SEVENTH AMENDMENT TO
SECOND AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF FELCOR LODGING LIMITED PARTNERSHIP
This Seventh Amendment to Second Amended and Restated Agreement of Limited
Partnership of FelCor Lodging Limited Partnership (the "Partnership") is made
and entered into effective as of April 7, 2005, by and among FelCor Lodging
Trust Incorporated, a Maryland corporation, as General Partner (the "General
Partner"), and all persons and entities who are, or shall in the future become,
Limited Partners of the Partnership in accordance with the provisions of the
Partnership Agreement (as hereinafter defined).
RECITALS:
A. The General Partner and the existing Limited Partners (the General
Partner and the Limited Partners, collectively, referred to herein as the
"Partners") have previously executed and delivered that certain Second Amended
and Restated Agreement of Limited Partnership of FelCor Lodging Limited
Partnership, dated as of December 31, 2001, as amended (as amended, herein
referred to as the "Partnership Agreement"), and the Partnership Agreement
governs the Partnership.
B. Pursuant to Sections 1.4 and 4.6 of the Partnership Agreement, the
General Partner is authorized to cause the Partnership to issue Partnership
Securities for any Partnership purpose, at any time or from time to time, to the
Partners or to other persons for such consideration and on such terms and
conditions as shall be established by the General Partner in its sole
discretion.
C. The General Partner desires to exercise such authority by amending
the Partnership Agreement as provided herein to establish a new class and series
of Partnership Securities.
A G R E E M E N T S
NOW, THEREFORE, in consideration of the agreements and obligations of the
parties set forth herein and of other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereby
agree as follows:
1. Amendment of Partnership Agreement. The Partnership Agreement is
hereby amended to add Addendum No. 4 to the Partnership Agreement to create and
provide for the authorization for issuance of a class of the Partnership
Securities designated as the "Series E Cumulative Redeemable Preferred Units,"
having the preferences and relative, participating, optional or other special
rights, powers and duties set forth in such Addendum No. 4. Such Addendum No. 4
shall be in the form of Addendum No. 4 attached to this Seventh Amendment to
Second Amended and Restated Agreement of Limited Partnership of FelCor Lodging
Limited Partnership. The Addendum No. 4 is hereby incorporated into and made a
part of the Partnership Agreement for all purposes.
2. Defined Terms; Effect Upon Partnership Agreement. All initially
capitalized terms used without definition herein shall have the meanings set
forth therefor in the Partnership Agreement. Except as expressly amended hereby,
the Partnership Agreement shall remain in full force and effect and each of the
parties hereto hereby reaffirms the terms and provisions thereof.
SIGNATURE PAGE FOLLOWS
IN WITNESS WHEREOF, the General Partner has caused this Amendment to be
duly executed in its respective capacities set forth below as of the date first
set forth above.
GENERAL PARTNER:
FELCOR LODGING TRUST INCORPORATED,
a Maryland corporation
By:____________________________________
Name: Lawrence D. Robinson
Title: Executive Vice President, General Counsel &
Secretary
LIMITED PARTNERS (for all the Limited Partners now
and hereafter admitted as limited partners of the
Partnership, pursuant to the powers of attorney in
favor of the General Partner contained in Section
1.4 of the Agreement):
By: FELCOR LODGING TRUST INCORPORATED,
acting as General Partner and as duly
authorized attorney-in-fact
By:____________________________________
Name: Lawrence D. Robinson
Title: Executive Vice President, General
Counsel & Secretary
FELCOR LODGING LIMITED PARTNERSHIP
ADDENDUM NO. 4 TO SECOND AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
DESIGNATION OF
SERIES E CUMULATIVE REDEEMABLE PREFERRED UNITS
The undersigned General Partner of FelCor Lodging Limited Partnership, a
Delaware limited partnership (the "PARTNERSHIP"), pursuant to the authority
expressly granted to the General Partner by the Second Amended and Restated
Agreement of Limited Partnership of FelCor Lodging Limited Partnership, dated as
of December 31, 2001, as amended, pursuant to which the Partnership was formed
(the "PARTNERSHIP AGREEMENT"), and in particular Sections 1.4 and 4.6 thereof,
hereby executes and delivers this Addendum No. 4 to the Partnership Agreement
(the "ADDENDUM"), which Addendum is hereby made a part of the Partnership
Agreement for all purposes, to create and provide for the issue of a class of
Partnership Units and to fix the designations, preferences and relative,
participating, optional or other special rights, powers and duties thereof as
follows:
1. DESIGNATION OF CLASS. A class of units of the Partnership is hereby
authorized and designated as the "Series E Cumulative Redeemable Preferred
Units" (the "SERIES E PREFERRED UNITS"). The Series E Preferred Units shall have
the preferences and relative, participating, optional or other special rights,
powers and duties that are set forth in this Addendum and, to the extent
permitted by this Addendum, established by the General Partner and set forth in
any amendment to the Partnership Agreement or any amendment or annex to this
Addendum.
2. AUTHORIZED NUMBER OF SERIES E PREFERRED UNITS. The authorized number
of Series E Preferred Units shall be 54,000.
3. PREFERENCES, RIGHTS, POWERS AND DUTIES.
3.1 DEFINITIONS. For purposes of the Series E Preferred Units, the
following terms shall have the meanings indicated:
"Addendum" shall have the meaning set forth in the preamble hereof.
"Business Day" shall mean any day other than a Saturday, Sunday or a
day on which state or federally-chartered banking institutions in Texas or
New York are not required to be open.
"Call Date" shall have the meaning set forth in Section 3.4(b)
hereof.
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"Common Unit" shall mean the units of partnership interest of the
Partnership not designated as Preferred Units.
"Common Stock" shall mean the common stock, $0.01 par value per
share, of the General Partner.
"Distribution Payment Date" shall mean the last calendar day of
January, April, July and October, in each year, commencing on July 31,
2005; PROVIDED, HOWEVER, that if any Distribution Payment Date falls on
any day other than a Business Day, the distribution payment due on such
Distribution Payment Date shall be paid on the Business Day immediately
following such Distribution Payment Date.
"Distribution Period" shall mean quarterly distribution periods
commencing February 1, May 1, August 1 and November 1 of each year and
ending on and including the day preceding the first day of the next
succeeding Distribution Period (other than the initial Distribution
Period, which shall commence on April 7, 2005 and end on and include July
31, 2005).
"General Partner" shall mean FelCor Lodging Trust Incorporated, a
Maryland corporation, which is the sole general partner of the
Partnership.
"Issue Date" shall mean the date, from time to time, on which the
Partnership issues a Series E Preferred Unit.
"Junior Units" shall have the meaning set forth in Section 3.6(c)
hereof.
"Parity Units" shall have the meaning set forth in Section 3.6(b)
hereof.
"Partnership" shall have the meaning set forth in the preamble
hereof.
"Partnership Agreement" shall have the meaning set forth in the
preamble hereof.
"Preferred Units" shall mean units of partnership interest of the
Partnership designated as having certain preferences to the Common Units
with respect to distributions or upon liquidation of the Partnership.
"Series C Preferred Stock" shall mean the 8% Series C Cumulative
Redeemable Preferred Stock, $0.01 par value and $2,500.00 liquidation
preference per share, of the General Partner.
"Series E Preferred Units" shall have the meaning set forth in
Section 1 hereof.
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"set apart for payment" shall be deemed to include, without any action
other than the following, the recording by the Partnership in its accounting
ledgers of any accounting or bookkeeping entry which indicates, pursuant to a
declaration of dividends or other distribution by the Partnership, the
allocation of funds to be so paid on any series or class of capital units of the
Partnership; PROVIDED, HOWEVER, that if any funds for a class or series of
Junior Units or any class or series of Parity Units are placed in a separate
account of the Partnership or delivered to a disbursing, paying or other similar
agent, then "set apart for payment" with respect to the Series E Preferred Units
shall mean placing such funds in a separate account or delivering such funds to
a disbursing, paying or other similar agent.
Initially capitalized terms used without definition herein shall have the
meanings set forth therefor in the Partnership Agreement. Other terms defined
herein have the meanings so given them. Whenever the context requires, the
gender of all words used in this Addendum shall include the masculine, feminine
and neuter form of such words, and the singular form shall include the plural
and vice versa.
3.2 DISTRIBUTIONS.
(a) The holders of the Series E Preferred Units shall be entitled to
receive, when, as and if declared by the General Partner out of funds legally
available for that purpose, distributions payable in cash in an amount per
Series E Preferred Unit equal to $200.00 per year. Such distributions shall be
cumulative from the Issue Date of such units, whether or not in any Distribution
Period or Periods there shall be funds of the Partnership legally available for
the payment of such distributions and whether or not such distributions are
authorized, and shall be payable quarterly, when, as and if declared by the
General Partner, in arrears on Distribution Payment Dates, commencing on the
first Distribution Payment Date after the Issue Date. Each such distribution
shall be payable in arrears to the holders of record of the Series E Preferred
Units, as they appear on the records of the Partnership at the close of business
on such record dates, not more than sixty (60) days preceding such Distribution
Payment Dates thereof, as shall be fixed by the General Partner. Accrued and
unpaid distributions for any past Distribution Periods may be declared and paid
at any time, without reference to any regular Distribution Payment Date, to
holders of record on such date, not exceeding forty-five (45) days preceding the
payment date thereof, as may be fixed by the General Partner.
(b) The amount of distributions payable for each full Distribution
Period for the Series E Preferred Units shall be computed by dividing the annual
distribution rate by four. The amount of distributions payable for any period
shorter or longer than a full Distribution Period, on the Series E Preferred
Units shall be computed on the basis of a 360-day year consisting of twelve
30-day months. Holders of the Series E Preferred Units shall not be entitled to
any distributions, whether payable in cash, property or units, in excess of
cumulative distributions, as herein provided, on the Series E Preferred Units.
No interest, or sum of money in lieu of interest, shall be payable in respect of
any distribution payment or payments on the Series E Preferred Units that may be
in arrears.
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(c) So long as any of the Series E Preferred Units are outstanding, no
distributions, except as described in the immediately following sentence, shall
be declared or paid or set apart for payment on any class or series of Parity
Units for any period unless full cumulative distributions have been, or
contemporaneously are, declared and paid, or declared and a sum sufficient for
the payment thereof set apart for such payment on the Series E Preferred Units
for all Distribution Periods terminating on or prior to the Distribution Payment
Date on such class or series of Parity Units. When distributions are not paid in
full or a sum sufficient for such payment is not set apart, as aforesaid, all
distributions declared upon the Series E Preferred Units and all distributions
declared upon any other class or series of Parity Units shall be declared
ratably in proportion to the respective amounts of distributions accumulated and
unpaid on the Series E Preferred Units and accumulated and unpaid on such Parity
Units.
(d) So long as any of the Series E Preferred Units are outstanding, no
distributions (other than dividends or distributions paid in units of, or
options, warrants or rights to subscribe for or purchase units of, Junior
Units), shall be declared or paid or set apart for payment or other distribution
declared or made upon Junior Units, nor shall Junior Units be redeemed,
purchased or otherwise acquired (other than a redemption, purchase or other
acquisition of Common Units made for purposes of an employee incentive or
benefit plan of the Partnership for any consideration (or any moneys be paid to
or made available for a sinking fund for the redemption of any such units) by
the Partnership, directly or indirectly), unless in each case (i) the full
cumulative distributions on all outstanding Series E Preferred Units and any
other Parity Units shall have been paid or set apart for payment for all past
Distribution Periods with respect to the Series E Preferred Units and all past
distribution periods with respect to such Parity Units and (ii) sufficient funds
shall have been paid or set apart for the payment of the distribution for the
current Distribution Period with respect to the Series E Preferred Units and the
current Distribution Period with respect to such Parity Units.
3.3 LIQUIDATION PREFERENCE.
(a) In the event of any liquidation, dissolution or winding up of the
Partnership, whether voluntary or involuntary, before any payment or
distribution of the assets of the Partnership (whether capital or surplus) shall
be made to or set apart for the holders of Junior Units, the holders of the
Series E Preferred Units shall be entitled to receive two thousand five hundred
dollars ($2,500.00) per Series E Preferred Unit plus an amount equal to all
distributions (whether or not earned or declared) accrued and unpaid thereon to
the date of final distribution to such holders, but such holders shall not be
entitled to any further payment. If, upon any liquidation, dissolution or
winding up of the Partnership, the assets of the Partnership, or proceeds
thereof, distributable among the holders of the Series E Preferred Units shall
be insufficient to pay in full the preferential amount aforesaid and liquidating
payments on any other class or series of Parity Units, then such assets, or the
proceeds thereof, shall be distributed among the holders of the Series E
Preferred Units and any such other Parity Units ratably in accordance with the
respective amounts that would be payable on such Series E Preferred Units and
any such other Parity Units if all amounts payable thereon were paid in full.
For the purposes of this Section 3.3, (i) a consolidation or merger of the
Partnership with one or more
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Persons, (ii) a sale or transfer of all or substantially all of the assets of
the Partnership, or (iii) a statutory exchange of units shall not be deemed to
be a liquidation, dissolution or winding up, voluntary or involuntary, of the
Partnership.
(b) Subject to the rights of the holders of any series or class or
classes of Parity Units, after payment shall have been made in full to the
holders of the Series E Preferred Units, as provided in this Section 3.3, any
other series or class or classes of Junior Units shall, subject to the
respective terms and provisions (if any) applying thereto, be entitled to
receive any and all assets remaining to be paid or distributed, and the holders
of the Series E Preferred Units shall not be entitled to share therein.
3.4 REDEMPTION.
(a) The Series E Preferred Units shall be redeemable by the Partnership
solely when, as, and if any share of the Series C Preferred Stock is redeemed by
the General Partner and in the same proportion as shares of the Series C
Preferred Stock are redeemed by the General Partner so that the number of Series
E Preferred Units remaining unredeemed shall be the same as, and at all times
equal to, the number of shares of Series C Preferred Stock remaining unredeemed.
The Series C Preferred Stock is not redeemable by the General Partner prior to
April 7, 2010, and, therefore, the Series E Preferred Units shall not be
redeemable by the Partnership prior to such date.
(b) Upon redemption of the Series E Preferred Units by the Partnership
on the date specified in the notice to holders required under subparagraph (d)
of this Section 3.4 (the "CALL DATE"), each Series E Preferred Unit called for
redemption shall be redeemed in cash at a price per unit equal to $2,500.00 per
unit, plus all accrued and unpaid distributions thereon to the Call Date,
without interest, to the extent that the Partnership has funds legally available
therefor. The redemption price of the Series E Preferred Units may be paid from
any source. Distributions payable on the Series E Preferred Units for any period
greater or less than a full dividend period will be computed on the basis of a
360-day year consisting of twelve 30-day months.
(c) If full cumulative distributions on the Series E Preferred Units and
any other class or series of Parity Units have not been paid, or declared and
set apart for payment, the Series E Preferred Units may not be redeemed in part
and the Partnership may not purchase or acquire Series E Preferred Units,
otherwise than pursuant to a purchase or exchange offer made on the same terms
to all holders of Series E Preferred Units.
(d) If the Partnership shall redeem Series E Preferred Units pursuant to
this Section 3.4, notice of such redemption shall be given to the record holders
of the Series E Preferred Units called for redemption as soon as practicable
after notice of redemption of the Series C Preferred Stock is given by the
General Partner.
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From and after the Call Date (unless the Partnership shall fail to make
available the amount of cash necessary to effect such redemption), (i) except as
otherwise provided herein, distributions on the Series E Preferred Units so
called for redemption shall cease to accrue, (ii) such units shall no longer be
deemed to be outstanding, and (iii) all rights of the holders thereof as holders
of Series E Preferred Units shall cease (except the rights to receive the cash
payable upon such redemption, without interest thereon, upon surrender and
endorsement of their certificates).
As promptly as practicable after the surrender in accordance with such
notice of the certificates for any such units so redeemed (properly endorsed or
assigned for transfer, if the Partnership shall so require and if the notice
shall so state), such units shall be exchanged for cash (without interest
thereon) for which such units have been redeemed. If fewer than all the
outstanding Series E Preferred Units are to be redeemed, units to be redeemed
shall be selected by the Partnership from outstanding Series E Preferred Units
not previously called for redemption by lot or pro rata (as nearly as may be) or
by any other method determined by the Partnership in its sole discretion to be
equitable. If fewer than all the Series E Preferred Units represented by any
certificate are redeemed, then new certificates representing the unredeemed
units shall be issued without cost to the holder thereof.
3.5 CONVERSION. Holders of Series E Preferred Units shall have no
conversion rights.
3.6 RANKING. Any class or series of units of the Partnership shall be
deemed to rank:
(a) prior to the Series E Preferred Units, as to the payment of
distributions and as to distribution of assets upon liquidation, dissolution or
winding up, if the holders of such class or series shall be entitled to the
receipt of distributions or of amounts distributable upon liquidation,
dissolution or winding up, as the case may be, in preference or priority to the
holders of Series E Preferred Units;
(b) on a parity with the Series E Preferred Units, as to the payment of
distributions and as to distribution of assets upon liquidation, dissolution or
winding up, whether or not the distribution rates, distribution payment dates or
redemption or liquidation prices per unit thereof are different from those of
the Series E Preferred Units, if the holders of such class of units or series
and the Series E Preferred Units shall be entitled to the receipt of
distributions and of amounts distributable upon liquidation, dissolution or
winding up in proportion to their respective amounts of accrued and unpaid
distributions per unit or liquidation preferences, without preference or
priority one over the other ("PARITY UNITS"); the Series A Cumulative
Convertible Preferred Units and the Series B Cumulative Redeemable Preferred
Units shall be Parity Units with respect to the Series E Preferred Units; and
(c) junior to the Series E Preferred Units, as to the payment of
distributions or as to the distribution of assets upon liquidation, dissolution
or winding up, if such units or series shall be Common Units or if the holders
of the Series E Preferred Units shall be
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entitled to receipt of distributions or of amounts distributable upon
liquidation, dissolution or winding up, as the case may be, in preference or
priority to the holders of such units or series ("JUNIOR UNITS").
3.7 RECORD HOLDERS. The Partnership may deem and treat the record holder
of any Series E Preferred Units as the true and lawful owner thereof for all
purposes, and the Partnership shall not be affected by any notice to the
contrary.
SIGNATURE PAGE FOLLOWS
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IN WITNESS WHEREOF, the Partnership has caused this Addendum to be
executed by its General Partner, acting through its duly authorized officer, as
of this 7th day of April 2005.
FELCOR LODGING LIMITED PARTNERSHIP
By: FELCOR LODGING TRUST INCORPORATED, a
Maryland corporation, as its General Partner
By:____________________________________
Name: Lawrence D. Robinson
Title: Executive Vice President,
General Counsel and Secretary
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