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EXHIBIT 10.31
GUARANTOR AGREEMENT
THIS GUARANTOR AGREEMENT (this "Agreement") is made and entered into
on this 26th day of May, 1995 by and among Convention Center Boulevard Hotel,
Limited, a Louisiana Partnership in Commendam (the "Partnership"), Wyndham
Hotel Company Ltd., a Texas limited partnership ("Wyndham"), Darryl D. Berger
("Berger") and Roger H. Ogden ("Ogden").
WHEREAS, certain entities affiliated with Wyndham, Berger and Ogden
are partners (the "Partners") in the Partnership, which has been formed for the
purpose of developing a hotel of approximately 200 rooms in New Orleans,
Louisiana (the "Hotel");
WHEREAS, the Partnership is governed by an Amended and Restated
Agreement of Limited Partnership dated May 26, 1995 (the "Partnership
Agreement");
WHEREAS, the financing for the Hotel includes a $13,750,000 loan (the
"FNBC Debt") from First National Bank of Commerce, New Orleans, Louisiana
("FNBC") pursuant to a Construction and Term Loan Agreement dated January 12,
1995 (as amended, the "FNBC Loan Agreement"), and Wyndham and Berger are
delivering Guaranties in respect of the FNBC Debt (respectively, the "Wyndham
Bank Guaranty" and the "Berger Bank Guaranty" and collectively, the "Bank
Guaranties");
WHEREAS, the Wyndham Bank Guaranty is limited to $875,000 in principal
amount (which is subject to reduction as therein provided), and the Berger Bank
Guaranty covers the entire amount of the FNBC Debt;
WHEREAS, Berger and Ogden are also delivering to the Partnership a
Guaranty in respect of the completion of construction of the Hotel (the
"Completion Guaranty");
WHEREAS, Wyndham is also entering into an FF&E and Technical Services
Contract with the Partnership pursuant to which Wyndham guarantees that the
cost of furniture, fixtures and equipment for the Hotel will be a fixed amount
(the "FF&E Contract");
WHEREAS, Wyndham has also entered into a Management Agreement (the
"Management Agreement") with the Partnership which includes a provision
pursuant to which Wyndham guarantees that the pre-opening expenses for the
Hotel will not exceed $420,000 (the "Preopening-Guaranty" and together with
the Completion Guaranty and the FF&E Contract, the "Other Guaranties");
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, it is agreed as follows:
1. Joint Responsibility Under Bank Guaranties. Pursuant to the
Bank Guaranties, (i) Wyndham and Berger have liability together with respect to
the first $1,750,000 reduction in principal amount of the FNBC Debt (the "Joint
Exposure") and (ii) Berger is solely liable
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pursuant to the Berger Bank Guaranty with respect to the remainder of the FNBC
Debt. Wyndham's liability to the holder of the FNBC Debt is subject to the
limit in the Wyndham Bank Guaranty, which is subject to reduction as therein
provided. Wyndham and Berger agree that, as between them, they each have
responsibility for fifty percent (50%) of amounts paid by them pursuant to the
Bank Guaranties to the extent of the Joint Exposure. Accordingly, in the event
either Wyndham or Berger pays more than fifty percent (50%) of the aggregate
amount paid by both Wyndham and Berger with respect to the Joint Exposure, the
party making the excess payment (the "Payment Guarantor") shall have a right of
contribution against the other party (the "Contribution Guarantor") for such
excess, which amount shall be payable within ten (10) days following demand
by the Payment Guarantor. To the extent such contribution payment is made by
the Contribution Guarantor when due, any Mortgage Contribution (as defined in
the Partnership Agreement) that would otherwise be considered to have been made
with respect to such payment on behalf of a Partner designated by the Payment
Guarantor shall be deemed instead to have been made on behalf of a Partner
designated by the Contribution Guarantor. Wyndham and Berger covenant and
agree that neither of them will obtain or accept the benefits of any release of
liability with respect to the Joint Exposure unless it results in a pro rata
reduction of liability for each of Wyndham and Berger, except, in the case of
Wyndham, as otherwise provided in Section 12.7 of the Management Agreement and
Section 3 of the Completion Guaranty.
2. Mandatory Guaranty Payments. As more fully reflected therein,
the Partnership Agreement contemplates that payments required on the FNBC Debt,
other than regularly scheduled debt service and payments after the regularly
scheduled maturity of the Term Loan (as defined in the FNBC Loan Agreement),
("Principal Reduction Payments") are to be funded directly and primarily by
payments from Wyndham and Berger pursuant to the Bank Guaranties rather than by
the Partnership or its Partners. If the holder of the FNBC Debt notifies the
Partnership that the Maximum Principal Amount (as defined in the FNBC Loan
Agreement is less than the principal balance of the Term Loan or such holder
makes demand for a Principal Reduction Payment, then following demand by the
Partnership or any Partner and prior to the commencement by the holder of the
FNBC Debt of the exercise of any of its rights with respect to Partnership
collateral by reason of an Event of Default thereunder, Wyndham (subject to the
limits of the Wyndham Bank Guaranty) and Berger (subject to the limit
hereinafter set forth) agree, as a direct and primary obligation, subject,
however, to the provisions of paragraph 3 below, to make the required Principal
Reduction Payments, with the responsibility as between them for such Payments
being as set forth in paragraph 1 above. Notwithstanding the Berger Bank
Guaranty, Berger shall not be required by this paragraph 2 to make Principal
Reduction Payments in excess of $2,500,000 (including payments in respect of
the portion of the Joint Exposure for which he is responsible), although his
failure to make Principal Reduction Payments that would otherwise be required
in the absence of such limitation shall nonetheless have the consequences set
forth in Section 2.2(h) of the Partnership Agreement.
3 Management Fee Refunds. Section 7.1 (d) of the Management
Agreement makes provision for refunds of Management Fees by Wyndham in order to
cause the Debt Coverage Requirement under the FNBC Loan Agreement to be
satisfied. The Management Agreement also provides that upon payment to Wyndham
by Berger of all or any portion of a Proposed Refund
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Amount, Wyndham is obligated to make such refund and to assign to Berger its
right to receive the resulting Contingent Fee under the Management Agreement.
The term "Wyndham Portion", when used in this paragraph 3 with reference to a
Proposed Refund Amount shall mean a fraction, the numerator of which is the
amount of the Principal Reduction Payment for which Wyndham would be
responsible under paragraphs 1 and 2 above by reason of the Debt Coverage
Requirement in the absence of the Management Fee refund in question, and the
denominator of which is total of such Principal Reduction Payments for which
Wyndham and Berger would be responsible in the absence of such refund (computed
without regard to the $2,500,000 limitation referred to in paragraph 2 above
and excluding from such calculation any Principal Reduction Payment that would
be owing notwithstanding the refund of the full Proposed Refund Amount). The
term "Berger Portion" means the portion of a Proposed Refund Amount other than
the Wyndham Portion. Notwithstanding anything to the contrary in paragraphs 1
and 2 above, (i) Wyndham may satisfy any obligation it would otherwise have
under this Agreement to make a Principal Reduction Payment by reason of the
Debt Coverage Requirement to the extent it refunds to the Partnership the
Wyndham Portion of the Proposed Refund Amount, (ii) Berger may satisfy any
obligation he would otherwise have under this Agreement to make a Principal
Reduction Payment by reason of the Debt Coverage Requirement to the extent he
pays to Wyndham the Berger Portion of the Proposed Refund Amount, and (iii)
there shall be no right of contribution on the part of a Payment Guarantor to
the extent a payment under a Bank Guaranty results from (x) in the case of
Wyndham, the failure to refund the Wyndham Portion of a Proposed Refund Amount
or (y) in the case of Berger, the failure of Berger to pay to Wyndham the
Berger Portion of the Proposed Refund Amount. Terms used in this paragraph 3
and not otherwise defined in this Agreement shall have the meanings assigned to
them in the Management Agreement.
4. Rights and Remedies of Guarantors. Wyndham, Berger and Ogden
agree that, with respect to the Partnership and the Partners, payments pursuant
to the Bank Guaranties and the Other Guaranties shall be treated as provided in
Section 2.4(c) of the Partnership Agreement and the treatment therein provided,
together with the rights under this Agreement, shall be in lieu of any other
right or remedy that the party making the payment would otherwise have with
respect to the Partnership or the Partners.
5. Binding Effect. This Agreement shall be binding upon, and
inure to the benefit of, the parties hereto and their permitted successors and
assigns, and shall also inure to the benefit of the Partners. Nothing in this
Agreement is intended to benefit any other person or entity, including any
creditor.
6. Notices. All notices and demands to be given hereunder shall
be in writing and may be given by depositing the same in the United Sates mail
addressed to the party to be notified, postpaid and registered or certified
with return receipt requested, or by delivering the same in person to such
party. Notice deposited in the mail in accordance with the provisions hereof
shall be deemed to have been given on the fourth day next following the date
postmarked on the envelope containing such notice, or when actually received,
whichever is earlier. Notice given in any other manner shall be effective only
if and when received by the party to be notified. All notices and demands to be
given to the parties hereto shall be sent to or delivered at the addresses set
forth below:
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If to the Partnership: Convention Center Boulevard Hotel, Limited
Suite 3200
2001 Ross Avenue
Dallas, Texas 75201
Attention: Susan Oelsen
If to Wyndham: Wyndham Hotel Company Ltd.
Suite 2300
2001 Bryan Street
Dallas, Texas 75201
Attention: Carla S. Moreland, Esq.
with a copy to: Locke Purnell Rain Harrell
2200 Ross Avenue, Suite 2200
Dallas, Texas 75201-6776
Attention: M. Charles Jennings, Esq.
If to Berger: Mr. Darryl D. Berger
100 Conti Street
New Orleans, Louisiana 70130
If to Ogden: Mr. Roger H. Ogden
460 Broadway
New Orleans, Louisiana 70118
with a copy to: Stone, Pigman, Walther, Wittmann &
Hutchinson, L.L.P.
546 Carondelet
New Orleans, Louisiana 70130
Attention: Kay W. Eagan, Esq.
By giving the other parties at least five (5) days written notice
thereof, each party hereto shall have the right to change its address and
specify as its new address for the purposes hereof any other address.
7. Unenforceable Provisions. In the event any provision of this
Agreement is declared or adjudged to be unenforceable or unlawful by any court
or governmental authority, then such unenforceable or unlawful provision shall
be excised herefrom, and the remainder of this Agreement, together with all
rights and remedies granted thereby, shall continue and remain in full force
and effect.
8. Entire Agreement. This Agreement constitutes the entire
agreement between the parties hereto with respect to the matters covered
hereby.
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9. Governing Law. This Agreement shall be governed by and
construed under the laws of the State of Louisiana and, to the extent
applicable, the laws of the United States of America.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first set forth above.
PARTNERSHIP: CONVENTION CENTER BOULEVARD HOTEL,
LIMITED, A LOUISIANA PARTNERSHIP IN
COMMENDAM
By: Convention Center Boulevard Hotel,
Inc., a Louisiana corporation,
General Partner
By: /s/ [ILLEGIBLE]
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Name:
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Title:
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WYNDHAM: WYNDHAM HOTEL COMPANY LTD.,
a Texas limited partnership
By: Wyndham Hotel Management Corporation, a
Texas corporation, General Partner
By: /s/ MICHAEL SILVERMAN
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Name: Michael Silverman
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Title: Vice President
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BERGER: /s/ DARRYL D. BERGER
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Darryl D. Berger
OGDEN: /s/ ROGER H. OGDEN
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Roger H. Ogden
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