<PAGE> 1
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported) October 12, 1995
PGI Incorporated
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(Exact name of registrant as specified in its charter)
Florida 1-6471 59-0867335
- ---------------------------- ----------------- ----------------------------
(State or other jurisdiction (Commission File (IRS Employer Identification
of incorporation) Number) No.)
515 Olive Street, Suite 1400, St. Louis, Missouri 63101
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (314) 982-0780
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(Former name or former address, if changed since last report.)
<PAGE> 2
ITEM 5. OTHER EVENTS.
On October 12, 1995, PGI Incorporated, a Florida corporation ("PGI"),
the other "Borrowers" and the "Guarantors" (as those terms are defined below)
entered into a Forbearance Agreement (the "Forbearance Agreement") with PGI's
primary lender, First Union National Bank of Florida, a national banking
association (the "Lender"), pursuant to which Lender has agreed to forbear
through November 15, 1995, subject to the terms and conditions of the
Forbearance Agreement, from exercising any of its rights and remedies under
its primary credit agreements with Borrowers (the "Loans"), which Loans are
currently in default. The "Borrowers" consist of PGI and its subsidiaries,
Sugarmill Woods, Inc., Burnt Store Marina, Inc. and Gulf Coast Credit
Corporation. The "Guarantors" consist of the following PGI subsidiaries:
Southern Woods, Incorporated, Punta Gorda Isles Sales, Inc., Deep Creek
Utilities, Inc., Burnt Store Utilities, Inc. and Sugarmill Woods Sales, Inc.
On October 12, 1995, PGI also executed a Note and Loan Document
Purchase Agreement (the "Note Purchase Agreement") by and between Lender,
PGIP L.L.C., a Missouri limited liability company (the "Purchaser") and the
Borrowers. The Forbearance Agreement and the Note Purchase Agreement provide
that Lender will accept the Discounted Payoff Amount (as defined in the
Forbearance Agreement and Note Purchase Agreement) in immediately available
funds on or before 2:00 p.m. on November 15, 1995 as the purchase price of
the documents evidencing and securing the Loans (the "Loan Documents") in
exchange for the assignment to Purchaser of the Loan Documents without
recourse, representation or warranty (except for a warranty that Lender is
the owner of said documents and has not previously sold or assigned them).
As a condition to Lender's execution of the Forbearance Agreement,
Purchaser paid Lender a nonrefundable forbearance fee of $84,000, which is to
be applied to the purchase price of the Loan Documents. In addition, upon
execution of the Note Purchase Agreement, PGIP paid Lender a nonrefundable
initial loan purchase installment of $241,617.65 (the "Initial Loan Purchase
Payment"), which reduces the Discounted Payoff Amount. If Buyer fails to
purchase the Loan Documents, the Lender is entitled to retain the Initial
Loan Purchase Payment as liquidated damages.
Purchaser has informed PGI that Purchaser's policy, though neither an
undertaking nor an obligation, will be not to proceed with collection of the
principal and interest evidenced and secured by the Loan Documents, so long
as the Borrowers pursue satisfactory efforts to market and sell the real
property that serves as the primary collateral for the Loans.
PGIP is managed by Love Savings Holding Company ("LSHC"), Andrew S.
Love, Jr. and Laurence A. Schiffer. Messrs. Love and Schiffer are directors
and executive officers of LSHC and own slightly more than half of all the
issued and outstanding voting stock of LSHC. Messrs. Love and Schiffer serve
as executive officers and directors of PGI and the other Borrowers and the
Guarantors.
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ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL STATEMENTS, AND EXHIBITS
C. Exhibits
4 Instruments Defining the Rights of Security Holders,
Including Indentures
(i) Forbearance Agreement dated as of October 12,
1995 by First Union National Bank of Florida,
PGI Incorporated, Sugarmill Woods, Inc., Burnt
Store Marina, Inc., Gulf Coast Credit Corporation,
Southern Woods, Incorporated, Punta Gorda Isles
Sales, Inc., Deep Creek Utilities, Inc., Burnt
Store Utilities, Inc. and Sugarmill Woods Sales,
Inc.
(ii) Note and Loan Document Purchase Agreement dated
as of October 12, 1995 by First Union National Bank
of Florida, PGIP, L.L.C., PGI Incorporated,
Sugarmill Woods, Inc., Burnt Store Marina, Inc.,
and Gulf Coast Credit Corporation.
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SIGNATURES
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 hereunto duly authorized.
PGI INCORPORATED
By: /s/ Andrew S. Love, Jr.
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Andrew S. Love, Jr.
Chairman
Date: October 31, 1995
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EXHIBIT INDEX
<TABLE>
These Exhibits are numbered in accordance with the Exhibit Table of
Item 601 of Regulation S-B:
<CAPTION>
Exhibit No. Description
- ----------- -----------
<C> <S>
1 Omitted -- Inapplicable.
2 Omitted -- Inapplicable.
4(i) Forbearance Agreement dated as of October 12, 1995 by First Union
National Bank of Florida, PGI Incorporated, Sugarmill Woods, Inc., Burnt
Store Marina, Inc., Gulf Coast Credit Corporation, Southern Woods,
Incorporated, Punta Gorda Isles Sales, Inc., Deep Creek Utilities, Inc.,
Burnt Store Utilities, Inc. and Sugarmill Woods Sales, Inc..
4(ii) Note and Loan Document Purchase Agreement dated as of October 12, 1995
by First Union National Bank of Florida, PGIP, L.L.C., PGI Incorporated,
Sugarmill Woods, Inc., Burnt Store Marina, Inc., and Gulf Coast Credit
Corporation.
16 Omitted -- Inapplicable.
17 Omitted -- Inapplicable.
20 Omitted -- Inapplicable.
23 Omitted -- Inapplicable
24 Omitted -- Inapplicable.
27 Omitted -- Not required.
99 Omitted -- Inapplicable.
</TABLE>
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<PAGE> 1
FORBEARANCE AGREEMENT
---------------------
THIS AGREEMENT (this "Agreement") is executed as of the 12th day of
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October, 1995, by FIRST UNION NATIONAL BANK OF FLORIDA, a national banking
association, as successor in interest to BancFlorida, a Federal Savings Bank,
formerly known as Naples Federal Savings and Loan Association (the
"Lender"), PGI INCORPORATED, SUGARMILL WOODS, INC., BURNT STORE MARINA,
------
INC. and GULF COAST CREDIT CORPORATION, all Florida corporations
(individually and collectively, the "Borrowers"), SOUTHERN WOODS,
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INCORPORATED, formerly known as TWIN COUNTY UTILITY CO., PUNTA GORDA ISLES
SALES, INC., DEEP CREEK UTILITIES, INC., BURNT STORE UTILITIES, INC., and
SUGARMILL WOODS SALES, INC. (individually and collectively, the
"Guarantors").
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R E C I T A L S
---------------
A. The Lender is the owner and holder of certain loans made to
Borrower, which loans are defined as the "Loans" and are more particularly
described in that certain Thirteenth Mortgage and Loan Modification Agreement
dated as of May 13, 1994, executed by BancFlorida, a Federal Savings Bank
(predecessor in interest to Lender), formerly known as Naples Federal Savings
and Loan Association, and the Borrowers ("Thirteenth Modification"). All
-----------------------
terms used herein and not defined herein shall have the meanings as set forth
in the Thirteenth Modification.
B. The Loans are guaranteed pursuant to certain guarantees of
payment executed by the Guarantors.
C. The Loans are currently in default and certain events of default
have occurred and are continuing under certain documents evidencing and/or
securing the Loans (all documents evidencing, securing, executed and/or
delivered in connection with, the Loans, or any part thereof, including,
without limitation, any and all notes, mortgages, loan agreements, security
and pledge agreements, UCC-1 financing statements and guarantees, as any of
the same may have been, or may be amended, consolidated and/or renewed from
time to time are hereinafter referred to as the "Loan Documents")
--------------
D. The Borrowers have requested that the Lender forbear from
enforcing the Lender's rights and remedies granted by the Loan Documents or
otherwise until Wednesday, November 15, 1995, and the Lender has agreed to do
so subject to the terms and conditions set forth herein.
A G R E E M E N T S :
NOW, THEREFORE, IN CONSIDERATION of the mutual agreements herein
contained, the benefits to be received by the Lender, Borrowers and the
Guarantors hereunder and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, it is agreed as follows:
<PAGE> 2
<TABLE>
1. Loan Status and Default. The Borrowers and Guarantors
-----------------------
acknowledge that (a) the Borrowers are in default of certain of their
obligations under the Loan Documents, including, without limitation, certain
amounts of principal and interest when due under the notes evidencing all or
any portion of the Loans ("Existing Notes"), and (b) the existing defaults
--------------
are material defaults and entitle Lender to exercise its rights and remedies
under the Loan Documents. The Borrowers and the Guarantors confirm that the
Borrowers are obligated to pay the Loans which have an unpaid balance as of
September 30, 1995 as follows:
<CAPTION>
Receivables Loan Land Loans
---------------- ----------
<S> <C> <C>
Principal $ 4,296,922.29 $ 2,704,693.00
Accrued Interest $ 862,440.98 $ 479,726.14
Late Charges $ 4,000.00 $ 3,879.73
Lender Expenses $ 15,000.00 $
Total $ 5,178,363.27 $ 3,188,298.87
================ ================
</TABLE>
The aforesaid amounts are due and owing by Borrowers to Lender and Borrowers
and Guarantors are not aware of defenses, setoff rights or counterclaims with
respect thereto and expressly waive any defense, setoff right or counterclaim
with respect to such amounts that they now have whether known or unknown.
The Borrowers and Guarantors acknowledge that absent this Agreement, the
Lender would be entitled to the present exercise of all of its remedies under
the Loan Documents. Lender agrees that the above amounts represents and
consolidates all indebtedness due under the existing notes, and all other
existing indebtedness, if any, of Borrowers to Lender as of September 30,
1995.
2. Loan Documents. The Borrowers acknowledge that all the terms
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of the Loan Documents and the obligations of the Borrowers under the Loan
Documents remain in full force and effect and may be enforced against the
Borrowers in accordance with the terms of the respective Loan Documents,
subject to the provisions of this Agreement.
3. Release of Lender. The Borrowers and the Guarantors
-----------------
acknowledge and agree that at all times prior to and during the course of the
Loans, Lender has acted in good faith and in a commercially reasonable
manner, and Lender has not acted unreasonably or made overreaching,
unreasonable or improper demands from Borrowers. The Borrowers and the
Guarantors, on behalf of themselves, and their respective successors and
assigns, and any and all other entities or persons claiming rights by or
through any Borrower or any Guarantor, hereby acquit, release, and forever
discharge Lender and Lender's affiliated corporations, directors, officers,
agents, employees, principals, servants, attorneys, shareholders, and their
successors and assigns, from any and all manner of actions and causes of
actions, suits, rights, damages, claims, pecuniary losses, debts, costs,
expenses, and attorneys' and other fees whatsoever in law or in equity, which
any Borrower or any Guarantor ever had, or may now have, by reason of any
matter, cause or thing whatsoever from the beginning of time to the date
hereof, whether known or unknown, foreseen or unforeseen, relating to, or
arising in any way out of, any event, activity, occurrence or transaction
involving, relating to or affecting the Loan Documents. This Release shall
not effect the obligations created under this Agreement.
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<PAGE> 3
4. Forbearance. Provided that the Borrowers, Guarantor or
-----------
Purchaser pay to Lender $84,000.00 in immediately available funds
("Forbearance Fee") on or before October 13, 1995, the Lender agrees to
forbear from taking any legal action to enforce any of its rights or remedies
under the Loan Documents and Borrowers and Guarantors shall be under no
obligation to make any payments to Lender under the Loan Documents from the
date of this Agreement to and including November 15, 1995 (the "Forbearance
Period"); provided, however, that Lender's willingness to forbear in the
exercise of its rights and remedies under the Loan Documents arising from the
defaults existing as of the date hereof shall not be deemed a waiver by
Lender of any of Borrowers' defaults under the Loan Documents. Lender shall
apply the Forbearance Fee to Forbearance Period Interest (defined below),
such payment shall be non-refundable.
5. Closing Deliveries. (a) Upon execution of this Agreement, the
------------------
Lender, Borrower and Guarantors, as appropriate, shall execute and deliver to
each other the following ("Forbearance Documents") in substantially the forms
as attached hereto:
a. The Consolidated Renewal Promissory Note attached hereto as
Exhibit "A";
b. The Fourteenth Mortgage Modification Agreement attached
hereto a Exhibit "B";
c. UCC-1 Financing Statements in existing collateral for the
Loan;
d. Note and Loan Document Purchase Agreement attached hereto
as Exhibit "C";
e. Future Advance Note attached hereto as Exhibit "D";
f. Notice of Future Advance attached hereto as Exhibit "E";
g. Consent of Guarantors attached hereto as Exhibit "F".
h. General Release attached hereto as Exhibit "G";
i. Closing Statement detailing and itemizing the payment of
all fees and costs in connection herewith;
j. Borrower shall deliver evidence of employment of counsel to
contest 1994 taxes;
k. If and when obtained, Lender shall deliver a copy of an
endorsement to its mortgagee title insurance policy adding the
Fourteenth Mortgage Modification Agreement to the description of
the insured instrument.
(b) Immediately upon satisfaction of the foregoing conditions, Lender
shall (i) mark on all of the original Existing Notes in Lender's possession,
"Paid by Renewal" and shall attach the same
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<PAGE> 4
to the Consolidated Renewal Promissory Note (as defined below) and (ii) deliver
to Borrower copies of the Existing Notes so marked "Paid by Renewal". In
addition, each Borrower and Guarantor shall deliver a current certificate of
good standing, certified articles of incorporation and by-laws and corporate
resolution authorizing this transaction.
6. Representations and Warranties. The Borrowers represent and
------------------------------
warrant to the Lender as follows:
a. Loan Documents. The Loan Documents (subject to the terms of
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this Agreement) may be enforced in accordance with their terms
by the Lender against the Borrowers, Guarantors and the
Mortgaged Property; the Borrowers and Guarantors claim no
defense, right of offset or counterclaim against enforcement of
the Loan Documents and have no other claim against the Lender;
b. Authority. Each Borrower is a corporation duly organized,
---------
validly existing and in good standing under the laws of the
State of Florida; each Borrower and the individual(s) executing
this Agreement and any other documents in connection herewith
(collectively, "Forbearance Documents"), including, without
limitation, that certain Consolidated Renewal Promissory Note
("Consolidated Renewal Note") and that certain Additional
Advance Note ("Additional Advance Note"; the Additional Advance
Note, together with the Consolidated Renewal Note, the "Notes"),
both dated even date herewith, executed by Borrowers in favor of
Lender on behalf of each Borrower, have full power and authority
to execute, deliver and perform this Agreement and the
Forbearance Documents; this Agreement and the Forbearance
Documents are the legal and binding obligations of each Borrower
enforceable in accordance with their respective terms, except as
limited by bankruptcy, insolvency or other laws of general
application relating to the enforcement of creditors' rights;
c. Compliance. The execution, delivery and performance of this
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Agreement and the Forbearance Documents and the consummation of
the transactions thereby contemplated will not conflict with any
law, statute or regulation to which any Borrower or the
Mortgaged Property is subject or any judgment, license, order or
permit applicable to the Borrowers or any of the Mortgaged
Property or any indenture, mortgage, deed of trust or other
instrument to which any Borrower or any of the Mortgaged
Property is subject; no consent, approval, authorization or
order of any court, governmental authority or other person
is required in connection with the execution, delivery or
performance by any Borrower of this Agreement or the Forbearance
Documents;
d. Ownership. Sugarmill Woods, Inc. own the Mortgaged Property
---------
and to the best knowledge and belief of the Chairman, Andrew S.
Love and the President, Laurence A. Schiffer, the Mortgaged
Property is free and clear of
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<PAGE> 5
all liens, security interests or other encumbrances, except the
liens and encumbrances permitted by the Loan Documents and ad
valorem taxes;
e. Litigation. To the best knowledge and belief of the Chairman,
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Andrew S. Love and the President, Laurence A. Schiffer, no
litigation, investigation or governmental proceeding is pending
or, to the knowledge of any Borrower, threatened against or
affecting any Borrower or the Mortgaged Property which might
result in a material adverse change in the business, properties
or operations of any Borrower or the value of the Mortgaged
Property except as follows: (i) lawsuit filed by Vinovur
Corporation.
f. Environmental Matters. Borrowers have not obtained any
---------------------
professional environmental investigation or report as to the
Mortgaged Property. None of the Borrowers have any actual
knowledge of any release or threatened release of any hazardous
substance, pollutant or contaminant on the Mortgaged Property;
none of the Borrowers have any actual knowledge of the existence
of any hazardous or toxic substance located on the Mortgaged
Property; to the Borrower's best knowledge, Borrower has not
generated, stored, handled, used or disposed of any hazardous or
toxic substances on the Mortgaged Property; to the Borrower's
best knowledge, none of the Borrowers have received any oral or
written notice of any environmental, nuisance or injury claims
against any Borrower from any governmental or private entity
relating in any way to the use of the Mortgaged Property; to the
knowledge of each Borrower, the Borrowers have complied with all
the environmental laws and regulations applicable to the
Mortgaged Property;
g. Reliance. The Borrowers: (a) are represented by independent
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legal counsel of the Borrowers' choice in the transactions
contemplated by this Agreement; (b) are fully aware and clearly
understand all of the terms contained in this Agreement and the
Forbearance Documents; (c) have voluntarily, with full knowledge
and without coercion or duress of any kind, entered into this
Agreement and the Forbearance Documents; (d) are not relying on
any representation, either written or oral, express or implied,
made by the Lender other than as set forth in this Agreement;
(e) on the Borrowers' own initiative have made proposals to the
Lender, the terms of which are reflected by this Agreement; and
(f) have received actual and adequate consideration to enter
into this Agreement and the Forbearance Documents.
7. Borrower's Agreements. Until payment in full of the Loans and
---------------------
full performance of all other obligations of the Borrowers to the Lender
under this Agreement, the Forbearance Documents and the Loan Documents,
unless otherwise waived by Lender in writing, the Borrowers covenant and
agree as follows:
a. Information. When requested by the Lender and at Lender's
-----------
expense, the Borrowers will give the Lender and third parties
designated by the Lender
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<PAGE> 6
access to and permit the Lender and such third parties to
inspect the Mortgaged Property and to examine, copy and make
excerpts from all books, records and documents relating to the
financial condition and business affairs of the Borrowers and
the Mortgaged Property.
b. 1994 Ad Valorem Real Property Taxes. Each Borrower agrees to
-----------------------------------
use its best efforts to diligently pursue their contest with the
appropriate taxing authorities regarding the amount of the
unpaid 1994 ad valorem real property taxes relating to the
Mortgaged Property.
8. Events of Default. The occurrence of any one or more of the
-----------------
following events (the "Events of Default") will entitle the Lender to
exercise the remedies set forth at paragraph 8 of this Agreement unless the
Lender otherwise consents in writing.
a. Nonpayment. The nonpayment when due of any amount payable
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to the Lender under the terms of the Loan Documents (subject to
the provisions of this Agreement);
b. Breach of Agreement. The failure by any Borrower to perform
-------------------
or observe any representation, warranty or agreement contained
in this Agreement;
c. Insolvency. The institution of bankruptcy, reorganization,
----------
liquidation, conservatorship or receivership proceedings by or
against any Borrower;
d. Repudiation. The repudiation by any Borrower of any of the
-----------
Borrowers' obligations under the Loan Documents, this Agreement
or the Forbearance Documents or the assertion of any claim of
liability against the Lender by any Borrower;
e. Transfer. The transfer by any Borrower of property of such
---------
Borrower for less than the property's fair value; or
f. Preexisting Debt. The payment by any Borrower on account of
----------------
any preexisting debt to creditors, except that each Borrower may
make payments in the ordinary course of business for current
taxes or accounts payable as the same come due.
9. Remedies. If an Event of Default occurs, the Lender, at the
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Lender's option, may: (a) terminate the forbearance accorded to the
Borrowers by this Agreement, whereupon Lender shall immediately be entitled
to enforce all of its rights and remedies under the Loan Documents, without
notice, presentment, demand, protest, notice of intention to terminate
forbearance or other notice of any kind, all of which each Borrower hereby
expressly waives, anything contained herein to the contrary notwithstanding;
(b) pursue any claim under the Loan Documents to judgment against the
Borrowers or any other person liable therefor. Provided however, that the
foregoing shall not relieve Lender of its obligations to perform under
paragraph 10 of this Agreement, and under the Note and
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<PAGE> 7
Loan Document Purchase Agreement provided that the conditions stated in
paragraph 10 of this Agreement have been timely satisfied, and there has been
no Event of Default under the Note and Loan Document Purchase Agreement.
10. Discount Payoff and Assignment; Modification and Acceleration;
-------------------------------------------------------------
Deferral of Payments.
--------------------
a. Lender hereby agrees that, provided that the Discounted Payoff
Conditions (as defined below) shall have been fully satisfied,
Lender shall assign the Loan Documents and deliver the original
Consolidated Renewal Note and the Future Advance Note endorsed
to PGIP L.L.C., a Missouri limited liability company
("Purchaser"), without recourse, representation or warranty,
except as set forth in paragraph 9, "Representations and
Warranties of Seller", of that certain Note and Loan Document
Purchase Agreement dated even date herewith, executed between
Lender and Purchaser ("Purchase Agreement"). For purposes of
this Agreement, the "Discounted Payoff Conditions" shall mean
(i) that no Event of Default has occurred under the Purchase
Agreement; and (ii) that Lender shall have received the
Discounted Payoff Amount (as defined below) in immediately
available funds on or before 2:00 p.m. on November 15, 1995. For
purposes of this Agreement, "Discounted Payoff Amount" shall
mean $4,800,000.00 ("Discounted Payoff Base"), plus the Initial
Loan Purchase Payment (as defined below), plus interest
calculated on the Discounted Payoff Base accruing at the rate of
10.5% per annum from May 1, 1995 through and including the date
of payment in full of the Discounted Payoff Amount ("Forbearance
Period Interest"). If the Initial Loan Purchase Payment (as
defined below) is made prior to execution of this Agreement, the
Discounted Payoff Amount shall be reduced to the Discounted
Payoff Base, plus the Forbearance Period Interest. For purposes
of this Agreement, "Initial Loan Purchase Payment" shall mean a
non-refundable payment in immediately available funds in the
amount of $241,617.65. Upon receipt of the Initial Loan
Purchase Payment, and full execution of this Agreement and the
Purchase Agreement, Lender shall pay an amount equal to the
Initial Loan Purchase Payment to the Tax Collectors of Hernando
and Citrus Counties, Florida, to be applied to ad valorem taxes
assessed against the Property;
b. Lender further agrees that upon receipt and acceptance of the
Discounted Payoff Amount, in immediately available funds, at the
request of Purchaser, and subject to the Acceleration Conditions
(as defined below), Lender shall immediately prior to assignment
of the Loan Documents declare the entire outstanding principal
amount of the Loans, together with all accrued and unpaid
interest and charges thereon, to be due and payable. For
purposes of this letter, "Acceleration Conditions" shall mean:
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<PAGE> 8
i) Lender shall not be required to declare an acceleration
if, in the reasonable judgement of Lender, such an action
would be illegal, improper, unethical or subject Lender
to any risks, losses, claims, damages or liabilities;
ii) Borrowers, Guarantors, and Purchaser shall execute and
deliver to Lender a general release of any and all claims
and liabilities arising out of Lender's acceleration of
the indebtedness under the Loan Documents, which general
release shall be in substantially the form of Exhibit G
---------
attached hereto.
iii) Borrowers, Guarantors and Purchaser shall indemnify and
hold Lender harmless from and against any and all claims
and liabilities arising out of Lender's acceleration of
the indebtedness under the Loan Documents.
c. Notwithstanding anything in the Loan Documents to the contrary,
(i) Borrowers shall not be required to make any regularly
scheduled payments under the Loan Documents during the
Forbearance Period, and (ii) if the Discounted Payoff Conditions
shall not have been satisfied on or before November 15, 1995,
all past due amounts of the Loans together with all accrued and
unpaid interest thereon, shall be immediately due and payable
and thereafter all payment obligations shall be strictly in
accordance with the terms of the Loan Documents.
11. Miscellaneous. Each Borrower and the Lender further agree as
-------------
follows:
a. Participating Lenders. Each Borrower agrees that although
---------------------
this Agreement and the Loan Documents name the Lender as the
holder thereof, the Lender is authorized to sell the Loan in
whole or in part to others. Each holder of a participation
interest in the Loan will be entitled to rely on the terms of
this Agreement, the Forbearance Documents and the Loan Documents
as if such holder had been named as an original party to this
Agreement, the Forbearance Documents and the Loan Documents.
b. Time. Time is the essence of each provision of this Agreement.
----
c. Notices. Any notice, demand or communication required or
-------
permitted to be given by any provision of this Agreement will be
in writing and will be deemed to have been given when delivered
personally or by telefacsimile, receipt confirmed, to the party
designated to receive such notice, or on the date following the
day sent by overnight courier, or on the third (3rd) business
day after the same is sent by certified mail, postage and
charges prepaid, directed to the following addresses or to such
other or additional addresses as any party might designate by
written notice to the other party:
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<PAGE> 9
To any Borrower: c/o PGI Incorporated
515 Olive Street, Suite 1400
St. Louis, Missouri 63101
Attention: Laurence A. Schiffer
Telefacsimile: (314) 621-7360
with a copy to:
Craig Adoor, Esq.
Peper Martin
720 Olive Street, 24th Floor
St. Louis, Missouri 63101
Telefacsimile: (314) 621-4834
To the Lender: Nelson T. Ritch, III
Assistant Vice President
First Union National Bank of Florida
Special Assets Department (FL 2202)
800 North Magnolia, 7th Floor
Orlando, Florida 32802
Telefacsimile: (407) 649-5628
with a copy to:
Robert M. Quinn, Esquire
Carlton, Fields, Ward, Emmanuel, Smith &
Cutler, P.A.
777 S. Harbour Island Boulevard
Tampa, Florida 33602
Telefacsimile: (813) 229-4133
d. Binding Effect. This Agreement will inure to the benefit of
--------------
and bind the respective successors and permitted assigns of the
parties.
e. Attorneys' Fees. If either party institutes an action against
---------------
the other party relating to the provisions of this Agreement or
any default hereunder, the unsuccessful party to such action
will reimburse the successful party for the reasonable
attorneys' fees, disbursements and other litigation expenses
incurred by the successful party.
f. Severability. If any provision of this Agreement is
------------
determined by a court having jurisdiction to be illegal,
invalid or unenforceable under any present or future law, the
remainder of this Agreement will not be affected thereby. It is
the intention of the parties that if any provision is so held to
be illegal, invalid or unenforceable, there will be added in
lieu thereof a provision as similar in terms to such provision
as
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<PAGE> 10
is possible that is legal, valid and enforceable.
g. Headings. The headings used in this Agreement are for ease
--------
in reference only and are not intended to affect the
interpretation of this Agreement in any way.
h. Amendment. Neither this Agreement nor any of the provisions
---------
hereof can be changed, waived, discharged or terminated, except
by an instrument in writing signed by the party against whom
enforcement of the change, waiver, discharge or termination is
sought.
i. Supersession. This Agreement supersedes, in all respects, all
------------
prior written or oral agreements between the Borrowers and the
Lender relating to forbearance by Lender.
j. Loan Documents Continue. Except as expressly provided in this
-----------------------
Agreement, all terms, covenants, conditions and provisions of the
Loan Documents shall be and remain in full force and effect as
written unmodified hereby.
k. No Joint Venture. Nothing contained in this Agreement will be
----------------
construed to constitute the Lender as a joint venturer with any
Borrower or to constitute a partnership.
l. Construction. The parties acknowledge that each party and each
------------
party's counsel have reviewed and revised this Agreement and that
the normal rule of construction to the effect that any
ambiguities are to be resolved against the drafting party will
not be employed in the interpretation of this Agreement or any
amendments or schedules hereto.
m. Waiver. No waiver of any action or default by any party will be
------
implied from the failure or delay by any other party to take any
action in respect of such action or default. No express waiver
of any condition precedent or default will affect any other
default or extend any period of time for performance other than
as specified in such express waiver. One or more waivers of any
default in the performance of any provision of this Agreement
will not be deemed a waiver of any subsequent default in the
performance of the same provision or any other provision. The
consent to or approval of any act or request by any party will
not be deemed to waive or render unnecessary the consent to or
approval of any subsequent similar act or request. The partial
exercise of any right or remedy under this Agreement will not
preclude any other or further exercise thereof or the exercise of
any other right or remedy. No course of dealing between the
parties will be deemed to amend the terms of the Agreement or to
preclude any party from exercising the rights and remedies herein
contained notwithstanding such course of dealing. The rights and
remedies provided in this Agreement are cumulative and no right
or
-10-
<PAGE> 11
remedy will be exclusive of any other, or of any other right or
remedy at law or in equity which any party might otherwise have
by virtue of a default under this Agreement and the exercise of
any right or remedy by any party will not impair such party's
standing to exercise any other right or remedy.
n. Extension of Forbearance Period. It is understood that the
-------------------------------
Lender is under no obligation to extend the term of the
Forbearance Period and that any such extension will be made in
the Lender's absolute discretion.
o. No Novation. It is the intent and agreement of the parties
-----------
that this Agreement shall not constitute a novation and shall in
no way adversely affect the lien priority of the mortgages and
other security documents securing the Loans.
p. Joint and Several. The obligations and liabilities of each of
-----------------
the Borrowers hereunder shall be joint and several. Whenever the
word "Borrowers" is used herein, it shall mean each and every
Borrower, and their respective successors and assigns.
q. Joinder of Guarantors. Guarantors, by their joinder herein,
---------------------
consent to the parties entering into this Agreement. Guarantors
further warrant and represent that the Guarantees previously
executed and delivered by them are still in full force and
effect, and nothing in this Agreement shall be construed to
impair, or have the effect of impairing, Lender's rights
thereunder or otherwise discharging or releasing Guarantors from
their obligations and duties under said Guaranties. Guarantors
further represent and warrant that each Guarantor is a
corporation duly organized, validly existing and in good standing
under the laws of the State of Florida; each Borrower and the
individual(s) executing this Agreement and any other documents in
connection herewith (collectively, "Forbearance Documents"),
including, without limitation, that certain Consolidated Renewal
Promissory Note ("Consolidated Renewal Note"), dated even date
herewith, executed by Borrower in favor of Lender on behalf of
each Borrower, have full power and authority to execute, deliver
and perform this Agreement and the Forbearance Documents; this
Agreement and the Forbearance Documents are the legal and binding
obligations of each Borrower enforceable in accordance with their
respective terms, except as limited by bankruptcy, insolvency or
other laws of general application relating to the enforcement of
creditors' rights;
r. Further Assurances. The parties hereto agree that upon the
------------------
reasonable request of the other party to this Agreement, each
such party will execute and deliver to the requesting party such
other additional instruments and documents, or perform or cause
to be performed such other and further acts and things, as may be
reasonably necessary to more fully consummate the transactions as
set forth in this Agreement provided, however, that
-11-
<PAGE> 12
performance by either party under this paragraph shall not create
any new liability or obligation on the performing party
whatsoever.
IN WITNESS WHEREOF, the parties have executed this Agreement effective
the date first above written.
FIRST UNION NATIONAL BANK OF FLORIDA,
a national banking association
By:/s/
-----------------------------------------
Name:Nelson T. Ritch---------------------
Title:Assistant Vice President
-----------------------------------
PGI INCORPORATED, a Florida corporation
By:/s/
-----------------------------------------
Name:Andrew S. Love Jr.------------------
Title:Chairman
-----------------------------------
SUGARMILL WOODS, INC., a Florida corporation
By:/s/
-----------------------------------------
Name:Andrew S. Love Jr
------------------------------------
Title:Chairman---------------------------
-12-
<PAGE> 13
BURNT STORE MARINA, INC., a Florida
corporation
By:/s/
-----------------------------------------
Name:Andrew S. Love Jr
------------------------------------
Title:Chairman---------------------------
GULF COAST CREDIT CORPORATION, a Florida
corporation
By:/s/
-----------------------------------------
Name:Andrew S. Love Jr
------------------------------------
Title:Chairman---------------------------
The undersigned Guarantors, by execution of this Agreement, hereby join in
and consent to the execution of this Agreement by the Borrowers.
SOUTHERN WOODS, INCORPORATED, formerly known
as TWIN COUNTY UTILITY CO., a Florida
corporation
By:/s/
-----------------------------------------
Name:Andrew S. Love Jr
------------------------------------
Title:Chairman---------------------------
-13-
<PAGE> 14
PUNTA GORDA ISLES SALES, INC., a Florida
corporation
By:/s/
-----------------------------------------
Name:Andrew S. Love Jr
------------------------------------
Title:Chairman---------------------------
DEEP CREEK UTILITIES, INC., a Florida
corporation
By:/s/
-----------------------------------------
Name:Andrew S. Love Jr
------------------------------------
Title:Chairman---------------------------
BURNT STORE UTILITIES, INC., a Florida
corporation
By:/s/
-----------------------------------------
Name:Andrew S. Love Jr
------------------------------------
Title:Chairman---------------------------
SUGARMILL WOODS SALES, INC., a Florida
corporation
By:/s/
-----------------------------------------
Name:Rodney M. Schiffer
------------------------------------
Title:Vice President
-----------------------------------
-14-
<PAGE> 1
NOTE AND LOAN DOCUMENT PURCHASE AGREEMENT
-----------------------------------------
This NOTE AND LOAN DOCUMENT PURCHASE AGREEMENT ("Agreement"), dated and
effective as of October 12, 1995, by and between FIRST UNION NATIONAL BANK OF
FLORIDA, a national banking association ("Seller"), PGIP, L.L.C., a Missouri
limited liability company ("Buyer"), and PGI INCORPORATED, SUGARMILL WOODS,
INC., BURNT STORE MARINA, INC. and GULF COAST CREDIT CORPORATION, all Florida
corporations (collectively, the "Borrowers").
RECITALS
--------
A. The Seller is the owner and holder of certain loans made to PGI
INCORPORATED, SUGARMILL WOODS, INC., BURNT STORE MARINA, INC. and GULF COAST
CREDIT CORPORATION, all Florida corporations (collectively, "Borrowers"),
which loans are defined as the "Loans" and are more particularly described in
that certain Thirteenth Mortgage and Loan Modification Agreement dated as of
May 13, 1994, executed by BancFlorida, a Federal Savings Bank (predecessor in
interest to Seller), formerly known as Naples Federal Savings and Loan
Association, and the Borrowers ("Thirteenth Modification"). All terms used
-----------------------
herein and not defined herein shall have the meanings as set forth in the
Thirteenth Modification.
B. The Loans are guaranteed pursuant to certain guarantees of
payment executed by SOUTHERN WOODS INCORPORATED, formerly known as TWIN
COUNTY UTILITY CO.; PUNTA GORDA ISLES SALES, INC.; DEEP CREEK UTILITIES,
INC.; BURNT STORE UTILITIES, INC. and SUGARMILL WOODS SALES, INC.
(individually and collectively, the "Guarantors").
C. The Loans are currently in default and certain events of default
have occurred and are continuing under certain documents evidencing and/or
securing the Loans.
D. Of even date herewith, Seller and Borrowers have executed that
certain Forbearance Agreement ("Forbearance Agreement"), which Forbearance
Agreement provides that Seller shall forbear, subject to the terms and
conditions set forth therein, from exercising its rights and remedies under
the Loan Documents (as defined below) until November 15, 1995, pursuant to
the terms of the Forbearance Agreement.
E. Buyer wishes to purchase, and Seller wishes to sell, all of
Seller's right, title and interest in and to that certain Consolidated
Renewal Promissory Note dated as May 13, 1994, executed by Borrowers in favor
of Seller, and that certain Future Advance Note dated as of October 12, 1995,
executed by Borrowers in favor of Seller (together, the "Notes"), and those
other documents listed on Schedule 1 attached hereto (collectively and
----------
together with the Notes, "Loan
<PAGE> 2
Documents") and hereby made a part hereof, all in accordance the terms and
conditions set forth herein.
AGREEMENT
---------
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged the parties agree as follows:
1. Assignment. Subject to the terms and conditions of this
----------
Agreement, Seller agrees to sell and assign to Buyer, and Buyer agrees to
purchase from Seller, without recourse, warranty or representation of any
kind whatsoever, except as expressly set forth in paragraph 9,
"Representations and Warranties of Seller" of this Agreement, all of the
right, title and interest of Seller in and to the Notes and the other Loan
Documents, including any and all amounts remaining due thereunder for
principal and interest. Notwithstanding anything herein to the contrary,
Seller shall not be obligated to assign the Notes and the other Loan
Documents unless and until Seller shall have received the Discounted Payoff
Amount (as defined below) in immediately available funds on or before 2:00
p.m. on November 15, 1995. For purposes of this Agreement, "Discounted
Payoff Amount" shall mean $4,800,000.00 ("Discounted Payoff Base") plus the
Initial Loan Purchase Payment (as defined below) plus interest calculated
----
on the Discounted Payoff Base accruing at the rate of 10.5% per annum from
May 1, 1995 through and including the date of payment in full of the
Discounted Payoff Amount ("Forbearance Period Interest"). If the Initial
Loan Purchase Payment (as defined in below) is made prior to execution of
this Agreement, the Discounted Payoff Amount shall be reduced to the
Discounted Payoff Base plus the Forbearance Period Interest. For purposes
----
of this Agreement, "Initial Loan Purchase Payment" shall mean a
non-refundable payment in immediately available funds in the amount of
$241,617.65.
2. Initial Installment; Remedies. Upon the execution hereof,
-----------------------------
Buyer shall deliver the amount of $241,617.65 as a non-refundable initial
--------------
loan purchase installment ("Initial Loan Purchase Payment") to Seller. In
the event that Buyer fails to satisfy any of the Discounted Payoff Conditions
as set forth above or otherwise perform its obligations to purchase the Notes
and the Loan Documents pursuant to this Agreement, the Initial Loan Purchase
Payment, together with any and all accrued interest thereon, shall be
retained by Seller as liquidated damages; and Seller and Buyer shall have no
further rights, remedies or obligations hereunder.
3. Purchase Price; Legal Fee Reimbursement. The sale and
---------------------------------------
assignment contemplated by this Agreement shall be for and in consideration
of the payment of the Discounted Payoff Amount (as set forth in Paragraph 1
above) (sometimes referred to herein as the "Purchase Price"). The Purchase
Price shall be paid by Buyer on the date of Closing (as defined in Paragraph
4 below) on or before 2:00 p.m., Orlando, Florida time, in immediately
available funds. On the date of Closing, in addition to the payment of the
Purchase Price as stated above, Buyer shall reimburse Seller for all
reasonable legal fees incurred by Seller after the date of execution of this
Agreement, in connection with its preparation of the assignment documents,
provided, however, that attorneys' fees (excluding
-2-
<PAGE> 3
out of pocket costs), to be paid by Buyer, Borrower and Guarantors in
connection with this matter, shall not exceed $15,000,00.
4. Closing. Closing of the sale and delivery and assignment of
-------
the endorsed Notes and the Loan Documents ("Closing") shall occur on or
before the fifteenth (15th) day of November, 1995, and, on the date of
Closing, Seller shall (i) execute and deliver the Assignment (as defined
below), (ii) endorse the Notes and assign the other Loan Documents to Buyer
pursuant to the Assignment, (iii) execute and deliver UCC-3 assignments as to
all existing filings made by Borrowers in favor of Seller, (iv) deliver to
Purchaser originals of the Notes, together with copies or originals of all
other Loan Documents in Lender's possession, and (v) deliver such
authorizations as are reasonably requested by Chicago Title Insurance Company
for purposes of issuing an endorsement to Chicago Title Insurance Policy
10066302000122 insuring Buyer's interest in the Loan Documents and Buyer
shall pay the Purchase Price to Seller, in accordance with the terms hereof.
In addition, Borrowers, Guarantors, and Buyer shall execute and deliver to
Seller a general release of any and all claims and liabilities arising out of
the indebtedness under the Loan Documents, which general release shall be in
substantially the form of Exhibit G attached hereto.
5. Acceleration of the Loans. Lender agrees that upon receipt of
-------------------------
the Purchase Price, in immediately available funds, at the request of Buyer,
and subject to the Acceleration Conditions (as defined below), Lender shall
declare the entire outstanding principal amount of the Loans, together with
all accrued and unpaid interest and charges thereon, to be due and payable.
For purposes of this Agreement, "Acceleration Conditions" shall mean:
i) Seller shall not be required to declare an acceleration if, in
the reasonable judgement of Seller, such acceleration would be
illegal, improper, unethical or subject Seller to any risks,
losses, claims, damages or liabilities;
ii) Borrowers, Guarantors and Buyer shall indemnify and hold Seller
harmless from and against any and all claims and liabilities
arising out of Seller's acceleration of the indebtedness under
the Loan Documents.
6. Events of Default. It shall be an Event of Default under this
-----------------
Agreement if:
(a) Buyer shall fail to pay the Discounted Payoff Amount, including
the Forbearance Fee (as defined in the Forbearance Agreement), in accordance
with this Agreement, on or before the due date for such payment by Buyer;
(b) Borrowers or Guarantors shall fail to execute and deliver any
of the documents required as "closing deliveries" pursuant to paragraph 5 of
the Forbearance Agreement; or
(c) Borrowers, Buyer or Guarantors shall fail to execute and
deliver a duly authorized general release as required by paragraph 4 of this
Agreement.
-3-
<PAGE> 4
7. Assignment. The assignment of the Notes and the Loan Documents
----------
shall be in the form annexed hereto as Exhibit A ("Assignment"). Seller
---------
shall deliver one originally executed and notarized Assignment to Buyer at
Closing for each county in which any of the Property that is secured by the
Loan Documents is located (Citrus County and Hernando County), together with
originals of the Notes endorsed without recourse, warranty or obligation to
Buyer, except as set forth in paragraph 9 "Representations and Warranties of
Seller" hereof, and originals or copies of all other Loan Documents in
Seller's possession. Seller, Buyer and the Borrowers agree that, upon
Seller's receipt of the Discounted Payoff Amount (but not before that time),
the Loan Documents listed in Exhibit A to the Assignment shall be deemed to
be all of the operative documents relating to the indebtedness evidenced by
the Notes.
8. Representations and Warranties of Buyer.
---------------------------------------
a. This Agreement will be the legal, valid and binding
obligation of Buyer when executed, enforceable in
accordance with its terms, except only as such enforcement
may be limited by applicable debtor relief laws and that
certain equitable remedies may not be available regardless
of whether enforcement is sought in equity or law;
b. Seller makes no representations or warranties as to the
value of any property encumbered by any of the Loan
Documents ("Property"), or any other representation or
warranty of any kind whatsoever regarding the Property,
including but not limited to representations regarding the
condition, zoning, suitability for development, or
development authorizations regarding the Property; and
c. Having consulted with counsel, and as a result of Buyer's
prior experience in connection with delinquent loans:
(1) Buyer is aware of the substantive legal and
equitable defenses and procedural defenses and
delays which may be interposed by the Borrowers
against an attempt to enforce the Notes and the Loan
Documents and prosecute any foreclosure proceedings,
and of the legal and practical difficulties of
enforcing the Notes and the Loan Documents,
acquiring the Property and ejecting occupants under
the laws of the jurisdiction in which the Property
is located, as applied in the several courts of such
jurisdiction;
(2) Buyer is aware that from and after the assignment of
the Notes and the Loan Documents to Buyer, all
defenses which would have been available to the
Borrowers with respect to any predecessor in
interest to Buyer under the Loans may be
-4-
<PAGE> 5
available against Buyer, and that, under the terms
of this Agreement, Buyer shall be unable to look to,
Seller or any of its predecessors in interest should
such defenses destroy, in whole or in part, or delay
the availability of Buyer's remedies under the Notes
and the Loan Documents and in any foreclosure
proceedings;
(3) Buyer is aware that any attempt to enforce the Notes
and the Loan Documents and prosecute any foreclosure
proceedings, either in the courts of the
jurisdiction in which such Property is located or in
the Federal courts having jurisdiction thereof may
be fraught with delay and considerable expense; and
(4) Buyer is aware that, even in the event that it
successfully acquires the Property by means of
foreclosure, that there may be statutory periods for
exercise of the Borrowers' or some other party's
rights of redemption which could delay any resale of
the Property.
(5) Buyer requested that Seller sell the Notes and the
Loan Documents to Buyer, and neither Seller nor any
other party solicited Buyer to purchase the Notes
and the Loan Documents. Buyer's desire to purchase
the Loans is a result of Buyer's independent
evaluation of the Property and review of the Notes
and the Loan Documents, and neither Seller nor any
other party has made any information available to
Buyer to induce or influence Buyer to purchase the
Loans.
(6) Neither Seller nor any other party makes or has made
any representation or warranty as to the validity,
legality, enforceability or collectability of the
Notes or the Mortgages, nor as to the validity,
legality, enforceability or priority of the lien
purported to be created thereby. Neither Seller nor
any other party makes or has made any representation
or warranty as to the value or condition of the
Property, or the merchantability of any title which
Buyer might receive in the event that it succeeded
in enforcing the Mortgages and acquiring the
Property.
-5-
<PAGE> 6
9. Representations and Warranties of Seller.
----------------------------------------
(a) Seller is a corporation duly organized, validly existing
and in good standing under the laws of the United States. Each individual
executing this Agreement on behalf of Seller, has full power and authority to
execute, deliver and perform this Agreement. Seller hereby represents and
warrants to Buyer, as of the date hereof, on the Closing Date and at all
times pertinent hereto, that Seller has full power and authority to execute,
deliver and perform this Agreement, including authority to sell and transfer
the Notes and the Loan Documents, and Seller has duly executed and delivered
this Agreement. All necessary corporate, regulatory or other similar action
has been taken to authorize and empower Seller and the officers or
representatives acting on Seller's behalf. This Agreement constitute the
legal, valid, binding and enforceable obligation of Seller enforceable
against Seller in accordance with its terms.
(b) Seller disclaims any liability to Buyer should the amounts
represented as due under the Notes, and in the Forbearance Agreement, not be
accurate, not be legally enforceable, or are contested or defended against
(whether successfully or not) by any obligor under the Loan Documents.
(c) Seller is the owner and holder of the Notes and Loan
Documents and has not previously sold or assigned the same in whole or in
part.
(d) Seller makes no representations or warranties as to the
value of any property encumbered by any of the Loan Documents ("Property"),
or any other representation or warranty of any kind whatsoever regarding the
Property, including but not limited to representations regarding the
condition, zoning, suitability for development, or development authorizations
regarding the Property.
10. Disclaimer of All Warranties. Except as expressly stated in
----------------------------
paragraph 8 of this Agreement, the Loan Documents, including the Notes and
Mortgages, are being sold "AS IS" and without ANY RECOURSE, AND WITHOUT ANY
REPRESENTATION, WARRANTY OR OBLIGATION whatsoever as to genuineness,
authorization, proper execution, enforceability, validity, condition, FITNESS
FOR ANY PARTICULAR PURPOSE, MERCHANTABILITY or any other warranty express or
implied. Seller specifically disclaims any warranty, guaranty or
representation, oral or written, past or present, express or implied,
concerning the Loans, the Notes, the other Loan Documents or the Property.
By signing below, Buyer indicates that Buyer has carefully
reviewed these limitations and agrees that they are true and correct and
agrees to be bound by them.
11. Inventory and Delivery. From and after the date of this
----------------------
Agreement, and prior to Closing, Buyer shall be entitled to access all Loan
Documents and to receive copies thereof. This shall include all bank
documentation and information relating to the Loans, including, but not
limited to, all Loan Documents, appraisal reports, title insurance policies,
surveys, soil reports and environmental studies. Additionally, Buyer shall
be entitled to contact any and all parties concerning
-6-
<PAGE> 7
this transaction. Seller shall cooperate in advising Buyer of the location of
all documents and records and making such reasonably available and convenient.
12. Counterparts; Entire Agreement. This Agreement may be executed
------------------------------
simultaneously in any number of counterparts. Each counterpart shall be
deemed to be an original, and all such counterparts shall constitute one and
the same instrument. This Agreement constitutes the entire agreement between
the parties hereto relating to the subject matter hereof and supersedes any
prior agreement or communications between the parties.
13. Place of Delivery and Governing Law. This Agreement shall be
-----------------------------------
deemed in effect when counterparts hereof have been executed and delivered by
Seller and Buyer. This Agreement shall be deemed to have been made in the
State of Florida. The Agreement shall be construed in accordance with the
laws of the State of Florida, and the obligations, rights and remedies of the
parties herein shall be determined in accordance with the law of the State of
Florida, without giving effect to its conflict of law rules.
14. No Third Party Beneficiaries. The parties to this Agreement do
----------------------------
not intend to create any rights or benefits in favor of any third party.
15. Attorneys' Fees. Except as provided in paragraph 3, each party
---------------
shall pay its own attorneys' fees incurred in connection with this Agreement.
16. Independent Counsel and Due Diligence. Each of the parties
-------------------------------------
hereto has had the benefit of independent legal advice by counsel of its own
selection prior to entering into this Agreement, and has executed this
Agreement only after undertaking a thorough investigation and consideration
of all the relevant facts and circumstances surrounding these actions.
17. Authority. The parties have the appropriate authority and have
---------
obtained any authorizations necessary for them to enter into this Agreement
and to perform all acts contemplated by this Agreement, and to authorize the
person who executes this Agreement on its behalf to do so to bind such party.
18. Notice Requirements. Any notice, demand or communication
-------------------
required or permitted to be given by any provision of this Agreement, will be
in writing and will be deemed to have been given when delivered personally or
by telefacsimile, receipt confirmed, to the party designated to receive such
notice, or on the date following the day sent by overnight courier, or on the
third (3rd) business day after the same is sent by certified mail, postage
and charges prepaid, directed to the following addresses, or to such other or
additional addresses as any party might designate by written notice to the
other party:
To any Borrower:
c/o PGI Incorporate
-7-
<PAGE> 8
515 Olive Street, Suite 1400
St. Louis, Missouri 63101
Attention: Laurence A. Schiffer
Telefacsimile: (314) 621-7360
With a copy to:
Craig Adoor, Esq.
Peper Martin
720 Olive Street, 24th Floor
St. Louis, Missouri 63101
Telefacsimile: (314) 621-4834
To the Lender:
Nelson Ritch
Vice President
First Union National Bank of Florida
Special Assets Department (FL 2202)
800 North Magnolia
Orlando, Florida 32802
Telefacsimile: (407) 649-5628
With a copy to:
Robert M. Quinn, Esq.
Carlton, Fields, Ward,
Emmanuel, Smith & Cutler, P.A.
777 South Harbour Island Boulevard
One Harbour Place
Tampa, Florida 33602
Telefacsimile: (813) 229-4133
19. Merger. This Agreement represents the entirety of all
------
agreements and understandings of the parties with respect to the subject
matter hereof and supersedes all prior understandings and agreements, whether
written or oral. This Agreement shall not be modified or altered, except by
a writing signed by each of the parties.
20. Time. Time is of the essence of this Agreement.
----
21. Choice of Law. Florida law shall govern the interpretation and
-------------
enforcement of this Agreement.
-8-
<PAGE> 9
22. Jurisdiction and Venue. The parties consent to jurisdiction
----------------------
and venue of any court of competent jurisdiction in Hillsborough County,
Florida, for any action brought to enforce any obligation, right or remedy
under this Agreement.
23. Counterparts. This Agreement may be executed in
------------
counterparts, and facsimile signatures may be accepted as original
signatures, until replaced by an original signed counterpart.
24. Insurance. Seller shall assign, at Closing Date, to the extent
---------
assignable, if any, and without recourse, warranty, or representation of any
kind, its rights as loss payee and/or the insured party under any insurance
policy covering the Mortgages, including, but not limited to, hazard or
property insurance and mortgage title insurance.
25. Assignment. This Agreement shall be binding upon the permitted
----------
successors and assigns of the parties hereto. This Agreement shall not be
assignable by either party hereto without the written consent of the other
party; provided, however, Buyer shall be permitted a single assignment of its
rights and obligations hereunder within ten (10) days following the date
hereof to a corporation to be formed.
26. Waiver of Jury Trial. Each party waives the right to trial by
--------------------
jury in any dispute related to or arising out of this Agreement, or the
Assignment of the Loan Documents, or any facts or circumstances related to or
arising from any of the foregoing, or any negotiations, communications,
actions or omissions related to or arising from any of the foregoing.
27. Further Assurances. The parties hereto agree that upon
------------------
the reasonable request of the other party to this Agreement, each such party
will execute and deliver to the requesting party such other additional
instruments and documents, or perform or cause to be performed such other and
further acts and things, as may be reasonably necessary to more fully
consummate the transactions as set forth in this Agreement provided, however,
that performance by either party under this paragraph shall not create any
new liability or obligation on the performing party whatsoever.
BUYER: SELLER:
PGIP, L.L.C., a Missouri FIRST UNION NATIONAL BANK OF FLORIDA,
limited liability company a national banking association
BY:/s/--------------------------- BY:-/s/-----------------------------
Name:Andrew S. Love Jr.------------- Name:-Nelson T. Ritch---------------
Title: Manager---------------- Title:-Assistant Vice President-----
BORROWERS:
PGI INCORPORATED, a Florida corporation
-9-
<PAGE> 10
BY:-/s/-----------------------------
Name:Andrew S. Love Jr.----------------
Title: Chairman-----------------------
SUGARMILL WOODS, INC.,
a Florida corporation
BY:/s/---------------------------
Name:Andrew S. Love Jr.-------------
Title: Chairman---------------------
BURNT STORE MARINA, INC.,
a Florida corporation
BY:/s/------------------------
Name:Andrew S. Love Jr. ----------
Title: Chairman------------------
GULF COAST CREDIT CORPORATION,
a Florida corporations
BY:/s/------------------------
Name:Andrew S. Love Jr.----------
Title: Chairman------------------
-10-
<PAGE> 11
Prepared by and Return to:
Michael J. Virgadamo, Esquire
Carlton, Fields, Ward, Emmanuel,
Smith & Cutler, P.A.
Post Office Box 3239
Tampa, Florida 33602
EXHIBIT A
---------
ASSIGNMENT OF NOTES, MORTGAGES AND LOAN DOCUMENTS
-------------------------------------------------
FIRST UNION NATIONAL BANK OF FLORIDA, a national banking association,
("Assignor"), hereby assigns to PGIP, L.L.C., a Missouri limited liability
company ("Assignee"), without recourse, warranty or representation of any
kind, except as expressly stated in paragraph 9 "Representations and
Warranties of Seller," of that certain Note and Loan Document Purchase
Agreement, dated as of October 12, 1995, by and between Assignor and Assignee
(the "Agreement"), all of its right, title and interest in and to that
certain Consolidated Renewal Promissory Note, dated as of May 13, 1994,
executed by PGI, Incorporated, Sugarmill Woods, Inc., Burnt Store Marina,
Inc. and Gulf Coast Credit Corporation (collectively, "Borrowers") in favor
of Assignor, in the original principal amount of $7,001,615.29 ("Consolidated
Note"), that certain Future Advance Note, dated October 12, 1995, executed by
Borrowers in favor of Assignor, in the original principal amount of
$241,617.65 ("Future Advance Note"), and any other documents evidencing or
securing any portion of the indebtedness evidenced by the Consolidated Note
or the Future Advance Note, including, without limitation, the documents
listed in Exhibit A attached hereto and made a part hereof to have and to
hold forever.
FIRST UNION NATIONAL BANK OF
FLORIDA, a national banking association
BY:-/s/-----------------------------
Name:Nelson T. Ritch------------------
Title: -Assistant Vice President--------
STATE OF FLORIDA
COUNTY OF ----------------
The foregoing instrument was acknowledged before me this ----- day of
- ------------, 1995, by ------------------------- as ---------------------- of
First Union National Bank of Florida, a national banking association, on
behalf of the bank. He/she is personally known to me or has produced
- -------------(state) drivers license no. ------------------- as
identification.
My Commission Expires: -------------------------------
(Signature)
[AFFIX NOTARY SEAL] -------------------------------
(Printed Name)
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(Title or Rank)
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(Serial Number, if any)
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EXHIBIT A TO ASSIGNMENT - SCHEDULE OF LOAN DOCUMENTS
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1. Substitute Renewal Mortgage No. 1, dated as of October 19, 1985, executed
by Borrowers in favor of Naples, and recorded in the Public Records of
Citrus County, Florida at O.R. Book 682, Page 2140, and otherwise recorded
in DeSoto, Hernando and Lee Counties, Florida, as the same may have been
amended from time to time.
2. Substitute Renewal Mortgage No. 2, dated as of October 19, 1985, executed
by Punta Gorda Isles, Inc., Punta Gorda Developers, Inc. and Burnt Store
Marina, Inc. in favor of The First National Bank of Chicago, as Agent
("FNBC"), and recorded at O.R. Book 837, Page 959 of the Public Records of
Charlotte County, Florida, and recorded at O.R. Book 682, Page 1952 of the
Public Records of Citrus County, Florida, which Substitute Renewal Mortgage
No. 2 was assigned by FNBC to Naples pursuant to: (i) that certain
Assignment of Mortgage recorded at O.R. Book 683, Page 187 of the Public
Records of Citrus County, Florida, (ii) that certain Assignment of
Mortgages recorded at O.R. Book 683, Page 190 of the Public Records of
Citrus County, Florida and O.R. Book 683, Page 195 of the Public Records of
Citrus County, Florida, as the same may have been amended from time to
time.
3. Restated Loan Agreement No. 1, dated October 19, 1985, executed between
Naples and Borrowers as the same may have been amended from time to time.
4. Divided Security Agreement and Pledge of Collateral No. 1, dated October
19, 1985, executed by Borrowers in favor of Naples, as the same may have
been amended from time to time.
5. Divided Assignment of Notes, Mortgages, Contracts and Agreements for Deed
No. 1 dated as of October 19, 1985, executed by Borrowers in favor of
Naples, as the same may have been amended from time to time.
6. Platinum Point Loan Documents, as described in that Thirteenth Mortgage &
Loan Modification Agreement, dated as of May 13, 1994, executed by and
between Borrowers and BancFlorida, a Federal Savings Bank, predecessor in
interest by merger to Lender.
7. Tugboat Loan Documents, as described in that Thirteenth Mortgage & Loan
Modification Agreement, dated as of May 13, 1994, executed by and between
Borrowers and BancFlorida, a Federal Savings Bank, predecessor in interest
by merger to Lender.
8. Loan and Security Agreement, dated October 1, 1984, executed by PGI, PGD,
Marina, FNBC, CREI or FNB, as agent ("Land Loan Agreement"), a portion of
which Agreement was assigned by FNBC and CREI to Naples pursuant to a Note
Purchase Agreement, dated October 19, 1985, as the same may have been
amended from time to time.
9. Loan and Security Agreement, dated as of October 1, 1984, executed among
PGI, PGD, Marina, FNBC, CREI and FNBC, as Agent, as the same may have been
modified from time
<PAGE> 13
to time ("FNBC Receivables Loan Agreement"), a portion of which Agreement
was assigned by FNBC and CREI to Naples pursuant to a Note Purchase
Agreement, dated October 19, 1985, as the same may have been amended from
time to time.
10. Restated Loan and Security Agreement, dated as of March 25, 1987, executed
by and among Borrowers and Naples, as the same may have been amended from
time to time ["to be read in conjunction with Restated Loan Agreement No.
1" - item 3 above]
11. Pledge Agreement, dated as of March 25, 1987, executed among Punta Gorda
Isles, Inc., Punta Gorda Developers, Inc. and Naples regarding stock
collateral, as the same may have been amended from time to time.
12. Security Agreement, dated March 25, 1987, executed among Borrowers and
Naples regarding blanket lien on all of Borrower's assets, as the same may
have been amended from time to time.
13. Together with Assignor's right, title and interest, if any, in any
additional security instruments securing the indebtedness due under the
Consolidated Renewal Note and the Future Advance Note.
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