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Exhibit
10.3
SECOND AMENDED AND
RESTATED SUBSIDIARIES GUARANTY
SECOND AMENDED AND RESTATED
SUBSIDIARIES GUARANTY, dated as of May 25, 2007 (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
Hotels & Resorts, L.P. (formerly known as Host Marriott,
L.P.), a Delaware limited partnership (the “ U.S.
Borrower ”), each Canadian Revolving Loan Borrower from
time to time party thereto, various lenders from time to time party
thereto, and Deutsche Bank Trust Company Americas, as
Administrative Agent, have entered into a Credit Agreement dated as
of June 6, 2002, as amended and restated on September 10,
2004 (the “ Original Credit Agreement ”), as
amended by the Second Amended and Restated Credit Agreement as of
the date hereof among Host Hotels, L.P., a Delaware limited
partnership, the U.S. Subsidiary Borrower listed therein, each
Canadian Revolving Loan Borrower from time to time party thereto
(together with the U.S. Borrower and the U.S. Subsidiary Borrower,
the “ Borrowers ”), various lenders from time to
time party thereto (the “ Lenders ”) and
Deutsche Bank AG New York Branch (the “ Administrative
Agent ”) (as the same may be amended, modified, extended,
renewed, replaced, restated, supplemented or refinanced from time
to time, and including any agreement extending the maturity of, or
refinancing or restructuring, including, but not limited to, the
inclusion of additional borrowers or guarantors thereunder or any
increase in the amount borrowed, the “ Credit
Agreement ”), providing for the making of Revolving Loans
and other extensions of credit to the Borrowers as contemplated
therein (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 Lender’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 was a condition
to the making of revolving loans and other extensions of credit
under the Original Credit Agreement that the guarantors party to
the Guaranty Agreement dated as of June 6, 2002, as amended
and restated on September 10, 2004, as further amended or
supplemented prior to the date hereof (the “ Original
Guaranty ”) shall have executed and delivered the
Original Guaranty; and
WHEREAS, it is a condition to
the making of Revolving Loans and other extensions of credit under
the Credit Agreement that each Guarantor shall have amended and
restated the Original Guaranty as provided herein; and
WHEREAS, each Guarantor will
obtain benefits from the incurrence of Revolving 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 amends and restates the
Original Guaranty in its entirety as set forth herein:
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 Revolving Loans made to, each Borrower
under the Credit Agreement 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, (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 there against, and/or release any Person
liable for all or any portion of the Guaranteed
Obligations;
(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).
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
Revolving 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.
(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
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