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EXHIBIT 10.22.2
GUARANTY
GUARANTY, dated as of April 1, 1999 (as amended, modified or
supplemented from time to time, this "GUARANTY"), made by each of the
signatories hereto (each a "GUARANTOR" and, together with any other entity that
becomes a party hereto pursuant to Section 22(f) hereof, the "GUARANTORS"),
each having an address as provided on Annex 2 hereto, in favor of the
Guarantied Parties referred to below. Unless otherwise defined herein,
capitalized terms used herein shall have the respective meaning set forth in
the Loan Agreement referred to below.
W I T N E S S E T H:
WHEREAS, FelCor Lodging Trust Incorporated (the "REIT") and
FelCor Lodging Limited Partnership (the "OPERATING PARTNERSHIP"), each a
"BORROWER" and collectively, the "BORROWERS"), various lenders from time to
time party thereto (the "LENDERS"), The Chase Manhattan Bank, as Administrative
Agent (in such capacity and together with any successor agent, the
"ADMINISTRATIVE AGENT" and, together with the the Lenders and their respective
successors and assigns, and together with any other lenders from time to time
party to the Loan Agreement hereinafter referred to, the "GUARANTIED PARTIES"),
have entered into a Loan Agreement, dated as of April 1, 1999, providing for
the making of a Loan to the Borrowers all as contemplated therein (as used
herein, the term "LOAN AGREEMENT" means the Loan Agreement described above in
this paragraph, as the same may be amended, modified, extended, renewed,
replaced, restated, supplemented or refinanced from time to time, and including
any agreement extending the maturity of, or refinancing or restructuring
(including, but not limited to, the inclusion of additional borrowers or
guarantor thereunder or any increase in the amount borrowed) all or any portion
of, the indebtedness under such agreement or any successor agreement, whether
or not with the same agent, trustee, representative, lenders or holders);
WHEREAS, Borrowers either directly or indirectly own
beneficially 100% of the capital stock of the Guarantors, the Borrowers are the
principal financing entities for capital requirements of their Subsidiaries,
and from time to time the Borrowers have made and will continue to make capital
contributions and advances to their Subsidiaries, including the Guarantors, the
Borrowers and the Guarantors are members of the same consolidated group of
companies and are engaged in related businesses; and the Guarantors will derive
direct and indirect economic benefit from the Loans; and
WHEREAS, it is a condition precedent under the Loan Agreement
to the making of Loans that the Guarantors shall have executed and delivered
this Guaranty;
WHEREAS, each Guarantor will obtain benefits from the
incurrence of Loans under the Loan Agreement and, accordingly, desires to
execute this Guaranty in order to satisfy the condition precedent described in
the preceding paragraph; and
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NOW, THEREFORE, in consideration of the foregoing and other
benefits accruing to each Guarantor, the receipt and sufficiency of which are
hereby acknowledged, each Guarantor hereby makes the following representations
and warranties to the Guarantied Parties and hereby covenants and agrees with
each Guarantied Party as follows:
SECTION 1. Guaranty. Each Guarantor hereby jointly and
severally, unconditionally and irrevocably, guarantees to the Guarantied
Parties the full and prompt payment when due (whether at the stated maturity,
by acceleration or otherwise) of (x) the principal of and interest on the Notes
issued by, and the Loans made to, each Borrower under the Loan Agreement; (y)
all other obligations (including obligations which, but for the automatic stay
under Section 362(a) of the Bankruptcy Code, would become due) and liabilities
owing by any Borrower to the Guarantied Parties under the Loan Agreement or any
other Loan Document to which such Borrower is a party (including, without
limitation, indemnities, Fees and interest thereon), whether now existing or
hereafter incurred under, arising out of or in connection with the Loan
Agreement or any such other Loan Document and the due performance and
compliance with all of the terms, conditions and agreements contained in such
Loan Documents by any Borrower; and (z) all Obligations (as defined in the
Pledge Agreement) (all such principal, interest, liabilities and obligations
being herein collectively called the "GUARANTEED Obligations"). Each Guarantor
understands, agrees and confirms that the Guarantied Parties may enforce this
Guaranty up to the full amount of the Guaranteed Obligations against each
Guarantor without proceeding against any other Guarantor, any other Loan Party,
against any security for the Guaranteed Obligations, or under any other
guaranty covering all or a portion of the Guaranteed Obligations. For purposes
of this Section 1, the term "GUARANTOR" as applied to any Guarantor shall refer
to such Guarantor as a guarantor of indebtedness incurred by others, as opposed
to indebtedness directly incurred by it. This Guaranty is an absolute guaranty
of payment and performance and not a guaranty of collection.
SECTION 2. Guaranty Absolute. Each Guarantor guaranties that
the Guaranteed Obligations will be paid strictly in accordance with the terms
of the Loan Agreement, the Notes and the other Loan Documents, as the case may
be (with all such instruments and agreements being herein collectively called
the "GUARANTEED OBLIGATIONS DOCUMENTS"), regardless of any law, regulation or
order now or hereafter in effect in any jurisdiction affecting any of such
terms or the rights of the Guarantied Parties with respect thereto. The
liability of each Guarantor under this Guaranty shall be absolute and
unconditional irrespective of:
(a) any lack of validity or enforceability of any provision
of any other Guaranteed Obligations Documents or any other
agreement or instrument relating to any Guaranteed Obligations
Documents, or avoidance or subordination of any of the Guaranteed
Obligations;
(b) any change in the time, manner or place of payment of, or
in any other term of, or any increase in the amount of, all or
any of the Guaranteed
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Obligations, or any other amendment or waiver of any term of, or
any consent to departure from any requirement of, the Loan
Agreement, the Notes or any of the other Guaranteed Obligations
Documents;
(c) consent to or waiver of any breach, or any act, omission
or default under, any of the Guaranteed Obligations Documents or
any of the instruments or agreements referred to therein, or
other amendment, modification or supplementation of any of the
Guaranteed Obligations Documents or any of such other instruments
or agreements;
(d) the absence of any attempt to collect any of the
Guaranteed Obligations from any Borrower or for any other
guarantor or any other action to enforce the same or the election
of any remedy by any of the Guarantied Parties;
(e) any waiver, consent, extension, forbearance or granting
of any indulgence by any of the Guarantied Parties with respect
to any provision of any other Guaranteed Obligations Document;
(f) the election by any of the Guarantied Parties in any
proceeding under chapter 11 of title 11 of the United States
Code, as amended, or any successor statute (the "Bankruptcy
Code"), of the application of section 1111(b)(2) of the
Bankruptcy Code;
(g) any borrowing or grant of a security interest by any
Borrower, as debtor-in-possession, under section 364 of the
Bankruptcy Code;
(h) the disallowance, under section 502 of the Bankruptcy
Code, of all or any portion of the claims of any of the
Guarantied Parties for payment of any of the Guaranteed
Obligations; and/or
(i) any other circumstances which might otherwise constitute
a legal or equitable discharge or defense of any Borrower or a
Guarantor.
SECTION 3. Waiver. (a) Each Guarantor hereby (i) waives (A)
promptness, diligence, notice or acceptance and any and all other notices with
respect to any of the Guaranteed Obligations or this Guaranty or any other
liability to which it may apply, (B) the filing of any claim with a court in
the event of receivership or bankruptcy of any Borrower, (C) presentment,
demand of payment, protest or notices of dishonor or nonpayment of all or any
of the Guaranteed Obligations, (D) the benefit of any statute of limitation,
(E) all demands whatsoever (and any requirement that same be made on the
Borrowers as a condition precedent to the Guarantor's Guaranteed Obligations
hereunder); and (ii) covenants and agrees that this Guaranty will not be
discharged except by complete performance of the Guaranteed Obligations of the
Guarantor contained herein.
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(b) If, in the exercise of any of its rights and remedies,
any of the Guarantied Parties shall forfeit any of its rights or remedies,
including, without limitation, its right to enter a deficiency judgment against
the Borrowers or any other Person, whether because of any applicable law
pertaining to "election of remedies" or the like, the Guarantor hereby consents
to such action by such Guarantied Party and waives any claim based upon such
action. Any election of remedies which results in the denial or impairment of
the right of such Guarantied Party to seek a deficiency judgment against any
Borrower shall not impair the obligation of each Guarantor to pay the full
amount of the Guaranteed Obligations or any other obligation of such Guarantor
contained herein.
(c) Each Guarantor agrees that notwithstanding the foregoing
and without limiting the generality of the foregoing if, after the occurrence
and during the continuance of an Event of Default, the Guarantied Parties are
prevented by applicable law from exercising their respective rights to
accelerate the maturity of the Guaranteed Obligations, to collect interest on
the Guaranteed Obligations, or to enforce or exercise any other right or remedy
with respect to the Guaranteed Obligations, each Guarantor agrees to pay to the
Administrative Agent for the account of the Guarantied Parties, upon demand
therefor, the amount that would otherwise have been due and payable had such
rights and remedies been permitted to be exercised by the Guarantied Parties.
(d) Each Guarantor hereby assumes responsibility for keeping
itself informed of the financial condition of the Borrowers and of each other
Guarantor of all or any part of the Guaranteed Obligations, and of all other
circumstances bearing upon the risk of nonpayment of the Guaranteed Obligations
or any part thereof, that diligent inquiry would reveal. Each Guarantor hereby
agrees that the Guarantied Parties shall have no duty to advise such Guarantor
of information known to any of the Guarantied Parties regarding such condition
or any such circumstance. In the event that any of the Guarantied Parties in
its sole discretion undertakes at any time or from time to time to provide any
such information to any Guarantor, such Guarantied Party shall be under no
obligation (i) to undertake any investigation not a part of its regular
business routine, (ii) to disclose any information which, pursuant to accepted
or reasonable banking or commercial finance practices, such Guarantied Party
wishes to maintain confidential or (iii) to make any other or future
disclosures of such information or any other information to any Guarantor.
(e) Each Guarantor consents and agrees that the Guarantied
Parties shall be under no obligation to marshall any assets in favor of such
Guarantor or otherwise in connection with obtaining payment of any or all of
the Guaranteed Obligations from any Person or source.
SECTION 4. No Subrogation Etc. Except as provided in Sections
12 and 18 hereof, each Guarantor waives and relinquishes any and all rights
which it may acquire by way of subrogation (whether contractual, under Section
509 of the Bankruptcy Code or otherwise), contribution or reimbursement by
reason of this Guaranty or by any payment made hereunder.
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SECTION 5. Representations and Warranties. In order to induce
the Lenders to make the Loans pursuant to the Loan Agreement, each Guarantor
represents, warrants and covenants that:
(a) Each Guarantor (i) is a limited liability company,
limited partnership, general partnership, corporation or trust, as applicable,
duly organized, validly existing and in good standing under the laws of the
State of its organization; (ii) is duly qualified as a foreign (if applicable)
limited liability company, limited partnership, general partnership,
corporation or trust, as applicable, and is in good standing under the laws of
each jurisdiction where such Guarantor owns or operates property, except for
failures which in the aggregate would not reasonably be expected to have a
Material Adverse Effect; (iii) has all requisite company, partnership,
corporate or trust, as applicable, power and authority and the legal right to
own, pledge, mortgage and operate its properties, to lease the property it
operates under lease and to conduct its business as now or currently proposed
to be conducted; (iv) is in compliance with its certificate of partnership and
partnership agreement, articles of organization and operating agreement,
certificate of incorporation, by-laws and declaration of trust, as applicable;
(v) is in compliance with all other applicable Requirements of Law except for
such noncompliance which in the aggregate would not reasonably be expected to
have a Material Adverse Effect; and (vi) has all necessary licenses, permits,
consents or approvals from or by, has made all necessary filings with, and has
given all necessary notices to, each Governmental Authority having
jurisdiction, to the extent required for such ownership, operation and conduct,
except for licenses, permits, consents or approvals which can be obtained by
the taking of ministerial action to secure the grant or transfer thereof or
failures which in the aggregate would not reasonably be expected to have a
Material Adverse Effect.
(b) The execution, delivery and performance by each Guarantor
of this Guaranty and the other Loan Documents to which it is a party:
(i) are within its company, partnership, corporate or trust
powers, as applicable;
(ii) have been duly authorized by all necessary company,
partnership, trust or corporate action, as applicable, including,
without limitation, the consent of members, partners, trustees or
directors, as applicable, where required; and
(iii) do not and will not (A) contravene its certificate of
partnership or partnership agreement, articles of organization or
operating agreement, declaration of trust, or certificate of
incorporation or by-laws, as applicable, or other comparable
governing documents, (B) violate any other applicable Requirement
of Law (including, without limitation, Regulations G, T, U and X
of the Board of Governors of the Federal Reserve System), or any
order or decree of any Governmental Authority or arbitrator, (C)
conflict with or result in the breach of, or constitute a default
under, or result in or permit the
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termination or acceleration of, any of its Contractual
Obligations, (D) result in the creation or imposition of any Lien
(other than pursuant to the Pledge Agreement upon any of its
property, or (E) require the consent, authorization by, or
approval of, or notice to, or filing or registration with, any
Governmental Authority or any other Person, other than those
which have been obtained or made, and each of which is in full
force and effect.
(c) This Guaranty has been duly executed and delivered by
each Guarantor and is the legal, valid and binding obligation of each Guarantor
enforceable against it in accordance with its terms, except to the extent that
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium and similar laws affecting the enforcement of
creditor's rights and remedies generally.
(d) There are no pending or, to the knowledge of such
Guarantor, threatened actions, investigations or proceedings affecting such
Guarantor or any of its subsidiaries before any Governmental Authority or
arbitrator other than those that in the aggregate, if adversely determined,
would not reasonably be expected to have a Material Adverse Effect. The
performance by each Guarantor under this Guaranty and under each of the other
Guaranteed Obligations Documents to which it is a party is not restrained or
enjoined (either temporarily, preliminarily or permanently) and no conditions
have been imposed by any Governmental Authority or arbitrator that in the
aggregate would not reasonably be expected to have a Material Adverse Effect.
SECTION 6. Amendments, Etc. No amendment or waiver of any
provision of this Guaranty nor consent to any departure by any Guarantor
herefrom shall in any event be effective unless the same shall be in writing,
approved by each Guarantor directly affected thereby and the Administrative
Agent (in accordance with the provisions of the Loan Agreement) at all times
prior to the time that the Loans have been terminated and all Loan Document
Obligations have been repaid in full; provided, however, that (x) additional
Guarantors may be added as parties hereto in accordance with the provisions of
Section 22(f) and (y) Guarantors may cease to be parties hereto in accordance
with the provisions of Section 22(h) hereof.
SECTION 7. Addresses for Notices. All notices and other
communications provided for hereunder shall be in writing (including
telegraphic, telex, telecopy or cable communication) and mailed, telegraphed,
telexed, telecopied, cabled or delivered by hand, if to any Guarantor,
addressed to it at the address specified in the first paragraph of this
Guaranty, if to any Guarantied Party, addressed to it at the address of such
Guarantied Party specified in the Loan Agreement, or, as to each party, at such
other address as shall be designated by such party in a written notice to each
other party complying as to delivery with the terms of this Section. All such
notices and other communications shall, when mailed, telegraphed, telexed,
telecopied, cabled or delivered, be effective when deposited in the mails,
delivered to the telegraph company, confirmed by telex answerback, telecopied
with confirmation of receipt, delivered to the cable company or delivered by
hand to the addressee or its agent, respectively.
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SECTION 8. No Waiver; Remedies. (a) No failure on the part of
any Guarantied Party to exercise, and no delay in exercising, any right
hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise of any right hereunder preclude any other or further exercise thereof
or the exercise of any other right. The rights and remedies herein provided are
cumulative and not exclusive of any remedies provided by law or by any of the
other Loan Documents. No notice to or demand on any Guarantor in any case shall
entitle such Guarantor or any other Guarantor or to any other further notice or
demand in similar or other circumstances or constitute a waiver of the rights
of any Guarantied Party to any other or further action in any circumstances
without notice or demand.
(b) Failure by any of the Guarantied Parties at any time or
times hereafter to require strict performance by any Borrower, any Guarantor or
any other Person of any of the provisions, warranties, terms or conditions
contained in any of the Guaranteed Obligations Documents now or at any time or
times hereafter executed by any Borrower, any Guarantor or such other Person
shall not waive, affect or diminish any right of any of the Guarantied Parties
at any time or times hereafter to demand strict performance thereof, and that
right shall not be deemed to have been modified or waived by any course of
conduct or knowledge or any of the Guarantied Parties or any agent, officer,
employee or any of the Guarantied Parties.
(c) No waiver by the Guarantied Parties of any default shall
operate as a waiver of any other default or the same default on a future
occasion, and no action by any of the Guarantied Parties permitted hereunder
shall in any way affect or impair any of the rights of the Guarantied Parties
or the Guarantied Obligations of any Guarantor under this Guaranty or under any
of the other Guaranteed Obligations Documents. Any determination by a court of
competent jurisdiction of the amount of any principal and/or interest or other
amount constituting any of the Guaranteed Obligations shall be conclusive and
binding on each Guarantor irrespective of whether such Guarantor was a party to
the suit or action in which such determination was made.
SECTION 9. Right of Set-off. Upon the occurrence and during
the continuance of any Event of Default (such term to mean and include any
"EVENT OF DEFAULT" as defined in the Loan Agreement), each of the Guarantied
Parties is hereby authorized at any time and from time to time, to the fullest
extent permitted by law (including, without limitation, Section 151 of the New
York Debtor and Creditor Law), to set off and apply any and all deposits
(general or special, time or demand, provisional or final) at any time held and
other indebtedness at any time owing by such Guarantied Party to or for the
credit or the account of any Guarantor against any and all of the Guaranteed
Obligations of such Guarantor now or hereafter existing under this Guaranty,
irrespective of whether or not such Guarantied Party shall have made any demand
under this Guaranty and although such Guaranteed Obligations, liabilities,
deposits or claims or any of them may be contingent and unmatured. Each of the
Guarantied Parties agrees promptly to notify the Guarantors after any such
set-off and application made by such Guarantied Party; provided, however, that
the failure to give such notice shall not effect the validity of such set-off
and application and any such notice is hereby expressly
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waived. The rights of each Guarantied Party under this Section are in addition
to other rights and remedies (including, without limitation, other rights of
set-off) which such Guarantied Party may have.
SECTION 10. Continuing Guaranty; Transfer of Notes. This
Guaranty is a continuing guaranty and all liabilities to which it applies or
may apply under the terms hereof shall be conclusively presumed to have been
created in reliance hereon, and shall (i) remain in full force and effect as to
each Guarantor until the termination of the Loans and when no Note remains
outstanding and all Guaranteed Obligations have been indefeasibly paid in full,
(ii) be binding upon the Guarantors, their successors and assigns, and (iii)
inure to the benefit of and be enforceable by the Guarantied Parties and their
respective successors, transferees, and assigns. Without limiting the
generality of the foregoing clause (iii), any of the Guarantied Parties may
assign or otherwise transfer any Notes held by it or Obligation owing to it to
any other Person, and such other Person shall thereupon become vested with all
the rights in respect thereof granted to such Guarantied Party herein or
otherwise with respect to such of the Notes and Guaranteed Obligations so
transferred or assigned, subject, however, to compliance with the provisions of
Section 10.7 of the Loan Agreement in respect of assignments.
SECTION 11. Limitation of Guaranty. Each Guarantor hereby
confirms that it is its intention that this Guaranty not constitute a
fraudulent transfer or conveyance for purposes of any bankruptcy, insolvency or
similar law, the Uniform Fraudulent Conveyance Act or any similar Federal,
state or foreign law. To effectuate the foregoing intention, if enforcement of
the liability of any Guarantor under this Guaranty for the full amount of the
Guaranteed Obligations would be an unlawful or voidable transfer under any
applicable fraudulent conveyance or fraudulent transfer of law or any
comparable law, then the liability of such Guarantor hereunder shall be reduced
to the maximum amount for which such liability may then be enforced without
giving rise to an unlawful or voidable transfer under any such law.
SECTION 12. Contribution. To the extent that any Guarantor
shall be required hereunder to pay a portion of the Guaranteed Obligations
which shall exceed the greater of (i) the amount of the economic benefit
actually received by such Guarantor from the incurrence of the Loans under the
Loan Agreement and (ii) the amount which such Guarantor would otherwise have
paid if such Guarantor had paid the aggregate amount of the Guaranteed
Obligations (excluding the amount thereof repaid by the Borrowers and the other
Guarantors) in the same proportion as such Guarantor's net worth at the date
enforcement hereunder is sought bears to the aggregate net worth of all the
Guarantors at the date enforcement hereunder is sought (the "CONTRIBUTION
PERCENTAGE"), then such Guarantor shall have a right of contribution against
each other Guarantor who has made payments in respect of the Guaranteed
Obligations to and including the date enforcement hereunder is sought in an
aggregate amount less than such other Guarantor's Contribution Percentage of
the aggregate payments made to and including the date enforcement hereunder is
sought by all Guarantors in respect of the Guaranteed Obligations; provided,
that no Guarantor may take any action to enforce such right until the
Guaranteed Obligations have been indefeasibly paid in full and the Loans
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have been terminated, it being expressly recognized and agreed by all parties
hereto that any Guarantor's right of contribution arising pursuant to this
Section 12 against any other Guarantor shall be expressly junior and
subordinate to such other Guarantor's obligations and liabilities in respect of
the Guaranteed Obligations and any other obligations owing under this Guaranty.
All parties hereto recognize and agree that, except for any right of
contribution arising pursuant to this Section 12, each Guarantor who makes any
payment in respect of the Guaranteed Obligations shall have no right of
contribution or subrogation against any other Guarantor in respect of such
payment. Each of the Guarantors recognizes and acknowledges that the rights to
contribution arising hereunder shall constitute an asset in favor of the party
entitled to such contribution. In this connection, each Guarantor has the right
to waive its contribution right against any Guarantor to the extent that after
giving effect to such waiver such Guarantor would remain solvent, in the
determination of the Administrative Agent.
SECTION 13. Reinstatement. This Guaranty shall remain in full
force and effect and continue to be effective should any petition be filed by
or against any Loan Party for liquidation or reorganization, should any Loan
Party become insolvent or make an assignment for the benefit of creditors or
should a receiver or trustee be appointed for all or any significant part of
any Loan Party's assets, and shall, to the fullest extent permitted by law,
continue to be effective or be reinstated, as the case may be, if at any time
payment and performance of the Guaranteed Obligations, or any part thereof, is,
pursuant to applicable law, rescinded or reduced in amount, or must otherwise
be restored or returned by any obligee of the Guaranteed Obligations or such
part thereof, whether as a "voidable preference," "fraudulent transfer," or
otherwise, all as though such payment or performance had not been made. In the
event that any payment, or any part thereof, is rescinded, reduced, restored or
returned, the Guaranteed Obligations shall, to the fullest extent permitted by
law, be reinstated and deemed reduced only by such amount paid and not so
rescinded, reduced, restored or returned.
SECTION 14. Governing Law. THIS GUARANTY SHALL BE GOVERNED
BY, AND BE CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE
OF NEW YORK. Wherever possible, each provision of this Guaranty shall be
interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Guaranty shall be prohibited by or invalid under
applicable law, such provision shall be ineffective only to the extent of such
prohibition or invalidity and without invalidating the remaining provisions of
this Guaranty.
SECTION 15. Submission to Jurisdiction, Jury Trial. (a) Any
legal action or proceeding with respect to this Guaranty or any document
related thereto may be brought in the courts of the State of New York or the
United States of America for the Southern District of New York, and, by
execution and delivery of this Guaranty, each Guarantor hereby accepts for
itself and in respect of its property, generally and unconditionally, the
jurisdiction of the aforesaid courts. Each Guarantor hereby irrevocably waives
any objection, including, without limitation, any objection to the laying of
venue or based on the grounds of forum non convenient, which it may now or
hereafter
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have to the bringing of any such action or proceeding in such respective
jurisdictions and consents to the granting of such legal or equitable relief as
is deemed appropriate by the court.
(b) Each Guarantor irrevocably consents to the service of
process of any of the aforesaid courts in any such action or proceeding by the
mailing of copies thereof by registered or certified mail, postage prepaid, to
the guarantor at its address provided herein, such service to become effective
thirty (30) days after such mailing.
(c) Nothing contained in this Section 15 shall affect the
right of any Guarantied Party to serve process in any other manner permitted by
law or commence legal proceedings or otherwise proceed against any Guarantor or
any of the Guarantors' property in any other jurisdiction.
(d) EACH GUARANTOR AND EACH GUARANTIED PARTY (BY ITS
ACCEPTANCE OF THE BENEFITS OF THIS GUARANTY) HEREBY IRREVOCABLY WAIVES ANY
RIGHT IT MAY HAVE TO TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED ON,
ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS GUARANTY OR ANY OTHER LOAN
DOCUMENT TO WHICH SUCH GUARANTOR IS A PARTY, OR ANY COURSE OF CONDUCT, COURSE
OF DEALING, VERBAL OR WRITTEN STATEMENT OR OTHER ACTION OF ANY LOAN PARTY OR
ANY GUARANTIED PARTY CONTEMPLATED HEREBY OR THEREBY.
SECTION 16. Section Titles. The Section titles contained in
this Guaranty are and shall be without substantive meaning or content of any
kind whatsoever and are not a part of this Guaranty.
SECTION 17. Execution in Counterparts. This Guaranty may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
Guaranty.
SECTION 18. INTENTIONALLY DELETED.
SECTION 19. INTENTIONALLY DELETED.
SECTION 20. INTENTIONALLY DELETED.
SECTION 21. INTENTIONALLY DELETED.
SECTION 22. Miscellaneous. (a) All references herein to the
Borrowers or to the Guarantors shall include their respective successors and
assigns, including, without limitation, a receiver, trustee or
debtor-in-possession of or for any Borrower or any Guarantor. All references to
the singular shall be deemed to include the plural where the context so
requires.
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(b) Intentionally Deleted.
(c) The Guaranteed Obligations and liabilities of each
Guarantor are joint and several.
(d) By executing and delivering this Guaranty, each Guarantor
agrees to be bound by all covenants and agreements in the Loan Agreement that
apply to such Guarantor by name, or in its capacity as Guarantor or Loan Party.
(e) All payments made by any Guarantor hereunder will be made
without setoff, counterclaim or other defense and on the same basis as payments
made by the Borrowers pursuant to Sections 2.13 and 2.15 of the Loan Agreement.
(f) Pursuant to Section 7.1 of the Loan Agreement or
otherwise, certain Subsidiaries of the Borrowers may after the date hereof be
required to enter into this Guaranty as a Guarantor. Upon execution and
delivery, after the date hereof, by the Collateral Agent and such Subsidiary of
an instrument in the form of Annex 1 hereto, such Subsidiary shall become a
Guarantor hereunder with the same force and effect as if originally named as a
Guarantor hereunder. The execution and delivery of any such instrument shall
not require the consent of any other Guarantor hereunder.
(g) The Guarantors hereby jointly and severally agree to pay
all reasonable out-of-pocket costs and expenses of each Guarantied Party in
connection with the enforcement of this Guaranty and any amendment, waiver or
consent relating hereto (including, without limitation, the reasonable fees and
disbursements of counsel employed by any of the Guarantied Parties).
(h) In the event that all of the Capital Stock that is owned
by the Borrowers and their Subsidiaries of one or more Guarantors is sold or
otherwise disposed of (but not to any Borrower or a Subsidiary thereof) or
liquidated in compliance with the requirements of Section 7.5 of the Loan
Agreement (or such sale or other disposition to a Person other than a Borrower
or a Subsidiary thereof has been approved in accordance with the Loan
Agreement)) and the proceeds of such sale, disposition or liquidation are
applied in accordance with the provisions of the Loan Agreement, to the extent
applicable, such Guarantor shall be released from this Guaranty and this
Guaranty shall, as to each such Guarantor or Guarantors, terminate, and have no
further force or effect (it being understood and agreed that the sale of one or
more Persons which are not Borrowers (but not to any Borrower or any Subsidiary
thereof) that own, directly or indirectly, all of the Capital Stock of any
Guarantor shall be deemed to be a sale of such Guarantor for purposes of this
Section 22(h)). The release of any Guarantor as provided in this clause (h)
shall not require the consent of any other Guarantor hereunder.
SECTION 23. Continuing Guarantors. The rights and obligations
of each Guarantor (other than the respective released Guarantor in the case of
the following clause (y)) hereunder shall remain in full force and effect
notwithstanding (x) the addition of any new Guarantor as a party to this
Agreement as contemplated by preceding Section
11
12
22(f) or otherwise and/or (y) the release of any Guarantor under this Agreement
as contemplated by Section 22(h) or otherwise.
NO FURTHER TEXT ON THIS PAGE
12
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IN WITNESS WHEREOF, each Guarantor has caused this Agreement to be duly
executed and delivered by its duly authorized officer on the date first above
written.
[BORROWERS]
[GUARANTORS]
13
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IN WITNESS WHEREOF, this instrument has been duly executed by the
undersigned as of the day and year first above written.
FELCOR/CSS HOTELS, L.L.C., a Delaware
limited liability company
By: /s/ LAWRENCE D. ROBINSON
----------------------------------
Name: Lawrence D. Robinson
Title: Senior Vice President
[SIGNATURES CONTINUE ON FOLLOWING PAGE]
15
IN WITNESS WHEREOF, this instrument has been duly executed by the
undersigned as of the day and year first above written.
FELCOR HOTEL ASSET COMPANY, L.L.C., a
Delaware limited liability company
By: /s/ LAWRENCE D. ROBINSON
----------------------------------
Name: Lawrence D. Robinson
Title: Senior Vice President
[SIGNATURES CONTINUE ON FOLLOWING PAGE]
16
IN WITNESS WHEREOF, this instrument has been duly executed by the
undersigned as of the day and year first above written.
FELCOR/LAX HOTELS, L.L.C., a
Delaware limited liability company
By: /s/ LAWRENCE D. ROBINSON
----------------------------------
Name: Lawrence D. Robinson
Title: Senior Vice President
[SIGNATURES CONTINUE ON FOLLOWING PAGE]
17
IN WITNESS WHEREOF, this instrument has been duly executed by the
undersigned as of the day and year first above written.
FELCOR NEVADA HOLDINGS, L.L.C., a
Nevada limited liability company
By: /s/ LAWRENCE D. ROBINSON
----------------------------------
Name: Lawrence D. Robinson
Title: Senior Vice President & Manager
[SIGNATURES CONTINUE ON FOLLOWING PAGE]
18
IN WITNESS WHEREOF, this instrument has been duly executed by the
undersigned as of the day and year first above written.
FHAC NEVADA HOLDINGS, L.L.C., a
Nevada limited liability company
By: /s/ LAWRENCE D. ROBINSON
----------------------------------
Name: Lawrence D. Robinson
Title: Senior Vice President & Manager
[SIGNATURES CONTINUE ON FOLLOWING PAGE]
19
IN WITNESS WHEREOF, this instrument has been duly executed by the
undersigned as of the day and year first above written.
FELCOR/CSS HOLDINGS, L.P., a Delaware
limited partnership
By: FELCOR/CSS HOTELS, L.L.C., a
Delaware limited liability
company, its general partner
By: /s/ LAWRENCE D. ROBINSON
----------------------------------
Name: Lawrence D. Robinson
Title: Senior Vice President
[SIGNATURES CONTINUE ON FOLLOWING PAGE]
20
IN WITNESS WHEREOF, this instrument has been duly executed by the
undersigned as of the day and year first above written.
FELCOR EIGHT HOTELS, L.L.C., a
Delaware limited liability company
By: /s/ LAWRENCE D. ROBINSON
----------------------------------
Name: Lawrence D. Robinson
Title: Senior Vice President
[SIGNATURES CONTINUE ON FOLLOWING PAGE]
21
IN WITNESS WHEREOF, this instrument has been duly executed by the
undersigned as of the day and year first above written.
FELCOR/LAX HOLDINGS, L.P., a
Delaware limited partnership
By: FELCOR/LAX HOTELS, L.L.C., a
Delaware limited liability
company, its general partner
By: /s/ LAWRENCE D. ROBINSON
----------------------------------
Name: Lawrence D. Robinson
Title: Senior Vice President
[SIGNATURES CONTINUE ON FOLLOWING PAGE]
22
IN WITNESS WHEREOF, this instrument has been duly executed by the
undersigned as of the day and year first above written.
FHAC TEXAS HOLDINGS, L.P., a
Texas limited partnership
By: FELCOR HOTEL ASSET COMPANY,
L.L.C., a Delaware limited
liability company, its general
partner
By: /s/ LAWRENCE D. ROBINSON
----------------------------------
Name: Lawrence D. Robinson
Title: Senior Vice President
[SIGNATURES CONTINUE ON FOLLOWING PAGE]
23
IN WITNESS WHEREOF, this instrument has been duly executed by the
undersigned as of the day and year first above written.
FELCOR/ST. PAUL HOLDINGS, L.P., a
Delaware limited partnership
By: FELCOR/CSS HOTELS, L.L.C., a
Delaware limited liability
company, its general partner
By: /s/ LAWRENCE D. ROBINSON
----------------------------------
Name: Lawrence D. Robinson
Title: Senior Vice President