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EXHIBIT 10.5
GUARANTY
THIS 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 HPT TRS MI-135, INC., a Delaware corporation
("Tenant").
RECITALS:
A. Certain Affiliates of Guarantor (as sellers) and Hospitality
Properties Trust, a Maryland real estate investment trust ("HPT") (as
purchaser), are parties to that certain Purchase and Sale Agreement dated of
even date herewith (the "Limited Service Purchase Contract") with respect to the
three (3) hotels listed on Exhibit A attached hereto as the properties to be
purchased (the "Additional Limited Service Properties").
B. Marriott Kauai, Inc., a Delaware corporation (as seller) and HPT (as
purchaser), are parties to that certain Purchase and Sale Agreement dated of
even date herewith (the "Kauai Purchase Contract") with respect to the
Marriott's Kauai Resort and Beach Club (the "Kauai Hotel"). (The parties
referred to as sellers in Recitals A and B are hereinafter referred to
individually as a "Seller" and collectively as the "Sellers," the Limited
Service Purchase Contract and the Kauai Purchase Contract are referred to
hereinafter collectively as the "Purchase Contracts," and the Additional Limited
Service Properties and the Kauai Hotel are referred to hereinafter collectively
as the "Additional Properties.")
C. Pursuant to an Assignment and Assumption Agreement dated of even
date herewith, HPT has assigned its rights under the Limited Service Purchase
Contract to HPTMI Properties Trust, a Maryland real estate investment trust
("HPTMI"), and HPTMI has assumed the obligations of HPT thereunder. Pursuant to
an Assignment and Assumption Agreement of even date herewith, HPT has assigned
its rights under the Kauai Purchase Contract to HPTMI Hawaii, Inc. ("Kauai
Owner") (HPTMI and Kauai Owner, collectively, the "Landlords"). HPTMI is also,
as of the date hereof, the owner, directly or indirectly, of certain other
hotels operated by Guarantor and/or its Affiliates and which are listed on
Exhibit B attached hereto (the "Initial Properties").
D. Guarantor, HPT, Landlord and Tenant are, inter alia, parties to that
certain Agreement to Assign, Release, Franchise and Manage dated of even date
herewith (the "Agreement to Lease") with respect to the Additional Properties
and the Initial Properties (each of the four (4) Additional Properties and
thirty-one (31) Initial Properties a "Property" and collectively the
"Properties").
E. As a condition precedent to closing under the Purchase Contracts
with respect to each Additional Property, and as a condition precedent to
consummating, from time to time, the transactions contemplated by the Agreement
to Lease with respect to each Additional Property and each Initial Property: (i)
Tenant is to lease each such Property from the applicable Landlord, and (ii)
simultaneously with each such Property
being leased (or the lease for such Property being assigned, as applicable), the
Affiliate of Guarantor whose business includes managing the brand of hotel under
which such Property is being operated, acting in its capacity as a hotel
management company (each a "Manager" and collectively the "Managers"), is to
enter into a management agreement or confirmation thereof, as applicable (as the
same may be amended from time to time pursuant to the terms of the Agreement to
Lease or thereof, each a "Management Agreement" and collectively the "Management
Agreements") with Tenant pursuant to which such Manager shall manage such
Property.
F. From and after the date each Property is leased by Tenant, such
Property shall constitute a "Portfolio Property" and all of such Properties
shall collectively constitute the "Portfolio Properties."
G. The revenues generated by the operations of the Portfolio Properties
are being pooled for purposes of paying operating expenses of the Portfolio
Properties, fees and other amounts due to Guarantor, the Managers and Tenant,
and distributions to various other persons, and working capital and reserves of
the Portfolio Properties are being managed on a pooled basis, all pursuant to a
Pooling Agreement dated of even date herewith between Guarantor, the Managers
and Tenant (the "Pooling Agreement").
H. It is a further condition precedent to closing under the Purchase
Contracts with respect to each Additional Property, and to consummating the
transactions contemplated by the Agreement to Lease with respect to each
Additional Property and each Initial Property, that Guarantor provide Tenant
with this Guaranty.
I. The transactions contemplated by the Purchase Contracts, the
Agreement to Lease, the Leases, the Pooling Agreement, and the Management
Agreements 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 covenant and agree as follows:
SECTION 1
DEFINED TERMS
Capitalized terms used herein but not otherwise defined in this
Guaranty shall have the meanings ascribed to such terms in the Management
Agreements, and if not so defined therein, then in Agreement to Lease or the
Pooling Agreement, as applicable. The following terms as used in this Agreement
shall have the meanings set forth below:
"Aggregate Amount Funded" is the cumulative amount of Guaranteed
Amounts funded by Guarantor hereunder to the extent that Aggregate Operating
Profit and/or Operating Profit of the Properties, as applicable, was
insufficient to fund payment of such
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amounts pursuant to the terms of the Pooling Agreement and/or Management
Agreements, as applicable.
"Business Day" shall have the meaning set forth in the Management
Agreements.
"Guaranteed Amounts" is a collective reference to the Aggregate
Tenant's First Priority and the Tenant's First Priority (to the extent not
included in Aggregate Tenant's First Priority) then due under each of the
Management Agreements during the Guaranty Term determined as though Aggregate
Gross Revenue, Gross Revenue (to the extent not included in Aggregate Gross
Revenue), Aggregate Operating Profit or Operating Profit (to the extent not
included in Aggregate Operating Profit) are at all times sufficient to pay such
Aggregate Tenant's First Priority and the Tenant's First Priority when due,
including that which is or becomes due on the first day of a Portfolio
Accounting Period, by acceleration or otherwise to the full extent provided for
in the Management Agreements, but specifically excluding any Aggregate Tenant's
First Priority or Tenant's First Priority in excess of that payable during the
Guaranty Term absent such acceleration.
"Guaranty Limit" shall mean an amount equal to Fifty Million Eight
Hundred Seventy Eight Thousand Five Hundred Dollars ($50,878,500). If (a) any
Portfolio Property shall cease to be subject to a Management Agreement in
accordance with the terms of such applicable Management Agreement for any reason
other than a Manager Default thereunder, or (b) a Tenant Deconsolidation Event
shall occur with respect to any Portfolio Property, or (c) if the applicable
Purchase Contract shall be terminated in accordance with its terms with respect
to any Additional Property or the Agreement to Lease shall be terminated with
respect to any Initial Property or any Additional Property, in each instance
prior to such Additional Property or Initial Property becoming a Portfolio
Property, for any reason other than a default by Marriott or one or more of the
Affiliates of Marriott which are a party thereto, the Guaranty Limit shall be
reduced by an amount equal to (i) the Guaranty Limit at such time minus the
Aggregate Amount Funded at such time, (ii) multiplied by a fraction, the
numerator of which is the annual Tenant's First Priority for the affected Hotel
and the denominator of which is the Aggregate Tenant's First Priority
immediately prior to such reduction.
"Tenant's First Priority Coverage" shall mean, for any period, the
quotient of (i) the Aggregate Operating Profit for such Tenant's First Priority
Coverage Period, divided by (ii) the Aggregate Tenant's First Priority for such
Tenant's First Priority Coverage Period. The Properties used in making such
calculation shall include only those Properties which are Portfolio Properties
at the time of calculation.
"Tenant's First Priority Coverage Period" shall mean any period of
thirteen (13) consecutive Portfolio Accounting Periods used to calculate the
subject Tenant's First Priority Coverage, provided however, that no Portfolio
Accounting Period shall be eligible for inclusion in such Tenant's First
Priority Coverage Period prior to the first Portfolio Accounting Period in
which, as of the first day of such Portfolio Accounting Period, the Lease has
been made applicable to all of the Properties (excluding any
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Additional Properties with respect to which the applicable Purchase Contract or
any Initial Properties or Additional Properties with respect to which the
Agreement to Lease has been terminated).
SECTION 2
GUARANTY
Subject to the terms, provisions and limitations of this Guaranty,
Guarantor hereby unconditionally guarantees to Tenant the full, complete and
timely payment to Tenant, without deduction by reason of any set-off, the
payment of the Guaranteed Amounts, without regard to any inadequacy of the
Aggregate Operating Profit, Operating Profit, Aggregate Gross Revenue or Gross
Revenue.
If during the Guaranty Term, Tenant shall fail to receive all or any
portion of the Guaranteed Amounts when due, Guarantor shall pay to Tenant all
Guaranteed Amounts due and unpaid. Guarantor shall make payment of such
Guaranteed Amounts within four (4) Business Days of receipt by Guarantor of
notice from Tenant of Tenant's failure to receive such Guaranteed Amounts.
Interest at the Overdue Rate shall accrue and be owing and due by Guarantor to
Tenant for any Guaranteed Amounts not paid within such four (4) Business Day
period.
In the event Guarantor and a Manager should each pay the same
Guaranteed Amount to Tenant, Tenant shall promptly return to Guarantor the
Guaranteed Amount (or portion thereof) which was paid by both of Guarantor and
such Manager.
SECTION 3
GUARANTY TERM
(a) The Guaranty Term (the "Guaranty Term") shall be the period
commencing on the Effective Date and ending on the earlier to occur of:
(i) the date on which the Aggregate Amount Funded by
Guarantor as of such date equals or exceeds the
Guaranty Limit; or
(ii) the last day of the first Tenant's First Priority
Coverage Period for which Tenant's First Priority
Coverage equals or exceeds 1.3; or
(iii) 11:59 p.m. on December 31, 2005.
(b) To confirm that the Aggregate Amount Funded by Guarantor hereunder
equals or exceeds the Guaranty Limit, Guarantor shall send a notice (the
"Guaranty Limit Notice") to Tenant which notice shall include (a) a statement
from Guarantor's
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independent outside auditor affirming that such auditor has reviewed the
Aggregate Amount Funded determination of Guarantor and has found no material
errors or omissions therein, (b) a certificate of an officer of Guarantor
affirming the accuracy and completeness of Aggregate Amount Funded determination
of Guarantor, and (c) a copy of the calculation of the Aggregate Amount Funded
determination of Guarantor. Tenant, at its sole cost and expense (except as
provided hereinbelow), shall be entitled to perform an independent audit to
confirm the accuracy of any such determination submitted by Guarantor, provided
Tenant provides notice to Guarantor of its intent to perform such audit within
ninety (90) days after Guarantor's giving of the Guaranty Limit Notice to
Tenant. If Tenant timely notifies Guarantor of its intent to audit, such audit
shall be commenced not later than ninety (90) days after Tenant's giving of
notice of its intent to audit to Guarantor, and completed within a commercially
reasonable period of time thereafter, provided, however, that Tenant shall have
such longer period to complete such audit as may be reasonably required as a
result of Guarantor's or its Affiliates' failure or delay in cooperating as
reasonably requested by Tenant in connection with such audit. If such
independent audit establishes that the Aggregate Amount Funded by Guarantor did
not equal or exceed the Guaranty Limit, the Guaranty Term shall not end pursuant
to clause (i) of this Section 3, but shall continue, subject nevertheless to all
of the terms and conditions hereof (including without limitation this Section 3)
and, unless such Guaranty Term Notice was inaccurate due to incorrect or
incomplete material provided by Tenant, the reasonable third-party costs of such
audit shall be borne by Guarantor.
(c) To confirm that the Tenant's First Priority Coverage has met or
exceeded the 1.3 ratio threshold set forth in clause (ii) hereinabove, Guarantor
shall send a notice ("Coverage Test Notice") to Tenant which notice shall
include (a) a statement from Guarantor's independent outside auditor affirming
that such auditor has reviewed the determination for the applicable Tenant's
First Priority Coverage Period and has found no material errors or omissions
therein, (b) a certificate of an officer of Guarantor affirming the accuracy and
completeness of the determination for the applicable Tenant's First Priority
Coverage Period calculation, and (c) a copy of the calculations of Tenant's
First Priority Coverage determination for the applicable Tenant's First Priority
Coverage Period. Tenant, at its sole cost and expense (except as provided
hereinbelow), shall be entitled to perform an independent audit to confirm the
accuracy of any Tenant's First Priority Coverage determination submitted by
Guarantor, provided Tenant provides notice to Guarantor of its intent to perform
such audit within ninety (90) days after Guarantor's giving of the Coverage Test
Notice to Tenant. If Tenant timely notifies Guarantor of its intent to audit,
such audit shall be commenced not later than ninety (90) days after Tenant's
giving of notice of its intent to audit to Guarantor, and completed within a
commercially reasonable period of time thereafter, provided, however, that
Tenant shall have such longer period to complete such audit as may be reasonably
required as a result of Guarantor's or its Affiliates' failure or delay in
cooperating as reasonably requested by Tenant in connection with such audit. If
such independent audit establishes that the subject Tenant's First Priority
Coverage being audited did not equal or exceed the aforementioned 1.3 ratio
threshold, the Guaranty Term shall not end pursuant to clause (ii) of this
Section 3, but shall continue, subject nevertheless to all of the terms and
conditions hereof (including without limitation this Section 3) and, unless
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such Coverage Test Notice was inaccurate due to incorrect or incomplete material
provided by Tenant, the reasonable third-party costs of such audit shall be
borne by Guarantor.
SECTION 4
SPECIAL TERMINATION PROVISIONS
Notwithstanding any term or provision to the contrary contained herein,
if either of the following events shall occur, this Guaranty shall terminate in
its entirety on the earlier to occur of:
(i) a transfer of its leasehold interest in any of the Portfolio
Properties by Tenant (other than to HPT or to any wholly-owned direct or
indirect subsidiary of HPT) for which the Tenant's First Priority Coverage
determined solely for the Portfolio Property or Properties in which such
interest is being transferred exceeds the Tenant's First Priority Coverage for
all of the Portfolio Properties then subject to the Pooling Agreement for the
then-most recently ended Portfolio Accounting Period; or
(ii) a transfer of any interest in any of the Properties by Tenant to a
Person who meets any one of the criteria set forth in Sections 10.02.A(a)
through (d) of the Management Agreements or by Landlord which fails to meet the
requirements of the Owners Agreement .
Within fifteen (15) Business Days of its receipt of a written request
therefor from Tenant, Guarantor agrees that it will advise Tenant in writing
whether or not Guarantor would declare this Guaranty terminated due to the
occurrence of either event set forth hereinabove. Any such written request from
Tenant must contain such information as may be reasonably necessary for
Guarantor to determine if either event would occur, including all information
necessary for Guarantor to determine if any of the events set forth in Sections
10.02.A(a) through (d) of the Management Agreements would occur.
SECTION 5
SPECIAL MODIFICATION PROVISIONS
In the event any of the following events shall occur, this Guaranty
shall be modified as set forth hereinbelow:
(i) if the Management Agreement is terminated with respect to a
Portfolio Property pursuant to the terms and provisions thereof, other than a
termination of a Management Agreement with respect to a Property due to a
Manager Default; or
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(ii) if either Tenant or Landlord shall transfer its interest any
Property to a Person other than HPT or a wholly-owned direct or indirect
subsidiary of HPT or as otherwise permitted by Section 10.02 of the applicable
Management Agreement or in violation of any applicable provision of the Owner
Agreement.
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 Tenant's First Priority (or pro rata portion
thereof) for the Deleted Property accruing from and after the date of such
event, and (b) with respect to all periods subsequent to the events set forth in
subsections (i) and/or (ii) hereinabove, the terms "Tenant's' First Priority,"
"Aggregate Tenant's First Priority," and "Tenant's First Priority Coverage"
shall refer only to the Portfolio Properties other than the Deleted Properties,
and the term "Aggregate Amount Funded" shall refer to the sum of (I) all
Guaranteed Amounts paid by Guarantor hereunder for all Properties up to the date
of such event, and (II) all Guaranteed Amounts paid by Guarantor hereunder for
Properties other than Deleted Properties from and after the date of such event.
SECTION 6
CONSENT TO MANAGEMENT AGREEMENT
Guarantor hereby unconditionally consents to the terms, covenants, and
conditions of the Management Agreements.
SECTION 7
WAIVERS BY GUARANTOR
Guarantor hereby waives notice of acceptance of this Guaranty by Tenant
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
Manager (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 Management Agreement, the Pooling Agreement, any
Existing Lease or other Incidental Document, or (iii) the acceptance of
additional security.
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SECTION 8
ENFORCEMENT BY LANDLORD
A. Other Rights: Subject to the terms and provisions of this Section,
Guarantor agrees that this Guaranty may be enforced by Tenant without enforcing
any rights it may have against any other Person or any collateral. Guarantor
further agrees that nothing herein contained shall prevent Tenant from suing on
any of the Management Agreements, the Pooling Agreement, the Agreement to Lease,
any Existing Lease or any other Incidental Document or from exercising any other
right available to it under any of the Management Agreements, the Pooling
Agreement, the Agreement to Lease, any Existing Lease or any other Incidental
Document 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 Tenant 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 Tenant 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 9
CLAIMS BY GUARANTOR AGAINST MANAGER
Nothing hereunder contained shall operate as a release or discharge, in
whole or in part, of any claim of Guarantor against any Manager 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 Tenant.
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SECTION 10
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
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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
if to Tenant to: HPT TRS MI-135, INC.
c/o Hospitality Properties Trust
400 Centre Street
Newton Massachusetts 02458
Attn: President
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
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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.
SECTION 12
BINDING EFFECT
The rights, powers, privileges, and discretions (hereinafter referred
to as the "rights") to which Tenant may be entitled hereunder shall inure to the
benefit of its successors and permitted assigns. All the rights of Tenant herein
are cumulative and not alternative and may be enforced successively or
concurrently. Failure of Tenant to exercise any of its rights shall not be
deemed a waiver thereof, and no waiver of any of Tenant'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.
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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.
SECTION 17
MISCELLANEOUS
A. Unenforceability of Guaranteed Obligations, Etc. If any Manager is
for any reason (other than by reason of any waiver, discharge or other event
pursuant to the terms of the Management Agreements) 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 Manager 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 Management Agreements and the Pooling
Agreement, 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 Amounts under the Management Agreements or the
Pooling Agreement, (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 Managers, under or pursuant to the Management Agreements,
or any agreement directly or indirectly relating thereto and any requirements of
diligence or promptness on the part of Tenant 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 Pooling
Agreement, the Management Agreements or the Guaranteed Amounts.
C. No Impairment. The obligations, covenants, agreements and duties of
Guarantor under this Guaranty shall not be affected or impaired by any waiver by
Tenant of all of the Guaranteed Amounts or the performance or observance by the
Managers of any of the agreements, covenants, terms or conditions contained in
the Management Agreements or any indulgence in or the extension of the time for
payment or performance by the Managers of any amounts payable under or in
connection with the Management Agreements or any other instrument or agreement
relating to the Guaranteed Amounts or of the time for
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performance by the Managers 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 Managers set forth in any of the Management Agreements, or the voluntary
or involuntary sale or other disposition of all or substantially all the assets
of any of the Managers or insolvency, bankruptcy, or other similar proceedings
affecting any of the Managers or any assets of any of the Managers, or the
release or discharge of any of the Managers 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.
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
Managers or any other person with respect to the Guaranteed Amounts prior to the
payment in full of the obligations of the Managers under the Management
Agreements. Until all obligations of the Managers under the Management
Agreements 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 Tenant which destroys Guarantor's subrogation rights
or Guarantor's rights to proceed against the Managers for reimbursement,
(including, without limitation, any loss of rights Guarantor may suffer by
reason of any rights, powers or remedies of the Managers in connection with any
anti-deficiency laws or any other laws limiting, qualifying or discharging the
indebtedness to Tenant).
E. Remedies Cumulative. No remedy herein conferred upon Tenant 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.
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H. Other Agreements. Tenant acknowledges and agrees that any advance
made by Guarantor to Landlord of amounts guaranteed pursuant to that certain
Amended and Restated Limited Rent Guaranty of even date herewith from Guarantor
to Landlord with respect to the Existing Leases shall be deemed to be an advance
made pursuant to this Guaranty for all purposes hereof and of the Pooling
Agreement and the Management Agreements, and the amount of any such advance
shall be included in calculating the Aggregate Amount Funded hereunder.
[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
TENANT:
WITNESS: HPT TRS MI-135, INC.
/s/ John M. Steiner By: /s/ John G. Murray (SEAL)
Name: John M. Steiner Name: John G. Murray
Title: Vice President
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EXHIBIT A
Additional Limited Service Properties
1. CYBM Emeryville, CA
2. SHBM Renton, WA
3. TSBM Renton, WA
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EXHIBIT B
Initial Properties
1. RIBM Fresno, CA
2. RIBM Dallas/Richardson, TX
3. RIBM San Antonio, TX
4. RIBM Reno, Nevada
5. RIBM Fort Worth/Fossil Creek, TX
6. CYBM Fort Worth, Fossil Creek, TX
7. CYBM Houston/Hobby Airport, TX
8. RIBM Birmingham/Homewood, AL
9. RIBM Charlottesville, VA
10. RIBM Atlanta, GA
11. RIBM Fairfax/Fairlakes, VA
12. RIBM Bethlehem, PA
13. CYBM Bethlehem, PA
14. CYBM Birmingham, AL
15. MHRS Nashville, TN
16. MHRS St. Louis, MO
17. TSBM Atlanta/Norcross, GA
18. TSBM Norfolk, Newport News, VA
19. TSBM Atlanta/Northlake, GA
20. TSBM Virginia Beach, VA
21. TSBM Richmond/Northwest, VA
22. TSBM Fairfax/Chantilly, VA
23. TSBM Falls Church, Virginia
24. RIBM Raleigh Airport, NC
25. CYBM Charlston North, SC
26. RIBM Chicago/Waukegan, IL
27. RIBM Raleigh/Cary, NC
28. TSBM Chicago/W. Dundee, IL
29. CYBM Chicago/W. Dundee, IL
30. TSBM Detroit/Novi, MI
31. CYBM Detroit/Novi, MI
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