AMENDMENT NO. 2 TO LOAN AGREEMENT
This Amendment No. 2 To Loan Agreement (the "Agreement") is entered
into to be effective as of the 24th day of June, 1996 by and between FINOVA
Capital Corporation, a Delaware corporation, formerly known as Greyhound
Financial Corporation, a Delaware corporation ("Lender") and Marco SSP,
Ltd., a Florida limited partnership ("Borrower").
RECITALS:
A. Borrower and Lender are parties to a Loan Agreement dated as
of September 23, 1994, as previously amended by Amendment No. 1 to Loan
Agreement dated as of December 12, 1994 (collectively, the "Loan
Agreement"), relating to a loan in an amount of up to $19,500,000 ("Loan").
B. As of the effective date of this Agreement, the outstanding
principal balance of the Loan is $19,090,711.45 (the "Existing Loan
Amount").
C. Borrower has requested, and Lender has agreed, subject to the
terms and conditions set forth in this Agreement, to convert $5,000,000 of
the Existing Loan Amount to a revolving line of credit so that Borrower may
prepay without penalty all or a portion of such amount and subsequently
have access to such funds when its working capital needs dictate. This is
not intended to constitute a new loan to the Borrower, but rather, the
conversion of a portion of the existing credit from a permanent to a
revolving facility.
NOW, THEREFORE, in consideration of the foregoing recitals and for
other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, Borrower and Lender hereby agree as follows:
AGREEMENT
1. Defined Terms. Except as otherwise defined herein or
unless the context otherwise requires, capitalized terms used in
this Agreement shall have the meaning given to them in the Loan
Agreement.
2. Amendments to Loan Agreement. So long as the conditions
precedent described in paragraph 4 of this Agreement are met to the
satisfaction of Lender, which satisfaction shall be evidenced by Lender's
execution of this Agreement (unless otherwise provided herein), the Loan
Agreement shall be modified and supplemented as follows:
2.1 The Loan, and the Existing Loan Amount shall be
bifurcated into two components comprised of:
(a) a "Permanent Loan" of $14,090,711.45 (the
"Permanent Loan Amount"); and
(b) a "Revolving Loan 11 of $5,000,000 (the
"Revolving Loan Amount").
2 . 2 As used in the Loan Agreement, the term "Loan Amount" is
hereby amended so as to refer to, collectively, at all times following the
date of this Agreement, the Permanent Loan Amount and the Revolving Loan
Amount.
2.3 As used in the Loan Agreement, the term "Note" is hereby
amended so as to refer to, at all times following the date of this
Agreement, the Amended And Restated Promissory Note of even date with this
Agreement, in the form attached hereto as Exhibit "All ("Amended Note").
2.4 The outstanding principal balance of the Permanent Loan shall
continue to accrue interest at the rate of Basic Interest described in
paragraph 1. 2 of the Loan Agreement; the outstanding principal balance of
the Revolving Loan shall bear interest at a new floating rate described in
the Amended Note, and therefore, the reference to the Note in the second
line of said paragraph 1.2 of the Loan Agreement is hereby amended so as to
refer to, at all times following the date of this Agreement, the Permanent
Loan.
2.5 Paragraph 2.3.1 of the Loan Agreement, which describes the
payment obligations with respect to the Loan, is at all times following the
date of this Agreement, @superseded by the payment provisions set forth in
the Amended Note.
2.6 The reference to "Basic Interest" appearing in paragraph
2.3.3 of the Loan Agreement is hereby amended so as to refer to, at all
times following the date of this Agreement, all interest accruing under the
Amended Note.
2.7 Paragraph 2.5, which governs prepayment of the Loan,
is hereby amended so as, in all respects, to refer only to the
Permanent Loan.
2.8 The provisions regarding the Revolving Loan set forth in
Section 3 below are deemed to supplement, and become a part of, the Loan
Agreement.
2.9 The address for notice to Lender under the Loan
Documents is amended to:
If to Lender: FINOVA Capital Corporation
(two copies) Vice President-Commercial Real Estate 7272 East
Indian School Road Suite 410
Scottsdale, Arizona 85251 Telecopy No.: 602-874-6444
with a copy to:
Vice President - Group Counsel
7272 East Indian School Road
Suite 410
Scottsdale, Arizona 85251
Telecopy No.: 602-874-6445
2.10 All references to Greyhound Financial Corporation set forth
in the Loan Documents shall hereinafter refer to "FINOVA Capital
Corporation."
3. Revolving Loan Terms. The following terms and conditions
shall define and govern the Revolving Loan:
3.1 Lender hereby agrees to make advances of the Revolving Loan
to Borrower, each of which shall be in an amount equal to the lesser of (a)
the amount requested in writing by Borrower, or'(b) the excess of (i) the
Revolving Loan Amount over (ii) the then outstanding principal balance of
the Revolving Loan ("Revolving Loan Availability"); subject, however, to
the following additional terms and conditions:
(a) No advances under the Revolving Loan shall be available
unless and until (i) Lender has received an endorsement to the Title Policy
dated after the recording of Amendment No. 2 to Mortgage evidencing that no
new liens or encumbrances have come of record with respect to the Property
since June 7, 1996, at 5: 00 p.m. , or (ii) if any lien or encumbrance has
come of record since such date, it is removed or bonded over to Lender's
satisfaction.
(b) At the time of the requested advance, there exists no monetary
or other material Event of Default or Incipient Default under the Loan
Documents;
(c) All advance requests shall be in writing and signed by
Borrower, and shall be for a minimum advance amount of $500,000;
(d) Borrower shall not be entitled to any advance when the
Revolving Loan Availability is less than $500,000;
(e) No more than six (6) advances on the Revolving
Loan shall be available to Borrower during any Loan Year;
(f) Advances on the Revolving Loan shall not be available during
the ninety (90) day period preceding theMaturity Date;
(g) The projected Debt Service Coverage Ratio after giving effect
to the requested advance shall be no less than 1.10:1.00. For purposes of
calculating such "projected" Debt Service Coverage Ratio, Lender shall
compare (i) Cash Flow as reported by the Borrower in the Required Financial
Information for the most recently ended four calendar quarters with (ii)
the aggregate Debt Service that will be due on the Permanent Loan and the
Revolving Loan for the first twelve full calendar months following the date
of the requested advance, assuming that the Revolver Rate (as defined
below) in effect at the time of the proposed advance does not change during
such twelve month period, and assuming there are no principal payments made
on the Revolving Loan during such twelve month period.
3.2 Interest shall accrue on the outstanding principal balance of
the Revolving Loan at a variable rate of interest more specifically
described in the Amended Note (the "Revolver
Rate"). The Borrower shall make interest-only payments of
accrued interest on the Revolving Loan in arrears on the first
day of each calendar month following the date of this
Agreement through the Maturity Date, whereupon the entire outstanding
principal balance of the Revolving Loan together with any and all accrued
and unpaid interest thereon shall be due and payable in full.
3.3 The Revolving Loan shall be due and payable in full at any
time Borrower tenders a prepayment of the Permanent Loan, and following any
such prepayment, advances on the Revolving Loan shall no longer be
available to Borrower.
3.4 On each anniversary of the date of this Agreement and on the
Due Date, Borrower shall pay to Lender a nonutilization fee equal to
one-quarter (.25) percent of the daily average unborrowed funds available
under the Revolving Loan over the preceding twelve months (or in the case
of the Due Date, since the last anniversary of the date of this Agreement).
3.5 Borrower will use the proceeds of all advances of
the Revolving Loan only for the Borrower's business purposes.
4. Conditions Precedent. The amendments described in this
Agreement, shall not be effective until the following conditions precedent
have been satisfied:
4.1 Borrower shall have delivered (or cause to be delivered) to
Lender the following documents and items, all of which are to be properly
completed, executed and otherwise satisfactory in form and substance to
Lender, in its sole discretion:
(a) this Agreement;
(b) the Amended Note;
(c) an Amendment No. 2 to Mortgage;
(d) amendments to the UCC Financing Statements reflecting Lender's new
name and address;
(e) a partnership resolution of Borrower authorizing its entry into this
Agreement and the transactions contemplated hereunder;
(f) a corporate resolution of Borrower's general partner
authorizing.,Borrower's entry into this Agreement and the transactions
contemplated hereunder; and
(g) an updated legal opinion from Borrower's counsel updating and
confirming the opinions set forth in its Opinion Letter delivered in
connection with the original Loan Closing, with respect to the Loan
Documents, as modified by this Agreement.
4.2 Borrower has paid to Lender a modification fee of
$10,000.
4.3 Borrower has paid to Lender $5,000.00 as a reimbursement to
Lender for outside counsel legal fees and expenses incurred in the
preparation, negotiation and consummation of this Agreement, and including
$624.56 of outside legal fees and costs incurred in connection with the
Subsequent Advance of the Loan made by Lender in November of 1995. If any
such expenses, or other costs relating to this Agreement such as title
endorsement premiums, recording and filing fees and the like, are not
reimbursed by Borrower to Lender as of the effective date of this
Agreement, Borrower hereby authorizes Lender to draw on the unfunded
portion of the Revolving Loan as a source for reimbursement so long as
Lender has given Borrower a written notice detailing the costs to be
reimbursed and giving Borrower five (5) Business Days to respond with any
objections or comments that it may have.
5. Indebtedness Acknowledged. Borrower acknowledges that the
indebtedness evidenced by the Loan Documents is just and owing and agrees
to pay the indebtedness in accordance with the terms of the Loan Documents.
Borrower further acknowledges and represents that no event has occurred and
no condition presently exists that would constitute an Event of Default or
Incipient Default under the Loan Documents.
6. Validity of Documents. Borrower reaffirms, acknowledges and
agrees that the Loan Agreement and the other Loan Documents represent
valid, enforceable and collectable obligations of ]Borrower, and that
Borrower presently has no existing claims, defenses (personal or otherwise)
or rights of setoff whatsoever with respect to the obligations of Borrower
under the Loan Agreement or any of the other Loan Documents.
7. Reaffirmation of Warranties. Borrower confirms and restates to
Lender as of the date hereof all its representations and warranties set
forth in the Loan Agreement, as amended hereby, and the other Loan
Documents. Borrower agrees that all liens and security interests granted
by it to Lender are reaffirmed for the benefit of Lender and shall secure
the Loan as modified hereby. Borrower further acknowledges that Lender has
performed, and is not in default of, its obligations under the Loan
Documents and that there are no offsets, defenses.,or counterclaims with
respect to any of Borrower's obligations under the Documents.
8. Ratification of Terms and Conditions. Borrower and Lender
hereby ratify and confirm the Loan Agreement and each of the other Loan
Documents, as amended and supplemented hereby, in all respects; and, except
as amended and/or supplemented hereby, all terms, conditions and provisions
of the Loan Agreement and each of the other Loan Documents shall continue
in full force and effect. In the event of any conf lict or inconsistency
between the terms and conditions of this Agreement and any of the Loan
Documents, the provisions of this Agreement shall control.
9. Miscellaneous.
9.1 This Agreement may not be amended or otherwise modif ied
except in a writing duly executed by the parties hereto.
9.2 If any one or more of the provisions of this Agreement is
held to be invalid, illegal or unenforceable in any respect or for any
reason (all of which invalidating laws are waived to the fullest extent
possible), the validity, legality and enforceability of any remaining
portions of such provision(s) in every other respect and of the remaining
provision(s) of this Agreement shall not be in any respect impaired.
9.3 This Agreement constitutes the entire agreement and
understanding of the parties with respect to the subject matter hereof and
supersedes all prior written or oral understandings and agreements between
the parties in connection therewith.
9.4 All Schedules and Exhibits referred to herein are
herein incorporated by this reference.
9.5 This Agreement may be executed in one or more counterparts,
and any number of which having been signed by all the parties hereto shall
be taken as one original.
Marco SSP, Ltd.,
a Florida limited partnership
By: Marco SSP, Inc., a Florida corporation, its General Partner
By: ____________________________
Robert M. Taylor, Its Chairman
FINOVA Capital Corporation,
a Delaware corporation, formerly known as
Greyhound Financial Corporation
By: ____________________________
Its _________
Exhibit A - Amended and Restated Promissory Note
Exhibit B - Amendment No. 2 to Mortgage
Acknowledgement and Consent of Subordinating Parties
The undersigned, being the Subordinating Parties under that
certain Subordination and Standstill Agreement ("Affiliates") dated
September 23, 1994 in favor of Lender, hereby acknowledge and agree to the
foregoing Amendment and further acknowledge that the Indebtedness described
in such Subordination and Standstill Agreement (to which any claims of the
Subordinating Parties against Borrower are subordinated) is hereinafter
deemed to include the full amount of the Permanent Loan and Revolving Loan
and all other obligations of Borrower arising under the Loan Documents, as
modified pursuant to the foregoing Agreement.
Marco SSP, Inc.,
a Florida corporation
By: ____________________________
Robert M. Taylor, Its Chairman
South Seas Properties Company Limited Partnership, an Ohio limited
partnership
By: T&T Resorts, L.C., a Florida limited liability company, its general
partner
By: ____________________________
Robert M. Taylor, Its Chairman
South Seas Resorts Company Limited Partnership, a Florida limited
partnership
By: S. S. Resort Management, L.C.,
Its General Partner
By: ____________________________
Robert M. Taylor, Its Chairman
____________________________
Robert M. Taylor
____________________________
Allen G. Ten Broek
Acknowledgement and Consent of Guarantor
The undersigned hereby acknowledges and consents to the foregoing
Amendment No. 2 and further restates and reaffirms its guarantee of the
Loan, as amended by the foregoing Amendment No. 2,
pursuant to its Guaranty and Subordination Agreement in favor of Lender
dated September 23, 1994.
South Seas Properties Company Limited
Partnership, an Ohio limited partnership
By: T&T Resorts, L.C., a Florida limited liability company,
its general partner
By: ____________________________
Robert M. Taylor
Its Chairman EXHIBIT "A"
AMENDED AND RESTATED PROMISSORY NOTE
U.S. $19,500,000 September 23,-1994
Amended And Restated
as of June 24, 1996
FOR VALUE RECEIVED, the undersigned Marco SSP, Ltd., a Florida
limited partnership (the "Maker"), promises to pay to FINOVA Capital
Corporation, a Delaware corporation, formerly known as Greyhound Financial
Corporation ("Lender"), or order, at its principal offices at 7272 East
Indian School Road, Suite 410, Scottsdale, Arizona 85251, or at such other
place as the holder of this Note ("Holder") may from time to time,designate
in writing, in lawful money of the United States of America, the principal
sum of NINETEEN MILLION FIVE HUNDRED THOUSAND UNITED STATES DOLLARS
($19,500,000) (the "Loan") or so much thereof as has been disbursed and not
repaid, together with interest on the unpaid principal balance from time to
time outstanding from the date hereof until paid, as more fully provided
for below. All payments hereunder shall be made in immediately available
funds.
This Note amends and restates a Promissory Note executed by Maker
and delivered to Lender pursuant to a Loan Agreement dated as of September
23, 1994 between Maker and Lender. This Note has been executed by Maker
and delivered to Lender pursuant to such Loan Agreement as modified by
Amendment No. 1 To Loan Agreement dated as of December 12, 1994 and
Amendment No. 2 To Loan Agreement ("Amendment No. 211) of even date
herewith (together with any-and all extensions, renewals, modifications and
restatements thereof, "Loan Agreement") and evidences advances of the
Permanent Loan -and the Revolving Loan (collectively, the "Loan") as
defined i.n---and made pursuant to the Loan Agreement. Maker and Lender
agree to make reference to the original Promissory Note dated September 23,
1994 for purposes of defining the terms upon which interest on the Loan
accrued and payments of principal and interest on the Loan were due at all
times prior to the date of this Note. The term "Business Day," as used
herein, shall have the meaning prescribed in the Loan Agreement.
BASIC INTEREST - PERMANENT LOAN
Except as otherwise provided herein, interest ("Basic Interest")
shall accrue on the outstanding principal balance of that component of the
Loan described in Amendment No. 2 as the Permanent Loan at a f ixed rate
per annum equal to ten and eight tenths percent (10. 800-.) . Basic
Interest shall be calculated on the basis of actual number of days elapsed
during the period for which interest is being charged predicated on a year
consisting of 360 days.
VARIABLE INTEREST - REVOLVING LOAN
Except as otherwise provided herein, interest ("Variable
Interest") shall accrue on the outstanding balance of that component of the
Loan described in Amendment No. 2 as the Revolv--a'mg Loan initially at an
annual rate ("Initial Interest Rate") equal to Prime (as hereinafter
defined) in effect on the date of the initial advance ("Advance") of the
Revolving Loan ("Initial Prime") plus two hundred (200) basis points,
subject to adjustment on each Interest Rate Change Date (as hereinafter
defined) , but in no ev@nt to exceed the maximum contract rate permitted
under the Applicable Usury Law (as hereinafter defined) . The interest rate
shall change on each Interest Rate Change Date by adding to or subtracting
from the Initial Interest Rate, as the case may be, the change, if any,
between Initial Prime and Prime in effect on the applicable Interest Rate
Change Date. As used in this Note, the following capitalized terms have
the meaning set forth opposite them below:
"Prime" shall mean the rate of interest publicly announced, from time to
time, by Citibank N.A., New York, New York ("Citibank"), as the Citibank
base rate, notwithstanding the fact that some borrowers of Citibank may
borrow from Citibank at rates of interest less than such announced rate; or
if Citibank ceases to publish such rate, such other published rate
("Alternative Reference Rate") as Holder shall deem comparable in its sole
and absolute discretion; and
"Interest Rate Change Date" means: (a) the first business day of Citibank
during each calendar month following the date of the initial advance of the
Revolving Loan; or (b) if the Alternative Reference Rate is being utilized,
the first business day of the publisher of the Alternative Reference Rate
during each calendar month following the date of such initial advance.
Except following an acceleration, or in circumstances where Holder
has exercised the option reserved to it in the following sentence, payments
of principal, interest and any other amounts due and payable hereunder
shall, at the option of Holder, earn interest after they are due at a rate
("Overdue Rate") equal to (a) four hundred (400) basis points above the
rate of Basic Interest and Variable Interest otherwise payable hereunder,
or (b) the maximum contract rate permitted under the Applicable Usury Law,
whichever of (a) or (b) is lesser. At the option of Holder, while an Event
of Default (as that term is defined in the Loan Agreement) exists, and in
all events after an acceleration of the Note by Holder, interest shall
accrue on the entire outstanding principal balance of this Note at the
Default Rate (as defined in the Loan Agreement). Notwithstanding anything
in this Note to the contrary, interest on any overdue amounts at the
Overdue Rate shall cease accruing at any time that interest at the Default
Rate commences to accrue on the outstanding balance due hereunder.
The contracted for rate of interest of the Loan contemplated
hereby, without limitation, shall consist of the following: (i) Basic
Interest and Variable Interest, calculated in accordance with the
provisions of this Note; (ii) the Overdue Rate, calculated and applied to
the overdue payments under this Note in accordance-w-ith the provisions
hereof; (iii) the Default Rate, calculated and applied to the principal
balance of this Note in accordance with the provisions of the Loan
Agreement; (iv) any late charge calculated and applied to an overdue
payment in accordance with the provisions hereof; (v) the Prepayment
Premium (as defined in the Loan Agreement); (vi) the Loan Fee, in the
amount of $292,500 described in the Loan Agreement; (vii) the modification
fee of $10,000 described in Amendment No. 2 to Loan Agreement; and (viii)
all Additional Sums (as hereinafter defined) if any. Maker agrees to pay
an effective contracted for rate of interest which is the sum of the
above-referenced elements but in no event to exceed the maximum contract
rate permitted under the Applicable Usury Law (as defined below). All
fees, charges, goods, things in action or any other sums or things of value
(other than amounts described in (i), (ii), (iii), (iv), (v), (vi) and
(vii) hereof), pursuant to this Note, the Loan Agreement, the other Loan
Documents or any other documents or instruments in any way pertaining to
this lending transaction, or otherwise with respect to this lending
transaction, that under any applicable law may be deemed to be interest
with respect to this lending transaction, for the purpose of any applicable
law that may limit the maximum amount of interest to be charged with
respect to this lending transaction (the "Additional Sums"), shall be
payable by Maker as, and shall be deemed to be, additional interest, and
for such purposes only, the agreed upon and "contracted for rate of
interest" of this lending transaction shall be deemed to be increased by
the rate of interest resulting from the Additional Sums.
PAYMENTS - PERMANENT LOAN
Commencing on the first day of the first full month following the
date of this Note, and on the first day of each calendar month thereafter
through the first to occur of the Maturity Date or repayment of this Note,
Maker shall remit monthly payments consisting of (a) principal based upon
the amortization schedule attached hereto as "Schedule l, and (b) accrued
Basic Interest on the actual outstanding principal balance of the Permanent
Loan, in arrears.
PAYMENT - REVOLVING LOAN
Commencing on the first day of the first full calendar month
following the date hereof, and on the first day of each calendar month
thereaf ter until the Maturity Date, Maker shall remit to Holder monthly
payment consisting of Variable Interest on the outstanding principal
balance of the Revolving Loan.
All payments under this Note shall be applied first to any late
charge or other fees, then to accrued but unpaid Basic Interest, then to
any other amounts due and payable hereunder or under the Loan Agreement,
and the balance, if any, to outstanding principal.
On the Due Date (as hereinafter defined) , the entire unpaid
principal balance of this Note, all accrued and unpaid Basic Interest and
Variable Interest, and all other charges or amounts owing in connection
with the Loan shall be due and payable in ful-1. The Due Date shall mean
the earlier of (i) the Maturity Date; (ii) the date of satisfaction of the
Loan through pre-payment by the Maker pursuant to the Loan Agreement; or
(iii) the date on which Lender or Holder accelerates payment of the Loan
due to an Event of Default (as defined in the Loan Agreement) by the Maker.
If any installment of principal, interest or any other payment
required to be made in connection with the Loan is not paid when due and,
except in the case of the final installment for which no grace period is
allowed, such breach continues for three (3) Business Days, or upon the
occurrence of any other Event of Default (as defined in the Loan
Agreement), Holder may at its option, without notice or demand, declare
immediately due and payable the entire unpaid principal balance hereof, all
accrued and unpaid Basic Interest and Variable Interest thereon, any
prepayment premium required under the Loan Agreement, and all other
obligations owing in connection with the Loan.
In the event that any monthly installment of principal and
interest shall not be paid within ten (10) Business Days of the date when
due, a "late charge" of two percent (2.0%) of the late payment may be
charged by the Holder for the purposes of defraying the expense incident to
handling such delinquent payments. Such late charge represents the
reasonable estimate of Maker and Lender of a fair average compensation for
the loss which may be sustained by Lender due to the failure of the Maker
to make timely payments. All late charges shall be due and payable monthly
on the same dates provided herein for the payment of installments.
Except as expressly provided in Section 2.5 of the Loan Agreement,
prepayment of the Permanent Loan will not be permitted in whole or in part.
Holder shall not by any act or omission be deemed to have waived
any of its rights or remedies hereunder unless such waiver be in writing
and signed by an authorized officer of Holder and then only to the extent
specifically set forth therein; a waiver on one occasion shall not be
construed as continuing or as a bar to or waiver of such right or remedy on
any other occasion. All remedies conferred upon Holder by this Note, the
Loan Agreement, or any other instrument or agreement related hereto shall
be cumulative and none is exclusive, and such remedies may be exercised
concurrently or consecutively at Holder's option.
If Holder undertakes to collect this Note, Maker will pay to
Holder in addition to any indebtedness due and unpaid, all costs and
expenses of collection, including, without limitation, attor- neys' fees
and expert witnesses' fees, whether or not legal proceedings shall be
instituted. In the event Holder institutes legal proceedings to enforce
this Note, the award of costs of collection, including attorneys' fees,
shall be made by the court (and not by a jury).
Maker, and every person or entity at any time liable for the
payment of the indebtedness evidenced by this Note, hereby abso- lutely
waive: presentment for payment, protest and demand; notice of dishonor,
protest, demand and nonpayment of this Note; and each and every other
notice of any kind except for notices expressly provided in this Note or in
any of the other documents securing payment of, or otherwise related to,
this Note. Maker and every such person or entity further consent to
renewals or extensions of the payment of any sums to be paid under this
Note at any time and from time to time, without limit as to the number or
aggregate period of such renewals or extensions, at the request of any
other person or entity liable for them. Any such renewals or extensions
may be made without notice to,any person or entity liable for the payment
of the indebtedness evidenced by this Note.
This Note is given and accepted as evidence of indebtedness
only and not in payment or satisfaction of any indebtedness or obligation.
Time is of the essence with respect to all of Maker's
obligations and agreements under this Note.
This Note and all its provisions, conditions, promises and
covenants shall be binding upon Maker, and its successors and assigns,
provided nothing herein shall be deemed Holder's consent to any assignment
restricted or prohibited by the terms of the Loan Agreement. If more than
one person or entity has executed this Note as Maker, the obligations of
such persons and entities shall be joint and several.
If any one or more of the provisions contained in this Note shall
be held invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions shall not in any
way be affected or impaired thereby; provided that where the provisions of
any invalidating law may be waived, they are waived by Maker to the fullest
extent possible.
THIS NOTE AND THE RIGHTS, DUTIES AND OBLIGATIONS OF THE PARTIES
HERETO SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL
LAWS OF THE STATE OF ARIZONA AND TO THE EXTENT
THEY PREEMPT THE LAWS OF SUCH STATE, THE LAWS OF THE UNITED STATES.
MAKER: (A) HEREBY IRREVOCABLY SUBMITS ITSELF TO THE PROCESS,
JURISDICTION AND VENUE OF THE COURTS OF THE STATE OF ARIZONA, MARICOPA
COUNTY, AND TO THE PKOCESS, JURISDICTION, AND VENUE OF THE UNITED STATES
DISTRICT COURT FOR THE DISTRICT OF ARIZONA, FOR THE PURPOSES OF SUIT,
ACTION OR OTHER PROCEEDINGS ARISING OUT OF OR RELATING TO THIS NOTE OR THE
SUBJECT MATTER HEREOF (EXCEPT AS MAY BE SPECIFICALLY PROVIDED TO THE
CONTRARY IN THE MORTGAGE), OR, IF HOLDER INITIATES SUCH ACTION ANY COURT IN
WHICH HOLDER SHALL INITIATE SUCH ACTION AND THE CHOICE OF SUCH VENUE SHALL
IN ALL I NSTANCES BE AT HOLDERIS ELECTION; AND (B) WITHOUT LIMITING THE
GENERALITY OF THE FOREGOING, HEREBY WAIVES AND AGREES NOT TO ASSERT BY WAY
OF MOTION, DEFENSE OR OTHERWISE IN ANY SUCH SUIT, ACTION OR PROCEEDING ANY
CLAIM THAT MAKER IS NOT PERSONALLY SUBJECT TO THE JURISDICTION OF THE
ABOVE-NAMED COURTS, THAT SUCH SUIT, ACTION OR PROCEEDING IS BROUGHT IN AN
INCONVENIENT FORUM OR THAT THE VENUE OF SUCH SUIT, ACTION OR PROCEEDING IS
IMPROPER. MAKER HEREBY WAIVES THE RIGHT TO COLLATERALLY ATTACK ANY OMGMENT
OR ACTION IN ANY OTHER FORUM.
LENDER AND MAKER ACKNOWLEDGE AND AGREE THAT ANY CONTROVERSY WHICH
MAY ARISE UNDER ANY OF THE LOAN DOCUMENTS WOULD BE BASED UPON DIFFICULT AND
COMPLEX ISSUES AND THEREFORE, THE PARTIES AGREE THAT ANY LAWSUIT ARISING
OUT OF ANY SUCH CONTROVERSY SHALL BE TRIED BY A JMGE SITTING WITHOUT A
JURY, AND MAKER HEREBY KNOWINGLY AND VOLUNTARILY WAIVES TRIAL BY JURY IN
ANY SUCH PROCEEDING.
ALL OF THE PROVISIONS SET FORTH ABOVE ARE A MATERIAL
INDUCEMENT FOR LENDER'S MAKING THE LOAN TO MAKER.
MAKER'S Initials
It is the intent of the parties to comply with the applicable
usury law ("Applicable Usury Law") chosen by Maker and Lender in the
preceding paragraph, or any other usury law applicable. Accordingly, it is
agreed that notwithstanding any provisions to the contrary in this Note,
the Loan Agreement, or in any of the documents securing payment hereof or
otherwise relating hereto, in no event shall this Note or such documents
require the payment or permit the collection of interest in excess of the
maximum contract rate permitted by the Applicable Usury Law. If (a) any
such excess of interest otherwise would be contracted for, charged or
received from Maker or otherwise in connection with the Loan evidenced
hereby, or (b) the maturity of the indebtedness evidenced by this Note is
accelerated in whole or in part, or (c) all or part of the principal or
interest of this Note shall be prepaid, so that under any of such
circumstances the amount of interest contracted for, charged or received in
connection with the Loan evidenced hereby, would exceed the maximum
contract rate permitted by the Applicable Usury Law, then in any such
event: (1) the provisions of this paragraph shall govern and control; (2)
neither Maker nor any other
person or entity now or hereafter liable for the payment hereof will be
obligated to pay the amount of such interest to the extent that it is in
excess of the maximum contract rate permitted by the Applicable Usury Law;
(3) any such excess which may have been collected shall be either applied
as a credit against the then unpaid principal amount hereof or refunded to
Maker, at the Holder's option; and (4) the effective rate of interest will
be automatically reduced to the maximum amount of interest permitted by the
Applicable Usury Law. It is further agreed, without limiting the
generality of the foregoing, that to the extent permitted by the Applicable
Usury Law: (x) all calculations of the rate of interest which are made for
the purpose of determining whether such rate would exceed the maximum
contract rate permitted by the Applicable Usury Law shall be made by
amortizing, prorating, allocating and spreading during the period of the
full stated term of the Loan, all interest at any time contracted for,
charged or received from Maker or otherwise in connection with such Loan;
and (y) if the effective rate of interest on the Loan should at any time
exceed the maximum contract rate allowed under the Applicable Usury Law,
such excess interest that would otherwise have been collected had there
been no ceiling imposed by the Applicable Usury Law shall be paid to Holder
from time to time, if and when the effective interest rate on the Loan
otherwise falls below the maximum amount permitted by the Applicable Usury
Law, to the extent that interest paid to the date of calculation does not
exceed the maximum contract rate permitted by the Applicable Usury Law,
until the entire amount of interest which would have otherwise been
collected had there been no ceiling imposed by the Applicable Usury Law has
been paid in full. Maker further agrees that should the maximum contract
rate permitted by the Applicable Usury Law be increased at any time
hereafter because of a change in the law, then to the extent not prohibited
by the Applicable Usury Law, such increases shall apply to all indebtedness
evidenced hereby regardless of when incurred; but, again to the extent not
prohibited by the Applicable Usury Law, should the maximum contract rate
permitted by the Applicable Usury Law be decreased because of a change in
the law, such decreases shall not apply to the indebtedness evidenced
hereby regardless of when incurred.
Maker warrants and represents that the loan evidenced hereby
is for business or investment purposes.
This Note is secured by, among other things, a Mortgage (With
Security Agreement, Assignment of Leases and Rents and Fixture Filing)
encumbering real and personal property owned by Maker and located in Marco
Island, Florida.
MAKER:
STATE OF
) Ss.
County of
Marco SSP, Ltd., a Florida
limited partnership
By: Marco SSP, Inc.,
a Florida corporation Its General Partner
By:
Print Name:
Its:
Tax I.D. No.:
The foregoing instrument was acknowledged before me this
day of June, 1996, by the of
Marco SSP, Inc., a Florida corporation, the General Partner of Marco SSP,
Ltd., a Florida limited partnership, for and on behalf of the limited
partnership. He/she is personally known to me or has produced as
identification.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
My commission expires:
Notary Public
EXHIBIT "B"
WHEN RECORDED RETURN TO:
DECONCINI McDONALD BRAMMER
YETWIN & LACY, P.C.
ATTN: Gregory W. Huber, Esq.
2901 N. Central Ave., Suite 1644
Phoenix, AZ 85012-2736
AMENDMENT NO. 2 TO MORTGAGE
This Amendment No. 1 to Mortgage (the "Amendment") is entered into to be
effective as of the 24th day of June, 1996, by and between Marco SSP,
Ltd.,a Florida limited partnership, ("Mortgagor"), and FINOVA Capital
Corporation, a Delaware corporation, formerly known as Greyhound Financial
Corporation, a Delaware corporation ("Mortgagee").
RECITALS:
A. Mortgagee and Mortgagor entered into a Loan Agreement dated September
23, 1994, as amended by an Amendment No. 1 To Loan Agreement dated December
12, 1994 (collectively, "Loan Agreement")
that evidences a loan from Mortgagee to Mortgagor (the "Loan").
B. The Loan is secured by, among other things, a Mortgage,
Assignment of Rents and Security Agreement dated September 23 1994, and
recorded September 23, 1994, in the real estate records of the Collier
County, Florida, in Official Record Book 1988, Page 0056 between Mortgagor
and Greyhound Financial Corporation, as amended by Amendment No. 1 to
Mortgage, Assignment of Leases and Rents and Security Agreement dated
November 13, 1995 and recorded in the real estate records of the Collier
County, Florida on November 22, 1995, in Official Record Book 2122, Page
0277("Mortgage"). The Mortgage encumbers certain real property and
improvements located in Collier County, Florida, as more specifically
described on Exhibit B attached hereto and incorporated herein by this
reference.
C. Pursuant to an Amendment No. 2 to Loan Agreement dated as of
even date herewith, $5,000,000.00 of the original Loan Amount has been
converted into a revolving line of credit which Mortgagor may pay down
(without penalty) and redraw throughout the original term of the Loan, and
in connection therewith, Mortgagor has executed and delivered to Mortgagee
an Amended And Restated Promissory Note, a copy of which is attached hereto
as Exhibit "A"
and which replaces the Note originally secured by the Mortgage. Mortgagor
and Mortgagee wish to amend the Mortgage to confirm that the Mortgage
secures the obligations of Mortgagee, as amended.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing Recitals, the covenants
contained herein and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, Mortgagee and Mortgagor
agree as follows:
1. Without limiting the generality of any other provision
contained in the Mortgage, Mortgagor conf irms that the Mortgage secures
(and the Mortgagor's "Indebtedness" as that term is used in the Mortgage
include) payment and performance of the obligations of Mortgagor under the
Loan Agreement as amended by the Amendment No. 2 to Loan Agreement dated as
of even date herewith, and any and all amendments, replacements or
restatements thereof, as well as Mortgagor's obligations under the Amended
And Restated Promissory Note of even date herewith in the form of Exhibit
"A" hereto executed by Mortgagor and delivered to Mortgagee.
2 . Mortgagor and Mortgagee hereby ratify and confirm the
Mortgage, as amended hereby, in all respects; and, except as amended
hereby, the Mortgage shall remain in full force and effect.
3. This Amendment may he executed in counterpart, and any number
of such counterparts which have been executed by all persons whose
signatures are required below shall constitute one original.
IN WITNESS WHEREOF, this instrument is executed as of th day
and year first above written.
MORTGAGOR Marco SSP, Ltd.,
a Florida limited partnership
By: Marco SSP, Inc., a Florida corporation, its General Partner
By:
Print Name:
Title:
MORTGAGEE
STATE OF
) Ss.
County of
FINOVA Capital Corporation,
a Delaware corporation, formerly known as
Greyhound Financial Corporation
By:
Print Name:
Title:
The foregoing instrument was acknowledged before me this
day of June, 1996, by the of
Marco SSP, Inc., a Florida corporation, the General Partner of Marco SSP,
Ltd., a Florida limited partnership, for and on behalf of the limited
partnership. He/she is personally known to me or
has produced as identification.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
My commission expires:
Notary Public
STATE OF ARIZONA
) Ss.
County of Maricopa)
The foregoing instrument was acknowledged before me this
day of 1996, by
of FINOVA Capital Corporation, a Delaware corporation, formerly
known as Greyhound Financial Corporation,-on behalf of said corporation.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
Notary Public
My commission expires:
AMENDED AND RESTATED PROMISSORY NOTE
U.S. $19,500,000 September 23, 1994
7
Amended And Restated
as of June 24, 1996
FOR VALUE RECEIVED, the undersigned Marco SSP, Ltd., a F or@ida
limited partnership (the "Maker") , promises to pay to FI140VA Capital
Corporation, a Delaware corporation, formerly known as Greyhound Financial
Corporation ("Lender") , or order, at its principal offices at 7272 East
Indian School Road, Suite 410, Scottsdale, Arizona 85251, or at such other
place as the holder of this Note ("Holder") may from time to time designate
in writing, in lawful money of the United States of America, the principal
sum of NINETEEN MILLION FIVE HUNDRED THOUSAND UNITED STATES DOLLARS ($19,
500, 000) (the "Loan") or so much thereof as has been disbursed and not
repaid, together with interest on the unpaid principal balance from time to
time outstanding from the date hereof until paid, as more fully provided
for below. All payments hereunder shall be made in immediately available
funds.
This Note amends and restates a Promissory Note executed by Maker
and delivered to Lender Pursuant to a Loan Agreement dated as of September
23, 1994 between Maker and Lender. This Note has been executed by Maker
and delivered to Lender pursuant to such Loan Agreement as modified by
Amendment No. 1 To Loan Agreement dated as of December 12, 1994 and
Amendment No. 2 To Loan Agreement ("Amendment No. 211) of even date
herewith (together with any and all extensions, renewals, modifications and
restatements thereof, "Loan Agreement") and evidences advances of the
Permanent Loan and the Revolving Loan (collectively, the "Loan") as defined
in and made pursuant to the Loan Agreement. Maker and Lender agree to make
reference to the original Promissory Note dated September 23, 1994 for
purposes of defining the terms upon which interest on the Loan accrued and
payments of principal and interest on the Loan were due at all times prior
to the date of this Note. The term "Business Day," as used herein, shall
have the meaning prescribed in the Loan Agreement.
BASIC INTEREST - PERMANENT LOAN
Except as otherwise provided herein, interest ("Basic Interest")
shall accrue on the outstanding principal balance of that component of the
Loan described in Amendment No. 2 as the Permanent Loan at a f ixed rate
per annum equal to ten and eight tenths percent (10.80%). Basic Interest
shall be calculated on the basis of actual number of days elapsed during
the period for which interest is being charged predicated on a year
consisting of 360 days.
VARIABLE INTEREST - REVOLVING LOAN
Except as otherwise provided herein, interest ("Variable
Interest") shall accrue on the outstanding balance of that qomponent of the
Loan described in Amendment No. 2 as the Revolv-ing Loan initially at an
annual rate ("Initial Interest Rate") equal-to Prime (as hereinafter
defined) in effect on the date of the initial advance ("Advance") of the
Revolving Loan ("Initial Prime") plus two hundred (200) basis points,
subject to adjustment on - each Interest Rate Change Date (as hereinafter
defined) , but in no event to exceed the maximum contract rate permitted
under the Applicable Usury Law (as hereinafter defined) . The interest rate
shall change on each Interest Rate Change Date by adding to or subtracting
from the Initial Interest Rate, as the case may be, the change, if any,
between Initial Prime and Prime in effect on the applicable Interest Rate
Change Date. As used in this Note, the following capitalized terms have
the meaning set forth opposite them below:
"Prime" shall mean the rate of interest publicly announced, from time to
time, by Citibank, N.A., New York, New York ("Citibank"), as the Citibank
base rate, notwithstanding the fact that some borrowers of Citibank may
borrow from Citibank at rates of interest less than such announced rate; or
if Citibank ceases to publish such rate, such other published rate
("Alternative Reference Rate") as Holder shall deem comparable in its sole
and absolute discretion; and
"Interest Rate Change Date" means: (a) the first business day of Citibank
during each calendar month following the date of the initial advance of the
Revolving Loan; or (b) if the Alternative Reference Rate is being utilized,
the first business day of the publisher of the Alternative Reference Rate
during each calendar month following the date of such initial advance.
Except following an acceleration, or in circumstances where Holder
has exercised the option reserved to it in the following sentence, payments
of principal, interest and any other amounts due and payable hereunder
shall, at the option of Holder, earn interest after they are due at a rate
("Overdue Rate") equal to (a) four hundred (400) basis points above the
rate of Basic Interest and Variable Interest otherwise payable hereunder,
or (b) the maximum contract rate permitted under the Applicable Usury Law,
whichever of (a) or (b) is lesser. At the option of Holder, while an Event
of Default (as that term is defined in the Loan Agreement) exists, and in
all events after an acceleration of the Note by Holder, interest shall
accrue on the entire outstanding principal balance of this Note at the
Default Rate (as defined in the Loan Agreement) . Notwithstanding anything
in this Note to the contrary, interest on any overdue amounts at the
Overdue Rate shall cease accruing at any time that interest at the Default
Rate commences to accrue on the outstanding balance due hereunder.
The contracted for rate of interest of the Loan contemplated
hereby, without limitation, shall consist of the following: (i) Basic
Interest and Variable Interest, calculated in accordance with the
provisions of this Note; - (ii) the Overdue Rate, calculated and applied to
the overdue payments under this Note in accordance-with the provisions
hereof; (iii) the Default Rate, calculated and applied to the principal
balance of this Note in accordance with the provisions of the Loan
Agreement; (iv) any late charge calculated and applied to an overdue
payment in accordance with the provisions hereof; (v) the Prepayment
Premium (as defined in the
Loan Agreement)(vi) the Loan Fee, in the amount of $292,500
described in the Loan Agreement; (vii) the modification fee of
$10,000 described in Amendment No. 2 to Loan Agreement; and (viii)
all Additional Sums (as hereinafter defined) , if any. Maker agrees to pay
an effective contracted for rate of interest which is the sum of the
above-referenced elements but in no event to exceed the maximum contract
rate permitted under the Applicable Usury Law (as defined below). All
fees, charges, goods, things in action or any other sums or things of value
(other than amounts described in (i) , (ii), (iii), (iv), (v), (vi) and
(vii) hereof), pursuant to this Note, the Loan Agreement, the other Loan
Documents or any other documents or instruments in any way pertaining to
this lending transaction, or otherwise with respect to this lending
transaction, that under any applicable law may be deemed to be interest
with respect to this lending transaction, for the purpose of any applicable
law that may limit the maximum amount of interest to be charged with
respect to this lending transaction (the "Additional Sums"), shall be
payable by Maker as, and shall be deemed to be, additional interest, and
for such purposes only, the agreed upon and "contracted for rate of
interest" of this lending transaction shall be deemed to be increased by
the rate of interest resulting from the Additional Sums.
PAYMENTS - PERMANENT LOAN
Commencing on the first day of the first full month following the
date of this Note, and on the first day of each calendar month thereaf ter
through the f irst to occur of the Maturity Date or repayment of this Note,
Maker shall remit monthly payments consisting of (a) principal based upon
the amortization schedule attached hereto as "Schedule 1", and (b) accrued
Basic Interest on the actual outstanding principal balance of the Permanent
Loan, in arrears.
PAYMENT - REVOLVING LOAN
Commencing on the first day of the first full calendar month
following the date hereof, and on the first day of each calendar month
thereafter until the Maturity Date, Maker shall remit to Holder monthly
payment consisting of Variable Interest on the outstanding principal
balance of the Revolving Loan.
All payments under this Note shall be applied first to any late
charge or other fees, then to accrued but unpaid Basic Interest, then to
any other amounts due and payable hereunder or under the Loan Agreement,
and the balance, if any, to outstanding principal.
On the Due Date (as hereinafter defined) , the entire unpaid
principal balance of this Note, all accrued and unpaid Basic Interest and
Variable Interest, and all other charges or amounts owing in connection
with the Loan shall be due and payable in full. The Due Date shall mean
the earlier of (i) the Maturity Date; (ii) the date of satisfaction of the
Loan through pre-payment by the Maker pursuant to the Loan Agreement; or
(iii) the date on which Lender or Holder accelerates payment of the Loan
due to an Event of Default (as defined in the Loan Agreement) by the Maker.
If any installment of principal, interest or any other payment
required to be made in connection with the Loan is not paid when due and,
except in the case of the final installment for which no grace period is
allowed, such breach continues for three (3) Business Days, or upon the
occurrence of any other Event of Default (as def ined in the Loan
Agreement) , Holder may at its option, without notice or demand, declare
immediately due and payable the entire unpaid principal balance hereof, all
accrued and unpaid Basic Interest and Variable Interest thereon, any
prepayment premium required under the Loan Agreement, and all other
obligations owing in connection with the Loan.
In the event that any monthly installment of principal and
interest shall not be paid within ten (10) Business Days of the date when
due, a "late charge" of two percent (2.0%) of the late payment may be
charged by the Holder for the purposes of defraying the expense incident to
handling such delinquent payments. Such late charge represents the
reasonable estimate of Maker and Lender of a fair average compensation for
the loss which may be sustained by Lender due to the failure of the Maker
to make timely payments. All late charges shall be due and payable monthly
on the same dates provided herein for the payment of installments.
Except as expressly provided in Section 2. 5 of the Loan
Agreement, prepayment of the Permanent Loan will not be permitted in whole
or in part.
Holder shall not by any act or omission be deemed to have waived
any of its rights or remedies hereunder unless such waiver be in writing
and signed by an authorized officer of Holder and then only to the extent
specifically set forth therein; a waiver on one occasion shall not be
construed as continuing or as a bar to or waiver of such right or remedy on
any other occasion. All remedies conferred upon Holder by this Note, the
Loan Agreement, or any other instrument or agreement related hereto shall
be cumulative and none is exclusive, and such remedies may be exercised
concurrently or consecutively at Holder's option.
If Holder undertakes to collect this Note, Maker will pay to
Holder in addition to any indebtedness due and unpaid, all debts and
expenses of collection, including, without limitation, attor- neys, fees
and expert witnesses' fees, whether or not legal proceedings shall be
instituted. In the event Holder institutes legal proceedings to enforce
this Note, the award of costs of collection, including attorneys' fees,
shall be made by the court (and not by a jury).
Maker, and every person or entity at any time liable for the
payment of the indebtedness evidenced by this Note, hereby abso- lutely
waive: presentment for payment, protest and demand; notice of dishonor,
protest, demand and nonpayment of this Note; and each and every other
notice of any kind except for notices expressly provided in this Note or in
any of the other documents securing payment of, or otherwise related to,
this Note. Maker and every such person or entity further consent to
renewals or extensions of the payment of any sums to be paid under this
Note at any time and from time to time, without limit as to the number or
aggregate period of such renewals or extensions, at the request of any
other person or entity liable for them. Any such renewals or extensions
may be made without notice to any person or entity liable for the payment
of the indebtedness evidenced by this Note.
This Note is given and accepted as evidence of indebtedness only
and not in payment or satisfaction of any indebtedness or
obligation.
Time is of the essence with respect to all of Maker's obligations and
agreements under this Note.
This Note and all its provisions, conditions, promises and
covenants shall be binding upon Maker, and its successors and assigns,
provided nothing herein shall be deemed Holder's consent to any assignment
restricted or prohibited by the terms of the Loan Agreement. If more than
one person or entity has executed this Note as Maker, the obligations of
such persons and entities shall be joint and several.
If any one or more of the provisions contained in this Note shall
be held invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions shall not in any
way be affected or impaired thereby; provided that where the provisions of
any invalidating law may be waived, they are waived by Maker to the fullest
extent possible.
THIS NOTE AND THE RIGHTS, DUTIES AND OBLIGATIONS OF THE PARTIES
HERETO SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL
LAWS OF THE STATE OF ARIZONA AND TO THE EXTENT THEY PREEMPT THE LAWS OF
SUCH STATE, THE LAWS OF THE UNITED STATES.
MAKER: (A) HEREBY IRREVOCABLY SUBMITS ITSELF TO THE PROCESS,
JURISDICTION AND VENUE OF THE COURTS OF THE STATE OF ARIZONA, MARICOPA
COUNTY, AND TO THE PROCESS, JURISDICTION, AND VENUE OF THE UNITED STATES
DISTRICT COURT FOR THE DISTRICT OF ARIZONA, FOR THE PURPOSES OF SUIT,
ACTION OR OTHER PROCEEDINGS ARISING OUT OF OR RELATING TO THIS NOTE OR THE
SUBJECT MATTER HEREOF (EXCEPT AS MAY BE SPECIFICALLY PROVIDED TO THE
CONTRARY IN THE MORTGAGE), OR,-,IF HOLDER INITIATES SUCH ACTION ANY COURT
IN WHICH HOLDER- SHALL INITIATE SUCH ACTION AND THE CHOICE OF SUCH VENUE
SHALL IN ALL INSTANCES BE AT HOLDER'S ELECTION; AND (B) WITHOUT LIMITING
THE GENERALITY OF THE FOREGOING, HEREBY WAIVES AND AGREES NOT TO ASSERT BY
WAY OF MOTION, DEFENSE OR OTHERWISE IN ANY SUCH SUIT, ACTION OR PROCEEDING
ANY CLAIM THAT MAKER IS NOT PERSONALLY SUBJECT TO THE JURISDICTION OF THE
ABOVE-NAMED COURTS, THAT SUCH SUIT, ACTION OR PROCEEDING IS BROUGHT IN AN
INCONVENIENT FORUM OR THAT THE VENUE OF SUCH SUIT, ACTION OR PROCEEDING IS
IMPROPER. MAKER HEREBY WAIVES THE RIGHT TO COLLATERALLY ATTACK ANY
JUDGEMENT OR ACTION IN ANY OTHER FORUM.
LENDER AND MAKER ACKNOWLEDGE AND AGREE THAT ANY CONTROVERSY WHICH
MAY ARISE UNDER ANY OF THE LOAN DOCUMENTS WOULD BE BASED UPON DIFFICULT AND
COMPLEX ISSUES AND THEREFORE, THE PARTIES AGREE THAT ANY LAWSUIT ARISING
OUT OF ANY SUCH CONTROVERSY SHALL BE TRIED BY A JUDGE SITTING WITHOUT A
JURY, AND MAKER HEREBY KNOWINGLY AND VOLUNTARILY WAIVES TRIAL BY JURY IN
ANY SUCH PROCEEDING.
ALL OF THE PROVISIONS SET FORTH ABOVE ARE A MATERIAL INDUCEMENT
FOR LENDER'S MAKING THE LOAN TO MAKER.
MAKER's Initials
It is the intent of the parties to comply with the applicable,
usury law ("Applicable Usury Law") chosen by Maker and Lender in the
preceding paragraph, or any other usury law applicable. Accordingly, it is
agreed that notwithstanding any provisions to the contrary in this Note,
the Loan Agreement, or in any of the documents securing payment hereof or
otherwise relating hereto, in no event shall this Note or such documents
require the payment or permit the collection of interest in excess of the
maximum contract rate permitted by the Applicable Usury Law. If (a) any
such excess of interest otherwise would be contracted for, charged or
received from Maker or otherwise in connection with the Loan evidenced
hereby, or (b) the maturity of the indebtedness evidenced by this Note is
accelerated in whole or in part, or (c) all or part of the principal or
interest of this Note shall be prepaid, so that under any of such
circumstances the amount of interest contracted for, charged or received in
connection with the Loan evidenced hereby, would exceed the maximum
contract rate permitted by the Applicable Usury Law, then in any such
event: (1) the provisions of this paragraph shall govern and control; (2)
neither Maker nor any other person or entity now or hereafter liable for
the payment hereof will be obligated to pay the amount of such interest to
the extent that it is in excess of the maximum contract rate permitted by
the Applicable Usury Law; (3) any such excess which may have been collected
shall be either applied as a credit against the then unpaid principal
amount hereof or refunded to Maker, at the Holder's option; and (4) the
effective rate of interest will be automatically reduced to the maximum
amount of interest permitted by the Applicable Usury Law. It is further
agreed, without limiting the generality of the foregoing, that to the
extent permitted by the Applicable Usury Law: (x) all calculations of the
rate of interest which are made for the purpose of determining whether such
rate would exceed the maximum contract rate permitted by the Applicable
Usury Law shall be made by amortizing, prorating, allocating and spreading
during the period of the full stated term of the Loan, all interest at any
time contracted for, charged or received from Maker or otherwise in
connection with such Loan; and (y) if the effective rate of interest on the
Loan should at any time exceed the maximum contract rate allowed under the
Applicable Usury Law, such excess interest that would otherwise have been
collected had there been no ceiling imposed by the Applicable Usury Law
shall be paid to Holder from time to time, if and when the effective
interest rate on the Loan otherwise falls below the maximum amount
permitted by the Applicable Usury Law, to the extent that interest paid to
the date of calculation does not exceed the maximum contract rate permitted
by the Applicable Usury Law, until the entire amount of interest which
would have otherwise been collected had there been no ceiling imposed by
the Applicable Usury Law has been paid in full. Maker further agrees that
should the maximum contract rate permitted by the Applicable Usury Law be
increased at any time hereafter because of a change in the law, then to the
extent not prohibited by the Applicable Usury Law,such increases shall
apply to all indebtedness evidenced hereby regardless of when incurred;
but, again to the extent not prohibited by the Applicable Usury Law, should
the maximum contract rate permitted by the Applicable Usury Law be
decreased because of a change in the law, such decreases shall not apply to
the indebtedness evidenced hereby regardless of when incurred.
Maker warrants and represents that the loan evidenced hereby
is for business or investment purposes.
This Note is secured by, among other things, a Mortgage (With
Security Agreement, Assignment of Leases and Rents and Fixture Filing)
encumbering real and personal property owned by Maker and located in Marco
Island, Florida.
MAKER:
STATE OF
) Ss.
County of
Marco SSP, Ltd., a Florida
limited partnership
By: Marco SSP,Inc.,
a Florida corporation Its General Partner
By:
Print Name
Its:
Tax I. D. No.:
The foregoing instrument was acknowledged this _____day of June,
1996, by _______, the __________ of Marco SSP, Inc., a Florida corporation,
the General Partner of Marco SSP, Ltd., a Florida limited partnership, for
and on behalf of the limited partnership. He/she is personally known to me
or has produced _______ as identification.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
My commission expires:
Notary Public
Print Key Output Page
5763SSl V3RINO 940909 GFC 11/20/95
10:14:31
Display Device....... : BR 1
User................. : JLB_
11/20/95 AMORTIZATION SCHEDULE
lOfl4:21
Contract-Sch Rate Date Remaining
Periods
MARCO Annual: .10800000 Start: 1995/11 227
Periodic: .0090DOOO 2014/10
Avg. Prnl Bal: 12,890,392.62
Seqt Payment Principal Principal Period - 0-
-
Due Date BaLamce Reduction
Interest Payment
1 1995/12 26,416.63
2 1996/01 26,654.38
3 1996/02 26,894.27
4 1996/03 27,136.32
5 1909/04 27,380.54
6 1996/05 27,626.97
7 1906/06 27,875.61
8 1996/07 28,126.49
9 1996/08 28,379.63
10 1996/09 28,635.05
11 1996/10 28,892.76
12 1996/11 29,152.80
SCHEDULE1
(Amended And Restated Promissory Note)
Print Key Output Page1
5763SSI V3RJXO 940909 OPC 11/20/95 10:14;37
Display Device... : BRIMHALLS1
'User............ : TLB
11/20/95 AMORTIZATION SCHEDULE IO--,l4:21
contraot-Sc:h Rate Date Remaining
Periods
MARCO Annual: .10800000 Start: 1995/11
227
Periodic: .00900000 Exp: 2014/10
Avg. Prnl Bal: 12,890,392,-62
Seq# Payment Prinoipal Principal Period:Lc-
Due Date Balance Reduction Interest
Payment
13 1996/12 29,415.17
14 1997/01 29,679.91
15 1997/02 29,947.03
16 1997/03 30,216.55
17 1997/04 30,488.50
18 1997/05 30,762.90
19 1997/06 31,039.76
20 1997/07 31,319.12
21 1997/08 31,600.99
22 1997/09 31,885.40
23 1997/10 32,172.37
24 1997/11 32,461.92
Print key output Page
1
5763SSl V3RlMO 940909 GFC 11/20/95 10:14:41
Display Devir-e o o t * . : BR @l
User................... : JLB-
11/20/95 AMORTIZATION SCHEDULE 16@-14:21
Contract-Sch Rate Date Remaining
Periods
@co Annual: .10800000 Start: 1995/11 227-
Periodic: .00900000 Exp: 2014/10
Avg. Prnl Bal: 12,890,392.62
Seq# Payment Principal Principal
Periodic
Due Date Balance Reduction Interest
Payment
25 1997/12 32,754.08
26 1998/01 33,048.87
27 1998/02 33,346.31
28 1998/03 33,646.42
29 1996/04 33,949.24
30 1998/05 34,254.78
31 1998/06 34,563.08
32 1998/07 34,874.14
33 1998/08 35,188.01
34 1998/09 35,504.70
35 1998/10 35,824.25
36 1998/11 36,146.66
Print Key Output Page
1
5763S$l V3@O 940909 GFC 11/20/95 10:14:44
Display Device . . . . . : BRI
U"r................... : .7LB-
11/20/95 AMORTIZATION SCHEDULE id,-14:21
Contract-Sch Rate Date Remaining
Periods
MARCO Annual: .10800000 Start: 1995/11 227-
P*riodic: .00900000 Exp; 2014/10
Avg. Prnl Bal: 12,890,392.62
Seq# Payment Principal principal Periodic
Due Date Balance Reduction Interest
payment
37 1998/12 36,471.98
38 1999/01 36,800.23
39 1999/02 37,131.43
40 1999/03 37,465.62
41 1999/04 37,802.81
42 1999/05 38,143.03
43 1999/06 38,486.32
44 1999/07 38,832.70
45 1999/08 39,182.19
46 1999/09 39,534.83
47 1999/10 39,890.64
48 1999/11 40,249.66
Print Key Output Page
5763SSI V3RlMO 940909 GFC 11/20/95 10:14:48
Display Device . . . : BRI @ LLS1
Usor................... : JLB
11/20/95 AMORTIZATION SCHEDULE 16:14:21
Contract-Sch Rat* Date Remaining
Periods
MARCO Annual: .10800000 start: 1995/11 227-
Periodic: .009DO000 Exp: 2014/10
Avg. Prnl Bal: 12,890,392.62
Seq# Payment Principal Principal
Periodic -
Due Date Balance Reduction Interest
Payment
49 1999/12 40,611.91
50 2000/01 40,977.41
51 2000/02 41,346.21
52 2000/03 41,718.33
53 2000/04 42,093.79
54 2000/05 42,472.64
55 2000/06 42,854.89
56 2000/07 43,240.58
57 2000/08 43,629.75
58 2000/09 44,022.42
59 2000/10 44,418.62
60 2000/11 44,818.39
Print Key Output page
5763SS1 V3RJMO 940909 GFC 11/20/95
10:14:5
Di*Play Device....... BRI 1
User................. TLB_ -
11/20/95 AMORTIZATION SCHEDULE 14:
Contract-Sch Rate Date Remaining
Period
mmco Annual: .10800000 Start: 1995/11 227
Periodic: .00900000 Exp,. 2014/10
Avg. Prnl Bal: 12,890,392.62
Seq# Paymp-nt Principal Principal
Period:Ec-
Due Date Balance Reduction
Interest Payment
61 2000/12 45,221.75
62 2001/01 45,628.75
63 2001/02 46,039.41
64 2001/03 46,453.76
65 2001/04 46,871.84
66 2001/05 47,293.69
67 2001/06 47,719.33
68 2001/07 48,148.81
69 2001/08 48,582.15
70 2001/09 49,019.39
71 2001/10 49,460.56
72 2001/11 49,905.71
WHEN RECORDED RETURN TO:
DECONCINI McDONALD BRAMMER
YETWIN & LACY, P.C.
ATTN: Gregory W. Huber, Esq.
2901 N. Central Ave., Suite 1644
Phoenix, AZ 85012-2736
AMENDMENT NO. 2 TO MORTGAGE
This Amendment No. I to Mortgage (the "Amendment") is entered into to be
effective as of the 24th day of June, 1996, by and between Marco SSP,Ltd.,
a Florida limited partnership,("Mortgagor") , and FINOVA Capital
Corporation, a Delaware corporation, formerly known as Greyhound Financial
Corporation, a Delaware corporation ("Mortgagee").
RECITALS:
A. Mortgagee and Mortgagor entered into a Loan Agreement dated
September 23, 1994, as amended by an Amendment No. 1 To Loan Agreement
dated December 12, 1994 (collectively, "Loan Agreement") that evidences a
loan from Mortgagee to Mortgagor (the "Loan").
B. The Loan is secured by, among other things, a Mortgage,
Assignment of Rents and Security Agreement dated September 23, 1994, and
recorded September 23, 1994, in the real estate records of the Collier
County, Florida, in Official Record Book 1986, Page 0056 between Mortgagor
and Greyhound Financial Corporation, as amended by Amendment No. 1 to
Mortgage, Assignment of Leases and Rents and Security Agreement dated
November 13, 1995 and recorded in the real estate records of the Collier
County, Florida on November 22,1995, in Official Record Book 2122, Page
0277("Mortgage"). The Mortgage encumbers certain real property
andimprovements located in Collier County, Florida, as more specifically
described on Exhibit "B" attached hereto and incorporated herein by this
reference.
C. Pursuant to an Amendment No. 2 to Loan Agreement dated as of
even date herewith, $5,000,000.00 of the original Loan Amount has been
converted into a revolving line of credit which Mortgagor may pay down
(without penalty) and redraw throughout the original term of the Loan, and
in connection therewith, Mortgagor has executed and delivered to Mortgagee
an Amended And Restated Promissory Note, a copy of which is attached hereto
as Exhibit "A"
and which replaces the Note originally secured by the Mortgage. Mortgagor
and Mortgagee wish to amend the mortgage to confirm that the Mortgage
secures the obligations of Mortgagee, as amended.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing Recitals,the covenants
contained herein and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, Mortgagee and Mortgagor
agree as follows:
1. Without limiting the generality of any other provision
contained in the Mortgage, Mortgagor confirms that the Mortgage secures
(and the Mortgagor's "Indebtedness" as that term is used in the Mortgage
include) payment and performance of the obligations of Mortgagor under the
Loan Agreement as amended by the Amendment No. 2 to Loan Agreement dated as
of even date herewith, and any and all amendments, replacements or
restatements thereof, as well as Mortgagor's obligations under the Amended
And Restated Promissory Note of even date herewith in the form of Exhibit
"A" hereto executed by Mortgagor and delivered to Mortgagee.
2. Mortgagor and Mortgagee hereby ratify and confirm the Mortgage,
as amended hereby, in all respects; and, except as amended hereby, the
Mortgage s,hall remain in full force and effect.
3. This Amendment may be executed in counterpart, and any number
of such counterparts which have been executed by all persons whose
signatures are required below shall constitute one original.
IN WITNESS WHEREOF, this instrument is executed. as of the day
and year first above written.
MORTGAGOR Marco SSP, Ltd.,
a Florida limited partnership
By: Marco SSP, Inc., a Florida corporation
its General Partner
MORTGAGEE
STATE OF @
) Ss.
County of
FINOVA Capital Corporation,
a Delaware corporation, formerly known as
Greyhound Financial Corporation
By:
Print Name:
Title:
The foregoing instrument was acknowledged bef ore me this June, 1996, by
__________, the _________ of Marco SSP,Inc., a Florida corporation, the
General Partner of Marco SSP, Ltd., a Florida limited partnership, for and
on behalf of the limited partnership. He/she is personally known to me or
has produced _____________as identification.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
My commission expires:
Notary Public
STATE OF ARIZONA
) Ss.
County of Maricopa)
The foregoing instrument was acknowledged before me this
day of 1996, by . the
of FINOVA Capital Corporation, a Delaware corporation, formerly
known as Greyhound Financial Corporation.- -on behalf of said corporation.
Ss.
IN WITNESS WHEREOF, I hereunto set my hand and of f icial s-ea-1.
Notary Public
My commission expires:
EXHIBIT B
A Parcel of land lying in Section 18, Township 52 South, Range 26 East,
Collier County, Florida, and being more particularly described as-follows:
Commencing at the intersection of the centerlines of South Collier-
Boulevard and Valley Avenue, as-shown on the plat of Marco Beach, Unit 10,
recorded in Plat Book 6, Pages 74 through 79, inclusive, of the Public
Records of Collier County, Florida; thence North 85 degrees, 41'minutes 07
seconds West, a distance of 50.00 feet to a point on the Westerly
Right-of-Way line of the aforementioned South Collier Boulevard, thence
North 04 degrees, 18 minutes 53 seconds East, along said Westerly
Right-of-Way for a distance of 544.69 feet to a Point of Curvature of a
curve having a radius of 1950.00 feet concave to the Northwest; thence
Northerly along said curve, curving to the left through a central angle of
03 degrees 33 minutes 11 seconds and an arc distance of 120.93 feet to the
Point of Beginning of the hereby described parcel of land; thence leaving
said Right-of Way line South 89 degrees 16 minutes 35 -seconds West, a
distance of 731.23 feet to an iron pin; thence continue South 89 degrees 16
minutes 35 seconds West, a distance of 118 feet more or less to a point,
said point hereafter known as Point "D" and the approximate Mean High Water
Line (elevation +1.5 contour) of the Gulf of Mexico as it existed on
December 9th, 1980; thence retur@ to the aforementioned Point of Beginning;
thence continue Northerly along said Westerly Right-of-Way line of South
Collier Boulevard and the aforementioned curve having a radius of 1950.00
feet concave to the Northwest, curving to the left through a central angle
of 11 degrees 33 minutes 00 seconds and an arc distance of 393.09 feet to
the Point of Tangency; thence North 10 degrees 47 minutes 18 seconds West,
a distance of 15.96 feet; thence leaving said Right-of Way South 86 degrees
13 minutes 24 seconds West, a distance of 703.92 feet to an iron pin,
thence continue South 86 degrees 13 minutes 24 seconds West, a distance of
149 feet more or less to a point and the Approximate Mean High Water Line
(elevation +1.5 contour) of the Gulf of Mexico as it existed on December
9th, 1980 thence meander in a Southerly direction along said Approximate
Mean High Water Line (elevation +1.5) 363 feet more or less to the
aforementioned Point "D" and the Point of Termination.