EXHIBIT 10.h
DEBT SERVICE
GUARANTY
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THIS GUARANTY, made as of the 10th day of February, 1988, by MARRIOTT
CORPORATION, a corporation organized under the laws of the State of Delaware,
having an office at 00000 Xxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000 (the
"Guarantor"), to CITIBANK, N.A., a national banking association organized under
the laws of the United States of America, and THE FIRST NATIONAL BANK OF
CHICAGO, a national banking association organized under the laws of the United
States of America (each banking institution being herein referred to as an
"Original Lender" and collectively, the "Original Lenders").
W I T N E S S E T H:
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WHEREAS, COURTYARD BY MARRIOTT LIMITED PARTNERSHIP, a limited
partnership organized under the laws of the State of Delaware (the "Borrower"),
and the Original Lenders have entered into a Loan Agreement of even date
herewith providing for the Original Lenders to make a loan the principal amount
of $8,273,990.00 evidenced by two promissory notes of even date herewith in said
aggregate amount (collectively, the "Notes") for the purpose of financing a
portion of the cost of the purchase of that certain Courtyard by Marriott hotel
located in Windsor, Connecticut, as more specifically described in the Loan
Agreement, and for other purposes set forth in the Loan Agreement;
WHEREAS, the Guarantor indirectly owns CBM One Corporation, a Delaware
corporation, which is the general partner of the Borrower, and Guarantor desires
that the Original Lenders make the Loan, the Guarantor expecting to derive
benefits, directly or indirectly, from the proceeds of the Loan;
NOW, THEREFORE, in consideration of the foregoing, and for other good
and valuable consideration the receipt of which is hereby acknowledged, the
Guarantor does hereby represent, covenant, warrant and agree with the Lenders as
follows:
1. The Guarantor acknowledges that it is fully familiar with the
Loan Agreement, the Notes and all other Loan Documents (as defined in the Loan
Agreement).
2. Capitalized terms used herein without definition which are
defined in the Loan Agreement shall have the same meaning when used herein as is
given to such terms in the Loan Agreement.
3. The Guarantor does hereby irrevocably and unconditionally
guarantee, to the extent in Paragraph 4 hereof set forth, the punctual payment
of the full amount, when due (whether by acceleration or otherwise) of the
principal of the Notes and all interest accruing on the Notes, whether now or
hereafter existing, due or to become due ("Payment Obligations"); and in
furtherance of the Payment Obligations agrees that upon any default by the
Borrower in the payment when due, whether by acceleration or otherwise, of all
or any installment of principal of, or interest on the Notes, the Guarantor will
pay the same immediately upon demand therefor.
4. (a) The Guarantor may satisfy the Payment Obligations by
making payment directly to the Lenders or by making, or causing the General
Partner to make, after demand is made upon the Guarantor pursuant to Paragraph 3
hereof, additional contributions to the capital of, or loans or advances to, the
Borrower, if (i) any such payment, capital contribution, loan or advance
(individually, a "Guaranty Payment" and collectively, "Guaranty Payments")
thereafter may be repaid or withdrawn only out of Cash Flow Available for the
Loan to the extent permitted in Section 7.l of the Loan Agreement; (ii) any such
Guaranty Payment shall be subordinated to repayment of the Loan in accordance
with the provisions of Section 4.2(e) or Section 7.2(d) of the Loan Agreement;
and (iii) such Guaranty Payment shall be made after demand is made upon
Guarantor pursuant to Paragraph 3 hereof in respect of such Payment Obligations,
and the proceeds thereof were intended, and in fact were used, to satisfy such
Payment Obligations (as distinguished from funds contributed, loaned or advanced
to meet other obligations of the Borrower or obligations under the Management
Guaranty). The Guarantor shall be given credit against the maximum amount it may
be called upon to pay in respect of the Payment Obligations if Cash Flow
Available for the Loan for any Accounting Quarter is insufficient to enable
payment of any amounts subject to the Payment Obligations then due, and such
Payment Obligations are nevertheless paid to the Original Lenders as, or out of
the proceeds of, a Guaranty Payment referred to in the preceding sentence, to
the extent of such Guaranty Payment.
(b) Notwithstanding anything to the contrary herein
contained, the Guarantor shall not be given credit against the maximum amount of
the Payment Obligations unless, within thirty (30) days after any payment for
which the Guarantor claims credit against the Payment Obligations, the Guarantor
shall have furnished to each of the Original Lenders (i) a certificate of the
chief accounting officer of the Guarantor stating the amount of the credit
claimed by the Guarantor, the facts supporting such claim (making reference to
the specific provisions of this Guaranty pursuant to which credit is claimed)
and the then maximum amount which the Guarantor may be called upon to pay in
respect of the Payment Obligations after giving effect to such credit so
claimed, and (ii) an opinion of Guarantor's counsel (which may be in-house
counsel) to the effect that such credit may properly be claimed. The failure by
the Lenders to object to such certificate or
statement shall not operate as a waiver of any of the rights and remedies of the
Lenders pursuant hereto or the other Loan Documents.
(c) The maximum aggregate amount which the Guarantor may be
called upon to pay from time to time in respect of the Payment Obligations, so
long as the Payment Obligations shall continue in effect, shall be limited to
(i) SEVEN HUNDRED SIX THOUSAND AND NO ONE-HUNDREDTHS DOLLARS ($706,000.00), plus
(ii) any distributions of Cash Flow Available for the Loan which are made other
than as permitted by Section 7.1 of the Loan Agreement, less (iii) the amount,
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if any, by which the sum of all Guaranty Payments for which Guarantor is given
credit under Paragraphs 4(a) and 4(b) hereof exceeds the sum of all repayments
thereof made by Borrower to the Guarantor or the General Partner (as the case
may be) or deemed to be made pursuant to the next succeeding sentence. Guaranty
Payments shall be deemed to have been repaid as of the last day of each
Accounting Quarter (without regard to whether such amounts are actually repaid)
in the amount by which Cash Flow Available for the Loan for such Accounting
Quarter, after payment of Priorities First through Fourth as defined in Section
7.1 of the Loan Agreement exceeds the sum of (A) an amount equal to the
Incentive Management Fee determined with respect to such Accounting Quarter
(whether or not actually paid or payable), plus (B) interest (at a rate not in
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excess of the Base Rate) payable by the Borrower on the Guaranty Payments.
5. The obligations of the Guarantor under this Guaranty shall
terminate and be of no further force or effect in the event and from and after a
date not earlier than August 15, 1991, upon which each of the following
conditions shall have been fully satisfied: (a) no Event of Default shall have
occurred and shall be continuing under any of the Loan Documents (including this
Guaranty); (b) the Borrower shall have fully performed, to the extent
performance of the same is required at that time, all its obligations under the
Loan Agreement; (c) Loan Debt Service Coverage shall have exceeded l.3 for each
of the eight (8) Current Accounting Quarters; and (d) the Lenders shall have
received a certificate from the chief accounting officer of the Guarantor, to
the effect that all of the above conditions have been satisfied, stating the
date as of which each such condition was so satisfied, or if such condition must
be satisfied on the date of such certificate, then so stating, which certificate
shall contain sufficient detail as to the determination of the satisfaction of
such conditions as the Lenders may require. The termination of further
responsibility for the Payment Obligations Pursuant to the Provisions of this
Paragraph 5 shall not affect or impair any of the Payment Obligations which
arose under Paragraph 3 prior to the date such termination became effective.
6. This Guaranty is an absolute, unconditional, present and
continuing guaranty of payment and performance and not of collection. No
setoff, counterclaim, reduction or
diminution of an obligation, or any defense of any kind or nature (other than
(a) performance by the Guarantor of its obligations hereunder or (b) performance
by the Borrower of the obligations guaranteed hereunder) which the Guarantor has
or may have with respect to a claim under this Guaranty, shall be available
hereunder to the Guarantor against the Lenders. Each and every default in any
payment of the Payment Obligations shall give rise to a separate cause of action
hereunder, and separate suits may be brought hereunder against the Guarantor as
each cause of action arises.
7. All payments by the Guarantor under or by virtue of this
Guaranty shall be made in lawful money of the United States of America and in
immediately available funds, to the Original Lenders, at their offices specified
in the Loan Agreement, or at such other place as the Original Lenders may
hereafter designate in writing.
8. Except as expressly provided herein to the contrary, the
Guarantor does hereby waive notice of acceptance of this Guaranty, notice of any
liability to which it may apply, notice and proof of reliance by the Lenders
upon this Guaranty, presentment and demand for payment, notice of dishonor,
protest and notice of protest or compliance with the terms and provisions of any
of the Loan Documents, or of non-performance or non-observance thereof.
9. The Guarantor hereby waives any and all legal requirements that
the Lenders shall institute any action or proceeding at law or in equity against
the Borrower, or anyone else, with respect to the Loan Documents, or with
respect to any other security held by the Lenders, as a condition precedent to
bringing any action against the Guarantor upon this Guaranty. All remedies
afforded to the Lenders by reason of this Guaranty are separate and cumulative
remedies, no one of such remedies, whether or not exercised by the Lenders,
shall be deemed to exclude the exercise of any other remedy or remedies
available to the Lenders, and the exercise or non-exercise thereof shall in no
way limit or prejudice any other legal or equitable remedies which the Lenders
may have. The Lenders shall not be required to resort to any collateral through
foreclosure or otherwise, prior to the commencement of any action against the
Guarantor or against the Borrower on or in respect of any of the Payment
Obligations. The Guarantor agrees that the Lenders shall not in any foreclosure
proceeding under the Mortgage be required to seek or obtain a deficiency
judgment against the Borrower and that the obligations of the Guarantor shall in
no way be diminished or otherwise affected by the failure to seek or obtain a
deficiency judgment; and waives the right to claim any credit for the fair
market value of the property foreclosed or for a deficiency judgment.
10. So far as the Guarantor is concerned, the Lenders may, at any
time and from time to time with the consent of the Borrower if and to the extent
required under the Loan Documents, but without the consent of, or notice to, the
Guarantor, and without impairing or releasing any of the obligations of the
Guarantor hereunder, upon or without any terms or conditions and in whole or in
part:
(a) change the manner, place or terms of, and/or change or
extend the time of payment of, or modify, renew or alter, any of the Payment
Obligations, any security therefor, or any liability incurred directly or
indirectly in respect thereof, or any of the Loan Documents, and this Guaranty
shall apply to the Payment Obligations and such security, liability and Loan
Documents as so changed, extended, modified, renewed or altered, and each
reference in this Guaranty to any or all the Payment Obligations, security,
liability or Loan Documents shall include, such change, extension, modification,
renewal or alteration;
(b) sell, exchange, release (whether pursuant to Section 9.3
of the Loan Agreement or otherwise), surrender, realize upon or otherwise deal
with, in any manner and in any order, any property by whomsoever at any time
pledged or mortgaged to secure, or howsoever securing, the Payment Obligations,
or any liabilities (including any of these hereunder) incurred directly or
indirectly in respect thereof or hereof, and/or offset there against, or
substitute or replace or surrender any of such property.
(c) exercise or refrain from exercising any rights against
the Guarantor or others or otherwise act or refrain from acting; and when making
any demand hereunder against the Guarantor, the Lenders may, but shall be under
no obligation to, make a similar demand on any other person directly or
indirectly liable in respect of the Payment Obligations, and any failure by the
Lenders to make any such demand or to collect any payments from any other person
or any release of any other such person, shall not relieve the Guarantor of its
obligations or liabilities hereunder, and shall not release, impair or affect
the rights and remedies, express or implied, or as a matter of law, of the
Lenders against the Guarantor (for the purposes of this subparagraph, "demand"
shall include the commencement and continuance of any legal proceedings);
(d) settle or compromise any of the Payment Obligations, any
security therefor or any liability incurred directly or indirectly in respect
thereof or hereof, or subordinate the payment of all or any part thereof to the
payment of any liability (whether due or not) of the obligor thereon to
creditors of such obligor other than the Lenders;
(e) apply any sums by whomsoever paid or howsoever realized
to whatever obligations of the Borrower in respect of the Loan or the Loan
Documents as are then
outstanding, as the Lenders may deem appropriate, regardless of what obligation
or obligations of the Guarantor then remain unsatisfied, the order and method of
such application to be in the Lenders' discretion, and should the same sums be
insufficient to fully pay the liabilities and obligations of the Guarantor
hereunder, the Guarantor acknowledges that it shall remain liable for any
deficiency; and
(f) amend or otherwise modify, consent to or waive any breach
of, or any act, omission or default under, the Loan Documents or any of them.
11. No failure or any claimed failure to make any advance to
Borrower or to extend, modify or vary the obligations of the Guarantor, nor any
invalidity, irregularity or unenforceability of all or any part of the Payment
Obligations or of any security therefor or of any of the Loan Documents
(including, without limitation, by reason of any insolvency or bankruptcy of the
Borrower or other primary obligor or any disaffirmance of any such obligation by
or on behalf of the Borrower or other primary obligor), nor any delay on the
part of the Lenders in exercising any of their rights, powers or options
hereunder or under any of the Loan Documents or a partial or single exercise
thereof, shall affect, impair or be a defense to this Guaranty, and this
Guaranty shall be construed as a continuing, absolute and unconditional guaranty
of payment and performance without regard to the validity, regularity or
enforceability of the Payment Obligations, or of any of the Loan Documents or
any other instrument, document or rights of offset with respect thereto at any
time or from time to time held by the Lenders and without regard to any defense,
offset or counterclaim which may at any time be available to or be asserted by
any primary obligor or any other person against the Lenders and which
constitutes, or might be construed to constitute, an equitable or legal
discharge of the primary obligor or any other person for the Payment
Obligations, or any part thereof, whether in bankruptcy proceedings or under any
other circumstances.
12. The Guarantor covenants and agrees that so long as this
Guaranty shall remain in full force and effect, the Guarantor will furnish to
each of the Original Lenders (i) as soon as practicable and in any event within
sixty (60) days after the close of each quarter of each fiscal year of the
Guarantor and its subsidiaries, as at the end of and for the period commencing
at the end of the previous fiscal year and ending with such quarter, an
unaudited consolidated balance sheet of the Guarantor and its subsidiaries,
together with unaudited consolidated statements of income and retained earnings
of the Guarantor and its subsidiaries, all in reasonable detail and certified by
the chief accounting officer of the Guarantor but subject to year-end audit and
adjustments; (ii) as soon as practicable and in any event within one hundred
twenty (120) days after the close of each fiscal year of the Guarantor and its
subsidiaries as at the end and for the fiscal year just closed, a consolidated
balance sheet of the Guarantor and its subsidiaries and a consolidated statement
of
income and retained earnings of the Guarantor and its subsidiaries for such
fiscal year, all in reasonable detail and certified by Xxxxxx Xxxxxxxx & Co. or
other independent certified public accountants of recognized standing selected
by the Guarantor and satisfactory to the Lenders; (iii) as soon as practicable
and in any event within fifty (50) days after the end of each Accounting Quarter
a statement of the maximum aggregate amount that the Guarantor may be called
upon to pay in respect of the Payment Obligations under paragraph 4 of this
Guaranty, as at the end of the Accounting Quarter just closed, in reasonable
detail and certified by the chief accounting officer of the Guarantor; (iv) with
reasonable promptness, copies of all regular and periodical financial and/or
other reports which the Guarantor and its subsidiaries may make available to
stockholders and bondholders; and (v) with reasonable promptness, such other
information respecting the business, operation and/or financial condition of the
Guarantor and its subsidiaries, as the Lenders may, from time to time,
reasonably request.
13. (a) An "Event of Default" shall exist if any of the following
shall have occurred:
(i) The Guarantor defaults in the payment of the
Payment Obligations as and when the same shall become due and payable;
(ii) The Guarantor defaults in the payment, observation
or performance of any covenant, condition or agreement set forth herein (other
than the Payment Obligations), and such failure continues for more than thirty
(30) days after written notice of such default has been given to the Guarantor
by the Lenders;
(iii) Any default (unless duly waived in writing by the
obligee) shall occur with respect to any evidence of Indebtedness of the
Guarantor or under any agreement under which any evidence of Indebtedness may be
issued by the Guarantor, and such default shall continue for more than the
period of grace, if any, specified therein, if the result of such default is the
acceleration of the maturity of any such Indebtedness exceeding $20,000,000.00,
or if any such Indebtedness exceeding $20,000,000.00 shall not be paid when due;
(iv) The Guarantor shall suspend or discontinue its
business, shall call a meeting of its creditors for the purpose of postponing or
adjusting its liabilities or seeking an arrangement with its creditors, shall
make an assignment for the benefit of creditors or a composition with creditors,
shall be unable, or admit in writing its inability, to pay its debts as they
mature, shall file a petition in bankruptcy, shall become insolvent (howsoever
such insolvency may be evidenced), shall suffer an order for relief to be
entered against it under any bankruptcy law, shall petition or apply to any
tribunal for the appointment of any receiver, custodian, liquidator or trustee
of or for it or any substantial part of its property or other assets or shall
commence any proceeding relating to it under any bankruptcy, reorganization,
arrangement, readjustment of debt, receivership, dissolution or liquidation law
or statute of any jurisdiction, whether now or hereafter in effect; or there
shall be commenced against the Guarantor any such proceeding which shall remain
undismissed for a period of thirty (30) days or more, or the Guarantor shall by
any act or failure to act indicate its consent to, approval of or acquiescence
in, any such proceeding or in the appointment of any receiver, custodian,
liquidator or trustee of or for it or any substantial part of its property or
other assets, or shall suffer any such appointment to continue undischarged or
unstayed for a period of thirty (30) days or more; or the Guarantor shall take
any action for the purpose of effecting any of the foregoing;
(v) Any order, judgment or decree shall be entered in
any proceeding against the Guarantor decreeing the dissolution or split-up of
the Guarantor or the divestiture of any asset of the Guarantor, and such order,
judgment or decree shall remain undischarged or unstayed for a period in excess
of sixty (60) days, provided, however, that the split-up or divestiture of the
assets of Guarantor shall not constitute an Event of Default if, following such
occurrence, Guarantor continues to own and operate substantially all of its
hotel business in substantially the same manner as prior to such occurrence; or
(vi) Any warranty, representation or other statement by
or on behalf of the Guarantor contained in this Guaranty or any other writing
delivered in connection herewith or in connection with any other Loan Document
shall prove to be false or misleading, or is breached, in any material respect.
(b) The Guarantor may cure any Event of Default hereunder if,
immediately upon demand therefor by the Lenders, the Guarantor shall deposit
with the Lenders (i) a sum of money equal to the then maximum aggregate amount
that the Guarantor may be called upon to pay in respect of the Payment
Obligations under Paragraph 4 hereof, which sum shall be paid to the Lenders in
payment of the obligations of the Guarantor from time to time hereunder; (ii)
all notes or other evidences of indebtedness evidencing obligations of the
Borrower to repay any Guaranty Payment and all security or collateral therefor;
and (iii) pledges and assignments to the Original Lenders of the notes,
evidences of indebtedness, and security and collateral referred to in clause
(ii) above, satisfactory in form and substance to the Original Lenders. Such
deposit shall cure such Event of Default but shall not otherwise relieve
Guarantor of its obligations hereunder, except to the extent of cash so
deposited.
(c) The Guarantor acknowledges that an Event of Default under
this Guaranty shall constitute an Event of Default under the Loan Agreement with
the effect as in the Loan Agreement provided.
14. The Guarantor makes the following representations and
warranties, which shall survive the execution and delivery of this Guaranty:
(a) The Guarantor has examined the Loan Documents, including
the Exhibits attached thereto, and all of the representations and warranties set
forth in the Loan Documents, to the extent the same relate to the Guarantor, are
true and correct.
(b) The Guarantor has all necessary power and authority to
execute, deliver and carry out the terms and provisions of this Guaranty, the
Management Guaranty, the Purchase Agreement Assignment, and the Subordination
Agreement executed by the Guarantor (as all of such capitalized terms are
defined in the Loan Agreement, and, together with this Guaranty, are hereafter
called the "Marriott Documents"); the Guarantor has taken all necessary
corporate and other action (including, without limitation, obtaining any consent
of stockholders required by law or by its Certificate of Incorporation or By-
Laws) to authorize the execution and delivery of any of the Marriott Documents.
Each of the Marriott Documents is the valid and binding obligation of the
Guarantor, enforceable in accordance with their respective terms, subject to the
effect of bankruptcy, insolvency, or other similar laws affecting creditors'
rights generally, and the effect of the application by courts having
jurisdiction of equitable principles to the exercise of any equitable remedies
contained therein.
(c) Except for defaults, conflicts and breaches that do not
materially affect Marriott's right, authority and ability to perform its
obligations under the Marriott Documents or do not materially impair the
Lenders' rights, remedies or security under this Guaranty, neither the execution
and delivery of any of the Marriott Documents or the Loan Documents, nor the
consummation of the transactions in this or any of such other instruments
contemplated, nor compliance with the terms and provisions hereof, will
contravene any provision of law, statute, rule or regulation to which the
Guarantor is subject or any judgment, decree, award, franchise, order or permit
applicable to the Guarantor, or will conflict or will be inconsistent with, or
will result in any breach of, any of the terms, covenants or provisions of, or
constitute a default under, or result in the creation or imposition of any Lien
upon any of the properties or assets of the Guarantor pursuant to the terms of,
any indenture, mortgage, deed of trust, agreement or other instrument to which
the Guarantor is a party or by which it may be bound or to which it may be
subject, or violate any provision of the Certificate of Incorporation or By-Laws
of the Guarantor.
(d) No consent or approval of, or exemption by, or
registration or declaration with, any governmental or public body or authority
is required to authorize, or is required in connection with the execution,
delivery and performance by Marriott of any of the Marriott Documents or any of
the instruments or agreements herein or therein referred to, or the taking of
any action hereby or thereby contemplated (except for such consents, approvals
or exemptions as have been obtained by the Guarantor).
(e) After giving effect to the transactions contemplated by
the Loan Agreement and the making of this Guaranty and the other Marriott
Documents, the Guarantor has complied with and performed all of its covenants
and agreements contained in all applicable provisions of its loan agreements and
there has not occurred any event of default, or any condition, act or event,
which upon the giving of notice or lapse of time or both, would constitute an
event of default, under its loan agreements, except for defaults that do not
materially affect the Guarantor's right, authority and ability to perform its
obligations under the Marriott Documents or do not materially impair the
Lenders' rights, remedies or security under this Guaranty.
15. (a) This Guaranty may not be waived, modified or amended
except by an agreement in writing signed by the Original Lenders and the
Guarantor. The rights and obligations of the Guarantor and the Lenders pursuant
to this Guaranty shall be governed by and construed in accordance with the laws
of the State of New York.
(b) This Guaranty shall be binding upon and shall inure to
the benefit of, the parties hereto and their respective successors and assigns,
including, without limiting the generality of the foregoing, any assignee of
either of the Notes.
(c) Any action or proceeding in connection with this Guaranty
may be brought in a court of record of the State of New York, or the United
States District Court for the Southern District of New York, the parties hereby
consenting to the jurisdiction thereof, and service of process may be made upon
any party by mailing a copy of the summons and complaint to such party, by
registered or certified mail, at its address to be used for the giving of
notices under this Guaranty. In any action or proceeding relating to this
Guaranty, the parties mutually waive trial by jury.
(d) The Guarantor also agrees to pay all costs and expenses,
including attorneys' fees, incurred by any Lender if any action or proceeding be
commenced to enforce any of the obligations of Guarantor hereunder, and such
sums shall not be included within the limitations on the amount of liabilities
and obligations of the Guarantor hereunder provided for in Paragraph 4 hereof.
16. If this Guaranty would be held or determined to be void,
invalid or unenforceable by reason of the amount of the Guarantor's liability
under this Guaranty, then, notwithstanding any other provision of this Guaranty
to the contrary, the maximum amount of the liability of the Guarantor under this
Guaranty shall, without any further action by the Guarantor, the Lenders or any
other person, be automatically limited and reduced to an amount which is valid
and enforceable.
17. In the event that the Guarantor shall advance or become
obligated to pay any sums hereunder, or in the event that for any reason
Borrower or any subsequent owner of the Hotel is now or shall hereafter become
indebted to the Guarantor, the right and claim of the Guarantor with respect to
each and every such sum and indebtedness (excluding, however, Guarantor's right
to any payments to be made by the Borrower under the Purchase Agreement as
payment of the purchase price of the Hotel) shall at all times be subordinate as
to lien, time of payment and in all other respects, to the amounts owing to the
Lenders under the Loan Documents; and the Guarantor shall not be entitled to
enforce or receive any payment on account thereof until all moneys owing to the
Lenders under, or in respect of, the Loan Documents have been paid to the
Lenders in full, except in the event and to the extent permitted by the
Subordination Agreement referred to in Section 4.2(e) of the Loan Agreement; and
the Guarantor agrees that any sums it may receive on account of the claims so
subordinated shall be received by the Guarantor as trustee for the Lenders and
shall, immediately upon receipt, be remitted by the Guarantor to the Lenders for
application against the indebtedness and other obligations guaranteed hereunder.
Nothing herein contained is intended or shall be construed to give to the
Guarantor any right of subrogation in or under the Loan Documents or any right
to participate in any way therein, or in the right, title or interest of the
Lenders in the Hotel or any part thereof, notwithstanding any payments made
under this Guaranty; and all rights of subrogation and participation are hereby
expressly waived and released by the Guarantor, unless and until the Loan and
all other obligations of Borrower under the Loan Documents shall be paid in
full.
18. If claim is ever made upon the Lenders for repayment or
recovery of any amount or amounts received by it or them in payment or on
account of any of the Payment Obligations and the Lenders repay all or part of
such amount by reason of (a) any judgment, decree or order of any court or
administrative body having jurisdiction or (b) any settlement or compromise of
any such claim effected by the Lenders with any such claimant (including the
Borrower or the Guarantor), then in such event the Guarantor agrees that any
such judgment, decree, order, settlement or compromise shall be binding upon the
Guarantor, notwithstanding the cancellation of any bond, note or other
instrument evidencing any of the Payment Obligations and the Guarantor
shall be and remain liable hereunder to the same extent as if such amount had
never originally been received by the Lenders.
19. All notices, demands or requests provided for or permitted to
be given pursuant to this Guaranty shall be deemed to have been properly given
or served by personal delivery or by depositing in the United States Mail, post-
paid and registered or certified, return receipt requested, and addressed to the
addresses set forth below. All notices, demands and requests shall be effective
upon being personally delivered or deposited in the United States Mail. However,
the time period in which a response to any notice, demand or request must be
given, if any, shall commence to run from the date of personal delivery or the
date of receipt of the notice, demand or request, by the addressee thereof as
disclosed by the return receipt. Rejection or other refusal to accept or the
inability to deliver because of changed address of which no notice was given
shall be deemed to be receipt of the notice, demand or request sent. No other
method of giving notice is hereby precluded. By giving at least thirty (30)
days' written notice thereof, Guarantor or Lenders shall have the right from
time to time and at any time during the term of this Guaranty to change their
respective addresses, and each shall have the right to specify as its address
any other address within the United States of America. For the purposes of this
Guaranty, the addresses of the parties are as follows:
Guarantor: Marriott Corporation
00000 Xxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 000000
Attn.: Law Department
Associate General
Counsel - Corporate
Affairs
Lenders: CITIBANK, N.A.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn.: Xxxxxxxx Xxxxxxx
The First National
Bank of Chicago
0000 X Xxxxxx, X.X.
Xxxxx 000
Xxxxxxxxxx, X.X. 00000
Attn.: Xxxxxx X. Xxxxxxxx
20. This Guaranty may be executed in several counterparts, each of
which shall be an original and all of which shall constitute one and the same
instrument.
21. Time is hereby declared to be of the essence of this Guaranty
and any part hereof.
IN WITNESS WHEREOF, the Guarantor has duly executed this Guaranty the
day and Year first above written.
MARRIOTT CORPORATION
By
--------------------------------
Vice President
ATTEST:
-------------------
Assistant Secretary
(Corporate seal)
