exv10w28w1



 





Exhibit 10.28.1




ASSUMPTION AGREEMENT




     This Assumption Agreement (“Agreement”) is made this 14th day of December, 2007, by GREENWICH
CAPITAL FINANCIAL PRODUCTS, INC., a Delaware corporation (together with its successors and assigns
“Lender”), WSRH INDIAN WELLS, L.L.C., a Delaware limited liability company (“Borrower”), FELCOR
ESMERALDA (SPE), L.L.C., a Delaware limited liability company (“Hotel Owner”), and FELCOR ESMERALDA
LEASING (SPE), L.L.C., a Delaware limited liability company (“Hotel Operator”).



RECITALS





	 	A.	 	Lender made a loan to Borrower in the original principal amount of EIGHTY-SEVEN MILLION
NINE HUNDRED SEVENTY-FIVE THOUSAND AND NO/100THS DOLLARS ($87,975,000.00) (“Loan”), under
the terms and provisions set forth in the following loan documents, all of which are dated
as of April 9, 2007, unless otherwise noted:
	 
	 	1.	 	Promissory Note (“Original Note”) in the original principal amount of the Loan, made
by Borrower and payable to Lender;
	 
	 	2.	 	Deed of Trust and Security Agreement (“Original Security Instrument”), executed by
Borrower, as trustor, for the benefit of Lender, as beneficiary, which secures the
Original Note and other obligations of Borrower and which was recorded on April 11, 2007,
as Instrument No. 2007-0245109, in the Official Records of Riverside County, California.
The land, improvements and other real property which are subject to the Original Security
Instrument are hereinafter referred to as the “Property” and the equipment, machinery and
other personal property which are subject to the Original Security Instrument are
hereinafter referred to as the “Collateral”;
	 
	 	3.	 	Assignment of Leases and Rents (“Original Assignment of Rents”), executed by
Borrower, for the benefit of Lender, which was recorded on April 11, 2007, as Instrument
No. 2007-0245110, in the Official Records of Riverside County, California;
	 
	 	4.	 	Loan Agreement (“Original Loan Agreement”) executed by Borrower and Lender;
	 
	 	5.	 	Cash Management Agreement (“Original Cash Management Agreement”) executed by Borrower
and Lender;
	 
	 	6.	 	Collateral Assignment of Interest Rate Cap Agreement (“Original Collateral Assignment
of Interest Rate Cap Agreement”) executed by Borrower and Lender, and acknowledged by
Natixis Financial Products, Inc.;
	 
	 	7.	 	Environmental Indemnity Agreement (“Original Environmental Indemnity”) executed by
Borrower in favor of Lender;
	 
	 	8.	 	Operations and Maintenance Agreement (“Original O & M Agreement”) executed by
Borrower in favor of Lender;
	 
	 	9.	 	Subordination, Non-Disturbance and Attornment Agreement (“Original SNDA”) by and
among Borrower, Lender and Renaissance Hotel Management Company, LLC, a Delaware limited
liability company (“Manager”);
	 
	 	10.	 	Uniform Commercial Code — Financing Statement — Form UCC-1 naming Borrower as debtor
and Lender as secured party (filed with the Delaware Secretary of State); and




 









 












	 	11.	 	Uniform Commercial Code — Financing Statement — Form UCC-1 naming Borrower as debtor and
Lender as secured party (recorded in the Official Records of Riverside County,
California).
	 
	 	 	 	The above documents and any other “Loan Documents” (as defined in the Original Loan
Agreement, including, in each case, any prior amendments thereto), are hereinafter
collectively defined as the “Original Loan Documents”.
	 
	 	B.	 	As of December 14, 2007:
	 
	 	1.	 	The principal balance outstanding under the Note was EIGHTY-SEVEN MILLION NINE
HUNDRED SEVENTY-FIVE THOUSAND AND 00/100THS DOLLARS ($87,975,000.00);
	 
	 	2.	 	Accrued interest on the Note has been paid through November 30, 2007;
	 
	 	3.	 	Accrued but unpaid interest on the Note was Two Hundred Thirty-Two Thousand Six
Hundred Forty-Five and no/100ths Dollars ($232,645.00);
	 
	 	4.	 	The balance of the Debt Service Reserve Account (as defined in the Original Loan
Agreement) is $1,203,091.30;
	 
	 	C.	 	Contemporaneously with the execution and delivery of this Agreement, Borrower has sold
and conveyed the Property and the Collateral to Hotel Owner.
	 
	 	D.	 	Contemporaneously with the execution and delivery of this Agreement, Hotel Owner has
leased the Property to Hotel Operator.
	 
	 	E.	 	Contemporaneously with the execution and delivery of this Agreement, in connection with
Hotel Owner’s purchase of the Property and the Collateral from Borrower, Hotel Owner and
Hotel Operator have entered into the following documents, each dated as of the date hereof:
	 
	 	1.	 	Amended and Restated Promissory Note (“Note”) in the original principal amount of the
Loan, made by Hotel Owner and Hotel Operator and payable to Lender;
	 
	 	2.	 	Amended and Restated Deed of Trust, Security Agreement and Fixture Filing (“Security
Instrument”), executed by Hotel Owner and Hotel Operator, as trustors, for the benefit of
Lender, as beneficiary, which secures the Note and other obligations of Hotel Owner and
Hotel Operator, and which will be recorded in the Official Records of Riverside County,
California. The Property and Collateral that are subject to the Original Security
Instrument are also subject to the Security Instrument;
	 
	 	3.	 	Amended and Restated Assignment of Leases and Rents (“Assignment of Rents”), executed
by Hotel Owner and Hotel Operator, for the benefit of Lender, which will be recorded in
the Official Records of Riverside County, California;
	 
	 	4.	 	Amended and Restated Loan Agreement (“Loan Agreement”) executed by Hotel Owner, Hotel
Operator and Lender;
	 
	 	5.	 	Amended and Restated Cash Management Agreement (“Cash Management Agreement”) executed
by Hotel Owner, Hotel Operator and Lender;
	 
	 	6.	 	Amended and Restated Collateral Assignment of Interest Rate Cap Agreement
(“Collateral Assignment of Interest Rate Cap Agreement”) executed by Hotel Owner, Hotel
Operator and Lender, and acknowledged by Natixis Financial Products, Inc.;
	 
	 	7.	 	Amended and Restated Environmental Indemnity Agreement (“Environmental Indemnity”)
executed by Hotel Owner and Hotel Operator in favor of Lender;




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	 	8.	 	Amended and Restated Operations and Maintenance Agreement (“O & M Agreement”)
executed by Hotel Owner and Hotel Operator in favor of Lender;
	 
	 	9.	 	Amended and Restated Subordination, Non-Disturbance and Attornment Agreement (“SNDA”)
by and among Hotel Owner, Hotel Operator, Lender and Manager;
	 
	 	10.	 	Operating Lease Subordination Agreement; Acknowledgment of Lease Assignment, Estoppel
and Attornment by and among Hotel Owner, Hotel Operator and Lender;
	 
	 	11.	 	Uniform Commercial Code — Financing Statement — Form UCC-1 naming Hotel Owner as
debtor and Lender as secured party (which will be filed with the Delaware Secretary of
State);
	 
	 	12.	 	Uniform Commercial Code — Financing Statement — Form UCC-1 naming Hotel Operator as
debtor and Lender as secured party (which will be filed with the Delaware Secretary of
State);
	 
	 	13.	 	Uniform Commercial Code — Financing Statement — Form UCC-1 naming Hotel Owner as
debtor and Lender as secured party (which will be recorded in the Official Records of
Riverside County, California); and
	 
	 	14.	 	Uniform Commercial Code — Financing Statement — Form UCC-1 naming Hotel Operator as
debtor and Lender as secured party (which will be recorded in the Official Records of
Riverside County, California).
	 
	 	 	 	The above documents and any other Loan Documents (as defined in the Loan Agreement,
including, in each case, any prior amendments thereto, together with this Agreement are
hereinafter collectively defined as the “Loan Documents”.




NOW THEREFORE, FOR VALUABLE CONSIDERATION, including, without limitation, the mutual covenants and
promises contained herein, the parties agree as follows:





	 	1.	 	Incorporation. The foregoing recitals are incorporated herein by this
reference.
	 
	 	2.	 	Conditions Precedent. The following are conditions precedent to Lender’s
obligations under this Agreement:






	 	a.	 	The irrevocable commitment of First American Title Insurance Company
(“Title Company”) to issue a 1992 (WITHOUT AMENDMENT OR REVISION) ALTA Loan Policy of
Title Insurance in form and substance acceptable to Lender insuring Lender that the
Security Instrument constitutes a first and prior lien upon the Property, subject
only to those matters expressly approved by Lender in writing;
	 
	 	b.	 	Receipt and approval by Lender of: (i) the executed original of this
Agreement; (ii) an executed original of a Memorandum of Assumption Agreement in the
form attached hereto as Exhibit A and otherwise in form and substance acceptable to
Lender (“Memorandum of Assumption Agreement”); and (iii) any other documents and
agreements which are required pursuant to this Agreement, in form and content
acceptable to Lender;
	 
	 	c.	 	Recordation in the Official Records of the County where the Property is
located of the Memorandum of Assumption Agreement, together with such other documents
and agreements, if any, required pursuant to this Agreement or which Lender has
requested to be recorded or filed;
	 
	 	d.	 	Hotel Owner’s, Hotel Operator’s and Manager’s execution and delivery to
Lender of the Loan Documents to which they are a party, in proper form for filing in
the appropriate jurisdictions as determined by Lender;




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	 	e.	 	Delivery to Lender of such resolutions or certificates as Lender may
require, in form and content acceptable to Lender, authorizing the assumption of the
Loan and executed by the appropriate persons and/or entities on behalf of Hotel Owner
and Hotel Operator;
	 
	 	f.	 	Delivery to Lender of such resolutions or certificates as Lender may
require, in form and content acceptable to Lender, authorizing the sale of the
Property, the Collateral and the Loan, and executed by the appropriate persons and/or
entities on behalf of Borrower;
	 
	 	g.	 	No default shall have occurred and be continuing under the Original Loan
Documents or the Loan Documents;
	 
	 	h.	 	The representations and warranties contained herein are true and correct;
	 
	 	i.	 	Receipt by Lender of a copy of Hotel Owner’s casualty insurance policy and
comprehensive liability insurance policy with respect to the Property, each in form
and amount satisfactory to Lender together with evidence that all other insurance
required by the Loan Documents is in effect;
	 
	 	j.	 	Receipt by Lender of a copy of the deed by which title to the Property will
be conveyed to Hotel Owner (which deed shall be recorded in the Official Records of
Riverside County, California on the date hereof), the bill of sale by which the
personal property will be transferred, and the purchase and sale agreement
documenting the sale of the Property to Hotel Owner;
	 
	 	k.	 	Receipt by Lender of an executed Form W-9 for Hotel Owner and Hotel
Operator;
	 
	 	l.	 	Receipt by Lender of an operating lease by and between Hotel Owner and
Hotel Operator, whereby Hotel Owner will lease the Property to Hotel Operator, in
form and substance acceptable to Lender;
	 
	 	m.	 	Receipt by Lender of assignments of any parking management agreement,
property management agreement, licenses and permits, to the extent assignable, all in
form and substance satisfactory to Lender in Lender’s discretion;
	 
	 	n.	 	Lender shall have received from counsel satisfactory to Lender, legal
opinions in form and substance satisfactory to Lender in Lender’s discretion. All
such legal opinions will be addressed to Lender, dated as of the date hereof, and in
form and substance satisfactory to Lender and Lender’s counsel;
	 
	 	o	 	. Receipt by Lender of organizational documents of Hotel Owner, Hotel
Operator, and such direct and indirect owners of Hotel Owner and Hotel Operator as
Lender may reasonably determine, all in form and substance satisfactory to Lender in
Lender’s discretion;
	 
	 	p.	 	Execution and delivery to Lender of any other documents and agreements
which are required pursuant to this Agreement, in form and content acceptable to
Lender; and
	 
	 	q.	 	Reimbursement to Lender of Lender’s costs and expenses incurred in
connection with this Agreement and the transactions contemplated hereby, including,
without limitation, title insurance costs, escrow and recording fees, attorneys’
fees, appraisal, engineers’ and inspection fees and documentation costs and charges,
whether such services are furnished by Lender’s employees, agents or independent
contractors (collectively, the “Third Party Costs”), by Borrower, Hotel Owner and
Hotel Operator.






	 	3.	 	Effective Date. The effective date of this Agreement shall be the date the
Memorandum of Assumption Agreement is recorded in the Official Records of the County where
the Property is located (“Effective Date”).




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	 	4.	 	Assumption. Borrower hereby assigns to Hotel Owner and Hotel Operator the
Debt (as defined in the Original Loan Documents) and the Original Loan Documents, and
Hotel Owner and Hotel Operator hereby accept the foregoing assignments and hereby assume
and agree to pay when due all sums due or to become due or owing under the Original Note,
the Original Security Instrument and the other Original Loan Documents and shall hereafter
faithfully perform all of Borrower’s obligations under and be bound by all of the
provisions of the Loan Documents and assume all liabilities of Borrower under the Original
Loan Documents as if Hotel Owner and Hotel Operator were original signatories thereto.
The execution of this Agreement by Hotel Owner and Hotel Operator shall be deemed its
execution of the Original Note, the Original Security Instrument and the other Original
Loan Documents. Hotel Owner and Hotel Operator acknowledge and agree that any breach of
any representations, warranties, covenants or other obligations by Borrower under the
Original Loan Documents or this Agreement shall be deemed a breach of such
representations, warranties, covenants or other obligations by Hotel Owner and Hotel
Operator under the Loan Documents and shall constitute a default thereunder and hereunder,
subject to any cure rights, if any, permitted therein. Notwithstanding any of the
provisions in this Section to the contrary, this Section shall not limit, restrict,
impair, terminate, revoke or otherwise affect any rights or remedies Hotel Owner or Hotel
Operator may have against Borrower pursuant to that certain Sale and Purchase Agreement
For Sale and Purchase of Renaissance Esmeralda Hotel, dated as of November 8, 2007, by and
between Borrower and FelCor Lodging Limited Partnership.
	 
	 	5.	 	No Release of Borrower. Lender hereby releases (on the Effective Date)
Borrower from liability under the Original Loan Documents (but not this Agreement);
provided, however, that the Borrower hereby acknowledges and agrees that Borrower is
expressly not released from, and nothing contained herein is intended to limit, impair,
terminate or revoke any of Borrower’s obligations with respect to any matters set forth in
the Original Loan Documents to the extent the same arise out of or in connection with any
act or omission occurring before the Effective Date (the “Retained Obligations”), and that
such Retained Obligations shall continue in full force and effect in accordance with the
terms and provisions thereof and hereof. Except as expressly provided in this Agreement or
in the Original Loan Documents, Lender has not waived any right of Lender or obligation of
Borrower under the Original Loan Documents, and, except as set forth in this Agreement or
in the Loan Documents, Lender has not agreed to any modification or extension of any
provision of any of the Original Loan Documents. The Retained Obligations shall not be
discharged or reduced by any extension, amendment, renewal or modification to, the Original
Note, the Original Security Instrument or any other Original Loan Documents, including,
without limitation, changes to the terms of repayment thereof, modifications, extensions or
renewals of repayment dates, releases or subordinations of security in whole or in part,
changes in the interest rate or advances of additional funds by Lender in its discretion
for purposes related to those set forth in the Original Loan Documents; provided further
that nothing contained in this Agreement shall limit, restrict, impair, terminate or affect
Borrower’s rights under Section 9.4 of the Original Loan Agreement.
	 
	 	 	 	From time to time without first requiring performance on the part of Hotel Owner or Hotel
Operator, Lender may look to and require performance by Borrower of all obligations on the
part of Borrower to be performed pursuant to any of the Original Loan Documents which
obligations arose or accrued prior to the Effective Date. Except as set forth in the
Original Loan Documents, Borrower waives all presentments, demands for performance, notices
of nonperformance, protests, notices of protest and notices of dishonor of all or any part
of the indebtedness now existing or hereafter arising under the Original Loan Documents.
	 
	 	6.	 	Representations and Warranties.






	 	a.	 	Assignment. Borrower, Hotel Owner and Hotel Operator each hereby
represents and warrants to Lender that, concurrently with the execution and delivery
of this Agreement, Borrower has transferred and assigned all of Borrower’s right,
title and interest in and to:






	 	i.	 	The Property, including but not limited to all
reciprocal easement agreements, operating agreements, and declarations
of conditions, covenants and restrictions related to the Property to
Hotel Owner and the Collateral to Hotel Owner;
	 
	 	ii.	 	The Original Loan Documents to Hotel Owner and
Hotel Operator;




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	 	iii.	 	All leases related to the Property or the
Collateral to Hotel Owner;
	 
	 	iv.	 	All prepaid rents and security deposits, if
any, held by Borrower in connection with leases of any part of the
Property or the Collateral to Hotel Owner; and
	 
	 	v.	 	All funds, if any, deposited in impound
accounts held by or for the benefit of Lender pursuant to the terms of
the Original Loan Documents to Hotel Owner and Hotel Operator.






	 	 	 	Borrower, Hotel Owner and Hotel Operator each hereby further represents and warrants
to Lender, each as to themselves only, that no consent to the transfer of the Property
and the Collateral to Hotel Owner and Hotel Operator is required under any agreement
to which Borrower, Hotel Owner or Hotel Operator is a party, including, without
limitation, under any lease, operating agreement, mortgage or security instrument
(other than the Original Loan Documents), or if such consent is required, that the
parties have obtained all such consents.






	 	b.	 	No Defaults.






(i) Borrower hereby represents and warrants, to its actual knowledge, that
no default, event of default, breach or failure of condition has occurred,
or would exist with notice or the lapse of time or both, under any of the
Original Loan Documents, and to Borrower’s actual knowledge all
representations and warranties of Borrower in the Original Loan Documents
and this Agreement are true and correct.




(ii) Hotel Owner and Hotel Operator each hereby represents and warrants, to
its actual knowledge, that no default, event of default, breach or failure
of condition has occurred, or would exist with notice or the lapse of time
or both, under any of the Loan Documents or this Agreement, and to Hotel
Owner’s and Hotel Operator’s actual knowledge all representations and
warranties in the Loan Documents and this Agreement are true and correct.




	 	c.	 	Loan Documents. Hotel Owner and Hotel Operator represent and
warrant to Lender that Hotel Owner and Hotel Operator have actual knowledge of all
terms and conditions of the Original Loan Documents, and agree that Lender has no
obligation or duty to provide any information to Hotel Owner or Hotel Operator
regarding the terms and conditions of the Original Loan Documents. Hotel Owner and
Hotel Operator further understand and acknowledge that, except as expressly provided
in a writing executed by Lender, Lender has not waived any right of Lender or
obligation of Borrower under the Original Loan Documents, or Hotel Owner or Hotel
Operator under the Loan Documents, and, except as set forth in the Loan Documents,
Lender has not agreed to any modification of any provision of any Original Loan
Document or to any extension of the Loan.






	 	7.	 	Hazardous Materials; CCP Section 726.5; Section 736. Hotel Owner, Hotel
Operator, Borrower and Lender agree that: (i) this Section is intended as Lender’s written
request for information (and Hotel Owner’s and Hotel Operator’s and Borrower’s response)
concerning the environmental condition of the real property security under the terms of
California Code of Civil Procedure Section 726.5; (ii) each representation and/or covenant
in this Agreement or any Original Loan Document (together with any indemnity applicable to
a breach of any such representation and/or covenant) with respect to the environmental
condition of the real property security is intended by Lender and Borrower to be an
“environmental provision” for purposes of California Code of Civil Procedure Section 736;
and (iii) each representation and/or covenant in this Agreement or any other Loan Document
(together with any indemnity applicable to a breach of any such representation and/or
covenant) with respect to the environmental condition of the real property security is
intended by Lender, Hotel Owner and Hotel Operator to be an “environmental provision” for
purposes of California Code of Civil Procedure Section 736.






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	 	8.	 	Multiple Parties. If more than one person or entity has signed this
Agreement as Hotel Owner, Hotel Operator or Borrower, then all references in this
Agreement to Hotel Owner, Hotel Operator or Borrower shall mean each and all of the
persons so signing, as applicable. The liability of all persons and entities signing
shall be joint and several with all others similarly liable.
	 
	 	9.	 	Confirmation of Security Interest. Nothing contained herein shall affect or
be construed to affect any lien, charge or encumbrance created by any Original Loan
Document or the priority of that lien, charge or encumbrance. All assignments and
transfers by Borrower to Hotel Owner and Hotel Operator are subject to any security
interests held by Lender.
	 
	 	10.	 	Release and Covenant Not to Sue. Borrower hereby releases and forever
discharges Lender, any trustee of the Loan, any servicer of the Loan, each of their
respective predecessors in interest and successors and assigns, together with the
officers, directors, partners, employees, investors, certificate holders and agents of
each of the foregoing (collectively the “Lender Parties”), from all debts, accountings,
bonds, warranties, representations, covenants, promises, contracts, controversies,
agreements, claims, damages, judgments, executions, actions, inactions, liabilities
demands or causes of action of any nature, at law or in equity, known or reasonably
ascertainable, which Borrower now has by reason of any cause, matter, or thing that
occurred or existed prior to the date of this Agreement to the extent arising out of or
relating to: (a) the Loan, including, without limitation, its funding, administration and
servicing; (b) the Original Loan Documents; (c) the Property; (d) any reserve funds held
by Lender or any servicers of the Loan; or (e) the sale, conveyance, assignment and
transfer of the Property. Borrower covenants and agrees never to institute or cause to be
instituted or continue prosecution of any suit or other form of action or proceeding of
any kind or nature whatsoever against any of the Lender Parties by reason of or in
connection with any of the foregoing matters, claims or causes of action.
	 
	 	11.	 	Integration; Interpretation. The Loan Documents, including this Agreement,
contain or expressly incorporate by reference the entire agreement of the parties with
respect to the matters contemplated herein and supersede all prior negotiations. The Loan
Documents shall not be modified except by written instrument executed by Lender, Hotel
Owner and Hotel Operator. Any reference in any of the Loan Documents to the Property or
the Collateral shall include all or any parts of the Property or the Collateral.
	 
	 	12.	 	Successors and Assigns. This Agreement is binding upon and shall inure to
the benefit of the heirs, successors and assigns of the parties but subject to all
prohibitions of transfers contained in any Loan Document.
	 
	 	13.	 	Attorneys’ Fees; Enforcement. If any attorney is engaged by Lender to
enforce, construe or defend any provision of this Agreement, or as a consequence of any
default under or breach of this Agreement, with or without the filing of any legal action
or proceeding, Hotel Owner and Hotel Operator shall be jointly and severally liable, and
shall pay to Lender, upon demand, the amount of all attorneys’ fees and costs reasonably
incurred by Lender in connection therewith, together with interest thereon from the date
of such demand at the rate of interest applicable to the principal balance of the Note as
specified therein.
	 
	 	14.	 	Right of Transfer of Property. The parties acknowledge that Section 5.2.10
of the Original Loan Agreement provides that Lender shall consent to the voluntary sale or
exchange of all of the Property, all subject, however, to the terms and conditions set
forth therein. The parties agree that this Agreement and the actions to be taken as
contemplated herein shall constitute such consent.
	 
	 	15.	 	Miscellaneous. This Agreement shall be governed and interpreted in
accordance with the laws of the jurisdictions specified in the Loan Documents as governing
the Loan Documents. In any action brought or arising out of this Agreement, Borrower,
Hotel Owner and Hotel Operator, and members of them, hereby consent to the jurisdiction of
any state or federal court having proper venue as specified in the Original Loan Documents
and the Loan Documents and also consent to the service of process by any means authorized
by the law of such jurisdictions. Except as expressly provided otherwise herein, all
terms used herein shall have the meaning given to them in the other Loan Documents. Time
is of the essence of each term of the Loan Documents, including this Agreement. If any
provision of this Agreement or any of the other Loan Documents shall be determined by a
court of competent jurisdiction to be invalid, illegal or




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	 	 	 	unenforceable, that portion shall be deemed severed therefrom and the remaining parts shall
remain in full force as though the invalid, illegal, or unenforceable portion had been a
part thereof.
	 
	 	16.	 	WAIVER OF RIGHT TO TRIAL BY JURY. BORROWER, HOTEL OWNER, HOTEL OPERATOR AND
LENDER HEREBY AGREE NOT TO ELECT A TRIAL BY JURY OF ANY ISSUE TRIABLE OF RIGHT BY JURY AND
WAIVE ANY RIGHT TO TRIAL BY JURY FULLY TO THE EXTENT THAT ANY SUCH RIGHT SHALL NOW OR
HEREAFTER EXIST WITH REGARD TO THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS, OR THE ORIGINAL
LOAN DOCUMENTS, OR ANY CLAIM, COUNTERCLAIM OR OTHER ACTION ARISING IN CONNECTION
THEREWITH. THIS WAIVER OF THE RIGHT TO TRIAL BY JURY IS GIVEN, KNOWINGLY AND VOLUNTARILY
BY BORROWER, HOTEL OWNER, HOTEL OPERATOR AND LENDER AND IS INTENDED TO ENCOMPASS
INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO WHICH THE RIGHT TO A TRIAL BY JURY WOULD
OTHERWISE ACCRUE. BORROWER, HOTEL OWNER, HOTEL OPERATOR AND LENDER ARE EACH HEREBY
AUTHORIZED TO FILE A COPY OF THIS SECTION IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS
WAIVER BY THE OTHER WAIVING PARTY.
	 
	 	17.	 	Counterparts. This Agreement may be executed in any number of counterparts,
each of which when executed and delivered will be deemed an original and all of which
taken together will be deemed to be one and the same instrument.
	 
	 	18.	 	Exculpation. Borrower’s limitation on liability as set forth in Section 9.4
of the Original Loan Agreement is hereby incorporated into this Agreement by reference as
though set forth herein. Hotel Owner’s and Hotel Operator’s limitation on liability as
set forth in Section 9.4 of the Loan Agreement is hereby incorporated into this Agreement
by reference as though set forth herein.




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IN WITNESS WHEREOF, Borrower, Hotel Owner, Hotel Operator and Lender have caused this Agreement to
be duly executed as of the date first above written.




“LENDER”




GREENWICH CAPITAL FINANCIAL PRODUCTS, INC.,

a Delaware corporation




	 	 	 	 	 	 	 
	By:

	 	/s/ John M. Burke 	 	 
	 	 	 	 	 
	Print Name:	 	John M. Burke 	 	 
	 

	 	 	 	 	 	 
	Title:

	 	 	 	Managing Director	 	 
	 	 	 	 	 





“HOTEL OWNER”




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

a Delaware limited liability company




	 	 	 	 	 
	By:

	 	/s/ Charles N. Nye	 	 
	 

	 	 	 	 
	Name:

	 	Charles N. Nye	 	 
	 

	 	 	 	 
	Title:

	 	Vice President	 	 
	 

	 	 

	 	 






“HOTEL OPERATOR”




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

a Delaware limited liability company




	 	 	 	 	 
	By:

	 	/s/ Charles N. Nye	 	 
	 

	 	 	 	 
	Name:

	 	Charles N. Nye	 	 
	 

	 	 	 	 
	Title:

	 	Vice President	 	 
	 

	 	 

	 	 






[Signatures continued on next page]




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“BORROWER”




WSRH INDIAN WELLS, L.L.C.,

a Delaware limited liability company




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	By:	 	WSRH Indian Wells Mezz, L.L.C.,
	 	 
	 	 	a Delaware limited liability company
	 	 
	 	 	Its Sole Member	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	By:	 	WSRH Holdings, LLC,
	 	 
	 	 	 	 	a Delaware limited liability company
	 	 
	 	 	 	 	Its Sole Member	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	By:	 	Walton Acquisition REOC Holdings IV, LLC,
	 	 
	 	 	 	 	 	 	a Delaware limited liability company
	 	 
	 	 	 	 	 	 	Member	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	By:	 	Walton Street Real Estate Fund IV, L.P.,
	 	 
	 	 	 	 	 	 	 	 	a Delaware limited partnership
	 	 
	 	 	 	 	 	 	 	 	Its Managing Member	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	By:	 	Walton Street Managers IV, L.P.,
	 	 
	 	 	 	 	 	 	 	 	 	 	a Delaware limited partnership
	 	 
	 	 	 	 	 	 	 	 	 	 	Its General Partner	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	By:	 	WSC Managers IV, Inc.,
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	a Delaware corporation
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	Its General Partner	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	 	 	By:
	 	/s/ Thomas Bennett	 	 
	 

	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	 	 	Name:
	 	Thomas Bennett	 	 
	 

	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	 	 	Title:
	 	Vice President
 

	 	 






10









 






Exhibit A




Recording Requested by

and when recorded return to:




Sidley Austin LLP

One South Dearborn Street

Chicago, Illinois 60603

Attention: Charles E. Schrank




MEMORANDUM OF ASSUMPTION AGREEMENT



FELCOR ESMERALDA (SPE), L.L.C., a Delaware limited liability company (“Hotel Owner”), with a
mailing address at c/o FelCor Lodging Trust Incorporated, 545 E. John Carpenter Freeway, Suite
1300, Irving, Texas 75062, FELCOR ESMERALDA LEASING (SPE), L.L.C., a Delaware limited liability
company (“Hotel Operator”), with a mailing address at c/o FelCor Lodging Trust Incorporated, 545 E.
John Carpenter Freeway, Suite 1300, Irving, Texas 75062, WSRH INDIAN WELLS, L.L.C., a Delaware
limited liability company (“Borrower”), with a mailing address at c/o Walton Street Capital,
L.L.C., 900 North Michigan, Suite 1900, Chicago, Illinois 60611, and GREENWICH CAPITAL FINANCIAL
PRODUCTS, INC., a Delaware corporation (together with its successors and assigns “Lender”), with a
mailing address at 600 Steamboat Road, Greenwich, Connecticut 06830, are parties to that certain
ASSUMPTION AGREEMENT dated of even date herewith (“Assumption Agreement”). The undersigned parties
agree that all obligations under that certain Loan Agreement (“Loan Agreement”) and Promissory Note
(“Note”) dated April 9, 2007, in the original principal amount of EIGHTY-SEVEN MILLION NINE HUNDRED
SEVENTY-FIVE THOUSAND AND NO/100THS DOLLARS ($87,975,000.00), secured by that certain Deed of Trust
and Security Agreement (“Security Instrument”) recorded on April 11, 2007, as Instrument No.
2007-0245109, in the Official Records of Riverside County, California, and all other Original Loan
Documents (as defined in the Assumption Agreement), have been assumed by Hotel Owner and Hotel
Operator upon the terms and conditions set forth in the Assumption Agreement. The Assumption
Agreement is by this reference incorporated herein and made a part hereof. This Memorandum of
Assumption Agreement may be executed in any number of counterparts, each of which when executed and
delivered will be deemed an original and all of which taken together will be deemed to be one and
the same instrument.




Dated: December                     , 2007





11









 








“LENDER”




GREENWICH CAPITAL FINANCIAL PRODUCTS, INC.,

a Delaware corporation




	 	 	 	 	 	 	 
	By:
	 	 	 	 	 	 
	 	 	 	 	 
	Print Name:	 	 	 	 
	 

	 	 	 	 	 	 
	Title:
	 	 	 	 	 	 
	 	 	 	 	 





ACKNOWLEDGMENTS




	 	 	 	 	 	 	 
	STATE OF

	 	 	)	 	 	 
	 

	 	 	)	 	 	s.s.:
	COUNTY OF

	 	 	)	 	 	 






     On December                     , 2007, before me,                                          , personally appeared
                                        , personally known to me (or proved to me on the basis of satisfactory
evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies),
and that by his/her/their signature(s) on the instrument the person(s), or the entity(ies) upon
behalf of which the person(s) acted, executed the instrument.



     Witness my hand and official seal.



                                        





12









 








“HOTEL OWNER”




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

a Delaware limited liability company




	 	 	 	 	 	 	 
	By:
	 	 	 	 	 	 
	 	 	 	 	 
	Print Name:	 	 	 	 
	 

	 	 	 	 	 	 
	Title:
	 	 	 	 	 	 
	 	 	 	 	 





ACKNOWLEDGMENTS




	 	 	 	 	 	 	 
	STATE OF

	 	 	)	 	 	 
	 

	 	 	)	 	 	s.s.:
	COUNTY OF

	 	 	)	 	 	 






     On December                     , 2007, before me,                                         , personally appeared
                                        , personally known to me (or proved to me on the basis of satisfactory
evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies),
and that by his/her/their signature(s) on the instrument the person(s), or the entity(ies) upon
behalf of which the person(s) acted, executed the instrument.



     Witness my hand and official seal.



                                        





13









 








“HOTEL OPERATOR”




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

a Delaware limited liability company




	 	 	 	 	 	 	 
	By:
	 	 	 	 	 	 
	 	 	 	 	 
	Print Name:	 	 	 	 
	 

	 	 	 	 	 	 
	Title:
	 	 	 	 	 	 
	 	 	 	 	 





ACKNOWLEDGMENTS




	 	 	 	 	 	 	 
	STATE OF

	 	 	)	 	 	 
	 

	 	 	)	 	 	s.s.:
	COUNTY OF

	 	 	)	 	 	 






     On December                     , 2007, before me,                                         , personally appeared
                                        , personally known to me (or proved to me on the basis of satisfactory
evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies),
and that by his/her/their signature(s) on the instrument the person(s), or the entity(ies) upon
behalf of which the person(s) acted, executed the instrument.



     Witness my hand and official seal.



                                        





14









 








“BORROWER”




WSRH INDIAN WELLS, L.L.C.,

a Delaware limited liability company




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	By:	 	WSRH Indian Wells Mezz, L.L.C.,
	 	 
	 	 	a Delaware limited liability company
	 	 
	 	 	Its Sole Member	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	By:	 	WSRH Holdings, LLC,
	 	 
	 	 	 	 	a Delaware limited liability company
	 	 
	 	 	 	 	Its Sole Member	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	By:	 	Walton Acquisition REOC Holdings IV, LLC,
	 	 
	 	 	 	 	 	 	a Delaware limited liability company
	 	 
	 	 	 	 	 	 	Member	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	By:	 	Walton Street Real Estate Fund IV, L.P.,
	 	 
	 	 	 	 	 	 	 	 	a Delaware limited partnership
	 	 
	 	 	 	 	 	 	 	 	Its Managing Member	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	By:	 	Walton Street Managers IV, L.P.,
	 	 
	 	 	 	 	 	 	 	 	 	 	a Delaware limited partnership
	 	 
	 	 	 	 	 	 	 	 	 	 	Its General Partner	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	By:	 	WSC Managers IV, Inc.,
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	a Delaware corporation
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	Its General Partner	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	 	 	By:	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	 	 	Name:	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	 	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	 	 	 	 	 

	 	 






ACKNOWLEDGMENTS




	 	 	 	 	 	 	 
	STATE OF

	 	 	)	 	 	 
	 

	 	 	)	 	 	s.s.:
	COUNTY OF

	 	 	)	 	 	 






     On December                     , 2007, before me,                                         , personally appeared
                                        , personally known to me (or proved to me on the basis of satisfactory
evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies),
and that by his/her/their signature(s) on the instrument the person(s), or the entity(ies) upon
behalf of which the person(s) acted, executed the instrument.



     Witness my hand and official seal.



___________________________





15