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EXHIBIT 4.1
FELCOR SUITES LIMITED PARTNERSHIP,
as Issuer
FELCOR SUITE HOTELS, INC.,
FELCOR/CSS HOTELS, L.L.C.,
FELCOR/LAX HOTELS, L.L.C.,
FELCOR/CSS HOLDINGS, L.P.,
FELCOR/ST. ▇▇▇▇ HOLDINGS, L.P.,
FELCOR/LAX HOLDINGS, L.P.,
FELCOR EIGHT HOTELS, L.L.C.,
as Guarantors,
and
SUNTRUST BANK, ATLANTA
as Trustee
Indenture
Dated as of October 1, 1997
7 3/8% Senior Notes Due 2004
7 5/8% Senior Notes Due 2007
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CROSS-REFERENCE TABLE
TIA Sections Indenture Sections
------------ ------------------
Section 310(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . 7.10
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . 7.10
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.08
Section 313(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.06; 10.02
Section 314(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.17; 10.02
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . 4.16; 10.02
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . 10.03
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . 10.03
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.04
Section 315(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.05; 10.02
Section 316(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . 6.05
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . 6.04
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.07
Section 317(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . 6.08
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . 6.09
Section 318(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.01
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.01
Note: The Cross-Reference Table shall not for any purpose be deemed to be
a part of the Indenture.
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ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.01 DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.02 INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT. . . . . . . . . . . . . . . . 20
SECTION 1.03 RULES OF CONSTRUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
ARTICLE 2
NOTES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 2.01 FORM AND DATING. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 2.02 RESTRICTIVE LEGENDS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 2.03 EXECUTION, AUTHENTICATION AND DENOMINATIONS. . . . . . . . . . . . . . . . . . . 25
SECTION 2.04 REGISTRAR AND PAYING AGENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 2.05 PAYING AGENT TO HOLD MONEY IN TRUST. . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 2.06 TRANSFER AND EXCHANGE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 2.07 BOOK-ENTRY PROVISIONS FOR GLOBAL NOTES. . . . . . . . . . . . . . . . . . . . . . 27
SECTION 2.08 SPECIAL TRANSFER PROVISIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 2.09 REPLACEMENT NOTES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 2.10 OUTSTANDING NOTES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 2.11 TEMPORARY NOTES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 2.12 CANCELLATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 2.13 CUSIP NUMBERS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 2.14 DEFAULTED INTEREST. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 2.15 ISSUANCE OF ADDITIONAL NOTES. . . . . . . . . . . . . . . . . . . . . . . . . . . 34
ARTICLE 3
REDEMPTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 3.01 OPTIONAL REDEMPTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 3.02 NOTICES TO TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 3.03 SELECTION OF NOTES TO BE REDEEMED . . . . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 3.04 NOTICE OF REDEMPTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 3.05 EFFECT OF NOTICE OF REDEMPTION . . . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 3.06 DEPOSIT OF REDEMPTION PRICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 3.07 PAYMENT OF NOTES CALLED FOR REDEMPTION . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 3.08 NOTES REDEEMED IN PART . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
ARTICLE 4
COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 4.01 PAYMENT OF NOTES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 4.02 MAINTENANCE OF OFFICE OR AGENCY . . . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 4.03 LIMITATION ON INDEBTEDNESS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 4.04 LIMITATION ON RESTRICTED PAYMENTS . . . . . . . . . . . . . . . . . . . . . . . . . 40
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SECTION 4.05 LIMITATION ON DIVIDEND AND OTHER PAYMENT RESTRICTIONS AFFECTING
RESTRICTED SUBSIDIARIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 4.06 LIMITATION ON THE ISSUANCE AND SALE OF CAPITAL STOCK OF
RESTRICTED SUBSIDIARIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 4.07 LIMITATION ON ISSUANCES OF GUARANTEES BY RESTRICTED SUBSIDIARIES . . . . . . . . . 44
SECTION 4.08 LIMITATION ON TRANSACTIONS WITH AFFILIATES . . . . . . . . . . . . . . . . . . . . 44
SECTION 4.09 LIMITATION ON LIENS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 4.10 LIMITATION ON ASSET SALES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 4.11 REPURCHASE OF NOTES UPON A CHANGE OF CONTROL . . . . . . . . . . . . . . . . . . . 46
SECTION 4.12 EXISTENCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 4.13 PAYMENT OF TAXES AND OTHER CLAIMS . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 4.14 MAINTENANCE OF PROPERTIES AND INSURANCE . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 4.15 NOTICE OF DEFAULTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 4.16 COMPLIANCE CERTIFICATES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 4.17 COMMISSION REPORTS AND REPORTS TO HOLDERS . . . . . . . . . . . . . . . . . . . . . 48
SECTION 4.18 WAIVER OF STAY, EXTENSION OR USURY LAWS . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 4.19 LIMITATION ON SALE-LEASEBACK TRANSACTIONS . . . . . . . . . . . . . . . . . . . . . 49
SECTION 4.20 MAINTENANCE OF TOTAL UNENCUMBERED ASSETS . . . . . . . . . . . . . . . . . . . . . 49
SECTION 4.21 INVESTMENT GRADE RATING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
ARTICLE 5
SUCCESSOR CORPORATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 5.01 WHEN FELCOR OR FELCOR LP MAY MERGE, ETC. . . . . . . . . . . . . . . . . . . . . . 50
SECTION 5.02 SUCCESSOR SUBSTITUTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
ARTICLE 6
DEFAULT AND REMEDIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 6.01 EVENTS OF DEFAULT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 6.02 ACCELERATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 6.03 OTHER REMEDIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
SECTION 6.04 WAIVER OF PAST DEFAULTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
SECTION 6.05 CONTROL BY MAJORITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
SECTION 6.06 LIMITATION ON SUITS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
SECTION 6.07 RIGHTS OF HOLDERS TO RECEIVE PAYMENT . . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 6.08 COLLECTION SUIT BY TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 6.09 TRUSTEE MAY FILE PROOFS OF CLAIM . . . . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 6.10 PRIORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 6.11 UNDERTAKING FOR COSTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 6.12 RESTORATION OF RIGHTS AND REMEDIES . . . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 6.13 RIGHTS AND REMEDIES CUMULATIVE . . . . . . . . . . . . . . . . . . . . . . . . . . 56
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SECTION 6.14 DELAY OR OMISSION NOT WAIVER . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
ARTICLE 7
TRUSTEE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 7.01 GENERAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 7.02 CERTAIN RIGHTS OF TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 7.03 INDIVIDUAL RIGHTS OF TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 7.04 TRUSTEE'S DISCLAIMER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 7.05 NOTICE OF DEFAULT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 7.06 REPORTS BY TRUSTEE TO HOLDERS . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 7.07 COMPENSATION AND INDEMNITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 7.08 REPLACEMENT OF TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 7.09 SUCCESSOR TRUSTEE BY MERGER, ETC. . . . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 7.10 ELIGIBILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 7.11 MONEY HELD IN TRUST . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 7.12 WITHHOLDING TAXES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
ARTICLE 8
DISCHARGE OF INDENTURE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 8.01 TERMINATION OF COMPANY'S OBLIGATIONS . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 8.02 DEFEASANCE AND DISCHARGE OF INDENTURE . . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 8.03 DEFEASANCE OF CERTAIN OBLIGATIONS . . . . . . . . . . . . . . . . . . . . . . . . . 64
SECTION 8.04 APPLICATION OF TRUST MONEY . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
SECTION 8.05 REPAYMENT TO COMPANY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
SECTION 8.06 REINSTATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
ARTICLE 9
AMENDMENTS, SUPPLEMENTS AND WAIVERS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
SECTION 9.01 WITHOUT CONSENT OF HOLDERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
SECTION 9.02 WITH CONSENT OF HOLDERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
SECTION 9.03 REVOCATION AND EFFECT OF CONSENT . . . . . . . . . . . . . . . . . . . . . . . . . 68
SECTION 9.04 NOTATION ON OR EXCHANGE OF NOTES . . . . . . . . . . . . . . . . . . . . . . . . . 69
SECTION 9.05 TRUSTEE TO SIGN AMENDMENTS, ETC. . . . . . . . . . . . . . . . . . . . . . . . . . 69
SECTION 9.06 CONFORMITY WITH TRUST INDENTURE ACT . . . . . . . . . . . . . . . . . . . . . . . . 69
ARTICLE 10
MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
SECTION 10.01 TRUST INDENTURE ACT OF 1939 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
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SECTION 10.02 NOTICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
SECTION 10.03 CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT . . . . . . . . . . . . . . . . 71
SECTION 10.04 STATEMENTS REQUIRED IN CERTIFICATE OR OPINION . . . . . . . . . . . . . . . . . . . 71
SECTION 10.05 RULES BY TRUSTEE, PAYING AGENT OR REGISTRAR . . . . . . . . . . . . . . . . . . . . 71
SECTION 10.06 PAYMENT DATE OTHER THAN A BUSINESS DAY . . . . . . . . . . . . . . . . . . . . . . 71
SECTION 10.07 GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
SECTION 10.08 NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS . . . . . . . . . . . . . . . . . . . 72
SECTION 10.09 NO RECOURSE AGAINST OTHERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
SECTION 10.10 SUCCESSORS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
SECTION 10.11 DUPLICATE ORIGINALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
SECTION 10.12 SEPARABILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
SECTION 10.13 TABLE OF CONTENTS, HEADINGS, ETC. . . . . . . . . . . . . . . . . . . . . . . . . . 72
ARTICLE 11
GUARANTEE OF THE NOTES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
SECTION 11.01 GUARANTEE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
SECTION 11.02 OBLIGATIONS OF GUARANTOR UNCONDITIONAL. . . . . . . . . . . . . . . . . . . . . . 74
SECTION 11.03 NOTICE TO TRUSTEE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
SECTION 11.04 THIS ARTICLE NOT TO PREVENT EVENTS OF DEFAULT. . . . . . . . . . . . . . . . . . 74
SECTION 11.05 TRUSTEE'S COMPENSATION NOT PREJUDICED. . . . . . . . . . . . . . . . . . . . . . 74
SECTION 11.06 PAYMENTS MAY BE PAID PRIOR TO DISSOLUTION. . . . . . . . . . . . . . . . . . . . . 74
SECTION 11.07 SUSPENSION OF GUARANTEE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
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INDENTURE, dated as of October 1, 1997, among FelCor Suites Limited
Partnership ("FelCor LP"), a Delaware limited partnership, FelCor Suite Hotels,
Inc. ("FelCor"), a Maryland corporation, FelCor/CSS Hotels, L.L.C., a Delaware
limited liability company, FelCor/LAX Hotels, L.L.C., a Delaware limited
liability company, FelCor/CSS Holdings, L.P., FelCor/St. ▇▇▇▇ Holdings, L.P.,
FelCor/LAX Holdings, L.P., FelCor Eight Hotels, L.L.C. and SunTrust Bank,
Atlanta, a Georgia banking corporation (the "Trustee").
RECITALS OF COMPANY
FelCor LP has duly authorized the execution and delivery of this
Indenture to provide for the issuance initially of up to $175,000,000 aggregate
principal amount at maturity of FelCor LP's 7 3/8% Senior Notes Due 2004 (the
"7 3/8 Notes") and $125,000,000 aggregate principal amount at maturity of
FelCor LP's 7 5/8% Senior Notes Due 2007 ("the "7 5/8 Notes"; and, together
with the 7 3/8 Notes, the "Notes") issuable as provided in this Indenture.
Each Guarantor has duly authorized the execution and delivery of this Indenture
to provide for a guarantee of the Notes and of certain of FelCor LP's
obligations hereunder. All things necessary to make this Indenture a valid
agreement of FelCor LP and the Guarantors in accordance with its terms, have
been done, and FelCor LP and the Guarantors have done all things necessary to
make the Notes, when executed by FelCor LP and authenticated and delivered by
the Trustee hereunder and duly issued by FelCor LP, the valid obligations of
FelCor LP and the Guarantors as hereinafter provided.
This Indenture is subject to, and shall be governed by, the provisions
of the Trust Indenture Act of 1939, as amended, that are required to be a part
of and to govern indentures qualified under the Trust Indenture Act of 1939, as
amended.
AND THIS INDENTURE FURTHER WITNESSETH
For and in consideration of the premises and the purchase of the Notes
by the Holders thereof, it is mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders, as follows:
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01 DEFINITIONS.
"Acquired Indebtedness" means Indebtedness of a Person existing at the
time such Person becomes a Restricted Subsidiary or assumed in connection with
an Asset Acquisition from such Person by a Restricted Subsidiary and not
incurred by such Person in connection with, or in anticipation of, such Person
becoming a Restricted Subsidiary or such Asset Acquisition; provided that
Indebtedness of such Person which is redeemed, defeased, retired or otherwise
repaid at the time of or immediately upon consummation of the transactions by
which such
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Person becomes a Restricted Subsidiary or such Asset Acquisition shall not be
Acquired Indebtedness.
"Adjusted Consolidated Net Income" means, for any period, the
aggregate net income (or loss) of FelCor, FelCor LP and their respective
Restricted Subsidiaries for such period determined on a consolidated basis in
conformity with GAAP plus the minority interest in FelCor LP, if applicable;
provided that the following items shall be excluded in computing Adjusted
Consolidated Net Income (without duplication): (i) the net income of any Person
(other than FelCor LP, FelCor or a Restricted Subsidiary), except to the extent
of the amount of dividends or other distributions actually paid to FelCor LP,
FelCor or any of their respective Restricted Subsidiaries by such Person during
such period; (ii) the net income of any Restricted Subsidiary to the extent
that the declaration or payment of dividends or similar distributions by such
Restricted Subsidiary of such net income is not at the time permitted by the
operation of the terms of its charter or any agreement, instrument, judgment,
decree, order, statute, rule or governmental regulation applicable to such
Restricted Subsidiary; (iii) any gains or losses (on an after-tax basis)
attributable to Asset Sales; (iv) for so long as the Notes are not rated
Investment Grade, any amount paid or accrued as dividends on Preferred Stock of
FelCor LP, FelCor or any Restricted Subsidiary owned by Persons other than
FelCor or FelCor LP and any of their respective Restricted Subsidiaries; and
(v) all extraordinary gains and extraordinary losses.
"Adjusted Consolidated Net Tangible Assets" means the total amount of
assets of FelCor LP, FelCor and their respective Restricted Subsidiaries (less
applicable depreciation, amortization and other valuation reserves), except to
the extent resulting from write-ups of capital assets (excluding write-ups in
connection with accounting for acquisitions in conformity with GAAP), after
deducting therefrom (i) all current liabilities of FelCor LP, FelCor and their
respective Restricted Subsidiaries (excluding intercompany items) and (ii) all
goodwill, trade names, trademarks, patents, unamortized debt discount and
expense and other like intangibles, all as set forth on the most recent
quarterly or annual consolidated balance sheet of FelCor LP or FelCor and their
respective Restricted Subsidiaries, prepared in conformity with GAAP and filed
with the Commission or provided to the Trustee pursuant to Section 4.17.
"Adjusted Total Assets" means, for any Person, the sum of (i) Total
Assets for such Person as of the end of the calendar quarter preceding the
Transaction Date as set forth on the most recent quarterly or annual
consolidated balance sheet of FelCor LP or FelCor and their respective
Restricted Subsidiaries, prepared in conformity with GAAP and filed with the
Commission or provided to the Trustee pursuant to Section 4.17 and (ii) any
increase in Total Assets following the end of such quarter including, without
limitation, any increase in Total Assets resulting from the application of the
proceeds of any additional Indebtedness.
"Affiliate" means, as applied to any Person, any other Person directly
or indirectly controlling, controlled by, or under direct or indirect common
control with, such Person. For purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling," "controlled by"
and "under common control with"), as applied to any Person,
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means the possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of such Person, whether through
the ownership of voting securities, by contract or otherwise.
"Agent" means any Registrar, Paying Agent, authenticating agent or
co-Registrar.
"Agent Members" has the meaning provided in Section 2.07(a).
"Asset Acquisition" means (i) an investment by FelCor LP or FelCor or
any of their respective Restricted Subsidiaries in any other Person pursuant to
which such Person shall become a Restricted Subsidiary or shall be merged into
or consolidated with FelCor LP or FelCor or any of their respective Restricted
Subsidiaries; provided that such Person's primary business is related,
ancillary, incidental or complementary to the businesses of FelCor LP or FelCor
or any of their respective Restricted Subsidiaries on the date of such
investment or (ii) an acquisition by FelCor LP or FelCor or any of their
respective Restricted Subsidiaries from any other Person that constitutes
substantially all of a division or line of business, or one or more hotel
properties, of such Person; provided that the property and assets acquired are
related, ancillary, incidental or complementary to the businesses of FelCor LP
or FelCor or any of their respective Restricted Subsidiaries on the date of
such acquisition.
"Asset Disposition" means the sale or other disposition by FelCor LP
or FelCor or any of their respective Restricted Subsidiaries (other than to
FelCor LP, FelCor or another Restricted Subsidiary) of (i) all or substantially
all of the Capital Stock of any Restricted Subsidiary or (ii) all or
substantially all of the assets that constitute a division or line of business,
or one or more hotel properties, of FelCor LP or FelCor or any of their
respective Restricted Subsidiaries.
"Asset Sale" means any sale, transfer or other disposition (including
by way of merger, consolidation or sale-leaseback transaction) in one
transaction or a series of related transactions by FelCor LP or FelCor or any
of their Restricted Subsidiaries to any Person other than FelCor LP or FelCor
or any of their respective Restricted Subsidiaries of (i) all or any of the
Capital Stock of any Restricted Subsidiary other than sales permitted under
clause (iv) of Section 4.06, (ii) all or substantially all of the property and
assets of an operating unit or business of FelCor LP or FelCor or any of their
respective Restricted Subsidiaries or (iii) any other property and assets of
FelCor LP or FelCor or any of their respective Restricted Subsidiaries outside
the ordinary course of business of FelCor LP or FelCor or such Restricted
Subsidiary and, in each case, that is not governed by the provisions of the
Indenture applicable to mergers, consolidations and sales of assets of FelCor
LP and FelCor; provided that "Asset Sale" shall not include (a) sales or other
dispositions of inventory, receivables and other current assets, (b) sales,
transfers or other dispositions of assets with a fair market value not in
excess of $1 million in any transaction or series of related transactions or
(c) sales or other dispositions of assets for consideration at least equal to
the fair market value of the assets sold or disposed of, to the extent that the
consideration received would satisfy clause (i)(B) of the second sentence of
Section 4.10.
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"Average Life" means at any date of determination with respect to any
debt security, the quotient obtained by dividing (i) the sum of the products of
(a) the number of years from such date of determination to the dates of each
successive scheduled principal payment of such debt security and (b) the amount
of such principal payment by (ii) the sum of all such principal payments.
"Board of Directors" means (i) with respect to FelCor the Board of
Directors of FelCor, (ii) with respect to FelCor LP, the Board of Directors of
its general partner, and (iii) with respect to the Subsidiary Guarantors, the
board of directors of its general partner or manager, as the case may be, or,
in each case, any committee of such Board of Directors duly authorized to act
under this Indenture.
"Board Resolution" means a copy of a resolution, certified by the
Secretary of such Person to have been duly adopted by the Board of Directors
and to be in full force and effect on the date of such certification, and
delivered to the Trustee.
"Business Day" means any day except a Saturday, Sunday or other day on
which commercial banks in The City of New York, or in the city of the Corporate
Trust Office of the Trustee, are authorized by law to close.
"Capital Stock" means, with respect to any Person, any and all shares,
interests, participation or other equivalents (however designated, whether
voting or non-voting), including partnership interests, whether general or
limited, in the equity of such Person, whether outstanding on the Closing Date
or issued thereafter, including, without limitation, all Common Stock,
Preferred Stock and Units.
"Capitalized Lease" means, as applied to any Person, any lease of any
property (whether real, personal or mixed) of which the discounted present
value of the rental obligations of such Person as lessee, in conformity with
GAAP, is required to be capitalized on the balance sheet of such Person.
"Capitalized Lease Obligations" means the discounted present value of
the rental obligations under a Capitalized Lease as reflected on the balance
sheet of such Person in accordance with GAAP.
"Change of Control" means such time as (i) a "person" or "group"
(within the meaning of Sections 13(d) and 14(d)(2) of the Exchange Act),
becomes the ultimate "beneficial owner" (as defined in Rule 13d-3 under the
Exchange Act) of more than 35% of the total voting power of the Voting Stock of
FelCor or, other than by FelCor, of FelCor LP on a fully diluted basis; or (ii)
individuals who on the Closing Date constitute the Board of Directors (together
with any new or replacement directors whose election by the Board of Directors
or whose nomination by the Board of Directors for election by FelCor's
shareholders was approved by a vote of at least a majority of the members of
the Board of Directors then still in office who either were members
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of the Board of Directors on the Closing Date or whose election or nomination
for election was so approved) cease for any reason to constitute a majority of
the members of the Board of Directors then in office.
"Closing Date" means the date on which the Notes are originally issued
under the Indenture.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act or, if at any time
after the execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the TIA, then the body
performing such duties at such time.
"Common Stock" means, with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated, whether
voting or non-voting), which have no preference on liquidation or with respect
to distributions over any other class of Capital Stock, including partnership
interests, whether general or limited, of such Person's equity, whether
outstanding on the Closing Date or issued thereafter, including, without
limitation, all series and classes of common stock.
"Company Order" means a written request or order signed in the name of
a Person (i) by its Chairman, a Vice Chairman, its President, a Vice President,
manager or similar officer of its general partner and (ii) by its Treasurer, an
Assistant Treasurer, its Secretary or an Assistant Secretary, manager or
similar officer of its general partner and delivered to the Trustee; provided,
however, that such written request or order may be signed by any two of the
officers or directors listed in clause (i) above in lieu of being signed by one
of such officers or directors listed in such clause (i) and one of the officers
listed in clause (ii) above.
"Comparable Treasury Issue" means the United States Treasury security
selected by an Independent Investment Banker as having a maturity comparable to
the remaining term of the Note to be redeemed that would be utilized, at the
time of selection and in accordance with customary financial practice, in
pricing new issues of corporate debt securities of comparable maturity to the
remaining term of such Note.
"Comparable Treasury Price" means, with respect to any Redemption
Date, (i) the average of the bid and asked prices for the Comparable Treasury
Issue (expressed in each case as a percentage of its principal amount) on the
third Business Day preceding such Redemption Date, as set forth in the daily
statistical release (or any successor release) published by the Federal Reserve
Bank of New York and designated "Composite 3:30 p.m. Quotations for U.S.
Government Securities" or (ii) if such release (or any successor release) is
not published or does not contain such prices on such Business Day, the average
of the Reference Treasury Dealer Quotations actually obtained by the Trustee
for such Redemption Date.
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"Consolidated EBITDA" means, for any period, Adjusted Consolidated Net
Income for such period plus, to the extent such amount was deducted in
calculating such Adjusted Consolidated Net Income, (i) Consolidated Interest
Expense, (ii) income taxes (other than income taxes (either positive or
negative) attributable to extraordinary and non-recurring gains or losses or
sales of assets), (iii) depreciation expense, (iv) amortization expense and (v)
all other non-cash items reducing Adjusted Consolidated Net Income (other than
items that will require cash payments and for which an accrual or reserve is,
or is required by GAAP to be, made), less all non-cash items increasing
Adjusted Consolidated Net Income, all as determined on a consolidated basis for
FelCor LP, FelCor and their respective Restricted Subsidiaries in conformity
with GAAP; provided that, if any Restricted Subsidiary is not a Wholly Owned
Restricted Subsidiary, Consolidated EBITDA shall be reduced (to the extent not
otherwise reduced in accordance with GAAP) by an amount equal to (A) the amount
of the Adjusted Consolidated Net Income attributable to such Restricted
Subsidiary multiplied by (B) the percentage ownership interest in the income of
such Restricted Subsidiary not owned on the last day of such period by FelCor
LP or FelCor or any of their respective Restricted Subsidiaries.
"Consolidated Interest Expense" means, for any period, without
duplication, the aggregate amount of interest expense in respect of
Indebtedness (including, without limitation, amortization of original issue
discount on any Indebtedness and the interest portion of any deferred payment
obligation, calculated in accordance with GAAP; all commissions, discounts and
other fees and expenses owed with respect to letters of credit and bankers'
acceptance financing; the net costs associated with Interest Rate Agreements
and Indebtedness that is Guaranteed or secured by assets of FelCor LP, FelCor
or any of their respective Restricted Subsidiaries and all but the principal
component of rentals in respect of Capitalized Lease Obligations paid, accrued
or scheduled to be paid or to be accrued by FelCor LP, FelCor and their
respective Restricted Subsidiaries) during such period, all as determined on a
consolidated basis (without taking into account Unrestricted Subsidiaries) in
conformity with GAAP; excluding (i) the amount of such interest expense of any
Restricted Subsidiary if the net income of such Restricted Subsidiary is
excluded in the calculation of Adjusted Consolidated Net Income pursuant to
clause (ii) of the definition thereof (but only in the same proportion as the
net income of such Restricted Subsidiary is excluded from the calculation of
Adjusted Consolidated Net Income pursuant to clause (ii) of the definition
thereof) and (ii) any premiums, fees and expenses (and any amortization
thereof) payable in connection with the offering of the Notes or paid in
connection with any other Indebtedness outstanding on August 31, 1997, all as
determined on a consolidated basis (without taking into account Unrestricted
Subsidiaries) in conformity with GAAP.
"Currency Agreement" means any foreign exchange contract, currency
swap agreement or other similar agreement or arrangement.
"Default" means any event that is, or after notice or passage of time
or both would be, an Event of Default.
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"Corporate Trust Office" means the office of the Trustee at which the
corporate trust business of the Trustee shall, at any particular time, be
principally administered, which office is, at the date of this Indenture,
located at ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: Corporate Trust Administration.
"Depositary" shall mean The Depository Trust Company, its nominees,
and their respective successors.
"Disqualified Stock" means any class or series of Capital Stock of any
Person that by its terms or otherwise is (i) required to be redeemed prior to
the Stated Maturity of the Notes, (ii) redeemable at the option of the holder
of such class or series of Capital Stock, other than Units, at any time prior
to the Stated Maturity of the Notes or (iii) convertible into or exchangeable
for Capital Stock referred to in clause (i) or (ii) above or Indebtedness
having a scheduled maturity prior to the Stated Maturity of the Notes; provided
that any Capital Stock that would not constitute Disqualified Stock but for
provisions thereof giving holders thereof the right to require such Person to
repurchase or redeem such Capital Stock upon the occurrence of an "asset sale"
or "change of control" occurring prior to the Stated Maturity of the Notes
shall not constitute Disqualified Stock if the "asset sale" or "change of
control" provisions applicable to such Capital Stock are no more favorable to
the holders of such Capital Stock than the provisions contained in Sections
4.10 and 4.11 and such Capital Stock specifically provides that such Person
will not repurchase or redeem any such stock pursuant to such provision prior
to FelCor LP's repurchase of such Notes as are required to be repurchased
pursuant to Sections 4.10 and 4.11.
"DJONT" means DJONT Operations, L.L.C., a Delaware limited liability
company.
"Event of Default" has the meaning provided in Section 6.01.
"Excess Proceeds" has the meaning provided in Section 4.10.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchange Notes" means any securities of FelCor LP containing terms
identical to a series of Notes (except that such Exchange Notes shall be
registered under the Securities Act) that are issued and exchanged for such
Notes pursuant to the Registration Rights Agreement and this Indenture.
"fair market value" means the price that would be paid in an
arm's-length transaction between an informed and willing seller under no
compulsion to sell and an informed and willing buyer under no compulsion to
buy, as determined in good faith by the Board of Directors, whose determination
shall be conclusive if evidenced by a Board Resolution.
"Funds From Operations" for any period means the consolidated net
income of FelCor LP, FelCor and their respective Restricted Subsidiaries for
such period in conformity with GAAP
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excluding gains or losses from debt restructurings and sales of property, plus
depreciation of real property (including furniture and equipment) and after
adjustments for unconsolidated partnerships and joint ventures plus the
minority interest in FelCor LP, if applicable; provided that for purposes of
the payment of any dividend or distribution by FelCor LP or FelCor, "Funds From
Operations" shall be equal to $80 million plus the amount thereof computed for
the period commencing with the first day of the fiscal quarter in which the
Closing Date occurs and ending on the last day of the last fiscal quarter
preceding the payment of such dividend or distribution.
"GAAP" means generally accepted accounting principles in the United
States of America as in effect as of the Closing Date, including, without
limitation, those set forth in the opinions and pronouncements of the
Accounting Principles Board of the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial Accounting
Standards Board or in such other statements by such other entity as approved by
a significant segment of the accounting profession. All ratios and computations
contained or referred to in the Indenture shall be computed in conformity with
GAAP applied on a consistent basis, except that calculations made for purposes
of determining compliance with the terms of the covenants and with other
provisions of the Indenture shall be made without giving effect to (i) the
amortization of any expenses incurred in connection with the offering of the
Notes and (ii) except as otherwise provided, the amortization of any amounts
required or permitted by Accounting Principles Board Opinion Nos. 16 and 17.
"Global Notes" has the meaning provided in Section 2.01.
"Government Securities" means direct obligations of, obligations
guaranteed by, or participations in pools consisting solely of obligations of
or obligations guaranteed by, the United States of America for the payment of
which obligations or guarantee the full faith and credit of the United States
of America is pledged and which are not callable or redeemable at the option of
the issuer thereof.
"Guarantee" means any obligation, contingent or otherwise, of any
Person directly or indirectly guaranteeing any Indebtedness of any other Person
and, without limiting the generality of the foregoing, any obligation, direct
or indirect, contingent or otherwise, of such Person (i) to purchase or pay (or
advance or supply funds for the purchase or payment of) such Indebtedness of
such other Person (whether arising by virtue of partnership arrangements, or by
agreements to keep-well, to purchase assets, goods, securities or services
(unless such purchase arrangements are on arm's-length terms and are entered
into in the ordinary course of business), to take-or-pay, or to maintain
financial statement conditions or otherwise) or (ii) entered into for purposes
of assuring in any other manner the obligee of such Indebtedness of the payment
thereof or to protect such obligee against loss in respect thereof (in whole or
in part); provided that the term "Guarantee" shall not include endorsements for
collection or deposit in the ordinary course of business. The term "Guarantee"
used as a verb has a corresponding meaning.
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"Guarantors" means FelCor and the Subsidiary Guarantors, collectively,
so long as they remain obligors on any Indebtedness of FelCor or FelCor LP
which is pari passu with or subordinated to the Notes.
"Holder" or "Noteholder" means the registered holder of any Note.
"Incur" means, with respect to any Indebtedness, to incur, create,
issue, assume, Guarantee or otherwise become liable for or with respect to, or
become responsible for, the payment of, contingently or otherwise, such
Indebtedness, including an "Incurrence" of Acquired Indebtedness; provided that
neither the accrual of interest nor the accretion of original issue discount
shall be considered an Incurrence of Indebtedness.
"Indebtedness" means, with respect to any Person at any date of
determination (without duplication), (i) all indebtedness of such Person for
borrowed money, (ii) all obligations of such Person evidenced by bonds,
debentures, notes or other similar instruments, (iii) the face amount of
letters of credit or other similar instruments (excluding obligations with
respect to letters of credit (including trade letters of credit) securing
obligations (other than obligations described in (i) or (ii) above or (v), (vi)
or (vii) below) entered into in the ordinary course of business of such Person
to the extent such letters of credit are not drawn upon or, if drawn upon, to
the extent such drawing is reimbursed no later than the third Business Day
following receipt by such Person of a demand for reimbursement), (iv) all
unconditional obligations of such Person to pay the deferred and unpaid
purchase price of property or services, which purchase price is due more than
six months after the date of placing such property in service or taking
delivery and title thereto or the completion of such services, except Trade
Payables, (v) all Capitalized Lease Obligations, (vi) all Indebtedness of other
Persons secured by a Lien on any asset of such Person, whether or not such
Indebtedness is assumed by such Person; provided that the amount of such
Indebtedness shall be the lesser of (A) the fair market value of such asset at
such date of determination and (B) the amount of such Indebtedness, (vii) all
Indebtedness of other Persons Guaranteed by such Person to the extent such
Indebtedness is Guaranteed by such Person and (viii) to the extent not
otherwise included in this definition or the definition of Consolidated
Interest Expense, obligations under Currency Agreements and Interest Rate
Agreements. The amount of Indebtedness of any Person at any date shall be the
outstanding balance at such date of all unconditional obligations of the type
described above and, with respect to obligations under any Guarantee, the
maximum liability upon the occurrence of the contingency giving rise to the
obligation; provided that (A) the amount outstanding at any time of any
Indebtedness issued with original issue discount shall be deemed to be the face
amount with respect to such Indebtedness less the remaining unamortized portion
of the original issue discount of such Indebtedness at the date of
determination in conformity with GAAP, and (B) Indebtedness shall not include
any liability for federal, state, local or other taxes.
"Indenture" means this Indenture as originally executed or as it may
be amended or supplemented from time to time by one or more indentures
supplemental to this Indenture entered into pursuant to the applicable
provisions of this Indenture.
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"Independent Investment Banker" means one of the Reference Treasury
Dealers appointed by the Trustee after consultation with FelCor LP.
"Institutional Accredited Investor" means an institution that is an
"accredited investor" as that term is defined in Rule 501(a)(1), (2), (3) or
(7) under the Securities Act.
"Interest Coverage Ratio" means, on any Transaction Date, the ratio of
(i) the aggregate amount of Consolidated EBITDA for the then most recent four
fiscal quarters prior to such Transaction Date for which reports have been
filed with the Commission or provided to the Trustee pursuant to Section 4.17
("Four Quarter Period") to (ii) the aggregate Consolidated Interest Expense
during such Four Quarter Period. In making the foregoing calculation, (A) pro
forma effect shall be given to any Indebtedness Incurred or repaid (other than
in connection with an Asset Acquisition or Asset Disposition) during the period
("Reference Period") commencing on the first day of the Four Quarter Period and
ending on the Transaction Date (other than Indebtedness Incurred or repaid
under a revolving credit or similar arrangement to the extent of the commitment
thereunder (or under any predecessor revolving credit or similar arrangement)
in effect on the last day of such Four Quarter Period unless any portion of
such Indebtedness is projected, in the reasonable judgment of the senior
management of FelCor LP or FelCor (as evidenced by an Officer's Certificate),
to remain outstanding for a period in excess of 12 months from the date of the
Incurrence thereof), in each case as if such Indebtedness had been Incurred or
repaid on the first day of such Reference Period; (B) Consolidated Interest
Expense attributable to interest on any Indebtedness (whether existing or being
Incurred) computed on a pro forma basis and bearing a floating interest rate
shall be computed as if the rate in effect on the Transaction Date (taking into
account any Interest Rate Agreement applicable to such Indebtedness if such
Interest Rate Agreement has a remaining term in excess of 12 months or, if
shorter, at least equal to the remaining term of such Indebtedness) had been
the applicable rate for the entire period; (C) pro forma effect shall be given
to Asset Dispositions and Asset Acquisitions (including giving pro forma effect
to the application of proceeds of any Asset Disposition and any Indebtedness
Incurred or repaid in connection with any such Asset Acquisitions or Asset
Dispositions) that occur during such Reference Period but subsequent to the end
of the related Four Quarter Period as if they had occurred and such proceeds
had been applied on the first day of such Reference Period; and (D) pro forma
effect shall be given to asset dispositions and asset acquisitions (including
giving pro forma effect to the application of proceeds of any asset disposition
and any Indebtedness Incurred or repaid in connection with any such asset
acquisitions or asset dispositions) that have been made by any Person that has
become a Restricted Subsidiary or has been merged with or into FelCor LP or
FelCor or any of their respective Restricted Subsidiaries during such Reference
Period but subsequent to the end of the related Four Quarter Period and that
would have constituted Asset Dispositions or Asset Acquisitions during such
Reference Period but subsequent to the end of the related Four Quarter Period
had such transactions occurred when such Person was a Restricted Subsidiary as
if such asset dispositions or asset acquisitions were Asset Dispositions or
Asset Acquisitions and had occurred on the first day of such Reference Period;
provided that to the extent that clause (C) or (D) of this sentence requires
that pro forma effect be given to an Asset Acquisition or ▇▇▇▇▇
▇▇
▇▇
Disposition, such pro forma calculation shall be based upon the four full
fiscal quarters immediately preceding the Transaction Date of the Person, or
division or line of business, or one or more hotel properties, of the Person
that is acquired or disposed of to the extent that such financial information
is available.
"Interest Payment Date" means each semiannual interest payment date on
April 1 and October 1, of each year, commencing April 1, 1998.
"Interest Rate Agreement" means any interest rate protection
agreement, interest rate future agreement, interest rate option agreement,
interest rate swap agreement, interest rate cap agreement, interest rate collar
agreement, interest rate hedge agreement, option or future contract or other
similar agreement or arrangement with respect to interest rates.
"Investment" in any Person means any direct or indirect advance, loan
or other extension of credit (including without limitation by way of Guarantee
or similar arrangement, but excluding advances to customers in the ordinary
course of business that are, in conformity with GAAP, recorded as accounts
receivable on the consolidated balance sheet of FelCor LP, FelCor and their
respective Restricted Subsidiaries) or capital contribution to (by means of any
transfer of cash or other property (tangible or intangible) to others or any
payment for property or services solely for the account or use of others, or
otherwise), or any purchase or acquisition of Capital Stock, bonds, notes,
debentures or other similar instruments issued by, such Person and shall
include (i) the designation of a Restricted Subsidiary as an Unrestricted
Subsidiary and (ii) the fair market value of the Capital Stock (or any other
Investment), held by FelCor LP or FelCor or any of their respective Restricted
Subsidiaries of (or in) any Person that has ceased to be a Restricted
Subsidiary, including without limitation, by reason of any transaction
permitted by clause (iii) of Section 4.06; provided that the fair market value
of the Investment remaining in any Person that has ceased to be a Subsidiary
shall be deemed not to exceed the aggregate amount of Investments previously
made in such Person valued at the time such Investments were made, less the net
reduction of such Investments. For purposes of the definition of "Unrestricted
Subsidiary" and Section 4.04, (i) "Investment" shall include the fair market
value of the assets (net of liabilities (other than liabilities to FelCor LP or
FelCor or any of their respective Restricted Subsidiaries)) of any Restricted
Subsidiary at the time such Restricted Subsidiary is designated an Unrestricted
Subsidiary, (ii) the fair market value of the assets (net of liabilities (other
than liabilities to FelCor LP or FelCor or any of their respective Restricted
Subsidiaries)) of any Unrestricted Subsidiary at the time that such
Unrestricted Subsidiary is designated a Restricted Subsidiary shall be
considered a reduction in outstanding Investments and (iii) any property
transferred to or from an Unrestricted Subsidiary shall be valued at its fair
market value at the time of such transfer.
"Investment Grade" means a rating of the Notes by both S&P and
▇▇▇▇▇'▇, each such rating being in one of such agency's four highest generic
rating categories that signifies investment grade (i.e. BBB- (or the
equivalent) or higher by S&P and Baa3 (or the equivalent) or higher by
Moody's); provided, in each case, such ratings are publicly available;
provided, further,
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that in the event Moody's or S&P is no longer in existence for purposes of
determining whether the Notes are rated "Investment Grade," such organization
may be replaced by a nationally recognized statistical rating organization (as
defined in Rule 436 under the Securities Act) designated by FelCor LP and
FelCor, notice of which shall be given to a Responsible Officer of the Trustee.
"Lien" means any mortgage, pledge, security interest, encumbrance,
lien or charge of any kind (including without limitation, any conditional sale
or other title retention agreement or lease in the nature thereof or any
agreement to give any security interest).
"Line of Credit" means the credit facility established pursuant to the
Third Amended and Restated Revolving Credit Agreement dated as of August 14,
1997 among FelCor LP, FelCor, the lenders party thereto, The Chase Manhattan
Bank, as Administrative Agent, ▇▇▇▇▇ Fargo Bank, National Association, as
Documentation Agent, together with all other agreements, instruments and
documents executed or delivered pursuant thereto or in connection therewith, in
each case as such agreements, instruments or documents may be amended,
supplemented, extended, renewed, replaced or otherwise modified from time to
time; provided that, with respect to an agreement providing for the refinancing
of Indebtedness under the Line of Credit, such agreement shall be the Line of
Credit under the Indenture only if a notice to that effect is delivered by
FelCor LP and FelCor to a Responsible Officer of the Trustee and there shall be
at any time only one instrument that is (together with the aforementioned
related agreements, instruments and documents) the Line of Credit under the
Indenture.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc. and its successors.
"Net Cash Proceeds" means, (a) with respect to any Asset Sale, the
proceeds of such Asset Sale in the form of cash or cash equivalents, including
payments in respect of deferred payment obligations (to the extent
corresponding to the principal, but not interest, component thereof) when
received in the form of cash or cash equivalents (except to the extent such
obligations are financed or sold with recourse to FelCor LP or FelCor or any of
their respective Restricted Subsidiaries) and proceeds from the conversion of
other property received when converted to cash or cash equivalents, net of (i)
brokerage commissions and other fees and expenses (including fees and expenses
of counsel and investment bankers) related to such Asset Sale, (ii) provisions
for all taxes actually paid or payable as a result of such Asset Sale by FelCor
LP, FelCor and their respective Restricted Subsidiaries, taken as a whole,
(iii) payments made to repay Indebtedness or any other obligation outstanding
at the time of such Asset Sale that either (A) is secured by a Lien on the
property or assets sold or (B) is required to be paid as a result of such sale
and (iv) amounts reserved by FelCor LP, FelCor and their respective Restricted
Subsidiaries against any liabilities associated with such Asset Sale, including
without limitation, pension and other post-employment benefit liabilities,
liabilities related to environmental matters and liabilities under any
indemnification obligations associated with such Asset Sale, all as determined
on a consolidated basis in conformity with GAAP and (b) with respect to any
issuance or sale of Capital Stock, the proceeds of such issuance or sale in the
form of cash or
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cash equivalents, including payments in respect of deferred payment obligations
(to the extent corresponding to the principal, but not interest, component
thereof) when received in the form of cash or cash equivalents (except to the
extent such obligations are financed or sold with recourse to FelCor LP or
FelCor or any of their respective Restricted Subsidiaries) and proceeds from
the conversion of other property received when converted to cash or cash
equivalents, net of attorney's fees, accountants's fees, underwriters' or
placement agents' fees, discounts or commissions and brokerage, consultant and
other fees incurred in connection with such issuance or sale and net of tax
paid or payable as a result thereof.
"Non-U.S. Person" means a person who is not a U.S. person, as defined
in Regulation S.
"Note Register" has the meaning provided in Section 2.04.
"Notes" means any of the securities, as defined in the first paragraph
of the recitals hereof, that are authenticated and delivered under this
Indenture. For all purposes of this Indenture, the term "Notes" shall include
the Notes initially issued on the Closing Date, any Exchange Notes to be issued
and exchanged for any Notes pursuant to the Registration Rights Agreement and
this Indenture and any other Notes issued after the Closing Date under this
Indenture. For purposes of this Indenture, all Notes shall vote together as
one series of Notes under this Indenture.
"Offer to Purchase" means an offer to purchase Notes by FelCor LP,
from the Holders commenced by mailing a notice to the Trustee and each Holder
stating: (i) the covenant pursuant to which the offer is being made and that
all Notes validly tendered will be accepted for payment on a pro rata basis;
(ii) the purchase price and the date of purchase (which shall be a Business Day
no earlier than 30 days nor later than 60 days from the date such notice is
mailed) ("Payment Date"); (iii) that any Note not tendered will continue to
accrue interest pursuant to its terms; (iv) that, unless FelCor LP defaults in
the payment of the purchase price, any Note accepted for payment pursuant to
the Offer to Purchase shall cease to accrue interest on and after the Payment
Date; (v) that Holders electing to have a Note purchased pursuant to the Offer
to Purchase will be required to surrender the Note, together with the form
entitled "Option of the Holder to Elect Purchase" on the reverse side of the
Note completed, to the Paying Agent at the address specified in the notice
prior to the close of business on the Business Day immediately preceding the
Payment Date; (vi) that Holders will be entitled to withdraw their election if
the Payment Agent receives, not later than the close of business on the third
Business Day immediately preceding the Payment Date, a telegram, facsimile
transmission or letter setting forth the name of such Holder, the principal
amount of Notes delivered for purchase and a statement that such Holder is
withdrawing his election to have such Notes purchased; and (vii) that Holders
whose Notes are being purchased only in part will be issued new Notes equal in
principal amount to the unpurchased portion of the Notes surrendered; provided
that each Note purchased and each new Note issued shall be in a principal
amount of $1,000 or integral multiples thereof. On the Payment Date, FelCor LP
shall (i) accept for payment on a pro rata basis Notes or portions thereof
tendered pursuant to an Offer to Purchase; and (ii) deposit with the Paying
Agent money
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sufficient to pay the purchase price of all Notes or portions thereof so
accepted; and shall promptly thereafter deliver, or cause to be delivered, to
the Trustee all Notes or portions thereof so accepted together with an
Officers' Certificate specifying the Notes or portions thereof accepted for
payment by FelCor LP. The Paying Agent shall promptly mail to the Holders of
Notes so accepted payment in an amount equal to the purchase price, and the
Trustee shall promptly authenticate and mail to such Holders a new Note equal
in principal amount to any unpurchased portion of any Note surrendered;
provided that each Note purchased and each new Note issued shall be in a
principal amount of $1,000 or integral multiples thereof. FelCor LP will
publicly announce the results of an Offer to Purchase as soon as practicable
after the Payment Date. FelCor LP will comply with Rule 14e-1 under the
Exchange Act and any other securities laws and regulations thereunder to the
extent such laws and regulations are applicable, in the event that FelCor LP is
required to repurchase Notes pursuant to an Offer to Purchase.
"Officer" means, with respect to any Person, (i) the Chairman of the
Board, the President, any Vice President, the Chief Financial Officer, and (ii)
the Treasurer or any Assistant Treasurer, or the Secretary or any Assistant
Secretary or Person holding a similar position at the general partner or
manager of such Person.
"Officers' Certificate" means a certificate signed by one Officer
listed in clause (i) of the definition thereof and one Officer listed in clause
(ii) of the definition thereof. Each Officers' Certificate (other than
certificates provided pursuant to TIA Section 314(a)(4)) shall include the
statements provided for in TIA Section 314(e).
"Offshore Global Note" has the meaning provided in Section 2.01.
"Offshore Physical Notes" has the meaning provided in Section 2.01.
"Offshore Notes Exchange Date" has the meaning provided in Section
2.01.
"Opinion of Counsel" means a written opinion signed by legal counsel
who may be an employee of or counsel to FelCor or FelCor LP. Each such Opinion
of Counsel shall include the statements provided for in TIA Section 314(e).
"Paying Agent" has the meaning provided in Section 2.04, except that,
for the purposes of Article Eight, the Paying Agent shall not be FelCor LP, a
Subsidiary of FelCor LP, any Guarantor or an Affiliate of any of them. The
term "Paying Agent" includes any additional Paying Agent.
"Permanent Offshore Global Note" has the meaning provided in Section
2.01.
"Permitted Investment" means (i) an Investment in FelCor LP or FelCor
or any of their Restricted Subsidiaries or a Person which will, upon the making
of such Investment, become a Restricted Subsidiary or be merged or consolidated
with or into or transfer or convey all or substantially all its assets to,
FelCor LP or FelCor or any of their Restricted Subsidiaries;
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provided that such person's primary business is related, ancillary, incidental
or complementary to the businesses of FelCor LP or FelCor or any of their
respective Restricted Subsidiaries on the date of such Investment; (ii)
Temporary Cash Investments; (iii) payroll, travel and similar advances to cover
matters that are expected at the time of such advances ultimately to be treated
as expenses in accordances with GAAP; and (iv) stock, obligations or securities
received in satisfaction of judgments.
"Physical Notes" has the meaning provided in Section 2.01.
"Preferred Stock" means, with respect to any Person, any and all
shares, interests, participation or other equivalents (however designated,
whether voting or non-voting), which have a preference on liquidation or with
respect to distributions over any other class of Capital Stock, including
preferred partnership interests, whether general or limited, or such Person's
preferred or preference stock, whether outstanding on the Closing Date or
issued thereafter, including, without limitation, all series and classes of
such preferred or preference stock.
"Private Placement Legend" means the legend initially set forth on the
Notes in the form set forth in Section 2.02.
"QIB" means a "qualified institutional buyer" as defined in Rule 144A.
"Redemption Date", when used with respect to any Note to be redeemed,
means the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price", when used with respect to any Note to be redeemed,
means the price at which such Note is to be redeemed pursuant to this
Indenture.
"Reference Treasury Dealer" means each of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co.
Incorporated, NationsBanc Capital Markets, Inc. and Salomon Brothers Inc and
their respective successors; provided, that if any of the foregoing shall cease
to be a primary U.S. Government securities dealer in New York City (a "Primary
Treasury Dealer"), FelCor LP shall substitute therefor another Primary Treasury
Dealer.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any Redemption Date, the average, as determined
by the Trustee, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m. on the
third Business Day preceding such Redemption Date.
"Registrar" has the meaning provided in Section 2.04.
"Registration" has the meaning provided in Section 4.17.
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"Registration Rights Agreement" means the Registration Rights
Agreement, dated September 26, 1997, among FelCor LP, FelCor, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ &
Co. Incorporated, NationsBank Capital Markets, Inc. and Salomon Brothers Inc
and certain permitted assigns specified therein.
"Registration Statement" means the Registration Statement as defined
and described in the Registration Rights Agreement.
"Regular Record Date" for the interest payable on any Interest Payment
Date means the March 15 or September 15 (whether or not a Business Day), as the
case may be, next preceding such Interest Payment Date.
"Regulation S" means Regulation S under the Securities Act.
"Responsible Officer", when used with respect to the Trustee, means
the chairman or any vice chairman of the board of directors, the chairman or
any vice chairman of the executive committee of the board of directors, the
chairman of the trust committee, the president, any vice president, any
assistant vice president, the secretary, any assistant secretary, the
treasurer, any assistant treasurer, the cashier, any assistant cashier, any
trust officer or assistant trust officer, the controller or any assistant
controller or any other officer of the Trustee customarily performing functions
similar to those performed by any of the above designated officers and also
means, with respect to a particular corporate trust matter, any other officer
to whom such matter is referred because of his or her knowledge of and
familiarity with the particular subject.
"Restricted Subsidiary" means any Subsidiary of FelCor LP or FelCor
other than an Unrestricted Subsidiary.
"Rule 144A" means Rule 144A under the Securities Act.
"Securities Act" means the Securities Act of 1933, as amended.
"Secured Indebtedness" means any Indebtedness secured by a Lien upon
the property of FelCor LP or FelCor or any of their respective Restricted
Subsidiaries.
"Senior Indebtedness" means the following obligations of FelCor LP or
FelCor or any of their respective Restricted Subsidiaries, whether outstanding
on the Closing Date or thereafter Incurred: (i) all Indebtedness and all other
monetary obligations (including expenses fees and other monetary obligations)
of FelCor LP and FelCor under the Line of Credit; (ii) all Indebtedness and all
other monetary obligations of FelCor LP or FelCor or any of their respective
Restricted Subsidiaries (other than the Notes), including principal and
interest on such Indebtedness, unless such Indebtedness, by its terms or by the
terms of any agreement or instrument pursuant to which such Indebtedness is
issued is expressly subordinated in right of payment to the Notes; and (iii)
Subsidiary Debt. Senior Indebtedness will also include interest
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accruing subsequent to events of bankruptcy of FelCor LP and FelCor and their
respective Restricted Subsidiaries at the rate provided for the document
governing such Senior Indebtedness, whether or not such interest is an allowed
claim enforceable against the debtor in a bankruptcy case under bankruptcy law.
"Shelf Registration Statement" means the Shelf Registration Statement
as defined in the Registration Rights Agreement.
"Significant Subsidiary" means, at any date of determination, any
Restricted Subsidiary that, together with its Subsidiaries, (i) for the most
recent fiscal year of FelCor LP and FelCor, accounted for more than 10% of the
consolidated revenues of FelCor LP, FelCor and their respective Restricted
Subsidiaries or (ii) as of the end of such fiscal year, was the owner of more
than 10% of the consolidated assets of FelCor LP, FelCor and their respective
Restricted Subsidiaries, all as set forth on the most recently available
consolidated financial statements thereof for such fiscal year.
"S&P" means Standard & Poor's Ratings Services and its successors.
"Specified Date" means any Redemption Date, Change of Control Payment
Date, Excess Proceeds Payment Date or any date on which the Notes first become
due and payable after an Event of Default.
"Stated Maturity" means, (i) with respect to any debt security, the
date specified in such debt security as the fixed date on which the final
installment of principal of such debt security is due and payable and (ii) with
respect to any scheduled installment of principal of or interest on any debt
security, the date specified in such debt security as the fixed date on which
such installment is due and payable.
"Subsidiary" means, with respect to any Person, any corporation,
association or other business entity of which more than 50% of the voting power
of the outstanding Voting Stock is owned, directly or indirectly, by such
Person and one or more other Subsidiaries of such Person and the accounts of
which would be consolidated with those of such Person in its consolidated
financial statements in accordance with GAAP, if such statements were prepared
as of such date.
"Subsidiary Debt" means all unsecured Indebtedness of which a
Restricted Subsidiary is the primary obligor.
"Subsidiary Guarantee" means a Guarantee by each Subsidiary Guarantor
for payment of the Notes by such Subsidiary Guarantor. The Subsidiary Guarantee
will be an unsecured senior obligation of each Subsidiary Guarantor and will be
unconditional regardless of the enforceability of the Notes and the Indenture.
Notwithstanding the foregoing, each Subsidiary Guarantee by a Subsidiary
Guarantor shall provide by its terms that it shall remain in effect only so
long as such Subsidiary Guarantor remains an obligor on other Indebtedness of
FelCor or
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FelCor LP which is pari passu with or subordinated to the Notes and that it
shall be automatically and unconditionally released and discharged upon any
sale, exchange or transfer, to any Person not an Affiliate of FelCor LP or
FelCor, of all of the Capital Stock owned by FelCor LP, FelCor and their
respective Restricted Subsidiaries in, or all or substantially all the assets
of, such Restricted Subsidiary (which sale, exchange or transfer is not then
prohibited by the Indenture).
"Subsidiary Guarantor" means each of (i) FelCor/CSS Hotels, L.L.C., a
Delaware limited liability company, (ii) FelCor/LAX Hotels, L.L.C., a Delaware
limited liability company, (iii) FelCor/CSS Holdings, L.P., a Delaware limited
partnership, (iv) FelCor/St. ▇▇▇▇ Holdings, L.P., a Delaware limited
partnership, (v) FelCor/LAX Holdings, L.P., a Delaware limited partnership and
(vi) FelCor Eight Hotels, L.L.C., a Delaware limited liability company and each
other Restricted Subsidiary that executes a Subsidiary Guarantee in compliance
with Section 4.07.
"Temporary Cash Investment" means any of the following: (i) direct
obligations of the United States of America or any agency thereof or
obligations fully and unconditionally guaranteed by the United States of
America or any agency thereof, (ii) time deposits accounts, certificates of
deposit and money market deposits maturing within 180 days of the date of
acquisition thereof issued by a bank or trust company which is organized under
the laws of the United States of America, any state thereof, and which bank or
trust company has capital, surplus and undivided profits aggregating in excess
of $50 million and has outstanding debt which is rated "A" (or such similar
equivalent rating) or higher by at least one nationally recognized statistical
rating organization (as defined in Rule 436 under the Securities Act) or any
money-market fund sponsored by a registered broker dealer or mutual fund
distributor, (iii) repurchase obligations with a term of not more than 30 days
for underlying securities of the types described in clause (i) above entered
into with a bank meeting the qualifications described in clause (ii) above,
(iv) commercial paper, maturing not more than 90 days after the date of
acquisition, issued by a corporation (other than an Affiliate of FelCor LP or
FelCor) organized and in existence under the laws of the United States of
America, any state thereof with a rating at the time as of which any investment
therein is made of "P-1" (or higher) according to ▇▇▇▇▇'▇ or "A-1" (or higher)
according to S&P, and (v) securities with maturities of six months or less from
the date of acquisition issued or fully and unconditionally guaranteed by any
state, commonwealth or territory of the United States of America, or by any
political subdivision or taxing authority thereof, and rated at least "A" by
S&P or ▇▇▇▇▇'▇.
"Temporary Offshore Global Note" has the meaning provided in Section
2.01.
"TIA" or "Trust Indenture Act" means the Trust Indenture Act of 1939,
as amended (15 U.S. Code Section 77aaa- 77bbb), as in effect on the date this
Indenture was executed, except as provided in Section 9.06.
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"Total Assets" means the sum of (i) Undepreciated Real Estate Assets
and (ii) all other assets of FelCor LP, FelCor and their respective Restricted
Subsidiaries on a consolidated basis determined in conformity with GAAP (but
excluding intangibles and accounts receivables).
"Total Unencumbered Assets" as of any date means the sum of (i) those
Undepreciated Real Estate Assets not securing any portion of Secured
Indebtedness and (ii) all other assets (but excluding intangibles and accounts
receivable) of FelCor LP, FelCor and their respective Restricted Subsidiaries
not securing any portion of Secured Indebtedness determined on a consolidated
basis in accordance with GAAP.
"Trade Payables" means, with respect to any Person, any accounts
payable or any other indebtedness or monetary obligation to trade creditors
created, assumed or Guaranteed by such Person or any of its Subsidiaries
arising in the ordinary course of business in connection with the acquisition
of goods or services.
"Transaction Date" means, with the respect to the Incurrence of any
Indebtedness by FelCor LP or FelCor or any of their respective Restricted
Subsidiaries, the date such Indebtedness is to be Incurred and, with respect to
any Restricted Payment, the date such Restricted Payment is to be made.
"Treasury Rate" means, with respect to any Redemption Date, the rate
per annum equal to the semiannual equivalent yield to maturity of the
Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue
(expressed as a percentage of its principal amount) equal to the Comparable
Treasury Price for such Redemption Date.
"Trustee" means the party named as such in the first paragraph of this
Indenture until a successor replaces it in accordance with the provisions of
Article Seven of this Indenture and thereafter means such successor.
"Undepreciated Real Estate Assets" means, as of any date, the cost
(being the original cost to FelCor LP or FelCor or any of their respective
Restricted Subsidiaries plus capital improvements) of real estate assets of
FelCor LP, FelCor and their Restricted Subsidiaries on such date, before
depreciation and amortization of such real estate assets, determined on a
consolidated basis in conformity with GAAP.
"United States Bankruptcy Code" means the Bankruptcy Reform Act of
1978, as amended and as codified in Title 11 of the United States Code, as
amended from time to time hereafter, or any successor federal bankruptcy law.
"U.S. Global Note" has the meaning provided in Section 2.01.
"U.S. Physical Notes" has the meaning provided in Section 2.01.
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"Units" means the limited partnership units of FelCor LP, that by
their terms are redeemable at the option of the holder thereof and that, if so
redeemed, at the election of FelCor are redeemable for cash or Common Stock of
FelCor.
"Unrestricted Subsidiary" means (i) any Subsidiary of FelCor LP or
FelCor that at the time of determination shall be designated an Unrestricted
Subsidiary by the Board of Directors in the manner provided below; and (ii) any
Subsidiary of an Unrestricted Subsidiary. The Board of Directors may designate
any Restricted Subsidiary (including any newly acquired or newly formed
Subsidiary of FelCor LP or FelCor) to be an Unrestricted Subsidiary unless such
Subsidiary owns any Capital Stock of, or owns or holds any Lien on any property
of, FelCor LP or FelCor or any of their respective Restricted Subsidiaries;
provided that (A) any Guarantee by FelCor LP or FelCor or any of their
respective Restricted Subsidiaries of any Indebtedness of the Subsidiary being
so designated shall be deemed an "Incurrence" of such Indebtedness and an
"Investment" by FelCor LP or FelCor or such Restricted Subsidiary (or all, if
applicable) at the time of such designation, (B) either (I) the Subsidiary to
be so designated has total assets of $1,000 or less or (II) if such Subsidiary
has assets greater than $1,000, such designation would be permitted under
Section 4.04 and (C) if applicable, the Incurrence of Indebtedness and the
Investment referred to in clause (A) of this proviso would be permitted under
Sections 4.03 and 4.04. The Board of Directors may designate any Unrestricted
Subsidiary to be a Restricted Subsidiary; provided that (i) no Default or Event
of Default shall have occurred and be continuing at the time of or after giving
effect to such designation; and (ii) all Liens and Indebtedness of such
Unrestricted Subsidiary outstanding immediately after such designation would,
if Incurred at such time, have been permitted to be Incurred (and shall be
deemed to have been Incurred) for all purposes of the Indenture. Any such
designation by the Board of Directors shall be evidenced to the Trustee by
promptly filing with the Trustee a copy of the Board Resolution giving effect
to such designation and an Officers' Certificate certifying that such
designation complied with the foregoing provisions.
"Unsecured Indebtedness" means any Indebtedness of FelCor LP or FelCor
or any of their respective Restricted Subsidiaries that is not Secured
Indebtedness.
"Voting Stock" means with respect to any Person, Capital Stock of any
class or kind ordinarily having the power to vote for the election of
directors, managers or other voting members of the governing body of such
Person.
"Wholly Owned" means, with respect to any Subsidiary of any Person,
the ownership of all of the outstanding Capital Stock of such Subsidiary (other
than any director's qualifying shares or Investments by individuals mandated by
applicable law) by such Person or one or more Wholly Owned Subsidiaries of such
Person.
SECTION 1.02 INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made
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a part of this Indenture. The following TIA terms used in this Indenture have
the following meanings:
"indenture notes" means the Notes;
"indenture note holder" means a Holder or a Noteholder;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee; and
"obligor" on the indenture securities means FelCor LP, the Guarantors
or any other obligor on the Notes.
All other TIA terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by a rule of the
Commission and not otherwise defined herein have the meanings assigned to them
therein.
SECTION 1.03 RULES OF CONSTRUCTION. Unless the context otherwise
requires:
(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined has the
meaning assigned to it in accordance with GAAP;
(iii) "or" is not exclusive;
(iv) words in the singular include the plural, and words
in the plural include the singular;
(v) provisions apply to successive events and
transactions;
(vi) "herein," "hereof" and other words of similar import
refer to this Indenture as a whole and not to any particular Article,
Section or other subdivision;
(vii) all ratios and computations based on GAAP contained
in this Indenture shall be computed in accordance with the definition
of GAAP set forth in Section 1.01; and
(viii) all references to Sections or Articles refer to
Sections or Articles of this Indenture unless otherwise indicated.
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ARTICLE 2
NOTES
SECTION 2.01 FORM AND DATING. The Notes and the Trustee's
certificate of authentication shall be substantially in the form annexed hereto
as Exhibit A with such appropriate insertions, omissions, substitutions and
other variations as are required or permitted by this Indenture. The Notes may
have notations, legends or endorsements required by law, stock exchange
agreements to which FelCor LP or the Guarantors are subject or usage. FelCor LP
shall approve the form of the Notes and any notation, legend or endorsement on
the Notes. Each Note shall be dated the date of its authentication.
The terms and provisions contained in the form of the Notes annexed
hereto as Exhibit A shall constitute, and are hereby expressly made, a part of
this Indenture. To the extent applicable, FelCor LP, the Guarantors and the
Trustee, by their execution and delivery of this Indenture, expressly agree to
such terms and provisions and to be bound thereby.
Notes offered and sold in reliance on Rule 144A shall be
issued initially in the form of one or more permanent global Notes in
registered form, substantially in the form set forth in Exhibit A
(collectively, the "U.S. Global Notes"), deposited with the Trustee, as
custodian for the Depositary, duly executed by FelCor LP and authenticated by
the Trustee as hereinafter provided. The aggregate principal amount of the
U.S. Global Notes may from time to time be increased or decreased by
adjustments made on the records of the Trustee, as custodian for the Depositary
or its nominee, as hereinafter provided.
Notes offered and sold in offshore transactions in reliance on
Regulation S shall be issued initially in the form of one or more temporary
global Notes in registered form substantially in the form set forth in Exhibit
A (the "Temporary Offshore Global Notes") deposited with the Trustee, as
custodian for the Depositary, duly executed by FelCor LP and authenticated by
the Trustee as hereinafter provided. At any time following 40 days from the
initial issuance of a series of notes (the "Offshore Notes Exchange Date"),
upon receipt by the Trustee and FelCor LP of a certificate substantially in the
form of Exhibit B hereto, one or more permanent global Notes in registered form
substantially in the form set forth in Exhibit A (the "Permanent Offshore
Global Notes"; and together with the Temporary Offshore Global Notes, the
"Offshore Global Notes") duly executed by FelCor LP and authenticated by the
Trustee as hereinafter provided shall be deposited with the Trustee, as
custodian for the Depositary, and the Registrar shall reflect on its books and
records the date and a decrease in the principal amount of the Temporary
Offshore Global Notes in an amount equal to the principal amount of the
beneficial interest in the Temporary Offshore Global Notes transferred.
Notes offered and sold in reliance on Regulation D under the
Securities Act shall be issued in the form of permanent certificated Notes in
registered form in substantially the form set forth in Exhibit A (the "U.S.
Physical Notes"). Notes issued pursuant to Section 2.07 in exchange for
interests in the Offshore Global Note shall be in the form of permanent
certificated
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Notes in registered form substantially in the form set forth in Exhibit A (the
"Offshore Physical Notes").
The Offshore Physical Notes and U.S. Physical Notes are
sometimes collectively herein referred to as the "Physical Notes". The U.S.
Global Notes and the Offshore Global Notes are sometimes referred to herein as
the "Global Notes".
The definitive Notes shall be typed, printed, lithographed or
engraved or produced by any combination of these methods or may be produced in
any other manner permitted by the rules of any securities exchange on which the
Notes may be listed, all as determined by the Officers executing such Notes, as
evidenced by their execution of such Notes.
SECTION 2.02 RESTRICTIVE LEGENDS. Unless and until a Note is
exchanged for an Exchange Note or sold in connection with an effective
Registration pursuant to the Registration Rights Agreement, the U.S. Global
Notes, Temporary Offshore Global Notes and each U.S. Physical Note shall bear
the following legend on the face thereof:
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED
OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S.
PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION
HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL
BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT), OR (B) IT IS NOT A
U.S. PERSON AND IS ACQUIRING THIS NOTE IN AN OFFSHORE TRANSACTION IN COMPLIANCE
WITH REGULATION S UNDER THE SECURITIES ACT, OR (C) IT IS AN INSTITUTIONAL
"ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) OF
REGULATION D UNDER THE SECURITIES ACT) (AN "INSTITUTIONAL ACCREDITED
INVESTOR"), (2) AGREES THAT IT WILL NOT, WITHIN TWO YEARS AFTER THE ORIGINAL
ISSUANCE OF THE NOTES, RESELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT (A) TO
FELCOR OR FELCOR LP OR ANY SUBSIDIARY THEREOF, (B) TO A QUALIFIED INSTITUTIONAL
BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C) OUTSIDE THE
UNITED STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE
SECURITIES ACT, (D) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY
RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), (E) INSIDE THE UNITED STATES
TO AN INSTITUTIONAL ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES
TO THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND
AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF THIS NOTE (THE FORM OF
WHICH LETTER CAN BE OBTAINED FROM THE TRUSTEE) AND IF SUCH TRANSFER IS IN
RESPECT OF AN AGGREGATE PRINCIPAL AMOUNT OF NOTES AT THE TIME OF TRANSFER OF
LESS THAN $100,000, AN OPINION OF COUNSEL ACCEPTABLE TO FELCOR AND FELCOR LP
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THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT, OR (F) PURSUANT TO
AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, AND (3) AGREES
THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS NOTE IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF
THIS NOTE WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE OF THE NOTES, THE HOLDER
MUST CHECK THE APPROPRIATE BOX SET FORTH ON THE REVERSE HEREOF RELATING TO THE
MANNER OF SUCH TRANSFER AND SUBMIT THIS CERTIFICATE TO THE TRUSTEE. IF THE
PROPOSED TRANSFEREE IS AN INSTITUTIONAL ACCREDITED INVESTOR, THE HOLDER MUST,
PRIOR TO SUCH TRANSFER, FURNISH TO THE TRUSTEE AND FELCOR AND FELCOR LP SUCH
CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS EITHER OF THEM MAY
REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN
EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT. AS USED HEREIN, THE TERMS "OFFSHORE
TRANSACTION", "UNITED STATES" AND "U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM
BY REGULATION S UNDER THE SECURITIES ACT. THE INDENTURE CONTAINS A PROVISION
REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS NOTE IN
VIOLATION OF THE FOREGOING RESTRICTIONS.
Each Global Note, whether or not an Exchange Note, shall also bear the
following legend on the face thereof:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, TO FELCOR LP OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY OR SUCH OTHER REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY OR SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT
IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN
SECTION 2.08 OF THE INDENTURE.
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SECTION 2.03 EXECUTION, AUTHENTICATION AND DENOMINATIONS. The
Notes shall be executed by two Officers of FelCor, as general partner of FelCor
LP. The signature of any of these Officers on the Notes may be by facsimile or
manual signature in the name and on behalf of FelCor or FelCor LP, as the case
may be.
If an Officer whose signature is on a Note no longer holds that office
at the time the Trustee or authenticating agent authenticates the Note, the
Note shall be valid nevertheless.
A Note shall not be valid until the Trustee or authenticating agent
manually signs the certificate of authentication on the Note. The signature
shall be conclusive evidence that the Note has been authenticated under this
Indenture.
At any time and from time to time after the execution of this
Indenture, the Trustee or an authenticating agent shall upon receipt of a
Company Order authenticate for original issue Notes in the aggregate principal
amount specified in such Company Order; provided that the Trustee shall be
entitled to receive an Officers' Certificate and an Opinion of Counsel of
FelCor LP in connection with such authentication of Notes. Such Company Order
shall specify the amount of Notes to be authenticated and the date on which the
original issue of Notes is to be authenticated and in case of an issuance of
Notes pursuant to Section 2.15, shall certify that such issuance is in
compliance with Article Four.
The Trustee may appoint an authenticating agent to authenticate Notes.
An authenticating agent may authenticate Notes whenever the Trustee may do so.
Each reference in this Indenture to authentication by the Trustee includes
authentication by such authenticating agent. An authenticating agent has the
same rights as an Agent to deal with FelCor LP or an Affiliate of FelCor LP.
The Notes shall be issuable only in registered form without coupons
and only in denominations of $1,000 in principal amount at maturity and any
integral multiple of $1,000 in excess thereof.
SECTION 2.04 REGISTRAR AND PAYING AGENT. FelCor LP shall maintain
an office or agency where Notes may be presented for registration of transfer
or for exchange (the "Registrar"), an office or agency where Notes may be
presented for payment (the "Paying Agent") and an office or agency where
notices and demands to or upon FelCor LP in respect of the Notes and this
Indenture may be served, which shall be in the Borough of Manhattan, The City
of New York. FelCor LP shall cause the Registrar to keep a register of the
Notes and of their transfer and exchange (the "Note Register"). FelCor LP may
have one or more co-Registrars and one or more additional Paying Agents.
FelCor LP shall enter into an appropriate agency agreement with any
Agent not a party to this Indenture. The agreement shall implement the
provisions of this Indenture that relate to such Agent. FelCor LP shall give
prompt written notice to the Trustee of the name and address of any
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such Agent and any change in the address of such Agent. If FelCor LP fails to
maintain a Registrar, Paying Agent and/or agent for service of notices and
demands, the Trustee shall act as such Registrar, Paying Agent and/or agent for
service of notices and demands. FelCor LP may remove any Agent upon written
notice to such Agent and the Trustee; provided that no such removal shall
become effective until (i) the acceptance of an appointment by a successor
Agent to such Agent as evidenced by an appropriate agency agreement entered
into by FelCor LP and such successor Agent and delivered to the Trustee or (ii)
notification to the Trustee that the Trustee shall serve as such Agent until
the appointment of a successor Agent in accordance with clause (i) of this
proviso. Except with respect to Article 8, FelCor, FelCor LP, any Subsidiary
of FelCor or FelCor LP, or any Affiliate of any of them may act as Paying
Agent, Registrar or co-Registrar, and/or agent for service of notice and
demands.
FelCor LP initially appoints the Trustee as Registrar, Paying Agent,
authenticating agent and agent for service of notice and demands. If, at any
time, the Trustee is not the Registrar, the Registrar shall make available to
the Trustee on or before each Interest Payment Date and at such other times as
the Trustee may reasonably request, the names and addresses of the Holders as
they appear in the Note Register.
SECTION 2.05 PAYING AGENT TO HOLD MONEY IN TRUST. Not later than
each due date of the principal, premium, if any, and interest on any Notes,
FelCor LP shall deposit with the Paying Agent money in immediately available
funds sufficient to pay such principal, premium, if any, and interest so
becoming due; provided that if the Trustee is then serving as Paying Agent,
FelCor LP agrees to use its best efforts to deposit or otherwise transfer such
funds to the Trustee by no later than 11:00 a.m., Atlanta, Georgia time on the
applicable due date. FelCor LP shall require each Paying Agent other than the
Trustee to agree in writing that such Paying Agent shall hold in trust for the
benefit of the Holders or the Trustee all money held by the Paying Agent for
the payment of principal of, premium, if any, and interest on the Notes
(whether such money has been paid to it by FelCor LP or any other obligor on
the Notes), and such Paying Agent shall promptly notify the Trustee of any
default by FelCor LP (or any other obligor on the Notes) in making any such
payment. FelCor LP at any time may require a Paying Agent to pay all money
held by it to the Trustee and account for any funds disbursed, and the Trustee
may at any time during the continuance of any payment default, upon written
request to a Paying Agent, require such Paying Agent to pay all money held by
it to the Trustee and to account for any funds disbursed. Upon doing so, the
Paying Agent shall have no further liability for the money so paid over to the
Trustee. If FelCor, FelCor LP or any Subsidiary of FelCor or FelCor LP or any
Affiliate of any of them acts as Paying Agent, it will, on or before each due
date of any principal of, premium, if any, or interest on the Notes, segregate
and hold in a separate trust fund for the benefit of the Holders a sum of money
sufficient to pay such principal, premium, if any, or interest so becoming due
until such sum of money shall be paid to such Holders or otherwise disposed of
as provided in this Indenture, and will promptly notify the Trustee of its
action or failure to act.
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SECTION 2.06 TRANSFER AND EXCHANGE. The Notes are issuable only
in registered form. A Holder may transfer a Note only by written application
to the Registrar stating the name of the proposed transferee and otherwise
complying with the terms of this Indenture. No such transfer shall be effected
until, and such transferee shall succeed to the rights of a Holder only upon,
final acceptance and registration of the transfer by the Registrar in the Note
Register. Prior to the registration of any transfer by a Holder as provided
herein, FelCor LP, the Guarantors, the Trustee, and any agent of FelCor LP
shall treat the person in whose name the Note is registered as the owner
thereof for all purposes whether or not the Note shall be overdue, and neither
FelCor LP, the Guarantors, the Trustee, nor any such agent shall be affected by
notice to the contrary. Furthermore, any Holder of a Global Note shall, by
acceptance of such Global Note, agree that transfers of beneficial interests in
such Global Note may be effected only through a book entry system maintained by
the Holder of such Global Note (or its agent) and that ownership of a
beneficial interest in the Note shall be required to be reflected in a book
entry. When Notes are presented to the Registrar or a co-Registrar with a
request to register the transfer or to exchange them for an equal principal
amount of Notes of other authorized denominations (including an exchange of
Notes for Exchange Notes), the Registrar shall register the transfer or make
the exchange as requested if its requirements for such transactions are met;
provided that no exchanges of Notes for Exchange Notes shall occur until a
Registration Statement shall have been declared effective by the Commission and
that any Notes that are exchanged for Exchange Notes shall be cancelled by the
Trustee. To permit registrations of transfers and exchanges, FelCor LP shall
execute and the Trustee shall authenticate Notes at the Registrar's request.
No service charge shall be made for any registration of transfer or exchange or
redemption of the Notes, but FelCor LP may require payment of a sum sufficient
to cover any transfer tax or similar governmental charge payable in connection
therewith (other than any such transfer taxes or other similar governmental
charge payable upon exchanges pursuant to Section 2.11, 3.08 or 9.04).
The Registrar shall not be required (i) to issue, register the
transfer of or exchange any Note during a period beginning at the opening of
business 15 days before the day of the mailing of a notice of redemption of
Notes selected for redemption under Section 3.03 and ending at the close of
business on the day of such mailing, or (ii) to register the transfer of or
exchange any Note so selected for redemption in whole or in part, except the
unredeemed portion of any Note being redeemed in part.
SECTION 2.07 BOOK-ENTRY PROVISIONS FOR GLOBAL NOTES. (a) The U.S.
Global Note and Offshore Global Note initially shall (i) be registered in the
name of the Depositary for such Global Notes or the nominee of such Depositary,
(ii) be delivered to the Trustee as custodian for such Depositary and (iii)
bear legends as set forth in Section 2.02.
Members of, or participants in, the Depositary ("Agent Members") shall
have no rights under this Indenture with respect to any Global Note held on
their behalf by the Depositary, or the Trustee as its custodian, or under the
Global Note, and the Depositary may be treated by FelCor LP, the Guarantors,
the Trustee and any agent of FelCor LP, the Guarantors, or the Trustee as the
absolute owner of such Global Note for all purposes whatsoever.
Notwithstanding
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the foregoing, nothing herein shall prevent FelCor LP, the Guarantors, the
Trustee or any agent of FelCor LP, the Guarantors, or the Trustee, from giving
effect to any written certification, proxy or other authorization furnished by
the Depositary or impair, as between the Depositary and its Agent Members, the
operation of customary practices governing the exercise of the rights of a
holder of any Note.
(b) Transfers of a Global Note shall be limited to
transfers of such Global Note in whole, but not in part, to the Depositary, its
successors or their respective nominees. Interests of beneficial owners in a
Global Note may be transferred in accordance with the rules and procedures of
the Depositary and the provisions of Section 2.08. In addition, U.S. Physical
Notes and Offshore Physical Notes shall be transferred to all beneficial owners
in exchange for their beneficial interests in the U.S. Global Note or the
Offshore Global Note, respectively, if (i) the Depositary notifies FelCor LP
that it is unwilling or unable to continue as Depositary for the U.S. Global
Note or the Offshore Global Note, as the case may be, and a successor depositary
is not appointed by FelCor LP within 90 days of such notice, (ii) an Event of
Default has occurred and is continuing and the Registrar has received a request
therefor from the Depositary or (iii) in accordance with the rules and
procedures of the Depositary and the provisions of Section 2.08.
(c) Any beneficial interest in one of the Global Notes
that is transferred to a person who takes delivery in the form of an interest in
the other Global Note will, upon transfer, cease to be an interest in such
Global Note and become an interest in the other Global Note and, accordingly,
will thereafter be subject to all transfer restrictions, if any, and other
procedures applicable to beneficial interests in such other Global Note for as
long as it remains such an interest.
(d) In connection with any transfer of a portion of the
beneficial interests in the U.S. Global Note or Permanent Offshore Global Note
to beneficial owners pursuant to paragraph (b) of this Section, the Registrar
shall reflect on its books and records the date and a decrease in the principal
amount of the U.S. Global Note or Permanent Offshore Global Note in an amount
equal to the principal amount of the beneficial interest in the U.S. Global Note
or Permanent Offshore Global Note to be transferred, and FelCor LP shall
execute, and the Trustee shall authenticate and deliver, one or more U.S.
Physical Notes or Offshore Physical Notes, as the case may be, of like tenor and
amount.
(e) In connection with the transfer of the entire U.S.
Global Note or Offshore Global Note to beneficial owners pursuant to paragraph
(b) of this Section, the U.S. Global Note or Offshore Global Note, as the case
may be, shall be deemed to be surrendered to the Trustee for cancellation, and
FelCor LP shall execute, and the Trustee shall authenticate and deliver, to each
beneficial owner identified by the Depositary in exchange for its beneficial
interest in the U.S. Global Note or Offshore Global Note, as the case may be, an
equal aggregate principal amount of U.S. Physical Notes or Offshore Physical
Notes, as the case may be, of authorized denominations.
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(f) Any U.S. Physical Note delivered in exchange for an
interest in the U.S. Global Note pursuant to paragraph (b), (d) or (e) of this
Section shall, except as otherwise provided by paragraph (f) of Section 2.08,
bear the legend regarding transfer restrictions applicable to the U.S. Physical
Note set forth in Section 2.02.
(g) Any Offshore Physical Note delivered in exchange for
an interest in the Temporary Offshore Global Note pursuant to paragraph (b), (d)
or (e) of this Section shall, except as otherwise provided by paragraph (f) of
Section 2.08, bear the legend regarding transfer restrictions applicable to the
Offshore Physical Note set forth in Section 2.02.
(h) The registered holder of a Global Note may grant
proxies and otherwise authorize any person, including Agent Members and persons
that may hold interests through Agent Members, to take any action which a Holder
is entitled to take under this Indenture or the Notes.
SECTION 2.08 SPECIAL TRANSFER PROVISIONS. Unless and until a Note
is exchanged for an Exchange Note or sold in connection with an effective
Registration Statement pursuant to the Registration Rights Agreement, the
following provisions shall apply:
(a) Transfers to Non-QIB Institutional Accredited
Investors. The following provisions shall apply with respect to the
registration of any proposed transfer of a Note to any Institutional Accredited
Investor which is not a QIB (excluding Non-U.S. Persons):
(i) The Registrar shall register the transfer of any Note,
whether or not such Note bears the Private Placement Legend, if (x) the
requested transfer is two years after the original issuance of the
Notes or (y) the proposed transferee has delivered to the Registrar a
certificate substantially in the form of Exhibit C hereto.
(ii) If the proposed transferor is an Agent Member holding
a beneficial interest in the U.S. Global Note, upon receipt by the
Registrar of (x) the documents, if any, required by paragraph (i) and
(y) instructions given in accordance with the Depositary's and the
Registrar's procedures, the Registrar shall reflect on its books and
records the date and a decrease in the principal amount at maturity of
the U.S. Global Note in an amount equal to the principal amount at
maturity of the beneficial interest in the U.S. Global Note to be
transferred, and FelCor LP shall execute, and the Trustee shall
authenticate and deliver, one or more U.S. Physical Certificates of
like tenor and amount.
(b) Transfers to QIBs. The following provisions shall
apply with respect to the registration of any proposed transfer of a U.S.
Physical Note or an interest in the U.S. Global Note to a QIB (excluding
Non-U.S. Persons):
(i) If the Note to be transferred consists of (x) U.S.
Physical Notes, the Registrar shall register the transfer if such
transfer is being made by a proposed transferor
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who has checked the box provided for on the form of Note stating, or
has otherwise advised FelCor LP and the Registrar in writing, that the
sale has been made in compliance with the provisions of Rule 144A to a
transferee who has signed the certification provided for on the form of
Note stating, or has otherwise advised FelCor LP and the Registrar in
writing, that it is purchasing the Note for its own account or an
account with respect to which it exercises sole investment discretion
and that it and any such account is a QIB within the meaning of Rule
144A, and is aware that the sale to it is being made in reliance on
Rule 144A and acknowledges that it has received such information
regarding FelCor LP and the Guarantors as it has requested pursuant to
Rule 144A or has determined not to request such information and that it
is aware that the transferor is relying upon its foregoing
representations in order to claim the exemption from registration
provided by Rule 144A or (y) an interest in the U.S. Global Note, the
transfer of such interest may be effected only through the book entry
system maintained by the Depositary.
(ii) If the proposed transferee is an Agent Member, and
the Note to be transferred consists of U.S. Physical Notes, upon
receipt by the Registrar of the documents referred to in clause (i) and
instructions given in accordance with the Depositary's and the
Registrar's procedures, the Registrar shall reflect on its books and
records the date and an increase in the principal amount at maturity of
the U.S. Global Note in an amount equal to the principal amount at
maturity of the U.S. Physical Notes, to be transferred, and the Trustee
shall cancel the U.S. Physical Note so transferred.
(c) Transfers of Interests in the Temporary Offshore
Global Note. The following provisions shall apply with respect to registration
of any proposed transfer of interests in the Temporary Offshore Global Note:
(i) The Registrar shall register the transfer of any Note
(x) if the proposed transferee is a Non-U.S. Person and the proposed
transferor has delivered to the Registrar a certificate substantially
in the form of Exhibit D hereto or (y) if the proposed transferee is a
QIB and the proposed transferor has checked the box provided for on the
form of Note stating, or has otherwise advised FelCor LP and the
Registrar in writing, that the sale has been made in compliance with
the provisions of Rule 144A to a transferee who has signed the
certification provided for on the form of Note stating, or has
otherwise advised FelCor LP and the Registrar in writing, that it is
purchasing the Note for its own account or an account with respect to
which it exercises sole investment discretion and that it and any such
account is a QIB within the meaning of Rule 144A, and is aware that the
sale to it is being made in reliance on Rule 144A and acknowledges that
it has received such information regarding FelCor LP and the Guarantors
as it has requested pursuant to Rule 144A or has determined not to
request such information and that it is aware that the transferor is
relying upon its foregoing representations in order to claim the
exemption from registration provided by Rule 144A.
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(ii) If the proposed transferee is an Agent Member, upon
receipt by the Registrar of the documents referred to in clause (i)(y)
above and instructions given in accordance with the Depositary's and
the Registrar's procedures, the Registrar shall reflect on its books
and records the date and an increase in the principal amount at
maturity of the U.S. Global Note, in an amount equal to the principal
amount at maturity of the Temporary Offshore Global Note to be
transferred, and the Trustee shall decrease the amount of the Temporary
Offshore Global Note in such an amount.
(d) Transfers of Interests in the Permanent Offshore
Global Note or Unlegended Offshore Physical Notes. The following provisions
shall apply with respect to any transfer of interests in the Permanent Offshore
Global Note or unlegended Offshore Physical Notes. The Registrar shall register
the transfer of any such Note without requiring any additional certification.
(e) Transfers to Non-U.S. Persons at Any Time. The
following provisions shall apply with respect to any transfer of a Note to a
Non-U.S. Person:
(i) Prior to 40 days from the initial issuance of a series
of notes, the Registrar shall register any proposed transfer of a Note
to a Non-U.S. Person upon receipt of a certificate substantially in the
form of Exhibit D hereto from the proposed transferor. (ii) On and
after 40 days from the initial issuance of a series of notes, the
Registrar shall register any proposed transfer to any Non-U.S. Person
if the Note to be transferred is a U.S. Physical Note or an interest in
the U.S. Global Note, upon receipt of a certificate substantially in
the form of Exhibit D from the proposed transferor.
(ii) (a) If the proposed transferor is an Agent Member
holding a beneficial interest in the U.S. Global Note, upon receipt by
the Registrar of (x) the documents, if any, required by paragraph (ii)
and (y) instructions in accordance with the Depositary's and the
Registrar's procedures, the Registrar shall reflect on its books and
records the date and a decrease in the principal amount at maturity of
the U.S. Global Note in an amount equal to the principal amount at
maturity of the beneficial interest in the U.S. Global Note to be
transferred, and (b) if the proposed transferee is an Agent Member,
upon receipt by the Registrar of instructions given in accordance with
the Depositary's and the Registrar's procedures, the Registrar shall
reflect on its books and records the date and an increase in the
principal amount at maturity of the Offshore Global Note in an amount
equal to the principal amount at maturity of the U.S. Physical Notes or
the U.S. Global Note, as the case may be, to be transferred, and the
Trustee shall cancel the U.S. Physical Note, if any, so transferred or
decrease the amount of the U.S. Global Note.
(f) Private Placement Legend. Upon the transfer, exchange
or replacement of Notes not bearing the Private Placement Legend, the Registrar
shall deliver Notes that do not bear the Private Placement Legend. Upon the
transfer, exchange or replacement of Notes bearing the Private Placement Legend,
the Registrar shall deliver only Notes that bear the Private
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Placement Legend unless either (i) the circumstances contemplated by the second
sentence of the fourth paragraph of Section 2.01 or paragraphs (a)(i)(x) or
(e)(ii) of this Section 2.08 exist or (ii) there is delivered to the Registrar
an Opinion of Counsel reasonably satisfactory to FelCor and FelCor LP and the
Trustee to the effect that neither such legend nor the related restrictions on
transfer are required in order to maintain compliance with the provisions of
the Securities Act.
(g) General. By its acceptance of any Note bearing the
Private Placement Legend, each Holder of such a Note acknowledges the
restrictions on transfer of such Note set forth in this Indenture and in the
Private Placement Legend and agrees that it will transfer such Note only as
provided in this Indenture. The Registrar shall not register a transfer of any
Note unless such transfer complies with the restrictions on transfer of such
Note set forth in this Indenture. In connection with any transfer of Notes,
each Holder agrees by its acceptance of the Notes to furnish the Registrar or
FelCor LP such certifications, legal opinions or other information as either of
them may reasonably require to confirm that such transfer is being made
pursuant to an exemption from, or a transaction not subject to, the
registration requirements of the Securities Act; provided that the Registrar
shall not be required to determine (but may rely on a determination made by
FelCor LP with respect to) the sufficiency of any such certifications, legal
opinions or other information.
The Registrar shall retain copies of all letters, notices and
other written communications received pursuant to Section 2.07 or this Section
2.08. FelCor LP shall have the right to inspect and make copies of all such
letters, notices or other written communications at any reasonable time upon
the giving of reasonable written notice to the Registrar.
SECTION 2.09 REPLACEMENT NOTES. If a mutilated Note is
surrendered to the Trustee or if the Holder claims that the Note has been lost,
destroyed or wrongfully taken, FelCor LP shall issue and the Trustee shall
authenticate a replacement Note of like tenor and amount and bearing a number
not contemporaneously outstanding; provided that the requirements of this
Section 2.09 are met. If required by the Trustee or FelCor LP, an indemnity
bond must be furnished that is sufficient in the judgment of both the Trustee
and FelCor LP to protect FelCor LP, the Guarantors, the Trustee or any Agent
from any loss that any of them may suffer if a Note is replaced. FelCor LP may
charge such Holder for its expenses and the expenses of the Trustee in
replacing a Note. In case any such mutilated, lost, destroyed or wrongfully
taken Note has become or is about to become due and payable, FelCor LP in its
discretion may pay such Note instead of issuing a new Note in replacement
thereof.
Every replacement Note is an additional obligation of FelCor
LP and shall be entitled to the benefits of this Indenture.
SECTION 2.10 OUTSTANDING NOTES. Notes outstanding at any time are
all Notes that have been authenticated by the Trustee except for those
cancelled by it, those delivered to it for cancellation and those described in
this Section 2.10 as not outstanding.
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If a Note is replaced pursuant to Section 2.09, it ceases to be
outstanding unless and until the Trustee and FelCor LP receive proof
satisfactory to them that the replaced Note is held by a bona fide purchaser.
If the Paying Agent (other than FelCor, FelCor LP or an Affiliate of
FelCor or FelCor LP) holds on the maturity date money sufficient to pay Notes
payable on that date, then on and after that date such Notes cease to be
outstanding and interest on them shall cease to accrue.
A Note does not cease to be outstanding because FelCor or FelCor LP or
one of their Affiliates holds such Note; provided that, in determining whether
the Holders of the requisite principal amount of the outstanding Notes have
given any request, demand, authorization, direction, notice, consent or waiver
hereunder, Notes owned by FelCor, FelCor LP, the Guarantors or any other
obligor upon the Notes or any Affiliate of FelCor LP or the Guarantors or of
such other obligor shall be disregarded and deemed not to be outstanding,
except that, in determining whether the Trustee shall be protected in relying
upon any such request, demand, authorization, direction, notice, consent or
waiver, only Notes which the Trustee knows to be so owned shall be so
disregarded. Notes so owned which have been pledged in good faith may be
regarded as outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Notes and that the
pledgee is not FelCor LP or the Guarantors or any other obligor upon the Notes
or any Affiliate of FelCor LP or the Guarantors or of such other obligor.
SECTION 2.11 TEMPORARY NOTES. Until definitive Notes are ready
for delivery, FelCor LP may prepare and the Trustee shall authenticate
temporary Notes. Temporary Notes shall be substantially in the form of
definitive Notes but may have insertions, substitutions, omissions and other
variations determined to be appropriate by the Officers executing the temporary
Notes, as evidenced by their execution of such temporary Notes. If temporary
Notes are issued, FelCor LP will cause definitive Notes to be prepared without
unreasonable delay. After the preparation of definitive Notes, the temporary
Notes shall be exchangeable for definitive Notes upon surrender of the
temporary Notes at the office or agency of FelCor LP designated for such
purpose pursuant to Section 4.02, without charge to the Holder. Upon surrender
for cancellation of any one or more temporary Notes FelCor LP shall execute and
the Trustee shall authenticate and deliver in exchange therefor a like
principal amount of definitive Notes of authorized denominations. Until so
exchanged, the temporary Notes shall be entitled to the same benefits under
this Indenture as definitive Notes.
SECTION 2.12 CANCELLATION. FelCor LP at any time may deliver to
the Trustee for cancellation any Notes previously authenticated and delivered
hereunder which FelCor LP may have acquired in any manner whatsoever, and may
deliver to the Trustee for cancellation any Notes previously authenticated
hereunder which FelCor LP has not issued and sold. The Registrar and the
Paying Agent shall forward to the Trustee any Notes surrendered to them for
transfer, exchange or payment. The Trustee shall cancel all Notes surrendered
for transfer, exchange, payment or cancellation in accordance with its normal
procedure.
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SECTION 2.13 CUSIP NUMBERS. FelCor LP in issuing the Notes may
use "CUSIP," "CINS" or "ISIN" numbers (if then generally in use), and the
Trustee shall use CUSIP, CINS or ISIN numbers, as the case may be, in notices
of redemption or exchange as a convenience to Holders; provided that any such
notice shall state that no representation is made as to the correctness of such
numbers either as printed on the Notes or as contained in any notice of
redemption or exchange and that reliance may be placed only on the other
identification numbers printed on the Notes.
SECTION 2.14 DEFAULTED INTEREST. If FelCor LP or the Guarantors
default in a payment of interest on the Notes, FelCor LP or the Guarantors
shall pay, or shall deposit with the Paying Agent money in immediately
available funds sufficient to pay the defaulted interest, plus (to the extent
lawful) any interest payable on the defaulted interest, to the Persons who are
Holders on a subsequent special record date. A special record date, as used in
this Section 2.14 with respect to the payment of any defaulted interest, shall
mean the 15th day next preceding the date fixed by FelCor LP for the payment of
defaulted interest, whether or not such day is a Business Day. At least 15 days
before the subsequent special record date, FelCor LP shall mail to each Holder
and to the Trustee a notice that states the subsequent special record date, the
payment date and the amount of defaulted interest to be paid.
SECTION 2.15 ISSUANCE OF ADDITIONAL NOTES. FelCor LP may, subject
to Article Four of this Indenture, issue additional Notes under this Indenture.
The Notes issued on the Closing Date and any additional Notes subsequently
issued shall be treated as a single class for all purposes under this
Indenture.
ARTICLE 3
REDEMPTION
SECTION 3.01 OPTIONAL REDEMPTION. The Notes will be redeemable in
whole at any time or in part from time to time, at the option of FelCor LP, at
a price equal to the greater of (i) 100% of the principal amount of such Notes
and (ii) the sum of the present values of the remaining payments of principal
and interest thereon from the Redemption Date to the applicable maturity date
discounted, in each case, to the Redemption Date on a semiannual basis
(assuming a 360- day year consisting of twelve 30-day months) at the Treasury
Rate plus 25 basis points (the "Redemption Price"), plus, in each case, accrued
interest thereon to the Redemption Date.
SECTION 3.02 NOTICES TO TRUSTEE. If FelCor elects to redeem Notes
pursuant to Section 3.01, it shall notify the Trustee in writing of the
Redemption Date and the principal amount of Notes to be redeemed in an
Officers' Certificate at least 45 days before the Redemption Date (unless a
shorter period shall be satisfactory to the Trustee).
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SECTION 3.03 SELECTION OF NOTES TO BE REDEEMED. If less than all
of the Notes are to be redeemed at any time, the Trustee shall select the Notes
to be redeemed in compliance with the requirements, as certified to it by
FelCor LP, of the principal national securities exchange, if any, on which the
Notes are listed or, if the Notes are not listed on a national securities
exchange, by lot or by such other method as the Trustee in its sole discretion
shall deem fair and appropriate; provided that no Notes of $1,000 in principal
amount at maturity shall be redeemed in part.
The Trustee shall make the selection from the Notes outstanding and
not previously called for redemption. Notes in denominations of $1,000 in
principal amount at maturity may only be redeemed in whole. The Trustee may
select for redemption portions (equal to $1,000 in principal amount at maturity
or any integral multiple thereof) of Notes that have denominations larger than
$1,000 in principal amount at maturity. Provisions of this Indenture that
apply to Notes called for redemption also apply to portions of Notes called for
redemption. The Trustee shall notify FelCor LP and the Registrar promptly in
writing of the Notes or portions of Notes to be called for redemption.
SECTION 3.04 NOTICE OF REDEMPTION. With respect to any redemption
of Notes pursuant to Section 3.01, at least 30 days but not more than 60 days
before a Redemption Date, FelCor LP shall mail a notice of redemption by first
class mail to each Holder whose Notes are to be redeemed.
The notice shall identify the Notes to be redeemed and shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) the name and address of the Paying Agent;
(iv) that Notes called for redemption must be surrendered
to the Paying Agent in order to collect the Redemption Price;
(v) that, unless FelCor LP defaults in making the
redemption payment, interest on Notes called for redemption ceases to
accrue on and after the Redemption Date and the only remaining right
of the Holders is to receive payment of the Redemption Price plus
accrued interest to the Redemption Date upon surrender of the Notes to
the Paying Agent;
(vi) that, if any Note is being redeemed in part, the
portion of the principal amount (equal to $1,000 in principal amount
at maturity or any integral multiple thereof) of such Note to be
redeemed and that, on and after the Redemption Date, upon surrender of
such Note, a new Note or Notes in principal amount at maturity equal
to the unredeemed portion thereof will be reissued; and
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(vii) that, if any Note contains a CUSIP, CINS or ISIN
number as provided in Section 2.13, no representation is being made as
to the correctness of the CUSIP, CINS or ISIN number either as printed
on the Notes or as contained in the notice of redemption and that
reliance may be placed only on the other identification numbers
printed on the Notes.
At FelCor LP's request (which request may be revoked by FelCor LP at
any time prior to the time at which the Trustee shall have given such notice to
the Holders), made in writing to the Trustee at least 30 days (or such shorter
period as shall be satisfactory to the Trustee) before a Redemption Date, the
Trustee shall give the notice of redemption in the name and at the expense of
FelCor LP. If, however, FelCor LP gives such notice to the Holders, FelCor LP
shall concurrently deliver to the Trustee an Officers' Certificate stating that
such notice has been given.
SECTION 3.05 EFFECT OF NOTICE OF REDEMPTION. Once notice of
redemption is mailed, Notes called for redemption become due and payable on the
Redemption Date and at the Redemption Price. Upon surrender of any Notes to the
Paying Agent, such Notes shall be paid at the Redemption Price, plus accrued
interest, if any, to the Redemption Date.
Notice of redemption shall be deemed to be given when mailed, whether
or not the Holder receives the notice. In any event, failure to give such
notice, or any defect therein, shall not affect the validity of the proceedings
for the redemption of Notes held by Holders to whom such notice was properly
given.
SECTION 3.06 DEPOSIT OF REDEMPTION PRICE. On or prior to any
Redemption Date, FelCor LP shall deposit with the Paying Agent (or, if FelCor
LP is acting as its own Paying Agent, shall segregate and hold in trust as
provided in Section 2.05) money sufficient to pay the Redemption Price of and
accrued interest on all Notes to be redeemed on that date other than Notes or
portions thereof called for redemption on that date that have been delivered by
FelCor LP to the Trustee for cancellation.
SECTION 3.07 PAYMENT OF NOTES CALLED FOR REDEMPTION. If notice of
redemption has been given in the manner provided above, the Notes or portion of
Notes specified in such notice to be redeemed shall become due and payable on
the Redemption Date at the Redemption Price stated therein, together with
accrued interest to such Redemption Date, and on and after such date (unless
FelCor LP shall default in the payment of such Notes at the Redemption Price
and accrued interest to the Redemption Date, in which case the principal, until
paid, shall bear interest from the Redemption Date at the rate prescribed in
the Notes), such Notes shall cease to accrue interest. Upon surrender of any
Note for redemption in accordance with a notice of redemption, such Note shall
be paid and redeemed by FelCor LP at the Redemption Price, together with
accrued interest, if any, to the Redemption Date; provided that installments of
interest whose Stated Maturity is on or prior to the Redemption Date shall be
payable to the Holders registered as such at the close of business on the
relevant Regular Record Date.
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SECTION 3.08 NOTES REDEEMED IN PART. Upon surrender of any Note
that is redeemed in part, the Company shall execute and the Trustee shall
authenticate and deliver to the Holder a new Note equal in principal amount to
the unredeemed portion of such surrendered Note.
ARTICLE 4
COVENANTS
SECTION 4.01 PAYMENT OF NOTES. FelCor LP shall pay the principal
of, premium, if any, and interest on the Notes on the dates and in the manner
provided in the Notes and this Indenture. An installment of principal, premium,
if any, or interest shall be considered paid on the date due if the Trustee or
Paying Agent (other than FelCor LP, a Subsidiary of FelCor LP, a Guarantor or
any Affiliate of any of them) holds on that date money designated for and
sufficient to pay the installment. If FelCor LP, any Subsidiary of FelCor LP,
a Guarantor or any Affiliate of any of them, acts as Paying Agent, an
installment of principal, premium, if any, or interest shall be considered paid
on the due date if the entity acting as Paying Agent complies with the last
sentence of Section 2.05. As provided in Section 6.09, upon any bankruptcy or
reorganization procedure relative to FelCor LP or any Guarantor, the Trustee
shall serve as the Paying Agent and conversion agent, if any, for the Notes.
FelCor LP shall pay interest on overdue principal, premium, if any,
and interest on overdue installments of interest, to the extent lawful, at the
rate per annum specified in the Notes.
SECTION 4.02 MAINTENANCE OF OFFICE OR AGENCY. FelCor LP will
maintain in the Borough of Manhattan, The City of New York an office or agency
where Notes may be surrendered for registration of transfer or exchange or for
presentation for payment and where notices and demands to or upon FelCor LP in
respect of the Notes and this Indenture may be served. FelCor LP will give
prompt written notice to the Trustee of the location, and any change in the
location, of such office or agency. If at any time FelCor LP shall fail to
maintain any such required office or agency or shall fail to furnish the
Trustee with the address thereof, such presentations, surrenders, notices and
demands may be made or served at the address of the Trustee set forth in
Section 10.02.
FelCor LP may also from time to time designate one or more other
offices or agencies where the Notes may be presented or surrendered for any or
all such purposes and may from time to time rescind such designations; provided
that no such designation or rescission shall in any manner relieve FelCor LP of
its obligation to maintain an office or agency in the Borough of Manhattan, The
City of New York for such purposes. FelCor LP will give prompt written notice
to the Trustee of any such designation or rescission and of any change in the
location of any such other office or agency.
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FelCor LP hereby initially designates First Chicago Trust Company of
New York, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, as agent for
FelCor LP, located in the Borough of Manhattan, The City of New York as such
office of FelCor LP in accordance with Section 2.04.
SECTION 4.03 LIMITATION ON INDEBTEDNESS. (a)(i) Neither FelCor LP
nor FelCor will, and neither FelCor LP nor FelCor will permit any of their
respective Restricted Subsidiaries to, Incur any Indebtedness if, immediately
after giving effect to the Incurrence of such additional Indebtedness, the
aggregate principal amount of all outstanding Indebtedness of FelCor LP, FelCor
and their respective Restricted Subsidiaries on a consolidated basis determined
in accordance with GAAP is greater than 60% of Adjusted Total Assets.
(ii) In addition to the foregoing limitations on the
Incurrence of Indebtedness, neither FelCor LP nor FelCor will, and neither
FelCor LP nor FelCor will permit any of their respective Restricted
Subsidiaries to, Incur any Subsidiary Debt or any Secured Indebtedness if,
immediately after giving effect to the Incurrence of such additional Subsidiary
Debt or Secured Indebtedness, the aggregate principal amount of all outstanding
Subsidiary Debt and Secured Indebtedness of FelCor LP, FelCor and their
respective Restricted Subsidiaries on a consolidated basis is greater than 40%
of Adjusted Total Assets.
(b) In addition to the covenants specified in (a) above, neither
FelCor LP nor FelCor will, and neither FelCor LP nor FelCor will permit any of
their respective Restricted Subsidiaries to, Incur any Indebtedness (other than
the Notes, the Subsidiary Guarantees and other Indebtedness existing on the
Closing Date); provided that FelCor LP or FelCor or any of their respective
Restricted Subsidiaries may Incur Indebtedness if, after giving effect to the
Incurrence of such Indebtedness and the receipt and application of the proceeds
therefrom, the Interest Coverage Ratio of FelCor LP, FelCor and their
respective Restricted Subsidiaries on a consolidated basis would be greater
than 2.0 to 1.
(c) Notwithstanding paragraphs (a) or (b) of this Section 4.03,
FelCor LP or FelCor or any of their respective Restricted Subsidiaries (except
as specified below) may Incur each and all of the following: (i) Indebtedness
outstanding under the Line of Credit at any time in an aggregate principal
amount not to exceed $550 million less any amount of such Indebtedness
permanently repaid as provided under Section 4.10; (ii) Indebtedness owed (A)
to FelCor LP or FelCor evidenced by an unsubordinated promissory note or (B) to
any Restricted Subsidiary; provided that any event which results in any such
Restricted Subsidiary ceasing to be a Restricted Subsidiary or any subsequent
transfer of such Indebtedness (other than to FelCor LP or FelCor or any other
Restricted Subsidiary) shall be deemed, in each case, to constitute an
Incurrence of such Indebtedness not permitted by this clause (ii); (iii)
Indebtedness issued in exchange for, or the net proceeds of which are used to
refinance or refund, outstanding Indebtedness (other than Indebtedness Incurred
under clause (i), (ii), (iv) or (vi) of this paragraph) and any refinancings
thereof in an amount not to exceed the amount so refinanced or refunded (plus
premiums, accrued interest, fees and expenses); provided that Indebtedness the
proceeds of which are used to refinance or refund the Notes or Indebtedness
that is pari passu with or subordinated in right of payment to, the Notes shall
only be permitted under this clause (iii) if (A) in case the Notes are
refinanced in part or the Indebtedness to be refinanced is pari passu with the
Notes, such new Indebtedness, by its terms or by the terms of any agreement or
instrument pursuant to which such new Indebtedness is outstanding, is pari
passu with or is expressly made subordinate in right of
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payment to the remaining Notes, (B) in case the Indebtedness to be refinanced
is subordinated in right of payment to the Notes, such new Indebtedness, by its
terms or by the terms of any agreement or instrument pursuant to which such new
Indebtedness is issued or remains outstanding, is expressly made subordinate in
right of payment to the Notes at least to the extent that the Indebtedness to
be refinanced is subordinated to the Notes and (C) such new indebtedness,
determined as of the date of Incurrence of such new Indebtedness, does not
mature prior to the Stated Maturity of the Indebtedness to be refinanced or
refunded, and the Average Life of such New Indebtedness is at least equal to
the remaining Average Life of the Indebtedness to be refinanced or refunded;
and provided further that in no event may Indebtedness of FelCor LP or FelCor
that is pari passu with or subordinated in right of payment to the Notes be
refinanced by means of any Indebtedness of any Restricted Subsidiary pursuant
to this clause (iii); (iv) Indebtedness (A) in respect of performance, surety
or appeal bonds provided in the ordinary course of business, (B) under Currency
Agreements and Interest Rate Agreements; provided that such agreements (a) are
designed solely to protect FelCor LP or FelCor or any of their respective
Restricted Subsidiaries against fluctuations in foreign currency exchange rates
or interest rates and (b) do not increase the Indebtedness of the obligor
outstanding at any time other than as a result of fluctuations in foreign
currency exchange rates or interest rates or by reason of fees, indemnities and
compensation payable thereunder, and (C) arising from agreements providing for
indemnification, adjustment of purchase price or similar obligations, or from
Guarantees or letters of credit, surety bonds or performance bonds securing any
obligations of FelCor LP or FelCor or any of their respective Restricted
Subsidiaries pursuant to such agreements, in any case Incurred in connection
with the disposition of any business, assets or Restricted Subsidiary (other
than Guarantees of Indebtedness Incurred by any Person acquiring all or any
portion of such business, assets or Restricted Subsidiary for the purpose of
financing such acquisition), in a principal amount not to exceed the gross
proceeds actually received by FelCor LP, FelCor and their respective Restricted
Subsidiaries on a consolidated basis in connection with such disposition; (v)
Indebtedness of FelCor LP or FelCor, to the extent the net proceeds thereof are
promptly (A) used to purchase Notes tendered in an Offer to Purchase made as a
result of a Change in Control or (B) deposited to defease the Notes in
accordance with Section 8.02 or 8.03; or (vi) Guarantees of the Notes and
Guarantees of Indebtedness of FelCor LP or FelCor by any of their respective
Restricted Subsidiaries provided the guarantee of such Indebtedness is
permitted by and made in accordance with Section 4.07.
(d) Notwithstanding any other provision of this Section 4.03, the
maximum amount of Indebtedness that FelCor LP or FelCor or any of their
respective Restricted Subsidiaries may Incur pursuant to this Section 4.03
shall not be deemed to be exceeded, with respect to any outstanding
Indebtedness due solely to the result of fluctuations in the exchange rates of
currencies.
(e) For purposes of determining any particular amount of
Indebtedness under this Section 4.03, (1) Indebtedness Incurred under the Line
of Credit on or prior to the Closing Date shall be treated as Incurred pursuant
to clause (i) of paragraph (c) of this Section 4.03, (2) Guarantees, Liens or
obligations with respect to letters of credit supporting Indebtedness
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otherwise included in the determination of such particular amount shall not be
included and (3) any Liens granted pursuant to the equal and ratable provisions
referred to in Section 4.09 shall not be treated as Indebtedness. For purposes
of determining compliance with Section 4.03, in the event that an item of
Indebtedness meets the criteria of more than one of the types of Indebtedness
described in the above clauses (other than Indebtedness referred to in clause
(2) of the preceding sentence), each of FelCor LP and FelCor, in its sole
discretion, shall classify such item of Indebtedness and only be required to
include the amount and type of such Indebtedness in one of such clauses;
provided that FelCor LP and FelCor must classify such item of Indebtedness in
an identical fashion.
SECTION 4.04 LIMITATION ON RESTRICTED PAYMENTS. Neither FelCor LP
nor FelCor will, and neither FelCor LP nor FelCor will permit any of their
respective Restricted Subsidiaries to, directly or indirectly, (i) declare or
pay any dividend or make any distribution on or with respect to its Capital
Stock (other than (x) dividends or distributions payable solely in shares of
its Capital Stock (other than Disqualified Stock) or in options, warrants or
other rights to acquire shares of such Capital Stock and (y) pro rata dividends
or distributions on Common Stock of FelCor LP or any Restricted Subsidiary held
by minority stockholders) held by Persons other than FelCor LP or FelCor or any
of their respective Restricted Subsidiaries, (ii) purchase, redeem, retire or
otherwise acquire for value any shares of Capital Stock of (A) FelCor LP,
FelCor or an Unrestricted Subsidiary (including options, warrants or other
rights to acquire such shares of Capital Stock) held by any Person other than
FelCor LP or FelCor or any of their respective Restricted Subsidiaries unless
in connection with such purchase the Unrestricted Subsidiary is designated as a
Restricted Subsidiary or (B) a Restricted Subsidiary (including options,
warrants or other rights to acquire such shares of Capital Stock) held by an
Affiliate of FelCor LP or FelCor (other than a Wholly Owned Restricted
Subsidiary) or any holder (or any Affiliate of such holder) of 5% or more of
the Capital Stock of FelCor LP or FelCor, (iii) make any voluntary or optional
principal payment, or voluntary or optional redemption, repurchase, defeasance,
or other acquisition or retirement for value, of Indebtedness of FelCor LP or
FelCor that is subordinated in right of payment to the Notes or (iv) make an
Investment, other than a Permitted Investment, in any Person (such payments or
any other actions described in clauses (i) through (iv) above being
collectively "Restricted Payments") if, at the time of, and after giving effect
to, the proposed Restricted Payment: (A) a Default or Event of Default shall
have occurred and be continuing, (B) FelCor LP or FelCor could not Incur at
least $1.00 of Indebtedness under paragraphs (a) and (b) of Section 4.03 or (C)
the aggregate amount of all Restricted Payments (the amount, if other than in
cash, to be determined in good faith by the Board of Directors, whose
determination shall be conclusive and evidenced by a Board Resolution) made
after the Closing Date shall exceed the sum of (1) 95% of the aggregate amount
of the Funds From Operations (or, if the Funds From Operations is a loss, minus
100% of the amount of such loss) (determined by excluding income resulting from
transfers of assets by FelCor LP or FelCor or any of their respective
Restricted Subsidiaries to an Unrestricted Subsidiary) accrued on a cumulative
basis during the period (taken as one accounting period) beginning on the first
day of the fiscal quarter in which the Closing Date occurs and ending on the
last day of the last fiscal quarter preceding the Transaction Date for which
reports have been filed with the Commission or provided to the Trustee pursuant
to
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Section 4.17 plus (2) the aggregate Net Cash Proceeds received by FelCor LP or
FelCor after the Closing Date from the issuance and sale permitted by the
Indenture of its Capital Stock (other than Disqualified Stock) to a Person who
is not a Subsidiary of FelCor LP or FelCor, including an issuance or sale
permitted by the Indenture of Indebtedness of FelCor LP or FelCor for cash
subsequent to the Closing Date upon the conversion of such Indebtedness into
Capital Stock (other than Disqualified Stock) of FelCor LP or FelCor, or from
the issuance to a Person who is not a Subsidiary of FelCor LP or FelCor of any
options, warrants or other rights to acquire Capital Stock of FelCor LP or
FelCor (in each case, exclusive of any Disqualified Stock or any options,
warrants or other rights that are redeemable at the option of the holder, or
are required to be redeemed, prior to the Stated Maturity of the Notes), plus
(3) an amount equal to the net reduction in Investments (other than reductions
in Permitted Investments) in any Person resulting from payments of interest on
Indebtedness, dividends, repayments of loans or advances, or other transfers of
assets, in each case to FelCor LP or FelCor or any of their respective
Restricted Subsidiaries or from the Net Cash Proceeds from the sale of any such
Investment (except, in each case, to the extent any such payment or proceeds
are included in the calculation of Funds From Operations) or from
redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries (valued
in each case as provided in the definition of "Investments") not to exceed, in
each case, the amount of Investments previously made by FelCor LP, FelCor and
their respective Restricted Subsidiaries in such Person or Unrestricted
Subsidiary, plus (4) the purchase price of noncash tangible assets acquired in
exchange for an issuance of Capital Stock (other than Disqualified Stock) of
FelCor LP or FelCor; provided that in any event FelCor LP or FelCor may declare
or pay any dividend or make any distribution that is necessary to maintain
FelCor's status as a REIT under the Code if (1) the aggregate principal amount
of all outstanding Indebtedness of FelCor LP or FelCor on a consolidated basis
at such time is less than 60% of Adjusted Total Assets and (2) no Default or
Event of Default shall have occurred and be continuing.
The provisions of the foregoing paragraph shall not be violated by
reason of: (i) the payment of any dividend within 60 days after the date of
declaration thereof if, at said date of declaration, such payment would comply
with the foregoing paragraph; (ii) the redemption, repurchase, defeasance or
other acquisition or retirement for value of Indebtedness that is subordinated
in right of payment to the Notes including premium, if any, and accrued and
unpaid interest, with the proceeds of, or in exchange for, Indebtedness
Incurred under clause (iii) of paragraph (c) of Section 4.03; (iii) the
repurchase, redemption or other acquisition of Capital Stock of FelCor LP or
FelCor or an Unrestricted Subsidiary (or options, warrants or other rights to
acquire such Capital Stock) in exchange for, or out of the proceeds of a
substantially
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concurrent issuance of, shares of Capital Stock (other than Disqualified Stock)
of FelCor LP or FelCor (or options, warrants or other rights to acquire such
Capital Stock); (iv) the making of any principal payment on, or the repurchase,
redemption, retirement, defeasance or other acquisition for value of,
Indebtedness of FelCor LP or FelCor which is subordinated in right of payment
to the Notes in exchange for, or out of the proceeds of, a substantially
concurrent issuance of, shares of the Capital Stock (other than Disqualified
Stock) of FelCor LP or FelCor (or options, warrants or other rights to acquire
such Capital Stock); (v) payments or distributions, to dissenting stockholders
pursuant to applicable law pursuant to or in connection with a consolidation,
merger or transfer of assets that complies with the provisions of the Indenture
applicable to mergers, consolidations and transfers of all or substantially all
of the property and assets of FelCor LP or FelCor; (vi) Investments in any
Person or Persons in an aggregate amount not to exceed $150 million; or (vii)
the payment of any dividend or distribution on the Capital Stock of FelCor LP
or FelCor declared prior to the Closing Date, provided that, except in the case
of clauses (i), (iii) and (vii), no Default or Event of Default shall have
occurred and be continuing or occur as a direct consequence of the actions or
payments set forth therein.
Each Restricted Payment permitted pursuant to the preceding paragraph
(other than the Restricted Payment referred to in clause (ii) thereof, an
exchange of Capital Stock for Capital Stock or Indebtedness referred to in
clause (iii) or (iv) thereof, an Investment referred to in clause (vi) thereof
or the dividends or distributions referred to in clause (vii) thereof), and the
Net Cash Proceeds from any issuance of Capital Stock referred to in clauses
(iii) and (iv), shall be included in calculating whether the conditions of
clause (C) of the first paragraph of this Section 4.04 have been met with
respect to any subsequent Restricted Payments.
SECTION 4.05 LIMITATION ON DIVIDEND AND OTHER PAYMENT RESTRICTIONS
AFFECTING RESTRICTED SUBSIDIARIES. Neither FelCor LP nor FelCor will, and
neither FelCor LP nor FelCor will permit any of their respective Restricted
Subsidiaries to, create or otherwise cause or suffer to exist or become
effective any consensual encumbrance or restriction of any kind on the ability
of any Restricted Subsidiary to (i) pay dividends or make any other
distributions permitted by applicable law on any Capital Stock of such
Restricted Subsidiary owned by FelCor LP or FelCor or any of their respective
Restricted Subsidiaries, (ii) pay any Indebtedness owed to FelCor LP, FelCor or
any other Restricted Subsidiary, (iii) make loans or advances to FelCor LP,
FelCor or any other Restricted Subsidiary or (iv) transfer its property or
assets to FelCor LP, FelCor or any other Restricted Subsidiary.
The foregoing provisions shall not restrict any encumbrances or
restrictions: (i) existing on the Closing Date in the Indenture or in the Line
of Credit, and any extensions, refinancings, renewals or replacements of such
agreements; provided that the encumbrances and restrictions in any such
extensions, refinancings, renewals or replacements are no less favorable in any
material respect to the Holders than those encumbrances or restrictions that
are then in effect and that are being extended, refinanced, renewed or
replaced; (ii) existing under or by reason of applicable law; (iii) existing
with respect to any Person or the property or assets of such Person acquired by
FelCor LP, FelCor or any Restricted Subsidiary, existing at the time of
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such acquisition and not incurred in contemplation thereof, which encumbrances
or restrictions are not applicable to any Person or the property or assets of
any Person other than such Person or the property or assets of such Person so
acquired; (iv) in the case of clause (iv) of the first paragraph of this
Section 4.05, (A) that restrict in a customary manner the subletting,
assignment or transfer of any property or asset that is a lease, license,
conveyance or contract or similar property or asset, (B) existing by virtue of
any transfer of, agreement to transfer, option or right with respect to, or
Lien on, any property or assets of FelCor LP, FelCor or any Restricted
Subsidiary not otherwise prohibited by the Indenture or (C) arising or agreed
to in the ordinary course of business, not relating to any Indebtedness, and
that do not, individually or in the aggregate, detract from the value of
property or assets of FelCor LP, FelCor or any Restricted Subsidiary in any
manner material to FelCor LP, FelCor and their respective Restricted
Subsidiaries taken as a whole; (v) with respect to a Restricted Subsidiary and
imposed pursuant to an agreement that has been entered into for the sale or
disposition of all or substantially all of the Capital Stock of, or property
and assets of, such Restricted Subsidiary; or (vi) contained in the terms of
any Indebtedness or any agreement pursuant to which such Indebtedness was
issued if (A) the encumbrance or restriction applies only in the event of a
payment default or a default with respect to a financial covenant contained in
such Indebtedness or agreement, (B) the encumbrance or restriction is not
materially more disadvantageous to the Holders of the Notes than is customary
in comparable financings (as determined by FelCor LP and FelCor) and (C) each
of FelCor LP and FelCor determines that any such encumbrance or restriction
will not materially affect such Persons' ability to make principal or interest
payments on the Notes. Nothing contained in this Section 4.05 shall prevent
FelCor LP, FelCor or any Restricted Subsidiary from (1) creating, incurring,
assuming or suffering to exist any Liens otherwise permitted in Section 4.09 or
(2) restricting the sale or other disposition of property or assets of FelCor
LP or FelCor or any of their respective Restricted Subsidiaries that secure
Indebtedness of FelCor LP, FelCor or any of their respective Restricted
Subsidiaries.
SECTION 4.06 LIMITATION ON THE ISSUANCE AND SALE OF CAPITAL STOCK
OF RESTRICTED SUBSIDIARIES. Neither FelCor LP nor FelCor will sell, and
neither FelCor LP nor FelCor will permit any of their respective Restricted
Subsidiaries, directly or indirectly, to issue or sell, any shares of Capital
Stock of a Restricted Subsidiary (including options, warrants or other rights
to purchase shares of such Capital Stock) except (i) to FelCor LP, FelCor or a
Wholly Owned Restricted Subsidiary; (ii) issuances of director's qualifying
shares or sales to individuals of shares of Restricted Subsidiaries, to the
extent required by applicable law or to the extent necessary to obtain local
liquor licenses; (iii) if, immediately after giving effect to such issuance or
sale, such Restricted Subsidiary would no longer constitute a Subsidiary and
any Investment in such Person remaining after giving effect to such issuance or
sale would have been permitted to be made under Section 4.04 if made on the
date of such issuance or sale or (iv) sales of not greater than 20% of the
Capital Stock of a newly-created Restricted Subsidiary made in connection with,
or in contemplation of, the acquisition or development by such Restricted
Subsidiary of one or more properties to any Person that is, or is an Affiliate
of,
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the entity that provides, franchise, management or other services, as the case
may be, to one or more properties owned by such Restricted Subsidiary.
SECTION 4.07 LIMITATION ON ISSUANCES OF GUARANTEES BY RESTRICTED
SUBSIDIARIES. Neither FelCor LP nor FelCor will permit any of their respective
Restricted Subsidiaries, directly or indirectly, to Guarantee any Indebtedness
of FelCor LP or FelCor which is pari passu with or subordinate in right of
payment to the Notes ("Guaranteed Indebtedness"), unless (i) such Restricted
Subsidiary simultaneously executes and delivers a supplemental indenture to the
Indenture providing for a Subsidiary Guarantee by such Restricted Subsidiary
and (ii) such Restricted Subsidiary waives and will not in any manner
whatsoever claim or take the benefit or advantage of, any rights of
reimbursement, indemnity or subrogation or any other rights against FelCor LP,
FelCor or any other Restricted Subsidiary as a result of any payment by such
Restricted Subsidiary under its Subsidiary Guarantee; provided that this
paragraph shall not be applicable to any Guarantee of any Restricted Subsidiary
that existed at the time such Person became a Restricted Subsidiary and was not
Incurred in connection with, or in contemplation of, such person becoming a
Restricted Subsidiary. If the Guaranteed Indebtedness is (A) pari passu with
the Notes, then the Guarantee of such Guaranteed Indebtedness shall be pari
passu with, or subordinated to, the Subsidiary Guarantee or (B) subordinated to
the Notes, then the Guarantee of such Guarantee Indebtedness shall be
subordinated to the Subsidiary Guarantee at least to the extent that the
Guaranteed Indebtedness is subordinated to the Notes.
Notwithstanding the foregoing, any Subsidiary Guarantee by a
Restricted Subsidiary may provide by its terms that it shall be automatically
and unconditionally released and discharged upon (i) any sale, exchange or
transfer, to any Person not an Affiliate of FelCor LP or FelCor, of all of
Capital Stock held by FelCor LP, FelCor and their respective Restricted
Subsidiaries in, or all or substantially all the assets of, such Restricted
Subsidiary (which sale, exchange or transfer is not prohibited by the
Indenture) or (ii) the release or discharge of the Guarantee which resulted in
the creation of such Subsidiary Guarantee, except a discharge or release by or
as a result of payment under such Guarantee.
SECTION 4.08 LIMITATION ON TRANSACTIONS WITH AFFILIATES. Neither
FelCor LP nor FelCor will, and neither FelCor LP nor FelCor will permit any of
their respective Restricted Subsidiaries to, directly or indirectly, enter
into, renew or extend any transaction (including, without limitations, the
purchase, sale, lease or exchange of property or assets, or the rendering of
any service) with any holder (or any Affiliate of such holder) of 5% or more of
any class of Capital Stock of FelCor LP or FelCor or with any Affiliate of
FelCor LP or FelCor or any of their respective Restricted Subsidiaries, except
upon fair and reasonable terms no less favorable to FelCor LP, FelCor or such
Restricted Subsidiary than could be obtained, at the time of such transaction
or, if such transaction is pursuant to a written agreement, at the time of the
execution of the agreement providing therefor, in a comparable arm's-length
transaction with a Person that is not such a holder or an Affiliate.
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The foregoing limitation does not limit, and shall not apply to (i)
transactions (A) approved by a majority of the independent directors of FelCor
or (B) for which FelCor LP, FelCor or any Restricted Subsidiary delivers to the
Trustee a written opinion of a nationally recognized investment banking firm
stating that the transaction is fair to FelCor LP, FelCor or such Restricted
Subsidiary from a financial point of view; (ii) any transaction solely between
FelCor LP or FelCor and any of their respective Wholly Owned Restricted
Subsidiaries or solely between Wholly Owned Restricted Subsidiaries; (iii) the
payment of reasonable and customary fees and expenses to directors of FelCor
who are not employees of FelCor; (iv) any payments or other transactions
pursuant to any tax-sharing agreement between FelCor LP or FelCor and any other
Person with which FelCor LP or FelCor files a consolidated tax return or with
which FelCor LP or FelCor is part of a consolidated group for tax purposes; or
(v) any Restricted Payments not prohibited by Section 4.04. Notwithstanding
the foregoing, any transaction or series of related transactions covered by the
first paragraph of Section 4.08 and not covered by clauses (ii) through (v) of
this paragraph, (a) the aggregate amount of which exceeds $2 million in value
or relates to the leasing of one or more hotel properties to DJONT, must be
approved or determined to be fair in the manner provided for in clause (i)(A)
or (B) above and (b) the aggregate amount of which exceeds $5 million in value,
must be determined to be fair in the manner provided for in clause (i)(B)
above.
SECTION 4.09 LIMITATION ON LIENS. Neither FelCor LP nor FelCor
shall secure any Indebtedness under the Line of Credit by a Lien unless
contemporaneously therewith effective provision is made to secure the Notes
equally and ratably with the Indebtedness under the Line of Credit for so long
as the Indebtedness under the Line of Credit is secured by a Lien.
SECTION 4.10 LIMITATION ON ASSET SALES. Neither FelCor LP nor
FelCor will, and neither FelCor LP or FelCor will permit any of their
respective Restricted Subsidiaries to, consummate any Asset Sale, unless (i)
the consideration received by FelCor LP, FelCor or such Restricted Subsidiary
is at least equal to the fair market value of the assets sold or disposed of
and (ii) at least 75% of the consideration received consists of cash or
Temporary Cash Investments; provided, with respect to the sale of one or more
hotel properties that up to 75% of the consideration may consist of
indebtedness of the purchaser of such hotel properties; provided, further, that
such indebtedness is secured by a first priority Lien on the hotel property or
properties sold. In the event and to the extent that the Net Cash Proceeds
received by FelCor LP, FelCor or such Restricted Subsidiary from one or more
Asset Sales occurring on or after the Closing Date in any period of 12
consecutive months exceed 10% of Adjusted Consolidated Net Tangible Assets
(determined as of the date closest to the commencement of such 12-month period
for which a consolidated balance sheet of FelCor LP, FelCor and their
respective Restricted Subsidiaries has been filed with the Commission or
provided to the Trustee pursuant to Section 4.17), then FelCor LP or FelCor
shall or shall cause the relevant Restricted Subsidiary to (i) within twelve
months after the date Net Cash Proceeds so received exceed 10% of Adjusted
Consolidated Net Tangible Assets (A) apply an amount equal to such excess Net
Cash Proceeds to permanently reduce Senior Indebtedness of FelCor LP, FelCor,
or any Restricted Subsidiary or Indebtedness of any other Restricted
Subsidiary, in each case
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owing to a Person other than FelCor LP, FelCor or any of their respective
Restricted Subsidiaries or (B) invest an equal amount, or the amount not so
applied pursuant to clause (A) (or enter into a definitive agreement committing
to so invest within 12 months after the date of such agreement), in property or
assets (other than current assets) of a nature or type or that are used in a
business (or in a Restricted Subsidiary having property and assets of a nature
or type, or engaged in a business) similar or related to the nature or type of
the property and assets of, or the business of, FelCor LP or FelCor or any of
their respective Restricted Subsidiaries existing on the date of such
investment and (ii) apply (no later than the end of the 12-month period
referred to in clause (i)) such excess Net Cash Proceeds (to the extent not
applied pursuant to clause (i)) as provided in the following paragraph of this
Section 4.10. The amount of such excess Net Cash Proceeds required to be
applied (or to be committed to be applied) during such 12-month period as set
forth in clause (i) of the preceding sentence and not applied as so required by
the end of such period shall constitute "Excess Proceeds."
If, as of the first day of any calendar month, the aggregate amount of
Excess Proceeds not previously subject to an Offer to Purchase pursuant to this
Section 4.10 totals at least $10 million, FelCor LP must commence, not later
than the fifteenth Business Day of such month, and consummate an Offer to
Purchase from the Holders on a pro rata basis an aggregate principal amount of
Notes equal to the Excess Proceeds on such date, at a purchase price equal to
100% of the principal amount of the Notes, plus, in each case, accrued interest
(if any) to the Payment Date.
SECTION 4.11 REPURCHASE OF NOTES UPON A CHANGE OF CONTROL. FelCor
LP must commence, within 30 days of the occurrence of a Change of Control, and
consummate an Offer to Purchase for all Notes then outstanding, at a purchase
price equal to 101% of the principal amount thereof, plus accrued interest (if
any) to the Payment Date.
SECTION 4.12 EXISTENCE. Subject to Articles Four and Five of this
Indenture, FelCor LP and the Guarantors will do or cause to be done all things
necessary to preserve and keep in full force and effect their existence and the
existence of each Restricted Subsidiary in accordance with the respective
organizational documents of FelCor LP, the Guarantors and each Restricted
Subsidiary and the rights (whether pursuant to charter, partnership
certificate, agreement, statute or otherwise), material licenses and franchises
of FelCor LP, the Guarantors and each Restricted Subsidiary; provided that
neither FelCor nor FelCor LP shall be required to preserve any such right,
license or franchise, or the existence of any Restricted Subsidiary or
Subsidiary Guarantor, if the maintenance or preservation thereof is no longer
desirable in the conduct of the business of FelCor LP, the Guarantors and their
Restricted Subsidiaries taken as a whole.
SECTION 4.13 PAYMENT OF TAXES AND OTHER CLAIMS. FelCor and FelCor
LP will pay or discharge and shall cause each of their respective Restricted
Subsidiaries to pay or discharge, or cause to be paid or discharged, before the
same shall become delinquent (i) all material taxes, assessments and
governmental charges levied or imposed upon (a) FelCor and FelCor LP or any
such Restricted Subsidiary, (b) the income or profits of any such Restricted
Subsidiary which is a
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corporation or (c) the property of FelCor, FelCor LP or any such Restricted
Subsidiaries and (ii) all material lawful claims for labor, materials and
supplies that, if unpaid, might by law become a lien upon the property of
FelCor, FelCor LP or any such Restricted Subsidiary; provided that FelCor and
FelCor LP shall not be required to pay or discharge, or cause to be paid or
discharged, any such tax, assessment, charge or claim the amount, applicability
or validity of which is being contested in good faith by appropriate
proceedings and for which adequate reserves have been established.
SECTION 4.14 MAINTENANCE OF PROPERTIES AND INSURANCE. FelCor and
FelCor LP will cause all properties used or useful in the conduct of their
business or the business of any of their Restricted Subsidiaries, to be
maintained and kept in good condition, repair and working order and supplied
with all necessary equipment and will cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof, all as in the
judgment of FelCor or FelCor LP may be necessary so that the business carried
on in connection therewith may be properly conducted at all times; provided
that nothing in this Section 4.14 shall prevent FelCor, FelCor LP or any such
Restricted Subsidiary from discontinuing the use, operation or maintenance of
any of such properties or disposing of any of them, if such discontinuance or
disposal is, in the judgment of FelCor, FelCor LP, desirable in the conduct of
the business of FelCor, FelCor LP or such Restricted Subsidiary.
Each of FelCor and FelCor LP will provide or cause to be provided, for
itself and its Restricted Subsidiaries, insurance (including appropriate
self-insurance) against loss or damage of the kinds customarily insured against
by corporations similarly situated and owning like properties, with reputable
insurers or with the government of the United States of America, or an agency
or instrumentality thereof, in such amounts, with such deductibles and by such
methods as shall be customary for corporations similarly situated in the
industry in which FelCor, FelCor LP or such Restricted Subsidiary, as the case
may be, is then conducting business.
SECTION 4.15 NOTICE OF DEFAULTS. In the event that FelCor LP
becomes aware of any Default or Event of Default, FelCor LP, promptly after it
becomes aware thereof, will give written notice thereof to the Trustee.
SECTION 4.16 COMPLIANCE CERTIFICATES. (a) FelCor and FelCor LP
shall deliver to the Trustee, within 45 days after the end of each fiscal
quarter (90 days after the end of the last fiscal quarter of each year), an
Officers' Certificate stating whether or not the signers know of any Default or
Event of Default that occurred during such fiscal quarter. In the case of the
Officers' Certificate delivered within 90 days of the end of FelCor's and
FelCor LP's fiscal year, such certificate shall contain a certification from
the principal executive officer, principal financial officer or principal
accounting officer that a review has been conducted of the activities of FelCor
and FelCor LP and their Restricted Subsidiaries and FelCor's and FelCor LP's
and their Restricted Subsidiaries' performance under this Indenture and that,
to the knowledge of such Officers, FelCor and FelCor LP have complied with all
conditions and covenants under this Indenture. For purposes of this Section
4.16, such compliance shall be determined without
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regard to any period of grace or requirement of notice provided under this
Indenture. If they do know of such a Default or Event of Default, the
certificate shall describe any such Default or Event of Default and its status.
The first certificate to be delivered pursuant to this Section 4.16(a) shall be
for the first fiscal quarter beginning after the execution of this Indenture.
(a) So long as (and to the extent) not prohibited by the
then current recommendations of the American Institute of Certified Public
Accountants, FelCor and FelCor LP shall deliver to the Trustee, within 90 days
after the end of FelCor's and FelCor LP's fiscal year, a certificate signed by
FelCor's and FelCor LP's independent certified public accountants stating (i)
that their audit examination has included a review of the terms of this
Indenture and the Notes as they relate to accounting matters, (ii) that they
have read the most recent Officers' Certificate delivered to the Trustee
pursuant to paragraph (a) of this Section 4.16 and (iii) whether, in connection
with their audit examination, anything came to their attention that caused them
to believe that FelCor and FelCor LP were not in compliance with any of the
terms, covenants, provisions or conditions of Article Four and Section 5.01 of
this Indenture as they pertain to accounting matters and, if any Default or
Event of Default has come to their attention, specifying the nature and period
of existence thereof; provided that such independent certified public
accountants shall not be liable in respect of such statement by reason of any
failure to obtain knowledge of any such Default or Event of Default that would
not be disclosed in the course of an audit examination conducted in accordance
with generally accepted auditing standards in effect at the date of such
examination.
(b) Within 90 days of the end of each of FelCor and
FelCor LP's fiscal years, FelCor and FelCor LP shall deliver to the Trustee a
list of all Significant Subsidiaries. The Trustee shall have no duty with
respect to any such list except to keep it on file and available for inspection
by the Holders.
SECTION 4.17 COMMISSION REPORTS AND REPORTS TO HOLDERS. At all
times from and after the earlier of (i) the date of the commencement of a
registered exchange offer for the Notes by FelCor LP or the effectiveness of
the Shelf Registration Statement pursuant to and in accordance with the terms
of the Registration Rights Agreement (the "Registration") and (ii) April 1,
1998, in either case, whether or not FelCor or FelCor LP is then required to
file reports with the Commission, FelCor and FelCor LP shall file with the
Commission all such reports and other information as they would be required to
file with the Commission by Sections 13(a) or 15(d) under the Securities
Exchange Act of 1934 if they were subject thereto; provided that, if filing
such documents by FelCor LP or FelCor with the Commission is not permitted
under Exchange Act, FelCor LP or FelCor shall provide such documents to the
Trustee and upon written request supply copies of such documents to any
prospective Holder; provided, further, that if the rules and regulations of the
Commission permit FelCor LP and FelCor to file combined reports or information
pursuant to the Securities Exchange Act of 1934, FelCor LP and FelCor may file
combined reports and information. FelCor LP and FelCor shall supply the
Trustee and each Holder or shall supply to the Trustee for forwarding to each
such Holder, without cost to such Holder, copies of such reports and other
information. Delivery of such
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reports, information and documents to the Trustee is for informational purposes
only and the Trustee's receipt of such shall not constitute constructive notice
of any information contained therein or determinable from information contained
therein, including FelCor or FelCor LP's compliance with any of their covenants
hereunder (as to which the Trustee is entitled to rely exclusively on Officers'
Certificates). In addition, at all times prior to the earlier of the date of
the Registration and April 1, 1998, FelCor LP shall, at its cost, deliver to
each Holder of the Notes quarterly and annual reports substantially equivalent
to those which would be required by the Exchange Act. In addition, at all
times prior to the Registration, upon the request of any Holder or any
prospective purchaser of the Notes designated by a Holder, FelCor LP shall
supply to such Holder or such prospective purchaser the information required
under Rule 144A under the Securities Act. FelCor LP also shall comply with the
other provisions of TIA Section 314(a).
SECTION 4.18 WAIVER OF STAY, EXTENSION OR USURY LAWS. FelCor LP
covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law or any usury law or other
law that would prohibit or forgive FelCor LP from paying all or any portion of
the principal of, premium, if any, or interest on the Notes as contemplated
herein, wherever enacted, now or at any time hereafter in force, or that may
affect the covenants or the performance of this Indenture; and (to the extent
that it may lawfully do so) FelCor LP hereby expressly waives all benefit or
advantage of any such law and covenants that it will not hinder, delay or
impede the execution of any power herein granted to the Trustee, but will
suffer and permit the execution of every such power as though no such law had
been enacted.
SECTION 4.19 LIMITATION ON SALE-LEASEBACK TRANSACTIONS. Neither
FelCor LP nor FelCor will, and neither FelCor LP nor FelCor will permit any of
their respective Restricted Subsidiaries to, enter into any sale-leaseback
transaction involving any of its assets or properties whether now owned or
hereafter acquired, whereby any of them sells or transfers such assets or
properties and then or thereafter leases such assets or properties or any
substantial part thereof.
The foregoing restriction does not apply to any sale-leaseback
transaction if (i) the lease is for a period, including renewal rights, of not
in excess of three years; (ii) the lease secures or relates to industrial
revenue or pollution control bonds; (iii) the transaction is solely between
FelCor LP or FelCor and any Wholly Owned Restricted Subsidiary or solely
between Wholly Owned Restricted Subsidiaries; or (iv) FelCor LP or FelCor or
any of their respective Restricted Subsidiaries, within 12 months after the
sale or transfer of any assets or properties is completed, applies an amount
not less than the net proceeds received from such sale in accordance with
clause (A) or (B) of the first paragraph of Section 4.10.
SECTION 4.20 MAINTENANCE OF TOTAL UNENCUMBERED ASSETS. FelCor LP,
FelCor and their respective Restricted Subsidiaries will maintain Total
Unencumbered Assets of not less than 150% of the aggregate outstanding
principal amount of the Unsecured Indebtedness of FelCor LP, FelCor and their
respective Restricted Subsidiaries on a consolidated basis.
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SECTION 4.21 INVESTMENT GRADE RATING. Notwithstanding anything to
the contrary in this Indenture, Sections 4.04, 4.05, 4.06, 4.07, 4.08, 4.09 and
4.19 will not be applicable in the event, and only for so long as, the Notes
are rated Investment Grade.
ARTICLE 5
SUCCESSOR CORPORATION
SECTION 5.01 WHEN FELCOR OR FELCOR LP MAY MERGE, ETC. Neither
FelCor LP nor FelCor will merge with or into, or sell, convey, transfer, lease
or otherwise dispose of all or substantially all of its property and assets (as
an entirety or substantially an entirety in one transaction or a series of
related transactions) to, any Person or permit any Person to merge with or into
FelCor LP or FelCor unless: (i) FelCor LP or FelCor shall be the continuing
Person, or the Person (if other than FelCor LP or FelCor) formed by such
consolidation or into which FelCor LP or FelCor is merged or that acquired or
leased such property and assets of FelCor LP or FelCor shall be an entity
organized and validly existing under the laws of the United States of America
or any state or jurisdiction thereof and shall expressly assume, by a
supplemental indenture, executed and delivered to the Trustee, all of the
obligations of FelCor LP or FelCor on the Notes and under the Indenture; (ii)
immediately after giving effect to such transaction, no Default or Event of
Default shall have occurred and be continuing; (iii) immediately after giving
effect to such transaction on a pro forma basis FelCor LP or FelCor, or any
Person becoming the successor obligor of the Notes, as the case may be, could
Incur at least $1.00 of Indebtedness under paragraphs (a) and (b) of Section
4.03; provided that this clause (iii) shall not apply to a consolidation or
merger with or into a Wholly Owned Restricted Subsidiary with a positive net
worth; provided that, in connection with any such merger or consolidation, no
consideration (other than Capital Stock (other than Disqualified Stock) in the
surviving Person or FelCor LP or FelCor) shall be issued or distributed to the
holders of Capital Stock of FelCor LP or FelCor; and (iv) FelCor LP or FelCor
delivers to the Trustee an Officers' Certificate (attaching the arithmetic
computations to demonstrate compliance with clause (iii)) and an Opinion of
Counsel, in each case stating that such consolidation, merger or transfer and
such supplemental indenture complies with this provision and that all
conditions precedent provided for herein relating to such transaction have been
complied with; provided that clause (iii) above does not apply if, in the good
faith determination of the Board of Directors of FelCor LP or FelCor, whose
determination shall be evidenced by a Board Resolution, the principal purpose
of such transaction is to change the state of domicile of FelCor LP or FelCor;
and provided, further, that any such transaction shall not have as one of its
purposes the evasion of the foregoing limitations.
SECTION 5.02 SUCCESSOR SUBSTITUTED. Upon any consolidation or
merger, or any sale, conveyance, transfer, lease or other disposition of all or
substantially all of the property and
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assets of FelCor LP in accordance with Section 5.01 of this Indenture, the
successor Person formed by such consolidation or into which FelCor LP is
merged or to which such sale, conveyance, transfer, lease or other disposition
is made shall succeed to, and be substituted for, and may exercise every right
and power of, FelCor LP under this Indenture with the same effect as if such
successor Person had been named as FelCor LP herein and thereafter the
predecessor corporation shall be relieved of all obligations and covenants
under this Indenture and the Notes; provided that FelCor LP shall not be
released from its obligation to pay the principal of, premium, if any, or
interest on the Notes in the case of a lease of all or substantially all of its
property and assets.
ARTICLE 6
DEFAULT AND REMEDIES
SECTION 6.01 EVENTS OF DEFAULT. An "Event of Default" shall occur
with respect to the Notes if:
(a) default in the payment of principal of (or premium, if any,
on) any Note when the same becomes due and payable at maturity, upon
acceleration, redemption or otherwise;
(b) default in the payment of interest on any Note when the same
becomes due and payable, and such default continues for a period of 30 days;
(c) default in the performance or breach of the provisions of the
Indenture applicable to mergers, consolidations and transfers of all or
substantially all of the assets of FelCor LP and FelCor or the failure by
FelCor LP to make or consummate an Offer to Purchase in accordance with Section
4.10 or Section 4.11;
(d) FelCor LP or FelCor defaults in the performance of or breaches
any other covenant or agreement of FelCor LP or FelCor in the Indenture or
under the Notes (other than a default specified in clause (a), (b) or (c)
above) and such default or breach continues for a period of 30 consecutive days
after written notice by the Trustee or the Holders of 25% or more in aggregate
principal amount of the Notes;
(e) there occurs with respect to any issue or issues of
Indebtedness of FelCor LP or FelCor or any Significant Subsidiary having an
outstanding principal amount of $10 million or more in the aggregate for all
such issues of all such Persons, whether such Indebtedness now exists or shall
hereafter be created, (I) an event of default that has caused the holder
thereof to declare such Indebtedness to be due and payable prior to its Stated
Maturity and such Indebtedness has not been discharged in full or such
acceleration has not been rescinded or annulled within 30 days of such
acceleration and/or (II) the failure to make a principal payment at the final
(but not any interim) fixed maturity and such defaulted payment shall not have
been made, waived or extended within 30 days of such payment default;
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(f) any final judgment or order (not covered by insurance) for the
payment of money in excess of $10 million in the aggregate for all such final
judgments or orders against all such Persons (treating any deductibles,
self-insurance or retention as not covered by insurance) shall be rendered
against FelCor LP or FelCor or any Significant Subsidiary and shall not be paid
or discharged, and there shall be any period of 60 consecutive days following
entry of the final judgment or order that causes the aggregate amount for all
such final judgments or orders outstanding and not paid or discharged against
all such Persons to exceed $10 million during which a stay of enforcement of
such final judgment or order, by reason of a pending appeal or otherwise, shall
not be in effect;
(g) a court having jurisdiction in the premises enters a decree or
order for (A) relief in respect of FelCor LP or FelCor or any Significant
Subsidiary in an involuntary case under any applicable bankruptcy, insolvency
or other similar law now or hereafter in effect, (B) appointment of a receiver,
liquidator, assignee, custodian, trustee, sequestrator or similar official of
FelCor LP or FelCor or any Significant Subsidiary or for all or substantially
all of the property and assets of FelCor LP or FelCor or any Significant
Subsidiary or (C) the winding up or liquidation of the affairs of FelCor LP or
FelCor or any Significant Subsidiary and, in each case, such decree or order
shall remain unstayed and in effect for a period of 60 consecutive days; or
(h) FelCor LP or FelCor or any Significant Subsidiary (A)
commences a voluntary case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect, or consents to the entry of an order
for relief in an involuntary case under such law, (B) consents to the
appointment of or taking possession by a receiver, liquidator, assignee,
custodian, trustee, sequestrator or similar official of FelCor LP or FelCor or
Significant Subsidiary or for all or substantially all of the property and
assets of FelCor LP or FelCor or any Significant Subsidiary or (C) effects any
general assignment for the benefit of its creditors.
SECTION 6.02 ACCELERATION. If an Event of Default (other than an
Event of Default specified in clause (g) or (h) above that occurs with respect
to FelCor LP or FelCor) occurs and is continuing under the Indenture, the
Trustee or the Holders of at least 25% in aggregate principal amount of the
Notes, then outstanding, by written notice to FelCor LP and FelCor (and to the
Trustee if such notice is given by the Holders), may, and the Trustee at the
request of such Holders shall, declare the principal of, premium, if any, and
accrued interest on the Notes to be immediately due and payable. Upon a
declaration of acceleration, such principal of, premium, if any, and accrued
interest shall be immediately due and payable. In the event of a declaration of
acceleration because an Event of Default set forth in clause (e) above has
occurred and is continuing, such declaration of acceleration shall be
automatically rescinded and annulled if the event of default triggering such
Event of Default pursuant to clause (e) shall be remedied or cured by FelCor
LP, FelCor or the relevant Significant Subsidiary or waived by the holders of
the relevant Indebtedness within 60 days after the declaration of acceleration
with respect thereto. If an Event or Default specified in clause (g) or (h)
above occurs with respect to FelCor LP or FelCor, the principal of, premium, if
any, and accrued interest on the Notes then outstanding shall ipso facto become
and be immediately due and payable without
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any declaration or other act on the part of the Trustee or any Holder. The
Holders of at least a majority in principal amount of the outstanding Notes by
written notice to FelCor LP, FelCor and to the Trustee, may waive all past
defaults and rescind and annul a declaration of acceleration and its
consequences if (i) all existing Events of Default, other than the nonpayment
of the principal of, premium, if any, and interest on the Notes that have
become due solely by such declaration of acceleration, have been cured or
waived and (ii) the rescission would not conflict with any judgment or decree
of a court of competent jurisdiction.
SECTION 6.03 OTHER REMEDIES. If an Event of Default occurs and is
continuing, the Trustee may pursue any available remedy by proceeding at law or
in equity to collect the payment of principal of, premium, if any, or interest
on the Notes or to enforce the performance of any provision of the Notes or
this Indenture.
The Trustee may maintain a proceeding even if it does not possess any
of the Notes or does not produce any of them in the proceeding.
SECTION 6.04 WAIVER OF PAST DEFAULTS. Subject to Sections 6.02,
6.07 and 9.02, the Holders of at least a majority in principal amount of the
outstanding Notes, by notice to the Trustee, may waive an existing Default or
Event of Default and its consequences, except a Default in the payment of
principal of, premium, if any, or interest on any Note as specified in clause
(a) or (b) of Section 6.01 or in respect of a covenant or provision of this
Indenture which cannot be modified or amended without the consent of the holder
of each outstanding Note affected. Upon any such waiver, such Default shall
cease to exist, and any Event of Default arising therefrom shall be deemed to
have been cured, for every purpose of this Indenture; but no such waiver shall
extend to any subsequent or other Default or Event of Default or impair any
right consequent thereto.
SECTION 6.05 CONTROL BY MAJORITY. The Holders of at least a
majority in aggregate principal amount at maturity of the outstanding Notes may
direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee or exercising any trust or power conferred on the
Trustee. However, the Trustee may refuse to follow any direction that conflicts
with law or this Indenture, that may involve the Trustee in personal liability,
or that the Trustee determines in good faith may be unduly prejudicial to the
rights of Holders of Notes not joining in the giving of such direction and may
take any other action it deems proper that is not inconsistent with any such
direction received from Holders of Notes.
SECTION 6.06 LIMITATION ON SUITS. A Holder may not institute any
proceeding, judicial or otherwise, with respect to this Indenture or the Notes,
or for the appointment of a receiver or trustee, or for any other remedy
hereunder unless:
(i) such Holder has previously given the Trustee written
notice of a continuing Event of Default;
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(ii) the Holders of at least 25% in aggregate principal
amount at maturity of outstanding Notes shall have made a written
request to the Trustee institute proceedings in respect of such Event
of Default in its own name as Trustee hereunder;
(iii) such Holder or Holders have offered the Trustee
indemnity reasonably satisfactory to the Trustee against any costs,
liabilities or expenses to be incurred in compliance with such
request;
(iv) the Trustee does not comply with the request within
60 days after receipt of the request and the offer of indemnity and
has failed to institute any such proceeding; and
(v) during such 60-day period, the Holders of a majority
in aggregate principal amount at maturity of the outstanding Notes do
not give the Trustee a direction that is inconsistent with such
written request.
For purposes of Section 6.05 and this Section 6.06, the Trustee shall
comply with TIA Section 316(a) in making any determination of whether the
Holders of the required aggregate principal amount of outstanding Notes have
concurred in any request or direction of the Trustee to pursue any remedy
available to the Trustee or the Holders with respect to this Indenture or the
Notes or otherwise under the law.
A Holder may not use this Indenture to prejudice the rights of another
Holder or to obtain a preference or priority over such other Holder.
SECTION 6.07 RIGHTS OF HOLDERS TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture, the right of any Holder
of a Note to receive payment of the principal of, premium, if any, or interest
on, such Note or to bring suit for the enforcement of any such payment, on or
after the due date expressed in the Notes, shall not be impaired or affected
without the consent of such Holder.
SECTION 6.08 COLLECTION SUIT BY TRUSTEE. If an Event of Default
in payment of principal, premium or interest specified in clause (a), (b) or
(c) of Section 6.01 occurs and is continuing, the Trustee may recover judgment
in its own name and as trustee of an express trust against FelCor LP, the
Guarantors or any other obligor of the Notes for the whole amount of principal,
premium, if any, and accrued interest remaining unpaid, together with interest
on overdue principal, premium, if any, and, to the extent that payment of such
interest is lawful, interest on overdue installments of interest, in each case
at the rate specified in the Notes, and such further amount as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
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SECTION 6.09 TRUSTEE MAY FILE PROOFS OF CLAIM. The Trustee may
file such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any claim for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 7.07) and the Holders allowed in any judicial proceedings relative to
FelCor LP (or any other obligor of the Notes), its creditors or its property
and shall be entitled and empowered to collect and receive any monies,
securities or other property payable or deliverable upon conversion or exchange
of the Notes or upon any such claims and to distribute the same, and any
custodian, receiver, assignee, trustee, liquidator, sequestrator or other
similar official in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee and, in the event that the Trustee
shall consent to the making of such payments directly to the Holders, to pay to
the Trustee any amount due to it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agent and counsel, and any other
amounts due the Trustee under Section 7.07. Nothing herein contained shall be
deemed to empower the Trustee to authorize or consent to, or accept or adopt on
behalf of any Holder, any plan of reorganization, arrangement, adjustment or
composition affecting the Notes or the rights of any Holder thereof, or to
authorize the Trustee to vote in respect of the claim of any Holder in any such
proceeding.
SECTION 6.10 PRIORITIES. If the Trustee collects any money
pursuant to this Article Six, it shall pay out the money in the following
order:
First: to the Trustee for all amounts due under Section 7.07;
Second: to Holders for amounts then due and unpaid for
principal of, premium, if any, and interest on the Notes in respect of which or
for the benefit of which such money has been collected, ratably, without
preference or priority of any kind, according to the amounts due and payable on
such Notes for principal, premium, if any, and interest, respectively; and
Third: to FelCor LP or any other obligors of the Notes, as
their interests may appear, or as a court of competent jurisdiction may direct.
The Trustee, upon prior written notice to FelCor LP, may fix a
record date and payment date for any payment to Holders pursuant to this
Section 6.10.
SECTION 6.11 UNDERTAKING FOR COSTS. In any suit for the
enforcement of any right or remedy under this Indenture or in any suit against
the Trustee for any action taken or omitted by it as Trustee, a court may
require any party litigant in such suit to file an undertaking to pay the costs
of the suit, and the court may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
This Section 6.11 does not apply to a suit by the Trustee, a suit by a Holder
pursuant to Section 6.07 of this Indenture, or a suit by Holders of more than
10% in principal amount of the outstanding Notes.
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SECTION 6.12 RESTORATION OF RIGHTS AND REMEDIES. If the Trustee
or any Holder has instituted any proceeding to enforce any right or remedy
under this Indenture and such proceeding has been discontinued or abandoned for
any reason, or has been determined adversely to the Trustee or to such Holder,
then, and in every such case, subject to any determination in such proceeding,
FelCor LP, the Trustee and the Holders shall be restored severally and
respectively to their former positions hereunder and thereafter all rights and
remedies of FelCor LP, the Guarantors, Trustee and the Holders shall continue
as though no such proceeding had been instituted.
SECTION 6.13 RIGHTS AND REMEDIES CUMULATIVE. Except as otherwise
provided with respect to the replacement or payment of mutilated, destroyed,
lost or wrongfully taken Notes in Section 2.09, no right or remedy herein
conferred upon or reserved to the Trustee or to the Holders is intended to be
exclusive of any other right or remedy, and every right and remedy shall, to
the extent permitted by law, be cumulative and in addition to every other right
and remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any
other appropriate right or remedy.
SECTION 6.14 DELAY OR OMISSION NOT WAIVER. No delay or omission
of the Trustee or of any Holder to exercise any right or remedy accruing upon
any Event of Default shall impair any such right or remedy or constitute a
waiver of any such Event of Default or an acquiescence therein. Every right
and remedy given by this Article Six or by law to the Trustee or to the Holders
may be exercised from time to time, and as often as may be deemed expedient, by
the Trustee or by the Holders, as the case may be.
ARTICLE 7
TRUSTEE
SECTION 7.01 GENERAL. The duties and responsibilities of the
Trustee shall be as provided by the TIA and as set forth herein.
Notwithstanding the foregoing, no provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the exercise
of any of its rights or powers, if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against such risk
or liability is not reasonably assured to it. The Trustee shall not be
required to give any bond or surety with respect to the performance of its
duties or the exercise of its powers under this Indenture. Whether or not
therein expressly so provided, every provision of this Indenture relating to
the conduct or affecting the liability of or affording protection to the
Trustee shall be subject to the provisions of this Article Seven.
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SECTION 7.02 CERTAIN RIGHTS OF TRUSTEE. Subject to TIA Sections
315(a) through (d):
(i) the Trustee may rely and shall be protected in acting
or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other
paper or document believed by it to be genuine and to have been signed
or presented by the proper person. The Trustee need not investigate
any fact or matter stated in the document;
(ii) before the Trustee acts or refrains from acting, it
may require an Officers' Certificate or an Opinion of Counsel, which
shall conform to Section 10.04. The Trustee shall not be liable for
any action it takes or omits to take in good faith in reliance on such
certificate or opinion;
(iii) the Trustee may act through its attorneys and agents
and shall not be responsible for the misconduct or negligence of any
agent appointed with due care;
(iv) the Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Indenture at the
request or direction of any of the Holders, unless such Holders shall
have offered to the Trustee reasonable security or indemnity against
the costs, expenses and liabilities that might be incurred by it in
compliance with such request or direction;
(v) the Trustee shall not be liable for any action it
takes or omits to take in good faith that it believes to be authorized
or within its rights or powers or for any action it takes or omits to
take in accordance with the direction of the Holders of a majority in
principal amount at maturity of the outstanding Notes relating to the
time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred
upon the Trustee, under this Indenture; provided that the Trustee's
conduct does not constitute gross negligence or bad faith;
(vi) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a making be proved or established
prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may,
in the absence of bad faith on its part, rely upon an Officer's
Certificate; and
(vii) the Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Trustee, in its
discretion, may make such further inquiry or investigation into such
facts or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it shall be
entitled to examine the books, records and premises of FelCor LP
personally or by agent or attorney.
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SECTION 7.03 INDIVIDUAL RIGHTS OF TRUSTEE. The Trustee, in its
individual or any other capacity, may become the owner or pledgee of Notes and
may otherwise deal with FelCor LP, the Guarantors, or their Affiliates with the
same rights it would have if it were not the Trustee. Any Agent may do the
same with like rights. However, the Trustee is subject to TIA Sections 310(b)
and 311.
SECTION 7.04 TRUSTEE'S DISCLAIMER. The Trustee (i) makes no
representation as to the validity or adequacy of this Indenture or the Notes,
(ii) shall not be accountable for FelCor LP's use or application of the
proceeds from the Notes and (iii) shall not be responsible for any statement in
the Notes other than its certificate of authentication.
SECTION 7.05 NOTICE OF DEFAULT. If any Default or any Event of
Default occurs and is continuing and if such Default or Event of Default is
known to a Responsible Officer of the Trustee, the Trustee shall mail to each
Holder in the manner and to the extent provided in TIA Section 313(c) notice of
the Default or Event of Default within 45 days after it occurs, unless such
Default or Event of Default has been cured; provided, however, that, except in
the case of a default in the payment of the principal of, premium, if any, or
interest on any Note, the Trustee shall be protected in withholding such notice
if and so long as the board of directors, the executive committee or a trust
committee of directors and/or Responsible Officers of the Trustee in good faith
determine that the withholding of such notice is in the interest of the
Holders.
SECTION 7.06 REPORTS BY TRUSTEE TO HOLDERS. Within 60 days after
each May 15, beginning with May 15, 1998, the Trustee shall mail to each Holder
as provided in TIA Section 313(c) a brief report dated as of such May 15, if
required by TIA Section 313(a).
SECTION 7.07 COMPENSATION AND INDEMNITY. FelCor LP shall pay to
the Trustee such compensation as shall be agreed upon in writing for its
services. The compensation of the Trustee shall not be limited by any law on
compensation of a trustee of an express trust. FelCor LP shall reimburse the
Trustee upon request for all reasonable out-of-pocket expenses and advances
incurred or made by the Trustee. Such expenses shall include the reasonable
compensation and expenses of the Trustee's agents and counsel.
FelCor LP shall indemnify the Trustee for, and hold it harmless
against, any loss or liability or expense, including taxes (other than taxes
based upon, measured by or determined by the income of the Trustee) incurred by
it without negligence or bad faith on its part in connection with the
acceptance or administration of this Indenture and its duties under this
Indenture and the Notes, including the costs and expenses of defending itself
against any claim or liability and of complying with any process served upon it
or any of its officers in connection with the exercise or performance of any of
its powers or duties under this Indenture and the Notes.
To secure FelCor LP's payment obligations in this Section 7.07, the
Trustee shall have a lien prior to the Notes on all money or property held or
collected by the Trustee, in its capacity as
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Trustee, except money or property held in trust to pay principal of, premium,
if any, and interest on particular Notes.
If the Trustee incurs expenses or renders services after the
occurrence of an Event of Default specified in clause (g) or (h) of Section
6.01, the expenses and the compensation for the services will be intended to
constitute expenses of administration under Title 11 of the United States
Bankruptcy Code or any applicable federal or state law for the relief of
debtors.
The provisions of this Section shall survive the termination of this
Indenture.
SECTION 7.08 REPLACEMENT OF TRUSTEE. A resignation or removal of
the Trustee and appointment of a successor Trustee shall become effective only
upon the successor Trustee's acceptance of appointment as provided in this
Section 7.08.
The Trustee may resign at any time by so notifying FelCor LP in
writing at least 30 days prior to the date of the proposed resignation. The
Holders of a majority in principal amount of the outstanding Notes may remove
the Trustee by so notifying the Trustee in writing and may appoint a successor
Trustee with the consent of FelCor LP. FelCor LP may at any time remove the
Trustee, by Company Order given at least 30 days prior to the date of the
proposed removal.
If the Trustee resigns or is removed, or if a vacancy exists in the
office of Trustee for any reason, FelCor LP shall promptly appoint a successor
Trustee. Within one year after the successor Trustee takes office, the Holders
of a majority in principal amount of the outstanding Notes may appoint a
successor Trustee to replace the successor Trustee appointed by FelCor LP. If
the successor Trustee does not deliver its written acceptance required by the
next succeeding paragraph of this Section 7.08 within 30 days after the
retiring Trustee resigns or is removed, the retiring Trustee, FelCor LP or the
Holders of a majority in principal amount of the outstanding Notes may petition
any court of competent jurisdiction for the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to FelCor LP. Immediately after the
delivery of such written acceptance, subject to the lien provided in Section
7.07, (i) the retiring Trustee shall transfer all property held by it as
Trustee to the successor Trustee, (ii) the resignation or removal of the
retiring Trustee shall become effective and (iii) the successor Trustee shall
have all the rights, powers and duties of the Trustee under this Indenture. A
successor Trustee shall mail notice of its succession to each Holder.
If the Trustee is no longer eligible under Section 7.10, any Holder
who satisfies the requirements of TIA Section 310(b) may petition any court of
competent jurisdiction for the removal of the Trustee and the appointment of a
successor Trustee.
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FelCor LP shall give notice of any resignation and any removal of the
Trustee and each appointment of a successor Trustee to all Holders. Each
notice shall include the name of the successor Trustee and the address of its
Corporate Trust Office.
Notwithstanding replacement of the Trustee pursuant to this Section
7.08, FelCor LP's obligation under Section 7.07 shall continue for the benefit
of the retiring Trustee.
SECTION 7.09 SUCCESSOR TRUSTEE BY MERGER, ETC. If the Trustee
consolidates with, merges or converts into, or transfers all or substantially
all of its corporate trust business to, another corporation or national banking
association, the resulting, surviving or transferee corporation or national
banking association without any further act shall be the successor Trustee with
the same effect as if the successor Trustee had been named as the Trustee
herein.
SECTION 7.10 ELIGIBILITY. This Indenture shall always have a
Trustee who satisfies the requirements of TIA Section 310(a)(1). The Trustee
shall have a combined capital and surplus of at least $25,000,000 as set forth
in its most recent published annual report of condition.
SECTION 7.11 MONEY HELD IN TRUST. The Trustee shall not be liable
for interest on any money received by it except as the Trustee may agree with
FelCor LP. Money held in trust by the Trustee need not be segregated from
other funds except to the extent required by law and except for money held in
trust under Article Eight of this Indenture.
SECTION 7.12 WITHHOLDING TAXES. The Trustee, as agent for FelCor
LP, shall exclude and withhold from each payment of principal and interest and
other amounts due hereunder or under the Notes any and all withholding taxes
applicable thereto as required by law. The Trustee agrees to act as such
withholding agent and, in connection therewith, whenever any present or future
taxes or similar charges are required to be withheld with respect to any
amounts payable in respect of the Notes, to withhold such amounts and timely
pay the same to the appropriate authority in the name of and on behalf of the
holders of the Notes, that it will file any necessary withholding tax returns
or statements when due. FelCor LP or the Trustee shall, as promptly as possible
after the payment of the taxes described above, deliver to each holder of a
Note appropriate documentation showing the payment thereof, together with such
additional documentary evidence as such holders may reasonably request from
time to time.
ARTICLE 8
DISCHARGE OF INDENTURE
SECTION 8.01 TERMINATION OF COMPANY'S OBLIGATIONS. Except as
otherwise provided in this Section 8.01, FelCor LP may terminate its
obligations under the Notes and this Indenture if:
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(i) all Notes previously authenticated and delivered
(other than destroyed, lost or stolen Notes that have been replaced or
Notes that are paid pursuant to Section 4.01 or Notes for whose
payment money or securities have theretofore been held in trust and
thereafter repaid to FelCor LP, as provided in Section 8.05) have been
delivered to the Trustee for cancellation and FelCor LP has paid all
sums payable by it hereunder; or
(ii) (A) the Notes mature within one year or all of them
are to be called for redemption within one year under arrangements
satisfactory to the Trustee for giving the notice of redemption, (B)
the Company irrevocably deposits in trust with the Trustee during such
one-year period, under the terms of an irrevocable trust agreement in
form and substance satisfactory to the Trustee, as trust funds solely
for the benefit of the Holders for that purpose, money or U.S.
Government Obligations sufficient (in the opinion of a nationally
recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee), without
consideration of any reinvestment of any interest thereon, to pay
principal, premium, if, any, and interest on the Notes to maturity or
redemption, as the case may be, and to pay all other sums payable by
it hereunder, (C) no Default or Event of Default with respect to the
Notes shall have occurred and be continuing on the date of such
deposit, (D) such deposit will not result in a breach or violation of,
or constitute a default under, this Indenture or any other agreement
or instrument to which FelCor or FelCor LP is a party or by which they
are bound and (E) FelCor and FelCor LP have delivered to the Trustee
an Officers' Certificate and an Opinion of Counsel, in each case
stating that all conditions precedent provided for herein relating to
the satisfaction and discharge of this Indenture have been complied
with.
With respect to the foregoing clause (i), FelCor LP's obligations
under Section 7.07 shall survive. With respect to the foregoing clause (ii),
FelCor LP's obligations in Sections 2.02, 2.03, 2.04, 2.05, 2.06, 2.07, 2.08,
2.09, 2.14, 4.01, 4.02, 7.07, 7.08, 8.04, 8.05 and 8.06 shall survive until the
Notes are no longer outstanding. Thereafter, only FelCor LP's obligations in
Sections 7.07, 8.05 and 8.06 shall survive. After any such irrevocable
deposit, the Trustee upon request shall acknowledge in writing the discharge of
FelCor LP's obligations under the Notes and this Indenture except for those
surviving obligations specified above.
SECTION 8.02 DEFEASANCE AND DISCHARGE OF INDENTURE. FelCor LP and
the Guarantors will be deemed to have paid and will be discharged from any and
all obligations in respect of the Notes or any Guarantee pursuant to Article 11
on the 123rd day after the date of the deposit referred to in clause (A) of
this Section 8.02, and the provisions of this Indenture will no longer be in
effect with respect to the Notes, and the Trustee, at the expense of FelCor LP,
shall execute proper instruments acknowledging the same; provided that the
following conditions shall have been satisfied:
(A) with reference to this Section 8.02, FelCor LP has
irrevocably deposited or caused to be irrevocably deposited with the
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Trustee (or another trustee satisfying the requirements of Section
7.10 of this Indenture) and conveyed all right, title and interest for
the benefit of the Holders, under the terms of an irrevocable trust
agreement in form and substance satisfactory to the Trustee as trust
funds in trust, specifically pledged to the Trustee for the benefit of
the Holders as security for payment of the principal of, premium, if
any, and interest, if any, on the Notes, and dedicated solely to, the
benefit of the Holders, in and to (1) money in an amount, (2) U.S.
Government Obligations that, through the payment of interest, premium,
if any, and principal in respect thereof in accordance with their
terms, will provide, not later than one day before the due date of any
payment referred to in this clause (A), money in an amount or (3) a
combination thereof in an amount sufficient, in the opinion of a
nationally recognized firm of independent public accountants expressed
in a written certification thereof delivered to the Trustee, to pay
and discharge, without consideration of the reinvestment of such
interest and after payment of all federal, state and local taxes or
other charges and assessments in respect thereof payable by the
Trustee, the principal of, premium, if any, and accrued interest on
the outstanding Notes at the Stated Maturity of such principal or
interest; provided that the Trustee shall have been irrevocably
instructed to apply such money or the proceeds of such U.S. Government
Obligations to the payment of such principal, premium, if any, and
interest with respect to the Notes;
(B) such deposit will not result in a breach or violation
of, or constitute a default under, this Indenture or any other
agreement or instrument to which FelCor LP, FelCor or any of their
respective Restricted Subsidiaries is a party or by which FelCor LP,
FelCor or any of their respective Restricted Subsidiaries is a party
or by which FelCor LP is bound;
(C) immediately after giving effect to such deposit on a
pro forma basis, no Default or Event of Default shall have occurred
and be continuing on the date of such deposit or during the period
ending on the 123rd day after such date of deposit;
(D) FelCor LP shall have delivered to the Trustee (1)
either (x) a ruling directed to the Trustee received from the Internal
Revenue Service to the effect that the Holders will not recognize
income, gain or loss for federal income tax purposes as a result of
FelCor LP's exercise of its option under this Section 8.02 and will be
subject to federal income tax on the same amount and in the same
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manner and at the same times as would have been the case if such
option had not been exercised or (y) an Opinion of Counsel to the same
effect as the ruling described in clause (x) above accompanied by a
ruling to that effect published by the Internal Revenue Service,
unless there has been a change in the applicable federal income tax
law since the date of this Indenture such that a ruling from the
Internal Revenue Service is no longer required and (2) an Opinion of
Counsel to the effect that (x) the creation of the defeasance trust
does not violate the Investment Company Act of 1940 and (y) after the
passage of 123 days following the deposit (except, with respect to any
trust funds for the account of any Holder who may be deemed to be an
"insider" for purposes of the United States Bankruptcy Code, after one
year following the deposit), the trust funds will not be subject to
the effect of ▇▇▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Bankruptcy Code or
Section 15 of the New York Debtor and Creditor Law in a case commenced
by or against FelCor LP or a Guarantor under either such statute, and
either (I) the trust funds will no longer remain the property of
FelCor LP or a Guarantor (and therefore will not be subject to the
effect of any applicable bankruptcy, insolvency, reorganization or
similar laws affecting creditors' rights generally) or (II) if a court
were to rule under any such law in any case or proceeding that the
trust funds remained property of FelCor LP or a Guarantor, (a)
assuming such trust funds remained in the possession of the Trustee
prior to such court ruling to the extent not paid to the Holders, the
Trustee will hold, for the benefit of the Holders, a valid and
perfected security interest in such trust funds that is not avoidable
in bankruptcy or otherwise except for the effect of Section 552(b) of
the United States Bankruptcy Code on interest on the trust funds
accruing after the commencement of a case under such statute and (b)
the Holders will be entitled to receive adequate protection of their
interests in such trust funds if such trust funds are used in such
case or proceeding;
(E) if the Notes are then listed on a national securities
exchange, FelCor LP shall have delivered to the Trustee an Opinion of
Counsel to the effect that such deposit defeasance and discharge will
not cause the Notes to be delisted; and
(F) FelCor LP has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, in each case stating that all
conditions precedent provided for herein relating to the defeasance
contemplated by this Section 8.02 have been complied with.
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Notwithstanding the foregoing, prior to the end of the 123-day
(or one year) period referred to in clause (D)(2)(y) of this Section 8.02, none
of FelCor LP's obligations under this Indenture shall be discharged.
Subsequent to the end of such 123-day (or one year) period with respect to this
Section 8.02, FelCor LP's obligations in Sections 2.02, 2.03, 2.04, 2.05, 2.06,
2.07, 2.08, 2.09, 2.14, 4.01, 4.02, 7.07, 7.08, 8.05 and 8.06 shall survive
until the Notes are no longer outstanding. Thereafter, only FelCor LP's
obligations in Sections 7.07, 8.05 and 8.06 shall survive. If and when a
ruling from the Internal Revenue Service or an Opinion of Counsel referred to
in clause (D)(1) of this Section 8.02 is able to be provided specifically
without regard to, and not in reliance upon, the continuance of FelCor LP's
obligations under Section 4.01, then FelCor LP's obligations under such Section
4.01 shall cease upon delivery to the Trustee of such ruling or Opinion of
Counsel and compliance with the other conditions precedent provided for herein
relating to the defeasance contemplated by this Section 8.02.
After any such irrevocable deposit, the Trustee upon request shall
acknowledge in writing the discharge of FelCor LP's obligations under the Notes
and this Indenture except for those surviving obligations in the immediately
preceding paragraph.
SECTION 8.03 DEFEASANCE OF CERTAIN OBLIGATIONS. FelCor LP may
omit to comply with any term, provision or condition set forth in clause (iii)
under Section 5.01 and Sections 4.03 through 4.17 and Sections 4.19 and 4.20,
clauses (c) and (d) under Section 6.01 with respect to such clause (iii) under
Section 5.01 and Sections 4.03 through 4.17 and Sections 4.19 and 4.20, and
clauses (e) and (f) under Section 6.01 shall be deemed not to be Events of
Default, in each case with respect to the outstanding Notes if:
(i) with reference to this Section 8.03, FelCor LP has
irrevocably deposited or caused to be irrevocably deposited with the
Trustee (or another trustee satisfying the requirements of Section
7.10) and conveyed all right, title and interest to the Trustee for
the benefit of the Holders, under the terms of an irrevocable trust
agreement in form and substance satisfactory to the Trustee as trust
funds in trust, specifically pledged to the Trustee for the benefit of
the Holders as security for payment of the principal of, premium, if
any, and interest, if any, on the Notes, and dedicated solely to, the
benefit of the Holders, in and to (A) money in an amount, (B) U.S.
Government Obligations that, through the payment of interest and
principal in respect thereof in accordance with their terms, will
provide, not later than one day before the due date of any payment
referred to in this clause (i), money in an amount or (C) a
combination thereof in an amount sufficient, in the opinion of a
nationally recognized firm of independent public accountants expressed
in a written certification thereof delivered to the Trustee, to pay
and discharge, without consideration of the reinvestment of such
interest and after payment of all federal, state and local taxes or
other charges and assessments in respect thereof payable by the
Trustee, the principal of, premium, if any, and interest on the
outstanding Notes on the Stated Maturity of such principal or
interest; provided that the Trustee shall have been irrevocably
instructed to apply such money or the proceeds of
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such U.S. Government Obligations to the payment of such principal,
premium, if any, and interest with respect to the Notes;
(ii) such deposit will not result in a breach or violation
of, or constitute a default under, this Indenture or any other
agreement or instrument to which FelCor LP, FelCor or any of their
Restricted Subsidiaries is a party or by which FelCor LP, FelCor or
any of their Restricted Subsidiaries is bound;
(iii) no Default or Event of Default shall have occurred
and be continuing on the date of such deposit;
(iv) FelCor LP has delivered to the Trustee an Opinion of
Counsel to the effect that (A) the creation of the defeasance trust
does not violate the Investment Company Act of 1940, (B) the Holders
have a valid first-priority security interest in the trust funds, (C)
the Holders will not recognize income, gain or loss for federal income
tax purposes as a result of such deposit and defeasance of certain
obligations and will be subject to federal income tax on the same
amount and in the same manner and at the same times as would have been
the case if such deposit and defeasance had not occurred and (D) after
the passage of 123 days following the deposit (except, with respect to
any trust funds for the account of any Holder who may be deemed to be
an "insider" for purposes of the United States Bankruptcy Code, after
one year following the deposit), the trust funds will not be subject
to the effect of ▇▇▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Bankruptcy Code or
Section 15 of the New York Debtor and Creditor Law in a case commenced
by or against FelCor LP under either such statute, and either (1) the
trust funds will no longer remain the property of FelCor LP or a
Guarantor (and therefore will not be subject to the effect of any
applicable bankruptcy, insolvency, reorganization or similar laws
affecting creditors' rights generally) or (2) if a court were to rule
under any such law in any case or proceeding that the trust funds
remained property of FelCor LP or a Guarantor, (x) assuming such trust
funds remained in the possession of the Trustee prior to such court
ruling to the extent not paid to the Holders, the Trustee will hold,
for the benefit of the Holders, a valid and perfected security
interest in such trust funds that is not avoidable in bankruptcy or
otherwise (except for the effect of Section 552(b) of the United
States Bankruptcy Code on interest on the trust funds accruing after
the commencement of a case under such statute), (y) the Holders will
be entitled to receive adequate protection of their interests in such
trust funds if such trust funds are used in such case or proceeding
and (z) no property, rights in property or other interests granted to
the Trustee or the Holders in exchange for, or with respect to, such
trust funds will be subject to any prior rights of holders of other
Indebtedness of FelCor LP, FelCor or any of their Subsidiaries;
(v) if the Notes are then listed on a national securities
exchange, FelCor LP shall have delivered to the Trustee an Opinion of
Counsel to the effect that such deposit defeasance and discharge will
not cause the Notes to be delisted; and
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(vi) FelCor LP has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, in each case stating that all
conditions precedent provided for herein relating to the defeasance
contemplated by this Section 8.03 have been complied with.
SECTION 8.04 APPLICATION OF TRUST MONEY. Subject to Section 8.06,
the Trustee or Paying Agent shall hold in trust money or U.S. Government
Obligations deposited with it pursuant to Section 8.01, 8.02 or 8.03, as the
case may be, and shall apply the deposited money and the money from U.S.
Government Obligations in accordance with the Notes and this Indenture to the
payment of principal of, premium, if any, and interest on the Notes; but such
money need not be segregated from other funds except to the extent required by
law.
SECTION 8.05 REPAYMENT TO COMPANY. Subject to Sections 7.07,
8.01, 8.02 and 8.03, the Trustee and the Paying Agent shall promptly pay to
FelCor LP upon request set forth in an Officers' Certificate any excess money
held by them at any time and thereupon shall be relieved from all liability
with respect to such money. The Trustee and the Paying Agent shall pay to
FelCor LP upon request any money held by them for the payment of principal,
premium, if any, or interest that remains unclaimed for two years; provided
that the Trustee or such Paying Agent before being required to make any payment
may cause to be published at the expense of FelCor LP once in a newspaper of
general circulation in the City of New York or mail to each Holder entitled to
such money at such Holder's address (as set forth in the Note Register) notice
that such money remains unclaimed and that after a date specified therein
(which shall be at least 30 days from the date of such publication or mailing)
any unclaimed balance of such money then remaining will be repaid to FelCor LP.
After payment to FelCor LP, Holders entitled to such money must look to FelCor
LP for payment as general creditors unless an applicable law designates another
Person, and all liability of the Trustee and such Paying Agent with respect to
such money shall cease.
SECTION 8.06 REINSTATEMENT. If the Trustee or Paying Agent is
unable to apply any money or U.S. Government Obligations in accordance with
Section 8.01, 8.02 or 8.03, as the case may be, by reason of any legal
proceeding or by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application,
FelCor LP's obligations under this Indenture and the Notes shall be revived and
reinstated as though no deposit had occurred pursuant to Section 8.01, 8.02 or
8.03, as the case may be, until such time as the Trustee or Paying Agent is
permitted to apply all such money or U.S. Government Obligations in accordance
with Section 8.01, 8.02 or 8.03, as the case may be; provided that, if FelCor
LP has made any payment of principal of, premium, if any, or interest on any
Notes because of the reinstatement of its obligations, FelCor LP shall be
subrogated to the rights of the Holders of such Notes to receive such payment
from the money or U.S. Government Obligations held by the Trustee or Paying
Agent.
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ARTICLE 9
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01 WITHOUT CONSENT OF HOLDERS. FelCor, FelCor LP and
the Subsidiary Guarantors when authorized by a resolution of their Board of
Directors, and the Trustee may amend or supplement this Indenture or the Notes
without notice to or the consent of any Holder:
(1) to cure any ambiguity, defect or inconsistency in
this Indenture; provided that such amendments or supplements shall not
adversely affect the interests of the Holders in any material respect;
(2) to comply with Article Five;
(3) to comply with any requirements of the Commission in
connection with the qualification of this Indenture under the TIA;
(4) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee; or
(5) to make any change that, in the good faith opinion of
the Board of Directors as evidenced by a Board Resolution, does not
materially and adversely affect the rights of any Holder.
SECTION 9.02 WITH CONSENT OF HOLDERS. Subject to Sections 6.04
and 6.07 and without prior notice to the Holders, FelCor, FelCor LP and the
Subsidiary Guarantors, when authorized by their Board of Directors (as
evidenced by a Board Resolution), and the Trustee may amend this Indenture and
the Notes with the written consent of the Holders of a majority in aggregate
principal amount at maturity of the Notes then outstanding, and the Holders of
a majority in aggregate principal amount at maturity of the Notes then
outstanding by written notice to the Trustee may waive future compliance by
FelCor or FelCor LP with any provision of this Indenture or the Notes.
Notwithstanding the provisions of this Section 9.02, without the
consent of each Holder affected, an amendment or waiver, including a waiver
pursuant to Section 6.04, may not:
(i) change the Stated Maturity of the principal of, or
any installment of interest on, any Note,
(ii) reduce the principal amount of, or premium, if any,
or interest on, any Note,
(iii) change the place of payment of principal of, or
premium, if any, or interest on, any Note or adversely affect any
right of repayment at the option of any Holder of any Note,
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(iv) impair the right to institute suit for the
enforcement of any payment on or after the Stated Maturity (or, in the
case of a redemption, on or after the Redemption Date) of any Note,
(v) reduce the above-stated percentage of outstanding
Notes, the consent of whose Holders is necessary to modify or amend
this Indenture,
(vi) waive a Default in the payment of principal of,
premium, if any, or interest on the Notes,
(vii) voluntarily release a Guarantor of the Notes,
(viii) modify any of the provisions of this Section 9.02,
except to increase any such percentage or to provide that certain
other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each outstanding Note affected
thereby, or
(ix) reduce the percentage or aggregate principal amount
at maturity of outstanding Notes the consent of whose Holders is
necessary for waiver of compliance with certain provisions of this
Indenture or for waiver of certain defaults.
It shall not be necessary for the consent of the Holders under this
Section 9.02 to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof.
After an amendment, supplement or waiver under this Section 9.02
becomes effective, FelCor LP shall mail to the Holders affected thereby a
notice briefly describing the amendment, supplement or waiver. FelCor LP will
mail supplemental indentures to Holders upon request. Any failure of FelCor LP
to mail such notice, or any defect therein, shall not, however, in any way
impair or affect the validity of any such supplemental indenture or waiver.
SECTION 9.03 REVOCATION AND EFFECT OF CONSENT. Until an amendment
or waiver becomes effective, a consent to it by a Holder is a continuing
consent by the Holder and every subsequent Holder of a Note or portion of a
Note that evidences the same debt as the Note of the consenting Holder, even if
notation of the consent is not made on any Note. However, any such Holder or
subsequent Holder may revoke the consent as to its Note or portion of its Note.
Such revocation shall be effective only if the Trustee receives the notice of
revocation before the date the amendment, supplement or waiver becomes
effective. An amendment, supplement or waiver shall become effective on receipt
by the Trustee of written consents from the Holders of the requisite percentage
in principal amount of the outstanding Notes.
FelCor LP may, but shall not be obligated to, fix a record date for
the purpose of determining the Holders entitled to consent to any amendment,
supplement or waiver. If a record
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date is fixed, then, notwithstanding the last two sentences of the immediately
preceding paragraph, those persons who were Holders at such record date (or
their duly designated proxies) and only those persons shall be entitled to
consent to such amendment, supplement or waiver or to revoke any consent
previously given, whether or not such persons continue to be Holders after such
record date. No such consent shall be valid or effective for more than 90 days
after such record date.
After an amendment, supplement or waiver becomes effective, it shall
bind every Holder unless it is of the type described in any of clauses (i)
through (ix) of Section 9.02. In case of an amendment or waiver of the type
described in clauses (i) through (ix) of Section 9.02, the amendment or waiver
shall bind each Holder who has consented to it and every subsequent Holder of a
Note that evidences the same indebtedness as the Note of the consenting Holder.
SECTION 9.04 NOTATION ON OR EXCHANGE OF NOTES. If an amendment,
supplement or waiver changes the terms of a Note, the Trustee may require the
Holder to deliver it to the Trustee. The Trustee may place an appropriate
notation on the Note about the changed terms and return it to the Holder and
the Trustee may place an appropriate notation on any Note thereafter
authenticated. Alternatively, if FelCor LP or the Trustee so determines,
FelCor LP in exchange for the Note shall issue and the Trustee shall
authenticate a new Note that reflects the changed terms.
SECTION 9.05 TRUSTEE TO SIGN AMENDMENTS, ETC. The Trustee shall
be entitled to receive, and shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of any amendment, supplement or
waiver authorized pursuant to this Article Nine is authorized or permitted by
this Indenture. Subject to the preceding sentence, the Trustee shall sign such
amendment, supplement or waiver if the same does not adversely affect the
rights of the Trustee. The Trustee may, but shall not be obligated to, execute
any such amendment, supplement or waiver that affects the Trustee's own rights,
duties or immunities under this Indenture or otherwise.
SECTION 9.06 CONFORMITY WITH TRUST INDENTURE ACT. Every
supplemental indenture executed pursuant to this Article Nine shall conform to
the requirements of the TIA as then in effect.
ARTICLE 10
MISCELLANEOUS
SECTION 10.01 TRUST INDENTURE ACT OF 1939. Prior to the
effectiveness of the Registration Statement, this Indenture shall incorporate
and be governed by the provisions of the TIA that are required to be part of
and to govern indentures qualified under the TIA. After the effectiveness of
the Registration Statement, this Indenture shall be subject to the provisions
of
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the TIA that are required to be a part of this Indenture and shall, to the
extent applicable, be governed by such provisions.
SECTION 10.02 NOTICES. Any notice or communication shall be
sufficiently given if in writing and delivered in person or mailed by first
class mail addressed as follows:
if to FelCor, FelCor LP or any Subsidiary Guarantor:
c/o FelCor Suite Hotels, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
if to the Trustee:
SunTrust Bank, Atlanta
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Department
FelCor, FelCor LP or a Subsidiary Guarantor or the Trustee by notice
to the other may designate additional or different addresses for subsequent
notices or communications.
Any notice or communication mailed to a Holder shall be mailed to him
at his address as it appears on the Note Register by first class mail and shall
be sufficiently given to him if so mailed within the time prescribed. Copies
of any such communication or notice to a Holder shall also be mailed to the
Trustee and each Agent at the same time.
Failure to mail a notice or communication to a Holder or any defect in
it shall not affect its sufficiency with respect to other Holders. Except for
a notice to the Trustee, which is deemed given only when received, and except
as otherwise provided in this Indenture, if a notice or communication is mailed
in the manner provided in this Section 10.02, it is duly given, whether or not
the addressee receives it.
Where this Indenture provides for notice in any manner, such notice
may be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken
in reliance upon such waiver.
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In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by
mail, then such notification as shall be made with the approval of the Trustee
shall constitute a sufficient notification for every purpose hereunder.
SECTION 10.03 CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by FelCor LP to the Trustee to take any action
under this Indenture, FelCor LP shall furnish to the Trustee:
(i) an Officers' Certificate stating that, in the opinion
of the signers, all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with; and
(ii) an Opinion of Counsel stating that, in the opinion of
such Counsel, all such conditions precedent have been complied with.
SECTION 10.04 STATEMENTS REQUIRED IN CERTIFICATE OR OPINION. Each
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Indenture shall include:
(i) a statement that each person signing such certificate
or opinion has read such covenant or condition and the definitions
herein relating thereto;
(ii) a brief statement as to the nature and scope of the
examination or investigation upon which the statement or opinion
contained in such certificate or opinion is based;
(iii) a statement that, in the opinion of each such person,
he has made such examination or investigation as is necessary to
enable him to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(iv) a statement as to whether or not, in the opinion of
each such person, such condition or covenant has been complied with;
provided, however, that, with respect to matters of fact, an Opinion
of Counsel may rely on an Officers' Certificate or certificates of
public officials.
SECTION 10.05 RULES BY TRUSTEE, PAYING AGENT OR REGISTRAR. The
Trustee may make reasonable rules for action by or at a meeting of Holders.
The Paying Agent or Registrar may make reasonable rules for its functions.
SECTION 10.06 PAYMENT DATE OTHER THAN A BUSINESS DAY. If an
Interest Payment Date, Redemption Date, Payment Date, Stated Maturity or date
of maturity of any Note shall not be a Business Day, then payment of principal
of, premium, if any, or interest on such Note, as the case may be, need not be
made on such date, but may be made on the next succeeding Business Day
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with the same force and effect as if made on the Interest Payment Date, Payment
Date, or Redemption Date, or at the Stated Maturity or date of maturity of such
Note; provided that no interest shall accrue for the period from and after such
Interest Payment Date, Payment Date, Redemption Date, Stated Maturity or date
of maturity, as the case may be.
SECTION 10.07 GOVERNING LAW. The laws of the State of New York
shall govern this Indenture and the Notes. The Trustee, FelCor LP and the
Holders agree to submit to the jurisdiction of the courts of the State of New
York in any action or proceeding arising out of or relating to this Indenture
or the Notes.
SECTION 10.08 NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS. This
Indenture may not be used to interpret another indenture, loan or debt
agreement of FelCor LP, the Guarantors or any Subsidiary of any such Person.
Any such indenture, loan or debt agreement may not be used to interpret this
Indenture.
SECTION 10.09 NO RECOURSE AGAINST OTHERS. No recourse for the
payment of the principal of, premium, if any, or interest on any of the Notes,
or for any claim based thereon or otherwise in respect thereof, and no recourse
under or upon any obligation, covenant or agreement of FelCor LP or the
Guarantors contained in this Indenture, or in any of the Notes, or because of
the creation of any Indebtedness represented thereby, shall be had against any
incorporator or against any past, present or future limited partner,
stockholder, other equity holder (other than a general partner), officer,
director, employee or controlling person, as such, of FelCor LP, FelCor or the
Subsidiary Guarantors or of any successor Person, either directly or through
FelCor LP or any successor Person, whether by virtue of any constitution,
statute or rule of law, or by the enforcement of any assessment or penalty or
otherwise; it being expressly understood that all such liability is hereby
expressly waived and released as a condition of, and as a consideration for,
the execution of this Indenture and the issue of the Notes.
SECTION 10.10 SUCCESSORS. All agreements of FelCor LP, FelCor or
the Subsidiary Guarantors in this Indenture and the Notes shall bind its
successors. All agreements of the Trustee in this Indenture shall bind its
successor.
SECTION 10.11 DUPLICATE ORIGINALS. The parties may sign any number
of copies of this Indenture. Each signed copy shall be an original, but all of
them together represent the same agreement.
SECTION 10.12 SEPARABILITY. In case any provision in this
Indenture or in the Notes shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
SECTION 10.13 TABLE OF CONTENTS, HEADINGS, ETC. The Table of
Contents, Cross-Reference Table and headings of the Articles and Sections of
this Indenture have been inserted
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for convenience of reference only, are not to be considered a part hereof and
shall in no way modify or restrict any of the terms and provisions hereof.
ARTICLE 11
GUARANTEE OF THE NOTES
SECTION 11.01 GUARANTEE. Subject to the provisions of this Article
Eleven, each Guarantor, jointly and severally, hereby unconditionally
guarantees to each Holder and to the Trustee on behalf of the Holders: (i) the
due and punctual payment of the principal of, premium if any, on and interest
on the Notes, when and as the same shall become due and payable, whether at
maturity, by acceleration, redemption or otherwise, the due and punctual
payment of interest on the overdue principal of and interest, if any, on the
Notes, to the extent lawful, and the due and punctual performance of all other
obligations of FelCor LP to the Holders or the Trustee, all in accordance with
the terms of such Note and this Indenture and (ii) in the case of any extension
of time of payment or renewal of any Notes or any of such other obligations,
that the same will be promptly paid in full when due or performed in accordance
with the terms of the extension or renewal, at stated maturity, by
acceleration, redemption or otherwise. Each Guarantor hereby waives diligence,
presentment, filing of claims with a court in the event of merger or bankruptcy
of FelCor LP, any right to require a proceeding first against FelCor LP, the
benefit of discussion, protest or notice with respect to any such Note or the
debt evidenced thereby and all demands whatsoever (except as specified above),
and covenants that this Article Eleven will not be discharged as to any such
Note except by payment in full of the principal thereof and interest thereon
and as provided in Sections 8.01 and 8.02. The maturity of the obligations
guaranteed hereby may be accelerated as provided in Article Six for the
purposes of this Article Eleven. In the event of any declaration of
acceleration of such obligations as provided in Article Eleven, such
obligations (whether or not due and payable) shall become due and payable
immediately by the Guarantor for the purpose of this Article Eleven. In
addition, without limiting the foregoing provisions, upon the effectiveness of
an acceleration under Article Six, the Trustee shall promptly make a demand for
payment on the Notes under the Guarantees provided for in this Article Eleven.
Each Guarantor hereby irrevocably waives any claim or other rights
which it may now or hereafter acquire against performance or enforcement of
such Guarantor's obligations under this Indenture, including, without
limitation, any right of subrogation, reimbursement, exoneration, contribution,
indemnification, any right to participate in any claim or remedy of the Holders
against FelCor LP, whether or not such claim, remedy or right arises in equity,
or under contract, statute or common law, including, without limitation, the
right to take or receive from FelCor LP, directly or indirectly, in cash or
other property or in any other manner, payment or security on account of such
claim or other rights. If any amount shall be paid to any Guarantor in
violation of the preceding sentence and the principal of, premium if any, and
accrued interest on the Notes shall not have been paid in full, such amount
shall be deemed to have been paid to such Guarantor for the benefit of, and
held in trust for the benefit of, the Holders, and shall immediately be paid to
the Trustee for the benefit of the Holders to be credited and applied upon
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the principal of, premium, if any, and accrued interest on the Notes. Each
Guarantor acknowledges that it will receive direct and indirect benefits from
the issuance of the Notes pursuant to this Indenture and that the waiver set
forth in this paragraph is knowingly made in contemplation of such benefits.
The Guarantee set forth in this Section 11.01 shall not be valid or
become obligatory for any purpose with respect to a Note until the certificate
of authentication on such Note shall have been signed by or on behalf of the
Trustee.
SECTION 11.02 OBLIGATIONS OF GUARANTOR UNCONDITIONAL. Except as
provided in Section 11.07, nothing contained in this Article Eleven or
elsewhere in this Indenture or in the Notes is intended to or shall impair, as
among each Guarantor and the holders of the Notes, the obligation of each
Guarantor, which is absolute and unconditional, upon failure by FelCor LP, to
pay to the holders of the Notes and principal of, premium, if any, and interest
on the Notes as and when the same shall become due and payable in accordance
with their terms, or is intended to or shall affect the relative rights of the
holders of the Notes and creditors of each Guarantor, nor shall anything herein
or therein prevent the holder of any Note or the Trustee on their behalf from
exercising all remedies otherwise permitted by applicable law upon default
under this Indenture.
Without limiting the generality of the foregoing, nothing contained in
this Article Eleven will restrict the right of the Trustee or the holders of
the Notes to take any action to declare the Guarantees to be due and payable
prior to the stated maturity of the Notes pursuant to Section 6.02 or to pursue
any rights or remedies hereunder.
SECTION 11.03 NOTICE TO TRUSTEE. Each Guarantor shall give prompt
written notice to the Trustee of any fact known to such Guarantor which would
prohibit the making of any payment to or by the Trustee in respect of the
Guarantee pursuant to the provisions of this Article Eleven.
SECTION 11.04 THIS ARTICLE NOT TO PREVENT EVENTS OF DEFAULT. The
failure to make a payment on account of principal, of premium, if any, or
interest on the Notes by reason of any provision of this Article Eleven will
not be construed as preventing the occurrence of an Event of Default.
SECTION 11.05 TRUSTEE'S COMPENSATION NOT PREJUDICED. Nothing in
this Article Eleven will apply to amounts due to the Trustee pursuant to other
sections in the Indenture.
SECTION 11.06 PAYMENTS MAY BE PAID PRIOR TO DISSOLUTION. Nothing
contained in this Article Eleven or elsewhere in this Indenture shall prevent
(i) a Guarantor from making payments of principal of, premium if any, and
interest on the Notes, or from depositing with the Trustee any monies for such
payments or (ii) the application by the Trustee of any monies deposited with it
for the purpose of making such payments of principal of, premium, if any, and
interest on the Notes to the holders entitled thereto, each Guarantor shall
give prompt written notice to the Trustee of any dissolution, winding up,
liquidation or reorganization of such Guarantor.
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SECTION 11.07 SUSPENSION OF GUARANTEE. The Guarantee provided
pursuant to this Article 11 shall be suspended with respect to any Guarantor
for so long as such Guarantor is no longer an obligor (other than in the case
of FelCor, in its capacity as the general partner of FelCor LP) with respect to
other Indebtedness of FelCor or FelCor LP. The Guarantee provided pursuant to
this Article 11 by each Subsidiary Guarantor shall be automatically and
unconditionally released and discharged upon any sale, exchange or transfer, to
any Person not an Affiliate of FelCor LP or FelCor, of all of the Capital Stock
owned by FelCor LP, FelCor and their respective Restricted Subsidiaries in, or
all or substantially all the assets of such Subsidiary Guarantor; provided such
transfer is permitted by this Indenture. To the extent the Guarantee provided
pursuant to this Article 11 is suspended pursuant to this Section 11.07 with
respect to FelCor, the covenants contained in Article 4 and Article 5 governing
FelCor and its Restricted Subsidiaries shall be similarly suspended.
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SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, all as of the date first written above.
FELCOR SUITES LIMITED PARTNERSHIP
By: FELCOR SUITE HOTELS, INC., as
general partner
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President
& General Counsel
FELCOR SUITE HOTELS, INC.
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President
& General Counsel
SUNTRUST BANK, ATLANTA,
as Trustee
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
----------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Group Vice President
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Assistant Vice President
FELCOR/CSS HOTELS, L.L.C.
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President
& General Counsel
FELCOR/LAX HOTELS, L.L.C.
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President
& General Counsel
83
FELCOR/CSS HOLDINGS, L.P.
By: FELCOR/CSS HOTELS, L.L.C., as
general partner
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President
& General Counsel
FELCOR/ST. ▇▇▇▇ HOLDINGS, L.P.
By: FELCOR/CSS HOTELS, L.L.C., as
general partner
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President
& General Counsel
FELCOR/LAX HOLDINGS, LP.
By: FELCOR/LAX HOTELS, L.L.C.,
as general partner
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President
& General Counsel
FELCOR EIGHT HOTELS, L.L.C.
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President
& General Counsel
84
EXHIBIT A
[FACE OF NOTE]
[7 3/8% Senior Note Due 2004]
[7 5/8% Senior Notes Due 2007]
[CUSIP] _______
No. $_______
FELCOR SUITES LIMITED PARTNERSHIP, a Delaware limited
partnership ("FelCor LP"), which term includes any successor under the
Indenture hereinafter referred to), for value received, promises to pay to
__________, or its registered assigns, the principal sum of ___________
($_________) on ____________, [2004][2007].
Interest Payment Dates: April 1 and October 1, commencing
April 1, 1998.
Regular Record Dates: March 15 and September 15.
Reference is hereby made to the further provisions of this
Note set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
IN WITNESS WHEREOF, FelCor LP has caused this Note to be
signed manually or by facsimile by its duly authorized officers.
FELCOR SUITES LIMITED PARTNERSHIP
BY: FELCOR SUITE HOTELS, INC., general
partner
By:
----------------------------
Name:
Title:
By:
----------------------------
Name:
Title:
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85
(Trustee's Certificate of Authentication)
This is one of the [7 3/8% Senior Notes Due 2004] [7 5/8%
Senior Notes Due 2007] described in the within-mentioned Indenture.
Date: SUNTRUST BANK, ATLANTA,
as Trustee
By:
----------------------------
Authorized Signatory
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86
[REVERSE SIDE OF NOTE]
FELCOR SUITES LIMITED PARTNERSHIP
[7 3/8% Senior Note Due 2004]
[7 5/8% Senior Note Due 2007]
1. Principal and Interest.
FelCor LP will pay the principal of this Note on October 1,
[2004][2007].
FelCor LP promises to pay interest on the principal amount of
this Note on each Interest Payment Date, as set forth below, at the rate per
annum shown above.
Interest will be payable semiannually (to the holders of
record of the Notes at the close of business on March 15 or September 15
immediately preceding the Interest Payment Date) on each Interest Payment Date,
commencing April 1, 1998.
If an exchange offer registered under the Securities Act is
not consummated and a shelf registration statement under the Securities Act
with respect to resales of the Notes is not declared effective by the
Commission, on or before April 1, 1998 in accordance with the terms of the
Registration Rights Agreement dated September 26, 1997 among FelCor LP, FelCor,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, NationsBanc Capital Markets, Inc. and
Salomon Brothers, Inc the interest due on the Notes will accrue, at an annual
rate of .5% plus the interest rate specified on the face hereof, until the
exchange offer is consummated or the shelf registration statement is declared
effective. The Holder of this Note is entitled to the benefits of such
Registration Rights Agreement.
Interest on the Notes will accrue from the most recent date to
which interest has been paid or, if no interest has been paid, from October 1,
1997; provided that, if there is no existing default in the payment of interest
and this Note is authenticated between a Regular Record Date referred to on the
face hereof and the next succeeding Interest Payment Date, interest shall
accrue from such Interest Payment Date. Interest will be computed on the basis
of a 360-day year of twelve 30-day months.
FelCor LP shall pay interest on overdue principal and premium,
if any, and interest on overdue installments of interest, to the extent lawful,
at a rate per annum that is 2% in excess of the rate otherwise payable.
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2. Method of Payment.
FelCor LP will pay interest (except defaulted interest) on the
principal amount of the Notes as provided above on each April 1 and October 1
to the persons who are Holders (as reflected in the Note Register at the close
of business on such March 15 and September 15 immediately preceding the
Interest Payment Date), in each case, even if the Note is canceled on
registration of transfer or registration of exchange after such record date;
provided that, with respect to the payment of principal, FelCor LP will make
payment to the Holder that surrenders this Note to a Paying Agent on or after
October 1, [2004][2007].
FelCor LP will pay principal, premium, if any, and as provided
above, interest in money of the United States that at the time of payment is
legal tender for payment of public and private debts. However, FelCor LP may
pay principal, premium, if any, and interest by its check payable in such
money. It may mail an interest check to a Holder's registered address (as
reflected in the Note Register). If a payment date is a date other than a
Business Day at a place of payment, payment may be made at that place on the
next succeeding day that is a Business Day and no interest shall accrue for the
intervening period.
3. Paying Agent and Registrar.
Initially, the Trustee will act as authenticating agent,
Paying Agent and Registrar. FelCor LP may change any authenticating agent,
Paying Agent or Registrar without notice. FelCor LP, any Subsidiary or any
Affiliate of any of them may act as Paying Agent, Registrar or co-Registrar.
4. Indenture; Limitations.
FelCor LP issued the Notes under an Indenture dated as of
October 1, 1997 (the "Indenture"), among FelCor LP, FelCor, the Subsidiary
Guarantors and SunTrust Bank, Atlanta (the "Trustee"). Capitalized terms
herein are used as defined in the Indenture unless otherwise indicated. The
terms of the Notes include those stated in the Indenture and those made part of
the Indenture by reference to the Trust Indenture Act. The Notes are subject
to all such terms, and Holders are referred to the Indenture and the Trust
Indenture Act for a statement of all such terms. To the extent permitted by
applicable law, in the event of any inconsistency between the terms of this
Note and the terms of the Indenture, the terms of the Indenture shall control.
The Notes are general unsecured obligations of FelCor LP.
5. Redemption.
The Notes will be redeemable in whole at any time or in part
from time to time, at the option of FelCor LP, at a Redemption Price equal to
the greater of (i) 100% of the principal amount of such Notes and (ii) the sum
of the present values of the remaining payments of
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principal and interest thereon from the Redemption Date to the applicable
maturity date discounted, in each case, to the Redemption Date on a semiannual
basis (assuming a 360-day year consisting of twelve 30-day months) at the
Treasury Rate plus 25 basis points, plus, in each case, accrued interest
thereon to the date of redemption.
"Comparable Treasury Issue" means the United States Treasury
security selected by an Independent Investment Banker as having a maturity
comparable to the remaining term of the Note to be redeemed that would be
utilized, at the time of selection and in accordance with customary financial
practice, in pricing new issues of corporate debt securities of comparable
maturity to the remaining term of such Note.
"Comparable Treasury Price" means, with respect to any
Redemption Date, (i) the average of the bid and asked prices for the Comparable
Treasury Issue (expressed in each case as a percentage of its principal amount)
on the third Business Day preceding such Redemption Date, as set forth in the
daily statistical release (or any successor release) published by the Federal
Reserve Bank of New York and designated "Composite 3:30 p.m. Quotations for
U.S. Government Securities" or (ii) if such release (or any successor release)
is not published or does not contain such prices on such Business Day, the
average of the Reference Treasury Dealer Quotations actually obtained by the
Trustee for such Redemption Date.
"Independent Investment Banker" means one of the Reference
Treasury Dealers appointed by the Trustee after consultation with FelCor LP.
"Reference Treasury Dealer" means each of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co.
Incorporated, NationsBanc Capital Markets, Inc. and Salomon Brothers Inc and
their respective successors; provided, that if any of the foregoing shall cease
to be a primary U.S. Government securities dealer in New York City (a "Primary
Treasury Dealer"), FelCor LP shall substitute therefor another Primary Treasury
Dealer.
"Reference Treasury Dealer Quotations" means, with respect to
each Reference Treasury Dealer and any Redemption Date, the average, as
determined by the Trustee, of the bid and asked prices for the Comparable
Treasury Issue (expressed in each case as a percentage of its principal amount)
quoted in writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m.
on the third Business Day preceding such Redemption Date.
"Treasury Rate" means, with respect to any Redemption Date,
the rate per annum equal to the semiannual equivalent yield to maturity of the
Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue
(expressed as a percentage of its principal amount) equal to the Comparable
Treasury Price for such Redemption Date.
Notice of any optional redemption will be mailed at least 30 but not
more than 60 days before the Redemption Date to each Holder of Notes to be
redeemed at its last address as it appears in the Note Register. Notes in
original principal amount greater than $1,000 may be
A-5
89
redeemed in part. On and after the Redemption Date, interest ceases to accrue
on Notes or portions thereof called for redemption, unless FelCor LP defaults
in the payment of the amount due upon redemption.
6. Repurchase upon Change in Control.
Upon the occurrence of any Change of Control, each Holder
shall have the right to require the repurchase of its Notes by FelCor LP in
cash pursuant to the offer described in the Indenture at a purchase price equal
to 101% of the principal amount thereof plus accrued and unpaid interest, if
any, to the date of purchase (the "Change of Control Payment").
A notice of such Change of Control will be mailed within 30
days after any Change of Control occurs to each Holder at his last address as
it appears in the Note Register. Notes in original denominations larger than
$1,000 may be sold to FelCor LP in part. On and after the Change of Control
Payment Date, interest ceases to accrue on Notes or portions of Notes
surrendered for purchase by FelCor LP, unless FelCor LP defaults in the payment
of the Change of Control Payment.
7. Denominations; Transfer; Exchange.
The Notes are in registered form without coupons in
denominations of $1,000 of principal amount at maturity and multiples of $1,000
in excess thereof. A Holder may register the transfer or exchange of Notes in
accordance with the Indenture. The Registrar may require a Holder, among other
things, to furnish appropriate endorsements and transfer documents and to pay
any taxes and fees required by law or permitted by the Indenture. The
Registrar need not register the transfer or exchange of any Notes selected for
redemption. Also, it need not register the transfer or exchange of any Notes
for a period of 15 days before a selection of Notes to be redeemed is made.
8. Persons Deemed Owners.
A Holder shall be treated as the owner of a Note for all
purposes.
9. Unclaimed Money.
If money for the payment of principal, premium, if any, or
interest remains unclaimed for two years, the Trustee and the Paying Agent will
pay the money back to FelCor LP at its request. After that, Holders entitled
to the money must look to FelCor LP for payment, unless an abandoned property
law designates another Person, and all liability of the Trustee and such Paying
Agent with respect to such money shall cease.
▇-▇
▇▇
▇▇. Discharge Prior to Redemption or Maturity.
If FelCor LP deposits with the Trustee money or U.S.
Government Obligations sufficient to pay the then outstanding principal of,
premium, if any, and accrued interest on the Notes (a) to redemption or
maturity, FelCor LP will be discharged from the Indenture and the Notes, except
in certain circumstances for certain sections thereof, and (b) to the Stated
Maturity, FelCor LP will be discharged from certain covenants set forth in the
Indenture.
11. Amendment; Supplement; Waiver.
Subject to certain exceptions, the Indenture or the Notes may
be amended or supplemented with the consent of the Holders of at least a
majority in principal amount of the Notes then outstanding, and any existing
default or compliance with any provision may be waived with the consent of the
Holders of at least a majority in principal amount of the Notes then
outstanding. Without notice to or the consent of any Holder, the parties
thereto may amend or supplement the Indenture or the Notes to, among other
things, cure any ambiguity, defect or inconsistency and make any change that
does not materially and adversely affect the rights of any Holder.
12. Restrictive Covenants.
The Indenture imposes certain limitations on the ability of
FelCor, FelCor LP and their respective Restricted Subsidiaries, among other
things, to Incur additional Indebtedness, make Restricted Payments, use the
proceeds from Asset Sales, engage in transactions with Affiliates or merge,
consolidate or transfer substantially all of its assets. Within 45 days after
the end of each fiscal quarter (90 days after the end of the last fiscal
quarter of each year), FelCor and FelCor LP must report to the Trustee on
compliance with such limitations.
13. Successor Persons.
When a successor person or other entity assumes all the
obligations of its predecessor under the Notes and the Indenture, the
predecessor person will be released from those obligations.
14. Defaults and Remedies.
The following events constitute "Events of Default" under the
Indenture:
(a) default in the payment of principal of (or premium, if any,
on) any Note when the same becomes due and payable at maturity, upon
acceleration, redemption or otherwise;
(b) default in the payment of interest on any Note when the same
becomes due and payable, and such default continues for a period of 30 days;
A-7
91
(c) default in the performance or breach of the provisions of the
Indenture applicable to mergers, consolidations and transfers of all or
substantially all of the assets of FelCor LP and FelCor or the failure by
FelCor LP to make or consummate an Offer to Purchase in accordance with Section
4.10 or Section 4.11;
(d) FelCor LP or FelCor defaults in the performance of or breaches
any other covenant or agreement of FelCor LP or FelCor in the Indenture or
under the Notes (other than a default specified in clause (a), (b) or (c)
above) and such default or breach continues for a period of 30 consecutive days
after written notice by the Trustee or the Holders of 25% or more in aggregate
principal amount of the Notes;
(e) there occurs with respect to any issue or issues of
Indebtedness of FelCor LP or FelCor or any Significant Subsidiary having an
outstanding principal amount of $10 million or more in the aggregate for all
such issues of all such Persons, whether such Indebtedness now exists or shall
hereafter be created, (I) an event of default that has caused the holder
thereof to declare such Indebtedness to be due and payable prior to its Stated
Maturity and such Indebtedness has not been discharged in full or such
acceleration has not been rescinded or annulled within 30 days of such
acceleration and/or (II) the failure to make a principal payment at the final
(but not any interim) fixed maturity and such defaulted payment shall not have
been made, waived or extended within 30 days of such payment default;
(f) any final judgment or order (not covered by insurance) for the
payment of money in excess of $10 million in the aggregate for all such final
judgments or orders against all such Persons (treating any deductibles,
self-insurance or retention as not covered by insurance) shall be rendered
against FelCor LP or FelCor or any Significant Subsidiary and shall not be paid
or discharged, and there shall be any period of 60 consecutive days following
entry of the final judgment or order that causes the aggregate amount for all
such final judgments or orders outstanding and not paid or discharged against
all such Persons to exceed $10 million during which a stay of enforcement of
such final judgment or order, by reason of a pending appeal or otherwise, shall
not be in effect;
(g) a court having jurisdiction in the premises enters a decree or
order for (A) relief in respect of FelCor LP or FelCor or any Significant
Subsidiary in an involuntary case under any applicable bankruptcy, insolvency
or other similar law now or hereafter in effect, (B) appointment of a receiver,
liquidator, assignee, custodian, trustee, sequestrator or similar official of
FelCor LP or FelCor or any Significant Subsidiary or for all or substantially
all of the property and assets of FelCor LP or FelCor or any Significant
Subsidiary or (C) the winding up or liquidation of the affairs of FelCor LP or
FelCor or any Significant Subsidiary and, in each case, such decree or order
shall remain unstayed and in effect for a period of 60 consecutive days; or
(h) FelCor LP or FelCor or any Significant Subsidiary (A)
commences a voluntary case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect, or consents to the entry of an order
for relief in an involuntary case under such law, (B) consents
A-8
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to the appointment of or taking possession by a receiver, liquidator, assignee,
custodian, trustee, sequestrator or similar official of FelCor LP or FelCor or
Significant Subsidiary or for all or substantially all of the property and
assets of FelCor LP or FelCor or any Significant Subsidiary or (C) effects any
general assignment for the benefit of its creditors.
If an Event of Default, as defined in the Indenture, occurs
and is continuing, the Trustee or the Holders of at least 25% in principal
amount of the Notes may declare all the Notes to be due and payable. If a
bankruptcy or insolvency default with respect to FelCor LP occurs and is
continuing, the Notes automatically become due and payable. Holders may not
enforce the Indenture or the Notes except as provided in the Indenture. The
Trustee may require indemnity satisfactory to it before it enforces the
Indenture or the Notes. Subject to certain limitations, Holders of at least a
majority in principal amount of the Notes then outstanding may direct the
Trustee in its exercise of any trust or power.
15. Trustee Dealings with Company.
The Trustee under the Indenture, in its individual or any
other capacity, may make loans to, accept deposits from and perform services
for FelCor LP or its Affiliates and may otherwise deal with FelCor LP or its
Affiliates as if it were not the Trustee.
16. No Recourse Against Others.
No incorporator or any past, present or future limited
partner, shareholder, other equity holder, officer, director, employee or
controlling person as such, of FelCor LP or of any successor Person shall have
any liability for any obligations of FelCor LP under the Notes or the Indenture
or for any claim based on, in respect of or by reason of, such obligations or
their creation. Each Holder by accepting a Note waives and releases all such
liability. The waiver and release are part of the consideration for the
issuance of the Notes.
17. Authentication.
This Note shall not be valid until the Trustee or
authenticating agent signs the certificate of authentication on the other side
of this Note.
18. Abbreviations.
Customary abbreviations may be used in the name of a Holder or
an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the
entireties), JT TEN (= joint tenants with right of survivorship and not as
tenants in common), CUST (= Custodian) and U/G/M/A (= Uniform Gifts to Minors
Act).
FelCor LP will furnish to any Holder upon written request and
without charge a copy of the Indenture. Requests may be made to FelCor Suites
Limited Partnership, ▇▇▇ ▇▇▇▇
▇-▇
▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ or at such other
address provided for in the Indenture.
19. Guarantee.
Repayment of principal and interest on the Notes is guaranteed on a
senior basis by the Guarantors pursuant to Article Eleven of the Indenture.
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[FORM OF TRANSFER NOTICE]
FOR VALUE RECEIVED the undersigned registered holder hereby
sell(s), assign(s) and transfer(s) unto
Insert Taxpayer Identification No.
__________________________________
_____________________________________________________ Please print or typewrite
name and address including zip code of assignee _______________________________
____________ ___________ the within Note and all rights thereunder, hereby
irrevocably constituting _______ ___________________________________ and
appointing _______________________ attorney to transfer said Note on the books
of FelCor LP with full power of substitution in the premises.
[THE FOLLOWING PROVISION TO BE INCLUDED
ON ALL NOTES OTHER THAN EXCHANGE NOTES,
PERMANENT OFFSHORE GLOBAL NOTES AND
OFFSHORE PHYSICAL NOTES]
In connection with any transfer of this Note occurring prior to the
date which is the earlier of (i) the date the shelf registration statement with
respect to resales of the Notes is declared effective or (ii) two years after
the original issuance of the Notes, the undersigned confirms that without
utilizing any general solicitation or general advertising that:
[Check One]
[ ] (a) this Note is being transferred in compliance with the
exemption from registration under the Securities Act of 1933,
as amended, provided by Rule 144A thereunder.
or
[ ] (b) this Note is being transferred other than in accordance with
(a) above and documents are being furnished which comply with
the conditions of transfer set forth in this Note and the
Indenture.
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If none of the foregoing boxes is checked, the Trustee or other Registrar shall
not be obligated to register this Note in the name of any Person other than the
Holder hereof unless and until the conditions to any such transfer of
registration set forth herein and in Section 2.08 of the Indenture shall have
been satisfied.
Date:
---------------- ---------------------------------------------
NOTICE: The signature to this assignment must
correspond with the name as written upon the
face of the within-mentioned instrument in
every particular, without alteration or any
change whatsoever.
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this
Note for its own account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act
of 1933, as amended, and is aware that the sale to it is being made in reliance
on Rule 144A and acknowledges that it has received such information regarding
FelCor LP as the undersigned has requested pursuant to Rule 144A or has
determined not to request such information and that it is aware that the
transferor is relying upon the undersigned's foregoing representations in order
to claim the exemption from registration provided by Rule 144A.
Dated:
---------------- ---------------------------------------------
NOTICE: To be executed by an executive officer
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OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have this Note purchased by FelCor LP pursuant
to Section 4.10 or Section 4.11 of the Indenture, check the Box: [_]
If you wish to have a portion of this Note purchased by FelCor
LP pursuant to Section 4.10 or Section 4.11 of the Indenture, state the amount
(in principal amount at maturity): $___________________.
Date:
-------------
Your Signature:
----------------------------------------------------------------
(Sign exactly as your name appears on the other side of this Note)
Signature Guarantee:
----------------------------
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EXHIBIT B
Form of Certificate
,
----------- -----
FelCor Suites Limited Partnership
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
FelCor Suite Hotels, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
SunTrust Bank, Atlanta
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇ Annex
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Department
Re: FelCor Suites Limited Partnership ("FelCor LP")
[7 3/8% Senior Notes Due 2004] [7 5/8% Senior Notes Due 2007]
(the "Notes")
-------------------------------------------------------------
Dear Sirs:
This letter relates to U.S. $______ principal amount at maturity of
Notes represented by a Note (the "Legended Note") which bears a legend
outlining restrictions upon transfer of such Legended Note. Pursuant to
Section 2.01 of the Indenture (the "Indenture") dated as of October 1, 1997
relating to the Notes, we hereby certify that we are (or we will hold such
securities on behalf of) a person outside the United States to whom the Notes
could be transferred in accordance with Rule 904 of Regulation S promulgated
under the U.S. Securities Act of 1933, as amended. Accordingly, you are hereby
requested to exchange the legended certificate for an unlegended certificate
representing an identical principal amount at maturity of Notes, all in the
manner provided for in the Indenture.
You are entitled to rely upon this letter and are irrevocably
authorized to produce this letter or a copy hereof to any interested party in
any administrative or legal proceedings or official inquiry with respect to the
matters covered hereby. Terms used in this certificate have the meanings set
forth in Regulation S.
Very truly yours,
[NAME OF HOLDER]
By:
----------------------------
Authorized Signature
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EXHIBIT C
Form of Certificate to Be
Delivered in Connection with
Transfers to Non-QIB Accredited Investors
,
------------- ----
FelCor Suites Limited Partnership
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
FelCor Suite Hotels, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
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SunTrust Bank, Atlanta
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Attention: Corporate Trust Department
Re: FelCor Suites Limited Partnership ("FelCor LP")
[7 3/8% Senior Notes Due 2004] [7 5/8% Senior Notes Due 2007]
(the "Notes")
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Dear Sirs:
In connection with our proposed purchase of $____________ aggregate
principal amount at maturity of the Notes, we confirm that:
1. We understand that any subsequent transfer of the Notes is
subject to certain restrictions and conditions set forth in the Indenture dated
as of October 1, 1997, relating to the Notes (the "Indenture") and the
undersigned agrees to be bound by, and not to resell, pledge or otherwise
transfer the Notes except in compliance with, such restrictions and conditions
and the Securities Act of 1933, as amended (the "Securities Act").
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2. We understand that the offer and sale of the Notes have not
been registered under the Securities Act, and that the Notes may not be offered
or sold except as permitted in the following sentence. We agree, on our own
behalf and on behalf of any accounts for which we are acting as hereinafter
stated, that if we should sell any Notes, we will do so only (A) to FelCor,
FelCor LP or any subsidiary thereof, (B) in accordance with Rule 144A under the
Securities Act to a "qualified institutional buyer" (as defined therein), (C)
to an institutional "accredited investor" (as defined below) that, prior to
such transfer, furnishes (or has furnished on its behalf by a U.S.
broker-dealer) to you a signed letter substantially in the form of this letter,
and, if this letter relates to a proposed transfer in respect of an aggregate
principal amount of Notes less than $100,000, an opinion of counsel acceptable
to FelCor and FelCor LP that such transfer is in compliance with the Securities
Act, (D) outside the United States in accordance with Rule 904 of Regulation S
under the Securities Act, (E) pursuant to the exemption from registration
provided by Rule 144 under the Securities Act (if available), or (F) pursuant
to an effective registration statement under the Securities Act, and we further
agree to provide to any person purchasing any of the Notes from us a notice
advising such purchaser that resales of the Notes are restricted as stated
herein.
3. We understand that, on any proposed resale of any Notes, we
will be required to furnish to you such certifications, legal opinions and
other information as you may reasonably require to confirm that the proposed
sale complies with the foregoing restrictions. We further understand that the
Notes purchased by us will bear a legend to the foregoing effect.
4. We are an institutional "accredited investor" (as defined in
Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and
have such knowledge and experience in financial and business matters as to be
capable of evaluating the merits and risks of our investment in the Notes, and
we and any accounts for which we are acting are each able to bear the economic
risk of our or its investment.
5. We are acquiring the Notes purchased by us for our own account
or for one or more accounts (each of which is an institutional "accredited
investor") as to each of which we exercise sole investment discretion.
You are entitled to rely upon this letter and are irrevocably
authorized to produce this letter or a copy hereof to any interested party in
any administrative or legal proceedings or official inquiry with respect to the
matters covered hereby.
Very truly yours,
[NAME OF TRANSFEREE]
By:
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Authorized Signature
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EXHIBIT D
Form of Certificate to Be Delivered
in Connection with Transfers
Pursuant to Regulation S
,
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FelCor Suites Limited Partnership
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FelCor Suite Hotels, Inc.
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SunTrust Bank, Atlanta
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▇▇▇▇ ▇▇▇ Annex
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Attention: Corporate Trust Department
Re: FelCor Suites Limited Partnership ("FelCor LP")
[7 3/8% Senior Notes Due 2004] [7 5/8% Senior Notes Due 2007]
(the "Notes")
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Dear Sirs:
In connection with our proposed sale of U.S.$________ aggregate
principal amount at maturity of the Notes, we confirm that such sale has been
effected pursuant to and in accordance with Regulation S under the Securities
Act of 1933, as amended (the "Securities Act"), and, accordingly, we represent
that:
(1) the offer of the Notes was not made to a person in the United
States;
(2) at the time the buy order was originated, the transferee was
outside the United States or we and any person acting on our behalf reasonably
believed that the transferee was outside the United States;
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(3) no directed selling efforts have been made by us in the United
States in contravention of the requirements of Rule 903(b) or Rule 904(b) of
Regulation S, as applicable; and
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act.
You are entitled to rely upon this letter and are irrevocably
authorized to produce this letter or a copy hereof to any interested party in
any administrative or legal proceedings or official inquiry with respect to the
matters covered hereby. Terms used in this certificate have the meanings set
forth in Regulation S.
Very truly yours,
[NAME OF TRANSFEROR]
By:
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Authorized Signature
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