THIS AMENDED, RESTATED AND CONSOLIDATED REVOLVING
CREDIT
NOTE AMENDS, RESTATES AND CONSOLIDATES (A) THAT
CERTAIN
RENEWAL COMMERCIAL PROMISSORY NOTE DATED AS OF
JUNE 20,
1995 (THE "ORIGINAL SEASIDE NOTE") EXECUTED IN
FAVOR OF
BARNETT BANK OF LEE COUNTY, N.A. AND ASSIGNED
CONCURRENTLY HEREWITH TO LENDER, IN THE ORIGrNAL
PRINCIPAL AMOUNT OF $2,566,146.71; AND (B) THAT
CERTAIN
SEASIDE ADDITIONAL ADVANCE NOTE OF EVEN DATE
HEREWITH
(THE "SEASIDE ADVANCE NOTE") EXECUTED IN FAVOR OF
LENDER,
IN THE ORIGINAL PRINCIPAL AMOUNT OF $1,008,653.29.
SEASIDE CONSOLIDATED, AMENDED
AND RESTATED REVOLVING CREDIT NOTE
U.S. $3,500,000.00
1. Parties.
Fort Lauderdale, Florida
As of May 30, 1997
1.1 South Seas Properties Company Limited
Partnership,
an Ohio limited partnership ("SSPC") (formerly
known as
Captiva Resort Company Limited Partnership, the
"Borrower"; use of such term hereinafter shall
include
all entities constituting Borrower, including the
general partner of SSPC, and at the same time,
SSPC).
1.2 Credit Lyonnais New York Branch, a branch duly
licensed under the laws of the State of New York,
of
Credit Lyonnais, S.A., a barking corporation
orgaruzed
and existing under the laws of the Republic of
France
("CLNY"), Barnett Bank, N.A., a national banking
association formerly known as Barnett Bank of Lee
County, N.A. ("Barrett") and FINOVA Capital
Corporation, a Delaware corporation formerly known
as
Greyhound Financial Corporation ("lINOVA") (each
of
CLNY, Barnett and FINOVA, or their respective
successors and assigns, is individually referred
to as
a "Participant", and are collectively referred to
as
the "Lender"; use of such term hereinafter shall
include all Participants, collectively, and at the
same
time, each Participant individually), CLNY as
administrative agent for Lender (in such capacity,
CLNY
or any successor to, or assignee of, CLNY,
hereinafter
referred to as "Administrative Agent"), and CLNY
as
collateral agent for Lender (in such capacity,
CLNY or
any successor to, or assignee of, CLNY,
hereinafter
referred to as "Collateral Agent"; unless the
context
requires reference as Collateral Agent or
Administrative Agent, CLNY or such successor or
assign
shall be hereinafter referred to as "Agent").
2. Definitions. Except as set forth in Section
4
hereof, capitalized terms used herein which are
not
otherwise defined herein shall have the meanings
given
in that certain Amended and
Restated Loan Agreement dated September 26,
1996, as amended by the First
Amendment to Amended and Restated Loan Agreement
of even date herewith, and
together with any other written amendments and
modifications thereto (the "Loan
Agreement"). This Amended, Restated and
Consolidated Revolving Credit Note, the
Amended and Restated First Mortgage and Security
Agreement and Notice and
Future Advance of even date herewith (the "Seaside
Mortgage"), the "Security
Documents" described in the Seaside Mortgage, and
other related security
documents, together shall be the "Seaside Loan
Documents".
3. Borrower's Promise to Pav. For value received,
Borrower promises to pay to the order of
Administrative Agent for the account of Lender,
its successors or assigns, on the
Maturity Date, the principal sum of THREE MILLION
FIVE HUNDRED
THOUSAND AND NO/100 DOLLARS ($3,500,000.00) (the
"Principal"), or
such lesser amount as shall be outstanding
hereunder, together with interest as
hereinafter provided in Section 4 on the dates set
forth herein. From the date hereof
to (but not including) the Maturity Date, Borrower
may borrow up to the amount of
this Seaside Consolidated Revolving Credit Note
(the "Seaside Revolving Credit
Note"), repay all or any portion of this Seaside
Revolving Credit Note and reborrow
up to the Principal amount of this Seaside
Revolving Credit Note, provided that
borrowings hereunder may be made only if such
borrowings would be permitted
under the terms and conditions set forth in the
Loan Agreement.
3.1 Amendment of Indenture to Correct Definition:
The definition of "Permitted Real Property
Indebtedness" under the Indenture (as defined in
the Loan Agreement) requires that
such debt be secured "exclusively" by certain
types of collateral and interests. If, on
or before the date which is eighteen (18) months
after the date of this Seaside
Revolving Credit Note, Borrower shall not have
effected an amendment (the
"Definitional Amendment") to the Indenture (in
form and content approved by
Lender and with evidence satisfactory to Lender
that such amendment is valid and
binding, in all respects, upon the Trustee of the
Indenture and all Noteholders
thereunder) which eliminates from the definition
the word "exclusively," the Seaside
Loan shall automatically cease to permit
borrowings and reborrowings as a revolving
loan and payments of Principal, in the amounts set
forth below, shall commence to
be due and payable.
The schedule of Principal repayment hereunder upon
such conversion ofthis Seaside Revolving
Credit Note to a term note (the "Converted Seaside
Term Note") shall be as
follows:
(a) four (4) equal principal payments, equal (in
the aggregate) to 6.75% of the outstanding principal
balance as of the date of such conversion to a
term note (such date, the "Conversion
Date") payable quarterly, beginning on March 31,
1999;
(b) four (4) equal principal payments, equal (in
the aggregate) to 8.125% of the outstanding
principal balance on the Conversion Date payable
quarterly beginning March 31,
2000;
(c) two (2) equal principal payments, equal (in
the aggregate) to 4.6M5% of the outstanding
principal balance on the Conversion Date payable
quarterly beginning March 31,
2001;
2
with the remaining outstanding principal balance
ofthe Converted Seaside Term Note
being due and payable in one payment, together
with any accumulated and unpaid
interest thereon, on the Maturity Date.
If the Definitional Amendment has been effected on
the terms and conditions set forth in this Seaside
Revolving Credit Note and such other terms,
conditions and documentation as may
be required by Lender, so long as there is no
default or Event of Default under the
Loans or the Seaside Loan, or both, and no event
which, with notice, or the passage
of time, or both, would become a default or Event
of Default, it is the intention of
Borrower and Lender that: (i) each of the entities
constituting the "Borrower" under
the Loan Agreement assume all of SSPC's
obligations under the Seaside Loan; and
(ii) the Seaside Loan be incorporated into and
made a part of the Loans. As such, the
outstanding principal amount of the Seaside Loan
would be consolidated with the
Revolving Credit Loans and borrowed and repaid as
a part of such Revolving Credit
Loans, and the Borrower shall execute, and cause
the other entities comprising the
"Borrower" under the Loan Agreement to execute all
such documents as may be
required by Lender to effectuate the foregoing. If
the Seaside Loan is consolidated
into the Revolving Credit Loans, Borrower shall
pay all costs and expenses associated
therewith.
3.2 Yoluntarv Prepayment of Principal under
Converted Seaside Term Note. The outstanding Base
Rate Portion or Libor Rate Portion of the
Converted Seaside Term Note may be fully
or partially prepaid without bonus or penalty
(except applicable Prepayment
, Costs) from time to time provided that: ~i) no
Event of Default has occurred (unless it has been
cured within the applicable cure period) under any
of the Security Documents; and
(ii) any such prepayment shall be in an amount not
less than $500,000.00, or integral
multiples thereof, and shall be paid at the end of
any applicable interest period upon
not less than 3 Business Days' prior written
notice to Agent. The repayment of any
Base Rate Portion shall be accompanied by accrued
interest for such Base Rate
Portion through the date of prepayment. Amounts
prepaid may not be reborrowed. All
prepayments of Principal shall be divided pro
tanto among (and credited to) each of
the scheduled payments of Principal (to the extent
not then due) described in Section
3.1 above.
4. Interest Rate: Payments.
4.1 As long as there is no Default or Event of
Default hereunder, Borrower shall pay interest on the
outstanding Principal balance of this Seaside
Revolving Credit Note Loan at the
Adjusted Base Rate on the Base Rate Portion, and
at the corresponding Adjusted
Libor on each Libor Portion.
The calculation of the Base Rate Spread for any
Base Rate Interest Period, and the Libor Spread for
any Libor Interest Period, shall be performed
quarterly on a prospective basis on or
before 25 days after the end of such quarter by
analyzing the preceding four quarters.
The ratio ofthe Outstanding Loan Amount to EBITDA
for the preceding Period will
determine the applicable Base Rate Spread or Libor
Spread, which Base Rate Spread
or Libor Spread will be adjusted and
3
applied the day following receipt by Agent of the
calculations with regard to the Base
Rate Spread and the Libor Spread.
For purposes of this Seaside Revolving Credit
Note, the term "Outstanding Loan Amount" shall
mean the aggregate principal amount outstanding
under the Notes and this Seaside
Revolving Credit Note at any relevant time.
4.2 The Adjusted Base Rate and the Adjusted Libor
shall be computed on the basis of a three
hundred sixty (360) day year and the actual number
of days elapsed (in, shall accrue
for each day any Principal portion of this Seaside
Revolving Credit Note is
outstanding
at the relevant interest rate(s) divided by 360).
4.3 Borrower shall pay accrued interest on the
Base Rate Portion on a monthly basis, in arrears, on
the last day of each month. Borrower shall also
pay accrued interest on any Libor
Portion if and when terminated before the
expiration of the applicable Libor Interest
Period.
4.4 Borrower shall, subject to the provisions of
Section 4.6 hereafter, pay accrued interest on each
Libor Portion, in arrears, on the earlier of (a)
the last day of each month during the
corresponding Libor Interest Period and (b), as to
any expiring Libor Interest Period,
the date upon which the Libor Interest Period
expires.
4.5 Any change in the interest rate from Base Rate
to, or from Libor to Base Rate, or from one Libor
to another, shall be effective on the date
specified by Agent to Borrower.
4.6 All payments hereunder shall be made to Agent,
for the account of Lender, in lawful money of
the United States of America without set-off,
deduction or counterclaim. All
payments shall be made no later than 1:00 P.M.
(Eastem Standard Time) on the date
on which a payment is due, in immediately
available funds to the account of Agent
at its office specified below. If any such payment
falls on a day that is not a Business
Day, the date of such payment shall be the
immediately preceding Business Day.
4.7 Notwithstanding the foregoing, neither any
rate of interest charged hereunder nor the Default
Rate shall at any time exceed the maximum rate of
interest permitted by applicable
law in effect from time to time. In the event that
any interest rate or the Default Rate
exceeds the maximum percentage pemmitted by
applicable law in effect from time
to time during the temm of this Seaside Revolving
Credit Note, only the maximum
percentage pemmissible shall then be charged, but
thereafter in any period during
which the rate is less than the maximum percentage
pemmissible by applicable law
in effect from time to time, the interest rate and
the Default Rate shall be increased
so that Lender, its successors or assigns, may
collect interest in such amount (up to
the maximum percentage permitted by applicable
law) as may have been charged
pursuant to the temls of this Seaside Revolving
Credit Note, but which was not
charged because of the limitation imposed by law.
4
4.8 If the calculation of interest or the
imposition of a change in the rate of interest upon
default or
the payment of any fees or other charges that are
construed to be interest under
applicable law in effect from time to time, result
in an effective rate of interest higher
than that pemmitted to be paid under applicable
law in effect from time to time, then
such charges shall be reduced by a sum sufficient
to result in an effective rate of
interest no greater than the maximum effective
rate of interest permitted to be paid
under applicable law in effect from time to time.
The Agent may, in determining the
maximum rate permitted under applicable law in
effect from time to time, take
advantage of: (i) the rate of interest permitted
by Florida Statutes, Chapter 665
(Florida Savings Association and Savings Bank
Act), by reason of both Section
687.12, Florida Statutes ("interest rates; parity
among licensed lenders or creditors")
and 12 United States Code, Sections 85 and 86, and
(ii) any other law, rule, or
regulation in effect from time to time, available
to Lender that exempts Lender from
any limit upon the rate of interest it may charge
or grants to Lender the right to charge
a higher rate of interest than that permitted by
Florida Statutes, Chapter 687. Upon
maturity of this Seaside Revolving Credit Note,
whether by acceleration or in due
course, interest shall be recalculated over the
actual life of the loan evidenced hereby
based upon the amounts outstanding, and if the
total amount of interest theretofore
paid exceeds the amount permitted to be paid under
applicable law in effect from time
to time, the excess shall be credited to
Principal, or if such excess exceeds the
Principal amount due hereunder, refunded to the
Borrower.
4.9 As provided in the Loan Agreement, Mortgage,
and Seaside Mortgage, if at any time Borrower is
required by law to make any deduction or
withholding in respect to any taxes, duties
or other charges f om any payment due hereunder,
the sum due from Borrower in
respect of such payments shall be increased to the
extent necessary to insure that, after
the making of such deduction or withholding,
Lender receives and retains a net sum
equal to the sum that it would have received had
no such deduction or withholding
been required to be made. Borrower shall promptly
deliver to Agent receipts,
certificates or other proof evidencing the amounts
(if any) paid or payable in respect
of such deduction or withholding.
4.10 New Libor Portions. Borrower shall have the
right to elect, from time to time during the term of
the Seaside Loan, to include in a new Libor
Portion: (i) all or any portion of the then
outstanding Base Rate Portion; or (ii) any Libor
Portion for which the applicable
Libor Interest Period shall have expired as of the
commencement of the new Libor
Interest Period, in each case subject to the
following:
(a) No default shall have occurred under this
Seaside Revolving Credit Note
and no Event of Default shall have occurred under
any of the Loan Documents or the
Seaside Loan Documents; and
(b) At least three Business Days prior to the
date Borrower intends that the
requested new Libor Interest Period commence,
Borrower shall notify Agent, in
writing (by telex, facsimile or other written
means) of the Principal amount- of the
Seaside Loan that Borrower desires to become (or
continue as) a new Libor Portion,
the desired length of the new Libor Interest
5
Period on such Libor Portion and the desired date
of commencement of the new
Libor Interest Period.
If the above conditions are met, Agent shall
endeavor to quote to Borrower the Adjusted Libor and
the new Libor Interest Period shall commence on
the requested Libor Portion. Agent
shall thereafter confirm to Borrower, in writing,
the establishment of the new Libor
Portion, setting forth the respective Adjusted
Libor and Libor Interest Period.
4.11 If an Adjusted Libor is not, in Agent's
judgment, reasonably available at the time requested or
for the Libor Interest Period requested, the
portion of the Principal amount of this
Seaside Revolving Credit Note then outstanding
that would have been subject to the
new Adjusted Libor shall bear interest at the
Adjusted Base Rate until such time as
(i) in Agent's judgment, an Adjusted Libor is
reasonably available, (ii) Agent notifies
Borrower in writing that Adjusted Libor is
available, and (iii) Borrower confirms to
Lender in writing its desire for such portion of
such Principal amount to be subject
to Adjusted Libor.
5.
Conversion Options.
(a) Subject to the limitation contained in
paragraph 5(b), the Borrower may elect from time to
time
to convert Base Rate Loans to Libor Rate Loans, or
Libor Rate Loans to Base Rate
Loans, by providing the Agent not less than three
Business Days prior irrevocable
notice of such election, specifying the amount to
be so converted and (in the case of
conversions from Base Rate Loans to Libor Rate
Loans) the initial Interest Period
relating thereto; provided, however, that any such
conversion shall only be made on
a Business Day and any such conversion of Libor
Rate Loans shall only be made on
the last day of an Interest Period with respect
thereto. The Agent shall promptly
provide the Participants with notice of any such
election. The Principal portion of the
Seaside Loan may be converted pursuant to this
paragraph 6(a) in whole or in part,
provided that partial conversions to Libor Rate
Loans shall be in an aggregate
principal amount of $250,000 or such amount plus a
whole multiple of $250,000.
(b) Notwithstanding anything in this paragraph 5
to the contrary, no Base Rate Loan may be
converted to a Libor Rate Loan, and no Libor Rate
Loan may be extended as a Libor
Rate Loan, when any Default or Event of Default
has occurred and is continuing. In
such event, each such Loan which is not already a
Base Rate Loan shall be
automatically converted to a Base Rate Loan on the
last day of the Interest Period for
which a Libor Rate was determined at or prior to
the time when the Agent andlor any
of the Participants obtained knowledge of such
Default or Event of Default. The
Agent shall promptly provide the Participants with
notice of any such conversion.
Interest on any Libor Rate Loan (before the
applicable Libor Interest Period expires)
and on such Base Rate Loan (after the expiration
of the Libor Interest Period) shall
then be payable at the Default Rate.
6. Increased Costs. If any Regulatory Change
shall, in the determination of Agent: (i) subject
Lender
to any tax, levy or other governmental charge with
respect to the Seaside Loan or
6
change the basis of taxation of payments by
Borrower to Lender in respect of the
Seaside Loan; (ii) impose, modify or hold
applicable any reserve, special deposit or
similar requirement against the assets of,
deposits or other liabilities of, or for the
account of, or similar loans or commitments by,
Lender with respect to the Seaside
Loan; (iii) require or expect Lender or any
Affiliate of Lender to maintain capital in
amounts in excess ofthose amounts it determines to
be adequate (after taking into
account Lender's policies as to capital adequacy);
or (iv) impose on Lender any other
condition with respect to the Seaside Loan or
Lender's obligation to make the Seaside
Loan, and the result of any of the foregoing is to
increase the cost to Lender of making
or maintaining the Seaside Loan or to reduce the
amount of any sum received or
receivable by Lender hereunder (collectively, the
"Increased Costs"), then Borrower
shall pay to Agent, for the account of Lender, on
demand, from time to time, such
additional amounts as may be necessary to
reimburse Lender for such Increased Costs
or to compensate Lender for such reduced amounts.
Notice from Agent to Borrower
of Increased Costs shall be conclusive evidence
(except in the case of demonstrable
error) of Borrower's obligation to pay the sums
stated in the notice. All Increased
Costs shall constitute additional sums payable
with respect to the outstanding
Principal balance due under this Seaside Revolving
Credit Note; provided, however,
that such sums, if characterized as interest under
applicable law, shall not be applied
in reduction of accrued and unpaid interest.
7.
Illegality or Impossibility.
7.1 If, at any time, it shall become unlawful by
reason of any Regulatory Change (or if compliance
therewith shall make it impossible) for Lender to
charge or collect interest on any
Libor Portion at the corresponding Adjusted Libor
or if by reason of circumstances
affecting the interbank eurodollar market,
generally, adequate and fair means do not
or will not exist for determining any Libor
applicable to any Libor Interest Period, or
that such Libor, as determined by Lender, will not
accurately reflect the cost to Lender
of making or maintaining the Libor Portion at the
Adjusted Libor, then, upon notice
from Agent to Borrower: (i) all then existing
Libor Portions shall be immediately
terminated and the entire outstanding Principal
balance of the Seaside Loan shall bear
interest at the Adjusted Base Rate; (ii) Borrower
shall pay all Prepayment Costs in
connection with the termination of any Libor
Interest Period; and (iii) Borrower's right
to elect new Libor Portions hereunder shall
terminate. However, in the event the
Agent determines, in its sole discretion, that
Lender may lawfully continue to maintain
the existing Libor Portions at the applicable
Adjusted Libor or until the expiration of
the applicable Libor Interest Period, the notice
from Agent shall terminate only
Borrower's right to elect new Libor Portions
hereunder. If, at any time after such
notice, Agent determines in its sole discretion
that, because of a change in
circumstances, Libor Portions are again available
to Borrower, Agent shall so advise
Borrower and Borrower's right to elect new Libor
Portions hereunder shall resume.
7.2 If, at any time, it shall become unlawful by
reason of any Regulatory Change (or if compliance
therewith shall make it impossible) for Lender to
enforce Borrower's obligations (or
any of them) hereunder, then, upon notice from
Agent to Borrower, the entire
outstanding Principal balance of the Seaside Loan,
together with interest thereon and
any other amounts due Lender under this Seaside
Revolving Credit Note or the Loan
Documents or the Seaside Loan
7
Documents, including, without limitation, any
Prepayment Costs, shall become
immediately due and payable.
8. Application of Payments. So long as no default
has occurred in this Seaside Revolving Credit
Note, all payments hereunder shall first be
applied to Prepayment Costs (if
applicable), then to accrued and outstanding
interest, then to Principal, and the
remainder to costs pursuant to Section 11
hereinafter. However, prepayments applied
to Principal shall be applied in the manner
described in Sections 3.2 and 4 above, as
applicable. Upon default under this Seaside
Revolving Credit Note, all payments
hereunder shall be applied to sums due under this
Seaside Revolving Credit Note and
the other Loan Documents in such order as Lender
shall determine in its sole
discretion.
9. Other Instruments.
9.1 The Loan Documents and the Seaside Loan
Documents provide for other and additional
obligations of Borrower to Administrative Agent,
Collateral Agent and Lender.
Reference is made to the provisions of the Loan
Documents and the Seaside Loan
Documents for a description of the further rights
of the Administrative Agent,
Collateral Agent and Lender. It is expressly
agreed that all such covenants,
conditions, terms and agreements contained in the
Loan Documents and the Seaside
Loan Documents are made a part of this Seaside
Revolving Credit Note, and this
Seaside Revolving Credit Note is subject to such
Loan Documents and Seaside Loan
Documents. An Event of Default under any one or
more of the Loan Documents or
the Seaside Loan Documents, or both, shall
constitute an Event of Default under this
Seaside Revolving Credit Note.
9.2 Participation Interests. The term
"Participation Interests" as used in the Loan Agreement
shall,
with respect to this Seaside Revolving Credit
Note, mean the Participants' interests
in the Seaside Loan, expressed as a percentage of
the Seaside Loan, and shall be part
passu (in the relative proportions of the
Participation Interests) as to all obligations
to make Advances and rights to receive payments,
whether of principal and interest
or fees and other charges. The Participants shall
be bound by the provisions of the
Loan Agreement with regard to the relationship
among them and with the Collateral
Agent and Administrative Agent.
10. Place of Payment. All payments hereunder shall
be made at Agent's offices at Credit Lyonnais
Building, 1301 Avenue ofthe Americas, New York,
New York 10019, or such other
place as Agent may from time to time designate in
writing.
1 1. Default.
11.1 If(except as to all payments of Principal and
all other sums due hereunder on the Maturity Date,
which sums shall be paid in full on that date
without a cure period) any payment of
interest due hereunder is not paid within five (5)
days of its due date, or if any other
payment due under any Loan Document or Seaside
Loan Documents is not (subject
to applicable notice and cure) paid as and when
due, or if any Event of Default, as
such term is defined in any of the Loan
8
Documents, occurs, or if any obligation of
Borrower hereunder or under any of the
Loan Documents or Seaside Loan Documents is not
fully performed, then this Seaside
Revolving Credit Note shall be in default. While
the Seaside Revolving Credit Note
is in default, sums due hereunder shall bear
interest, and Lender shall automatically
be entitled to collect interest, at an annual rate
of interest equal to the lesser of: (i)
three percent (3%) per annum over the Adjusted
Rate; and (ii) the maximum rate of
interest permitted by law from time to time (the
"Default Rate").
a_ ~ Lender shall not be required to accelerate
payment of principal under this Seaside Revolving
Credit Note in order to be able to be paid the
Default Rate.
11.2 In addition to constituting a default under
the Loan Documents and Seaside Loan Documents, a
default hereunder shall also be deemed a default
under all notes, obligations, liabilities
and agreements of Borrower to, with or for the
benefit of Lender (or to, with or for the
benefit of any of Lender's affiliates), whether
now existing or hereafter arising and a
default under any note, obligation, liability or
agreement of Borrower to, with or for
the benefit of Lender (or to, with or for the
benefit of any of Lender's affiliates),
whether now existing or hereafter arising, shall
be deemed a default under this Seaside
Revolving Credit Note.
11.3 Upon default under this Seaside Revolving
Credit Note, unless maturity of this Seaside
Revolving Credit Note has already been accelerated
under any of the Loan Documents
or Seaside Loan Documents, the Administrative
Agent or the Collateral Agent, at its
option, may declare the entire unpaid Principal
balance of this Seaside Revolving
Credit Note, together with accrued and unpaid
irderest, to be immediately due and
payable without notice or demand. Notwithstanding
anything to the contrary contained
in this Seaside Revolving Credit Note, following
default, the entire unpaid Principal
amount of this Seaside Revolving Credit Note
(whether or not same has been
accelerated) shall bear interest at the Default
Rate. In the event of acceleration of
maturity of this Seaside Revolving Credit Note,
Agent may, in its sole discretion, also
terminate any Libor Portions, in which event
Borrower shall also pay all Prepayment
Costs resulting from such termination.
11.4 In addition to payments of interest and
Principal, if there is a default under this Seaside
Revolving Credit Note, the Administrative Agent,
Collateral Agent, or Lender, or all
three, shall be entitled to recover from the
Borrower all of the Administrative Agent,
Collateral Agent and Lender's costs of collection
or enforcement or attempted
enforcement of this Seaside Revolving Credit Note,
any of the Loan Documents or
Seaside Loan Documents, or all thereof, as well as
those arising as a result of such
default, including the Administrative Agent,
Collateral Agent and Lender's reasonable
attorneys' fees and disbursements, paralegals'
fees, legal assistants' fees and
consultants' fees (whether incurred in connection
with any judicial, bankruptcy,
reorganization, administrative, appeals or other
proceedings and whether such fees or
expenses arise before proceedings are commenced or
after entry of any judgment), and
all other costs incurred in connection therewith.
12. Late Charge. A late charge of five percent
(5%) of any payment required hereunder shall be
*mposed on each and every payment not received by
the Agent within ten (10) days
after
9
it is due. The late charge is in addition to any
*merest required to be paid at the
Default Rate and is not a penalty, but liquidated
damages to defray administrative and
related expenses due to such late payment. The
late charge shall be immediately due
and payable and shall be paid by the Borrower to
the Agent without notice or
demand. This provision for a late charge is not
and shall not be deemed a grace
period, and Agent has no obligation to accept a
late payment. Further, the acceptance
of a late payment shall not constitute a waiver of
any default then existing or
thereafter arising under this Seaside Revolving
Credit Note.
13. Waivers. The Borrower and any endorsers,
sureties, guarantors, and all others who are, or may
become liable for the payment hereof, severally:
(a) waive presentment for payment,
demand, notice of demand, notice of non-payment or
dishonor, protest and notice of
protest of this Seaside Revolving Credit Note, and
all other notices in connection
with the delivery, acceptance, performance,
default, or enforcement of the payment
of this Seaside Revolving Credit Note; (b) consent
to all extensions of time,
renewals, postponements of time of payment of this
Seaside Revolving Credit Note
or other modifications hereof from time to time
prior to or after the Maturity Date
hereof, whether by acceleration or in due course,
without notice, consent or
consideration to any of the foregoing; (c) agree
to any substitution, exchange,
addition, or release of any of the security for
the indebtedness evidenced by this
Seaside Revolving Credit Note or the addition or
release of any party or person
primarily or secondarily liable hereon; (d) agree
that neither the Administrative Agent
nor Collateral Agent nor Lender shall be required
first to institute any suit, or to
exhaust its or their remedies against the
undersigned or any other person or party
liable hereunder or against the security in order
to enforce the payment of this Seaside
Revolving Credit Note; and (e) agree that,
notwithstanding the occurrence of any of
the foregoing (except by the express written
release by Agent of any such person),
the undersigned shall be and remain, jointly and
severally, directly and primarily
liable for all sums due under this Seaside
Revolving Credit Note.
14. Miscellaneous Provisions.
14.1 Subject to applicable notice and cure
periods, time is of the essence with respect to each
and
every covenant, agreement and obligation of
Borrower under this Seaside Revolving
Credit Note and the other Loan Documents and
Seaside Loan Documents.
14.2 The captions of sections of this Seaside
Revolving Credit Note are for convenience of
reference only, and shall not affect the
construction or interpretation of any of the
terms and provisions set forth in this Seaside
Revolving Credit Note. The singular
shall include the plural and the plural the
singular, as the context provides.
14.3 Borrower and its general partner shall be
jointly and severally liable hereunder. Borrower's
limited partners shall not be personally liable
for repayment of principal, interest or
"Prepayment Costs" under this Seaside Revolving
Credit Note.
10
14.4 This Seaside Revolving Credit Note shall be
construed, interpreted, enforced and governed by
and in accordance with the laws ofthe State of
Florida and with federal law, in the
event federal law permits a higher rate of
interest than Florida law.
14.5 If any provision or portion of this Seaside
Revolving Credit Note is declared or found by a court
of competent jurisdiction to be unenforceable or
null and void, such provision or
portion thereof shall be deemed stricken and
severed from this Seaside Revolving
Credit Note, and the remaining provisions and
portions thereof shall continue in full
force and effect.
14.6 This Seaside Revolving Credit Note may not be
amended, extended, renewed or modified
except by instrument in writing executed by an
authorized officer of Agent and by
Borrower, including its general partner, nor shall
any waiver of any provision hereof
be effective except by an instrument in writing
executed by an authorized of fleer of
the Agent. Any waiver of any provision hereof
shall be effective only in the specific
instance and for the specific purpose for which
given. This Seaside Revolving Credit
Note is entitled to all benefits accruing to Agent
and Lender under the Loan
Documents and Seaside Loan Documents.
14.7 This Seaside Revolving Credit Note may be
executed in any number of duplicate originals, and
each such duplicate original shall be deemed to
constitute but one and the same
instrument.
15. Waiver of Counterclaims. Borrower and its
partners hereby waive the right to impose, in any
action with respect to this Seaside Revolving
Credit Note, the Loan Documents or the
Seaside Loan Documents, any counterclaim (except
mandatory counterclaims) or to
have any such action consolidated with any other
or separate suit, action or
proceeding. Nothing herein contained shall prevent
or prohibit Borrower or its
partners from instituting or maintaining a
separate action against Lender with respect
to any asserted claim.
16. Amendment of Existing Seaside Note and Advance
Note: Conflict. This Seaside Revolving
Credit Note amends, consolidates and restates the
terms of the Existing Seaside Note
and the Advance Note, but is not given in payment
or satisfaction of any or all of the
Existing Seaside Note or the Advance Note, and
does not extinguish the indebtedness
represented thereby. In the event of a conflict
between the terms of this Seaside
Revolving Credit Note and the terms of the
Existing Seaside Note or the Advance
Note, or any of them, the terms of this Seaside
Revolving Credit Note shall control.
17. CLNY as Administrative Agent for Lender.
Borrower acknowledges that CLNY, which, together
with Barnett and FINOVA, constitutes Lender,
serves as Administrative Agent for
Lender hereunder pursuant to the Loan Agreement.
CLNY, as Administrative Agent,
shall have the right to take all actions and
exercise all rights on behalf of, for the
account of and in the name of Lender under this
Seaside Revolving Credit Note and
all of the Loan Documents and Seaside Loan
Documents and Borrower shall accept
such actions and performance by Administrative
Agent as authorized on behalf of, for
the account of and in the name of Lender. In the
event CLNY shall
11
assign its rights as Administrative Agent, at its
option it shall thereafter be relieved
of any further responsibility under this Seaside
Revolving Credit Note and the Loan
Documents and Seaside Loan Documents. All
covenants, agreements,
representations, warranties, indemnifications,
obligations and performances of
Borrower or others to Lender under the Seaside
Loan, this Seaside Revolving Credit
Note and the Loan Documents and Seaside Loan
Documents shall also be deemed
to run to, benefit, include and be enforceable by
Administrative Agent.
18. CLNY as Collateral Agent for Lender. Borrower
acknowledges that CLNY, which, together
with Barnett and FINOVA, constitutes Lender,
serves as Collateral Agent for Lender
hereunder pursuant to the Loan Agreement. CLNY, as
Collateral Agent, shall have
the right to take all actions and exercise all
rights on behalf of, for the account of and
in the name of Lender under this Seaside Revolving
Credit Note and all of the Loan
Documents and Seaside Loan Documents and Borrower
shall accept such actions and
performance by Collateral Agent as authorized on
behalf of, for the account of and
in the name of Lender. In the event CLNY shall
assign its rights as Collateral Agent,
at its option it shall thereafter be relieved of
any further responsibility under this
Seaside Revolving Credit Note and the Loan
Documents and Seaside Loan
Documents . All covenants, agreements,
representations, warranties,
indemnifications, obligations and performances of
Borrower or others to Lender
under the Seaside Loan, this Seaside Revolving
Credit Note and the Loan Documents
and Seaside Loan Documents shall also be deemed to
run to, benefit, include and be
enforceable by Collateral Agent.
19. WAIVER OF TRIAL BY JURY. LENDER,
ADMINISTRATIVE AGENT, COLLATERAL
AGENT, AND BORROWER HEREBY KNOWINGLY, IRREVOCABLY,
VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT ANY
MAY
HAVE TO A TRIAL BY JURY IN RESPECT OF ANY ACTION,
PROCEEDING
OR COUNTERCLAIM BASED ON THIS SEASIDE REVOLVING
CREDIT
NOTE, OR ARISING OUT OF, UNDER OR IN CONNECTION
WITH THIS
SEASIDE REVOLVING CREDIT NOTE OR ANY LOAN DOCUMENT
OR
SEASIDE LOAN DOCUMENT, OR ANY COURSE OF CONDUCT,
COURSE
OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN)
OR
ACTIONS OF ANY PARTY HERETO OR TO ANY LOAN
DOCUMENT OR
SEASIDE LOAN DOCUMENT. THIS PROVISION IS A
MATERIAL
INDUCEMENT FOR LENDER, ADMINISTRATIVE AGENT,
COLLATERAL
AGENT AND BORROWER AND ITS RESPECTIVE PARTNERS
ENTERING
INTO THE SUBJECT LOAN TRANSACTION.
12
THE PROPER FLORIDA DOCUMENTARY STAMP TAX HAS
BEEN PAID ON THIS
SEASIDE REVOLVING CREDIT NOTE AND EVIDENCE OF SUCH
PAYMENT APPEARS ON THE MORTGAGE SECURING THIS
SEASIDE
REVOLVING CREDIT NOTE.
Signed, sealed and delivered in the presence of:
.'"~. ~
By
STATE OF FLORIDA
D
COUNTY OF '~
) SS:
BORROWER:
SOUTH SEAS PROPERTIES COMPANY LIMITED PARTNERSHIP,
an Ohio
limited partnership
By: 1 Resorts, L.C., a Florida limited liability
c imp - ,qts General Partner l
Byes . ,
Robert M. A, Manager J
The foregoing instrument was acknowledged before
me this NO tot day of May, 1997, by Robert M.
Taylor, as Manager of T&T Resorts, L.C., general
partner of South Seas Properties
Company Limited Partnership, an Ohio limited
partnership, on behalf of the
partnership. He is personally known to me or
produced his Florida driver's license
as identification.
H:\uscrs\wp\credit\ss~od.5\documts\revnotc.cn5:5.23.97:daz 1 3
47c~ ~ t;~e~
Notary Public, State of Florida at Large
My Commission Expires: :'.8r~ .~. MiCoMM SIN ~ CC
307~0 |
--,- EXPll2ES: August 12, 1997 1