FELCOR LODGING LIMITED PARTNERSHIP, as Issuer AND FELCOR LODGING TRUST INCORPORATED FELCOR/CSS HOLDINGS, L.P. FELCOR HOTEL ASSET COMPANY, L.L.C. FELCOR PENNSYLVANIA COMPANY, L.L.C. FELCOR LODGING HOLDING COMPANY, L.L.C. FELCOR TRS HOLDINGS, L.L.C....
Exhibit
4.3
FELCOR
LODGING LIMITED PARTNERSHIP,
as
Issuer
AND
FELCOR
LODGING TRUST INCORPORATED
FELCOR/CSS
HOLDINGS, L.P.
FELCOR
HOTEL ASSET COMPANY, L.L.C.
FELCOR
PENNSYLVANIA COMPANY, L.L.C.
FELCOR
LODGING HOLDING COMPANY, L.L.C.
FELCOR
TRS HOLDINGS, L.L.C.
FELCOR
CANADA CO.
FELCOR
OMAHA HOTEL COMPANY, L.L.C.
MYRTLE
BEACH HOTELS, L.L.C.
FELCOR
TRS BORROWER 1, L.P.
FELCOR
TRS BORROWER 4, L.L.C.
FELCOR/ST.
▇▇▇▇ HOLDINGS, L.P.,
as
Guarantors
AND
FELCOR
HOLDINGS TRUST,
as
Pledgor,
AND
U.S.
BANK NATIONAL ASSOCIATION,
as
Trustee
____________________
Third
Supplemental Indenture
Dated
as of September 29, 2009
____________________
Supplemental
Indenture to the Indenture
dated as
of October 31, 2006, as amended
and
supplemented as of December 31, 2006
and
August 16, 2007
with
respect to the
Senior
Secured Floating Rate Notes due 2011
THIRD
SUPPLEMENTAL INDENTURE
Third
Supplemental Indenture, dated as of September 29, 2009 (this “Third
Supplemental Indenture”), by and among FelCor Lodging Limited
Partnership, a Delaware limited partnership (“FelCor
LP”), FelCor Lodging Trust Incorporated, a Maryland corporation (“FelCor”),
FelCor/CSS Holdings, L.P., a Delaware limited partnership, FelCor Hotel Asset
Company, L.L.C., a Delaware limited liability company, FelCor Pennsylvania
Company, L.L.C., a Delaware limited liability company, FelCor Lodging Holding
Company, L.L.C., a Delaware limited liability company, FelCor TRS Holdings,
L.L.C., a Delaware limited liability company, FelCor Canada Co., a Nova Scotia
unlimited liability company, FelCor Omaha Hotel Company, L.L.C., a Delaware
limited liability company, Myrtle Beach Hotels, L.L.C., a Delaware limited
liability company, FelCor TRS Borrower 1, L.P., a Delaware limited partnership,
FelCor TRS Borrower 4, L.L.C., a Delaware limited liability company, FelCor/St.
▇▇▇▇ Holdings, L.P., a Delaware limited partnership, and FelCor Holdings Trust,
a Massachusetts business trust (the “Pledgor”),
and U.S. Bank National Association, as trustee (the “Trustee”),
under the Indenture (as defined below).
W
I T N E S S E T H
WHEREAS, FelCor LP, FelCor,
the Pledgor and certain subsidiaries named therein previously executed and
delivered to the Trustee an indenture, dated as of October 31, 2006, as amended
or supplemented prior to the date hereof (the “Indenture”),
pursuant to which FelCor LP issued $215,000,000 aggregate principal amount of
Senior Secured Floating Rate Notes due 2011 (the “Notes”);
WHEREAS, Section 9.02 of the
Indenture provides that FelCor, FelCor LP, the Subsidiary Guarantors, the
Pledgor and the Trustee may, with the written consent of the Holders of at least
a majority in aggregate principal amount of the Notes then outstanding, enter
into a supplemental indenture for the purpose of amending the Indenture,
including, without limitation, consents obtained in connection with a tender
offer or exchange offer for, or purchase, of the Notes;
WHEREAS, FelCor LP has made a
tender offer (the “Tender
Offer”) to each registered Holder of Notes to purchase, upon the terms
and subject to the conditions set forth in the Offer to Purchase and Consent
Solicitation Statement, dated September 17, 2009, as amended, modified or
supplemented (the “Offer to
Purchase”), any and all of such Holder’s outstanding Notes for an amount
in cash equal to $980 for each $1,000 principal amount of the Notes so tendered
and accepted for purchase (the “Tender Offer
Consideration”);
WHEREAS, in conjunction with
the Tender Offer, FelCor LP has also solicited consents from the Holders for
certain proposed amendments (the “Proposed
Amendments”) to the Indenture, which Proposed Amendment are contained in
this Third Supplemental Indenture;
WHEREAS, subject to the terms
and conditions set forth in the Offer to Purchase, FelCor LP has also offered to
pay each Holder who validly consents to the Proposed Amendments and validly
tenders Notes at or prior to the Consent Date (as defined in the Offer to
Purchase), in addition to the Tender Offer Consideration, an amount in cash
equal to approximately $20.00 for each $1,000 principal amount of Notes so
tendered and accepted for
2
purchase
(the “Consent
Payment” and together with the Tender Offer Consideration, the “Total
Consideration”);
WHEREAS, the Holders of not
less than a majority in aggregate principal amount of the outstanding Notes have
consented to the Proposed Amendments; and
WHEREAS, this Third
Supplemental Indenture is effective as of the date upon which the conditions set
forth in Section
3 hereof are satisfied.
NOW THEREFORE, in
consideration of the foregoing and for other good and valuable consideration,
the receipt of which is hereby acknowledged, FelCor, FelCor LP, each Subsidiary
Guarantor, the Pledgor and the Trustee mutually covenant and agree for the equal
and ratable benefit of the Holders of the Notes as follows:
SECTION
1. Definitions. For all purposes
of the Indenture and this Third Supplemental Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(1) the words
“herein,” “hereof” and “hereunder” and other words of similar import refer to
the Indenture and this Third Supplemental Indenture as a whole and not to any
particular Article, Section or subdivision; and
(2) capitalized
terms used but not defined in this Third Supplemental Indenture shall have the
meanings assigned to them in the Indenture.
SECTION
2. Amendments. The
Indenture is hereby amended with respect to the Notes as follows:
(1) Section
4.03 of the Indenture is hereby eliminated in its entirety and replaced with the
words: “Section 4.03,
INTENTIONALLY OMITTED.”
(2) Section
4.04 of the Indenture is hereby eliminated in its entirety and replaced with the
words: “Section 4.04,
INTENTIONALLY OMITTED.”
(3) Section
4.05 of the Indenture is hereby eliminated in its entirety and replaced with the
words: “Section 4.05,
INTENTIONALLY OMITTED.”
(4) Section
4.06 of the Indenture is hereby eliminated in its entirety and replaced with the
words: “Section 4.06,
INTENTIONALLY OMITTED.”
(5) Section
4.07 of the Indenture is hereby eliminated in its entirety and replaced with the
words: “Section 4.07,
INTENTIONALLY OMITTED.”
(6) Section
4.08 of the Indenture is hereby eliminated in its entirety and replaced with the
words: “Section 4.08,
INTENTIONALLY OMITTED.”
(7) Section
4.09 of the Indenture is hereby eliminated in its entirety and replaced with the
words: “Section 4.09,
INTENTIONALLY OMITTED.”
3
(8) Section
4.10 of the Indenture is hereby eliminated in its entirety and replaced with the
words: “Section 4.10,
INTENTIONALLY OMITTED.”
(9) Section
4.11 of the Indenture is hereby eliminated in its entirety and replaced with the
words: “Section 4.11,
INTENTIONALLY OMITTED.”
(10) Section
4.12 of the Indenture is hereby eliminated in its entirety and replaced with the
words: “Section 4.12,
INTENTIONALLY OMITTED.”
(11) Section
4.13 of the Indenture is hereby eliminated in its entirety and replaced with the
words: “Section 4.13, INTENTIONALLY
OMITTED.”
(12) Section
4.14 of the Indenture is hereby eliminated in its entirety and replaced with the
words: “Section 4.14,
INTENTIONALLY OMITTED.”
(13) Section
4.15 of the Indenture is hereby eliminated in its entirety and replaced with the
words: “Section 4.15,
INTENTIONALLY OMITTED.”
(14) Section
4.16 of the Indenture is hereby eliminated in its entirety and replaced with the
words: “Section 4.16,
INTENTIONALLY OMITTED.”
(15) Section
4.17 of the Indenture is hereby eliminated in its entirety and replaced with the
words: “Section 4.17,
INTENTIONALLY OMITTED.”
(16) Section
4.18 of the Indenture is hereby eliminated in its entirety and replaced with the
words: “Section 4.18,
INTENTIONALLY OMITTED.”
(17) Section
4.19 of the Indenture is hereby eliminated in its entirety and replaced with the
words: “Section 4.19,
INTENTIONALLY OMITTED.”
(18) Section
4.20 of the Indenture is hereby eliminated in its entirety and replaced with the
words: “Section 4.20,
INTENTIONALLY OMITTED.”
(19) Section
4.21 of the Indenture is hereby eliminated in its entirety and replaced with the
words: “Section 4.21,
INTENTIONALLY OMITTED.”
(20) Sections
5.01 the Indenture is hereby amended to delete the text in subsections (iii) and
(iv) and to replace the text thereof with the text “INTENTIONALLY
OMITTED.”
(21) Sections
6.01 the Indenture is hereby amended to delete the text in subsections (c), (e)
and (f) and to replace the text thereof with the text “INTENTIONALLY
OMITTED.”
(22) Section
8.02 of the Indenture is hereby amended to delete the text in subsections (B),
(C), (E) and (F) and to replace the text thereof with the text “INTENTIONALLY
OMITTED.”
4
(23) all
definitions set forth in Section 1.01 of the Indenture that relate to defined
terms used solely in covenants or sections deleted hereby shall be deleted in
their entirety and all references to sections of the Indenture that are used
exclusively in the text of the Indenture that are being otherwise eliminated by
this Third Supplemental Indenture shall be deleted in their
entirety.
SECTION
3. Effectiveness. This Third
Supplemental Indenture amends and supplements the Indenture with respect to the
Notes and shall be a part and subject to all of the terms thereof. Except as
amended and supplemented hereby, the Indenture shall continue in full force and
effect.
Except as
provided in Section
10 hereof, the Proposed Amendments effected by this Third Supplemental
Indenture shall take effect on the date hereof, provided that each of the
parties hereto shall have executed and delivered this
Third Supplemental Indenture; provided, however, that the
Proposed Amendments set forth in Section 2 hereof
shall be operative only upon, and simultaneously with, and shall have no force
and effect prior to, FelCor LP’s deposit of cash on the Settlement Date (as
defined in the Offer to Purchase) in sufficient amount to pay to each Holder of
tendered Notes that have been accepted (which shall be at least a majority in
aggregate principal amount of the Notes then outstanding) for purchase and
payment by FelCor LP the Total Consideration or the Tender Offer Consideration,
as applicable, including any accrued and unpaid interest up to but not including
the Settlement Date.
SECTION
4. NEW
YORK LAW TO GOVERN. THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND
BE USED TO CONSTRUE THIS THIRD SUPPLEMENTAL INDENTURE BUT WITHOUT GIVING EFFECT
TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION
OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
SECTION
5. The Trustee. The Trustee shall
not be responsible in any manner whatsoever for or in respect of the validity or
sufficiency of this Third Supplemental Indenture or for or in respect of the
recitals contained herein, all of which recitals are made solely by FelCor,
FelCor LP, the Subsidiary Guarantors and the Pledgor.
SECTION
6. Successors and Assigns. All
agreements of FelCor, FelCor LP, the Subsidiary Guarantors and the Pledgor in
this Third Supplemental Indenture shall bind their respective successors and
assigns. All agreements of the Trustee in this Third Supplemental Indenture
shall bind its successors.
SECTION
7. Separability. In
case any provision of this Third Supplemental Indenture 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
8. Effect of
Headings. The Section headings herein are for convenience only
and shall not affect the construction hereof.
5
SECTION
9. Counterparts. The
parties may sign any number of copies of this Third Supplemental Indenture. Each
signed copy shall be an original, but all of them together represent the same
agreement.
SECTION 10. Release of
Collateral. The parties hereto agree and acknowledge that in
accordance with Section 12.03(a)(v) of the Indenture, the Pledged Collateral
shall be contemporaneously released by the Collateral Agent upon the receipt by
FelCor LP of the consent of Holders of not less than two-thirds in principal
amount of the outstanding Notes.
[SIGNATURE
PAGES FOLLOW]
IN
WITNESS WHEREOF, the parties hereto have caused this Third Supplemental
Indenture to be duly executed as of the date first above written.
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FELCOR LODGING LIMITED
PARTNERSHIP,
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a
Delaware limited partnership
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By:
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FelCor
Lodging Trust Incorporated,
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a
Maryland corporation
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its
general partner
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By:
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/s/▇▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇
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Name:
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▇▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇
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Title:
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Executive
Vice President, General Counsel and
Secretary
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FELCOR
LODGING TRUST INCORPORATED,
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a
Maryland corporation
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By:
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/s/▇▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇
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Name:
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▇▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇
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Title:
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Executive
Vice President, General Counsel and
Secretary
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FELCOR/CSS HOLDINGS,
L.P.,
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a
Delaware limited partnership
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FELCOR/ST. ▇▇▇▇ HOLDINGS,
L.P.,
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a
Delaware limited partnership
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By:
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FelCor/CSS
Hotels, L.L.C.,
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a
Delaware limited liability company,
as
general partner of each entity
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By:
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/s/▇▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇
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Name:
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▇▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇
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Title:
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Executive
Vice President
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[Signatures
Continue On Following Page]
Signature
Page to Third Supplemental Indenture (FR Notes)
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FELCOR HOTEL ASSET COMPANY,
L.L.C.,
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a
Delaware limited liability company
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FELCOR PENNSYLVANIA COMPANY,
L.L.C.,
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a
Delaware limited liability company
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FELCOR LODGING HOLDING COMPANY,
L.L.C.,
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a
Delaware limited liability company
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FELCOR TRS HOLDINGS,
L.L.C.,
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a
Delaware limited liability company
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FELCOR CANADA
CO.,
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a
Nova Scotia unlimited liability company
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FELCOR OMAHA HOTEL COMPANY,
L.L.C.,
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a
Delaware limited liability company
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MYRTLE BEACH HOTELS,
L.L.C.,
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a
Delaware limited liability company
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FELCOR TRS BORROWER 4,
L.L.C.,
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a
Delaware limited liability company
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By:
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/s/▇▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇
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Name:
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▇▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇
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Title:
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Executive
Vice President
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FELCOR TRS BORROWER 1,
L.P.,
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a
Delaware limited partnership
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By: FelCor
TRS Borrower GP 1, L.L.C.,
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a Delaware limited liability
company,
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its general
partner
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By:
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/s/▇▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇
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Name:
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▇▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇
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Title:
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Executive
Vice President
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FELCOR HOLDINGS
TRUST,
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a
Massachusetts business trust,
as
Pledgor
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By:
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/s/▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇
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Name:
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▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇
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Title:
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Trustee
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[Signatures
Continue On Following Page]
Signature
Page to Third Supplemental Indenture (FR Notes)
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U.S.
BANK NATIONAL ASSOCIATION,
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as
Trustee
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By:
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/s/▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
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Name:
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▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
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Title:
|
Vice
President
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Signature
Page to Third Supplemental Indenture (FR Notes)