New York, New York
As of June __, 2009
FORM OF RECOURSE
GUARANTY
THIS RECOURSE GUARANTY (this “
Guaranty ”) is entered into as of June __, 2009, by
FELCOR LODGING TRUST INCORPORATED, a Maryland corporation (“
Guarantor ”), in favor of JPMORGAN CHASE BANK, N.A.,
as administrative agent (in such capacity, “
Administrative Agent ”) for the banks and other
financial institutions (“ Lenders ”) that are
parties to the Loan Agreement described below.
1. FelCor/JPM
Hospitality (SPE), L.L.C., a Delaware limited liability company,
and DJONT/JPM Hospitality Leasing (SPE), L.L.C., a Delaware limited
liability company (each, a “ Borrower ” and
collectively, “ Borrowers ”), are parties to the
Term Loan Agreement dated as of June __, 2009 (as the same may be
amended, supplemented or modified from time to time, the “
Loan Agreement ”), among Borrowers, Administrative
Agent, and Lenders pursuant to which Lenders have agreed, among
other things, to make a Loan to Borrower.
2. Guarantor
has indirect equity ownership interests in Borrowers, and Guarantor
will derive substantial direct and indirect benefits from the
making of the Loan.
3. It
is a condition precedent to the obligations of Lenders to make the
Loan to Borrowers that Guarantor shall execute and deliver this
Guaranty in favor of Administrative Agent, for the benefit of
Lenders.
NOW THEREFORE, FOR VALUE RECEIVED,
the sufficiency of which is hereby acknowledged, and in
consideration of the Loan, any credit and/or financial
accommodation heretofore or hereafter from time to time made or
granted to Borrowers under the Loan Documents by Administrative
Agent and Lenders, each Guarantor hereby furnishes its guaranty of
the Guaranteed Obligations (as hereinafter defined) as
follows:
Section
1. Certain
Definitions . All capitalized words and phrases not otherwise
defined herein shall have the meanings ascribed to them in the Loan
Agreement.
Section
2. Nature and
Scope of Guaranty . Guarantor hereby absolutely and
unconditionally guarantees to Administrative Agent the prompt and
unconditional payment of the Guaranteed Obligations (as hereinafter
defined) when due (after any applicable notice, grace, or cure
periods, if any, set forth in the Loan Documents), subject to the
terms hereof. The term “ Guaranteed Obligations
” as used in this Guaranty shall mean all Obligations arising
under the Loan Agreement, any Note, and the other Loan
Documents.
Notwithstanding anything contained
herein or any of the other Loan Documents to the contrary,
Administrative Agent shall not enforce Guarantor’s
obligations hereunder to pay the Guaranteed Obligations unless a
Recourse Event (as hereinafter defined) occurs. A “
Recourse Event ” shall occur if any one or more
of the following shall occur:
(a) any
Borrower’s default under Section 6.34
of the Loan Agreement (such that
such failure was found by a court to be a factor in the
court’s finding for a consolidation of
the assets of such Borrower with the
assets of another Person) or any Transfer in violation of the
provisions of Section 8.19 of the Loan Agreement or Article 5
of the Mortgages; or
(b) any
Collateral Property or any part thereof shall become an asset, or
if any Borrower shall be a debtor, in (i) a voluntary bankruptcy or
insolvency proceeding filed by a Borrower or (ii) an involuntary
bankruptcy or insolvency proceeding commenced by any Person (other
than Administrative Agent or any Lender) and, with respect to such
involuntary proceeding, such Borrower consents or fails to object
to such proceedings or if any Borrower, has acted in concert with,
colluded or conspired with any Person to cause the filing of such
involuntary proceeding; or
(c) any
Borrower shall be dissolved or shall have its affairs wound up as a
result of the bankruptcy or dissolution of its sole
member.
It is expressly understood and
agreed that this is a continuing guaranty and that the obligations
of Guarantor hereunder are and shall be absolute under any and all
circumstances, without regard to the validity, regularity or
enforceability of any Note, the Loan Agreement, or the other Loan
Documents, a true copy of each of said documents Guarantor hereby
acknowledges having received and reviewed.
Section
3.
Subrogation . Any indebtedness of a Borrower to Guarantor
now or hereafter existing (including, but not limited to, any
rights to subrogation Guarantor may have as a result of any payment
by Guarantor under this Guaranty), together with any interest
thereon, shall be, and such indebtedness is, hereby deferred,
postponed and subordinated to the prior payment in full of the
Obligations. Until payment in full of the Obligations (and
including interest accruing on any Note after the commencement of a
proceeding by or against a Borrower under any Debtor Relief Laws
and the regulations adopted and promulgated pursuant thereto, which
interest the parties agree shall remain a claim that is prior and
superior to any claim of Guarantor notwithstanding any contrary
practice, custom or ruling in cases under any Debtor Relief Laws
generally), Guarantor agrees not to accept any payment or
satisfaction of any kind of indebtedness of any Borrower to
Guarantor and hereby assigns such indebtedness to Administrative
Agent, including the right to file proof of claim and to vote
thereon in connection with any such proceeding under any Debtor
Relief Laws, including the right to vote on any plan of
reorganization. Further, if Guarantor shall comprise more than one
Person, Guarantor agrees that until such payment in full of the
Obligations, (a) no one of them shall accept payment from the
others by way of contribution on account of any payment made
hereunder by such party to Administrative Agent, (b) no one of them
will take any action to exercise or enforce any rights to such
contribution, and (c) if Guarantor should receive any payment,
satisfaction or security for any indebtedness of a Borrower to
Guarantor or for any contribution by the others of Guarantor for
payment made hereunder by the recipient to Administrative Agent,
the same shall be delivered to Administrative Agent in the form
received, endorsed or assigned as may be appropriate for
application on account of, or as security for, the Obligations, and
until so delivered, shall be held in trust for Administrative Agent
as security for the Obligations.
Section
4. Expenses of
Enforcement . Guarantor agrees that Guarantor will reimburse
Administrative Agent, to the extent that such reimbursement is not
made by a Borrower or any other Loan Party, for all expenses
(including counsel fees and disbursements) incurred by
Administrative Agent in connection
with the collection of the Guaranteed Obligations or any portion
thereof or with the enforcement of this Guaranty.
Section
5. Application
of Monies . Subject to the terms of the Loan Agreement, all
monies available to Administrative Agent for application in payment
or reduction of the Obligations may be applied by Administrative
Agent in such manner and in such amounts and at such time or times
and in such order and priority as Administrative Agent may see fit
to the payment or reduction of such portion of the Obligations as
Administrative Agent may elect.
Section
6. Waivers .
Guarantor hereby waives notice of the acceptance hereof,
presentment, demand for payment, protest, notice of protest, or any
and all notice of non-payment, non-performance or non-observance,
or other proof, notice of intention to accelerate, notice of
acceleration, or notice or demand, whereby to charge Guarantor
therefor.
Guarantor further agrees that the
validity of this Guaranty and the obligations of Guarantor
hereunder shall in no way be terminated, affected or impaired (a)
by reason of the assertion by Administrative Agent of any rights or
remedies which it may have under or with respect to either the Loan
Agreement, any Note, or the other Loan Documents, against any
Person obligated thereunder or the Collateral Properties covered
under the Loan Agreement, or (b) by reason of any failure to file
or record any of such instruments or to take or perfect any
security intended to be provided thereby, or (c) by reason of the
release of any of the Collateral Properties covered under the Loan
Agreement or other collateral for the Loan, or (d) by reason of
Administrative Agent’s failure to exercise, or delay in
exercising, any such right or remedy or any right or remedy
Administrative Agent may have hereunder or in respect to this
Guaranty, or (e) by reason of the commencement of a case under any
Debtor Relief Laws by or against any Person obligated under the
Loan Agreement, any Note, or the other Loan Documents, or (f) by
reason of any transfer or assignment of the Loan by Administrative
Agent or (g) by reason of any payment made on the Obligations or
any other indebtedness arising under the Loan Agreement, any Note,
or the other Loan Documents, whether made by a Borrower or
Guarantor or any other Person, which is required to be refunded
pursuant to any Debtor Relief Laws; it being understood that no
payment so refunded shall be considered as a payment of any portion
of the Obligations, nor shall it have the effect of reducing the
liability of Guarantor hereunder. It is further understood, that if
a Borrower shall have taken advantage of, or be subject to the
protection of, any provision in any Debtor Relief Laws, the effect
of which is to prevent or delay Administrative Agent from taking
any remedial action against a Borrower, including the exercise of
any option Administrative Agent has to declare the Obligations due
and payable on the happening of any Event of Default or event by
which under the terms of the Loan Agreement, any Note, or the other
Loan Documents, the Obligations shall become due and payable,
Administrative Agent may, as against Guarantor, nevertheless,
declare the Obligations due and payable and enforce any or all of
its rights and remedies against Guarantor provided for
herein.
Section
7. Covenants and
Representations . Guarantor further covenants that this
Guaranty shall remain and continue in full force and effect as to
any modification, extension or renewal of the Loan Agreement, any
Note, or the other Loan Documents, that Administrative Agent shall
not be under a duty to protect, secure or insure any Collateral
Property covered under the Loan Agreement, and that other
indulgences or forbearance may be granted under any or
all
of such documents, all of which may
be made, done or suffered without notice to, or further consent of,
Guarantor.
Guarantor represents and warrants to
Administrative Agent and Lenders that:
(a) Guarantor
(i) is duly organized or formed, validly existing and, as
applicable, in good standing under the Laws of the jurisdiction of
its incorporation or organization, and (ii) has all requisite power
and authority and all requisite governmental licenses,
authorizations, consents and approvals to execute, deliver and
perform its obligations under this Guaranty and consummate the
transactions contemplated hereby;
(b) Guarantor
has taken all necessary action to authorize the execution, delivery
and performance of this Guaranty;
(c) this
Guaranty has been duly executed and delivered by or on behalf of
Guarantor and constitutes legal, valid and binding obligations of
Guarantor enforceable against Guarantor in accordance with its
terms, subject only to applicable Debtor Relief Laws, and subject,
as to enforceability, to general principles of equity (regardless
of whether enforcement is sought in a proceeding in equity or at
law); and
(d) the
execution, delivery and performance of this Guaranty by Guarantor
will not conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under, or result in the
creation or imposition of any Lien, charge or encumbrance (other
than pursuant to the Loan Documents) upon any of the property or
assets of Guarantor pursuant to the terms of its Organizational
Documents, any indenture, mortgage, deed of
