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EXHIBIT 10.17
PROMISSORY NOTE
DALLAS, TEXAS
$1,276,973.00 April 15, 1995
FOR VALUE RECEIVED, WYNDHAM FINANCE LIMITED PARTNERSHIP, a Texas limited
partnership (referred to herein as "Maker"), promises to pay to WYNDHAM HOTEL
COMPANY LTD., a Texas limited partnership (referred to herein as "Payee"), the
sum of ONE MILLION TWO HUNDRED SEVENTY-SIX THOUSAND NINE HUNDRED SEVENTY-THREE
AND NO/100 DOLLARS ($1,276,973.00), together with interest on the unpaid
principal balance as set forth below.
1. Interest Rate. (a) The unpaid principal balance of this Note
from the date hereof until maturity (whether by acceleration or otherwise)
shall bear interest at the Prime Rate (as hereinafter defined and changing as
the Prime Rate changes) plus two (2) percentage points. Interest on the unpaid
principal balance hereof shall be calculated at a daily rate equal to 1/360th
of the rate per annum herein provided, and shall be charged and collected on
the actual number of days elapsed. The rate of interest on this Note shall be
adjusted to change automatically without notice to Maker as of the opening of
business on the effective date of each and every change of the Prime Rate.
After maturity, unpaid principal and, to the extent permitted by law, interest
on this Note shall bear interest at a rate equal to the lesser of four (4)
percentage points over the Prime Rate or the highest nonusurious rate of
interest (if any) permitted by applicable law on such day (the "Maximum Rate").
Nothing herein shall require Payee to refund any interest received hereon in
the event that the Prime Rate changes retroactively from time to time, subject
to the terms of section (c) hereof.
(b) The term "Prime Rate" as used herein shall mean the rate per
annum announced, designated or published from time to time by Citibank, N.A. as
its prime interest rate.
(c) Notwithstanding the foregoing, if at any time and from time to
time the rate of interest calculated pursuant to Section 1(a) above would
exceed the Maximum Rate, the interest payable on this Note shall be reduced to
the Maximum Rate and any reduction in the Prime Rate shall not reduce the rate
of interest hereon until the total amount of interest accrued hereon from and
after the date hereof equals the amount of interest that would have accrued
hereon if the Prime Rate had at all times been in effect.
2. Payments. The outstanding principal balance of, and accrued
interest on, this Note shall be due and payable on April 15, 2000.
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3. Events of Default. (a) The occurrence of any one or more of the
following events shall be deemed an event of default hereunder ("Event of
Default"):
(i) The failure of Maker to make any payment on this Note when
the same becomes due and payable and such failure continues for ten (10)
days after notice of such failure to pay is received by Maker from
Payee; or
(ii) Maker shall commence any case, proceeding or other action
seeking reorganization, arrangement or adjustment of his debts under any
bankruptcy, insolvency or reorganization law, or seek the appointment of
a receiver, trustee or custodian for Maker or for all of his property;
or
(iii) Any case, proceeding or other action shall be commenced
against Maker seeking reorganization, arrangement or adjustment of his
debts under any bankruptcy, insolvency or reorganization law or seeking
the appointment of a receiver, custodian or trustee for Maker or for all
or substantially all of his property, and such case, proceeding or other
action remains undismissed for a period of sixty (60) days after
commencement thereof; or
(iv) The death or legal incapacity of Maker.
(b) Upon the occurrence of an Event of Default hereunder,
Payee, at Payee's option, may declare the entire unpaid principal balance and
accrued interest on this Note to be immediately due and payable without notice
of any kind to Maker and without any other presentment, demand, protest or
notice of any kind, all of which are hereby expressly waived by Maker, and may,
at his option, exercise any other right or remedy existing at law or in equity.
Failure to exercise any such right or remedy shall not constitute a waiver of
the right to exercise the same in the event of any subsequent default.
4. Prepayment. Maker shall have the right and privilege from time
to time to prepay in whole or in part the unpaid principal of this Note without
premium or penalty, provided that the accrued interest on the amount prepaid is
likewise paid, and the accrual of interest shall immediately cease on any
amount so prepaid.
5. Waiver. Maker waives demand, presentment for payment, notice of
nonpayment, protest and notice of protest and agrees to any substitution,
subordination, or release of any parties primarily or secondarily liable
hereon. No waiver by Payee of any of its rights or remedies hereunder or under
any other document evidencing or securing this Note or otherwise shall be
considered a waiver of any other subsequent right or remedy of Payee; and no
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delay or omission in the exercise or enforcement by Payee of any rights or
remedies shall be construed as a waiver of any right or remedy of Payee.
6. Attorneys' Fees. If this Note is not paid at maturity and is
placed in the hands of an attorney for collection, or if it is collected
through bankruptcy or any other court proceeding after maturity, then Payee
shall be entitled to reasonable attorneys' fees for collection.
7. Limitation on Agreements. It is the intention of Maker and Payee
to comply with applicable usury laws. In furtherance thereof, Maker and Payee
stipulate and agree that, notwithstanding any provision contained in this Note,
or in any other agreement between Maker and Payee, Payee shall never be
entitled to receive, collect or apply as interest on this Note, any amount in
excess of the Maximum Rate, and, in the event Payee ever receives, collects or
applies as interest any such excess, such amount that would be excessive
interest shall be deemed to be a partial prepayment of principal and treated
hereunder as such, and, if the principal amount of the Note is paid in full,
any remaining excess shall forthwith be paid to Maker. In determining whether
any interest paid or payable, under any specific contingency, exceeds the
Maximum Rate, Maker and Payee shall, to the maximum extent permitted under
applicable law (i) characterize any non-principal payments (other than payments
hereunder) as an expense, fee or premium rather than as interest, (ii)exclude
voluntary prepayments and the effects thereof, and (iii) amortize, prorate,
allocate and spread in equal parts the total amount of such interest throughout
the entire contemplated term of this Note so that the interest rate is uniform
throughout such term.
8. Negotiability. This Note is non-negotiable and may not be
assigned without the express written consent of Maker.
9. Governing Law and Venue. This Note is being executed and
delivered and is intended to be performed in the State of Texas. This Note
shall be construed as to both validity and performance and enforced in
accordance with and governed by the laws of the State of Texas.
10. Notices. All notices or other communications required or
permitted hereunder shall be in writing and shall be deemed to have been duly
given if delivered personally or sent by certified or registered mail, postage
prepaid, with return receipt requested, addressed to Maker or Payee as follows:
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If to Maker to:
Wyndham Finance Limited Partnership
3200 Trammell Crow Center
2001 Ross Avenue
Dallas, Texas 75201
Attention: Kathleen Smalley, Esq.
If to Payee to:
Wyndham Hotel Company Ltd.
2001 Bryan Street
Suite 2300
Dallas, Texas 75201
Attention: Carla S. Moreland, Esq.
or such other address as shall be furnished in writing by Maker or Payee to the
other, in accordance with the above provisions, and such notice or
communication shall be deemed to have been given as of the date so delivered.
MAKER
WYNDHAM FINANCE LIMITED PARTNERSHIP,
a Texas limited partnership
By: Mill Spring Holdings, Inc.,
a Texas corporation, General Partner
By: /s/ SUSAN T. GROENTEMAN
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Name: Susan T. Groenteman
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Title:
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