EXHIBIT 10.33
PROMISSORY NOTE
$37,500,000 June 1, 1999
FOR VALUE RECEIVED, the undersigned, CANDLEWOOD HOTEL COMPANY FUND, I,
LLC, a Delaware limited liability company (the "Borrower"), hereby promises to
pay (x) Boston Capital Institutional Advisors LLC or (y) provided that the
registration provision of Section 10.2.5 of the Loan Agreement (as that term is
hereinafter defined) has been satisfied, to the successors and assigns of Boston
Capital Institutional Advisors LLC (together with any subsequent holders of this
Note, the "Lender"), at its office at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, or at such other place as the Lender may from time to time designate in
writing, the principal sum of
THIRTY SEVEN MILLION FIVE HUNDRED
THOUSAND DOLLARS AND 00/100 CENTS
($37,500,000) or such portion thereof as may have been actually advanced by the
Lender and not repaid by the Borrower with interest from the date hereof on the
principal amount hereof from time to time advanced and unpaid at the Stated Rate
(as such term is hereinafter defined), payable monthly in arrears at the
Applicable Rate (as hereinafter defined) in the following manner: commencing on
April 1, 1999, interest at the Applicable Rate on the then outstanding principal
amount hereof which has accrued as of the last day of the prior calendar month
shall be due and payable on the first business day of each calendar month;
except that in all events the entire unpaid principal balance, interest, all
accrued amounts and interest thereon, all charges and any and all other amounts
due under this Note and all other Loan Documents (as such term is hereinafter
defined) are to be paid in full on the Maturity Date (as such term is
hereinafter defined).
The term "Applicable Rate" shall mean the Stated Rate except for any
Deferral Period (as hereinafter defined) when it shall mean the Deferral Rate.
The term "Deferral Rate" shall mean the lesser of (i) a rate equal to
nine percent (9%) or (ii) the maximum rate of interest then permitted by law.
The term "Stated Rate" shall mean the lesser of (i) a rate equal to
twelve percent (12%) per annum or (ii) the maximum rate of interest then
permitted by law.
The term "Maturity Date" shall mean the date which is five (5) years
from the date on which the Lender first advances any portion of the principal
amount of the loan evidenced hereby to or on behalf of the Borrower. The
Borrower and the Lender each agree upon the request of the other to memorialize
in a written agreement the exact calendar date of the Maturity Date following
such first advance of the loan evidenced hereby.
The term "Loan Documents" shall mean that certain (i) Loan Agreement
dated as of the date hereof between the Lender and the Borrower as from time to
time amended and in effect (the "Loan Agreement"), (ii) this Note as from time
to time amended and in effect and (iii) the other Loan Documents defined as such
in the Loan Agreement.
The term "Deferral Period" shall mean any period commencing on the first
day of any calendar month and ending on a date no later than two years after the
date of the last advance of the loan evidenced by this Note provided that the
Borrower has sent (a) a written notice to the Lender (as hereinafter provided)
requesting a partial deferral of interest on this Note equal to three percent
(3%) and (b) furnished the Lender with financial projections of the Borrower
reasonably demonstrating that such deferral is needed because of expected
shortfalls in gross income from operations and debt service reserves. For such
deferral notice to be effective (i) it must be received by the Lender at least
ten (10) days in advance of the date on which the Deferral Period is to
commence, (ii) it must specify the requested length of the deferral and (iii)
the Lender must agree that such deferral is reasonably needed, which agreement
shall not be unreasonably withheld. During any Deferral Period the deferred
interest of three percent (3%) which is not paid currently shall accrue and be
added to the principal balance due hereunder until paid. The portion of the
principal balance hereof representing accrued and unpaid interest which has been
deferred shall itself bear interest at the Stated Rate and such amount of
interest on interest shall be accrued and compounded monthly and added to the
principal balance hereof until paid.
No prepayments are permitted hereunder except as follows: The principal
balance from time to time outstanding hereunder together with all accrued
interest and other charges and other amounts due hereunder may be prepaid (i) in
full (but not in part) or (ii) in part if such prepayment is made in accordance
with Sections 4.3 or 4.4 of the Loan Agreement, in each case, on any installment
payment date hereunder after at least 60 (sixty) days prior written notice from
the Borrower to the Lender notifying the Lender of the Borrower's intention to
prepay and including in such notice the expected amount and date of such
prepayment. In the event of any voluntary or involuntary prepayment of all or
any portion of the loan evidenced by this Note (for any reason, including
prepayment as the result of an acceleration of the loan evidenced by the Note)
whether or not the loan evidenced by this Note is then permitted to be prepaid,
a Prepayment Fee (as hereinafter defined) will be due and payable. Except as
expressly provided in the penultimately preceding sentence and in the second
paragraph following this paragraph,
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the Borrower has no right to prepay the loan evidenced by this Note. The
Borrower hereby expressly agrees that the Prepayment Fee constitutes additional
bargained for consideration given by the Borrower to the Lender in order to
induce the Lender to extend to the Borrower the loan evidenced by this Note.
If the Borrower provides notice to the Lender of its intention to prepay
all or a portion of the loan evidenced hereby as provided in the immediately
preceding paragraph and thereafter revokes or withdraws such notice then any
prepayment obligation shall be rescinded and the Borrower shall pay to the
Lender a revocation fee equal to three percent (3%) of the amount specified to
be prepaid in the notice letter regarding such prepayment from the Borrower to
the Lender.
Notwithstanding anything to the contrary set forth in the two
immediately preceding paragraphs, (i) prepayments of any principal outstanding
hereunder as a result of the payment of insurance proceeds or eminent domain
awards used to repay the Lender, provided in each instance there then exists no
Event of Default and (ii) prepayments from increased equity contribution
pursuant to Section 4.4 of the Loan Agreement, may be made at any time without a
Prepayment Fee.
The term "Prepayment Amount" is the amount of principal to be prepaid in
connection with any prepayment as set forth in the prepayment notice from the
Borrower or, in the event of an involuntary prepayment for which such notice was
not given, the amount of principal actually being prepaid.
The term "Prepayment Fee" shall mean a fee calculated as follows: take
(a) an amount equal to interest at the Stated Rate on the Prepayment Amount for
24 months and subtract from such amount (b) an amount equal to the Paid
Interest. If such calculation results in a negative number the Prepayment Fee is
equal to zero.
The term "Paid Interest" shall mean for any Prepayment Amount (i) if the
prepayment is a prepayment in full of the loan evidenced by this Note an amount
equal to all interest paid on amounts advanced under this Note, from the date
hereof through the date the Prepayment Amount is paid to the Lender and (ii) if
the prepayment is a partial prepayment being made from Net Asset Sale Proceeds
(as defined in the Loan Agreement), an amount equal to all interest paid on
amounts advanced under this Note with respect to the applicable Tranche (as
defined in the Loan Agreement) from the date of the first advance of such
Tranche through the date the Prepayment Amount is paid to the Lender.
All payments hereunder shall be payable in lawful money of the United
States which shall be legal tender for public and private debts at the time of
payment. Interest shall be calculated on a daily basis using an actual 360 day
year. All payments including any prepayments shall be applied first to any costs
and expenses, including reasonable
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attorneys' fees, then to any late charges, then to any fees or other charges,
then to interest due and any balance shall be applied in reduction of principal
including any accrued amounts added thereto.
It is hereby expressly agreed that the occurrence of any one or more of
the following events (each an "Event of Default") shall constitute a default and
breach hereof: (a) any failure to pay any installment of interest or amount of
principal on the date when the same is payable as above expressed and the
continuation of such failure for five (5) days; or (b) any failure to repay all
principal, interest, accrued and other amounts and charges due under this Note
and all other Loan Documents in full on the Maturity Date; or (c) any default or
event of default under and as defined in any of the Loan Documents, after the
expiration of any applicable notice, grace or cure period. If any such Event of
Default shall occur, the Lender may, at its option, declare to be immediately
due and payable the then outstanding principal balance under this Note, with all
accrued and unpaid interest thereon, and all other charges and amounts payable
to the Lender hereunder and under any of the other Loan Documents whereupon all
such amounts shall become and be due and payable immediately. The failure of the
Lender to exercise said option to accelerate shall not constitute a waiver of
the right to exercise the same at any other time.
The Borrower agrees that all expenditures by the Lender that the
Borrower is obligated to pay under any of the Loan Documents, other than
advances of principal, which are not reimbursed by the Borrower immediately upon
demand, all amounts due under any of the Loan Documents after maturity, and any
amounts due under any of the Loan Documents after the occurrence of an Event a
Default (as defined in the Loan Agreement) from the date fifteen (15) days after
the sooner of (x) the date any such amount is due or (y) the date of any such
Event of Default, shall bear interest at the maximum rate of interest then
permitted by law or twenty-one percent (21%), whichever shall be less, until
all such expenditures are repaid or this Note and such amounts as are due are
paid to the Lender. In addition, the Lender hereof may collect a "late charge"
to cover the extra expense involved in handling delinquent payments which shall
not exceed the lesser of (i) an amount equal to five percent (5%) of any amount
or installment which is not paid within five (5) days of the due date thereof,
or (ii) the maximum rate of interest then permitted by law.
This Note may not be waived, changed or discharged orally, but only by
an agreement in writing and, with respect to waivers or discharges, signed by
the Lender and, with respect to other changes, signed by the Borrower and the
Lender and any oral waiver, change or discharge of any term or provision of this
Note shall be without authority and of no force or effect.
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All of the provisions of this Note shall be binding upon the Borrower
and its successors and assigns and shall inure to the benefit of the Lender and,
provided the registration requirement in Section 10.2.5 of the Loan Agreement
has been satisfied, to the successors and assigns of the Lender. This Note shall
be interpreted in accordance with and governed by the laws of The Commonwealth
of Massachusetts.
The Borrower hereby consents to any extension of time of payment hereof
or compromise with or release of any party liable for this obligation and waives
presentment for payment, demand, protest and notice of dishonor. Any such
extension or release may be made without notice to the Borrower and without
discharging its liability.
All notices or other communications required or permitted to be given
hereunder shall be in writing and delivered by hand or mailed, postage prepaid,
by registered or certified mail, return receipt requested or by a nationally
recognized overnight courier for delivery the next Business Day (as defined in
the Loan Agreement). Notices shall be deemed given (a) when delivered if
delivered by hand, (b) three (3) Business Days after mailing by registered or
certified mail or (c) the next Business Day following deposit with a nationally
recognized overnight courier. All notices shall be addressed:
If to the Borrower, to:
Candlewood Hotel Company, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇
With a copy to:
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
Sears Tower, Suite ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
If to the Lender, to:
Boston Capital Institutional Advisors LLC
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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with a copy to:
Ropes & Gray
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇, Esq.
with an additional copy to:
Massachusetts Mutual Life Insurance Company
Real Estate Finance Group
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Any party may from time to time change its address by providing notice to the
other parties in accordance with the requirements of this paragraph.
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IN WITNESS WHEREOF, this instrument has been executed and delivered by
the undersigned, under seal, by a person or persons thereunto duly authorized,
on the day and year first written above.
Witness: CANDLEWOOD HOTEL COMPANY FUND I, LLC
/s/ [Signature Illegible] By: /s/ ▇▇▇▇▇▇ ▇. FIX
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇
Title: Authorized Signatory