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Exhibit 10.1
SECOND AMENDMENT (CAPITAL IMPROVEMENTS) TO
AMENDED AND RESTATED LOAN AGRFEMENT
-----------------------------------
THIS SFCOND AMENDM-ENT (CAPITAL @ROVEMFNT) TO @NDEP AND RESTATED LOAN
AGREEMENT (this "Serond Amendment"), dated as of the @day of February, 1998,
modifies and amends that ce@ AMENI)ED AND RESTATED LOAN AGREF-MZNT dated as of
September 26, 1996, as amended by First Amendment (Seaside) dated as of May 30,
1997 (collectively, the "Loan Agreement'), all 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 org@zed and existing under the laws of the Republic of
France ("CLNY"), Bamett Bank, N.A., a national b@g association,
formerly known as Bamett Bank of Lee County, N.A. ("BARNETT") and
FINOVA Capital Coxporation, a Delaware corporation formerly kno@ as
Greyhound Financial Corporation ("FINOVA") (each of CLNY, 13arnett AND
FRNOVA, or their respective successors and assigns, is individually
referred to as a "PARTICIPANT", and are collectvely referred to as the
"LEADER"; use of such term hereinafter shall include ALL Participants,
collectively, and at the same time, each Partioipant individually),
CLNY as admi@wative 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,
hereiuafler refined to as "CORATERAL AGENT"; unless the context
requires reference as Collateral Agent or Adm@strative 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 PazUiership, an Ohio
limited partnership ("SSPC") (formerly known as Captiva Resort Cornpany
Limited Partnership), Marco SSP Ltd., a Florida limited partnership
("MSSP"), South Seas Resorts Company Limited Partnership, a Florida
limited partnership ("SSPC") and Safety Harbor Management Company,
Ltd., a Florida limited panriership ("SHMC") (SSPC, SSRLP, MSSP, SSRC
and SHMC, collectively, the "BORROWER"; use of such term hereafter
shall iiarlude all entities constituting ]3orrower, including all
general p ai-tners of p@erships constituting Borrower, collectively,
and at the same time, each of the entities, individually),
Capitalized TEN-NS used in this SECOND Amendment SHALL have the m@ngs
SET FORTH in the Loan Agreement, unless otherwise DEFINED herein.
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RECITALS
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A. On September 26, 1996, Lender and ]3orrower entered into the
transactions described WI e Loans aggregating the in the Loan AGREEMEIIT and the
other Loan Documents, 'th resp ct to original principal amount of Eighty Million
and No/100 Dollazs ($80,000,000.Qo).
B. As of May 30, 1997, the parties to the Loan Agreement executed First
Amendment (Seaside), amending the Loan Agreement to allow for an Adjusted
Eurodollar Interest Rate and cia6@ng certain other provisions of the Loan
Agreement.
C. Lend@ and BoTmwer desire to provide for an amendment of the Loan
Documents to allow Borrower to defer repayment of a portion o@ the outstand'na
principal balance wider the Term Loan and to allow Borrower to use the deferred
funds to make certain capital improvements.
NOW, THERFFO@, for and -M 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:
TERMS
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I . @ORPORA@ OF RECITALS: The Recitals set forth above are true and
correct and are incorporated herein by reference.
2. @CIPAL BALMRE. OFAHE @ANS: Borrower confirms and acknowledges that,
as of January 21, 1998, the principal balance of the Loam is $64, 1 00,000.00,
and that such amount is due Lender fi= and clear of all claims, demands,
setoffs, defenses or counterclaims. Of such amount outstan(Lng,
$38,250,000.00represents the principal balance of the Term Loan. P@uant to the
Term Note, payments of principal under the Term Loan are to be made quaxterly
beginning March 31, 1997,
3. N-O DEFAULT UNDER THE-LOADS: 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. AMENDMENT TO LOGN A=EM= REGAR@ PA@ AS--OF PRINRIPAI UND!A TE= LOAN:
Section 2.3(b) of the Loan Agreement is hereby amended to read as follows:
[2.3 (a) to remain unchanged]
2.3(b)maggregatepiincipalpaymentof$1,200POO0,00duringthePeriodbegi@ng
on the fifth Installment Payment Date, in two equal quarterly payments of
$550,000.00 each, on MARCII 31, 1998, and Juue 31, 1998, and two equal quarterly
payments of $50,000.OQ each, on
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SEPTEMBER 30, 1998, and December 31, 1998 ('Borrower acknowledging that the
amount OF principal PAYMENTS which HAVE BEEN DEFERRED by Lender AGGREGATES
$1,000,000.00 (THE "DEFERRED PRINCIPAL"), one-half OF which DEFERRAL was made in
the t@d payment for calendar y@ 1998 and THE other half IN the FO@ payment for
1998);
with the outstanding principal amount of the Temi Note being due and payable in
one payment of $29,225,000.00, together with any accumulated and unpaid interest
thereon, on the Matuhty Date.
[2.3(c), (d) and (e) to remain unchanged)
5. CONDITIO@TO ARNCNDMENTB T@s Second Amendment shall be effective upon
its execution, and Borrower's deferral of THE Deferred Principal under the Term
Loan shall not constitute a default, provided that the following conditions are
satisfied:
(a) The Defened Principal shall be fully expended by Borrower
during calendar year 1998, and such use must be solely for the purpose of m@ng
capital improvements to the Project (including, without limitafion,
refurbishment of units) pursuant to the 1998 Capital Expenditure Budget attached
hereto as E@bit A, which capital improvements would be recop-iized as such under
GAAP;
(b) Wi@ J5fty (50) days after the end of the applicable fiscal
quaner, Bouower shall provide Agent with quarterly reports of capital
expenditures as of the last day of each of the calendar quarters of 1998,
setting forth the arnount of such Deferred Piincipal expended to date and
listing in detail the capital improvements toward which such expenditures were
made; and
(c) Within fifty (50) days after December 31, 1998, Borrower shall
provide Agent with a report and certification in form and content satisfactory
to Agent detailing all expenditures of Deferred Mncipal, all capital
improvements made with the DefeiTed Mncipal, and a timetable of when each
expenditure was made, and certifying that all such capital improvements would be
recognized as "capital improvements" under GAA.P
(d) Lender shall have ten (I 0) I3usiness Days to review each such
quanerly report and the @ report and certification. In the event Lender objects
to Borrower's classification of any improvement for which any portion of the
Deferred Principal was expended be'ug classified as a I d capital improvement",
Borrower shall promptly (and in all events within ten (10) Business Days after
Lender notifies Borrower of such disallowance) prepay principal under the Term
Loan to the extent of the amount of the expenditure as to which such objection
has been made,
6. @.ES AND E2IPENSES.- Borrower shall pay all of Lender's counsels' fees and
costs incurred in connection with the preparation of t@ Second Amendrnent.
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7. N-0 OTL DA I DME : Lender's consent aiid amendment herein shall
be applicable only to the matters set fortli in this Second Amendment and Lender
shall not be obligated to consent to any other request or traasaction or waive
any other provisions of the Loan Documents.
8. AFFINNIGIORI )F LOAU D : 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 t@s Second Arnendment) agree that
execution of this Second Amendment shall be deemed a reaffirmation of the
representations, warranties and covenants contained in the Loan Documents and
that same are true azd correct as of the date of execution of tb'@s Second
Amendnient. Borrower, Taylor and Ten Broek hereby, jointly al3d severally: (i)
acknowledge that Lender has performed all of its obligations, if any, wider the
Loan Docw-nents; (ii) acknowledge that aone has any claims, defenses or rights
of setoff against Lender oT as to the validity or enforceability of the Loan
Documents or any of fliem, or- aiiy other documents executed in connection
therewith; and (iii) waive, discharge and release forever aay 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 pamers, might have against Lender or its
officers, directors, shazeholders, agents or employees, or the successors or
assigns of @y of the foregoing, Borrower, Taylor and Ten Broek acknowledge and
agree that the affinnatioiis, acknowledgments, waivers and discharges contained
in this Section are a mat@al inducei-nent for Lender to enter irito this Second
Amendrnent.
9. FLORIDA aw Inv 'DITY; EATI-RE A CENTS IJIT=RETATIQN: This Second
Amendment shall be govemed by Florida law. This Second Amendniciit represents
the eiitire AgTeement 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 oT
unenforceable, stich invalidity or uiienforceability shall not affect the
remaining provisions, all of which shall rema-iii in fWl force and effect. This
Second Amendment shall not be construed more st6ctly against one paz-ty than the
other by virtue of the fact that one paxty or its counsel may have drafted same,
all pazties and their counsel having had the opportunity to participate in thQ
negotiation and drafting of this Second Amendi-nent. This Second Amendment may
be executed in one or more counterparts, eacli of which shall be deemed an
original and all of which, together, shall constitute a single -instrument.
10. WAIVLR-()F RMY TRIAL. BORROWEP,, ITS PARTNERS AND LENDER HEREBY
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT ANY MAY HAVE TO A TRIAL
BY JTJRY IN RESPECT TO ANY LITIGATION BASED ON OR ARLSING OUT OF, UNDER OR rN
CONN'F-CTION WrrH, THIS SECOND AMENDMENT OR ANY COURSE OF CONDUCT, COLYRSE OF
DEALING, STATEMENTS (VERBAL OR WRITTEN), OR ACTIONS OF ANY PKRTY HERETO. THIS
WAIVER OF TRIAL BY @Y PROVISION IS A MATERIAL INDUCENIENT FOR LENDER TO ENTER @O
TMS SECOND AMENDMENT.
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IN WITNEss WHF-RF-OF, the parties hereto have executed @s Second
Amendment as of the date written above.
BORROWER:
SOUTH SEAS RESOPT LMTED PARTNERSHIP,
an OHIO limited p@ership
By: SAN-CAP Resort, L.C., a Florida limited
liability company, its General Partner
By: /s/ Robert M. Taylor
-----------------------------------------
Robert M. Taylor, Manager
SOUTH SEAS PROPERTIES COMPANY LIMITED
PARTNERSHIP, an Ohio limited partnership
By: /s/ Robert M. Taylor
-----------------------------------------
Robert M. Taylor, Manager
MARCO SSP, LTD,, a Florida limited partnership
By: Marco SSP, Inc., its General Partner
RAL Partner
By: /s/ Robert M. Taylor
-----------------------------------------
Robert M. Taylor, Chairman
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SOUTH SEAS RESORTS COMPANY LIMITED
PARTNERSHIP, a Florida limited partnership
By: S.S. Resort Management, L.C., a Florida
limited liability company, its General Partner
By: /s/ Robert M. Taylor
-----------------------------------------
Robert M. Taylor, Manager
SAFETY HARBOR MANAGEMENT COMPANY,
LTD., a Florida limited partnership
By: S.S. Resort Management, L.C., a Florida
limited liability company, its General Partner
By: /s/ Robert M. Taylor
-----------------------------------------
Robert M. Taylor, Manager
COLLATERAL AGENT, ADMINISTRATIVE
AGENT AND PARTICIPANT:
COLLATERAL AGENT, ADMINISTATIVE
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: /s/ Andrea Griffis
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Name: Andrea Griffis
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Title: Vice President
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OTHER PARTICIPANT:
BARNETT BANK, N.A. a national baking
association
By: Charles S. Flint
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Name: Charles S. Flint
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Title: Senior Vice President
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FINOVA CAPITAL CORPORATION, A Delaware
corporation
By: /s/ Susan Babbit
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Name: Susan Babbit
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Title: Vice President
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EXHIBIT A
1998 CAPITAL EXPENDITURE BUDGET
(Attached)
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@F, CAPITAL:
Soulh SEAS P12NIATION
SOuth STAS-HE,41TH C)ub
Sundial
Sundial-Pool Ranoyation
E)unes GOLF & Tennis CLUB
Ouner.@lion
Sanibel inri
B@ Vveltern-S:knibel
SONG Df Saa
MARCO Radisson
S2F@ Hartur
SE2SIDE Inn
Subtotal
SOLA@ SEAS and C2PLIYA Prop
VAC2TJON Planning CENTER
Co@ratems
Sat4h SEAE-TELOPHONE Syriam
SaniW Inn-Prop Renov2tiorL(Roof Unfunded Sc)ng of THE Sea-Refurbishment 8-t
WL%IEM Refurbishm*rTi BAEIE Capitai REERVEAJI Prc)peMl,, (t, BE ALLOCATED)
TOTAL BASE CAPF-X
13ASE! CAPF-X As % of TOTAL REVENLJES
PROJECT CAPITAL:
.5outh Se2s Plonlition Kings Crown Ca@vcr South End CamRvgr Omer Refurb P(gg
Fibcr Op@ic Point OF SALE SYNIEM Sanibel Inn Room Retiovation PQrking Lot Marco
Radisson Rooms 2nd Othef Renav-ation Elevillor Add0ion Safety Mar'Qor
Room Renovation
Land Purchase
Option Payments
F'ink Shell Lease Investment
MIS-SPdnggr Miller'96 Carryover
vpr-yiaid NV SYSICM
Co@Kulive SY-310M
MIS-Financial Sy-,tom
C;D@r'keling D21a Base $ymem Shirleys Property Aquisdion
Proj@ MGn2gement-Supervision PD@ CapitBi C;ll
CO(p Arquisition Dtpos4S-BoY4@ch/Pink Sh,li Corp Ac;quisdion Depo%@-Buck Key
c4orp Acquis4lon De@da-TradeMnds Corp Acquisition DePosds and Due
Oiligence
TOTAL PROJECT CAPEX
PROJECT CAPEX @ % OF TC)TAL R@NUE3
TOTAL, CAPIEX FOR
EXISTING PKOPERTIEs
TOTAL. CAPF-X AS % gf TOTAL R@VENUIEU
Re-foreca!n 012197 1997
$1.820
168
122
56
428
66
Prelim Budget
gi@7
) ?,)II
MD 3so 125 334 60 90 30 70 is 780 325 is
is
IU2 47
294 225
im
200
200
1.000
4,2 3.Bls
3.56% 3.02%
$0
112
2,150
30 '.(Xo
136
208
46
682 1,490
1,380
826
227
1,085 1,065
z,ow
241
230 20
24
475 50
85
425
90
190
lm
500
262
500
$6,784
5.67% 7,0-3'6
$11,042 ;iz.591
9.23% 10.05%
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JOINDLR TO SECQL4j) AMF-NDMENI
'nie UIIDERSIPED hereby join in THE Secoad AMIENDRNEIIT TO wech tEs Joinder is
attached for THE pur-pose of affirmiiig the provisions thereof
- ----------------------------- ---------------------------------
ALLEN 0. TEN BROEK
- -----------------------------
- ----------------------------- ---------------------------------
ROBER M TAYLOR
- -----------------------------
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FIRST AMENDMENT (CAPITAL IMPROVEMENTS) TO
-CONSOL, EN12ED AND RF,,STATE XNRM NQIE
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THIS FIRST AMENDMENT (CAPITAL MPROVEM.ENT), TO CONSOLDDATEP,
AM-ENDED AND RESTATED TERM NOTE (this "First Amendment"), dated as of the a@ day
of February, 1998, niodifies and arnends that ce@ consolidated, Amended and
Restated Term Note as follows-.
I . Section 3a (Payi-nent of Pi-incipal) is hereby amended to read
as follows:
3a. PAVMENT OF PRINCIPAL, The Principal amount of this Note shall be
payable to Agent for the account of Lender ia quarterly ixistaliments beginning
on March 31, 1997 (the "First INSTALLMENT PAYMENT DATE"), as follows:
(a) an aggregate Principal payment of $1,750,000.00 during the
Period beginning on the ]First Installment Payment Date, in four equal quarterly
payments of $437,500.00 each, each payment (an "INSTALLMENT PAYMENT") being made
on the last Business Day of such quartei- (such date, an "INSTALLMENT PAYMENT
DATE");
(b) an aggregate Principal payment of $1,200,000,00 during the
PeTiod I beginning on the fifth Installment Payn-ient Date, 'n two equal
quarterly payments of $550,000.00 each and two equal quazterly payments of
$50,000,00 each;
(c) an aggregate Principal payment of $2,700,000-00 duhng the
Period beginning ON the ninth Installment Payment Date, in fouz equal quarterly
payments of $675,QOO.00 each;
(d) an aggregate Principal payi-nent of $3,250,000.00 during the
Pefiod beginning on the thirteenth InstaHment Payment Date, in four equal
quarterly payments of $812,500.00 each; and
(e) an aggregate Principal payment of'$I,875,000.00 during the
Pen'od beginning on the Seventeenth Installment Payment Date, in two equal
quarterly payments of $937,500.00 each,
with the outstanding Principal balance of the Term Note being due and payable in
one payment of $29,225,000.00, together with any accumulated and unpaid interest
thereon, on the Maturity Date.
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IN WITNESS WHEREOF, the Borrower has executed tills First Amendment as of the
date written above,
BORROWER:
SOUTH SEAS RESOPT LMTED PARTNERSHIP,
an OHIO limited p@ership
By: SAN-CAP Resort, L.C., a Florida limited
liability company, its General Partner
By: /s/ Robert M. Taylor
-----------------------------------------
Robert M. Taylor, Manager
SOUTH SEAS PROPERTIES COMPANY LIMITED
PARTNERSHIP, an Ohio limited partnership
By: /s/ Robert M. Taylor
-----------------------------------------
Robert M. Taylor, Manager
MARCO SSP, LTD,, a Florida limited partnership
By: Marco SSP, Inc., its General Partner
RAL Partner
By: /s/ Robert M. Taylor
-----------------------------------------
Robert M. Taylor, Chairman
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SOUTH SEAS RESORTS COMPANY LIMITED
PARTNERSHIP, a Florida limited partnership
By: S.S. Resort Management, L.C., a Florida
limited liability company, its General Partner
By: /s/ Robert M. Taylor
-----------------------------------------
Robert M. Taylor, Manager
SAFETY HARBOR MANAGEMENT COMPANY,
LTD., a Florida limited partnership
By: S.S. Resort Management, L.C., a Florida
limited liability company, its General Partner
By: /s/ Robert M. Taylor
-----------------------------------------
Robert M. Taylor, Manager