Exhibit 10.1
NOTE PRINCIPAL AMOUNT
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$199,000,000.00
SECURED NOTE
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As of July 10, 1990
IVY STREET LIMITED PARTNERSHIP, a Georgia limited partnership having an
office at 00000 Xxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000 ("Maker", which term
shall also include, without limitation, any successor tenant under the Ground
Lease (as defined in the Deed, as hereinafter defined) and any successor owner
of the Improvements, as defined in the Deed, which assumes all or part of the
Maker's obligations in accordance with, and to the extent provided in the Deed),
for value received, hereby promises to pay to the order of MARRIOTT/PORTMAN
FINANCE CORPORATION, a Delaware corporation having an office at 00000 Xxxxxxxx
Xxxx, Xxxxxxxx, Xxxxxxxx 00000 (such corporation and any subsequent holder of
this Secured Note being hereinafter referred to as "Payee") on July 10, 1997
(the "Stated Maturity") the principal sum of ONE HUNDRED NINETY-NINE MILLION AND
00/100 DOLLARS ($199,000,000.00) (the "Note Principal Amount"), plus all
Deferred Interest (as defined herein) and to pay interest as provided below upon
the Note Principal Amount semiannually in arrears on January 10 and July 10 of
each year, commencing January 10, 1991 (each such date being referred to
hereinafter as a "Payment Date") at the Payment Rate hereinafter provided, from
the most recent prior Payment Date to which interest has been paid or, if no
interest has been paid, from July 10, 1990, until payment of the Note Principal
Amount has been made. Capitalized terms used herein but undefined herein shall
have the meaning given them in that certain Deed to Secure Debt, Security
Agreement and Assignment of Leases and Rents made by Maker and AMMLP to Payee,
of even date herewith (as amended or supplemented from time to time, the
"Deed").
1. The Note Principal Amount shall bear interest at the rate of 8.39%
per annum to March 24, 1991 (the "Deferred Interest Commencement Date"). The
Note Principal Amount shall bear interest from the Deferred Interest
Commencement Date until the Stated Maturity or such earlier date, if any, as the
Note Principal Amount hereunder becomes due in accordance with the terms hereof
(the earlier to occur of the Stated Maturity and such earlier date, hereinafter
being referred to as the "Maturity Date") at the rate of 10.30% per annum (the
"Interest Rate"). Interest shall be computed on the basis of a 360-day year
comprised of twelve 30-day months. Notwithstanding the Interest
Rate, payments of interest on the Note Principal Amount will be made at the rate
(the "Payment Rate") of 8.39% per annum from July 10, 1990 to July 10, 1992,
8.8848% per annum from July 10, 1992 to July 10, 1994 and 10.17% per annum from
July 10, 1994 until the Maturity Date. The amount by which (a) interest earned
at the Interest Rate on the Note Principal Amount from and after the Deferred
Interest Commencement Date for any period commencing with a Payment Date (or,
for the first such period, commencing on the Deferred Interest Commencement
Date) and ending on the next succeeding Payment Date (or, for the last such
period, ending on the Maturity Date exceeds (b) the amount of interest due and
payable at the Payment Rate for such period, (such excess, the "Deferred
Interest") shall accrue on the last day of such period and thereafter until the
Maturity Date earn interest at the Interest Rate, compounded semiannually on
each subsequent Payment Date and on the Maturity Date, as applicable. Interest
earned on Deferred Interest shall be added to Deferred Interest on each Payment
Date and on the Maturity Date, as applicable, and the term "Deferred Interest"
shall include such added interest. Deferred Interest shall be due and payable on
the Maturity Date.
2. If Maker shall fail to pay any amount hereunder on the date such
amount is due, such overdue amount shall, to the extent permitted by law, bear
interest from and including the date such overdue amount was due until such
overdue amount has been paid at a rate (the "Default Rate") equal to the lesser
of (a) the Interest Rate plus four If Maker shall fail to pay any amount
hereunder on the date such amount is percent (4%) per annum, and (b) the maximum
rate of interest per annum then permitted by applicable law.
3. Notwithstanding anything in this Secured Note to the contrary,
whenever interest is stated in this Secured Note to accrue (a) from a particular
date, interest shall accrue from and including such date, or (b) to or until a
particular date, interest shall accrue to, but not including, such date.
4. Maker shall pay to Payee as additional interest on the Secured Note
("Secured Note Additional Interest") the sum of (a) the Additional Interest
payable under the Notes as and when the same shall be due, plus (b) such
additional amounts as are necessary in order that every net payment by Maker to
Payee of the Note Principal Amount, Deferred Interest, interest, Secured Note
Yield Maintenance Amount, if any, the Secured Note Accreted Amount (as
hereinafter defined), any amount payable pursuant to Section 4(a) above and any
other amounts due and payable under this Secured Note, after withholding for or
on account of any tax, assessment or other governmental charge imposed with
respect to or as a result of any such such payments, will not be less than the
amount provided in this Secured Note to be then due and payable without such
withholding.
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5. All payments to be made hereunder shall be paid by federal funds,
wire or other transfer of good and immediately available funds in lawful money
of the United States of America which shall be legal tender for the payment of
all debts and dues, public and private, at the time of payment, without any
counterclaim, set-off or deduction whatsoever, at such place as may be
designated, from time to time, in writing by Xxxxx, upon not less than five (5)
Business Days' prior written notice; provided, however, that Payee shall have
the right to elect, from time to time, by written notice to Maker, upon not less
than five (5) Business Days' prior written notice, to have payments made to
Payee by unendorsed bank check drawn on a commercial bank acceptable to Payee,
at the address of Payee set forth above or at such other address as may be
designated in writing by Xxxxx from time to time. No payment shall be deemed
made until actually received by Payee on a Business Day, and, notwithstanding
the foregoing, any payment received hereunder after 12:00 noon at the place of
receipt shall not be deemed received until the next Business day.
6. This Secured Note is secured by, and Xxxxx is entitled to the
benefits of, the Deed, the Security Agreement, the Management Agreement
Assignment, the Bank Accounts Assignment and the other Real Estate Security
Documents. Reference is hereby made to the above documents, and any and all
other Financing Documents related thereto for a statement of the respective
rights, limitations of rights, obligations, duties and immunities hereunder of
the Collateral Trustee, Maker and Payee.
7. This Secured Note and certain other documents shall be pledged and/or
assigned to the Collateral Trustee pursuant to the Assignment and Pledge
Agreement.
8. (a) If an Event of Default, as defined in the Deed, shall have
occurred and be continuing, unless the same has been rescinded, annulled or
waived by the requisite Holders of the Notes of each series of Notes which has
been accelerated in accordance with Sections 502 or 513 of the Indenture, then
this Secured Note may be declared due and payable by Payee (or by such other
parties permitted to do so under Section 502 of the Indenture) and upon such
declaration, the entire Note Principal Amount (or, if prior to the Deferred
Interest Commencement Date, the Original Note Principal Amount (as hereinafter
defined) and the Secured Note Accreted Amount (as hereinafter defined) accrued
thereon), together with all accrued Deferred Interest, all accrued and unpaid
interest, the Secured Note Yield Maintenance Amount, if any, and all accrued and
unpaid Secured Note Additional Interest, if any, shall become immediately due
and payable, in the manner, with the effect and subject to the conditions, if
any, provided in the Deed and the Indenture. For the purposes hereof, (i) the
term "Original Note Principal Amount" shall mean the principal sum of
$196,500,000.00, and (ii) the
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term "Secured Note Accreted Amount" shall mean, as of any accrual date set forth
below, the Secured Note Accreted Amount set forth below and as of any other
date, the Secured Note Accreted Amount set forth below for the immediately
preceding accrual date plus the Proportionate Amount to such date:
Accrual Date Secured Note Accreted Amount
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July 10, 1990 $ 9,839.44
August 9, 1990 295,183.33
September 9, 1990 590,366.67
October 9, 1990 885,550.00
November 9, 1990 1,180,733.33
December 9, 1990 1,475,916.67
January 9, 1991 1,771,100.00
February 9, 1991 2,066,283.33
March 9, 1991 2,361,466.67
March 23, 1991 2,500,000.00
"Proportionate Amount" is defined as an amount equal to the product of (i) the
Secured Note Accreted Amount for the immediately following accrual date less the
Secured Note Accreted Amount for the immediately preceding accrual date
multiplied by (ii) a fraction (not to exceed one), the numerator of which is the
number of days elapsed from (and including) the immediately preceding accrual
date to (but not including) the date for which the Proportionate Amount is being
determined, and the denominator of which is (A) at any date prior to March 9,
1991, 30 or (B) at any date subsequent to March 9, 1991, 14. For the purposes
hereof, the term "Secured Note Yield Maintenance Amount" shall mean, on the
Maturity Date, an amount equal to the excess, if any, of (A) the present value
of all Secured Note Remaining Payments (as hereinafter defined) with respect to
this Secured Note, calculated using a discount rate applied on a semiannual
basis equal to the arithmetic average (rounded down to the nearest basis point)
of the per annum yield to maturity of the United States Treasury Department
fixed interest rate securities having a maturity date nearest to the Stated
Maturity, based on the closing bid prices on the Business Day immediately
preceding the Maturity Date, as quoted by each of three (3) United States
Government securities dealers of recognized standing selected by the Payee over
(B) the Original Note Principal Amount, Deferred Interest, Secured Note Accreted
Amount and interest accrued under this Secured Note as of the Maturity Date,
such amount to be calculated by Independent Accountants reasonably acceptable to
the Payee and the Payee shall be entitled to rely on such Independent
Accountants' calculation thereof. Maker acknowledges that the Secured Note Yield
Maintenance Amount does not constitute a penalty but rather is calculated to
compensate Payee, in the event of an acceleration of this Secured Note, for the
loss of investment, the amount of which loss Payee acknowledges if difficult or
impossible to calculate. For the purposes hereof, the term "Secured Note
Remaining Payments" shall
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mean, with respect to this Secured Note as of any date, the amount of all
payments of Original Note Principal Amount, Deferred Interest, Secured Note
Accreted Amount and interest to be made subsequent to such date, assuming this
Secured Note is outstanding through, and paid in full at, the Stated Maturity.
(b) If an Event of Default has occurred under the Indenture and the
Notes shall be accelerated pursuant to Section 502 of the Indenture, then if and
only if the requisite Holders of the Notes of each series of Notes which has
been accelerated rescind, annul or waive a declaration that the Notes are due
and payable in accordance with the provisions of Section 502 of the Indenture,
any declaration that this Secured Note is due and payable shall be deemed to be
similarly rescinded, annulled or waived.
9. Notwithstanding anything to the contrary contained herein, recourse
under this Secured Note against the partners (or constituent partners in such
partners), officers, directors, or shareholders of the Maker or any person
comprising or controlling the Maker shall be limited as provided in Section 26.7
of the Deed.
10. Except as hereinafter set forth, this Secured Note shall not be
prepaid in whole or in part. This Secured Note shall be prepaid in whole if all
the Notes then outstanding are redeemed in accordance with their terms (whether
pursuant to an optional or mandatory redemption) and the amount to be paid upon
such prepayment shall be (a) in the case of any such prepayment of this Secured
Note prior to the Deferred Interest Commencement Date, the Original Principal
Amount plus the Secured Note Accreted Amount thereon to the Redemption Date (as
defined in the Indenture), accrued and unpaid interest, accrued and unpaid
Secured Note Additional Interest, if any, and any other amounts, if any, due and
payable on the date of prepayment, and (b) in the case of any such prepayment of
this Secured Note on or after the Deferred Interest Commencement Date, the Note
Principal Amount, accrued and unpaid Deferred Interest, accrued and unpaid
interest, accrued and unpaid Secured Note Additional Interest, if any, and any
other amounts, if any, due and payable on the date of prepayment. Any amounts
required to be prepaid under this paragraph shall be paid on the same date as
the Issuer is required to make the corresponding redemption payment with respect
to the Notes.
11. Maker agrees to pay all reasonable costs and expenses of collection
incurred by Xxxxx (including, without limitation, reasonable attorneys' fees and
disbursements) and all reasonable costs and expenses incurred in connection with
the execution, administration, enforcement or attempted enforcement of this
Secured Note or the protection of or realization of collateral, whether or not
by suit on this Secured Note, on any of
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the other Financing Documents or any foreclosure proceeding is filed, and all
such reasonable costs and expenses shall be payable upon demand (and shall be
paid with interest thereon at the Default Rate from the date of demand) and also
shall be secured by the Deed and all other collateral at any time held by Payee
as security for Maker's obligations to Payee under this Secured Note. Maker
agrees to pay all other costs and expenses required to be paid by Maker under
and in accordance with the terms of the Deed or under any other Financing
Documents.
12. All notices and other communications to Maker and Payee hereunder
shall be given in the manner provided in the Deed.
13. Presentment for payment, demand, protest and notice of demand,
protest and non-payment and all other notices not expressly required herein or
under the Real Estate Security Documents to be given by Payee are hereby waived
by Maker. No failure to accelerate the debt evidenced hereby by reason of
default hereunder, acceptance of a past due installment or indulgences granted
from time to time shall be construed (i) as a novation of this Secured Note or
as a reinstatement of the indebtedness evidenced hereby or as a waiver of such
right of acceleration or of the right of Payee thereafter to insist upon strict
compliance with the terms of this Secured Note, or (ii) to prevent the exercise
of such right of acceleration or any other right granted hereunder or by
applicable law; and Maker hereby expressly waives the benefit of any statute of
rule of law or equity now provided, or which may hereafter be provided, which
would produce a result contrary to or in conflict with the foregoing. No
extension of the time for the payment of this Secured Note or any installment
due hereunder made by agreement with any person now or hereafter liable for the
payment of this Secured Note shall operate to release, discharge, modify, change
or affect the original liability of Maker under this Secured Note, either in
whole or in part unless Xxxxx agrees otherwise in writing.
14. Maker hereby waives and renounces for itself, its heirs, successors
and assigns, all rights to the benefits of any statute of limitations and any
moratorium, reinstatement, marshalling, forbearance, valuation, stay, extension,
redemption, appraisement, exemption and homestead now provided, or which may
hereafter be provided, by the Constitution and laws of the United States of
America and of any state thereof, both as to itself and in and to all of its
property, real and personal, against the enforcement and collection of the
obligations evidenced by this Secured Note. Maker hereby transfers, conveys and
assigns to Payee a sufficient amount of such homestead or exemption as may be
set apart in bankruptcy, to pay this Secured Note in full, with all costs of
collection, and does hereby direct any trustee in bankruptcy having possession
of such homestead or exemption to deliver to Payee a sufficient amount of
property or money set apart as exempt to pay the indebtedness evidenced hereby,
or any renewal thereof, and does hereby appoint Payee the attorney-in-fact for
Maker to claim any and all homestead exemptions allowed by law.
15. Notwithstanding anything herein or elsewhere to the contrary, 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 undersigned or inadvertently received by the Payee,
then such excess sum shall be returned to the Maker on demand. It is the express
intent hereof that the Maker not pay and the Payee not receive, directly or
indirectly, interest in excess of that which may be legally paid by the
undersigned under applicable law.
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16. This Secured Note shall be deemed to be a contract made under the
laws of the State of Georgia and shall for all purposes be governed by, and
construed in accordance with, the internal laws of such State without giving
effect to the principles of conflict of laws.
17. In the event any Payment Date hereunder or the date any other
payment is due hereunder or under any of the other Financing Documents is a day
other than a Business Day, then the amount of the payment due on such date need
not be made on such date, but shall be made no later than the next succeeding
Business Day, with the same force and effect as if made on the original payment
date, provided that no interest shall accrue on the amount so payable for the
period from and after such payment date occurring on a day other than a Business
Day through and including the next Business Day.
18. This Secured Note will be marked paid in full and cancelled upon the
occurrence of a Property Release, as described in Section 20.2 of the Deed. This
Secured Note may not be changed or terminated orally but only by an agreement in
writing signed by the party against whom enforcement of such change or
termination is sought. This Secured Note may be amended, modified, supplemented
or waived by written agreement between Maker and Payee, but only if such
amendment, modification, supplement or waiver complies with the provisions of
Article Nine of the Indenture.
19. If, as and when Marriott hereafter pays, as provided under either
of the Guaranties, the following sums under either of the Guaranties, such
payments shall likewise be deemed to constitute payments of equal amounts under
the Secured Note as follows:
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(a) any payment under the Interest/Principal Guaranty applied to
interest shall be deemed to constitute payment of interest in the same
amount under this Secured Note;
(b) any payment under the Interest/Principal Guaranty applied to
Deferred Interest (as defined in the Indenture) shall be deemed to
constitute payment of Deferred Interest in the same amount under this
Secured Note;
(c) any payment under the Interest/Principal Guaranty applied to
Yield Maintenance Amount (as defined in the Indenture) shall be deemed
to constitute payment of Secured Note Yield Maintenance Amount in the
same amount under this Secured Note;
(d) any payment under the Interest/Principal Guaranty applied to
Additional Interest (as defined in the Indenture) shall be deemed to
constitute payment of Secured Note Yield Additional Interest in the same
amount under this Secured Note;
(e) any payment under the Interest/Principal Guaranty applied to
Accreted Amount (as defined in the Indenture) shall be deemed to
constitute payment of Secured Note Accreted Amount in the same amount
under this Secured Note; and
(f) any payment under either the Interest/Principal Guaranty or
the Principal Guaranty applied to the Original Principal Amount of the
Notes (as defined in the Indenture) shall be deemed to constitute
payment of Original Note Principal Amount in the same amount under this
Secured Note;
provided, however, that no such payment shall constitute a payment under the
Secured Note to the extent it is required to be
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repaid or disgorged by the Payee, as a result of any bankruptcy, insolvency,
reorganization or creditors' rights law or otherwise.
IN WITNESS WHEREOF, Xxxxx has duly executed this Secured Note as of the
day and year first above written.
IVY STREET HOTEL LIMITED PARTNERSHIP
Signed, sealed and By: Atlanta Xxxxxxxx Xxxxxxx
delivered in the Limited Partnership,
presence of: General Partner
/s/ Xxxxxxx Xxxxxx
------------------------- By: Marriott Marquis Corporation,
Witness General Partner
/s/ Xxxxxx X. Xxxxxxx By: /s/ Xxxxxx X. Xxxxxxx, Xx.
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Xxxxxx X. Xxxxxxx
Notary Public Name: Xxxxxx X. Xxxxxxx, Xx.
Title: President
Commission
Expiration Date: 10-2-91
Attest: /s/ Xxxxxxx XxXxxxx
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(NOTARIAL SEAL) Its Asst. Secretary
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XXXXXX X. XXXXXXX (CORPORATE SEAL)
NOTARY PUBLIC, State of New York
No. 00-0000000
Qualified in Queens County
Term Expires Oct. 2, 1991
Signed, sealed and
delivered in the
presence of:
/s/ Xxxxxxx Xxxxxx By: /s/ Xxxx X. Xxxxx [SEAL]
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Xxxxxxx Xxxxxx
Xxxxxxx Xxxx X. Xxxxxxx, Xx.,
General Partner
By: Xxxx X. Xxxxx,
Attorney-in-fact
/s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx
Notary Public
Commission
Expiration Date: 10-2-91
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(NOTARIAL SEAL)
XXXXXX X. XXXXXXX Pay to the Order of The Citizens
NOTARY PUBLIC, State of New York and Southern National Bank as
No. 00-0000000 Collateral Trustee under the
Qualified in Queens County
Term Expires Oct. 2, 1991
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