EXHIBIT 10.31.4
SECOND AMENDMENT TO NOTE, LOAN AGREEMENT, ENVIRONMENTAL
INDEMNITY AGREEMENT AND OTHER LOAN DOCUMENTS
SECOND AMENDMENT TO NOTE, LOAN AGREEMENT, ENVIRONMENTAL INDEMNITY
AGREEMENT AND OTHER LOAN DOCUMENTS (this "Amendment") made the 23rd day of
October, 2003, by each of the entities identified on Schedule I attached hereto,
each having an address at c/o FelCor Lodging Trust Incorporated, 545 East John
Carpenter Freeway, Suite 1300, Irving, Texas 75062 (individually and
collectively, as the context may require, "Original Owner"), each of the
entities identified on Schedule II attached hereto, each having an address at
c/o FelCor Lodging Trust Incorporated, 545 East John Carpenter Freeway, Suite
1300, Irving, Texas 75062 (individually and collectively, as the context may
require, "Original Operating Lessee") (Original Owner and Original Operating
Lessee, individually and collectively, as the context may require, "Original
Loan Party"), each of the entities identified on Schedule III attached hereto,
each having an address at c/o FelCor Lodging Trust Incorporated, 545 East John
Carpenter Freeway, Suite 1300, Irving, Texas 75062 (individually and
collectively, as the context may require, "Additional Owner"), each of the
entities identified on Schedule IV attached hereto, each having an address at
c/o FelCor Lodging Trust Incorporated, 545 East John Carpenter Freeway, Suite
1300, Irving, Texas 75062 (individually and collectively, as the context may
require, "Additional Operating Lessee") (Additional Owner and Additional
Operating Lessee, individually and collectively, as the context may require,
"Additional Loan Party"), FELCOR LODGING LIMITED PARTNERSHIP, a Delaware limited
partnership, having an address at c/o FelCor Lodging Trust Incorporated, 545
East John Carpenter Freeway, Suite 1300, Irving, Texas 75062 ("FelCor Lodging";
Original Loan Party, FelCor Lodging and Additional Loan Party hereinafter
referred to, individually and collectively, as the context may require, as "Loan
Party"), and JPMORGAN CHASE BANK, a New York banking corporation, having an
address at 270 Park Avenue, New York, New York 10017 ("Lender").
RECITALS:
Lender has made a loan (the "Loan") to Original Owner and FELCOR/JPM
BWI HOTEL, L.L.C., a Delaware limited liability company ("FelCor BWI"; together
with Original Owner (other than FELCOR HOTEL ASSET COMPANY, L.L.C.),
individually and collectively, as the context may require, "Original Borrower")
in the principal amount of TWO HUNDRED MILLION AND 00/100 DOLLARS
($200,000,000.00), or so much thereof as may be advanced pursuant to a Loan
Facility Agreement, dated June 18, 2003, among Original Borrower, FCH/DT BWI
HOTEL, L.L.C., a Delaware limited liability company ("FCH BWI") and Lender (the
"Original Loan Agreement"), as amended by that certain First Amendment to Note,
Loan Agreement, Environmental Indemnity Agreement and Other Loan Documents,
dated July 31, 2003, among Original Loan Party, FelCor BWI, FCH BWI, FelCor
Lodging, certain affiliates of Original Loan Party and Lender (the "First
Amendment"; together with the Original Loan Agreement and as the same may be
amended, restated, replaced, supplemented or otherwise modified from time to
time, the "Loan Agreement"), which Loan is evidenced by the Note and secured by,
among other things, the Security Instruments. The Loan is further secured or
evidenced by that certain Environmental Indemnity Agreement, dated June 18,
2003, given by Original Loan Party and FelCor Lodging (individually and
collectively, as the context may require, "Indemnitor") to Lender (the
"Environmental Indemnity").
On the date hereof and pursuant to Section 2.9 of the Loan Agreement,
Additional Owner and Additional Operating Lessee are being added as additional
Borrowers and additional Operating Lessees, respectively, under the Loan
Agreement. Loan Party and Lender have agreed in the manner hereinafter set forth
to modify the terms and provisions of the Note, the Loan Agreement, the
Environmental Indemnity and the other Loan Documents to reflect the foregoing.
All capitalized terms not otherwise defined herein shall have the meaning
ascribed to them in the Loan Agreement.
In consideration of the foregoing and other valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
consent and agree as follows:
1. Additional Owner does hereby, jointly and severally, assume
the Debt and all of the Obligations and agrees to pay the principal sum of the
Loan together with interest at the applicable interest rate in accordance with
the terms of the Loan Documents, as modified, and to observe, comply with and
perform all of the terms, covenants, conditions and indemnifications of the Loan
Documents on the part of Borrower to be performed arising from and after the
date hereof, as modified, with the same force and effect as if the Loan
Documents had originally been executed by Additional Owner. Additional Owner
hereby ratifies and confirms to Lender as of the date hereof that, except as
otherwise expressly and specifically modified by this Amendment, all of the
terms, representations, warranties, covenants, indemnifications and provisions
of the Loan Documents are and shall remain in full force and effect, and are
true and correct with respect to Additional Owner as Borrower and Indemnitor
thereunder, as of the date hereof.
2. Additional Operating Lessee does hereby, jointly and
severally, agree to observe, comply with and perform all of the terms,
covenants, conditions and indemnifications of the Loan Documents on the part of
Operating Lessee to be performed arising from and after the date hereof, as
modified, with the same force and effect as if the Loan Documents had originally
been executed by Additional Operating Lessee. Additional Operating Lessee hereby
ratifies and confirms to Lender as of the date hereof that, except as otherwise
expressly and specifically modified by this Amendment, all of the terms,
representations, warranties, covenants, indemnifications and provisions of the
Loan Documents are and shall remain in full force and effect, and are true and
correct with respect to Additional Operating Lessee as Operating Lessee and
Indemnitor thereunder, as of the date hereof.
3. Original Borrower and Additional Owner confirm that they are
jointly and severally liable for the payment in full of the Loan and all other
sums owing under any of the Loan Documents and the performance of all of the
Obligations. Notwithstanding anything to the contrary contained in this
Amendment, the liability of Original Borrower and Additional Owner, as Borrower
under the Loan Agreement, to pay the Debt and for the performance of the other
agreements, covenants and obligations contained herein and in the Note, the
Security Instruments, the Loan Agreement and the other Loan Documents shall be
limited as set forth in Section 9.4 of the Loan Agreement.
4. The Loan Documents are modified such that:
(a) Wherever the term "Borrower" appears in the Loan
Documents, it shall be deemed to include Additional Owner; and
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(b) Wherever the term "Operating Lessee" appears in the
Loan Documents, it shall be deemed to include Additional Operating Lessee.
5. The Environmental Indemnity is modified such that:
(a) Wherever the term "Indemnitor" appears in the
Environmental Indemnity, it shall be deemed to include Additional Loan Party;
(b) Wherever the term "Owner" appears in the
Environmental Indemnity, it shall be deemed to include Additional Owner; and
(c) Wherever the term "Operating Lessee" appears in the
Environmental Indemnity, it shall be deemed to include Additional Operating
Lessee.
6. The following are hereby added as new definitions in Section
1.1 of the Loan Agreement entitled "DEFINITIONS":
"90/10 Properties" shall mean, collectively, the Austin
Property, the Denver Property, the Maryland Property, the Troy
Property and the Wilmington Property.
"Atlanta CP Property" shall mean that certain Property
commonly known as Atlanta Airport - Crowne Plaza located in
Atlanta, Georgia.
"Austin Town Lake Property" shall mean that certain Property
commonly known as Austin Town Lake - Holiday Inn located in
Austin, Texas.
"CMBS Concentration Account" shall have the meaning provided
in Section 9.1.5 hereof.
"CMBS Loan Agreement" shall have the meaning provided in
Section 9.1.5 hereof.
"Conversion Property" shall have the meaning provided in
Section 9.1.5 hereof.
"Denver Property" shall mean that certain Property commonly
known as DoubleTree Hotel - Denver located in Aurora,
Colorado.
"Hedging Losses" shall mean any actual losses incurred by
Lender in connection with the termination of any interest rate
hedging transaction entered into by Lender relating to the
portion of the Available Facility Amount attributable to such
Property; provided, however, that no Hedging Losses shall be
applicable in connection with the Floating Rate CMBS Loan.
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"LBV Property" shall mean that certain Property commonly known
as DoubleTree Guest Suites - Walt Disney World Resort located
in Lake Buena Vista, Florida.
"LBV Property Estoppel Work" shall have the meaning provided
in Section 5.6 hereof.
"LBV Property Estoppel Work Account" shall have the meaning
provided in Section 5.6 hereof.
"Lender's Floating Rate Conversion Notice" shall have the
meaning provided in Section 9.2.1(c)(i) hereof.
"Orlando International Drive Property" shall mean that certain
Property commonly known as Holiday Inn - International Drive
located in Orlando, Florida.
"Proposed Floating Rate CMBS Loan Properties" shall mean the
following Properties and no other Properties: (i) the Atlanta
CP Property, (ii) the Austin Town Lake Property, (iii) the LBV
Property, (iv) the Mandalay Beach Property, and (v) the
Orlando International Drive Property.
"Troy Property" shall mean that certain Property commonly
known as Embassy Suites Hotel - Troy located in Troy,
Michigan.
"Wilmington Property" shall mean that certain Property
commonly known as DoubleTree Hotel located in Wilmington,
Delaware.
7. The definition of "Available Facility Amount" in Section 1.1
of the Loan Agreement entitled "DEFINITIONS" is hereby deleted in its entirety
and replaced with the following text:
"Available Facility Amount" shall mean the sum of (A) with
respect to the Proposed Floating Rate CMBS Loan Properties,
that portion of the Facility Amount equal to the maximum
hypothetical loan amount applicable to the Floating Rate CMBS
Loan which satisfies (i) a loan to value ratio of forty-eight
percent (48%) and (ii) a Debt Service Coverage Ratio of
1.53:1.00, each as determined in the aggregate for all of the
Proposed Floating Rate CMBS Loan Properties and (B) with
respect to each of the Properties other than the Proposed
Floating Rate CMBS Loan Properties, that portion of the
Facility Amount equal to the aggregate maximum hypothetical
loan amounts applicable to each Fixed Rate CMBS Loan relating
to such Property which satisfies (i) a loan to value ratio of
sixty percent (60%) and (ii) a Debt Service Coverage Ratio of
1.30:1.00; provided, however, in no
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event shall the Available Facility Amount exceed the Facility
Amount.
8. The following text is hereby added as a new Section 5.5 of the
Loan Agreement:
Section 5.5 Troy Property Special Product Evaluation. Borrower
shall (a) comply with the requirements of Hilton Hotels
Corporation set forth in the Notice of Default & Termination
letter from Hilton Hotels Corporation, dated July 14, 2003,
relating to the Troy Property, within the time frames set
forth therein, (b) complete any work required by Hilton Hotels
Corporation in connection with such Notice of Default &
Termination letter in a good and workmanlike manner, on a
lien-free basis and within the time frames required of
Borrower, and (c) use its commercially reasonable efforts to
prevent the Troy Property from failing to achieve an overall
"Acceptable" score on the Special Product Evaluation scheduled
for December 1, 2003. Borrower shall deliver to Lender a
letter from Hilton Hotels Corporation confirming that the Troy
Property has achieved such "Acceptable" score no later than
the earlier of (A) two (2) Business Days following the receipt
of such letter from Hilton Hotels Corporation or (B) January
31, 2004. Failure to comply with any provision of this Section
5.5 shall, at Lender's option, be deemed an Event of Default
hereunder, the Troy Property shall be removed from the Loan
facility and Borrower shall within ten (10) Business Days of
any such failure, prepay the outstanding principal balance of
the Loan (together with any prepayment premiums and/or Hedging
Losses) by any amount by which the then outstanding principal
balance of the Loan exceeds the Available Facility Amount
calculated without the inclusion of the Troy Property as
security for the Loan.
9. The following text is hereby added as a new Section 5.6 of the
Loan Agreement:
Section 5.6 LBV Property Estoppel Work Requirements. (a)
Borrower shall (i) comply with the requirements of Walt Disney
World Hospitality & Recreation Corporation set forth in the
Ground Lessor Estoppel and Agreement given by Walt Disney
World Hospitality & Recreation Corporation, dated October 23,
2003, relating to the LBV Property, within the time frames set
forth therein and (ii) complete the work described on Exhibit
D to such Ground Lessor Estoppel and Agreement (the "LBV
Property Estoppel Work") in a good and workmanlike manner, on
a lien-free basis and within the time frames set forth in such
Exhibit D. Within ten (10) days of written request from
Lender, Borrower shall deliver to Lender evidence satisfactory
to Lender in all respects that the LBV Property Estoppel Work
required to be
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completed as of such written request date has either been (x)
completed in a good and workmanlike, on a lien-free basis and
within the time frames set forth in such Exhibit D or (y)
waived by Walt Disney World Hospitality & Recreation
Corporation. Failure to comply with any provision of this
Section 5.6 shall, at Lender's option, be deemed an Event of
Default hereunder, the LBV Property shall be removed from the
Loan facility and Borrower shall within ten (10) Business Days
of any such failure, prepay the outstanding principal balance
of the Loan (together with any prepayment premiums and/or
Hedging Losses) by any amount by which the then outstanding
principal balance of the Loan exceeds the Available Facility
Amount calculated without the inclusion of the LBV Property as
security for the Loan.
(b) In connection with the LBV Property Estoppel Work, at
Lender's option at the time of the Floating Rate CMBS
Conversion, Borrower shall deposit into an escrow account with
Lender (the "LBV Property Estoppel Work Account"), an amount
which is one-hundred twenty five percent (125%) of the amount
reasonably determined by Lender to be necessary to complete
the LBV Property Estoppel Work. Amounts so deposited with
Lender shall be held by Lender in accordance with Section 7.7
hereof. Amounts deposited in the LBV Property Estoppel Work
Account shall be held as additional collateral for the Loan
and Borrower shall be entitled to receive a disbursement of
all of the amounts contained in such LBV Property Estoppel
Work Account upon delivery to Lender of evidence satisfactory
to Lender in all respects that the LBV Property Estoppel Work
has been completed in a good and workmanlike, on a lien-free
basis and within the time frames set forth in such Exhibit D.
The provisions of this Section 5.6(b) shall be incorporated
into the Floating Rate Conversion Documents applicable to the
LBV Property.
10. The following text is hereby added as a new Section 9.1.4 of
the Loan Agreement:
Section 9.1.4. Troy Property. Notwithstanding anything to the
contrary contained in Section 9.1 hereof, in the event that
the Troy Property is selected to be the Fixed Rate CMBS
Collateral for a Fixed Rate CMBS Loan but such Fixed Rate CMBS
Loan is removed from a Securitization involving such Fixed
Rate CMBS Loan due to investor rejection of such Fixed Rate
CMBS Loan, Borrower shall either (i) within ten (10) Business
Days of notice from Lender of such rejection, prepay (without
the payment of any prepayment premium) the outstanding
principal balance of such Fixed Rate CMBS Loan or (ii) within
the time period set forth below, cause the release of the Troy
Property from the Lien of its applicable Security Instrument
and substitute therefor another hotel
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property in accordance with Section 2.5 hereof (including,
without limitation, obtaining the approval of Lender's
internal credit committee(s)), provided, however, in
connection with such release and substitution, the Substitute
Property shall not be counted towards the three (3) Property
limitation set forth in subsection (a) thereof and the time
period set forth in subsection (b) thereof in which to
identify a proposed Substitute Property shall be reduced to
ten (10) Business Days.
If Borrower elects to release the Troy Property in accordance
with subsection (ii) above, (A) Borrower shall promptly
identify a proposed Substitute Property for Lender's
preliminary approval together with a statement of Net Cash
Flow and historical operating statistics for such proposed
Substitute Property and any additional information reasonably
requested by Lender; (B) Lender shall notify Borrower of its
preliminary approval or disapproval of such proposed
Substitute Property within two (2) Business Days following
Lender's receipt of the statements and information referenced
in (A) above, which such approval or disapproval shall be
based upon Lender's reasonable discretion in accordance with
Lender's then current Commercial Lending Program Criteria; and
(C) if Lender has given its preliminary disapproval of such
proposed Substitute Property, Borrower shall promptly identify
another proposed Substitute Property for Lender's preliminary
approval in accordance with (A) and (B) above and this process
shall continue until the earlier of (x) Lender's preliminary
approval of a proposed Substitute Property or (y) ten (10)
Business Days of notice from Lender of the rejection of the
Fixed Rate CMBS Loan involving the Troy Property.
If Borrower fails to receive Lender's preliminary approval of
a proposed Substitute Property within such ten (10) Business
Day period, Borrower shall no longer be permitted to release
the Troy Property in accordance with subsection (ii) above and
shall instead, within ten (10) Business Days following the
expiration of such preliminary approval period, prepay
(without the payment of any prepayment premium) the
outstanding principal balance of such Fixed Rate CMBS Loan. If
Borrower shall have received Lender's preliminary approval of
a proposed Substitute Property within such ten (10) Business
Day period but shall have failed to cause the release of the
Troy Property from the Lien of its applicable Security
Instrument and substitute therefor such proposed Substitute
Property in accordance with Section 2.5 hereof within
forty-five (45) days of notice from Lender of the rejection of
the Fixed Rate CMBS Loan involving the Troy Property, Borrower
shall no longer be permitted to release the Troy Property in
accordance with subsection (ii) above and shall instead,
within ten
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(10) Business Days following such forty-five (45) day period,
prepay (without the payment of any prepayment premium) the
outstanding principal balance of such Fixed Rate CMBS Loan.
During such forty-five (45) day period, Lender agrees that it
shall not unreasonably delay or withhold any consents or
approvals required by Borrower pursuant to Section 2.5 hereof
nor unreasonably delay in ordering or obtaining any
third-party reports or other documents required to be ordered
or obtained by Lender pursuant to Section 2.5 hereof.
In the event that the (x) removal of the Fixed Rate CMBS Loan
involving the Troy Property from a Securitization due to
investor rejection, (y) prepayment referenced in subsection
(i) above or (z) release and substitution of the Troy Property
in accordance with subsection (ii) above, results in Lender
incurring any Hedging Losses, Borrower agrees to pay to
Lender, upon demand, the amount of such Hedging Losses.
11. The following text is hereby added as a new Section 9.1.5 of
the Loan Agreement:
Section 9.1.5. Revised Cash Management. At the request of
Borrower, and in connection with any Property serving as
collateral to a Fixed Rate CMBS Loan (a "Conversion Property")
and if such Fixed Rate CMBS Loan requires the establishment
and implementation of a cash management system, Lender shall
cooperate with Borrower to revise the cash management
provisions of the loan agreement to such Fixed Rate CMBS Loan
(the "CMBS Loan Agreement") to provide that: (i) Borrower may
establish a Concentration Account (the "CMBS Concentration
Account") in connection with any Conversion Property; (ii) any
funds contained in the Property Account for such Conversion
Property shall be transferred from the Property Account into
such CMBS Concentration Account; and (iii) the Manager for
such Property may make withdrawals from such CMBS
Concentration Account as if such CMBS Concentration Account
were the Property Account under the form of loan agreement
attached to the Loan Agreement as Exhibit BB.
12. The text of Section 9.2.1(a)(v) of the Loan Agreement entitled
"Floating Rate Conversion" is hereby deleted in its entirety and replaced with
the following text:
(v) the original principal balance of the Floating Rate
CMBS Loan shall be equal to the maximum amount in order for
the Floating Rate CMBS Loan to achieve (i) a loan to value
ratio of forty-eight percent (48%) and (ii) a Debt Service
Coverage Ratio of 1.53:1.00, each as determined in the
aggregate for all of the Proposed Floating Rate CMBS Loan
Properties; provided,
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however, if Lender determines an original principal balance
for the Floating Rate CMBS Loan of less than $75,000,000.00,
Borrower may add any one or two Properties (other than the
Proposed Floating Rate CMBS Loan Properties, the 90/10
Properties or any Property which is selected to be Fixed Rate
CMBS Collateral) as additional collateral for the Floating
Rate CMBS Loan, provided, that Borrower shall not be entitled
to add any Properties if Lender, in its reasonable discretion,
determines that the addition of one or both Properties would
adversely affect the value, marketability and/or pricing of
such Floating Rate CMBS Loan. In the event that Lender
determines that one or both Properties can be added as
collateral for the Floating Rate CMBS Loan, Lender shall
re-determine the original principal balance for the Floating
Rate CMBS Loan factoring in such additional Property or
Properties in accordance with the provisions of this Section
9.2.1(a)(v), provided, however such original principal balance
shall not be greater than $75,000,000.00;
13. The text of Section 9.2.1(a)(vi) of the Loan Agreement
entitled "Floating Rate Conversion" is hereby deleted in its entirety and
replaced with the following text:
(vi) Lender shall determine in its reasonable discretion
that the last dollar of such Floating Rate CMBS Loan shall be
rated no less than Investment Grade from each of the Rating
Agencies applying the then current standards of such Rating
Agencies in evaluating floating rate CMBS loans;
14. The following text is hereby added as new Sections 9.2.1(c)
and (d) of the Loan Agreement:
(c) On or before the Maturity Date, Lender may engage in
a Floating Rate CMBS Conversion subject to the terms and
conditions set forth below. Upon Lender's exercise of the
Floating Rate CMBS Conversion and execution of the Floating
Rate Conversion Documents, the portion of the Loan that is the
subject of such Floating Rate CMBS Conversion shall
automatically convert into a Floating Rate CMBS Loan and the
Property secured thereby shall no longer be deemed a Property
hereunder. Lender shall not have the right to exercise the
Floating Rate CMBS Conversion unless and until the conditions
in subsection (i), (ii) and (iv) below have been satisfied:
(i) Lender shall have given notice (the "Lender's
Floating Rate Conversion Notice") to Borrower of the Floating
Rate Conversion Date; which notice shall be given to Borrower
at least thirty (30) days prior to the Floating Rate
Conversion Date unless Lender has waived Borrower's obligation
to comply with the provisions of
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Section 9.2.1(c)(v) below (as it relates to 9.1.1(iv)(A), (C)
and (D) hereof and as they relating to the Floating Rate CMBS
Collateral); and provided, however, that Lender agrees not to
give the Lender's Floating Rate Conversion Notice unless the
then outstanding principal balance of the Loan is equal to or
greater than the proposed original principal balance of the
Floating Rate CMBS Loan calculated pursuant to Section
9.2.1(c)(ii) below.
(ii) The original principal balance of the Floating Rate
CMBS Loan shall be equal to the maximum amount in order for
the Floating Rate CMBS Loan to achieve (i) a loan to value
ratio of forty-eight percent (48%) and (ii) a Debt Service
Coverage Ratio of 1.53:1.00, each as determined in the
aggregate for all of the Proposed Floating Rate CMBS Loan
Properties (subject to Lender's right to adjust such original
principal balance in accordance with Section 9.2.2(d) hereof);
provided, however, if Lender determines an original principal
balance for the Floating Rate CMBS Loan of less than
$75,000,000.00, Borrower may add any one or two Properties
(other than the Proposed Floating Rate CMBS Loan Properties,
the 90/10 Properties or any Property which is selected to be
Fixed Rate CMBS Collateral) as additional collateral for the
Floating Rate CMBS Loan, provided, that Borrower shall not be
entitled to add any Properties if Lender, in its reasonable
discretion, determines that the addition of one or both
Properties would adversely affect the value, marketability
and/or pricing of such Floating Rate CMBS Loan. In the event
that Lender determines that one or both Properties can be
added as collateral for the Floating Rate CMBS Loan, Lender
shall re-determine the original principal balance for the
Floating Rate CMBS Loan factoring in such additional Property
or Properties in accordance with the provisions of this
Section 9.2.1(c)(ii), provided, however such original
principal balance shall not be greater than $75,000,000.00.
(iii) Lender shall determine in its reasonable discretion
that the last dollar of such Floating Rate CMBS Loan shall be
rated no less than Investment Grade from each of the Rating
Agencies applying the then current standards of such Rating
Agencies in evaluating floating rate CMBS loans.
(iv) Lender shall have provided Borrower with all of the
Floating Rate Conversion Documents not later than five (5)
Business Days prior to the Floating Rate Conversion Date.
(v) Borrower shall have provided Lender with all of the
Conversion Documents (relating to the Floating Rate CMBS Loan)
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not later than five (5) Business Days prior to the Floating
Rate Conversion Date.
(vi) Lender shall have received evidence that no
circumstances or conditions regarding the Floating Rate CMBS
Collateral, Borrower, FelCor, Manager, Franchisor or Operating
Lessee or any tenant under a Major Lease exist that could
reasonably be expected to (A) cause the Floating Rate CMBS
Loan to become in default or (B) adversely affect the value or
marketability of the Floating Rate CMBS Loan.
(vii) Borrower and, if applicable, FelCor shall have
executed and delivered to Lender the Floating Rate Conversion
Documents; provided, however, in the event of any
inconsistencies between the terms and conditions of the
Floating Rate Conversion Documents and the provisions of the
then current Commercial Lending Program Criteria, the terms
and conditions of the then current Commercial Lending Program
Criteria shall control and be binding, except with respect to
the determination of the applicable interest rate and the CMBS
Loan Amount for which the terms and conditions of the Floating
Rate Conversion Documents shall control and be binding. The
Floating Rate Conversion Documents will require, among other
things, (A) reserves and/or escrow as reasonably determined by
Lender, including, without limitation, tax and insurance
escrows, replacement reserves and required repair reserves,
(B) full cash management provisions and (C) that the financial
statements of Borrower and/or Operating Lessee be audited by a
certified public accountant.
(viii) Lender shall have received (A) an opinion of counsel
with respect to the execution, delivery and enforceability of
the Floating Rate Conversion Documents and (B) an update or
revised Insolvency Opinion, each such opinion shall be in
form, scope and from counsel reasonably acceptable to Lender.
(ix) Borrower shall have paid to Lender the origination
fee required pursuant to Section 9.2.2(a)(iv) hereof.
(d) Borrower shall have satisfied, or caused the
satisfaction of, such other requirements and/or conditions as
are then reasonably being required by Lender with respect to
floating rate loans being made by Lender for the purpose of
resale into the secondary mortgage market (including, without
limitation, the execution and delivery by Borrower of any
supplemental documentation then being reasonably required by
Lender).
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15. The following text is hereby added as a new Section 9.2.1(e)
of the Loan Agreement:
(e) Notwithstanding anything to the contrary contained in
Sections 9.1 or 9.2 to the contrary, the collateral for the
Floating Rate CMBS Loan shall be the Proposed Floating Rate
CMBS Loan Properties and the additional Property or
Properties, if any, selected to be collateral for the Floating
Rate CMBS Loan pursuant to Section 9.2.1(a)(v) hereof or
Section 9.2.1(c)(ii) hereof.
16. The following text is hereby added as a new Section 9.2.2(d)
of the Loan Agreement:
(d) Upon Borrower's request to Lender, on or subsequent
to the giving of a Floating Rate Conversion Notice or the
receipt of Lender's Floating Rate Conversion Notice but prior
to the Floating Rate Conversion Date, the holder of the direct
interest in Borrower may obtain mezzanine financing in the
event that Lender has reasonably determined that such
mezzanine financing satisfies Lender's then current and
customary underwriting standards for mezzanine financings and
Lender's then current Commercial Lending Program Criteria,
including, without limitation, (i) the identity of the
proposed mezzanine lender, (ii) the amount of the proposed
mezzanine financing, (iii) the maturity date of the proposed
mezzanine financing, (iv) the interest rate of the proposed
mezzanine financing, (v) any other material terms of the
proposed mezzanine financing, (vi) the probability of
obtaining a suitable intercreditor agreement, and (vii) the
marketability and/or pricing of CMBS mortgage loans with
underlying mezzanine financing. In connection with the
approval of any such mezzanine financing, Lender shall have
the right to adjust the original principal balance of the
Floating Rate CMBS Loan accordingly taking into consideration,
among other things, any or all of the above criteria and/or
the effect of such proposed mezzanine financing on the
origination, value, marketability and/or pricing of such
Floating Rate CMBS Loan.
17. The following text is hereby added as a new Section
9.4(b)(xiv) to the Loan Agreement and shall be incorporated into the Conversion
Amended Loan Documents or the Floating Rate Conversion Documents (including any
guaranty in connection therewith) applicable to the Austin Town Lake Property
(with such conforming revisions as may be necessary in connection therewith):
(xiv) any Loss resulting from the Austin Town Lake
Property's failure to comply with all applicable zoning laws
and ordinances relating to the number of parking spaces;
provided, however, Borrower shall have no liability pursuant
to this Section 9.4(b)(xiv)
- 12 -
from and after the date Borrower has delivered to Lender
evidence acceptable to Lender that the Austin Town Lake
Property complies with all applicable zoning laws and
ordinances relating to the number of parking spaces.
18. The following text is hereby added as a new Section 9.4(b)(xv)
to the Loan Agreement:
(xv) any Loss resulting from Borrower's failure to (1)
prepay the Loan, if required, pursuant to the provisions of
Section 9.1.4 hereof (which such Loss shall, at a minimum, be
deemed to be equal to the amount of the prepayment due in
connection with such Section 9.1.4) and (2) pay the Hedging
Losses, if any were required to have been paid pursuant to the
provisions of such Section 9.1.4
19. The following text is hereby added as a new Section
9.4(b)(xvi) to the Loan Agreement and shall be incorporated into the Conversion
Amended Loan Documents (including any guaranty in connection therewith)
applicable to the Troy Property (with such conforming revisions as may be
necessary in connection therewith):
(xvi) any Loss resulting from Borrower's failure to (1)
prepay the Loan, if required, pursuant to the provisions of
Section 5.5 hereof (which such Loss shall, at a minimum, be
deemed to be equal to the amount of the prepayment due in
connection with such Section 5.5) and (2) pay the Hedging
Losses, if any were required to have been paid pursuant to the
provisions of such Section 5.5
20. The following text is hereby added as a new Section
9.4(b)(xvii) to the Loan Agreement and shall be incorporated into the Floating
Rate Conversion Documents (including any guaranty in connection therewith)
applicable to the LBV Property (with such conforming revisions as may be
necessary in connection therewith):
(xvii) any Loss resulting from Borrower's failure to prepay
the Loan, if required, pursuant to the provisions of Section
5.6 hereof (which such Loss shall, at a minimum, be deemed to
be equal to the amount of the prepayment due in connection
with such Section 5.6)
21. Effective as of the date hereof, the Available Facility Amount
is $176,172,018.00 and the Facility Amount is $200,000,000.00.
22. The Amended and Restated Letter Agreement, dated July 31,
2003, is hereby terminated and of no further force and effect.
23. Lender acknowledges that, with respect to the Ground Lease
applicable to the Atlanta CP Property only, Borrower's failure to comply with
the representations contained in Section 4.1.42(g) of the Loan Agreement shall
not constitute an Event of Default under the Loan Documents.
- 13 -
24. Attached as Schedule V hereto is a true, correct and complete
list of all of the Properties currently encumbered by the lien of a Security
Instrument or contemplated to be encumbered by the lien of a Security Instrument
pursuant to this Amendment.
25. FelCor Lodging hereby ratifies and confirms that it absolutely
and unconditionally guarantees to Lender the prompt and unconditional payment of
all obligations and liabilities of Borrower for which Borrower shall be
personally liable pursuant to Section 9.4 of the Loan Agreement, as amended by
this Amendment.
26. Loan Party acknowledges that, except as expressly set forth
herein, nothing contained herein shall be construed to relieve Loan Party from
its respective obligations under the Note, the Loan Agreement, the Security
Instruments, the Environmental Indemnity and the other Loan Documents.
27. Loan Party ratifies and confirms to Lender as of the date
hereof that, except as otherwise expressly and specifically modified by this
Amendment, all of the terms, covenants, indemnifications and provisions of the
Note, the Loan Agreement, the Security Instruments, the Environmental Indemnity
and the other Loan Documents are and shall remain in full force and effect
without change except as otherwise expressly and specifically modified by this
Amendment.
28. Loan Party represents, warrants and covenants that Loan Party
has full power, authority and legal right to execute this Amendment and to keep
and observe all of the terms of this Amendment on its part to be observed or
performed.
29. In the event of any conflict or ambiguity between the terms,
covenants and provisions of this Amendment and those of the Loan Agreement and
the other Loan Documents, the terms, covenants and provisions of this Amendment
shall control.
30. This Amendment may not be modified, amended, waived, changed
or terminated orally, but only by an agreement in writing signed by the party
against whom the enforcement of the modification, amendment, waiver, change or
termination is sought.
31. This Amendment shall be binding upon and inure to the benefit
of Loan Party, Lender and their respective successors and assigns.
32. This Amendment maybe executed in any number of duplicate
originals and each such duplicate original shall be deemed to constitute but one
and the same instrument.
33. If any term, covenant or condition of this Amendment shall be
held to be invalid, illegal or unenforceable in any respect, this Amendment
shall be construed without such provision.
34. This Amendment shall be governed by and construed in
accordance with the terms and provisions of Section 10.3 of the Loan Agreement.
[NO FURTHER TEXT ON THIS PAGE]
- 14 -
IN WITNESS WHEREOF, Loan Party and Lender have executed this Amendment
the day and year first above written.
ORIGINAL OWNER:
FelCor/JPM Atlanta CP Hotel, L.L.C., a
Delaware limited liability company
By: /s/ Joel M. Eastman
----------------------------------------
Joel M. Eastman
Vice President
FELCOR/JPM ATLANTA ES HOTEL, L.L.C., a
Delaware limited liability company
By: /s/ Joel M. Eastman
----------------------------------------
Joel M. Eastman
Vice President
FELCOR/JPM AUSTIN HOLDINGS, L.P., a Delaware
limited partnership
By: FELCOR/JPM AUSTIN HOTEL, L.L.C., a
Delaware limited liability company,
its general partner
By: /s/ Joel M. Eastman
-----------------------------------
Joel M. Eastman
Vice President
FELCOR/JPM MANDALAY HOTEL, L.L.C., a
Delaware limited liability company
By: /s/ Joel M. Eastman
----------------------------------------
Joel M. Eastman
Vice President
FELCOR/JPM ORLANDO HOTEL, L.L.C., a Delaware
limited liability company
By: /s/ Joel M. Eastman
----------------------------------------
Joel M. Eastman
Vice President
FELCOR/JPM PHOENIX HOTEL, L.L.C., a Delaware
limited liability company
By: /s/ Joel M. Eastman
----------------------------------------
Joel M. Eastman
Vice President
FELCOR/JPM WILMINGTON HOTEL, L.L.C., a
Delaware limited liability company
By: /s/ Joel M. Eastman
----------------------------------------
Joel M. Eastman
Vice President
ORIGINAL OPERATING LESSEE:
DJONT/JPM ATLANTA CP LEASING, L.L.C., a
Delaware limited liability company
By: /s/ Joel M. Eastman
----------------------------------------
Joel M. Eastman
Vice President
DJONT/JPM ATLANTA ES LEASING, L.L.C., a
Delaware limited liability company
By: /s/ Joel M. Eastman
----------------------------------------
Joel M. Eastman
Vice President
DJONT/JPM AUSTIN LEASING, L.P., a Delaware
limited partnership
By: DJONT/JPM AUSTIN TENANT CO., L.L.C., a
Delaware limited liability
company, its general partner
By: /s/ Joel M. Eastman
-----------------------------------
Joel M. Eastman
Vice President
DJONT/JPM MANDALAY LEASING, L.L.C., a
Delaware limited liability company
By: /s/ Joel M. Eastman
----------------------------------------
Joel M. Eastman
Vice President
DJONT/JPM ORLANDO LEASING, L.L.C., a
Delaware limited liability company
By: /s/ Joel M. Eastman
----------------------------------------
Joel M. Eastman
Vice President
DJONT/JPM PHOENIX LEASING, L.L.C., a
Delaware limited liability company
By: /s/ Joel M. Eastman
----------------------------------------
Joel M. Eastman
Vice President
DJONT/JPM WILMINGTON LEASING, L.L.C., a
Delaware limited liability company
By: /s/ Joel M. Eastman
----------------------------------------
Joel M. Eastman
Vice President
DJONT/JPM BWI LEASING, L.L.C., a Delaware
limited liability company
By: /s/ Joel M. Eastman
----------------------------------------
Joel M. Eastman
Vice President
FELCOR LODGING:
FELCOR LODGING LIMITED PARTNERSHIP, a
Delaware limited partnership
By: FELCOR LODGING TRUST INCORPORATED, a
Maryland corporation, its general
partner
By: /s/ Joel M. Eastman
-----------------------------------
Joel M. Eastman
Vice President
FELCOR BWI:
FELCOR/JPM BWI HOTEL, L.L.C., a Delaware
limited liability company
By: /s/ Joel M. Eastman
----------------------------------------
Joel M. Eastman
Vice President
ADDITIONAL OWNER:
FELCOR/JPM AUSTIN HI HOLDINGS, L.P., a
Delaware limited partnership
By: FELCOR/JPM AUSTIN HI HOTEL, L.L.C., a
Delaware limited liability
company, its general partner
By: /s/ Joel M. Eastman
-----------------------------------
Joel M. Eastman
Vice President
FELCOR/JPM BOCA RATON HOTEL, L.L.C., a
Delaware limited liability company
By: /s/ Joel M. Eastman
----------------------------------------
Joel M. Eastman
Vice President
FELCOR/JPM DENVER HOTEL, L.L.C., a Delaware
limited liability company
By: /s/ Joel M. Eastman
----------------------------------------
Joel M. Eastman
Vice President
FELCOR/JPM LBV HOTEL, L.L.C., a Delaware
limited liability company
By: /s/ Joel M. Eastman
----------------------------------------
Joel M. Eastman
Vice President
FELCOR/JPM ORLANDO I-DRIVE HOTEL, L.L.C., a
Delaware limited liability company
By: /s/ Joel M. Eastman
----------------------------------------
Joel M. Eastman
Vice President
FELCOR/JPM TROY HOTEL, L.L.C., a Delaware
limited liability company
By: /s/ Joel M. Eastman
----------------------------------------
Joel M. Eastman
Vice President
ADDITIONAL OPERATING LESSEE:
DJONT/JPM AUSTIN HI LEASING, L.P., a
Delaware limited partnership
By: DJONT/JPM AUSTIN HI TENANT CO., L.L.C.,
a Delaware limited liability company,
its general partner
By: /s/ Joel M. Eastman
-----------------------------------
Joel M. Eastman
Vice President
DJONT/JPM BOCA RATON LEASING, L.L.C., a
Delaware limited liability company
By: /s/ Joel M. Eastman
----------------------------------------
Joel M. Eastman
Vice President
DJONT/JPM DENVER LEASING, L.L.C., a Delaware
limited liability company
By: /s/ Joel M. Eastman
----------------------------------------
Joel M. Eastman
Vice President
DJONT/JPM LBV LEASING, L.L.C., a Delaware
limited liability company
By: /s/ Joel M. Eastman
----------------------------------------
Joel M. Eastman
Vice President
DJONT/JPM ORLANDO I-DRIVE LEASING, L.L.C., a
Delaware limited liability company
By: /s/ Joel M. Eastman
----------------------------------------
Joel M. Eastman
Vice President
DJONT/JPM TROY LEASING, L.L.C., a Delaware
limited liability company
By: /s/ Joel M. Eastman
----------------------------------------
Joel M. Eastman
Vice President
FCH/DT BWI HOTEL, L.L.C., a Delaware limited
liability company
By: /s/ Joel M. Eastman
----------------------------------------
Joel M. Eastman
Vice President
FCH/DT BWI HOLDINGS, L.P., a Delaware
limited partnership
By: FCH/DT HOTELS, L.L.C., a Delaware
limited liability company, its general
partner
By: /s/ Joel M. Eastman
-----------------------------------
Joel M. Eastman
Vice President
ACKNOWLEDGED AND AGREED:
FELCOR HOTEL ASSET COMPANY, L.L.C., a
Delaware limited liability company
By: /s/ Joel M. Eastman
----------------------------------------
Joel M. Eastman
Vice President
LENDER:
JPMORGAN CHASE BANK, a New York banking
corporation
By: /s/ Michael Mesard
----------------------------------------
Name: Michael Mesard
Title: Vice President
SCHEDULE I
ORIGINAL OWNER
1. FelCor/JPM Atlanta CP Hotel, L.L.C., a Delaware limited liability
company
2. FelCor/JPM Atlanta ES Hotel, L.L.C., a Delaware limited liability
company
3. FelCor/JPM Austin Holdings, L.P., a Delaware limited partnership
4. FelCor/JPM Mandalay Hotel, L.L.C., a Delaware limited liability company
5. FelCor/JPM Nashville Hotel, L.L.C., a Delaware limited liability
company (1)
6. FelCor/JPM Orlando Hotel, L.L.C., a Delaware limited liability company
7. FelCor/JPM Phoenix Hotel, L.L.C., a Delaware limited liability company
8. FelCor/JPM Wilmington Hotel, L.L.C., a Delaware limited liability
company
9. FelCor Hotel Asset Company, L.L.C., a Delaware limited liability
company (2)
- ---------------
(1) Original party to the Original Loan Agreement. Released of all liability
under the Original Loan Agreement pursuant to the First Amendment.
(2) Fee owner of the Holiday Inn Select - Orlando Airport property. Not a
borrower under the Note but an Indemnitor under the Environmental Indemnity.
SCHEDULE II
ORIGINAL OPERATING LESSEE
1. DJONT/JPM Atlanta CP Leasing, L.L.C., a Delaware limited liability
company
2. DJONT/JPM Atlanta ES Leasing, L.L.C., a Delaware limited liability
company
3. DJONT/JPM Austin Leasing, L.P., a Delaware limited partnership
4. DJONT/JPM BWI Leasing, L.L.C., a Delaware limited liability company
5. DJONT/JPM Mandalay Leasing, L.L.C., a Delaware limited liability
company
6. DJONT/JPM Orlando Leasing, L.L.C., a Delaware limited liability company
7. DJONT/JPM Phoenix Leasing, L.L.C., a Delaware limited liability company
8. DJONT/JPM Wilmington Leasing, L.L.C., a Delaware limited liability
company
SCHEDULE III
ADDITIONAL OWNER
1. FelCor/JPM Austin HI Holdings, L.P., a Delaware limited partnership
2. FelCor/JPM Boca Raton Hotel, L.L.C., a Delaware limited liability
company
3. FelCor/JPM Denver Hotel, L.L.C., a Delaware limited liability company
4. FelCor/JPM LBV Hotel, L.L.C., a Delaware limited liability company
5. FelCor/JPM Orlando I-Drive Hotel, L.L.C., a Delaware limited liability
company
6. FelCor/JPM Troy Hotel, L.L.C., a Delaware limited liability company
7. FelCor Hotel Asset Company, L.L.C., a Delaware limited liability
company(3)
- -------------------
(3) Fee owner of the Embassy Suites Hotel - Boca Raton property and the Holiday
Inn Orlando International Drive Resort property. Not a borrower under the Note
but an Indemnitor under the Environmental Indemnity.
SCHEDULE IV
ADDITIONAL OPERATING LESSEE
1. DJONT/JPM Austin HI Leasing, L.P., a Delaware limited partnership
2. DJONT/JPM Boca Raton Leasing, L.L.C., a Delaware limited liability
company
3. DJONT/JPM Denver Leasing, L.L.C., a Delaware limited liability company
4. DJONT/JPM LBV Leasing, L.L.C., a Delaware limited liability company
5. DJONT/JPM Orlando I-Drive Leasing, L.L.C., a Delaware limited liability
company
6. DJONT/JPM Troy Leasing, L.L.C., a Delaware limited liability company
SCHEDULE V
LIST OF PROPERTIES
Property Name Property Address Type County City State
- -------------------------------------------------------------------------------------------------------------------------------
1 Phoenix Biltmore Embassy Suites 2630 East Camelback Fee Maricopa Phoenix AZ
- -------------------------------------------------------------------------------------------------------------------------------
2 Embassy Suites Mandalay Beach 2101 Mandalay Beach Road Fee Ventura Oxnard CA
- -------------------------------------------------------------------------------------------------------------------------------
3 DoubleTree Hotel - Denver 13696 E. Iliff Place Fee Arapahoe Aurora CO
- -------------------------------------------------------------------------------------------------------------------------------
4 DoubleTree Hotel 4727 Concord Pike Fee New Castle Wilmington DE
- -------------------------------------------------------------------------------------------------------------------------------
5 Holiday Inn Select 5750 T.G. Lee Boulevard Acc. Fee / Orange Orlando FL
- Orlando Airport Lease
- -------------------------------------------------------------------------------------------------------------------------------
6 DoubleTree Guest Suites - Walt 2305 Hotel Plaza Boulevard Lease Orange Lake Buena Vista FL
Disney World Resort
- -------------------------------------------------------------------------------------------------------------------------------
7 Embassy Suites Hotel 661 N.W. 53rd Street Acc. Fee / Palm Beach Boca Raton FL
- Boca Raton Lease
- -------------------------------------------------------------------------------------------------------------------------------
8 Holiday Inn Orlando 6515 International Drive Acc. Fee / Orange Orlando FL
International Drive Resort Lease
- -------------------------------------------------------------------------------------------------------------------------------
9 Atlanta Airport 4700 Southport Road Fee 13(th) College Park GA
- Embassy Suites District-Fulton
- -------------------------------------------------------------------------------------------------------------------------------
10 Atlanta Airport 1325 Virginia Avenue Fee / Lease 14th Atlanta GA
- Crowne Plaza District-Fulton
- -------------------------------------------------------------------------------------------------------------------------------
11 Embassy Suites BWI 1300 Concourse Drive Acc. Fee / Anne Linthicum MD
Lease Arundel
- -------------------------------------------------------------------------------------------------------------------------------
12 Embassy Suites Hotel - Troy 850 Tower Drive Fee Oakland Troy MI
- -------------------------------------------------------------------------------------------------------------------------------
13 DoubleTree Guest Suites 303 West 15th Street Fee Travis Austin TX
- -------------------------------------------------------------------------------------------------------------------------------
14 Austin Town Lake - 20 North Interregional Fee / Lease Travis Austin TX
Holiday Inn Highway (I35)
- -------------------------------------------------------------------------------------------------------------------------------
Shaded Properties denote Properties added pursuant to the Second
Amendment.