Exhibit 10.3
CONTINUING GUARANTY AGREEMENT
THIS CONTINUING GUARANTY AGREEMENT (this "Guaranty") is entered into as
of July 10, 2003, by each of CNL Hospitality Properties, Inc., a Maryland
corporation, CNL Rose GP Corp., a Delaware corporation, and CNL Rose Acquisition
Corp., a Delaware corporation (collectively, "Guarantors" and each individually,
a "Guarantor") in favor of BANK OF AMERICA, N.A., as administrative agent (in
such capacity, "Administrative Agent") for the banks and other financial
institutions ("Lenders") that are parties to the Credit Agreement described
below.
RFS Partnership, L.P., a Tennessee limited partnership ("Operating
Company"), and RFS Financing Partnership, L.P., a Tennessee limited partnership
("Financing;" Operating Company and Financing are each a "Borrower" and
collectively, "Borrowers"), are parties to the Credit Agreement, dated as of the
date of this Agreement (as the same may be amended, supplemented or modified
from time to time, the "Credit Agreement"), among Borrowers, CNL Hospitality
Properties, Inc., Lenders, and Administrative Agent, pursuant to which Lenders
have agreed, among other things, to make Loans to Borrowers; Capitalized terms
not defined herein shall have the meanings assigned to such terms in the Credit
Agreement;
The Borrowers are members of an affiliated group of entities that
includes each Guarantor,
The Borrowers and Guarantors are engaged in related businesses, and
each Guarantor will derive substantial direct and indirect benefit from the
making of the Loans;
It is a condition precedent to the obligations of Lenders to make the
Loans that Guarantors shall execute and deliver this Guaranty in favor of
Administrative Agent for the benefit of Lenders;
NOW THEREFORE, FOR VALUE RECEIVED, the sufficiency of which is hereby
acknowledged, and in consideration of the Loans, any credit and/or financial
accommodation heretofore or hereafter from time to time made or granted to
Borrowers under the Loan Documents by Administrative Agent and Lenders, each of
the undersigned Guarantors hereby jointly and severally furnishes its guaranty
of the Guaranteed Obligations (as hereinafter defined) as follows:
1. GUARANTY. Each of the Guarantors hereby, jointly and severally,
absolutely, irrevocably and unconditionally guarantees, as a guarantee of
payment and not merely as a guarantee of collection, prompt payment when due,
whether at stated maturity, upon acceleration or otherwise, and at all times
thereafter, of any and all existing and future indebtedness and liabilities of
every kind, nature and character, direct or indirect, absolute or contingent,
liquidated or unliquidated, voluntary or involuntary, of Borrowers to
Administrative Agent and Lenders arising under the Credit Agreement and the Loan
Documents and all instruments, agreements and other documents of every kind and
nature now or hereafter executed in connection with any Loan Document (including
all renewals, extensions and modifications thereof and all costs, attorneys'
fees and expenses incurred by the Lender in connection with the collection or
enforcement thereof) (collectively, the "Guaranteed Obligations"). The books and
records of Administrative Agent or any Lender showing the amount of the
Guaranteed Obligations shall be admissible in evidence in any action or
proceeding, and shall be binding upon Guarantor and conclusive for the purpose
of establishing the amount of the Guaranteed Obligations. This Guaranty shall
not be affected by the genuineness, validity, regularity or enforceability of
the Guaranteed Obligations or any instrument or agreement evidencing any
Guaranteed Obligations, or by the existence, validity, enforceability,
perfection, or extent of any collateral therefor, or by any fact or circumstance
relating to the Guaranteed Obligations which might otherwise constitute a
defense to the obligations of any Guarantor under this Guaranty. Notwithstanding
any contrary provision, it is the intention of each Guarantor and Administrative
Agent that the amount of the Guaranteed Obligations guaranteed by each Guarantor
by this Guaranty shall be in, but not in excess of, the maximum amount permitted
by fraudulent conveyance, fraudulent transfer, or similar laws applicable to
each Guarantor. Accordingly, notwithstanding anything to the contrary contained
in this Guaranty or any other agreement or instrument executed in connection
with the payment of any of the Guaranteed Obligations, the amount of the
Guaranteed Obligations guaranteed by each Guarantor by this Guaranty shall be
limited to an aggregate amount equal to the largest amount that would not render
each Guarantor's obligations hereunder subject to avoidance under Section 548 of
the United States Bankruptcy Code or any comparable provision of any applicable
state law.
2. NO SETOFF OR DEDUCTIONS; TAXES. Each Guarantor represents and
warrants that it is incorporated or formed, and resides in, the United States of
America. All payments by each Guarantor hereunder shall be paid in full, without
setoff or counterclaim or any deduction or withholding whatsoever, including,
without limitation, for any and all present and future taxes. If each Guarantor
must make a payment under this Guaranty, each Guarantor represents and warrants
that it will make the payment from one of its U.S. resident offices to
Administrative Agent or each Lender so that no withholding tax is imposed on the
payment. If notwithstanding the foregoing, each Guarantor makes a payment under
this Guaranty to which withholding tax applies, or any taxes (other than taxes
on net income (a) imposed by the country or any subdivision of the country in
which the principal office or actual lending office of Administrative Agent or
any Lender is located and (b) measured by the United States taxable income of
Administrative Agent or any Lender would have received if all payments under or
in respect of this Guaranty were exempt from taxes levied by such Guarantor's
country) are at any time imposed on any payments under or in respect of this
Guaranty including, but not limited to, payments made pursuant to this Paragraph
2, each Guarantor shall pay all such taxes to the relevant authority in
accordance with applicable law such that Administrative Agent or any Lender
receives the sum it would have received had no such deduction or withholding
been made and shall also pay to Administrative Agent or any Lender, on demand,
all additional amounts which Administrative Agent or any Lender specifies as
necessary to preserve the after-tax yield Administrative Agent or such Lender
would have received if such taxes had not been imposed. Each Guarantor shall
promptly provide Administrative Agent or any Lender with an original receipt or
certified copy issued by the relevant authority evidencing the payment of any
such amount required to be deducted or withheld.
3. NO TERMINATION. This Guaranty is a continuing and irrevocable
guaranty of all Guaranteed Obligations now or hereafter existing and shall
remain in full force and effect until all Guaranteed Obligations and any other
amounts payable under this Guaranty are indefeasibly
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paid and performed in full and any commitments of the Lender or facilities
provided by the Lender with respect to the Guaranteed Obligations are
terminated. At Administrative Agent or any Lender's option, all payments under
this Guaranty shall be made to an office of Administrative Agent or any Lender
located in the United States and in Dollars.
4. WAIVER OF NOTICES. Each Guarantor waives notice of the acceptance of
this Guaranty and of the extension or continuation of the Guaranteed Obligations
or any part thereof. Each Guarantor further waives presentment, protest, notice,
dishonor or default, notice of intention to accelerate, notice of acceleration,
demand for payment and any other notices to which each Guarantor might otherwise
be entitled.
5. SUBROGATION. Each Guarantor shall exercise no right of subrogation,
contribution or similar rights with respect to any payments it makes under this
Guaranty until all of the Guaranteed Obligations and any amounts payable under
this Guaranty are indefeasibly paid and performed in full and any commitments of
Lenders or facilities provided by Lenders with respect to the Guaranteed
Obligations are terminated. If any amounts are paid to any Guarantor in
violation of the foregoing limitation, then such amounts shall be held in trust
for the benefit of Lenders and shall forthwith be paid to Lenders to reduce the
amount of the Guaranteed Obligations, whether matured or unmatured.
6. WAIVER OF SURETYSHIP DEFENSES. Each Guarantor agrees that Lenders
may, at any time and from time to time, and without notice to any Guarantor,
make any agreement with Borrowers or with any other person or entity liable on
any of the Guaranteed Obligations or providing collateral as security for the
Guaranteed Obligations, for the extension, renewal, payment, compromise,
discharge or release of the Guaranteed Obligations or any Collateral (in whole
or in part), or for any modification or amendment of the terms thereof or of any
instrument or agreement evidencing the Guaranteed Obligations or the provision
of Collateral Properties, all without in any way impairing, releasing,
discharging or otherwise affecting the obligations of Guarantors under this
Guaranty. Each Guarantor waives any defense arising by reason of any disability
or other defense of Borrowers or any other guarantor, or the cessation from any
cause whatsoever of the liability of Borrowers, or any claim that each
Guarantor's obligations exceed or are more burdensome than those of Borrowers
and waives the benefit of any statute of limitations affecting the liability of
each Guarantor hereunder to the fullest extent permitted by law. Each Guarantor
waives any right to enforce any remedy which Administrative Agent or any Lender
now has or may hereafter have against Borrowers and waives any benefit of and
any right to participate in any security now or hereafter held by Administrative
Agent for the benefit of Lenders. Further, each Guarantor consents to the taking
of, or failure to take, any action which might in any manner or to any extent
vary the risks of each Guarantor under this Guaranty or which, but for this
provision, might operate as a discharge of each Guarantor.
7. EXHAUSTION OF OTHER REMEDIES NOT REQUIRED. The obligations of each
Guarantor hereunder are those of primary obligor, and not merely as surety, and
are independent of the Guaranteed Obligations. Each Guarantor waives diligence
by Administrative Agent or any Lender and action on delinquency in respect of
the Guaranteed Obligations or any part thereof, including, without limitation
any provisions of law requiring Administrative Agent or any Lender to exhaust
any right or remedy or to take any action against Borrowers, any other
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guarantor or any other person, entity or property before enforcing this Guaranty
against each Guarantor.
8. REINSTATEMENT. Notwithstanding anything in this Guaranty to the
contrary, this Guaranty shall continue to be effective or be reinstated, as the
case may be, if at any time any payment of any portion of the Guaranteed
Obligations is revoked, terminated, rescinded or reduced or must otherwise be
restored or returned upon the insolvency, bankruptcy or reorganization of
Borrowers or any other person or entity or otherwise, as if such payment had not
been made and whether or not the Lender is in possession of or has released this
Guaranty and regardless of any prior revocation, rescission, termination or
reduction.
9. SUBORDINATION. Each Guarantor hereby subordinates the payment of all
obligations and indebtedness of Borrowers owing to each Guarantor, whether now
existing or hereafter arising, including but not limited to any Obligation of
Borrowers to any Guarantor as subrogee of Administrative Agent or any Lender or
resulting from each Guarantor's performance under this Guaranty, to the
indefeasible payment in full of all Guaranteed Obligations. If Administrative
Agent or any Lender so requests, any such obligation or indebtedness of
Borrowers to each Guarantor shall be enforced and performance received by each
Guarantor as trustee for Administrative Agent or any Lender and the proceeds
thereof shall be paid over to Administrative Agent or any Larder on account of
the Guaranteed Obligations, but without reducing or affecting in any manner the
liability of each Guarantor under this Guaranty.
10. INFORMATION. Each Guarantor agrees to furnish promptly to
Administrative Agent or any Lender any and all financial or other information
regarding such Guarantor or its property as Administrative Agent or any Lender
may reasonably request in writing.
11. STAY OF ACCELERATION. In the event that acceleration of the time
for payment of any of the Guaranteed Obligations is stayed, upon the insolvency,
bankruptcy or reorganization of Borrowers or any other person or entity, or
otherwise, all such amounts shall nonetheless be payable by each Guarantor
immediately upon demand by Administrative Agent or any Lender.
12. EXPENSES. Each Guarantor shall pay on demand all out-of-pocket
expenses (including reasonable attorneys' fees and expenses and the allocated
cost and disbursements of internal legal counsel) in any way relating to the
enforcement or protection of the rights of Administrative Agent or any Lender
under this Guaranty including any incurred in the preservation, protection or
enforcement of any rights of Administrative Agent or any Lender in any case
commenced by or against any Guarantor under the Bankruptcy Code (Title 11,
United States Code) or any similar or successor statute. The obligations of
Guarantor under the preceding sentence shall survive termination of this
Guaranty.
13. AMENDMENTS. No provision of this Guaranty may be waived, amended,
supplemented or modified, except by a written instrument executed by
Administrative Agent for the benefit of the Lender and each Guarantor.
14. NO WAIVER; ENFORCEABILITY. No failure by Administrative Agent or
any Lender to exercise, and no delay in exercising, any right, remedy or power
hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy or power hereunder
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preclude any other or further exercise thereof or the exercise of any other
right. The remedies herein provided are cumulative and not exclusive of any
remedies provided by law or in equity. The unenforceability or invalidity of any
provision of this Guaranty shall not affect the enforceability or validity of
any other provision herein.
15. ASSIGNMENT; GOVERNING LAWS; JURISDICTION. This Guaranty shall (a)
bind each Guarantor and its successors and assigns, provided that each Guarantor
may not assign its rights or obligations under this Guaranty without the prior
written consent of Administrative Agent and Lenders (and any attempted
assignment without such consent shall be void), (b) inure to the benefit of
Administrative Agent and Lenders and its successors and assigns and
Administrative Agent or any Lender may, without notice to any Guarantor and
without affecting any Guarantor's obligations hereunder, assign or sell
participations in the Guaranteed Obligations and this Guaranty, in whole or in
part, and (c) be governed by the internal laws of the State of New York without
application of its conflicts of laws principles. Each Guarantor hereby
irrevocably (i) submits to the non-exclusive jurisdiction of any United States
Federal or State court sitting in New York, New York in any action or proceeding
arising out of or relating to this Guaranty, and (ii) waives to the fullest
extent permitted by law any defense asserting an inconvenient forum in
connection therewith. Service of process by Administrative Agent or any Lender
in connection with such action or proceeding shall be binding on each Guarantor
if sent to such Guarantor by registered or certified mail at its address
specified in Schedule [ ] of the Credit Agreement. Each Guarantor agrees that
Administrative Agent or any Lender may disclose to any prospective purchaser and
any purchaser of all or part of the Guaranteed Obligations any and all
information in the possession of Administrative Agent or any Lender concerning
each Guarantor, this Guaranty and any security for this Guaranty.
16. CONDITION OF BORROWERS. Each Guarantor acknowledges and agrees that
it has the sole responsibility for, and has adequate means of, obtaining from
Borrowers such information concerning the financial condition, business and
operations of Borrowers as such Guarantor requires, and that neither
Administrative Agent nor any Lender has any duty, and each Guarantor is not
relying on Administrative Agent or any Lender at any time, to disclose to each
Guarantor any information relating to the business, operations or financial
condition of Borrowers.
17. SETOFF. If and to the extent any payment is not made when due
hereunder, Administrative Agent and each Lender may setoff and charge from time
to time any amount so due against any or all of Guarantors' accounts or deposits
with Administrative Agent or such Lender.
18. OTHER GUARANTEES. Unless otherwise agreed by Administrative Agent
and Lenders and Guarantors in writing, this Guaranty is not intended to
supersede or otherwise affect any other guaranty now or hereafter given by
Guarantors for the benefit of the Lender or any term or provision thereof.
19. REPRESENTATIONS AND WARRANTIES. Each Guarantor represents and
warrants that (a) it is duly organized and in good standing under the laws of
the jurisdiction of its organization and has full capacity and right to make and
perform this Guaranty, and all necessary authority has been obtained; (b) this
Guaranty constitutes its legal, valid and binding obligation
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enforceable in accordance with its terms; (c) the making and performance of this
Guaranty does not and will not violate the provisions of any applicable law,
regulation or order, and does not and will not result in the breach of, or
constitute a default or require any consent under, any material agreement,
instrument, or document to which it is a party or by which it or any of its
property may be bound or affected, (d) all consents, approvals, licenses and
authorizations of, and filings and registrations with, any governmental
authority required under applicable law and regulations for the making and
performance of this Guaranty have been obtained or made and are in full force
and effect; (e) by virtue of its relationship with Borrowers, the execution,
delivery and performance of this Guaranty is for the direct benefit of each
Guarantor and each has received adequate consideration for this Guaranty; and
(f) the financial information that has been delivered to Lenders by or on behalf
of each Guarantor is complete and correct in all respects and accurately
presents the financial condition and the operational results of such Guarantor
and since the date of the most recent financial statements delivered to Lenders,
there has been no material adverse change in the financial condition or
operational results of such Guarantor.
20. LOAN DOCUMENTS. By execution hereof, each Guarantor covenants and
agrees that certain representations and warranties set forth in the Loan
Documents are applicable to Guarantors, and each Guarantor reaffirms that each
such representation and warranty is true and correct in every material respect.
Each Guarantor acknowledges and agrees that this Guaranty is subject to the
offset provisions of the Loan Documents in favor of Administrative Agent. If the
Credit Agreement shall cease to remain in effect for any reason whatsoever
during any period and any part of the Guaranteed Obligations remain unpaid, then
the terms, covenants, and agreements incorporated herein by reference shall
nevertheless continue in full force and effect as obligations of each Guarantor
under this Guaranty. Each Guarantor shall take, or refrain from taking, as the
case may be, each action that is necessary to be taken or not taken, as the case
may be, so that no Event of Default is caused by the failure to take or refrain
from taking such action, as the case may be.
21. AUTHORITY OF ADMINISTRATIVE AGENT. Each Guarantor acknowledges that
the rights and responsibilities of Administrative Agent under this Guaranty with
respect to any action taken by Administrative Agent or the exercise or
non-exercise by Administrative Agent of any option, right, request, judgment or
other right or remedy provided for herein or resulting or arising out of this
Guaranty shall, as between Administrative Agent and Lenders, be governed by the
Credit Agreement and by such other agreements with respect thereto as may exist
from time to time among them, but, as between Administrative Agent and such
Guarantor, Administrative Agent shall be conclusively presumed to be acting as
agent for Lenders with full and valid authority so to act or refrain from
acting, and no Guarantor shall be under any obligation, or entitlement, to make
any inquiry respecting such authority.
22. WAIVER OF JURY TRIAL; AND FINAL AGREEMENT. TO THE EXTENT ALLOWED BY
APPLICABLE LAW, EACH GUARANTOR, THE ADMINISTRATIVE AGENT AND EACH LENDER EACH
WAIVE TRIAL BY JURY WITH RESPECT TO ANY ACTION, CLAIM, SUIT OR PROCEEDING ON OR
ARISING OUT OF THIS GUARANTY. THIS GUARANTY REPRESENTS THE FINAL AGREEMENT
BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS BETWEEN
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THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
23. COUNTERPARTS. This Guaranty may be executed by one or more of the
parties hereto on any number of separate counterparts and all of the said
counterparts taken together shall be deemed to constitute one and the same
instrument.
REMAINDER OF PAGE INTENTIONALLY BLANK
SIGNATURE PAGES FOLLOW.
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IN WITNESS WHEREOF, each of the undersigned has caused this Guaranty to
be duly executed and delivered as of the date first above written.
GUARANTORS:
CNL HOSPITALITY PROPERTIES, INC.
By: /s/ C. Brian Strickland
---------------------------------------
Name: C. Brian Strickland
Title: Executive Vice President
CNL ROSE GP CORP.
By: /s/ C. Brian Strickland
---------------------------------------
Name: C. Brian Strickland
Title: Executive Vice President
CNL ROSE ACQUISITION CORP.
By: /s/ C. Brian Strickland
---------------------------------------
Name: C. Brian Strickland
Title: Executive Vice President
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