EXHIBIT 10.31.3
FIRST AMENDMENT TO NOTE, LOAN AGREEMENT, ENVIRONMENTAL
INDEMNITY AGREEMENT AND OTHER LOAN DOCUMENTS
FIRST AMENDMENT TO NOTE, LOAN AGREEMENT, ENVIRONMENTAL INDEMNITY
AGREEMENT AND OTHER LOAN DOCUMENTS (this "Amendment") made the 31st day of July,
2003, by each of the entities identified on Schedule I attached hereto, each
having its principal place of business at c/o FelCor Lodging Trust Incorporated,
545 East John Carpenter Freeway, Suite 1300, Irving, Texas 75062 (individually
and collectively, as the context may require, "Original Owner"), each of the
entities identified on Schedule II attached hereto, each having its principal
place of business at c/o FelCor Lodging Trust Incorporated, 545 East John
Carpenter Freeway, Suite 1300, Irving, Texas 75062 (individually and
collectively, as the context may require, "Original Operating Lessee") (Original
Owner and Original Operating Lessee, individually and collectively, as the
context may require, "Original Loan Party"), each of the entities identified on
Schedule III attached hereto, each having its principal place of business at c/o
FelCor Lodging Trust Incorporated, 545 East John Carpenter Freeway, Suite 1300,
Irving, Texas 75062 (individually and collectively, as the context may require,
"Additional Owner"), each of the entities identified on Schedule IV attached
hereto, each having its principal place of business at c/o FelCor Lodging Trust
Incorporated, 545 East John Carpenter Freeway, Suite 1300, Irving, Texas 75062
(individually and collectively, as the context may require, "Substitute
Operating Lessee") (Additional Owner and Substitute Operating Lessee,
individually and collectively, as the context may require, "Additional Loan
Party"), FELCOR LODGING LIMITED PARTNERSHIP, a Delaware limited partnership,
having its principal place of business at c/o FelCor Lodging Trust Incorporated,
545 East John Carpenter Freeway, Suite 1300, Irving, Texas 75062 ("FelCor
Lodging"; Original Loan Party, FelCor Lodging and Additional Loan Party
hereinafter referred to, individually and collectively, as the context may
require, as "Loan Party"), and JPMORGAN CHASE BANK, a New York banking
corporation, having its principal place of business at 270 Park Avenue, New
York, New York 10017 ("Lender").
RECITALS:
Lender has made a loan (the "Loan") to Original Owner and FELCOR/JPM
BWI HOTEL, L.L.C., a Delaware limited liability company ("FelCor BWI"; together
with Original Owner (other than FELCOR HOTEL ASSET COMPANY, L.L.C.),
individually and collectively, as the context may require, "Original Borrower")
in the principal amount of TWO HUNDRED MILLION AND 00/100 DOLLARS
($200,000,000.00), or so much thereof as may be advanced pursuant to a Loan
Facility Agreement, dated June 18, 2003, among Original Borrower, FCH/DT BWI
HOTEL, L.L.C., a Delaware limited liability company ("FCH BWI") and Lender (as
the same may be amended, restated, replaced, supplemented or otherwise modified
from time to time, the "Loan Agreement"), which Loan is evidenced by the Note
and secured by, among other things, the Security Instruments. The Loan is
further secured or evidenced by that certain (a) Environmental Indemnity
Agreement, dated June 18, 2003, given by Original Loan Party and FelCor Lodging
(individually and collectively, as the context may require, "Indemnitor") to
Lender (the "Environmental Indemnity") and (b) Environmental Indemnity Agreement
(Maryland), dated June 18, 2003, given by FCH/DT BWI Holdings, L.P., a Delaware
limited partnership, FCH BWI, FCH/DT Leasing, L.L.C., a Delaware limited
liability company and FelCor Lodging (individually and collectively, as the
context may require, "Maryland Indemnitor") to Lender (the "Maryland
Environmental Indemnity").
On the date hereof and pursuant to Section 2.9 of the Loan Agreement,
Additional Owner and Substitute Operating Lessee are being added as additional
Borrowers and substitute Operating Lessees, respectively, under the Loan
Agreement. Loan Party and Lender have agreed in the manner hereinafter set forth
to modify the terms and provisions of the Note, the Loan Agreement, the
Environmental Indemnity, the Maryland Environmental Indemnity and the other Loan
Documents to reflect the foregoing. All capitalized terms not otherwise defined
herein shall have the meaning ascribed to them in the Loan Agreement.
In consideration of the foregoing and other valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
consent and agree as follows:
1. Additional Owner does hereby, jointly and severally, assume
the Debt and all of the Obligations and agrees to pay the principal sum of the
Loan together with interest at the applicable interest rate in accordance with
the terms of the Loan Documents, as modified, and to observe, comply with and
perform all of the terms, covenants, conditions and indemnifications of the Loan
Documents on the part of Borrower to be performed arising from and after the
date hereof, as modified, with the same force and effect as if the Loan
Documents had originally been executed by Additional Owner. Additional Owner
hereby ratifies and confirms to Lender as of the date hereof that, except as
otherwise expressly and specifically modified by this Amendment, all of the
terms, representations, warranties, covenants, indemnifications and provisions
of the Loan Documents are and shall remain in full force and effect, and are
true and correct with respect to Additional Owner as Borrower and Indemnitor
thereunder, as of the date hereof.
2. Substitute Operating Lessee does hereby, jointly and
severally, agree to observe, comply with and perform all of the terms,
covenants, conditions and indemnifications of the Loan Documents on the part of
Operating Lessee to be performed arising from and after the date hereof, as
modified, with the same force and effect as if the Loan Documents had originally
been executed by Substitute Operating Lessee. Substitute Operating Lessee hereby
ratifies and confirms to Lender as of the date hereof that, except as otherwise
expressly and specifically modified by this Amendment, all of the terms,
representations, warranties, covenants, indemnifications and provisions of the
Loan Documents are and shall remain in full force and effect, and are true and
correct with respect to Substitute Operating Lessee as Operating Lessee and
Indemnitor thereunder, as of the date hereof.
3. Original Borrower and Additional Owner confirm that they are
jointly and severally liable for the payment in full of the Loan and all other
sums owing under any of the Loan Documents and the performance of all of the
Obligations. Notwithstanding anything to the contrary contained in this
Amendment, the liability of Original Borrower and Additional Owner, as Borrower
under the Loan Agreement, to pay the Debt and for the performance of the other
agreements, covenants and obligations contained herein and in the Note, the
Security Instruments, the Loan Agreement and the other Loan Documents shall be
limited as set forth in Section 9.4 of the Loan Agreement.
4. The Loan Documents are modified such that:
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(a) Wherever the term "Borrower" appears in the Loan
Documents, it shall be deemed to include Additional Owner; and
(b) Wherever the term "Operating Lessee" appears in the
Loan Documents, it shall be deemed to mean Substitute Operating Lessee.
5. The Environmental Indemnity is modified such that:
(a) Wherever the term "Indemnitor" appears in the
Environmental Indemnity, it shall be deemed to include Additional Loan Party;
(b) Wherever the term "Owner" appears in the
Environmental Indemnity, it shall be deemed to include Additional Owner; and
(c) Wherever the term "Operating Lessee" appears in the
Environmental Indemnity, it shall be deemed to mean Substitute Operating Lessee.
6. The Maryland Environmental Indemnity is modified such that:
(a) Wherever the term "Indemnitor" appears in the
Maryland Environmental Indemnity, it shall be deemed to include DJONT/JPM BWI
LEASING, L.L.C., a Delaware limited liability company; and
(b) Wherever the term "Operating Lessee" appears in the
Maryland Environmental Indemnity, it shall be deemed to mean DJONT/JPM BWI
LEASING, L.L.C., a Delaware limited liability company.
7. The text "two (2)" set forth in Section 2.7(a) of the Loan
Agreement entitled "INCREASING AVAILABLE FACILITY AMOUNT" is deleted in its
entirety and replaced with the text "four (4)".
8. Loan Party and Lender acknowledge and agree that in the event
that any of the Properties set forth on Schedule V attached hereto (the
"Proposed New Properties") are added as security for the Loan pursuant to the
terms and provisions of Section 2.7(a) of the Loan Agreement within forty-five
(45) days after the date hereof, such Proposed New Properties shall not count
towards the four (4) additional properties limitation set forth in Section
2.7(a) of the Loan Agreement. In the event that any of the Proposed New
Properties are added at any time following the aforesaid forty-five (45) day
period, such Proposed New Properties shall count towards the four (4) additional
properties limitation set forth in Section 2.7(a) of the Loan Agreement.
9. Except as provided in this Section 9, Lender does hereby
relieve and release FELCOR/JPM NASHVILLE HOTEL, L.L.C., a Delaware limited
liability company ("Nashville Borrower") from any and all liability or
obligation to make the payments of principal, interest or sums otherwise due
under the Loan Documents, including any accrued interest, and from any and all
liability or obligation to observe, comply with or perform any of the terms,
covenants or conditions of the Loan Documents. Notwithstanding the foregoing,
this Amendment shall not affect, impair or diminish the obligations of Nashville
Borrower to Lender under the terms of the
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Loan Documents that expressly survive any termination or release thereunder.
Lender shall promptly release any Lien of the Security Instruments and any
related UCC Financing Statements encumbering any of the Property of Nashville
Borrower or DJONT Operations, L.L.C., a Delaware limited liability company.
10. Lender does hereby relieve and release Original Operating
Lessee from any and all liability or obligation to observe, comply with or
perform any of the terms, covenants or conditions of the Loan Documents. Upon
written request, Lender shall promptly release any Lien of the Security
Instruments and any related UCC Financing Statements inadvertently encumbering
any of the property of Original Operating Lessee other than the Property.
11. Loan Party acknowledges and agrees that, with respect to any
Conversion pursuant to Section 9.1 of the Loan Agreement whereby the resulting
Fixed Rate CMBS Loan has an original principal balance equal to or greater than
$15,000,000.00, in addition to the requirements of such Section 9.1, Loan Party
shall cause Manager to amend the Assignment of Management Agreement delivered by
such Manager to require such Manager to (i) agree that Property Account Bank
shall transfer to the Manager Account, as directed by Manager, amounts necessary
to pay (A) the Monthly Operating Expense Amount for the then current calendar
month, which such amount shall not materially deviate from the corresponding
monthly amount for Operating Expenses (less Taxes and incentive management fees)
set forth in the applicable Approved Annual Budget (i.e., to the extent by more
than fifteen (15%) percent of the quarterly amount for Operating Expenses (less
Taxes and incentive management fees) set forth in the applicable Approved Annual
Budget for the calendar quarter in which such calendar month occurs), plus (B)
any unpaid Operating Expenses (less Taxes and incentive management fees)
attributable to the then prior calendar month, (ii) acknowledge that on the
Business Day prior to the last Business Day of the then current calendar month,
the Property Account Bank will transfer all remaining funds in the Property
Account to the Lockbox Account, (iii) acknowledge and agree that all incentive
management fees for such Manager shall be paid to Manager by Borrower after all
disbursements from the Lockbox Account have been made in accordance with Section
3.7(b)(i)-(vii) of the Loan Agreement, and (iv) acknowledge and agree that,
after the occurrence of (i) and (ii) above, the Property Account may not have
sufficient funds immediately available for the payment of Operating Expenses for
the upcoming calendar month until such time as Borrower, Manager or Operating
Lessee, as the case may be, deposits all Gross Income from Operations into the
Property Account for such upcoming calendar month.
12. Loan Party acknowledges that, except as expressly set forth
herein, nothing contained herein shall be construed to relieve Loan Party from
its respective obligations under the Note, the Loan Agreement, the Security
Instruments, the Environmental Indemnity, the Maryland Environmental Indemnity
and the other Loan Documents.
13. Loan Party ratifies and confirms to Lender as of the date
F hereof that, except as otherwise expressly and specifically modified by this
Amendment, all of the terms, covenants, indemnifications and provisions of the
Note, the Loan Agreement, the Security Instruments, the Environmental Indemnity,
the Maryland Environmental Indemnity and the other Loan Documents are and shall
remain in full force and effect without change except as otherwise expressly and
specifically modified by this Amendment.
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14. Loan Party represents, warrants and covenants that Loan Party
has full power, authority and legal right to execute this Amendment and to keep
and observe all of the terms of this Amendment on its part to be observed or
performed.
15. In the event of any conflict or ambiguity between the terms,
covenants and provisions of this Amendment and those of the Loan Agreement and
the other Loan Documents, the terms, covenants and provisions of this Amendment
shall control.
16. This Amendment may not be modified, amended, waived, changed
or terminated orally, but only by an agreement in writing signed by the party
against whom the enforcement of the modification, amendment, waiver, change or
termination is sought.
17. This Amendment shall be binding upon and inure to the benefit
of Loan Party, Lender and their respective successors and assigns.
18. This Amendment maybe executed in any number of duplicate
originals and each such duplicate original shall be deemed to constitute but one
and the same instrument.
19. If any term, covenant or condition of this Amendment shall be
held to be invalid, illegal or unenforceable in any respect, this Amendment
shall be construed without such provision.
20. This Amendment shall be governed by and construed in
accordance with the terms and provisions of Section 10.3 of the Loan Agreement.
[NO FURTHER TEXT ON THIS PAGE]
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IN WITNESS WHEREOF, Loan Party and Lender have executed this Amendment
the day and year first above written.
ORIGINAL OWNER:
FELCOR/JPM ATLANTA CP HOTEL, L.L.C., a
Delaware limited liability company
By: /s/ Joel M. Eastman
---------------------------------
Joel M. Eastman
Vice President
FELCOR/JPM ATLANTA ES HOTEL, L.L.C., a
Delaware limited liability company
By: /s/ Joel M. Eastman
----------------------------------
Joel M. Eastman
Vice President
FELCOR/JPM AUSTIN HOLDINGS, L.P., a
Delaware limited partnership
By: FELCOR/JPM AUSTIN HOTEL, L.L.C., a
Delaware limited liability company,
its general partner
By: /s/ Joel M. Eastman
------------------------------
Joel M. Eastman
Vice President
FELCOR/JPM MANDALAY HOTEL, L.L.C., a
Delaware limited liability company
By: /s/ Joel M. Eastman
----------------------------------
Joel M. Eastman
Vice President
FELCOR/JPM NASHVILLE HOTEL, L.L.C., a
Delaware limited liability company
By: /s/ Joel M. Eastman
----------------------------------
Joel M. Eastman
Vice President
FELCOR/JPM ORLANDO HOTEL, L.L.C., a
Delaware limited liability company
By: /s/ Joel M. Eastman
----------------------------------
Joel M. Eastman
Vice President
FELCOR/JPM PHOENIX HOTEL, L.L.C., a
Delaware limited liability company
By: /s/ Joel M. Eastman
----------------------------------
Joel M. Eastman
Vice President
FELCOR/JPM WILMINGTON HOTEL, L.L.C., a
Delaware limited liability company
By: /s/ Joel M. Eastman
----------------------------------
Joel M. Eastman
Vice President
ORIGINAL OPERATING LESSEE:
BHR OPERATIONS, L.L.C., a Delaware
limited liability company
By: /s/ Joel M. Eastman
----------------------------------
Joel M. Eastman
Vice President
DJONT LEASING, L.L.C., a Delaware
limited liability company
By: /s/ Joel M. Eastman
----------------------------------
Joel M. Eastman
Vice President
DJONT OPERATIONS, L.L.C., a Delaware
limited liability company
By: /s/ Joel M. Eastman
----------------------------------
Joel M. Eastman
Vice President
FCH/DT LEASING, L.L.C., a Delaware
limited liability company
By: /s/ Joel M. Eastman
----------------------------------
Joel M. Eastman
Vice President
FCH/DT LEASING II, L.L.C., a Delaware
limited liability company
By: /s/ Joel M. Eastman
----------------------------------
Joel M. Eastman
Vice President
FELCOR/TRS HOLDINGS, L.P., a Delaware
limited partnership
By: FelCor TRS I, L.L.C., a Delaware
limited liability company, its
general partner
By: /s/ Joel M. Eastman
-------------------------------
Joel M. Eastman
Vice President
FELCOR LODGING:
FELCOR LODGING LIMITED PARTNERSHIP, a
Delaware limited partnership
By: FELCOR LODGING TRUST INCORPORATED,
a Maryland corporation, its general
partner
By: /s/ Joel M. Eastman
-----------------------------
Joel M. Eastman
Vice President
FELCOR BWI:
FELCOR/JPM BWI HOTEL, L.L.C., a Delaware
limited liability company
By: /s/ Joel M. Eastman
----------------------------------
Joel M. Eastman
Vice President
SUBSTITUTE OPERATING LESSEE:
DJONT/JPM ATLANTA CP LEASING, L.L.C., a
Delaware limited liability company
By: /s/ Joel M. Eastman
----------------------------------
Joel M. Eastman
Vice President
DJONT/JPM AUSTIN LEASING, L.P., a
Delaware limited partnership
By: DJONT/JPM AUSTIN TENANT CO.,
L.L.C., a Delaware limited
liability company, its general
partner
By: /s/ Joel M. Eastman
------------------------------
Joel M. Eastman
Vice President
DJONT/JPM MANDALAY LEASING, L.L.C., a
Delaware limited liability company
By: /s/ Joel M. Eastman
----------------------------------
Joel M. Eastman
Vice President
DJONT/JPM PHOENIX LEASING, L.L.C., a
Delaware limited liability company
By: /s/ Joel M. Eastman
-----------------------------------
Joel M. Eastman
Vice President
DJONT/JPM BWI LEASING, L.L.C., a
Delaware limited liability company
By: /s/ Joel M. Eastman
----------------------------------
Joel M. Eastman
Vice President
DJONT/JPM ORLANDO LEASING, L.L.C., a
Delaware limited liability company
By: /s/ Joel M. Eastman
----------------------------------
Joel M. Eastman
Vice President
DJONT/JPM WILMINGTON LEASING, L.L.C., a
Delaware limited liability company
By: /s/ Joel M. Eastman
----------------------------------
Joel M. Eastman
Vice President
DJONT/JPM ATLANTA ES LEASING, L.L.C., a
Delaware limited liability company
By: /s/ Joel M. Eastman
----------------------------------
Joel M. Eastman
Vice President
FCH/DT BWI HOTEL, L.L.C., a Delaware
limited liability company
By: /s/ Joel M. Eastman
----------------------------------
Joel M. Eastman
Vice President
FCH/DT BWI HOLDINGS, L.P., a Delaware
limited partnership
By: FCH/DT HOTELS, L.L.C., a Delaware
limited liability company, its
general partner
By: /s/ Joel M. Eastman
------------------------------
Joel M. Eastman
Vice President
ACKNOWLEDGED AND AGREED:
FELCOR HOTEL ASSET COMPANY, L.L.C., a
Delaware limited liability company
By: /s/ Joel M. Eastman
----------------------------------
Joel M. Eastman
Vice President
LENDER:
JPMORGAN CHASE BANK, a New York banking
corporation
By: /s/ Michael Mesard
-----------------------------------
Name: Michael Mesard
Title: Vice President
SCHEDULE I
ORIGINAL OWNER
1. FelCor/JPM Atlanta CP Hotel, L.L.C., a Delaware limited liability company
2. FelCor/JPM Atlanta ES Hotel, L.L.C., a Delaware limited liability company
3. FelCor/JPM Austin Holdings, L.P., a Delaware limited partnership
4. FelCor/JPM Mandalay Hotel, L.L.C., a Delaware limited liability company
5. FelCor/JPM Nashville Hotel, L.L.C., a Delaware limited liability company
6. FelCor/JPM Orlando Hotel, L.L.C., a Delaware limited liability company
7. FelCor/JPM Phoenix Hotel, L.L.C., a Delaware limited liability company
8. FelCor/JPM Wilmington Hotel, L.L.C., a Delaware limited liability company
9. FelCor Hotel Asset Company, L.L.C., a Delaware limited liability company(1)
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(1) Fee owner of the Holiday Inn Select - Orlando Airport Property. Not a
borrower under the Note but an Indemnitor under the Environmental Indemnity.
SCHEDULE II
ORIGINAL OPERATING LESSEE
1. BHR Operations, L.L.C., a Delaware limited liability company
2. DJONT Leasing, L.L.C., a Delaware limited liability company
3. DJONT Operations, L.L.C., a Delaware limited liability company
4. FCH/DT Leasing, L.L.C., a Delaware limited liability company
5. FCH/DT Leasing II, L.L.C., a Delaware limited liability company
6. FelCor/TRS Holdings, L.P., a Delaware limited partnership
SCHEDULE III
ADDITIONAL OWNER
1. None.
SCHEDULE IV
SUBSTITUTE OPERATING LESSEE
1. DJONT/JPM Atlanta CP Leasing, L.L.C., a Delaware limited liability company
2. DJONT/JPM Austin Leasing, L.P., a Delaware limited partnership
3. DJONT/JPM Mandalay Leasing, L.L.C., a Delaware limited liability company
4. DJONT/JPM Phoenix Leasing, L.L.C., a Delaware limited liability company
5. DJONT/JPM BWI Leasing, L.L.C., a Delaware limited liability company
6. DJONT/JPM Orlando Leasing, L.L.C., a Delaware limited liability company
7. DJONT/JPM Wilmington Leasing, L.L.C., a Delaware limited liability company
8. DJONT/JPM Atlanta ES Leasing, L.L.C., a Delaware limited liability company
SCHEDULE V
PROPOSED NEW PROPERTIES
==================================================================================================================
Property Name Property Address County City State
==================================================================================================================
1 DoubleTree Guest Suites - Walt Disney 2305 Hotel Plaza Boulevard Orange Lake Buena FL
World Resort Vista
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2 Holiday Inn Orlando International 6515 International Drive Orange Orlando FL
Drive Resort
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3 Embassy Suites Hotel - Boca Raton 661 N.W. 53rd Street Palm Beach Boca Raton FL
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4 Atlanta Airport- Crowne 1325 Virginia Avenue 14th District- Atlanta GA
Plaza Fulton
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5 Holiday Inn San Antonio - Downtown 318 West Durango Bexar San Antonio TX
(Market Square)
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6 Austin Town Lake - Holiday Inn 20 North Interregional Highway (I35) Travis Austin TX
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