EXHIBIT 10.I.
LOAN AGREEMENT
This Loan Agreement ("Agreement") is entered into as of the 21 day of
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July 1994 between Marriott International Capital Corporation ("MICC") with
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offices at 00000 Xxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000 and Lauderdale Beach
Association, c/o Hotel Properties Management, Inc., 00000 Xxxxxxxx Xxxx,
Xxxxxxxx, Xxxxxxxx 00000 ("LBA").
W I T N E S S E T H
WHEREAS, LBA is the owner of the Marriott's Harbor Beach Resort located at
0000 Xxxxxxx Xxxxx, Xx. Xxxxxxxxxx, Xxxxxxx 00000 ("Hotel"); and
WHEREAS, Marriott Hotel Services, Inc. ("MHSI") leases the Hotel from LBA
pursuant to a Lease Agreement dated October 26, 1984 (the "Lease"); and
WHEREAS, LBA has agreed pursuant to such Lease to make certain capital
expenditures currently estimated to cost Four Million Six Hundred Fifty Thousand
Dollars ($4,650,000); and
WHEREAS, there is not sufficient monies in the Repairs and Equipment
Reserve (as defined in the Lease) to pay for such capital expenditures;
WHEREAS, LBA wishes to borrow from MICC and MICC is willing to lend to LBA
the amount needed to complete the capital expenditures in excess of the amount
in the Repairs and Equipment Reserve.
NOW THEREFORE, for good and valuable consideration, the sufficiency of
which is agreed, the parties agree as follows:
SECTION 1. RENOVATION LOAN
1.1 Making of Loan
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Subject to the terms and conditions hereof, MICC agrees to lend to LBA up
to Two Million Eight Hundred Thousand Dollars ($2,800,000) (the "Loan Amount")
in periodic Disbursements ("Disbursements") during the period commencing with
the date herewith and ending December 30, 1994 for the sole purpose of
renovating the Hotel pursuant to the project scope set forth in Exhibit A (the
"Renovation").
The Loan shall be evidenced by a promissory note in the form of Exhibit B
attached hereto (the "Note").
1.2 Time and Manner of Disbursements
--------------------------------
Commencing upon execution of this Agreement, LBA shall request each
Disbursement of the Loan by giving MICC a written notice ("Disbursement
Request") stating: (i) the amount of the requested Disbursement; (ii) that all
previous Disbursements have been completely used to pay for work or materials
relating to the Renovation; (iii) the purpose to which such Disbursement will be
applied, along with the name of the person, or entity to whom such payment is
due, and a copy of the invoices the Disbursement will be used to pay
(notwithstanding the foregoing, if invoices have not been received by December
30, 1994 for work completed relating to the Renovation prior to such time,
instead of such invoices, LBA shall submit a purchase order or contract and the
estimated amount needed to pay for the anticipated invoices, further the
representation required in subparagraph (vi) shall be a representation that no
lien will be placed on the Hotel for failure to make payment for the work
relating to the requested Disbursement); (iv) that each of the conditions set
forth in Section 3 are true and correct; (v) that there is sufficient money left
in the Loan Amount to complete the Renovation; and (vi) that the applicable
material and mechanics lien waivers have been obtained. LBA shall apply all
Disbursements to pay costs incurred for the Renovation and for no other purpose.
MICC shall use reasonable efforts to make a Disbursement within ten (10) days
after receiving a Disbursement Request.
1.3 Repayment of the Loan
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1.3.1 Commencing on January 27, 1995, which is the last day of MHSI's
first accounting period of its 1995 Fiscal Year and on the last day of each MHSI
Accounting Period thereafter, LBA shall repay to MICC the principal sum of Two
Million Eight Hundred Thousand Dollars ($2,800,000) or such lesser amount as
may be disbursed hereunder, together with interest on such principal from the
date of Disbursement in equal payments of principal and interest at a rate of
eight percent (8%) per annum based upon a five year amortization schedule (each
"Scheduled Payment"). The last payment shall be due on December 31, 1999. In the
event the Note is not paid in full on or before December 31, 1999, or LBA fails
to make a Scheduled Payment, interest on any unpaid principal or interest shall
accrue and be paid thereafter at the rate of twelve percent (12%) per annum
during such period of default. If MHSI's Fiscal Year is changed in the future,
appropriate adjustment to the payment schedule shall be made; provided, however,
that no such change or adjustment shall increase or decrease the total amount of
principal and interest owing MICC.
1.3.2 Notwithstanding anything in the Lease to the contrary, the
amount of principal and interest paid hereunder will be added to the Performance
Rental (as defined in the Lease) until January 1, 2000 after which time the
Performance Rental will revert to the amount that existed prior to any
Disbursement notwithstanding any prepayment of the Loan.
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1.3.3 "CATS Costs" as used herein shall mean the costs to Hotel for
computer payroll and accounting services, national advertising allocations,
central training and management development and national sales allocation which
are charged to Chain Services (as defined in the Lease). If in any of MHSI's
Fiscal Years 1994 through 1999, CATS Costs charged to the Hotel for such year
exceed 2.25% of the Gross Revenues (as defined in the Lease), the amount of such
charges in excess of 2.25% shall be either: (i) deducted from the next Scheduled
Payment(s) beginning with the first Scheduled Payment of the next Fiscal Year,
or (ii) if there are no Scheduled Payments left pursuant to this Agreement, MICC
shall remit to LBA such excess amount by the last day of MICC's first accounting
period of the next Fiscal Year.
1.4 Prepayment of Loan
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LBA may at anytime prepay the Loan and the Note, in whole or in part,
without premium provided that each prepayment shall be accompanied by payment of
the accrued interest on the amount so prepaid.
1.5 Taxes
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All sums payable by LBA under this Agreement or the Note, whether on
account of principal, interest, fees, expenses or otherwise, shall be paid in
full, free of any deductions or withholdings for any and all present and future
taxes (other than MICC's income taxes), levies, fees, deductions, charges,
withholdings, and all liability with respect thereto (herein collectively
referred to as "Taxes"). In the event that LBA is required by law to make such
deductions or withholdings, then LBA shall pay such additional amounts as may be
necessary in order that the net amount received by MICC after such deductions or
withholdings and after payment of any Taxes on such additional amounts, shall
equal the full amount stated to be payable hereunder.
1.6 Waiver of Set-Off or Counter Claim
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LBA hereby waives any and all rights to set-off or counter claims which it
may have with respect to any amount due to MICC hereunder. In particular, LBA
shall not withhold payment of any amounts due to MICC under this Agreement or
the Note on the grounds that it has or purports to have a claim, right of action
against Marriott International, Inc., Marriott Hotel Services, Inc. or any of
their affiliates.
SECTION 2. WARRANTIES AND REPRESENTATIONS
2.1 Organization and Authority
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LBA and each of its general partners, jointly and severally warrants and
represents to MICC that:
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(1) LBA is a partnership duly organized, validly existing and in good
standing under the laws of the state of Florida,
(2) LBA has all requisite power and authority to own the Hotel and to
carry on its business as now conducted and as presently proposed to be
conducted, and
(3) each has all requisite power, authority and legal right to enter
into, consummate and perform this Agreement and Note. The execution, delivery
and performance by it of this Agreement and the Note, have been duly authorized
by all required partnership action and this Agreement and the Note constitute
the legal, valid and binding obligations of it, enforceable according with its
terms.
2.2 Pending Litigation
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LBA and each of its partners, jointly and severally, represents and
warrants that to the best of its actual knowledge, after due inquiry, there are
no proceedings pending or threatened against or involving LBA, in any court or
before any governmental authority which involve more than a remote possibility
of materially and adversely affecting the business or financial condition of
LBA, or the ability of LBA to perform in all material respects this Agreement.
LBA is not in default with respect to any material order of any court or
governmental authority.
2.3 Transaction are Legal and Authorized
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LBA and each of its partners, jointly and severally, represents and
warrants that the making of the Loan and compliance by LBA with all of the
provisions of this Agreement:
(1) are within the powers of LBA, and
(2) are legal and will not conflict with nor result in any breach in any of
the provisions of, or constitute a default under, or result in the creation of
any lien upon any property of LBA, under the provisions of any agreement or
other instrument to which LBA is a party or by which LBA may be bound including,
but not limited to, any existing loans and the partnership agreement.
2.4 No Defaults
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LBA and each of its partners, jointly and severally, represents and
warrants that no event has occurred and no condition exists which, upon the
making of the Loan, would constitute an Event of Default (as defined
hereinafter) or with the lapse of time or the giving of notice or both would
become an Event of Default. LBA is not in default in any material respect under
any agreement, charter instrument, by-law or other instrument to which it is a
party or by which it may be bound.
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2.5 Governmental Consent
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LBA and each of its partners, jointly and severally, represents and
warrants that no circumstances in connection with the making of the Loan
requires a consent, approval or authorization of, or filing, registration or
qualification with, any governmental authority on the part of LBA or any of its
partners in connection with the execution and delivery of this Agreement or the
making of the Loan.
2.6 Use of Disbursements
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LBA and each of its partners, jointly and severally, represent and warrant
that the Disbursements will be used solely for the Renovation.
SECTION 3. CONDITIONS PRECEDENT TO DISBURSEMENTS
Unless MICC otherwise agrees in writing, the obligations of MICC to make
each Disbursement of the Loan is subject to the prior fulfillment to MICC's
satisfaction, in its sole discretion, of the following conditions precedent:
3.1 Warranties and Representations
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The warranties and representations contained in Section 2 shall be true in
all material respects on each date a Disbursement is made with the same effect
as though made on and as of that date.
3.2 Compliance with the Agreement
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LBA shall have performed and complied with all agreements and conditions
contained herein which are required to be performed or complied with by LBA
before each Disbursement.
3.3 Proceedings Satisfactory
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All proceedings taken in connection with the making of the Loan and all
documents and papers relating thereto shall be reasonably satisfactory to MICC,
and MICC shall have received copies of such documents and papers as it may
reasonably request in connection therewith, all in form and substance
satisfactory to MICC.
3.4 Lease
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The Lease shall be in full force and effect.
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3.5 No Waiver
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No Disbursement shall constitute a waiver of any condition precedent to the
obligation of MICC to make any further Disbursement or preclude MICC from
thereafter declaring the failure of LBA to satisfy any conditions precedent to
be in default or an Event of Default.
3.6 Renovation Completion
---------------------
If the funds available hereunder plus the amount in the Repairs and
Equipment Reserve are not sufficient to complete the Renovations, LBA shall make
available from other sources including amounts due or to be due to LBA under the
Lease, all funds necessary to complete the Renovations.
3.7 Project Manager
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LBA shall have entered into a project management agreement with Xxxx
Properties, Inc. reasonably satisfactory to MHSI for managing the Renovation
Project and no default exists under such contract.
SECTION 4. BUSINESS COVENANTS
4.1 Taxes, etc.
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LBA will pay, before they become delinquent,
(1) all taxes, assessments and governmental charges or levies imposed upon
it or the Hotel, and
(2) all claims or demands of materialmen, mechanics, carriers,
warehousemen, landlords and other like persons which, if unpaid, might result in
the creation of a lien upon the Hotel, provided that none of the foregoing need
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be paid while being contested in good faith so long as LBA's title to, and its
right to use, its property is not materially adversely affected thereby.
4.2 Maintenance of Property, etc.
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LBA will:
(a) maintain the Hotel in good condition (ordinary wear and tear excepted)
and make all necessary renewals, replacements, additions, betterments and
improvements thereto as provided in Article VIII of the Lease;
(b) maintain, with financially sound and reputable insurers, insurance with
respect to the Hotel against such casualties and contingencies, of such types
and in such amounts as
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MICC may reasonably request. For purposes of this Section 4.2, compliance by LBA
with the insurance provisions of the Lease shall be deemed to be in compliance
with the insurance provisions of this Agreement.
4.3 Nature of Business
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LBA will not engage in any business if, as a result, the general nature of
the business which would then be engaged in by LBA would be substantially
changed from the general nature of the business engaged in by LBA on the date of
this Agreement.
4.4 Sale of Property in the Loan Agreement
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In the event LBA sells the Hotel to a bona fide purchaser (for the purpose
of this Loan Agreement, a "bona fide purchaser" shall be a third party in which
neither LBA nor its partners shall have an equity or any other interest
whatsoever), all accrued interest and principal hereunder shall be immediately
due and payable.
4.5 Liens and Encumbrances
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4.5.1 LBA will not cause or permit the Hotel to be subject to a
lien or other encumbrance, provided that the foregoing restrictions do not apply
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to:
(a) liens securing taxes, assessments or governmental charges or
levies provided the payment thereof is not at the time required by Section 4.1,
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(b) easements, rights-of-way, zoning or other land use
restrictions, leases and other similar encumbrances affecting real property
provided they do not interfere with the ordinary conduct of LBA's business,
(c) liens in favor of MICC, MHSI, Marriott International or any
of its subsidiaries,
(d) liens existing on the date of this Agreement or liens
relating to the primary loan on the Hotel; however if the primary loan is
refinanced and there are loan proceeds in excess of that necessary to pay for
the cost of the refinancing, such excess proceeds shall be used to pay off or
pay down the Loan.
4.5.2 In case the Hotel is subjected to a lien or other
encumbrance in violation of this Section, LBA will make or cause to be made
effective provision whereby the Loan shall be secured equally and ratably with
all other obligations secured thereby (such violation to constitute a default
hereunder whether or not such provision is made), and, if such provision is not
made, an equitable lien, so equally and ratably securing the Loan, shall exist
on such property.
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SECTION 5. EVENTS OF DEFAULT
5.1 Nature of Events
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An "Event of Default" shall exist if any of the following occurs and
is continuing:
(1) LBA fails to make any payment of principal or of interest on the
Loan or Note when and as the same shall be due and payable whether at maturity,
or acceleration or otherwise.
(2) LBA or one of its partners, jointly or severally fails to perform
or observe any covenant contained in Section 4 or any of the representations and
warranties contained herein are not true and accurate and such failure continues
for more than seven (7) days after LBA has received notice of such failure.
(3) LBA or an Affiliate fails to comply in all material respects with
any other provision of this Agreement, and such failure continues for more than
seven (7) days after LBA has received written notice of such failure.
(4) Any material warranty or representation made by or on behalf of
LBA contained in this Agreement or in any instrument furnished in compliance
with this Agreement was false in any material respect on the date of this
Agreement.
5.2 Default Remedies
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If an Event of Default exists, MICC or other holder of the Note may
exercise any right, power or remedy permitted to it by law, and shall have, in
particular, without limiting the generality of the foregoing, the right to
declare the entire principal and all interest accrued on the Note to be, and the
Note shall thereupon become, forthwith due and payable, without any presentment,
demand, protest or other notice of any kind, all of which are hereby expressly
waived. Upon notice of acceleration by MICC, LBA will forthwith pay to MICC or
other holder of the Note the entire principal and interest accrued on the Note.
No course of dealing on the part of MICC or other holder of the Note nor action
or inaction under any contract nor any delay or failure on the part of MICC or
other holder of the Note to exercise any right shall operate as a waiver of such
right or otherwise prejudice such holder's rights, powers and remedies. LBA
shall have no right of offset in the payments due hereunder. If LBA fails to pay
when due the principal or interest on the Note, LBA will pay to MICC or other
holder of the Note, to the extent permitted by law, such further amount as shall
be sufficient to cover the costs and expenses of collection, including but not
limited to, reasonable attorney's fees.
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5.3 Remedies Cumulative
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Each and every right, power and remedy given to MICC in this Agreement
shall be cumulative and shall be in addition to every other right, power and
remedy herein or therein given now or hereafter existing at law, in equity, by
statue or otherwise. Each and every right, power and remedy, whether given
therein or otherwise existing, may be exercised from time to time as often and
in such order as may be determined by MICC, and the exercise or the beginning of
the exercise of any right, power or remedy shall not be construed to be a waiver
of the right to exercise at the same time or thereafter any other right, power
or remedy. No delay or omission by MICC in the exercise of any right, power or
remedy shall impair any such right, power or remedy or be construed to be a
waiver of or acquiescence in any default therein; not shall the acceptance of
any security or of any payment of or on account of the Loan, the Note,
obligations, expenses, interest or fees maturing after a default or of any
payment on account of any past default be construed to be a waiver of any right
to take advantage of any future Event of Default or of any past Event of Default
not completely cured thereby.
SECTION 6. INTERPRETATION OF THIS AGREEMENT
6.1 Directly or Indirectly
----------------------
Where any provision in this Agreement refers to action to be taken by any
person, or which such person is prohibited from taking, such provision shall be
applicable whether the action in question is taken directly or indirectly by
such person.
SECTION 7. MISCELLANEOUS
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7.1 Notices
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(a) All communications under this Agreement shall be in writing,
(1) if to MICC:
Marriott International Capital Corporation
00000 Xxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attn: Treasury Department
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with a copy to:
Marriott International, Inc.
00000 Xxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attn: General Counsel
(2) if to LBA:
Lauderdale Beach Association
c/o Marriott Hotel Properties Limited Partnership
00000 Xxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attn: Host Marriott Law Department, #72.923
Marriott Hotel Properties Limited Partnership
c/o Host Marriott Corporation
00000 Xxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attn: Partnership Accounting
Xxxx Harbor, Inc.
c/o Xxxx X. Xxxxxxxx
0000 Xxxx Xxxxxxx Xxxxxxxxx, Xxxxx 000
Ft. Xxxxxxxxxx, Xxxxxxx 00000
or at such other address as any party may have furnished to the other in
writing.
(b) Notices shall be personally delivered, mailed by registered or
certified U.S Mail, or delivered by Federal Express or similar expedited
delivery service. All notices and other communications shall be deemed to have
been duly received on (i) the date of delivery if delivered personally or (ii)
the date of receipt if sent by mail, whichever shall first occur.
7.2 Survival
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All warranties, representations, and covenants made by LBA herein or on any
certificate or other instrument delivered by it or on its behalf pursuant to
this Agreement shall be considered to have been relied upon by MICC. Upon
repayment of the Loan, all representation, warranties, covenants, agreements,
obligations and liabilities of LBA under this Agreement shall terminate and be
extinguished.
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7.3 Successors and Assigns
----------------------
This Agreement shall inure to the benefit of and be binding upon the
successors and assigns of each of the parties. The rights and obligations of LBA
hereunder shall not be assignable without the written consent of MICC which
consent may be withheld or denied in the sole discretion of MICC, except as to a
sale as provided in Section 4.4 above. MICC may at anytime assign or otherwise
transfer any portion of its rights and obligations hereunder and under the Note.
LBA shall from time to time and at the request of Lender, execute and deliver
such documents as may be necessary to give full force and effect to such
assignment or transfer. Upon such assignment or transfer, (x) the assignee shall
be deemed automatically to have become a party hereto and, to the extent that
rights and obligations hereunder have been assigned and delegated, such assignee
shall have the rights of MICC hereunder and under the other instruments and
documents executed in connection herewith, and (y) Lender, to the extent that
rights and obligations hereunder have been assigned and delegated by it, shall
released from its obligations hereunder.
7.4 Amendment and Waiver
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This Agreement may be amended, and the observance of any term of this
Agreement may be waived, with (and only with) the written consent of LBA and
MICC.
7.5 Governing Law
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This Loan Agreement and the rights and obligations of the parties hereunder
shall be governed by and construed in accordance with the laws of the State of
Maryland (without giving effect to Maryland principles of conflicts of law). LBA
irrevocably submits to the nonexclusive jurisdiction of any Maryland State or
Federal Court sitting in Maryland over any suit, action or proceeding arising
out of or relating to this Agreement.
7.6 Duplicate Originals
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Two or more duplicate originals of this Agreement may be signed by the
parties, each of which shall be an original but all of which together shall
constitute one and the same instrument.
7.7 Limitation of Liability
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Notwithstanding anything to the contrary contained herein, LBA shall not
have any liability hereunder exceeding its interest in the Hotel. Any
enforcement of any judgement against LBA shall be limited to LBA's interest in
the Hotel.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first set forth above.
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MARRIOTT INTERNATIONAL CAPITAL CORPORATION
By: XXXXXX
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Vice President
LAUDERDALE BEACH ASSOCIATION
By: Marriott Hotel Properties Limited Partnership,
as General Partner
By: Hotel Properties Management, Inc.
By: XXXXXXXX
---------------------------------
President
By: R/V-C Association
as General Partner
By: R/V Associates
By: Xxxx Harbor, Ltd.
By: Xxxx Harbor, Inc.
By: /s/ Xxxx X. Xxxxxxxx
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EXHIBIT A
INDEX
A. Memorandum re: Harbor Beach Typical Rooms Renovation - YH03 Scope of Work
dated October 4, 1993.
B. Memorandum re: Xxxxxxxx Xxxxxx Xxxxx - Xxxxxx Xxxxxxxxxx - XX00 Xxxxx of
Work dated October 4, 1993.
C. Memorandum re: Reduction in Scope of Harbor Beach Rooms and Suite Redo
dated January 4, 1994.
D. Suites Renovation Budget Sheet dated July 20, 1994.
E. Memorandum re: Marriott's Harbor Beach Resort Rooms Redo (Cost
Reconciliation) dated June 8, 1994.
F. Rooms Renovation Budget Revision #5 dated July 15, 1994.
PROMISSORY NOTE
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For value received, LAUDERDALE BEACH ASSOCIATION, a Florida partnership,
with an office c/o Hotel Properties Management, Inc., 00000 Xxxxxxxx Xxxx,
Xxxxxxxx, Xxxxxxxx 00000 (hereinafter referred to as the "Undersigned"), hereby
unconditionally promises to pay to the order of MARRIOTT INTERNATIONAL CAPITAL
CORPORATION, a Delaware Corporation, (hereinafter referred to as "MICC" or,
along with any other holder hereof, as "Holder"), at 00000 Xxxxxxxx Xxxx,
Xxxxxxxx, Xxxxxxxx 00000, or at such other place as Holder may from time to time
designate in writing, such amounts as are disbursed to Undersigned pursuant to
that certain Loan Agreement between Undersigned and MICC dated as of the date
hereof ("Loan Agreement") up to an amount not to exceed Two Million Eight
Hundred Thousand Dollars ($2,800,000) plus interest on the unpaid balance from
time to time outstanding until the date the debt is repaid, at the rate of eight
percent (8%) per annum, in accordance with the terms set forth below:
1. Commencing on January 27, 1995, which is the last day of Marriott
Hotel Services, Inc.'s ("MHSI") First Accounting Period of its 1995 Fiscal Year,
and on the last day of each MHSI Accounting Period thereafter, payments of
principal and interest shall be due in equal amounts based upon a five year
amortization schedule. The last payment shall be due December 31, 1999 (the
"Maturity Date"), by which date the debt must be paid in full. A portion or all
of one or more payments may be offset by amounts owed by MICC to Undersigned
pursuant to Section 1.3.3 of the Loan Agreement. If MHSI's Fiscal Year is
changed in the future, appropriate adjustments to the payment schedule shall be
made; provided, however, that no such change or adjustment shall increase or
decrease the total amount of principal and interest owing MICC.
2. All payments received hereunder shall be applied first to accrued
interest and the balance, if any, to principal. All payments hereunder shall be
payable to the order of Holder at 00000 Xxxxxxxx Xxxx, Department 924.11
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Xxxxxxxx, Xxxxxxxx 00000, Attention: Xxxxx Best , or at such place and to such
------------
person as shall be designated in writing from time to time by Holder.
3. The Undersigned reserves the privilege of prepaying, at anytime and
from time to time, all or any portion of the principal balance of this Note,
together with accrued interest thereon to the date of payment without premium
or penalty.
4. If any payment of principal and/or interest is not paid within two (2)
days after its due date, the Undersigned agrees to pay to Holder interest on any
unpaid principal or
interest to be paid thereafter at the rate of twelve percent (12%) per annum
until the default is corrected.
5. This Note is the Note referred to in the Loan Agreement and is
entitled to the benefits thereof. All capitalized terms used in the Note which
are not defined herein shall have the meanings ascribed to them in the Loan
Agreement.
6. This Note is given as evidence, and not in satisfaction, of the
Undersigned's indebtedness to the Holder as described in this Note, and the
Undersigned does not contest its obligation to pay to the Holder the principal
amount hereof, subject to the payment and other provisions of this Note.
7. Time is of the essence hereunder and, in case this Note is collected
by Law or through an attorney at law, or under advice therefrom, the Undersigned
agrees to pay all costs of collection, including reasonable attorneys' fees and
costs incident to any court action relating to an assessment of such attorneys'
fees and costs.
8. In no event shall the amount of interest due and 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 Holder, then such excess sum shall be credited as a payment of
principal, unless the Undersigned elects to have such excess sum returned to it
forthwith. It is the express intent hereof that the Undersigned 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 Undersigned under applicable
law.
9. The Undersigned waives presentment, demand for payment, notice of
dishonor, diligence in collection,and all other demands and notices in
connection with the delivery, acceptance, performance, default or enforcement of
this Note, and all defenses to a collection action which may be waived pursuant
to applicable law.
10. At the option of MICC, this Note shall become immediately due and
payable, subject to any notice and cure provisions that may be set forth in the
Loan Agreements or this Note, in the event any of the following shall occur: (i)
if LBA fails to make any payment hereunder when such payment is due and
payable; (ii) if LBA fails to observe or perform any obligation to be observed
or performed by LBA under this Note or the Loan Agreement; (iii) if there shall
exist any other default under this Note or the Loan Agreement; or (iv) the Lease
between LBA and Marriott Hotel Services, Inc. dated October 26, 1984 is
terminated for any reason whatsoever.
The failure of Holder to exercise its option to accelerate this Note as
provided above, or to exercise any other option or remedy granted to it
hereunder or under the Loan Agreement, shall not constitute a waiver of any
default by LBA and all such options and remedies shall remain continually in
force.
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11. This Note shall be fully negotiable to the extent permitted by
applicable law.
12. The Undersigned expressly agrees that this Note or any payment
hereunder may be extended from time to time without affecting its liability.
13. The provisions of this Note are severable and the finding by a court
of competent jurisdiction that any provision hereof is illegal or unenforceable
shall not affect the validity of the remaining provisions hereof.
14. The unpaid indebtedness and accrued interest described in this Note
shall be due and payable upon the sale of the Hotel property to any third party
purchaser.
15. Notwithstanding anything to the contrary contained herein, LBA shall
not have any liability hereunder exceeding its interest in Hotel. Any
enforcement of any judgement against LBA shall be limited to LBA's interest in
the Marriott's Harbour Beach Resort.
16. This Note shall be governed as to validity, interpretation,
construction, effect, and in all other respects by the laws of Maryland. LBA
submits to nonexclusive jurisdiction of any Maryland court or Federal court
sitting in Maryland over any suit, action, or proceeding arising out of or
relating to this Note.
IN WITNESS WHEREOF, the Undersigned has executed this Promissory Note as of
the 21 day of July , 1994.
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LAUDERDALE BEACH ASSOCIATION
By: Marriott Hotel Properties Limited Partnership,
as General Partner
By: Hotel Properties Management, Inc.
By: XXXXXXXXXXXXXXXXXXXX
-----------------------------
President
By: R/V-C Association
as General Partner
By: R/V Associates
By: Xxxx Harbor, Ltd.
By: Xxxx Harbor, Inc.
By: /s/ Xxxx X. Xxxxxxxx
------------------------
3
