EXHIBIT 10.2
LIMITED RENT
GUARANTY
THIS LIMITED RENT GUARANTY ("Guaranty") is made as of the 29th day of
December, 1998 by MARRIOTT INTERNATIONAL, INC., having an address at Xxxxxxxx
Xxxxx, Xxxxxxxxxx, X.X. 00000 (hereinafter referred to as "Guarantor") and
HOSPITALITY PROPERTIES TRUST ("HPT") and HPTMI III PROPERTIES TRUST ("HPTMI"),
having an address at 000 Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 (HPTMI
together with HPT and their permitted successors and assigns, hereinafter
referred to as "Landlord").
RECITALS
WHEREAS, HPTMI and CRTM17 Tenant Corporation, a Delaware corporation
(hereinafter referred to as "Tenant") have agreed to enter into various leases,
from time to time for certain hotels located or to be located in the United
States (hereinafter collectively referred to as the "Leases" and individually as
the "Lease") pursuant to the terms of a certain Purchase and Sale Agreement
dated even date herewith (the "Agreement") in connection with the sale of
seventeen (17) hotels from Affiliated Persons of Guarantor to Landlord (the
"Properties"); and
WHEREAS, Guarantor owns all of the stock in Tenant, and it is a
condition precedent to the Landlord's entering into the Leases with Tenant that
Guarantor guarantee payment of Guaranteed Rent (defined herein) under the
Leases; and
WHEREAS, the transactions contemplated by the Agreement and the Leases
are of direct, material and substantial benefit to Guarantor; and
WHEREAS, words not otherwise defined herein, whether or not capitalized
herein, shall have the meanings given to them in each Lease.
NOW, THEREFORE, WITNESSETH, in consideration of the agreement of
Landlord to enter into the Leases with Tenant and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged,
Guarantor hereby covenants and agrees as follows:
SECTION 1
GUARANTY
Subject to the terms and provisions of this Guaranty, Guarantor hereby
unconditionally guarantees to Landlord the full, complete, and timely payment by
Tenant of all Minimum Rent (as defined in each Lease) and Additional Rent (as
defined in each Lease) (hereinafter collectively referred to as "Guaranteed
Rent") due and payable under all of the Leases for the Guaranty Term, without
deduction by reason of any setoff (except to
the extent of any set-offs to which Tenant is expressly entitled pursuant to the
terms of the Leases), defense, or counterclaim. For purposes hereof, it is
expressly understood and agreed that "Guaranteed Rent" shall not include any
sums for damages arising from an Event of Default or termination of any Lease,
specifically including damages relating to the acceleration of any rent due
under any Lease in excess of the Minimum Rent and Additional Rent payable during
the Guaranty Term in accordance with the terms of the Leases. In the event that
there is an Event of Default by Tenant pursuant to the terms of a Lease,
Landlord hereby agrees to use reasonable efforts to mitigate its damages.
A. If during the Guaranty Term Tenant shall fail to pay all or any
portion of the Guaranteed Rent when due, Guarantor shall pay (without first
requiring the Landlord to proceed against Tenant, any other person, or any other
security) to Landlord all Guaranteed Rent due and unpaid. Guarantor shall make
payment of such Guaranteed Rent within four (4) Business Days of receipt by
Guarantor of notice from Landlord of Tenant's failure to pay such Guaranteed
Rent. Interest at the Disbursement Rate shall accrue and be owing and due by
Guarantor to Landlord for any Guaranteed Rent not paid within such four (4)
Business Day period.
Notwithstanding the above, in the event that there is an
Exercise of Rights by Landlord (as defined hereinafter in Section 6.B hereof),
the above-referenced period of "four (4) Business Days" shall be "ten (10)
Business Days."
B. In the event Guarantor and Tenant should each pay the same
Guaranteed Rent, Landlord shall promptly return to Guarantor the Guaranteed Rent
paid by Guarantor.
SECTION 2
TERM OF GUARANTY
Guarantor's obligations hereunder shall be limited to Guaranteed Rent
accruing during a period commencing on the date hereof and shall continue in
effect as set forth in subsections A. and B. hereinbelow (the "Guaranty Term"):
A. The Guaranty Term shall continue until the first to occur of the
following events, and thereafter as provided in subsection B.
(i) the expiration of six (6) full Accounting Periods after
the expiration of the Accounting Period in which the last of the seventeen (17)
Properties has been acquired by Landlord, or
(ii) the expiration of nineteen (19) full Accounting Periods
after the expiration of the Accounting Period in which the first Property has
been acquired by Landlord.
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B. Expiration of Term. Thereafter, the Guaranty Term shall continue in
full force and effect until, and shall terminate on the first to occur of one of
the following events:
(i) 11:59 p.m. on the last day of the Accounting Period ending
closest to September 30, 2005; or
(ii) the expiration of the first entire Fiscal Year of Tenant
in which the Aggregate Amount Funded (as defined herein)
exceeds twenty percent (20%) of the Total Property Purchase
Price (as defined herein) paid to Guarantor or its Affiliated
Persons for the Properties which were acquired by Landlord.
The Aggregate Amount Funded shall be determined annually, in
arrears, at the end of each Fiscal Year, except that no such
determination shall be required for the Fiscal Year of Tenant
which includes, or is subsequent to, the Accounting Period
ending closest to September 30, 2005. Tenant and/or Guarantor
shall make such determination and give notice to Landlord of
such amount within one hundred twenty (120) days of the
expiration of the then applicable Fiscal Year. This
determination shall be deemed conclusively accurate unless
Landlord gives written notice to Tenant and/or Guarantor of
its objections to such determination within thirty (30) days
of its receipt of Tenant's and/or Guarantor's determination.
To establish that the Aggregate Amount Funded has exceeded
twenty percent (20%) of the Total Property Purchase Price
within the applicable Fiscal Year, Guarantor shall send a
notice to Landlord, including the following documents: (i) a
letter from Guarantor's auditor affirming that the auditor has
reviewed the Aggregate Amount Funded determination for each
Fiscal Year and has found no material errors or omissions
therein (or such other similar statement as the auditor's
policies and procedures then permit the auditor to make in
providing review and confirmation of calculations of this
kind), (ii) a certificate of an officer of Guarantor affirming
the accuracy and completeness of the Aggregate Amount Funded
determination, and (iii) a copy of the calculation of the
Aggregate Amount Funded determination.
Landlord, at its sole cost and expense (except as provided
hereinbelow), shall be entitled to perform an independent
audit to confirm the accuracy of the Aggregate Amount Funded
determination submitted by Guarantor, such audit to be
commenced not later than ninety (90) days after Tenant or
Guarantor submits its
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determination, and, in the event that Guarantor's
determination is shown to be materially inaccurate in
Guarantor's favor (which the parties agree shall constitute a
deviation of 3% or more), the cost of the audit shall be borne
by Guarantor. If such independent audit establishes that the
Aggregate Amount Funded did not exceed twenty percent (20%) of
the Total Property Purchase Price, this Guaranty shall
continue in full force and effect.
or
(iii) the date on which Minimum Rent Coverage (as defined
herein) equals or exceeds one hundred and thirty percent
(130%) of the Minimum Rent for four (4) consecutive Fiscal
Quarters (for clarification, it is agreed that such date shall
be the last day of such fourth consecutive Fiscal Quarter). To
establish that the Minimum Rent Coverage has met the 130%
standard set forth hereinabove, Guarantor shall send a notice
to Landlord, which notice shall include: (i) a letter from
Guarantor's auditor affirming that the auditor has reviewed
the Minimum Rent Coverage determination for each quarter and
has found no material errors or omissions therein (or such
other similar statement as the auditor's policies and
procedures then permit the auditor to make in providing review
and confirmation of calculations of this kind), (ii) a
certificate of an officer of Guarantor affirming the accuracy
and completeness of the Minimum Rent Coverage determination,
and (iii) a copy of the calculation of the Minimum Rent
Coverage determination.
Landlord, at its sole cost and expense (except as provided
hereinbelow), shall be entitled to perform an independent
audit to confirm the accuracy of the Minimum Rent Coverage
determination submitted by Guarantor, such audit to be
commenced not later than ninety (90) days after Tenant or
Guarantor submits its audit, and, in the event that
Guarantor's determination is shown to be materially inaccurate
in Guarantor's favor (which the parties agree shall constitute
a deviation of 3% or more), the cost of the audit shall be
borne by Guarantor. If such independent audit establishes that
the Minimum Rent Coverage did not exceed the aforementioned
one hundred and thirty percent (130%) this Guaranty shall
continue in full force and effect.
"Aggregate Amount Funded" is the cumulative amount of Guaranteed Rent
paid by Tenant (pursuant to the terms of the Leases for all of the
Properties acquired by Landlord) and Guarantor (pursuant to the terms
of this Guaranty) in excess of total cumulative Cash Available for
Lease Payment for the time period beginning on the
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earlier to occur of: (i) the expiration of six full Accounting Periods
after the expiration of the Accounting Period in which the last of the
seventeen (17) Properties is purchased by Landlord, or (ii) the
expiration of nineteen (19) full Accounting Periods after the
expiration of the Accounting Period in which the first Property has
been acquired by Landlord.
"Minimum Rent Coverage" is Cash Available For Lease Payment (as defined
herein) for all of the Properties acquired by Landlord divided by
Minimum Rent for all of the Properties acquired by Landlord, each
calculated for each Fiscal Quarter.
"Cash Available For Lease Payment" is defined as Total Hotel Sales for
all of the Properties from the date each is acquired by Landlord less
Property Expenses for all of the Properties from the date each is
acquired by Landlord; provided, however, for purposes of calculating
Minimum Rent Coverage, Cash Available for Lease Payment shall be
determined assuming an annual deposit by Tenant into the Reserve of an
amount equal to (a) 5% of Total Hotel Sales for each of the (i) the St.
Louis and Nashville full service hotels, (ii) the Residence Inn By
Marriott Hotels, (iii) Courtyard By Marriott Hotels and (b) 6% of Total
Hotel Sales for each of the Towneplace Suites By Marriott Hotels.
"Property Expenses" is defined on Exhibit A attached hereto.
"Total Property Purchase Price" is defined as the sum of the Allocable
Purchase Prices (as defined in the Agreement), from time to time, paid
by Landlord for the Properties.
C. Early Termination. Notwithstanding any term or provision to the
contrary contained herein, if either of the following events shall occur, this
Guaranty shall terminate in its entirety on the earlier to occur of:
(i) a transfer of any of the Properties by Landlord (other
than to HPT or to any wholly owned subsidiary of HPT) for which the Minimum Rent
Coverage determined solely for the Property(ies) being transferred exceeds the
Minimum Rent Coverage for the Collective Leased Properties for the then most
recently ended Fiscal Quarter; provided, however, any transfer to a Superior
Mortgagee pursuant to Article 20 of the Lease will not be deemed to be a
transfer pursuant to this subsection (i), or
(ii) a transfer of any of the Properties by Landlord to a
Person who meets any one of the criteria set forth in Section 15.1(i), (ii),
(iii) or (iv) of the Lease.
Within fifteen (15) Business Days of its receipt of
hereinafter described Notice from Landlord, Guarantor hereby agrees that it will
give Notice to Landlord whether or not Guarantor would declare this Guaranty
terminated due to the occurrence of either event set forth hereinabove. Any
Notice from Landlord must contain such
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information as may be reasonably necessary for Guarantor to determine if either
event would occur, including all information necessary for Guarantor to
determine if the events set forth in Section 15.1(i), (ii), (iii) or (iv) of the
Lease would occur.
SECTION 3
TERMINATION AS TO SPECIFIC PROPERTIES
In the event any of the following events shall occur, this Guaranty
shall be modified, as set forth hereinbelow:
A. The termination of a Lease of a Property, or Properties pursuant to
the terms and provisions of the Lease, other than a termination due to an Event
of Default by Tenant, or
B. The transfer by Landlord of a Property, or Properties, pursuant to
the terms and provisions of the Lease, other than a transfer to HPT or to any
wholly owned subsidiary of HPT, or as permitted by Article 20 of the Lease.
As used herein, the term "Deleted Property" shall mean that Property or
Properties referenced in Subsections A and/or B hereinabove.
In the event either of the above-described events shall occur (a) the
Guaranty shall not apply to the Guaranteed Rent for the Deleted Property
accruing from and after the date of such event, and (b) with respect to all
periods subsequent to the events set forth in subsections A and/or B
hereinabove, the terms "Minimum Rent Coverage", "Cash Available for Lease
Payment" and "Total Property Purchase Price" shall refer only to the Properties
other than the Deleted Property, and the term "Aggregate Amount Funded" shall
refer to the sum of (i) all Guaranteed Rent paid by Tenant and Guarantor
pursuant to Leases for all of the Properties up to the date of such event, and
(ii) all Guaranteed Rent paid by Tenant and Guarantor pursuant to Leases for
Properties other than Deleted Properties from and after the date of such event.
SECTION 4
CONSENT TO LEASE
Guarantor hereby unconditionally consents to the terms, covenants, and
conditions of the Leases.
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SECTION 5
WAIVERS BY GUARANTOR
Guarantor hereby waives notice of acceptance of this Guaranty by
Landlord and any and all notices and demands of every kind and description which
may be required to be given by any statute or rule of law. Guarantor agrees that
the liability of Guarantor hereunder shall in no way be affected, diminished, or
released by (i) any forbearance or indulgence which may be granted to Tenant (or
to any successor thereto or to any person or entity which shall have assumed the
obligations thereof), or (ii) any waiver of any term, covenant, or condition in
the Leases by Landlord, or (iii) the acceptance of additional security.
SECTION 6
ENFORCEMENT BY LANDLORD
A. Other Rights: Subject to the terms and provisions of this Section,
Guarantor agrees that this Guaranty may be enforced by Landlord without
enforcing any rights it may have against any other Person or any collateral.
Guarantor further agrees that nothing herein contained shall prevent Landlord
from suing on any of the Leases or from exercising any other right available to
it under the Leases or against any other Person. The exercise of any of the
aforementioned rights shall not constitute a legal or equitable discharge of
Guarantor, it being the purpose and intent of Guarantor that its obligations
under this Guaranty shall be absolute and unconditional until the termination of
this Guaranty pursuant to the terms of this Guaranty.
B. Exercise of Rights: Notwithstanding any term or provision contained
in the Guaranty to the contrary, in the event Landlord or any Affiliated Person
shall become the record or beneficial owner of the issued and outstanding shares
of stock of Tenant, pursuant to the exercise of rights (the "Exercise of
Rights") contained in the Indemnity Pledge and Security Agreement dated even
date herewith by Guarantor, as pledgor, and Landlord, as pledgee, this Guaranty
shall be modified, as follows:
(i) From and after the date of an Exercise of Rights for
purposes of determining the amount of Guaranteed Rent which Guarantor is liable
hereunder, Tenant shall be conclusively deemed to have paid to Landlord all of
the Cash Available for Lease Payment (up to the full amount of Guaranteed Rent
due), calculated on an Accounting Period by Accounting Period, and not a
cumulative basis.
(ii) From and after the date of an Exercise of Rights,
Landlord shall cause Tenant to supply to Guarantor all information as Guarantor
may reasonably request in writing to aid Guarantor in determining the Aggregate
Amount Funded, Minimum Rent Coverage and Cash Available for Lease Payment.
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(iii) From and after the date of an Exercise of Rights,
Landlord shall thereafter pay to Guarantor all Retained Funds at such time or
times as the Retained Funds would otherwise be owing and due to Tenant, subject
to the provisions of the applicable Lease(s).
C. Payment of Expenses: Guarantor agrees, as principal obligor and not
as a guarantor only, to pay to Landlord forthwith upon demand, in immediately
available Federal funds, all costs and expenses to third parties (including
court costs and reasonable legal expenses) incurred or expended by Landlord in
connection with the enforcement of this Guaranty, together with interest on
amounts recoverable under this Guaranty from the time such amounts become due
until payment at the Disbursement Rate. Guarantor's covenants and agreements set
forth in this section shall survive the termination of this Guaranty.
SECTION 7
CLAIMS BY GUARANTOR AGAINST TENANT
Nothing hereunder contained shall operate as a release or discharge, in
whole or in part, of any claim of Guarantor against Tenant by subrogation or
otherwise, by reason of any act done or any payment made by Guarantor pursuant
to the provisions of this Guaranty; but all such claims shall be subordinate to
the claims of Landlord.
SECTION 8
NOTICES
A. Any and all notices, demands, consents, approvals, offers, elections
and other communications required or permitted under this Guaranty shall be
deemed adequately given if in writing and the same shall be delivered either in
hand, by telecopier with written acknowledgment of receipt, or by mail or
Federal Express or similar expedited commercial carrier, addressed to the
recipient of the notice, postpaid and registered or certified with return
receipt requested (if by mail), or with all freight charges prepaid (if by
Federal Express or similar carrier).
B. All notices required or permitted to be sent hereunder shall be
deemed to have been given for all purposes of this Guaranty upon the date of
acknowledged receipt, in the case of a notice by telecopier, and, in all other
cases, upon the date of receipt or refusal, except that whenever under this
Guaranty a notice is either received on a day which is not a Business Day or is
required to be delivered on or before a specific day which is not a Business
Day, the day of receipt or required delivery shall automatically be extended to
the next Business Day.
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C. All such notices shall be addressed,
if to Landlord to:
c/o Hospitality Properties Trust
000 Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xx. Xxxx X. Xxxxxx
[Telecopier No. (000) 000-0000]
with a copy to
Xxxxxxxx & Worcester LLP
Xxx Xxxx Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxxxxx X. Xxxxx, Esq.
[Telecopier No. (000) 000-0000]
if to Guarantor to:
Marriott International, Inc.
00000 Xxxxxxxx Xxxx, Xxxx. 52-924.11
Xxxxxxxx, Xxxxxxxx 00000
Attn: Treasurer
[Telecopier No. (000) 000-0000]
with a copy to
Marriott International, Inc.
00000 Xxxxxxxx Xxxx, Xxxx. 52-923.00
Xxxxxxxx, Xxxxxxxx 00000
Attn: U.S. Lodging Operations Attorney
[Telecopier No. (000) 000-0000]
D. By notice given as herein provided the parties hereto and their
respective successors and assigns shall have the right from time to time and at
any time during the term of this Guaranty to change their respective addresses
effective upon receipt by the other parties of such notice and each shall have
the right to specify as its address any other address within the United States
of America.
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SECTION 9
APPLICABLE LAW; JURISDICTION
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 of the District of Maryland and any court of
competent jurisdiction in the State of Maryland shall have jurisdiction in any
proceeding instituted to enforce this Guaranty, and any objections to venue are
hereby waived.
SECTION 10
BINDING EFFECT
The rights, powers, privileges, and discretions (hereinafter referred
to as the "rights") to which Landlord may be entitled hereunder shall inure to
the benefit of Landlord and Landlord's successors and assigns. All the rights of
Landlord are cumulative and not alternative and may be enforced successively or
concurrently. Failure of Landlord to exercise any of its rights shall not be
deemed a waiver thereof, and no waiver of any of its rights shall be deemed to
apply to any other rights. The terms, covenants, and conditions of or imposed
upon Guarantor herein shall be binding upon the successors and assigns of
Guarantor.
SECTION 11
SEVERABILITY
In case any provision (or any part of any provision) contained in this
Guaranty shall for any reason be held to be invalid, illegal, or unenforceable
in any respect, such invalidity, illegality, or unenforceability shall not
affect any other provision (or remaining part of the affected provision) of this
Guaranty, but this Guaranty shall be construed as if such invalid, illegal, or
unenforceable provision (or part thereof) had never been contained herein but
only to the extent it is invalid, illegal, or unenforceable.
SECTION 12
GRAMMAR
When used herein, the singular shall include the plural; the plural the
singular; and the use of any gender shall be applicable to all genders.
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SECTION 13
TIME OF THE ESSENCE
Time is of the essence.
SECTION 14
CAPTIONS
The captions appearing in this Guaranty are inserted only as a matter
of convenience and do not define, limit, construe, or describe the scope or
intent of the sections of this Guaranty nor in any way affect this Guaranty.
SECTION 15
MISCELLANEOUS
A. Unenforceability of Guaranteed Obligations, Etc. If Tenant is for
any reason (other than by reason of any waiver, discharge or other event
pursuant to the terms of the Leases) under no legal obligation to pay any of the
Guaranteed Rent, or if any other moneys included in the Guaranteed Rent have
become unrecoverable from Tenant by operation of law or for any other reason,
the obligations of Guarantor contained in this Agreement shall nevertheless
remain in full force and effect and shall be binding upon Guarantor.
B. Consents and Waivers. Guarantor hereby acknowledges receipt of
correct and complete copies of the Leases, and consents to all of the terms and
provisions thereof, as the same may be from time to time hereafter amended or
changed in accordance therewith, and waives (a) notice of any default hereunder
and any default, breach or nonperformance of Event of Default with respect to
any of the Guaranteed Rent under the Leases, (b) demand for performance or
observance of, and any enforcement of any provision of, or any pursuit or
exhaustion of rights or remedies against Tenant, under or pursuant to the
Leases, or any agreement directly or indirectly relating thereto and any
requirements of diligence or promptness on the part of Landlord in connection
therewith, and (c) to the extent Guarantor lawfully may do so, any and all
demand and notices of every kind and description with respect to the foregoing
or which may be required to be given by any statute or rule of law and any
defense of any kind which it may now or hereafter have with respect to this
Guaranty, or the Leases or the Guaranteed Rent; provided, however, that after
any Exercise of Rights by Landlord, Landlord shall not amend the Leases to
increase the amount of Minimum Rent or Additional Rent payable without
Guarantor's consent and Landlord shall give Guarantor copies of any Notices of
Default pursuant to the Leases.
C. No Impairment. The obligations, covenants, agreements and duties of
Guarantor under this Guaranty shall not be affected or impaired by any waiver by
Landlord
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of all of the Guaranteed Rent or the performance or observance by Tenant of any
of the agreements, covenants, terms or conditions contained in the Lease or any
indulgence in or the extension of the time for payment or performance by Tenant
of any amounts payable under or in connection with the Leases or any other
instrument or agreement relating to the Guaranteed Rent or of the time for
performance by Tenant of any other obligations under or arising out of any of
the foregoing or the extension or renewal thereof, or the modification or
amendment (whether material or otherwise) of any duty, agreement or obligation
of Tenant set forth in any of the Leases, or the voluntary or involuntary sale
or other disposition of all or substantially all the assets of Tenant or
insolvency, bankruptcy, or other similar proceedings affecting Tenant or any
assets of Tenant, or the release or discharge of Tenant from the performance or
observance of any agreement, covenant, term or condition contained in any
agreement, covenant, term or condition contained in any of the foregoing by
operation of law, or any other cause, whether similar or dissimilar to the
foregoing.
D. Reimbursement, Subrogation, Etc. Guarantor hereby covenants and
agrees that it shall not enforce or otherwise exercise any rights of
reimbursement, subrogation, contribution or other similar rights against Tenant
or any other person with respect to the Guaranteed Rent prior to the payment in
full of the obligations of Tenant under the Leases. Until all obligations of
Tenant under the Leases shall have been paid and performed in full, Guarantor
shall have no right of subrogation, and Guarantor waives any defense it may have
based upon any election of remedies by Landlord which destroys Guarantor's
subrogation rights or Guarantor's rights to proceed against Tenant for
reimbursement, (including, without limitation, any loss of rights Guarantor may
suffer by reason of any rights, powers or remedies of Tenant in connection with
any anti-deficiency laws or any other laws limiting, qualifying or discharging
the indebtedness to Landlord).
E. Remedies Cumulative. No remedy herein conferred upon Landlord is
intended to be exclusive of any other remedy, and each and every remedy shall be
cumulative and shall be in addition to every other remedy given hereunder or now
or hereafter existing at law or in equity or by statute or otherwise.
F. HPT's Liability. THE DECLARATION OF TRUST ESTABLISHING HPT AND
HPTMI, A COPY OF WHICH, TOGETHER WITH ALL AMENDMENTS THERETO (THE
"DECLARATION"), IS DULY FILED WITH THE DEPARTMENT OF ASSESSMENTS AND TAXATION OF
THE STATE OF MARYLAND, PROVIDES THAT THE NAME "HOSPITALITY PROPERTIES TRUST"
REFERS TO THE TRUSTEES UNDER THE DECLARATION COLLECTIVELY AS TRUSTEES, BUT NOT
INDIVIDUALLY OR PERSONALLY, AND THAT NO TRUSTEE, OFFICER, SHAREHOLDER, EMPLOYEE
OR AGENT OF HPT SHALL BE HELD TO ANY PERSONAL LIABILITY, JOINTLY OR SEVERALLY,
FOR ANY OBLIGATION OF, OR CLAIM AGAINST, HPT. ALL PERSONS DEALING WITH HPT, IN
ANY WAY, SHALL LOOK ONLY TO THE ASSETS OF HPT FOR THE PAYMENT OF ANY SUM OR THE
PERFORMANCE OF ANY OBLIGATION.
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G. Counterpart. The parties agree that this Limited Rent Guaranty may
be signed in counterpart.
IN WITNESS WHEREOF, Guarantor has caused this instrument to be duly
executed under seal and delivered as of the date first above written.
ATTEST: GUARANTOR:
MARRIOTT INTERNATIONAL, INC.
/s/ Xxxxx X. Xxxxxxx By: /s/ Xxxxxxxxx X. Xxxxx (SEAL)
Name: Xxxxxxxxx X. Xxxxx
Title: Authorized Signatory
LANDLORD:
HOSPITALITY PROPERTIES TRUST
/s/ Xxxxxxxx X. Xxxxx By: /s/ Xxxx X. Xxxxxx (SEAL)
Name: Xxxx Xxxxxx
Title: President
HPTMI III PROPERTIES TRUST
/s/ Xxxxxxxx X. Xxxxx By:/s/ Xxxx X. Xxxxxx (SEAL)
Name: Xxxx Xxxxxx
Title: President
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EXHIBIT A
Property Expenses
The term "Property Expenses" shall mean the sum of the following items,
to the extent incurred consistent with the terms of the Leases:
1. the cost of sales, including, without limitation, compensation,
fringe benefits, payroll taxes and other costs related to employees of Tenant
and/or the Manager (the foregoing costs shall not include salaries and other
employee costs of executive personnel of Tenant and/or the Manager who do not
work at the Properties on a regular basis; except that the foregoing costs shall
include the allocable portion of the salary and other employee costs of any
general manager or other supervisory personnel assigned to a "cluster" of hotels
which includes the Properties);
2. departmental expenses incurred at departments within the Properties;
administrative and general expenses; the cost of marketing incurred by the
Properties; advertising and business promotion incurred by the Properties; heat,
light, and power; computer line charges; and routine repairs, maintenance and
minor alterations not paid from the Reserve;
3. the cost of Inventories and FAS consumed in the operation of the
Properties;
4. a reasonable reserve for uncollectible accounts receivable as
determined by the Tenant and/or Manager;
5. all costs and fees of independent professionals or other third
parties who are retained by Tenant and/or Manager to perform services required
or permitted hereunder;
6. all costs and fees of technical consultants and operational experts
who are retained or employed by Tenant, Manager and/or Affiliates of the Tenant
or Manager for specialized services (including, without limitation, quality
assurance inspectors) and the cost of attendance by employees of the Properties
at training and manpower development programs sponsored by Tenant and/or
Manager;
7. the fees and other charges paid pursuant to the terms of the
Franchise Agreement, including all franchise fees and royalty fees;
8. insurance costs and expenses as provided in Article 9 of the Leases;
9. taxes, if any, payable by or assessed against Tenant and/or Manager
related to this Agreement or to Franchisor and/or Manager's operation of the
Properties (exclusive of Tenant's and/or Manager's income taxes) and all
Impositions; and
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10. such other costs and expenses incurred by Tenant and/or Manager as
are specifically provided for elsewhere in the Leases or are otherwise
reasonably necessary for the proper and efficient operation of the Hotel,
provided, however, it shall not include any fees paid to the Manager pursuant to
the terms of any Management Agreement.
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