EXHIBIT 4.6
EXECUTION VERSION
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TRUST COMMON SECURITIES GUARANTEE AGREEMENT
WestCoast Hospitality Corporation
Dated as of February 24, 2004
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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............................................................ 6
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........................................... 8
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..................... 10
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.......................................................... 11
Section 5.4 Obligations Not Affected............................................................. 11
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............................................................................... 14
Section 8.1 Exculpation.......................................................................... 14
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.............................................................................. 15
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 February 24, 2004, 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 February 24, 2004 (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
will issue and sell up to 56,908 securities (the "Trust Common Securities")
designated the "9.5% Trust Common Securities (Liquidation Amount of $25 per
Trust Common Security)," with a liquidation amount of $25 per Trust Common
Security, or up to $1,422,700 in the aggregate;
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 9.5% Junior Subordinated Debentures due February
24, 2044 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 February 24, 2004, 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.
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Section 3.2 Certain Rights of Common Guarantee Trustee.
(a) Subject to the provisions of Section 3.1:
(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
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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 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
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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).
(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
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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
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
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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
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
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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 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
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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.
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
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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 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 Common 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.
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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: /s/ Xxxxx X. Xxxxxxxx
--------------------------------------------
Xxxxx X. Xxxxxxxx
Vice President, Chief Financial Officer
WILMINGTON TRUST COMPANY,
as Preferred Guarantee Trustee
By: /s/ W. Xxxxx Xxxxxxxxxx
-------------------------------------------
Authorized Signatory
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