FIRST AMENDMENT (SEASIDE) TO
AMENDED AND RESTATED LOAN AGREEMENT
THIS FIRST AMENDMENT (SEASIDE) TO AMENDED AND
RESTATED LOAN AGREEMENT (this "First Amendment"),
dated as of the 30th day of May, 1997, modifies
and
amends that certain AMENDED AND RESTATED LOAN
AGREEMENT dated as of September 26, 1996 (the
"Loan
Agreement") between
Credit Lyonnais New York Branch, a branch duly
licensed
under the laws of the State of New York, of Credit
Lyonnais, S.A., a banking corporation organized
and
existing under the laws of the Republic of France
("CLNY"), Xxxxxxx Bank, N.A., a national banking
association, formerly known as Xxxxxxx Bank of Xxx
County, N.A. ("Xxxxxxx") and FINOVA Capital
Corporation, a Delaware corporation formerly known
as
Greyhound Financial Corporation ("lINOVA") (each
of
CLNY, Xxxxxxx and FINOVA, or their respective
successors and assigns, is individually referred
to as
a "Participant", and are collectively referred to
as
the "Lender"; use of such term hereinafter shall
include all Participants, collectively, and at the
same
time, each Participant individually), CLNY as
administrative agent for Lender (in such capacity,
CLNY
or any successor to, or assignee of, CLNY,
hereinafter
referred to as "Administrative Agent"), and CLNY
as
collateral agent for Lender (in such capacity,
CLNY- or
any successor to, or assignee of, CLNY,
hereinafter
referred to as "Collateral Agent"; unless the
context
requires reference as Collateral Agent or
Administrative Agent, CLNY or such successor or
assign
shall be hereinafter referred to as"Agent")
and
South Seas Resort Limited Partnership, an Ohio
limited
partnership ("SSRLP"), South Seas Properties
Company
Limited Partnership, an Ohio limited partnership
("SSPC'') (formerly known as Captiva Resort
Company
Limited Partnership), Marco SSP Ltd., a Florida
limited
partnership ("MSSP"), South Seas Resorts Company
Limited Partnership, a Florida limited partnership
("SSRC") and Safety Harbor Management Company,
Ltd., a
Florida limited partnership ("SHMC") (SSPC, SSRLP,
MSSP, SSRC and SHMC, collectively, the "Borrower";
use
of such term hereafter shall include all entities
constituting Borrower, including all general
partners
of partnerships constituting Borrower,
collectively,
and at the same time, each of the entities,
individually).
Capitalized terms used in this First Amendment
shall
have the meanings set forth in the Loan Agreement,
unless otherwise defined herein.
RECITALS:
A. On September 26,1996, Lender and Borrower
entered into the transactions
described in the Loan Agreement and the other Loan
Documents, with respect to
Loans aggregating the original principal amount of
Eighty Million and No/100
Dollars ($80,000,000.00).
B. As of January 1, 1997, SSPC acquired a
32-room hotel known as the Seaside
Inn, located in Xxx County, Florida (hereinafter
defined as the "Seaside Inn")
from Florida Income Fund, L.P., an Iowa limited
partnership. The legal
description of Seaside Inn is more particularly
set forth on "A" attached hereto and
made a part hereof The purchase price for the
Seaside Inn was paid, in part, in the
form of an assumption, by SSPC, of the borrower's
obligations under an existing
loan held by Xxxxxxx, having a principal balance
of $2,491,346.71 as of the date
of this First Amendment (such loan, the "Existing
Seaside Loan"). The Existing
Seaside Loan is secured by a first mortgage on the
Seaside Inn (the "Existing
Seaside Mortgage"). In connection with the
acquisition of the Seaside Inn, the
parties to the Loan Agreement executed a Consent
and Waiver, dated as of
January 31, 1997, waiving certain provisions of
the Loan Documents. In addition,
the Management Agreement dated as of January 1,
1995, between Florida Income
Fund, L.P., as "Owner" and SSRC as "Manager" was
assigned by Assignment and
Assumption Agreement dated January 1, 1997, to
reflect the change in ownership
of Seaside Inn.
C. Concurrently herewith Lenders have acquired
ownership ofthe Existing Seaside
Loan and increased same to $3,500,000.00 (which
loan, as increased, is hereafter
the "Seaside Loan"), secured by the Existing
Seaside Mortgage, as amended and
restated concurrently herewith (hereafter, the
"Seaside Mortgage") on the real
property and improvements constituting Seaside
Inn. The proceeds of the Seaside
Loan will be used in part by Lenders to take
assignment of Xxxxxxx'x interest in the
Existing Seaside Loan. Borrower acknowledges that,
pursuant to the terms of the
Loan Documents, other collateral (collectively,
the "Seaside Collateral")
associated with Seaside Inn and previously pledged
to Xxxxxxx under the Existing
Seaside Loan automatically became subject to the
security interest of Lender under
the Loans when SSPC, as one of the entities
comprising Borrower, obtained rights
in Seaside Inn.
D. Lender and Borrower desire to clarify
certain provisions in the Loan
Documents, including a reference to Borrower in
exculpatory provisions in the
Loan Agreement, the Notes and the Mortgage, and
provide for an amendment of
the Loan Documents to provide Borrower with the
ability, for a limited period of
time, to have portions of, or all of, the Term
Note accrue interest at an adjusted
Eurodollar rate of interest.
NOW, THEREFORE, for and in consideration of
the above premises and the
mutual covenants and agreements contained herein,
and other good and valuable
consideration, the receipt and adequacy of which
is hereby acknowledged,
Borrower and Lender, intending to be mutually
bound hereby, agree as follows:
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TERMS
1. Incorporation of Recitals: The Recitals set
forth above are true and correct
and are incorporated herein by reference.
2. Principal Balance of the Loans: Borrower
confirms and acknowledges that,
as of April 30, 1997, the principal balance
oftheLoans is $58,169,439.22, and
that such amount is due Lender free and clear of
all claims, demands, setoffs,
defenses or counterclaims.
3. No Default under the Loans: Borrower
represents and warrants that there is no
Default or Event of Default under the Loan
Documents nor any event which, with
notice or the passage of time, or both, would
become an Event of Default.
4. No Default Under Seaside Documents:
Borrower represents and warrants that
there is no default or event of default under the
Existing Seaside Loan or under
any or all of the documents, agreements or
instruments described in the
Assumption and Modification Agreement for the
Seaside Inn (the "Assumption
and Modification Agreement") between SSPC and
Xxxxxxx, dated January 6,
1997, recorded January 6, 1997, in Official
Records Book 2779 at Page 0179, of
the Public Records of Xxx County, Florida, under
which SSPC assumed the
obligations of the original borrower under the
Existing Seaside Loan; nor is there
any event which, with notice or the passage of
time, or both, would become a
default or event of default.
4a. Seaside Collateral: As part of its
acquisition of the Existing Seaside Loan,
pursuant to the Assignment of Loan Documents
(Seaside), Lender has taken
assignment of the interest of Xxxxxxx in certain
of the Seaside Collateral. The
interest of Xxxxxxx in the balance of the Seaside
Collateral has been terminated and
canceled under the Termination Agreement of even
date herewith executed by
Xxxxxxx and SSPC. Reference is made to the
assignment and termination
documents executed concurrently herewith for a
description of same.
5. Amendments to Loan Agreement Regarding
Seaside Inn: The Loan Agreement
is hereby amended as follows to effectuate the
addition of Seaside Inn to various
concepts relevant to the Loan:
(a)Recital D is hereby amended to read
as follows:
D. On September 23, 1994, Greyhound Financial
Corporation entered into a
transaction (the "FINOVA Transaction") in which it
extended credit to MSSP
in the original principal amount of $19,500,000.00
(the "lINOVA Loan", as
further defined hereinafter) secured by a mortgage
(the "lINOVA Mortgage", as
further defined hereinafter) on the "Radisson" (as
hereinafter defined). As of
January 1, 1997, Xxxxxxx entered into a
transaction (the "Seaside Transaction")
described in the Assumption and Modification
Agreement ("Assumption and
Modification Agreement") with respect to the
Seaside Loan, secured by a
mortgage on "Seaside Inn" (as hereinafter defined)
(the Initial Transaction, the
Modified Transaction, the FINOVA Transaction and
the Seaside Transaction,
3
together, the "Previous Transactions," and the
documents evidencing the
Previous Transactions, together, the "Previous
Documents").
(b)Recital F is hereby amended to read
in pertinent part as follows:
in such recital.
F. SSRLP is the owner in fee simple of the
real property situated in Xxx County,
Florida ("South Seas Plantation"), more
particularly described in Exhibit "A-1"
attached hereto. MSSP is the owner in fee simple
of the real property situated in
Xxxxxxx County, Florida ("Radisson"), more
particularly described in Exhibit "A-2" attached
hereto. SSPC is the owner in fee simple of the real
property situated
in Xxx County, Florida, more particularly
described in Exhibits "A-3"
("Sundial"), "X-0" ("Xxxxx"), "X-0" ("Xxxxxxx
Inn"), "A-6" ("Best Western-Sanibel"), "A-7" ("Song of
the Sea") and "X-0" ("Xxxxxxx Xxx") attached hereto
(South Seas Plantation, Sundial, and Dunes are,
hereafter, collectively referred to
as the "Modified Land"; Sanibel An, Best
Western-Sanibel, Song ofthe Sea and
the Radisson are, hereafter, collectively referred
to as the "New Land"; the
Modified Land, the New Land and Seaside Inn are
hereinafter referred to
collectively as the "Land").
(c) Recital H is hereby amended to add Seaside Inn
to the list of resorts described
(d) The definition of "Agreement" or "Loan Agreement"
in Section 1.7 is hereby
amended to include this First Amendment.
(e) The definition of "Assets" in Section 1.8 is
hereby amended to include all
property now or hereafter owned by Borrower,
including without limitation those
items described therein consisting of, or related
to, Seaside Lnn.
(f) Section 1.53 is hereby amended to add those items
described therein consisting
of, or relating to, Seaside Inn to the list of
Improvements included in such
definition. The Seaside Inn Improvements are
generally described on Exhibit "C"
attached hereto and made a part hereof.
(g) Section 1.88 (definition of "Outstanding Loan
Amount") is hereby amended
to add the phrase "and the Seaside Consolidated,
Amended and Restated
Revolving Credit Note dated as of May 30th, 1997"
after the word "Notes."
(h) Section 1.100 is hereby amended to add Seaside
Inn, and any other
developments and properties acquired by Borrower
after the date hereof with
proceeds of the Revolving Credit Loan or through
application of Section 11.8 of
the Loan Agreement, to the list of developments
included in the definition of
Project. The change in the definition of Project
shall be deemed incorporated in
all Loan Documents in which the term "Project" is
used.
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surveys:
(i)Paragraph 1.125 is hereby amended to
add the following survey to the list of
. . . (h) Boundary Survey of the Seaside
Inn: Lots 15 and 16, Block 7 and Part of Xxx 0,
Xxxxx X. Xxxxxxx Xxxxxxx Xxxx Xx. 0, Xxxx Book 9,
Page 123, Xxx County
Records,
Xxxxxxx 00, XXX. 00 X., Xxxxx 00X, Xxxx of
Sanibel, Xxx County, Florida
(j)The following new definitions are
added in Article I:
"Seaside Interim Closing Date" shall mean the date
of this First Amendment.
"Seaside Inn" shall have the meaning given in the
Recitals.
"Seaside Loan" shall have the meaning given in the
Recitals.
"Seaside Mortgage" shall have the meaning given in
the Recitals.
O Section 3.19 is hereby amended to add the
following:
Further, Borrower has disclosed to Lender some
zoning/permitting
irregularities concerning the number of approved
hotel units within Seaside
Inn.
(1)Section 3.23 is hereby amended to
add the following:
As of the Seaside Interim Closing Date,
Borrower has not received any other
financing for the Project or any portion thereof
that has not been satisfied.
(m) Section 3.25 is hereby amended to add the
following to the list of
environmental site assessments listed in that
Section:
. . . (h) The Phase I Environmental site assessment of
the Seaside Inn dated
November 27, 1996.
(n) Section 3.29 is hereby amended to add Seaside
Inn to the list of properties
maintained as "first-class" luxury resorts.
(o) owned by SSPC.
Section 3.41 is hereby amended to add Seaside Inn
to the list of properties
(p) The following is hereby added as Section 3.56:
3.56 Seaside Loan as Permitted Real Property
Indebtedness. The Seaside Loan,
and the value and financial condition of Seaside
Inn, meet, in all respects, the
requirements of the
s
definition of "Permitted Real Property Indebtedness"
described in the Indenture,
such that: (i) the Seaside Loan constitutes
"Permitted Real Property Indebtedness"
under the Indenture and; (ii) the Seaside Loan is
a part of the "Senior
Indebtedness" and the "Designated Senior
Indebtedness" described therein. The
obligations of SSPC under the Seaside Loan are
being incurred: (i) to refinance
certain indebtedness assumed by SSPC in connection
with its acquisition of the
real property and improvements constituting
Seaside An; and (ii) to reimburse
SSPC for a portion of the purchase price paid by
SSPC out of working capital in
connection with its acquisition of Seaside Inn.
(q) Section 8.3 is hereby amended to add a
representation by Borrower that, based
upon payment of documentary stamp taxes and
intangible taxes concurrently
herewith, no additional documentary stamp or
intangible taxes are due and payable
on the amount of the Seaside Loan, and an
agreement by Borrower that if any
taxes should become payable in connection with the
Seaside Loan, the provisions
of Section 8.3 containing Borrower's agreement to
pay such taxes shall apply to
any such taxes.
(r)The following is hereby added to
Section 7.1:
...(u) Default under Seaside Loan. SSPC shall
be in default of any covenant,
agreement or obligation under the Seaside Loan,
the Seaside Mortgage, any of the
"Security Documents" described in the Seaside
Mortgage or under any document,
instrument or agreement described in the
Assumption and Modification
Agreement.
6. The exhibits and schedules to the Loan
Agreement are hereby amended as
follows:
(a)
(b)
(c)
A new Exhibit A-9 to the Loan Agreement ("Seaside
Legal Description") is added
in the form of Exhibit A hereto.
Exhibit B to the Loan Agreement ("Improvements")
is hereby amended as set forth
in Exhibit B hereto to add Seaside Inn.
Exhibit C ("Litigation Proceedings"), setting
forth a schedule of litigation
proceedings, is hereby amended and restated as the
schedule set forth as Exhibit
C hereto.
(d)Exhibit G to the Loan Agreement
("Budget") is hereby amended to add
Seaside Inn.
(e)Exhibit K ("Participation
Interests") is hereby amended to add the following
as a separate chart:
6
Participation Interests (Seaside!
Name of Bank
Credit Lyonnais
New York Branch
Xxxxxxx Bank, N.A.
FINOVA Capital
Corporation
Commitment $
$1,500,000
$ 500,000
$1.500.000
$3.500.000
Commitment %
42.857%
14.286%
42.857%
100.00%
6a. Limitation on Collateral under Indenture:
Lender's consummation of the
Seaside Loan is based upon Borrower's
representation and warranty that the
Seaside Loan qualifies as "Permitted Real Property
Indebtedness" ("PRPI"), as
defined under the Indenture. Such definition sets
forth the collateral which may
secure PRPI. Notwithstanding any other provision
of the Seaside Mortgage or the
"Security Documents" described therein to the
contrary, nothing in the Seaside
Mortgage or the other documents executed in
connection therewith grants, or is
intended by Borrower or Lender to grant, to Lender
an interest in collateral which
would not be permitted to secure PRPI under the
Indenture pursuant to the
definition of PRPI. In the event a court of
competent jurisdiction should determine
that: (i) the collateral granted to Lender under
the Seaside Mortgage or the other
documents executed in connection therewith does
not conform to that permitted
to secure PRPI; and (ii) as a result, Borrower
would be in breach of or default
under the provisions of the Indenture, then the
grant of such collateral shall be
void ab initio and the collateral securing the
Seaside Loan shall be limited to that
permitted under the Indenture to secure PRPI and
any other collateral
encompassed by the Seaside Mortgage or the
documents executed in connection
therewith shall secure the Loans.
fib. Amendment to Indenture to Correct
Scrivener's Error: Borrower has advised
Lender that the definition of"Funded Indebtedness"
under the Indenture contains
a scrivener's error, in that it appears to include
the principal amount of the "Notes."
Borrower shall use best efforts to effect an
amendment to the Indenture in order
to clarify that the principal amount of the
"Notes" described therein shall be
expressly excluded from the definition of "Funded
Indebtedness."
6c. Amendment of Indenture to Correct
Definition: The definition of "Permitted
Real Property Indebtedness" under the Indenture
requires that such debt be
secured "exclusively" by certain types of
collateral and interests. If, on or before
the date which is eighteen (18) months after the
date of this First Amendment,
Borrower shall not have effected an amendment (the
"Definitional
Amendment") to the Indenture (in form and content
approved by Lender and with
evidence satisfactory to Lender that such
amendment is valid and binding, in all
respects, upon the Trustee of the Indenture and
all Noteholders) which eliminates
from the definition the word "exclusively," the
Seaside Loan shall automatically
cease to permit borrowings and reborrowings as a
revolving loan and payments of
principal, in the amounts set forth in the Seaside
Consolidated, Amended and
7
Restated Revolving Credit Note of even date herewith,
shall commence to be due
and payable. If the Definitional Amendment has
been effected on terms and
conditions of this Section and such other terms,
conditions and documentation as
may be required by Lender, so long as there is no
default or Event of Default
under the Loans or the Seaside Loan, or both, and
no event which, with notice, or
the passage of time, or both, would become a
default or Event of Default, it is the
intention of Borrower and Lender that: (i) each of
the entities constituting
Borrower assume all of SSPC's obligations under
the Seaside Loan; and (ii) the
Seaside Loan be incorporated into and made a part
of the Loans. As such, the
outstanding principal amount of the Seaside Loan
would be consolidated with the
Revolving Credit Loans and borrowed and repaid as
a part of such Revolving
Credit Loans, and the Borrower shall execute, and
cause the other entities
comprising the Borrower under the Loan Agreement
to execute all such
documents as may be required to effectuate the
foregoing. If the Seaside Loan is
consolidated into the Revolving Credit Loans,
Borrower shall pay all costs and
expenses associated therewith.
6d. Participation Interests. The Participants
shall be bound, for purposes of the
Seaside Loan, by all provisions of the Loan
Agreement with regard to the
relationship among them and with the Collateral
Agent and the Administrative
Agent.
7. Consent to Availability of Eurodollar Rate:
Lender, on a limited basis only,
hereby consents to the election by Borrower to
have the entire (but not less than
the entire) outstanding Principal balance under
the Tem1 Loan accrue interest at
the Adjusted Eurodollar Rate for some or all of
the period from May 31, 1997, to
and including July 31, 1997, on the following
terms and conditions:
(a) No later than 10:00 a.m. Eastem Standard Time on
the date Borrower intends
that the requested Eurodollar Interest Period
commence, Borrower shall notify
Administrative Agent, in writing (by telex,
facsimile or other written means) that
Borrower desires to have the entire outstanding
Principal balance of the Term
Loan become a Eurodollar Portion, the desired
length of the Eurodollar Interest
Period on such Eurodollar Portion and the desired
date of commencement of the
Eurodollar Interest Period. The expiration date of
the Eurodollar Interest Period
shall not extend beyond July 31, 1997.
If the above conditions are met, Agent shall
quote to Borrower the
Adjusted Eurodollar and the Eurodollar Interest
Period shall commence
immediately (on the same Business Day) on the
requested Eurodollar Portion.
Administrative Agent shall thereafter confirm to
Borrower, in writing, the
establishment of the Eurodollar Portion, setting
forth the respective Adjusted
Eurodollar and Eurodollar Interest Period.
If an Adjusted Eurodollar is not, in Agent's
judgment, reasonably available
at the time requested or for the Eurodollar
Interest Period requested, the Principal
amount of the Term Loan then outstanding that
would have been subject to the
Adjusted Eurodollar shall bear interest at the
Adjusted Base Rate until such time
as (i) in Agent's judgment, an Adjusted Eurodollar
is reasonably available, (ii)
Agent notifies Borrower in writing that Adjusted
Eurodollar is available,
8
and (iii) Borrower confirms to Lender in writing its
desire for such portion of such
Principal amount to be subject to Adjusted
Eurodollar (subject, however, to the
provisions of this First Amendment).
(b) The election may only be made on a Business Day
from and including May 31,
1997, to and including July 31, 1997. If no
election is made within such period,
the provisions of this First Amendment which
permit such election shall be
terminated.
(c) The election must apply to the total outstanding
Principal balance of the Temm
Loan and be made in connection with the scheduled
termination (on June 2, 1997)
of the existing Libor Portion in the amount of
$39,562,500.00.
(d) On the date that Borrower notifies
Administrative Agent that Borrower desires
to elect to have the Eurodollar Portion bear
interest at the Adjusted Eurodollar, and
the related Eurodollar Interest Period commences,
and during the entire term of
such Eurodollar Interest Period: (A) there shall
be no Default or Event of Default
under the Loan Documents and no event which, with
notice or the passage of
time, or both, would result in a Default or Event
of Default; (B) Borrower shall be
in compliance with all covenants and conditions
set forth in the Loan Documents
(without regard to any period described therein to
cure any non-compliance),
including, without limitation, the financial
covenants described in Article XI of the
Agreement; and (C) there shall be no event or
condition under which Lender or
Agent would have the right to require that Excess
Cash Flow be deposited into an
account or be applied to sums due under the Loans.
(e) Borrower shall pay accrued interest on such
Eurodollar Portion, in arrears, on
the earlier of (i) the last day of each month
during the corresponding Eurodollar
Interest Period, and (ii) as to any expiring
Eurodollar Interest Period, the date upon
which the Eurodollar Interest Period expires.
Borrower shall also pay accrued
interest on any Eurodollar Portion if and when
terminated before the expiration of
the applicable Eurodollar Interest Period.
8. Amendments to Loan Documents in connection
with Eurodollar Election: The
Loan Documents shall be deemed to have been
amended to add the concept of the
Eurodollar Rate for the period during which this
First Amendment is effective.
Such amendments shall include, without limitation,
the amendment of the
following sections of Loan Documents to add the
concept of Eurodollar Rate,
Adjusted Eurodollar, Eurodollar Portion and
Eurodollar Interest Period in addition
to Base Rate, Adjusted Base Rate, Libor, Adjusted
Libor, Libor Portion and Libor
Interest Period, and where appropriate:
(a) Sections 1.98, 2.4, 2.5, 2.12, and 2.20 of the
Loan Agreement; and
(b)Sections 4.1, 4.2, 4.4, 4.5, 4.10,
4.11, 5(a), 6, 8.1 and 12.3 of the Term Note.
9. Definitions. For purposes of the
availability to Borrower of the Eurodollar
Rate, the following definitions shall be deemed
added to the Loan Documents
as applicable for the period during which the
Eurodollar Rate is available to
Borrower:
9
(a) Adjusted Eurodollar Rate: A per annum rate of
interest that is equal to the Eurodollar Rate
plus the Eurodollar Spread.
(b) Eurodollar Interest Period: For each
Eurodollar Portion, a period from the date of
commencement of the Adjusted Eurodollar Rate on
the subject portion of the
outstanding principal balance of the Term Loan to
but not including the date the
next installment of principal is due under the
Term Note. However, if the last day
of such Eurodollar Interest Period would otherwise
occur on a day which is not a
Business Day, such last day shall be extended to
the next succeeding Business Day
unless such extension would cause the last day to
occur in a new calendar month,
in which event such last day shall be the
immediately preceding Business Day.
(c) Eurodollar Portion: Each portion of the
outstanding Principal balance of the Tenn Loan on
which, as a result of Borrower's election
hereunder, Borrower is being charged
interest at the corresponding Adjusted Eurodollar
Rate for the corresponding
Eurodollar Interest Period. There may be no more
than one (1) Eurodollar Portion
outstanding at any one time, which must be in an
amount equal to the outstanding
Principal balance ofthe Term Note and shall have a
Eurodollar Interest Period
which expires on or before the date the next
installment of Principal is due under
the Term Note.
(d) Eurodollar Rate: A rate per annum equal to the
offered rate quoted by the Administrative
Agent to banks in the New York interbank
eurodollar market as of 10:00 a.m.
New York time on the date of determination for
deposits in eurodollars, in
immediately available funds, in amount comparable
to the aTnount of the Loans
with respect to which the Eurodollar Rate is being
determined and for deposits of
one day duration.
(e) Eurodollar Spread. A definition of"Eurodollar
Spread" is added, which is identical to the
definition of "Libor Spread" except that the words
"Eurodollar Spread" are
substituted for the words "Libor Spread" and the
words "Eurodollar Rate" are
substituted for the words "Libor Rate."
10. Amendment to Exculpatory Provisions in Various
Loan Documents. Lender
and
Borrower hereby amend the title, the first
sentence and a portion of the second
sentence of Section
8.27 of the Loan Agreement, to read as follows:
"Exculpation of Borrower's Partners: Borrower's
general and limited partners shall
not be personally liable for the repayment of
Principal, interest or Prepayment
Costs due under the Notes. Notwithstanding the
foregoing, Borrower's general
partners, and Xxxxxx and Ten Broek (by execution
of a Joinder to this Agreement)
acknowledge and agree that, except as set forth in
this Section 8.27, Borrower's
general partners, Xxxxxx and Ten Broek shall,
jointly and severally, have personal
liability for:"
10
Corresponding amendments are deemed to be made to
Section 17 of each of the
Term Note and the Revolving Credit Note.
11. Miscellaneous Amendments to Loan
Agreement: The following definitions
are added to Article I:
"Letter of Credit" shall have the meaning given in
Section 2.14.
"Previous Transactions" shall have the meaning
given in the Recitals.
12. Conditions to Effectiveness: The parties'
obligations hereunder shall be
contingent on the satisfaction of the following
conditions on or prior to the
Seaside Interim Closing Date:
(a) execution of the documents specified in the
Seaside Loan closing checklist
provided to the parties;
(b) receipt and approval by Lender of the legal
opinions specified in the Seaside Loan
closing checklist.
13.Fees and Expenses: Borrower shall
pay all of Lender's counsels' fees and costs
incurred in connection with the preparation of
this First Amendment and
Lender's counsel's review
of any documentation relating to the Seaside Loan
or creation of the
Eurodollar Rate.
14. No Other Amendment: Lender's consent and
amendment herein shall be
applicable only to the matters set forth in this
First Amendment and Lender
shall not be obligated to consent to any other
request or transaction or waive
any other provisions of the Loan Documents.
15. Affirmation of Loan Documents: Release of
Lender: Except as otherwise
expressly modified herein, all terms and
provisions of the Loan Documents as
originally executed are and remain unchanged and
in full force and effect.
Borrower and Xxxxxx and Ten Broek (by execution of
a Joinder to this First
Amendment) agree that execution of this First
Amendment shall be deemed a
reaffirmation of the representations, warranties
and covenants contained in the
Loan Documents and that same are true and correct
as of the Seaside Interim
Closing Date. Borrower, Xxxxxx and Ten Broek
hereby, jointly and severally:
(i) acknowledge that Lender has performed all of
its obligations, if any, under
the Loan Documents; (ii) acknowledge that none has
any claims, defenses or
rights of setoff against Lender or as to the
validity or enforceability of the Loan
Documents or any of them, or any other documents
executed in connection
therewith; and (iii) waive, discharge and release
forever any and all existing
claims, actions, causes of action, demands,
defenses or rights of setoff, whether
in contract, tort or otherwise (collectively, the
"Claims"), which any or all of
them, or any of their partners, might have against
Lender or its officers,
directors, shareholders, agents or employees, or
the successors or assigns of any
of the foregoing. Borrower, Xxxxxx and Ten Broek
acknowledge and agree that
the affirmations, acknowledgments, waivers and
discharges contained in this
Section are a material inducement for Lender to
enter into this First
Amendment.
16. Florida Law: Invalidity: Entire Agreement:
Interpretation: This First
Amendment shall be governed by Florida law. This
First Amendment represents
the entire Agreement between the parties with
respect to the subject matter and
supersedes all prior or contemporaneous
agreements. Should any part or provision
hereof be deemed by a court of competent
jurisdiction to be invalid or
unenforceable, such invalidity or unenforceability
shall not affect the remaining
provisions, all of which shall remain in full
force and effect. This First
Amendment shall not be construed more strictly
against one party than the other
by virtue of the fact that one party or its
counsel may have drafted same, all parties
and their counsel having had the opportunity to
participate in the negotiation and
drafting of this First Amendment. This First
Amendment may be executed in one
or more counterparts, each of which shall be
deemed an original and all of which,
together, shall constitute a single instrument.
17. WAIVER OF JURY TRIAL. BORROWER, ITS
PARTNERS AND
LENDER HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE ANY RIGHT ANY MAY HAVE TO A
TRIAL BY
JURY IN RESPECT TO ANY LITIGATION BASED ON OR
ARISING OUT
OF, UNDER OR IN CONNECTION WITH, THIS FIRST
A~\/IENDMENT OR
ANY COURSE OF CONDUCT, COURSE OF DEALING,
STATEMENTS
(VERBAL OR WRI l-l EN), OR ACTIONS OF ANY PARTY
HERETO. THIS
WAIVER OF TRIAL BY JURY PROVISION IS A MATERIAL
INDUCEMENT FOR LENDER TO ENTER INTO THIS FIRST
AMENDMENT.
IN WITNESS WHEREOF, the parties hereto have
executed this First Amendment
as of the date written above.
12
_
BORROWER:
SOUTH SEAS RESORT LIMITED PARTNERSHIP, an Ohio
limited
partnership
By: SAN-CAP,pesort, L.C., a Florida limited
liability cghr~p;~y, its General Partner ',
By: ~ Jl,~J
Xxxxxx X. Or, Manager
-
SOUTH SEAS PROPERTIES COMPANY LIMITED PARTNERSHIP, an
Ohio limited partnership
By: T&T Resorts, L.C., a Florida limited liability
~ General Partner
company
.
Xxxxxx X. Ta~
MARCO SSP, LTD., a Florida limited partnership
By: Marco SSj~r~, its General Partner
R
xxxxx M:xxx. Ch:
SOUTH SEAS RESORTS COMPANY LIMITED PARTNERSHIP, a
Florida
limited partnership
a~nagemem, L.C., a Florida
~1~ Company, its General Partner
By:
Xxxxxx X. Xxxxxx, Manager J
By: S.S. Reports limited lip
\g
SAFETY HARBOR MANAGEMENT COMPANY, LTD., a Florida
limited
partnership
By: X.X. Xxxxx~agement, L.C., a Florida limited
lia~lity~niany, its General Partner
By: _/ A v - -
J
Xxxxxx \~Xxxxxx, Manager
13
COLLATERAL AGENT, ADMINISTRATIVE AGENT AND
PARTICIPANT:
CREDIT LYONNAIS NEW YORK BRANCH, a branch, duly
licensed under
the laws of the State of New York, of Credit
Lyonnais, S.A., a banking
corporation organized and existing under the laws
of the R~
Name: M`-sch~ Ma L-~;~ Title: I! he t>~;d~f
OTHER PARTICIPANTS:
XXXXXXX BANK, N.A. a national banking association
Name: Title:
FINOVA CAPITAL CORPORATION, a Delaware corporation
By:Name:
14
COLLATERAL AGENT, ADMINISTRATIVE AGENT AND PARTICIPANT:
CREDIT LYONNAIS NEW YORK BRANCH, a branch, duly
licensed under
the laws of the State of New York, of Credit
Lyonnais, S.A., a banking
corporation organized and existing under the laws
of the Republic of France
OTHER PARTICIPANTS:
XXXXXXX BANK, N.A. a national banking association
By: ;~D:~ ~4: Name: BY ~ rat . Comers Title: lllaL
US 'c12~7r
FINOVA CAPITAL CORPORATION, a Delaware corporation
14
COLLATERAL AGENT, ADMINISTRATIVE AGENT AND PARTICIPANT:
CREDIT LYONNAIS NEW YORK BRANCH, a branch, duly
licensed under the
laws of the State of New York, of Credit Lyonnais,
S.A., a banking corporation
organized and existing under the laws of the
Republic of France
By: Name:
OTHER PARTICIPANTS:
XXXXXXX BANK, N.A. a national banking association
By
.
FINOVA CAPITAL CORPORATION, a Delaware
corporation ~ ~
Name-. XXXX XXXXXX, 111
Title: OROIJP VICE PREt31L)tN l~
14
JOINDER TO FIRST AMENDMENT
The undersigned hereby join in the First
Amendment to which this Joinder is
attached for the purpose of affirming the
provisions thereof.
~:,,~C: ~
-~-,' ~
XXXXX X. TEN XXXXX
,
XXXXXX X. TAYL)R
15
EXHIBIT A
TO FIRST AMENDMENT
EXHIBIT "A-9"
SEASIDE INN LEGAL DESCRIPTION
ATTACHED
16
Commonwealth
XXxXXXX X- 0 to LOAN I~T
(lommitn~r-nt. Nn.: Rf,4-42?,P`.~:] Fi le No.:
M723fih(,
T.nt.~; 1.F; anrl lh, P`lock 7, of t.hat. certain
s~,hrlivitiion known ..s
11NTT No SANTRF,l. FSTATF,S, accorrling t.o t.he
map or E3lat.
thereof nn fi le anrl rerorcle~ in t.he office nf
t.he (llerk of t.hr- (lirrt~it.
(lourt. nf X.xx (:o'3nt.y, Florirla, in P1. t.
P`ook 9, P. ge 12.3, XXx . 11
t.he ~.rant.ors right., t.it.le anrl int.erest.
t.o t.hat. port.ion of f.ot. 0, Xxxxxx
0, XXXXXX,X. X,0;X0.XX,0 llNTT 2, lying het.ween
the Nort.hwest.erly
prolongat.ion of the .Ro~therl-~ lot line of [.ot.
lfi nf the aforesairl Sanibel
Fst..xx.xx t~nit. ~ ancl t.he Nnrt.herly lot. 1
ine of thr.aforesairl T'ot. 1.S of
.Sanibel Xxx.xx.xx unit 2, sairl propert.y haviny
its F.. ster1y . nrl
We.st.erly hounclaries respentively nn t.he xxxx
of t.he r~n. 1 ~shown in
t.he afore.sairl plat. r~f S. nibr.1 F:st.ates
(nit. ~ anrl t.he Fasterly right.-of-way of G.~1 f
nrive a.s shown nn the a xxxx.xx ir1 pl at. nf Ran i
bel
X.xx.. te.~. lJnit. ~ t.oget.her wit.h any anrl al
1 riparian right.s
x.xxxx'~nt.o helr~nging nr ot.herwise pert.aining.
EXHIBIT B
TO FIRST AMENDMENT
SEASIDE INN IMPROVEMENTS
ATTACHED
17
EXHIBIT B TO
FIRST ANSEAS:tlJE) TO AMENDED AND RESTATED XXXX
AGREEMENT
THE SEASIDE INN
PROPERTY DESCRIPTION
The Seaside Inn on Sanibel Island consists of
seven buildings which house 32
rentals units. This property is located
approximately 200 feet of direct frontage
on the Gulf of Mexico and features a swimming pool
and a "Key West" type of
atmosphere for its guests.
# Oli ROOM:
The following table details the number of rooms
and suites by type of unit.
Unit TypeNumber of Units
Efficiency
Studio 12
I bedroom sparDnent , . ~
2 bedroom and sitting room apartment
Manager Unit
Total . 32
All efficiency units contain a small kitchenette
with a microwave oven, small
refrigerator, sink and a coffee maker. All units
have color cable television with
in-room VCR. In addition, the property offers the
following amenities to the
guest:
Heated Gulf-view swimming pool with sun deck,
chairs, and chaise lounges
Complimentary bicycles
Seaside shuffleboard courts
Lending library of current books and videos
Golf available
at nearby
Dunes Golf
& Tennis Club
SSPFACI~S.SST/lo
EXHIBIT C
TO FIRST AMENDMENT
LITIGATION PROCEEDINGS
*
(i) Xxxx Xxxxxxx v. The Cottages of South Seas
Condominium Association. South
Seas
Resort Limited Partnership. et al.; Case No.
93-008031-CA
*
(ii) Xxxxxx Xxxxxx v. South Seas Resort Limited
Partnership
*
(iii) Xxxxxxx x. Pink Shell
(iv) Xxxxx Xxxxx v. South Seas Plantation, EEOC
Charge No. 1509307151
(v) Creative Deco. Inc. (bankruptcy claim)
(vi) Optics International. Inc. (bankruptcy claim)
(vii) South Seas Resort Limited Partnership v.
Xxxxxx Xxxxxxxxxxxx
(viii) American Hospitality Purchasing Inc.
(ix) Embassy Kosher Tours. Inc. v. Xxxxx Xxxxx
d/lo/a Safety Harbor Resort
and Spa;
Case
No.
96-15461
CA-01-21
(x) Audit of Best Western-Sanibel by
State of Florida, Division of Florida Land Sales,
Condominiums and Mobile Homes
(xi) Xxxx Xxxxxxx v. S.S. Resort
Management; EEOC Case No. 150961569
(xii) Xxxxxxxx Xxxxxxx v. South Seas Plantation,
EEOC Charge No. 15L-96-0131;
LCDHR Charge No. 96143E
(xiii) Xxxxxxx Xxxxxx, Complaint filed with
National Labor Relations Board
(xiv) LaPenn v. Mariner Group dba South Seas
Plantation
* Personal injury cases.
All cases involving personal injury are
covered by insurance and insurance
carriers have undertaken representation without
reservation of rights.
Bankruptcy Court cases involve claims by Borrower
for unpaid sums against
entities which are now in bankruptcy.
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