EXHIBIT 10.31.6
TERMINATION AGREEMENT
THIS TERMINATION AGREEMENT is made this 28th day of July, 2004
by and among each of the entities identified on Schedule I attached hereto, each
having its principal place of business 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 Parties"), FELCOR
LODGING LIMITED PARTNERSHIP, a Delaware limited partnership, having its
principal place of business at c/o FelCor Lodging Trust Incorporated, 545 East
John Carpenter Freeway, Suite 1300, Irving, Texas 75062 ("FelCor Lodging"), and
JPMORGAN CHASE BANK, a New York banking corporation, having its principal place
of business at 270 Park Avenue, New York, New York 10017 ("Lender").
WITNESSETH:
WHEREAS, Lender has made a loan (the "Loan") in the principal
amount of $200,000,000.00, or so much thereof as may have been advanced pursuant
to that certain Loan Facility Agreement, dated June 18, 2003 (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
(the "First Amendment"), as further amended by that certain Second Amendment to
Note, Loan Agreement, Environmental Indemnity Agreement and Other Loan
Documents, dated October 23, 2003, (the "Second Amendment"), as further amended
by that certain Third Amendment to Note, Loan Agreement, Environmental Indemnity
Agreement and Other Loan Documents, dated February 18, 2004 (the "Third
Amendment"; the Original Loan Agreement, together with the First Amendment,
Second Amendment and Third Amendment, the "Loan Agreement"), which Loan is
evidenced by the Note (as defined in the Loan Agreement) and secured by, among
other things, the Security Instruments (as defined in the Loan Agreement);
WHEREAS, Lender has converted the Loan into various Fixed Rate
CMBS Loans (as defined in the Loan Agreement) and a Floating Rate CMBS Loan (as
defined in the Loan Agreement) (collectively, the "Converted Loans") pursuant to
the terms of the Loan Agreement; and
WHEREAS, Original Parties, FelCor Lodging and Lender desire to
terminate the Loan Agreement, the Note, the Security Instruments and all other
agreements (other than with respect to the Converted Loans) relating to the Loan
(the "Agreements"), upon and subject to the terms and conditions set forth in
this instrument;
NOW, THEREFORE, in consideration of the foregoing and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged the parties to this instrument hereby agree as follows:
1. Termination of Agreements. The Agreements are hereby
terminated, effective as of the date hereof. FelCor Lodging and Original Parties
hereby agree and acknowledge that, as of the date hereof, (i) Lender has no
obligations or liabilities with respect to the Agreements including, without
limitation, the obligation to make any Advances (as defined
in the Loan Agreement) and (ii) FelCor Lodging and Original Parties have no
rights to Advances under the Agreements.
2. Assumption of Obligations. FelCor Lodging hereby assumes
the duties and obligations of Original Parties under Section 9.1.4 of the Loan
Agreement (the "Troy Obligations").
3. Release. Lender does hereby relieve and release Original
Parties from any and all liability or obligation to observe, comply with or
perform any of the terms, covenants or conditions of the Loan Documents. Lender
does hereby relieve and release FelCor Lodging from any and all liability or
obligation to observe, comply with or perform any of the terms, covenants or
conditions of the Loan Documents other than FelCor Lodging's liabilities and
obligations with respect to the Troy Obligations.
4. Original Note. Lender shall promptly deliver the original
Note to FelCor Lodging upon Lender's receipt of a fully executed copy of this
instrument.
5. Further Assurances. Original Parties, FelCor Lodging and
Lender agree that at any time and from time to time, at the expense of FelCor
Lodging, the parties hereto will promptly execute and deliver all further
instruments and documents, and take all further action, that may be necessary or
desirable, or that Original Parties, FelCor Lodging or Lender may request, in
order to evidence the termination of the Agreements.
6. Miscellaneous.
(a) The terms hereof may not be waived, changed, modified,
terminated or discharged orally, but only by an instrument in writing signed by
the party against whom enforcement of any such waiver, change, modification,
termination or discharge is sought.
(b) This instrument shall bind, and inure to the benefit of,
the parties hereto, their respective successors and permitted assigns. The
provisions of this instrument shall survive the termination of the Agreements
effected pursuant hereto.
(c) This instrument may be executed in any number of
counterparts and by different parties hereto in separate counterparts, and at
such time as each party shall have executed at least one counterpart, each such
counterpart shall be deemed to be an original, but all of which counterparts
taken together shall constitute one and the same agreement.
(d) No binding agreement shall exist among the parties hereto
with respect to the transactions contemplated hereby unless and until this
instrument has been duly executed and delivered by all of such parties.
(e) FELCOR LODGING, ORIGINAL PARTIES AND LENDER HEREBY
KNOWINGLY, VOLUNTARILY, UNCONDITIONALLY, IRREVOCABLY AND INTENTIONALLY FOREVER
WAIVE ANY RIGHT ANY OF THEM MAY HAVE TO A TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM (WHETHER ARISING IN TORT OR CONTRACT) BROUGHT BY SUCH
PARTY AGAINST ANY OTHER PARTY HERETO BASED ON ANY MATTER ARISING OUT OF, OR IN
ANY
WAY CONNECTED WITH, THIS INSTRUMENT OR ANY OTHER DOCUMENT EXECUTED AND DELIVERED
BY ANY PARTY HERETO IN CONNECTION HEREWITH (INCLUDING ANY ACTION TO RESCIND OR
CANCEL THIS INSTRUMENT ON GROUNDS THAT EXECUTION AND DELIVERY HEREOF WAS
FRAUDULENTLY INDUCED OR OTHERWISE VOID OR VOIDABLE).
(f) THIS INSTRUMENT SHALL BE DEEMED TO BE A CONTRACT ENTERED
INTO PURSUANT TO THE LAWS OF THE STATE OF NEW YORK AND SHALL IN ALL RESPECTS BE
GOVERNED, CONSTRUED, APPLIED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK. WITHOUT IN ANY WAY LIMITING THE PRECEDING CHOICE OF LAW, THE
PARTIES HERETO ELECT TO BE GOVERNED BY NEW YORK LAW IN ACCORDANCE WITH, AND ARE
RELYING (AT LEAST IN PART) ON, SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF
THE STATE OF NEW YORK.
(g) WITH RESPECT TO ANY CLAIM OR ACTION ARISING HEREUNDER,
FELCOR LODGING AND ORIGINAL PARTIES (A) IRREVOCABLY SUBMIT TO THE NONEXCLUSIVE
JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK AND THE UNITED STATES
DISTRICT COURT LOCATED IN THE BOROUGH OF MANHATTAN IN NEW YORK, NEW YORK, AND
APPELLATE COURTS FROM ANY THEREOF, AND (B) IRREVOCABLY WAIVE ANY OBJECTION WHICH
IT MAY HAVE AT ANY TIME TO THE LAYING ON VENUE OF ANY SUIT, ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS INSTRUMENT BROUGHT IN ANY SUCH COURT,
IRREVOCABLY WAIVES ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN
ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. NOTHING IN THIS
INSTRUMENT OR THE AGREEMENTS WILL BE DEEMED TO PRECLUDE LENDER FROM BRINGING AN
ACTION OR PROCEEDING WITH RESPECT HERETO IN ANY OTHER JURISDICTION. WITHOUT IN
ANY WAY LIMITING THE PRECEDING CONSENTS TO JURISDICTION AND VENUE, THE PARTIES
AGREE TO SUBMIT TO THE JURISDICTION OF SUCH NEW YORK COURTS IN ACCORDANCE WITH
SECTION 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK OR ANY
CORRESPONDING OR SUCCEEDING PROVISIONS THEREOF.
IN WITNESS WHEREOF, this Termination Agreement has been
executed by the parties hereto as of the date and year first above written.
ORIGINAL PARTIES:
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
FELCOR HOTEL ASSET COMPANY, L.L.C., a
Delaware limited liability company
By: /s/ Joel M. Eastman
-----------------------------------
Joel M. Eastman
Vice President
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 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 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 BOCA RATON HOTEL, L.L.C., a
Delaware limited liability company
By: /s/ Joel M. Eastman
-----------------------------------
Joel M. Eastman
Vice President
FELCOR/JPM BWI 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 MANDALAY HOTEL, L.L.C., a
Delaware limited liability company
By: /s/ Joel M. Eastman
-----------------------------------
Joel M. Eastman
Vice President
FELCOR/JPM NASHVILLE 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 ORLANDO I-DRIVE 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 TROY 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
BHR OPERATIONS, L.L.C., a Delaware
limited liability company
By: /s/ Joel M. Eastman
-----------------------------------
Joel M. Eastman
Vice President
DJONT LEASING, L.L.C., a Delaware
limited liability company
By: /s/ Joel M. Eastman
-----------------------------------
Joel M. Eastman
Vice President
DJONT OPERATIONS, L.L.C., a Delaware
limited liability company
By: /s/ Joel M. Eastman
-----------------------------------
Joel M. Eastman
Vice President
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 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 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 BOCA RATON 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
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 MANDALAY 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 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 TROY 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
FCH/DT LEASING, L.L.C., a Delaware
limited liability company
By: /s/ Joel M. Eastman
-----------------------------------
Joel M. Eastman
Vice President
FCH/DT LEASING II, L.L.C., a Delaware
limited liability company
By: /s/ Joel M. Eastman
-----------------------------------
Joel M. Eastman
Vice President
FELCOR/TRS HOLDINGS, L.P., a Delaware
limited partnership
By: FELCOR TRS I, L.L.C., a Delaware
limited liability company, its
general partner
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
LENDER:
JPMORGAN CHASE BANK, a New York
banking corporation
By: /s/ Michael Mesard
-----------------------------------
Name: Michael Mesard
Title: Vice President
SCHEDULE I
1. FCH/DT BWI Hotel, L.L.C., a Delaware limited liability company
2. FCH/DT BWI Holdings, L.P., a Delaware limited partnership
3. FelCor Hotel Asset Company, L.L.C., a Delaware limited liability
company
4. FelCor/JPM Atlanta CP Hotel, L.L.C., a Delaware limited liability
company
5. FelCor/JPM Atlanta ES Hotel, L.L.C., a Delaware limited liability
company
6. FelCor/JPM Austin HI Holdings, L.P., a Delaware limited partnership
7. FelCor/JPM Austin Holdings, L.P., a Delaware limited partnership
8. FelCor/JPM Boca Raton Hotel, L.L.C., a Delaware limited liability
company
9. FelCor/JPM BWI Hotel, L.L.C., a Delaware limited liability company
10. FelCor/JPM Denver Hotel, L.L.C., a Delaware limited liability company
11. FelCor/JPM LBV Hotel, L.L.C., a Delaware limited liability company
12. FelCor/JPM Mandalay Hotel, L.L.C., a Delaware limited liability company
13. FelCor/JPM Nashville Hotel, L.L.C., a Delaware limited liability
company
14. FelCor/JPM Orlando Hotel, L.L.C., a Delaware limited liability company
15. FelCor/JPM Orlando I-Drive Hotel, L.L.C., a Delaware limited liability
company
16. FelCor/JPM Phoenix Hotel, L.L.C., a Delaware limited liability company
17. FelCor/JPM Troy Hotel, L.L.C., a Delaware limited liability company
18. FelCor/JPM Wilmington Hotel, L.L.C., a Delaware limited liability
company
19. FCH/DT BWI Hotel, L.L.C., a Delaware limited liability company
20. BHR Operations, L.L.C., a Delaware limited liability company
21. DJONT Leasing, L.L.C., a Delaware limited liability company
22. DJONT Operations, L.L.C., a Delaware limited liability company
23. DJONT/JPM Atlanta CP Leasing, L.L.C., a Delaware limited liability
company
24. DJONT/JPM Atlanta ES Leasing, L.L.C., a Delaware limited liability
company
25. DJONT/JPM Austin HI Leasing, L.P., a Delaware limited partnership
26. DJONT/JPM Austin Leasing, L.P., a Delaware limited partnership
27. DJONT/JPM Boca Raton Leasing, L.L.C., a Delaware limited liability
company
28. DJONT/JPM BWI Leasing, L.L.C., a Delaware limited liability company
29. DJONT/JPM Denver Leasing, L.L.C., a Delaware limited liability company
30. DJONT/JPM LBV Leasing, L.L.C., a Delaware limited liability company
31. DJONT/JPM Mandalay Leasing, L.L.C., a Delaware limited liability
company
32. DJONT/JPM Orlando I-Drive Leasing, L.L.C., a Delaware limited liability
company
33. DJONT/JPM Orlando Leasing, L.L.C., a Delaware limited liability company
34. DJONT/JPM Phoenix Leasing, L.L.C., a Delaware limited liability company
35. DJONT/JPM Troy Leasing, L.L.C., a Delaware limited liability company
36. DJONT/JPM Wilmington Leasing, L.L.C., a Delaware limited liability
company
37. FCH/DT Leasing II, L.L.C., a Delaware limited liability company
38. FCH/DT Leasing, L.L.C., a Delaware limited liability company
39. FelCor/TRS Holdings, L.P., a Delaware limited partnership