SECOND AMENDED AND RESTATED GUARANTY AGREEMENT
THIS SECOND AMENDED AND RESTATED GUARANTY AGREEMENT (this "Agreement")
is made and given as of this 11th day of April, 2002, by CANDLEWOOD HOTEL
COMPANY, INC., a Delaware corporation (the "Guarantor"), for the benefit of HPT
CW PROPERTIES TRUST, a Maryland real estate investment trust (the "Landlord"),
and HOSPITALITY PROPERTIES TRUST, a Maryland real estate investment trust and
the sole stockholder of Landlord (together with the Landlord and their
respective successors and assigns, "HPT").
W I T N E S S E T H :
WHEREAS, pursuant to an Agreement to Lease, dated November 19, 1997 (as
amended, the "Agreement to Lease"), the Landlord and Candlewood Leasing No. 1,
Inc., a Delaware corporation (the "Tenant"), are, on the date hereof, entering
into a Second Amended and Restated Lease Agreement (the "Second Amended Lease")
with respect to certain real property, the related improvements and personal
property, as more particularly described therein; and
WHEREAS, it is a condition precedent to the Landlord's entering into the
Second Amended Lease that the Guarantor guarantee all of the payment and
performance obligations of the Tenant with respect to the Second Amended Lease;
and
WHEREAS, the transactions contemplated by the Second Amended Lease are
of direct material benefit to the Guarantor;
NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the mutual receipt and legal sufficiency of which are
hereby acknowledged, the parties hereto hereby agree as follows:
1. CERTAIN TERMS. Capitalized terms used and not otherwise defined in
this Agreement shall have the meanings ascribed to such terms in the Second
Amended Lease. The Second Amended Lease and the Incidental Documents are herein
collectively referred to as the "Transaction Documents."
2. GUARANTEED OBLIGATIONS. For purposes of this Agreement, the term
"Guaranteed Obligations" shall mean the payment and performance of each and
every obligation of the Tenant to HPT under the Transaction Documents, whether
now existing or hereafter arising, and including, without
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limitation, the payment of the full amount of the Rent payable under the Second
Amended Lease.
3. REPRESENTATIONS AND COVENANTS. The Guarantor represents, warrants,
covenants and agrees that:
3.1 PERFORMANCE OF COVENANTS AND AGREEMENTS. During the term of
this Agreement, the Guarantor will cause the Tenant duly and punctually to
perform all of the covenants and agreements of Tenant set forth in the
Transaction Documents.
3.2 VALIDITY OF AGREEMENT. The Guarantor has duly and validly
executed and delivered this Agreement; this Agreement constitutes the legal,
valid and binding obligation of the Guarantor, enforceable against the Guarantor
in accordance with its terms, except as enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws of general
application affecting the rights and remedies of creditors; and the execution,
delivery and performance of this Agreement have been duly authorized by all
requisite action of the Guarantor and such execution, delivery and performance
by the Guarantor will not result in any breach of the terms, conditions or
provisions of, or conflict with or constitute a default under, or result in the
creation of any lien, charge or encumbrance upon any of the property or assets
of the Guarantor pursuant to the terms of, any indenture, mortgage, deed of
trust, note, other evidence of indebtedness, agreement or other instrument to
which the Guarantor is a party or by which the Guarantor or any property or
assets of the Guarantor is bound, or violate any provision of law applicable to
the Guarantor, or any order, writ, injunction, judgement or decree of any court
applicable to the Guarantor or any order or other public regulation of any
governmental commission, bureau or administrative agency applicable to the
Guarantor.
3.3 PAYMENT OF EXPENSES. The Guarantor agrees, as principal
obligor and not as Guarantor only, to pay to HPT forthwith, upon demand, in
immediately available Federal funds, all costs and expenses (including court
costs and reasonable legal expenses) incurred or expended by HPT in connection
with the enforcement of this Agreement, together with interest on amounts
recoverable under this Agreement from the time such amounts become due until
payment at the Interest Rate.
3.4 REPORTS. The Guarantor shall promptly provide to HPT each of
the financial reports, certificates and other
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documents required of the Guarantor under the Transaction Documents.
3.5 LEGAL EXISTENCE. The Guarantor shall do or cause to be done
all things necessary to preserve and keep in full force and effect its corporate
existence.
3.6 FINANCIAL CONDITION OF GUARANTOR. The Guarantor shall at all
times maintain Net Worth in an amount of at least Seventy-Five Million Dollars
($75,000,000).
4. GUARANTEE. The Guarantor hereby unconditionally guarantees that the
Guaranteed Obligations which are monetary obligations which become due and
payable during the term of this Agreement shall be paid in full when due and
payable, whether upon demand, at the stated or accelerated maturity thereof or
upon any mandatory or voluntary prepayment pursuant to any Transaction Document,
or otherwise, and that the Guaranteed Obligations which are performance
obligations which are required to be performed during the term of this Agreement
shall be fully performed at the times and in the manner such performance is
required by the Transaction Documents. With respect to the Guaranteed
Obligations which are monetary obligations, 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, the
Guarantor shall, within five (5) days after receipt of notice from HPT, 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.
5. UNENFORCEABILITY OF GUARANTEED OBLIGATIONS, ETC. If the Tenant is for
any reason under no legal obligation to discharge any of the Guaranteed
Obligations, or if any other moneys included in the Guaranteed Obligations have
become unrecoverable from the Tenant by operation of law or for any other
reason, including, without limitation, the invalidity or irregularity in whole
or in part of any Guaranteed Obligation or of any Transaction Document or any
limitation on the liability of the Tenant thereunder or any limitation on the
method or terms of payment thereunder which may now or hereafter be caused or
imposed in any manner whatsoever, the guarantees contained in this Agreement
shall nevertheless remain in full force and
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effect in accordance with the terms set forth herein and shall be binding upon
the Guarantor to the same extent as if the Guarantor at all times had been the
principal debtor on all such Guaranteed Obligations.
6. ADDITIONAL GUARANTEES. This Agreement shall be in addition to any
other guarantee or other security for the Guaranteed Obligations and it shall
not be prejudiced or rendered unenforceable by the invalidity of any such other
guarantee or security or by any waiver, amendment, release or modification
thereof.
7. CONSENTS AND WAIVERS, ETC. The Guarantor hereby acknowledges receipt
of correct and complete copies of each of the Transaction Documents and consents
to all of the terms and provisions thereof, as the same may be from time to time
hereafter amended or changed in accordance therewith, and waives, to the extent
the Guarantor lawfully may do so, (a) presentment, demand for payment, and
protest of nonpayment, of any of the Guaranteed Obligations, (b) notice of
acceptance of this Agreement and of diligence, presentment, demand and protest,
(c) notice of any default hereunder and any default, breach or nonperformance or
Event of Default under any of the Guaranteed Obligations or the Transaction
Documents, except as expressly provided in Section 4, (d) notice of the terms,
time and place of any private or public sale of collateral held as security for
the Guaranteed Obligations, (e) demand for performance or observance of, and any
enforcement of any provision of, or any pursuit or exhaustion of rights or
remedies against the Tenant or any other guarantor of the Guaranteed
Obligations, under or pursuant to the Transaction Documents, or any agreement
directly or indirectly relating thereto and any requirements of diligence or
promptness on the part of the holders of the Guaranteed Obligations in
connection therewith, and (f) any and all demands and notices of every kind and
description with respect to the foregoing or which may be required to be given
by any statute or rule of law.
8. NO IMPAIRMENT, ETC. The obligations, covenants, agreements and duties
of the Guarantor under this Agreement shall not be affected or impaired by any
assignment or transfer in whole or in part of any of the Guaranteed Obligations
without notice to the Guarantor, or any waiver by HPT or any holder of any of
the Guaranteed Obligations or by the holders of all of the Guaranteed
Obligations of the performance or observance by the Tenant or any other
guarantor of any of the agreements, covenants, terms or conditions contained in
the Guaranteed
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Obligations or the Transaction Documents or any indulgence in or the extension
of the time for payment by the Tenant or any other guarantor of any amounts
payable under or in connection with the Guaranteed Obligations or the
Transaction Documents or any other instrument or agreement relating to the
Guaranteed Obligations or of the time for performance by the Tenant or any other
guarantor of any other obligations under or arising out of any of the foregoing
or the extension or renewal thereof, or the modification or amendment (whether
material or otherwise) of any duty, agreement or obligation of the 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 Tenant or any other guarantor or insolvency, bankruptcy, or other similar
proceedings affecting the Tenant or any other guarantor or any assets of the
Tenant or any such other guarantor, or the release or discharge of the 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.
9. REIMBURSEMENT, SUBROGATION, ETC. The Guarantor hereby covenants and
agrees that the Guarantor will not enforce or otherwise exercise any rights of
reimbursement, subrogation, contribution or other similar rights against the
Tenant or any other person with respect to the Guaranteed Obligations prior to
the payment in full of all amounts then due and owing but unpaid with respect to
the Second Amended Lease, and until the Guaranteed Obligations have been
satisfied in full, the Guarantor shall not have any right of subrogation, and
the Guarantor waives any defense it may have based upon any election of remedies
by HPT which destroys the Guarantor's subrogation rights or the Guarantor's
rights to proceed against the Tenant for reimbursement, including, without
limitation, any loss of rights the Guarantor may suffer by reason of any rights,
powers or remedies of the Tenant in connection with any anti-deficiency laws or
any other laws limiting, qualifying or discharging the indebtedness to HPT.
Until all obligations of the Tenant pursuant to the Transaction Documents shall
have been paid and satisfied in full, the Guarantor waives any right to enforce
any remedy which HPT now has or may in the future have against the Tenant, any
other guarantor or any other person and any benefit of, or any right to
participate in, any security whatsoever now or in the future held by HPT.
10. DEFEASANCE. This Agreement shall terminate at such time as the
Guaranteed Obligations have been paid and performed
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in full and all other obligations of the Guarantor to HPT under this Agreement
have been satisfied in full; provided, 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 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.
11. NOTICES. (a) Any and all notices, demands, consents, approvals,
offers, elections and other communications required or permitted under this
Agreement shall be deemed adequately given if in writing and the same shall be
delivered either in hand, by telecopier with written acknowledgment of receipt,
or by mail or Federal Express or similar expedited commercial carrier, addressed
to the recipient of the notice, postpaid and registered or certified with return
receipt requested (if by 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: Xxxxx X. Xxxxxxxx, Esq.
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[Telecopier No. (000) 000-0000]
if to the Guarantor to:
Candlewood Hotel Company, Inc.
0000 X. 00xx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxxx 00000
Attn: Mr. Xxx Xxxxxxx
[Telecopier No. (000) 000-0000]
with a copy to:
Xxxxxx & Xxxxxxx
000 X. Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx Xxxxx, Esq.
[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. SUCCESSORS AND ASSIGNS. Whenever in this Agreement, any of the
parties hereto is referred to, such reference shall be deemed to include the
successors and assigns of such party, including without limitation the holders,
from time to time, of 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.
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 The Commonwealth of Massachusetts applicable to
contracts between residents of Massachusetts which are to be performed entirely
within Massachusetts, regardless of (i) where any such
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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 Massachusetts; or (vii) any
combination of the foregoing.
To the maximum extent permitted by applicable law, any action to
enforce, arising out of, or relating in any way to, any of the provisions of
this Agreement may be brought and prosecuted in such court or courts located in
The Commonwealth of Massachusetts as may be provided by law; and the parties
consent to the jurisdiction of said court or courts located in Massachusetts and
to service of process by registered mail, return receipt requested, or by any
other manner provided by law.
14. MODIFICATION OF AGREEMENT. No modification or waiver of any
provision of this Agreement, nor any consent to any departure by the Guarantor
therefrom, shall in any event be effective unless the same shall be in writing
and signed by HPT, and such modification, waiver or consent shall be effective
only in the specific instances and for the purpose for which given. No notice to
or demand on the Guarantor in any case shall entitle the Guarantor to any other
or further notice or demand in the same, similar or other circumstances.
15. WAIVER OF RIGHTS BY HPT. Neither any failure nor any delay on HPT's
part in exercising any right, power or privilege under this Agreement shall
operate as a waiver thereof, nor shall a single or partial exercise thereof
preclude any other or further exercise or the exercise of any other right, power
or privilege.
16. SEVERABILITY. In case any one or more of the provisions contained in
this Agreement should be invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired thereby, but this Agreement
shall be reformed and construed and enforced to the maximum extent permitted by
applicable law.
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17. ENTIRE CONTRACT. This Agreement constitutes the entire agreement
between the parties hereto with respect to the subject matter hereof and shall
supersede and take the place of any other instruments purporting to be an
agreement of the parties hereto relating to the subject matter hereof.
18. HEADINGS; COUNTERPARTS. Headings in this Agreement are for purposes
of reference only and shall not limit or otherwise affect the meaning hereof.
This Agreement may be executed in any number of counterparts, each of which
shall be an original, but all of which together shall constitute one instrument,
and in pleading or proving any provision of this Agreement, it shall not be
necessary to produce more than one of such counterparts.
19. REMEDIES CUMULATIVE. No remedy herein conferred upon HPT is intended
to be exclusive of any other remedy, and each and every remedy shall be
cumulative and shall be in addition to every other remedy given hereunder or now
or hereafter existing at law or in equity or by statute or otherwise.
20. AMENDMENT AND RESTATEMENT. This Agreement amends, restates and
replaces in its entirety that certain Amended and Restated Guaranty Agreement,
dated as of August 10, 2001, as the same may have been amended from time to
time, by the Guarantor for the benefit of the Landlord and HPT.
[SIGNATURES ON FOLLOWING PAGE.]
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WITNESS the execution hereof under seal as of the date above first
written.
CANDLEWOOD HOTEL COMPANY, INC.
By: /s/ Xxx Xxxxxxx
--------------------------------
Xxx Xxxxxxx
Vice President-Treasurer
and Assistant Secretary
ACKNOWLEDGED AND AGREED:
HPT CW PROPERTIES TRUST
By: /s/ Xxxx X. Xxxxxx
-------------------------------
Xxxx X. Xxxxxx
President
HOSPITALITY PROPERTIES TRUST
By: /s/ Xxxx X. Xxxxxx
--------------------------------
Xxxx X. Xxxxxx
President
