EXHIBIT 10.35.3
New York, New York
As of July 28, 2004
GUARANTY OF RECOURSE OBLIGATIONS OF BORROWER
FOR VALUE RECEIVED, and to induce JPMORGAN CHASE BANK, a New York banking
corporation, having its principal place of business at 270 Park Avenue, New
York, New York 10017 ("Lender"), to lend to 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
("Borrower"), the principal sum of EIGHTY-SEVEN MILLION AND 00/100 DOLLARS
($87,000,000.00) (the "Loan"), advanced pursuant to that certain Loan Agreement,
dated as of the date hereof, between Borrower and Lender (as the same may be
amended, restated, replaced, supplemented or otherwise modified from time to
time, the "Loan Agreement") and evidenced by the Note (as defined in the Loan
Agreement) and the other Loan Documents (as defined in the Loan Agreement), the
undersigned, 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 (hereinafter referred to as
"Guarantor") hereby absolutely and unconditionally guarantees to Lender the
prompt and unconditional payment of the Guaranteed Recourse Obligations of
Borrower (hereinafter defined). All capitalized words and phrases not otherwise
defined herein shall have the meanings ascribed to them in the Loan Agreement.
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 the Note, the Loan Agreement, or the other Loan Documents, a
true copy of each of said documents Guarantor hereby acknowledges having
received and reviewed.
The term "Debt" as used in this Guaranty of Recourse Obligations of
Borrower (the "Guaranty") shall mean the principal sum evidenced by the Note and
secured by the Security Instrument, or so much thereof as may be outstanding
from time to time, together with interest thereon at the rate of interest
specified in the Note and all other sums other than principal or interest which
may or shall become due and payable pursuant to the provisions of the Note, the
Loan Agreement, or the other Loan Documents.
The term "Guaranteed Recourse Obligations of Borrower" as used in this
Guaranty shall mean all obligations and liabilities of Borrower for which
Borrower shall be personally liable pursuant to the Note, the Loan Agreement, or
the other Loan Documents.
Any indebtedness of 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 Debt. Until payment in full
of the Debt (and including interest accruing on the Note after the commencement
of a proceeding by or against Borrower under the Bankruptcy Code 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 the Bankruptcy Code generally),
Guarantor agrees not to accept any payment or satisfaction of any kind of
indebtedness of Borrower to Guarantor and hereby assigns such indebtedness to
Lender, including the right to file proof of claim and to vote thereon in
connection with any such proceeding under the Bankruptcy Code, including the
right to vote on any plan of reorganization. Further, if Guarantor shall
comprise more than one person, firm or corporation, Guarantor agrees that until
such payment in full of the Debt, (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 Lender, (b) no one of them will take any action to exercise or
enforce any rights to such contribution, and (c) if any Guarantor should receive
any payment, satisfaction or security for any indebtedness of Borrower to any
Guarantor or for any contribution by any other Guarantors for payment made
hereunder by the recipient to Lender, the same shall be delivered to Lender in
the form received, endorsed or assigned as may be appropriate for application on
account of, or as security for, the Debt and until so delivered, shall be held
in trust for Lender as security for the Debt.
Guarantor agrees that, with or without notice or demand, Guarantor will
reimburse Lender, to the extent that such reimbursement is not made by Borrower,
for all expenses (including counsel fees and disbursements) incurred by Lender
in connection with the collection of the Guaranteed Recourse Obligations of
Borrower or any portion thereof or with the enforcement of this Guaranty.
Subject to the terms of the Loan Agreement, all moneys available to Lender
for application in payment or reduction of the Debt may be applied by Lender in
such manner and in such amounts and at such time or times and in such order and
priority as Lender may see fit to the payment or reduction of such portion of
the Debt as Lender may elect.
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, 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 Lender of any rights or remedies
which it may have under or with respect to either the Note, the Loan Agreement,
or the other Loan Documents, against any person obligated thereunder or the
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
Properties covered under the Loan Agreement or other collateral for the Loan, or
(d) by reason of Lender's failure to exercise, or delay in exercising, any such
right or remedy or any right or remedy Lender may have hereunder or in respect
to this Guaranty, or (e) by reason of the commencement of a case under the
Bankruptcy Code by or against any person obligated under the Note, the Loan
Agreement or the other Loan Documents, or the death of any Guarantor, or (f) by
reason of any transfer or assignment of the Loan by Lender or (g) by reason of
any payment made on the Debt or any other indebtedness arising under the Note,
the Loan Agreement, or the other Loan Documents, whether made by Borrower or
Guarantor or any other person, which is required to be refunded pursuant to any
bankruptcy or insolvency law; it being understood that no payment so refunded
shall be considered as a payment of any portion of the Debt, nor shall it have
the effect of reducing the liability of Guarantor hereunder. It is further
understood, that if Borrower shall
2
have taken advantage of, or be subject to the protection of, any provision in
the Bankruptcy Code, the effect of which is to prevent or delay Lender from
taking any remedial action against Borrower, including the exercise of any
option Lender has to declare the Debt due and payable on the happening of any
default or event by which under the terms of the Note, the Loan Agreement, or
the other Loan Documents, the Debt shall become due and payable, Lender may, as
against Guarantor, nevertheless, declare the Debt due and payable and enforce
any or all of its rights and remedies against Guarantor provided for herein.
Guarantor further covenants that this Guaranty shall remain and continue
in full force and effect as to any modification, extension or renewal of the
Note, the Loan Agreement, or the other Loan Documents, that Lender shall not be
under a duty to protect, secure or insure any 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.
As a further inducement to Lender to make the Loan and in consideration
thereof, Guarantor further covenants and agrees (a) that in any action or
proceeding brought by Lender against Guarantor on this Guaranty, Guarantor shall
and does hereby waive trial by jury, (b) that the Supreme Court of the State of
New York for the County of New York, or, in a case involving diversity of
citizenship, the United States District Court for the Southern District of New
York, shall have exclusive jurisdiction of any such action or proceeding, and
(c) that service of any summons and complaint or other process in any such
action or proceeding may be made by registered or certified mail directed to
Guarantor at Guarantor's address set forth above, Guarantor waiving personal
service thereof. Nothing in this Guaranty will be deemed to preclude Lender from
bringing an action or proceeding with respect hereto in any other jurisdiction.
This is a guaranty of payment and not of collection and upon any default
of Borrower under the Note, the Loan Agreement, or the other Loan Documents,
Lender may, at its option, proceed directly and at once, without notice, against
Guarantor to collect and recover the full amount of the Guaranteed Recourse
Obligations of Borrower or any portion thereof, without proceeding against
Borrower or any other person, or foreclosing upon, selling, or otherwise
disposing of or collecting or applying against any of the mortgaged properties
or other collateral for the Loan. Guarantor hereby waives the pleading of any
statute of limitations as a defense to the obligation hereunder.
All notices required or permitted hereunder shall be given and shall
become effective as provided in the Loan Agreement. Notices to Guarantor shall
be addressed as follows:
c/o FelCor Lodging Trust Incorporated
545 E. John Carpenter Freeway, Suite 1300
Irving, Texas 75062
Attention: General Counsel
Facsimile No.: (972) 444-4949
3
With a copy to: Jenkens & Gilchrist
1445 Ross Avenue, Suite 3200
Dallas, Texas 75202
Attention: Tom E. Davis, Esq.
Facsimile No.: (214) 855-4300
Each reference herein to Lender shall be deemed to include its successors
and assigns, to whose favor the provisions of this Guaranty shall also inure.
Each reference herein to Guarantor shall be deemed to include the heirs,
executors, administrators, legal representatives, successors and assigns of
Guarantor, all of whom shall be bound by the provisions of this Guaranty.
If Guarantor is a partnership, the agreements herein contained shall
remain in force and be applicable, notwithstanding any changes in the
individuals or entities comprising the partnership, and the term "Guarantor," as
used herein, shall include any alternate or successor partnership, but any
predecessor partnership and their partners shall not thereby be released from
any liability. If Guarantor is a corporation, the agreements contained herein
shall remain in full force and be applicable notwithstanding any changes in the
shareholders comprising, or the officers and directors relating to, the
corporation, and the term "Guarantor" as used herein, shall include any
alternative or successor corporation, but any predecessor corporation shall not
be relieved of liability hereunder. If Guarantor is a limited liability company,
the agreements herein contained shall remain in force and be applicable,
notwithstanding any changes in the members comprising the limited liability
company, and the term "Guarantor" as used herein, shall include any alternate or
successor limited liability company, but any predecessor limited liability
company and their members shall not thereby be released from any liability.
(Nothing in this paragraph shall be construed as a consent to, or a waiver of,
any prohibition or restriction on transfers of interests in such partnership,
corporation or limited liability company which may be set forth in the Loan
Agreement, the Security Instrument or any other Loan Document.)
Guarantor (and its representative, executing below, if any) has full
power, authority and legal right to execute this Guaranty and to perform all its
obligations under this Guaranty.
All understandings, representations and agreements heretofore had with
respect to this Guaranty are merged into this Guaranty which alone fully and
completely expresses the agreement of Guarantor and Lender.
This Guaranty may be executed in one or more counterparts by some or all
of the parties hereto, each of which counterparts shall be an original and all
of which together shall constitute a single agreement of Guaranty. The failure
of any party hereto to execute this Guaranty, or any counterpart hereof, shall
not relieve the other signatories from their obligations hereunder.
This Guaranty may not be modified, amended, waived, extended, changed,
discharged or terminated orally or by any act or failure to act on the part of
Lender or Borrower, but only by an agreement in writing signed by the party
against whom enforcement of any modification, amendment, waiver, extension,
change, discharge or termination is sought.
This Guaranty shall be governed, construed and interpreted as to validity,
enforcement and in all other respects, in accordance with the laws of the State
of New York.
4
[NO FURTHER TEXT ON THIS PAGE]
5
IN WITNESS WHEREOF, Guarantor has duly executed this Guaranty as of the
date first above set forth.
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
SCHEDULE I
1. FelCor/JPM Atlanta CP Hotel, L.L.C., a Delaware limited liability company
2. FelCor/JPM Austin HI Holdings, L.P., a Delaware limited partnership
3. FelCor/JPM Brunswick 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 Mandalay Hotel, L.L.C., a Delaware limited liability company
6. FelCor/JPM Orlando I-Drive Hotel, L.L.C., a Delaware limited liability
company