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EXHIBIT 10.2
AMENDED AND RESTATED SUBSIDIARY
GUARANTY
Amended and Restated Subsidiary Guaranty, dated as
of August 16, 2007 by and among the undersigned and such other
Persons which may become party hereto from time to time by
executing a joinder (in the form of Appendix 1 hereto) (each a
“ Subsidiary
Guarantor ” and collectively
the “ Subsidiary
Guarantors ”), in favor of each
of the Lenders (as defined herein) and JPMorgan Chase Bank, N.A.,
as administrative agent (in such capacity, the “
Administrative Agent
”) for itself and for the other financial
institutions (collectively, the “ Lenders ”) which are or may
become parties to the Amended and Restated Credit Agreement dated
as of August 16, 2007 among FelCor Lodging Trust Incorporated and
FelCor Lodging Limited Partnership (the “
Borrowers ”), the Administrative Agent, Citicorp North America,
Inc., as Syndication Agent and the Lenders (the “
Credit Agreement ”). Capitalized terms used herein without definition
shall have the meanings ascribed to them in the Credit
Agreement.
WHEREAS , the
Borrowers, the Administrative Agent, the Lenders and the other
parties thereto have entered into the Credit Agreement;
WHEREAS , the Borrowers
and each Subsidiary Guarantor are members of a group of related
entities, the success of each of which is dependent in part on the
success of the other members of such group;
WHEREAS , each
Subsidiary Guarantor expects to receive substantial direct and
indirect benefits from the Revolving Loans made by each Lender to
the Borrowers pursuant to the Credit Agreement (which benefits are
hereby acknowledged);
WHEREAS , the Borrowers
have covenanted and agreed with the Lenders, that pursuant to
Section 5.13 of the Credit Agreement, the undersigned Subsidiary
Guarantors shall execute and deliver this Amended and Restated
Subsidary Guaranty; and
WHEREAS , each
Subsidiary Guarantor wishes to guaranty the Borrowers’
obligations to the Lenders and the Administrative Agent under and
in respect of the Credit Agreement as herein provided.
NOW, THEREFORE , in
consideration of the foregoing, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
1.
Guaranty of Payment and Performance of
Obligations . In consideration of the
Lenders’ extending credit, or otherwise, in their discretion,
giving time, financial or banking facilities or accommodations to
the Borrowers, each Subsidiary Guarantor hereby jointly and
severally, absolutely, irrevocably and unconditionally guarantees
to the Administrative Agent and each Lender that the Borrowers will
duly and punctually pay or perform, at the place specified
therefor, or if no place is specified, at the
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Administrative Agent’s head office, (i) all
indebtedness, obligations and liabilities of the Borrowers to any
of the Lenders and the Administrative Agent, individually or
collectively, under the Credit Agreement or any of the other Loan
Documents or in respect of any of the Loans or the Notes or other
instruments at any time evidencing any obligations thereunder,
whether existing on the date of the Credit Agreement or arising or
incurred thereafter, direct or indirect, secured or unsecured,
joint or several, absolute or contingent, matured or unmatured,
liquidated or unliquidated, arising by contract, operation of law
or otherwise, including all such which would become due but for the
operation of the automatic stay pursuant to §362(a) of the
Federal Bankruptcy Code and the operation of §§502(b) and
506(b) of the Federal Bankruptcy Code; and (ii) without limitation
of the foregoing, all reasonable fees, costs and expenses incurred
by the Administrative Agent or the Lenders in attempting to collect
or enforce any of the foregoing, accrued in each case to the date
of payment thereof (collectively the “
Obligations ” and individually an “ Obligation ”). This Amended
and Restated Subsidiary Guaranty is an absolute, unconditional and
continuing guaranty of the full and punctual payment and
performance by the Borrowers of the Obligations and not of their
collectibility only and is in no way conditioned upon any
requirement that any Lender or the Administrative Agent first
attempt to collect any of the Obligations from the Borrowers or
resort to any security or other means of obtaining payment of any
of the Obligations which any Lender or the Administrative Agent now
has or may acquire after the date hereof or upon any other
contingency whatsoever. Upon any Event of Default which is
continuing by the Borrowers in the full and punctual payment and
performance of the Obligations, the liabilities and obligations of
each Subsidiary Guarantor hereunder shall, at the option of the
Administrative Agent, become forthwith due and payable to the
Administrative Agent and to the Lender or Lenders owed the same
without demand or notice of any nature, all of which are expressly
waived by each Subsidiary Guarantor, except for notices required to
be given to the Borrowers under the Loan Documents. Payments by the
Subsidiary Guarantors hereunder may be required by any Lender or
the Administrative Agent on any number of occasions.
2.
Subsidiary Guarantor’s Further Agreements
to Pay . Each Subsidiary Guarantor
further jointly and severally agrees, as the principal obligor and
not as a guarantor only, to pay to each Lender and the
Administrative Agent forthwith upon demand, in funds immediately
available to such Lender or the Administrative Agent, all costs and
expenses (including court costs and legal fees and expenses)
incurred or expended by the Administrative Agent or such Lender in
connection with this Amended and Restated Subsidiary Guaranty and
the enforcement hereof, together with interest on amounts
recoverable under this Amended and Restated Subsidiary Guaranty
from the time after such amounts become due at the default rate of
interest set forth in the Credit Agreement; provided that if such interest
exceeds the maximum amount permitted to be paid under applicable
law, then such interest shall be reduced to such maximum permitted
amount.
3.
Payments . Each
Subsidiary Guarantor jointly and severally covenants and agrees
that the Obligations will be paid strictly in accordance with their
respective terms regardless of any law, regulation or order now or
hereafter in effect in any jurisdiction
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affecting any of such terms or the rights of the
Administrative Agent or any Lender with respect thereto. Without
limiting the generality of the foregoing, each Subsidiary
Guarantor’s obligations hereunder with respect to any
Obligation shall not be discharged by a payment in a currency other
than the currency in which the Obligation is denominated (the
“ Obligation
Currency ”) or at a place other
than the place specified for the payment of the Obligation, whether
pursuant to a judgment or otherwise, to the extent that the amount
so paid on conversion to the Obligation Currency and transferred to
New York, New York, U.S.A., under normal banking procedures does
not yield the amount of Obligation Currency due
thereunder.
4.
Taxes . All payments
hereunder shall be made without any counterclaim or set-off, free
and clear of, and without reduction for any Indemnified Taxes or
Other Taxes, which are now or may hereafter be imposed, levied or
assessed by any Governmental Authority on payments hereunder, all
of which will be for the account of and paid by the Subsidiary
Guarantors. If for any reason, any such reduction is made or any
Taxes are paid by the Administrative Agent or any Lender (except
for taxes on income or profits of such Administrative Agent or
Lender), each Subsidiary Guarantor jointly and severally agrees to
pay to the Administrative Agent or such Lender such additional
amounts as may be necessary to ensure that the Administrative Agent
or such Lender receives the same net amount which it would have
received had no such reduction been made or Taxes paid.
5.
Consent to Jurisdiction . Each Subsidiary Guarantor agrees that any suit for the
enforcement of this Amended and Restated Subsidiary Guaranty or any
of the other Loan Documents may be brought in the courts of the
State of New York sitting in New York, New York or any federal
court sitting in New York, New York and consents to the
non-exclusive jurisdiction of such courts and the service of
process in any such suit being made upon such Subsidiary Guarantor
by mail at the address specified herein. Except to the extent such
waiver is expressly prohibited by law, each Subsidiary Guarantor
hereby waives any objection that it may now or hereafter have to
the venue of any such suit or any such court or that such suit is
brought in an inconvenient court.
6.
Liability of each Subsidiary Guarantor
. The Administrative Agent and each Lender have and
shall have the absolute right to enforce the liability of each
Subsidiary Guarantor hereunder without resort to any other right or
remedy including any right or remedy under any other guaranty or
against any other Subsidiary Guarantor, and the release or
discharge of any Subsidiary Guarantor or other guarantor of any
Obligations shall not affect the continuing liability of each
Subsidiary Guarantor hereunder that has not been released or
discharged.
It is the intention and agreement of each Subsidiary
Guarantor, the Administrative Agent and the Lenders that the
obligations of each Subsidiary Guarantor under this Amended and
Restated Subsidiary Guaranty shall be joint and several and valid
and enforceable against each Subsidiary Guarantor to the maximum
extent permitted by applicable law. Accordingly, if any provision
of this Amended and Restated Subsidiary Guaranty creating any
obligation of any Subsidiary Guarantor in favor of the
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Administrative Agent and the Lenders shall be
declared to be invalid or unenforceable in any respect or to any
extent, it is the stated intention and agreement of the Subsidiary
Guarantors, the Administrative Agent and the Lenders that any
balance of the obligation created by such provision and all other
obligations of each of the other Subsidiary Guarantors to the
Administrative Agent and the Lenders created by other provisions of
this Amended and Restated Subsidiary Guaranty shall remain valid
and enforceable. Likewise, if by final order a court of competent
jurisdiction shall declare any sums which the Administrative Agent
or the Lenders may be otherwise entitled to collect from any
Subsidiary Guarantor under this Amended and Restated Subsidiary
Guaranty to be in excess of those permitted under any law
(including any federal or state fraudulent conveyance or like
statute or rule of law) applicable to such Subsidiary
Guarantor’s obligations under this Amended and Restated
Subsidiary Guaranty, it is the stated intention and agreement of
the Subsidiary Guarantors, the Administrative Agent and the Lenders
that all sums not in excess of those permitted under such
applicable law shall remain fully collectible by the Administrative
Agent and the Lenders from each of the other Subsidiary Guarantors,
jointly and severally.
7.
Representations and Warranties;
Covenants . (a) Each Subsidiary Guarantor
hereby makes and confirms the representations and warranties made
on its behalf by the Borrowers pursuant to §3 of the Credit
Agreement, as if such representations and warranties were set forth
herein. Each Subsidiary Guarantor hereby agrees to perform the
covenants set forth in §§5 and 6 of the Credit Agreement
(to the extent such covenants expressly apply to such Subsidiary
Guarantor) as if such covenants were set forth herein. Each
Subsidiary Guarantor acknowledges that it is, on a collective basis
with the Borrowers and all other Subsidiary Guarantors, bound by
the financial covenants and other covenants set forth in §6.1
of the Credit Agreement. Each Subsidiary Guarantor hereby confirms
that it shall be bound by all acts or omissions of the Borrowers
pursuant to the Credit Agreement.
(b)
Each Subsidiary Guarantor is a limited liability
company, limited partnership, corporation, or other legal entity,
as applicable, duly formed or organized, validly existing and in
good standing under the laws of the state of its formation or
organization; each Subsidiary Guarantor has all requisite limited
liability company, limited partnership, corporate or other legal
entity power, as applicable, to own its respective properties and
conduct its respective business as now conducted and as presently
contemplated; and such Subsidiary Guarantor is in good standing as
a foreign entity and is duly authorized to do business in the
jurisdictions where the properties and Unencumbered Assets owned or
ground-leased by it are located and in each other jurisdiction
where such qualification is necessary except where a failure to be
so qualified in such other jurisdiction would not have a Material
Adverse Effect. The execution, delivery and performance of this
Amended and Restated Subsidiary Guaranty and the transactions
contemplat
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