AMENDED AND RESTATED CONSOLIDATED GUARANTY AGREEMENT
Exhibit 10.23
AMENDED AND RESTATED CONSOLIDATED GUARANTY AGREEMENT
THIS AMENDED AND RESTATED CONSOLIDATED GUARANTY AGREEMENT (this “AGREEMENT”) is made and given as of February 16, 2005, by INTERCONTINENTAL HOTELS GROUP PLC, a corporation organized and existing under the laws of England and Wales (the “GUARANTOR”), for the benefit of HPT TRS IHG-1, INC., a Maryland corporation (together with its successors and assigns, “TRS1”), HPT TRS IHG-2, INC., a Maryland corporation (together with its successors and assigns, “TRS2”), HPT IHG PR, INC., a Puerto Rico corporation (together with its successors and assigns, “LANDLORD”), and HOSPITALITY PROPERTIES TRUST, a Maryland real estate investment trust (together with its successors and assigns, “TRUST”; and Trust together with XXX0, XXX0 and Landlord, collectively, “HPT”).
Agreement. The following terms as used in this Agreement shall have the meanings set forth below:
“ACCOUNTING PRINCIPLES” shall mean generally accepted accounting principles, as adopted in the United States of America, consistently applied or, if the Guarantor’s principal place of business is the United Kingdom, generally accepted accounting principles, as adopted in the United Kingdom, consistently applied.
“BASE GUARANTEED AMOUNT” shall mean the sum of One Hundred Twenty Five Million Dollars ($125,000,000).
“CANDLEWOOD MANAGEMENT AGREEMENT” shall mean that certain Management Agreement, dated as of October 27, 2003, between TRS1 and Existing Manager, as the same may be amended, modified, supplemented, or otherwise altered from time to time.
“COLLATERAL AGENCY AGREEMENT” shall mean a written agreement, in form and substance reasonably acceptable to HPT, among HPT, the Guarantor and the Collateral Agent pursuant to which the Collateral Agent shall agree to hold any cash delivered to such Collateral Agent pursuant to the terms of this Agreement as collateral agent on behalf of HPT, as the same may hereafter be amended, restated, modified, supplemented, or otherwise altered. Among other things, the Collateral Agency Agreement shall provide that (a) the Collateral Agent shall look solely to the Guarantor for any amounts owed to the Collateral Agent in connection with such agreement, (b) the Collateral Agent shall not offset any amount owed to the Collateral Agent against the cash delivered to it pursuant to the Collateral Agency Agreement and this Agreement, (c) the Collateral Agent shall hold such cash as trust funds and not commingle such cash with any assets of the Collateral Agent and (d) HPT shall be entitled to apply any cash collateral held by the Collateral Agent to the overdue obligations of the Guarantor hereunder in such order and at such times as HPT may determine in its sole judgment.
“COLLATERAL AGENT” shall mean a bank or other financial institution reasonably acceptable to HPT having a rating of not less than BBB-/Baa3 rating from the Rating Agencies, which bank or other financial institution is the collateral agent under the Collateral Agency Agreement as such collateral agent may be replaced in accordance with the terms of the Collateral Agency Agreement.
“COVERAGE DATE” shall mean the date which is the day after the second consecutive calendar year for which each of the
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following conditions has been satisfied: (a) the Priority Coverage Ratio under the Candlewood Management Agreement has equaled or exceeded 1.3; (b) the Staybridge Priority Coverage Ratio has equaled or exceeded 1.3; and (c) the quotient of (i) the sum of the numerators used in calculating both the PR Rent Coverage Ratio under this Agreement and the Priority Coverage Ratio under the New Management Agreement, divided by (ii) the sum of the denominators used in calculating both the PR Rent Coverage Ratio under this Agreement and the Priority Coverage Ratio under the New Management Agreement is equal to or exceeds 1.3.
“DOLLARS” and “$” shall mean dollars in lawful currency of the United States of America.
“EXISTING MANAGER” shall mean Intercontinental Hotels Group Resources, Inc.
“GUARANTEED AGREEMENTS” shall mean the Management Agreements and the PR Lease, collectively.
“GUARANTEED OBLIGATIONS” shall mean the payment to XXX0, XXX0, Landlord and Trust, as applicable, of: (a) all of the Owner’s First Priority as and when due under the Candlewood Management Agreement determined without respect to Gross Revenue thereunder or Operating Profits thereunder; (b) all of the Owner’s First Priority as and when due under the New Management Agreement determined without respect to Gross Revenue thereunder or Operating Profits thereunder; (c) all of the Owner’s Priority as and when due under the Staybridge Management Agreement determined without respect to Gross Revenue thereunder or Operating Profits thereunder; (d) all of the Minimum Rent as and when due under the PR Lease; and (e) any and all liquidated damages due to XXX0, XXX0 or Landlord under the Guaranteed Agreements.
“MANAGEMENT AGREEMENTS” shall mean the Staybridge Management Agreement, the Candlewood Management Agreement and the New Management Agreement, collectively.
“MANAGERS” shall mean the Existing Manager and the New Manager, collectively.
“NEW CANDLEWOOD GUARANTY” shall mean a Guaranty Agreement made by the Guarantor in favor of TRS1 and HPT and otherwise in the form attached hereto as EXHIBIT A.
“NEW GUARANTIES” shall mean the New Candlewood Guaranty and the New Staybridge Guaranty, collectively.
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“NEW MANAGEMENT AGREEMENT” shall mean that certain Management Agreement dated as of the date hereof between TRS2 and New Manager, as the same may be amended, modified, supplemented, or otherwise altered.
“NEW MANAGER” shall mean IHG Management (Maryland) LLC.
“NEW PORTFOLIO COVERAGE DATE” shall mean the date which is the day after the second (2nd) consecutive calendar year for which the quotient of (i) the sum of the numerators used in calculating both the PR Rent Coverage Ratio under this Agreement and the Priority Coverage Ratio under the New Management Agreement, divided by (ii) the sum of the denominators used in calculating both the PR Rent Coverage Ratio under this Agreement and the Priority Coverage Ratio under the New Management Agreement is equal to or exceeds 1.3.
“NEW STAYBRIDGE GUARANTY” shall mean a Guaranty Agreement made by the Guarantor in favor of TRS1 and HPT and otherwise in the form attached hereto as EXHIBIT B.
“OUTSTANDING BALANCE” shall mean, from time to time, the Base Guaranteed Amount, less the excess of the aggregate amount paid by the Guarantor under SECTION 3 hereof over the sum of the aggregate of any amounts reimbursed to the Guarantor pursuant to the terms of the Management Agreements.
“PR ADDITIONAL RENT” shall have the meaning given to the term “Additional Rent” in the PR Lease.
“PR GUARANTY” shall mean that certain Guaranty Agreement of even date herewith from PR Tenant to TRS2 and Trust, as the same may hereafter be amended, restated, modified, supplemented, or otherwise altered.
“PR OPERATING COSTS” shall have the meaning given to the term “Operating Costs” in the PR Lease.
“PR RENT COVERAGE RATIO” shall mean for any period, the quotient of (a) the excess of PR Total Hotel Sales over the sum of (i) PR Operating Costs (other than PR Minimum Rent and PR Additional Rent) and (ii) an imputed reserve for Capital Expenses equal to five percent (5%) of Total Hotel Sales for such period, divided by (b) the sum of PR Minimum Rent for such period.
“PR MINIMUM RENT” shall have the meaning given to the term “Minimum Rent” in the PR Lease.
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“PR TENANT” shall mean the tenant under the PR Lease.
“PR TOTAL HOTEL SALES” shall have the meaning given to the term “Total Hotel Sales” in the PR Lease.
“PROVIDE COLLATERAL” or “PROVIDED COLLATERAL” shall mean:
(a) delivery to HPT of (i) a Satisfactory Letter of Credit or (ii) cash in an amount equal to the then Outstanding Balance; or
(b) the deposit of cash equal to the then Outstanding Balance with the Collateral Agent to be held by the Collateral Agent in accordance with the Collateral Agency Agreement provided:(i) the Collateral Agency Agreement has been executed and delivered by the parties thereto; (ii) HPT has a perfected first priority security interest in any cash delivered to the Collateral Agent; (iii) HPT has received favorable opinions of counsel, in form and substance reasonably satisfactory to HPT, with respect to such perfected first priority interest, the valid existence and good standing of the other parties to the Collateral Agency Agreement, the due execution and delivery thereof by such other parties, the enforceability of the Collateral Agency Agreement against such parties, and that any cash held by the Collateral Agent pursuant to the Collateral Agency Agreement shall not be “property of the estate” of Collateral Agent should any event described in SECTIONS 17.1(a), (b) or (c) of the New Management Agreement shall occur with respect to the Collateral Agent; or
(c) delivery to HPT of other collateral satisfactory to HPT in its good faith discretion to secure the Guaranteed Obligations;
provided, however, the Guarantor shall not be deemed to have Provided Collateral if at any time the Outstanding Balance exceeds the sum of (i) the then remaining balance drawable under the Satisfactory Letter of Credit or the balance of the cash deposited by the Guarantor hereunder, PLUS (ii) proceeds of any Satisfactory Letter of Credit or cash deposited hereunder, in either case, applied to the Guaranteed Obligations.
“RATING AGENCIES” shall mean, collectively, Standards & Poor’s Rating Services or its successors and Xxxxx’x Investor Services, Inc. or its successors; PROVIDED, HOWEVER, if the Rating Agencies (i) cease operations without successors or (ii) cease to issue credit ratings, “Rating Agencies” shall mean a nationally recognized organization periodically issuing ratings
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of the financial strength and/or credit of United States domestic and international banking institutions reasonably agreed to by HPT and the Guarantor.
“REORGANIZATION” shall mean any merger, consolidation, reorganization, change of control or any transaction pursuant to which the Guarantor shall be or become a Subsidiary of any other Person.
“SATISFACTORY LETTER OF CREDIT” shall mean a clean irrevocable letter of credit in form and substance reasonably satisfactory to HPT in an amount equal to the Outstanding Balance issued by a bank with a credit rating of not less than A2/A (or, if after the date hereof the system of ratings used by the Rating Agencies changes in a material way, their then equivalents of such credit rating in HPT’s reasonable judgment) from the Rating Agencies, having an expiration date of not earlier than one year after the date on which it was issued and which permits for partial draws.
“SEVERANCE DATE” shall have the meaning given such term in SECTION 10 of this Agreement.
“STAYBRIDGE MANAGEMENT AGREEMENT” shall mean that certain Management Agreement, dated as of July 1, 2003, between TRS1 and Existing Manager, as the same may be amended, modified, supplemented, or otherwise altered from time to time.
“STAYBRIDGE PRIORITY COVERAGE RATIO” shall mean, for any period, the ratio of (a) the excess of Gross Revenue under the Staybridge Management Agreement for such period over the sum of the amounts distributed or applied for such period pursuant to SECTIONS 10.1(a), (b) (determined as though the Reserve Percentage thereunder for the Expansion Hotels (as defined in the Staybridge Management Agreement) was at all times five percent (5%)), (e), (g), (h), (i), (k) AND (l) of the Staybridge Management Agreement, to (b) the sum for such period of Owner’s Priority under that Agreement and Owner’s Percentage Priority under that Agreement.
“SUBSTITUTE GUARANTOR” shall mean a Person who assumes the Guarantor’s obligations hereunder in accordance with the terms of SECTION 2.7 below and is either (a) a Person who satisfies the Rating Agencies’ requirements for a single purpose bankruptcy remote entity who has Provided Collateral or (b) a Person(s) with (i) a tangible net worth determined in accordance with the Accounting Principles of not less than Seven Hundred Fifty Million Dollars ($750,000,000) and (ii) unencumbered assets with a fair market value of not less than One Hundred
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Million Dollars (exclusive of any note, instrument, security or claim issued by, against or in any way dependent on the credit of, an Affiliate of Guarantor).
2. REPRESENTATIONS AND COVENANTS. The Guarantor represents, warrants, covenants and agrees that:
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(a) The Guarantor shall at all times maintain a tangible net worth determined in accordance with the Accounting Principles in an amount not less than Five Hundred Million Dollars ($500,000,000) or if there has been a Reorganization, or if the Guarantor is not the originally named Guarantor, Seven Hundred Fifty Million Dollars ($750,000,000); and
(b) The Guarantor shall not engage in any Reorganization unless following such Reorganization it has (i) a tangible net worth determined in accordance with the Accounting Principles in an amount not less than Seven Hundred Fifty Million Dollars ($750,000,000) and (ii) unencumbered assets with a fair market value of not less than One Hundred Million Dollars ($100,000,000) (exclusive of any note, instrument, security or claim issued by, against or in any way dependent on the credit of, an Affiliate of Guarantor).
(a) Upon the termination of the Guarantor’s obligations under SECTION 3 or if the Outstanding Balance equals zero dollars ($0), HPT will return to the Guarantor any Satisfactory Letter of Credit previously delivered to HPT or any unapplied cash collateral then being held by HPT hereunder and shall direct the Collateral Agent to return any cash being held by it under the Collateral Agency Agreement to the Guarantor.
(b) HPT shall be entitled to draw upon any Satisfactory Letter of Credit delivered to it (i) for the full amount thereof if at any time there is less than thirty (30) days until the expiry date of such Satisfactory Letter of Credit; (ii) for the full amount thereof if the bank that issued such Satisfactory Letter of Credit shall not have a credit rating of at least A/A2 (or, if after the date hereof the system of ratings used by the Rating Agencies changes in a material way, their then equivalents in HPT’s reasonable judgment) from the Rating Agencies and such satisfactory Letter of Credit shall not have been replaced within thirty (30) days with a new Satisfactory Letter of Credit delivered to HPT; or (iii) to the extent and in the amounts then due and payable hereunder, if the Guarantor shall fail to pay or perform any of its obligations under this Agreement in accordance with the terms hereof.
(c) HPT shall be entitled to apply any cash collateral held by it or the Collateral Agent to the overdue obligations of the Guarantor hereunder in such order and at such times as HPT may determine in its sole judgment. Any cash collateral held by HPT shall not be commingled with its other funds, and shall be invested, at the Guarantor’s risk, in interest bearing
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investments reasonably acceptable to the Guarantor. Any interest on such cash collateral, and any losses in such investments, shall belong to IHG.
(a) a Substitute Guarantor shall assume pursuant to a written instrument satisfactory to HPT all of the Guarantor’s obligations hereunder; and
(b) HPT shall receive an opinion of counsel satisfactory to HPT with respect to, among other things, the existence and good standing of the Substitute Guarantor and the due execution, delivery and enforceability of such assumption.
Upon the satisfaction of the foregoing conditions and the expiration of all applicable preference or similar periods, HPT shall deliver a release to the Departing Guarantor of its obligations under SECTION 3 hereof and the Substitute Guarantor shall be deemed the “Guarantor” hereunder. Further, if the Substitute Guarantor has Provided Collateral or has (i) a tangible net worth determined in accordance with the Accounting Principles of not less than Seven Hundred Fifty Million Dollars ($750,000,000) and (ii) unencumbered assets with a fair market value of not less than One Hundred Million Dollars (exclusive of any note, instrument, security or claim issued by, against or in any way dependent on the credit of, an Affiliate of Guarantor), HPT shall return to the Departing Guarantor any letter of credit or cash delivered by the Departing Guarantor and held by HPT hereunder and shall direct the Collateral Agent to return to the Departing Guarantor any cash delivered by the Departing Guarantor and held by such Collateral Agent pursuant to the terms of the Collateral Agency Agreement.
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(a) The Guarantor hereby unconditionally guarantees that the Guaranteed Obligations which become due and payable shall be paid in full when due and payable subject to any applicable cure periods, whether upon demand, at the stated or accelerated maturity thereof or upon any mandatory or voluntary prepayment pursuant to any Guaranteed Agreement, or otherwise.
(b) This guarantee is a guarantee of payment and not of collectibility and is absolute and in no way conditional or contingent. In case any part of the Guaranteed Obligations shall not have been paid when due and payable or performed at the time performance is required, subject to any applicable cure periods, the Guarantor shall, pay or cause to be paid to HPT the amount thereof as is then due and payable and unpaid (including interest and other charges, if any, due thereon through the date of payment in accordance with the applicable provisions of the Transaction Documents) or perform or cause to be performed such obligations in accordance with the Transaction Documents. Simultaneously with the giving of any notice of default to the Managers or PR Tenant under the Guaranteed Agreements, TRS1, TRS2 or Landlord, as applicable, shall give a copy of such notice to the Xxxxxxxxx. XXX0, XXX0 or Landlord, as applicable, shall accept any cure of such default by the Guarantor provided such cure is completed within the applicable cure period under the applicable Guaranteed Agreement.
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rendered unenforceable by the invalidity of any such other guarantee or security or by any waiver, amendment, release or modification thereof.
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of the foregoing or the extension or renewal thereof, or the modification or amendment made with the consent of the Guarantor of any duty, agreement or obligation of the Managers, PR Tenant or any other guarantor set forth in any of the foregoing, or the voluntary or involuntary sale or other disposition of all or substantially all the assets of the Managers, PR Tenant or any other guarantor or insolvency, bankruptcy, or other similar proceedings affecting the Managers, PR Tenant or any other guarantor or any assets of the Managers, PR Tenant or any such other guarantor, or the release or discharge of the Managers, PR Tenant or any such other guarantor from the performance or observance of any agreement, covenant, term or condition contained in any of the foregoing without the consent of the holders of the Guaranteed Obligations by operation of law.
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shall be subject to early termination upon the Coverage Date; PROVIDED FURTHER, HOWEVER, if at any time, all or any part of any payment applied on account of the Guaranteed Obligations is or must be rescinded or returned for any reason whatsoever (including, without limitation, the insolvency, bankruptcy or reorganization of the Managers or PR Tenant), this Agreement, to the extent such payment is or must be rescinded or returned, shall be deemed to have continued in existence notwithstanding any such termination. Notwithstanding anything contained in this Agreement to the contrary, in no event shall the Guarantor’s liability under SECTION 3 exceed the Outstanding Balance.
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mail), or with all freight charges prepaid (if by Federal Express or similar carrier).
(b) All notices required or permitted to be sent hereunder shall be deemed to have been given for all purposes of this Agreement upon the date of acknowledged receipt, in the case of a notice by telecopier, and, in all other cases, upon the date of receipt or refusal, except that whenever under this Agreement a notice is either received on a day which is not a Business Day or is required to be delivered on or before a specific day which is not a Business Day, the day of receipt or required delivery shall automatically be extended to the next Business Day.
(c) All such notices shall be addressed,
if to HPT to:
c/o Hospitality Properties Trust
000 Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xx. Xxxx X. Xxxxxx
[Telecopier No. (000) 000-0000]
with a copy to:
Xxxxxxxx & Worcester LLP
Xxx Xxxx Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxxxxxx, Esq.
[Telecopier No. (000) 000-0000]
if to the Guarantor to:
Intercontinental Hotels Group PLC
00 Xxxx Xxxx
Xxxxxxx
Xxxxxxxxx XX0 0XX
ENGLAND
Attn: Company Secretary
Telecopier No. x00 0000 000000
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with a copy to:
Intercontinental Hotels Resources Group, Inc.
Xxxxx Xxxxxxx Xxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attn: Vice President, Asset Management
[Telecopier No. 000-000-0000]
(d) By notice given as herein provided, the parties hereto and their respective successors and assigns shall have the right from time to time and at any time during the term of this Agreement to change their respective addresses effective upon receipt by the other parties of such notice and each shall have the right to specify as its address any other address within the United States of America.
13. APPLICABLE LAW. Except as to matters regarding the internal affairs of HPT and issues of or limitations on any personal liability of the shareholders and trustees of HPT for obligations of HPT, as to which the laws of the State of Maryland shall govern, this Agreement and any other instruments executed and delivered to evidence, complete or perfect the transactions contemplated hereby shall be interpreted, construed, applied and enforced in accordance with the laws of New York applicable to contracts between residents of New York which are to be performed entirely within New York, regardless of (i) where any such instrument is executed or delivered; or (ii) where any payment or other performance required by any such instrument is made or required to be made; or (iii) where any breach of any provision of any such instrument occurs, or any cause of action otherwise accrues; or (iv) where any action or other proceeding is instituted or pending; or (v) the nationality, citizenship, domicile, principal place of business, or jurisdiction of organization or domestication of any party; or (vi) whether the laws of the forum jurisdiction otherwise would apply the laws of a jurisdiction other than New York; or (vii) any combination of the foregoing.
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All actions and proceedings arising out of or in any way relating to this Agreement shall be brought, heard, and determined exclusively in an otherwise appropriate federal or state court located within the State of New York. Guarantor hereby (i) submits to the exclusive jurisdiction of any New York federal or state court of otherwise competent jurisdiction for the purpose of any action or proceeding arising out of or relating to this Agreement and (ii) voluntarily and irrevocably waives, and agrees not to assert by way of motion, defense, or otherwise in any such action or proceeding, any claim or defense that it is not personally subject to the jurisdiction of such a court, that such a court lacks personal jurisdiction over Guarantor or the matter, that the action or proceeding has been brought in an inconvenient or improper forum, that the venue of the action or proceeding is improper, or that this Agreement may not be enforced in or by such a court. To the maximum extent permitted by applicable law, Guarantor consents to service of process by registered mail, return receipt requested, or by any other manner provided by law.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES HERETO WAIVES ITS RIGHTS TO TRIAL BY JURY WITH RESPECT TO THIS AGREEMENT OR ANY MATTER ARISING IN CONNECTION HEREWITH.
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20. NONLIABILITY OF TRUSTEES. THE DECLARATION OF TRUST ESTABLISHING TRUST, A COPY OF WHICH, TOGETHER WITH ALL AMENDMENTS THERETO (THE “DECLARATION”), IS DULY FILED WITH THE DEPARTMENT OF ASSESSMENTS AND TAXATION OF THE STATE OF MARYLAND, PROVIDES THAT, AND THE GUARANTOR HEREBY AGREES THAT, THE NAME “HOSPITALITY PROPERTIES TRUST” REFERS TO THE TRUSTEES UNDER THE DECLARATION COLLECTIVELY AS TRUSTEES, BUT NOT INDIVIDUALLY OR PERSONALLY, AND THAT NO TRUSTEE, OFFICER, SHAREHOLDER, EMPLOYEE OR AGENT OF TRUST SHALL BE HELD TO ANY PERSONAL LIABILITY, JOINTLY OR SEVERALLY, FOR ANY OBLIGATION OF, OR CLAIM AGAINST, TRUST. ALL PERSONS DEALING WITH TRUST, IN ANY WAY, SHALL LOOK ONLY TO THE ASSETS OF TRUST FOR THE PAYMENT OF ANY SUM OR THE PERFORMANCE OF ANY OBLIGATION.
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WITNESS the execution hereof under seal as of the date above first written.
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INTERCONTINENTAL HOTELS GROUP PLC |
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/s/ Xxxxxxx Xxxxxxx |
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Xxxxxxx Xxxxxxx |
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Director |
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/s/ Xxxxx Porters |
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Xxxxx Porters |
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Director |
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ACKNOWLEDGED AND AGREED: |
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HPT TRS IHG-1, INC. |
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/s/ Xxxx X. Xxxxxx |
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Xxxx X. Xxxxxx |
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Vice President |
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HPT TRS IHG-2, INC. |
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Xxxx X. Xxxxxx |
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Vice President |
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HPT IHG PR, INC. |
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Xxxx X. Xxxxxx |
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President |
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Xxxx X. Xxxxxx |
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President |
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EXHIBIT A
NEW CANDLEWOOD GUARANTY
GUARANTY AGREEMENT
THIS GUARANTY AGREEMENT (this “AGREEMENT”) is made and given as of , 20 , by INTERCONTINENTAL HOTELS GROUP PLC, a corporation organized and existing under the laws of England and Wales (the “GUARANTOR”), for the benefit of HPT TRS IHG-1, INC., a Maryland corporation (together with its successors and assigns, the “TENANT”), and HOSPITALITY PROPERTIES TRUST, a Maryland real estate investment trust (together with its successors and assigns, “TRUST”; and Trust together with the Tenant, “HPT”).
WHEREAS, on February , 2005, the Guarantor delivered to HPT that certain Amended and Restated Consolidated Guaranty Agreement (the “CONSOLIDATED GUARANTY”); and
hereinafter defined). The following terms as used in this Agreement shall have the meanings set forth below:
“ACCOUNTING PRINCIPLES” shall mean generally accepted accounting principles, as adopted in the United States of America, consistently applied or, if the Guarantor’s principal place of business is the United Kingdom, generally accepted accounting principles, as adopted in the United Kingdom, consistently applied.
“COLLATERAL AGENCY AGREEMENT” shall mean a written agreement, in form and substance reasonably acceptable to HPT, among HPT, the Guarantor and the Collateral Agent pursuant to which the Collateral Agent shall agree to hold any cash delivered to such Collateral Agent pursuant to the terms of this Agreement as collateral agent on behalf of HPT, as the same may be amended, restated, supplemented or otherwise modified from time to time with the consent of the parties thereto. Among other things, the Collateral Agency Agreement shall provide that (a) the Collateral Agent shall look solely to the Guarantor for any amounts owed to the Collateral Agent in connection with such agreement, (b) the Collateral Agent shall not offset any amount owed to the Collateral Agent against the cash delivered to it pursuant to the Collateral Agency Agreement and this Agreement, (c) the Collateral Agent shall hold such cash as trust funds and not commingle such cash with any assets of the Collateral Agent and (d) HPT shall be entitled to apply any cash collateral held by the Collateral Agent to the overdue obligations of the Guarantor hereunder in such order and at such times as HPT may determine in its sole judgment.
“COLLATERAL AGENT” shall mean a bank or other financial institution reasonably acceptable to HPT having a rating of not less than BBB-/Baa3 rating from the Rating Agencies, which bank or other financial institution is the collateral agent under the Collateral Agency Agreement as such collateral agent may be replaced in accordance with the terms of the Collateral Agency Agreement.
“COVERAGE DATE” shall mean the date which is the day after the second (2nd) consecutive calendar year for which the Priority Coverage Ratio is equal to or exceeds 1.3.
“GUARANTEED OBLIGATIONS” shall mean the payment to Tenant of (a) all of the Owner’s First Priority as and when due under the Management Agreement determined without respect to Gross Revenue or Operating Profits and (b) any and all liquidated damages due to Tenant under the Management Agreement.
A-2
“MANAGEMENT AGREEMENT” shall mean [that certain Amended and Restated Management Agreement, dated as of January , 2005, between TRS1 and Manager] with respect to certain hotels being operated under the “Candlewood” brand] [that certain Management Agreement, dated as of October 27, 2003, between TRS1 and Manager], as the same may be amended, modified, supplemented, or otherwise altered from time to time.
“MANAGER” shall mean Intercontinental Hotels Group Resources, Inc.
“OUTSTANDING BALANCE” shall mean, from time to time, Fifty Million Dollars ($50,000,000), less the excess of the aggregate amount paid by the Guarantor under SECTION 3 hereof over the aggregate of any amounts reimbursed to the Guarantor pursuant to the terms of the Management Agreement.
“PROVIDE COLLATERAL” or “PROVIDED COLLATERAL” shall mean:
(a) delivery to HPT of (i) a Satisfactory Letter of Credit or (ii) cash in an amount equal to the then Outstanding Balance; or
(b) the deposit of cash equal to the then Outstanding Balance with the Collateral Agent to be held by the Collateral Agent in accordance with the Collateral Agency Agreement provided:(i) the Collateral Agency Agreement has been executed and delivered by the parties thereto; (ii) HPT has a perfected first priority security interest in any cash delivered to the Collateral Agent; (iii) HPT has received favorable opinions of counsel, in form and substance reasonably satisfactory to HPT, with respect to such perfected first priority interest, the valid existence and good standing of the other parties to the Collateral Agency Agreement, the due execution and delivery thereof by such other parties, the enforceability of the Collateral Agency Agreement against such parties, and that any cash held by the Collateral Agent pursuant to the Collateral Agency Agreement shall not be “property of the estate” of Collateral Agent should any event described in SECTIONS 17.1(a), (b) or (c) of the Management Agreement shall occur with respect to the Collateral Agent; or
(c) delivery to HPT of other collateral satisfactory to HPT in its good faith discretion to secure the Guaranteed Obligations;
provided, however, the Guarantor shall not be deemed to have Provided Collateral if at any time the Outstanding Balance
A-3
exceeds the sum of (i) the then remaining balance drawable under the Satisfactory Letter of Credit or the balance of the cash deposited by the Guarantor hereunder, PLUS (ii) proceeds of any Satisfactory Letter of Credit or cash deposited hereunder, in either case, applied to the Guaranteed Obligations.
“RATING AGENCIES” shall mean, collectively, Standard’s & Poor’s Rating Services or its successor and Xxxxx’x Investor Services, Inc. or its successors; PROVIDED, HOWEVER, if the Rating Agencies (i) cease operations without successors or (ii) cease to issue credit ratings, “Rating Agencies” shall mean a nationally recognized organization periodically issuing ratings of the financial strength and/or credit of United States domestic and international banking institutions reasonably agreed to by HPT and the Guarantor.
“REORGANIZATION” shall mean any merger, consolidation, reorganization, change of control or any transaction pursuant to which the Guarantor shall be or become a Subsidiary of any other Person.
“SATISFACTORY LETTER OF CREDIT” shall mean a clean irrevocable letter of credit in form and substance reasonably satisfactory to HPT in an amount equal to the Outstanding Balance issued by a bank with a credit rating of not less than A2/A (or, if after the date hereof the system of ratings used by the Rating Agencies changes in a material way, their then equivalents of such credit rating in HPT’s reasonable judgment) from the Rating Agencies, having an expiration date of not earlier than one year after the date on which it was issued and which permits for partial draws.
“SUBSTITUTE GUARANTOR” shall mean a Person who assumes the Guarantor’s obligations hereunder in accordance with the terms of SECTION 2.7 below and is either (a) a Person who satisfies the Rating Agencies’ requirements for a single purpose bankruptcy remote entity who has Provided Collateral or (b) a Person(s) with (i) a tangible net worth determined in accordance with the Accounting Principles not less than Seven Hundred Fifty Million Dollars ($750,000,000) and (ii) unencumbered assets with a fair market value of not less than One Hundred Million Dollars (exclusive of any note, instrument, security or claim issued by, against or in any way dependent on the credit of, an Affiliate of Guarantor).
2. REPRESENTATIONS AND COVENANTS. The Guarantor represents, warrants, covenants and agrees that:
A-4
(a) The Guarantor shall at all times maintain a tangible net worth determined in accordance with the Accounting Principles in an amount not less than Five Hundred Million Dollars ($500,000,000) or if there has been a Reorganization, or if the Guarantor is not the originally named Guarantor, Seven Hundred Fifty Million Dollars ($750,000,000); and
A-5
(b) The Guarantor shall not engage in any Reorganization unless following such Reorganization it has (i) a tangible net worth determined in accordance with the Accounting Principles in an amount not less than Seven Hundred Fifty Million Dollars ($750,000,000) and (ii) unencumbered assets with a fair market value of not less than One Hundred Million Dollars ($100,000,000) (exclusive of any note, instrument, security or claim issued by, against or in any way dependent on the credit of, an Affiliate of Guarantor).
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Xxxx Xxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx 00000-0000, Attn: Managing Partner as its agent for service of process. The Guarantor acknowledges and agrees that service of process on such agent shall constitute service of process on Guarantor with respect to any and all claims hereunder or under any other Transaction Document.
(a) a Substitute Guarantor shall assume pursuant to a written instrument satisfactory to HPT all of the Guarantor’s obligations hereunder; and
(b) HPT shall receive an opinion of counsel satisfactory to HPT with respect to, among other things, the existence and good standing of the Substitute Guarantor and the due execution, delivery and enforceability of such assumption.
Upon the satisfaction of the foregoing conditions and the expiration of all applicable preference or similar periods, HPT shall deliver a release to the Departing Guarantor of its obligations hereunder and the Substitute Guarantor shall be deemed the “Guarantor” hereunder. Further, if the Substitute Guarantor has Provided Collateral or has (i) a tangible net worth determined in accordance with the Accounting Principles of not less than Seven Hundred Fifty Million Dollars ($750,000,000) and (ii) unencumbered assets with a fair market value of not less than One Hundred Million Dollars (exclusive of any note, instrument, security or claim issued by, against or in any way dependent on the credit of, an Affiliate of Guarantor), HPT shall return to the Departing Guarantor any letter of credit or cash delivered by the Departing Guarantor and held by HPT hereunder and shall direct the Collateral Agent to return to the Departing Guarantor any cash delivered by the Departing Guarantor and held by such Collateral Agent pursuant to the terms of the Collateral Agency Agreement.
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(a) The Guarantor hereby unconditionally guarantees that the Guaranteed Obligations which become due and payable during the term of the Management Agreement shall be paid in full when due and payable subject to any applicable cure periods, whether upon demand, at the stated or accelerated maturity thereof or upon any mandatory or voluntary prepayment pursuant to any Transaction Document, or otherwise.
(b) This guarantee is a guarantee of payment and not of collectibility and is absolute and in no way conditional or contingent. In case any part of the Guaranteed Obligations shall not have been paid when due and payable or performed at the time performance is required, subject to any applicable cure periods, the Guarantor shall, pay or cause to be paid to HPT the amount thereof as is then due and payable and unpaid (including interest and other charges, if any, due thereon through the date of payment in accordance with the applicable provisions of the Transaction Documents) or perform or cause to be performed such obligations in accordance with the Transaction Documents. Simultaneously with the giving of any notice of default to the Manager under the Management Agreement, Tenant shall give a copy of such notice to the Guarantor. Tenant shall accept any cure of such default by the Guarantor provided such cure is completed within the applicable cure period under the Management Agreement.
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guarantee or security or by any waiver, amendment, release or modification thereof.
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guarantor set forth in any of the foregoing, or the voluntary or involuntary sale or other disposition of all or substantially all the assets of the Manager or any other guarantor or insolvency, bankruptcy, or other similar proceedings affecting the Manager or any other guarantor or any assets of the Manager or any such other guarantor, or the release or discharge of the Manager or any such other guarantor from the performance or observance of any agreement, covenant, term or condition contained in any of the foregoing without the consent of the holders of the Guaranteed Obligations by operation of law.
A-10
be rescinded or returned, shall be deemed to have continued in existence notwithstanding any such termination. Notwithstanding anything contained in this Agreement to the contrary, in no event shall the Guarantor’s liability under SECTION 3 hereof exceed the sum of Fifty Million Dollars ($50,000,000) less (ii) the aggregate amount paid by the Guarantor under SECTION 3 in excess of the aggregate of any amounts reimbursed to it pursuant to the terms of the Management Agreement.
(b) All notices required or permitted to be sent hereunder shall be deemed to have been given for all purposes of this Agreement upon the date of acknowledged receipt, in the case of a notice by telecopier, and, in all other cases, upon the date of receipt or refusal, except that whenever under this Agreement a notice is either received on a day which is not a Business Day or is required to be delivered on or before a specific day which is not a Business Day, the day of receipt or required delivery shall automatically be extended to the next Business Day.
(c) All such notices shall be addressed,
if to HPT to:
c/o Hospitality Properties Trust
000 Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xx. Xxxx X. Xxxxxx
[Telecopier No. (000) 000-0000]
with a copy to:
Xxxxxxxx & Worcester LLP
Xxx Xxxx Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxxxxxx, Esq.
[Telecopier No. (000) 000-0000]
A-11
if to the Guarantor to:
Intercontinental Hotels Group PLC
00 Xxxx Xxxx
Xxxxxxx
Xxxxxxxxx XX0 0XX
ENGLAND
Attn: Company Secretary
Telecopier No. x00 0000 000000
with a copy to:
Intercontinental Hotels Resources Group, Inc.
Xxxxx Xxxxxxx Xxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attn: Vice President, Asset Management
[Telecopier No. 000-000-0000]
(d) By notice given as herein provided, the parties hereto and their respective successors and assigns shall have the right from time to time and at any time during the term of this Agreement to change their respective addresses effective upon receipt by the other parties of such notice and each shall have the right to specify as its address any other address within the United States of America.
12. APPLICABLE LAW. Except as to matters regarding the internal affairs of HPT and issues of or limitations on any personal liability of the shareholders and trustees of HPT for obligations of HPT, as to which the laws of the State of Maryland shall govern, this Agreement and any other instruments executed and delivered to evidence, complete or perfect the transactions contemplated hereby shall be interpreted, construed, applied and enforced in accordance with the laws of New York applicable to contracts between residents of New York which are to be performed entirely within New York, regardless of (i) where any such instrument is executed or delivered; or (ii) where any payment or other performance required by any such
A-12
instrument is made or required to be made; or (iii) where any breach of any provision of any such instrument occurs, or any cause of action otherwise accrues; or (iv) where any action or other proceeding is instituted or pending; or (v) the nationality, citizenship, domicile, principal place of business, or jurisdiction of organization or domestication of any party; or (vi) whether the laws of the forum jurisdiction otherwise would apply the laws of a jurisdiction other than Massachusetts; or (vii) any combination of the foregoing.
All actions and proceedings arising out of or in any way relating to this Agreement shall be brought, heard, and determined exclusively in an otherwise appropriate federal or state court located within the State of New York. Guarantor hereby (i) submits to the exclusive jurisdiction of any New York federal or state court of otherwise competent jurisdiction for the purpose of any action or proceeding arising out of or relating to this Agreement and (ii) voluntarily and irrevocably waives, and agrees not to assert by way of motion, defense, or otherwise in any such action or proceeding, any claim or defense that it is not personally subject to the jurisdiction of such a court, that such a court lacks personal jurisdiction over Guarantor or the matter, that the action or proceeding has been brought in an inconvenient or improper forum, that the venue of the action or proceeding is improper, or that this Agreement may not be enforced in or by such a court. To the maximum extent permitted by applicable law, Guarantor consents to service of process by registered mail, return receipt requested, or by any other manner provided by law.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES HERETO WAIVES ITS RIGHTS TO TRIAL BY JURY WITH RESPECT TO THIS AGREEMENT OR ANY MATTER ARISING IN CONNECTION HEREWITH.
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further exercise, or the exercise of any other right, power or privilege.
19. NONLIABILITY OF TRUSTEES. THE DECLARATION OF TRUST ESTABLISHING TRUST, A COPY OF WHICH, TOGETHER WITH ALL AMENDMENTS THERETO (THE “DECLARATION”), IS DULY FILED WITH THE DEPARTMENT OF ASSESSMENTS AND TAXATION OF THE STATE OF MARYLAND, PROVIDES THAT, AND THE GUARANTOR HEREBY AGREES THAT, THE NAME “HOSPITALITY PROPERTIES TRUST” REFERS TO THE TRUSTEES UNDER THE DECLARATION COLLECTIVELY AS TRUSTEES, BUT NOT INDIVIDUALLY OR PERSONALLY, AND THAT NO TRUSTEE, OFFICER, SHAREHOLDER, EMPLOYEE OR AGENT OF TRUST SHALL BE HELD TO ANY PERSONAL LIABILITY, JOINTLY OR SEVERALLY, FOR ANY OBLIGATION OF, OR CLAIM AGAINST, TRUST. ALL PERSONS DEALING WITH TRUST, IN ANY WAY, SHALL LOOK ONLY TO THE ASSETS OF TRUST FOR THE PAYMENT OF ANY SUM OR THE PERFORMANCE OF ANY OBLIGATION.
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WITNESS the execution hereof under seal as of the date above first written.
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HPT TRS IHG-1, INC. |
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X-00
XXXXXXX X
XXX XXXXXXXXXX XXXXXXXX
GUARANTY AGREEMENT
THIS GUARANTY AGREEMENT (this “AGREEMENT”) is made and given as of , 20 , by INTERCONTINENTAL HOTELS GROUP PLC, a corporation organized and existing under the laws of England and Wales (the “GUARANTOR”), for the benefit of HPT TRS IHG-1, INC., a Maryland corporation (together with its successors and assigns, the “TENANT”), and HOSPITALITY PROPERTIES TRUST, a Maryland real estate investment trust (together with its successors and assigns, “Trust”; and Trust together with the Tenant, “HPT”).
WHEREAS, on February , 2005, the Guarantor delivered to HPT that certain Amended and Restated Consolidated Guaranty Agreement (the “CONSOLIDATED GUARANTY”); and
ascribed to such terms in the Management Agreement. The following terms as used in this Agreement shall have the meanings set forth below:
“ACCOUNTING PRINCIPLES” shall mean generally accepted accounting principles, as adopted in the United States of America, consistently applied or, if the Guarantor’s principal place of business is the United Kingdom, generally accepted accounting principles, as adopted in the United Kingdom, consistently applied.
“COLLATERAL AGENCY AGREEMENT” shall mean a written agreement, in form and substance reasonably acceptable to HPT, among HPT, the Guarantor and the Collateral Agent pursuant to which the Collateral Agent shall agree to hold any cash delivered to such Collateral Agent pursuant to the terms of this Agreement as collateral agent on behalf of HPT, as the same may be amended, restated, supplemented or otherwise modified from time to time with the consent of the parties thereto. Among other things, the Collateral Agency Agreement shall provide that (a) the Collateral Agent shall look solely to the Guarantor for any amounts owed to the Collateral Agent in connection with such agreement, (b) the Collateral Agent shall not offset any amount owed to the Collateral Agent against the cash delivered to it pursuant to the Collateral Agency Agreement and this Agreement, (c) the Collateral Agent shall hold such cash as trust funds and not commingle such cash with any assets of the Collateral Agent and (d) HPT shall be entitled to apply any cash collateral held by the Collateral Agent to the overdue obligations of the Guarantor hereunder in such order and at such times as HPT may determine in its sole judgment.
“COLLATERAL AGENT” shall mean a bank or other financial institution reasonably acceptable to HPT having a rating of not less than BBB-/Baa3 rating from the Rating Agencies, which bank or other financial institution is the collateral agent under the Collateral Agency Agreement as such collateral agent may be replaced in accordance with the terms of the Collateral Agency Agreement.
“COVERAGE DATE” shall mean the date which is the day after the second (2nd) consecutive calendar year for which the Priority Coverage Ratio is equal to or exceeds 1.3.
“GUARANTEED OBLIGATIONS” shall mean the payment to Tenant of (a) all of the Owner’s Priority as and when due under the Management Agreement determined without respect to Gross Revenue or Operating Profits and (b) any and all liquidated damages due to Tenant under the Management Agreement.
B-2
“MANAGEMENT AGREEMENT” shall mean [that certain Amended and Restated Management Agreement, dated as of January . 2005], between TRS1 and Manager, with respect to certain hotels being operated under the “Staybridge” brand] [that certain Management Agreement, dated as of July 1, 2003, between TRS1 and Manager] as the same may be amended, modified, supplemented, or otherwise altered from time to time.
“MANAGER” shall mean Intercontinental Hotels Group Resources, Inc.
“OUTSTANDING BALANCE” shall mean, from time to time, the Seventy Million Dollars ($70,000,000) less the excess of the aggregate amount paid by the Guarantor under SECTION 3 hereof over the aggregate amount reimbursed to the Guarantor pursuant to SECTION 10.1(l) of the Management Agreement.
“PROVIDE COLLATERAL” or “PROVIDED COLLATERAL” shall mean:
(a) delivery to HPT of (i) a Satisfactory Letter of Credit or (ii) cash in an amount equal to the then Outstanding Balance; or
(b) the deposit of cash equal to the then Outstanding Balance with the Collateral Agent to be held by the Collateral Agent in accordance with the Collateral Agency Agreement provided:(i) the Collateral Agency Agreement has been executed and delivered by the parties thereto; (ii) HPT has a perfected first priority security interest in any cash delivered to the Collateral Agent; (iii) HPT has received favorable opinions of counsel, in form and substance reasonably satisfactory to HPT, with respect to such perfected first priority interest, the valid existence and good standing of the other parties to the Collateral Agency Agreement, the due execution and delivery thereof by such other parties, the enforceability of the Collateral Agency Agreement against such parties, and that any cash held by the Collateral Agent pursuant to the Collateral Agency Agreement shall not be “property of the estate” of Collateral Agent should any event described in SECTIONS 17.1(a), (b) or (c) of the Management Agreement shall occur with respect to the Collateral Agent; or
(c) delivery to HPT of other collateral satisfactory to HPT in its good faith discretion to secure the Guaranteed Obligations;
provided, however, the Guarantor shall not be deemed to have Provided Collateral if at any time the Outstanding Balance exceeds the sum of (i) the then remaining balance drawable under
B-3
the Satisfactory Letter of Credit or the balance of the cash deposited by the Guarantor hereunder, PLUS (ii) proceeds of any Satisfactory Letter of Credit or cash deposited hereunder, in either case, applied to the Guaranteed Obligations.
“PRIORITY COVERAGE RATIO” shall mean, for any period, the ratio of (a) the excess of Gross Revenue for such period over the sum of the amounts distributed or applied for such period pursuant to SECTIONS 10.1(a), (b), (e), (g), (h), (i), (k) AND (l) of the Management Agreement, to (b) the sum for such period of Owner’s Priority and Owner’s Percentage Priority.
“RATING AGENCIES” shall mean, collectively, Standard’s & Poor’s Rating Services or its successor and Xxxxx’x Investor Services, Inc. or its successors; PROVIDED, HOWEVER, if the Rating Agencies (i) cease operations without successors or (ii) cease to issue credit ratings, “Rating Agencies” shall mean a nationally recognized organization periodically issuing ratings of the financial strength and/or credit of United States domestic and international banking institutions reasonably agreed to by HPT and the Guarantor.
“REORGANIZATION” shall mean any merger, consolidation, reorganization, change of control or any transaction pursuant to which the Guarantor shall be or become a Subsidiary of any other Person.
“SATISFACTORY LETTER OF CREDIT” shall mean a clean irrevocable letter of credit in form and substance reasonably satisfactory to HPT in an amount equal to the Outstanding Balance issued by a bank with a credit rating of not less than A2/A (or, if after the date hereof the system of ratings used by the Rating Agencies changes in a material way, their then equivalents of such credit rating in HPT’s reasonable judgment) from the Rating Agencies, having an expiration date of not earlier than one year after the date on which it was issued and which permits for partial draws.
“SUBSTITUTE GUARANTOR” shall mean a Person who assumes the Guarantor’s obligations hereunder in accordance with the terms of SECTION 2.7 below and is either (a) a Person who satisfies the Rating Agencies’ requirements for a single purpose bankruptcy remote entity who has Provided Collateral or (b) a Person(s) with (i) a tangible net worth determined in accordance with the Accounting Principles not less than Seven Hundred Fifty Million Dollars ($750,000,000) and (ii) unencumbered assets with a fair market value of not less than One Hundred Million Dollars (exclusive of any note, instrument, security or claim issued by,
B-4
against or in any way dependent on the credit of, an Affiliate of Guarantor).
2. REPRESENTATIONS AND COVENANTS. The Guarantor represents, warrants, covenants and agrees that:
B-5
(a) The Guarantor shall at all times maintain a tangible net worth determined in accordance with the Accounting Principles in an amount not less than Five Hundred Million Dollars ($500,000,000) or if there has been a Reorganization, or if the Guarantor is not the originally named Guarantor, Seven Hundred Fifty Million Dollars ($750,000,000); and
(b) The Guarantor shall not engage in any Reorganization unless following such Reorganization it has (i) a tangible net worth determined in accordance with the Accounting Principles in an amount not less than Seven Hundred Fifty Million Dollars ($750,000,000) and (ii) unencumbered assets with a fair market value of not less than One Hundred Million Dollars ($100,000,000) (exclusive of any note, instrument, security or claim issued by, against or in any way dependent on the credit of, an Affiliate of Guarantor).
B-6
Guarantor. Any interest on such cash collateral, and any losses in such investments, shall belong to IHG.
(a) a Substitute Guarantor shall assume pursuant to a written instrument satisfactory to HPT all of the Guarantor’s obligations hereunder; and
(b) HPT shall receive an opinion of counsel satisfactory to HPT with respect to, among other things, the existence and good standing of the Substitute Guarantor and the due execution, delivery and enforceability of such assumption.
Upon the satisfaction of the foregoing conditions and the expiration of all applicable preference or similar periods, HPT shall deliver a release to the Departing Guarantor of its obligations hereunder and the Substitute Guarantor shall be deemed the “Guarantor” hereunder. Further, if the Substitute Guarantor has Provided Collateral or has (i) a tangible net worth determined in accordance with the Accounting Principles of not less than Seven Hundred Fifty Million Dollars ($750,000,000) and (ii) unencumbered assets with a fair market value of not less than One Hundred Million Dollars (exclusive of any note, instrument, security or claim issued by, against or in any way dependent on the credit of, an Affiliate of Guarantor), HPT shall return to the Departing Guarantor any letter of credit or cash delivered by the Departing Guarantor and held by HPT hereunder and shall direct the Collateral Agent to return to the Departing Guarantor any cash delivered by the Departing Guarantor and held by such Collateral Agent pursuant to the terms of the Collateral Agency Agreement.
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(a) The Guarantor hereby unconditionally guarantees that the Guaranteed Obligations which become due and payable during the term of the Management Agreement shall be paid in full when due and payable subject to any applicable cure periods, whether upon demand, at the stated or accelerated maturity thereof or upon any mandatory or voluntary prepayment pursuant to any Transaction Document, or otherwise.
(b) This guarantee is a guarantee of payment and not of collectibility and is absolute and in no way conditional or contingent. In case any part of the Guaranteed Obligations shall not have been paid when due and payable or performed at the time performance is required, subject to any applicable cure periods, the Guarantor shall, pay or cause to be paid to HPT the amount thereof as is then due and payable and unpaid (including interest and other charges, if any, due thereon through the date of payment in accordance with the applicable provisions of the Transaction Documents) or perform or cause to be performed such obligations in accordance with the Transaction Documents. Simultaneously with the giving of any notice of default to the Manager under the Management Agreement, Tenant shall give a copy of such notice to the Guarantor. Tenant shall accept any cure of such default by the Guarantor provided such cure is completed within the applicable cure period under the Management Agreement.
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guarantee or security or by any waiver, amendment, release or modification thereof.
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guarantor set forth in any of the foregoing, or the voluntary or involuntary sale or other disposition of all or substantially all the assets of the Manager or any other guarantor or insolvency, bankruptcy, or other similar proceedings affecting the Manager or any other guarantor or any assets of the Manager or any such other guarantor, or the release or discharge of the Manager or any such other guarantor from the performance or observance of any agreement, covenant, term or condition contained in any of the foregoing without the consent of the holders of the Guaranteed Obligations by operation of law.
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be rescinded or returned, shall be deemed to have continued in existence notwithstanding any such termination. Notwithstanding anything contained in this Agreement to the contrary, the Guarantor’s liability under SECTION 3 hereof in the aggregate shall not exceed (a) for the period ending on December 31, 2005, (i) Fifty Million Dollars ($50,000,000) with respect to the portion of Owner’s Priority attributable to the Original Hotels and (ii) an additional Sixteen Million Dollars ($16,000,000) with respect to the portion of Owner’s Priority attributable to the Expansion Hotels, and (b) thereafter, Seventy Million Dollars ($70,000,000) with respect to the entire amount of Owner’s Priority; PROVIDED, HOWEVER, such liability shall be reduced by any advances made by Manager under Section 10.3 of the Management Agreement which Manager elects to be deemed advances hereunder pursuant to said Section and such liability shall be increased by any reimbursements made to the Guarantor pursuant to Section 10.1(l) of the Management Agreement.
(b) All notices required or permitted to be sent hereunder shall be deemed to have been given for all purposes of this Agreement upon the date of acknowledged receipt, in the case of a notice by telecopier, and, in all other cases, upon the date of receipt or refusal, except that whenever under this Agreement a notice is either received on a day which is not a Business Day or is required to be delivered on or before a specific day which is not a Business Day, the day of receipt or required delivery shall automatically be extended to the next Business Day.
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(c) All such notices shall be addressed,
if to HPT to:
c/o Hospitality Properties Trust
000 Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xx. Xxxx X. Xxxxxx
[Telecopier No. (000) 000-0000]
with a copy to:
Xxxxxxxx & Worcester LLP
Xxx Xxxx Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxxxxxx, Esq.
[Telecopier No. (000) 000-0000]
if to the Guarantor to:
Intercontinental Hotels Group PLC
00 Xxxx Xxxx
Xxxxxxx
Xxxxxxxxx XX0 0XX
ENGLAND
Attn: Company Secretary
Telecopier No. x00 0000 000000
with a copy to:
Intercontinental Hotels Group, Inc.
Xxxxx Xxxxxxx Xxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attn: Vice President, Asset Management
[Telecopier No. 000-000-0000]
(d) By notice given as herein provided, the parties hereto and their respective successors and assigns shall have the right from time to time and at any time during the term of this Agreement to change their respective addresses effective upon receipt by the other parties of such notice and each shall have the right to specify as its address any other address within the United States of America.
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the Guaranteed Obligations; and all representations, warranties, covenants and agreements by or on behalf of the Guarantor which are contained in this Agreement shall inure to the benefit of HPT’s successors and assigns, including, without limitation, such holders, whether so expressed or not.
All actions and proceedings arising out of or in any way relating to this Agreement shall be brought, heard, and determined exclusively in an otherwise appropriate federal or state court located within the State of New York. Guarantor hereby (i) submits to the exclusive jurisdiction of any New York federal or state court of otherwise competent jurisdiction for the purpose of any action or proceeding arising out of or relating to this Agreement and (ii) voluntarily and irrevocably waives, and agrees not to assert by way of motion, defense, or otherwise in any such action or proceeding, any claim or defense that it is not personally subject to the jurisdiction of such a court, that such a court lacks personal jurisdiction over Guarantor or the matter, that the action or proceeding has been brought in an inconvenient or improper forum, that the venue of the action or proceeding is improper, or that this Agreement may not be enforced in or by such a court. To the maximum extent permitted by applicable law, Guarantor consents to service of process by registered mail, return receipt requested, or by any other manner provided by law.
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TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES HERETO WAIVES ITS RIGHTS TO TRIAL BY JURY WITH RESPECT TO THIS AGREEMENT OR ANY MATTER ARISING IN CONNECTION HEREWITH.
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other remedy given hereunder or now or hereafter existing at law or in equity or by statute or otherwise.
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WITNESS the execution hereof under seal as of the date above first written.
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ACKNOWLEDGED AND AGREED: |
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