What is amended by the eforea Spa Amendment for an Embassy Suites By Hilton franchise?

orser, guarantor or accommodation party liable for this Note waives presentment, demand, notice of demand, protest, notice of non-payment, notice of protest, notice of dishonor and diligence in collection. Holder reserves the right to modify the terms of this Note, grant extensions, renewals, releases, discharges, compositions and compromises with any party liable on this Note, with or without notice to or the consent of, and without discharging or affecting the obligations of any other party liable under this Note.

The terms "Holder" and "Maker" shall be deemed to include their respective heirs, successors, legal representatives and assigns, whether by voluntary action of the parties or by operation of law; provided that, Maker shall not assign or delegate any of its obligations or agreements hereunder without the Holder's prior written consent and any assignment or delegation without such prior written consent shall be null and void. All references to "Maker" shall mean and include the named Maker and all co-makers, guarantors, sureties and accommodation parties signing or endorsing this Note, and all such parties signing or endorsing this Note shall be jointly and severally liable with the named Maker for all of Maker's obligations and liabilities under this Note.

IN WITNESS WHEREOF, the undersigned have executed this Note effective on the date indicated above.

[INSERT FRANCHISEE ENTITY], a [INSERT TYPE OF ENTITY] Executed on: Co-Maker [REQUIRED IF PRINCIPAL OF NOTE IS $1,000,000 OR MORE: [INSERT ENTITY], a [INSERT TYPE OF ENTITY]# EXHIBIT D-3

EFOREA SPA AMENDMENT TO FRANCHISE AGREEMENT

THIS EFOREA SPA AMENDMENT TO FRANCHISE AGREEMENT ("Amendment") is made and entered into by and between HILTON FRANCHISE HOLDING LLC, a Delaware limited liability company ("we," "us," or "our") and the franchisee entity ("you," or "your") set forth in the Addendum attached to the franchise agreement dated [INSERT DATE] ("Franchise Agreement") as of [INSERT DATE] ("Effective Date").

WHEREAS, the Franchise Agreement permits you to operate the Hotel as a [INSERT] Brand hotel ("Hotel"); you have applied to operate an eforea spa ("eforea spa") in connection with the operation of the Hotel; we are willing to accept such application and grant a license to you to use the Brand in the operation of an eforea spa at the Hotel Site pursuant to the Franchise Agreement as amended by this Amendment.

NOW, THEREFORE, for good and valuable consideration, the receipt and adequacy of which are acknowledged, we and you agree as follows:

• 1. Terms. Capitalized terms in this Amendment have the meaning set forth in the Franchise Agreement, unless amended pursuant to Section 2 below.
• 1. Changes to Certain Defined Terms. Section 1 of the Franchise Agreement is amended as follows:
• (a) The following defined terms in Section 1 of the Franchise Agreement are deleted and replaced with the following:

"Hotel" means the property you will operate under this Agreement and includes all structures, facilities, appurtenances, furniture, fixtures, equipment, and entry, exit, parking and other areas located on the Hotel Site we have approved for your business, including an eforea spa, located on any land we approve in the future for additions, signs, parking or other facilities.

"Brand" means with respect to the Hotel, the brand name set forth in the Addendum, and the brand name "eforea" with respect to the spa to be operated hereunder.

"Term" means the period from the Effective Date through the expiration of this Agreement on the date set forth in the Addendum, unless terminated earlier under the terms of this Agreement. The Term for the operation of your eforea spa shall expire on the earlier of: (i) the termination of the eforea spa Amendment to this Agreement or (ii) the expiration or termination of this Agreement.

"Opening Date" means the day on which we authorize you to make available the facilities, guestrooms or services of the Hotel to the general public under the Brand. However, the "Opening Date" as it relates to the eforea spa, shall mean the day on which we authorize you to make available the spa's services to the general public.

"Trade Name" means the name of the Hotel set forth in the Addendum, and with respect to the operation of the spa in connection with the Hotel, the name "eforea."

• (b) The definition of "Manual" is amended to include the eforea Spa Operating Standards Manual.
• (c) The definition of "Standards" is amended to include application to eforea spas licensed by us.
• (d) The definition of "System" is amended to include the elements that we designate to distinguish spas operating under the "eforea" name, including know-how.
• (e) The following term is added to the defined terms in Section 1:
• "Gross Spa Revenue" means all revenue from services and retail sales of products from the eforea spa, less amounts for spa rebates and overcharges, but does not include any sales or other taxes collected directly from spa customers or any revenue derived from food and beverage sales from the eforea spa.
• 1. Grant of Non-Exclusive License. We and you acknowledge that in executing this Amendment, and modifying certain of the defined terms in the Franchise Agreement during the term of this Amendment, we are granting to you and you are accepting a limited, non-exclusive license to operate a spa on the Hotel Site using the eforea name and other indicia of an eforea spa during the Term applicable to the eforea spa, and you are agreeing to comply with all Standards that have been and are in the future developed by us for use in connection with the design, construction, renovation, refurbishment, appearance, equipment, furnishing, supplying, opening, operating, maintaining, marketing, services, service levels, quality, and quality assurance of eforea spas.
• 1. Our Responsibilities. Subsection 4.4 of the Franchise Agreement is amended by the addition of the following new Subsection:
  • 4.4.8 Spa. We will provide you with (i) a sample layout for the interior of a typical eforea spa, and specifications we have approved related to the design and construction of the spa, (ii) a collateral suite to support the operation of your Spa, and (iii) a periodic list of ay approved suppliers and specifications for any required operating equipment, products, supplies and furnishings in the spa. As and when we determine, we may provide the services of a Spa Performance Director to periodically provide you with suggestions for the improvement of your spa's operations.
• 1. Trade Name, Use of the Marks. Subsection 9.2.1 of the Franchise Agreement is amended by the addition of the following sentence after the first sentence:

The spa operated at the Hotel Site as a part of the Hotel will be known by the Trade Name "eforea," unless otherwise approved, or changed by us.

• 1. Additional Operational and Other Requirements.

• (a) Subsection 5.1.1 of the Franchise Agreement is deleted and replaced with the following:

  • 5.1.1 after the Opening Date, operate the Hotel twenty-four (24) hours a day; provided, however, you will operate the eforea spa for those days of the week and hours of the day that we may periodically establish;

• (b) Subsection 5.1.27 of the Franchise Agreement is amended by deleting the word "and" after the semicolon,

• (c) Subsection 5.1.28 of the Franchise Agreement is amended by changing the period to a semicolon and adding the following subparagraphs:

  • 5.1.29 the Opening Date for the eforea spa must be within twelve (12) months of the Effective Date of the eforea Amendment;
  • 5.1.30 after the Opening Date, operate the eforea spa for those days of the week and hours of the day as we may establish;
  • 5.1.31 you must display all material, including brochures and promotional materials we provide for eforea spas, and allow advertising and promotion of eforea spas on your spa's premises, unless we specifically direct you to include advertising or promotion of Other Hotels or other non-eforea spas; and

• 5.1.32 comply with System Standards for the training of persons involved in the operation of the eforea spa, including completion by each member of the spa's staff of the training program for operation of the spa under the System, at a site we designate. You will pay us all fees and charges, if any, we require for your personnel to attend these training programs. You will also be responsible for the wages, room, board and travel expenses of your personnel.

• 1. Fees. In addition to the fees set forth in the Franchise Agreement, you will pay us the following additional fees in connection with your eforea spa:

• (a) Initial Fee. An initial fee of Twenty Five Thousand Dollars ($25,000), due and payable on execution of this Amendment ("Initial Fee") as consideration for our grant to you of the right to operate an eforea spa as specified by this Amendment. The Initial Fee shall be deemed to have been earned by us at the time of execution of this Amendment by you, and shall not be refundable.

• (b) Spa Royalty. An amount equal to two percent (2%) of your Gross Spa Revenue. This fee shall be added to your Monthly Royalty Fee but shall only be payable on Gross Spa Revenue. For the avoidance of any doubt, this fee (i) will be due and we will have all rights related to this fee as set forth in the Franchise Agreement related to the Monthly Royalty Fee, and (ii) is paid in addition to any other fees set forth in the Franchise Agreement.

• 1. Lease; Competition; Transfer. Notwithstanding anything set forth in the Franchise Agreement to the contrary, you understand and acknowledge that: (i) you may not lease or sublease commercial space in your eforea spa, or enter into concession arrangements for operations in connection with your eforea spa; (ii) neither you nor any affiliate may operate, have operated on your behalf or on behalf of an affiliate, or allow the operation of, another spa in, adjacent to or that is associated in any way with, the Hotel; (iii) you may not enter into a Change of Ownership Transfer for your Hotel unless you are also transferring your eforea spa in the same transaction and you may not enter into a Change of Ownership Transfer for your eforea spa unless you are also transferring your Hotel in the same transaction; and (iv) any Restricted Area granted by Franchisor shall not apply to Franchisee with respect to its eforea spa. Further, in any transaction referred to in clause (ii) above, the Transferee for your Hotel and the spa operated as part of your Hotel must be the same entity.
• 1. Termination. You acknowledge and agree: (i) the expiration or termination of the Franchise Agreement will terminate all of your rights to operate an eforea spa;

Source: Item 22 — CONTRACTS (FDD page 97)