exv10w35w4



 




Exhibit
10.35.4




New York, New York

As of November 10, 2006




GUARANTY OF RECOURSE OBLIGATIONS OF BORROWER




     FOR VALUE RECEIVED, and to induce BANK OF AMERICA, N.A., a national banking association,
having an address at Hearst Tower, 214 North Tryon Street, Charlotte, North Carolina 28255
(“Lender”), to lend to FELCOR/JPM HOTELS, L.L.C., a Delaware limited liability company, and
DJONT/JPM LEASING, L.L.C., a Delaware limited liability company, each having its principal place of
business at c/o FelCor Lodging Trust Incorporated, 545 E. John Carpenter Freeway, Suite 1300,
Irving, Texas 75062 (individually and collectively, as the context may require, “Borrower”), the
principal sum of TWO HUNDRED FIFTY MILLION AND 00/100 DOLLARS ($250,000,000.00) (the “Loan”),
advanced pursuant to that certain Loan Agreement, dated as of the date hereof, between Borrower and
Lender (as the same may be amended, restated, replaced, supplemented or otherwise modified from
time to time, the “Loan Agreement”) and evidenced by the Note (as defined in the Loan Agreement)
and the other Loan Documents (as defined in the Loan Agreement). All capitalized words and phrases
not otherwise defined herein shall have the meanings ascribed to them in the Loan Agreement.



     The undersigned, FELCOR LODGING LIMITED PARTNERSHIP, a Delaware limited partnership, having
its principal place of business at c/o Felcor Lodging Trust Incorporated, 545 E. John Carpenter
Freeway, Suite 1300, Irving, Texas 75062 (hereinafter referred to as “Guarantor”) hereby absolutely
and unconditionally guarantees to Lender the prompt and unconditional payment of the Guaranteed
Recourse Obligations of Borrower (as hereinafter defined).



     It is expressly understood and agreed that this is a continuing guaranty and that the
obligations of Guarantor hereunder are and shall be absolute under any and all circumstances,
without regard to the validity, regularity or enforceability of the Note, the Loan Agreement, or
the other Loan Documents, a true copy of each of said documents Guarantor hereby acknowledges
having received and reviewed.



     The term “Debt” as used in this Guaranty of Recourse Obligations of Borrower (this “Guaranty”)
shall mean the principal sum evidenced by the Note and secured by the Security Instruments, or so
much thereof as may be outstanding from time to time, together with interest thereon at the rate of
interest specified in the Note, and all other sums other than principal or interest which may or
shall become due and payable pursuant to the provisions of the Note, the Loan Agreement, or the
other Loan Documents.



     The term “Guaranteed Recourse Obligations of Borrower” as used in this Guaranty shall mean all
obligations and liabilities of Borrower for which Borrower shall be personally liable pursuant to
the Note, the Loan Agreement, or the other Loan Documents.



     Any indebtedness of Borrower to Guarantor now or hereafter existing (including, but not
limited to, any rights to subrogation Guarantor may have as a result of any payment by Guarantor
under this Guaranty), together with any interest thereon, shall be, and such



 









 







indebtedness is, hereby deferred, postponed and subordinated to the prior payment in full of
the Debt. Until payment in full of the Debt (and including interest accruing on the Note after the
commencement of a proceeding by or against Borrower under the Bankruptcy Code and the regulations
adopted and promulgated pursuant thereto, which interest the parties agree shall remain a claim
that is prior and superior to any claim of Guarantor notwithstanding any contrary practice, custom
or ruling in cases under the Bankruptcy Code generally), Guarantor agrees not to accept any payment
or satisfaction of any kind of indebtedness of Borrower to Guarantor and hereby assigns such
indebtedness to Lender, including the right to file proof of claim and to vote thereon in
connection with any such proceeding under the Bankruptcy Code, including the right to vote on any
plan of reorganization. Further, if Guarantor shall comprise more than one person, firm or
corporation, Guarantor agrees that until such payment in full of the Debt, (a) no one of them shall
accept payment from the others by way of contribution on account of any payment made hereunder by
such party to Lender, (b) no one of them will take any action to exercise or enforce any rights to
such contribution, and (c) if any of Guarantor should receive any payment, satisfaction or security
for any indebtedness of Borrower to any of Guarantor or for any contribution by the others of
Guarantor for payment made hereunder by the recipient to Lender, the same shall be delivered to
Lender in the form received, endorsed or assigned as may be appropriate for application on account
of, or as security for, the Debt, and until so delivered, shall be held in trust for Lender as
security for the Debt.



     Guarantor agrees that, with or without notice or demand, Guarantor will reimburse Lender, to
the extent that such reimbursement is not made by Borrower, for all expenses (including counsel
fees and disbursements) incurred by Lender in connection with the collection of the Guaranteed
Recourse Obligations of Borrower or any portion thereof or with the enforcement of this Guaranty.



     Subject to the terms of the Loan Agreement, all monies available to Lender for application in
payment or reduction of the Debt may be applied by Lender in such manner and in such amounts and at
such time or times and in such order and priority as Lender may see fit to the payment or reduction
of such portion of the Debt as Lender may elect.



     Guarantor hereby waives notice of the acceptance hereof, presentment, demand for payment,
protest, notice of protest, or any and all notice of non-payment, non-performance or
non-observance, or other proof, or notice or demand, whereby to charge Guarantor therefor.



     Guarantor further agrees that the validity of this Guaranty and the obligations of Guarantor
hereunder shall in no way be terminated, affected or impaired (a) by reason of the assertion by
Lender of any rights or remedies which it may have under or with respect to either the Note, the
Loan Agreement, or the other Loan Documents, against any person obligated thereunder or the
Properties covered under the Loan Agreement, or (b) by reason of any failure to file or record any
of such instruments or to take or perfect any security intended to be provided thereby, or (c) by
reason of the release of any of the Properties covered under the Loan Agreement or other collateral
for the Loan, or (d) by reason of Lender’s failure to exercise, or delay in exercising, any such
right or remedy or any right or remedy Lender may have hereunder or in respect to this Guaranty, or
(e) by reason of the commencement of a case under the Bankruptcy Code by or against any person
obligated under the Note, the Loan Agreement or the other Loan Documents, or the death of any
Guarantor, or (f) by reason of any transfer or



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assignment of the Loan by Lender or (g) by reason of any payment made on the Debt or any other
indebtedness arising under the Note, the Loan Agreement, or the other Loan Documents, whether made
by Borrower or Guarantor or any other person, which is required to be refunded pursuant to any
bankruptcy or insolvency law; it being understood that no payment so refunded shall be considered
as a payment of any portion of the Debt, nor shall it have the effect of reducing the liability of
Guarantor hereunder. It is further understood, that if Borrower shall have taken advantage of, or
be subject to the protection of, any provision in the Bankruptcy Code, the effect of which is to
prevent or delay Lender from taking any remedial action against Borrower, including the exercise of
any option Lender has to declare the Debt due and payable on the happening of any default or event
by which under the terms of the Note, the Loan Agreement, or the other Loan Documents, the Debt
shall become due and payable, Lender may, as against Guarantor, nevertheless, declare the Debt due
and payable and enforce any or all of its rights and remedies against Guarantor provided for
herein.



     Guarantor further covenants that this Guaranty shall remain and continue in full force and
effect as to any modification, extension or renewal of the Note, the Loan Agreement, or the other
Loan Documents, that Lender shall not be under a duty to protect, secure or insure any Property
covered under the Loan Agreement, and that other indulgences or forbearance may be granted under
any or all of such documents, all of which may be made, done or suffered without notice to, or
further consent of, Guarantor.



     As a further inducement to Lender to make the Loan and in consideration thereof, Guarantor
further covenants and agrees (a) that in any action or proceeding brought by Lender against
Guarantor on this Guaranty, Guarantor shall and does hereby waive trial by jury, (b) that the
Supreme Court of the State of New York for the County of New York, or, in a case involving
diversity of citizenship, the United States District Court for the Southern District of New York,
shall have exclusive jurisdiction of any such action or proceeding, and (c) that service of any
summons and complaint or other process in any such action or proceeding may be made by registered
or certified mail directed to Guarantor at Guarantor’s address set forth above, Guarantor waiving
personal service thereof. Nothing in this Guaranty will be deemed to preclude Lender from bringing
an action or proceeding with respect hereto in any other jurisdiction.



     This is a guaranty of payment and not of collection and upon any default of Borrower under the
Note, the Loan Agreement, or the other Loan Documents, Lender may, at its option, proceed directly
and at once, without notice to Borrower, against Guarantor to collect and recover the full amount
of the liability hereunder or any portion thereof, without proceeding against Borrower or any other
person, or foreclosing upon, selling, or otherwise disposing of or collecting or applying against
any of the mortgaged property or other collateral for the Loan. Guarantor hereby waives the
pleading of any statute of limitations as a defense to the obligation hereunder.



     All notices required or permitted hereunder shall be given and shall become effective as
provided in the Loan Agreement. Notices to Guarantor shall be addressed as follows:



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	 	c/o FelCor Lodging Trust Incorporated

545 E. John Carpenter Freeway, Suite 1300

Irving, Texas 75062

Attention: General Counsel

Facsimile No.: (972) 444-4949
	 
	 	 
	With a copy to:

	 	Jenkens & Gilchrist, P.C.

1445 Ross Avenue, Suite 3700

Dallas, Texas 75202

Attention: Robert W. Dockery, Esq.

Facsimile No.: (214) 855-4300






     Each reference herein to Lender shall be deemed to include its successors and assigns, to
whose favor the provisions of this Guaranty shall also inure. Each reference herein to Guarantor
shall be deemed to include the heirs, executors, administrators, legal representatives, successors
and assigns of Guarantor, all of whom shall be bound by the provisions of this Guaranty.



     If Guarantor is a partnership, the agreements herein contained shall remain in force and be
applicable, notwithstanding any changes in the individuals or entities comprising the partnership,
and the term “Guarantor,” as used herein, shall include any alternate or successor partnership, but
any predecessor partnership and their partners shall not thereby be released from any liability.
If Guarantor is a corporation, the agreements contained herein shall remain in full force and be
applicable notwithstanding any changes in the shareholders comprising, or the officers and
directors relating to, the corporation, and the term “Guarantor” as used herein, shall include any
alternative or successor corporation, but any predecessor corporation shall not be relieved of
liability hereunder. If Guarantor is a limited liability company, the agreements herein contained
shall remain in force and be applicable, notwithstanding any changes in the members comprising the
limited liability company, and the term “Guarantor” as used herein, shall include any alternate or
successor limited liability company, but any predecessor limited liability company and their
members shall not thereby be released from any liability. (Nothing in the foregoing sentence shall
be construed as a consent to, or a waiver of, any prohibition or restriction on transfers of
interests in such partnership, corporation or limited liability company which may be set forth in
the Loan Agreement, each Security Instrument or any other Loan Document.)



     Guarantor (and its representative, executing below, if any) has full power, authority and
legal right to execute this Guaranty and to perform all its obligations under this Guaranty.



     All understandings, representations and agreements heretofore had with respect to this
Guaranty are merged into this Guaranty which alone fully and completely expresses the agreement of
Guarantor and Lender.



     This Guaranty may be executed in one or more counterparts by some or all of the parties
hereto, each of which counterparts shall be an original and all of which together shall constitute
a



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single agreement of Guaranty. The failure of any party hereto to execute this Guaranty, or
any counterpart hereof, shall not relieve the other signatories from their obligations hereunder.



     This Guaranty may not be modified, amended, waived, extended, changed, discharged or
terminated orally or by any act or failure to act on the part of Lender or Borrower, but only by an
agreement in writing signed by the party against whom enforcement of any modification, amendment,
waiver, extension, change, discharge or termination is sought.



     This Guaranty Agreement shall be deemed to be a contract entered into pursuant to the laws of
the State of New York and shall in all respects be governed, construed, applied and enforced in
accordance with the laws of the State of New York (other than those conflict of law provisions that
would defer to the substantive laws of another jurisdiction). Without in any way limiting the
preceding choice of law, the parties elect to be governed by New York law in accordance with and
are relying (at least in part) on Section 5-1401 of the General Obligations Law of the State of
New York.



     California State-Specific Waiver. In the event of any inconsistencies between the
terms and conditions that follow and the other terms and conditions of this Guaranty, the following
terms and conditions shall control and be binding. Guarantor hereby waives:




     (a) Presentment, demand, protest, notice of protests, notice of dishonor and notices of
non-payment and notice of acceptance of this Guaranty;




     (b) The right, if any, to the benefit of or to direct the application of, any security
held by Lender, including the Property; and all rights of subrogation, any right to enforce
any remedy which Guarantor now has or hereafter may have against Borrower and any right to
participate in any security now or hereafter held by Lender;




     (c) The right to require Lender to proceed against Borrower or to proceed against any
security now or hereafter held by Lender or to pursue any other remedy in Lender’s power;




     (d) The benefits, if Guarantor is entitled to any benefits, of any single-action
legislation or of any or all anti-deficiency statutes or regulations or judicial
interpretations thereof, including, but not limited to, any protection which may be afforded
Guarantor by California Code of Civil Procedure Sections 580a, 580b, 580d and 726, and any
amendments or modifications thereto. Guarantor understands and agrees that by waiving the
anti-deficiency protections referred to herein, Guarantor can be held liable for a
deficiency judgment following a non-judicial foreclosure sale (including a non-judicial
foreclosure sale of a purchase money obligation) even if the price paid for the Property at
the non-judicial foreclosure sale is less than the fair value of the Property; and Guarantor
further understands and agrees that Guarantor is waiving its defense that the price paid for
the Property at a judicial foreclosure sale may not be equal to the fair value of the
Property; and Guarantor further understands and agrees that by Guarantor waiving its right
to a fair value hearing following the foreclosure sale that the Lender can seek a deficiency
against Guarantor up to the entire amount of the sums guaranteed hereby less the amount paid
for the Property at the non-judicial or judicial foreclosure sale;



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     (e) Any right of subrogation which Guarantor may have under California law to seek
reimbursement from Borrower of any sums paid by Guarantor to Lender pursuant to this
Guaranty until the prior full and indefeasible repayment of the Loan in accordance with the
Loan Documents;




     (f) Any estoppel defense arising out of Section 580d of the California Code of Civil
Procedure;




     (g) Any defense arising out of absence, impairment or loss of any right of
reimbursement or subrogation or other right or remedy of Guarantor against Borrower or
against any security resulting from the exercise or election of any remedies by Lender,
including the exercise of the power of sale under the Mortgage, and any defense arising by
reason of any disability or other defense of Borrower or by reason of the cessation, from
any cause, of the liability of Borrower;




     (h) The benefit of or right to assert any statue of limitations affecting Guarantor’s
liability hereunder or the enforcement thereof, including but not limited to the provisions
of California Code of Civil Procedure Sections 580a and 726 that require that any action for
a deficiency be brought within three months after a foreclosure under the Mortgage. Any
partial payment by Borrower or other circumstances which operate to toll any statute of
limitations as to Borrower shall also operate to toll the statute of limitations as to
Guarantor;




     (i) Any defense based upon any change in name, location, composition or structure of
Borrower, or any change in the type of business conducted by Borrower, or any other change
in the identity or legal status of Borrower;




     (j) Any defense based upon the failure (if any) of Lender to (i) obtain a similar
guaranty from any other person or entity, or (ii) file a creditor’s claim in the estate (in
administration, bankruptcy or any other proceeding) of any person;




     (k) Any rights which Guarantor may have under California Civil Code Sections 2809,
2810, 2819, 2822(a), 2845, 2849, 2850, 2899 and 3433; and




     (l) Without limiting the foregoing, Guarantor waives all rights and defenses that
Guarantor may have because the Borrower’s debt is secured by real property. This means,
among other things:




	 	(i)	 	Lender may collect from Guarantor without first
foreclosing on any real or personal property collateral pledged by the
Borrower.
	 
	 	(ii)	 	If Lender forecloses on any real property collateral
pledged by the Borrower:






	 	(A)	 	The amount of the debt may be reduced only by
the price for which that collateral is sold at the foreclosure sale,
even if the collateral is worth more than the sale price.




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	 	(B)	 	Lender may collect from Guarantor even if
Lender, by foreclosing on the real property collateral, has destroyed
any right the Guarantor may have to collect from the Borrower.





     This is an unconditional and irrevocable waiver of any rights and defenses the Guarantor may
have because the Borrower’s debt is secured by real property. These rights and defenses include,
but are not limited to, any rights or defenses based upon Section 580a, 580b, 580d, or 726 of the
California Code of Civil Procedure.



     Guarantor waives all rights and defenses arising out of an election of remedies by Lender,
even though the election of remedies, such as a nonjudicial foreclosure with respect to security
for a guaranteed obligation, has destroyed Guarantor’s rights of subrogation and reimbursement
against the Borrower by the operation of Section 580d of the California Code of Civil Procedure or
otherwise.



[NO FURTHER TEXT ON THIS PAGE]




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     IN WITNESS WHEREOF, Guarantor has duly executed this Guaranty as of the date first above set
forth.



	 	 	 	 	 	 	 	 	 
	 	 	FELCOR LODGING LIMITED PARTNERSHIP, a 

Delaware limited partnership	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	FelCor Lodging Trust Incorporated, a	 	 
	 	 	 	 	 	 	 
	 	 	 	 	Maryland corporation, its general partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By:
	 	/s/ Jonathan H. Yellen
 

Name: Jonathan H. Yellen

Title: Executive Vice President