives thirty (30) days prior written notice to the
Operator.  The Operator may terminate
this Agreement provided the Operator gives ninety (90) days prior written
notice to the Owner.


 


25.                               ASSIGNMENT.   Operator shall not assign or transfer this
Agreement or its right, title or interest herein without the prior written
consent of Owner.  The giving of such
consent shall be in the sole discretion of the Owner.  Operator is hereby given the right to assign this Agreement to an
affiliate of Operator or to a corporation substantially all of the stock of
which is owned by Operator and/or to collaterally assign its right, title and
interest herein to a financial institution as security for any present or
future loans to Operator.


 


26.                               NOTICES.  Any notice or communication required to be
given to or served upon either party hereto shall be given or served by
personal service or by express delivery or by mailing the same, postage
prepaid, by United States registered or certified mail, return receipt
requested, to the following addresses:


 


	
  TO OWNER:

  	
   

  	
  Circle Line Sightseeing Yachts, Inc.

  
	
   

  	
   

  	
  c/o New York CruiseLines, Inc.

  Attn:  Mark Davidoff, Vice President

  Pier 83, West 42nd Street & The Hudson River

  New York, NY 10036

  
	
   

  	
   

  	
   

  
	
  with copy to:

  	
   

  	
  Graubard Mollen
  & Miller

  
	
  (by regular mail)

  	
   

  	
  Attn: Kevin B. McGrath, Esq.

  
	
  600 Third Avenue

  	
   

  	
   

  
	
  New York, New York 10016

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  TO OPERATOR:

  	
   

  	
  APCOA/Standard
  Parking, Inc.

  
	
   

  	
   

  	
  Attn: Legal Department

  900 N. Michigan Avenue, Suite 1600

  Chicago, IL  60611

  
	
   

  	
   

  	
   

  
	
  with copy to:

  	
   

  	
  APCOA/Standard Parking, Inc.

  
	
  (by regular mail)

  	
   

  	
  Attn:  Richard P. DiPietro,
  Senior Vice President

  Two Copley Place, Suite 300

  Boston, MA  02116

  



 


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Either party may designate a substitute address at any time hereafter
by written notice thereof to the other party.


 


27.                               ENTIRE
AGREEMENT.  This Agreement,
together with all exhibits hereto, constitutes the entire agreement between the
parties, and all other representations or statements heretofore made, verbal or
written, are merged herein.  This
Agreement may be amended only by written agreement of the parties.


 


28.                               PARTIES
BOUND.  This Agreement shall be
binding upon and inure to the benefit of the parties hereto and their heirs,
successors, executors, administrators, legal representatives and permitted
assigns.


 


 


IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.


 


	
  OWNER:

  	
   

  	
  OPERATOR:

  
	
   

  	
   

  	
   

  
	
  Circle Line
  Sightseeing Yachts, Inc.

  	
   

  	
  APCOA/Standard
  Parking, Inc.

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  	
  By:

  	
   

  
	
  August J. Ceradini

  	
   

  	
  Steven A. Warshauer

  
	
  President

  	
   

  	
  Executive Vice President

  
						



 


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FIRST
AMENDMENT OF MANAGEMENT AGREEMENT


 


This FIRST AMENDMENT OF MANAGEMENT AGREEMENT  (this
“Amendment”)
is made and entered into as of this
             day of
                        
2003, by and between Circle Line Sightseeing Yachts, Inc., hereinafter referred
to as “Owner,”
and Standard Parking Corporation, a Delaware corporation formerly known as
APCOA/Standard Parking, Inc., hereinafter referred to as “Operator.”


 


W I T N E S S E T H:


 


THAT, WHEREAS, Owner and Operator are parties
to a Management Agreement dated September 19, 2000 (“Management
Agreement”) pursuant to which Operator operates and manages Owner’s parking
facility at the Hudson River and Piers 81 and 83 in New York, New York
(“Premises”); and


 


WHEREAS, Owner and Operator desire to amend
the Management Agreement upon the terms and conditions set forth herein.


 


NOW, THEREFORE, in consideration of the
mutual covenants and agreements herein contained, the parties hereto agree as
follows:


 


1.                                      RECITALS
AND DEFINITIONS.  The above
recitals are incorporated herein.  The
terms defined in the Management Agreement shall have the same meanings ascribed
to such terms in the Management Agreement when used herein, unless expressly
defined otherwise herein.


 


2.                                      NET
PROFIT ADVANCE.  Operator shall
continue to advance Net Profit to Owner in accordance with Section 4 (a) and
(b) of the Management Agreement, except that for the balance of the term of the
Management Agreement:


 


(a)          The first installment
($100,000) of the total annual Net Profit Advance of $200,000 shall be due and payable
to Owner on the 1st day of April each year during the remainder
of


 


13

















 


the term, or
if such date shall fall on a day other than a business day, the first business
day thereafter; and


 


(b)         The second installment
($100,000) of the total annual Net Profit Advance shall be due and payable to
Owner on the 31st day of December each year during the
remainder of the term, or if such date shall fall on a day other  than a business day, the first business day thereafter.


 


3.                                      LOAN
TO OWNER.  On or before
June         , 2003, Operator
shall loan (“Loan”) to Owner the sum of $300,000 (“Loan Amount”).  Owner shall pay back the Loan Amount, plus
interest thereon at a rate of nine percent (9 %) per annum, to Operator in full
by November 1, 2003 (“Due Date”). 
Owner may prepay the Loan Amount at any time without penalty.  As consideration for the Loan, the
Management Fee shall be adjusted in accordance with Section 4 of this Amendment
and Owner shall execute and deliver to Operator, upon execution of this
Amendment, a promissory note in the form attached hereto and made a part hereof
as Exhibit “A”.


 


If the Loan Amount, plus interest as
aforesaid, is not paid to Operator by the Due Date, then: (a) Operator may
charge interest at the default rate (“Default Rate”) of twelve percent (12%);
(b) Owner shall be in default of the Management Agreement; (c) the Management
Fee set forth in Section 4 of this Amendment shall remain in effect until such
time as the Loan is paid back in full; and (d) Operator may continue to operate
the Premises, notwithstanding any expiration of the Management Agreement or
attempt by Owner to terminate the Agreement, free of any obligation to remit
any Net Profit or Net Profit Advance to Owner, and retaining all Gross Receipts
and deducting the balance of the Loan Amount (plus interest as aforesaid) from
Net Receipts until such time as Operator is paid in full.  The foregoing remedies shall be in addition
to all remedies available at law or in equity to recover the sum due.


 


If the Loan Amount, plus interest as
aforesaid, is not paid to Operator by the Due Date and Operator retains a
collection agency and/or an attorney to pursue collection of the delinquent
amount plus interest at the Default Rate, then all collection costs, including
without limitation, attorney’s fees and court costs, shall be payable by Owner
to Operator.


 


4.                                      MANAGEMENT
FEE.  Commencing retroactive to
January 1, 2003 and continuing until such time as the Loan Amount (plus
interest as aforesaid) in paid in full to Operator, the Management Fee payable
to Operator each month shall be based on the following.


 


5% of the
first $163,000 of annual Net Receipts; plus


 


12% of all Net
Receipts in excess of $163,000.


 


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In the first full month following the date on
which the Loan Amount (plus interest as aforesaid) is paid in full, the
Management Fee as originally set forth in Section 5 of the Management Agreement
shall be reinstated and this Section 4 shall be deemed terminated.  Thus, for example, if the Loan is paid in
full on October 31, 2003, the Management Fee for November 2003 and
subsequent months shall conform to Management Fee originally set forth in
Section 5 of the Management Agreement


 


5.                                      TERMINATION
RIGHTS.  All rights to terminate
the Management Agreement shall remain as originally set forth in the Management
Agreement except that, for so long as the Loan remains outstanding, repayment
of the Loan Amount (plus interest as aforesaid) to Operator shall be a
condition precedent to the exercise by Owner of any right of termination of the
Agreement.  In addition, if the
Management Agreement should terminate for any other reason while the Loan is
still pending (for example, but without limitation, because of a condemnation
action, or loss or damage to the Premises), then the Loan Amount (plus interest
as aforesaid) shall become due and payable as of the date of such
termination.  If not paid upon termination,
then Operator may pursue any or all of the remedies available under Section 3
of this Amendment, at law or in equity, and shall be entitled to recovery of
its collection costs and legal fees, all as set forth in said Section 3.


 


6.                                      NO
OTHER CHANGES.  Except as
expressly modified herein, the Management Agreement remains in full force and
effect upon its original terms and conditions.


 


 


IN WITNESS WHEREOF, the parties hereto have
executed this Amendment as of the date first above written.


 


	
  OWNER:

  	
   

  	
  OPERATOR:

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Circle Line Sightseeing Yachts, Inc.

  	
   

  	
  Standard Parking Corporation

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  	
  Name:

  	
   

  	
  Michael K.
  Wolf

  
	
  Title:

  	
   

  	
   

  	
  Title:

  	
   

  	
  Executive
  Vice President

  
									



 


15

















 


Exhibit “A”


 


FORM OF PROMISSORY NOTE


 




	
  $300,000

  	
   

  	
  Executed at
                                       

  






 


June         , 2003


 


FOR VALUE RECEIVED, CIRCLE LINE SIGHTSEEING YACHTS, INC. (the “Maker”),
promises to pay to the order of STANDARD PARKING CORPORATION, a Delaware
corporation (“Lender”) the principal sum of Three Hundred Thousand Dollars
($300,000.00).  Said principal sum, plus
interest thereon at a rate of nine percent (9%) per annum, shall be paid to
Lender on or before November 1, 2003 (“Due Date”).


 


Failure to pay said sum when due shall entitle the holder(s) of this Promissory
Note to declare the amount immediately due and payable without notice to the
Maker.  Past due payments shall bear
interest at the default rate of twelve 
percent (12%) per annum (“Default Rate”).


 


This Note is given to evidence the making of a loan by Standard Parking
Corporation to Maker in connection with a Management Agreement by and between
Standard Parking Corporation and Maker dated September 19, 2000, as
amended by First Amendment of Management Agreement dated
                           ,
2003 (as so amended, the “Management Agreement”).


 


The Maker waives notice of protest, dishonor, or any other notice
otherwise required to be given to a maker of a Promissory Note, and Maker
acknowledges that this Note is given in connection with a business transaction
and not in connection with any household, consumer, or agricultural
transaction.


 


Maker shall have the right to prepay this Note in part or in full at
any time, or to make partial payments from time to time, but no prepayment
shall relieve the Maker from the obligation to make the payment in full of the
loan amount, plus interest as aforesaid, as the same becomes due.


 


No delay or omission on the part of the Lender or any holder hereof in
exercising any right hereunder shall operate as a waiver of such right or of
any other rights of the Lender or such holder, nor shall any delay, omission or
waiver on any one occasion be deemed a bar or waiver of the same or any other
right on any further occasion.


 


The Maker and every endorser and guarantor of this Note or the
obligation represented hereby waives presentment, demand, notice, protest and
all other demands and notices in connection with the delivery, acceptance,
performance, default or enforcement of this Note, and assents to any


 


16

















 


extension or postponement of the time of payment or any other
indulgence, to any substitution, exchange or release of collateral and to the
additional or release of any other party or persons primarily or secondarily liable.


 


THIS NOTE AND THE OBLIGATIONS OF THE MAKER HEREUNDER SHALL FOR ALL
PURPOSES BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE
OF ILLINOIS (EXCLUDING THE LAWS APPLICABLE TO CONFLICTS OR CHOICE OF LAW).  THE MAKER AGREES THAT ANY SUIT FOR THE
ENFORCEMENT OF THIS NOTE MAY BE BROUGHT IN THE COURTS OF THE STATE OF
ILLINOIS OR ANY FEDERAL COURT SITTING THEREIN AND THE CONSENT TO THE
NONEXCLUSIVE JURISDICTION OF SUCH COURT AND THE SERVICE OF PROCESS IN ANY SUCH
SUIT BEING MADE UPON THE MAKER BY MAIL AT THE ADDRESS SPECIFIED IN THE
“NOTICES” SECTION OF THE MANAGEMENT AGREEMENT. 
THE MAKER HEREBY WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER
HAVE TO THE VENUE OF ANY SUCH SUIT OR ANY SUCH COURT OR THAT SUCH SUIT IS
BROUGHT IN AN INCONVENIENT COURT.


 


The person signing this Promissory Note on behalf of Maker hereby
acknowledges that he is a duly qualified officer of Maker and that all
requisite proceedings, if required by the by-laws and/or other corporate
documents of Maker, have been taken, and said officer has all requisite
corporate authority to execute and deliver this Promissory Note.


 


 


CIRCLE LINE
SIGHTSEEING YACHTS, INC.


 


 


	
  By:

  	
   

  	
   

  
	
   

  
	
  Name:

  	
   

  	
   

  
	
   

  
	
  Title:

  	
   

  	
   

  
	
   

  
	
  Date:

  	
   

  	
   

  
						



 


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