EXHIBIT 10.34.2
THIS GUARANTY IS SUBJECT TO ARBITRATION PURSUANT
TO THE FEDERAL ARBITRATION ACT AND/OR SECTION 15-48-10 OF
THE SOUTH CAROLINA CODE OF LAWS (1976), AS AMENDED
GUARANTY AGREEMENT
This Guaranty Agreement (this "Guaranty") is made as of the 27th day
of April, 2005, by FelCor Lodging Limited Partnership, a Delaware limited
partnership ("Guarantor"), in favor of Bank of America, N.A., a national banking
association (together with its successors and assigns "Administrative Agent") on
behalf of the Lenders (as defined in the Loan Agreement (defined below)).
PRELIMINARY STATEMENTS
Administrative Agent, Lenders, and Grande Palms, L.L.C. ("Borrower"), have
entered into, are entering into concurrently herewith, or contemplate entering
into, that certain Construction Loan Agreement dated of even date herewith
(herein called, as it may hereafter be modified, supplemented, restated,
extended, or renewed and in effect from time to time, the "Loan Agreement"),
which Loan Agreement sets forth the terms and conditions of a loan (the "Loan")
to Borrower for the construction of the Improvements on, and with respect to,
land located in Horry County, South Carolina, as more particularly described in
the Loan Agreement and identified therein as the Land.
A condition precedent to Lenders' and Administrative Agent's obligation to
make the Loan to Borrower is Guarantor's execution and delivery to
Administrative Agent on behalf of the Lenders of this Guaranty.
The Loan is, or will be, evidenced by those certain Promissory Notes
designated as "Promissory Note (Name of Lender)" of even date with the Loan
Agreement, executed by Borrower and payable to the order of particular Lenders
in the aggregate principal face amount of Sixty-Nine Million Eight Hundred
Thousand and No/100 Dollars ($69,800,000.00) (such notes, as each may hereafter
be renewed, extended, supplemented, increased or modified and in effect from
time to time, and all other notes given in substitution therefor, or in
modification, renewal, or extension thereof, in whole or in part, is herein
called, collectively, the "Note").
Any capitalized term used and not defined in this Guaranty shall have the
meaning given to such term in the Loan Agreement. This Guaranty is one of the
Loan Documents described in the Loan Agreement.
STATEMENT OF AGREEMENTS
For good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, and as a material inducement to Administrative Agent and
the Lenders to extend credit to Borrower, Guarantor hereby guarantees to
Administrative Agent and the Lenders the prompt payment of the Indebtedness
(collectively called the "Guaranteed Obligations"), this Guaranty being upon the
following terms and conditions:
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1. Guaranty of Payment. Guarantor hereby unconditionally and
irrevocably guarantees to Administrative Agent and the Lenders the punctual
payment when due, whether by lapse of time, by acceleration of maturity, or
otherwise, of principal, interest (including interest accruing after the
commencement of any bankruptcy or insolvency proceeding by or against Borrower,
whether or not allowed in such proceeding), fees, late charges, costs, expenses,
indemnification indebtedness, and other sums of money now or hereafter due and
owing, or which Borrower is obligated to pay, pursuant to (i) the terms of the
Note, the Loan Agreement, the Mortgage, the Environmental Agreement, Swap
Contract, any application, agreement, note or other document executed and
delivered in connection with any Letter of Credit, or any other Loan Documents
and any indemnifications contained in the Loan Documents, now or hereafter
existing, and (ii) all renewals, extensions, refinancings, modifications,
supplements or amendments of such indebtedness, or any of the Loan Documents, or
any part thereof (the indebtedness described in clauses (i) and (ii) above in
this Section 1 is herein collectively called the "Indebtedness"); provided such
renewals, extensions, financings, modifications, supplements or amendments are
made with Guarantor's written consent. This Guaranty covers the Indebtedness,
whether presently outstanding or arising subsequent to the date hereof,
including all amounts advanced by Administrative Agent in stages or
installments. The guaranty of Guarantor as set forth in this Section 1 is a
continuing guaranty of payment and not a guaranty of collection.
2. [Reserved.]
3. Primary Liability of Guarantor.
(a) This Guaranty is an absolute, irrevocable and unconditional guaranty
of payment. Guarantor shall be liable for the payment of the Guaranteed
Obligations as a primary obligor. This Guaranty shall be effective as a waiver
of, and Guarantor hereby expressly waives, any and all rights to which Guarantor
may otherwise have been entitled under any suretyship laws in effect from time
to time, including any right or privilege, whether existing under statute, at
law or in equity, to require Administrative Agent to take prior recourse or
proceedings against any collateral, security or Person (hereinafter defined)
whatsoever.
(b) Guarantor hereby agrees that in the event of a Default (as defined
in the Loan Agreement) by Borrower in payment of the Guaranteed Obligations, or
any part thereof, when such indebtedness becomes due, either by its terms or as
the result of the exercise of any power to accelerate, Guarantor shall, on
demand and without presentment, protest, notice of protest, further notice of
nonpayment or of dishonor, default or nonperformance, or notice of acceleration
or of intent to accelerate, or any other notice whatsoever, without any notice
having been given to Guarantor previous to such demand of the acceptance by
Administrative Agent of this Guaranty, and without any notice having been given
to Guarantor previous to such demand of the creating or incurring of such
indebtedness, all such notices being hereby waived by Guarantor, pay the amount
due thereon to Administrative Agent and pay all costs and expenses that may
arise in consequence of such Event of Default (including, without limitation,
all reasonable attorneys' fees and expenses, investigation costs, court costs,
and any and all other costs and expenses reasonably incurred by Administrative
Agent or the Lenders in connection with the collection and enforcement of the
Note or any other Loan Document), whether or not suit is filed thereon, or
whether at maturity or by acceleration, or whether before or after
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maturity, or whether in connection with bankruptcy, insolvency or appeal. It
shall not be necessary for Administrative Agent, in order to enforce such
payment by Guarantor, first to institute suit or pursue or exhaust any rights or
remedies against Borrower or others liable on such indebtedness or for such
performance, or to enforce any rights against any security that shall ever have
been given to secure such indebtedness or performance, or to join Borrower or
any others liable for the payment or performance of the Guaranteed Obligations
or any part thereof in any action to enforce this Guaranty, or to resort to any
other means of obtaining payment or performance of the Guaranteed Obligations;
provided, however, that nothing herein contained shall prevent Administrative
Agent from suing on the Note or foreclosing the Mortgage or from exercising any
other rights thereunder, and if such foreclosure or other remedy is availed of,
only the net proceeds therefrom, after deduction of all charges and expenses of
every kind and nature whatsoever, shall be applied in reduction of the amount
due on the Note and Mortgage, and Administrative Agent shall not be required to
institute or prosecute proceedings to recover any deficiency as a condition of
payment hereunder or enforcement hereof. At any sale of the Property or other
collateral given for the Indebtedness or any part thereof, whether by
foreclosure or otherwise, Administrative Agent may at its discretion purchase
all or any part of the Property or collateral so sold or offered for sale for
its own account and may, in payment of the amount bid therefor, deduct such
amount from the balance due it pursuant to the terms of the Note, Mortgage and
other Loan Documents.
(c) Suit may be brought or demand may be made against Borrower or
against the Guarantor or any other guarantor of the Guaranteed Obligations, or
against any one or more of them, separately or together, without impairing the
rights of Administrative Agent or the Lenders against any party hereto.
4. Certain Agreements and Waivers by Guarantor.
(a) Guarantor hereby agrees that neither Administrative Agent's nor
Lenders' rights or remedies nor Guarantor's obligations under the terms of this
Guaranty shall be released, diminished, impaired, reduced or affected by any one
or more of the following events, actions, facts, or circumstances, and the
liability of Guarantor under this Guaranty shall be absolute and unconditional
irrespective of:
(i) any limitation of liability or recourse in any other Loan
Document or arising under any law;
(ii) any claim or defense that this Guaranty was made without
consideration or is not supported by adequate consideration;
(iii) the taking or accepting of any other security or guaranty
for, or right of recourse with respect to, any or all of the Guaranteed
Obligations;
(iv) any homestead exemption or any other exemption under
applicable law;
(v) any release, surrender, abandonment, exchange, alteration,
sale or other disposition, subordination, deterioration, waste, failure to
protect or preserve, impairment, or loss of, or any failure to create or perfect
any lien or security interest with respect to, or any other dealings with, any
collateral or security at any time existing or purported, believed or expected
to
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exist in connection with any or all of the Guaranteed Obligations, including any
impairment of Guarantor's recourse against any Person or collateral;
(vi) except as expressly provided for herein, any partial release
of the liability of Guarantor hereunder (whether by operation of law or
otherwise), or if one or more other guaranties are now or hereafter obtained by
Administrative Agent covering all or any part of the Guaranteed Obligations, any
complete or partial release of any one or more of such guarantors under any such
other guaranty, or any complete or partial release of Borrower or any other
party liable, directly or indirectly, for the payment of any or all of the
Guaranteed Obligations;
(vii) the insolvency, bankruptcy, dissolution, liquidation,
termination, receivership, reorganization, merger, consolidation, change of
form, structure or ownership, sale of all assets, or lack of corporate,
partnership or other power of Borrower or any other party at any time liable for
the payment or performance of any or all of the Guaranteed Obligations;
(viii) with consent of Guarantor: any renewal, extension,
modification, supplement, subordination or rearrangement of the terms of any or
all of the Guaranteed Obligations and/or any of the Loan Documents, including,
without limitation, material alterations of the terms of payment (including
changes in maturity date(s) and interest rate(s)) or performance (including
changes in the Plans and other terms or aspects of construction of the
Improvements) or any other terms thereof, or any waiver, termination, or release
of, or consent to departure from, any of the Loan Documents or any other
guaranty of any or all of the Guaranteed Obligations, or any adjustment,
indulgence, forbearance, or compromise that may be granted from time to time by
Administrative Agent on behalf of the Lenders to Borrower, Guarantor, and/or any
other Person at any time liable for the payment or performance of any or all of
the Guaranteed Obligations;
(ix) any neglect, lack of diligence, delay, omission, failure, or
refusal of Administrative Agent to take or prosecute (or in taking or
prosecuting) any action for the collection or enforcement of any of the
Guaranteed Obligations, or to foreclose or take or prosecute any action to
foreclose (or in foreclosing or taking or prosecuting any action to foreclose)
upon any security therefor, or to exercise (or in exercising) any other right or
power with respect to any security therefor, or to take or prosecute (or in
taking or prosecuting) any action in connection with any Loan Document, or any
failure to sell or otherwise dispose of in a commercially reasonable manner any
collateral securing any or all of the Guaranteed Obligations;
(x) except as expressly provided for herein, any failure of
Administrative Agent to notify Guarantor of any creation, renewal, extension,
rearrangement, modification, supplement, subordination, or assignment of the
Guaranteed Obligations or any part thereof, or of any Loan Document, or of any
release of or change in any security, or of any other action taken or refrained
from being taken by Administrative Agent against Borrower or any security or
other recourse, or of any new agreement between Administrative Agent and
Borrower, it being understood that Administrative Agent shall not be required
(other than as expressly provided herein) to give Guarantor any notice (other
than as expressly provided herein) of any kind under any circumstances with
respect to or in connection with the Guaranteed Obligations, any and all rights
to notice Guarantor may have otherwise had being hereby waived by Guarantor, and
the
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Guarantor shall be responsible for obtaining for itself information regarding
the Borrower, including, but not limited to, any changes in the business or
financial condition of the Borrower, and the Guarantor acknowledges and agrees
that the Administrative Agent shall have no duty to notify the Guarantor of any
information which the Administrative Agent or Lenders may have concerning the
Borrower.
(xi) if for any reason Administrative Agent is required to refund
any payment by Borrower to any other party liable for the payment or performance
of any or all of the Guaranteed Obligations or pay the amount thereof to someone
else;
(xii) the making of advances by Administrative Agent on behalf of
the Lenders to protect its interest in the Property, preserve the value of the
Property or for the purpose of performing any term or covenant contained in any
of the Loan Documents;
(xiii) the existence of any claim, counterclaim, setoff or other
right that Guarantor may at any time have against Borrower, Lenders,
Administrative Agent, or any other Person, whether or not arising in connection
with this Guaranty, the Note, the Loan Agreement, or any other Loan Document;
(xiv) the unenforceability of all or any part of the Guaranteed
Obligations against Borrower, whether because the Guaranteed Obligations exceed
the amount permitted by law or violate any usury law, or because the act of
creating the Guaranteed Obligations, or any part thereof, is ultra vires, or
because the officers or Persons creating the Guaranteed Obligations acted in
excess of their authority, or because of a lack of validity or enforceability of
or defect or deficiency in any of the Loan Documents, or because Borrower has
any valid defense, claim or offset with respect thereto, or because Borrower's
obligation ceases to exist by operation of law, or because of any other reason
or circumstance, it being agreed that Guarantor shall remain liable hereon
regardless of whether Borrower or any other Person be found not liable on the
Guaranteed Obligations, or any part thereof, for any reason (and regardless of
any joinder of Borrower or any other party in any action to obtain payment or
performance of any or all of the Guaranteed Obligations);
(xv) any order, ruling or plan of reorganization emanating from
proceedings under Title 11 of the United States Code with respect to Borrower or
any other Person, including any extension, reduction, composition, or other
alteration of the Guaranteed Obligations, whether or not consented to by
Administrative Agent; or
(xvi) any other condition, event, omission, action or inaction
that would in the absence of this paragraph result in the release or discharge
of the Guarantor from the performance or observance of any obligation, covenant
or agreement contained in this Guaranty or any other agreement;
(xvii) [Reserved];
(xviii) Administrative Agent's enforcement or forbearance from
enforcement of the Guaranteed Obligations on a net or gross basis; or
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(xix) any invalidity, irregularity or unenforceability in whole or
in part (including with respect to any netting provision) of any Interest Rate
Protection Agreement or any confirmation, instrument or agreement required
thereunder or related thereto, or any transaction entered into thereunder, or
any limitation on the liability of Borrower thereunder or any limitation on the
method or terms of payment thereunder which may now or hereafter be caused or
imposed in any manner whatsoever.
(b) In the event any payment by Borrower or any other Person to
Administrative Agent or the Lenders is held to constitute a preference,
fraudulent transfer or other voidable payment under any bankruptcy, insolvency
or similar law, or if for any other reason Administrative Agent or Lenders are
required to refund such payment or pay the amount thereof to any other party,
such payment by Borrower or any other party to Administrative Agent or Lenders
shall not constitute a release of Guarantor from any liability hereunder, and
this Guaranty shall continue to be effective or shall be reinstated
(notwithstanding any prior release, surrender or discharge by Administrative
Agent of this Guaranty or of Guarantor), as the case may be, with respect to,
and this Guaranty shall apply to, any and all amounts so refunded by
Administrative Agent or Lenders or paid by Administrative Agent or Lenders to
another Person (which amounts shall constitute part of the Guaranteed
Obligations), and any interest paid by Administrative Agent or Lenders and any
attorneys' fees, costs and expenses paid or incurred by Administrative Agent or
Lenders in connection with any such event. It is the intent of Guarantor and
Administrative Agent that the obligations and liabilities of Guarantor hereunder
are absolute and unconditional under any and all circumstances and that until
the Guaranteed Obligations are fully and finally paid, and not subject to refund
or disgorgement, the obligations and liabilities of Guarantor hereunder shall
not be discharged or released, in whole or in part, by any act or occurrence
that might, but for the provisions of this Guaranty, be deemed a legal or
equitable discharge or release of a guarantor.
(c) If acceleration of the time for payment of any amount payable by
Borrower under the Note, the Loan Agreement, or any other Loan Document is
stayed or delayed by any law or tribunal, all such amounts shall nonetheless be
payable by Guarantor on demand by Administrative Agent.
(d) Guarantor agrees that neither the Guarantor nor anyone claiming
through or under the Guarantor shall or will set up, claim or seek to take
advantage of any appraisement, valuation, stay, extension or redemption laws now
or hereafter in force, in order to prevent or hinder the enforcement or
foreclosure of the Mortgage or the absolute sale of the Property or the final
and absolute putting into possession thereof, immediately after such sale, of
the purchasers thereat, and the Guarantor, for themselves and all who may at any
time claim through or under any of them, hereby waive the benefit of all such
laws and any and all rights to have the assets comprising the Property
marshalled upon any foreclosure of the Mortgage.
5. Subordination. If, for any reason whatsoever, Borrower is now or
hereafter becomes indebted to Guarantor:
(a) such indebtedness and all interest thereon and all liens, security
interests and rights now or hereafter existing with respect to property of
Borrower securing such indebtedness shall, at all times, be subordinate in all
respects to the Guaranteed Obligations and to all liens,
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security interests and rights now or hereafter existing to secure the Guaranteed
Obligations. All promissory notes or other evidences of such indebtedness of
Borrower, now or hereafter held by Guarantor, of obligations of Borrower to
Guarantor shall contain a specific written notice thereon that the indebtedness
evidenced thereby is subordinated under and is subject to the terms of this
Guaranty; and
(b) Guarantor shall not be entitled to enforce or receive payment,
directly or indirectly, of any such indebtedness of Borrower to Guarantor until
the Guaranteed Obligations have been fully and finally paid except for the
project management fees to be paid by Borrower to the Guarantor under the Budget
or other amounts specifically identified in the Budget.
6. Other Liability of Guarantor or Borrower. If Guarantor is or becomes
liable, by endorsement or otherwise, for any indebtedness owing by Borrower to
Lenders or Administrative Agent other than under this Guaranty, such liability
shall not be in any manner impaired or affected hereby, and the rights of
Lenders and Administrative Agent hereunder shall be cumulative of any and all
other rights that Lenders and Administrative Agent may have against Guarantor.
If Borrower is or becomes indebted to Lenders and Administrative Agent for any
indebtedness other than or in excess of the Indebtedness for which Guarantor is
liable under this Guaranty, any payment received or recovery realized upon any
indebtedness of Borrower to Lenders or Administrative Agent may, except to the
extent paid by Guarantor on the Indebtedness or specifically required by law or
agreement of Administrative Agent to be applied to the Indebtedness, in
Administrative Agent's sole discretion, be applied upon indebtedness of Borrower
to Lenders or Administrative Agent other than the Indebtedness. This Guaranty is
independent of (and shall not be limited by) any other guaranty now existing or
hereafter given. Further, Guarantor's liability under this Guaranty is
in.addition to any and all other liability Guarantor may have in any other
capacity, including without limitation, its capacity as a general partner.
7. Administrative Agent Assigns. This Guaranty is for the benefit of
Administrative Agent for the benefit of the Lenders and Administrative Agent's
successors and assigns, and in the event of an assignment of the Guaranteed
Obligations, or any part thereof, the rights and benefits hereunder, to the
extent applicable to the Guaranteed Obligations so assigned, may be transferred
with such Guaranteed Obligations. Guarantor waives notice of any transfer or
assignment of the Guaranteed Obligations, or any part thereof, and agrees that
failure to give notice of any such transfer or assignment will not affect the
liabilities of Guarantor hereunder.
8. Binding Effect. This Guaranty is binding not only on Guarantor, but
also on Guarantor's successors and assigns.
9. Governing Law; Forum; Consent to Jurisdiction. This Guaranty is an
agreement executed under seal. The validity, enforcement, and interpretation of
this Guaranty, shall for all purposes be governed by and construed in accordance
with the laws of the State of South Carolina and applicable United States
federal law, and is intended to be performed in accordance with, and only to the
extent permitted by, such laws. If any Guarantor is a corporation, the
designation "(SEAL)" on this Guaranty shall be effective as the affixing of such
Guarantor's corporate seal physically to this Guaranty. All obligations of
Guarantor hereunder are payable and performable at the place or places where the
Guaranteed Obligations are payable and
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performable. Guarantor hereby irrevocably submits generally and unconditionally
for Guarantor and in respect of Guarantor's property to the nonexclusive
jurisdiction of any state court, or any United States federal court, sitting in
the state specified in the first sentence of this Section and to the
jurisdiction of any state or United States federal court sitting in the state in
which any of the Land is located, over any suit, action or proceeding arising
out of or relating to this Guaranty or the Guaranteed Obligations. Guarantor
hereby irrevocably waives, to the fullest extent permitted by law, any objection
that Guarantor may now or hereafter have to the laying of venue in any such
court and any claim that any such court is an inconvenient forum. Final judgment
in any such suit, action or proceeding brought in any such court shall be
conclusive and binding upon Guarantor and may be enforced in any court in which
Guarantor is subject to jurisdiction. Guarantor hereby agrees and consents that,
in addition to any methods of service of process provided for under applicable
law, all service of process in any such suit, action or proceeding in any state
court, or any United States federal court, sitting in the state specified in the
first sentence of this Section may be made by certified or registered mail,
return receipt requested, directed to Guarantor at the address set forth at the
end of this Guaranty, or at a subsequent address of which Administrative Agent
received actual notice from Guarantor in accordance with the notice provisions
hereof, and service so made shall be complete five (5) days after the same shall
have been so mailed. Nothing herein shall affect the right of Administrative
Agent to serve process in any manner permitted by law or limit the right of
Administrative Agent to bring proceedings against Guarantor in any other court
or jurisdiction. The authority and power to appear for and enter judgment
against the Guarantor shall not be exhausted by one or more exercises thereof or
by any imperfect exercise thereof and shall not be extinguished by any judgment
entered pursuant thereto. Such authority may be exercised on one or more
occasions or from time to time in the same or different jurisdiction as often as
the Administrative Agent shall deem necessary and desirable.
10. Invalidity of Certain Provisions. If any provision of this Guaranty
or the application thereof to any Person or circumstance shall, for any reason
and to any extent, be declared to be invalid or unenforceable, neither the
remaining provisions of this Guaranty nor the application of such provision to
any other Person or circumstance shall be affected thereby, and the remaining
provisions of this Guaranty, or the applicability of such provision to other
Persons or circumstances, as applicable, shall remain in effect and be
enforceable to the maximum extent permitted by applicable law.
11. Attorneys' Fees and Costs of Collection. Guarantor shall pay on
demand all attorneys' fees and all other costs and expenses incurred by Lenders
or Administrative Agent in the enforcement of or preservation of Lenders' or
Administrative Agent's rights under this Guaranty including, without limitation,
all attorneys' fees and expenses, investigation costs, and all court costs,
whether or not suit is filed herein, or whether at maturity or by acceleration,
or whether before or after maturity, or whether in connection with bankruptcy,
insolvency or appeal. Guarantor agrees to pay interest on any expenses or other
sums due to Administrative Agent under this Section 11 that are not paid when
due, at a rate per annum equal to the interest rate provided for in the Note.
Guarantor's obligations and liabilities under this Section 11 shall survive any
payment or discharge in full of the Guaranteed Obligations.
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12. Payments. All sums payable under this Guaranty shall be paid in
lawful money of the United States of America that at the time of payment is
legal tender for the payment of public and private debts.
13. Controlling Agreement. It is not the intention of Administrative
Agent or Guarantor to obligate Guarantor to pay interest in excess of that
lawfully permitted to be paid by Guarantor under applicable law. Should it be
determined that any portion of the Guaranteed Obligations or any other amount
payable by Guarantor under this Guaranty constitutes interest in excess of the
maximum amount of interest that Guarantor, in Guarantor's capacity as guarantor,
may lawfully be required to pay under applicable law, the obligation of
Guarantor to pay such interest shall automatically be limited to the payment
thereof in the maximum amount so permitted under applicable law. The provisions
of this Section 13 shall override and control all other provisions of this
Guaranty and of any other agreement between Guarantor and Administrative Agent.
14. Representations, Warranties, and Covenants of Guarantor. Guarantor
hereby represents, warrants, and covenants that (a) Guarantor has a financial
interest in the Borrower, is (directly or indirectly) a member of Borrower, and
will derive a material and substantial benefit, directly or indirectly, from the
making of the Loan to Borrower and from the making of this Guaranty by
Guarantor; (b) this Guaranty is duly authorized and valid, and is binding upon
and enforceable against Guarantor; (c) Guarantor is not, and the execution,
delivery and performance by Guarantor of this Guaranty will not cause Guarantor
to be, in violation of or in default with respect to any law or in default under
any agreement or restriction by which Guarantor is bound or affected; (d)
Guarantor is duly organized, validly existing, and in good standing under the
laws of the state of its organization and under such laws, and has full power
and authority to enter into and perform this Guaranty; (e) the Guarantor will
indemnify the Lenders and Administrative Agent from any loss, cost or expense as
a result of any representation or warranty of the Guarantor being false,
incorrect, incomplete or misleading in any material respect; (f) [reserved]; (g)
all financial statements and information heretofore furnished to Administrative
Agent by Guarantor do, and all financial statements and information hereafter
furnished to Administrative Agent by Guarantor will, present the financial
condition of Guarantor as of their dates and the results of Guarantor's
operations for the periods therein specified, and, since the date of the most
recent financial statements of Guarantor heretofore furnished to Administrative
Agent, no material adverse change has occurred in the financial condition of
Guarantor; (h) after giving effect to this Guaranty, Guarantor is solvent, is
not engaged or about to engage in business or a transaction for which the
property of Guarantor is an unreasonably small capital, and does not intend to
incur or believe that it will incur debts that will be beyond its ability to pay
as such debts mature; (i) Administrative Agent and Lenders have no duty at any
time to investigate or inform Guarantor of the financial or business condition
or affairs of Borrower or any change therein, and Guarantor will keep fully
appraised of Borrower's financial and business condition; (j) Guarantor
acknowledges and agrees that Guarantor may be required to pay the Guaranteed
Obligations in full without assistance or support from the Borrower or any other
Person; and (k) Guarantor has read and fully understands the provisions
contained in the Note, the Loan Agreement, the Mortgage, the Environmental
Agreement, and the other Loan Documents. Guarantor's representations, warranties
and covenants are a material inducement to Lenders and Administrative Agent to
enter into the other Loan Documents and shall survive the execution
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hereof and any bankruptcy, foreclosure, transfer of security or other event
affecting Borrower, Guarantor, any other party, or any security for all or any
part of the Guaranteed Obligations.
15. Notices. All notices, requests, consents, demands and other
communications required or which any party desires to give hereunder or under
any other Loan Document shall be in writing and, unless otherwise specifically
provided in such other Loan Document, shall be deemed sufficiently given or
furnished if delivered by personal delivery, by nationally recognized overnight
courier service, or by registered or certified United States mail, postage
prepaid, addressed to the party to whom directed at the addresses specified in
this Guaranty (unless changed by similar notice in writing given by the
particular party whose address is to be changed) or by telegram, telex, or
facsimile. Any such notice or communication shall be deemed to have been given
either at the time of personal delivery or, in the case of courier or mail, as
of the date of first attempted delivery at the address and in the manner
provided herein, or, in the case of telegram, telex or facsimile, upon receipt;
provided that, service of a notice required by any applicable statute shall be
considered complete when the requirements of that statute are met.
Notwithstanding the foregoing, no notice of change of address shall be effective
except upon actual receipt. This section shall not be construed in any way to
affect or impair any waiver of notice or demand provided in this Guaranty or in
any Loan Document or to require giving of notice or demand to or upon any person
in any situation or for any reason.
16. Cumulative Rights. The exercise by Administrative Agent of any right
or remedy hereunder or under any other Loan Document, or at law or in equity,
shall not preclude the concurrent or subsequent exercise of any other right or
remedy. Administrative Agent and the Lenders shall have all rights, remedies and
recourses afforded to Administrative Agent and the Lenders by reason of this
Guaranty or any other Loan Document or by law or equity or otherwise, and the
same (a) shall be cumulative and concurrent, (b) may be pursued separately,
successively or concurrently against Guarantor or others obligated for the
Guaranteed Obligations, or any part thereof, or against any one or more of them,
or against any security or otherwise, at the sole discretion of Administrative
Agent, (c) may be exercised as often as occasion therefor shall arise, it being
agreed by Guarantor that the exercise of, discontinuance of the exercise of or
failure to exercise any of such rights, remedies, or recourses shall in no event
be construed as a waiver or release thereof or of any other right, remedy, or
recourse, and (d) are intended to be, and shall be, nonexclusive. No waiver of
any default on the part of Guarantor or of any breach of any of the provisions
of this Guaranty or of any other document shall be considered a waiver of any
other or subsequent default or breach, and no delay or omission in exercising or
enforcing the rights and powers granted herein or in any other document shall be
construed as a waiver of such rights and powers, and no exercise or enforcement
of any rights or powers hereunder or under any other document shall be held to
exhaust such rights and powers, and every such right and power may be exercised
from time to time. The granting of any consent, approval or waiver by
Administrative Agent shall be limited to the specific instance and purpose
therefor and shall not constitute consent or approval in any other instance or
for any other purpose. No notice to or demand on Guarantor in any case shall of
itself entitle Guarantor to any other or further notice or demand in similar or
other circumstances. No provision of this Guaranty or any right, remedy or
recourse of Administrative Agent or Lenders with respect hereto, or any default
or breach, can be waived, nor can this Guaranty or Guarantor be released or
discharged in any way or to any extent, except specifically in each case by a
writing intended
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for that purpose (and which refers specifically to this Guaranty) executed, and
delivered to Guarantor, by Administrative Agent on behalf of the Lenders.
17. Term of Guaranty. This Guaranty shall continue in effect until all
the Guaranteed Obligations are fully and finally paid and discharged.
18. Financial Statements. As used in this Section, "Financial
Statements" means a consolidated balance sheet, a consolidated income statement,
and a consolidated statement of cash flow. Guarantor shall provide or cause to
be provided to Administrative Agent the following: Financial Statements of
Guarantor, for each fiscal year as soon as reasonably practicable and in any
event within one hundred twenty (120) calendar days after the close of each
fiscal year. All fiscal year end Financial Statements shall be audited and
certified without any qualification or exception not acceptable to
Administrative Agent, by independent certified public accountants engaged by
Guarantor from time to time and shall contain all reports and disclosures
required by generally accepted accounting principles for a fair presentation.
Acceptance of any financial statement by Administrative Agent, whether or not in
the form prescribed herein, shall be relied upon by Administrative Agent in the
administration, enforcement, and extension of the Guaranteed Obligations.
19. Disclosure of Information. Administrative Agent and Lenders may sell
or offer to sell the Loan or interests in the Loan to one or more assignees or
participants and may disclose to any such assignee or participant or prospective
assignee or participant, to Administrative Agent's affiliates, including without
limitation Banc of America Securities LLC, to any regulatory body having
jurisdiction over Lenders or Administrative Agent and to any other parties as
necessary or appropriate in Administrative Agent's reasonable judgment, any
information Administrative Agent now has or hereafter obtains pertaining to the
Guaranteed Obligations, this Guaranty, or Guarantor, including, without
limitation, information regarding any security for the Guaranteed Obligations
or. for this Guaranty, credit or other information on Guarantor, Borrower,
and/or any other party liable, directly or indirectly, for any part of the
Guaranteed Obligations.
20. Subrogation. Notwithstanding anything to the contrary contained
herein, Guarantor shall not exercise any right of subrogation in or under any of
the Loan Documents or to participate in any way therein, or in any right, title
or interest in and to any security or right of recourse for the Indebtedness or
any right to reimbursement, exoneration, contribution, indemnification or any
similar rights, until the Indebtedness has been fully and finally paid. This
waiver is given to induce Administrative Agent and the Lenders to make the Loan
to Borrower.
21. [Reserved].
22. No Fiduciary Relationship. The relationship between the Lenders',
Administrative Agent and Guarantor is solely that of lender and guarantor.
Administrative Agent and the Lenders have no fiduciary or other special
relationship with or duty to Guarantor and none is created hereby or may be
inferred from any course of dealing or act or omission of Administrative Agent
and the Lenders.
23. Interpretation. The term "Administrative Agent" shall be deemed to
include any subsequent holder(s) of the Note. Whenever the context of any
provisions hereof shall require it,
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words in the singular shall include the plural, words in the plural shall
include the singular, and pronouns of any gender shall include the other
genders. Captions and headings in the Loan Documents are for convenience only
and shall not affect the construction of the Loan Documents. All references in
this Guaranty to Schedules, Articles, Sections, Subsections, paragraphs and
subparagraphs refer to the respective subdivisions of this Guaranty, unless such
reference specifically identifies another document. The terms "herein",
"hereof', "hereto", "hereunder" and similar terms refer to this Guaranty and not
to any particular Section or subsection of this Guaranty. The terms "include"
and "including" shall be interpreted as if followed by the words "without
limitation". All references in this Guaranty to sums denominated in dollars or
with the symbol "$" refer to the lawful currency of the United States of
America, unless such reference specifically identifies another currency. For
purposes of this Guaranty, "Person" or "Persons" shall include firms,
associations, partnerships (including limited partnerships), joint ventures,
trusts, corporations, limited liability companies, and other legal entities,
including governmental bodies, agencies, or instrumentalities, as well as
natural persons.
24. Time of Essence. Time shall be of the essence in this Guaranty with
respect to all of Guarantor's obligations hereunder.
25. Counterparts. This Guaranty may be executed in multiple
counterparts, each of which, for all purposes, shall be deemed an original, and
all of which together shall constitute one and the same agreement.
26. Entire Agreement. This Guaranty embodies the entire agreement
between Administrative Agent on behalf of the Lenders and Guarantor with respect
to the guaranty by Guarantor of the Guaranteed Obligations. This Guaranty
supersedes all prior agreements and understandings, if any, with respect to the
guaranty by Guarantor of the Guaranteed Obligations. No condition or conditions
precedent to the effectiveness of this Guaranty exist. This Guaranty shall be
effective upon execution by Guarantor and delivery to Administrative Agent. This
Guaranty may not be modified, amended or superseded except in a writing signed
by Administrative Agent and Guarantor referencing this Guaranty by its date and
specifically identifying the portions hereof that are to be modified, amended or
superseded.
27. Dispute Resolution.
(a) Arbitration. Except to the extent expressly provided below, any
controversy, claim or dispute between or among the parties hereto, including any
such controversy, claim or dispute arising out of or relating to (i) this
Guaranty, (ii) any other Loan Document, (iii) any related agreements or
instruments, or (iv) the transaction contemplated herein or therein (including
any claim based on or arising from an alleged personal injury or business tort)
(collectively, a "Dispute"), shall, upon the request of either party, be
determined by binding arbitration in accordance with the Federal Arbitration
Act, Title 9, United States Code (or if not applicable, the applicable state
law), the applicable rules for arbitration of disputes of JAMS LLC, a Delaware
limited liability company, or any successor thereof ("JAMS"), and the "Special
Rules" set forth below. In the event of any inconsistency, the Special Rules
shall control. The filing of a court action is not intended to constitute a
waiver of the right of Guarantor or Administrative Agent or any Lender,
including the suing party, thereafter to require submittal of the Dispute to
arbitration. Any party to this Guaranty may bring an action, including a summary
or expedited
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proceeding, to compel arbitration of any Dispute in any court having
jurisdiction over such action. For the purposes of this dispute resolution
provision only, the terms "party" and "parties" shall include any parent
corporation, subsidiary or affiliate of Administrative Agent or any Lender
involved in the servicing, management or administration of any obligation
described in or evidenced by this Guaranty, together with the officers,
employees, successors and assigns of each of the foregoing.
(b) Special Rules.
(i) The arbitration shall be conducted in any U.S. state where
real or tangible personal property collateral is located, or if there is
no such collateral in the City and County where Administrative Agent or
any Lender is located pursuant to its address for notice purposes in this
Guaranty.
(ii) The arbitration shall be administered by JAMS, who will
appoint an arbitrator; if JAMS is unable to administer or legally
precluded from administering the arbitration, then the American
Arbitration Association will serve. All Disputes shall be determined by
one arbitrator; however, if the amount in controversy in a Dispute exceeds
Five Million Dollars ($5,000,000), upon the request of any party, the
Dispute shall be decided by three arbitrators (for purposes of this
Guaranty, referred to collectively as the "arbitrator").
(iii) All arbitration hearings will be commenced within ninety (90)
days of the demand for arbitration and completed within ninety (90) days
from the date of commencement; provided, however, that upon a showing of
good cause, the arbitrator shall be permitted to extend the commencement
of such hearing for up to an additional sixty (60) days.
(iv) The judgment and the award, if any, of the arbitrator shall be
issued with thirty (30) days of the close of the hearing. The arbitrator
shall provide a concise written statement setting forth the reasons for
the judgment and for the award, if any. The arbitration award, if any, may
be submitted to any court having jurisdiction to be confirmed and
enforced, and such confirmation and enforcement shall not be subject to
arbitration.
(v) The arbitrator will have the authority to decide whether any
Dispute is barred by the statute of limitations and, if so, to dismiss the
arbitration on that basis. For purposes of the application of the statute
of limitations, the service on JAMS under applicable JAMS rules of a
notice of Disputes is the equivalent of the filing of a lawsuit.
(vi) Any dispute concerning this arbitration provision, including
any such dispute as to the validity or enforceability of this provision,
or whether a Dispute is arbitrable, shall be determined by the arbitrator.
(vii) The arbitrator shall have the power to award legal fees and
costs pursuant to the terms of this Guaranty.
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(c) Reservations of Rights. Nothing in this Guaranty shall be deemed to
(i) limit the applicability of any otherwise applicable statutes of limitation
and any waivers contained in this Guaranty, or (ii) apply to or limit the right
of Administrative Agent or any Lender (A) to exercise self help remedies such as
(but not limited to) setoff, or (B) to foreclose judicially or nonjudicially
against any real or personal property collateral, or to exercise judicial or
nonjudicial power of sale rights, (C) to obtain from a court provisional or
ancillary remedies such as (but not limited to) injunctive relief, writ of
possession, prejudgment attachment, or the appointment of a receiver, or (D) to
pursue rights against a party to this Guaranty in a third-party proceeding in
any action brought against Lender in a state, federal or international court,
tribunal or hearing body (including actions in specialty courts, such as
bankruptcy and patent courts). Administrative Agent may exercise the rights set
forth in clauses (A) through (D), inclusive, before, during or after the
pendency of any arbitration proceeding brought pursuant to this Guaranty.
Neither the exercise of self help remedies nor the institution or maintenance of
an action for foreclosure or provisional or ancillary remedies shall constitute
a waiver of the right of any party, including the claimant in any such action,
to arbitrate the merits of the Dispute occasioning resort to such remedies. No
provision in the Loan Documents regarding submission to jurisdiction and/or
venue in any court is intended or shall be construed to be in derogation of the
provisions in any Loan Document for arbitration of any Dispute.
(d) Conflicting Provisions for Dispute Resolution. If there is any
conflict between the terms, conditions and provisions of this Section and those
of any other provision or agreement for arbitration or dispute resolution, the
terms, conditions and provisions of this Section shall prevail as to any Dispute
arising out of or relating to (i) this Guaranty, (ii) any other Loan Document,
(iii) any related agreements or instruments, or (iv) the transaction
contemplated herein or therein (including any claim based on or arising from an
alleged personal injury or business tort). In any other situation, if the
resolution of a given Dispute is specifically governed by another provision or
agreement for arbitration or dispute resolution, the other provision or
agreement shall prevail with respect to said Dispute.
(e) Jury Trial Waiver in Arbitration. By agreeing to this Section, the
parties irrevocably and voluntarily waive any right they may have to a trial by
jury in respect of any Dispute.
28. Forum.
Guarantor hereby irrevocably submits generally and unconditionally for
itself and in respect of its property to the jurisdiction of any state court or
any United States federal court sitting in the State specified in the governing
law section of this Guaranty and to the jurisdiction of any state court or any
United States federal court sitting in the state in which any of the Property is
located, over any Dispute. Guarantor hereby irrevocably waives, to the fullest
extent permitted by Law, any objection that Guarantor may now or hereafter have
to the laying of venue in any such court and any claim that any such court is an
inconvenient forum. Guarantor hereby agrees and consents that, in addition to
any methods of service of process provided for under applicable law, all service
of process in any such suit, action or proceeding in any state court or any
United States federal court sitting in the state specified in the governing law
section
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of this Guaranty may be made by certified or registered mail, return receipt
requested, directed to Guarantor at its address for notice set forth in this
Guaranty, or at a subsequent address of which Administrative Agent received
actual notice from Guarantor in accordance with the notice section of this
Guaranty, and service so made shall be complete five (5) days after the same
shall have been so mailed. Nothing herein shall affect the right of Lender to
serve process in any manner permitted by Law or limit the right of Lender to
bring proceedings against Guarantor in any other court or jurisdiction.
29. WAIVER OF JURY TRIAL.
WITHOUT INTENDING IN ANY WAY TO LIMIT THE PARTIES' AGREEMENT TO ARBITRATE
ANY "DISPUTE" (FOR PURPOSES OF THIS SECTION, AS DEFINED ABOVE) AS SET FORTH IN
THIS GUARANTY, TO THE EXTENT ANY "DISPUTE" IS NOT SUBMITTED TO ARBITRATION OR IS
DEEMED BY THE ARBITRATOR OR BY ANY COURT WITH JURISDICTION TO BE NOT ARBITRABLE
OR NOT REQUIRED TO BE ARBITRATED, GUARANTOR AND ADMINISTRATIVE AGENT, FOR ITSELF
AND LENDERS, WAIVE TRIAL BY JURY IN RESPECT OF ANY SUCH "DISPUTE" AND ANY ACTION
ON SUCH "DISPUTE." THIS WAIVER IS KNOWINGLY, WILLINGLY AND VOLUNTARILY MADE BY
GUARANTOR AND ADMINISTRATIVE AGENT, FOR ITSELF AND LENDERS, AND GUARANTOR AND
ADMINISTRATIVE AGENT, FOR ITSELF AND LENDERS, HEREBY REPRESENT THAT NO
REPRESENTATIONS OF FACT OR OPINION HAVE BEEN MADE BY ANY PERSON OR ENTITY TO
INDUCE THIS WAIVER OF TRIAL BY JURY OR TO IN ANY WAY MODIFY OR NULLIFY ITS
EFFECT. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE PARTIES ENTERING INTO
THE LOAN DOCUMENTS. GUARANTOR AND ADMINISTRATIVE AGENT, FOR ITSELF AND LENDERS,
ARE EACH HEREBY AUTHORIZED TO FILE A COPY OF THIS SECTION IN ANY PROCEEDING AS
CONCLUSIVE EVIDENCE OF THIS WAIVER OF JURY TRIAL. GUARANTOR FURTHER REPRESENTS
AND WARRANTS THAT IT HAS BEEN REPRESENTED IN THE SIGNING OF THIS GUARANTY AND IN
THE MAKING OF THIS WAIVER BY INDEPENDENT LEGAL COUNSEL, OR HAS HAD THE
OPPORTUNITY TO BE REPRESENTED BY INDEPENDENT LEGAL COUNSEL SELECTED OF ITS OWN
FREE WILL, AND THAT IT HAS HAD THE OPPORTUNITY TO DISCUSS THIS WAIVER WITH
COUNSEL.
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30. Waiver of Appraisal Rights. The laws of South Carolina provide that in
any real estate foreclosure proceeding a defendant against whom a personal
judgment is taken or asked may within thirty days after the sale of the
mortgaged property apply to the court for an order of appraisal. The statutory
appraisal value as approved by the court would be substituted for the high bid
and may decrease the amount of any deficiency owing in connection with the
transaction. THE GUARANTOR HEREBY WAIVES AND RELINQUISHES THE STATUTORY
APPRAISAL RIGHTS WHICH MEANS THE HIGH BID AT THE JUDICIAL FORECLOSURE SALE WILL
BE APPLIED TO THE DEBT REGARDLESS OF ANY APPRAISED VALUE OF THE MORTGAGED
PROPERTY.
THE LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND
MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE
PARTIES
IN WITNESS WHEREOF, Guarantor duly executed this Guaranty under seal as of
the date first written above.
Address of Guarantor: GUARANTOR:
FELCOR LODGING LIMITED PARTNERSHIP, a
Delaware limited partnership
By: FelCor Lodging Trust Incorporated, its
General Partner
545 E.Carpenter Freeway, Suite 1300 By: /s/ Charles N. Nye
Irving, Texas 75062-3933 ------------------- (SEAL)
Fax No.: 972-444-4949 Name: CHARLES N. NYE
Attn: General Counsel Title : VICE PRESIDENT
Address of Administrative Agent:
200 Meeting Street, Suite 104
Charleston, South Carolina 29401
Attention: Loan Administration Section
Real Estate Banking Group
Location Code SC1300-01-03
Fax No.: 843-720-2282
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