EXHIBIT 10.i
SERIES C
PROMISSORY NOTE
$9,336,857.00 Delivered in Atlanta, Georgia
As of December 15, 1992
FOR VALUE RECEIVED, the undersigned, MARRIOTT DIVERSIFIED AMERICAN
HOTELS, L.P., a Delaware limited partnership (hereinafter called the "Maker"),
does hereby promise to pay to the order of NATIONSBANK OF GEORGIA, NATIONAL
ASSOCIATION, a national banking association chartered under the laws of the
United States of America (hereinafter together with any holder hereof called the
"Holder"), at the office of AMRESCO-Institutional, Inc., 101 North Tryon Street,
NC 1-001-13-20, Charlotte, North Carolina 28255, or at such other place as the
Holder may designate in writing, in lawful money of the United States of
America, the principal sum of Nine Million Three Hundred Thirty Six Thousand
Eight Hundred Fifty-Seven and No/100 Dollars ($9,336,857.00), the principal sum
and interest, if any, being payable as set forth below.
Section 1. Rate of Interest and Payments of Principal and Interest
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From and after the Maturity Date (as hereinafter defined), interest
shall be due and payable at the rates and times as provided in Article 2 of that
certain Amended and Restated Loan Agreement dated of even date herewith between
the Maker and the Holder (the "Loan Agreement"), which document is incorporated
in its entirety herein by reference thereto.
The entire outstanding principal balance of the indebtedness evidenced
by this Note together with all accrued and unpaid interest, if any, shall be due
and payable as set forth in the Loan Agreement and in any event on the earlier
of (said earlier date being hereinafter referred to as the "Maturity Date"): (i)
December 15, 2010, or (ii) acceleration of the indebtedness evidenced by this
Note as expressly hereinafter provided.
Section 2. Prepayment
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The indebtedness evidenced by this Note may be prepaid on the terms and
conditions provided in Article 2 in the Loan Agreement. Notwithstanding anything
in this Note to the contrary, an acceleration of the indebtedness evidenced
hereby shall be deemed a prepayment.
Section 3. General Provisions
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In no event shall the amount of interest due or payable hereunder
exceed the maximum rate of interest allowed by applicable law, and in the event
any such payment is inadvertently paid by the Maker or inadvertently received by
the Holder, then such excess sum shall be returned to the Maker forthwith upon
the Holder having actual knowledge of
the excess. It is the express intent hereof that the Maker not pay and the
Holder not receive, directly or indirectly in any manner whatsoever, interest in
excess of that which may be legally paid by the Maker under applicable law.
This Note is secured by, without limitation, six deeds of trust and
mortgages securing properties located in the States of California, Michigan,
Ohio, North Carolina and Virginia dated February 7, 1990 (as amended,
supplemented or modified as of even date herewith and from time to time.
hereinafter collectively called the "Mortgages") by the Maker in favor of the
Holder. The Holder shall have the optional right to declare the amount of the
total unpaid balance hereof to be due and forthwith payable in advance of the
Maturity Date upon (a) the failure of the Maker to pay, when due, any amount
hereunder within five (5) days after written notice thereof from the Holder to
the Maker (in the manner prescribed in the Loan Agreement), or (b) the
occurrence of any other "Event of Default," as that term is defined in the Loan
Agreement or if Section 4.1(b) of the Mortgages is applicable, as that term is
defined in the Mortgage, and with the giving of written notice and the
expiration of any applicable cure period to the extent prescribed in the Loan
Agreement without cure. From and after the Maturity Date (whether by
acceleration or otherwise), or so long as the Series A Note or the Series B Note
remains outstanding, the occurrence of an Event of Default, the entire unpaid
principal shall bear interest from and after the Maturity Date or, if earlier,
the date of the occurrence of such Event of Default until paid in full or such
Event of Default is cured or waived in accordance with the Loan Agreement at the
Default Rate (as defined in the Loan Agreement), computed on the basis of 360
days per year. Forbearance to exercise this option with respect to any failure
or breach of the Maker shall not constitute a waiver of the right as to any
subsequent failure or breach.
Time is of the essence of this Note and, in case this Note is collected
by law or through an attorney at law, or under advice therefrom, the Maker
agrees to pay all costs of collection, including reasonable attorneys' fees
actually incurred.
The Maker hereby waives presentment, demand for payment, protest and
notice of non-payment, except as expressly provided in this Note.
The Maker acknowledges that this Note shall be governed by the laws of
the State of Georgia.
The Holder may not sell, assign or transfer the Note or any interest
herein except as provided in Section 10.17 of the Loan Agreement.
Notwithstanding anything to the contrary contained in this Note, or any
of the other Loan Documents (as that term is defined in the Loan Agreement), the
Holder agrees to satisfy any judgment obtained against the Maker by the exercise
of the rights of the
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Holder under the Loan Documents; no other property or assets of the Maker or any
general partner or limited partner of the Maker, nor any Affiliate (as that term
is defined in the Loan Agreement) of the Maker, or of any general partner or
limited partner of the Maker, except pursuant to (a) that certain Foreclosure
Guarantee dated February 7, 1990 (as amended, supplemented or modified from time
to time, the "Foreclosure Guarantee") executed by Marriott MDAH One
Corporation, a Delaware corporation ("MDAH One", and (b) that certain Amended
and Restated Direct Access and Guaranty Agreement dated of even date herewith
(as amended, supplemented or modified from time to time, the "Direct Access
Agreement") executed by Marriott Corporation, a Delaware corporation
("Marriott"; Marriott and MDAH One collectively called the "Guarantors") shall
be subject to levy, execution or other enforcement procedures for the
satisfaction of the payments required under this Note, the Mortgages or for the
performance of any other covenants or warranties contained herein or under the
other Loan Documents. The Holder shall not bring any action to obtain a
deficiency judgment against the Maker or the general or limited partners of the
Maker, or any officers, directors, employees or Affiliates thereof (provided,
however, this shall in no way limit the rights, powers and privileges of the
Holder pursuant to the Foreclosure Guarantee or the Direct Access Agreement).
Nothing contained herein shall: (i) constitute a waiver of any obligation
evidenced by this Note, or the Loan Documents, or secured by the Mortgages, or
in any way be construed to release or impair the liens and interests of the
Mortgages, or the indebtedness evidenced by this Note, (ii) limit the right of
the Holder to bring an action to judicially foreclose the liens and interests of
the Mortgages, or to confirm any foreclosure or sale pursuant to any power of
sale contained in the Mortgages, or limit the right of the Holder to exercise
its remedies under the other Loan Documents, subject to the terms of Section
2.20 of the Loan Agreement, or (iii) affect the right of the Holder to bring any
action against the Guarantors under the Foreclosure Guarantee or the Direct
Access Agreement and satisfy any judgments obtained against any of the assets of
the Guarantors pursuant to the terms and conditions of the Foreclosure Guarantee
or the Direct Access Agreement.
Notwithstanding the foregoing, the Maker and any general partner of the
Maker shall remain and be fully liable to the Holder for any loss or damage
suffered by the Holder as a result of:
(i) fraud or intentional damage or waste to any of the
Mortgaged Hotels (as that term is defined in the Loan Agreement) by the
Maker;
(ii) the Maker's retention of rents, room revenues or other
income which constitutes collateral under the Loan Documents arising
with respect to the Mortgaged Hotels which is collected by the Maker
after the Holder has given notice to the Maker that an Event of Default
has occurred under the Mortgages or the other Loan Documents (to the
full extent of any such rents or other income
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retained and collected by the Maker in violation of the terms of the
Loan Documents);
(iii) failure to pay ad valorem taxes in violation of the
terms of the Mortgages;
(iv) any claims, liabilities, damages, costs and expenses
resulting from a violation of any federal, state or local laws, rules,
regulations or ordinances involving hazardous materials or substances
located on, in or under any of the Mortgaged Hotels;
(v) the Maker's misapplication or misappropriation of any
proceeds received by the Maker pursuant to any insurance policies or
condemnation proceeds or awards, in violation of the terms of the
Mortgages;
(vi) any sale, transfer or voluntary encumbrance of the
Mortgaged Hotels or any portion thereof or any interest therein, or the
FF&E (as that term is defined in the Loan Agreement), except as
expressly permitted in Section 8.1 of the Loan Agreement or as
otherwise permitted in the Loan Agreement or the other Loan Documents,
or with the prior written consent of the Holder;
(vii) failure to maintain insurance as required by the Loan
Agreement and the Mortgages; and
(viii) failure of the Maker to comply with Section 6.1(b) of
the Loan Agreement.
Notwithstanding the foregoing, the Sellers (as hereinafter defined)
shall remain fully liable for the obligations, liabilities, representations,
warranties and indemnifications contained in that certain Purchase Agreement
dated as of even date herewith among Marriott, Essex House Condominium
Corporation, Host La Jolla, Inc. and Marriott-Dayton Community Urban
Redevelopment Corporation (collectively, the "Sellers") and the Maker, which
survive the date hereof, as provided therein, and the Holder shall have recourse
against the Sellers to the extent assigned to the Holder in that certain
Assignment of Purchase Agreement dated February 7, 1990 among the Sellers, the
Maker and the Holder.
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IN WITNESS WHEREOF, the undersigned Maker has hereunto caused this
instrument to be duly executed and sealed as of the day and year first above
written.
MARRIOTT DIVERSIFIED AMERICAN
HOTELS, L.P., a Delaware limited
partnership
By: Marriott MDAH One Corporation, a
Delaware corporation, Sole General
Partner
By: /s/ Jeffrey P. Mayer
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Name: JEFFREY P. MAYER
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Title: VICE PRESIDENT
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Attest: [SIGNATURE APPEARS HERE]
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Name:
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Title: SECRETARY
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[CORPORATE SEAL]
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