THIS NOTE HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933. THIS NOTE IS SUBJECT
TO CERTAIN SUBORDINATION PROVISIONS SET FORTH
HEREIN, AND THE HOLDER OF THIS NOTE SHALL
BE SUBJECT TO ALL OF SUCH PROVISIONS
AIRCOA HOTEL PARTNERS, L.P.
AMENDED AND RESTATED
PROMISSORY NOTE
As of June 8, 1995
Denver, Colorado
FOR VALUE RECEIVED, AIRCOA HOTEL PARTNERS, L.P., a Delaware limited
partnership, ("Maker" or the "Partnership") hereby promises to pay to AIRCOA
HOSPITALITY SERVICES, INC., a Delaware corporation, or its assigns (the "Holder"
or "Payee"), the principal sum of Six Million Dollars ($6,000,000.00), on June
8, 2000 (the "Maturity Date"), with interest (computed on the basis of a 360-day
year of twelve 30-day months) on the unpaid balance of such principal sum from
June 8, 1995 until June 8, 2000, at the interest rate of 12% per annum from June
8, 1995, until the principal balance is paid in full. Interest only shall be
payable monthly on or before the first day of each month beginning on July 1,
1995; subject, however, to the additional payment of Annual Excess Cash Flow as
may be required under paragraph 3 below. Unless the Maturity Date is extended
by Holder in its sole discretion, the entire unpaid principal balance, all
unpaid accrued interest thereon, and any other amounts due to Holder under the
terms of this Promissory Note (referred to as the "Note" herein) shall be due
and payable in full on or before the Maturity Date.
1. This Note, together with that certain Promissory Note even date
herewith in the principal amount of $2,100,000.00, made by the Partnership
payable to Payee (the "$2.1MM Note") are being issued in replacement of the
following three Promissory Notes: (a) Promissory Note dated as of March 29,
1988, made by the Partnership payable to Regal-Aircoa Companies, Inc., in the
original principal amount of $1,500,000.00 (the "$1.5MM Note"); (b) Promissory
Note dated as of March 29, 1988, made by the Partnership payable to Aircoa
Credit Company in the original principal amount of $4,000,000.00 (the "$4MM
Note); and (c) Promissory Note dated as of March 29, 1988, made by the
Partnership payable to Aircoa Credit Company in the original principal amount of
$500,000.00 (the "$500K Note"). The $1.5MM Note has been assigned by Regal-
Aircoa Companies, Inc. to Payee and the $4MM Note and the $500K Note have been
assigned by Aircoa Credit Company to Payee. Upon execution of this Note and the
$2.1MM Note by the Partnership, the $1.5MM Note, the $4MM Note, and the $500K
Note will be marked canceled by Payee and returned to the Partnership.
2. Payments of principal and interest shall be made in lawful money of
the United States of America at the principal office of the Holder in Denver,
Colorado, or at such other place as the Holder designates for such purpose to
the Partnership in writing and may be paid by check or wire transfer.
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3. This Note is subordinate and subject to obligations under that certain
Credit Agreement dated as of June 8, 1995 (the "Credit Agreement"), among the
Partnership and certain related entities and The Hongkong and Shanghai Banking
Corporation Limited (the "Bank"), including without limitation payments due
under the Notes, as such term is defined in the Credit Agreement. Specifically,
the Holder acknowledges and consents to the Partnership's obligations under
Section 8.08 of the Credit Agreement, the terms of which are incorporated herein
by this reference. The Partnership hereby agrees to pay to Holder on an annual
basis, subject to Section 8.08 of the Credit Agreement, an amount equal to 25%
of Annual Excess Cash Flow, as defined in the Credit Agreement, which amount
shall be applied pari passu to pay this Note and the $2.1MM Note, subject to the
respective provisions therein for the application of payments received by
Holder.
4. This Note shall not be prepayable in whole or in part at any time
prior to June 8, 2000, without the consent of the Holder. Thereafter, it shall
be prepayable upon such terms and upon payment of such premiums as may be
determined in accordance with paragraph 7.
5. Upon any payment or distribution of assets of or in respect of the
Partnership of any kind or character, whether in cash, property or securities,
to creditors upon any dissolution or winding up or total or partial liquidation
or reorganization of the Partnership, either voluntary or involuntary or in
bankruptcy, insolvency, receivership or other proceedings, all amounts due or to
become due under the Notes (as defined in the Credit Agreement as provided
therein) shall first be paid in full, or payment thereof fully provided for,
before the Holder shall be entitled to receive or retain any assets so paid or
distributed in respect hereof and/or thereof; and upon any such dissolution or
winding up or liquidation or reorganization, any payment or distribution of
assets of or in respect of the Partnership or any kind or character, whether in
cash, property or securities, to which the Holder would been entitled, except
for these provisions, shall be paid by the Partnership or by any receiver,
trustee in bankruptcy, liquidating trustee, agent or other person making such
payment or distribution, or by the Holder if received by it, directly to the
holder(s) of the Notes (pro rata to each such holder on the basis of the
respective amounts of the Notes held by such holder(s)), to the extent necessary
to pay the Notes in full, in money or money's worth, after giving effect to any
concurrent payment or distribution to or for the holder(s) of the Notes, before
any payment or distribution is made to the Holder. Any such payment or
distribution to which Holder is entitled shall be made pari passu with the
payment or distribution to the holder of the $2.1MM Note.
6. Holder, in accepting this Note, shall be deemed to acknowledge and
agree that the foregoing subordination provisions are, and are intended to be,
an inducement and a consideration of the Bank, and the Bank shall be deemed
conclusively to have relied on such subordination provisions.
7. Notwithstanding anything herein to the contrary, this Note may not be
amended (or any provision hereof waived) without the prior written consent of
the Bank. Subject to the foregoing, this Note may be amended by the Partnership
to provide for prepayment of this Note on or after June 8, 2000, at the option
of the Partnership on such terms (including, without limitation, the amount of
prepayment premiums, if any, conditions to prepayment and whether this Note may
be prepaid in whole or in part) as the Partnership may reasonably require;
provided that the terms of such prepayment shall be comparable to prepayment
terms of similar notes at the time this Note is amended and shall be amended
only with the approval of the Holder. This Note also may be amended from time
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to time at the option of the Holder to provide for other terms that reasonably
may be required by the Holder in connection with any proposed sale or other
transfer of this Note by the Holder; provided, that the terms of this Note as
proposed to be amended (i) are approved by the Advisory Committee (as defined in
the Agreement of Limited Partnership dated of even date herewith of the
Partnership, as it may be amended (the "Partnership Agreement")) of the
Partnership and (ii) are comparable to terms of similar notes at the time this
Note is amended, the Holder so certifies to the Partnership and provides the
Partnership with such evidence regarding the comparability of the terms as the
Advisory Committee of the Partnership may reasonably request and provided
further that no amendment provided for in this paragraph shall (i) increase the
rate at which interest accrues or is payable hereunder or (ii) alter the
provisions of paragraphs 3 or 5 hereof without the consent of the Bank.
8. No provisions hereof shall alter or impair the obligation of the
Partnership, which is absolute and unconditional, to pay the principal hereof
and interest hereon at the respective times and places herein described. The
Partnership and endorsers herein waive demand, protest and notice of dishonor
and all defenses on grounds of any extension of the time of payment of this Note
that may be given by the holder hereof.
9. This Note may be assigned or otherwise transferred as provided in this
Note; provided that (i) the assignment or transfer is made in compliance with
applicable laws and (ii) the assignee or transferee acknowledges in writing to
the Holder that it takes this Note subject to all of the provisions hereof,
including without limitation the subordination provisions.
10. At any time and from time to time, this Note may be assigned or
transferred to one or more persons, in whole or in part, in integral multiples
of $1,000. Upon surrender of this Note to the Partnership for transfer pursuant
to this paragraph, duly endorsed or accompanied by written instruments of
transfer satisfactory to the Partnership, the Partnership, at the Holder's
expense, shall execute and deliver to the designated transferee(s), in the name
of the designated transferee(s), a new note or notes in an authorized designated
principal amount, which new note or notes when so issued shall be the valid
obligation of the Partnership, evidencing the same debt, and entitled to the
same benefits as this Note (or portion thereof) surrendered upon such transfer;
and the Partnership, at the Holder's expense, shall execute and deliver to the
Holder, in the name of the Holder at the Holder's address, a new note in the
aggregate principal amount equal to and in exchange for the untransferred
portion of the principal of this Note so surrendered, which new note when so
issued shall be the valid obligations of the Partnership, evidencing the same
debt, and entitled to the same benefits as this Note (or portion thereof)
surrendered upon such exchange. The Partnership shall establish a register for
the purpose of registering, and registering the transfer of, this Note and any
new notes as permitted hereunder and shall adopt such other reasonable
procedures as it may deem necessary or appropriate to effect the registration
and transfer of this Note and any new notes, as applicable. Accrued interest on
this Note (or portion thereof) at the time of transfer shall be apportioned
between the transferor and the transferee.
11. (a) Subject to and upon compliance with the provisions of this
paragraph 11, the Holder may convert this Note, or any portion of the principal
amount thereof which is at least $1,000 and any larger integral multiple of
$1,000, at any time after 120 days from the effective date hereof and before
payment or satisfaction of this Note, into Class A Units of limited partner
interests in the
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Partnership ("Class A Units") issued pursuant to Section 4.6 of the Partnership
Agreement, as hereinafter provided.
(b) Upon surrender of this Note or authorized portion of the principal
amount thereof to the Partnership at its principal office, accompanied by
appropriate endorsements and transfer documents satisfactory to the Partnership,
the Partnership at the Holder's expense shall issue and deliver to such Holder
in the name of the Holder at the Holder's address (or such other name and
address as the Holder specifies), a certificate or certificates evidencing the
whole number of Class A Units obtained by dividing the aggregate principal
amount of this Note so surrendered by $18.50 (the "Conversion Price"), subject
to adjustment as hereinafter provided. No payment or adjustment shall be made
upon any conversion on account of any interest accrued on this Note surrendered
for conversion or on account of any dividends on the Class A Units issued upon
such conversion.
(c) If this Note is converted in part only, upon such conversion the
Partnership at the Holder's expense shall issue and deliver to or on the order
of the Holder thereof, a new note in principal amount equal to the unconverted
portion of this Note.
(d) Such conversion shall be deemed to have been effected immediately
prior to the close of business on the date on which this Note and other
documents have been surrendered to and received in proper order for conversion
by the Partnership as aforesaid unless such Holder shall have so surrendered
such Note and shall have instructed the Partnership to effect the conversion on
a particular date following such surrender and such Holder shall be entitled to
convert such Note on such date, in which case such conversion shall be deemed to
be effected immediately prior to the close of business on such date. At such
time the rights of the Holder of such Note as the Holder shall cease and the
person or persons in whose name or names any certificate or certificates for
Class A Units shall be issuable upon such conversion shall be deemed to have
become the holder or holders of record of the Class A Units represented thereby.
(e) The number of Class A Units issuable upon exercise of the
conversion right provided herein shall be adjusted from time to time as follows:
(i) In case the Partnership shall hereafter (A) pay a dividend or make a
distribution on Class A Units or other of its securities, (B) subdivide or
reclassify its outstanding Class A Units into a greater number of Class A Units,
or (C) combine or reclassify its outstanding Class A Units into a smaller number
of Class A Units, the Conversion Price and the number of Class A Units that the
Holder shall be entitled to receive upon conversion in effect at the time of the
record date for such dividend or distribution or the effective date of such
subdivision, combination or reclassification shall be adjusted so that the
Holder of this Note surrendered for conversion after such date shall be entitled
to receive, upon payment by surrender of the principal amount or authorized
portion thereof of this Note as would have been payable before such date, the
number and kind of Class A Units or other securities which, if this Note had
been converted immediately prior to such date such Holder would have owned upon
such conversion and been entitled to receive by virtue of such dividend,
distribution, subdivision, combination or reclassification. Such adjustment
shall be made successively whenever any event listed above shall occur.
(f) In case the Partnership shall issue rights or warrants to all
holders of Class A Units entitling them (for a period expiring within 45 days
after the record date for the determination of
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holders of Class A Units entitled to receive such rights or warrants) to
subscribe for or purchase Class A Units (or securities convertible into Class A
Units) at a price per Class A Unit (or having a conversion price per Class A
Unit, if a security convertible into Class A Units) less than the current market
price per Class A Unit (as defined in subsection (i) of this paragraph 11) on
such record date, the Conversion Price shall be adjusted by multiplying the
Conversion Price in effect immediately prior to such record date by a fraction,
of which the numerator shall be the number of Class A Units outstanding on such
record date plus the number of Class A Units which the aggregate offering price
of the total number of Class A Units so to be offered (or the aggregate initial
Conversion Price of the convertible securities so to be offered) would purchase
at such current market price and of which the denominator shall be the number of
Class A units outstanding on such record date plus the number of additional
Class A units to be offered for subscription or purchase (or into which the
convertible securities so to be offered are initially convertible). Such
adjustment shall become effective at the close of business on such record date;
however, to the extent that Class A Units (or securities convertible into Class
A Units) are not delivered after the expiration of such rights or warrants, the
Conversion Price shall be readjusted (but only with respect to notes exercised
after such expiration) to the Conversion Price which would then be in effect had
the adjustments made upon the issuance of such rights or warrants been made upon
the basis of delivery of only the number of Class A Units (or securities
convertible into Class A Units) actually issued. In case any subscription price
may be paid in a consideration part or all of which shall be in a form other
than cash, the value of such consideration shall be as determined by the
Advisory Committee of the Partnership. Class A Units owned by or held for the
account of the Partnership or any Operating Partnership (as defined in the
Partnership Agreement) shall not be deemed outstanding for the purpose of any
such computation.
(g) In case of any reclassification of or change to the outstanding
Class A Units issuable upon conversion (other than a change as a result of a
subdivision or combination), or in case of any consolidation of the Partnership
with or the merger of the Partnership into any other business organization
(other than a consolidation or merger in which the Partnership continues and
which does not result in any reclassification of or change to the outstanding
Class A Units), or in case of any sale or transfer of all or substantially all
of the assets of the Partnership, the Holder shall thereafter (in each case
prior to the expiration of the conversion right) receive, upon conversion of
this Note in the manner herein provided, the kind and amount of cash, securities
or other property properly receivable upon such reclassification, change,
consolidation, merger, sale or transfer by a holder of the number of Class A
Units then deliverable upon conversion, and the Partnership shall take such
steps in connection with such reclassification, change, consolidation, merger,
sale or transfer as may be necessary to assure that the provisions hereof shall
thereafter be applicable as nearly as reasonably may be, in relation to any cash
securities or other property thereafter deliverable upon conversion of this
Note. The above provisions of this paragraph shall apply to successive
reclassifications, changes, consolidations, mergers, sales or transfers.
(h) In case the Partnership shall distribute to all holders of Class A
Units (including any such distribution made in connection with a consolidation
in which the Partnership is the continuing entity) evidences of its indebtedness
or assets (including distributions of Capital Transaction Proceeds (as defined
in the Partnership Agreement) but excluding other cash dividends or
distributions and dividends payable in Class A Units) or subscription right or
warrants (excluding those referred to in subsection (f) of this paragraph 11),
the Conversion Price shall be adjusted by multiplying the
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Conversion Price in effect immediately prior to the record date for the
determination of Class A Unitholders entitled to receive such distribution by a
fraction, of which the numerator shall be the current market price per Class A
Unit (as defined in subsection (i) of this paragraph 11) on such record date,
less the fair market value (as determined by the Advisory Committee of the
Partnership, whose determination shall be conclusive) of the portion of the
evidences of indebtedness or assets so to be distributed or of such subscription
rights or warrants applicable to one Class A Unit and of which the denominator
shall be such current market price per Class A Unit.
(i) For the purpose of any computation under subsection (f) or (h) of
this paragraph 11, the current market price per Class A Unit on any record date
shall be deemed to be the average of the daily representative closing prices for
the 30 consecutive trading days commencing 45 trading days before such date.
The closing price for each day shall be the last sale price regular way or, in
case no such sale takes place on such day, the average of the closing bid and
asked prices regular way, in either case on the principal national securities
exchange on which the Class A Units are listed or admitted to trading, or if the
Class A Units are not listed or admitted to trading on any national securities
exchange the average of the highest reported bid and lowest reported asked
prices as furnished by the National Association of Securities Dealers, Inc.
through NASDAQ or a similar organization if NASDAQ is no longer reporting such
information. If on any such date the Class A Units are not quoted by any such
organization, the fair value of Class A Units on such date, as determined by the
Advisory Committee of the Partnership, shall be used.
(j) No fractional Class A Units shall be issued upon conversion of
this Note. Instead, the Partnership will deliver a number of Class A Units that
reflects a rounding to the nearest whole number (with .5 rounded up).
(k) The Partnership shall at all times reserve and keep available,
free from preemptive rights, out of its authorized but unissued Class A Units,
the full number of Class A Units then issuable upon conversion of this Note. The
Partnership covenants that all Class A Units which may be issued upon conversion
of this Note will upon issue be duly and validly issued and fully paid and,
except as otherwise provided in the Partnership Agreement and Delaware law,
nonassessable.
(l) At least 20 days prior to the record date or effective date of the
occurrence of any event described in subparagraphs (e) and (f) of this paragraph
11, the Partnership shall give notice thereof to the Holder. Upon any adjustment
provided in this paragraph 11, the Partnership may cause a firm of independent
public accountants selected by it to calculate the number of Units or securities
that the Holder shall be entitled to receive upon conversion after giving effect
to the event causing such adjustment. The Partnership shall be entitled to rely
on any certificate provided by such firm as conclusive evidence of the
correctness of such calculation.
12. (a) At any time or from time to time the Holder shall have the right
(the "Demand Rights"), upon request, to cause the Partnership to file with the
Securities and Exchange Commission as promptly as practicable after receiving
such request, and to use its best efforts to cause to become effective as soon
as possible, a registration statement under the Securities Act of 1933 (the
"Securities Act") on the appropriate form registering the offering and sale of
this Note or the number of Class A Units held by the Holder upon conversion of
this Note as hereinafter provided. In connection with any
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such requests, the Partnership promptly shall prepare and file such documents as
may be necessary to register or qualify this Note and such Class A Units under
the securities laws of such states as the Holder shall reasonably request, and
shall do any and all other acts and things that may reasonably be necessary or
advisable to enable the Holder to consummate a public sale of this Note or such
Class A Units in such states; provided, however, that in no event shall the
Partnership be obligated to qualify to do business in any jurisdiction where it
is not now so qualified or to take any action which would subject it to the
service of process in suits other than those arising out of the offer or sale of
the securities covered by such registration statement in any jurisdictions where
it is not now so subject or to subject itself to taxation in any such
jurisdiction. Notwithstanding the foregoing, in no event shall the Partnership
be required to effect a registration relating to this Note or the Class A Units
more frequently than once in any 12-month period. The Partnership shall be
entitled to postpone, for a reasonable period of time, the filing of any
registration pursuant to this paragraph if, at the time it receives a request
for registration pursuant to this paragraph, the General Partner (or, if the
General Partner is the Holder at the time, the Advisory Committee of the
Partnership) determines in its reasonable business judgment that such
registration and offering would interfere with any material financing,
acquisition, corporate reorganization or other material transaction or
development involving the Partnership and promptly gives the Holder written
notice of such determination; provided that upon such postponement by the
Partnership, the Partnership shall be required to file such registration
statement as soon as practicable after the General Partner (or, if the General
Partner is the Holder at the time, the Advisory Committee of the Partnership)
shall determine, in its reasonable business judgment, that such registration and
offering will not interfere with the aforesaid material transaction or
development. If this Note has been transferred and new notes issued as provided
for herein, the Partnership shall, upon receipt of a request for registration
hereunder, provide notice of such request to other holders of notes (or holders
of Class A Units issued on conversion thereof). Such holders may, by written
notice to the Partnership within 15 days of receipt of the notice from the
Partnership, request inclusion of their notes (or Class A Units) in such
registration. If this Note has been transferred and new notes issued as provided
for herein, this paragraph shall apply only if holders of new notes representing
at least $500,000 in aggregate principal amount (or, if this Note has been
converted, holders of at least 27,000 Class A Units) request registration of
their notes or Class A Units. Any registration statement filed pursuant hereto
shall be continued in effect for a period of not less than six months following
its effective date unless the Holder agrees to a shorter period.
(b) If the Partnership shall at any time propose to file a
registration statement under the Securities Act for an offering of securities of
the Partnership for cash (other than an offering relating solely to an employee
benefit plan), the Partnership shall use its best efforts to include this Note
and such number or amount of Class A Units held by the Holder pursuant to a
conversion of this Note as hereinafter provided in such registration statement,
at the Holder's request (the "Request Rights"). If the proposed offering
pursuant to this paragraph shall be an underwritten offering, then in the event
that the managing underwriter advises the Partnership in writing that in its
opinion the inclusion of this Note or of all or some of the Holder's Class A
Units would adversely and materially affect the success of the offering, the
Partnership shall include in such offering only this Note or that number or
amount, if any, of Class A Units held by the Holder which, in the opinion of the
managing underwriter will not so adversely affect the offering.
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(c) Except as expressly prohibited under the blue sky or securities
laws of any jurisdiction under which a registration or qualification is being
effected, the Partnership shall pay all fees and expenses in connection with the
first such registration or qualification effected pursuant to the Demand Rights
and any registration or qualification effected under the Request Rights, other
than any underwriting discounts, fees, commissions or similar charges relating
to this Note or the Class A Units of the person being qualified or registered.
The Holder requesting registration shall bear all of the fees and expenses in
connection with any subsequent registration or qualification under the Demand
Rights. The Partnership shall provide indemnification and other assurances to
the underwriters, and the Holder shall provide indemnification and other
assurances to the Underwriters and the Partnership, in form and substance
reasonably satisfactory to the general partner of the Partnership and the
underwriters.
(d) The foregoing registration rights of the Holders with respect to
the Class A Units issued upon conversion of this Note shall survive the payment
or other satisfaction of this Note. The registration rights of the Holder
hereunder may be assigned by the Holder to any person acquiring from the Holder
this Note or Class A Units held by the Holder upon conversion of this Note as
herein provided, and any such assignee shall be entitled to the benefits of such
registration rights during such period as the assignor is so entitled; provided,
that the registration rights shall expire at such time as a registration
statement covering this Note or the Class A Units becomes effective and is not
subsequently withdrawn.
13. In case one or more of the following events ("Events of Default")
(whatever the reason for such Event of Default and whether it shall be voluntary
or involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body) shall have occurred and be continuing:
(a) default in the payment of any installment of interest upon this
Note as and when the same shall become due and payable, and continuance of such
default for a period of five business days; or
(b) default in the payment of all or any part of the principal of this
Note as and when the same shall become due and payable either at maturity, by
declaration or otherwise; or
(c) a court having proper jurisdiction shall enter a decree or order
for relief in respect of the Partnership in an involuntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, or appointing a receiver, liquidator, assignee, custodian, trustee,
sequestrator (or similar official) of the Partnership or for any substantial
part of the property of the Partnership or ordering the winding up or
liquidation of the affairs of the Partnership, and such decree or order shall
remain unstayed and in effect for a period of 60 consecutive days; or
(d) the Partnership shall commence a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, or consent to the entry of any order for relief in an involuntary case
under any such law, or consent to the appointment or taking possession by a
receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar
official) of the Partnership or for any substantial part of the property of the
Partnership, or the Partnership shall make
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any general assignment for the benefit of creditors or shall fail generally to
pay its debts as they become due; or
(e) the occurrence of any event of default or condition that results
in the acceleration of the maturity of the Notes and such acceleration shall not
be rescinded or annulled or waived or such indebtedness repaid within 10 days
after the holder thereof shall have given notice thereof to the Partnership;
provided that if such event of default shall be remedied or cured by the
- --------
Partnership or waived by the holders of such indebtedness, then the Event of
Default hereunder by reason thereof shall be deemed likewise to have been
thereupon remedied, cured or waived without further action by any person; or
(f) failure on the part of the Partnership in any material respect to
observe or perform its obligations under this Note with respect to registration
rights and conversion rights of the Holder for a period of 30 days after written
notice, specifying such failure and stating that such notice is a "notice of
default" hereunder, shall have been given by registered or certified mail,
return receipt requested, to the Partnership by the Holder;
then, and in each and every such case, unless the principal of this Note shall
have already become due and payable, by notice in writing to the Partnership,
the Holder may declare the entire principal of this Note and the interest
accrued thereon, to be due and payable immediately, and, subject to the other
provisions of this Note, including, without limitation paragraphs 3 and 5, upon
any such declaration the same shall become immediately due and payable.
14. The Partnership will pay any and all taxes that may be payable in
respect of the transfer or conversion of this Note or issuance and delivery of
Class A Units on conversion of this Note pursuant hereto. The Partnership shall
not, however, be required to pay any tax that may be payable in respect of any
transfer involved in the issuance and delivery of a new note or certificates
evidencing Class A Units in a name other than that of the Holder to be
transferred or converted, and no such issue or delivery shall be made unless and
until the person requesting such issue has paid to the Partnership the amount of
any such tax or has established, to the satisfaction of the Partnership, that
such tax has been paid.
15. Unless otherwise expressly provided herein, all payments, notices,
communications, surrenders for transfer or conversion and consents hereunder,
shall be as follows: if to the Partnership, at 5775 DTC Boulevard, Suite 300,
Englewood, Colorado 80111; if to the Holder, at the address given or changed in
writing to the Partnership by the Holder.
16. This Note is delivered in and shall be construed and enforced in
accordance with and governed by the laws of the State of Colorado.
17. Notwithstanding anything to the contrary contained herein or any other
instrument evidencing or securing the indebtedness evidenced by this Note, or
executed in connection herewith, there shall be no personal liability of the
partners of Maker for satisfaction of any obligation or claim arising under this
Note and Payee and any subsequent holder of this Note shall look solely to the
assets of Maker for satisfaction of such obligation or claim. Payee and any
subsequent holder of this Note
9
will not seek any money judgment, deficiency or otherwise, against the partners
of Maker, on the condition, however that nothing herein shall in any way
constitute, or be deemed to constitute, a release, impairment or limitation of
the Maker's obligations hereunder.
IN WITNESS WHEREOF, the Maker has caused this instrument to be dated,
executed and delivered on its behalf by its general partner thereunder duly
authorized and its corporate seal to be hereunto duly affixed.
AIRCOA HOTEL PARTNERS, L.P.
By: AIRCOA HOSPITALITY SERVICES, INC.,
its managing general partner
By:
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Name:
Title:
By:
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Name:
Title:
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