exv10w28w3



 





Exhibit 10.28.3




AMENDED AND RESTATED PROMISSORY NOTE 

 



			
	$87,975,000.00
	 	Chicago, Illinois
	 
	 	December 14, 2007






          FOR VALUE RECEIVED FELCOR ESMERALDA (SPE), L.L.C., a Delaware limited liability company,
having its principal place of business at c/o FelCor Lodging Trust Incorporated, 545 E. John
Carpenter Freeway, Suite 1300, Irving, Texas 75062 (“Hotel Owner”) and FELCOR ESMERALDA LEASING
(SPE), L.L.C., a Delaware limited liability company, having its principal place of business at c/o
FelCor Lodging Trust Incorporated, 545 E. John Carpenter Freeway, Suite 1300, Irving, Texas 75062
(“Hotel Operator”; Hotel Owner and Hotel Operator, individually and collectively, as the context
requires, with such determination to be made by Lender in its sole discretion, are referred to
herein as “Borrower”), hereby unconditionally promise to pay to the order of GREENWICH CAPITAL
FINANCIAL PRODUCTS, INC., a Delaware corporation, as lender, having an address at 600 Steamboat
Road, Greenwich, CT 06830 (“Lender”), or at such other place as the holder hereof may from time to
time designate in writing, the principal sum of EIGHTY SEVEN MILLION NINE HUNDRED SEVENTY FIVE
THOUSAND and NO/100 DOLLARS ($87,975,000.00), in lawful money of the United States of America with
interest thereon to be computed from the date of this Note at the Applicable Interest Rate, and to
be paid in accordance with the terms of this Note and that certain Loan Agreement, dated 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”). All capitalized terms not defined
herein shall have the respective meanings set forth in the Loan Agreement.




WITNESSETH:




     WHEREAS, the Lender is presently the owner and holder of that certain Promissory Note by WSRH
Indian Wells, L.L.C., a Delaware limited liability company (“Prior Owner”) in favor of Lender (the
“Original Note") dated April 9, 2007, representing an indebtedness in the original principal amount
of Eighty Seven Million Nine Hundred Seventy Five Thousand and No/100 Dollars ($87,975,000.00) (the
“Loan” );



     WHEREAS, Hotel Owner has acquired the Property from Prior Owner and Hotel Operator is leasing
the Property from Hotel Owner pursuant to the terms and conditions set forth in that certain lease
dated as of the date hereof between Hotel Owner and Hotel Operator (as the same may be amended,
restated, replaced, supplemented or otherwise modified from time to time, the “Hotel Operating
Lease”);



     WHEREAS, pursuant to the terms of that certain Assumption Agreement (the “Assumption
Agreement") dated as of the date hereof, by and among Borrower, Lender and Prior Owner, Borrower
has assumed the obligations of Prior Owner under the Original Note and the other documents
evidencing and securing the Loan and Lender consented to the assumption of the Loan by Borrower in
accordance with the terms and conditions set forth therein;



 









 





     WHEREAS, pursuant to the Assumption Agreement, Borrower and Lender have entered into that
certain Amended and Restated 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”);



     NOW THEREFORE, in consideration of the covenants and agreements hereinafter set forth, and in
and for other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto, intending to be legally bound, hereby covenant and agree that all
of the terms, provisions and obligations contained in the Original Note are hereby amended,
restated and superseded in their entirety to read as follows:



     A. The outstanding principal balance of the Original Note as of the date here of is EIGHTY
SEVEN MILLION NINE HUNDRED SEVENTY FIVE THOUSAND and NO/100 DOLLARS ($87,975,000.00).



     B. This Note amends, restates and replaces the Original Note in its entirety. This Note does
not (i) extinguish the indebtedness under the Original Note, (ii) discharge or release any security
or (iii) constitute a novation.



ARTICLE 1: PAYMENT TERMS




          Borrower agrees to pay the principal sum of this Note and interest on the unpaid principal sum
of this Note from time to time outstanding at the rates and at the times specified in Article 2 of
the Loan Agreement and the outstanding balance of the principal sum of this Note and all accrued
and unpaid interest thereon shall be due and payable on the Maturity Date.




ARTICLE 2: DEFAULT AND ACCELERATION




          The Debt shall without notice become immediately due and payable at the option of Lender if
any payment required in this Note is not paid on or prior to the date when due (beyond the
expiration of any applicable grace periods) or if not paid on the Maturity Date or on the happening
and continuance of any other Event of Default.




ARTICLE 3: LOAN DOCUMENTS




          This Note is secured by the Mortgage and the other Loan Documents. All of the terms,
covenants and conditions contained in the Loan Agreement, the Mortgage and the other Loan Documents
are hereby made part of this Note to the same extent and with the same force as if they were fully
set forth herein. In the event of a conflict or inconsistency between the terms of this Note and
the Loan Agreement, the terms and provisions of the Loan Agreement shall govern.




ARTICLE 4: SAVINGS CLAUSE




          Notwithstanding anything to the contrary, (a) all agreements and communications between
Borrower and Lender are hereby and shall automatically be limited so that, after taking into
account all amounts deemed interest, the interest contracted for, charged or received by Lender
shall never exceed the Maximum Legal Rate, (b) in calculating whether any interest




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exceeds the Maximum Legal Rate, all such interest shall be amortized, prorated, allocated and
spread over the full amount and term of all principal indebtedness of Borrower to Lender and (c) if
through any contingency or event Lender receives or is deemed to receive interest in excess of the
Maximum Legal Rate, any such excess shall be deemed to have been applied toward payment of the
principal of any and all then outstanding indebtedness of Borrower to Lender, or if there is no
such indebtedness, shall be immediately returned to Borrower.




ARTICLE 5: NO ORAL CHANGE




          This Note may not be modified, amended, waived, extended, changed, discharged or terminated
orally or by any act or failure to act on the part of Borrower or Lender, 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.




ARTICLE 6: WAIVERS




          Borrower and all others who may become liable for the payment of all or any part of the Debt
do hereby severally waive presentment and demand for payment, notice of dishonor, notice of
intention to accelerate, notice of acceleration, protest and notice of protest and non-payment and,
except as expressly provided in the Loan Documents, all other notices of any kind. No release of
any security for the Debt or extension of time for payment of this Note or any installment hereof,
and no alteration, amendment or waiver of any provision of this Note, the Loan Agreement or the
other Loan Documents made by agreement between Lender or any other Person shall release, modify,
amend, waive, extend, change, discharge, terminate or affect the liability of Borrower, and any
other Person who may become liable for the payment of all or any part of the Debt, under this Note,
the Loan Agreement or the other Loan Documents. No notice to or demand on Borrower shall be deemed
to be a waiver of the obligation of Borrower or of the right of Lender to take further action
without further notice or demand as provided for in this Note, the Loan Agreement or the other Loan
Documents. If Borrower 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 “Borrower,” 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 Borrower 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 “Borrower” as used herein, shall include
any alternative or successor corporation, but any predecessor corporation shall not be relieved of
liability hereunder. If any Borrower 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 “Borrower” 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 three
sentences 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, as
applicable, which may be set forth in the Loan Agreement or any other Loan Document.




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ARTICLE 7: TRANSFER




          Upon the transfer of this Note, Borrower hereby waiving notice of any such transfer, Lender
may deliver all the collateral mortgaged, granted, pledged or assigned pursuant to the Loan
Documents, or any part thereof, to the transferee who shall thereupon become vested with all the
rights herein or under applicable law given to Lender with respect thereto, and Lender shall
thereafter forever be relieved and fully discharged from any liability or responsibility in the
matter; but Lender shall retain all rights hereby given to it with respect to any liabilities and
the collateral not so transferred. Notwithstanding the foregoing, Lender shall endeavor in good
faith (without liability for the failure to do so) to provide Borrower with notification of any
change in the Person servicing the Loan; provided, however, it shall not constitute a default or
Event of Default hereunder if due to such failure Borrower sends any payments required to be made
hereunder to Lender or any predecessor Person servicing the Loan.




ARTICLE 8: EXCULPATION




          The provisions of Section 9.4 of the Loan Agreement are hereby incorporated by reference into
this Note to the same extent and with the same force as if fully set forth herein.




ARTICLE 9: GOVERNING LAW




          Governing Law. (A) THE PARTIES HEREBY AGREE AND IRREVOCABLY ELECT THAT, IN ALL
RESPECTS, INCLUDING, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, MATTERS OF CONSTRUCTION,
VALIDITY AND PERFORMANCE, THIS NOTE AND THE OBLIGATIONS ARISING HEREUNDER SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND
PERFORMED IN SUCH STATE (WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS) AND ANY APPLICABLE LAW
OF THE UNITED STATES OF AMERICA. TO THE FULLEST EXTENT PERMITTED BY LAW, BORROWER HEREBY
UNCONDITIONALLY AND IRREVOCABLY WAIVES ANY CLAIM TO ASSERT THAT THE LAW OF ANY OTHER JURISDICTION
GOVERNS THIS NOTE AND THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK PURSUANT TO SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW.




          (B) ANY LEGAL SUIT, ACTION OR PROCEEDING AGAINST LENDER OR BORROWER ARISING OUT OF OR RELATING
TO THIS NOTE MAY AT LENDER’S OPTION BE INSTITUTED IN ANY FEDERAL OR STATE COURT IN THE CITY OF NEW
YORK, COUNTY OF NEW YORK, PURSUANT TO SECTION 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW AND
BORROWER WAIVES ANY OBJECTIONS WHICH IT MAY NOW OR HEREAFTER HAVE BASED ON VENUE AND/OR FORUM NON
CONVENIENS OF ANY SUCH SUIT, ACTION OR PROCEEDING, AND BORROWER HEREBY IRREVOCABLY SUBMITS TO THE




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JURISDICTION OF ANY SUCH COURT IN ANY SUIT, ACTION OR PROCEEDING. BORROWER DOES HEREBY
DESIGNATE AND APPOINT:





CT CORPORATION SYSTEM

111 EIGHTH AVENUE, 13th FLOOR

NEW YORK, NEW YORK 10011



          AS ITS AUTHORIZED AGENT TO ACCEPT AND ACKNOWLEDGE ON ITS BEHALF SERVICE OF ANY AND ALL PROCESS
WHICH MAY BE SERVED IN ANY SUCH SUIT, ACTION OR PROCEEDING IN ANY FEDERAL OR STATE COURT IN NEW
YORK, NEW YORK, AND AGREES THAT SERVICE OF PROCESS UPON SAID AGENT AT SAID ADDRESS AND NOTICE OF
SAID SERVICE MAILED OR DELIVERED TO BORROWER IN THE MANNER PROVIDED HEREIN SHALL BE DEEMED IN EVERY
RESPECT EFFECTIVE SERVICE OF PROCESS UPON BORROWER IN ANY SUCH SUIT, ACTION OR PROCEEDING IN THE
STATE OF NEW YORK. BORROWER (I) SHALL GIVE PROMPT NOTICE TO LENDER OF ANY CHANGED ADDRESS OF ITS
AUTHORIZED AGENT HEREUNDER, (II) MAY AT ANY TIME AND FROM TIME TO TIME DESIGNATE A SUBSTITUTE
AUTHORIZED AGENT WITH AN OFFICE IN NEW YORK, NEW YORK (WHICH SUBSTITUTE AGENT AND OFFICE SHALL BE
DESIGNATED AS THE PERSON AND ADDRESS FOR SERVICE OF PROCESS), AND (III) SHALL PROMPTLY DESIGNATE
SUCH A SUBSTITUTE IF ITS AUTHORIZED AGENT CEASES TO HAVE AN OFFICE IN NEW YORK, NEW YORK OR IS
DISSOLVED WITHOUT LEAVING A SUCCESSOR.




ARTICLE 10: NOTICES




          All notices or other written communications hereunder shall be delivered in accordance with
Section 10.6 of the Loan Agreement.




ARTICLE 11: STATE SPECIFIC PROVISIONS




          (a) With respect to the foregoing provisions contained in this Note, the following shall apply
with respect to the State of California:




          (i) The following paragraph shall be inserted after Article 3 of this Note:




          (a) Prepayment. BY INITIALING BELOW, BORROWER EXPRESSLY ACKNOWLEDGES AND UNDERSTANDS
THAT, PURSUANT TO THE TERMS OF THIS NOTE, IT HAS AGREED THAT IT HAS NO RIGHT TO PREPAY THE NOTE
EXCEPT AS EXPRESSLY SET FORTH IN THE LOAN AGREEMENT AND THAT IT SHALL BE LIABLE FOR THE PAYMENT OF
THE PREPAYMENT CHARGES FOR PREPAYMENT OF THIS NOTE UPON ACCELERATION OF THIS NOTE IN ACCORDANCE
WITH THE TERMS OF THE LOAN AGREEMENT. FURTHER, BY INITIALING BELOW, BORROWER WAIVES ANY RIGHTS IT
MAY HAVE UNDER SECTION 2954.10 OF THE CALIFORNIA CIVIL CODE, OR ANY SUCCESSOR STATUTE, AND
EXPRESSLY




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ACKNOWLEDGES AND UNDERSTANDS THAT LENDER HAS MADE THE LOAN IN RELIANCE ON THE AGREEMENTS AND
WAIVER OF BORROWER AND THAT LENDER WOULD NOT HAVE MADE THE LOAN WITHOUT SUCH AGREEMENTS AND WAIVER
OF BORROWER.




	 	 	 	 	 
	 

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	 	Borrower’s Initials
	 

	 	 

	 	 
	 
	 	 	 	 
	 

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	 	Borrower’s Initials
	 

	 	 

	 	 






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          IN WITNESS WHEREOF, Borrower has duly executed this Note as of the day and year first above
written.




BORROWER:




FELCOR ESMERALDA (SPE), L.L.C.,

a Delaware limited liability company




	 	 	 	 	 
	By:

	 	/s/ Charles N. Nye	 	 
	Name:

	 	 

Charles N. Nye
	 	 
	Title:

	 	 

Vice President
	 	 
	 

	 	 

	 	 






FELCOR ESMERALDA LEASING (SPE), L.L.C.,

a Delaware limited liability company




	 	 	 	 	 
	By:

	 	/s/ Charles N. Nye	 	 
	Name:

	 	 

Charles N. Nye
	 	 
	Title:

	 	 

Vice President