UNITED STATES SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934 FOR THE QUARTERLY PERIOD ENDED JUNE 30, 1997
Commission File Number:
333-264
Exact name of Registrant as specified in its charter:
South Seas Properties Company Limited Partnership
State or other Jurisdiction of incorporation or organization:
Ohio
I.R.S. Employer Identification Number:
59-2541464
Address of Principal Executive Offices:
12800 University Drive, Suite 350
Fort Myers, FL 33907
Registrant's Telephone Number, including Area Code:
(941) 481-5600
Indicate by check mark whether the registrant (1) has filed
all reports required to be filed by Section 13 or 15(d) of the
Securities Exchange Act of 1934 during the preceding 12 months (or
for such shorter period that the registrant was required to file
such reports), and (2) has been subject to such filing requirements
for the past 90 days. X YES NO
APPLICABLE ONLY TO ISSUERS INVOLVED IN BANKRUPTCY
PROCEEDINGS DURING THE PRECEDING FIVE YEARS:
Indicate by check mark whether the registrant has filed all
documents and reports required to be filed by Sections 12, 13 or
15(d) of the Securities Exchange Act of 1934 subsequent to the
distribution of securities under a plan confirmed by a court.
YES NO
<PAGE>
SOUTH SEAS PROPERTIES COMPANY LIMITED PARTNERSHIP
FORM 10-Q
JUNE 30, 1997
INDEX
PAGE NO.
COVER LETTER
PART I
ITEM 1
FINANCIAL INFORMATION
Consolidated Balance Sheets at
June 30, 1997 and 1996 and
December 31, 1996 1
Consolidated Statements of Operations
for the Three Months and Six Months Ended
June 30, 1996 and 1997 2
Consolidated Statements of Cash Flows
for the Six Months Ended
June 30, 1996 and 1997 3-4
Notes to Consolidated Financial Statements 5-7
ITEM 2
Management's Discussion and Analysis of
Financial Condition and Results of Operations 8-14
PART II
OTHER INFORMATION 15
SIGNATURES 16
EXHIBITS:
EXHIBIT 10 - AMENDMENT #1 TO MANAGEMENT EQUITY PLAN
EXHIBIT 11- FIRST AMENDMENT (SEASIDE) TO AMENDED AND
RESTATED LOAN AGREEMENT
EXHIBIT 12 - SEASIDE CONSOLIDATED, AMENDED AND RESTATED
REVOLVING CREDIT NOTICE
EXHIBIT 13 - AMENDED AND RESTATED MORTGAGE AND SECURITY
AGREEMENT AND NOTICE AND AGREEMENT OF FUTURE ADVANCE
EXHIBIT 27 - FINANCIAL DATA SCHEDULE
EXHIBIT 99 - CALCULATION OF WEIGHTED AVERAGE
UNITS OUTSTANDING
<PAGE>
<TABLE>
<CAPTION>
SOUTH SEAS PROPERTIES COMPANY LIMITED PARTNERSHIP
CONSOLIDATED BALANCE SHEETS
(In Thousands)
(unaudited)
June 30 Dec. 31,
1997 1996
<S> <C> <C>
ASSETS
CURRENT ASSETS
Cash and cash equivalents $ 2,207 $6,459
Restricted cash 200 201
Restricted marketable securities - -
Accounts receivable, trade 3,951 6,743
Receivables from affiliates 160 543
Inventories 1,671 1,677
Prepaid expenses and other 1,680 1,637
Total current assets 9,869 17,260
PROPERTY, PLANT AND EQUIPMENT, net 86,142 79,904
LOAN COSTS, net 5,307 5,660
GOODWILL, net 7,124 6,440
OTHER ASSETS 2,447 1,778
Total assets $110,889 $111,042
LIABILITIES AND PARTNERS' CAPITAL
DEFICIENCY
CURRENT LIABILITIES
Current maturities of notes
and mortgages payable $ 1,975 $1,750
Current obligations under
capital leases 240 265
Accounts payable 3,337 4,410
Accrued expenses 7,156 4,940
Customer deposits 2,727 4,976
Deferred revenue 1,129 1,585
Total current liabilities 16,564 17,926
NOTES AND MORTGAGES PAYABLE, less
current maturities 59,334 65,357
BONDS PAYABLE 43,500 43,500
LONG-TERM OBLIGATIONS UNDER
CAPITAL LEASES, less current
obligations 522 631
OTHER LONG-TERM OBLIGATIONS 1,304 1,305
COMMITMENTS AND CONTINGENCIES - -
PARTNERSHIP UNITS SUBJECT TO REDEMPTION 825 825
MINORITY INTERESTS 42 27
PARTNERS' CAPITAL DEFICIENCY (11,202) (18,529)
Total liabilities and
partners' capital
deficiency $110,889 $111,042
</TABLE>
The accompanying unaudited notes are an integral part of these unaudited
consolidated financial statements.<PAGE>
<PAGE>
<TABLE>
<CAPTION>
SOUTH SEAS PROPERTIES COMPANY LIMITED PARTNERSHIP
CONSOLIDATED STATEMENTS OF OPERATIONS
(In Thousands, except per unit data)
(unaudited)
Three Months Six Months
Ended June 30 Ended June 30
1997 1996 1997 1996
<S> <C> <C>
Revenues
Rooms $18,502 $17,275 $43,383 $40,125
Food and beverage 5,117 4,667 11,088 10,395
Retail 1,728 1,728 3,945 3,828
Golf 950 767 2,074 1,785
Spa and fitness 678 654 1,375 1,424
Other 4,186 4,312 9,011 9,509
Total revenues 31,161 29,403 70,876 67,066
Expenses
Rooms 4,267 3,882 8,793 8,025
Food and beverage 3,814 3,581 8,137 7,602
Retail 1,307 1,218 2,767 2,598
Golf 248 299 581 537
Spa and fitness 383 384 750 786
Other 1,816 1,748 3,561 3,477
Condominium lease and rental expenses 4,831 5,004 10,933 11,106
Sales and marketing 2,189 1,805 4,061 3,842
Maintenance and grounds 1,322 1,233 2,707 2,561
General and administrative -
resort properties 4,698 4,193 9,676 8,764
General and administrative -
corporate overhead 778 979 1,690 1,835
Depreciation and amortization 2,129 1,837 4,134 3,716
Interest expense 2,446 2,829 5,071 5,382
Total expenses 30,228 28,992 62,861 60,231
Income before non-operating items 933 411 8,015 6,835
Net gain on disposal/sale of
fixed assets 2 - 2 4
Minority interests (9) (9) (31) (31)
Net income $ 926 $ 402 $7,986 $6,808
Net income per unit, primary $ .20 $ .09 $ 1.80 $ 1.58
Net income per unit, fully diluted $ .20 $ .09 $ 1.19 $ 1.23
Weighted average units outstanding 4,427 4,331 4,427 4,320
</TABLE>
The accompanying unaudited notes are an integral part of these unaudited
consolidated financial statements.<PAGE>
<PAGE>
<TABLE>
<CAPTION>
SOUTH SEAS PROPERTIES COMPANY LIMITED PARTNERSHIP
CONSOLIDATED STATEMENTS OF CASH FLOWS
Page 1 of 2
(In Thousands)
(unaudited)
Six Months
Ended June 30
1997 1996
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Cash received from customers and others $ 70,883 $ 66,053
Cash paid to suppliers, employees and affiliates (53,327) (52,672)
Interest paid (5,181) (7,235)
Net cash provided by operating
activities 12,375 6,146
CASH FLOWS FROM INVESTING ACTIVITIES:
Capital expenditures/purchase of assets (3,935) (3,531)
Proceeds from sale of assets 2 4
Loans to affiliates, net of repayments 57 -
Purchase of resort property assets (3,411) -
Change in restricted cash/marketable securities 1 2,450
Net cash used by investing
activities (7,286) (1,077)
CASH FLOWS FROM FINANCING ACTIVITIES:
Draws under line of credit 1,500 -
Proceeds from long-term debt 43,500
Deferred loan costs (228) (3,627)
Principal payments, long-term debt (876) (16,343)
Principal payments, under capital
lease obligations (62) (528)
Principal payments, bonds payable - (12,998)
Distributions to partners (659) (610)
Distributions to minority unit holders (16) (17)
Principal payments under revolving lines
of credit (9,000) (11,885)
Proceeds from the issuance of limited partner
units - 487
Net cash used by
financing activities (9,341) (2,021)
Net (decrease)/increase in cash (4,252) 3,048
Cash and cash equivalents, beginning of period 6,459 7,340
Cash and cash equivalents, end of period $ 2,207 $10,388
</TABLE>
(continued)
The accompanying unaudited notes are an integral part of these unaudited
consolidated financial statements.<PAGE>
<PAGE>
<TABLE>
<CAPTION>
SOUTH SEAS PROPERTIES COMPANY LIMITED PARTNERSHIP
CONSOLIDATED STATEMENTS OF CASH FLOWS
Page 2 of 2
(In Thousands)
(unaudited)
Six Months
Ended June 30
1997 1996
<S> <C> <C>
RECONCILIATION OF NET INCOME TO NET
CASH PROVIDED BY OPERATING ACTIVITIES:
Net income $ 7,986 $6,808
Adjustments to reconcile net income
to net cash provided by operating
activities
Depreciation/amortization expense 4,134 3,716
Gain on sale of fixed assets (2) (4)
Minority interest 31 31
Changes in assets and liabilities
(Increase) decrease in:
Accounts receivable, net 2,809 1,492
Inventories 6 64
Prepaid expenses and other assets (848) (1,112)
Increase (decrease) in:
Accounts payable (1,116) 825
Accrued expenses 2,177 (2,524)
Customer deposits (2,346) (2,505)
Deferred revenues (456) (645)
Total adjustments 4,389 (662)
Net cash provided by operating activities $12,375 $6,146
Supplemental schedule of noncash investing and financing activities:
In January, 1997 South Seas acquired the Seaside Inn on Sanibel Island,
Florida for $6.5 million. In connection with the acquisition, South Seas
assumed liabilities of $2.5 million.
</TABLE>
The accompanying unaudited notes are an integral part of these unaudited
consolidated financial statements.<PAGE>
<PAGE>
SOUTH SEAS PROPERTIES COMPANY LIMITED PARTNERSHIP
NOTES TO UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS
Note 1. Basis of Presentation
In the opinion of management, the accompanying unaudited
consolidated financial statements contain all
adjustments necessary (consisting of only normal
recurring adjustments) to present fairly South Seas
Properties Company Limited Partnership ("South Seas")
consolidated financial position as of June 30, 1997 and
December 31, 1996 and the consolidated results of its
operations for the three and six months then ended and
its consolidated cash flows for the six months ended
June 30, 1996 and 1997. The results of operations for
the six month period ended June 30, 1997 are not
indicative of the results to be expected for the full
year due to the seasonality of the business operation.
For further information, refer to the audited
consolidated financial statements and notes thereto,
included in South Seas' 10-K report. Certain amounts in
the financial statements have been reclassified to
conform with the current presentation. These
reclassifications had no effect on the results of
operations previously reported. The consolidated
balance sheet at December 31, 1996 has been derived from
the audited financial statements at that date but does
not include all disclosures required by generally
accepted accounting principles. Refer to South Seas
annual 10-K report for complete footnote disclosure.
Note 2. Computation of Earnings Per Unit
Primary earnings per unit of partnership interests are
computed based on the weighted average number of
partnership unit equivalents (unit options, if
applicable) outstanding of 4.43 million and 4.33
million, for the three months ended June 30, 1997 and
1996, respectively, and 4.43 million and 4.32 million
for the six months ended June 30, 1997 and 1996,
respectively. The computation of fully diluted earnings
per unit assumed conversion of the 10% convertible
subordinated notes due April 2003, accordingly, net
earnings were increased by interest expense on the
subordinated notes. For the 1997 and 1996 fully diluted
earnings per unit computation, units were computed to be
8.57 million and 6.46 million for the six months ended
June 30, 1997 and 1996, respectively. For the three
months ended June 30, 1997 and fully diluted earnings
per unit is the same as primary earnings per unit
because such calculation is anti-dilutive for those
periods.
Note 3. Impact of Recently Issued Accounting Standards
In February, 1997, the Financial Accounting Standards
Board issued Statement of Financial Accounting Standards
No. 128, "Earnings Per Share" ("FAS 128"), which becomes
effective for South Seas for the year ended December 31,
1997. FAS 128 replaces the presentation of primary
earnings per unit with a presentation of basic earnings
per unit which excludes dilution and is computed by
dividing income available to partnership unit holders by
the weighted average number of partnership units
outstanding for the period. Diluted earnings per unit
reflect the potential dilution that would occur if
securities or other contracts to issue units were
exercised or converted into units or resulted in the
issuance of units that then shared in the earnings of
the entity. Diluted earnings per unit is computed
similarly to fully diluted earnings per unit pursuant to
Accounting Principles Board Opinion No. 15, "Earnings
Per Share." FAS 128 also requires dual presentation of
basic and diluted earnings per unit on the face of the
income statement for all entities with complex capital
structures and requires a reconciliation of the
numerator and denominator of the basic earnings per unit
computation to the numerator and denominator of the
diluted earnings per unit comparison. The
implementation of FAS 128 is not expected to have a
material impact on South Seas' reported results of
operations.
In addition, during 1997, the Financial Accounting
Standards Board issued Statement of Financial Accounting
Standards No. 129, "Disclosure of Information about
Capital Structure" ("FAS 129"), No. 130, "Reporting
Comprehensive Income" ("FAS 130"), and No. 131,
"Disclosures about Segments of an Enterprise and Related
Information" ("FAS 131"). FAS 129 consolidates the
existing requirements relating to disclosure of certain
information about an entity's capital structure. FAS 130
establishes standards for reporting comprehensive income
to present a measure of all changes in equity that
result from renegotiated transactions and other economic
events of the period other than transactions with owners
in their capacity as owners. Comprehensive income is
defined as the change in equity of a business enterprise
during a period from transactions and other events and
circumstances from nonowner sources and includes net
income. FAS 131 specifies revised guidelines for
determining an entity's operating segments and the type
and level of financial information to be disclosed. FAS
131 requires that management identify operating segments
based on the way that management disaggregates the
entity for making internal operating decisions. These
financial accounting standards are effective for fiscal
years beginning after December 31, 1997. Management has
not determined what impact these standards, when
adopted, will have on South Seas' financial statements.
Note 4.
On January 6, 1997 South Seas purchased from an
affiliated limited partnership, real and personal
property used in the operation of a 32 unit motel
(Seaside Inn) on Sanibel Island, Florida for $6.5
million. In connection with the acquisition, South Seas
assumed liabilities of $2.5 million. Unaudited revenues
and net income for the Seaside Inn for the year ended
December 31, 1996 were $1.4 million and $43,000,
respectively.
The balance of the purchase price was made via a cash
payment of $3.4 million which was allocated as follows
(in thousands):
Cash payment $3,411
Allocated to:
Fixed assets $5,574
Goodwill 912
Current assets and liabilities, net (134)
Debt assumed (2,505)
Repayment of advance from South Seas (326)
Down payment (100)
Other (10)
$3,411
Note 5. Seaside Inn Revolving Credit Line
In May, 1997, South Seas amended and increased the $2.5
million loan held by Barnett Bank, N.A. secured by the
Seaside Inn to a $3.5 million revolving credit note and
caused Barnett to assign the loan to Credit Lyonnais,
New York Branch, Barnett Bank, N.A. and Finova Capital
Corporation (collectively, the "Lender") and to pledge
the Seaside Inn to the Lender for security. The amount
available under this line was $923,000 as of June 30,
1997.
Note 6. Revolving Credit Line
In connection with the $40 million revolving line of
credit with Credit Lyonnais, New York Branch, South Seas
had available $20.4 million at June 30, 1997. South
Seas applies surplus seasonal working capital or draws
working capital based on seasonal needs to reduce or
increase the outstanding revolving loan balance.
<PAGE>
<PAGE>
PART I -FINANCIAL INFORMATION
Item 2 -MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
The following discussion should be read in conjunction
with "Selected Historical Financial Data," "Selected
Consolidated Financial Data" and the audited consolidated
financial statements for South Seas and the notes thereto
appearing in the annual 10-K report for the year ended
December 31, 1996.
GENERAL
South Seas is one of the largest owners and operators of
upscale beachfront destination resorts and hotels in Florida.
South Seas owns, leases and/or manages 10 resort and
recreational properties. Included are seven owned resort and
hotel properties, one 18 hole golf course, and one managed
resort property, all located on Sanibel, Captiva, Estero and
Marco Islands off Florida's gulf coast (collectively referred
to as the "Properties"). South Seas, through its 99% owned
subsidiary, South Seas Resorts Company Limited Partnership
("Management Company"), also operates under a lease
arrangement a resort and spa located on Tampa Bay, Florida.
The Properties are designed to appeal to families, leisure
travelers and business groups. The Properties range in size
and style from the 552-unit South Seas Plantation resort on
Captiva Island, to the 269 unit, 11 story Marco Island
Radisson, to the 30-unit Song of the Sea Inn, a bed-and-breakfast
located on Sanibel Island. By offering a wide
variety of price points and vacation experiences, South Seas
is able to appeal to a broad section of the vacation market.
The Properties offer a combined total of approximately 1,700
condominium and hotel units, consisting of approximately
2,300 guest rooms, including luxurious beach homes, fully
equipped condominiums, suites, cottages and hotel rooms.
South Seas also owns and operates The Dunes Golf and Tennis
Club on Sanibel Island, which features an 18-hole, par 70
golf course, seven soft surface tennis courts, full banquet
and restaurant facilities and other amenities. Guests
staying at any of the Properties have access to the amenities
and vacation activities offered at all of the Properties.
South Seas believes that this feature, combined with the
Properties' attractive locations, enhances customer
satisfaction and guests' perceptions of value.
SEASONALITY
Properties owned or operated by South Seas are affected by
normally recurring seasonal patterns. Room rates are
substantially higher and occupancy is somewhat higher during
the months of January, February, March and April than during
the remainder of the year. Approximately 45% of South Seas'
revenues is earned in the first four months of each year.
Accordingly, South Seas' typically reports lower revenue and
net income in the second, third and fourth calendar quarters.
RESULTS OF OPERATIONS FOR THE THREE MONTHS ENDED JUNE 30,
1997 COMPARED TO THE THREE MONTHS ENDED JUNE 30, 1996
Revenues. Revenues consist principally of room rentals,
food and beverage sales, retail sales, spa and fitness
revenues, and golf course operations. Other revenue includes
marina operations, long distance telephone charges, fees for
the use of recreation facilities, commissions from realty
sales, interest income and other miscellaneous items.
Revenues for the three months ended June 30, 1997 increased
by approximately $1.8 million, or 6.0% over the prior period.
Rooms revenues increased by approximately $1.2 million, or
7.1% over the prior period. Approximately $402,000, or 32.8%
of the increase represents room revenues attributable to the
Seaside Inn (acquired January 6, 1997). Room revenues at
resorts owned throughout both periods ("Comparable Resorts")
increased by approximately $825,000 or 4.7%. The increase in
room revenues at Comparable Resorts resulted from an increase
in the average daily rate ("ADR") and an increase in the
percentage of occupancy. ADR at Comparable Resorts was
$190.35 for 1997, compared to $185.51 in 1996, an increase of
$4.84, or 2.6%. Occupancy percentage at Comparable Resorts
increased to 75.2% for the three months ended June 30, 1997
from 74.2% for the same period in 1996. The increase in ADR
reflects South Seas' efforts to maximize revenue per
available room ("REVPAR"), during peak demand periods.
During the three months ended June 30, 1997, REVPAR for
Comparable Resorts increased $5.61 or 4.1% over the same
period in 1996. The Seaside Inn had an occupancy percentage
of 85.0%, ADR of $162.21 and REVPAR of $137.93 during the
three months ended June 30, 1997.
Food and beverage revenues for the three months ended June
30, 1997 increased by $450,000, or 9.6% over the same period
in 1996. Approximately $157,000 or 34.9% of the increase was
due to increased food and beverage sales at Safety Harbor
Resort and Spa ("Safety Harbor"). South Seas entered into a
lease arrangement on the Safety Harbor in June 1995.
Management believed it was a property with significant
"up-side" potential. After a substantial investment in capital
improvements (over $2.6 million since lease inception),
combined with a highly motivated and experienced management
team, dramatic improvements in results of operations have
been realized at the resort over 1996.
Other revenues for the three months ended June 30, 1997
decreased by $125,000, or 2.9% from the prior period.
Revenues recognized at the renovated Dunes Golf & Tennis Club
were approximately $241,000 higher than the prior year. In
1996, all annual membership and initiation fees were
recognized in full at the time of receipt. This policy was
consistent with the terms of the non-refundable fees.
Although these fees are still non-refundable, in 1997,
management elected to defer and recognize membership and
initiation fees pro-rata over the calendar year. This
increase was offset by a decrease in the revenues at the
corporate level of $304,000, primarily due to lower interest
income of $185,000 (excess funds now used to pay down the
revolving credit line) and lower management fees of $23,000
(due to the acquisition of the Seaside Inn, and those fees
being eliminated in consolidation).
Expenses. Total expenses for the three months ended June
30, 1997 increased by approximately $1.2 million, or 4.2%
over the prior period. As a percentage of revenues, expenses
decreased from 98.6% to 97.0%. Analysis of major financial
line items follows:
Room expenses for the three months ended June 30, 1997
increased by $385,000 or 9.9% over the prior period. Rooms
expenses at Comparable Resorts increased $306,000 or 7.9%
over the same period last year. As a percentage of rooms
revenues, rooms expenses increased slightly from 22.5% to
23.1%, primarily due to the additional staff position of
yield manager.
Sales and marketing costs for the three months ended June
30, 1997 increased by $384,000 or 21.3% over the prior
period. As a percentage of total revenues, sales and
marketing increased from 6.0% in the three months ended June
30, 1996 to 7.0% for the three months ended June 30, 1997.
The increase in both dollars and as a percent of revenues was
a result of direct mail and media initiatives executed within
the second quarter designed to drive late end of second
quarter and third quarter revenues (June through September).
General and administrative expense for the three months
ended June 30, 1997 increased by $304,000, or 5.8% over the prior
period. Approximately $79,000 or 25.9% of the total increase
were associated with the Seaside Inn. As a percentage of
revenues, general and administrative expense remained
constant at 17.6%.
Depreciation and amortization expense for the three months
ended June 30, 1997 increased by $292,000 or 15.9% over the
prior period. As a percentage of revenues, depreciation and
amortization expense increased from 6.3% at June 30, 1996 to
6.8% at June 30, 1997. The increase in dollars is primarily a
result of depreciation on recent renovations and capital
improvements as well as $46,000 (or 15.8% of the total
increase)attributable to the Seaside Inn acquisition, and
increased amortization of loan costs.
Net Income. As a result of the foregoing factors, net
income for the three months ended June 30, 1997 increased by
$524,000 or 130.3% compared to the prior period. The Seaside
Inn contributed $134,000 or 25.6% of the total increase.
RESULTS OF OPERATIONS FOR THE SIX MONTHS ENDED JUNE 30, 1997
COMPARED TO THE SIX MONTHS ENDED JUNE 30, 1996
Revenues. Revenues consist principally of room rentals,
food and beverage sales, retail sales, spa and fitness
revenues, and golf course operations. Other revenue includes
marina operations, long distance telephone charges, fees for
the use of recreation facilities, commissions from realty
sales, interest income and other miscellaneous items.
Revenues for the six months ended June 30, 1997 increased by
$3.8 million, or 5.7% over the prior period.
Rooms revenues increased by approximately $3.3 million, or
8.1% over the prior period. Approximately $977,000 or 30.0%
of the increase represents room revenues attributable to the
Seaside Inn (acquired January 6, 1997). Dramatic improvements
were also realized at Safety Harbor, growth in occupancy from
39.7% for the six months ended June 30, 1996 to an occupancy
percentage of 71.9% for the same period in 1997, produced
increased rooms revenues of $930,000.
Room revenues at Comparable Resorts increased by
approximately $2.3 million or 5.7%. The increase in room
revenues at Comparable Resorts resulted from an increase in
the ADR and an increase in the percentage of occupancy. ADR
at Comparable Resorts was $220.14 for 1997, compared to
$215.43 in 1996, an increase of $4.71 or 2.2%. Occupancy
percentage at Comparable Resorts increased to 78.8% for the
six months ended June 30, 1997 from 75.6% for the same period
in 1996. The increase in ADR reflects South Seas' efforts to
maximize REVPAR, during peak demand periods. During the six
months ended June 30, 1997, REVPAR for Comparable Resorts
increased $10.57 or 6.5% over the same period in 1996. The
Seaside Inn had an occupancy percentage of 88.5%, ADR of
$190.56 and REVPAR of $168.62 during the six months ended
June 30, 1997.
Food and beverage revenues for the six months ended June
30, 1997 increased by $693,000, or 6.7% over the same period
in 1996. Approximately $367,000 or 53.0% of the increase was
due to increased food and beverage sales at Safety Harbor.
South Seas entered into a lease arrangement on the Safety
Harbor in June 1995. Management believed it was a property
with significant "up-side" potential. After a substantial
investment in capital improvements (over $2.6 million since
lease inception), combined with a highly motivated and
experienced management team, dramatic improvements in results
of operations have been realized at the resort over 1996.
Other revenues for the six months ended June 30, 1997
decreased by $498,000, or 5.2% from the prior period.
Revenues recognized at the renovated Dunes Golf & Tennis Club
were approximately $403,000 lower than the prior year. In
1996, all annual membership and initiation fees were
recognized in full at the time of receipt. This policy was
consistent with the terms of the non-refundable fees.
Although these fees are still non-refundable, in 1997,
management elected to defer and recognize membership and
initiation fees pro-rata over the calendar year. An
additional decrease in the revenues at the corporate level of
$458,000 was primarily due to lower interest income of
$259,000 (excess funds now used to pay down the revolving
credit line) and lower management fees of $55,000 (due to the
acquisition of the Seaside Inn, and those fees being
eliminated in consolidation). These decreases were offset by
improvements in other revenues at South Seas Plantation of
$150,000 (due primarily to incentive income earned on lease
programs) and $265,000 at Safety Harbor (due to significant
increases in occupancy).
Expenses. Total expenses for the six months ended June
30, 1997 increased by $2.6 million, or 4.4% over the prior
period. As a percentage of revenues, expenses decreased from
89.8% to 88.7%. Analysis of major financial line items
follows:
Room expenses for the six months ended June 30, 1997
increased by $768,000 or 9.6% over the prior period. Rooms
expenses at Comparable Resorts increased $602,000 or 7.5%
over the same period last year. As a percentage of rooms
revenues, rooms expenses increased slightly from 20.0% to
20.3%, primarily due to the additional position of yield
manager.
Sales and marketing costs for the six months ended June
30, 1997 increased by $219,000 or 5.7% over the prior period.
As a percentage of total revenues, sales and marketing
remained constant at 5.7% for both periods.
General and administrative expense for the six months
ended June 30, 1997 increased by $767,000, or 7.2% over the prior
period. Approximately $172,000 or 22.4% of the total increase
was associated with the Seaside Inn. As a percentage of
revenues, general and administrative expense increased
slightly from 15.8% in 1996 to 16.0% in 1997.
Depreciation and amortization expense for the six months
ended June 30, 1997 increased by $418,000 or 11.3% over the
prior period. As a percentage of revenues, depreciation and
amortization expense increased from 5.5% at June 30, 1996 to
5.8% at June 30, 1997. The increase in dollars is primarily a
result of depreciation on recent renovations and capital
improvements as well as $93,000 (or 22.2% of the total
increase)attributable to the Seaside Inn acquisition, and
increased amortization of loan costs.
Net Income. As a result of the foregoing factors, net
income for the six months ended June 30, 1997 increased by
$1.2 million or 17.3% compared to the prior period. The
Seaside Inn contributed $409,000 or 34.7% of the total
increase.
LIQUIDITY AND CAPITAL RESOURCES
South Seas has historically financed its operations and
capital expenditures with cash generated from operations,
bank borrowings, borrowings from private investors, corporate
bonds and short-term credit facilities.
On March 28, 1996, South Seas completed the public
offering of
$43,500,000 of its 10% subordinated notes as offered in the
Form S-1 Registration Statement ("Notes Offering"). The
terms of the Notes provided for the payment of interest
monthly at 10%, and with no principal reduction until
maturity on April 15, 2003.
The Notes are non-callable during the first four years of
the term then become redeemable, in whole or in part, at the
option of South Seas at various redemption prices (108.24% to
112.62% of principal) during or after the year 2000.
Subsequent to the occurrence of certain events, the holders
of Notes will be offered the opportunity to convert the Notes
at an exchange rate of $12 per partnership unit (subject to
adjustment in certain circumstances). Upon the stated
maturity of the Notes, holders of Notes will be offered the
opportunity to convert the Notes at an exchange rate of
$10.50 per unit (subject to adjustment in certain
circumstances).
South Seas believes that cash generated by operations,
together with the proceeds from the Notes Offering will be
adequate to meet its working capital, debt service and
capital expenditure requirements through 1997. South Seas'
outstanding indebtedness, together with the Notes, places
certain debt service obligations on the partnership. South
Seas intends to pursue resort and/or hotel acquisitions and
to a lesser extent development opportunities in order to
achieve growth in its portfolio of properties. A portion of
the expenditures associated with this growth strategy will be
funded with cash generated from operations and proceeds from
the Notes Offering. South Seas believes that it may be
necessary to obtain additional debt or equity capital in
order to accommodate its plan for growth and expansion in
1997 and future periods.
South Seas anticipates that implementation of its growth
strategy referred to in the preceding paragraph will require
it to obtain additional debt or equity financing. The amount
of additional financing required by South Seas in order to
implement its growth strategy will depend on several factors,
including the purchase price and renovation costs associated
with acquisitions and South Seas' available cash resources at
the time of a particular transaction. Although there can be
no assurance as to South Seas' ability to obtain financing in
the amounts it requires on commercially reasonable terms, if
at all, South Seas believes that, based upon its current
financial condition and results of operations, such financing
will be available to it. South Seas' inability to obtain
additional financing could have a material adverse effect on
its results of operations, financial condition and future
prospects. The indenture places restrictions on the amount
of additional Funded Indebtedness (as defined in the
prospectus delivered in connection with the Notes Offering)
that South Seas may incur.
In December, 1996, South Seas obtained an irrevocable,
transferable letter of credit in an amount not to exceed
$3.26 million, for use as a replacement for a reserve fund
established in connection with the Notes Offering. No
amounts had been drawn as of June 30, 1997.
In March, 1997, South Seas retained an investment banking
firm to advise the partnership on various strategic financial
alternatives, to realize its' growth plan and enhance its
equity value. As of the filing of this report, South Seas,
together with their investment bankers, have completed their
initial evaluation of the company's operations. Several
alternatives have been outlined and are currently under
review.
On June 30, 1997, South Seas had cash and cash equivalents
of approximately $2.2 million, and restricted cash of
$200,000. Cash and cash equivalents decreased by $4.2
million during the six months ended June 30, 1997.
Cash flow from operations was approximately $12.4 million
for the six months ended June 30, 1997 as compared to $6.1
million in the prior period. Cash flow from operations was
negatively impacted by a $2.1 million increase in interest
paid during 1996. This significant increase in interest paid
was attributed to the early retirement of numerous notes,
bonds and accrued interest thereon with the proceeds from the
public offering. South Seas' other major source of cash in
the 1996 period was proceeds of $43.5 million (from the Notes
Offering). In addition to funding its operating activities,
South Seas' major uses of cash during the 1996 period were
principal payments on outstanding debt of approximately $41.7
million (primarily through proceeds of the Notes Offering),
capital expenditures and asset purchases of approximately
$3.5 million, and distributions to partners of approximately
$610,000. In 1997, South Seas' major uses of cash included
payments under the revolving line of credit of $9.0 million,
the purchase of the Seaside Inn (net of liabilities assumed)
of $3.4 million, and capital expenditures of $3.9 million. At
June 30, 1997, South Seas had a combined availability under
their two revolving lines of credit of $21.3 million.
South Seas is not currently a party to any legal
proceeding which, in Management's opinion, is likely to have
a material adverse effect on its operating results or
financial position.
IMPACT OF RECENTLY ISSUED ACCOUNTING STANDARDS
In February, 1997, the Financial Accounting Standards
Board issued Statement of Financial Accounting Standards No.
128, "Earnings Per Share" ("FAS 128"), which becomes
effective for South Seas for the year ended December 31,
1997. FAS 128 replaces the presentation of primary earnings
per unit with a presentation of basic earnings per unit which
excludes dilution and is computed by dividing income
available to partnership unit holders by the weighted average
number of partnership units outstanding for the period.
Diluted earnings per unit reflect the potential dilution that
would occur if securities or other contracts to issue units
were exercised or converted into units or resulted in the
issuance of units that then shared in the earnings of the
entity. Diluted earnings per unit is computed similarly to
fully diluted earnings per unit pursuant to Accounting
Principles Board Opinion No. 15, "Earnings Per Share." FAS
128 also requires dual presentation of basic and diluted
earnings per unit on the face of the income statement for all
entities with complex capital structures and requires a
reconciliation of the numerator and denominator of the basic
earnings per unit computation to the numerator and
denominator of the diluted earnings per unit comparison. The
implementation of FAS 128 is not expected to have a material
impact on South Seas' reported results of operations.
In addition, during 1997, the Financial Accounting Standards
Board issued Statement of Financial Accounting Standards No.
129, "Disclosure of Information about Capital Structure"
("FAS 129"), No. 130, "Reporting Comprehensive Income" ("FAS
130"), and No. 131, "Disclosures about Segments of an
Enterprise and Related Information" ("FAS 131"). FAS 129
consolidates the existing requirements relating to disclosure
of certain information about an entity's capital structure.
FAS 130 establishes standards for reporting comprehensive
income to present a measure of all changes in equity that
result from renegotiated transactions and other economic
events of the period other than transactions with owners in
their capacity as owners. Comprehensive income is defined as
the change in equity of a business enterprise during a period
from transactions and other events and circumstances from
nonowner sources and includes net income. FAS 131 specifies
revised guidelines for determining an entity's operating
segments and the type and level of financial information to
be disclosed. FAS 131 requires that management identify
operating segments based on the way that management
disaggregates the entity for making internal operating
decisions. These financial accounting standards are effective
for fiscal years beginning after December 31, 1997.
Management has not determined what impact these standards,
when adopted, will have on South Seas' financial statements.<PAGE>
<PAGE>
SOUTH SEAS PROPERTIES COMPANY LIMITED PARTNERSHIP
PART II - OTHER INFORMATION
Item 1. Legal Proceedings
Not applicable
Item 2. Change in Partnership Units
Not applicable
Item 3. Defaults upon Senior Securities
Not applicable
Item 4. Submission of Matters to a Vote of Security Holders
Not applicable
Item 5. Other Information
Not applicable
Item 6. Exhibits and Reports on Form 8-K
(a) Exhibits:
Exhibit I - Weighted Average Units Outstanding
(b) Reports on Form 8-K
Not applicable
<PAGE>
<PAGE>
SOUTH SEAS PROPERTIES COMPANY LIMITED PARTNERSHIP
SIGNATURES
JUNE 30, 1997
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
ROBERT M. TAYLOR RICHARD E. KRICHBAUM
CHAIRMAN OF T&T RESORTS, L.C. VICE PRESIDENT OF FINANCE
GENERAL PARTNER OF S.S. RESORT MANAGEMENT L.C.
SOUTH SEAS PROPERTIES GENERAL PARTNER OF
COMPANY LIMITED PARTNERSHIP SOUTH SEAS RESORTS
(SIGNATURE) COMPANY, L.P.
AUGUST 14, 1997 (SIGNATURE)
AUGUST 14, 1997
TIMOTHY R. BOGOTT VIRGINIA S. BROOKS
PRESIDENT CORPORATE CONTROLLER
S.S. RESORT MANAGEMENT, L.C. S.S. RESORTMANAGEMENT,
GENERAL PARTNER OF SOUTH SEAS L.C.
RESORTS COMPANY, L.P. GENERAL PARTNER OF SOUTH
(SIGNATURE) SEAS RESORTS COMPANY, L.P.
AUGUST 14, 1997 (SIGNATURE)
AUGUST 14, 1997
<TABLE> <S> <C>
<ARTICLE> 5
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> JUN-30-1997
<PERIOD-END> JUN-30-1997
<CASH> 2,207,000
<SECURITIES> 0
<RECEIVABLES> 4,266,000
<ALLOWANCES> (155,000)
<INVENTORY> 1,671,000
<CURRENT-ASSETS> 9,869,000
<PP&E> 129,076,000
<DEPRECIATION> (42,934,000)
<TOTAL-ASSETS> 110,889,000
<CURRENT-LIABILITIES> 16,564,000
<BONDS> 43,500,000
0
0
<COMMON> 0
<OTHER-SE> (11,202,000)
<TOTAL-LIABILITY-AND-EQUITY> 110,889,000
<SALES> 70,876,000
<TOTAL-REVENUES> 70,876,000
<CGS> 24,589,000
<TOTAL-COSTS> 62,861,000
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 5,071,000
<INCOME-PRETAX> 7,986,000
<INCOME-TAX> 0
<INCOME-CONTINUING> 7,986,000
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 7,986,000
<EPS-PRIMARY> 1.80
<EPS-DILUTED> 1.19
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
SOUTH SEAS PROPERTIES COMPANY LIMITED PARTNERSHIP
CALCULATION OF WEIGHTED AVERAGE UNITS OUTSTANDING
EXHIBIT 99
The weighted average number of partnership units used in the computation
of earnings per unit is as follows:
Six Months
Ended June 30
1996 1997
<S> <C> <C>
Actual number of units
outstanding at the beginning of the
period 4,308,568 4,426,568
Weighted average number of units issued
during the period 22,667 0
Weighted average number of units
outstanding during the period 4,331,235 4,426,568
</TABLE>
1
AMENDMENT NO. 1 TO SOUTH SEAS PROPERTIES
COMPANY LIMITED PARTNERSHIP
MANAGEMENT EQUITY INCENTIVE PLAN
This Amendment No. 1 to the South Seas Properties Company
Limited Partnership Management Equity Incentive Plan is
adopted this 1 2th day of June , 1997 by South Seas
Properties Company Limited Partnership, an Ohio limited
partnership (the "Company").
W I T N E S S E T H:
WHEREAS, effective February 26, 1996, the Company adopted
the South Seas Properties Company Limited Partnership
Management Equity Incentive Plan (the "Plan"); and
WHEREAS, the Company desires to amend the Plan to
increase the number of Units which may be issued pursuant
to the Plan;
NOW, THEREFORE, the Plan is hereby amended by
substituting the number 1,100,000 for 840,000 in the
first sentence of Section 4 of the Plan.
IN WITNESS WHEREOF, the Company, by its General Partner,
has
executed this document this 12th day of June , 1997,
effective for all purposes as of June 12th , 1997.
By:
91\17537CYA.60A
-
SOUTH SEAS PROPERTIES COMPANY
LIMITED PARTNERSHIP
T & T R ~ ~ , L.C., General
Partner
)~
ROBERT M. TAYLOR, Chairman J
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"), Barnett Bank, N.A., a national banking
association, formerly known as Barnett Bank of Lee
County, N.A. ("Barrett") and FINOVA Capital
Corporation, a Delaware corporation formerly known
as
Greyhound Financial Corporation ("lINOVA") (each
of
CLNY, Barnett 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.
<PAGE>
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 Lee 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 Barnett, 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 Barnett's 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 Barnett 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:
2
<PAGE>
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
Barnett, dated January 6,
1997, recorded January 6, 1997, in Official
Records Book 2779 at Page 0179, of
the Public Records of Lee 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 Barnett in certain
of the Seaside Collateral. The
interest of Barnett in the balance of the Seaside
Collateral has been terminated and
canceled under the Termination Agreement of even
date herewith executed by
Barnett 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, Barnett 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
<PAGE>
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 Lee 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
Collier 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 Lee County, Florida, more particularly
described in Exhibits "A-3"
("Sundial"), "A-4" ("Dunes"), "A-5" ("Sanibel
Inn"), "A-6" ("Best Western-Sanibel"), "A-7" ("Song of
the Sea") and "A-8" ("Seaside Inn") 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.
4
<PAGE>
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 Lot 2,
Block B. Sanibel Estates Unit No. 2, Plat Book 9,
Page 123, Lee County
Records,
Section 20, TWP. 46 S., Range 23E, City of
Sanibel, Lee 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
<PAGE>
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
<PAGE>
Participation Interests (Seaside!
Name of Bank
Credit Lyonnais
New York Branch
Barnett 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
<PAGE>
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
<PAGE>
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
<PAGE>
(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 Taylor 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, Taylor and Ten Broek shall,
jointly and severally, have personal
liability for:"
10
<PAGE>
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 Taylor 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, Taylor 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, Taylor 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.
<PAGE>
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
Robert M. 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
.
Robert M. Ta~
MARCO SSP, LTD., a Florida limited partnership
By: Marco SSj~r~, its General Partner
R
obert M:lor. Ch:
SOUTH SEAS RESORTS COMPANY LIMITED PARTNERSHIP, a
Florida
limited partnership
a~nagemem, L.C., a Florida
~1~ Company, its General Partner
By:
Robert M. Taylor, Manager J
By: S.S. Reports limited lip
\g
SAFETY HARBOR MANAGEMENT COMPANY, LTD., a Florida
limited
partnership
By: S.S. Resor~agement, L.C., a Florida limited
lia~lity~niany, its General Partner
By: _/ A v - -
J
Robert \~Taylor, Manager
13
<PAGE>
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:
BARNETT 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:
BARNETT 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
<PAGE>
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:
BARNETT BANK, N.A. a national banking association
By
.
FINOVA CAPITAL CORPORATION, a Delaware
corporation ~ ~
Name-. JACK FIELDS, 111
Title: OROIJP VICE PREt31L)tN l~
14
<PAGE>
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: ~
-~-,' ~
ALLEN G. TEN BROEK
,
ROBERT M. TAYL)R
15
<PAGE>
EXHIBIT A
TO FIRST AMENDMENT
EXHIBIT "A-9"
SEASIDE INN LEGAL DESCRIPTION
ATTACHED
16
<PAGE>
Commonwealth
FX~TRTT A- 9 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 T.ee (:o'3nt.y, Florirla, in P1. t.
P`ook 9, P. ge 12.3, ANn . 11
t.he ~.rant.ors right., t.it.le anrl int.erest.
t.o t.hat. port.ion of f.ot. 2, P`lock
8, SANTRF,T. F,5;T7.TF,8 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..at.es t~nit. ~ ancl t.he Nnrt.herly lot. 1
ine of thr.aforesairl T'ot. 1.S of
.Sanibel Fst.at.es unit 2, sairl propert.y haviny
its F.. ster1y . nrl
We.st.erly hounclaries respentively nn t.he hank
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 fore.sa ir1 pl at. nf Ran i
bel
F.st.. te.~. lJnit. ~ t.oget.her wit.h any anrl al
1 riparian right.s
t.here'~nt.o helr~nging nr ot.herwise pert.aining.
<PAGE>
EXHIBIT B
TO FIRST AMENDMENT
SEASIDE INN IMPROVEMENTS
ATTACHED
17
<PAGE>
EXHIBIT B TO
FIRST ANSEAS:tlJE) TO AMENDED AND RESTATED JOAN
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
<PAGE>
EXHIBIT C
TO FIRST AMENDMENT
LITIGATION PROCEEDINGS
*
(i) Gail Dvoretz v. The Cottages of South Seas
Condominium Association. South
Seas
Resort Limited Partnership. et al.; Case No.
93-008031-CA
*
(ii) George Jammel v. South Seas Resort Limited
Partnership
*
(iii) Filbert v. Pink Shell
(iv) Artis Floyd 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.
Elaine Brandenstein
(viii) American Hospitality Purchasing Inc.
(ix) Embassy Kosher Tours. Inc. v. Roger Kumar
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) John Johnson v. S.S. Resort
Management; EEOC Case No. 150961569
(xii) Mohammad Mahmoud v. South Seas Plantation,
EEOC Charge No. 15L-96-0131;
LCDHR Charge No. 96143E
(xiii) Clayton Strong, 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.
H:\users\wp\credit\ssr\fi~e3.5\documts\amend.cn5:5.28.97:diz 18
THIS AMENDED, RESTATED AND CONSOLIDATED REVOLVING
CREDIT
NOTE AMENDS, RESTATES AND CONSOLIDATES (A) THAT
CERTAIN
RENEWAL COMMERCIAL PROMISSORY NOTE DATED AS OF
JUNE 20,
1995 (THE "ORIGINAL SEASIDE NOTE") EXECUTED IN
FAVOR OF
BARNETT BANK OF LEE COUNTY, N.A. AND ASSIGNED
CONCURRENTLY HEREWITH TO LENDER, IN THE ORIGrNAL
PRINCIPAL AMOUNT OF $2,566,146.71; AND (B) THAT
CERTAIN
SEASIDE ADDITIONAL ADVANCE NOTE OF EVEN DATE
HEREWITH
(THE "SEASIDE ADVANCE NOTE") EXECUTED IN FAVOR OF
LENDER,
IN THE ORIGINAL PRINCIPAL AMOUNT OF $1,008,653.29.
SEASIDE CONSOLIDATED, AMENDED
AND RESTATED REVOLVING CREDIT NOTE
U.S. $3,500,000.00
1. Parties.
Fort Lauderdale, Florida
As of May 30, 1997
1.1 South Seas Properties Company Limited
Partnership,
an Ohio limited partnership ("SSPC") (formerly
known as
Captiva Resort Company Limited Partnership, the
"Borrower"; use of such term hereinafter shall
include
all entities constituting Borrower, including the
general partner of SSPC, and at the same time,
SSPC).
1.2 Credit Lyonnais New York Branch, a branch duly
licensed under the laws of the State of New York,
of
Credit Lyonnais, S.A., a barking corporation
orgaruzed
and existing under the laws of the Republic of
France
("CLNY"), Barnett Bank, N.A., a national banking
association formerly known as Barnett Bank of Lee
County, N.A. ("Barrett") and FINOVA Capital
Corporation, a Delaware corporation formerly known
as
Greyhound Financial Corporation ("lINOVA") (each
of
CLNY, Barnett 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").
2. Definitions. Except as set forth in Section
4
hereof, capitalized terms used herein which are
not
otherwise defined herein shall have the meanings
given
in that certain Amended and
Restated Loan Agreement dated September 26,
1996, as amended by the First
Amendment to Amended and Restated Loan Agreement
of even date herewith, and
together with any other written amendments and
modifications thereto (the "Loan
Agreement"). This Amended, Restated and
Consolidated Revolving Credit Note, the
Amended and Restated First Mortgage and Security
Agreement and Notice and
Future Advance of even date herewith (the "Seaside
Mortgage"), the "Security
Documents" described in the Seaside Mortgage, and
other related security
documents, together shall be the "Seaside Loan
Documents".
3. Borrower's Promise to Pav. For value received,
Borrower promises to pay to the order of
Administrative Agent for the account of Lender,
its successors or assigns, on the
Maturity Date, the principal sum of THREE MILLION
FIVE HUNDRED
THOUSAND AND NO/100 DOLLARS ($3,500,000.00) (the
"Principal"), or
such lesser amount as shall be outstanding
hereunder, together with interest as
hereinafter provided in Section 4 on the dates set
forth herein. From the date hereof
to (but not including) the Maturity Date, Borrower
may borrow up to the amount of
this Seaside Consolidated Revolving Credit Note
(the "Seaside Revolving Credit
Note"), repay all or any portion of this Seaside
Revolving Credit Note and reborrow
up to the Principal amount of this Seaside
Revolving Credit Note, provided that
borrowings hereunder may be made only if such
borrowings would be permitted
under the terms and conditions set forth in the
Loan Agreement.
3.1 Amendment of Indenture to Correct Definition:
The definition of "Permitted Real Property
Indebtedness" under the Indenture (as defined in
the Loan Agreement) 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 Seaside
Revolving Credit Note, 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
thereunder) 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 below, shall commence to
be due and payable.
The schedule of Principal repayment hereunder upon
such conversion ofthis Seaside Revolving
Credit Note to a term note (the "Converted Seaside
Term Note") shall be as
follows:
(a) four (4) equal principal payments, equal (in
the aggregate) to 6.75% of the outstanding principal
balance as of the date of such conversion to a
term note (such date, the "Conversion
Date") payable quarterly, beginning on March 31,
1999;
(b) four (4) equal principal payments, equal (in
the aggregate) to 8.125% of the outstanding
principal balance on the Conversion Date payable
quarterly beginning March 31,
2000;
(c) two (2) equal principal payments, equal (in
the aggregate) to 4.6M5% of the outstanding
principal balance on the Conversion Date payable
quarterly beginning March 31,
2001;
2
with the remaining outstanding principal balance
ofthe Converted Seaside Term Note
being due and payable in one payment, together
with any accumulated and unpaid
interest thereon, on the Maturity Date.
If the Definitional Amendment has been effected on
the terms and conditions set forth in this Seaside
Revolving Credit Note 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 the "Borrower" under
the Loan Agreement 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 by Lender to effectuate the foregoing. If
the Seaside Loan is consolidated
into the Revolving Credit Loans, Borrower shall
pay all costs and expenses associated
therewith.
3.2 Yoluntarv Prepayment of Principal under
Converted Seaside Term Note. The outstanding Base
Rate Portion or Libor Rate Portion of the
Converted Seaside Term Note may be fully
or partially prepaid without bonus or penalty
(except applicable Prepayment
, Costs) from time to time provided that: ~i) no
Event of Default has occurred (unless it has been
cured within the applicable cure period) under any
of the Security Documents; and
(ii) any such prepayment shall be in an amount not
less than $500,000.00, or integral
multiples thereof, and shall be paid at the end of
any applicable interest period upon
not less than 3 Business Days' prior written
notice to Agent. The repayment of any
Base Rate Portion shall be accompanied by accrued
interest for such Base Rate
Portion through the date of prepayment. Amounts
prepaid may not be reborrowed. All
prepayments of Principal shall be divided pro
tanto among (and credited to) each of
the scheduled payments of Principal (to the extent
not then due) described in Section
3.1 above.
4. Interest Rate: Payments.
4.1 As long as there is no Default or Event of
Default hereunder, Borrower shall pay interest on the
outstanding Principal balance of this Seaside
Revolving Credit Note Loan at the
Adjusted Base Rate on the Base Rate Portion, and
at the corresponding Adjusted
Libor on each Libor Portion.
The calculation of the Base Rate Spread for any
Base Rate Interest Period, and the Libor Spread for
any Libor Interest Period, shall be performed
quarterly on a prospective basis on or
before 25 days after the end of such quarter by
analyzing the preceding four quarters.
The ratio ofthe Outstanding Loan Amount to EBITDA
for the preceding Period will
determine the applicable Base Rate Spread or Libor
Spread, which Base Rate Spread
or Libor Spread will be adjusted and
3
applied the day following receipt by Agent of the
calculations with regard to the Base
Rate Spread and the Libor Spread.
For purposes of this Seaside Revolving Credit
Note, the term "Outstanding Loan Amount" shall
mean the aggregate principal amount outstanding
under the Notes and this Seaside
Revolving Credit Note at any relevant time.
4.2 The Adjusted Base Rate and the Adjusted Libor
shall be computed on the basis of a three
hundred sixty (360) day year and the actual number
of days elapsed (in, shall accrue
for each day any Principal portion of this Seaside
Revolving Credit Note is
outstanding
at the relevant interest rate(s) divided by 360).
4.3 Borrower shall pay accrued interest on the
Base Rate Portion on a monthly basis, in arrears, on
the last day of each month. Borrower shall also
pay accrued interest on any Libor
Portion if and when terminated before the
expiration of the applicable Libor Interest
Period.
4.4 Borrower shall, subject to the provisions of
Section 4.6 hereafter, pay accrued interest on each
Libor Portion, in arrears, on the earlier of (a)
the last day of each month during the
corresponding Libor Interest Period and (b), as to
any expiring Libor Interest Period,
the date upon which the Libor Interest Period
expires.
4.5 Any change in the interest rate from Base Rate
to, or from Libor to Base Rate, or from one Libor
to another, shall be effective on the date
specified by Agent to Borrower.
4.6 All payments hereunder shall be made to Agent,
for the account of Lender, in lawful money of
the United States of America without set-off,
deduction or counterclaim. All
payments shall be made no later than 1:00 P.M.
(Eastem Standard Time) on the date
on which a payment is due, in immediately
available funds to the account of Agent
at its office specified below. If any such payment
falls on a day that is not a Business
Day, the date of such payment shall be the
immediately preceding Business Day.
4.7 Notwithstanding the foregoing, neither any
rate of interest charged hereunder nor the Default
Rate shall at any time exceed the maximum rate of
interest permitted by applicable
law in effect from time to time. In the event that
any interest rate or the Default Rate
exceeds the maximum percentage pemmitted by
applicable law in effect from time
to time during the temm of this Seaside Revolving
Credit Note, only the maximum
percentage pemmissible shall then be charged, but
thereafter in any period during
which the rate is less than the maximum percentage
pemmissible by applicable law
in effect from time to time, the interest rate and
the Default Rate shall be increased
so that Lender, its successors or assigns, may
collect interest in such amount (up to
the maximum percentage permitted by applicable
law) as may have been charged
pursuant to the temls of this Seaside Revolving
Credit Note, but which was not
charged because of the limitation imposed by law.
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4.8 If the calculation of interest or the
imposition of a change in the rate of interest upon
default or
the payment of any fees or other charges that are
construed to be interest under
applicable law in effect from time to time, result
in an effective rate of interest higher
than that pemmitted to be paid under applicable
law in effect from time to time, then
such charges shall be reduced by a sum sufficient
to result in an effective rate of
interest no greater than the maximum effective
rate of interest permitted to be paid
under applicable law in effect from time to time.
The Agent may, in determining the
maximum rate permitted under applicable law in
effect from time to time, take
advantage of: (i) the rate of interest permitted
by Florida Statutes, Chapter 665
(Florida Savings Association and Savings Bank
Act), by reason of both Section
687.12, Florida Statutes ("interest rates; parity
among licensed lenders or creditors")
and 12 United States Code, Sections 85 and 86, and
(ii) any other law, rule, or
regulation in effect from time to time, available
to Lender that exempts Lender from
any limit upon the rate of interest it may charge
or grants to Lender the right to charge
a higher rate of interest than that permitted by
Florida Statutes, Chapter 687. Upon
maturity of this Seaside Revolving Credit Note,
whether by acceleration or in due
course, interest shall be recalculated over the
actual life of the loan evidenced hereby
based upon the amounts outstanding, and if the
total amount of interest theretofore
paid exceeds the amount permitted to be paid under
applicable law in effect from time
to time, the excess shall be credited to
Principal, or if such excess exceeds the
Principal amount due hereunder, refunded to the
Borrower.
4.9 As provided in the Loan Agreement, Mortgage,
and Seaside Mortgage, if at any time Borrower is
required by law to make any deduction or
withholding in respect to any taxes, duties
or other charges f om any payment due hereunder,
the sum due from Borrower in
respect of such payments shall be increased to the
extent necessary to insure that, after
the making of such deduction or withholding,
Lender receives and retains a net sum
equal to the sum that it would have received had
no such deduction or withholding
been required to be made. Borrower shall promptly
deliver to Agent receipts,
certificates or other proof evidencing the amounts
(if any) paid or payable in respect
of such deduction or withholding.
4.10 New Libor Portions. Borrower shall have the
right to elect, from time to time during the term of
the Seaside Loan, to include in a new Libor
Portion: (i) all or any portion of the then
outstanding Base Rate Portion; or (ii) any Libor
Portion for which the applicable
Libor Interest Period shall have expired as of the
commencement of the new Libor
Interest Period, in each case subject to the
following:
(a) No default shall have occurred under this
Seaside Revolving Credit Note
and no Event of Default shall have occurred under
any of the Loan Documents or the
Seaside Loan Documents; and
(b) At least three Business Days prior to the
date Borrower intends that the
requested new Libor Interest Period commence,
Borrower shall notify Agent, in
writing (by telex, facsimile or other written
means) of the Principal amount- of the
Seaside Loan that Borrower desires to become (or
continue as) a new Libor Portion,
the desired length of the new Libor Interest
5
<PAGE>
Period on such Libor Portion and the desired date
of commencement of the new
Libor Interest Period.
If the above conditions are met, Agent shall
endeavor to quote to Borrower the Adjusted Libor and
the new Libor Interest Period shall commence on
the requested Libor Portion. Agent
shall thereafter confirm to Borrower, in writing,
the establishment of the new Libor
Portion, setting forth the respective Adjusted
Libor and Libor Interest Period.
4.11 If an Adjusted Libor is not, in Agent's
judgment, reasonably available at the time requested or
for the Libor Interest Period requested, the
portion of the Principal amount of this
Seaside Revolving Credit Note then outstanding
that would have been subject to the
new Adjusted Libor shall bear interest at the
Adjusted Base Rate until such time as
(i) in Agent's judgment, an Adjusted Libor is
reasonably available, (ii) Agent notifies
Borrower in writing that Adjusted Libor is
available, and (iii) Borrower confirms to
Lender in writing its desire for such portion of
such Principal amount to be subject
to Adjusted Libor.
5.
Conversion Options.
(a) Subject to the limitation contained in
paragraph 5(b), the Borrower may elect from time to
time
to convert Base Rate Loans to Libor Rate Loans, or
Libor Rate Loans to Base Rate
Loans, by providing the Agent not less than three
Business Days prior irrevocable
notice of such election, specifying the amount to
be so converted and (in the case of
conversions from Base Rate Loans to Libor Rate
Loans) the initial Interest Period
relating thereto; provided, however, that any such
conversion shall only be made on
a Business Day and any such conversion of Libor
Rate Loans shall only be made on
the last day of an Interest Period with respect
thereto. The Agent shall promptly
provide the Participants with notice of any such
election. The Principal portion of the
Seaside Loan may be converted pursuant to this
paragraph 6(a) in whole or in part,
provided that partial conversions to Libor Rate
Loans shall be in an aggregate
principal amount of $250,000 or such amount plus a
whole multiple of $250,000.
(b) Notwithstanding anything in this paragraph 5
to the contrary, no Base Rate Loan may be
converted to a Libor Rate Loan, and no Libor Rate
Loan may be extended as a Libor
Rate Loan, when any Default or Event of Default
has occurred and is continuing. In
such event, each such Loan which is not already a
Base Rate Loan shall be
automatically converted to a Base Rate Loan on the
last day of the Interest Period for
which a Libor Rate was determined at or prior to
the time when the Agent andlor any
of the Participants obtained knowledge of such
Default or Event of Default. The
Agent shall promptly provide the Participants with
notice of any such conversion.
Interest on any Libor Rate Loan (before the
applicable Libor Interest Period expires)
and on such Base Rate Loan (after the expiration
of the Libor Interest Period) shall
then be payable at the Default Rate.
6. Increased Costs. If any Regulatory Change
shall, in the determination of Agent: (i) subject
Lender
to any tax, levy or other governmental charge with
respect to the Seaside Loan or
6
<PAGE>
change the basis of taxation of payments by
Borrower to Lender in respect of the
Seaside Loan; (ii) impose, modify or hold
applicable any reserve, special deposit or
similar requirement against the assets of,
deposits or other liabilities of, or for the
account of, or similar loans or commitments by,
Lender with respect to the Seaside
Loan; (iii) require or expect Lender or any
Affiliate of Lender to maintain capital in
amounts in excess ofthose amounts it determines to
be adequate (after taking into
account Lender's policies as to capital adequacy);
or (iv) impose on Lender any other
condition with respect to the Seaside Loan or
Lender's obligation to make the Seaside
Loan, and the result of any of the foregoing is to
increase the cost to Lender of making
or maintaining the Seaside Loan or to reduce the
amount of any sum received or
receivable by Lender hereunder (collectively, the
"Increased Costs"), then Borrower
shall pay to Agent, for the account of Lender, on
demand, from time to time, such
additional amounts as may be necessary to
reimburse Lender for such Increased Costs
or to compensate Lender for such reduced amounts.
Notice from Agent to Borrower
of Increased Costs shall be conclusive evidence
(except in the case of demonstrable
error) of Borrower's obligation to pay the sums
stated in the notice. All Increased
Costs shall constitute additional sums payable
with respect to the outstanding
Principal balance due under this Seaside Revolving
Credit Note; provided, however,
that such sums, if characterized as interest under
applicable law, shall not be applied
in reduction of accrued and unpaid interest.
7.
Illegality or Impossibility.
7.1 If, at any time, it shall become unlawful by
reason of any Regulatory Change (or if compliance
therewith shall make it impossible) for Lender to
charge or collect interest on any
Libor Portion at the corresponding Adjusted Libor
or if by reason of circumstances
affecting the interbank eurodollar market,
generally, adequate and fair means do not
or will not exist for determining any Libor
applicable to any Libor Interest Period, or
that such Libor, as determined by Lender, will not
accurately reflect the cost to Lender
of making or maintaining the Libor Portion at the
Adjusted Libor, then, upon notice
from Agent to Borrower: (i) all then existing
Libor Portions shall be immediately
terminated and the entire outstanding Principal
balance of the Seaside Loan shall bear
interest at the Adjusted Base Rate; (ii) Borrower
shall pay all Prepayment Costs in
connection with the termination of any Libor
Interest Period; and (iii) Borrower's right
to elect new Libor Portions hereunder shall
terminate. However, in the event the
Agent determines, in its sole discretion, that
Lender may lawfully continue to maintain
the existing Libor Portions at the applicable
Adjusted Libor or until the expiration of
the applicable Libor Interest Period, the notice
from Agent shall terminate only
Borrower's right to elect new Libor Portions
hereunder. If, at any time after such
notice, Agent determines in its sole discretion
that, because of a change in
circumstances, Libor Portions are again available
to Borrower, Agent shall so advise
Borrower and Borrower's right to elect new Libor
Portions hereunder shall resume.
7.2 If, at any time, it shall become unlawful by
reason of any Regulatory Change (or if compliance
therewith shall make it impossible) for Lender to
enforce Borrower's obligations (or
any of them) hereunder, then, upon notice from
Agent to Borrower, the entire
outstanding Principal balance of the Seaside Loan,
together with interest thereon and
any other amounts due Lender under this Seaside
Revolving Credit Note or the Loan
Documents or the Seaside Loan
7
<PAGE>
Documents, including, without limitation, any
Prepayment Costs, shall become
immediately due and payable.
8. Application of Payments. So long as no default
has occurred in this Seaside Revolving Credit
Note, all payments hereunder shall first be
applied to Prepayment Costs (if
applicable), then to accrued and outstanding
interest, then to Principal, and the
remainder to costs pursuant to Section 11
hereinafter. However, prepayments applied
to Principal shall be applied in the manner
described in Sections 3.2 and 4 above, as
applicable. Upon default under this Seaside
Revolving Credit Note, all payments
hereunder shall be applied to sums due under this
Seaside Revolving Credit Note and
the other Loan Documents in such order as Lender
shall determine in its sole
discretion.
9. Other Instruments.
9.1 The Loan Documents and the Seaside Loan
Documents provide for other and additional
obligations of Borrower to Administrative Agent,
Collateral Agent and Lender.
Reference is made to the provisions of the Loan
Documents and the Seaside Loan
Documents for a description of the further rights
of the Administrative Agent,
Collateral Agent and Lender. It is expressly
agreed that all such covenants,
conditions, terms and agreements contained in the
Loan Documents and the Seaside
Loan Documents are made a part of this Seaside
Revolving Credit Note, and this
Seaside Revolving Credit Note is subject to such
Loan Documents and Seaside Loan
Documents. An Event of Default under any one or
more of the Loan Documents or
the Seaside Loan Documents, or both, shall
constitute an Event of Default under this
Seaside Revolving Credit Note.
9.2 Participation Interests. The term
"Participation Interests" as used in the Loan Agreement
shall,
with respect to this Seaside Revolving Credit
Note, mean the Participants' interests
in the Seaside Loan, expressed as a percentage of
the Seaside Loan, and shall be part
passu (in the relative proportions of the
Participation Interests) as to all obligations
to make Advances and rights to receive payments,
whether of principal and interest
or fees and other charges. The Participants shall
be bound by the provisions of the
Loan Agreement with regard to the relationship
among them and with the Collateral
Agent and Administrative Agent.
10. Place of Payment. All payments hereunder shall
be made at Agent's offices at Credit Lyonnais
Building, 1301 Avenue ofthe Americas, New York,
New York 10019, or such other
place as Agent may from time to time designate in
writing.
1 1. Default.
11.1 If(except as to all payments of Principal and
all other sums due hereunder on the Maturity Date,
which sums shall be paid in full on that date
without a cure period) any payment of
interest due hereunder is not paid within five (5)
days of its due date, or if any other
payment due under any Loan Document or Seaside
Loan Documents is not (subject
to applicable notice and cure) paid as and when
due, or if any Event of Default, as
such term is defined in any of the Loan
8
<PAGE>
Documents, occurs, or if any obligation of
Borrower hereunder or under any of the
Loan Documents or Seaside Loan Documents is not
fully performed, then this Seaside
Revolving Credit Note shall be in default. While
the Seaside Revolving Credit Note
is in default, sums due hereunder shall bear
interest, and Lender shall automatically
be entitled to collect interest, at an annual rate
of interest equal to the lesser of: (i)
three percent (3%) per annum over the Adjusted
Rate; and (ii) the maximum rate of
interest permitted by law from time to time (the
"Default Rate").
a_ ~ Lender shall not be required to accelerate
payment of principal under this Seaside Revolving
Credit Note in order to be able to be paid the
Default Rate.
11.2 In addition to constituting a default under
the Loan Documents and Seaside Loan Documents, a
default hereunder shall also be deemed a default
under all notes, obligations, liabilities
and agreements of Borrower to, with or for the
benefit of Lender (or to, with or for the
benefit of any of Lender's affiliates), whether
now existing or hereafter arising and a
default under any note, obligation, liability or
agreement of Borrower to, with or for
the benefit of Lender (or to, with or for the
benefit of any of Lender's affiliates),
whether now existing or hereafter arising, shall
be deemed a default under this Seaside
Revolving Credit Note.
11.3 Upon default under this Seaside Revolving
Credit Note, unless maturity of this Seaside
Revolving Credit Note has already been accelerated
under any of the Loan Documents
or Seaside Loan Documents, the Administrative
Agent or the Collateral Agent, at its
option, may declare the entire unpaid Principal
balance of this Seaside Revolving
Credit Note, together with accrued and unpaid
irderest, to be immediately due and
payable without notice or demand. Notwithstanding
anything to the contrary contained
in this Seaside Revolving Credit Note, following
default, the entire unpaid Principal
amount of this Seaside Revolving Credit Note
(whether or not same has been
accelerated) shall bear interest at the Default
Rate. In the event of acceleration of
maturity of this Seaside Revolving Credit Note,
Agent may, in its sole discretion, also
terminate any Libor Portions, in which event
Borrower shall also pay all Prepayment
Costs resulting from such termination.
11.4 In addition to payments of interest and
Principal, if there is a default under this Seaside
Revolving Credit Note, the Administrative Agent,
Collateral Agent, or Lender, or all
three, shall be entitled to recover from the
Borrower all of the Administrative Agent,
Collateral Agent and Lender's costs of collection
or enforcement or attempted
enforcement of this Seaside Revolving Credit Note,
any of the Loan Documents or
Seaside Loan Documents, or all thereof, as well as
those arising as a result of such
default, including the Administrative Agent,
Collateral Agent and Lender's reasonable
attorneys' fees and disbursements, paralegals'
fees, legal assistants' fees and
consultants' fees (whether incurred in connection
with any judicial, bankruptcy,
reorganization, administrative, appeals or other
proceedings and whether such fees or
expenses arise before proceedings are commenced or
after entry of any judgment), and
all other costs incurred in connection therewith.
12. Late Charge. A late charge of five percent
(5%) of any payment required hereunder shall be
*mposed on each and every payment not received by
the Agent within ten (10) days
after
9
<PAGE>
it is due. The late charge is in addition to any
*merest required to be paid at the
Default Rate and is not a penalty, but liquidated
damages to defray administrative and
related expenses due to such late payment. The
late charge shall be immediately due
and payable and shall be paid by the Borrower to
the Agent without notice or
demand. This provision for a late charge is not
and shall not be deemed a grace
period, and Agent has no obligation to accept a
late payment. Further, the acceptance
of a late payment shall not constitute a waiver of
any default then existing or
thereafter arising under this Seaside Revolving
Credit Note.
13. Waivers. The Borrower and any endorsers,
sureties, guarantors, and all others who are, or may
become liable for the payment hereof, severally:
(a) waive presentment for payment,
demand, notice of demand, notice of non-payment or
dishonor, protest and notice of
protest of this Seaside Revolving Credit Note, and
all other notices in connection
with the delivery, acceptance, performance,
default, or enforcement of the payment
of this Seaside Revolving Credit Note; (b) consent
to all extensions of time,
renewals, postponements of time of payment of this
Seaside Revolving Credit Note
or other modifications hereof from time to time
prior to or after the Maturity Date
hereof, whether by acceleration or in due course,
without notice, consent or
consideration to any of the foregoing; (c) agree
to any substitution, exchange,
addition, or release of any of the security for
the indebtedness evidenced by this
Seaside Revolving Credit Note or the addition or
release of any party or person
primarily or secondarily liable hereon; (d) agree
that neither the Administrative Agent
nor Collateral Agent nor Lender shall be required
first to institute any suit, or to
exhaust its or their remedies against the
undersigned or any other person or party
liable hereunder or against the security in order
to enforce the payment of this Seaside
Revolving Credit Note; and (e) agree that,
notwithstanding the occurrence of any of
the foregoing (except by the express written
release by Agent of any such person),
the undersigned shall be and remain, jointly and
severally, directly and primarily
liable for all sums due under this Seaside
Revolving Credit Note.
14. Miscellaneous Provisions.
14.1 Subject to applicable notice and cure
periods, time is of the essence with respect to each
and
every covenant, agreement and obligation of
Borrower under this Seaside Revolving
Credit Note and the other Loan Documents and
Seaside Loan Documents.
14.2 The captions of sections of this Seaside
Revolving Credit Note are for convenience of
reference only, and shall not affect the
construction or interpretation of any of the
terms and provisions set forth in this Seaside
Revolving Credit Note. The singular
shall include the plural and the plural the
singular, as the context provides.
14.3 Borrower and its general partner shall be
jointly and severally liable hereunder. Borrower's
limited partners shall not be personally liable
for repayment of principal, interest or
"Prepayment Costs" under this Seaside Revolving
Credit Note.
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14.4 This Seaside Revolving Credit Note shall be
construed, interpreted, enforced and governed by
and in accordance with the laws ofthe State of
Florida and with federal law, in the
event federal law permits a higher rate of
interest than Florida law.
14.5 If any provision or portion of this Seaside
Revolving Credit Note is declared or found by a court
of competent jurisdiction to be unenforceable or
null and void, such provision or
portion thereof shall be deemed stricken and
severed from this Seaside Revolving
Credit Note, and the remaining provisions and
portions thereof shall continue in full
force and effect.
14.6 This Seaside Revolving Credit Note may not be
amended, extended, renewed or modified
except by instrument in writing executed by an
authorized officer of Agent and by
Borrower, including its general partner, nor shall
any waiver of any provision hereof
be effective except by an instrument in writing
executed by an authorized of fleer of
the Agent. Any waiver of any provision hereof
shall be effective only in the specific
instance and for the specific purpose for which
given. This Seaside Revolving Credit
Note is entitled to all benefits accruing to Agent
and Lender under the Loan
Documents and Seaside Loan Documents.
14.7 This Seaside Revolving Credit Note may be
executed in any number of duplicate originals, and
each such duplicate original shall be deemed to
constitute but one and the same
instrument.
15. Waiver of Counterclaims. Borrower and its
partners hereby waive the right to impose, in any
action with respect to this Seaside Revolving
Credit Note, the Loan Documents or the
Seaside Loan Documents, any counterclaim (except
mandatory counterclaims) or to
have any such action consolidated with any other
or separate suit, action or
proceeding. Nothing herein contained shall prevent
or prohibit Borrower or its
partners from instituting or maintaining a
separate action against Lender with respect
to any asserted claim.
16. Amendment of Existing Seaside Note and Advance
Note: Conflict. This Seaside Revolving
Credit Note amends, consolidates and restates the
terms of the Existing Seaside Note
and the Advance Note, but is not given in payment
or satisfaction of any or all of the
Existing Seaside Note or the Advance Note, and
does not extinguish the indebtedness
represented thereby. In the event of a conflict
between the terms of this Seaside
Revolving Credit Note and the terms of the
Existing Seaside Note or the Advance
Note, or any of them, the terms of this Seaside
Revolving Credit Note shall control.
17. CLNY as Administrative Agent for Lender.
Borrower acknowledges that CLNY, which, together
with Barnett and FINOVA, constitutes Lender,
serves as Administrative Agent for
Lender hereunder pursuant to the Loan Agreement.
CLNY, as Administrative Agent,
shall have the right to take all actions and
exercise all rights on behalf of, for the
account of and in the name of Lender under this
Seaside Revolving Credit Note and
all of the Loan Documents and Seaside Loan
Documents and Borrower shall accept
such actions and performance by Administrative
Agent as authorized on behalf of, for
the account of and in the name of Lender. In the
event CLNY shall
11
<PAGE>
assign its rights as Administrative Agent, at its
option it shall thereafter be relieved
of any further responsibility under this Seaside
Revolving Credit Note and the Loan
Documents and Seaside Loan Documents. All
covenants, agreements,
representations, warranties, indemnifications,
obligations and performances of
Borrower or others to Lender under the Seaside
Loan, this Seaside Revolving Credit
Note and the Loan Documents and Seaside Loan
Documents shall also be deemed
to run to, benefit, include and be enforceable by
Administrative Agent.
18. CLNY as Collateral Agent for Lender. Borrower
acknowledges that CLNY, which, together
with Barnett and FINOVA, constitutes Lender,
serves as Collateral Agent for Lender
hereunder pursuant to the Loan Agreement. CLNY, as
Collateral Agent, shall have
the right to take all actions and exercise all
rights on behalf of, for the account of and
in the name of Lender under this Seaside Revolving
Credit Note and all of the Loan
Documents and Seaside Loan Documents and Borrower
shall accept such actions and
performance by Collateral Agent as authorized on
behalf of, for the account of and
in the name of Lender. In the event CLNY shall
assign its rights as Collateral Agent,
at its option it shall thereafter be relieved of
any further responsibility under this
Seaside Revolving Credit Note and the Loan
Documents and Seaside Loan
Documents . All covenants, agreements,
representations, warranties,
indemnifications, obligations and performances of
Borrower or others to Lender
under the Seaside Loan, this Seaside Revolving
Credit Note and the Loan Documents
and Seaside Loan Documents shall also be deemed to
run to, benefit, include and be
enforceable by Collateral Agent.
19. WAIVER OF TRIAL BY JURY. LENDER,
ADMINISTRATIVE AGENT, COLLATERAL
AGENT, AND BORROWER HEREBY KNOWINGLY, IRREVOCABLY,
VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT ANY
MAY
HAVE TO A TRIAL BY JURY IN RESPECT OF ANY ACTION,
PROCEEDING
OR COUNTERCLAIM BASED ON THIS SEASIDE REVOLVING
CREDIT
NOTE, OR ARISING OUT OF, UNDER OR IN CONNECTION
WITH THIS
SEASIDE REVOLVING CREDIT NOTE OR ANY LOAN DOCUMENT
OR
SEASIDE LOAN DOCUMENT, OR ANY COURSE OF CONDUCT,
COURSE
OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN)
OR
ACTIONS OF ANY PARTY HERETO OR TO ANY LOAN
DOCUMENT OR
SEASIDE LOAN DOCUMENT. THIS PROVISION IS A
MATERIAL
INDUCEMENT FOR LENDER, ADMINISTRATIVE AGENT,
COLLATERAL
AGENT AND BORROWER AND ITS RESPECTIVE PARTNERS
ENTERING
INTO THE SUBJECT LOAN TRANSACTION.
12
<PAGE>
THE PROPER FLORIDA DOCUMENTARY STAMP TAX HAS
BEEN PAID ON THIS
SEASIDE REVOLVING CREDIT NOTE AND EVIDENCE OF SUCH
PAYMENT APPEARS ON THE MORTGAGE SECURING THIS
SEASIDE
REVOLVING CREDIT NOTE.
Signed, sealed and delivered in the presence of:
.'"~. ~
By
STATE OF FLORIDA
D
COUNTY OF '~
) SS:
BORROWER:
SOUTH SEAS PROPERTIES COMPANY LIMITED PARTNERSHIP,
an Ohio
limited partnership
By: 1 Resorts, L.C., a Florida limited liability
c imp - ,qts General Partner l
Byes . ,
Robert M. A, Manager J
The foregoing instrument was acknowledged before
me this NO tot day of May, 1997, by Robert M.
Taylor, as Manager of T&T Resorts, L.C., general
partner of South Seas Properties
Company Limited Partnership, an Ohio limited
partnership, on behalf of the
partnership. He is personally known to me or
produced his Florida driver's license
as identification.
H:\uscrs\wp\credit\ss~od.5\documts\revnotc.cn5:5.23.97:daz 1 3
47c~ ~ t;~e~
Notary Public, State of Florida at Large
My Commission Expires: :'.8r~ .~. MiCoMM SIN ~ CC
307~0 |
--,- EXPll2ES: August 12, 1997 1
) 4177852 tS s W:
Marshall J. Emas,Esq. ~1 ~ | ~ ~j.
English, McCaughan 8cO'B'yan, P.A. gpc~ l'\ ~ Ci; n 11
100 N.E. ThW Avenue, Suite 1100 ~q~'~&\ \\ \
Fort Lauderdale, FL 33301-1146 S
THIS AMENDED AND RESTATED FIRST Moll~GAGEg/ND SECURITY
AGREEMENT AND NOTICE AND AGREEMENT OF FUTI~YAffCE AMENDS,
INCREASES AND RESTATES THAT CERTAIN MORTGAGE DESCRIBED IN
THE RECITALS SET FORTH BELOW. FULL DOCUMENTARY STAMP AND
INTANGIBLE TAX HAS BEEN PAID ON THE AMOUNT SECURED BY THE
MORTGAGE DESCRIBED IN THE RECITALS. CONCURRENTLY
HEREWITH, MORTGAGEE HAS ADVANCED AN ADDITIONAL
$1,008,653.29 AS EVIDENCED BY THE SEASIDE ADDITIONAL
ADVANCE NOTE WHICH HAS BEEN CONSOLIDATED INTO THE NOTE
SECURED HEREBY. ADDITIONAL DOCUMENTARY STAMP AND
INTANGIBLE TAX IS BEING PAID ON THE PRINCIPAL AMOUNT OF
THE SEASIDE ADDITIONAL ADVANCE NOTE SO THAT ALL
DOCUMENTARY STAMP AND INTANGIBLE TAXES DUE ON THE NOTE
SECURED HEREBY HAVE BEEN PAID.
- AMENDED AND RESTATED FIRST
MORTGAGE AND SECURITY
AGREEMENT AND
NOTICE AND AGREEMENT OF FUTURE ADVANCE
THIS AMENDED AND RESTATED FIRST MORTGAGE AND SECURITY
AGREEMENT AND NOTICE AND AGREEMENT OF FUTURE ADVANCE
(this "Mortgage") is made as ofthe 30th day of May, 1997,
by SOUTH SEAS PROPERTIES COMPANY LIMITED PARTNERSHIP, an
Ohio limited partnership, fonnerly known as Captiva
Resort Company Limited Partnership ("SSPC") ("Mortgagor")
in favor of CREDIT LYONNAIS NEW YORK BRANCH ("CLNY"),
BARNETT BANK, N.A., a national banking association
("Barrett") and FINOVA CAPITAL CORPORATION, a Delaware
corporation ("FINOVA") (CLNY, Barnett and FINOVA are,
hereafter, individually and collectively referred to as
"Mortgagee") and CLNY as agent for Mortgagee (and, in
such capacity, "Agent").
WHEREAS, by that certain Assignment of Loan Documents
(Seaside) and by that certain Assignment of Note and
Mortgage (Seaside) (the foregoing assignments are,
collectively, the "Seaside Assignment") executed
concurrently herewith and intended to be recorded
immediately preceding the recording of this Mortgage,
Barnett has assigned, transferred and conveyed all of its
right, title and interest in the documents and
instruments described therein (including, without
limitation, that certain Mortgage and Security Agreement
dated December 23, 1986, recorded in Official Records
Book 1887, Page 1153, as modified by Receipt for Future
Advance dated
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<PAGE>
March 15, 1988, recorded in Official Records Book 1977,
Page 43, Mortgage Modification Extension Agreement dated
March 15, 1988, recorded in Official Records Book 1977,
Page 44, Mortgage Modification Agreement dated February
1,1990, recorded in Of ficial Records Book 2125, Page
3822, Receipt for Future Advance dated February 1, 1990,
recorded in Of ficial Records Book 2125, Page 3824,
Modification of Mortgage and Other Documents dated June
20, 1995, recorded in Official Records Book 2613, Page
3587, and Assumption and Modification Agreement dated
January 6, 1997, recorded January 6, 1997, in Of ficial
Records Book 2779 at Page 179, all of the Public Records
of Lee County, Florida (collectively, the "Existing
Seaside Mortgage"), the Renewal Commercial Promissory
Note described therein in the original principal amount
of $2,566,146.71 (the "Existing Seaside Note") and the
loan evidenced as secured thereby (the "Existing Seaside
Loan")) to Mortgagee, so that Mortgagee is now the sole
owner and holder thereof; and
WHEREAS, Mortgagee has agreed to advance additional sums
to the Mortgagor as evidenced by the Seaside Additional
Advance Note (the "Additional Advance Note") of even date
herewith in the original principal amount of ONE MILLION
EIGHT THOUSAND SW HUNDRED FIFTY-THREE AND 29/100 DOLLARS
($ 1,008,653.29), which Additional Advance Note has been
consolidated with the Existing Seaside Note and amended
and restated as the Seaside Consolidated, Amended and
Restated Revolving Credit Note Hereafter, the "Note") of
even date herewith in the original principal amount of
THREE MILLION FIVE HUNDRED THOUSAND AND NO/100
($3,500,000.00) DOLLARS;
WHEREAS, the Note shall hereafter constitute the "Note"
described in this Mortgage;
WHEREAS, Mortgagor and Mortgagee desire by the execution,
delivery and recording of this Mortgage, to amend,
modify, increase and restate the Existing Seaside
Mortgage, so that all the terms and conditions shall be
modified and restated in their entirety in this Mortgage,
and to cause this Mortgage to secure the Note and
performance of all obligations hereafter described.
NOW, THEREFORE, in consideration of Ten Dollars ($10.00)
and the covenants and agreements hereinafter set forth,
the adequacy and receipt of which are hereby
acknowledged, the parties, intending to be legally bound
hereby, do hereby agree as follows:
TERMS:
A. Incorporation of Recitals: The recitals set forth
above are true and correct and are incorporated herein by
reference.
B. Confirmation of Advancement of Sums Under Note:
Mortgagor confirms that Mortgagee has advanced sums under
the Additional Advance Note and the recording of this
Mortgage constitutes a notice of the future advance of
sums under the Additional Advance Note. The Existing
Seaside Note and the Additional Advance Note have been
consolidated and renewed by the Note. The Note shall
continue to be secured by the first lien of this Mortgage
with the same force, effect and priority as originally
described in the Existing Seaside Mortgage.
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<PAGE>
C. No Novation:Lien Priority: This Mortgage does not
constitute a novation of the Existing Seaside Mortgage,
or any other document evidencing or securing the Existing
Seaside Loan. Nothing herein shall be construed to alter
or affect the priority of the liens created by the
Existing Seaside Mortgage or any other documents relating
thereto, which liens shall continue to be first liens and
maintained and preserved, and be superior to, any and all
other encumbrances and interests affecting the collateral
under this Mortgage or the other documents.
D. References in Existing Seaside Mortgage: All
references to the "Security Documents" shall, hereafter,
mean and include the "Security Documents" described in
this Mortgage, the documents described in the Recitals to
this Mortgage and all amendments, modifications and
supplements to any or all of the foregoing (whether
executed prior to or concurrently with this Mortgage).
E. Payment of State Documentary or Intangible Tax: It is
represented by Mortgagor to Mortgagee that there is
neither documentary stamp tax nor intangible personal
property tax due the State of Florida with respect to any
of the prior transactions referenced herein that have not
been paid. In the event the State of Florida requires
payment of additional documentary stamp taxes or
intangible personal property taxes in connection
therewith, Mortgagor shall promptly pay for the same,
plus any interest or penalties imposed in connection
therewith, and will indemnify, defend and hold Mortgagee
harmless from and against any liability, cost or expense,
including, without limitation, attorneys' fees at trial
and appellate levels. This Mortgage shall also secure
perfommance of the Mortgagor's agreement in this
paragraph.
F. Affirmation and Ratification: The Existing Seaside
Mortgage, and all of the obligations, covenants and
undertakings therein, as restated and modified herein,
are hereby ratified and affirmed by Mortgagor in all
respects and Mortgagor shall continue to be bound
thereby. Mortgagor confirms that all representations and
warranties set forth in the Existing Seaside Mortgage are
and remain true and correct.
G. Restatement of Mortgage: Mortgagor and Mortgagee
desire to amend and restate the Existing Seaside Mortgage
in its entirety as described below and intend that the
Note and all obligations relating thereto or as set forth
in the "Security Documents" hereafter described be
secured, among other things, by this Mortgage. The
Existing Seaside Mortgage is hereby amended and restated
in its entirety as follows:
IN CONSIDERATION of the aggregate sums set forth in the
Note and any written amendments or modifications thereto,
and to secure the payment of principal, interest and
other sums described therein contained in or arising out
of the Security Documents, in accordance with the temms,
provisions and limitations of this Mortgage, and the
perfommance of the covenants and agreements herein
contained, Mortgagor does hereby grant, bargain, sell,
alien, remise, release, convey, warrant, mortgage,
pledge, assign, transfer and confirm-to the Mortgagee,
its successors and
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<PAGE>
assigns, in fee simple, all that certain property (the
"Land") in Lee County, State of Florida, more
particularly described in Exhibit "A" attached hereto and
made a part hereof;
TOGETHER WITH:
A. All buildings, structures and improvements now
existing and/or hereafter constructed, placed or erected
on the Land;
B. All appurtenances, servitudes, rights, ways,
privileges, prescriptions, water rights (including
riparian and littoral rights) accretions and advantages
that in any way now or hereafter belong to or pertain to
the Land: and, all right, title and interest of the
Mortgagor, now owned or hereafter acquired, in and to any
land lying in the bed of any street, road, or avenue,
open or proposed, in front of or adjoining the Land;
C. All fixtures, whether contained in, located on or
appurtenant to the Land and whether or not pemnanently
affixed to or used in connection with the Land, or which
may hereafter from time to time be placed thereon, and
any warranties, guaranties, accessions, substitutions or
replacements thereof;
D. All other interests of every kind and character which
Mortgagor now has or at any time hereafter acquires, in
and to the Land and/or in and to all improvements now or
hereafter thereon, which are used in connection with the
development, construction, improvement or operation of
the Land;
E. All awards and settlements hereafter made by virtue of
any exercise of the right of condemnation or eminent
domain by any authority, including any award for damage
to or taking of title to the land, or any part thereof,
or the possession thereof, or any right to any easement
affecting the Land or appurtenant thereto (including any
award for any change of grade of streets), and the
proceeds of all sales in lieu of condemnation;
F. All awards and settlements hereafter made, and all
insurance proceeds hereafter paid, for any damage to the
"Mortgaged Premises" (as defined below) and all unearned
insurance premiums on any insurance policies maintained
by Mortgagor;
G. defined); and
All awards and refunds hereafter made with respect to
any "Impositions" (as hereafter
The Land and all property and interests described or
referred to above, as well as any proceeds, products,
replacements, improvements, substitutions, renewals,
accessories and appurtenances thereto, constitute and
will hereinafter be referred to collectively as the
"Mortgaged Premises."
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<PAGE>
TO HAVE AND TO HOLD the Mortgaged Premises unto the
Mortgagee and its successors and assigns forever.
AND, Mortgagor covenants with the Mortgagee, that
Mortgagor is indefeasibly seized of the Mortgaged
Premises in fee simple or leasehold; that the Mortgagor
has full power and lawful right to convey the Mortgaged
Premises in fee simple; that it shall be lawful for
Mortgagee at all times peaceably and quietly to enter
upon, hold, occupy and enjoy the Mortgaged Premises; that
the Mortgaged Premises are free from all encumbrances
except as approved by Mortgagee in writing (the
"Permitted Encumbrances"); that Mortgagor will make such
further assurances to perfect the fee simple title to the
Mortgaged Premises in Mortgagee as may reasonably be
required and that Mortgagor does hereby fully warrant the
title to the Mortgaged Premises and will defend the same
against the lawful claims of all persons whomsoever.
PROVIDED, ALWAYS, that if the Mortgagor shall pay unto
the Mortgagee, its successors or assigns, the sum of
money mentioned in the Note secured hereby, made payable
to the order of and delivered to the Mortgagee, in and by
which said Note the Mortgagor promises to pay the
aggregate principal sum of THREE MILLION FIVE HUNDRED
THOUSAND AND NO/100 DOLLARS ($3,500,000.00) or so much
thereof as may be advanced, with interest thereon at the
rate provided in the Note with a final payment of the
unpaid principal balance and accumulated interest due and
payable on September 25, 2001, and shall pay all other
sums provided to be paid by this Mortgage and the Note,
and shall perform, comply with and abide by each and
every one of the stipulations, agreements, conditions and
covenants of the Note and of this Mortgage, and all other
collateral instruments securing the Note, if any, then
this Mortgage and the estate created hereby shall cease
and be null and void and this instrument shall be
released by the Mortgagee, at the cost and expense of the
Mortgagor.
Whenever used in this Mortgage, unless the context
clearly indicates a contrary intent, the following
definitions and rules of construction, shall apply:
(a) lghewords "Governmental Authority" shall mean any
municipal, county, state or federal governmental
authority or other governmental authority (domestic or
foreign) having or claiming jurisdiction over the Land,
the Mortgaged Premises, Mortgagee or Mortgagor.
(b) The words "Event of Default" shall have the meaning
set forth in Section 16 hereafter.
(c) The word "Mortgagor" shall mean the persons who
execute this Mortgage, any subsequent owner of the
Mortgaged Premises; any endorser or guarantor of the
Note; and their respective heirs, personal
representatives, successors, and assigns;
(d) The word "Mortgagee" shall mean, individually and
collectively, the person or persons specifically named
herein as "Mortgagee" or any subsequent holders of this
Mortgage;
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<PAGE>
may require;
(e) The word "person" shall mean an individual,
corporation, partnership, limited liability company,
governmental entity, unincorporated association or any
other entity or association;
(g)The singular number shall include the plural and the
plural the singular as the context Ad,
(f) The use of any gender shall include all genders;
(h) If Mortgagor be more than one person, all agreements,
conditions, covenants, provisions, stipulations, powers
of attorney, authorizations, waivers, releases, options,
undertakings, rights and benefits made or given by
Mortgagor shall: (i) be joint and several as to such
persons and the general partners of such persons; (ii)
apply, individually, to each person constituting
"Mortgagor" and, at the same time, to all persons, and
all general partners of such persons, constituting
"Mortgagor," collectively; and (iii) bind and affect all
persons, and all general partners of such persons, who
are defined as "Mortgagor" as fully as though all of them
were specifically named herein wherever the word
"Mortgagor" is used;
(i) The word "Mortgage" shall mean this document and any
modifications or amendments thereto;
(i) "Security Documents" shall mean any and all documents
or agreements now or hereafter or previously executed by
Mortgagor, or others, or by Mortgagor and others, in
favor of or held by Mortgagee, Agent or any of its or
their affiliates or subsidiaries, and any written
amendments or modifications thereto, which wholly or
partially secure, relate to or are executed in connection
with the loan, the debt which is represented by the Note,
as any of the foregoing may heretofore, concurrently
herewith or hereafter be amended or modified, and related
documents. The Note, this Mortgage, and all other
Security Documents heretofore or hereafter executed in
connection herewith evidence, secure and provide for
various matters related to the transaction in which the
proceeds of this Mortgage will be used and shall always
be taken and read together as constituting parts of such
transaction;
(k) The words "hereby," "hereof," "hereto," "hereunder"
and any similar words refer to this Mortgage in its
entirety and not solely to the particular section or
paragraph in which the word is used; and
AND MORTGAGOR COVENANTS AND AGREES AS FOLLOWS:
1. Representations and Warranties. Mortgagor hereby
represents and warrants to Mortgagee as follows:
1.1 Title. Mortgagor has good and marketable title in fee
simple to the Mortgaged Premises, free and clear of any
liens, charges, encumbrances, security interests and
adverse claims whatsoever, whether or not of record,
except the Permitted Encumbrances. Mortgagor will
preserve
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<PAGE>
the title to all of the foregoing and forever warrant and
depend the same to Mortgagee and defend the validity and
priority of the Mortgage lien against the claims of all
persons whomsoever.
1.2 Priority of Lien on Personaltv. Except as set forth
in the Permitted Encumbrances, no mortgage, security
agreement, financing statement or other title retention
agreement has been or will be executed with respect to
any fixtures, furnishings, equipment, machinery or
personal property used or to be used in connection with
the construction, operation or maintenance of the
Mortgaged Premises.
2. Performance of Obligations. Mortgagor will pay the
principal of the Note, and the interest thereon, as and
when the same shall become due and payable, and shall
duly pay, perform and discharge all of its other
obligations created hereunder or secured by this Mortgage
or the Security Documents.
3. Legal Requirements. Mortgagor shall promptly and
faithfully comply with, conform to, and obey all present
and future laws, ordinances, rules, regulations, and
requirements of every duly constituted Governmental
Authority or agent and every Board of Fire Underwriters
having jurisdiction, or similar body exercising similar
functions, which are applicable to the Mortgaged
Premises, or any part thereof, or to the use or manner of
use, occupancy, possession, operation, maintenance,
alteration, repair or reconstruction of the Mortgaged
Premises, or any part thereof, whether or not such law,
ordinance, rule, order, regulation or requirement shall
necessitate structural changes or improvements or
interfere with the use and enjoyment of the Mortgaged
Premises. Mortgagor shall not permit or cause the
Mortgaged Premises to be used for the handling, storage,
transportation or disposal of "Hazardous or Toxic
Materials" (as defined in Section 31 hereafter).
4. Impositions.
4.1 Taxes. Mortgagor shall pay and discharge, or cause to
be paid and discharged: (i) ad valorem real property and
personal property taxes on or before the 28th day of
February of each year after the year in which they become
a lien on the Mortgaged Premises or any portion thereof;
and (ii) not later than thirty (30) days after the same
shall be due and payable (subject to applicable
extensions, provided the same do not impose upon Borrower
or the Mortgaged Premises, or both, any fines, penalties
or liens), all other taxes, assessments, fees and other
governmental charges (and any interest or costs with
respect thereto) and all charges for any easement or
agreement maintained for the benefit of the Mortgaged
Premises, general and special, ordinary and
extraordinary, foreseen and unforeseen, of any kind and
nature whatsoever, that at any time prior to or after the
execution of thus Mortgage may be assessed, levied, or
imposed upon the Mortgaged Premises or the Rent or income
received therefrom or any use or occupancy thereof, and
other taxes, assessments, fees and charges levied,
imposed or assessed upon or against Mortgagor or its
properties (hereinafter, the "Impositions"). Mortgagor
shall, upon request, furnish receipted bills to Mortgagee
upon receipt by Mortgagor from the appropriate taxing or
other authority, or other evidence reasonably
satisfactory to Mortgagee, evidencing the payment of all
Impositions. Notwithstanding anything to the contrary,
documents reasonably acceptable to Mortgagee
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<PAGE>
evidencing payment of real estate and personal property
taxes for each year shall upon request be delivered to
Mortgagee not later than February 28 of the following
year. If any tax or assessment levied or assessed against
the Mortgaged Premises may legally be paid in
installments, Mortgagor shall have the option of paying
such tax or assessments in installments. Notwithstanding
the foregoing, Mortgagor may, at its own expense, after
prior written notice to Mortgagee (accompanied by such
information as Mortgagee may reasonably request), contest
by appropriate proceedings, promptly initiated and
conducted in good faith and with due diligence, the
amount, validity or application, in whole or in part, of
any Imposition if:
(a) such proceedings shall suspend the collection
thereof from Mortgagor and from the Mortgaged Premises;
(b) being sold, forfeited or lost;
the Mortgaged Premises or any part thereof shall not be
in danger of
(c) Mortgagor shall have set aside, in a segregated
account pledged to Mortgagee and in amounts approved by
Mortgagee, reserves with respect to the amount of such
Impositions; and
(d) Mortgagor shall have furnished such security
(which shall be pledged to Mortgagee) and in such form as
may be required in the proceedings or as may be
reasonably requested by Mortgagee.
4.2 Documentary and Other Stamp Taxes. If at any time the
United States, the State of Florida or any political
subdivision thereof, or any department or bureau of any
of the foregoing shall require documentary, revenue or
other stamps on the Note, this Mortgage or any of the
other Security Documents, or require any intangible or
other taxes thereon, Mortgagor on demand from Mortgagee
shall pay for same with any interest or penalties
thereon.
4.3 Changes in Law Regarding Taxation. If any law or
ordinance hereafter imposes a tax directly or indirectly
on Mortgagee with respect to the Mortgaged Premises, the
value of Mortgagor's equity therein, or the indebtedness
evidenced by the Note and secured by this Mortgage,
Mortgagor shall promptly pay such tax. If Mortgagor fails
to pay such tax or if Mortgagor is not lawfully permitted
to pay such tax, Mortgagee, at its election, shall have
the right at any time to give Mortgagor written notice
declaring that all indebtedness and other sums due under
the Note or described in this Mortgage or the other
Security Documents, with interest and other appropriate
charges, shall be due on a specified date not less than
sixty (60) days thereafter; provided, however, that such
election shall be ineffective if, prior to the specified
date, Mortgagor lawfully pays the tax (in addition to all
other payments required hereunder) and agrees to pay the
tax whenever it becomes due and payable thereafter, which
agreement shall then constitute a part of this Mortgage.
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<PAGE>
Do
rat
to
during the term of this Mortgage, with all premiums
paid thereon, and without notice or demand, the
following insurance with respect to the Mortgaged
Premises:
5. Insurance. The Mortgagor shall obtain, maintain and
keep in full force and effect
(a) during construction of improvements and as to same,
builders all-risk, completed value, non-reporting form
insurance without exclusion for windstorm reflecting
coverage in such amounts as Mortgagee may require, but in
no event less than 100% of the full replacement cost of
the Mortgaged Premises, which includes a Mortgage clause
naming Mortgagee as the mortgagee; (ii) a replacement
cost endorsement; (iii) an agreed amount endorsement;
(iv) flood insurance, if the Mortgaged Premises is in a
designated flood plain area; (v) collapse and earthquake
coverage; and (vi) vandalism and malicious mischief
coverage. If available to Mortgagor, such policy shall
provide that any and all loss payments thereunder with
respect to the Mortgaged Premises will be payable as set
forth below in Sections 5(b)(2) and 5(b)(3). Such policy
shall also cover all elements ofthe Mortgaged Premises,
whether on the Land, stored offthe Land, or in transit.
In addition, consequential and resulting losses from an
insured peril shall also be covered;
(b) as to all completed improvements, all-risk, hazard
insurance without exclusion for windstorm reflecting
coverage in such amounts as Mortgagee may require, but in
no event less than the greater of the aggregate
outstanding balance of the Note and all other sums due
(or which could become due) under the Security Documents
or 100% of the full replacement cost of the Mortgaged
Premises, which includes: (i) a mortgage clause naming
Mortgagee as the mortgagee; (ii) a replacement cost
endorsement; (iii) an agreed amount endorsement with no
reduction for depreciation and endorsements providing
building ordinance coverages and coverage for costs of
demolition and increased costs of construction due to the
enforcement of building ordinances and codes; (iv) boiler
explosion coverage, if applicable; (v) sprinkler leakage
coverage, if applicable; (vi) vandalism and malicious
mischief coverage; (vii) rent loss and business
interruption coverage; (viii) flood insurance, if the
Mortgaged Premises is in a designated flood plain area;
and (ix) a standard "New York" mortgagee clause. Such
policy shall: (1) include provision that should
rebuilding of any portion of the Mortgaged Premises be
prevented due to the enforcement of law or ordinance, the
amount payable by the carrier shall be not less than the
agreed value in the policy for such portion; (2) provide
that, if the aggregate loss for an occurrence, in
Mortgagee's reasonable estimate, does not exceed Two
Hundred Fifty Thousand and No/100 Dollars ($250,000.00)
and there is no Event of Default under the Loan Documents
or an event which, with notice or the passage of time, or
both, would create an Event of Default, then loss
payments thereunder with respect to the Mortgaged
Premises will be payable to Mortgagor alone for use in
accordance with the provisions hereof and the Amended and
Restated Loan Agreement dated September 26, 1996, between
Mortgagor, Mortgagee and others, as Unended by First
Amendment to Amended and Restated Loan Agreement executed
concurrently herewith (collectively, the "Loan
Agreement"); and (3) provide that all payments for an
occurrence in which the aggregate amount of all payments
for such occurrence, in
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<PAGE>
Mortgagee's reasonable estimate, is in excess of Two
Hundred Fifty Thousand and No/100 Dollars c> $250,000.00) shall
be made payable to the Mortgagee
alone and not jointly with the Mortgagor. In
addition, consequential and resulting losses from an
insured peril shall also be covered; CX:,
(c) boiler and machinery comprehensive insurance coverage
for all mechanical and electrical equipment in, on or
about the Mortgaged Premises, insuring against breakdown
or explosion of such equipment on a full replacement cost
basis. Such policy shall include coverage for
consequential and resulting losses from an insured peril;
(d) all hazard insurance shall include coverage for
"underground hazards" (including, without limitation,
underground property consisting of electrical, telephone,
water, sewer and other utility facilities), "extra
expense" (costs incurred in excess of ordinary operating
expenses in order to restore the Mortgaged Premises to
its previous condition) and "expediting expense" (costs
incurred in temporary repairs to expedite or facilitate
repair or restoration of the Mortgaged Premises);
(e) business interruption or loss of rental income
insurance for a period of not less than one (1) year,
with coverage for an extended period of 365 days after
the Mortgaged Premises has been repaired, restored and
operating following casualty, in such amounts as
Mortgagee may require (which amounts shall include the
amount of insurance premiums required for such
insurance);
(f) the hazard insurance required pursuant to this
Mortgage shall include coverage for consequential and
resulting losses resulting from the inability to obtain
ingress and egress to and from the Mortgaged Premises as
a result of damage to bridges and roadways, so long as
such coverage is available at a commercially reasonable
cost;
(g) commercial general liability insurance (including
contractual liability) against claims for bodily injury,
death and property damage, occurring in, on, or about the
Mortgaged Premises in such amounts as may be required by
Mortgagee, but in no event less than $1,000,000.00 per
occurrence and $2,000,000.00 in the aggregate per
location. Mortgagor shall also maintain commercial
automobile liability insurance with a limit of not less
than $1,000,000.00 combined single limit, endorsed to
cover owned, hired and non-owned automobiles. All
policies shall include an additional insured endorsement
naming Mortgagee;
(h) worker's compensation insurance in the statutory
amount, naming Mortgagor as the owner of the Mortgaged
Premises and covering all of Mortgagor's employees and
other employees situated in, on or about the Mortgaged
Premises or otherwise utilized by Mortgagor in its
operations, including an endorsement for employer's
liability coverage;
(i) umbrella liability insurance coverage for amounts in
excess of the coverages described in subsection (g)
above, with a minimum limit of not less than
$75,000,000.00. Such policy shall include an additional
insured endorsement naming Mortgagee and shall contain a
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<PAGE>
"products/completed operations" endorsement, "Dram Shop"
or liquor law liability coverage with respect to claims
or liability arising directly or indirectly on the
account of sale or dispensing of beer, wine or other
alcoholic beverages (including, without limitation,
coverage for loss of means of support), "garage
operations," "asbestos removal," "innkeeper's legal
liability," "marina operator's legal liability" (with
$10,000,000.00 minimum limit), "airport premises
liability" (with $40,000,000.00 minimum limit), and
"environmental impairment liability" (with $1,000,000.00
minimum limit) covering the cost of remediation of
"Hazardous or Toxic Materials" (as hereafter defined) on
or off the Mortgaged Premises and commercial hull
protection and indemnity for vessels owned or operated by
Mortgagor;
(j) with respect to excess or surplus insurance coverage,
Mortgagor may utilize foreign or alien carriers
(including Lloyd's of London), approved by Mortgagee,
provided that: (i) Mortgagor's insurance broker,
reasonably acceptable to Mortgagee, provides to Mortgagee
from time to time upon request, certification from the
insurance broker's "security committee" confirming each
carrier's financial ability to pay losses for property
covered under its policy; (ii) Mortgagor's insurance
broker shall have *n place a system reasonably acceptable
to Mortgagee to monitor changes *n each carrier's
solvency and shall promptly notify Mortgagee of any
changes to a carrier's financial condition; and (iii)
upon request from Mortgagee, any carrier to which
Mortgagee shall object shall be replaced with a carrier
acceptable to Mortgagee not more than thirty (30) days
after notice from Mortgagee;
(k) *insurance *n such amounts and aga*nst such other
casualties and contingencies as may from time to tome be
reasonably required by Mortgagee;
(1) all policies of insurance required hereunder shall:
(i) be written by carriers that are licensed or
authorized to transact business in the State of Florida
and are rated "A:XII" or better according to the latest
published Best's Key Rat*ng Guide, which policies and
carriers shall otherwise be acceptable to Mortgagee *n
all respects; (ii) provide that Mortgagee shall receive
thirty (30) days prior written notice from the *nsurer
before a cancellation, modification, material change or
non-renewal of the policy becomes effective; and (iii) be
written with a deductible provision acceptable to
Mortgagee and for such amounts as are sufficient to
prevent Mortgagor from becoming a co-*nsurer thereunder;
(iv) provide that no claims under any property or boiler
and machinery insurance policy shall be paid without less
than ten (10) days prior written notice to Mortgagee; and
(v) provide that no act or thing done by Mortgagor shall
*validate insurance coverage as against Mortgagee;
(m) at all times during the term of this Mortgage,
Mortgagor shall have delivered to Mortgagee the original
(or certified copy) of all policies of insurance required
hereby, together with receipts and other evidence that
the premiums therefor have been paid;
(n) not less than thirty (30) days prior to the
expiration date of any insurance policy, Mortgagor shall
advise Mortgagee of the status of activities relating to
the renewal of the policy and such other information as
Mortgagee may request and not less than five (5) days
prior to
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<PAGE>
the expiration date of the policy, Mortgagor shall
deliver to Mortgagee the original (or certified copy) of
the renewal policy or the original renewal certificate,
as applicable, of each renewal policy, together with
receipts or other evidence that the premiums therefor
have been paid (or, subject to Mortgagee's approval, the
manner *n which premiums will be financed and the amount
thereof), so as to assure no lapse in coverage;
(a) Mortgagor shall give prompt notice to Mortgagee of
any damage, destruction or casualty to the Mortgaged
Premises or any part thereof, whether or not covered by
insurance, the cost of restoration of which is in excess
of $250,000.00 or which is otherwise material in nature
to the improvements upon, or the use or operation of,
property which is the subject of casualty;
(p) so long as there is no Event of Default then
continuing or event which, with notice or the passage of
time, or both, would result *n an Event of Default,
Mortgagor may collect the proceeds of any and all
*insurance that may become payable with respect to any
damage, destruction or casualty to the Mortgaged Premises
so long as (a) the amount of proceeds payable with
respect to any such damage, destruction or casualty, and
(b) the cost of the repa* or restoration necessitated by
such damage, destruction or casualty does not, in the
reasonable estimate of Mortgagee, exceed Two Hundred
Fifty Thousand and No/100 Dollars ($250,000.00).
Mortgagor shall use all such proceeds to restore or
rebuild the Mortgaged Premises to a condition reasonably
satisfactory to Mortgagee, but *n any event to
substantially the same character and condition as the
Mortgaged Premises and the other properties constituting
the Project existed prior to such damage, destruction or
casualty. Any insurance proceeds which may remain after
payment of all costs and expenses of such repa* and
restoration shall, at the option of Mortgagee, be applied
as a prepayment of the Note.
(q) As to the proceeds of any *nsurance payable with
respect to any damage, destruction or casualty to the
Mortgaged Premises, or any part thereof, the cost of
restoration or repa*, which, *n the reasonable estimate
of Mortgagee, exceeds Two Hundred Fifty Thousand and
No/100 Dollars ($250,000.00), Mortgagee may at its option
collect the proceeds of any and all insurance that may
become payable with respect thereto (and Mortgagor hereby
authorizes and directs any *insurance company to make
payments of such proceeds directly to Mortgagee alone, at
Mortgagee's request). Such insurance proceeds shall be
made available to Mortgagor for the restoration and
repair of the Mortgaged Premises from time to time as
such restoration or repair progresses, subject to
compliance by Mortgagor with the following terms and
conditions and those set forth in clause (r) below:
(i) No Event of Default shall have occurred and not
been cured within any applicable notice and cure period;
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<PAGE>
(ii) Mortgagor shall deposit with Mortgagee sums in an
amount at least equal to the excess, if any, of Mortgagee's reasonable
estimate of the aggregate costs and expenses
of restoration and repair of the Mortgaged Premises,
over the amount of insurance proceeds (afterdeduction of
expenses of collection) payable with
respect to such damage, destruction or casualty, ~
which additional sums shall be disbursed by Mortgagee
for restoration and repair prior to any disbursements of
insurance proceeds; Cal
(iii) Mortgagee shall have been provided an
appraisal, from an appraiser and in form and content
satisfactory to Mortgagee that, among other things,
contains a proforma valuation: (x) with respect to any
damage, destruction or casualty occurring on or before
September 25, 1998, that upon completion of the repairs
and restoration of the Mortgaged Premises, the
outstanding principal balance of the Note shall not
exceed sixty-five percent (65%) of the then fair market
value of the Mortgaged Premises; (y) with respect to any
damage, destruction or casualty occurring after September
25, 1998, but on or before September 25, 2001, that upon
completion of the repairs and restoration of the
Mortgaged Premises, the outstanding balance of the Note
shall not exceed fifty-five percent (55%) of the then
fair market value of the Mortgaged Premises; and (z) with
respect to any damage, destruction or casualty occurring
thereafter, that upon completion of the repairs and
restoration of the Mortgaged Premises, the outstanding
balance of the Note shall not exceed 50% of the then fair
market value of the Mortgaged Premises;
(iv) In Mortgagee's reasonable judgment, the repairs
and renovations can be completed at least six (6) months
prior to the "Maturity Date" of the Note, as defined
therein;
(v) Mortgagor shall have demonstrated to Mortgagee's
reasonable satisfaction that the management agreement for
the Mortgaged Premises shall continue in full force and
effect notwithstanding the occurrence of such damage,
destruction or casualty and shall be in effect upon
completion of the related restoration and repays;
(vi) Mortgagee shall have received architectural
plans and specifications for all restoration and repays
and an estimate of the cost and expenses of all such
restoration and repairs, all of which shall be *n form
and amount reasonably acceptable to Mortgagee;
(r) Prior to each disbursement of the construction fund
by Mortgagee, the following *formation and documentation
shall have been obtained by Mortgagor, at Mortgagor's
expense, and submitted to Mortgagee, which *nformation
and documentation shall be *n form and substance
reasonably satisfactory to Mortgagee:
H : \ u s e r s \ v ~ p \ c r e d
i t \ s s M e e 3 . 5 \ d o c u m t s \ m t g s p r d .
c n 4 : 5 . 2 9 . 9 7 : j a n 1 3
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statements, vouchers, and invoices, which request for
advance shall expressly warrant that the work with respect to
which the advance is requested has been
performed *n accordance with the approved plans and
specifications for the restoration or repa*; ID
(i) A request for advance signed by Mortgagor,
accompanied by billing
(ii) Proof that all *voices for labor and materials
have been paid, except for those which are the subject of
the current request for advance;
(iii) Lien waivers for all payees under previous requests
for advances;
(iv) A report from the architect which shall specify
the percentage of completion of restoration or repa*,
shall provide detailed comments on specific work
performed since the date of the last such report, and
shall certify that there are sufficient funds remaining
on deposit pursuant to clause (q)(ii) above and available
from the proceeds of *assurance to pay the cost of
restoration and repa*;
(v) At the request of Mortgagee, an endorsement of
its title insurance policy, which endorsement shall show
no liens of record or additional encumbrances not
acceptable to Mortgagee;
(vi) Copies of the agreements pursuant to which the
restoration or repair shall be done, which individually
or with other agreements provide for a payment thereunder
in excess of $100,000.00, and which also shall be
reasonably satisfactory in form and content to Mortgagee
and as to the party performing the construction
obligations thereunder;
(vii) A written assignment to Mortgagee of all
construction and designprofessional contracts, together
with the written consent to such assignments by all
parties to such contracts; and
(viii) Such other *formation, documentation,
agreements and conditions as Mortgagee may reasonably
request regarding the improvements and the restoration or
repays and the cost thereof
In the event each of the conditions set forth in
clause (q) above is not satisfied within one hundred
twenty (120) days from and after the date of the
respective damage, destruction or casualty, or if such
conditions cannot reasonably be satisfied within said one
hundred twenty (120) day period and if Mortgagor fails to
commence satisfaction of such condition within said one
hundred twenty (120) day period or thereafter fails to
diligently and using best efforts pursue such efforts to
completion, then Mortgagee may apply *nsurance proceeds
actually received by it to the payment of the Note.
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(s) Prior to application or disbursal of any insurance
proceeds under this section, Mortgagee may deduct
therefrom any expenses reasonably *ncurred *n connection
with the collection or handling of such proceeds, it
belong understood and agreed that Mortgagee shall not be,
under any circumstances, liable or responsible for
failure to collect, or exercise diligence in the
collection of, any such proceeds, and upon the request of
the Mortgagor, Mortgagee shall provide Mortgagor a
written summary of all expenses deducted from such
proceeds.
(t) In the event this Mortgage is foreclosed or title to
the Property is transferred by a deed *n lieu of
foreclosure, all right, title, and *merest of any
Mortgagor in and to all insurance policies and the
proceeds thereof shall inure to the benefit of and pass
to Mortgagee.
6. Corporate Existence: Taxes: Structure.
(a) If Mortgagor or any successor or grantee of Mortgagor
is a corporation or partnership, it shall keep *n effect
its existence and rights as a corporation or partnership
under the laws of the state of its *corporation or
formation and its right to own property and transact
busyness in the State of Florida. If Mortgagor is a
partnership, any partner that is a corporation or a
partnership shall also fulfill the requirements set forth
in the foregoing sentence. For all periods during which
title to the Mortgaged Premises or any part thereof shall
be held by a corporation or association subject to
corporate taxes or taxes similar to corporate taxes, or
by a partnership required to pay license or other fees or
taxes, Mortgagor shall file returns for such taxes,
licenses or other fees with the proper authorities,
bureaus or departments and shall pay, when due and
payable and before *merest or penalties are due thereon,
all taxes or licenses or other fees ow*ng by Mortgagor to
the United States, to such state of *corporation or
formation and to the State of Florida and any political
subdivision thereof, and shall, upon request, produce to
Mortgagee receipts showing payment of any and all such
taxes, license or other fees, charges or assessments
prior to the last dates upon which such taxes, licenses
or other fees, charges or assessments are payable without
*merest or penalty charges, and within ten (10) days of
receipt thereof of all settlements, notices of deficiency
or overassessment and any other notices pertaining to
Mortgagor's tax liability, which may be issued by the
United States, such state of *corporation or formation,
the State of Florida and any political subdivision
thereof.
(b) If Mortgagor is a corporation, Mortgagor warrants and
represents that all of its issued and outstanding stock
is fully paid and non-assessable, there are no
outstanding rights or options to acquire any additional
stock, its stock has not been (and will not be) pledged
or encumbered *n any manner whatsoever not disclosed in
writing to Mortgagee and Mortgagor has not aTnended or
modified (and will not modify or amend) its articles of
incorporation or bylaws except as previously disclosed to
Mortgagee. If Mortgagor is a partnership, Mortgagor
warrants and represents that it has not amended or
modified (and or will not modify or amend) its
constituent documents.
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<PAGE>
7. Care of Premises.
7.1 Mortgagor shall maintain, preserve, protect and keep
*ngood order and condition, the Mortgaged Premises and
from time to tome shall make all necessary or appropriate
repairs, replacements and improvements thereto. At a
minimum Mortgagor shall maintain the Mortgaged Premises
as a "first class" luxury resort community consistent
with good industry practices for properties and
facilities of similar size, use, operation and
management.
7.2 Mortgagor shall not make or permit any alterations
which might (and shall use its best efforts to prevent
any act which might), in the opinion of Mortgagee, impair
the value or usefulness of the Mortgaged Premises. In the
event that the Mortgaged Premises or any part thereof, or
to the other properties constituting the Project, shall
be damaged or destroyed by fire or other casualty,
Mortgagor shall (if the damage is reasonably estimated to
be $250,000.00 or greater), *nmediately notify Mortgagee
*n writing of such damage or destruction. As provided in
Section 5 of this Mortgage, Mortgagor shall, at its sole
cost and expense, commence and diligently continue to
restore, repa*, replace, rebuild or alter the Mortgaged
Premises as nearly as possible to its value, condition
and character immediately prior to such damage or
destruction.
7.3 Mortgagor shall not, without the prior written
consent of Mortgagee, remove, demolish or substantially
alter, or permit the removal, demolition or substantial
alteration of, any part of the Mortgaged Premises.
Mortgagor shall not permit any of the fixtures,
furnishings, equipment, machinery, furniture or personal
property contained *n, located upon or appurtenant to the
Mortgaged Premises to be removed without the prior
consent of Mortgagee, except in the ordinary course of
Mortgagor's business and so long as the items removed are
promptly replaced with like items of equal or greater
value; provided, however, that if Mortgagor, pursuant to
the "Refurbishment Reserve Agreement" described *n the
Loan Agreement, provides to Mortgagee and Mortgagee
approves a budget providing for the replacement or
refurbishment of fixtures, furnishings, equipment,
machinery, furniture or personal property, Mortgagor may
remove, replace and refurbish same in accordance with the
budget and the "Refurbishment Reserve Agreement"
described in the Loan Agreement and on such conditions as
Mortgagee may impose in order to assure and protect its
lien on items so removed, replaced or refurbished. In the
event such consent is given, the Mortgagee may require
that the articles being removed be replaced by articles
of equal suitability and value owned by Mortgagor free
and clear of any lien, chattel mortgage, encumbrance or
security *merest and that such replacement articles be
encumbered by the lien of this Mortgage.
8. Escrow for Taxes and Insurance. At the option of
Mortgagee after the occurrence of any Event of Default
which has not been cured within any applicable notice and
cure period, Mortgagor shall pay to Mortgagee, on each
date upon which *installments are payable under the Note,
such amounts as Mortgagee from time to time estimates are
necessary to pay, as the same become due, all taxes,
assessments and charges for the Mortgaged Premises,
together with the premiums on all required insurance
policies. Mortgagee shall hold such deposits
without interest in its general
funds and use such deposits to pay such taxes,
assessments, charges and premiums when the same
shall become due. Upon demand of Mortgagee, Mortgagor
shall deliver to Mortgagee, within ten
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<PAGE>
(10) days after demand, such additional monies as are
necessary to make up any deficiencies in the amounts held
by Mortgagee in order to pay the obligations for which
the escrow has been established. Upon the occurrence of
an Event of Default, Mortgagee may apply any amount held
under this Section 8 to the reduction of the *ndebtedness
secured hereby, at such times and in such manner as
Mortgagee shall determine.
9. Other Financing or Liens.
9.1 Mortgagor shall not, during the term of this
Mortgage, further pledge, hypothecate or encumber any or
all of the Mortgaged Premises (or any *merest thereon) or
*ncur any further indebtedness (other than: (i) the
indebtedness secured hereby; and (ii) accounts payable
*ncurred by Mortgagor in the ordinary course of its
business for goods and services provided to the Mortgaged
Premises) and any lien, mortgage or encumbrance in
violation of this Section 9 shall be null and void.
During the term of this Mortgage, Mortgagor shall not
endorse, guarantee (whether of payment, performance,
collection or otherwise), act as surety for or otherwise,
directly or indirectly, become liable in any manner for
any liability, obligation indebtedness or undertaking of
any individual or entity (including, without limitation,
any "Subsidiary" or "Affiliate," as defined in the Loan
Agreement) or related party, whether by agreement, course
of dealing or otherwise.
9.2 Except as may be otherwise provided *n the Loan
Agreement, Mortgagor shall have no right to permit the
holder of any lien to terminate any lease or any other
agreement affecting the Mortgaged Premises without first
obtaining the prior written consent of Mortgagee.
9.3 No lien or encumbrance of any type, whether voluntary
or involuntary, shall be permitted to be filed or entered
against the Mortgaged Premises. If any such lien or
encumbrance is filed or entered, Mortgagor shall cause it
to be removed of record within fifteen (15) days after it
is filed or entered by either paying it, having it bonded
in a manner which removes it of record or otherwise
hav*ng it removed of record.
9.4 If any action be commenced to foreclose any mortgage,
lien or encumbrance of any kind encumbering all or any
part of the Mortgaged Premises, the Mortgagee may, at its
option immediately or thereafter declare this Mortgage
and the indebtedness secured hereby, due and payable.
9.5 To the extent of the indebtedness of the Mortgagor to
the Mortgagee as described herein or secured hereby, the
Mortgagee is subrogated to the lien or liens and to the
rights of the owners and holders of each and every
mortgage, lien or other encumbrance on the Mortgaged
Premises or any part thereof which is paid or satisfied,
in whole or in part, out of the proceeds of the loan
described herein or secured hereby. The respective liens
of said mortgages, liens or other encumbrances shall be
preserved and shall pass to and be held by the Mortgagee
as security for the indebtedness described herein or
secured hereby, to the same extent that it would have
been preserved and would have been passed to and held by
the Mortgagee had it been duly and regularly assigned to
the Mortgagee by a separate assignment, notwithstanding
the fact that the same may be
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<PAGE>
satisfied and canceled of record, it being the intention
of the parties that the same will be satisfied and
canceled of record by the holders thereof at or about the
time of the recording of this Mortgage.
10. Transfer.
(a) Mortgagor will abstain from and will not cause or
permit any transfer, sale, conveyance, assignment,
encumbrance, hypothecation or pledge (collectively, a
"Transfer") of title to or beneficial interest in the
Mortgaged Premises or any part thereof, voluntarily or by
operation of law. If Mortgagor is a partnership, the
Transfer of any general partner's interest in Mortgagor
shall be deemed a Transfer of title hereunder. If any
general partner of Mortgagor is, itself, a partnership,
the Transfer of any interest of such general partner in
said partnership shall be deemed a Transfer of title
hereunder. If Mortgagor is a corporation, a Transfer of
any legal or beneficial interest (including, without
limitation, a Transfer of capital stock) in Mortgagor,
shall be deemed a Transfer of title hereunder. A contract
to deed or agreement for deed, or a lease of all or
substantially all of the Land or the Mortgaged Premises,
shall also constitute a Transfer hereunder. Any Transfer
prohibited by this Section 10 shall be null and void.
(b) Except as may be otherwise provided in the Loan
Agreement, during the term of this Mortgage, Mortgagor
shall not, directly or indirectly, sell, convey or
transfer, or permit to be sold, conveyed or transferred,
any assets to any individual or entity to which Mortgagor
(or any of its partners) is related or affiliated
(including, without limitation, any "Affiliate" described
in the Loan Agreement) except in the ordinary course of
Mortgagor's business, for full and fair market value and
compensation and where a replacement asset of equal or
greater value is provided, concurrently with the sale of
the asset.
11. Books and Records. Mortgagor shall keep, at its sole
cost and expense, adequate records and books of account
with respect to the Mortgaged Premises and shall permit
Mortgagee, or its agents, to visit and inspect the
Mortgaged Premises and examine its records and books of
account and to discuss its affairs, finances and accounts
with Mortgagor and with the officers of Mortgagor at such
reasonable times as may be requested by Mortgagee. If
requested by Mortgagee, Mortgagor shall also provide from
time to time, at least on a monthly basis, a statement of
income and expenses, occupancy levels, and if requested,
a rent roll of Leases affecting the Mortgaged Premises,
a schedule showing the name of each space occupied and
such other information as Mortgagee may request, all
certified as true and correct by Mortgagor. The Loan
Agreement provides for delivery to Mortgagee, on a
periodic basis, of certain financial statements from
Mortgagor, its partners and others.
12. Required Notices. Mortgagor shall notify Mortgagee
promptly ofthe occurrence of any of the following:
(a) a fire or other casualty causing damage to the
Mortgaged Premises of more than $250,000.00;
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Mortgaged Premises;
(b) receipt of notice of eminent domain proceedings or
condemnation of the
(c) receipt of notice from any Governmental Authority
relating to the structure, use or occupancy of the
Mortgaged Premises or any real property adjacent to the
Mortgaged Premises;
(d) receipt of any notice from any party under a Lease
claiming Mortgagor is in default of its obligations
thereunder and Mortgagor's liability thereunder is
$50,000.00 or more;
(e) except for charges caused by ordinary and anticipated
seasonal variations, any substantial change in the
occupancy of the Mortgaged Premises;
(f) receipt of any notice of default or acceleration of
maturity of an obligation from the holder of any lien,
security interest in or encumbrance upon the Mortgaged
Premises;
(g) commencement of any litigation affecting the
Mortgaged Premises in excess of $250,000.00 that is not
fully covered by insurance;
(h) receipt of any notice given to or received from any
person or entity having a
hereof;
lien or lien right against the Mortgaged Premises under
the Florida mechanics' lien law;
(i) receipt of any notice or Environmental Complaint
described in Section 31
(j) the occurrence of an Event of Default under this
Mortgage or under any ofthe other Security Documents, or
any event which, with notice, or the passage of time, or
both, would result in the occurrence of an Event of
Default; or
(k) receipt of any notice from any individual or entity
asserting any injury or any claim in excess of
$250,000.00.
13. Condemnation.
13.1 Upon obtaining knowledge ofthe institution, or the
proposed, contemplated or threatened institution, of any
proceedings for the taking of the Mortgaged Premises, or
any part thereof, by condemnation or eminent domain
(which shall include any damage or taking by Governmental
Authority or by private sale in lieu thereof, either
temporary or permanently), Mortgagor shall immediately
notify Mortgagee of the pendency of such proceedings. At
its option, Mortgagee may commence, appear in and
prosecute such proceedings in its own or Mortgagor's name
and settle or compromise any claim in connection
therewith and Mortgagor, from time to time, shall deliver
to Mortgagee all instruments requested by Mortgagee to
permit such participation. In any such proceedings,
Mortgagee may be represented by counsel of its own
choosing.
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13.2 Mortgagor agrees to execute and deliver such other
instruments as Mortgagee may require to evidence the
assignment of all such awards and proceeds to Mortgagee.
13.3 In the event any material portion or all of the
Mortgaged Premises (or any interest therein) is taken by
condemnation or eminent domain, Mortgagee, at its option,
may accelerate the payment of the Note in the same manner
as if an Event of Default had occurred. For purposes of
this Section 13.3, a "material portion" of the Mortgaged
Premises shall be deemed any building of more than 1,000
square feet constructed upon the Land or portion thereof
of which more than ten percent (10%) of the structure is
taken or is the subject of a taking; or (ii) any portion
of the parking area which cannot be promptly or entirely
replaced on the balance of the Land; or (iii) any
condemnation or eminent domain proceeding which, in
Mortgagee's reasonable opinion, renders the balance of
the Mortgaged Premises unusable for its intended purpose
or materially affects the conduct of Mortgagor's
business, or the economic viability of such business on
the Mortgaged Premises.
13.4 Mortgagee shall be entitled to receive all
condemnation awards and proceeds and other payments
resulting from such condemnation and, at its option,
Mortgagee may apply same either to payment of the sums
secured hereby in such order as it may determine or to
the restoration, repair or alteration of the Mortgaged
Premises; however, in the event of a condemnation or
taking by eminent domain of any building, structure or
improvement for which the cost of restoration, repair or
alteration to its previous condition is $250,000.00 or
less (as reasonably determined by Mortgagee), Mortgagor
shall restore, repair or alter the building, structure or
improvement to its previous condition or, at Mortgagor's
option and so long as such condemnation or taking does
not (in Mortgagee's reasonable opinion) materially or
adversely affect the operation of the Mortgaged Premises
for its intended use, deliver to Mortgagee all awards,
proceeds and payments resulting from such condemnation or
taking, to be applied to payment of sums secured hereby
in such order as Mortgagee may determine. In any event,
all awards and proceeds shall be applied first to payment
of all costs and expenses (including, without limitation,
reasonable attorneys' fees and expenses) incurred by
Mortgagee in connection with any action or proceeding
pursuant to this Section 13. If, subject to the other
provisions of this Section 13.4, Mortgagee elects to
apply the awards and proceeds to the restoration, repair
or alteration ofthe Mortgaged Premises, such awards and
proceeds shall be disbursed to Mortgagor as work
progresses pursuant to a construction and disbursing
agreement in form and content satisfactory to Mortgagee
and Mortgagor shall promptly and diligently (regardless
of whether there shall be sufficient condemnation awards
or proceeds therefor) restore, repair and alter the
Mortgaged Premises in a manner satisfactory to Mortgagee.
During the period of restoration, repair and alteration,
Mortgagor shall continue to duly and promptly pay,
perform, observe and comply with its obligations under
the Note, this Mortgage and the other Security Documents.
The election by Mortgagee to apply condemnation awards
and proceeds to restoration, repair or alteration of the
Mortgaged Premises shall not affect the lien of this
Mortgage or affect or reduce Mortgagor's obligations
under the Note, this Mortgage and the other Security
Documents. If any restoration, repair or alteration of
the Mortgaged Premises shall involve an estimated
expenditure of more than $250,000.00, same shall not be
commenced until plans and
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specifications therefor,prepared by an architect
satisfactory to Mortgagee, have been submitted to and
approved by Mortgagee.
14. Leases and Purchase Agreements.
14.1 Leases in Effect: Subordination: No Assignment or
Modification. Mortgagor hereby represents that there are
no purchase agreements, agreements for deed, leases or
agreements to lease all or any part of the Mortgaged
Premises now in effect which have not been previously
disclosed to Mortgagee in writing. All leases shall be in
form and content satisfactory to Mortgagee. With respect
to "Commercial Leases" described in the Loan Agreement,
Mortgagor shall not, enter into any Commercial Lease for
any part of the Mortgaged Premises, nor permit the
assignment of a tenant's interest in any Commercial Lease
or the sublease of any part of the Mortgaged Premises,
without the prior approval of Mortgagee. Without the
prior approval of Mortgagee, Mortgagor shall not assign
its interest in or modify, terminate, extend, amend or
consent to the cancellation or surrender of any
Commercial Lease benefitting the Mortgaged Premises.
Mortgagor agrees not to collect any Rent or other sums
due under any leases or agreements to lease prior to the
time same are due by the terms of the leases or
agreements to lease.
14.2 Performance Under Leases. Mortgagor shall, at its
sole cost and expense: (i) perform and discharge, or
cause to be performed and discharged, all of its
obligations and undertakings (and those of its agents)
under the leases; (ii) consistent with Mortgagor's good
business judgment and best efforts to secure or enforce,
or cause to be secured or enforced, the performance of
each and every obligation and undertaking of the tenants
under the leases; (iii) promptly notify Mortgagee if
Mortgagor receives any notice from a tenant under a lease
claiming that Mortgagor is in default thereunder; and
(iv) appear in and defend any action or proceeding
arising under or in any manner connected with any lease.
14.3 No Obligation of Mortgagee. Mortgagee shall have the
right, but not the obligation, at any time and from time
to time, to notify any tenant under any lease of the
rights of Mortgagee as provided in this Mortgage or any
other Security Documents and Mortgagor shall, upon demand
from Mortgagee, confirm to such tenant the existence of
such rights.
14.4 Management of Mortgaged Premises. Mortgagor
covenants that the Mortgaged Premises shall be managed by
Mortgagor or by a management company licensed by the
State of Florida that shall have been approved by the
Mortgagee and pursuant to a management agreement that
shall have been approved by Mortgagee prior to execution
thereof The management agreement for the Mortgaged
Premises in effect as of the date of this Mortgage has
been approved by Mortgagee. If, in the reasonable
judgment of Mortgagee, the Mortgaged Premises is not
being properly managed, Mortgagee may require Mortgagor
to employ a qualified property manager approved by
Mortgagee.
14.5 Leasing Commissions. Mortgagor covenants that every
agreement to pay leasing commissions with respect to the
leasing of space in the Mortgaged Premises, or any part
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thereof, is and shall be subject, subordinate and
inferior to the right of Mortgagee, so that in the event
Mortgagee acquires title to the Mortgaged Premises either
at a foreclosure sale or by other means, Mortgagee shall
be exonerated and discharged from all liabilities for the
payment of any such commissions or compensation.
15. Legal Actions. If Mortgagee or Agent, or both, is or
are made a party to or appears, either voluntarily or
involuntarily, in any action or proceeding (including,
but not limited to, any proceeding under Title 11 of the
United States Code) affecting the Mortgaged Premises, the
Note, the Security Documents or the validity or the
priority of this Mortgage, then Mortgagor shall, upon
demand, reimburse Mortgagee and Agent for all costs,
expenses and liabilities incurred by Mortgagee by reason
of any such action or proceeding, including reasonable
attorneys' fees and reasonable consultants' fees, and the
same will be secured by this Mortgage. If not paid within
thirty 30 days of demand therefore then, thereafter, all
such costs and expenses shall bear interest at the
default rate of interest ("Default Rate") as described in
Section 28 of this Mortgage.
16. Events of Default. The occurrence of any of the
following shall constitute an "Event of Default"
hereunder:
(a) Default in Payment. Mortgagor shall fail to pay any
installments of principal when due; or Mortgagor shall
fail to pay all sums due under the Note and the Security
Documents on the "Maturity Date" described in the Note or
Mortgagor shall fail to pay any installment of interest
due before the "Maturity Date" under the Note within five
days of its due date; or Mortgagor shall fail to pay,
within five days oftheir due dates, any other amounts
required pursuant to the terms of the Note or the
Security Documents; or
(b) Performance of Covenants. Mortgagor shall default
(except as to any default: (i) involving the payment of
money, whether for principal, interest or otherwise; or
(ii) under Sections 9.4, 10 or 31; or (iii) described in
Sections 16(c) through (m) below, for which no additional
notice or cure period will be provided to Mortgagor) in
the due observance or performance of any covenant or
agreement made by Mortgagor hereunder or under any other
agreement between or involving Mortgagor and Mortgagee,
including the Security Documents and such default shall
continue for a period of twenty-five (25) days after
written notice thereof from the Mortgagee to Mortgagor;
provided, however, that if such default, if curable,
requires work to be performed, acts to be done or
conditions to be remedied which by their nature cannot be
performed, done or remedied, as the case may be, within
such twenty-five (25) day period, Mortgagee shall not
commence to exercise the remedies provided for hereunder
if Mortgagor shall diligently and continuously process
cure of the default to completion. Notwithstanding the
foregoing, in no event shall the time for curing such
non-performance or violation exceed forty-five (45) days
after notice thereof;
(c) Breach of Warranty. Any representation or warranty
made by Mortgagor or any partner of Mortgagor, in this
Mortgage, or under any statement, instrument or
certificate delivered to Mortgagee pursuant to the
provisions hereof, or under any agreement between the
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Mortgagor and Mortgagee, including the Security
Documents, or otherwise, shall be determined by Mortgagee
to have been false or misleading in any material respect
or omitted to state any fact necessary to make the
representation or warranty not misleading in any material
respect; or
(d) Voluntarv Bankruptcy. Etc. If Mortgagor: (i) is
voluntarily (or otherwise) adjudicated as bankrupt or
insolvent; (ii) seeks or consents to the appointment of
a receiver, trustee, liquidator, custodian or similar
representative for itself or for all or any part of its
property; (iii) files a petition seeking relief
(including reorganization, arrangement or similar relief)
under the Bankruptcy Code or other present or future
applicable laws of the United States or any state or any
other competent jurisdiction; (iv) makes a general
assignment for the benefit of creditors; or (v) generally
fails to pay, or admits in writing its inability to pay,
its debts as they mature;
(e) Involuntary Bankruptcy. Etc. If a receiver, trustee,
liquidator, custodian or similar representative is
appointed for Mortgagor or for all or any part of its
properties without its consent and if such appointment is
not vacated within sixty (60) days; or a petition is
filed against Mortgagor seeking relief (including
reorganization, arrangement or similar relief) under the
Bankruptcy Code or other similar present or future
applicable laws of the United States or any state or
other competent jurisdiction, and such petition is not
dismissed within sixty (60) days following thereof;
(f) Dissolution. Mortgagor is voluntarily or
involuntarily dissolved or liquidated;
(g) Financial Condition. A material adverse change has
occurred, at any time or times subsequent to the date
hereof, in the financial condition, results of
operations, operations, business, properties or prospects
of Mortgagor (such as by way of illustration and not
limitation, a material downturn in financial performance,
the loss of key customers, the loss of critical licenses,
management exodus or a labor strike);
(h) Death or Incompetency. If any natural person who is
a general partner of Mortgagor (or who is a general
partner of any partner of Mortgagor, if such partner is
a partnership) dies or is declared incompetent (unless:
(i) at such time, no other general partner has previously
died or been declared incompetent; and (ii) such death or
incompetency does not result in a dissolution or winding
up of Mortgagor, or of any partnership which is a partner
of Mortgagor);
(i) Default Under Other Loans. If Mortgagor shall be in
default under any other note, obligation, liability or
agreement to or with Mortgagee or any of its affiliates
or subsidiaries, (including, without limitation, under
the Loan Agreement), whether now existing or hereafter
arising (including, without limitation, under any of the
Security Documents). A default under this Mortgage or the
other Security Documents shall also be deemed a default
under all notes, obligations, liabilities and agreements
of Mortgagor to or with Mortgagee or any of its
affiliates or subsidiaries (including, without
limitation, under the Loan Agreement).
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(j) Default Under Other Liens. If the holder of any
mortgage or other lien or encumbrance upon the Mortgaged
Premises declares a default not cured within any
applicable cure period or institutes foreclosure or other
proceedings for the enforcement of any of its remedies
thereunder;
(k) Notice Limiting Future Advances. If Mortgagor,
pursuant to Section 697.04, Florida Statutes, as amended,
files for record a notice limiting the maximum amount
which may be secured by this Mortgage;
(1) Other Events of Default. If any general partner of
Mortgagor is the subject of any occurrence described in
Sections 16(c) through (i) ofthis Mortgage; and
(m) Default under Management Agreement. Mortgagor shall
be in default beyond any applicable notice or cure period
provided therein, if any, under the terms of any
management agreement for the Mortgaged Premises.
17. Remedies. If an Event of Default shall occur and
shall not be cured within any applicable notice or cure
period, Agent may, at its option, or upon instructions
from Mortgagee:
(a) Acceleration. Declare the unpaid portion of the
principal of the Note and all interest accrued and unpaid
thereon, together with all other amounts secured hereby,
to be due and payable immediately, whereupon such sums
shall immediately become and be due and payable as if the
date of such declaration were the date originally
specified for full payment at maturity; provided,
however, that the occurrence of any event described in
Sections 16(d) or (e) above shall, automatically and
without demand by Mortgagee, accelerate the unpaid
portion of the principal of the Note, all accrued and
unpaid interests and all other amounts due or secured
hereby or due under the Security Documents.
(b) Possession and Use of Mortgaged Premises. Mortgagor,
upon demand of Mortgagee, shall surrender to Mortgagee
the actual possession, and if and to the extent permitted
by law, Mortgagee may itself, or by such of ricers or
agents as it may appoint, enter and take possession of
all the Mortgaged Premises, and may exclude Mortgagor and
its agents and employees wholly therefrom, and may have
joint access with Mortgagor to the books, papers and
accounts of Mortgagor. Upon every such entering or taking
of possession, Mortgagee may hold, store, use, operate,
manage and control the Mortgaged Premises and conduct the
business thereof, and, from time to time:
(i) make all necessary and proper maintenance,
repairs, renewals, replacements, additions, betterment
and improvements thereto and thereon and purchase or
otherwise acquire additional fixtures, personally and
other property;
(ii)insure or keep the Mortgaged Premises insured;
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Mortgagee;
(iii) manage and operate the Mortgaged Premises and
exercise all the rights and powers of Mortgagor in its
name or otherwise, with respect to the same; and
(iv) enter into agreements with others to exercise the
powers herein granted
all as Mortgagee from time to time may determine; and
Mortgagee may (whether or not it actually takes
possession of the Mortgaged Premises) collect and receive
all the rents, issues, profits, income, accounts,
accounts receivable, hotel revenues, and other revenues
(collectively, the "Rents") including those past due as
well as those accruing thereafter; and shall apply the
monies so received by Mortgagee in such priority as
Mortgagee may determine to the payment of receiver's fees
and expenses, if any, and to the payment of all costs and
expenses (including, without limitation, attorneys' fees
and compensation, expenses and disbursements of agents)
incurred by Mortgagee, together with interest thereon at
the Default Rate from the date so incurred, and
thereafter the payment of all other sums secured hereby,
including, without limitation, interest, principal,
insurance, taxes, assessments and charges upon the
Mortgaged Premises.
If Mortgagor shall, for any reason, fail to
surrender or deliver the Mortgaged Premises or any part
thereof, or any books, papers or accounts of Mortgagee
after Mortgagee's demand therefor, Mortgagee may obtain
a judgment or order conferring on Mortgagee the right to
immediate possession or delivery, and Mortgagor consents
to the entry of such judgment or decree.
(c) Cure by Mortgagee. If the Event of Default can be
cured by the payment of money, Mortgagee shall have the
right at any time, at its sole option, and without wading
or affecting its other remedies hereunder, to pay such
sums of money as may be necessary to cure the default.
All sums so paid, together with interest at the Default
Rate and, together with all costs, charges, attorneys'
fees and expenses incurred in connection with the
payment, shall be: (i) deemed paid to the Mortgagor; (ii)
immediately due and payable to Mortgagee; and (iii) shall
be secured by this Mortgage as a future advance.
Notwithstanding such payments by Mortgagee, the Event of
Default shall be deemed to be continuing until Mortgagee
shall have been reimbursed by Mortgagor, as described
herein, and Mortgagee shall have waived the default by a
written instrument that makes specific reference to this
paragraph.
(d) Proceedings to Recover Sums Due. Mortgagee may
institute proceedings to recover judgment against
Mortgagor for any amounts due and unpaid and no recovery
of any judgment therefor or attachment, levy of or
execution upon any part of the Mortgaged Premises or
other property shall in any way affect the lien of this
Mortgage or any rights, powers or remedies of Mortgagee
hereunder, all of which shall continue unimpaired.
(e) Foreclosure. Mortgagee may institute proceedings for
the complete or partial foreclosure of this Mortgage. In
the case of a foreclosure sale of all or any part of the
Mortgaged Premises, the proceeds of sale shall be applied
in accordance with Section 30 hereof and Mortgagee shall
be entitled to seek a deficiency judgment against
Mortgagor for amounts then remaining due
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and unpaid, together with interest thereon, and to
recover a judgment against Mortgagor therefor. Mortgagee
is authorized to foreclose this Mortgage subject to the
rights of any tenants or occupants of the Mortgaged
Premises, or Mortgagee may elect which tenants Mortgagee
desires to name as defendants in such foreclosure and
failure to make any such tenants or occupants defendants
to any such foreclosure proceedings and to foreclose
their rights will not be, nor be asserted by Mortgagor to
be, a defense to any proceedings instituted by Mortgagee
hereunder.
(f) Other Remedies. Mortgagee may exercise any other
remedy granted under this Mortgage (including, without
limitation, those remedies described in Section 26
hereafter), or the Note, or the other instruments
securing the Note, or now or hereafter existing in
equity, at law, by virtue of statute, or otherwise. No
right, power or remedy conferred upon or reserved to
Mortgagee by the Note, this Mortgage or any other
instrument securing the Note is exclusive of any other
right, power or remedy, but each and every right, power
and remedy shall be cumulative and concurrent and shall
be in addition to any other right, power and remedy given
hereunder or under the Note or any other instrument
securing the Note or now or hereafter existing at law, in
equity, or by statute.
(g) Proofs of Claim. In the case of any receivership,
insolvency, bankruptcy, reorganization, arrangement,
adjustment, composition or other judicial proceedings
affecting Mortgagor or its partners, or any of their
respective properties, Mortgagee, to the extent permitted
by law, shall be entitled to file such proofs of claim
and other documents as may be necessary or advisable in
order to have its claim allowed in such proceedings as to
all sums secured hereby and for any additional amounts
which may become due and payable after the date of
filing.
(h) Waiver of Redemption. Notice. Marshalling. Mortgagor
hereby waives and releases, for itself and anyone
claiming by, through or under Mortgagor, to the maximum
extent permitted by the laws of the State of Florida:
(i) all benefits that might accrue to Mortgagor by
virtue of any present or future law exempting the
Mortgaged Premises, or any part thereof, or any part of
the proceedings arising from any sale thereof, from
attachment, levy or sale on execution, or providing for
any appraisal, valuation, stay of execution, exemption
from civil process, redemption or extension of time for
payment;
(ii) except as expressly required by this Mortgage,
all notices of default or of Mortgagee's exercise of any
option or remedy granted hereunder or under the Security
Documents; and
marshal led .
(iii) any right to have all or any portion of the
Mortgaged Premises
18. Receiver. If an Event of Default shall have
occurred and shall not have been cured within any
applicable notice or cure period, Mortgagee, to the
extent permitted by law and without
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regard to the value or occupancy of the Mortgaged
Premises or the solvency or insolvency of Mortgagor shall
be entitled as a matter of right if it so elects, to the
appointment of a receiver to enter upon and take
possession of the Mortgaged Premises and to collect all
Rents and apply the same as the Court may direct. The
Receiver shall have all rights and powers permitted under
the laws of the State of Florida and such other powers as
the Court making such appointment shall confirm. The
expenses (including, without limitation, receiver's fees,
attorneys' fees, costs and agent's compensation, together
with interest at the Default Rate) incurred pursuant to
the powers herein contained, shall be secured by this
Mortgage and due immediately upon demand. The right to
enter and take possession of and to manage and operate
the Mortgaged Premises, and to collect the Rents thereof,
whether by receiver or otherwise, shall be cumulative to
any other right or remedy hereunder or afforded by law,
and may be exercised concurrently therewith or
independently thereof. Mortgagee shall be liable to
account only for such Rents actually received by the
Mortgagee. Notwithstanding the appointment of any
receiver or other custodian, Mortgagee shall be entitled
as pledgee to possession and control of any cash or
deposits at the time held by, payable, or deliverable
under the terms of this Mortgage or the Security
Documents to Mortgagee, and Mortgagee (or any affiliate)
shall have the right to off-set sums due hereunder
against any such cash or deposits in such order as
Mortgagee may elect.
19. Suits to Protect the Mortgaged Premises. Mortgagee
shall have the power and the authority to institute and
maintain any suits and proceedings as Mortgagee may deem
advisable:
(a) to prevent any impairment ofthe Mortgaged Premises by
any acts which may be unlawful or in violation of this
Mortgage;
(b) to preserve or protect its interests in the Mortgaged
Premises; and
(c) to restrain the enforcement of or compliance with any
legislation or other governmental enactment, rule or
order that may be unconstitutional or otherwise invalid,
if the enforcement of or compliance with such enactment,
rule or order might impair the security hereunder or be
prejudicial to Mortgagee's interest.
20. No Waiver: Consent.
(a) No delay or omission of Mortgagee or of any holder of
the Note to exercise any right, power or remedy accruing
upon any Event of Default shall exhaust or impair such
right, power or remedy or shall be construed to waive any
such Event of Default or to constitute acquiescence
therein. Every right, power and remedy given to Mortgagee
may be exercised from time to time and as often as may be
deemed expedient by Mortgagee.
(b) No waiver of any default hereunder shall extend to or
affect any subsequent or any other Event of Default then
existing or impair any rights, powers or remedies
consequent thereon. IfMortgagee:
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secured hereby;
hereby;
(i)grants forbearance or an extension oftime for the payment of any
sums
(ii)
takes other or additional security for the payment of
sums secured
waives or does not exercise any right granted
in the Note, this Mortgage, the Security Documents or any
other instruments securing the Note:
(iv) releases any part of the Mortgaged Premises
from the lien of this Mortgage or otherwise changes any
of the terms of the Note, this Mortgage or any other
instrument securing the Note;
(v) consents to the filing of any map, plat or
declaration of condominium of the Mortgaged Premises;
(vi) makes or consents to any agreement changing the
terms of this Mortgage or subordinating the lien or any
charge hereof;
no such act or omission shall release, discharge, modify,
change or affect the original liability under the Note,
this Mortgage or Mortgagor, or any subsequent purchaser
of the Mortgaged Premises or any part thereof, or any
maker, co-maker, endorser or surety, nor shall such act
or omission affect, disturb or impair in any manner
whatsoever the validity and priority of the lien of this
Mortgage for the full amount ofthe indebtedness remaining
unpaid together with all other amounts due hereunder. No
act or omission of Mortgagee shall preclude it from
exercising any right, power or privilege herein granted
or intended to be granted. No waiver of any rights or
powers of Mortgagee or consent by it shall be valid
unless in writing and signed by an authorized officer of
Mortgagee and then such waiver or consent shall be
effective only in the specific instance and for the
specific purpose given. Unless stated expressly to the
contrary in this Mortgage, any consent or approval
required of Mortgagee pursuant to the terms ofthis
Mortgage shall be: (i) effective only if in writing and
signed by an authorized of ricer of Mortgagee; and (ii)
given or denied in Mortgagee's sole and absolute
discretion.
21. Subsequent Owners. In the event the ownership ofthe
Mortgaged Premises or any part thereof becomes vested in
a person other than Mortgagor, the Mortgagee may, without
notice to Mortgagor, deal with such successor or
successors-in-interest with reference to this Mortgage
and to the Note secured hereby in the same manner as with
Mortgagor without in any way discharging or vitiating
liability hereunder or upon the Note or any agreement
between Mortgagor and Mortgagee.
22. Partial Payment. Acceptance by the Mortgagee or Agent
of any payment in an amount less than the amount then due
on the or due hereunder shall be deemed an acceptance on
account only, and the failure to pay the entire amount
then due shall be and continue to be, until paid
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in full, an Event of Default. At any time thereafter,
until the entire amount then due has been paid, the
Mortgagee shall be entitled to exercise all rights
conferred upon it in this Mortgage upon the occurrence of
an Event of Default.
23. Further Assurances. Mortgagor agrees that at any
time, and from time to time, after execution and delivery
of this Mortgage that it will, upon the request of
Mortgagee, and at Mortgagor's sole expense, execute and
deliver such further documents and do such further acts
and things as Mortgagee may reasonably request in order
to fully effect the purposes of this Mortgage and to
subject to the lien of this Mortgage any property
intended by the provisions hereof to be covered hereby.
24. Estoppel Certificate. Mortgagor shall, within five
(5) business days from written demand by the Mortgagee,
execute in such form and with such content as shall be
required by the Mortgagee, an estopped certificate and
waiver of defenses duly acknowledged setting forth the
amount of principal and interest unpaid hereunder and the
general status of this Mortgage and such other
information as Mortgagee may request. Failure of the
Mortgagor to make and deliver to Mortgagee the estoppel
certificate within the required time shall constitute an
Event of Default hereunder.
25. Future Advances. This Mortgage is given not only to
secure payment of the Note (whether the entire amount
shall have been advanced to or for the benefit of the
Mortgagor at the date hereof, or at a later date), but
also to secure any other amount or amounts, together with
interest thereon, that may be advanced at any time, but
not more than twenty (20) years after the date hereof,
under the terms of this Mortgage. The total amount of
indebtedness secured hereby may decrease or increase from
time to time but the total unpaid balance so secured at
any one time shall not exceed the principal sum of SEVEN
MILLION AND NO/100 DOLLARS ($7,000,000.00) plus interest
thereon, plus such other disbursements as may be made by
Mortgagee pursuant to the terms of this Mortgage, with
interest thereon. Nothing herein contained shall be
deemed an obligation on the part of the Mortgagee to make
any future advances.
26. Security Agreement. To the extent that any portion of
the Mortgaged Premises shall be deemed to be subject to
the provisions of the Uniform Commercial Code, this
Mortgage shall serve as a "security agreement" within the
meaning of the Uniform Commercial Code as adopted in the
State of Florida. Mortgagor hereby grants to Mortgagee a
security interest in and to all of those portions of the
Mortgaged Premises which may ultimately be held to be
subject to the Uniform Commercial Code. With respect to
such property, Mortgagee shall have all rights afforded
secured parties by the Uniform Commercial Code, as
adopted in the State of Florida, and as may hereafter be
modified or amended, in addition to, but not in
limitation of, the other rights afforded the Mortgagee
hereunder. Upon the occurrence of an Event of Default
which has not been cured within any applicable notice and
cure period hereunder, Mortgagee is authorized and
empowered to enter the Mortgaged Premises or other place
where any property may be located without legal process
and to take possession of same without notice or demand,
all of which are hereby waived to the maximum extent
permitted by the laws of the State of Florida. Mortgagee
may sell at one or more
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public or private sales and for such price as Mortgagee
may deem commercially reasonable any and all property encumbered
by this Mortgage and any other
security or property held by Mortgagee and Mortgagee may be
the purchaser of any or all of such
property. Whenever notification with respect to the sale or
other disposition of the property is
required by law, such notification of the time andplace of
disposition shall be deemed reasonable if
given to Mortgagor at least ten (10) days prior to the date of
sale at Mortgagor's most recent address
reflected on Mortgagee's books and records. A carbon, photocopy
or other reproduction of this
Mortgage shall be sufficient as a financing statement. Debtor's
principal place of business and the
Secured Party's address are set forth on the first page ofthis
Mortgage. Mortgagor agrees to make,
execute and deliver to the Mortgagee, in form
cosatisfactory to the Mortgagee, such financing
statements and further assurances as Mortgagee may
from time to time consider reasonably necessary to
create, protect and preserve the Mortgagee's
security interest.
27. Fees and Costs. Mortgagor shall pay or reimburse
Mortgagee all the costs, charges
and expenses, including reasonable attorneys' fees and
reasonable consultant's fees, incurred or paid
at any time by the Mortgagee or Agent, or both, because
of the failure of the Mortgagor to perform,
comply with and abide by each and every one of the
stipulations, agreements, conditions and
covenants ofthe Note, this Mortgage or the other
Security Documents (including, without limitation,
foreclosure, enforcement, condemnation or eminent
domain proceedings, or any action to protect the security
hereof, or any proceeding in probate,
reorganization or bankruptcy). All such payments shall be
secured by this Mortgage and shall bear
interest at the Default Rate provided herein.
28. Default Rate. Upon the occurrence of an Event of
Default which has not been cured
within any applicable notice and cure period, the
principal amount of the Note, together with all
accrued but unpaid interest and together with all sums
which may have been advanced by Mortgagee
and which are secured hereby, shall bear interest at
the default rate ("Default Rate") set forth in the
Note.
29. Security Documents. This Mortgage secures the
payment of all sums and the
performance of all covenants to be paid or performed
under the Note and the Security Documents.
The failure by the Mortgagor or others to fully,
faithfully and punctually perform all of its or their
obligations under the Note and the Security Documents
shall constitute an Event of Default
hereunder and shall entitle the Mortgagee to proceed in
accordance with the remedies available to
it upon the occurrence of an Event of Default.
30. Mortgagee's Application of Payments. Mortgagee will
apply monies received under
the Note and this Mortgage, or the proceeds of any sale
of all or any portion of the Mortgaged
Premises, first to the payment of receiver's fees and
expenses, if any, and to the payment of all costs
and expenses (including, without limitation, attorneys'
fees and expenses) incurred by Mortgagee,
together with interest thereon at the Default Rate, and
thereafter in such order as Mortgagee may
elect to payment of sums secured hereby.
3 0
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31. Hazardous or Toxic Materials.
31.1 Prior Use of Mortgaged Premises. Mortgagor warrants
and represents that Mortgagor has made all due inquiry
and investigation into the previous ownership and uses of
the Mortgaged Premises and the present condition of same
consistent with good commercial or customary practice in
an effort to minimize liability with respect to any
"Hazardous or Toxic Materials" (as hereafter defined).
31.2 Present Use of Mortgaged Premises. Mortgagor
warrants and represents that: (i) except as disclosed to
Mortgagee in writing in its environmental audit, the
Mortgaged Premises is presently free from contamination
by or the presence of Hazardous or Toxic Materials; (ii)
the Mortgaged Premises and the activities conducted
thereon do not pose any significant hazard to human
health or the environment or violate any applicable
common law or federal, state or local laws, ordinances,
rules, regulations or requirements (whether now existing
or hereafter created) pertaining to the manufacture,
generation, use, processing, distribution, release,
treatment, discharge, emission, handling, storage,
transportation or disposal of Hazardous or Toxic
Materials (including, without limitation, any of the
foregoing relating to emissions, discharges, release or
threatened release of pollutants, contaminants or waste
into the environment, air, surface or ground water,
subsurface strata or otherwise) or industrial hygiene or
environmental conditions (collectively, "Environmental
Laws"); and (iii) the Mortgaged Premises is now and at
all times hereafter will continue to be in full
compliance with all Environmental Laws.
31.3 Storage and Use of Hazardous or Toxic Materials.
Mortgagor warrants and represents that the Mortgaged
Premises and any improvements now or hereafter thereon
have not in the past been used, are not presently being
used, and will not in the future during the term of this
Mortgage or the Note it secures be used for, or as a
facility for, the manufacture, generation, use,
processing, distribution, release, treatment, discharge,
emission, handling, storage, transportation, or disposal
of Hazardous or Toxic Materials (except for pesticides,
the storage and use of which are in accordance with all
applicable Environmental Laws).
31.4 No Other Property of Borrower in Violation of
Environmental Laws. To the best of Mortgagor's knowledge,
after due inquiry and investigation, except as disclosed
to Mortgagee in its environmental audit, none of the real
property owned and/or occupied by Mortgagor or its
subsidiaries and affiliates which is located in the State
of Florida or elsewhere (including, without limitation,
the Mortgaged Premises) now or has ever contained
Hazardous or Toxic Materials, whether used in
construction or stored on such real property.
31.5 Underground Storage Tanks. Any aboveground or
underground storage tanks on the Mortgaged Premises have
been properly registered with the Florida Department of
Environmental Regulation and are in full compliance with
the standards for stationary tanks contained in Chapter
17-761 or Chapter 17-762, Florida Administrative Code
("FAC"), any local tank regulation program authorized
under Chapter 17-63, FAC, and regulations for underground
storage tanks promulgated by the U.S. Environmental
Protection Agency ("EPA") under 40 CFR
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Part 280. Mortgagor warrants and represents that, to the
best of its knowledge after due inquiry and investigation
and except as disclosed in writing to Mortgagee, there
has never been a discharge (as that term is defined in
Rule 17-761, FAC) of any pollutants, contaminants or
petroleum products from any aboveground or underground
storage tanks and the Mortgaged Premises has never been
the subject of a petroleum contamination site cleanup or
remediation under applicable Environmental
Law.
31.6 Release of Hazardous or Toxic Materials. Mortgagor
shall not cause or permit to exist, as a result of any
act or omission on Mortgagor's part or on the part of any
employee, agent, independent contractor, licensee or
invitee of Mortgagor or Mortgagor's subsidiaries and
affiliates, and has no notice or knowledge of, a release,
discharge, spillage, leak, pumping, emission, pouring,
emptying or dumping of any Hazardous or Toxic Materials
into waters or onto lands of the State of Florida, or
waters of the United States, or elsewhere, where damage
may result to the lands, waters, fish, shellfish,
wildlife, biota, air or other resources owned, managed,
held in trust or otherwise controlled by the State of
Florida or the United States, unless such act or omission
is pursuant to and in strict compliance with the
conditions of permits issued by the appropriate federal,
state or local governmental authorities and pursuant to
the Environmental Laws.
3 1.7 Indemnity.
(a) Mortgagor and each of its general partners,
jointly and severally, hereby indemnifies, and agrees to
defend and save and hold Mortgagee and its directors,
officers, employees, agents, successors and assigns
harmless from and against any and all losses, liabilities
(including, without limitation, strict liability and
common law liability), obligations, damages (including,
without limitation, all foreseeable and unforeseeable
consequential damages to any person or entity including
third parties), injuries (including, without limitation,
injuries to the environment), defenses, charges,
penalties, interest, expenses, fees (including attorneys'
fees and paralegal, consultant and expert fees at all
administrative and judicial hearing, trial and appellate
levels), costs (including, without limitation, costs of
any settlement), judgments, administrative or judicial
proceedings and orders, remedial action requirements,
enforcement actions, claims and demands of any and every
kind whatsoever (whether civil or criminal), paid by,
awarded against, imposed upon, incurred or suffered by,
or asserted against, Mortgagee by any person or entity or
governmental agency or body for, with respect to, related
to, arising out of, or as a direct or indirect result of,
in whole or in part: (i) the violation (whether by act,
omission or otherwise) of any Environmental Laws (whether
now existing or created hereafter) applicable to the
Mortgaged Premises or any activity conducted thereon;
(ii) the past, present or future manufacture use,
generation, processing, distribution, release, treatment,
discharge, emission, escape, seepage, leakage, spillage,
handling, storage, transportation, disposal, clean-up or
presence at, on or under the Mortgaged Premises or
adjacent Property, or to the soil, air or to surface or
ground water thereat, of any Hazardous or Toxic
Materials; and (iii) the breach of any warranty or
representation in this Mortgage or the Security
Documents. All sums paid and costs incurred by Mortgagee
with respect to the foregoing matters shall bear interest
at the greater of the Default Rate or the highest
applicable lawful rate and shall be secured by the lien
of the Mortgage, and the lien of the Mortgage shall also
further secure this indemnity and any liability of
Mortgagor hereunder. Nevertheless, this indemnification
shall survive the full payment and performance or
discharge of the Note and the Mortgage, the release of
the Mortgaged Premises and satisfaction of the Mortgage,
and it shall inure to the benefit of any transferee of
title to the Mortgaged Premises through foreclosure of
the Mortgage or through deed in lieu of foreclosure and
to such transferee's successors and assigns.
(b) The monetary amounts for which Mortgagee is
indemnified pursuant to Section 31.7(a) above shall, at
Mortgagee's option, be reimbursable to Mortgagee on
demand, without awaiting the outcome of any litigation,
claims or other proceedings which may be filed or pursued
with respect to any matter for which indemnification has
been granted. Mortgagor (and each other individual or
entity who has indemnified Mortgagee pursuant to Section
31 .7(a) above) shall make payments to Mortgagee from
time to time within thirty (30) days after notice from
Mortgagee itemizing the amounts due. The indemnifications
set forth in Section 31.7(a) above shall be enforceable
by Mortgagee at law and in equity.
(c) The provisions of Section 31.7 shall apply to
Mortgagor and its general partners, notwithstanding any
provisions of the Note or this Mortgage to the contrary,
or any limitation of monetary or other liability set
forth in the Note, this Mortgage or the other Security
Documents and Mortgagor and each of its general partners
acknowledges that its and their obligations are
unconditional and without limitation.
31.8 Environmental Audit by Mortgagee.
(a) In addition to any environmental audit which may
have been required as a precedent to the closing of the
loan evidenced by the Note and secured by this Mortgage,
Mortgagee shall have the right, at its sole option, to
obtain, at Mortgagor's expense (but not more frequently
than three times during the term of the loan, unless
Mortgagor is in default hereunder or an environmental
complaint is outstanding), an environmental audit
prepared by an independent engineer or other qualified
environmental consultant of the Mortgagee's choice, which
evaluates: (i) whether any Hazardous or Toxic Materials
are present in the soil or surface or ground water at the
site ofthe Mortgaged Premises or in the soil or surface
or ground water adjacent to such site in quantities that
would violate applicable Environmental Laws; (ii) whether
any Hazardous or Toxic Materials have previously been
released, intentionally or unintentionally, to the soil
or to surface or ground water at the site of the
Mortgaged Premises; (iii) whether Hazardous or Toxic
Materials are now or have been previously used,
generated, released, treated, discharged, emitted,
escaped, leaked, spilled, handled, stored, transported or
disposed of at the site of the Mortgaged Premises; and
(iv) whether activities presently being conducted at the
site ofthe Mortgaged Premises are in compliance with all
applicable Environmental Laws. The environmental audit
shall be based upon sampling of the soil, air, water,
visual inspection, and such other methods as shall be
appropriate. All sampling shall be conducted using
accepted and scientifically valid technology and
methodologies. The consultant shall prepare a written
report detailing its findings and conclusions.
<PAGE>
(b) The Mortgagor agrees that in the event Mortgagee
requests such an audit or an audit pursuant to Section
31.12 below, and either of said audits indicates such
past or present use, manufacture, generation, processing,
distribution, release, treatment, discharge, emission,
escape, seepage, leakage, spillage, handling, storage,
transportation, disposal, clean-up or presence, Mortgagee
may, in its sole discretion, require that Mortgagor shall
take all steps necessary to further define the nature of
the Hazardous or Toxic Materials, any risks related to or
resulting therefrom, and possible remedial measures; and
thereafter may also require that all violations of law
with respect to Hazardous or Toxic Materials be
immediately corrected by Mortgagor at its sole cost and
expense (including, without limitation, all removal,
containment and remedial actions with respect to
Hazardous or Toxic Materials and all fines, penalties,
clean-up, enforcement and administrative costs) and that
Mortgagor obtain all necessary environmental permits and
approvals associated therewith.
31.9 Notice of Hazardous or Toxic Materials. If Mortgagor
receives any notice or has knowledge of: (i) the
happening or existence of any material event involving
the manufacture, use, generation, processing,
distribution, release, treatment, discharge, emission,
escape, seepage, leakage, spillage, handling, storage,
transportation, disposal or clean-up of any Hazardous or
Toxic Materials, or violation of any Environmental Laws,
on or at the site of the Mortgaged Premises or adjacent
thereto, or in connection with Mortgagor's operations
thereon; or (ii) any summons, complaint, order, citation,
notice (oral or written), writing or communication with
regard to any matter described in subsection of this
Section 31.9 or any other environmental, health or safety
matter affecting Mortgagor or the Mortgaged Premises, or
both (collectively, an "Environmental Complaint") from
any person, entity or governmental agency or body
(including, without limitation, the U.S. Environmental
Protection Agency ("EPA"), then Mortgagor shall
immediately notify Mortgagee orally and in writing of
said notice, knowledge or Environmental Complaint and
provide to Mortgagee copies of all written documents
pertaining to same.
31.10 No Present Notice or Actions. Mortgagor warrants
and represents that: (i) there is no civil, criminal or
administrative action, suit, demand, claim, investigation
or proceeding, pending or threatened, against Mortgagor
or which in any way relates to any Environmental Law or
the Mortgaged Premises; (ii) Mortgagor has not received
or been threatened with an Environmental Complaint; (iii)
Mortgagor knows of no circumstances, plans, activities or
practices which may interfere with or prevent compliance
or continued compliance by Mortgagor with any
Environmental Laws or which may give rise to liability or
form the basis for an Environmental Complaint.
31.11 Entry by Mortgagee. Mortgagee shall have the right
but not the obligation, and without limitation of
Mortgagee's rights under the Mortgage, to enter onto the
Mortgaged Premises or to take such other action as it
deems necessary or advisable to clean up, remove,
decontaminate, detoxify, resolve or minimize the impact
of, or otherwise deal with, any hazardous or toxic
Materials or Environmental Complaint following receipt of
any notice from any person or entity (including, without
limitation, the EPA) asserting the existence of any
Hazardous or Toxic Materials or an Environmental
Complaint pertaining to the Mortgaged Property or any
part thereof which, if true, could result in an order,
suit or other action against Mortgagor and/or which, in
the sole opinion of Mortgagee, could jeopardize Mortgagee's
security under the Mortgage. All costs and expenses
incurred by Mortgagee in the exercise of any such rights
shall be secured by the Mortgage and shall be payable by
Mortgagor upon demand, together with interest at the
Default Rate.
31.12 Periodic Environmental Audit from Mortgagor.
Mortgagee shall have the right, in its sole discretion,
to require Mortgagor to periodically (but not more
frequently than three times during the term of the loan
unless Mortgagor is in default hereunder or an
Environmental Complaint is then outstanding) perform (at
Mortgagor's expense) an environmental audit and, if
deemed necessary by Mortgagee, an environmental risk
assessment (each of which must be satisfactory to
Mortgagee) of the Mortgaged Premises, hazardous waste
management practices andlorhazardous waste disposal sites
used by Mortgagor, if any, and of compliance with all
permits, consent orders, licenses, approvals, permissions
or any of the like required for the operation of the
Mortgaged Premises or any business, process or activity
thereon. Said audit and/or risk assessment must be by an
environmental consultant satisfactory to Mortgagee.
Should Mortgagor fail to perform said environmental audit
or risk assessment within thirty (30) days of the
Mortgagee's written request, Mortgagee shall have the
right, but not the obligation, to retain an environmental
consultant to perform said environmental audit or risk
assessment. All costs and expenses incurred by Mortgagee
in the exercise of such rights shall be secured by the
Mortgage and shall be payable by Mortgagor upon demand,
or charged to Mortgagor's loan balance at the sole
discretion of Mortgagee.
31.13 Breach of Warranty. Any breach of any warranty,
representation, covenant or agreement contained in this
Section 31 shall be an Event of Default under the
Mortgage and shall entitle Mortgagee to exercise any and
all remedies provided in the Mortgage, or otherwise
permitted
by law.
31.14 Definition of Hazardous or Toxic Materials.
"Hazardous or Toxic Materials" includes, but is not
limited to: (i) materials defined as "Hazardous Waste" or
hazardous substances under the Federal Resource
Conservation and Recovery Act or similar state laws; and
(ii) "hazardous substances" as identified under the
Federal Comprehensive Environmental Response,
Compensation and Liability Act of 1980 ("CERCLA"), 42
U.S.C. Section 9601, et. Beg., the Federal Superfund
Amendments and Reauthorization Act of 1986, the Florida
Resource Recovery and Management Act, the Florida
Pollutant Spill Prevention and Control Act and all
Federal, state or local environmental statutes, laws,
ordinances, codes, rules and regulations (whether now
existing or hereafter created) promulgated, adopted,
entered or issued, as all of the foregoing may be amended
from time to time; and (iii) those elements or compounds
which are contained in any list of hazardous substances
adopted by the EPA and any list of toxic pollutants or
contaminants designated by Congress or the EPA
(including, without limitation, those set forth in
Section 101(14) of CERCLA and in Title 40, Code of
Federal Regulations, Part 302) or defined by any other
Federal, state or local statute, law, ordinance, code,
rule, regulation, order or decree regulating, relating
to, or imposing liability or standards of conduct
concerning, any hazardous, toxic, polluting, or dangerous
waste, substance or material, as such lists are not or at
any time hereafter in effect; and (iv) asbestos; and (v)
radon; and (vi) polychlorinated biphenyls; and (vii)
petroleum and petroleum products (including those
described in Chapter 376,
Florida Statutes); and (viii) such other materials,
substances or waste which are otherwise dangerous,
hazardous, harmful or deleterious to human, plant or
animal health or well being or the environment.
32. Reappraisal of Mortgaged Premises. Notwithstanding
anything to the contrary contained in this Mortgage or
the Security Documents, if at any time and for any reason
Mortgagee, in its sole discretion, determines that the
value of the Mortgaged Premises may have declined or
become less than Mortgagee previously anticipated,
Mortgagee may obtain, at Mortgagor's sole cost and
expense, a current appraisal ofthe Mortgaged Premises
from an appraiser selected by Mortgagee and in such form
and content as required by Mortgagee. The appraisal to be
obtained pursuant to this Section 32 may, at Mortgagee's
option, be in form and content necessary to meet the
requirements of all laws, rules and regulations to which
Mortgagee may be subject. Mortgagor shall cooperate fullY
, with any such appraiser and provide all such documents
and information as such appraiser may request in
connection with the appraiser's performance and
preparation of such appraisal. Mortgagofs failure to
promptly and fully comply with Mortgagee's requirements
under this Section 32 shall, without further notice,
constitute an Event of Default under this Mortgage and
the Security Documents. Notwithstanding the above, in the
absence of an Event of Default, Mortgagor shall only be
obligated to pay the cost of a reappraisal of the
Mortgaged Premises obtained by Mortgagee pursuant to this
Paragraph 32 not more than two times during the term of
the loan.
33. Severability and Savings Clauses.
(a) If any provision of this Mortgage is held to be
invalid or unenforceable by a court of competent
jurisdiction, the other provisions of this Mortgage shall
remain in full force and effect and shall be liberally
construed in favor of Mortgagee in order to effect the
provisions of this Mortgage.
(b) Notwithstanding any other provision of this or any
other document to the contrary, in no event shall the
applicable interest rate as defined in the Note secured
hereby, or in this Mortgage exceed the maximum rate of
interest permitted by applicable law.
34. Jurisdiction: Appointment of Agent.
(a) Mortgagor and its general partners hereby acknowledge
and agree that all disputes arising, directly or
indirectly, out of or relating to the Note, the Mortgage,
any guaranty, the Security Documents or any or all of the
foregoing shall be dealt with and adjudicated in the
courts of the State of Florida in Lee County, Florida, or
the United States District Court for the Middle District
of Florida and hereby expressly irrevocably submit to the
jurisdiction of such courts upon the persons of the
Mortgagor and its general partners, or any of them, in
any suit, action or proceeding arising, directly or
indirectly, out of or relating to the Note, the Mortgage,
any of the Security Documents or any or all of the
foregoing. So far as it is permitted under the applicable
law, this consent to personal jurisdiction shall be
self-operative and no further instrument or action, other
<PAGE>
than service of process in one of the manners specified
below, or as otherwise permitted by law, shall be
necessary in order to confer jurisdiction upon the person
of Mortgagor or its general partners, or any of them, in
such court.
(b)The Mortgagor and its general partners hereby
irrevocably waive, to the fullest extent permitted by
law, and agree not to assert, by way of motion, as a
defense or otherwise, any objection which any or all of
them may have or may hereafter have to the laying of the
venue of any such suit, action or proceeding brought in
such court, any claim that any such suit, action or
proceeding brought in the above-named courts has been
brought in an inconvenient forum, or any claim that they
or any of them is not personally subject to the
jurisdiction of such courts. Provided that service of
process is effected in one of the manners specified below
or is otherwise permitted by law, the parties so served
agree that final judgment in any such suit, action or
proceeding brought in one of the above-named courts shall
be conclusive and binding upon the parties so served and
may, so far as is permitted under the applicable law, be
enforced in the courts of the State of Florida (and in
any other courts to the jurisdiction of which the
Mortgagor and its general partners are subject) and that
neither the Mortgagor or its general partners will assert
any defense in any such suit upon such judgment.
(c) The Mortgagor and its general partners hereby,
collectively, designate Robert M. Taylor, individually,
having an address of 12800 University Drive, Suite 350,
Fort Myers, Florida, 33907 as their authorized agent to
accept and acknowledge on their behalf service of any or
all process that may be served in any suit, action or
proceeding in the nature referred to herein in any court
having jurisdiction. Such agent, by execution of this
Mortgage, consents to and accepts designation and
appointment as agent for service of process upon the
Mortgagor and each of its general partners. In the event
of the death or incapacity of the agent, Mortgagor and
each of the general partners covenant and agree, within
30 days of such death or incapacity to designate and
appoint an agent or agents reasonably satisfactory to
Mortgagee and to deliver to Mortgagee evidence of writing
of such agent acceptance of appointment.
(d) Nothing contained herein shall affect the right of
Mortgagee to serve process in any manner permitted by law
or limit the right of Mortgagee to bring proceedings
against Mortgagor or its general partners in the courts
of any jurisdiction or jurisdictions.
35. Preservation of Agreements. Mortgagor shall comply
with and timely abide by, and shall preserve and keep in
full force and effect all agreements, leases, approvals,
permits and licenses benefitting, affecting or
encumbering the Mortgaged Premises, or which are
necessary for the development, use and operation of the
Mortgaged Premises for its intended purpose or purposes.
36. Indemnification. Mortgagor and its general partners
shall, jointly and severally, protect, indemnify, defend
and hold Mortgagee and its directors, officers, agents,
employees and counsel, harmless from and against any and
all liability, loss, expense or damage of any kind or
nature (including, without limitation, reasonable
attorneys' and reasonable consultants' fees) arising out
of any matter, action or inaction of Mortgagee with
respect to the Note, this Mortgage, the
<PAGE>
Security Documents or the Mortgaged Premises. This
indemnification shall survive payment of the indebtedness
secured hereby.
37. Miscellaneous Provisions.
(a) Time. Time is of the essence with respect to each and
every covenant, agreement and obligation of Mortgagor
under this Mortgage, the Note and the Security Documents.
(b)Communications. Any notice, request, demand, consent,
approval or other communication provided or permitted
hereunder shall be in writing and be hand delivered (and
receipted for), given by facsimile (with telephonic
confirmation of receipt) or sent by the United States
first-class certified or registered mail, return receipt
requested, postage prepaid, addressed to the party for
whom it is intended at the addresses set forth in the
Loan Agreement; provided, however, that either party may
change its address for purposes of receipt of any such
communication by giving at least ten (10) days written
notice of such change to the other party in the manner
above prescribed. Mortgagor hereby irrevocably appoints,
designates and authorizes Mortgagee as its agent to file
for record any notices that Mortgagee deems necessary or
desirable to protect its interest hereunder or under the
Note or the Security Documents. Any notice hand delivered
shall be deemed received upon delivery and any notice
mailed in accordance with the above provisions shall be
deemed received and effective on the third business day
after mailing. For purposes of this Section 37(b), "
hand-delivery" shall include telegram or overnight courier.
Notwithstanding the foregoing, at its option, any
communication by Mortgagee to Mortgagor may be given
orally (either in person or by telephone if confirmed in
writing within three (3) days thereafter) or by telex or
facsimile. Copies of notices to Mortgagee or Agent shall
also be given, concurrently therewith, to Marshall J.
Emas, Esq., English, McCaughan & O'Bryan, P.A., 100
Northeast Third Avenue, Suite 1100, Fort Lauderdale,
Florida 33301 and copies of notices to Mortgagor shall
also be given, concurrently therewith, to Diane Jensen,
Esq., Pavese, Garner, et al., 1833 Hendry Street, Fort
Myers, Florida 33901. Notice from counsel for one party
to the other shall be deemed notice hereunder.
(c) Captions. Captions of paragraphs contained in this
Mortgage are inserted only as a matter of convenience and
in no way define, limit, extend or describe the scope of
this Mortgage or the intent of any provision hereof.
(d) Choice of Law: Construction of Mortgage. This
Mortgage has been negotiated, executed and delivered in
the State of Florida and shall be governed by and
construed in accordance with the laws of the State of
Florida. Mortgagor acknowledges that both Mortgagor and
Mortgagee have each been represented by counsel of their
choice in the preparation, negotiation and execution of
this Mortgage and the Security Documents. Neither the
Note, this Mortgage nor the Security Documents shall be
more strictly construed against one party than against
the other by virtue of the fact that it may have been
physically prepared by one party or its counsel.
(e) Joint and Several Liability. If more than one person
or entity executes this Mortgage, each is and shall be
jointly and severally liable hereunder; and if Mortgagor
is a general
3 8
<PAGE>
partnership, then all partners of Mortgagor (and if
Mortgagor is a limited partnership, then all general
partners of Mortgagor) shall be jointly and severally
liable hereunder, notwithstanding any contraryId,
provision in the partnership laws of the State of
Florida. rev
to
red
D
(f) Modification. No agreement unless in writing and
signed by an authorized officer of Mortgagee and no
course of dealing between the parties hereto shall be
affect of the change, waive, terminate, modify, discharge
or release in whole or in part any provision of this
Mortgage.
(g) No Representation by Mortgagee. By accepting or
approving anything required to be observed or performed
or fulfilled, or to be given to Mortgagee pursuant to
this Mortgage or any of the Security Documents
(including, without limitation, the certificate of any
officer or director of Mortgagor, balance sheet,
statement, survey or appraisal) Mortgagee shall not be
deemed to have warranted or represented the sufficiency,
legality, effectiveness or legal effect of the same, or
any term, provision or condition thereof, nor shall any
acceptance or approval constitute any warranty or
representation by Mortgagee.
(h) Attorneys' Fees and Expenses Defined. Any reference
in this Mortgage to attorneys' fees paid or incurred by
Mortgagee or Agent, or both, shall be deemed to include
paralegals', legal assistants and consultants' fees, all
to the extent reasonable. In addition, wherever provision
is made herein for payment of such fees or expenses, such
provision shall include, without limitation, fees and
expenses incurred in any judicial, bankruptcy,
reorganization, administrative or other proceedings,
including appellate proceedings, whether such fees or
expenses arise before proceedings are commenced or after
entry of any judgment.
(i) Withholding Taxes. If, under any applicable law or
regulation, Mortgagor shall be required to make any
withholding or deduction from any payment due hereunder
or under any of the Security Documents for or in respect
of any present or future taxes, levies, impositions,
charges or fees of any nature whatsoever (except for
Mortgagee's income taxes), the amount due Mortgagee from
Mortgagor with respect to such payment shall be increased
to the extent necessary to insure that, after making such
withholding or deduction, Mortgagee shall receive an
amount equal to the amount which Mortgagee would have
received had no such withholding or deduction been made.
If Mortgagor shall fail to make any withholding or
deduction which is required to be made under applicable
law or regulation, Mortgagee reserves the right to make
payment thereof. If Mortgagee makes such payment, or if
Mortgagee shall be required to pay any tax, levy,
imposition, charge or fee (except for Mortgagee's income
taxes), Mortgagor shall indemnify Mortgagee for such
payment and same shall, together with any interest,
penalties and expenses in connection therewith, bear
interest at the Default Rate and be payable upon demand.
Any increased amount required to be paid by Mortgagor in
accordance with the provisions of this Section 37(i)
shall have the same character as the amount for which it
is paid but shall not: (i) if characterized as principal,
be applied in reduction of principal; or (ii) if
characterized as interest, be applied in reduction of
accrued and unpaid interest.
(j) Platting. Condominium and Homeowners' Documents.
Mortgagor shall not plat the Mortgaged Premises or any
portion thereof, submit the Mortgaged Premises or any
portion thereof to the condominium form of ownership, or
subject the Mortgaged Premises or any portion thereof to
any conditions, covenants, agreements, restrictions,
easements or otherwise, without the prior written consent
of Mortgagee. Such consent shall be conditioned upon
Mortgagee's receipt of: (i) satisfactory opinions of
counsel; (ii) title endorsements insuring the validity of
the regime created and, further, insuring the continued
lien and priority of the Mortgage; and (iii) Mortgagee's
reasonable satisfaction with the form and content of any
plat, declaration of condominium, or conditions,
covenants, agreements, restrictions, easements or
otherwise.
(k) Forfeiture of Property. Mortgagor warrants and
represents that neither Mortgagor, any of its general
partners or any other individual or entity, has committed
any act or omission, or has consented to any act or
omission, which would afford any Governmental Authority
the right or remedy of forfeiture or seizure of all of:
(i) all or any part of the Mortgaged Premises, any
collateral under the Security Documents or any property
(including, without limitation, money) delivered to
Mortgagee, or any other party, in the performance of
Mortgagor's obligations under this Mortgage or the other
Security Documents; or (ii) any interest in or income,
profits or proceeds of, any ofthe property described in
subsection (i) of this Section 37(k). Mortgagor agrees
not to engage in any act, or permit the occurrence of any
act or omission that would afford any Governmental
Authority the right or remedy of forfeiture or seizure.
Moreover, Mortgagor agrees that the filing of any
charges, or the commencement of any proceedings, against
Mortgagor or any general partner of Mortgagor, or against
any of the property described in subsection (i) of this
Section 37(k), or against any person having any interest
in, or use or possession of any such property, that would
afford any Governmental Authority the right or remedy to
forfeit or seize any such property, shall constitute an
Event of Default under this Mortgage (and,
notwithstanding anything to the contrary contained in
this Mortgage, Mortgagor shall have no right to cure such
Event of Default).
38. Waiver of Counterclaims. Mortgagor and its partners
hereby waive the right to impose, in any action with
respect to the Note, this Mortgage, or the other Security
Documents, any counterclaim (except mandatory
counterclaims) or to have any such action consolidated
with any other or separate suit, action or proceeding.
Nothing herein contained shall prevent or prohibit
Mortgagor from instituting or maintaining a separate
action against Mortgagee with respect to any asserted
claim.
39. Exculpation of Limited Partners. Mortgagor's limited
partners shall not be personally liable for repayment of
principal, interest or "Prepayment Costs" under the Note.
40. CLNY as Agent for Mortgagee. Mortgagor acknowledges
that CLNY, which, together with Barnett and FINOVA,
constitutes Mortgagee, seines as agent for Mortgagee
hereunder. CLNY, as Agent, shall have the right to take
all actions and exercise all rights on behalf of, for the
account of and in the name of Mortgagee under the Note
secured hereby, this Mortgage and any and all other
Security Documents and Mortgagor shall accept such
actions and performance by Agent as authorized on behalf
of, for the account of and in the name of Mortgagee. In
the event CLNY shall assign its rights as Agent, at
its option, it shall
thereafter be relieved of any further responsibility
under this Mortgage and the other Security Documents. All
covenants, agreements, representations, warranties,
indemnifications, obligations and performances of
Mortgagor or others to Mortgagee under this Mortgage, the
Note and the other Security Documents, shall also be
deemed to run to, benefit, include and be enforceable by
Agent.
41. Waiver of Trial by Jurv. MORTGAGOR, ITS PARTNERS,
MORTGAGEE AND AGENT HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE ANY RIGHT ANY MAY HAVE TO A TRIAL BY
JURY WITH RESPECT TO ANY LITIGATION BASED ON THIS
MORTGAGE, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH
ANY OR ALL OF THE SECURITY DOCUMENTS OR ANY DOCUMENT,
INSTRUMENT OR AGREEMENT CONTEMPLATED TO BE EXECUTED IN
CONNECTION WITH THIS MORTGAGE OR THE SECURITY DOCUMENTS,
OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
(VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY HERETO. THIS
PROVISION IS A MATERIAL INDUCEMENT FOR MORTGAGEE TO MAKE
THE LOAN DESCRIBED IN THIS MORTGAGE OR EVIDENCED OR
SECURED BY THE SECURITY DOCUMENTS, AND FOR MORTGAGOR TO
EXECUTE AND DELIVER THIS MORTGAGE. THE PROVISIONS OF THIS
SECTION 41 SHALL SUPERSEDE AND CONTROL ANY PROVISIONS IN
THIS MORTGAGE OR THE SECURITY DOCUMENTS TO THE CONTRARY.
42. Limitation on Collateral under Indenture. Mortgagee's
consummation ofthe loan (the "Loan") secured by this
Mortgage is based upon Mortgagor's representation and
warranty that the Loan qualifies as "Permitted Real
Property Indebtedness" ("PRPI"), as defined under the
"Indenture" described in the Loan Agreement. Such
definition sets forth the collateral which may secure
PRPI. Notwithstanding any other provision of this
Mortgage or the other Security Documents to the contrary,
nothing in this Mortgage or the other Security Documents
grants, or is intended by Mortgagor or Mortgagee to
grant, to Mortgagee an interest in collateral which would
violate that permitted to secure PRPI under the
Indenture. In the event a court of competent jurisdiction
should determine that: (i) the collateral granted to
Mortgagee under this Mortgage or the other Security
Documents does not conform to that permitted to secure
PRPI; and (ii) as a result, Mortgagor would be in breech
of or default under the provisions ofthe Indenture, then
the grant of such collateral shall be void ab initio and
the collateral securing the Loan shall be limited to that
permitted under the Indenture to secure PRPI and any
other collateral encompassed hereby shall secure the
"Loans" described in the Loan Agreement.
IN WITNESS WHEREOF, this Mortgage has been duly executed,
delivered and sealed by the Mortgagor on the day and year
first above written.
Signed, sealed and delivered in the presence of:
MORTGAGOR:
to
;=
rot
CO
<PAGE>
SOUTH SEAS PROPERTIES COMPANY LIMITED PARTNERSHIP, an
Ohio limited partnership
to := rv
By: T & T Resorts, L.C., a
Florida limited liability N
a General Partner SO
Nan~/ ~ -
N~ ~ ~5
Name:
Name:
Name:
By: , _
_.._. it. ~ ~ ~._^
V~
c,
. ~ '` r I Cam
-
Robert M./aylor, Manager
Address: 12800 University Drive
Suite 350 \
Fort Myers, Florida 3~/
MORTGAGEE:
CREDIT LYONNAIS NEW YORK BRANCH
By:
Address: 1301 Avenue of the Americas
1 8th Floor
New York, NY 10019
BARNETT BANK, N.A.
By:Name: Title: Address: 2000 Main Street, 2nd Floor
Ft. Myers, FL 33901
FINOVA CAPITAL CORPORATION, a Delaware corporation
Address: 7272 East Indian School Road, Suite 410
Scottsdale, AZ 85251
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<PAGE>
SOUTH SEAS PROPERTIES COMPANY LIMITED PARTNERSHIP, an
Ohio limited partnership
to
By: T & T Resorts, L.C., a
Florida limited liability rem
company, its General
Partner
ID
Name:
~-~
Name: ~:~ As. CAP ~
/~k W~.
Name: '1~' / ,46
Name:
Name:
Name:
Name:
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By:
Robert M. Taylor, Manager
Address: 12800 University Drive
Suite 350
Fort Myers, Florida 3390?
MORTGAGEE:
CREDIT
~ .
By: , .
Name: ~ct~ 2~t
Title:\/ . =~ cash Dow
Address:1301 Avenue ofthe Americas
18th Floor
New York, NY 10019
SNAIL NEW YORK BRANCH
~ 1
BARNETT BANK, N.A.
Address: 2000 Main Street, 2nd Floor
Ft. Myers, FL 33901
FINOVA CAPITAL CORPORATION, a Delaware corporation
Address: 7272 East Indian School Road, Suite 410
Scottsdale, AZ 85251
<PAGE>
SOUTH SEAS PROPERTIES COMPANY LIMITED PARTNERSHIP, an
Ohio limited partnership
Name:
Name:
Name:
Name:
~ ~,,0~
N e: MU SIN) /11. t'Al~er~
/~)6 -
~ne: ~e~ (God
Name:
Name:
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By: T & T Resorts, L.C., a Florida limited liability
company, its General Partner
Robert M. Taylor, Manager
Address: 12800 University Drive
Suite 350
Fort Myers, Florida 33907
MORTGAGEE:
CREDIT LYONNAIS NEW YORK BRANCH
By:
Name:
Title:
Address: 1301 Avenue of the Americas
18th Floor
New York, NY 10019
BARNETT BANK, N.A.
By: ~K~ :~<
Name: BY I D4 ~ ~ l=cm em
Title: |/`f~ ~'de''>
Address: 2000 Main Street, 2nd Floor
Ft. Myers, FL 33901
FINOVA CAPITAL CORPORATION, a Delaware corporation
By:
Name :
Title:
Address: 7272 East Indian School Road, Suite 410
Scottsdale, AZ 85251
42
<PAGE>
SOUTH SEAS PROPERTIES COMPANY LIMITED PARTNERSHIP, an
Ohio limited partnership
By: T & T Resorts, L.C., a Florida limited liability
company, its General Partner
Name:
Name:
Name:
~ ~.0~
Name: Ail S;4AJ /11. ^~^e~
/~
ame. 7)etz71~ (~41/
Name:
Name:
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:5.23.97:pjh
Robert M. Taylor, Manager
Address: 12800 University Drive
Suite 350
Fort Myers, Florida 33907
MORTGAGEE:
CREDIT LYONNAIS NEW YORK BRANCH
By:Name:
Address: 1301 Avenue ofthe Americas
1 8th Floor
New York, NY 10019
BARNETT BANK, N.A.
By: 4~ :~:
Name: )Y I T)4 ~ t=~777
Title: 1/l-? deny
Address: 2000 Main Street, 2nd Floor
Ft. Myers, FL 33901
FINOVA CAPITAL CORPORATION, a Delaware corporation
Address: 7272 East Indian School Road, Suite 410
Scottsdale, AZ 85251
42
<PAGE>
Name
Name:
Name:
Name:
Name:
Name:
Name:
Name:
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SOUTH SEAS PROPERTIES COMPANY LIMITED
PARTNERSHIP, an Ohio limited partnership
By: T & T Resorts, L.C., a Florida limited liability
company, its General Partner
Robert M. Taylor, Manager
Address: 12800 University Drive
Suite 350
Fort Myers, Florida 33907
MORTGAGEE:
CREDIT LYONNAIS NEW YORK BRANCH
By:
Name:
Title:
Address: 1301 Avenue ofthe Americas
18th Floor
New York, NY 10019
BARNETT BANK, N.A.
Address: 2000 Main Street, 2nd Floor
Ft. Myers, FL 33901
FINOVA CAPITAL CORPORATION, a Delaware corporation A<
:~]
Native: JOCK FIELDS, 111
Title: tikuUI~ VICIf PRESIDENT
Address: 7272 East Indian School Road, Suite 410
Scottsdale, AZ 85251
42
<PAGE>
AGENT:
CRY
~': ~By:3
Name: Jib 64.~, Q~e A,
/~: /)
Name: 'I {' U=h~,)
STATE OF FLORIDA
COUNTY OF
iYONNAI$ NEW YORK BRANCH
Name _ tfi(A s'c~cc Z^~f'^
Title: 1/ `' r C ire Hi d ~
Address: 1301 Avenue of the Americas
1 8th Floor
New York, NY 10019
The foregoing instrument was acknowledged before me
this day of May, 1997, by ROBERT M. TAYLOR, as Manager
of T & T RESORTS, L.C., a Florida limited liability
company, on behalf of the company, the general partner
of South Seas Properties Company Limited Partnership,
an Ohio limited partnership, on behalf of the
partnership. He is personally known to me or produced
as identification.
Notary Public, State of Florida at Large
My Commission Expires:
The undersigned hereby executed this Mortgage solely
for the purpose of evidencing the consent of: (i)
Robert M. Taylor as to the designation and appointment
as agent for service of process upon the Mortgagor and
its partners, as described in Section 34(c) above; and
(ii) as to the provisions of Section 39 above.
AGENT FOR SERVICE OF PROCESS
ROBERT M. TAYLOR
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<PAGE>
AGENT:
CREDIT LYONNAIS NEW YORK BRANCH
Name:
Name:
STATE OF FLORIDA
) SS:
COUNTY OF ` ~)
cat
By: c,'
Name: .=
Title:
Address: 1301 Avenue ofthe Americas
1 8th Floor
New York, NY 10019
The foregoing instrument was acknowledged before me
this Ad) Clay of May, 1997, by ROBERT M. TAYLOR, as
Manager of T & T RESORTS, L.C., a Florida limited
liability company, on behalf of the company, the
general partner of South Seas Properties Company
Limited Partnership, an Ohio limited partnership, on
behalf of the partnership. He is personally known to me
or produced ~v/~ asidentification.
Notary Public, State of Florida
My Commission Expires:
EDW1NA ~ . VELl ErrE
MY WHMISSION fl CC 907480
EXP1PES: August 12.1997
The undersigned hereby executed this Mortgage solely
for the purpose of evidencing the consent of (i) Robert
M. Taylor as to the designation and appointment as
agent for service of process upon the Mortgagor and its
partners, as described in Section 34(c) above; and (ii)
as to the provisions of Section 39 above.
AGENT SERVICE OF PROCESS
,~
ROBERT M. TAYLOR J
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<PAGE>
STATE OF NEW YORK )
) SS:
COUNTY OF NEW YORK )
The foregoing instrument was acknowledged before me this 29th day
of May, 1997, by Mischa Zabotin , as Vice President of
CREDIT LYONNAIS NEW YORK BRANCH, on behalf of the
corporation. Hemp is personally known to me ~d ~g,~`Q~
!4 I ~
Notary Public, State of New Y at Large j "i
My Commission Expire-.
BR~,~i;;r`; ~ . .
Notary PubEc7,St'ase of NeV~,qrQ~ is,' '.
BANK, N.A., on behalf of the corporation. He/she is personally
known to me or produced _ as identification.
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:5.23.97:pjh 4 4
Notary Public, State of Florida at Large
My Commission Expires:
<PAGE>
STATE OF NEW YORK
COUNTY OF
) SS:
The foregoin,, instrument was acknowledged before me this day of
May, 1997, by , as of CREDIT LYONNAIS NEW YORK BRANCH,
on behalf of the corporation. He/she is personally
known to me or produced -- I-- =-^. ^
STATE OF FLORIDA )
~ ) SS:
COUNTY OF ~QQ )
. as identification.
Notary Public, State of New York at Large
My Commission Expires:
T,kg forego) nstru ent was acknowledged b,e re me As o;
q day of May, 1997, by
now
~ as
|J9~,
1~/10~ ~
of
BARRETT
BANK, N.A., on behalf of the corporation. He/she is personally
known to me or produced _ as identification.
No/t
ary Public, State of Florida at Large
My Commission Expires:
SUSAN M. PALMER
MY COMMISSION /
EXPIRES: Jenwy 8, 1 -
11 ,
<PAGE>
~ fir
STATE OF( ~<: )
COUNTY OFT) SS:
The foregoing instrument was acknowledged before me
this~day of May, 1997, by_ GROIIP
VIEW PRFe~l,--iE~f FINOVA CAPITAL CORPORATION, on
behalf of the corporation. Hemp is personally known to
me or produced as identification.
STATE OF NEW YORK )
COUNTY OF
gait
Notary Public, State of Cam at
Large
, _~
My Commission ~p~=======s=r=r====*r======-=i
OFFAL SEAL ~
CHARL01TES.VANWER I Nol~ry Pubik - Stan of Arizona
MARICOPA COUNTY y Comm. Expiw Apfl 1l, 2000 i
) SS:
The foregoing
instrument was acknowledged before me thisday of May, 1997, by
CREDIT LYONNAIS NEW YORK BRANCH, on behalf of the
corporation, as Agent. He is personally known to me or
produced as identification.
Notary Public, State of New York at Large
My Commission Expires:
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<PAGE>
STATE OF
COUNTY OF
)
)
) SS:
The foregoing instrument was acknowledged before me this day of
May, 1997, by_ , as of FENOVA CAPITAL CORPORATION, on
behalf of the corporation. He/she is personally known
to me or produced as identification.
Notary Public, State of at Large
My Commission Expires:
STATE OF NEW YORK )
) SS:
COUNTY OF NEW YORK )
The foregoing instrument was acknowledged before me
this Monday of May, 1997, by
Mischa
Zabotin
, as
Vice
President of
CREDIT LYONNAIS NEW YORK BRANCH, on behalf of the
corporation, as Agent. He is personally known to me Ox
~,;
~,< ~=
Notary Publi State of New York arge
My Commission Expires:
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:5.23.97:pjh 4 5
C'
Act
CO
red
Bet
the
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Cal
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BREIGE AVERY., ~
Notary Public. State ot'0eNh,York
. No 4~1 49017Afi ~ ~ ~ ~ .
Qualified ire puee,ns C~U6I} A,
Commission Fxpire5: Adg ,3.~ /
' ~ ' 4'2. 71 ~ 'a
: ~ . .> .
; 9 ~ i;
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<PAGE>
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EXHIBIT "A"
LAND
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Commonwealth
EX~TBTT A TO
AMENDED AND RESTATED FIRST MORTGAGE AND SECURITY
AGREEMENT AND NOTICE AND AGREEMENT
OF FUTURE ADUANCE
Commit.ment. No.: B64-42.38.33 File No.: M72.~fihG
I,ot.s 15 and 16, Block 7, of that certain s~h~ivision
known as IJNTT No 2, SANTBF,T, F8TATES, according to
the map or plat. thereof on file and recorded in the
office of the Clerk of the Circuit. Court. of T`ee
Country, Florida, in Plat. Hook 9, Page 1?.3, ANn all
the OTrant.ors right., title and interest. to t.hat
port.ion of Eot. 2, Rlock 8, SANJPsF.T, F9TATER IJNTT
2, lying het.ween t.he Nort.hwesterly prolongat.ion of
t.he Sout.herly lot. line of r,Ot. lfi of t.he
aforesaid Sanibel F,st.at.es Ilnit. 2. anfl t.he
Nort.herly lot. line of t.he aforesaid I,ot. 15 of
Sanibel ~,st.at.e.s Ilnit. 2, said propert.y having
it.s F,ast.erly and Westerly hounflaries respe~t.ively
nn t.he hank of t.he cana1 shown in t.he aforesaid
plat. of Sanibel Est.at.es IJnit. ~ and t.he Fast.erly
right.-of-way of G~lf nrive as shown on t.he aforesaifl
plat. of Ranibel Fst.at.es IJnit. ~ t.oget.her wit.h
any anfl all riparian rights t.here~,nt.o helonging nr
ot.herwise pert.aining.
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