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EXHIBIT 10.8
GUARANTY
THIS GUARANTY (this "Guaranty") made this ____ day of __________, 199__
by NEWCO, LLC, a ______________________ (the "Guarantor") in favor of Marriott
International, Inc. and Marriott Hotel Services, Inc. and their affiliates
(collectively, "Marriott").
PRELIMINARY STATEMENT OF FACTS
This Preliminary Statement of Facts is not merely prefatory, but is
expressly incorporated into and made a part of this Guaranty.
A. IHC II, LLC ("Primary Manager") has entered into various
Submanagement Agreements of even date herewith with the entities constituting
Marriott (the "Submanagement Agreements") with respect to the hotels listed on
Exhibit A hereto (collectively, the "Hotels"). Primary Manager is a wholly-owned
subsidiary of Guarantor and has been organized by Guarantor for the purpose of
providing certain management services to the Hotels.
B. Marriott has agreed to enter into the Submanagement Agreements on
the condition that the Guarantor execute and deliver this Guaranty to Marriott.
C. Primary Manager has assumed the franchise and license agreements
with Marriott with respect to the Hotels (the "IHC Franchise Agreements"), and
Guarantor controls Interstate Hotels, LLC ("Interstate") which has entered into
or assumed franchise or license agreements with Marriott (the "LLC Franchise
Agreements") with respect to the hotels listed on Exhibit B [must include
exhibit C & D hotels] hereto (the LLC Franchise Agreements and the IHC Franchise
Agreements are hereinafter collectively referred to as the "Franchise
Agreements").
D. As a condition of Marriott allowing Interstate and IHC to enter into
or assume the Franchise Agreements or certain obligations thereunder, Marriott
has requested that the Guarantor execute and deliver this Guaranty to Marriott.
E. All of the above transactions are being undertaken pursuant to a
Settlement Agreement dated as of May__, 1998 by and among, Marriott, Interstate
Hotels Corporation, Interstate Hotels Company, Patriot American
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Hospitality, Inc. and Wyndham International, Inc. (the "Settlement Agreement").
The Settlement Agreement provides for obligations of Interstate and Primary
Manager to Marriott which shall also be subject to this Guaranty.
F. Guarantor has determined that it is in the best interest of the
Guarantor to execute and deliver this Guaranty.
NOW THEREFORE, Guarantor does hereby covenant and agree as follows:
1. GUARANTY. To induce Marriott to execute and deliver the
Submanagement Agreements and the Settlement Agreement, as applicable, and to
permit Interstate to enter into or assume the Franchise Agreements, Guarantor
does hereby unconditionally, absolutely and irrevocably guarantee to Marriott,
and their respective successors and assigns, (a) the full and due payment of all
amounts due to Marriott under the Submanagement Agreements, the Franchise
Agreements and the Settlement Agreement, (b) the full and complete performance
by Primary Manager and Interstate, and their respective successors and assigns,
of all the terms, obligations, covenants, and agreements of Primary Manager or
Interstate under the Submanagement Agreements, the Franchise Agreements or the
Settlement Agreement on the part of Primary Manager, Interstate, and their
respective successors and assigns to be observed or performed thereunder and,
without limiting the foregoing, the full and punctual payment by Primary
Manager, Interstate and their respective successors and assigns, of all
management fees, royalty fees, franchise fees, chain services fees, and other
sums of money, as and when they become due and payable as provided in the
Submanagement Agreements, the Franchise Agreements and the Settlement Agreement,
as applicable.
Pursuant to the foregoing, if Primary Manager shall fail to
comply with any term covenant or condition in the Submanagement Agreements or
the Settlement Agreement, or to make any payment or supply any funds required to
be made or supplied thereunder, in each case after any applicable notice and
cure period, Guarantor unconditionally guarantees to Marriott, that Guarantor
shall then (a) pay (without first requiring Marriott to proceed against the
Primary Manager, or any other person) to Marriott any such sums to be paid or
supplied under the Submanagement Agreements or the Settlement Agreement
including, without limitation, any interest, premiums, and late charges, and (b)
cure any default of Primary Manager in any term, covenant, or condition under
the Submanagement Agreements or the Settlement Agreement. Guarantor further
agrees to indemnify and hold harmless Marriott from any loss (including
attorneys' fees) resulting from any default made at any time by Primary Manager
in any term, covenant or condition of the Submanagement Agreements or the
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Settlement Agreement or by Guarantor under the terms of this Guaranty, in each
case after any applicable notice and cure period.
Pursuant to the foregoing, if Interstate shall fail to comply
with any term covenant or condition in the Franchise Agreements or the
Settlement Agreement, or to make any payment or supply any funds required to be
made or supplied thereunder, in each case after any applicable notice and cure
period, Guarantor unconditionally guarantees to Marriott, that Guarantor shall
then (a) pay (without first requiring the Marriott to proceed against
Interstate, or any other person) to Marriott any such sums to be paid or
supplied under the Franchise Agreements or the Settlement Agreement including,
without limitation, any interest, premiums, and late charges, and (b) cure any
default by Interstate in any term, covenant, or condition under the Franchise
Agreements and the Settlement Agreement. Guarantor further agrees to indemnify
and hold harmless Marriott from any loss (including attorneys' fees) resulting
from any default made at any time by Interstate in any term, covenant or
condition of the Franchise Agreements or the Settlement Agreement or by
Guarantor under the terms of this Guaranty, in each case after any applicable
notice and cure period.
2. GUARANTOR'S CONSENTS. Notice to Guarantor of any and all
defaults on the part of Primary Manager or Interstate, and any successor of
Primary Manager or Interstate or assignee of Primary Manager, or Interstate, is
waived, and consent is given to all extensions of time, waivers, or indulgences
of any kind, that Submanager, its successors or assigns, may grant to Primary
Manager, or Interstate, and any successor of Primary Manager or Interstate or
assignee of Primary Manager, or Interstate, with reference to the performance by
Primary Manager, or Interstate or any successor of Primary Manager, or
Interstate, or assignee of Primary Manager, or Interstate, of any of the terms,
obligations, covenants, or agreements in or under any of the Submanagement
Agreements or any of the Franchise Agreements. Full consent is also given by
Guarantor to any and all changes, modifications, or amendments in, of, or to any
such terms, obligations, covenants, or agreements as well as to conditions of,
in, or under the Submanagement Agreements and the Franchise Agreements that may
be made by agreement between Marriott or its successors or assigns, and Primary
Manager or Interstate, or any successor of Primary Manager or Interstate, or
assignee of Primary Manager or Interstate, or otherwise; and Guarantor waives
any and all requirements whatsoever on the part of Marriott or its successors or
assigns first to exhaust or pursue its, remedies against Primary Manager or
Interstate, their respective successors or assigns, before Marriott or its
successors or assigns shall have the right to proceed directly against and
recover from Guarantor.
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3. PRIMARY LIABILITY. Guarantor, without limiting any of the
foregoing provisions of this Guaranty, also waives notice of any and all
changes, modifications, or amendments in, of, or to, the Submanagement
Agreements or the Franchise Agreements that may be agreed upon between Marriott
or its successors or assigns and Primary Manager or Interstate, or their
respective successors or assigns, or that may be permitted or suffered in
connection with the Submanagement Agreements or the Franchise Agreements, or the
performance thereof, as well as notice of any waivers, indulgences, or
extensions granted or suffered by Marriott or its successors or assigns.
Guarantor further agrees that, notwithstanding any waivers, extensions, or
indulgences granted or suffered by Marriott or its successors or assigns, and
notwithstanding any changes, amendments, or modifications in, of, or to the
Submanagement Agreements or the Franchise Agreements, by agreement or otherwise,
Guarantor shall be and remain, and is primarily absolutely and fully liable to
Marriott and its successors and assigns for the full and punctual payment of all
payments to be made, and for the full and due performance of all the other
terms, obligations, covenants, agreements, and conditions of, in, or under the
Submanagement Agreements, Franchise Agreements, and in any change, amendment, or
modification thereof, by Primary Manager or Interstate and its successors and
assigns, without any notice whatsoever.
4. NO IMPAIRMENT. Without limiting any of the foregoing
provisions of this Guaranty, the Guarantor further agrees that this Guaranty,
and the obligations of the Guarantor under it, shall in no way be terminated,
affected, or impaired by reason of the assertion by Marriott or its respective
successors or assigns against Primary Manager or Interstate, their respective
successors or assigns, of any rights or remedies reserved to Marriott pursuant
to or by virtue of the provisions of the Submanagement Agreements of the
Franchise Agreements or any change, amendment, or modification of the
Submanagement Agreements or the Franchise Agreements.
5. NO ALTERATION. This Guaranty shall not be affected by any
deviation from or alteration of the terms, covenants or conditions of any of the
Submanagement Agreements, any of the Franchise Agreements, or by any assignment
or subletting of all or any part of said premises or of the interest of Primary
Manager or Interstate therein. This Guaranty shall not be relinquished,
extinguished, modified or in any way affected by failure on the part of Marriott
to enforce any or all of the rights or remedies of Marriott whether pursuant to
the terms of the Submanagement Agreements or Franchise Agreements, as
applicable, or at law or in equity.
6. TERMINATION. This Guaranty is a continuing one and shall
terminate only upon payment by Primary Manager or Interstate of all sums
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Primary Manager or Interstate is required to pay under the Submanagement
Agreements and Franchise Agreements and upon performance by Primary Manager or
Interstate or Interstate of all duties and obligations therein contained.
7. WAIVER. Guarantor waives notice to Guarantor (a) of any
default by Primary Manager or Interstate (i) of payment by Primary Manager or
Interstate of any of the sums hereby guaranteed and (ii) of performance by
Primary Manager or Interstate of the terms, covenants and conditions of said
Submanagement Agreements and the Franchise Agreements, and (b) of acceptance by
Marriott of this Guaranty.
8. EXTENSION OF TIME. Guarantor consents that Marriott, may
from time to time extend the time for performance or otherwise modify, alter or
change any of the Submanagement Agreements or Franchise Agreements and any or
all provisions thereof and may extend the time for payment of all sums hereby
guaranteed and may receive and accept notes, checks and other instruments made
by Primary Manager or Interstate for the payment of money and may agree to
extensions and renewals thereon without in any way releasing or discharging
Guarantor. Notice of presentment of any such note or notes and/or notice of
default in the payment thereof at maturity and/or protest or notice of protest
thereof is expressly waived by Guarantor.
9. PRIMARY MANAGER'S OR INTERSTATE'S DEFAULT. This Guaranty
may be immediately enforced upon any default continuing after any applicable
notice and cure period by Primary Manager or Interstate under the terms of any
of the Submanagement Agreements or the Franchise Agreements. Upon default
continuing after any applicable notice and cure period by Primary Manager under
any of the Submanagement Agreements or Franchise Agreements, Marriott can
proceed immediately and directly against Guarantor or Primary Manager or
Interstate, or both, as applicable (it being understand that Interstate is not
liable for payment or performance of Primary Manager's obligations and vice
versa). Guarantor waives the right to require Marriott to proceed against
Primary Manager or Interstate initially or exhaust any security that Marriott
holds from Primary Manager or Interstate or to pursue any other remedy in
Marriott's power and it shall not be necessary for Marriott, in order to enforce
this Guaranty, to institute suit or exhaust any legal remedies against Primary
Manager or Interstate.
10. ATTORNEYS' FEES. In the event any action should be
commenced by Marriott against the Guarantor to enforce any of the terms or
conditions of this Guaranty and Marriott shall be entitled to recover from
Guarantor reasonable attorneys' fees in any such action in which Marriott shall
prevail.
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11. TERM. The obligations of the Guarantor under this Guaranty
Agreement extend to the Term (as defined in the Submanagement Agreements and
Franchise Agreements) and to any holding over by the Primary Manager or
Interstate thereafter and to any renewal or extension of the Term which results
from the exercise by the Primary Manager or Interstate of any rights or option
contained in the Submanagement Agreements or Franchise Agreements.
12. ASSIGNMENT BY SUBMANAGER. The benefit of the Guarantor's
obligations under this Guaranty Agreement may be assigned by Marriott in
connection with any permissible assignment of the Submanagement Agreements or
the Franchise Agreements, and will benefit and be enforceable by the successors
and assigns of Marriott.
13. CONTINUED LIABILITY OF GUARANTOR. The liability of the
Guarantor hereunder shall in no way be affected by (a) the discharge of Primary
Manager or Interstate in any creditors', receivership, bankruptcy or other
proceedings, (b) the impairment, limitation or modification of the liability of
Primary Manager or Interstate or the estate of Primary Manager or Interstate in
bankruptcy, or of any remedy for the enforcement of Primary Manager's liability
under the Submanagement Agreements or Interstate's liability under the Franchise
Agreements resulting from the operation of any present or future provision of
the Bankruptcy Act or other statute or from the decision in any court; (c) the
rejection or disaffirmance of the Submanagement Agreements or Franchise
Agreements in any proceedings; (d) the assignment or transfer of any of the
Submanagement Agreements or any of the Franchise Agreements by the Primary
Manager or Interstate; (e) any disability or other defense of Primary Manager or
Interstate, including but not limited to any defense based on a failure of
Primary Manager's or Interstate's organizers to properly and legally form or
empower Primary Manager or Interstate to execute any of the Submanagement
Agreements or to enter into or assume any of the Franchise Agreements, as
applicable, and perform Primary Manager's or Interstate's obligations
thereunder; or (f) the cessation from any cause whatsoever of the liability of
Primary Manager or Interstate.
14. NOTICES. Any notice, demand, request or other
communication which Marriott may desire to give to the Guarantor with respect to
this Guaranty, shall be deemed sufficient if in writing and sent to the
following addresses:
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GUARANTOR:
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A notice demand or request may be hand-delivered or delivered
via express delivery service or mailed, postage prepaid, first class, registered
or certified mail. Any notice sent by mail shall be deemed to have been received
on the second business day following the date of mailing. Notice delivered
personally or by express delivery service shall be effective upon receipt.
15. GOVERNING LAW. Guarantor hereby acknowledges, consents and
agrees (i) that the provisions of this Guaranty and the rights of all parties
mentioned herein shall be governed by the laws of the State of Maryland and
interpreted and construed in accordance with such laws (excluding Maryland
conflict of laws) and (ii) that the United States District Court for the
District of Maryland and any court of competent jurisdiction of the State of
Maryland shall have jurisdiction in any proceeding instituted to enforce this
Guaranty and any objections to venue are hereby waived.
16. SUCCESSORS AND ASSIGNS. The references in this Guaranty to
Marriott's, Primary Manager's or Interstate's successors and assigns shall not
be deemed a waiver by any party, of any prohibition in the Submanagement
Agreements or Franchise Agreements or Settlement Agreement relating to the
assignment of the Submanagement Agreements or Franchise Agreements or Settlement
Agreement.
17. INDUCEMENT. This Guaranty is executed by the Guarantor
prior to, or simultaneously with, the execution and delivery of the
Submanagement Agreements by Submanager, and to induce Marriott to execute and
deliver the Submanagement Agreements well knowing that Marriott would not do so
without this Guaranty. This Guaranty is executed by the Guarantor prior to, or
simultaneously with, the assumption or execution of the Franchise Agreements by
Interstate and to induce Marriott to permit Interstate to enter into or assume
the Franchise Agreements well knowing that Marriott would not do so without this
Guaranty.
18. MISCELLANEOUS. All references to the singular shall, where
applicable, refer to the plural.
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In witness whereof, ___________________________ has caused these
presents to be executed by its President thereunto duly authorized, and its
corporate seal to be hereunto affixed, this day of , 199__.
ATTEST: GUARANTOR:
NEWCO, LLC
By: (SEAL)
--------------------------- -----------------------------
Name:
------------------------
Title:
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EXHIBIT A
Hotels Managed by Marriott
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Hotel Effective Date Brand
----- -------------- -----
1 Albany, NY Date of Divestiture MHRS
2 Atlanta North, GA 1 Year after Date of MHRS
Divestiture
3 Conshohocken, PA 1 Year after Date of MHRS
Divestiture
4 Harrisburg, PA 1 Year after Date of MHRS
Divestiture
5 Houston, TX 1 Year after Date of MHRS
Divestiture
0 Xxxxxx Xxxxx Xxxxxxxxxx, XX Date of Divestiture MHRS
0 Xxx Xxxxx Xxxxxxx Xxxxxx, XX Date of Divestiture MHRS
8 Minneapolis, MN 1 Year after Date of MHRS
Divestiture
9 Warner Center, CA Date of Divestiture MHRS
00 Xxxxxxxxxx Xxxxxxx, XX Date of Divestiture MHRS
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EXHIBIT B
Hotels with Contracts Assumed
Hotel Brand
----- -----
1. New Haven Orange, CT CY
2. Tyson's Corner, VA MHRS
3. Troy, MI MHRS
4. Xxxxxxxxxxx, XX XX
0. Xx. Xxxxx, XX CY
6. Pittsburgh Airport, PA RI
Hotels Owned by 3rd Parties
Hotel Brand
----- -----
1. Boca Raton, FL MHRS
2. Charlotte Executive Park, NC MHRS
3. Cincinnati, OH MHRS
4. Ft. Lauderdale North, FL MHRS
5. Laguna Cliffs Dana Point, CA MHRS
6. Manhattan Beach, CA MHRS
7. Memphis, TN MHRS
8. Ontario Airport, CA MHRS
9. Orlando Airport, FL MHRS
10. Pittsburgh City Center, PA MHRS
11. Pittsburgh Green Tree, PA MHRS
12. Providence, RI MHRS
13. San Francisco, CA MHRS
14. Sawgrass, FL MHRS
15. Trumbull, CT MHRS
16. Waterford Oklahoma City, OK MHRS
17. Orlando I Drive, FL MHRS
18. Moscow, Russia MHRS
19. Albany, NY (CY) CY
20. Burlington, VT (RI) RI
21. Chambersberg, PA (FFI) FFI
22. Colorado Springs, CO (RI) RI
23. Eagan Minneapolis, MN (RI) RI
24. Jackson, MS (FFI) FFI
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25. Madison, WI (RI) RI
26. Manhattan, NY (CY) CY
27. Memphis, MS (FFI) FFI
28. Mobile Gulf, AL (CY) CY
29. Oklahoma City, OK (RI) RI
30. Omaha Central NE (RI) RI
31. Princeton, NJ (RI) RI
32. Xxxxxx Xxxxx, XX (RI) RI
33. Tucson, AZ (RI) RI
34. Vicksburg, MS (FFI) FFI
35. Boise, Idaho RI
36. Portland, Oregon RI
