SECOND AMENDMENT (CAPITAL IMPROVEMENTS) TO
AMENDED AND RESTATED LOAN AGREEMENT
THIS SECOND AMENDMENT (CAPITAL IMPROVEMENT) TO AMENDED
AND RESTATED LOAN AGREEMENT (this "Second Amendment"), dated as
of the,,4'1@dav of February, 1998, modifies and amends that
certain AMENDED AND RESTATED LOAN AGREEMENT dated as of
September 26, 1996, as amended by First Amendment (Seaside)
dated as of May 30, 1997 (collectively, the "Loan Agreement"),
all between
Credit Lyonnais New York Branch, a branch duly licensed
under the laws of the State of New York, of Credit
Lyonnais, S.A., a banking corporation organized and
existing under the laws of the Republic of France
("CLNY"), Barnett Bank, N.A., a national banking
association, formerly known as Barnett Bank of Lee
County, N.A. ("Barnett") and FINOVA Capital Corporation,
a Delaware corporation formerly known as Greyhound
Financial Corporation ("FINOVA") (each of CLNY, Barnett
and FINOVA, or their respective successors and assigns,
is individually referred to as a "Participanf', 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, CLN-Y or any successor to, or assignee
of, CLN-Y, hereinafter referred to as "Administrative
Agent"), and CLN-Y 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, CLN-Y or such successor or
assign shall be hereinafter referred to as "Agent")
and
South Seas Resort Limited Partnership, an Ohio limited
partnership ("SSRILP"), South Seas Properties Company Limited
Partnership, an Ohio limited partnership ("SSPC") (formerly
known as Captiva Resort Company Limited Partnership), Marco SSP
Ltd., a Florida limited partnership ("MSSP"), South Seas
Resorts Company Limited Partnership, a Florida limited
partnership ("SSRC") and Safety Harbor Management Company,
Ltd., a Florida limited partnership ("SHMC") (SSPC, SSRLP,
MSSP, SSRC and SHMC, collectively, the "Borrower"; use of such
term hereafter shall include all entities constituting
Borrower, including all general partners of partnerships
constituting Borrower, collectively, and at the same time, each
of the entities, individually).
Capitalized ten-ns used in this Second Amendment shall have the
meanings set forth in the
Loan Agreement, unless otherwise defined herein.
RECITALS:
A. On September 26, 1996, Lender and Borrower entered
into the transactions described in the Loan Agreement and the
other Loan Documents, with respect to Loans aggregating the
original principal amount of Eighty Million and No/100 Dollars
($80,000,000.00).
B. As of May 30, 1997, the parties to the Loan
Agreement executed First Amendment (Seaside), amending the Loan
Agreement to allow for an Adjusted Eurodollar Interest Rate and
clarifying certain other provisions of the Loan Agreement.
C. Lender and Borrower desire to provide for an
amendment of the Loan Documents to allow Borrower to defer
repayment of a portion of the outstanding principal balance
under the Term Loan and to allow Borrower to use the deferred
funds to make certain capital improvements.
NOW, THEREFORE, for and in consideration of the above
premises and the mutual covenants and agreements contained
herein, and other good and valuable consideration, the receipt
and adequacy of which is hereby acknowledged, Borrower and
Lender, intending to be mutually bound hereby, agree as
follows:
TERMS
I . Incoiporation of Recitals: The Recitals set forth above
are true and correct and are
incorporated herein by reference.
2. Principal Balance of the Loans: Borrower confinns
and acknowledges that, as of January 21, 1998, the principal
balance of the Loans is $64, 1 00,000.00, and that such amount
is due Lender free and clear of all claims, demands, setoffs,
defenses or counterclaims. Of such amount outstanding,
$38,250,000.00represents the principal balance of the Tenn
Loan. Pursuant to the Term Note, payments of principal under
the Term Loan are to be made quarterly beginning March 3 1,
1997.
3. No Default under the Loans: Borrower represents and
warrants that there is no
Default or Event of Default under the Loan Documents nor any-
event which, with notice or the
passage of time, or both, would become an Event of Default.
4. Amendment to Loan Aizreement Rep-ardinp- Pa=ents of
Principal under Term Loan:
Section 2.3(b) of the Loan Agreement is hereby amended to read
as follows:
[2.3(a) to remain unchanged]
2.3(b)
anaggregateprincipalpaymentof$1,200,000.00duringthePeriodbeginn
ing on the fifth Installment Payment Date, in two equal
quarterly payments of $550,000.00 each, on March 31, 1998, and
June 31, 1998, and two equal quarterly payments of $50,000.00
each, on
2
September 30, 1998, and December 31, 1998 (Borrower
acknowledging that the amount of principal payments which have
been deferred by Lender aggregates $ 1,000,000.00 (the
"Defeffed Principal"), one-half of which deferral was made in
the third payment for calendar year 1998 and the other half in
the fourth payment for 1998);
with the outstanding principal amount of the Tenn Note being
due and payable in one payment of
$29,225,000.00, together with any accumulated and unpaid
interest thereon, on the Maturity Date.
[2.3(c), (d) and (e) to remain unchanged]
5. Conditions to Amendment: This Second Amendment shall
be effective upon its execution, and Borrower's deferral of the
Deferred Principal under the Tenn Loan shall not constitute a
default, provided that the following conditions are satisfied:
(a) The Deferred Principal shall be fiilly
expended by Borrower during calendar
year 1998, and such use must be solely for the purpose of
making capital improvements to the
Project (including, without limitation, refurbishment of
units) pursuant to the 1998 Capital
Expenditure Budget attached hereto as Exhibit A, which capital
improvements would be recognized
as such under GAAP;
(b) Within fifty (50) days after the end of the
applicable fiscal quarter, Borrower shall provide Agent with
quarterly reports of capital expenditures as of the last day of
each of the calendar quarters of 1998, setting forth the amount
of such Deferred Principal expended to date and listing in
detail the capital improvements toward which such expenditures
were made; and
(c) Within fifty (50) days after December 31, 1998,
Borrower shall provide Agent with a report and certification in
form and content satisfactory to Agent detailing all
expenditures of Deferred Principal, all capital improvements
made with the Deferred Principal, and a timetable of when each
expenditure was made, and certifying that all such capital
improvements would be recognized as "capital improvements"
under GAAP.
(d) Lender shall have ten (1 0) Business Days to
review each such quarterly report and the final report and
certification. In the event Lender objects to Borrower's
classification of any improvement for which any portion of the
Deferred Principal was expended being classified as a &Ccapital
improvement", Borrower shall promptly (and in all events within
ten (10) Business Days after Lender notifies Borrower of such
disallowance) prepay principal under the Tenn Loan to the
extent of the amount of the expenditure as to which such
objection has been made.
6. Fees and Exl2enses: Borrower shall pay all of Lender's
counsels' fees and costs
incurred in connection with the preparation of this Second
Amendment.
7. No Other Amendment: Lender's consent and amendment
herein shall be applicable only to the matters set forth in
this Second Amendment aiid Lender shall not be obligated to
consent to any other request or transaction or waive any other
provisions of the Loan Documents.
8. Affin-nation of Loan Documents: Release of Lender:
Except as otherwise expressly modified herein, all tenns and
provisions of the Loan Documents as originally executed are and
remain unchanged and in ftill force and effect. Borrower and
Taylor and Ten Broek (by execution of a Joinder to this Second
Amendment) agree that execution of this Second Amendment shall
be deemed a reaffin-nation of the representations, warranties
and covenants contained in the Loan Documents and that saine
are true and correct as of the date of execution of this Second
Amendment. Borrower, Taylor and Ten Broek hereby, jointly and
severally: (1) acknowledge that Lender has performed all of its
obligations, if any, under the Loan Documents; (ii) acknowledge
that none has any claims, defenses or rights of setoff against
Lender or as to the validity or enforceability of the Loan
Documents or any of them, or any other documents executed in
connection therewith; and (iii) waive, discharge and release
forever any and all existing claims, actions, causes of action,
demands, defenses or rights of setoff, whether in contract,
tort or otherwise (collectively, the "Claims"), which any or
all of them, or any of their partners, might have against
Lender or its officers, directors, shareholders, agents or
employees, or the successors or assigns of any of the
foregoing. Borrower, Taylor and Ten Broek acknowledge and
agree that the affirmations, acknowledgments, waivers and
discharges contained in this Section are a material inducement
for Lender to enter into this Second Amendment.
9. Florida Law-, Invalidity: Entire AP-reement:
InteMretation: This Second Amendment shall be govemed by
Florida law. This Second Amendment represents the entire
Agreement between the parties with respect to the subject
matter and supersedes all prior or contemporaneous agreements.
Shouldanypartorprovisionhereofbedeemedbyacourtofcompetentjurisd
ictionto be invalid or unenforceable, such invalidity or
unenforceability shall not affect the remaining provisions, all
of which shall remain in full force and effect. This Second
Amendment shall not be construed more strictly against one
party than the other by virtue of the fact that one party or
its counsel may have drafted same, all parties and their
counsel having had the opportunity to participate in the
negotiation and drafting of this Second Amendment. This Second
Amendment may be executed in one or more counterparts, each of
which shall be deemed an on'ginal and all of which, together,
shall constitute a single instrument.
10. WAIVER OF JURY TRIAL. BORROWER, ITS PARTNERS AND
LENDER
HERF-BY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY
RIGHT
ANY MAY HAVE TO A TRIAL BY JURY IN RESPECT TO ANY LITIGATION
BASED ON
OR ARISING OUT OF, UNDER OR IN CONNECTION WITH, THIS SECOND
AMENDMENT OR ANY COURSE OF CONDUCT, COURSE OF DEALING,
STATEMENTS (VERBAL OR WRITTEN), OR ACTIONS OF ANY PARTY HERETO.
THIS WAIVER OF TRIAL BY J-URY PROVISION IS A MATERIAL
INDUCEMENT FOR LENDER TO ENTER INTO THIS SECOND
AMENDMENT.
I
4
IN WITNESS WHEREOF, the parties hereto have executed this
Second Amendment as of
the date written above.
BORROWER:
SOUTH SEAS RESORT LIMITED PARTNERSHIP,
an Ohio limited partnership
By: SAN-CAP Resort, L.C., a Florida limited
liability
By:
any, its General Partner
Robert M.
lor, Manager
SOUTH SEAS PROPERTIES COMPANY L@ED
PARTNERSHIP, an Ohio limited partnership
By: T&T
comp
By:
.C., a Florida limited liability
its neral Partner
Robert M.
aylor, Manager
MARCO SSP, LTD., a Florida limited partnership
By: Marco S its General Partner
By:
Robert M.
aylor, Chairman
SOUTH SEAS RESORTS COMPANY LIMITED
PARTNERSHIP, a Florida limited partnership
By: S.S. Resort Management, L.C., a Florida
limited li
By:
company, its General Partner
Robert M. aylor, Manager
SAFETY HARBOR MANAGEMENT COMPANY,
LTD., a Florida limited partnership
By: S.S. Resort Management, L.C., a Florida
limited li company, its General Partner
By:
Robert aylor, Manager
COLLATERAL AGENT, ADMINISTRATIVE
AGENT AND PARTICIPANT:
CREDIT LYONNAIS NEW YORK BRANCH, a branch, duly licensed under
the laws of the State of New York, of Credit Lyonnais, S.A., a
banking corporation organized and existing under the laws of
the Republic of France
By:
Name:
Title:
6
03/'04./98 IVED 14:26 FAX 954 763 2439
E.,NGLISH, McMALIC.
@002
SOUTH SEAS RFSORTs COMPANY LMTED
PARTNF,RSHU, a Flor-ida limited p@ership
By: S.S. Resort limited li
Management, L.C., a Fjorida
company, its General Partner
By:-
Robert
aylor, Manager
SAFF-TY OR @AGEMENT COMPANY,
LTD., a Florida limited partnership
By- S.S. Resort iinu'ted li
By:
Management, L.C., a Florida
company, its General Paftner
Robert
r, Manager
COLLATERAL AGEN-F, ADMINISTRATIVE
AGENT AND PARTICIPANT:
CREDIT LYONNAIS NF- W YORK BRANCH, a branc@ duly licensed under
the laws of the State of New York, of Credit Lyonnais, S.A., a
banking corporation organized and existing under the laws of
I
the Republic of France
Title:
6
1;02/.12.'A'98 THU 18:'16' FAX '1-95'4-763-'2439
Em
la 027
PARTICIPANTS:'
- -B@ 'N@ a national bnuWi3g
association
By.
Nai=-. -
i
Title.
FIN 'CAPITAL CORPPRANON, a Delaware
Title-.
7
S tt @,4A" @@, @ @
OTHER PARTICIPANTS:
BARNETT B@, N.A. a national banking
association
By
Nanic: -- - - ---
Title: Senior Vice President
FINOVA CAPITAL CORPORATION, a Delaware
corporation
By:
Name:
Title:
EXHIBIT A
1998 CAPITAL EXPENDITURE BUDGET
h:\tLscrs\wp\crcdit\ssr\pinkshel\documts\amcnd.cn7
2.12.98jlk
(Attached)
9
SOUTH SEAS PROPERTIES COMPANY
CAPITAL EXPENDITURES
Analysis of Re-Forecast ISS7 and Preliminary Budget 1998
(000's)
BASE CAPITAL:
South Seas Plantation
South Seas-Health Club
Sundial
Sundial-Pool Renov2tion
Dunes Golf & Tennis Club
Dunes-Pavilion
S2nibel Inn
Best Westem-Sanibel
Song of Sea
M2rco Radisson
Safety Harbor
Seaside Inn
SubtOt2l
South Seas and Captiva Prop
Vacation Planning Center
Corpor2te/MIS
South Se2S-Telephone System
Sanibel Inn-Prop Renov2tion/Roof UnfundL-d
Song of the Sea-Refurbishment
Best Westem Refurbishment
Base Capital Reserve-All Properties (to be 21located)
TOTAL BASE CAPEX
BASE CAPEX AS % of TOTAL REVENUES
PROJECT CAPITAL:
South Seas Plantation
Kings Crown Ca"over
South End Canyover
Owner Refurb Prog
Fiber Optic
Point of Sale System
Sanibel Inn
Room Renovation
Parking Lot
Marco Radisson
Rooms and Olher Renovation
Elevator Add@ion
Safety Harbor
Room Renovation
Land Purchase
Option Payments
Pink Shell Lease Investment
MIS-Springer Miller'96 Carryover
VPC-Yield Mgt System
Corp-Execulive Syslem
MIS-Financial System
Corp-Marketing Data Base System
Shirley's Property Aquisdion
Project t&nagement-Supervision
POL Capital Call
Corp Acquisition Deposfts-Bowdhch/Pink Shell
Corp Acquisdion Deposfts-Suck Key
Corp AcquisRion Deposhs-TradeyAnds
Corp Acquisition Deposits and Due Diligence
TOTAL PROJECT CAPEX
PROJECT CAPEX AS % of TOTAL REVENUES
TOTAL CAPEX FOR
EXISTING PROPEFTTIES
Re-forecast
@12/97
1997
Prelim Budget
@12/97
1998
$1,820 $350
350
562 125
334
168 60
90
122 30
56 70
44 15
438 780
325
66 15
3,276
102 47
294 225
186
200
200
1,000
4,258 3,816
3.56% 3.02%
50
112
2,150
30 1'000
136
208
46
682 1,490
1,380
826
227
1,065 1,065
2,000
241
230 20
24
475 50
85
425
90
190
100
500
262
500
$6,784 $8 @5
5.67% 7.03%
$11.042 $12.591
TOTAL CAPEX AS % of TOTAL REVENUES
9.23%
10.05%
JOINDER TO SECOND AMENDMENT
The undersigned hereby join in the Second Amendment to which
this Joinder is attached for
the purpose of affinning the provisions thereof
ALLEN G. TEN BROEK
ROBERT M
LOR
FIRST AMENDMENT (CAPITAL IMPROVEMENTS) TO
CONSOLIDATED, AMENDED AND RESTATED TERM NOTE
THIS FIRST AMENDMENT (CAPITAL IMPROVEMENT), TO
CONSOLIDATE R.) AMENDED AND RESTATED TERM NOTE (this "First
Amendment"), dated as of the day of February, 1998, modifies
and amends that certain consolidated, Amended and Restated Term
Note as follows:
1. Section 3a (Payment of Principal) is hereby amended
to read as follows:
3a. PayLnent of Principal. The Principal amount of this
Note shall be payable to
Agent for the account of Lender in quarterly installments
beginning on March 31, 1997 (the "First
Installment Payment Date"), as follows:
(a) an aggregate Principal payment of
$1,750,000.00 during the Period beginning on the First
Installment Payment Date, in four equal quarterly payments of
$437,500.00 each, each payment (an "Installment Payment") being
made on the last Business Day of such quarter (such date, an
"Installment Payment Date");
(b) an aggregate Principal payment of
$1,200,000.00 during the Period beginning on the fifth
Installment Payment Date, in two equal quarterly payments of
$550,000.00 each and two equal quarterly payments of $50,000.00
each;
(c) an aggregate Principal payment of
$2,700,000.00 during the Period beginning on the ninth
Instalhuent Payment Date, in four equal quarterly payments of
$675,000.00 each;
(d) an aggregate Principal payment of
$3,250,000.00 during the Period beginning on the thirteenth
Installment Payment Date, in four equal quarterly payments of
$812,500.00 each; and
(e) an aggregate Principal payment of
$1,875,000.00 during the Period begimiing on the Seventeenth
Installment Payment Date, in two equal quarterly payments of
$937,500.00 each,
with the outstanding Principal balance of the Tenn Note being
due and payable in one payment of
$29,225,000.00, together with any accumulated and unpaid
interest thereon, on the Maturity Date.
IN WITNESS WHEREOF, the Borrower has executed this First
Amendment as of the date
written above.
BORROWER:
SOUTH SEAS RESORT LIMITED PARTNERSHIP,
an Ohio limited partnership
By: SAN-CAP Resort, L.C., a Florida limited
liability co
By:
, its General Partner
Robert M. Ta
r, Manager
SOUTH SEAS PROPERTIES COMPANY LRMITED
PARTNERSHIP, an Ohio limited paanership
By: T&T Resorts, L.C., a Florida limited liability
comdanv
. I
By:
General Partner
Robert M. Taylor, Manager
MARCO SSP, LTD., a Florida limited partnership
By: Marco S
2
By:
., its General Partner
Robert M.
aylor, Chainnan
SOUTH SEAS RESORTS COMPANY LIMITED
PARTNERSHIP, a Florida limited partnership
By: S.S. Resort Management, L.C., a Florida
limited liab'
By:
company, its General Partner
Robert M. Tayl
Manager
SAFETY HARBOR MANAGEMENT COMPANY,
LTD., a Florida limited partnership
By: S.S. Resort Management, L.C., a Florida
H:\users\wp\credit\ssr\pinkshei\documts\amendnte.cn2:2.05.98.ji
k
3
limited li
By:
ity company, its General Partner
Robert
aylor, Manager