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
4.2
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.
XXXX HOLDINGS, L.P.
as
Guarantors
AND
U.S.
BANK NATIONAL ASSOCIATION
(AS
SUCCESSOR TO SUNTRUST BANK),
as
Trustee
____________________
Dated
as of September 29, 2009
____________________
Supplemental
Indenture to the Indenture
dated as
of June 4, 2001, as amended
and
supplemented as of July 26, 2001,
October
1, 2002, January 25, 2006, December 31, 2006,
and
August 16, 2007
with
respect to the
8½%
Senior Notes due 2011
Sixth
Supplemental Indenture, dated as of September 29, 2009 (this “Sixth
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.
Xxxx Holdings, L.P., a Delaware limited partnership, and U.S. Bank National
Association (as successor to SunTrust Bank), as trustee (the “Trustee”),
under the Indenture (as defined below).
W
I T N E S S E T H
WHEREAS, FelCor LP, FelCor and
certain subsidiaries named therein previously executed and delivered to the
Trustee an indenture, dated as of June 4, 2001, as amended or supplemented prior
to the date hereof (the “Indenture”),
pursuant to which FelCor LP issued $300,000,000 aggregate principal amount of
8½% Senior Notes due 2011 (the “Notes”);
WHEREAS, Section 9.02 of the
Indenture provides that FelCor, FelCor LP, the Subsidiary Guarantors 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 Sixth 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 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 Sixth
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 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 Sixth 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 Sixth Supplemental Indenture as a whole and not to any
particular Article, Section or subdivision; and
(2) capitalized
terms used but not defined in this Sixth 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.”
(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.”
(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 Sixth Supplemental Indenture shall be deleted in their
entirety.
SECTION
3. Effectiveness. This Sixth
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.
The
Proposed Amendments effected by this Sixth Supplemental Indenture shall take
effect on the date hereof, provided that each of the parties hereto shall have
executed and delivered this Sixth 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 SIXTH 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 Sixth Supplemental Indenture or for or in respect of the
recitals contained herein, all of which recitals are made solely by FelCor,
FelCor LP and the Subsidiary Guarantors.
SECTION
6. Successors and Assigns. All
agreements of FelCor, FelCor LP and the Subsidiary Guarantors in this Sixth
Supplemental Indenture shall bind their respective successors and assigns. All
agreements of the Trustee in this Sixth Supplemental Indenture shall bind its
successors.
SECTION
7. Separability. In
case any provision of this Sixth 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.
SECTION
9. Counterparts. The
parties may sign any number of copies of this Sixth Supplemental Indenture. Each
signed copy shall be an original, but all of them together represent the same
agreement.
[SIGNATURE
PAGES FOLLOW]
IN
WITNESS WHEREOF, the parties hereto have caused this Sixth Supplemental
Indenture to be duly executed as of the date first above written.
FELCOR
LODGING LIMITED PARTNERSHIP,
a
Delaware limited partnership
|
||||
By:
|
FelCor
Lodging Trust Incorporated,
a
Maryland corporation
its
general partner
|
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By:
|
/s/
Xxxxxxxx X. Xxxxxx
|
|||
Name:
Title:
|
Xxxxxxxx
X. Xxxxxx
Executive
Vice President, General Counsel
and
Secretary
|
|||
FELCOR
LODGING TRUST INCORPORATED,
a
Maryland corporation
|
|||
By:
|
/s/
Xxxxxxxx X. Xxxxxx
|
||
Name:
Title:
|
Xxxxxxxx
X. Xxxxxx
Executive
Vice President, General Counsel
and
Secretary
|
||
FELCOR/CSS
HOLDINGS, L.P.,
a
Delaware limited partnership
FELCOR/ST.
XXXX HOLDINGS, L.P.,
a
Delaware limited partnership
|
||||
By:
|
FelCor/CSS
Hotels, L.L.C.,
a
Delaware limited liability company,
as
general partner of each entity
|
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By:
|
/s/
Xxxxxxxx X. Xxxxxx
|
|||
Name:
Title:
|
Xxxxxxxx
X. Xxxxxx
Executive
Vice President
|
|||
[Signatures
Continue On Following Page]
Signature
Page to Sixth Supplemental Indenture (8½% Notes)
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 4, L.L.C.,
a
Delaware limited liability company
|
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By:
|
/s/
Xxxxxxxx X. Xxxxxx
|
||
Name:
Title:
|
Xxxxxxxx
X. Xxxxxx
Executive
Vice President
|
||
FELCOR
TRS BORROWER 1, L.P.,
a
Delaware limited partnership
|
||||
By:
|
FelCor
TRS Borrower GP 1, L.L.C.,
a
Delaware limited liability company,
its
general partner
|
|||
By:
|
/s/
Xxxxxxxx X. Xxxxxx
|
|||
Name:
Title:
|
Xxxxxxxx
X. Xxxxxx
Executive
Vice President
|
|||
[Signatures
Continue On Following Page]
Signature
Page to Sixth Supplemental Indenture (8½% Notes)
U.S.
BANK NATIONAL ASSOCIATION, AS
SUCCESSOR
TO SUNTRUST BANK,
as
Trustee
|
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By:
|
/s/Xxxxxxx
Xxxxxxxx
|
||
Name:
|
Xxxxxxx
Xxxxxxxx
|
||
Title:
|
Vice
President
|