Exhibit 4.10
TRUST COMMON SECURITIES GUARANTEE AGREEMENT
WestCoast Hospitality Corporation
Dated as of December [-], 2003
TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS AND INTERPRETATION.................................. 1
Section 1.1 Definitions and Interpretation............................ 1
ARTICLE II TRUST INDENTURE ACT............................................. 5
Section 2.1 Trust Indenture Act; Application.......................... 5
Section 2.2 Lists of Holders of Securities............................ 5
Section 2.3 Reports by the Common Guarantee Trustee................... 5
Section 2.4 Periodic Reports to Common Guarantee Trustee.............. 5
Section 2.5 Evidence of Compliance with Conditions Precedent.......... 5
Section 2.6 Events of Default; Waiver................................. 5
Section 2.7 Event of Default; Notice.................................. 6
Section 2.8 Conflicting Interests..................................... 6
ARTICLE III POWERS, DUTIES AND RIGHTS OF COMMON GUARANTEE TRUSTEE........... 6
Section 3.1 Powers and Duties of the Common Guarantee Trustee......... 6
Section 3.2 Certain Rights of Common Guarantee Trustee................ 7
Section 3.3 Not Responsible for Recitals or Issuance of Trust
Common Securities Guarantee............................... 9
ARTICLE IV COMMON GUARANTEE TRUSTEE........................................ 9
Section 4.1 Common Guarantee Trustee; Eligibility..................... 9
Section 4.2 Appointment, Removal and Resignation of Common
Guarantee Trustee......................................... 9
ARTICLE V TRUST COMMON SECURITIES GUARANTEE............................... 10
Section 5.1 Trust Common Securities Guarantee......................... 10
Section 5.2 Subordination............................................. 10
Section 5.3 Waiver Of Notice And Demand............................... 10
Section 5.4 Obligations Not Affected.................................. 10
Section 5.5 Rights of Holders......................................... 11
Section 5.6 Guarantee of Payment...................................... 12
Section 5.7 Subrogation............................................... 12
Section 5.8 Independent Obligations................................... 12
ARTICLE VI LIMITATION OF TRANSACTIONS; SUBORDINATION....................... 12
Section 6.1 Limitation of Transactions................................ 12
Section 6.2 Ranking................................................... 13
ARTICLE VII TERMINATION..................................................... 13
Section 7.1 Termination............................................... 13
ARTICLE VIII INDEMNIFICATION................................................ 13
Section 8.1 Exculpation............................................... 13
Section 8.2 Indemnification........................................... 14
TABLE OF CONTENTS
(continued)
PAGE
ARTICLE IX MISCELLANEOUS................................................... 14
Section 9.1 Successors and Assigns.................................... 14
Section 9.2 Amendments................................................ 14
Section 9.3 Notices................................................... 14
Section 9.4 Benefit................................................... 15
Section 9.5 Governing Law............................................. 15
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TRUST COMMON SECURITIES GUARANTEE AGREEMENT
This TRUST COMMON SECURITIES GUARANTEE AGREEMENT (this "Trust Common
Securities Guarantee"), dated as of December [-], 2003, is executed and
delivered by WestCoast Hospitality Corporation, a Washington corporation (the
"Guarantor"), and Wilmington Trust Company, a Delaware-chartered bank and trust
company, as trustee (the "Common Guarantee Trustee"), for the benefit of the
Holders (as defined herein) from time to time of the Trust Common Securities (as
defined herein) of WestCoast Hospitality Capital Trust, a Delaware statutory
trust (the "Trust").
WHEREAS, pursuant to an Amended and Restated Declaration of Trust, dated
as of December [-], 2003 (the "Declaration"), among the trustees of the Trust
named therein, the Guarantor, as sponsor, and the holders from time to time of
undivided beneficial interests in the assets of the Trust, the Trust is issuing
on the date hereof [-] common securities, having an aggregate liquidation amount
of $[-] designated the "[-]% Trust Common Securities (Liquidation Amount of $25
per Trust Common Security)" (the "Trust Common Securities");
WHEREAS, as incentive for the Holders to purchase the Trust Common
Securities, the Guarantor desires irrevocably and unconditionally to agree, to
the extent set forth in this Trust Common Securities Guarantee, to guarantee the
obligations of the Trust to the Holders on the terms and conditions set forth
herein; and
WHEREAS, the Guarantor is also executing and delivering a guarantee
agreement (the "Trust Preferred Securities Guarantee") on substantially
identical terms to this Trust Common Securities Guarantee for the benefit of the
holders of the Trust Preferred Securities (as defined herein), except that if an
Indenture Event of Default (as defined herein) has occurred and is continuing,
the rights of holders of the Trust Common Securities to receive Guarantee
Payments (as defined herein) under this Trust Common Securities Guarantee shall
be subordinated to the rights of Holders of Trust Preferred Securities to
receive Guarantee Payments (as defined in the Trust Preferred Securities
Guarantee) under this Trust Common Securities Guarantee;
NOW, THEREFORE, in consideration of the purchase by each Holder of Trust
Common Securities, which purchase the Guarantor hereby agrees shall benefit the
Guarantor, the Guarantor executes and delivers this Trust Common Securities
Guarantee for the benefit of the Holders.
ARTICLE I
DEFINITIONS AND INTERPRETATION
Section 1.1 Definitions and Interpretation.
In this Trust Common Securities Guarantee, unless the context otherwise
requires:
(a) capitalized terms used in this Trust Common Securities Guarantee
but not defined in the preamble above have the respective meanings assigned to
them in this Section 1.1;
(b) terms defined in the Declaration as at the date hereof have the
same meaning when used in this Trust Common Securities Guarantee unless
otherwise defined in this Trust Common Securities Guarantee;
(c) a term defined anywhere in this Trust Common Securities
Guarantee has the same meaning throughout;
(d) all references to "this Trust Common Securities Guarantee" are
to this Trust Common Securities Guarantee as modified, supplemented or amended
from time to time pursuant to Section 9.2;
(e) all references in this Trust Common Securities Guarantee to
Articles and Sections are to Articles and Sections of this Trust Common
Securities Guarantee, unless otherwise specified;
(f) a term defined in the Trust Indenture Act has the same meaning
when used in this Trust Common Securities Guarantee, unless otherwise defined in
this Trust Common Securities Guarantee or unless the context otherwise requires;
(g) a reference to the singular includes the plural and vice versa;
(h) a reference to any Person shall include its successors and
assigns;
(i) a reference to any agreement or instrument shall mean such
agreement or instrument, as supplemented, modified, amended, or amended and
restated, and in effect from time to time; and
(j) a reference to any statute, law, rule or regulation, shall
include any amendments thereto applicable to the relevant Person, and any
successor statute, law, rule or regulation.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authorized Officer" of a Person means any Person that is authorized to
bind such Person.
"Business Day" means any day other than a Saturday, Sunday or day on which
banking institutions in Spokane, Washington or in Wilmington, Delaware are
authorized or required by law to close.
"Common Stock" means, in the case of a Person that is a corporation, any
capital stock of any class of such Person, and, in the case of any Person that
is not a corporation, any equity security of any class of such Person, in each
case which capital stock or equity security has no preference with respect to
dividends or to amounts payable in the event of any voluntary or involuntary
liquidation, dissolution or winding up of such Person.
"Corporate Trust Office" means the principal office of the Preferred
Guarantee Trustee in Wilmington, Delaware, at which at any particular time its
corporate trust business shall be administered and which at the date of this
Indenture is located at Xxxxxx Square North, 0000 Xxxxx Xxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxx 00000, Attention: Corporate Trust Administration.
"Covered Person" means any Holder or beneficial owner of Trust Common
Securities.
"Debentures" means the [-]% Junior Subordinated Debentures due December
[-], 2043 of the Guarantor held by the Property Trustee (as defined in the
Declaration).
"Event of Default" means a default by the Guarantor on any of its payment
or other obligations under this Trust Common Securities Guarantee.
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"Guarantee Payments" means the following payments or distributions,
without duplication, with respect to the Trust Common Securities, to the extent
not paid or made by the Trust: (i) any accrued and unpaid Distributions (as
defined in the Declaration) that are required to be paid on such Trust Common
Securities to the extent the Trust shall have funds available therefor, (ii) the
redemption price, including all accrued and unpaid Distributions to the date of
redemption (the "Redemption Price"), with respect to any Trust Common Securities
called for redemption by the Trust to the extent the Trust has funds available
therefor, and (iii) upon a voluntary or involuntary dissolution, winding-up or
termination of the Trust (other than in connection with a distribution of the
Debentures to the Holders in exchange for Trust Common Securities or the
redemption of all of the Trust Common Securities as provided in the
Declaration), the lesser of (a) the aggregate of the total liquidation amount
and all accrued and unpaid Distributions on the Trust Common Securities to the
date of payment, to the extent the Trust shall have funds available therefor,
and (b) the amount of assets of the Trust remaining available for distribution
to Holders upon liquidation of the Trust (in either case, the "Liquidation
Distribution"). If an Indenture Event of Default has occurred and is continuing,
the rights of Holders of the Trust Common Securities to receive Guarantee
Payments under this Trust Common Securities Guarantee are subordinate to the
rights of holders of Trust Preferred Securities to receive Guarantee Payments
(as defined in the Trust Preferred Securities Guarantee) under the Trust
Preferred Securities Guarantee.
"Holder" shall mean any holder, as registered on the books and records of
the Trust, of any Trust Common Securities.
"Indemnified Person" means the Common Guarantee Trustee, any Affiliate of
the Common Guarantee Trustee, and any officer, director, shareholder, member,
partner, employee, representative, nominee, custodian or agent of the Common
Guarantee Trustee.
"Indenture" means the Indenture, dated as of December [-], 2003, between
the Guarantor and Wilmington Trust Company, as trustee, pursuant to which the
Debentures are to be issued to the Property Trustee of the Trust.
"Indenture Event of Default" means an "Indenture Event of Default" as
defined in the Indenture.
"Indenture Trustee" means the Person acting as trustee under the
Indenture, initially Wilmington Trust Company.
"Majority in liquidation amount of the Trust Common Securities" means,
except as provided by the Trust Indenture Act, a vote by Holder(s) of Trust
Common Securities, voting separately as a class, of more than 50% of the
liquidation amount (including the stated amount that would be paid on
redemption, liquidation or otherwise, plus accrued and unpaid Distributions to
the date upon which the voting percentages are determined) of all Trust Common
Securities.
"Officers' Certificate" means, with respect to any Person, a certificate
signed by two Authorized Officers of such Person. Any Officers' Certificate
delivered with respect to compliance with a condition or covenant provided for
in this Trust Common Securities Guarantee shall include:
(i) a statement that each officer signing the Officers'
Certificate has read the covenant or condition and the definitions relating
thereto;
(ii) a brief statement of the nature and scope of the
examination or investigation undertaken by each officer in rendering the
Officers' Certificate;
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(iii) a statement that each such officer has made such examination
or investigation as, in such officer's opinion, is necessary to enable such
officer to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(iv) a statement as to whether, in the opinion of each such officer,
such condition or covenant has been complied with.
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, limited
liability company, trust, unincorporated association, or government or any
agency or political subdivision thereof, or any other entity of whatever nature.
"Common Guarantee Trustee" means Wilmington Trust Company, until a
Successor Common Guarantee Trustee has been appointed and has accepted such
appointment pursuant to the terms of this Trust Common Securities Guarantee, and
thereafter means each such Successor Common Guarantee Trustee.
"Responsible Officer" means, with respect to the Common Guarantee Trustee,
any vice-president, any assistant vice-president, the treasurer, any assistant
treasurer, any trust officer or assistant trust officer, any financial services
officer or any other officer in the Corporate Trust Department of the Common
Guarantee Trustee customarily performing functions similar to those performed by
any of the above designated officers and also means, with respect to a
particular corporate trust matter, any other officer to whom such matter is
referred because of that officer's knowledge of and familiarity with the
particular subject.
"Rights Plan" means a plan of the Guarantor providing for the issuance by
the Guarantor to all holders of its Common Stock of rights entitling the holders
thereof to subscribe for or purchase shares of Common Stock or any class or
series of preferred stock of the Guarantor, which rights (i) are deemed to be
transferred with such shares of Common Stock, (ii) are not exercisable and (iii)
are also issued in respect of future issuances of the Guarantor's Common Stock,
in each case until the occurrence of a specified event or events.
"Subsidiary" of any Person means (i) a corporation more than 50% of the
outstanding Voting Stock of which is owned, directly or indirectly, by such
Person or by one or more other Subsidiaries of such Person or by such Person and
one or more Subsidiaries thereof or (ii) any other Person (other than a
corporation) with respect to which such Person, or one or more other
Subsidiaries of such Person or such Person and one or more other Subsidiaries
thereof, directly or indirectly, has at least a majority ownership or the power
to direct the policies, management and affairs thereof.
"Successor Common Guarantee Trustee" means a successor Common Guarantee
Trustee possessing the qualifications to act as Common Guarantee Trustee under
Section 4.1.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended.
"Trust Preferred Securities" means the securities representing preferred
undivided beneficial interests in the assets of the Trust.
"Voting Stock" of any Person means capital stock or other equity
securities of such Person that ordinarily have voting power for the election of
directors (or Persons performing similar functions) of such Person, whether at
all times or only so long as no senior class of securities has such voting power
by reason of any contingency.
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ARTICLE II
TRUST INDENTURE ACT
Section 2.1 Trust Indenture Act; Application.
(a) This Trust Common Securities Guarantee is subject to the
provisions of the Trust Indenture Act that would be required to be part of this
Trust Common Securities Guarantee were this Trust Common Securities Guarantee to
be qualified under the Trust Indenture Act, which provisions are incorporated by
reference in and made part of this Trust Common Securities Guarantee and this
Trust Common Securities Guarantee shall, to the extent applicable, be governed
by such provisions; and
(b) if and to the extent that any provision of this Trust Common
Securities Guarantee limits, qualifies or conflicts with the duties imposed by
Sections 310 to 317, inclusive, of the Trust Indenture Act, such imposed duties
shall control.
Section 2.2 Lists of Holders of Securities.
(a) The Guarantor shall provide the Common Guarantee Trustee with a
list, in such form as the Common Guarantee Trustee may reasonably require, of
the names and addresses of the Holders of the Trust Common Securities ("List of
Holders") as of such date, (i) within 14 days after each record date for payment
of Distributions, and (ii) at any other time within 30 days of receipt by the
Trust of a written request for a List of Holders as of a date no more than 14
days before such List of Holders is given to the Common Guarantee Trustee;
provided that the Guarantor shall not be obligated to provide such List of
Holders at any time the List of Holders does not differ from the most recent
List of Holders given to the Common Guarantee Trustee by the Guarantor. The
Common Guarantee Trustee may destroy any List of Holders previously given to it
on receipt of a new List of Holders.
(b) The Common Guarantee Trustee shall comply with its obligations
under Section 311(a), Section 311(b) and Section 312(b) of the Trust Indenture
Act.
Section 2.3 Reports by the Common Guarantee Trustee. Within 60 days after
December 31of each year, the Common Guarantee Trustee shall provide to the
Holders of the Trust Common Securities such reports as are required by Section
313 of the Trust Indenture Act, if any, in the form and in the manner provided
by Section 313 of the Trust Indenture Act. The Common Guarantee Trustee shall
also comply with the requirements of Section 313(d) of the Trust Indenture Act.
Section 2.4 Periodic Reports to Common Guarantee Trustee. The Guarantor
shall provide to the Common Guarantee Trustee such documents, reports and
information as required by Section 314 (if any) and the compliance certificate
required by Section 314 of the Trust Indenture Act in the form, in the manner
and at the times required by Section 314 of the Trust Indenture Act. Delivery of
such reports, information and documents to the Common Guarantee Trustee is for
informational purposes only and the Common Guarantee Trustee's receipt of such
shall not constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Guarantor's
compliance with any of its covenants hereunder (as to which the Common Guarantee
Trustee is entitled to rely exclusively on Officers' Certificates).
Section 2.5 Evidence of Compliance with Conditions Precedent. The
Guarantor shall provide to the Common Guarantee Trustee such evidence of
compliance with any conditions precedent, if any, provided for in this Trust
Common Securities Guarantee that relate to any of the matters set forth in
Section 314(c) of the Trust Indenture Act. Any certificate or opinion required
to be given by an officer pursuant to Section 314(c)(1) may be given in the form
of an Officers' Certificate.
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Section 2.6 Events of Default; Waiver. The Holders of a Majority in
liquidation amount of Trust Common Securities may, by vote, on behalf of the
Holders of all of the Trust Common Securities, waive any past Event of Default
and its consequences. Upon such waiver, any such Event of Default shall cease to
exist, and any Event of Default arising therefrom shall be deemed to have been
cured, for every purpose of this Trust Common Securities Guarantee, but no such
waiver shall extend to any subsequent or other default or Event of Default or
impair any right consequent thereon.
Section 2.7 Event of Default; Notice.
(a) The Common Guarantee Trustee shall, within 90 days after the
occurrence of an Event of Default, transmit by mail, first class postage
prepaid, to the Holders of the Trust Common Securities, notices of all Events of
Default of which the Common Guarantee Trustee is deemed to have knowledge (as
defined in Section 2.7(b)), unless such defaults have been cured before the
giving of such notice; provided that the Common Guarantee Trustee shall be
protected in withholding such notice if and so long as a Responsible Officer of
the Common Guarantee Trustee in good faith determines that the withholding of
such notice is in the interests of the Holders of the Trust Common Securities.
(b) The Common Guarantee Trustee shall be deemed to have knowledge
of an Event of Default if (i) the Common Guarantee Trustee shall have received
written notice of such Event of Default or (ii) a Responsible Officer of the
Common Guarantee Trustee charged with the administration of the Declaration
shall have obtained actual knowledge of such Event of Default.
Section 2.8 Conflicting Interests. The Declaration shall be deemed to be
specifically described in this Trust Common Securities Guarantee for the
purposes of clause (i) of the first proviso contained in Section 310(b) of the
Trust Indenture Act.
ARTICLE III
POWERS, DUTIES AND RIGHTS OF COMMON GUARANTEE TRUSTEE
Section 3.1 Powers and Duties of the Common Guarantee Trustee.
(a) This Trust Common Securities Guarantee shall be held by the
Common Guarantee Trustee for the benefit of the Holders of the Trust Common
Securities, and the Common Guarantee Trustee shall not transfer this Trust
Common Securities Guarantee to any Person except a Holder exercising his or her
rights pursuant to Section 5.5(b) or to a Successor Common Guarantee Trustee on
acceptance by such Successor Common Guarantee Trustee of its appointment to act
as Successor Common Guarantee Trustee. The right, title and interest of the
Common Guarantee Trustee shall automatically vest in any Successor Common
Guarantee Trustee, and such vesting and cessation of title shall be effective
whether or not conveyancing documents have been executed and delivered pursuant
to the appointment of such Successor Common Guarantee Trustee.
(b) If an Event of Default of which the Common Guarantee Trustee is
deemed to have knowledge (as defined in Section 2.7(b)) has occurred and is
continuing, the Common Guarantee Trustee shall enforce this Trust Common
Securities Guarantee for the benefit of the Holders of the Trust Common
Securities.
(c) The Common Guarantee Trustee, before the occurrence of any Event
of Default and after the curing of all Events of Default that may have occurred,
shall undertake to perform only such duties as are specifically set forth in
this Trust Common Securities Guarantee, and no implied covenants shall be read
into this Trust Common Securities Guarantee against the Common Guarantee
Trustee. In case an Event of Default has occurred (that has not been cured or
waived pursuant to Section 2.6) and of which the Common Guarantee Trustee is
deemed to have knowledge (as defined in Section 2.7(b)), the Common
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Guarantee Trustee shall exercise such of the rights and powers vested in it by
this Trust Common Securities Guarantee, and use the same degree of care and
skill in its exercise thereof, as a prudent person would exercise or use under
the circumstances in the conduct of such person's own affairs.
(d) No provision of this Trust Common Securities Guarantee shall be
construed to relieve the Common Guarantee Trustee from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) prior to the occurrence of any Event of Default and after
the curing or waiving of all such Events of Default that may have occurred:
(A) the duties and obligations of the Common Guarantee
Trustee shall be determined solely by the express provisions of this
Common Securities Guarantee, and the Common Guarantee Trustee shall not be
liable except for the performance of such duties and obligations as are
specifically set forth in this Trust Common Securities Guarantee, and no
implied covenants or obligations shall be read into this Trust Common
Securities Guarantee against the Common Guarantee Trustee; and
(B) in the absence of bad faith on the part of the
Common Guarantee Trustee, the Common Guarantee Trustee may conclusively
rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon any certificates or opinions furnished to
the Common Guarantee Trustee and conforming to the requirements of this
Trust Common Securities Guarantee; but in the case of any such
certificates or opinions that by any provision hereof are specifically
required to be furnished to the Common Guarantee Trustee, the Common
Guarantee Trustee shall be under a duty to examine the same to determine
whether or not they conform to the requirements of this Trust Common
Securities Guarantee;
(ii) the Common Guarantee Trustee shall not be liable for any
error of judgment made in good faith by a Responsible Officer of the Common
Guarantee Trustee, unless it shall be proved that the Common Guarantee Trustee
was negligent in ascertaining the pertinent facts upon which such judgment was
made;
(iii) the Common Guarantee Trustee shall not be liable with
respect to any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of not less than a Majority in
liquidation amount of the Trust Common Securities relating to the time, method
and place of conducting any proceeding for any remedy available to the Common
Guarantee Trustee, or exercising any trust or power conferred upon the Common
Guarantee Trustee under this Trust Common Securities Guarantee; and
(iv) no provision of this Trust Common Securities Guarantee
shall require the Common Guarantee Trustee to expend or risk its own funds or
otherwise incur personal financial liability in the performance of any of its
duties or in the exercise of any of its rights or powers, if the Common
Guarantee Trustee shall have reasonable grounds for believing that the repayment
of such funds or liability is not reasonably assured to it under the terms of
this Trust Common Securities Guarantee or indemnity, reasonably satisfactory to
the Common Guarantee Trustee, against such risk or liability is not reasonably
assured to it.
Section 3.2 Certain Rights of Common Guarantee Trustee.
(a) Subject to the provisions of Section 3.1:
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(i) The Common Guarantee Trustee may conclusively rely, and
shall be fully protected in acting or refraining from acting upon, any
resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document believed by it to be genuine and to have
been signed, sent or presented by the proper party or parties.
(ii) Any direction or act of the Guarantor contemplated by
this Trust Common Securities Guarantee shall be sufficiently evidenced by an
Officers' Certificate.
(iii) Whenever, in the administration of this Trust Common
Securities Guarantee, the Common Guarantee Trustee shall deem it desirable that
a matter be proved or established before taking, suffering or omitting any
action hereunder, the Common Guarantee Trustee (unless other evidence is herein
specifically prescribed) may, in the absence of bad faith or willful misconduct
on its part, request and conclusively rely upon an Officers' Certificate which,
upon receipt of such request, shall be promptly delivered by the Guarantor.
(iv) The Common Guarantee Trustee shall have no duty to see to
any recording, filing or registration of any instrument(or any rerecording,
refiling or registration thereof).
(v) The Common Guarantee Trustee may consult with counsel of
its selection, and the written advice or opinion of such counsel with respect to
legal matters shall be full and complete authorization and protection in respect
of any action taken, suffered or omitted by it hereunder in good faith and in
accordance with such advice or opinion. Such counsel may be counsel to the
Guarantor or any of its Affiliates and may include any of its employees. The
Common Guarantee Trustee shall have the right at any time to seek instructions
concerning the administration of this Trust Common Securities Guarantee from any
court of competent jurisdiction.
(vi) The Common Guarantee Trustee shall be under no obligation
to exercise any of the rights or powers vested in it by this Trust Common
Securities Guarantee at the request or direction of any Holder, unless such
Holder shall have provided to the Common Guarantee Trustee such security and
indemnity, reasonably satisfactory to the Common Guarantee Trustee, against the
reasonable costs, expenses (including reasonable attorneys' fees and reasonable
expenses) and liabilities that might be incurred by it in complying with such
request or direction including such reasonable advances as may be requested by
the Common Guarantee Trustee; provided that nothing contained in this Section
3.2(a)(vi) shall relieve the Common Guarantee Trustee, upon the occurrence of an
Event of Default, of its obligation to exercise the rights and powers vested in
it by this Trust Common Securities Guarantee and to use the same degree of care
and skill in its exercise thereof that a prudent person would exercise or use
under the circumstances in the conduct of such person's own affairs.
(vii) The Common Guarantee Trustee shall not be bound to make
any investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness or other
paper or document, but the Common Guarantee Trustee, in its discretion, may make
such further inquiry or investigation into such facts or matters as it may see
fit.
(viii) The Common Guarantee Trustee may execute any of the
trusts or powers hereunder or perform any duties hereunder either directly or by
or through agents, nominees, custodians or attorneys, and the Common Guarantee
Trustee shall not be responsible for any misconduct or negligence on the part of
any agent or attorney appointed with due care by it hereunder.
(ix) Any action taken by the Common Guarantee Trustee or its
agents hereunder shall bind the Holders of the Trust Common Securities, and the
signature of the Common Guarantee Trustee
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or its agents alone shall be sufficient and effective to perform any such
action. No third party shall be required to inquire as to the authority of the
Common Guarantee Trustee to so act or as to its compliance with any of the terms
and provisions of this Trust Common Securities Guarantee, both of which shall be
conclusively evidenced by the Common Guarantee Trustee's or its agent's taking
such action.
(x) Whenever in the administration of this Trust Common
Securities Guarantee the Common Guarantee Trustee shall deem it desirable to
receive instructions with respect to enforcing any remedy or right or taking any
other action hereunder, the Common Guarantee Trustee (i) may request
instructions from the Holders of a Majority in liquidation amount of the Trust
Common Securities, (ii) may refrain from enforcing such remedy or right or
taking such other action until such instructions are received, and (iii) shall
be protected in conclusively relying on or acting in accordance with such
instructions.
(xi) Except as otherwise expressly provided by this Trust
Common Securities Guarantee, the Common Guarantee Trustee shall not be liable
for any action taken, suffered, or omitted to be taken by it in good faith
(without willful misconduct) and reasonably believed by it to be authorized or
within the discretion or rights or powers conferred upon it by this Trust Common
Securities Guarantee.
(b) No provision of this Trust Common Securities Guarantee shall be
deemed to impose any duty or obligation on the Common Guarantee Trustee to
perform any act or acts or exercise any right, power, duty or obligation
conferred or imposed on it in any jurisdiction in which it shall be illegal, or
in which the Common Guarantee Trustee shall be unqualified or incompetent in
accordance with applicable law to perform any such act or acts or to exercise
any such right, power, duty or obligation. No permissive power or authority
available to the Common Guarantee Trustee shall be construed to be a duty.
Section 3.3 Not Responsible for Recitals or Issuance of Trust Common
Securities Guarantee. The recitals contained in this Trust Common Securities
Guarantee shall be taken as the statements of the Guarantor, and the Common
Guarantee Trustee does not assume any responsibility for their correctness. The
Common Guarantee Trustee makes no representation as to the validity or
sufficiency of this Trust Common Securities Guarantee.
ARTICLE IV..
COMMON GUARANTEE TRUSTEE
Section 4.1 Common Guarantee Trustee; Eligibility.
(a) There shall at all times be a Common Guarantee Trustee which
shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a corporation organized and doing business under the
laws of the United States of America or any state or territory thereof or of the
District of Columbia, or a Person permitted by the Securities and Exchange
Commission to act as an institutional trustee under the Trust Indenture Act,
authorized under such laws to exercise corporate trust powers, having a combined
capital and surplus of at least $50,000,000, and subject to supervision or
examination by federal, state, territorial or District of Columbia authority. If
such Person publishes reports of condition at least annually, pursuant to law or
to the requirements of the supervising or examining authority referred to above,
then, for the purposes of this Section 4.1(a)(ii), the combined capital and
surplus of such Person shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published.
(b) If at any time the Common Guarantee Trustee shall cease to be
eligible to so act under Section 4.1(a), the Common Guarantee Trustee shall
immediately resign in the manner and with the effect set out in Section 4.2(c).
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(c) If the Common Guarantee Trustee has or shall acquire any
"conflicting interest" within the meaning of Section 310(b) of the Trust
Indenture Act, the Common Guarantee Trustee and Guarantor shall in all respects
comply with the provisions of Section 310(b) of the Trust Indenture Act.
Section 4.2 Appointment, Removal and Resignation of Common Guarantee
Trustee.
(a) Subject to Section 4.2(c), the Common Guarantee Trustee may be
appointed or removed without cause at any time by the Guarantor.
(b) Subject to Section 4.2(c), the Common Guarantee Trustee may
resign from office (without need for prior or subsequent accounting) by an
instrument in writing executed by the Common Guarantee Trustee and delivered to
the Guarantor.
(c) The Common Guarantee Trustee shall hold office and shall not be
removed in accordance with Section 4.2(a) or resign in accordance with Section
4.2(b) unless and until a Successor Common Guarantee Trustee has been appointed
and has accepted such appointment by written instrument executed by such
Successor Common Guarantee Trustee and delivered to the Guarantor and, in the
case of a resignation in accordance with Section 4.2(b), the resigning Common
Guarantee Trustee.
(d) If no Successor Common Guarantee Trustee shall have been
appointed and accepted appointment as provided in this Section 4.2 within 60
days after delivery by or to the Guarantor of an instrument of removal or
resignation, the resigning or removed Common Guarantee Trustee may petition any
court of competent jurisdiction for appointment of a Successor Common Guarantee
Trustee. Such court may thereupon, after prescribing such notice, if any, as it
may deem proper, appoint a Successor Common Guarantee Trustee.
(e) No Common Guarantee Trustee shall be liable for the acts or
omissions to act of any Successor Common Guarantee Trustee.
(f) Upon termination of this Trust Common Securities Guarantee or
removal or resignation of the Common Guarantee Trustee pursuant to this Section
4.2, the Guarantor shall pay to the Common Guarantee Trustee all amounts accrued
to the date of such termination, removal or resignation.
ARTICLE V
TRUST COMMON SECURITIES GUARANTEE
Section 5.1 Trust Common Securities Guarantee. The Guarantor irrevocably
and unconditionally agrees to pay in full to the Holders the Guarantee Payments
(without duplication of amounts theretofore paid by the Trust), as and when due,
regardless of any defense, right of set-off or counterclaim that the Trust may
have or assert. The Guarantor's obligation to make a Guarantee Payment may be
satisfied by direct payment of the required amounts by the Guarantor to the
Holders or by causing the Trust to pay such amounts to the Holders.
Section 5.2 Subordination. If an Indenture Event of Default has occurred
and is continuing, the rights of holders of Trust Common Securities to receive
Guarantee Payments under this Trust Common Securities Guarantee are subordinate
to the rights of Holders of Trust Preferred Securities to receive Guarantee
Payments (as defined in the Trust Preferred Securities Guarantee) under the
Trust Preferred Securities Guarantee.
Section 5.3 Waiver Of Notice And Demand. The Guarantor hereby waives
notice of acceptance of this Trust Common Securities Guarantee and of any
liability to which it applies or may apply, presentment, demand for payment, any
right to require a proceeding first against the Trust or any other Person before
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proceeding against the Guarantor, protest, notice of nonpayment, notice of
dishonor, notice of redemption and all other notices and demands.
Section 5.4 Obligations Not Affected. The obligations, covenants,
agreements and duties of the Guarantor under this Trust Common Securities
Guarantee shall in no way be affected or impaired by reason of the happening
from time to time of any of the following:
(a) the release or waiver, by operation of law or otherwise, of the
performance or observance by the Trust of any express or implied agreement,
covenant, term or condition relating to the Trust Common Securities to be
performed or observed by the Trust;
(b) the extension of time for the payment by the Trust of all or any
portion of the Distributions, Redemption Price, Liquidation Distribution or any
other sums payable under the terms of the Trust Common Securities or the
extension of time for the performance of any other obligation under, arising out
of, or in connection with, the Trust Common Securities (other than an extension
of time for payment of Distributions payable that results from the deferral of
interest payments on the Debentures permitted by the Indenture);
(c) any failure, omission, delay or lack of diligence on the part of
the Holders to enforce, assert or exercise any right, privilege, power or remedy
conferred on the Holders pursuant to the terms of the Trust Common Securities,
or any action on the part of the Trust granting indulgence or extension of any
kind;
(d) the voluntary or involuntary liquidation, dissolution, sale of
any collateral, receivership, insolvency, bankruptcy, assignment for the benefit
of creditors, reorganization, arrangement, composition or readjustment of debt
of, or other similar proceedings affecting, the Trust or any of the assets of
the Trust;
(e) any invalidity of, or defect or deficiency in, the Trust Common
Securities;
(f) the settlement or compromise of any obligation guaranteed hereby
or hereby incurred; or
(g) any other circumstance whatsoever that might otherwise
constitute a legal or equitable discharge or defense of a guarantor, it being
the intent of this Section 5.4 that the obligations of the Guarantor hereunder
shall be absolute and unconditional under any and all circumstances.
There shall be no obligation of the Holders to give notice to, or obtain
consent of, the Guarantor with respect to the happening of any of the foregoing.
Section 5.5 Rights of Holders.
(a) The Holders of a Majority in liquidation amount of the Trust
Common Securities have the right to direct the time, method and place of the
conducting of any proceeding for any remedy available to the Common Guarantee
Trustee in respect of this Trust Common Securities Guarantee or exercising any
trust or power conferred upon the Common Guarantee Trustee under this Trust
Common Securities Guarantee.
(b) Any Holder may institute a legal proceeding directly against the
Guarantor to enforce the obligations of the Guarantor under this Trust Common
Securities Guarantee without first instituting a legal proceeding against the
Trust, the Common Guarantee Trustee or any other Person, and the
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Guarantor hereby waives any right to require that any such legal proceeding be
brought first against the Trust, the Common Guarantee Trustee or any other
Person before proceeding directly against the Guarantor.
(c) If an Indenture Event of Default constituting the failure to pay
interest, principal or premium, if any, on the Debentures on the date such
interest, principal or premium, if any, is otherwise payable has occurred and is
continuing, then a Holder may directly, at any time on or after the respective
due date specified in the Debentures for such payment, institute a proceeding
for enforcement of payment to such Holder of the interest, principal or premium,
if any, on the Debentures having a principal amount equal to the aggregate
liquidation amount of the Trust Common Securities of such Holder. The Holders
will not be able to exercise directly any other remedy available to the holders
of the Debentures unless the Property Trustee (as defined in the Indenture)
fails to do so.
Section 5.6 Guarantee of Payment. This Trust Common Securities Guarantee
creates a guarantee of payment and not of collection.
Section 5.7 Subrogation. The Guarantor shall be subrogated to all (if any)
rights of the Holders against the Trust in respect of any amounts paid to such
Holders by the Guarantor under this Trust Common Securities Guarantee; provided,
however, that the Guarantor shall not (except to the extent required by
mandatory provisions of law) be entitled to enforce or exercise any right that
it may acquire by way of subrogation or any indemnity, reimbursement or other
agreement, in all cases as a result of payment under this Trust Common
Securities Guarantee, if, at the time of any such payment, any amounts are due
and unpaid under this Trust Common Securities Guarantee. If any amount shall be
paid to the Guarantor in violation of the preceding sentence, the Guarantor
agrees to hold such amount in trust for the Holders and to pay over such amount
to the Holders.
Section 5.8 Independent Obligations. The Guarantor acknowledges that its
obligations hereunder are independent of the obligations of the Trust with
respect to the Trust Common Securities, and that the Guarantor shall be liable
as principal and as debtor hereunder to make Guarantee Payments pursuant to the
terms of this Trust Common Securities Guarantee notwithstanding the occurrence
of any event referred to in subsections (a) through (g), inclusive, of Section
5.4 hereof.
ARTICLE VI
LIMITATION OF TRANSACTIONS; SUBORDINATION
Section 6.1 Limitation of Transactions. So long as any Trust Common
Securities remain outstanding, if at any time (a) there shall have occurred and
be continuing an Indenture Event of Default or any event of which the Guarantor
has actual knowledge that (i) with the giving of notice or the lapse of time or
both, would constitute an Indenture Event of Default and (ii) the Guarantor
shall not have taken reasonable steps to cure, (b) the Guarantor shall be in
default with respect to its payment or other obligations under this Trust Common
Securities Guarantee, or (c) the Guarantor shall have exercised its option to
defer interest payments on the Debentures and such deferral period shall be
continuing, then the Guarantor shall not, and shall cause each of its
Subsidiaries not to,
(i) declare or pay dividends on, or make a distribution with
respect to, or redeem or purchase or acquire, or make a liquidation payment with
respect to, any of its capital stock or other equity securities other than (A)
any purchase or acquisition of Common Stock (or Common Stock equivalents) in
connection with the satisfaction by the Guarantor or the Subsidiary of its
obligations under any employee benefit plan or the satisfaction by the Guarantor
or the Subsidiary of its obligations pursuant to any contract or security
requiring the Guarantor or the Subsidiary to purchase Common Stock (or Common
Stock equivalents), (B) any purchase of Common Stock (or Common Stock
equivalents) from an officer or employee (or a Person performing similar
functions) of the Guarantor or any of its Subsidiaries upon termination of
employment or retirement not pursuant to any obligation under any contract or
security
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requiring the Guarantor or the Subsidiary to purchase such Common Stock (or
Common Stock equivalents), (C) as a result of a reclassification of the capital
stock or other equity securities of the Guarantor or any of its Subsidiaries or
the exchange or conversion of one class or series of capital stock or other
equity securities for another class or series of capital stock or other equity
securities of the Guarantor or any of its Subsidiaries, (D) any dividend or
distribution of Common Stock on Common Stock, (E) any purchase of fractional
interests in capital stock or other equity securities of the Guarantor or any of
its Subsidiaries pursuant to the conversion or exchange provisions of such
capital stock or other equity security being converted or exchanged, (F) any
declaration or payment of a dividend in connection with the implementation of a
Rights Plan or the redemption or repurchase of any rights distributed pursuant
to a Rights Plan, (G) any dividend or distribution by a Subsidiary of the
Guarantor to the Guarantor or another Subsidiary of the Guarantor, (H) any
distribution by WestCoast Hospitality Limited Partnership ("WHLP") to any Person
that is a partner in WHLP for federal income tax purposes so long as (x) at the
time of the distribution, the Guarantor has at least an 80% interest in the
income, gain, loss and deductions of WHLP, and (y) such distribution is required
by the Amended and Restated Agreement of Limited Partnership of WHLP, as in
effect on the date of original issuance of the Debentures, and (I) any
distribution by any other Subsidiary of the Guarantor that is not wholly owned
by the Guarantor, so long as none of the holders of equity interests in such
Subsidiary have any right to convert such equity securities into, or exchange
such equity securities for, Common Stock of the Guarantor;
(ii) make any payment of principal of, or premium, if any, or
interest on, or repay, repurchase or redeem, any debt securities issued by the
Guarantor that rank pari passu with or junior to the Debentures; or
(iii) make any guarantee payments with respect to any
guarantee (other than this Trust Common Securities Guarantee or the Trust
Preferred Securities Guarantee) by the Guarantor of any debt securities of any
Subsidiary, if such guarantee ranks pari passu with or junior to the Debentures.
Section 6.2 Ranking.
(a) This Trust Common Securities Guarantee will constitute an
unsecured obligation of the Guarantor and will rank (i) senior to the
Guarantor's Common Stock, and (ii) junior and subordinate in right of payment to
all other liabilities of the Guarantor except any liabilities that may be pari
passu expressly by their terms.
(b) The holders of any obligations of the Guarantor that are senior
in priority to the obligations under this Trust Common Securities Guarantee will
be entitled to all of the rights inuring to the holders of "Senior Debt" under
Article XII of the Indenture, and the Holders of the Trust Common Securities
will be subject to all of the terms and conditions of such Article XII with
respect to any claims or rights hereunder with the same effect as though fully
set forth herein.
ARTICLE VII
TERMINATION
Section 7.1 Termination. This Trust Common Securities Guarantee shall
terminate as to each Holder upon (i) full payment of the applicable Redemption
Price (as defined in the Declaration) with respect to all Trust Common
Securities, (ii) the distribution of the Debentures held by the Trust to the
Holders of all of the Trust Common Securities of the Trust or (iii) liquidation
of the Trust, and will terminate completely upon full payment of the amounts
payable in accordance with the Declaration. Notwithstanding the foregoing, this
Trust Common Securities Guarantee will continue to be effective or will be
reinstated, as the case may be, if at any time any Holder must restore payment
of any sums paid under the Trust Common Securities or under this Trust Common
Securities Guarantee.
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ARTICLE VIII
INDEMNIFICATION
Section 8.1 Exculpation.
(a) No Indemnified Person shall be liable, responsible or
accountable in damages or otherwise to the Guarantor or any Covered Person for
any loss, damage or claim incurred by reason of any act or omission performed or
omitted by such Indemnified Person in good faith in accordance with this Trust
Common Securities Guarantee and in a manner that such Indemnified Person
reasonably believed to be within the scope of the authority conferred on such
Indemnified Person by this Trust Common Securities Guarantee or by law, except
that an Indemnified Person shall be liable for any such loss, damage or claim
incurred by reason of such Indemnified Person's negligence or willful misconduct
with respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying in
good faith upon the records of the Guarantor and upon such information,
opinions, reports or statements presented to the Guarantor by any Person as to
matters the Indemnified Person reasonably believes are within such other
Person's professional or expert competence and who has been selected with
reasonable care by or on behalf of the Guarantor, including information,
opinions, reports or statements as to the value and amount of the assets,
liabilities, profits, losses, or any other facts pertinent to the existence and
amount of assets from which Distributions to Holders might properly be paid.
Section 8.2 Indemnification. The Guarantor agrees to indemnify each
Indemnified Person for, and to hold each Indemnified Person harmless against,
any loss, liability, claim, action, suit or expense of any kind or nature
whatsoever incurred without negligence or bad faith on its part, arising out of
or in connection with the acceptance or administration of the trust or trusts
hereunder, including the costs and expenses (including reasonable legal fees and
expenses) of defending itself against or investigating any claim or liability in
connection with the exercise or performance of any of its powers or duties
hereunder. The obligation to indemnify as set forth in this Section 8.2 shall
survive the termination of this Trust Common Securities Guarantee.
ARTICLE IX
MISCELLANEOUS
Section 9.1 Successors and Assigns. All guarantees and agreements
contained in this Trust Common Securities Guarantee shall bind the successors,
assigns, receivers, trustees and representatives of the Guarantor and shall
inure to the benefit of the Holders of the Trust Common Securities then
outstanding. Except in connection with any merger or consolidation of the
Guarantor with or into another entity or any sale, transfer or lease of the
Guarantor's assets to another entity, each as permitted by the Indenture, the
Guarantor may not assign its rights or delegate its obligations under this Trust
Common Securities Guarantee without the prior approval of the Holders of at
least a Majority in liquidation amount of the Trust Common Securities.
Section 9.2 Amendments. This Trust Common Securities Guarantee may only be
amended by a written instrument approved and executed by the Guarantor and the
Common Guarantee Trustee; provided, that, if any amendment adversely affects the
rights of Holders in any material respect, the amendment may be made only with
the prior approval of Holders of at least a Majority in liquidation amount of
the Trust Common Securities (the provisions of Section 12.2 of the Declaration
with respect to meetings of Holders of the Trust Common Securities shall apply
to the giving of such approval). No amendment shall be made, and any such
purported amendment shall be void and ineffective, unless the Common Guarantee
Trustee shall have first received (a) an Officers' Certificate from the
Guarantor that such amendment is permitted by, and conforms to, the terms of
this Trust Common Securities Guarantee, and (b) if the proposed amendment
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affects the rights, powers, duties, obligations or immunities of the Common
Guarantee Trustee, an opinion of counsel (who may be counsel to the Guarantor)
that such amendment is permitted by, and conforms to, the terms of this Trust
Common Securities Guarantee Declaration.
Section 9.3 Notices. All notices provided for in this Trust Common
Securities Guarantee shall be in writing, duly signed by the party giving such
notice, and shall be delivered, sent by facsimile or mailed by registered or
certified mail, as follows:
(a) if given to the Common Guarantee Trustee, at the Common
Guarantee Trustee's mailing address set forth below (or such other address as
the Common Guarantee Trustee may give notice of to the Holders of the Trust
Common Securities):
Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Administration
Fax: 000-000-0000
(b) if given to the Guarantor, at the Guarantor's mailing address
set forth below (or such other address as the Guarantor may give notice of to
the Holders of the Trust Preferred Securities):
WestCoast Hospitality Corporation
000 X. Xxxxx Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Chief Financial Officer
Fax: 000-000-0000
(c) If given to any Holder, at the address set forth on the
books and records of the Trust.
All such notices shall be deemed to have been given when received in person,
telecopied with receipt confirmed, or mailed by first class mail, postage
prepaid except that if a notice or other document is refused delivery or cannot
be delivered because of a changed address of which no notice was given, such
notice or other document shall be deemed to have been delivered on the date of
such refusal or inability to deliver.
Section 9.4 Benefit. This Trust Common Securities Guarantee is solely for
the benefit of the Holders of the Trust Common Securities and, subject to
Section 3.1(a), is not separately transferable from the Trust Common Securities.
Section 9.5 Governing Law. THIS TRUST COMMON SECURITIES GUARANTEE SHALL BE
GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF DELAWARE, AND ALL RIGHTS AND REMEDIES SHALL BE GOVERNED BY SUCH LAWS
WITHOUT REGARD TO ITS PRINCIPLES OF CONFLICTS OF LAWS.
[SIGNATURE PAGE FOLLOWS]
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This Trust Common Securities Guarantee is executed as of the day and year
first above written.
WESTCOAST HOSPITALITY CORPORATION
as Guarantor
By:
-----------------------------------
Xxxxxx X. Xxxxxx, President and CEO
WILMINGTON TRUST COMPANY,
as Common Guarantee Trustee
By:
----------------------------------
[Name and Title]
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