Exhibit 10.39
Conformed copy
SUBSIDIARIES GUARANTY
SUBSIDIARIES GUARANTY, dated as of June 6, 2002 (as amended, modified
or supplemented from time to time, this "Guaranty"), made by each of the
undersigned guarantors (each, a "Guarantor" and, together with any other entity
that becomes a party hereto pursuant to Section 26 hereof, the "Guarantors").
Except as otherwise defined herein, capitalized terms used herein and defined in
the Credit Agreement (as defined below) shall be used herein as therein defined.
W I T N E S S E T H :
WHEREAS, Host Marriott, L.P., a Delaware limited partnership (the
"U.S. Borrower"), each Canadian Revolving Loan Borrower from time to time party
thereto (together with the U.S. Borrower, the "Borrowers"), various lenders from
time to time party thereto (the "Lenders"), and Deutsche Bank Trust Company
Americas, as Administrative Agent (together with any successor administrative
agent, the "Administrative Agent"), have entered into a Credit Agreement, dated
as of June 6, 2002, providing for the making of Loans and other extensions of
credit to the Borrowers as contemplated therein (as amended, modified or
supplemented from time to time, the "Credit Agreement") (the Lenders, the
Administrative Agent and the Collateral Agent are herein called the "Lender
Creditors");
WHEREAS, each Borrower may at any time and from time to time enter
into one or more Interest Rate Protection Agreements or Other Hedging Agreements
each of which by its terms requires the obligations of such Borrower under such
Interest Rate Protection Agreement or Other Hedging Agreement to be guaranteed
pursuant to this Guaranty ("Guaranteed Hedging Agreement") with one or more
Lenders or any affiliate thereof (each such Lender or affiliate, even if the
respective Lender subsequently ceases to be a Lender under the Credit Agreement
for any reason, together with such ▇▇▇▇▇▇'s or affiliate's successors and
assigns, if any, collectively, the "Other Creditors," and together with the
Lender Creditors, are herein called the "Creditors");
WHEREAS, each Guarantor is a direct or an indirect Subsidiary of the
U.S. Borrower;
WHEREAS, it is a condition to the making of Loans and other extensions
of credit under the Credit Agreement that each Guarantor shall have executed and
delivered this Guaranty; and
WHEREAS, each Guarantor will obtain benefits from the incurrence of
Loans by, and other extensions of credit to, the Borrowers under the Credit
Agreement and the entering into by the U.S. Borrower of the Guaranteed Hedging
Agreements referred to above and, accordingly, desires to execute this Guaranty
in order to satisfy the conditions described in the preceding paragraph;
NOW, THEREFORE, in consideration of the foregoing and other benefits
accruing to each Guarantor, the receipt and sufficiency of which are hereby
acknowledged, each
Guarantor hereby makes the following representations and warranties to the
Creditors and hereby covenants and agrees with each Creditor as follows:
1. Each Guarantor, jointly and severally, absolutely, irrevocably and
unconditionally guarantees: (i) to the Lender Creditors the full and prompt
payment when due (whether at the stated maturity, by acceleration or otherwise)
of (x) the principal of and interest on the Notes issued by, and the Loans made
to, each Borrower under the Credit Agreement (including the Term Loans and
Revolving Loans) and the reimbursement obligations in respect of all Letters of
Credit and (y) all other obligations (including obligations which, but for the
automatic stay under Section 362(a) of the Bankruptcy Code, would become due)
and liabilities owing by the Borrowers to the Lender Creditors under the Credit
Agreement and each other Credit Document to which any of the Borrowers is a
party (including, without limitation, indemnities, Fees and interest thereon),
whether now existing or hereafter incurred under, arising out of or in
connection with the Credit Agreement and each such other Credit Document and the
due performance and compliance by the Borrowers with all of the terms,
conditions and agreements contained in the Credit Agreement and in each such
other Credit Document (all such principal, interest, liabilities and obligations
being herein collectively called the "Credit Agreement Obligations"); and (ii)
to each Other Creditor, the full and prompt payment when due (whether at the
stated maturity, by acceleration or otherwise) of all obligations (including
obligations which, but for the automatic stay under Section 362(a) of the
Bankruptcy Code, would become due) and liabilities owing by the Borrower under
any Guaranteed Hedging Agreement, whether now in existence or hereafter arising,
and the due performance and compliance by the Borrower with all of the terms,
conditions and agreements contained in the Guaranteed Hedging Agreements (all
such obligations and liabilities being herein collectively called the "Other
Obligations" and, together with the Credit Agreement Obligations, are herein
collectively called the "Guaranteed Obligations"). Each Guarantor understands,
agrees and confirms that the Creditors may enforce this Guaranty up to the full
amount of the Guaranteed Obligations against each Guarantor without proceeding
against any other Guarantor, against any Borrower, against any security for the
Guaranteed Obligations, or under any other guaranty covering all or a portion of
the Guaranteed Obligations.
2. Additionally, each Guarantor, jointly and severally, absolutely,
unconditionally and irrevocably, guarantees the payment of any and all
Guaranteed Obligations to the Creditors whether or not due or payable by the
Borrowers upon the occurrence in respect of any of the Borrowers of any of the
events specified in Section 12.05 of the Credit Agreement, and absolutely,
unconditionally and irrevocably, jointly and severally, promises to pay such
Guaranteed Obligations to the Creditors, or order, on demand, in lawful money of
the United States or in such other currency as may be required by the Credit
Agreement. This Guaranty shall constitute a guaranty of payment, and not of
collection.
3. The liability of each Guarantor hereunder is exclusive and
independent of any security for or other guaranty of the indebtedness of the
Borrowers, whether executed by such Guarantor, any other Guarantor, any other
guarantor or any other party, and the liability of each Guarantor hereunder
shall not be affected or impaired by any circumstance or occurrence whatsoever,
including, without limitation: (a) any direction as to application of payment by
the Borrowers or by any other party, (b) any other continuing or other guaranty,
undertaking or maximum liability of a guarantor or of any other party as to the
indebtedness of the Borrowers,
-2-
(c) any payment on or in reduction of any such other guaranty or undertaking
except to the extent that any such payment or reduction results in the actual
permanent reduction of the Guaranteed Obligations, (d) any dissolution,
termination or change in personnel by any Borrower, (e) any payment made to any
Creditor on the indebtedness which any Creditor repays any Borrower pursuant to
court order in any bankruptcy, reorganization, arrangement, moratorium or other
debtor relief proceeding, or otherwise, and each Guarantor waives any right to
the deferral or modification of its obligations hereunder by reason of any such
proceeding, (f) any action or inaction by the Creditors as contemplated in
Section 6 hereof, or (g) any invalidity, irregularity or unenforceability of all
or part of the Guaranteed Obligations or of any security therefor.
4. The obligations of each Guarantor hereunder are independent of the
obligations of any other Guarantor, any other guarantor or any Borrower, and a
separate action or actions may be brought and prosecuted against each Guarantor
whether or not action is brought against any other Guarantor, any other
guarantor or any Borrower and whether or not any other Guarantor, any other
guarantor or any Borrower be joined in any such action or actions. Each
Guarantor waives, to the fullest extent permitted by law, the benefit of any
statute of limitations affecting its liability hereunder or the enforcement
thereof. Any payment by a Borrower or other circumstance which operates to toll
any statute of limitations as to such Borrower shall operate to toll the statute
of limitations as to each Guarantor.
5. Each Guarantor hereby waives notice of acceptance of this Guaranty
and notice of any liability to which it may apply, and waives promptness,
diligence, presentment, demand of payment, protest, notice of dishonor or
nonpayment of any such liabilities, suit or taking of other action by the
Administrative Agent or any other Creditor against, and any other notice to, any
party liable thereon (including such Guarantor, any other guarantor or any
Borrower).
6. Any Creditor may at any time and from time to time without the
consent of, or notice to, any Guarantor, without incurring responsibility to
such Guarantor, and without impairing or releasing the obligations of such
Guarantor hereunder, upon or without any terms or conditions and in whole or in
part:
(a) change the manner, place or terms of payment of, and/or change or
extend the time of payment of, renew or alter, any of the Guaranteed Obligations
(including any increase or decrease in the rate of interest thereon), any
security therefor, or any liability incurred directly or indirectly in respect
thereof, and the guaranty herein made shall apply to the Guaranteed Obligations
as so changed, extended, renewed or altered;
(b) take and hold security for the payment of the Guaranteed
Obligations and sell, exchange, release, surrender, impair, realize upon or
otherwise deal with in any manner and in any order any property by whomsoever at
any time pledged or mortgaged to secure, or howsoever securing, the Guaranteed
Obligations or any liabilities (including any of those hereunder) incurred
directly or indirectly in respect thereof or hereof, and/or any offset
thereagainst, and/or release any Person liable for all or any portion of the
Guaranteed Obligations;
-3-
(c) act or fail to act in any manner referred to in this Guaranty
which may deprive such Guarantor of its right to subrogation against the
Borrowers to recover full indemnity for any payments made pursuant to this
Guaranty; and/or
(d) take any other action which would, under otherwise applicable
principles of common law, give rise to a legal or equitable discharge of such
Guarantor from it liabilities under this Guaranty.
7. No invalidity, irregularity or unenforceability of all or any part
of the Guaranteed Obligations or of any security therefor shall affect, impair
or be a defense to this Guaranty, and this Guaranty shall be primary, absolute,
irrevocable and unconditional notwithstanding the occurrence of any event or the
existence of any other circumstances which might constitute a legal or equitable
discharge of a surety or guarantor except indefeasible payment in full of the
Guaranteed Obligations.
8. This Guaranty is a continuing one and all liabilities to which it
applies or may apply under the terms hereof shall be conclusively presumed to
have been created in reliance hereon. No failure or delay on the part of any
Creditor in exercising any right, power or privilege hereunder shall operate as
a waiver thereof; nor shall any single or partial exercise of any right, power
or privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies herein
expressly specified are cumulative and not exclusive of any rights or remedies
which any Creditor would otherwise have. No notice to or demand on any Guarantor
in any case shall entitle such Guarantor to any other or further notice or
demand in similar or other circumstances or constitute a waiver of the rights of
any Creditor to any other or further action in any circumstances without notice
or demand. It is not necessary for any Creditor to inquire into the capacity or
powers of the Borrowers or the officers, directors, partners or agents acting or
purporting to act on its behalf, and any indebtedness made or created in
reliance upon the professed exercise of such powers shall be guaranteed
hereunder.
9. Any indebtedness of any Borrower now or hereafter held by any
Guarantor is hereby subordinated to the indebtedness of such Borrower to the
Creditors; and such indebtedness of such Borrower to any Guarantor, if the
Administrative Agent, after an Event of Default has occurred, so requests at a
time when any Guaranteed Obligations are outstanding, shall be collected,
enforced and received by such Guarantor as trustee for the Creditors and be paid
over to the Creditors on account of the indebtedness of such Borrower to the
Creditors, but without affecting or impairing in any manner the liability of
such Guarantor under the other provisions of this Guaranty. Prior to the
transfer by any Guarantor of any note or negotiable instrument evidencing any
indebtedness of a Borrower to such Guarantor, such Guarantor shall mark such
note or negotiable instrument with a legend that the same is subject to this
subordination. Without limiting the generality of the foregoing, each Guarantor
hereby agrees with the Creditors that it will not exercise any right of
subrogation which it may at any time otherwise have as a result of this Guaranty
(whether contractual, under Section 509 of the Bankruptcy Code or otherwise)
until all Guaranteed Obligations have been paid in full in cash (it being
understood that each Guarantor is not waiving any right of subrogation that it
may otherwise have but is only waiving the exercise thereof as provided above).
-4-
10. (a) Each Guarantor waives any right (except as shall be required
by applicable statute and cannot be waived) to require the Creditors to: (i)
proceed against the Borrowers, any other Guarantor, any other guarantor of the
Guaranteed Obligations or any other party; (ii) proceed against or exhaust any
security held from the Borrowers, any other Guarantor, any other guarantor of
the Guaranteed Obligations or any other party; or (iii) pursue any other remedy
in the Creditors' power whatsoever. Each Guarantor waives any defense based on
or arising out of any defense of the Borrower, such Guarantor, any other
Guarantor, any other guarantor of the Guaranteed Obligations or any other party
other than payment in full of the Guaranteed Obligations, including, without
limitation, any defense based on or arising out of the disability of the
Borrowers, such Guarantor, any other Guarantor, any other guarantor of the
Guaranteed Obligations or any other party, or the unenforceability of the
Guaranteed Obligations or any part thereof from any cause, or the cessation from
any cause of the liability of the Borrowers other than payment in full of the
Guaranteed Obligations. The Creditors may, at their election, foreclose on any
security held by the Administrative Agent, the Collateral Agent or the other
Creditors by one or more judicial or nonjudicial sales or exercise any other
right or remedy the Creditors may have against the Borrowers or any other party,
or any security, without affecting or impairing in any way the liability of any
Guarantor hereunder except to the extent the Guaranteed Obligations have been
paid in full. Each Guarantor waives any defense arising out of any such election
by the Creditors, even though such election operates to impair or extinguish any
right of reimbursement or subrogation or other right or remedy of such Guarantor
against the Borrowers or any other party or any security.
(b) Each Guarantor waives all presentments, demands for performance,
protests and notices, including, without limitation, notices of nonperformance,
notices of protest, notices of dishonor, notices of acceptance of this Guaranty,
and notices of the existence, creation or incurring of new or additional
indebtedness. Each Guarantor assumes all responsibility for being and keeping
itself informed of each Borrower's financial condition and assets, and of all
other circumstances bearing upon the risk of nonpayment of the Guaranteed
Obligations and the nature, scope and extent of the risks which such Guarantor
assumes and incurs hereunder, and agrees that the Creditors shall have no duty
to advise any Guarantor of information known to any of them regarding such
circumstances or risks.
11. In order to induce the Lender Creditors to enter into the Credit
Agreement and to make the Loans pursuant to the Credit Agreement, and to induce
the Other Creditors to enter into the Guaranteed Hedging Agreements, each
Guarantor represents, warrants and covenants that:
(a) Status. Such Guarantor (i) is a duly organized and validly
existing corporation, partnership, trust or limited liability company, as the
case may be, in good standing (if applicable) under the laws of the jurisdiction
of its organization, (ii) has the corporate, partnership, trust or limited
liability company power and authority, as the case may be, to own or lease its
property and assets and to transact the business in which it is engaged and
presently proposes to engage and (iii) is duly qualified and is authorized to do
business and is in good standing in each jurisdiction where the conduct of its
business requires such qualification, except for failures to be so qualified
which, individually or in the aggregate, could not reasonably be expected to
have a Material Adverse Effect.
-5-
(b) Power and Authority. Such Guarantor has the corporate,
partnership, trust or limited liability company power and authority, as the case
may be, to execute, deliver and perform the terms and provisions of this
Guaranty and each other Credit Document to which it is a party and has taken all
necessary corporate, partnership, trust or limited liability company action, as
the case may be, to authorize the execution, delivery and performance by it of
each such Credit Document. Such Guarantor has duly executed and delivered this
Guaranty and each other Credit Document to which it is a party and each such
Credit Document constitutes the legal, valid and binding obligation of such
Guarantor enforceable in accordance with its terms, except to the extent that
the enforceability hereof and thereof may be limited by applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium or other similar
laws affecting creditors' rights generally and by equitable principles
(regardless of whether enforcement is sought in equity or at law).
(c) No Violation. Neither the execution, delivery or performance by
such Guarantor of this Guaranty or any other Credit Document to which it is a
party, nor compliance by it with the terms and provisions hereof and thereof (i)
will contravene any applicable provision of any law, statute, rule or
regulation, or any order, writ, injunction or decree of any court or
governmental instrumentality, (ii) will conflict or be inconsistent with or
result in any breach of any of the terms, covenants, conditions or provisions
of, or constitute a default under, or result in the creation or imposition of
(or the obligation to create or impose) any Lien (except pursuant to the Pledge
and Security Agreement) upon any of the property or assets of such Guarantor or
any of its Subsidiaries pursuant to the terms of, any indenture, mortgage, deed
of trust, credit agreement or loan agreement or any other material agreement,
contract or instrument to which such Guarantor or any of its Subsidiaries is a
party or by which it or any of its property or assets is bound or to which it
may be subject except for violations and defaults that may arise under contracts
of such Guarantor otherwise permitted under the Credit Agreement as a result of
the sale of, or foreclosure of a lien upon, the Securities (as defined in the
Pledge and Security Agreement) of Subsidiaries pledged under the Pledge and
Security Agreement to the extent that the prior consent of other parties to such
contracts have not been obtained or other actions specified in such contracts
have not been taken in connection with any such sale or foreclosure, or (iii)
will violate any provision of the certificate of incorporation, certificate of
partnership, partnership agreement, limited liability company agreement or
by-laws of such Guarantor or any of its Subsidiaries.
(d) Governmental Approvals. No order, consent, approval, license,
authorization or validation of, or filing, recording or registration with
(except as have been obtained or made), or exemption by, any governmental or
public body or authority, or any subdivision thereof, is required to authorize,
or is required in connection with, (i) the execution, delivery and performance
of this Guaranty or any other Credit Document to which such Guarantor is a party
or (ii) the legality, validity, binding effect or enforceability of this
Guaranty or any other Credit Document to which such Guarantor is a party.
(e) Litigation. There are no actions, suits or proceedings pending or,
to the best knowledge of such Guarantor, threatened (i) which purport to affect
the legality, validity or enforceability of this Guaranty or (ii) that could
reasonably be expected to have a Material Adverse Effect.
-6-
12. Each Guarantor covenants and agrees that on and after the
Effective Date and until the Total Revolving Loan Commitment has terminated and
when no Note remains outstanding and all Guaranteed Obligations have been paid
in full, such Guarantor shall take, or will refrain from taking, as the case may
be, all actions that are necessary to be taken or not taken so that no violation
of any provision, covenant or agreement contained in Section 10 or 11 of the
Credit Agreement occurs, and so that no Default or Event of Default is caused by
the actions of such Guarantor or any of its Subsidiaries.
13. The Guarantors hereby jointly and severally agree to pay all
out-of-pocket costs and expenses of each Creditor in connection with the
enforcement of this Guaranty (including reasonable legal fees and expenses) and
the out-of-pocket costs and expenses of the Administrative Agent in connection
with any amendment, waiver or consent relating hereto (including reasonable
legal fees and expenses).
14. This Guaranty shall be binding upon each Guarantor and its
successors and assigns and shall inure to the benefit of the Creditors and their
successors and assigns; provided, however, that, except as otherwise permitted
under the Credit Agreement, no Guarantor may assign or transfer any of its
rights or obligations hereunder without the prior written consent of the
Required Lenders (and any such attempted assignment or transfer without such
consent shall be null and void).
15. Neither this Guaranty nor any provision hereof may be changed,
waived, discharged or terminated except with the written consent of each
Guarantor directly affected thereby and with the written consent of (i) the
Required Lenders, or, to the extent required by Section 14.11 of the Credit
Agreement, each of the Lenders under the Credit Agreement, as the case may be,
so long as any Credit Agreement Obligations remain outstanding and (ii) in any
situation not covered by preceding clause (i), to the extent expressly required
under any Guaranteed Hedging Agreement, the holders of a majority of the
outstanding principal amount of the Other Obligations; provided, that any
change, waiver, modification or variance affecting the rights and benefits of a
single Class (as defined below) of Creditors (and not all Creditors in a like or
similar manner) shall require the written consent of the Requisite Creditors (as
defined below) of such Class of Creditors (it being understood that the addition
or release of any Guarantor hereunder shall not constitute a change, waiver,
discharge or termination affecting any Guarantor other than the Guarantor so
added or released). For the purpose of this Guaranty, the term "Class" shall
mean each class of Creditors, i.e., whether (x) the Lender Creditors as holders
of the Credit Agreement Obligations or (y) the Other Creditors as the holders of
the Other Obligations. For the purpose of this Guaranty, the term "Requisite
Creditors" of any Class shall mean (x) with respect to the Credit Agreement
Obligations, the Required Lenders, or, to the extent required by Section 14.11
of the Credit Agreement, each of the Lenders, and (y) with respect to the Other
Obligations, the holders of at least a majority of all obligations outstanding
from time to time under the respective Guaranteed Hedging Agreements.
16. Each Guarantor acknowledges that an executed (or conformed) copy
of each of the Credit Documents has been made available to such Guarantor and
such Guarantor is familiar with the contents thereof.
-7-
17. In addition to any rights now or hereafter granted under
applicable law (including, without limitation, Section 151 of the New York
Debtor and Creditor Law) and not by way of limitation of any such rights, upon
the occurrence and during the continuance of an Event of Default (such term to
mean and include any "Event of Default" as defined in the Credit Agreement or
any payment default under any Guaranteed Hedging Agreement continuing after any
applicable grace period), each Creditor is hereby authorized at any time or from
time to time, without notice to any Guarantor or to any other Person, any such
notice being expressly waived, to set off and to appropriate and apply any and
all deposits (general or special) and any other indebtedness at any time held or
owing by such Creditor to or for the credit or the account of such Guarantor,
against and on account of the obligations and liabilities of such Guarantor to
such Creditor under this Guaranty, irrespective of whether or not such Creditor
shall have made any demand hereunder and although said obligations, liabilities,
deposits or claims, or any of them, shall be contingent or unmatured.
18. All notices, requests, demands or other communications pursuant
hereto shall be deemed to have been duly given or made when delivered to the
Person to which such notice, request, demand or other communication is required
or permitted to be given or made under this Guaranty, addressed to such party at
(i) in the case of any Lender Creditor, as provided in the Credit Agreement,
(ii) in the case of any Guarantor, at the address of the U.S. Borrower specified
in the Credit Agreement, and (iii) in the case of any Other Creditor, at such
address as such Other Creditor shall have specified in writing to the
Guarantors; or in any case at such other address as any of the Persons listed
above may hereafter notify the others in writing.
19. If claim is ever made upon any Creditor for repayment or recovery
of any amount or amounts received in payment or on account of any of the
Guaranteed Obligations and any of the aforesaid payees repays all or part of
said amount by reason of (i) any judgment, decree or order of any court or
administrative body having jurisdiction over such payee or any of its property
or (ii) any settlement or compromise of any such claim effected by such payee
with any such claimant (including a Borrower), then and in such event each
Guarantor agrees that any such judgment, decree, order, settlement or compromise
shall be binding upon such Guarantor, notwithstanding any revocation hereof or
other instrument evidencing any liability of a Borrower, and such Guarantor
shall be and remain liable to the aforesaid payees hereunder for the amount so
repaid or recovered to the same extent as if such amount had never originally
been received by any such payee.
20. (A) This Guaranty shall be binding upon the successors and assigns
of each Guarantor (although no Guarantor may assign its rights and obligations
hereunder except in accordance with Section 14 hereof) and shall inure to the
benefit of and be enforceable by the Administrative Agent and the other
Creditors and their respective successors and assigns. THIS GUARANTY AND THE
RIGHTS AND OBLIGATIONS OF THE CREDITORS AND OF THE UNDERSIGNED HEREUNDER SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW
YORK. Any legal action or proceeding with respect to this Guaranty or any other
Credit Document to which any Guarantor is a party may be brought in the courts
of the State of New York or of the United States of America for the Southern
District of New York, in each case which are located in the City of New York,
and, by execution and delivery of this Guaranty, each Guarantor hereby
irrevocably accepts for itself and in respect of its property, generally and
unconditionally, the
-8-
jurisdiction of the aforesaid courts. Each Guarantor hereby further irrevocably
waives any claim that any such courts lack jurisdiction over such Guarantor, and
agrees not to plead or claim in any legal action or proceeding with respect to
this Guaranty or any other Credit Document to which such Guarantor is a party
brought in any of the aforesaid courts that any such court lacks jurisdiction
over such Guarantor. Each Guarantor further irrevocably consents to the service
of process out of any of the aforementioned courts in any such action or
proceeding by the mailing of copies thereof by registered or certified mail,
postage prepaid, to each Guarantor at its address set forth opposite its
signature below, such service to become effective 30 days after such mailing.
Each Guarantor hereby irrevocably waives any objection to such service of
process and further irrevocably waives and agrees not to plead or claim in any
action or proceeding commenced hereunder or under any other Credit Document to
which such Guarantor is a party that service of process was in any way invalid
or ineffective. Nothing herein shall affect the right of any of the Creditors to
serve process in any other manner permitted by law or to commence legal
proceedings or otherwise proceed against each Guarantor in any other
jurisdiction.
(A) Each Guarantor hereby irrevocably waives any objection which it
may now or hereafter have to the laying of venue of any of the aforesaid actions
or proceedings arising out of or in connection with this Guaranty or any other
Credit Document to which such Guarantor is a party brought in the courts
referred to in clause (a) above and hereby further irrevocably waives and agrees
not to plead or claim in any such court that such action or proceeding brought
in any such court has been brought in an inconvenient forum.
(B) WAIVER OF TRIAL BY JURY. EACH GUARANTOR AND EACH CREDITOR (BY ITS
ACCEPTANCE OF THE BENEFITS OF THIS GUARANTY) HEREBY IRREVOCABLY WAIVES ALL
RIGHTS TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT
OF OR RELATING TO THIS GUARANTY, THE OTHER CREDIT DOCUMENTS TO WHICH SUCH
GUARANTOR IS A PARTY OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
21. In the event that all of the capital stock of one or more
Guarantors is sold or otherwise disposed of or liquidated in compliance with the
requirements of the Credit Agreement (or such sale or other disposition has been
approved in writing by the Required Lenders (or, to the extent required by the
Credit Agreement, each of the Lenders)) and the proceeds of such sale,
disposition or liquidation are applied in accordance with (and to the extent
required by) the provisions of the Credit Agreement, to the extent applicable,
or in the circumstances set forth in Section 10.15(a)(2) of the Credit Agreement
with respect to a Guarantor or in circumstances where the Collateral is released
pursuant to Section 14.20 of the Credit Agreement, in any such case such
Guarantor shall be released from this Guaranty and this Guaranty shall, as to
each such Guarantor or Guarantors, terminate, and have no further force or
effect (it being understood and agreed that the sale or other disposition of one
or more Persons that own, directly or indirectly, all of the capital stock,
partnership interests or limited liability company interests of any Guarantor
shall be deemed to be a sale of such Guarantor for the purposes of this Section
21) and the Administrative Agent, at the request and expense of the respective
Guarantor, will promptly execute and deliver to such Guarantor a proper
instrument or instruments acknowledging such release.
-9-
22. Each Guarantor hereby confirms that it is its intention that this
Guaranty not constitute a fraudulent transfer or conveyance for purposes of any
bankruptcy, insolvency or similar law, the Uniform Fraudulent Conveyance Act or
any similar Federal, state or foreign law. To effectuate the foregoing
intention, if enforcement of the liability of any Guarantor under this Guaranty
for the full amount of the Guaranteed Obligations would be an unlawful or
voidable transfer under any applicable fraudulent conveyance or fraudulent
transfer law or any comparable law, then the liability of such Guarantor
hereunder shall be reduced to the maximum amount for which such liability may
then be enforced without giving rise to an unlawful or voidable transfer under
any such law.
23. To the extent that any Guarantor shall be required hereunder to
pay a portion of the Guaranteed Obligations which shall exceed the greater of
(i) the amount of the economic benefit actually received by such Guarantor from
the incurrence of the Loans under the Credit Agreement and the entering into of
Guaranteed Hedging Agreements and (ii) the amount which such Guarantor would
otherwise have paid if such Guarantor had paid the aggregate amount of the
Guaranteed Obligations (excluding the amount thereof repaid by the Borrower and
the other Guarantors) in the same proportion as such Guarantor's net worth at
the date enforcement hereunder is sought bears to the aggregate net worth of all
the Guarantors at the date enforcement hereunder is sought (the "Contribution
Percentage"), then such Guarantor shall have a right of contribution against
each other Guarantor who has made payments in respect of the Guaranteed
Obligations to and including the date enforcement hereunder is sought in an
aggregate amount less than such other Guarantor's Contribution Percentage of the
aggregate payments made to and including the date enforcement hereunder is
sought by all Guarantors in respect of the Guaranteed Obligations; provided,
that no Guarantor may take any action to enforce such right until the Guaranteed
Obligations have been indefeasibly paid in full and the Total Revolving Loan
Commitment has been terminated, it being expressly recognized and agreed by all
parties hereto that any Guarantor's right of contribution arising pursuant to
this Section 23 against any other Guarantor shall be expressly junior and
subordinate to such other Guarantor's obligations and liabilities in respect of
the Guaranteed Obligations and any other obligations owing under this Guaranty.
All parties hereto recognize and agree that, except for any right of
contribution arising pursuant to this Section 23, each Guarantor who makes any
payment in respect of the Guaranteed Obligations shall have no right of
contribution or subrogation against any other Guarantor in respect of such
payment. Each of the Guarantors recognizes and acknowledges that the rights to
contribution arising hereunder shall constitute an asset in favor of the party
entitled to such contribution. In this connection, each Guarantor has the right
to waive its contribution right against any Guarantor to the extent that after
giving effect to such waiver such Guarantor would remain solvent, in the
determination of the Required Lenders.
24. This Guaranty may be executed in any number of counterparts and by
the different parties hereto on separate counterparts, each of which when so
executed and delivered shall be an original, but all of which shall together
constitute one and the same instrument. A set of counterparts executed by all
the parties hereto shall be lodged with the Guarantors and the Administrative
Agent.
25. All payments made by any Guarantor hereunder will be made without
setoff, counterclaim or other defense.
-10-
26. It is understood and agreed that any Subsidiary of the U.S.
Borrower that is required to execute a counterpart of this Guaranty pursuant to
the Credit Agreement shall automatically become a Guarantor hereunder by
executing a counterpart hereof and delivering the same to the Administrative
Agent or by executing and delivering a supplement hereto in the form of Annex 1
hereto.
27. Any provision of this Guaranty held to be invalid, illegal or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such invalidity, illegality or unenforceability without
affecting the validity, legality and enforceability of the remaining provisions
hereof; and the invalidity of a particular provision in a particular
jurisdiction shall not invalidate such provision in any other jurisdiction.
* * *
-11-
IN WITNESS WHEREOF, each Guarantor has caused this Guaranty
to be executed and delivered as of the date first above written.
THE GUARANTORS LISTED ON SCHEDULE 1 HERETO
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------------
By: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
Signature Page to Subsidiaries Guaranty
Accepted and Agreed to:
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Collateral Agent and Pledgee
By: /s/ ▇▇▇▇▇ ▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇
Title: Vice President
Signature Page to Subsidiaries Guaranty
SCHEDULE 1 TO SUBSIDIARIES GUARANTY
GUARANTORS:
AIRPORT HOTELS LLC
AMELIATEL
By: HMC ▇▇▇▇▇▇ I LLC and HMC ▇▇▇▇▇▇ ▇▇ LLC
its General Partners
CHESAPEAKE FINANCIAL SERVICES LLC
CHESAPEAKE HOTEL LIMITED PARTNERSHIP
By: HMC PLP LLC
its General Partner
CITY CENTER HOTEL LIMITED PARTNERSHIP
By: HOST LA JOLLA LLC
its General Partner
CITY CENTER INTERSTATE PARTNERSHIP LLC
▇▇▇▇▇▇ LLC
▇▇▇▇▇▇▇'▇ ICE CREAM PARLOUR RESTAURANTS LLC
FERNWOOD HOTEL LLC
HMC ▇▇▇▇▇▇ I LLC
HMC ▇▇▇▇▇▇ ▇▇ LLC
HMC ATLANTA LLC
HMC BCR HOLDINGS LLC
HMC BURLINGAME LLC
HMC CALIFORNIA LEASING LLC
HMC CAPITAL LLC
HMC CAPITAL RESOURCES LLC
HMC CHICAGO LLC
HMC DESERT LLC
HMC DIVERSIFIED LLC
HMC EAST SIDE II LLC
HMC GATEWAY LLC
HMC GEORGIA LLC
HMC GRAND LLC
HMC HANOVER LLC
HMC HARTFORD LLC
HMC HEADHOUSE FUNDING LLC
HMC HOST RESTAURANTS LLC
HMC HOTEL DEVELOPMENT LLC
HMC HPP LLC
HMC HT LLC
HMC IHP HOLDINGS LLC
HMC JWDC GP LLC
HMC JWDC LLC
HMC MANHATTAN BEACH LLC
HMC MARKET STREET LLC
HMC MEXPARK LLC
HMC NGL LLC
HMC OLS I L.P.,
By: HMC OLS I LLC
its General Partner
HMC OLS I LLC
HMC OLS II L.P.,
By: HMC OLS I LLC
its General Partner
HMC OP BN LLC
HMC PACIFIC GATEWAY LLC
HMC PALM DESERT LLC
HMC PARK RIDGE LLC
HMC PARTNERSHIP HOLDINGS LLC
HMC PLP LLC
HMC ▇▇▇▇▇▇▇ LLC
HMC POTOMAC LLC
HMC PROPERTIES I LLC
HMC PROPERTIES II LLC
HMC PROPERTY LEASING LLC
HMC RETIREMENT PROPERTIES, L.P.
By: ▇▇▇▇▇▇ LLC
its General Partner
HMC SBM TWO LLC
HMC SEATTLE LLC
HMC SFO LLC
HMC SUITES LIMITED PARTNERSHIP,
By: HMC SUITES LLC
its General Partner
HMC SUITES LLC
HMC SWISS HOLDINGS LLC
HMC WATERFORD LLC
HMC/INTERSTATE MANHATTAN BEACH, L.P.
By: HMC MANHATTAN BEACH LLC
its General Partner
HMC/INTERSTATE ONTARIO, L.P.
By: HMC PARTNERSHIP HOLDINGS LLC
its General Partner
HMC/INTERSTATE WATERFORD, L.P.
By: HMC WATERFORD LLC
its General Partner
HMH GENERAL PARTNER HOLDINGS LLC
HMH MARINA LLC
HMH NORFOLK LLC
HMH NORFOLK, L.P.
By: HMH NORFOLK LLC
its General Partner
HMH PENTAGON LLC
HMH RESTAURANTS LLC
HMH RIVERS LLC
HMH RIVERS, L.P.
By: HMH RIVERS LLC
its General Partner
HMH WTC LLC
HMP CAPITAL VENTURES LLC
HMP FINANCIAL SERVICES LLC
HMT LESSEE PARENT LLC
HOST/INTERSTATE PARTNERSHIP, L.P.
By: CITY CENTER INTERSTATE PARTNERSHIP LLC
its General Partner
HOST LA JOLLA LLC
HOST OF BOSTON, LTD.
By: AIRPORT HOTELS LLC
its General Partner
HOST OF HOUSTON 1979,
By: AIRPORT HOTELS LLC and HOST OF HOUSTON, LTD. (By: AIRPORT HOTELS LLC, its
General Partner),
its General Partners
HOST OF HOUSTON, LTD.
By: AIRPORT HOTELS LLC
its General Partner
HOST PARK RIDGE LLC
IVY STREET LLC
IVY STREET HOPEWELL LLC
MARKET STREET HOST LLC
MDSM FINANCE LLC
MFR OF ILLINOIS LLC
MFR OF VERMONT LLC
MFR OF WISCONSIN LLC
NEW MARKET STREET LP
By: HMC MARKET STREET LLC
its General Partner
PHILADELPHIA AIRPORT HOTEL LLC
PM FINANCIAL LLC
PM FINANCIAL LP
By: PM FINANCIAL LLC
its General Partner
PRM LLC
ROCKLEDGE HOTEL LLC
S.D. HOTELS LLC
SANTA ▇▇▇▇▇ HMC LLC
TIMES SQUARE GP LLC
TIMES SQUARE LLC
WELLSFORD-PARK RIDGE HMC HOTEL LIMITED PARTNERSHIP,
By: HOST PARK RIDGE LLC
its General Partner
YBG ASSOCIATES LLC
ANNEX 1 TO SUBSIDIARIES GUARANTY
FORM OF SUBSIDIARIES GUARANTY SUPPLEMENT
SUPPLEMENT NO. dated as of [___________] (this "Supplement"), to the
Subsidiaries Guaranty, dated as of ____________, ____ (the "Guaranty"), made by
the Guarantors party thereto (immediately before giving effect to this
Supplement) and accepted by Deutsche Bank Trust Company Americas as Collateral
Agent and Pledgee (each capitalized term used but not defined having the meaning
given it in the Guaranty) for the benefit of the Creditors.
A. Reference is made to the Credit Agreement, dated as of June 6, 2002
(as amended or modified from time to time, the "Credit Agreement"), among Host
Marriott, L.P. (the "U.S. Borrower"), each Canadian Revolving Loan Borrower from
time to time party thereto, the lenders from time to time party thereto (the
"Lenders"), and Deutsche Bank Trust Company Americas, as Administrative Agent.
B. The Guarantors have entered into the Guaranty in order to induce
the Lenders to make Loans and to issue, and participate in, Letters of Credit
pursuant to, and upon the terms and subject to the conditions specified in, the
Credit Agreement. Pursuant to Section 10.15 of the Credit Agreement, certain
Subsidiaries of the U.S. Borrower may, after the date of the Guaranty, be
required to enter into the Guaranty as a Guarantor. Section 26 of the Guaranty
provides that such additional Subsidiaries may become Guarantors under the
Guaranty by execution and delivery of an instrument in the form of this
Supplement. The undersigned (the "New Subsidiary Guarantor") is a Subsidiary of
the U.S. Borrower and is executing this Supplement in accordance with the
requirements of the Credit Agreement to become a Guarantor under the Guaranty in
order to induce the Lenders to make additional Loans and to issue, and
participate in, additional Letters of Credit and as consideration for Loans
previously made and Letters of Credit previously issued.
Accordingly, the Collateral Agent and the New Subsidiary Guarantor
agree as follows:
SECTION 1. In accordance with Section 26 of the Guaranty, the New
Subsidiary Guarantor by its signature below becomes a Guarantor under the
Guaranty with the same force and effect as if originally named therein as a
Guarantor and the New Subsidiary Guarantor hereby agrees to all the terms and
provisions of the Guaranty applicable to it as a Guarantor thereunder. Each
reference to a "Guarantor" in the Guaranty shall be deemed to include the New
Subsidiary Guarantor. The Guaranty is hereby incorporated herein by reference.
SECTION 2. The New Subsidiary Guarantor represents and warrants to the
Creditors that (i) this Supplement has been duly authorized, executed and
delivered by it and constitutes its legal, valid and binding obligation,
enforceable against it in accordance with its terms, subject to the effects of
applicable bankruptcy, insolvency or similar laws effecting creditors' rights
generally and equitable principles of general applicability and (ii) the
representations and warranties contained in Section 11 of the Guaranty are true
and correct as of the date hereof as to the New Subsidiary Guarantor.
SECTION 3. This Supplement may be executed in two or more
counterparts, each of which shall constitute an original, but all of which, when
taken together, shall constitute but one instrument. This Supplement shall
become effective when the Administrative Agent shall have received counterparts
of this Supplement that, when taken together, bear the signatures of the New
Subsidiary Guarantor and the Administrative Agent.
SECTION 4. Except as expressly supplemented hereby, the Guaranty shall
remain in full force and effect.
SECTION 5. THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 6. In case any one or more of the provisions contained in this
Supplement should be held invalid, illegal or unenforceable in any respect,
neither party hereto shall be required to comply with such provision for so long
as such provision is held to be invalid, illegal or unenforceable, but the
validity, legality and enforceability of the remaining provisions contained
herein and in the Guaranty shall not in any way be affected or impaired. The
parties hereto shall endeavor in good-faith negotiations to replace the invalid,
illegal or unenforceable provisions with valid provisions the economic effect of
which comes as close as possible to that of the invalid, illegal or
unenforceable provisions.
SECTION 7. All communications and notices hereunder shall be in
writing and given as provided in the Credit Agreement. All communications and
notices hereunder to the New Subsidiary Guarantor shall be given to it at the
address set forth under its signature, with a copy to the U.S. Borrower.
-2-
IN WITNESS WHEREOF, the New Subsidiary Guarantor and the Collateral
Agent have duly executed this Supplement to the Guaranty as of the day and year
first above written.
Address:
[NAME OF NEW GUARANTOR],
as Subsidiary Guarantor
By ________________________________
Name:
Title:
Address: _______________________
_______________________
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Collateral Agent
By ________________________________
Name:
Title:
-3-