Exhibit 10.43
AMENDED AND RESTATED SUBSIDIARIES GUARANTY
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AMENDED AND RESTATED SUBSIDIARIES GUARANTY, dated as of August 5, 1998
and amended and restated as of May 31, 2000 (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 :
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WHEREAS, Host Marriott Corporation, a Delaware corporation
("Holdings"), Host Marriott, L.P., a Delaware limited partnership (the
"Borrower"), various lenders from time to time party thereto (the "Banks"), and
Bankers Trust Company, as Administrative Agent (together with any successor
administrative agent, the "Administrative Agent"), have entered into an Amended
and Restated Credit Agreement, dated as of June 19, 1997, and amended and
restated as of August 5, 1998, and further amended and restated as of May 31,
2000, providing for the making of Loans to the Borrower as contemplated therein
(as amended, modified or supplemented from time to time, the "Credit Agreement")
(the Banks, the Administrative Agent and the Collateral Agent are herein called
the "Bank Creditors");
WHEREAS, the Borrower may at any time and from time to time enter into
one or more Interest Rate Protection Agreements or Other Hedging Agreements with
one or more Banks or any affiliate thereof (each such Bank or affiliate, even if
the respective Bank subsequently ceases to be a Bank under the Credit Agreement
for any reason, together with such Bank's or affiliate's successors and assigns,
if any, collectively, the "Other Creditors," and together with the Bank
Creditors, are herein called the "Creditors");
WHEREAS, each Guarantor is a direct or an indirect Subsidiary of
Holdings or the Borrower;
WHEREAS, the Credit Agreement amends and restates the Original Credit
Agreement in its entirety;
WHEREAS, as part of the Original Credit Agreement, the Guarantors
entered into the Subsidiaries Guaranty, dated as of August 5, 1998 (the
"Original Subsidiaries Guaranty");
WHEREAS, this Guaranty amends and restates the Original Subsidiaries
Guaranty in its entirety;
WHEREAS, it is a condition to the making of Loans under the Credit
Agreement that each Guarantor shall have executed and delivered this Guaranty;
and
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WHEREAS, each Guarantor will obtain benefits from the incurrence of
Loans by the Borrower under the Credit Agreement and the entering into by the
Borrower of the Interest Rate Protection Agreements or Other 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 Bank 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, the Borrower under the Credit Agreement 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 Borrower to
the Bank Creditors under the Credit Agreement and each other Credit Document to
which the Borrower 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 Borrower 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 Interest Rate Protection Agreement or Other 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 Interest Rate Protection Agreements and Other
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 the 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
Borrower upon the occurrence in respect of the Borrower of any of the events
specified in Section 9.05 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. This Guaranty shall constitute a guaranty of payment, and
not of collection.
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3. The liability of each Guarantor hereunder is exclusive and
independent of any security for or other guaranty of the indebtedness of the
Borrower, 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 Borrower 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 Borrower, (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 the
Borrower, (e) any payment made to any Creditor on the indebtedness which any
Creditor repays the Borrower pursuant to court order in any bankruptcy,
reorganization, arrangement, moratorium or other debtor relief proceeding, 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 the 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 the Borrower and whether or not any other Guarantor, any
other guarantor or the 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 the Borrower or other circumstance which operates to
toll any statute of limitations as to the 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
the 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
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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;
(h) 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
Borrower to recover full indemnity for any payments made pursuant to this
Guaranty; and/or
(i) 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 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 Borrower 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 the Borrower now or hereafter held by any
Guarantor is hereby subordinated to the indebtedness of the Borrower to the
Creditors; and such indebtedness of the 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 the 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 the 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
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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).
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 Borrower, any other Guarantor, any other guarantor of the
Guaranteed Obligations or any other party; (ii) proceed against or exhaust any
security held from the Borrower, 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 Borrower, 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 Borrower 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 Borrower 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 Borrower 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 the 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 them regarding such
circumstances or risks.
11. In order to induce the Bank 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 Interest Rate Protection Agreements and
Other Hedging Agreements, each Guarantor represents, warrants and covenants
that:
(a) Status. Such Guarantor (i) is a duly organized and validly
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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
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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 on the business, operations, property, assets,
liabilities, condition (financial or otherwise) or prospects of such Guarantor.
(b) Power and Authority. Such Guarantor has the corporate,
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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
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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 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,
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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
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or, to the best knowledge of such Guarantor, threatened (i) with respect to this
Guaranty or (ii) that could reasonably be expected to materially and adversely
affect the business, operations, property, assets, liabilities, condition
(financial or otherwise) or prospects of such Guarantor.
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12. Each Guarantor covenants and agrees that on and after the
Effective Date and until the Total Commitment and all Interest Rate Protection
Agreements and Other Hedging Agreements have 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 7 or 8 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.
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 Banks, or, to the extent required by Section 12.12 of the Credit
Agreement, each of the Banks 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), the holders of a majority of the
outstanding principal amount of the Other Obligations; provided, that any
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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 Bank Creditors as holders of
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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 Banks, 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 Interest Rate Protection Agreements or Other 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.
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 Interest Rate Protection Agreement or Other
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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 Bank Creditor, as provided in the Credit Agreement, (ii)
in the case of any Guarantor, at 10400 Fernwood Road, Bethesda, Maryland 20817,
Attention: General Counsel, Dept. 923, Facsimile No. (301) 380-3588, 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 the 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 the 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 the provisions of the Credit
Agreement) 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 jurisdiction of the aforesaid courts. Each
Guarantor hereby further irrevocably waives any claim that any such courts lack
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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.
(B) 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.
(C) 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 Banks (or, to the extent required by the
Credit Agreement, each of the Banks)) 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 7.16(a)(B) of the Credit Agreement with
respect to a Guarantor, in either 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.
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
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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
Interest Rate Protection Agreements and Other 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
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 Banks.
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.
26. It is understood and agreed that any Subsidiary of Holdings or
the 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.
27. Notwithstanding anything to the contrary contained in this
Guaranty, no Interest Rate Protection Agreement or Other Hedging Agreement shall
be entitled to the benefits of this Guaranty unless such Interest Rate
Protection Agreement or Other Hedging Agreement is reasonably related to the
Loans or such Interest Rate Protection Agreement or Other Hedging Agreement
provides that it is to be entitled to the benefits of this Guaranty or the
Pledge and Security Agreement.
* * *
IN WITNESS WHEREOF, each Guarantor has caused this Guaranty to be
executed and delivered as of the date first above written.
AIRPORT HOTELS LLC,
as a Guarantor
By: /s/ W. Edward Walter
--------------------------------
Title: Treasurer
HOST OF HOUSTON 1979,
as a Guarantor
By: Airport Hotels LLC,
its General Partner
By: /s/ W. Edward Walter
--------------------------------
Title: Treasurer
HOST OF HOUSTON, LTD.,
as a Guarantor
By: Airport Hotels LLC,
its General Partner
By: /s/ W. Edward Walter
--------------------------------
Title: Treasurer
HOST OF BOSTON, LTD.,
as a Guarantor
By: Airport Hotels LLC,
its General Partner
By: /s/ W. Edward Walter
--------------------------------
Title: Treasurer
CHESAPEAKE FINANCIAL SERVICES LLC,
as a Guarantor
By: /s/ W. Edward Walter
--------------------------------
Title: Treasurer
CITY CENTER INTERSTATE PARTNERSHIP LLC,
as a Guarantor
By: /s/ W. Edward Walter
--------------------------------
Title: Treasurer
HMC RETIREMENT PROPERTIES L.P.,
as a Guarantor
By: Durbin LLC,
its General Partner
By: /s/ W. Edward Walter
--------------------------------
Title: Treasurer
HMH MARINA LLC,
as a Guarantor
By: /s/ W. Edward Walter
--------------------------------
Title: Treasurer
FARRELL'S ICE CREAM PARLOUR RESTAURANTS LLC,
as a Guarantor
By: /s/ W. Edward Walter
--------------------------------
Title: Treasurer
HMC ATLANTA LLC,
as a Guarantor
By: /s/ W. Edward Walter
--------------------------------
Title: Treasurer
HMC BCR HOLDINGS LLC,
as a Guarantor
By: /s/ W. Edward Walter
--------------------------------
Title: Treasurer
HMC BURLINGAME LLC,
as a Guarantor
By: /s/ W. Edward Walter
--------------------------------
Title: Treasurer
HMC CALIFORNIA LEASING LLC,
as a Guarantor
By: /s/ W. Edward Walter
--------------------------------
Title: Treasurer
HMC CAPITAL LLC,
as a Guarantor
By: /s/ W. Edward Walter
--------------------------------
Title: Treasurer
HMC CAPITAL RESOURCES LLC,
as a Guarantor
By: /s/ W. Edward Walter
--------------------------------
Title: Treasurer
HMC PARK RIDGE LLC,
as a Guarantor
By: /s/ W. Edward Walter
--------------------------------
Title: Treasurer
HMC PARK RIDGE II LLC,
as a Guarantor
By: /s/ W. Edward Walter
--------------------------------
Title: Treasurer
HMC PARK RIDGE LP,
as a Guarantor
By: HMC Park Ridge LLC,
as its General Partner
By: /s/ W. Edward Walter
--------------------------------
Title: Treasurer
HMC PARTNERSHIP HOLDINGS LLC,
as a Guarantor
By: /s/ W. Edward Walter
--------------------------------
Title: Treasurer
HOST PARK RIDGE LLC,
as a Guarantor
By: /s/ W. Edward Walter
--------------------------------
Title: Treasurer
HMC SUITES LLC,
as a Guarantor
By: /s/ W. Edward Walter
--------------------------------
Title: Treasurer
HMC SUITES LIMITED PARTNERSHIP,
as a Guarantor
By: HMC Suites LLC,
its General Partner
By: /s/ W. Edward Walter
--------------------------------
Title: Treasurer
PRM LLC,
as a Guarantor
By: /s/ W. Edward Walter
--------------------------------
Title: Treasurer
WELLSFORD-PARK RIDGE HOST HOTEL LIMITED
PARTNERSHIP,
as a Guarantor
By: Host Park Ridge LLC,
its General Partner
By: /s/ W. Edward Walter
--------------------------------
Title: Treasurer
YBG ASSOCIATES LLC,
as a Guarantor
By: /s/ W. Edward Walter
--------------------------------
Title: Treasurer
HMC CHICAGO LLC,
as a Guarantor
By: /s/ W. Edward Walter
--------------------------------
Title: Treasurer
HMC DESERT LLC,
as a Guarantor
By: /s/ W. Edward Walter
--------------------------------
Title: Treasurer
HMC PALM DESERT LLC,
as a Guarantor
By: /s/ W. Edward Walter
--------------------------------
Title: Treasurer
MDSM FINANCE LLC,
as a Guarantor
By: /s/ W. Edward Walter
--------------------------------
Title: Treasurer
HMC DIVERSIFIED LLC,
as a Guarantor
By: /s/ W. Edward Walter
--------------------------------
Title: Treasurer
HMC EAST SIDE II LLC,
as a Guarantor
By: /s/ W. Edward Walter
--------------------------------
Title: Treasurer
HMC GATEWAY LLC,
as a Guarantor
By: /s/ W. Edward Walter
--------------------------------
Title: Treasurer
HMC GRAND LLC,
as a Guarantor
By: /s/ W. Edward Walter
--------------------------------
Title: Treasurer
HMC HANOVER LLC,
as a Guarantor
By: /s/ W. Edward Walter
--------------------------------
Title: Treasurer
HMC HARTFORD LLC,
as a Guarantor
By: /s/ W. Edward Walter
--------------------------------
Title: Treasurer
HMC HOTEL DEVELOPMENT LLC,
as a Guarantor
By: /s/ W. Edward Walter
--------------------------------
Title: Treasurer
HMC HPP LLC,
as a Guarantor
By: /s/ W. Edward Walter
--------------------------------
Title: Treasurer
HMC IHP HOLDING LLC,
as a Guarantor
By: /s/ W. Edward Walter
--------------------------------
Title: Treasurer
HMC MANHATTAN BEACH LLC,
as a Guarantor
By: /s/ W. Edward Walter
--------------------------------
Title: Treasurer
HMC MARKET STREET LLC,
as a Guarantor
By: /s/ W. Edward Walter
--------------------------------
Title: Treasurer
NEW MARKET STREET LP,
as a Guarantor
By: HMC Market Street LLC,
its General Partner
By: /s/ W. Edward Walter
--------------------------------
Title: Treasurer
HMC GEORGIA LLC,
as a Guarantor
By: /s/ W. Edward Walter
--------------------------------
Title: Treasurer
HMC MEXPARK LLC,
as a Guarantor
By: /s/ W. Edward Walter
--------------------------------
Title: Treasurer
HMC POLANCO LLC,
as a Guarantor
By: /s/ W. Edward Walter
--------------------------------
Title: Treasurer
HMC NGL LLC,
as a Guarantor
By: /s/ W. Edward Walter
----------------------------------
Title: Treasurer
HMC OLS I L.P.,
as a Guarantor
By: HMC OLS I LLC,
its General Partner
By: /s/ W. Edward Walter
----------------------------------
Title: Treasurer
HMC OP BN LLC,
as a Guarantor
By: /s/ W. Edward Walter
----------------------------------
Title: Treasurer
HMC PACIFIC GATEWAY LLC,
as a Guarantor
By: /s/ W. Edward Walter
----------------------------------
Title: Treasurer
HMC PLP LLC,
as a Guarantor
By: /s/ W. Edward Walter
----------------------------------
Title: Treasurer
CHESAPEAKE HOTEL LIMITED PARTNERSHIP,
as a Guarantor
By: HMC PLP LLC,
its General Partner
By: /s/ W. Edward Walter
----------------------------------
Title: Treasurer
HMC POTOMAC LLC,
as a Guarantor
By: /s/ W. Edward Walter
----------------------------------
Title: Treasurer
HMC PROPERTIES I LLC,
as a Guarantor
By: /s/ W. Edward Walter
----------------------------------
Title: Treasurer
HMC PROPERTIES II LLC,
as a Guarantor
By: /s/ W. Edward Walter
----------------------------------
Title: Treasurer
HMC RTZ LOAN I LLC,
as a Guarantor
By: /s/ W. Edward Walter
----------------------------------
Title: Treasurer
HMC RTZ LOAN LIMITED PARTNERSHIP,
as a Guarantor
By: HMC RTZ Loan I LLC,
its General Partner
By: /s/ W. Edward Walter
----------------------------------
Title: Treasurer
HMC RTZ II LLC,
as a Guarantor
By: /s/ W. Edward Walter
----------------------------------
Title: Treasurer
HMC SBM TWO LLC,
as a Guarantor
By: /s/ W. Edward Walter
----------------------------------
Title: Treasurer
HMC SEATTLE LLC,
as a Guarantor
By: /s/ W. Edward Walter
----------------------------------
Title: Treasurer
HMC SFO LLC,
as a Guarantor
By: /s/ W. Edward Walter
----------------------------------
Title: Treasurer
HMC SWISS HOLDINGS LLC,
as a Guarantor
By: /s/ W. Edward Walter
----------------------------------
Title: Treasurer
HMC WATERFORD LLC,
as a Guarantor
By: /s/ W. Edward Walter
----------------------------------
Title: Treasurer
HMH GENERAL PARTNER HOLDINGS LLC,
as a Guarantor
By: /s/ W. Edward Walter
----------------------------------
Title: Treasurer
HMH NORFOLK LLC,
as a Guarantor
By: /s/ W. Edward Walter
----------------------------------
Title: Treasurer
HMH NORFOLK, L.P.,
as a Guarantor
By: HMH Norfolk LLC,
its General Partner
By: /s/ W. Edward Walter
----------------------------------
Title: Treasurer
HMH PENTAGON LLC,
as a Guarantor
By: /s/ W. Edward Walter
----------------------------------
Title: Treasurer
HMH RESTAURANTS LLC,
as a Guarantor
By: /s/ W. Edward Walter
----------------------------------
Title: Treasurer
HMH RIVERS LLC,
as a Guarantor
By: /s/ W. Edward Walter
----------------------------------
Title: Treasurer
HMH RIVERS, L.P.,
as a Guarantor
By: HMH Rivers LLC,
its General Partner
By: /s/ W. Edward Walter
----------------------------------
Title: Treasurer
HMH WTC LLC,
as a Guarantor
By: /s/ W. Edward Walter
----------------------------------
Title: Treasurer
HMP CAPITAL VENTURES LLC,
as a Guarantor
By: /s/ W. Edward Walter
----------------------------------
Title: Treasurer
HMP FINANCIAL SERVICES LLC,
as a Guarantor
By: /s/ W. Edward Walter
----------------------------------
Title: Treasurer
HOST LA JOLLA LLC,
as a Guarantor
By: /s/ W. Edward Walter
----------------------------------
Title: Treasurer
CITY CENTER HOTEL LIMITED
PARTNERSHIP,
as a Guarantor
By: Host La Jolla LLC,
its General Partner
By: /s/ W. Edward Walter
----------------------------------
Title: Treasurer
TIMES SQUARE LLC,
as a Guarantor
By: /s/ W. Edward Walter
----------------------------------
Title: Treasurer
IVY STREET LLC,
as a Guarantor
By: /s/ W. Edward Walter
----------------------------------
Title: Treasurer
MARKET STREET HOST LLC,
as a Guarantor
By: /s/ W. Edward Walter
----------------------------------
Title: Treasurer
MFR OF ILLINOIS LLC,
as a Guarantor
By: /s/ W. Edward Walter
----------------------------------
Title: Treasurer
MFR OF VERMONT LLC,
as a Guarantor
By: /s/ W. Edward Walter
----------------------------------
Title: Treasurer
MFR OF WISCONSIN LLC,
as a Guarantor
By: /s/ W. Edward Walter
----------------------------------
Title: Treasurer
PHILADELPHIA AIRPORT HOTEL LLC,
as a Guarantor
By: /s/ W. Edward Walter
----------------------------------
Title: Treasurer
PM FINANCIAL LLC,
as a Guarantor
By: /s/ W. Edward Walter
----------------------------------
Title: Treasurer
PM FINANCIAL LP,
as a Guarantor
By: PM Financial LLC,
its General Partner
By: /s/ W. Edward Walter
----------------------------------
Title: Treasurer
HMC PROPERTY LEASING LLC,
as a Guarantor
By: /s/ W. Edward Walter
----------------------------------
Title: Treasurer
HMC HOST RESTAURANTS LLC,
as a Guarantor
By: /s/ W. Edward Walter
----------------------------------
Title: Treasurer
SANTA CLARA HMC LLC,
as a Guarantor
By: /s/ W. Edward Walter
----------------------------------
Title: Treasurer
S.D. HOTELS LLC,
as a Guarantor
By: /s/ W. Edward Walter
----------------------------------
Title: Treasurer
TIMES SQUARE GP LLC,
as a Guarantor
By: /s/ W. Edward Walter
----------------------------------
Title: Treasurer
Accepted and Agreed to:
BANKERS TRUST COMPANY,
as Administrative Agent
By: /s/ Laura Burwick
-----------------------------
Title: Principal