FELCOR ESCROW HOLDINGS, L.L.C., AND as Trustee First Supplemental Indenture Dated as of October12, 2009 Supplemental Indenture to the Indenture dated as of October 1, 2009 with respect to the 10% Senior Secured Notes due 2014
FELCOR
ESCROW HOLDINGS, L.L.C.,
AND
U.S.
BANK NATIONAL ASSOCIATION,
as
Trustee
First
Supplemental Indenture
Dated
as of October12, 2009
Supplemental
Indenture to the Indenture
dated as
of October 1, 2009
with
respect to the
10%
Senior Secured Notes due 2014
First
Supplemental Indenture (this “First Supplemental
Indenture”), dated as of October 12,
2009 among FelCor Escrow Holdings, L.L.C., a Delaware limited liability company
(“Escrow Subsidiary”),
and U.S. Bank National Association, as trustee and collateral agent under the
indenture referred to below (in such capacities, the “Trustee” and the “Collateral
Agent”).
W
I T N E S S E T H
WHEREAS, Escrow Subsidiary
executed and delivered to the Trustee an indenture dated as of October 1, 2009
(the “Indenture”), pursuant to which
Escrow Subsidiary issued and has outstanding $636,000,000 aggregate principal
amount of 10% Senior Secured Notes due 2014 (the “Notes”);
WHEREAS, FelCor Lodging
Limited Partnership, a Delaware limited partnership (“FelCor LP”), has made a
tender offer (the “Tender
Offer”) to each registered holder of its outstanding 8 1/2% Senior Notes
due 2011 (the “Existing
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 Existing Notes for the consideration stated in
the Offer to Purchase;
WHEREAS, the consummation of
the Tender Offer is subject to the condition, unless waived by FelCor LP, that
the holders owning at least 90% of the outstanding Existing Notes validly tender
their Existing Notes pursuant to the Tender Offer (the “Tender
Condition”);
WHEREAS, pursuant to the terms
of the Escrow Agreement dated as of October 1, 2009 among FelCor LP, FelCor
Lodging Trust Incorporated, a Maryland corporation (“FelCor”), Escrow Subsidiary,
the Trustee and the Escrow Agent (the “Escrow Agreement”), upon the
successful consummation of the Tender Offer, among other things, it is
contemplated that Escrow Subsidiary, FelCor LP, FelCor and certain subsidiary
guarantors will execute and deliver a supplemental indenture to the Indenture
providing for, among other things, (a) the assumption of all rights and
obligations of Escrow Subsidiary under the Indenture by FelCor LP (the “Assumption”) and (b) a
Guarantee by each of FelCor and such subsidiary guarantors;
WHEREAS, as of the date of
this First Supplemental Indenture, the Tender Condition has neither been
satisfied nor waived by FelCor LP;
WHEREAS, Section 9.02 of the
Indenture provides that Escrow Subsidiary 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;
WHEREAS, Escrow Subsidiary, in
order to induce FelCor LP to waive the Tender Condition and to effect the
Assumption, has proposed certain amendments to the Indenture as set forth herein
(the “Proposed
Amendments”);
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 First
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, Escrow Subsidiary 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 First Supplemental Indenture, except as
otherwise expressly provided or unless the context otherwise
requires:
(a) the
words “herein,” “hereof” and “hereunder” and other words of similar import refer
to the Indenture and this First Supplemental Indenture as a whole and not to any
particular Article, Section or subdivision; and
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(b) capitalized
terms used but not defined in this First Supplemental Indenture shall have the
meanings assigned to them in the Indenture.
SECTION
2. Amendment. The
Indenture is hereby amended with respect to the Notes as follows:
Section 4.03(d) of the Indenture is
hereby amended by (a) deleting the word “or” at the end of clause (vi) thereof;
(b) removing the period at the end of clause (vii) thereof and replacing it with
a semi-colon and adding the word “or” and (c) adding a new clause (viii) thereto
which shall read as follows:
“(viii) Indebtedness
of FelCor LP or FelCor or any of their respective Restricted Subsidiaries, so
long as such Incurrence is otherwise permitted under paragraphs (a), (b) and (c)
above; provided,
however, that for purposes only of this Section 4.03(d)(viii), the
Interest Coverage Ratio of FelCor LP, FelCor and their respective Restricted
Subsidiaries on a consolidated basis, as required by such paragraph (c), shall
be deemed to mean (i) prior to the second anniversary of the Closing Date, 1.4
to 1, (ii) on or after the second anniversary of the Closing Date but prior to
the third anniversary of the Closing Date, 1.6 to 1 and (iii) thereafter, 2.0 to
1.
SECTION
3. Effectiveness. This First
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 Amendment effected by this
First Supplemental Indenture shall take effect on the date hereof, provided that
each of the parties hereto shall have executed and delivered this First
Supplemental Indenture; provided, however, that the Proposed Amendment shall be
operative only upon, and simultaneously with, and shall have no force and effect
prior to, both (a) the waiver by FelCor LP of the Tender Condition and the
subsequent consummation of the Tender Offer and (b) the
Assumption. If the Assumption shall not occur as contemplated by the
Escrow Agreement, or if it occurs without waiver of the Tender Condition, then
in such events, this First Supplemental Indenture shall terminate and shall be
without force and effect.
SECTION 4. NEW YORK LAW TO
GOVERN. THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE
USED TO CONSTRUE THIS FIRST 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 First
Supplemental Indenture or for or in respect of the recitals contained herein,
all of which recitals are made solely by Escrow Subsidiary.
SECTION
6. Successors
and Assigns. All agreements of Escrow Subsidiary in this First
Supplemental Indenture shall bind their respective successors and
assigns. All agreements of the Trustee in this First Supplemental
Indenture shall bind its successors.
SECTION
7. Separability. In
case any provision of this First 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 First Supplemental
Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement.
[Signature
Pages Follows]
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IN
WITNESS WHEREOF, the parties hereto have caused this First Supplemental
Indenture to be duly executed as of the date first above written.
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FELCOR
ESCROW HOLDINGS, L.L.C.,
a
Delaware limited liability company
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By:
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/s/
Xxxxxxx X. Xxxxxxxxx
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Name: Xxxxxxx
X. Xxxxxxxxx
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Title: Vice
President
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U.S.
BANK NATIONAL ASSOCIATION,
as
Trustee
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By:
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/s/
Xxxxxxx X. Xxxxxxxxxx
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Name: Xxxxxxx
X. Xxxxxxxxxx
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Title: Vice
President
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