exv10w1



 





EXHIBIT 10.1




Execution Copy




PLEDGE AGREEMENT




     This PLEDGE AGREEMENT (this “Agreement”), dated as of October 31, 2006, from FELCOR
HOLDINGS TRUST, a Massachusetts business trust (the “Assignor”) in favor of JPMORGAN CHASE
BANK, N.A. (“JPMC”), in its capacity as Collateral Agent for the Secured Parties (as
defined below) (the “Assignee”).



     WHEREAS, the Assignor is the legal and beneficial owner of certain units of limited partner
interests of FelCor Lodging Limited Partnership, a Delaware limited partnership (the
“Partnership”), as more particularly described on
Exhibit A attached hereto (the “LP
Units”);



     WHEREAS, pursuant to the terms of a Credit Agreement dated as of December 12, 2005, as amended
by Amendment No. 1 to Credit Agreement, dated as of January 12, 2006, Amendment No. 2 to Credit
Agreement, dated as of January 25, 2006, and Amendment No. 3 to Credit Agreement dated as of March
31, 2006 and as further amended by that certain Amendment No. 4 to Credit Agreement dated as of
October 26, 2006 (“Amendment No. 4”), between the Partnership, FelCor Lodging Trust Incorporated
(the “Company”, and together with the Partnership, the “Borrowers”), JPMC, as
Administrative Agent (in such capacity, the “Administrative Agent”), and JPMC and certain other
lenders party thereto (the “Lenders”) (such agreement as so modified and as further
amended, modified, or amended and restated, and including any replacements thereof, the “Credit
Agreement”), the Lenders have, upon the terms and subject to the conditions contained therein,
agreed to make loans and otherwise to extend credit to the Borrowers; and



     WHEREAS, the Borrowers requested that the Lenders make certain amendments to the Credit
Agreement, and such amendments are now reflected in Amendment No. 4;



     WHEREAS, it is a requirement under Amendment No. 4 that the Assignor execute and deliver to
the Assignee a pledge agreement in substantially the form hereof;



     WHEREAS, the Borrowers and certain other parties have entered into (a) the Indenture dated as
of June 4, 2001 with respect to the 8-1/2% Senior Notes due 2011 and (b) the Indenture dated as of
October 1, 1997 with respect to the 7-5/8% Senior Notes due 2007 (collectively, such agreements, as
modified to date and as further amended, modified, or amended and restated, the “Existing
Indentures”);



     WHEREAS, the Borrowers and certain other parties have entered into that certain Indenture
dated as of October 31, 2006 with respect to the Senior Secured Floating Rate Notes due 2011 (such
agreement as amended, modified, or amended and restated, the “New Indenture”);



     WHEREAS, it is a requirement under the Existing Indentures and the New Indenture that the
Assignor execute and deliver to the Assignee a pledge agreement in substantially the form hereof so
that the Notes issued under the Existing Indentures and the New Indenture shall



 









 







be equally and ratably secured by any collateral that is granted to secure the obligations
under the Credit Agreement;



     WHEREAS, the Assignor and the Borrowers are part of a group of related companies, and the
Assignor has received and/or expects to receive substantial direct and indirect benefits from the
loans and extensions of credit to the Borrowers pursuant to the Credit Agreement, the New Indenture
and the Existing Indentures (which benefits are hereby acknowledged);



     WHEREAS, the Administrative Agent, U.S. Bank National Association, as successor to SunTrust
Bank, as Trustee under the Existing Indentures (the “Existing Trustee”), and U.S. Bank National
Association, as Trustee under the New Indenture (the “New Trustee”) have entered into that certain
Collateral Agency Agreement dated as of October 31, 2006 (as amended, amended and restated,
supplemented or otherwise modified and in effect from time to time, the “Collateral Agency
Agreement”), pursuant to which the parties set forth their relative rights with respect to the
Collateral (as defined below);



     NOW, THEREFORE, in consideration of the premises contained herein and for other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties
hereto agree as follows:



1. DEFINITIONS.




     All terms not specifically defined herein, which terms are defined in the Uniform Commercial
Code as in effect in the State of New York, shall have the meanings assigned to them therein. The
following terms shall have the following meanings herein:



     Administrative Agent. See preamble.



     Amendment No. 4. See preamble.



     Assignor. See preamble.



     Assigned Interests. See §2.1 hereof.



     Assignee. See preamble.



     Borrowers. See preamble.



     Business Day. Any day on which banks are open for business in New York, New York.



     Cash Collateral. See §4.2.



     Cash Collateral Account. See §4.2.



     Collateral. The Assigned Interests, the Cash Collateral, the Cash Collateral Account,
and all other property now or hereafter pledged or assigned to the Assignee by the Assignor
hereunder, and all income therefrom, increases therein and proceeds thereof.



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     Collateral Agency Agreement. See preamble.



     Company. See preamble.



     Credit Agreement. See preamble.



     Credit Documents. As defined in the Collateral Agency Agreement.



     Event of Default. See §5.



     Existing Indentures. See preamble.



     Existing Trustee. See preamble.



     LP Units. See preamble.



     JPMC. See preamble.



     New Indenture. See preamble.



     New Trustee. See preamble.



     Partnership. See preamble.



     Partnership Agreement. The Second Amended and Restated Agreement of Limited
Partnership dated as of December 31, 2001, as amended by Addendum No. 1 (and the annexes thereto),
Addendum No. 2, Addendum No. 3, Addendum No. 4, First Amendment dated as of April 1, 2002, Second
Amendment dated as of August 31, 2002, Third Amendment dated as of October 1, 2002, Fourth
Amendment dated as of July 1, 2003, Fifth Amendment dated as of April 2, 2004, Sixth Amendment
dated as of August 23, 2004, Seventh Amendment dated as of April 7, 2005, and Eighth Amendment
dated as of August 30, 2005, as the same may be further amended or amended and restated from time
to time.



     Secured Obligations. As defined in the Collateral Agency Agreement.



     Secured Parties. As defined in the Collateral Agency Agreement.



     Time Deposits. See §4.2.



2. PLEDGE.




     2.1. Grant of Security Interest. The Assignor hereby pledges, grants a security
interest in, mortgages, and collaterally assigns and transfers to the Assignee, for the benefit of
the Secured Parties, as security for the payment and performance in full when due of all of the
Secured Obligations, all the right, title and interest of the Assignor in and to the LP Units,
wherever located and whether now owned or hereafter acquired or arising, including, without
limitation, (a) all payments or distributions, whether in cash, property or otherwise, at any time
owing or payable to the Assignor on account of its interest as a limited partner in the
Partnership,



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     (b) all of the Assignor’s rights and interests as a limited partner under the Partnership
Agreement, including all voting rights and all rights to grant or withhold consents or approvals in
its capacity as a limited partner, (c) all rights as a limited partner of access and inspection to
and use of all books and records, including computer software and computer software programs, of
the Partnership, (d) all other rights, interests, property or claims to which the Assignor may be
entitled in its capacity as a limited partner of the Partnership, and (e) all proceeds and products
of any of the foregoing (all of the foregoing rights, title and interest described in the foregoing
clauses (a) through (e) being herein referred to collectively as the “Assigned Interests”).



     2.2. Pledge of Cash Collateral Account. The Assignor also hereby pledges and assigns
to the Assignee, for the benefit of the Secured Parties, and grants to the Assignee, for the
benefit of the Secured Parties, a security interest in, the Cash Collateral Account and all of the
Cash Collateral, subject to the terms of this Agreement.



     2.3. Waiver of Certain Partnership Agreement Provisions. The Assignor irrevocably
waives any and all provisions of the Partnership Agreement that (a) prohibit, restrict, condition
or otherwise affect the grant hereunder of any lien, security interest or encumbrance on any of the
Collateral or any enforcement action which may be taken in respect of any such lien, security
interest or encumbrance, or (b) otherwise conflict with the terms of this Agreement.



     2.4. Authorization to File Financing Statement. The Assignor hereby authorizes the
Assignee to file in any Uniform Commercial Code filing office a financing statement naming the
Assignor as the debtor and indicating the Collateral as the collateral. The financing statement
may indicate some or all of the collateral on the financing statement, whether specifically or
generally.



     2.5. Tender of Partners’ Consents. The Assignor has tendered to the Assignee the
consent of any other partner of the Partnership deemed necessary or appropriate by the Assignee for
the consummation of the transactions contemplated hereby.



     2.6. Delivery of Certificates. The certificates for the LP Units, accompanied by
appropriate instruments of assignment thereof duly executed in blank by the Assignor, have been
delivered to the Assignee.



     2.7. Additional Interests. In case the Assignor shall acquire any additional common
LP Units or common limited partner interests of the Partnership, or any other equity interests
exchangeable for or convertible into common LP Units or common limited partner interests of the
Partnership, whether by purchase, dividend, split or otherwise, then (i) such common LP Units and
common limited partner interests and equity interests shall automatically be subject to the pledge,
assignment and security interest granted to the Assignee, for the benefit of the Secured Parties,
under this Agreement and the Assigned Interests shall include such additional LP Units and
additional limited partner interests and (ii) the Assignor shall deliver to the Assignee forthwith
any certificates therefor, accompanied by appropriate instruments of assignment duly executed by
the Assignor in blank and the Assignee may update Exhibit A to reflect such additional LP Units or
limited partner interests. In any event, on the last day of each calendar quarter, the Assignor
shall update Exhibit A to reflect the LP Units then owned by the



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Assignor, and the Assignor and the Assignee shall make deliveries of the certificates for the
LP Units pledged under this Agreement so that such certificates are reconciled with such updated
Exhibit A.



3. REPRESENTATIONS, WARRANTIES AND COVENANTS OF ASSIGNOR.




     3.1. Representations and Warranties. The Assignor hereby represents and warrants to
Assignee as follows:




     (a) The Partnership is duly organized, validly existing, and in good standing under the
laws of the State of Delaware and all other jurisdictions where the Partnership does
business; the Partnership Agreement is in full force and effect; the Assignor is a duly
constituted partner of the Partnership pursuant to the Partnership Agreement; the persons
and entities listed as partners in the Partnership Agreement and its related certificates
and schedules are the only partners of the Partnership; and the Assigned Interests are
validly issued, non-assessable and, except as set forth in §3.1(g) hereof, fully paid
partnership interests in the Partnership.




     (b) The Assignor has full right, power and authority to make this Agreement (including
the provisions enabling the Assignee or its nominee, upon the occurrence of an Event of
Default, to exercise the voting or other rights provided for herein), under the Partnership
Agreement and under applicable law, without the consent, approval or authorization of, or
notice to, any other person, including any regulatory authority or any person having any
interest in the Partnership, other than any consents to this Agreement required to be given
by the other partners under the Partnership Agreement, which consents, if any, have been
duly received.




     (c) The execution, delivery, and performance of this Agreement and the transactions
contemplated hereby (i) have been duly authorized by all necessary trust proceedings on
behalf of the Assignor, (ii) do not conflict with or result in any breach or contravention
of any applicable law, regulation, judicial order or decree to which such Assignor is
subject, (iii) do not conflict with or violate any provision of the declaration of trust or
other organizational documents of the Assignor, and (iv) do not violate, conflict with,
constitute a default or event of default under, or result in any rights to accelerate or
modify any obligations under any agreement, instrument, lease, mortgage or indenture to
which such Assignor is party or subject, or to which any of its assets are subject.




     (d) This Agreement has been duly executed and delivered by the Assignor and is the
legal, valid, and binding obligation of the Assignor enforceable against it in accordance
with the terms hereof except as enforceability is limited by bankruptcy, insolvency,
reorganization, moratorium, or other laws relating to or affecting generally the enforcement
of creditors’ rights and except to the extent that availability of the remedy of specific
performance or injunctive relief is subject to the discretion of the court before which any
case or proceeding therefor may be brought.




     (e) The Assignor is the sole, direct, legal and beneficial owner of all Assigned
Interests, which Assigned Interests constitute at least 95% of the common limited



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partnership interest in the Partnership, and has good and marketable title thereto,
free and clear of any lien, security interest, mortgage or other encumbrance, other than the
liens and security interest granted to the Assignee hereunder; and the liens and security
interests hereunder constitute valid and perfected first priority liens and security
interests.




     (f) The Assignor’s type and jurisdiction of organization and the Assignor’s tax
identification number and organizational identification number, if the Assignor has one, is
set forth below the Assignor’s signature to this Agreement. The Assignor’s principal place
of business, chief executive office, and the place where its records concerning the
Collateral are kept is located at 545 E. John Carpenter Freeway, Suite 1300, Irving, Texas
75002.




     (g) The Assignor has no obligation to make any contribution, capital call or other
payment to the Partnership with respect to the Assigned Interests.




     (h) The copy of the Partnership Agreement delivered to the Assignee is a true, correct,
and complete copy thereof, and the Partnership Agreement has not been amended or modified in
any respect, except for such amendments or modifications as are attached to the copy thereof
delivered to the Assignee.




     (i) The partnership interest of the Assignor in the Partnership is not a security
governed by Article 8 of the Uniform Commercial Code of the jurisdiction in which the
Partnership is organized.



     3.2. Covenants. The Assignor covenants to the Assignee as follows:




     (a) The Assignor will not permit or agree to any amendment or modification of the
Partnership Agreement (except for ministerial or other non-substantive amendments or
modifications) as in effect on the date hereof (or other governing document with respect to
the Assigned Interests), or waive any rights or benefits under the Partnership Agreement (or
such other governing document), without the prior written consent of the Assignee.




     (b) Without the prior written consent of the Assignee, the Assignor will not sell,
dispose of or assign, beneficially or of record, or grant, create, permit or suffer any lien
or encumbrance on, any of the Assigned Interests, or withdraw as a limited partner of the
Partnership.




     (c) Without the prior written consent of the Assignee, the Assignor shall not cast any
vote or give or grant any consent, waiver or ratification or take any other action which
could reasonably be expected to (i) directly or indirectly authorize or permit the
dissolution, liquidation or sale of the Partnership, whether by operation of law or
otherwise, (ii) have the result of materially and adversely affecting any of the Assignee’s
rights under this Agreement, (iii) violate the terms of this Agreement or any of the other
Credit Documents, (iv) have the effect of impairing the validity, perfection or priority of
the security interest of the Assignee in any manner whatsoever, or (v) cause an Event of
Default.



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     (d) The Assignor will comply with all laws, regulations, judicial orders or decrees
applicable to the Collateral or any portion thereof, and perform and observe its duties
under the Partnership Agreement or other governing documents with respect to the Assigned
Interests.




     (e) The Assignor will (i) keep and maintain at its own cost and expense at its
principal place of business satisfactory and complete records of the Collateral including a
record of all payments received and all other dealings of a material nature with the
Collateral, and (ii) mark its books and records pertaining to the Collateral and its books
and records kept in its jurisdiction of organization to evidence this Agreement and the
liens and security interests granted hereby.




     (f) The Assignor will pay promptly when due any taxes, assessments, and governmental
charges or levies imposed upon the Collateral or in respect of its income or profits
therefrom, as well as all claims of any kind except that no such charge need be paid if (i)
the validity thereof is being diligently contested in good faith by appropriate proceedings;
(ii) such proceedings do not involve any danger of the sale, forfeiture, or loss of any of
the Collateral or any interest therein; and (iii) such charge is adequately reserved against
in a manner acceptable to the Assignee.




     (g) The Assignor will advise the Assignee promptly, in reasonable detail, of (i) any
lien, charge, claim or other encumbrance made or asserted against any of the Collateral;
(ii) any material change in the composition of the Collateral; (iii) the occurrence of any
other event or condition which to its knowledge would have a material effect on the
validity, perfection or priority of the liens and security interests granted hereunder; and
(iv) any bankruptcy or litigation case or proceeding relating to any of the Collateral.




     (h) The Assignor will not (i) change its type or jurisdiction of organization or, if it
has one, its organizational identification number, (ii) change its principal place of
business or chief executive office or the location of the records concerning the Collateral
without giving prior written notice to the Assignee and taking such actions as may be
necessary or appropriate in the reasonable opinion of the Assignee duly to perfect and
continue the perfection of the Assignee’s first priority lien and security interest in the
Collateral pursuant to the laws of any jurisdiction into which such place of business, chief
executive office, or records is or are transferred, and (iii) change its name in any matter
that might make any financing statement filed hereunder misleading or invalid unless the
Assignor shall have notified the Assignee thereof and taken all such actions as may be
necessary or appropriate in the reasonable opinion of the Assignee to make any financing
statement filed in favor of the Assignee not misleading or invalid.




     (i) The Assignor shall do or cause to be done all things necessary to preserve, renew
and keep in full force and effect its legal existence and that of the Partnership, the power
and authority of each of the Assignor and the Partnership to own its property and carry on
its business, the qualification of each of the Assignor and the Partnership to do business
in its jurisdiction of organization, and the qualification of each of the Assignor



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and the Partnership to do business in each other jurisdiction where such qualification
is necessary except where the failure so to qualify would not have a material adverse effect
on the rights and interests of the Assignee hereunder.




     (j) Without the prior written consent of the Assignee, the Assignor will not cause or
permit the limited partner interest of the Assignor in the Partnership to constitute a
security governed by Article 8 of the Uniform Commercial Code of the jurisdiction in which
the Partnership is organized. If the partnership interest at any time constitutes a
security governed by Article 8 of the Uniform Commercial Code of the jurisdiction in which
the Partnership is organized, the Assignor will, if it has not already done so, forthwith
obtain an agreement from the Partnership, in form and substance satisfactory to the
Assignee, that the Partnership will comply with instructions of the Assignee as to the
Assigned Interests without further consent of the Assignor.



4. RIGHTS OF ASSIGNEE.




     4.1. Assignee Appointed Attorney-in-Fact. The Assignor hereby irrevocably constitutes
and appoints the Assignee, its successors and assigns, its true and lawful attorney-in-fact, with
full power and authority and with full power of substitution, at the expense of the Assignor,
either in the Assignee’s own name or in the name of the Assignor, at any time and from time to
time, in each case as the Assignee in its sole discretion may determine (i) to take any and all
appropriate action and to execute any and all documents and instruments that may be necessary or
desirable to accomplish the purposes of this Agreement and (ii) upon the occurrence and during the
continuance of an Event of Default:




     (a) to take any action and execute any instruments that such attorney-in-fact may deem
necessary or advisable to accomplish the purposes hereof;




     (b) to ask, demand, collect, receive, receipt for, sue for, compound, and give
acquittance for any and all sums or properties that may be or become due, payable, or
distributable in respect of the Collateral or that constitute a part thereof, with full
power to settle, adjust, or compromise any claim thereunder or therefor as fully as the
Assignor could do;




     (c) to endorse or sign the name of the Assignor on all instruments given in payment or
in part payment thereof and all documents of satisfaction, discharge, or receipt required or
requested in connection therewith; and




     (d) to file or take any action or institute any case or proceeding that the Assignee
may deem necessary or appropriate to collect or otherwise realize upon any or all of the
Collateral, or effect a transfer thereof, or that may be necessary or appropriate to protect
and preserve the right, title, and interest of the Assignee in and to the Collateral and the
security intended to be afforded hereby.



     4.2. Cash Collateral Account. Unless applied by the Assignee to Secured Obligations
then due and payable, all sums of money that are paid to the Assignee pursuant to this Agreement
with respect to the Collateral shall be deposited into an interest bearing account



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with the Assignee or another financial institution selected by the Assignee in its sole
discretion (the “Cash Collateral Account”). Some or all of the funds from time to time in the Cash
Collateral Account may be invested in time deposits, including certificates of deposit issued by
the Assignee or another financial institution selected by the Assignee in its sole discretion (such
certificates of deposit or other time deposits being hereinafter referred to, collectively, as
“Time Deposits”) that are satisfactory to the Assignee, provided, in any such case, arrangements
satisfactory to the Assignee are made to perfect, and to ensure the first priority of, its lien and
security interest in such Time Deposits. Interest earned on the Cash Collateral Account and on the
Time Deposits, and the principal of the Time Deposits at maturity that is not invested in new Time
Deposits, shall be deposited in the Cash Collateral Account. The Cash Collateral Account, all sums
from time to time standing to the credit of the Cash Collateral Account, any and all Time Deposits,
any and all instruments or other writings evidencing Time Deposits, and any and all proceeds of any
thereof are hereinafter referred to as the “Cash Collateral.” If the Cash Collateral Account is
not maintained with the Assignee, the Assignor shall, at the Assignee’s request and option,
pursuant to an agreement in form and substance satisfactory to the Assignee, either (a) cause the
depositary bank with which the Cash Collateral Account is maintained to agree to comply at any time
with instructions from the Assignee to such depositary bank directing the funds comprising the Cash
Collateral, without further consent of the Assignee, or (b) arrange for the Assignee to become the
customer of such depositary bank with respect to the Cash Collateral Account.



     4.3. Distributions, Conversion, Voting, etc. So long as no Event of Default shall
have occurred and be continuing and to the extent permitted under the Credit Agreement, the
Assignor shall be entitled to:




     (a) receive all cash and other distributions paid in respect of the Assigned Interests
not authorized or made in violation of the Credit Agreement;




     (b) exercise any voting rights relating to the Assigned Interests; and




     (c) give consents, waivers, approvals, and ratifications in respect of the Assigned
Interests.


All such rights of the Assignor to receive cash and other distributions shall cease if an Event of
Default shall have occurred and be continuing, except to the extent permitted under the Credit
Agreement, the Existing Indentures and the New Indenture, and in each such case the Assignor shall
(i) at the request of the Assignee, issue appropriate instructions that any such distributions be
paid directly to the Assignee or to such account as the Assignee may designate, and (ii) hold in
trust for the Assignee and immediately pay over to the Assignee any such distributions received by
the Assignor, except in each case to the extent permitted under the Credit Agreement, the Existing
Indentures and the New Indenture. All such rights of the Assignor referred to in clauses (b) and
(c) shall, at the Assignee’s sole option, as evidenced by the Assignee’s notifying the Assignor in
writing of its exercise of such option, cease in case an Event of Default shall have occurred and
be continuing.




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     4.4. No Assignment of Duties. This Agreement constitutes an assignment of the
Assigned Interests and the other Collateral only and not an assignment of any duties or obligations
of the Assignor with respect thereto, and by its acceptance hereof and whether or not the Assignee
shall have exercised any of its rights or remedies hereunder, the Assignee does not undertake to
perform or discharge, and shall not be responsible or liable for the performance or discharge of,
any such duties or responsibilities, including, without limitation, for capital calls. The
Assignor agrees that, notwithstanding the exercise by the Assignee of any of its rights hereunder,
the Assignor shall remain liable for the full and prompt performance of all of the Assignor’s
obligations and liabilities under the Partnership Agreement. Under no circumstances shall the
Assignee or any holder of any of the Secured Obligations as such be deemed to be a partner of the
Partnership by virtue of the provisions of this Agreement unless expressly agreed to in writing by
the Assignee. Without limiting the generality of the foregoing, the Assignee shall have no
partnership fiduciary duty to the Assignor, whether by virtue of the security interests and liens
hereunder, or any enforcement action in respect of such security interests and liens, unless and
until the Assignee is admitted to the Partnership as a substitute partner after exercising
enforcement rights under §9-610 or §9-620 of the Uniform Commercial Code in effect in the State of
New York, or otherwise.



5. EVENTS OF DEFAULT.




     Any one or more of the following events shall constitute an “Event of Default” hereunder:




     (a) The Assignor shall fail to perform any of its obligations under the Partnership
Agreement that results in a default thereunder following the expiration of any applicable
notice and cure periods; or




     (b) The occurrence of any Actionable Default (as defined in the Collateral Agency
Agreement).



6. REMEDIES.




     6.1. Remedies. During the continuance of an Event of Default, the Assignee shall
have, in addition to the rights, powers and authorizations to collect the sums assigned hereunder,
all rights and remedies of a secured party under the Uniform Commercial Code and under other
applicable law with respect to the Assigned Interests and any other Collateral hereunder,
including, without limitation, the following rights and remedies:




     (a) if the Assignee so elects and gives written notice of such election to the
Assignor, the Assignee may, in its sole discretion, (i) exercise any voting rights relating
to the Assigned Interests (whether or not the same shall have been transferred into its name
or the name of its nominee or nominees) for any lawful purpose, including for the amendment
or modification of the Partnership Agreement or other governing documents or the liquidation
of the assets of the Partnership, (ii) give all consents, waivers, approvals, and
ratifications in respect of such Assigned Interests, and (iii) otherwise act with respect
thereto as though it were the outright owner thereof (the Assignor hereby



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irrevocably constituting and appointing the Assignee the proxy and attorney-in-fact of
the Assignor, with full power and authority of substitution, to do so);




     (b) the Assignee may, in its sole discretion, demand, sue for, collect, compromise, or
settle any rights or claims in respect of any Collateral, as attorney-in-fact pursuant to
§4.1 or otherwise;




     (c) (i) the Assignee may, in its sole discretion, sell, resell, assign, deliver, or
otherwise dispose of any or all of the Collateral, for cash or credit or both and upon such
terms, in such manner, at such place or places, at such time or times, and to such persons
or entities as the Assignee thinks expedient, all without demand for performance by the
Assignor or any notice or advertisement whatsoever except as expressly provided herein or as
may otherwise be required by applicable law; and (ii) at the time of any such sale or other
disposition, the Assignee or its nominee or any purchaser of the Collateral at a foreclosure
sale may, in its sole discretion, cause the Partnership to make an election under §754 of
the Internal Revenue Code as to the basis of any Assigned Interest being sold or otherwise
disposed of.




     (d) the Assignee may, in its sole discretion, cause all or any part of the Assigned
Interests held by it to be transferred into its name or the name of its nominee or nominees;
and




     (e) the Assignee may, in its sole discretion, set off against the Secured Obligations
or place an administrative hold or freeze on any and all sums deposited with it or held by
it, including any sums standing to the credit of the Cash Collateral Account and any Time
Deposits issued by the Assignee, with any withdrawal penalty relating to Time Deposits being
an expense of collection.



     6.2. Remedies Not Exclusive. No single or partial exercise by the Assignee of any
right, power or remedy hereunder shall preclude any other or further exercise thereof or the
exercise of any other right, power or remedy. Each right, power and remedy herein specifically
granted to the Assignee or otherwise available to it shall be cumulative, and shall be in addition
to every other right, power, and remedy herein specifically given or now or hereafter existing at
law, in equity, or otherwise. Each such right, power and remedy, whether specifically granted
herein or otherwise existing, may be exercised at any time and from time to time and as often and
in such order as may be deemed expedient by the Assignee in its sole discretion.



     6.3. Public Sale. In the event of any sale or other disposition of the Collateral as
provided in §6.1(c), the Assignee shall give to the Assignor at least five (5) Business Days’ prior
written notice of the time and place of any public sale or other disposition of the Collateral or
of the time after which any private sale or any other disposition is to be made. The Assignor
hereby acknowledges that five (5) Business Days’ prior authenticated notice of such sale or other
disposition or sales or other dispositions shall be reasonable notice. The Assignee may enforce
its rights hereunder without any other notice and without compliance with any other condition
precedent now or hereafter imposed by law, regulation, judicial order or decree or otherwise (all
of which are hereby expressly waived by the Assignor, to the fullest extent permitted by law).



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The Assignee may buy any part or all of the Collateral at any public sale or other disposition
and if any part or all of the Collateral is of a type customarily sold or otherwise disposed of in
a recognized market or is of a type which is the subject of widely-distributed standard price
quotations, the Assignee may buy at private sale or other disposition and may make payments thereof
by any means. The Assignee may apply the cash proceeds actually received from any sale or other
disposition to the reasonable expenses of retaking, holding, preparing for sale, selling, and the
like, to reasonable attorneys’ fees, travel, and all other expenses which may be incurred by the
Assignee in attempting to collect the Secured Obligations or to enforce this Agreement or in the
prosecution or defense of any case or proceeding related to this Agreement, and then to the Secured
Obligations in accordance with the requirements of the Collateral Agency Agreement.



     6.4. Private Sale. The Assignor recognizes that the Assignee may be unable to effect
a public sale or other disposition of the Collateral by reason of the lack of a ready market for
the Collateral, of the limited number of potential buyers of the Collateral or of certain
prohibitions contained in the Securities Act of 1933, state securities laws, and other applicable
laws, and that the Assignee may be compelled to resort to one or more private sales or other
dispositions thereof to a restricted group of purchasers. The Assignor agrees that any such
private sales or other dispositions may be at prices and other terms less favorable to the seller
than if sold at public sales or other dispositions and that such private sales or other
dispositions shall not solely by reason thereof be deemed not to have been made in a commercially
reasonable manner. The Assignee shall be under no obligation hereunder or otherwise (except as
provided by applicable law) to delay a sale or other disposition of any of the Collateral for the
period of time necessary to permit the registration of such securities for public sale or other
public disposition under the Securities Act of 1933 and applicable state securities laws. Any such
sale or other disposition of all or a portion of the Collateral may be for cash or on credit or for
future delivery and may be conducted at a private sale or other disposition where the Assignee or
any other person or entity may be the purchaser of all or part of the Assigned Interests so sold or
otherwise disposed of. The Assignor agrees that to the extent notice of sale or other disposition
shall be required by law, at least five (5) Business Days’ prior notice to the Assignor of the time
and place after which any private sale is to be made shall constitute reasonable notification.
Subject to the foregoing, the Assignee agrees that any sale or other disposition of the Assigned
Interests shall be made in a commercially reasonable manner. The Assignee shall incur no liability
as a result of the sale or other disposition of any of the Collateral, or any part thereof, at any
private sale which complies with the requirements of this §6.4. The Assignor hereby waives, to the
extent permitted by applicable law, any claims against the Assignee arising by reason of the fact
that the price at which any of the Collateral, or any part thereof, may have been sold or otherwise
disposed of at such private sale was less than the price that might have been obtained at a public
sale or other public disposition, even if the Assignee accepts the first offer deemed by the
Assignee in good faith deemed to be commercially reasonable under the circumstances and does not
offer any of the Collateral to more than one offeree.



     6.5. Title. Nothing contained in this Agreement shall be construed to require the
Assignee to take any action with respect to the Assigned Interests, whether by way of foreclosure
or otherwise and except as required by the Partnership Agreement, in order to permit the



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Assignee to become a substitute limited partner of the Partnership under the Partnership
Agreement.



7. ASSIGNMENT NOT AFFECTED BY OTHER ACTS.




     The Assignor acknowledges and agrees that the security interests and collateral assignments
herein provided for shall remain in full force and effect and shall not be impaired by any
acceptance by the Assignee of any other collateral security for or guaranty of any of the Secured
Obligations, or by any failure or neglect or omission on the part of the Assignee to realize upon,
collect or protect any Secured Obligations or any Collateral. The security interests and
collateral assignments herein provided for shall not in any manner be affected or impaired by any
renewal, extension, modification, amendment, waiver, or restatement of any of the Secured
Obligations or of any collateral security therefor, or of any guaranty thereof, the Assignor hereby
waiving any and all suretyship defenses to the extent otherwise applicable. In order to sell or
otherwise dispose of or otherwise realize upon the security interests and assignments herein
granted and provided for, and exercise the rights granted the Assignee hereunder and under
applicable law, there shall be no obligation on the part of the Assignee at any time to first
resort for payment to any guarantors of the Secured Obligations or any part thereof or to resort to
any other collateral security, property, liens or other rights or remedies whatsoever, and the
Assignee shall have the right to enforce the security interests and collateral assignments herein
provided for irrespective of whether or not other proceedings are pending for realization upon or
from any of the foregoing.



8. MISCELLANEOUS.




     8.1. Additional Instruments and Assurances. The Assignor hereby agrees, at its own
expense, to execute and deliver, from time to time, any and all further, or other, instruments, and
to perform such acts, as the Assignee may reasonably request to effect the purposes of this
Agreement and to secure to the Assignee the benefits of all rights and remedies conferred upon the
Assignee by the terms of this Agreement.



     8.2. Release. If and only if all of the indebtedness and obligations of the Borrowers
under the New Indenture shall have been indefeasibly paid, performed, and discharged in full in
cash, or the security interest in the Collateral otherwise shall have been released by the New
Trustee in accordance with the New Indenture, the lien and security interest created hereby shall
be automatically released with respect to all Secured Parties and the Assignee shall, upon demand
and at the sole expense of the Assignor, deliver, file or record the proper instrument or
instruments to evidence such release, and such release shall be binding upon all of the Secured
Parties notwithstanding that Secured Obligations may then be outstanding.



     8.3. Assignee’s Exoneration. Under no circumstances shall the Assignee be deemed to
assume any responsibility for or obligation or duty with respect to any part or all of the
Collateral of any nature or kind or any matter or proceeding arising out of or relating thereto,
other than (a) to exercise reasonable care in the physical custody of the Collateral and (b) if an
Event of Default shall have occurred and be continuing, to act in a commercially reasonable manner
in exercising its rights and remedies with respect to the Collateral. Subject to the



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foregoing, the Assignee shall not be required to take any action of any kind to collect,
preserve or protect its or the Assignor’s rights in the Collateral.



     8.4. No Waiver, etc. Any term of this Agreement may be amended or modified with, but
only with, the written consent of the Assignor and the Assignee. Any term of this Agreement may be
waived by a writing executed by the party to be charged with such waiver. No act, failure, or
delay by the Assignee shall constitute a waiver of its rights and remedies hereunder or otherwise.
No single or partial waiver by the Assignee of any default, right, or remedy that it may have shall
operate as a waiver of any other default, right, or remedy or of the same default, right, or remedy
on a future occasion.



     8.5. Waiver By Assignor. The Assignor hereby waives presentment, notice of dishonor,
and protest of all instruments included in or evidencing any of the Secured Obligations or the
Collateral, and any and all other notices and demands whatsoever (except as expressly provided
herein or in the Collateral Agency Agreement or for notices required in connection with judicial
proceedings).



     8.6. Notice, etc. All notices, requests, and other communications hereunder shall be
made and effective in the manner and at the address set forth on the signature pages hereto or at
such other address as may be set forth or in a notice from the notifying party to the other parties
hereto.



     8.7. Overdue Amounts. Until paid, all amounts due and payable by the Assignor
hereunder shall be a debt secured by the Collateral and shall bear, whether before or after
judgment, interest at the rate of interest for overdue principal set forth in the Credit Agreement.



     8.8. Governing Law; Consent to Jurisdiction. This Agreement is intended to take
effect as a sealed instrument and shall be governed by, and construed in accordance with, the laws
of the State of New York. THE ASSIGNOR AGREES THAT ANY PROCEEDING FOR THE ENFORCEMENT OF THIS
AGREEMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR ANY FEDERAL COURT SITTING
THEREIN AND CONSENTS TO THE NON-EXCLUSIVE JURISDICTION OF SUCH COURT AND TO SERVICE OF PROCESS IN
ANY SUCH PROCEEDING BEING MADE UPON THE ASSIGNOR BY MAIL AT THE ADDRESS SPECIFIED IN §8.6. THE
ASSIGNOR HEREBY WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH
PROCEEDING OR ANY SUCH COURT OR THAT SUCH PROCEEDING IS BROUGHT IN AN INCONVENIENT COURT.



     8.9. Waiver of Jury Trial. EACH OF THE ASSIGNOR AND THE ASSIGNEE HEREBY WAIVES ITS
RIGHT TO A JURY TRIAL WITH RESPECT TO ANY PROCEEDING ARISING OUT OF ANY DISPUTE IN CONNECTION WITH
THIS AGREEMENT, ANY RIGHTS OR OBLIGATIONS HEREUNDER, OR THE PERFORMANCE OF ANY SUCH RIGHTS OR
OBLIGATIONS.



     8.10. Limitation of Liability. Except as prohibited by applicable law, each of the
Assignor and assignee waives any right which it may have to claim or recover in any proceeding
referred to in the preceding sentence any special, exemplary, or punitive damages or any



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damages other than, or in addition to, actual or consequential damages. The Assignor (a)
certifies that neither the Assignee nor any representative, agent, or attorney of the Assignee has
represented, expressly or otherwise, that the Assignee would not, in the event of any proceeding,
seek to enforce the foregoing waivers and (b) acknowledges that, in entering into this Agreement,
the Assignee is relying upon, among other things, the waivers and certifications contained in this
§8.10.



     8.11. Severability and Enforceability. All provisions hereof are severable and the
invalidity or unenforceability of any of such provisions shall in no manner affect or impair the
validity and enforceability of the remaining provisions hereof.



     8.12. Successors and Assigns. This Agreement shall be binding upon the Assignor and
upon the legal representatives, successors and assigns of the Assignor and shall inure to the
benefit of the Assignee and its successors and assigns.



     8.13. Counterparts. This Agreement may be executed in any number of counterparts,
each constituting an original, but all together one and the same instrument. Delivery of an
executed counterpart of a signature page of this Agreement by telecopy shall be effective as
delivery of a manually executed counterpart of this Agreement.



     8.14. Entire Agreement. This Agreement, the Collateral Agency Agreement and the
Credit Documents and any other document executed in connection herewith or therewith express the
entire understanding of the parties with respect to the transactions contemplated hereby. Neither
this Agreement nor any terms hereof may be changed, waived or terminated except by a writing signed
by each party hereto.



     8.15. Limitation of Liability. The Assignor has been formed under the laws of the
Commonwealth of Massachusetts pursuant to a Declaration of Trust dated as of July 31, 2002. In
accordance with the Declaration of Trust, none of the shareholders, trustees or officers of the
Assignor shall be personally liable for the obligations arising under this Agreement, and the
Assignee shall look solely to the trust estate comprising the Assignor for the payment of any claim
under such obligations or for the performance of such obligations.



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     IN WITNESS WHEREOF, the Assignor and the Assignee have executed this Agreement as of the date
first above written, as an instrument under seal.



	 	 	 	 	 	 	 	 	 	 	 
	 	 	ASSIGNOR:	 	FELCOR HOLDINGS TRUST
	 
	 

	 	 	 	By:	 	/s/ Lester C. Johnson	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Name: Lester C.
Johnson	 	 	 
	
 	 	 	 	 	 	Title: Trustee	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	By:	 	/s/ Larry J. Mundy	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Name: Larry J. Mundy	 	 	 
	 

	 	 	 	 	 	Title: Trustee	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Type of organization: business trust
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Jurisdiction of organization: Massachusetts
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Tax identification number: 68-6222007
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Organizational identification number (or state “none” if the jurisdiction does not issue one):
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	000823956	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Address:
	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	ASSIGNEE:	 	JPMORGAN CHASE BANK, N.A., AS COLLATERAL AGENT
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	By:	 	/s/ Donald Shokrian	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Name: Donald
Shokrian	 	 	 
	 

	 	 	 	 	 	Title: Managing
Director	 	 	 
	 

	 	 	 	 	 	Address:
	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	277 Park Avenue, 3rd Floor
	 	 	 	 	 	 	New York, NY 10172






 









 





EXHIBIT A




LP Units



61,926,494 units of common limited partnership interests represented by Certificate No. 97.