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EXHIBIT 10.4
AMENDED AND RESTATED
LIMITED RENT GUARANTY
THIS AMENDED AND RESTATED LIMITED RENT GUARANTY (this "Guaranty") is
made this 15th day of June, 2001 (the "Effective Date"), by and between Marriott
International, Inc., a Delaware corporation ("Guarantor"), and HPTMI Properties
Trust, a Maryland real estate investment trust ("Landlord").
RECITALS:
A. Certain Affiliates of Guarantor (the "Tenants"), as tenants, are
parties to those certain Lease Agreements set forth on Exhibit A attached hereto
with Landlord, as landlord, (as the same are being amended simultaneously
herewith) collectively, the "Existing Leases"). Certain obligations of the
Tenants pursuant to the Existing Leases have been guaranteed by Guarantor
pursuant to the Limited Rent Guaranties set forth on Exhibit B attached hereto
(collectively, the "Existing Guaranties"). Terms used herein but not otherwise
defined shall have the meanings ascribed to such terms in the Existing Leases.
B. Pursuant to an Agreement to Assign, Release, Franchise and Manage
(the "Agreement to Lease"), the Tenants have agreed to assign to an Affiliate of
Landlord, and such Affiliate of Landlord has agreed to assume from the Tenants,
such Existing Leases. From and after the date such Existing Leases are assigned
to an Affiliate of Landlord pursuant to the Agreement to Lease, such Existing
Leases shall thereafter cease to be Existing Leases, and shall thereafter
constitute "Converted Leases".
C. Pursuant to the terms of the Agreement to Lease, Guarantor has
agreed to guaranty certain obligations of the Tenants pursuant to the Existing
Leases on the terms and conditions hereof, with respect to each Existing Lease,
until such time as such Existing Lease becomes a Converted Lease. The guaranty
provided for herein shall amend and restate in their entirety, and stand in lieu
of, all of the Existing Guaranties.
D. The transactions contemplated by this Guaranty, the Existing Leases
and the Agreement to Lease are of direct, material and substantial benefit to
Guarantor.
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Guarantor and Landlord hereby amend and restate all of the
Existing Guaranties in their entirety, as follows:
SECTION 1
GUARANTY
Subject to the terms, provisions and limitations of this Guaranty,
Guarantor hereby unconditionally guarantees to Landlord the full, complete and
timely payment by the Tenants of all Minimum Rent (as defined in each Existing
Lease) and Additional Rent (as defined in each Existing Lease) (hereunder
collectively referred to as "Guaranteed Rent") due and payable under all of the
Existing Leases for the Guaranty Term, without deduction by reason of any
set-off (except to the extent of any set-offs to which a Tenant is expressly
entitled pursuant to the terms of the Existing Leases), defense or counterclaim.
For purposes hereof, it is expressly understood and agreed that Guaranteed Rent
shall not include any sums for damages relating to the acceleration of any rent
due under any Existing Lease in excess of the Minimum Rent and Additional Rent
payable during the Guaranty Term in accordance with the terms of such Existing
Lease. In the event that there is any event of default or default by a Tenant
pursuant to the terms of an Existing Lease, Landlord hereby agrees to use
reasonable efforts to mitigate its damages.
A. If during the Guaranty Term, a Tenant shall fail to pay all or any
portion of the Guaranteed Rent when due, Guarantor shall pay (without first
requiring Landlord to proceed against such Tenant, any other person, or any
other security) to Landlord all Guaranteed Rent due and unpaid. Guarantor shall
make payment of such Guaranteed Rent within four (4) Business Days of receipt by
Guarantor of notice from Landlord of a Tenant's failure to pay such Guaranteed
Rent. Interest at the Disbursement Rate shall accrue and be owing and due by
Guarantor to Landlord for any Guaranteed Rent not paid within such four (4)
Business Day period.
B. In the event Guarantor and a Tenant should each pay the same
Guaranteed Rent to Landlord, Landlord shall promptly return to Guarantor the
Guaranteed Rent paid by Guarantor.
SECTION 2
GUARANTY TERM
Guarantor's obligations hereunder shall be limited to Guaranteed Rent
accruing during a period commencing on the commencement of each of an Existing
Lease and shall continue in effect as set forth below:
(a) The Guaranty Term (the "Guaranty Term") shall be the period
commencing on the Effective Date and ending on the later to occur of:
(i) the date on which the last Existing Lease becomes a
Converted Lease; or
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(ii) the last day of the "Guaranty Term" as defined in
that certain Guaranty from Guarantor to HPT TRS
MI-135, INC. of even date herewith (the "Priorities
Guaranty").
(b) Notwithstanding any term or provision to the contrary contained
herein, this Guaranty shall terminate in its entirety on the occurrence of a
transfer of any interest in any property subject to an Existing Lease by
Landlord to a Person who meets any one or more of the criteria set forth in
Section 15.1(i) through (iv) of the Existing Leases. Within fifteen (15)
Business Days of its receipt of a written request therefor from Landlord,
Guarantor agrees that it will advise Landlord in writing whether or not
Guarantor would declare this Guaranty terminated due to the occurrence of an
event set forth hereinabove. Any such written request from Landlord must contain
such information as may be reasonably necessary for Guarantor to determine if
such event would occur, including all information necessary for Guarantor to
determine if any of the events set forth in Section 15.1(i) through (iv) of the
Existing Leases would occur.
SECTION 3
TERMINATION AS TO SPECIFIC PROPERTIES
In the event any of the following events shall occur, this Guaranty
shall be modified as set forth hereinbelow:
(i) The termination of an Existing Lease pursuant to the terms and
provisions thereof other than by reason of an Event of Default or Default by a
Tenant thereunder; or
(ii) The transfer by Landlord of a Property, or Properties, pursuant to
the terms and provisions of one or more of the Existing Leases, other than a
transfer to HPT or to any wholly owned subsidiary of HPT, or as permitted by
Article 20 of such Existing Lease or Existing Leases.
As used herein, the term "Deleted Property" shall mean that Property or
Properties referenced in Subsections (i) and/or (ii) hereinabove.
In the event either of the above-described events shall occur (a) this
Guaranty shall not apply to the Guaranteed Rent for the Deleted Property
accruing from and after the date of such event.
SECTION 4
CONSENT TO EXISTING LEASES
Guarantor hereby unconditionally consents to the terms, covenants, and
conditions of the Existing Leases.
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SECTION 5
WAIVERS BY GUARANTOR
Guarantor hereby waives notice of acceptance of this Guaranty by
Landlord and any and all notices and demands of every kind and description which
may be required to be given by any statute or rule of law. Guarantor agrees that
the liability of Guarantor hereunder shall in no way be affected, diminished, or
released by (i) any forbearance or indulgence which may be granted to any Tenant
(or to any successor thereto or to any person or entity which shall have assumed
the obligations thereof), or (ii) any waiver or amendment of any term, covenant,
or condition in any Existing Lease, or (iii) the acceptance of additional
security.
SECTION 6
ENFORCEMENT BY LANDLORD
A. Other Rights: Subject to the terms and provisions of this Section,
Guarantor agrees that this Guaranty may be enforced by Landlord without
enforcing any rights it may have against any other Person or any collateral.
Guarantor further agrees that nothing herein contained shall prevent Landlord
from suing on any of the Existing Leases or from exercising any other right
available to it under any of the Existing Leases or against any other Person.
The exercise of any of the aforementioned rights shall not constitute a legal or
equitable discharge of Guarantor, it being the purpose and intent of Guarantor
that its obligations under this Guaranty shall be absolute and unconditional
until the termination of this Guaranty pursuant to the terms of this Guaranty.
B. Payment of Expenses: Guarantor agrees, as principal obligor and not
as a guarantor only, to pay to Landlord forthwith upon demand, in immediately
available Federal funds, all costs and expenses to third parties (including
court costs and reasonable legal expenses) incurred or expended by Landlord in
connection with the enforcement of this Guaranty, together with interest on
amounts recoverable under this Guaranty from the time such amounts become due
until payment at the Disbursement Rate. Guarantor's covenants and agreements set
forth in this section shall survive the termination of this Guaranty.
SECTION 7
CLAIMS BY GUARANTOR AGAINST TENANTS
Nothing hereunder contained shall operate as a release or discharge, in
whole or in part, of any claim of Guarantor against any Tenant by subrogation or
otherwise, by reason of any act done or any payment made by Guarantor pursuant
to the provisions of this Guaranty; but all such claims shall be subordinate to
the claims of Landlord.
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SECTION 8
NOTICES
A. Any and all notices, demands, consents, approvals, offers, elections
and other communications required or permitted under this Guaranty shall be
deemed adequately given if in writing and the same shall be delivered either in
hand, by telecopier with written acknowledgment of receipt, or by mail or
Federal Express or similar expedited commercial carrier, addressed to the
recipient of the notice, postpaid and registered or certified with return
receipt requested (if by mail), or with all freight charges prepaid (if by
Federal Express or similar carrier).
B. All notices required or permitted to be sent hereunder shall be
deemed to have been given for all purposes of this Guaranty upon the date of
acknowledged receipt, in the case of a notice by telecopier, and, in all other
cases, upon the date of receipt or refusal, except that whenever under this
Guaranty a notice is either received on a day which is not a business day or is
required to be delivered on or before a specific day which is not a business
day, the day of receipt or required delivery shall automatically be extended to
the next business day.
C. All such notices shall be addressed,
if to Guarantor to: Marriott International, Inc.
10400 Fernwood Road, Dept. 52-924.11
Bethesda, Maryland 20817
Attn: Treasurer
Telecopier No. (301) 380-5067
with a copy to: Marriott International, Inc.
10400 Fernwood Road, Dept. 52-923.00
Bethesda, Maryland 20817
Attn: Lodging Operations Attorney
Telecopier No. (301) 380-6727
and a copy to: Marriott International, Inc.
10400 Fernwood Road, Dept. 52-923.00
Bethesda, Maryland 20817
Attn: Lodging - Senior Vice President, Finance
Telecopier No. (301) 380-3667
and a copy to: Venable, Baetjer and Howard, LLP
1800 Mercantile Bank and Trust Building
2 Hopkins Plaza
Baltimore, Maryland 21201
Attn: James D. Wright, Esq.
Telecopier: (410) 244-7742
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if to Landlord to: HPTMI Properties Trust
c/o Hospitality Properties Trust
400 Centre Street
Newton Massachusetts 02458
Attn: Mr. John G. Murray
Telecopier No. (617) 969-5730
with a copy to: Sullivan & Worcester LLP
One Post Office Square
Boston, Massachusetts 02109
Attn: Alexander A. Notopoulos, Esq.
Sander Ash, Esq.
Telecopier No. (617) 338-2880
D. By notice given as herein provided the parties hereto and their
respective successors and assigns shall have the right from time to time and at
any time while this Guaranty is in effect to change their respective addresses
effective upon receipt by the other party of such notice and each shall have the
right to specify as its address any other address within the United States of
America.
SECTION 11
APPLICABLE LAW; JURISDICTION
This Guaranty shall be interpreted, construed, applied and enforced in
accordance with the laws of the State of Maryland applicable to contracts
between residents of Maryland which are to be performed entirely within
Maryland, regardless of (i) where any such instrument is executed or delivered;
or (ii) where any payment or other performance required by any such instrument
is made or required to be made; or (iii) where any breach of any provision of
any such instrument occurs, or any cause of action otherwise accrues; or (iv)
where any action or other proceeding is instituted or pending; or (v) the
nationality, citizenship, domicile, principal place of business, or jurisdiction
of organization or domestication of any party; or (vi) whether the laws of the
forum jurisdiction otherwise would apply the laws of a jurisdiction other than
the State of Maryland; or (vii) any combination of the foregoing. The parties
acknowledge, consent and agree that the United States District Court of the
District of Maryland and any court of competent jurisdiction in the State of
Maryland shall have jurisdiction in any proceeding instituted to enforce this
Guaranty or any provision hereof and any objections to venue are hereby waived.
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SECTION 12
BINDING EFFECT
The rights, powers, privileges, and discretions (hereinafter referred
to as the "rights") to which Landlord may be entitled hereunder shall inure to
the benefit of its successors and permitted assigns. All the rights of Landlord
herein are cumulative and not alternative and may be enforced successively or
concurrently. Failure of Landlord to exercise any of its rights shall not be
deemed a waiver thereof, and no waiver of any of Landlord's rights shall be
deemed to apply to any other rights. The terms, covenants, and conditions of or
imposed upon Guarantor herein shall be binding upon the successors and assigns
of Guarantor.
SECTION 13
SEVERABILITY
In case any provision (or any part of any provision) contained in this
Guaranty shall for any reason be held to be invalid, illegal or unenforceable in
any respect, such invalidity, illegality or unenforceability shall not affect
any other provision (or remaining part of the affected provision) of this
Guaranty, but this Guaranty shall be construed as if such provision (or part
thereof) had never been made to the extent it is invalid, illegal or
unenforceable.
SECTION 14
GRAMMAR
When used herein, the singular shall include the plural; the plural the
singular; and the use of any gender shall be applicable to all genders.
SECTION 15
TIME OF THE ESSENCE
Time is of the essence in the performance of the obligations and
undertakings of the parties hereto.
SECTION 16
CAPTIONS
The captions appearing in this Guaranty are inserted only as a matter
of convenience and do not define, limit, construe or describe the scope or
intent of the sections of this Guaranty nor in any way affect this Guaranty.
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SECTION 17
MISCELLANEOUS
A. Unenforceability of Guaranteed Obligations, Etc. If any Tenant is
for any reason (other than by reason of any waiver, discharge or other event
pursuant to the terms of the Existing Leases) under no legal obligation to pay
any of the Guaranteed Amounts, or if any other moneys included in the Guaranteed
Amounts have become unrecoverable from any Tenant by operation of law or for any
other reason, the obligations of Guarantor contained in this Guaranty shall
nevertheless remain in full force and effect and shall be binding upon
Guarantor.
B. Consents and Waivers. Guarantor hereby acknowledges receipt of
correct and complete copies of the Existing Leases, and consents to all of the
terms and provisions thereof, as the same may be from time to time hereafter
amended or changed in accordance therewith or the Agreement to Lease, and waives
(a) notice of any default hereunder and any default, breach or nonperformance or
any Default or Event of Default with respect to any of the Guaranteed Rent under
the Existing Leases, (b) demand for performance or observance of, and any
enforcement of any provision of, or any pursuit or exhaustion of rights or
remedies against the Tenants, under or pursuant to the Existing Leases, or any
agreement directly or indirectly relating thereto and any requirements of
diligence or promptness on the part of Landlord in connection therewith, and (c)
to the extent Guarantor lawfully may do so, any and all demand and notices of
every kind and description with respect to the foregoing or which may be
required to be given by any statute or rule of law and any defense of any kind
which it may now or hereafter have with respect to this Guaranty, the Existing
Leases or the Guaranteed Rent.
C. No Impairment. The obligations, covenants, agreements and duties of
Guarantor under this Guaranty shall not be affected or impaired by any waiver by
Landlord of all of the Guaranteed Rent or the performance or observance by the
Tenants of any of the agreements, covenants, terms or conditions contained in
the Existing Leases or any indulgence in or the extension of the time for
payment or performance by the Tenants of any amounts payable under or in
connection with the Existing Leases or any other instrument or agreement
relating to the Guaranteed Rent or of the time for performance by the Tenants of
any other obligations under or arising out of any of the foregoing or the
extension or renewal thereof, or the modification or amendment (whether material
or otherwise) of any duty, agreement or obligation of the Tenants set forth in
any of the Existing Leases, or the voluntary or involuntary sale or other
disposition of all or substantially all the assets of any of the Tenants or
insolvency, bankruptcy, or other similar proceedings affecting any of the
Tenants or any assets of any of the Tenants, or the release or discharge of any
of the Tenants from the performance or observance of any agreement, covenant,
term or condition contained in any agreement, covenant, term or condition
contained in any of the foregoing by operation of law, or any other cause,
whether similar or dissimilar to the foregoing.
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D. Reimbursement, Subrogation, Etc. Guarantor hereby covenants and
agrees that it shall not enforce or otherwise exercise any rights of
reimbursement, subrogation, contribution or other similar rights against the
Tenants or any other person with respect to the Guaranteed Rent prior to the
payment in full of the obligations of the Tenants under the Existing Leases.
Until all obligations of the Tenants under the Existing Leases shall have been
paid and performed in full, Guarantor shall have no right of subrogation, and
Guarantor waives any defense it may have based upon any election of remedies by
Landlord which destroys Guarantor's subrogation rights or Guarantor's rights to
proceed against the Tenants for reimbursement, (including, without limitation,
any loss of rights Guarantor may suffer by reason of any rights, powers or
remedies of the Tenants in connection with any anti-deficiency laws or any other
laws limiting, qualifying or discharging the indebtedness to Landlord).
E. Remedies Cumulative. No remedy herein conferred upon Landlord is
intended to be exclusive of any other remedy, and each and every remedy shall be
cumulative and shall be in addition to every other remedy given hereunder or now
or hereafter existing at law or in equity or by statute or otherwise.
F. HPT's and Landlord's Liability. THE DECLARATIONS OF TRUST
ESTABLISHING HPT AND LANDLORD, A COPY OF EACH OF WHICH, TOGETHER WITH ALL
AMENDMENTS THERETO (THE "DECLARATIONS"), ARE DULY FILED WITH THE DEPARTMENT OF
ASSESSMENTS AND TAXATION OF THE STATE OF MARYLAND, PROVIDE THAT THE NAMES
"HOSPITALITY PROPERTIES TRUST" AND "HPTMI PROPERTIES TRUST" REFER TO THE
TRUSTEES UNDER THE DECLARATIONS COLLECTIVELY AS TRUSTEES, BUT NOT INDIVIDUALLY
OR PERSONALLY, AND THAT NO TRUSTEE, OFFICER, SHAREHOLDER, EMPLOYEE OR AGENT OF
HPT OR LANDLORD SHALL BE HELD TO ANY PERSONAL LIABILITY, JOINTLY OR SEVERALLY,
FOR ANY OBLIGATION OF, OR CLAIM AGAINST, HPT OR LANDLORD. ALL PERSONS DEALING
WITH HPT OR LANDLORD, IN ANY WAY, SHALL LOOK ONLY TO THE ASSETS OF HPT OR
LANDLORD, AS APPLICABLE, FOR THE PAYMENT OF ANY SUM OR THE PERFORMANCE OF ANY
OBLIGATION HEREUNDER.
G. Counterpart. The parties agree that this Guaranty may be signed in
counterpart.
H. Other Agreements. Landlord acknowledges and agrees that any advance
made by Guarantor to Landlord of amounts guaranteed pursuant to this Guaranty
shall be deemed to be an advance made pursuant to the Priorities Guaranty for
all purposes thereof and sums available hereunder shall be reduced pursuant to
the terms of the Priorities Guaranty.
[Signatures appear on the following page.]
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement with the intention of creating an instrument under seal.
GUARANTOR:
WITNESS: MARRIOTT INTERNATIONAL, INC.
/s/ John M. Steiner By: /s/ Timothy J. Grisius (SEAL)
Name: John M. Steiner Name: Timothy J. Grisius
Title: Authorized Signatory
LANDLORD:
WITNESS: HPTMI PROPERTIES TRUST
/s/ John M. Steiner By: /s/ John G. Murray (SEAL)
Name: John M. Steiner Name: John G. Murray
Title: President
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EXHIBIT A
Existing Leases
EXHIBIT B
Existing Guaranties
All of those certain Limited Rent Guaranties from Marriott
International, Inc., as guarantor, to HPTMI Properties Trust or an Affiliate,
pertaining to the lease agreements set forth on Exhibit A hereto.