Exhibit 10.1
THIS GUARANTY is made as of April 27, 2007 (this
"Guaranty"), by Apollo Real Estate Investment Fund V, L.P. ("Guarantor") in
favor of Eagle Hospitality Properties Trust, Inc., a Maryland corporation (the
"Company"). Capitalized terms used and not otherwise defined herein shall have
the respective meanings ascribed to such terms in the Merger Agreement (as
defined below).
For value received, and to induce the Company to enter into
the Agreement and Plan of Merger, dated as of the date hereof, together with
any subsequent amendment or amendments thereto (the "Merger Agreement"), by
and among the Company, EHP Operating Partnership, L.P., a Maryland limited
partnership (the "Operating Partnership" and, together with the Company, the
"Company Parties"), AP AIMCAP Holdings LLC, a Maryland limited liability
company ("Parent"), and AP AIMCAP Corporation, a Maryland corporation and a
wholly owned subsidiary of Parent ("Merger Sub" and, together with Parent, the
"Parent Parties"), Guarantor hereby unconditionally and irrevocably guarantees
the punctual and complete payment when due of the payment obligations and the
timely performance when required of all other obligations of each of the
Parent Parties (if any), or any of their respective successors or assigns,
that arise under the Merger Agreement to the Company and/or its Subsidiaries
(collectively, the "Obligations") in an amount, in the aggregate, not to
exceed $15,750,000; provided however, notwithstanding anything herein to the
contrary, Guarantor shall not be liable hereunder to pay more than $1,000,000
in the aggregate with respect to amounts payable under Sections 7.03(a) and
7.07(d) of the Merger Agreement. It is understood and agreed that any payment
by any Parent Party with respect to the Obligations shall not reduce the
amount payable by Guarantor hereunder.
This Guaranty is an absolute, unconditional and continuing
guaranty of the full and punctual payment and performance of the Obligations.
This Guaranty is in no way conditioned upon any requirement that the Company
first attempt to collect the Obligations from the Parent Parties or resort to
any security or other means of collecting payment. A separate action may be
brought and prosecuted against Guarantor to enforce this Guaranty,
irrespective of whether any action is brought against any Parent Party or
whether any Parent Party is joined in any such action. The Company shall not
be obligated to file any claim relating to the Obligations in the event that
any Parent Party becomes subject to a bankruptcy, reorganization or similar
proceeding, and the failure of the Company to so file shall not affect
Guarantor's obligations hereunder. Should the Parent Parties default in the
payment or performance of any of the Obligations, Guarantor's obligations
hereunder shall become immediately due and payable to the Company. Claims
hereunder may be made on one or more occasions. If any payment in respect of
any Obligations is rescinded or must otherwise be returned for any reason
whatsoever, Guarantor shall remain liable hereunder with respect to such
Obligations as if such payment had not been made. If any amount shall be paid
to Guarantor in violation of the immediately preceding sentence at any time
prior to the payment in full in cash of the Obligations and all other amounts
payable under this Guaranty, such amount shall be received and held in trust
for the benefit of the Company, shall be segregated from other property and
funds of Guarantor and shall forthwith be paid or delivered to the Company in
the same form as so received (with any necessary endorsement or assignment) to
be credited and applied to the Obligations and all other amounts payable under
this Guaranty, in accordance with the terms of the Merger Agreement, whether
matured or
unmatured, or to be held as collateral for any Obligations or other amounts
payable under this Guaranty thereafter arising.
Guarantor agrees that the Company may at any time and from
time to time, without notice to or further consent of Guarantor, extend the
time of payment of any of the Obligations (provided that the foregoing shall
be subject to the consent of the Parent Parties to the extent such extension
involves an amendment of the Merger Agreement), and may also make any
agreement with Parent or Merger Sub for the extension, renewal, payment,
compromise, discharge or release thereof, in whole or in part, or for any
modification of the terms thereof or of any agreement between the Company and
the Parent Parties without in any way impairing or affecting the Guarantor's
obligations under this Guaranty. Guarantor hereby waives notice of acceptance
of this Guaranty and notice of the Obligations, promptness, diligence,
presentment, demand for payment, protest, notice of default, dishonor or
non-performance of the Obligations, notice of acceleration or intent to
accelerate the Obligations, and any other notice to the Parent Parties, all
defenses which may be available by virtue of any valuation, stay, moratorium
law or other similar law now or hereafter in effect, any right to require the
marshalling of assets of any Parent Party or any other person, and all
suretyship defenses generally, and the Company is not obligated to file any
suit or take any action, or provide any notice to the Parent Parties or
Guarantor, or others, except as expressly provided in the Merger Agreement or
in this Guaranty. Without limiting the generality of the foregoing, Guarantor
agrees that its obligations hereunder shall not be released or discharged, in
whole or in part, or otherwise affected by: (i) the failure (or delay) of the
Company to assert any claim or demand or to enforce any right or remedy
against any of the Parent Parties with respect to the Obligations; (ii) any
extensions or renewals of the Obligations; (iii) any rescissions, waivers,
amendments, modifications, compromises or consolidations of any terms or
provisions of the Merger Agreement or any other agreement evidencing, securing
or otherwise executed in connection with any of the Obligations; (iv) any lack
of validity or enforceability of the Merger Agreement against any of the
Parent Parties other than to the extent arising from fraud or willful
misconduct on the part of the Company; (v) the adequacy of any means available
to the Company to claim payment or performance of the Obligations; (vi) any
change in the limited liability company or corporate (or other applicable
entity) existence, structure or ownership of any of the Parent Parties or any
other person liable with respect to any of the Obligations; (vii) any
insolvency, bankruptcy, reorganization or other similar proceedings affecting
any of the Parent Parties or any other person liable with respect to any of
the Obligations; (viii) the existence of any claim, set-off or other rights
which Guarantor may have at any time against any Parent Party, whether in
connection with the Obligations or otherwise; (ix) the adequacy of any other
means the Company may have of obtaining repayment of any of the Obligations;
(x) except as otherwise provided herein, the addition, substitution or release
of any person or entities primarily or secondarily liable for the Obligations;
or (xi) any other act or omission that might in any means or to any extent
vary the risk of Guarantor or otherwise operate as a release or exchange of
Guarantor, all of which may be done without notice to Guarantor. Guarantor
acknowledges that it will receive substantial direct and indirect benefits
from the transactions contemplated by the Merger Agreement and that the
waivers set forth in the Guaranty are knowingly made in contemplation of such
benefits and after the advice of counsel.
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If any Parent Party defaults in the payment or performance
of any of the Obligations, Guarantor shall make such payment or performance or
otherwise cause such payment or performance to be made within ten (10)
business days after the receipt by Guarantor of written notice from the
Company of such default under the Merger Agreement; provided that in no event
will the total amounts paid by Guarantor under this Guaranty exceed in the
aggregate $15,750,000; provided however, notwithstanding anything herein to
the contrary, Guarantor shall not be liable hereunder to pay more than
$1,000,000 in the aggregate with respect to amounts payable under Sections
7.03(a) and 7.07(d) of the Merger Agreement. A payment or performance demand
shall be in writing and shall reasonably specify what amount a Parent Party
has failed to pay or perform, and an explanation of why such payment or
performance is due, with a specific statement that the Company is calling upon
Guarantor to pay or perform under this Guaranty.
Notwithstanding anything to the contrary contained herein
and subject to the limitations set forth in the immediately preceding
paragraph, the liabilities of Guarantor hereunder are limited solely to
monetary payments. All sums payable by Guarantor hereunder shall be made in
immediately available funds. Upon payment or performance of the Obligations
owing to the Company, Guarantor shall be subrogated to the rights of the
Company against the Parent Parties, and the Company agrees to take, at
Guarantor's expense, such steps as Guarantor may reasonably request to
implement such subrogation. However, Guarantor unconditionally and irrevocably
agrees not to exercise any rights that it may have or hereafter acquire
against any of the Parent Parties that arise from the existence, payment,
performance or enforcement of Guarantor's obligations under or in respect of
this Guaranty, including but not limited to any right of subrogation,
reimbursement, contribution, indemnification or similar right as to the Parent
Parties and any right to participate in any claim or remedy of the Company
against Parent and/or Merger Sub, whether or not such claim, remedy or right
arises in equity or under contract, statute or common law, including, without
limitation, the right to take or receive from Parent and/or Merger Sub,
directly or indirectly, in cash or other property or by set-off or in any
other manner, payment or security on account of such claim, remedy or right,
unless and until all of the Obligations shall have been paid in full in cash.
If any amount shall be paid to Guarantor in violation of the immediately
preceding sentence at any time prior to the payment in full in cash of the
Obligations and all other amounts payable under this Guaranty, such amount
shall be received and held in trust for the benefit of the Company, shall be
segregated from other property and funds of Guarantor and shall forthwith be
paid or delivered to the Company in the same form as so received (with any
necessary endorsement or assignment) to be credited and applied to the
Obligations and all other amounts payable under this Guaranty, in accordance
with the terms of the Merger Agreement, whether matured or unmatured, or to be
held as collateral for any Obligations or other amounts payable under this
Guaranty thereafter arising.
Guarantor hereby covenants and agrees that it shall not
institute any proceeding asserting that this Guaranty is illegal, invalid or
unenforceable in accordance with its terms.
Guarantor hereby represents and warrants that: (a) Guarantor
is duly formed, validly existing and in good standing as a limited partnership
under the laws of its jurisdiction of formation and has all limited
partnership power and authority to execute and deliver this Guaranty; (b) the
execution, delivery and performance of this
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Guaranty have been duly authorized by all necessary corporate or limited
partnership action and do not contravene any provision of Guarantor's
certificate of limited partnership, limited partnership agreement or similar
organizational documents or any law, regulation, rule, decree, order, judgment
or contractual restriction binding on Guarantor or any of its assets; (c) all
consents, approvals, authorizations, permits of, filings with and
notifications to, any governmental authority necessary for the due execution,
delivery and performance of this Guaranty by Guarantor have been obtained or
made and all conditions thereof have been duly complied with, and no other
action by, and no notice to or filing with, any governmental authority or
regulatory body is required in connection with the execution, delivery or
performance of this Guaranty; (d) this Guaranty constitutes a legal, valid and
binding obligation of Guarantor enforceable against Guarantor in accordance
with its terms, subject to (i) the effects of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium or other similar laws
affecting creditors' rights generally, and (ii) general equitable principles
(whether considered in a proceeding in equity or at law); (e) Guarantor has
the financial capacity to pay and perform its obligations under this Guaranty,
and all funds necessary for Guarantor to fulfill its Obligations under this
Guaranty shall be available to Guarantor for so long as this Guaranty shall
remain in effect in accordance with the terms herein; and (f) the Company has
required the execution of this Guaranty by Guarantor as a condition to the
execution by the Company of the Merger Agreement and the consummation of the
transactions provided for therein.
Subject to the next sentence, this Guaranty shall remain in
full force and effect and shall be binding upon Guarantor, its successors and
assigns, until all amounts payable under this Guaranty have been indefeasibly
paid in cash, observed, performed or satisfied in full. Notwithstanding the
foregoing, this Guaranty shall terminate and be of no further force and effect
and no party may attempt to enforce any rights hereunder upon and after the
earliest to occur of (1) the Effective Time (as such term is defined in the
Merger Agreement); (2) termination of the Merger Agreement by mutual written
consent pursuant to Section 9.01(a) thereof; (3) termination of the Merger
Agreement pursuant to Section 9.01(b) of the Merger Agreement; or (4)
termination of the Merger Agreement in any other circumstance except
termination pursuant to (x) Section 9.03(a)(iv) (other than termination
pursuant to the final proviso in such section), in which case this Guaranty
shall terminate with respect to any and all claims for Obligations made to the
Guarantor hereunder more than 180 days after such termination and (y) Section
9.03(a)(v).
This Guaranty shall apply in all respects to successors of
Guarantor and permitted assigns and inure to the Company and its successors
and permitted assigns. No party may assign its rights and obligations
hereunder (directly or indirectly) without the prior written consent of the
other party hereto.
THIS GUARANTY SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF MARYLAND APPLICABLE TO AGREEMENTS
ENTERED INTO AND PERFORMED ENTIRELY WITHIN SUCH STATE, WITHOUT GIVING EFFECT
TO ANY CHOICE OF LAW PROVISION OR RULE THEREOF.
No amendment or waiver of any provision of this Guaranty
shall be effective unless the same shall be in writing and signed by the
Company and Guarantor.
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No waiver by a party of any breach or violation of, or
default under, this Guaranty shall be deemed to extend to any prior or
subsequent breach, violation or default hereunder or to affect in any way any
rights arising by virtue of any such prior or subsequent occurrence. No
failure on the part of the Company to exercise, and no delay in exercising,
any right hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any right hereunder preclude any other or further exercise
thereof or the exercise of any other right.
This Guaranty contains the entire agreement of Guarantor
with respect to the matters set forth herein, except for the Merger Agreement.
The rights and remedies herein provided are cumulative and not exclusive of
any remedies provided by law and may be exercised by the Company at any time
from time to time. The invalidity or unenforceability of any one or more
sections of this Guaranty shall not affect the validity or enforceability of
its remaining provisions, provided that the parties hereto shall negotiate in
good faith to modify this Guaranty so as to effect the original intent of the
parties as closely as possible in a mutually acceptable manner in order that
the transactions contemplated hereby be consummated as originally contemplated
to the fullest extent possible.
This Guaranty may be executed in counterparts, all of which
shall be considered one and the same agreement and shall become effective when
one or more counterparts have been signed by each of the parties and delivered
to the other party. Facsimile transmission of any signed original document
shall be deemed the same as delivery of an original.
Guarantor agrees to pay the Company, on demand from time to
time, the amount of all expenses, including reasonable attorneys' fees and
expenses, paid or incurred by the Company in enforcing any of its rights
hereunder against Guarantor. Any payment by Guarantor under this paragraph
shall not reduce, limit or otherwise affect the other obligations of Guarantor
hereunder or be counted towards the $15,750,000 maximum amount set forth
herein.
[Signature Page Follows]
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IN WITNESS WHEREOF, Guarantor has caused this Guaranty to be
executed and delivered as of the date first written above by its officer
thereunto duly authorized.
GUARANTOR:
APOLLO REAL ESTATE INVESTMENT FUND
V, L.P.
By: Apollo Real Estate Advisors V, L.P.,
its General Partner
By: Apollo Real Estate Capital Advisors V, LLC
its General Partner
By: /s/ Xxxxxx Xxxxxx
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Name: Xxxxxx Xxxxxx
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Title: Vice President
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AGREED AND ACCEPTED
As of the date first written above
EAGLE HOSPITALITY PROPERTIES TRUST, INC.
By: /s/ J. Xxxxxxx Xxxxxxxx
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Name: J. Xxxxxxx Xxxxxxxx
Title: President and Chief Executive Officer
[Signature Page to Guaranty]
