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GUARANTY OF RECOURSE OBLIGATIONS
made by
XXXXXXXX HOSPITALITY TRUST, INC.,
as guarantor,
in favor of
GREENWICH CAPITAL FINANCIAL PRODUCTS, INC.
Dated as of November 26, 2002
GUARANTY OF RECOURSE OBLIGATIONS
This GUARANTY (this "Guaranty"), dated as of November 26, 2002, made
by XXXXXXXX HOSPITALITY TRUST, INC., a Virginia corporation, having an address
at c/x Xxxxxxxx Hospitality Limited Partnership, 0000 Xxxxxxxxx Xxxxx, Xxxxxxxx,
Xxxxxxxx 00000 ("Guarantor"), in favor of GREENWICH CAPITAL FINANCIAL PRODUCTS,
INC., a Delaware corporation (together with its successors and assigns,
hereinafter referred to as "Lender"), having an address at 000 Xxxxxxxxx Xxxx,
Xxxxxxxxx, Xxxxxxxxxxx 00000.
R E C I T A L S:
A. Pursuant to that certain Loan Agreement dated as of the date
hereof (as the same may be amended, modified, supplemented or replaced from time
to time, the "Loan Agreement") between Solomons Beacon Inn Limited Partnership
and TRS Subsidiary, LLC (collectively, "Borrowers") and Lender, Lender has
agreed to make a loan (the "Loan") to Borrowers in an aggregate principal amount
not to exceed $40,000,000, subject to the terms and conditions of the Loan
Agreement;
B. As a condition to Lender's making the Loan, Lender is requiring
that Guarantor execute and deliver to Lender this Guaranty; and
C. Guarantor hereby acknowledges that Guarantor will materially
benefit from Lender's agreeing to make the Loan;
NOW, THEREFORE, in consideration of the premises set forth herein and
as an inducement for and in consideration of the agreement of Lender to make the
Loan pursuant to the Loan Agreement, Guarantor hereby agrees, covenants,
represents and warrants to Lender as follows:
1. Definitions.
(a) All capitalized terms used and not defined herein shall have
the respective meanings given such terms in the Loan Agreement.
(b) The term "Guaranteed Obligations" means (i) Borrowers'
Recourse Liabilities and (ii) from and after the date that any Springing
Recourse Event occurs, payment of all the Debt.
2. Guaranty.
(a) Guarantor hereby irrevocably, absolutely and unconditionally
guarantees to Lender the full, prompt and complete payment when due of the
Guaranteed Obligations.
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(b) All sums payable to Lender under this Guaranty shall be
payable on demand and without reduction for any offset, claim, counterclaim or
defense.
(c) Guarantor hereby agrees to indemnify, defend and save harmless
Lender from and against any and all costs, losses, liabilities, claims, causes
of action, expenses and damages, including reasonable attorneys' fees and
disbursements, which Lender may suffer or which otherwise may arise by reason of
Borrowers' failure to pay any of the Guaranteed Obligations when due,
irrespective of whether such costs, losses, liabilities, claims, causes of
action, expenses or damages are incurred by Lender prior or subsequent to (i)
Lender's declaring the Principal, interest and other sums evidenced or secured
by the Loan Documents to be due and payable, (ii) the commencement or completion
of a judicial or non-judicial foreclosure of any Mortgage or (iii) the
conveyance of all or any portion of any Property by deed-in-lieu of foreclosure.
(d) Guarantor agrees that no portion of any sums applied (other
than sums received from Guarantor in full or partial satisfaction of its
obligations hereunder), from time to time, in reduction of the Debt shall be
deemed to have been applied in reduction of the Guaranteed Obligations until
such time as the Debt has been paid in full, or Guarantor shall have made the
full payment required hereunder, it being the intention hereof that the
Guaranteed Obligations shall be the last portion of the Debt to be deemed
satisfied.
3. Representations and Warranties. Guarantor hereby represents and
warrants to Lender as follows (which representations and warranties shall be
given as of the date hereof and shall survive the execution and delivery of this
Guaranty):
(a) Organization, Authority and Execution. Guarantor is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Virginia, and has all necessary power and authority to own its
properties and to conduct its business as presently conducted or proposed to be
conducted and to enter into and perform this Guaranty and all other agreements
and instruments to be executed by it in connection herewith. This Guaranty has
been duly executed and delivered by Guarantor.
(b) Enforceability. This Guaranty constitutes a legal, valid and
binding obligation of Guarantor, enforceable against Guarantor in accordance
with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights generally.
(c) No Violation. The execution, delivery and performance by
Guarantor of its obligations under this Guaranty has been duly authorized by all
necessary action, and do not and will not violate any law, regulation, order,
writ, injunction or decree of any court or governmental body, agency or other
instrumentality applicable to Guarantor, or result in a breach of any of the
terms, conditions or provisions of, or constitute a default under, or result in
the creation or imposition of any mortgage, lien, charge or encumbrance of any
nature whatsoever upon any of the assets of Guarantor pursuant to the terms of
Guarantor's articles of organization, or any mortgage, indenture, agreement or
instrument to which Guarantor is a party or by which it or any of its properties
is bound. Guarantor is not in default under any other guaranty which it has
provided to Lender.
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(d) No Litigation. There are no actions, suits or proceedings at
law or at equity, pending or, to Guarantor's best knowledge, threatened against
or affecting Guarantor or which involve or might involve the validity or
enforceability of this Guaranty or which might materially adversely affect the
financial condition of Guarantor or the ability of Guarantor to perform any of
its obligations under this Guaranty. Guarantor is not in default beyond any
applicable grace or cure period with respect to any order, writ, injunction,
decree or demand of any Governmental Authority which might materially adversely
affect the financial condition of Guarantor or the ability of Guarantor to
perform any of its obligations under this Guaranty.
(e) Consents. All consents, approvals, orders or authorizations
of, or registrations, declarations or filings with, all Governmental Authorities
(collectively, the "Consents") that are required in connection with the valid
execution, delivery and performance by Guarantor of this Guaranty have been
obtained and Guarantor agrees that all Consents required in connection with the
carrying out or performance of any of Guarantor's obligations under this
Guaranty will be obtained when required.
(f) Financial Statements and Other Information. All financial
statements of Guarantor heretofore delivered to Lender are true and correct in
all material respects and fairly present the financial condition of Guarantor as
of the respective dates thereof, and no materially adverse change has occurred
in the financial conditions reflected therein since the respective dates
thereof. None of the aforesaid financial statements or any certificate or
statement furnished to Lender by or on behalf of Guarantor in connection with
the transactions contemplated hereby, and none of the representations and
warranties in this Guaranty contains any untrue statement of a material fact or
omits to state a material fact necessary in order to make the statements
contained therein or herein not misleading. Guarantor is not insolvent within
the meaning of the United States Bankruptcy Code or any other applicable law,
code or regulation and the execution, delivery and performance of this Guaranty
will not render Guarantor insolvent.
(g) Consideration. Guarantor is the owner, directly or indirectly,
of a majority of the legal and beneficial equity interests in Borrowers.
4. Financial Statements. Guarantor shall deliver to Lender, (a)
within 90 days after the end of each fiscal year of Guarantor, a complete copy
of Guarantor's annual financial statements audited by a "big four" accounting
firm or another independent certified public accountant reasonably acceptable to
Lender, (b) within 30 days after the end of each fiscal quarter of Guarantor,
financial statements (including a balance sheet as of the end of such fiscal
quarter and a statement of income and expense for such fiscal quarter) certified
by the chief financial officer of Guarantor and in form, content, level of
detail and scope reasonably satisfactory to Lender, and (c) 20 days after
request by Lender, such other financial information with respect to Guarantor as
Lender may reasonably request.
5. Unconditional Character of Obligations of Guarantor.
(a) The obligations of Guarantor hereunder shall be irrevocable,
absolute and unconditional, irrespective of the validity, regularity or
enforceability, in whole or in part, of the other Loan Documents or any
provision thereof, or the absence of any action to
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enforce the same, any waiver or consent with respect to any provision thereof,
the recovery of any judgment against Borrowers, Guarantor or any other Person or
any action to enforce the same, any failure or delay in the enforcement of the
obligations of Borrowers under the other Loan Documents or Guarantor under this
Guaranty, or any setoff, counterclaim, and irrespective of any other
circumstances which might otherwise limit recourse against Guarantor by Lender
or constitute a legal or equitable discharge or defense of a guarantor or
surety. Lender may enforce the obligations of Guarantor under this Guaranty by a
proceeding at law, in equity or otherwise, independent of any loan foreclosure
or similar proceeding or any deficiency action against Borrowers or any other
Person at any time, either before or after an action against any Property or any
part thereof, Borrowers or any other Person. This Guaranty is a guaranty of
payment and performance and not merely a guaranty of collection. Guarantor
waives diligence, notice of acceptance of this Guaranty, filing of claims with
any court, any proceeding to enforce any provision of any other Loan Document,
against Guarantor, Borrowers or any other Person, any right to require a
proceeding first against Borrowers or any other Person, or to exhaust any
security (including, without limitation, any Property) for the performance of
the Guaranteed Obligations or any other obligations of Borrowers or any other
Person, or any protest, presentment, notice of default or other notice or demand
whatsoever (except to the extent expressly provided to the contrary in this
Guaranty).
(b) The obligations of Guarantor under this Guaranty, and the rights
of Lender to enforce the same by proceedings, whether by action at law, suit in
equity or otherwise, shall not be in any way affected by any of the following:
(i) any insolvency, bankruptcy, liquidation, reorganization,
readjustment, composition, dissolution, receivership, conservatorship,
winding up or other similar proceeding involving or affecting Borrowers,
any Property or any part thereof, Guarantor or any other Person;
(ii) any failure by Lender or any other Person, whether or not
without fault on its part, to perform or comply with any of the terms of
the Loan Agreement, or any other Loan Documents, or any document or
instrument relating thereto;
(iii) the sale, transfer or conveyance of any Property or any
interest therein to any Person, whether now or hereafter having or
acquiring an interest in any Property or any interest therein and whether
or not pursuant to any foreclosure, trustee sale or similar proceeding
against Borrowers or any Property or any interest therein;
(iv) the conveyance to Lender, any Affiliate of Lender or
Lender's nominee of the Any Property or any interest therein by a
deed-in-lieu of foreclosure;
(v) the release of Borrowers or any other Person from the
performance or observance of any of the agreements, covenants, terms or
conditions contained in any of the Loan Documents by operation of law or
otherwise; or
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(vi) the release in whole or in part of any collateral for any or
all Guaranteed Obligations or for the Loan or any portion thereof.
(c) Except as otherwise specifically provided in this Guaranty,
Guarantor hereby expressly and irrevocably waives all defenses in an action
brought by Lender to enforce this Guaranty based on claims of waiver, release,
surrender, alteration or compromise and all setoffs, reductions, or impairments,
whether arising hereunder or otherwise.
(d) Lender may deal with Borrowers and Affiliates of Borrowers in the
same manner and as freely as if this Guaranty did not exist and shall be
entitled, among other things, to grant Borrowers or any other Person such
extension or extensions of time to perform any act or acts as may be deemed
advisable by Lender, at any time and from time to time, without terminating,
affecting or impairing the validity of this Guaranty or the obligations of
Guarantor hereunder.
(e) No compromise, alteration, amendment, modification, extension,
renewal, release or other change of, or waiver, consent, delay, omission,
failure to act or other action with respect to, any liability or obligation
under or with respect to, or of any of the terms, covenants or conditions of,
the Loan Documents shall in any way alter, impair or affect any of the
obligations of Guarantor hereunder, and Guarantor agrees that if any Loan
Document are modified with Lender's consent, the Guaranteed Obligations shall
automatically be deemed modified to include such modifications.
(f) Lender may proceed to protect and enforce any or all of its
rights under this Guaranty by suit in equity or action at law, whether for the
specific performance of any covenants or agreements contained in this Guaranty
or otherwise, or to take any action authorized or permitted under applicable
law, and shall be entitled to require and enforce the performance of all acts
and things required to be performed hereunder by Guarantor. Each and every
remedy of Lender shall, to the extent permitted by law, be cumulative and shall
be in addition to any other remedy given hereunder or now or hereafter existing
at law or in equity.
(g) No waiver shall be deemed to have been made by Lender of any
rights hereunder unless the same shall be in writing and signed by Lender, and
any such waiver shall be a waiver only with respect to the specific matter
involved and shall in no way impair the rights of Lender or the obligations of
Guarantor to Lender in any other respect or at any other time.
(h) At the option of Lender, Guarantor may be joined in any action or
proceeding commenced by Lender against Borrowers in connection with or based
upon any other Loan Documents and recovery may be had against Guarantor in such
action or proceeding or in any independent action or proceeding against
Guarantor to the extent of Guarantor's liability hereunder, without any
requirement that Lender first assert, prosecute or exhaust any remedy or claim
against Borrowers or any other Person, or any security for the obligations of
Borrowers or any other Person.
(i) Guarantor agrees that this Guaranty shall continue to be
effective or shall be reinstated, as the case may be, if at any time any payment
is made by Borrowers or
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Guarantor to Lender and such payment is rescinded or must otherwise be returned
by Lender (as determined by Lender in its sole and absolute discretion) upon
insolvency, bankruptcy, liquidation, reorganization, readjustment, composition,
dissolution, receivership, conservatorship, winding up or other similar
proceeding involving or affecting Borrowers or Guarantor, all as though such
payment had not been made.
(j) In the event that Guarantor shall advance or become obligated to
pay any sums under this Guaranty or in connection with the Guaranteed
Obligations or in the event that for any reason whatsoever Borrowers or any
subsequent owner of any Property or any part thereof is now, or shall hereafter
become, indebted to Guarantor, Guarantor agrees that (i) the amount of such sums
and of such indebtedness and all interest thereon shall at all times be
subordinate as to lien, the time of payment and in all other respects to all
sums, including principal and interest and other amounts, at any time owed to
Lender under the Loan Documents, and (ii) Guarantor shall not be entitled to
enforce or receive payment thereof until all principal, Interest and other sums
due pursuant to the Loan Documents have been paid in full. Nothing herein
contained is intended or shall be construed to give 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 Lender in or to any
collateral for the Loan, notwithstanding any payments made by Guarantor under
this Guaranty, until the actual and irrevocable receipt by Lender of payment in
full of all principal, Interest and other sums due with respect to the Loan or
otherwise payable under the Loan Documents. If any amount shall be paid to
Guarantor on account of such subrogation rights at any time when any such sums
due and owing to Lender shall not have been fully paid, such amount shall be
paid by Guarantor to Lender for credit and application against such sums due and
owing to Lender.
(k) Guarantor's obligations hereunder shall survive a foreclosure,
deed-in-lieu of foreclosure or similar proceeding involving any Property and the
exercise by Lender of any of all of its remedies pursuant to the Loan Documents.
6. Covenants.
(a) Until all of the Guaranteed Obligations have been paid in full,
Guarantor shall (i) pay any installment of interest on any debentures now or
hereafter issued by Guarantor (any such debentures, each or collectively, the
"Debentures") pursuant to any indenture (any such indenture, an "Indenture") as
and when the same becomes due and payable (subject to any stated grace period
applicable thereto); (ii) pay all or any part of the principal of, or premium,
if any, on the Debentures as and when the same becomes due and payable at
maturity, redemption, by acceleration or otherwise; (iii) perform any required
conversion of the Debentures (subject to any stated grace period applicable
thereto); (iv) observe or perform any other covenant or agreement contained in
the Debentures or an Indenture (subject to any stated grace period applicable
thereto); (v) not suffer any other "Event of Default" under the applicable
Indenture or otherwise pertaining to any of the Debentures to exist or occur;
and (vi) cause any Indenture to provide that Guarantor may not, directly or
indirectly, consolidate with or merge with or into another person or sell,
lease, convey or transfer all or substantially all of its assets (computed on a
consolidated basis), whether in a single transaction or a series of related
transactions, to another person or group of affiliated persons, unless (A)
either (1) in the case of a merger or consolidation Guarantor is the surviving
entity or (2) the resulting, surviving or
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transferee entity is a corporation organized under the laws of the United
States, any state thereof or the District of Columbia and expressly assumes by
written agreement all of the obligations of Guarantor in connection with the
Debentures and the Indenture; and (B) no "Event of Default" under the applicable
Indenture or otherwise pertaining to any of the Debentures shall exist or shall
occur immediately after giving effect to such transaction.
(b) Until all of the Guaranteed Obligations have been paid in
full, (i) Guarantor shall not (A) sell, pledge, mortgage or otherwise transfer
any of its assets, or any interest therein, on terms materially less favorable
than would be obtained in an arms-length transaction or (B) suffer a default in
the payment of principal, premium or interest when due that extends beyond any
stated grace period applicable thereto or an acceleration for any other reason
of the maturity of any indebtedness of Guarantor or any of its subsidiaries with
an aggregate principal amount in excess of $10 million and (ii) .there shall be
no final judgments not covered by insurance aggregating in excess of $2 million,
at any one time rendered against Guarantor or any of its significant
subsidiaries which not satisfied, stayed, bonded or discharged within 60 days.
(c) Guarantor shall not, at any time while a default in the
payment of the Guaranteed Obligations has occurred and is continuing, sell,
pledge, mortgage or otherwise transfer to any Person any of Guarantor's assets,
or any interest therein.
(d) Guarantor understands and agrees that, without limiting any
provision of any other Loan Documents, the breach of any covenant contained in
this Section 6 shall constitute an Event of Default.
7. Entire Agreement/Amendments. This instrument represents the entire
agreement between the parties with respect to the subject matter hereof. The
terms of this Guaranty shall not be waived, altered, modified, amended,
supplemented or terminated in any manner whatsoever except by written instrument
signed by Lender and Guarantor.
8. Successors and Assigns. This Guaranty shall be binding upon
Guarantor, and Guarantor's estate, heirs, personal representatives, successors
and assigns, may not be assigned or delegated by Guarantor and shall inure to
the benefit of Lender and its successors and assigns.
9. Applicable Law and Consent to Jurisdiction. This Guaranty shall be
governed by, and construed in accordance with, the substantive laws of the State
of New York. Guarantor irrevocably (a) agrees that any suit, action or other
legal proceeding arising out of or relating to this Guaranty may be brought in a
court of record in the City and County of New York or in the Courts of the
United States of America located in the Southern District of New York, (b)
consents to the jurisdiction of each such court in any such suit, action or
proceeding and (c) waives any objection which it may have to the laying of venue
of any such suit, action or proceeding in any of such courts and any claim that
any such suit, action or proceeding has been brought in an inconvenient forum.
Guarantor irrevocably consents to the service of any and all process in any such
suit, action or proceeding by service of copies of such process to Guarantor at
its address provided in Section 14 hereof. Nothing in this Section 9, however,
shall affect the right of Lender to serve legal process in any other manner
permitted by law or affect the right of
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Lender to bring any suit, action or proceeding against Guarantor or its property
in the courts of any other jurisdictions.
10. Section Headings. The headings of the sections and paragraphs of
this Guaranty have been inserted for convenience of reference only and shall in
no way define, modify, limit or amplify any of the terms or provisions hereof.
11. Severability. Any provision of this Guaranty which may be
determined by any competent authority to be prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction. To the extent permitted by applicable law, Guarantor hereby
waives any provision of law which renders any provision hereof prohibited or
unenforceable in any respect.
12. WAIVER OF TRIAL BY JURY. GUARANTOR HEREBY WAIVES THE RIGHT OF
TRIAL BY JURY IN ANY LITIGATION, ACTION OR PROCEEDING ARISING HEREUNDER OR IN
CONNECTION THEREWITH.
13. Other Guaranties. The obligations of Guarantor hereunder are
separate and distinct from, and in addition to, the obligations of Guarantor now
or hereafter arising under any other Guaranties, pursuant to which Guarantor has
guaranteed payment and performance of certain other obligations of Borrowers
described therein.
14. Notices. All notices, consents, approvals and requests required
or permitted hereunder (a "Notice") shall be given in writing and shall be
effective for all purposes if either hand delivered with receipt acknowledged,
or by a nationally recognized overnight delivery service (such as Federal
Express), or by certified or registered United States mail, return receipt
requested, postage prepaid, or by facsimile and confirmed by facsimile answer
back, in each case addressed as follows (or to such other address or Person as a
party shall designate from time to time by notice to the other party): If to
Lender: Greenwich Capital Financial Products, Inc., 000 Xxxxxxxxx Xxxx,
Xxxxxxxxx, Xxxxxxxxxxx 00000, Attention: Mortgage Loan Department, Telecopier
(000) 000-0000 and to Greenwich Capital Financial Products, Inc., 000 Xxxxxxxxx
Xxxx, Xxxxxxxxx, Xxxxxxxxxxx 00000, Attention: Legal Department, Telecopier
(000) 000-0000, with a copy to: Xxxx Xxxxxxx LLP, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Xxxxxxx Xxxxxxx, Esq., Telecopier: (000) 000-0000; if to
Guarantor: c/x Xxxxxxxx Hospitality Limited Partnership, 0000 Xxxxxxxxx Xxxxx,
Xxxxxxxx, Xxxxxxxx 00000, Attention: Chief Financial Officer, Telecopier: (443)
259-4999; with a copy to: Xxxxxxxxx, Xxxxxxx & Xxxxx, 000 X. Xxxxxxx Xxxxxx,
Xxxxx 000, Xxxxxxxxx, Xxxxxxxx 00000 Attention: Xxxxx X. Xxxxxxxx, Esq.,
Telecopier: (000) 000-0000. A notice shall be deemed to have been given: in the
case of hand delivery, at the time of delivery; in the case of registered or
certified mail, when delivered or the first attempted delivery on a Business
Day; or in the case of overnight delivery, upon the first attempted delivery on
a Business Day.
15. Guarantor's Receipt of Loan Documents. Guarantor by its execution
hereof acknowledges receipt of true copies of all of the Loan Documents, the
terms and conditions of which are hereby incorporated herein by reference.
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16. Interest; Expenses.
(a) If Guarantor fails to pay in full all or any sums due
hereunder within thirty (30) days of demand by Lender, the amount of such sums
payable by Guarantor to Lender shall bear interest from the date of demand until
paid at the Default Rate in effect from time to time.
(b) Guarantor hereby agrees to pay all reasonable costs, charges
and expenses, including reasonable attorneys' fees and disbursements, that may
be incurred by Lender in enforcing the covenants, agreements, obligations and
liabilities of Guarantor under this Guaranty.
[Signature Page Follows]
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IN WITNESS WHEREOF, Guarantor has executed this Guaranty as of
the date first above written.
XXXXXXXX HOSPITALITY TRUST, INC., a
Virginia corporation
By: /s/ Xxxxxx X. Xxxxxxxxxx
-----------------------------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: President
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