EXHIBIT 10.9
FORM OF
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GUARANTY OF LEASE
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THIS GUARANTY, dated as of __________________ __, 1998, by and among
XXXXXX HOTELS TRUST, a Maryland real estate investment trust (the "REIT") and
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XXXXXX HOTELS CORPORATION (the "Guarantor"), and XXXXXX HOTELS LIMITED
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PARTNERSHIP, L.P., a Virginia limited partnership (the "Lessor"), recites and
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provides.
RECITALS
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Simultaneously with the execution hereof, the Lessor and HHC
Management Corp., a New York corporation, and wholly-owned subsidiary of
Guarantor (the "Lessee"), have executed the Lease Agreements of even date
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herewith listed on the attached Schedule A, and, together with any future leases
that may be entered into between the Lessor or its Affiliates (as herein
defined), as lessor, and the Lessee or other Affiliates (as herein defined) of
the Guarantor, as lessee, (collectively the "Leases", and individually, a
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"Lease") for the lease of parcels of land, together with all appurtenances
thereto, improvements thereon and intangible and tangible personal property
related thereto as described in each Lease (the "Leased Premises").
As a condition to executing the Leases, as well as any future leases
which may be entered into between the Lessor or its Affiliates(as defined
herein), as lessor, and the Lessee or other Affiliates (as herein defined) of
the Guarantor, as lessee, the Lessor has required the Guarantor to guarantee the
prompt and full payment of rent and all other amounts payable to the Lessor
under each Lease, and the prompt and complete performance of all covenants
contained in each Lease on the Lessee's part to be performed. Because of the
substantial economic benefits accruing to the Guarantor by virtue of the Lessor
leasing the Leased Premises to the Lessee, the Guarantor desires to guarantee
such payment and performance, all on the following terms and conditions.
GUARANTY
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NOW, THEREFORE, for and in consideration of the premises and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Guarantor hereby represents, warrants and agrees as follows,
intending to be legally bound:
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ARTICLE I
REPRESENTATION
AND WARRANTIES OF THE GUARANTOR
The Guarantor makes the following representations and warranties, upon
each of which the Lessor, its successors and assigns are entitled to rely and
have relied, and the Guarantor will endeavor in good faith to cause such
representations and warranties to remain true and correct at all times during
the term of this Guaranty as if then made.
Section 1.1. No Conflicts; Defaults. The execution and delivery of
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this Guaranty and the performance by the Guarantor of its obligations hereunder
and the consummation of the transactions contemplated herein are within the
corporate powers of the Guarantor and will not conflict with or constitute a
breach of the Guarantor's articles of incorporation or by-laws. Except for
consents and approvals obtained by the Guarantor, true, correct and complete
copies of which have been delivered by the Guarantor to the Lessor prior to the
execution and delivery of this Guaranty, neither the execution, acknowledgment
and delivery of, nor the performance of its obligations under, this Guaranty,
will conflict with or violate, or constitute a default or require any consent or
waiver under, any material provision of any mortgage, deed of trust, evidence of
indebtedness, order, decree or agreement to which the Guarantor is a party or by
which the Guarantor or any substantial part of the property of the Guarantor is
bound.
Section 1.2. Authorization; Enforceability. This Guaranty has been
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duly authorized by all necessary corporate action on behalf of the Guarantor and
has been duly executed and delivered by Guarantor and is a legal, valid and
binding instrument enforceable against the Guarantor in accordance with its
terms, as the same may be limited by applicable bankruptcy, insolvency,
reorganization and similar laws of general application relating to or affecting
creditors' rights generally and general remedies of equity.
Section 1.3. Representations and Warranties. The Guarantor has made
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its own independent investigation of the financial condition and affairs of the
Lessee and has reviewed the Leases, including the rent terms thereof, prior to
entering into this Guaranty and will continue to make its appraisal of the
creditworthiness of the Lessee, and in entering into this Guaranty the Guarantor
has not relied upon any representation of the Lessor as to the financial
condition, operation or creditworthiness of the Lessee or with respect to any
other matter. The Guarantor agrees that the Lessor shall have no duty or
responsibility now or hereafter to make any investigation or appraisal of the
Lessee on behalf of the Guarantor or to provide the Guarantor with any credit or
other information which may come to the Lessor's attention.
Section 1.4. Litigation; Violations of Law. Except as disclosed in
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the Guarantor's Annual Report on Form 10-KSB for the year ended December 31,
1997, filed with the Securities and Exchange Commission, there are no actions,
suits or proceedings of a material nature pending or overtly threatened against
or affecting the Guarantor, and no event has occurred
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(including, without limitation, the execution, acknowledgment and delivery of
this Guaranty and the consummation of the transactions contemplated hereby)
which will violate, be in conflict with, result in the breach of or constitute
(with or without notice or the passage of time, or both) a default under any
judicial decision, statute, ruling, direction, rule, regulation, permit,
certificate or ordinance of any governmental authority in any way applicable to
the Guarantor. The Guarantor is not in default with respect to any judgment,
order, writ, injunction, decree or demand of any court, arbitrator,
administrative agency or other governmental or quasi-governmental authority.
Section 1.5. Information. All information either (i) filed by
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Guarantor with the Securities and Exchange Commission or (ii) provided by
Guarantor to Lessor, is true and complete in all respects and fully and
accurately presents the financial condition of the Guarantor as of the dates
thereof; such information does not omit any statement of material fact that
would make such information misleading; and no material adverse change has
occurred in the financial condition reflected therein or the Guarantor's
business since the dates thereof.
Section 1.6. Insolvency Matters. No bankruptcy, reorganization,
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arrangement, readjustment of debt, insolvency or other proceeding has been
commenced or threatened by or against the Guarantor or consented to or
acquiesced in by the Guarantor, and no judgment has been entered against the
Guarantor which has not been satisfied or otherwise discharged.
Section 1.7. Organization. The Guarantor is a corporation duly
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organized, validly existing and in good standing subsisting under the laws of
the state of New York and qualified to do business and is in good standing as a
foreign corporation in each jurisdiction in which the ownership of its assets or
the conduct of its business requires such qualification and has the power to
enter into this Guaranty and to perform its obligations hereunder and by proper
corporate action has duly authorized the execution and delivery of this Guaranty
and the performance of its obligations hereunder.
Section 1.8. Taxes. All material tax returns and reports required by
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law to be filed by the Guarantor have been duly filed, and no taxes,
assessments, contributions, fees or other governmental charges upon it or any of
its assets or income which are due and payable thereon are delinquent, except to
the extent such taxes, assessments, contributions, fees or charges are being
contested in good faith and by proper proceedings and against which appropriate
reserves are being maintained.
Section 1.9. Cross Default. The Guarantor acknowledges and agrees
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that the Lease is cross defaulted with other leases guaranteed by the Guarantor.
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ARTICLE II
COVENANTS OF THE GUARANTOR
Section 2.1. Definitions.
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(a) The term "Indebtedness" shall include all amounts due and to
become due from the Lessee to the Lessor under the Leases, whether such amounts
are direct or indirect, fixed or contingent, or liquidated or unliquidated
obligations of the Lessee including, without limitation, base rent, percentage
rent, additional charges, indemnification payments, damages, interest, service,
finance and other charges, the Lessor's fees, impositions required to be paid by
the Lessee, and other sums, charges, costs of collection, attorneys' fees and
expenses, other expenses of the Lessor due it under the Leases and amounts
advanced by the Lessor to discharge obligations of the Lessee, whether such
amounts are from time to time reduced, thereafter increased or entirely
extinguished and thereafter reincurred.
(b) The term "Obligations" shall mean all obligations, agreements,
covenants, conditions and liabilities of the Lessee set forth in each Lease.
(c) The term "Lessee", as used herein, shall mean any successor in
interest, assignee, or transferee of Lessee's interest under each Lease and any
Affiliate (as herein defined) of the Guarantor which is a lessee under any lease
with the lessor or any Affiliate (as herein defined) of the Lessor.
(d) The term "Lessor", as used herein shall include any Affiliate (as
herein defined) of the Lessor.
Section 2.2. Guaranty of Payment and Performance. The Guarantor hereby
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unconditionally and absolutely guarantees to the Lessor the prompt and full
payment of all Indebtedness and the prompt and complete performance of all
Obligations of the Lessee to the Lessor, under and in accordance with the terms
and conditions hereof.
Section 2.3. Nature of Guaranty. This is a guaranty of payment and not
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merely of collection.
Section 2.4. Enforcement of Guaranty in First Instance. The Lessor may
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collect the Indebtedness, or any part thereof, from the Guarantor without first
exercising its rights against the Lessee, any other guarantor or any collateral
that the Lessor may hold or have access to, and the Guarantor hereby waives any
right to require the Lessor to attempt, by bringing any action or proceeding
against Lessee or otherwise, to collect the Indebtedness or any part thereof
from the Lessee or any other guarantor or to attempt to realize upon any
collateral that the Lessor may hold or have access to before enforcing the
obligations of the Guarantor hereunder.
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Section 2.5. Lessor's Election to Perform Obligations. After a default by
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the Lessee in the performance of one or more of the Obligations and the
expiration of any notice and cure period expressly provided for in the Leases,
the Lessor, at its option, may elect to perform or cause to be performed any or
all of the Obligations without first exercising its rights against the Lessee,
any other guarantor or any collateral that the Lessor may hold or have access
to, and the Guarantor hereby waives any right to require the Lessor to attempt,
by bringing any action or proceeding against Lessee or otherwise, to collect the
Indebtedness or any part thereof from the Lessee or any other guarantor or to
attempt to realize upon any collateral that the Lessor may hold or have access
to before performing or causing the performance of any of the Obligations or
enforcing the obligations of the Guarantor hereunder.
Section 2.6. No Subrogation or Contribution. Until all of the Indebtedness
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has been paid in full and all of the Obligations have been duly and punctually
performed to the satisfaction of the Lessor, the Guarantor shall not be
subrogated to any right of the Lessor against the Lessee, any other guarantor or
any collateral, and any moneys, property or other consideration received, after
a default by the Lessee under the Lease s, by the Guarantor from the Lessee
prior to payment in full of the Indebtedness and prior to the performance by the
Lessee of all of the Obligations shall be held in trust for the Lessor and shall
be paid or transferred to the Lessor upon demand therefor. The Guarantor agrees
that it will not assert any right of contribution against any other guarantor of
the Indebtedness, whether the obligations of such other guarantor are evidenced
by this Guaranty or other agreement, until such time as all of the Indebtedness
has been paid in full to the Lessor and all of the Obligations have been
performed.
Section 2.7. Waiver of Defenses.
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(a) The Guarantor hereby: (i) waives notice of acceptance of this
Guaranty; (ii) waives presentment, demand, notice of dishonor, protest and
notice of protest; (iii) agrees that the Indebtedness or any part thereof may be
renewed, extended, accelerated, modified or compromised and the Obligations may
be modified or delegated and that any collateral or other security held for the
payment of the Indebtedness or the performance of the Obligations may be
released, exchanged, sold, applied or otherwise dealt with by the Lessor without
notice to the Guarantor and without thereby releasing the Guarantor from any
obligation under this Guaranty; (iv) waives notice of the financial condition or
other status of the Lessee and any other party obligated for the payment of the
Indebtedness or the performance of the Obligations; and (v) waives the benefit
of the homestead exemption as to its obligations set forth herein. This
Guaranty is intended to be a full, complete and perfect guaranty and indemnity
to the Lessor to the extent of and for any Indebtedness and Obligations and to
be valid and enforceable without other or further notice to the Guarantor. The
liability of the Guarantor is absolute and unconditional and is not conditioned
or contingent upon any other party signing this Guaranty or the obtaining of any
security upon any of the Indebtedness or the obtaining of the guaranty of any
other party upon any of the Indebtedness, Obligations or any other matter.
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(b) The Guarantor further acknowledges that this Guaranty and the
Guarantor's obligations under this Guaranty are and shall at all times be valid
and enforceable irrespective of (i) any assignment of sublease of any Lease,
(ii) any other agreements or circumstances of any nature whatsoever which might
otherwise constitute a defense (other than a defense of payment) to this
Guaranty and the obligations of the Guarantor under this Guaranty or the
obligations of the Lessee or any other person or party relating to this Guaranty
or the obligations of Guarantor hereunder or otherwise with respect to the
Leases, or (iii) the filing of a petition or the commencement of a case with
respect to the Lessee or the Guarantor under Title 11 of the United States Code,
as now constituted or hereafter amended (the "Bankruptcy Code"), or under any
other applicable Federal or state bankruptcy, insolvency or similar law, or any
modification, impairment, abatement, reduction, release, limitation,
restructure, reinstatement or cure, in whole or in part, of the Obligations
pursuant to an order by a bankruptcy court or other court of competent
jurisdiction in any action, case or proceeding brought under the Bankruptcy Code
or under any other applicable Federal or state bankruptcy, insolvency or similar
law (including, but not limited to any stay imposed pursuant to section 362 of
the Bankruptcy Code), it being expressly acknowledged and agreed by the
Guarantor that if any such modification, impairment, abatement, reduction,
release, limitation, restructure, reinstatement or cure, in whole or part, is so
ordered in any such action, case or proceeding, the Guarantor's obligations
under this Guaranty will nevertheless continue to be determined as if such order
had not been issued (i.e., as if the Lessee were still obligated to pay the
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Indebtedness and to perform and observe the Obligations strictly in accordance
with the terms, covenants and provisions of the Leases as in existence prior to
the issuance of any such order).
(c) The Guarantor absolutely, unconditionally and irrevocably waives
any and all right to assert any defense, setoff, counterclaim or crossclaim of
any nature whatsoever with respect to this Guaranty or the obligations of the
Lessee or any other person or party relating to this Guaranty or the obligations
of the Guarantor hereunder or otherwise with respect to the Leases in any
action, case or proceeding brought by the Lessor to enforce the obligations of
the Guarantor under this Guaranty (provided, however, that the foregoing
provisions of this sentence shall not be deemed a waiver of the right of the
Guarantor to assert any compulsory counterclaim in any such action, case or
proceeding brought by the Lessor in any state court if such counterclaim is
compelled under local law or rule or procedure, or in a court of the United
States, nor shall the foregoing provisions of this sentence be deemed a waiver
of the right of the Guarantor to assert any claim which would otherwise
constitute a defense, setoff, counterclaim or crossclaim of any nature
whatsoever against the Lessor in any separate action, case or proceeding brought
by the Guarantor against the Lessor).
(d) The Guarantor acknowledges that no oral or other agreements,
understandings, representations or warranties exist with respect to this
Guaranty or with respect to the obligations of the Guarantor under this
Guaranty, except those specifically set forth in this Guaranty, and that this
Guaranty sets forth the entire agreement and understanding of the Guarantor and
the Lessor.
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Section 2.8. Releases. The Lessor shall have the right to waive its rights
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against and to release any guarantor or other person or entity that is liable
for payment of the Indebtedness or performance of the Obligations without
affecting (a) the enforceability of this Guaranty against the Guarantor or (b)
any other right or remedy that the Lessor may have against the Guarantor.
Section 2.9. Costs and Expenses.
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(a) The Guarantor hereby agrees to pay to the Lessor all costs and
expenses, including court costs and reasonable attorneys' fees and expenses,
incurred by the Lessor in seeking advice with regard to, or in seeking to
enforce, any of the obligations of the Guarantor hereunder.
(b) The Guarantor will defend, indemnify and hold harmless the Lessor
and its employees, agents, officers and directors, from and against any and all
claims, demands, penalties, causes of action, fines, liabilities, settlements,
damages, costs or expenses of whatever kind or nature, known or unknown,
foreseen or unforeseen, contingent or otherwise (including, without limitation,
reasonable attorneys' fees and expenses, court costs and litigation expenses)
arising out of or in any way related to any failure by the Lessee to promptly
and fully pay the Indebtedness or fully perform, observe and comply with any of
the Obligations.
Section 2.10. Bankruptcy. In the event that any part of the Indebtedness is
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collected by the Lessor and because of bankruptcy or other laws relating to
debtors' relief such payment is set aside as a voidable preference or fraudulent
conveyance or the Lessor is otherwise required to repay all or any portion of
the amount so collected to the Lessee or to any trustee, receiver or otherwise,
then this Guaranty shall continue in full force and effect with regard to such
sums or, if previously terminated, shall be reinstated without further act or
instrument and shall thereafter remain in full force and effect, as though such
payment had not been made or such termination had not occurred (as the case may
be), and the amount or amounts so repaid shall become part of the Indebtedness
and shall be guaranteed hereby. In the event an action, case or proceeding is
filed or commenced under the Bankruptcy Code or under any other applicable
Federal or state bankruptcy, insolvency or similar law in regard to the Lessee
or an action, case or proceeding is otherwise commenced for the benefit of the
creditors of the Lessee, this Guaranty shall at all times thereafter remain
effective in regard to any payments or other transfers of assets to the Lessor
received from or on behalf of the Lessee under or in respect of the Indebtedness
which are held voidable on the grounds of preference, fraudulent conveyance or
otherwise, whether or not the Indebtedness has been paid in full or whether or
not any or all of the Obligations have been discharged or released.
Section 2.11. Application of Proceeds. All payments, whether voluntary or
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involuntary, received from the Lessee or on account of the Indebtedness from any
other source, including income from and amounts realized on security and
appropriated bank balances, may be applied
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by the Lessor toward the payment of the Indebtedness and in such order of
application as the Lessor may from time to time elect. All payments shall be
conclusively presumed to have been made by the Lessee and no payments shall
operate to reduce the liability of the Guarantor hereunder, unless at the time
such payments are made, express written notice is served upon the Lessor that
such payments are made by the Guarantor in reduction of the liability hereunder.
Section 2.12. Required Notifications. The Guarantor will promptly
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inform the Lessor in writing upon the commencement of any proceedings by or
against the Guarantor under any applicable bankruptcy, reorganization,
liquidation, insolvency or other similar law now or hereafter in effect or of
any proceeding in which a receiver, liquidator, trustee or other similar
official is sought to be appointed for the Guarantor or any of its assets.
Section 2.13. Survivability. The obligations of the Guarantor
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contained herein shall survive the expiration or earlier termination of the
Lease or any future lease between the Lessor and the Lessee until payment in
full of the Indebtedness and complete performance of all of the Obligations.
Further, no expiration or termination of any Lease, by operation of law or
otherwise, and no re-entry, repossession or removal pursuant to any Lease or
otherwise, and no re-letting of the premises under any Lease shall relieve the
Guarantor of its liabilities and obligations which arise during the terms of the
Leases, all of which shall survive such expiration, termination, re-entry,
repossession, removal or re-letting. The obligations of the Guarantor contained
herein shall survive any assignment of any Lease or sublease of the Leased
Premises and any changes in control of the Lessee or Lessor.
Section 2.14. Guarantor's Assumption of Lessee's Obligations. In the
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event of the rejection or disaffirmance of any Lease by the Lessee or the
Lessee's receiver or trustee pursuant to any law affecting creditor's rights,
the Guarantor will, and does hereby (without the necessity of any further
agreement or act), assume all obligations and liabilities of the Lessee under or
arising out of the Leases, to the same extent as if the Guarantor had been
originally named the lessee under the Leases, and there had been no such
rejection or disaffirmance; the Guarantor will confirm such assumption in
writing at the request of the Lessor, upon or after such rejection or
disaffirmance. The Guarantor, upon such assumption, shall have all rights of
the Lessee under the Leases and shall be entitled to a new lease on all of the
terms and conditions of the Leases with respect to the unexpired portion of any
Lease (to the extent permitted by law). The Guarantor will execute and deliver
such documents, as the Lessor may from time to time reasonably require to
evidence such assumption, to confirm this Guaranty and to certify that the
Guarantor are not in default hereunder.
Section 2.15. Existence, etc. So long as any Indebtedness or
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Obligations are outstanding, the Guarantor: (a) shall maintain its corporate
existence and shall not dissolve; (b) shall not sell all or substantially all of
its assets unless it shall receive reasonably equivalent value therefor; and (c)
shall not merge with or into another corporation or entity unless such surviving
corporation or entity is obligated to perform the obligations of the Guarantor
hereunder, assumes
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such obligations in a writing reasonably satisfactory to Lessor and has a net
worth at least equal to that of the Guarantor immediately prior to the merger.
ARTICLE III
EVENTS OF DEFAULT; REMEDIES
Section 3.1. Events of Default. Any of the following occurrences or acts
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shall constitute an "Event of Default" under this Guaranty:
(a) If the Guarantor shall fail to pay any sum, as and when required
to be paid hereunder following any applicable grace period.
(b) If any representation or warranty made by the Guarantor contained
in this Guaranty or any officer's certificate, notice, certificate, demand or
request delivered hereunder or in connection herewith shall be false or
misleading in any material respect as of the date made or deemed to have been
made.
(c) If the Guarantor fails to perform or observe in any material
respect any covenant, term or condition contained in this Guaranty (other than a
failure described in subparagraphs 3.1(a) or (b) above or an Event of Default
described below) and such failure continues for more than 30 days after the
Guarantor's receipt of notice thereof from the Lessor; provided, however, that
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in the case of any such failure which is susceptible of cure but not within the
applicable time period, provided any delay in exercising the Lessor's remedies
hereunder beyond such applicable time period could not have a material adverse
effect on the rights of the Lessor hereunder, no Event of Default shall be
deemed to occur so long as the Guarantor promptly commences to cure such default
within the applicable time period and thereafter diligently and continuously
pursues such cure to completion within 120 days.
(d) If any Guarantor or the Lessee shall file a petition in bankruptcy
or for reorganization or for an arrangement pursuant to any federal or state
law, or shall be adjudicated a bankrupt or become insolvent or shall make a
general assignment for the benefit of creditors or shall admit in writing its
inability to pay its debts generally as they become due, or if a petition
proposing the adjudication of the Guarantor or the Lessee as a bankrupt or its
reorganization pursuant to any federal or state bankruptcy law or any similar
federal or state law shall be filed in any court and the Guarantor or the Lessee
shall consent to or acquiesce in the filing thereof or such petition shall not
be discharged within 60 days after the filing thereof.
(e) If a receiver, trustee or liquidator of the Guarantor or the
Lessee, or of all or substantially all of the assets of the Guarantor or the
Lessee, shall be appointed in any proceeding brought by the Guarantor or the
Lessee, or if any such receiver, trustee or liquidator shall be appointed in any
proceeding brought against the Guarantor or the Lessee and shall not be
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discharged within 60 days after such appointment, or if the Guarantor or the
Lessee shall consent to or acquiesce in such appointment.
Section 3.2. Remedies. Upon the occurrence of an Event of Default,
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the Lessor shall have all the rights and remedies available at law or in equity
for purposes of enforcing its rights under this Guaranty.
ARTICLE IV
MISCELLANEOUS PROVISIONS
Section 4.1. Governing Law. This Guaranty, the rights of the Lessor
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and the obligations of the Guarantors shall be governed by and construed in
accordance with the laws of the State of New York (excluding, however, those
dealing with conflicts of law) except to the extent that such laws are preempted
by United States federal law, in which case such federal law shall govern.
Section 4.2. Successors and Assigns. The representations,
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warranties, covenants and conditions set forth herein shall be binding upon the
administrators, representatives and permitted successors and assigns of the
Guarantor and shall inure to the benefit of the Lessor, its successors and
assigns.
Section 4.3. Notices. All notices, requests, demands and other
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communications with respect hereto shall be in writing and shall be delivered by
hand, sent prepaid by Federal Express (or a comparable overnight delivery
service) sent by facsimile or sent by United States mail, certified, postage
prepaid, return receipt requested, at the following addresses:
If to the Lessor, to -
Xxxxxx Hotels Limited Partnership, L.P.
c/x Xxxxxx Hotels Trust
000 Xxxxxx & Xxxx Xxxxx
Xxxxxxxxx, Xxx Xxxx 00000
Attention: Chairman of the Board
Fax No. (000) 000-0000
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With a copy to -
Hunton & Xxxxxxxx
Riverfront Plaza, East Tower
000 X. Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxx, Esquire
Fax No. (000) 000-0000
If to the Guarantor, to -
Xxxxxx Hotels Corporation
000 Xxxxxx & Xxxx Xxxxx
Xxxxxxxxx, Xxx Xxxx 00000
Attention: Chairman of the Board
Fax No. (000) 000-0000
With a copy to -
Boylan, Brown, Code,Xxxxxx, Xxxxxx & Xxxxxx, LLP
0000 Xxxxx Xxxxxx
Xxxxxxxxx, Xxx Xxxx 00000
Fax No. (000) 000-0000
Attention: Xxxx X. Xxxxxxxx, Esquire
Any notice, request, demand or other communication delivered or sent in the
manner aforesaid shall be deemed given or made, as the case may be, upon the
earlier of the date it is actually received or (a) on the business day after the
day on which it is delivered by hand, (b) on the business day after the day on
which it is properly delivered to Federal Express (or a comparable overnight
delivery service), (c) on the third business day after the day on which it is
deposited in the United States mail or (d) on the business day on which it is
sent by facsimile with confirmed transmision. Any addressee may change its
address by notifying the other addressees of the new address in any manner
permitted by this Section.
Section 4.4. Captions; Gender; Number. The captions hereof are for
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convenience of reference only and shall neither limit nor enlarge the provisions
hereof. All pronouns used herein, whether used in the masculine, feminine or
neuter gender, shall include all other genders. The singular shall include the
plural and vice versa unless the context requires otherwise.
Section 4.5. Severability. If any provision of this Guaranty, or the
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application thereof to any person or circumstance, shall to any extent be
invalid or unenforceable, the remainder of
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the provisions hereof, or the application thereof to other persons or
circumstances, shall not be affected thereby, and each provision hereof shall be
valid and enforceable to the fullest extent permitted by law.
Section 4.6. Amendments. No provision of this Guaranty may be
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amended, waived, discharged or terminated orally, but only by an instrument in
writing signed by the party against whom enforcement of the amendment, waiver,
discharge or termination is sought. No subsequent guaranty by the Guarantor or
any other person with respect to the Indebtedness or the Obligations shall be
deemed in lieu of or to supersede this Guaranty, but such guaranty shall be
construed as an additional or supplementary guaranty unless otherwise expressly
provided for in such subsequent guaranty. Furthermore, this Guaranty shall be
construed to be an additional or supplementary guaranty to any guaranty
previously executed by the Guarantor or any other guarantor of the Indebtedness
or the Obligations and shall not terminate any prior guaranty unless such
termination is expressly provided for herein.
Section 4.7. Service of Process. The Guarantor hereby agrees that
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any suit, action or proceeding arising out of or relating to this Guaranty may
be instituted in the United States District Court for the Western District of
New York, at the option of the Lessor; and the Guarantor hereby waives any
objection which it may have to the laying of the venue of any such suit, action
or proceeding and irrevocably submits to the jurisdiction of either such court
in any such suit, action or proceeding.
Section 4.8. Third Party Beneficiary. Xxxxxx Hotels Trust, a
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Maryland real estate investment trust, the general partner of the Lessor, shall
be a third party beneficiary of this Guaranty and shall have the right to
enforce the terms of this Guaranty to the same extent as the Lessor.
Section 4.9 Affiliate. As used herein, the term "Affiliate" shall
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have the meaning given to such term in Rule 1-02 of Regulation S-X promulgated
by the Securities and Exchange Commission.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the Guarantor has executed this Guaranty as of the date
first above written.
XXXXXX HOTELS CORPORATION
By:______________________
Name:____________________
Title:___________________
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