NOTE MODIFICATION AGREEMENT
Exhibit
10.92
THIS
NOTE
MODIFICATION AGREEMENT (“Agreement”)
is
dated as of March 31, 2007, by and among STANFORD INTERNATIONAL BANK LIMITED,
an
Antiguan banking corporation (“SIBL”),
and
AMERICAN LEISURE HOLDINGS, INC., a Nevada corporation (“ALHI”),
XXXXX
CREEK ACQUISITION COMPANY, LLC, a Florida limited liability company
(“RCAC”),
AMERICAN LEISURE MARKETING & TECHNOLOGY, INC., a Florida corporation
(“ALMT”),
ORLANDO HOLIDAYS, INC., a Florida corporation (“OHI”),
AMERICAN LEISURE, INC., a Florida corporation (“AL”),
WELCOME
TO ORLANDO, INC.,
a
Florida corporation (“WTO”),
AMERICAN
TRAVEL & MARKETING GROUP, INC.,
a
Florida corporation (“ATMG”),
HICKORY
TRAVEL SYSTEMS, INC.,
a
Delaware corporation (“HTS”),
CASTLECHART
LIMITED,
a
United Kingdom private limited company (“CC”),
and
XXXXXXX
X. XXXXXX
(“Xxxxxx”).
RECITALS
A. SIBL
is
the owner and holder of the following Promissory Notes:
1. $15,300,000.00
Fourth Renewed, Amended and Increased Promissory Note dated January 31, 2007,
originally issued by RCAC in favor of SIBL (the “$15,300,000
Note”).
The
payment of this $15,300,000 Note is secured and governed by, among other things,
a Mortgage and Security Agreement recorded in Official Records Book 2855, at
Page 1243 of the Public Records of Osceola County, Florida, as amended by that
certain Mortgage Modification Agreement and Future Advance Certificate made
as
of January 5, 2006 and recorded on January 18, 2006 in Official Records Book
3034, at Page 2915 of the Public Records of Osceola County, Florida, as further
amended by that certain Second Mortgage Modification Agreement and Future
Advance Certificate made as of November 22, 2006 and recorded on December 1,
2006 in Official Records Book 3345, at Page 2054 of the Public Records of
Osceola County, Florida, as further amended by that certain Third Mortgage
Modification Agreement and Future Advance Certificate made as of December 22,
2006 and recorded in the Public Records of Osceola County, Florida, and as
further amended by that certain Fourth Mortgage Modification Agreement and
Future Advance Certificate made as of January 17, 2007, (collectively, the
“$15,300,000
Mortgage”).
2. $3,000,000
Promissory Note dated June 17, 2004, originally issued by ALMT, OHI, AL, WTO,
ATMG, HTS, and ALHI in favor of SVCH, which Note has been assigned by SVCH
to
SIBL effective as of November 30, 2004 (the “$3,000,000
Note”).
The
payment of this $3,000,000 Note is secured by that certain stock pledge
agreement dated as of June 17, 2004 entered into by and among ALHI and SVCH
pursuant to which ALHI pledged to SVCH all of the issued and outstanding stock
of ALMI, OHI, AL, WTO and certain of the issued and outstanding stock of ATMG
and HTS (the “Principal
Stock Pledge Agreement”)
and
that certain security agreement entered into by and among ALHI, OHI, AL, WTO,
ATMG, HTS and SVCH pursuant to which ALHI, OHI, AL, WTO, ATMG, and HTS granted
to SVCH a perfected security interest in all of the property and rights
associated with their respective business other than accounts receivable (the
“Security
Agreement”).
3. $1,355,000
Second Renewal Promissory Note date as of December 13, 2004, originally issued
by Carribean
Leisure Marketing Limited,
an
Antiguan limited company (“CLM”),
CC and
ALHI in favor of SVCH, which Note has been assigned by SVCH to SIBL effective
as
of November 30, 2004 (the “$1,355,000
Note”).
The
payment of this $1,355,000 Note is secured by that
certain Additional Stock Pledge Agreement dated as of June 17, 2004, as amended
by that certain First Amendment to Credit Agreement and Additional Stock Pledge
Agreement dated as of September 10, 2004, and that certain Third Amendment
to
Credit Agreement and Second Amendment to Additional Stock Pledge Agreement,
dated as of December 13, 2004, and by that certain Fourth Amendment to Credit
Agreement and Third Amendment to Additional Stock Pledge Agreement dated as
of
September 7, 2005.
Notwithstanding
the foregoing, the parties agree that CLM is hereby released and discharged
from
any and all liability under the $1,355,000 Note.
4. $305,000
Secured Promissory Note dated as of September 7, 2005, issued by CLM, CC and
ALHI in favor of SIBL (the “$305,000
Note”).
The
payment of this $305,000 Note is secured by that certain Additional Stock Pledge
Agreement dated as of June 17, 2004, as amended by that certain First Amendment
to Credit Agreement and Additional Stock Pledge Agreement dated as of September
10, 2004, that certain Third Amendment to Credit Agreement and Second Amendment
to Additional Stock Pledge Agreement, dated as of December 13, 2004, and by
that
certain Fourth Amendment to Credit Agreement and Third Amendment to Additional
Stock Pledge Agreement dated as of September 7, 2005.
5. $10,000,000
Promissory Note dated as of March 13, 2007, issued by ALHI in favor of SIBL
(the
“$10,000,000
Note”).
The
payment of this $10,000,000 Note is secured and governed by, among other things,
a Mortgage and Security Agreement dated March 13, 2007 and recorded March 15,
2007 in Official Records Book 7211, at Page 2039 of the Public Records of Polk
County, Florida (the “$10,000,000
Mortgage”).
X. Xxxxxx
is
the Chief Executive Officer and a major stockholder of ALHI and directly or
indirectly owns a substantial equity interest in the obligors (the “Borrowers”)
under
the above-described promissory notes (each a “Note”
and
collectively the “Notes”).
X. Xxxxxx
is
the guarantor (“Guarantor”)
of the
$15,300,000 Note under that certain Irrevocable and Unconditional Guaranty
of
Payment dated July 8, 2005 (the “Guaranty”).
X. Xxxxxx
and the Borrowers have requested that SIBL grant certain extensions of the
payments required under the Notes, and SIBL is agreeable to same.
NOW,
THEREFORE, in consideration of the mutual covenants contained herein and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree that the forgoing recitals are true and correct
and further acknowledge and agree as follows:
1. The
Maturity Date of the $15,300,000 Note is hereby extended to the earlier to
occur
of (i) a public offering by AMLH, or any company that acquires a majority of
any
class of capital stock or assets of AMLH, which raises no less than
$100,000,000; or (ii) August 1, 2008 (the “New
Maturity Date’).
Interest on the $15,300,000 Note has been paid through September 30, 2006.
Interest accruing from October 1, 2006 through the New Maturity Date shall
be
due and payable on the New Maturity Date. Provided no event of default exists
under the $15,300,000 Note, no payments shall be required prior to the New
Maturity Date.
2. The
Maturity Date of the $3,000,000 Note is hereby extended to the New Maturity
Date. Interest on the $3,000,000 Note has been paid through September 30, 2006.
Interest accruing from October 1, 2006 through the New Maturity Date shall
be
due and payable on the New Maturity Date. Provided no event of default exists
under the $3,000,000 Note, no payments shall be required prior to the New
Maturity Date.
3. The
Maturity Date of the $1,355,000
Note
is
hereby extended to the New Maturity Date. Interest on the $1,355,000 Note has
been paid through September 30, 2006. Interest accruing from October 1, 2006
through the New Maturity Date shall be due and payable on the New Maturity
Date.
Provided no event of default exists under the $1,355,000 Note, no payments
shall
be required prior to the New Maturity Date.
4. The
Maturity Date of the $305,000
Note
is
hereby extended to the New Maturity Date. Interest on the $305,000 Note has
been
paid through September 30, 2006. Interest accruing from October 1, 2006 through
the New Maturity Date shall be due and payable on the New Maturity Date.
Provided no event of default exists under the $305,000 Note, no payments shall
be required prior to the New Maturity Date.
5. The
Maturity Date of the $10,000,000
Note
is
hereby extended to the New Maturity Date. No Interest on the $10,000,000 Note
has been paid as of the date of this Agreement. Interest accruing from March
13,
2007 through the New Maturity Date shall be due and payable on the New Maturity
Date. Provided no event of default exists under the $10,000,000 Note, no
payments shall be required prior to the New Maturity Date.
6. Guarantor
hereby consents to the modifications of the Notes set forth above and reaffirms
its Guaranty.
7.
General
Provisions.
(a) This
Agreement and all provisions hereof shall be binding upon Borrowers and all
persons claiming under or through Borrowers, and shall inure to the benefit
of
SIBL, together with its successors and assigns, including each owner and holder
from time to time of this Agreement.
(b) Time
is
of the essence as to all dates set forth herein.
(c) Borrowers
and Guarantor agree that its liability shall not be in any manner affected
by
any indulgence, extension of time, renewal, waiver, or modification granted
or
consented to by SIBL; and Borrowers and Guarantor consent to any indulgences
and
all extensions of time, renewals, waivers, or modifications that may be granted
by SIBL with respect to the payment or other provisions of this Agreement,
and
to any substitution, exchange or release of the collateral, or any part thereof,
with or without substitution, and agrees to the addition or release of any
Borrowers, endorsers, guarantors, or sureties, all whether primarily or
secondarily liable, without notice to Borrowers and without affecting its
liability hereunder.
(d) To
the
fullest extent permitted by law, Borrowers and Guarantor hereby waive and
renounce for itself, its successors and assigns, all rights to the benefits
of
any statute of limitations and any moratorium, reinstatement, marshalling,
forbearance, valuation, stay, extension, redemption, appraisement, or exemption
and homestead laws now provided, or which may hereafter be provided, by the
laws
of the United States and of any state thereof against the enforcement and
collection of the obligations evidenced by this Agreement or the
Notes.
(e) The
undersigned shall pay all documentary stamp taxes, if any, intangible taxes,
if
any, recording and filing costs and fees, SIBL's attorney's fees and all other
reasonable and necessary costs and fees whatsoever incurred with respect to,
growing from or arising out of this Agreement and any other document or
instrument executed in connection with this Agreement. If at any time the State
of Florida shall determine that the intangible tax or documentary stamp tax
paid
in connection with the Notes, this Agreement, the $15,300,000 Mortgage, the
$10,000,000 Mortgage, the Principal Stock Pledge Agreement, the Security
Agreement, or any document executed in connection therewith or any modification,
substitution or amendment thereof (collectively, the “Loan
Documents”),
is
insufficient for any reason whatsoever and that any additional intangible tax
or
documentary stamp tax should be paid, then the undersigned shall pay the same
upon such determination together with all interest and/or penalties imposed
in
connection therewith. The undersigned hereby agrees to indemnify, defend and
hold SIBL harmless therefrom. If any such sums are advanced by SIBL, they shall
be due and payable on demand and shall bear interest at the default rate until
paid.
(f)
The
Borrowers and Guarantor hereby represent and warrant unto SIBL that (i) the
Loan
Documents are valid and binding obligations of the Borrowers, enforceable in
accordance with their terms; (ii) the obligations under the Notes, shall
continue to be secured by the Loan Documents without novation or interruption;
(iii) no payment of interest which has been made to the SIBL nor contracted
to
be made to the SIBL has resulted or will result in the computation or earnings
of interest in excess of the maximum lawful rate; (iv) no payment of interest
which has been made to SIBL nor contracted to be made to SIBL has resulted
or
will result in the computation or earnings of interest in excess of the maximum
lawful rate; (v) no oral representations, statements, or inducements have been
made by SIBL with respect to the Loan or this Agreement; (vi) Borrowers have
the
full power and authority to enter into and perform its obligations hereunder
and
each transaction contemplated hereby; (vii) the execution and delivery by
Borrowers of this Agreement and each other document contemplated hereby and
its
performance of its obligations hereunder and thereunder have been duly
authorized by all necessary proceedings on the part of Borrowers; (viii)
Borrowers are current on all taxes applicable to Borrowers, any of its
properties or its business and has not filed any lawsuit, appeal or other
proceeding challenging any tax assessment against Borrowers, any of its
properties or its business; and (ix) there are no judgments outstanding against
Borrowers and there is no action, suit, proceeding, or investigation now pending
(or to the best of Borrowers’ knowledge after diligent inquiry, threatened)
against, involving or affecting Borrowers, at law, in equity or before any
governmental authority that if adversely determined as to Borrowers would result
in a material adverse change in the business or financial condition of the
Borrowers.
(g)
The
Loan
Documents and all representations and warranties contained therein, all of
the
documents executed in connection with the foregoing and any and all
modifications, amendments,
affirmations and extensions to any and all of the foregoing are hereby ratified,
confirmed and approved in all respects as of the date hereof.
(h) Guarantor
represents and warrants unto SIBL that (i) the Guaranty is a valid and binding
obligation of Guarantor, enforceable in accordance with its terms; (ii) any
reference in the Guaranty to any of the Loan Documents shall mean as the same
may from time to time hereafter be extended, amended, modified or restated;
(iii) the Guaranty guarantees the repayment of the $15,300,000 Note as evidenced
by the $15,300,000 Note; (iv) all of the terms, covenants, conditions,
representations, warranties and agreements contained in the Guaranty are hereby
ratified and confirmed in all respects; (v) no oral representations, statements,
or inducements have been made by SIBL with respect to the Guaranty or this
Agreement; (vi) all of Guarantor's representations and warranties to SIBL in
the
Loan Documents are true and correct on this date, as if made on this date,
except to the extent any of them expressly relate to an earlier date; and (vii)
since the date of the most recent financial statements delivered to SIBL, there
has not been any material adverse change in the financial condition of
Guarantor.
(i) The
parties may execute this Agreement and any other agreement executed pursuant
to
it in counterparts. Each executed counterpart will be deemed to be an original,
and all of them, together, will constitute the same agreement. This Agreement
will become effective as of its stated date of execution, when each party has
signed a counterpart and all the executed counterparts have been delivered
to
SIBL.
8. RELEASE:
AS A
MATERIAL INDUCEMENT FOR SIBL TO EXECUTE THIS AGREEMENT, BORROWERS AND GUARANTOR
DO HEREBY RELEASE, WAIVE, DISCHARGE, COVENANT NOT TO XXX, ACQUIT, SATISFY AND
FOREVER DISCHARGE SIBL, ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS AND
ITS
AFFILIATES AND ASSIGNS FROM ANY AND ALL LIABILITY, CLAIMS, COUNTERCLAIMS,
DEFENSES, ACTIONS, CAUSES OF ACTION, SUITS, CONTROVERSIES, AGREEMENTS, PROMISES
AND DEMANDS WHATSOEVER IN LAW OR IN EQUITY WHICH BORROWERS OR GUARANTOR EVER
HAD, NOW HAVE, OR WHICH ANY PERSONAL REPRESENTATIVE, SUCCESSOR, HEIR OR ASSIGN
OF BORROWERS OR GUARANTOR HEREAFTER CAN, SHALL OR MAY HAVE AGAINST SIBL, ITS
OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS, AND ITS AFFILIATES AND ASSIGNS,
FOR,
UPON OR BY REASON OF ANY MATTER, CAUSE OR THING WHATSOEVER THROUGH THE DATE
HEREOF. BORROWERS AND GUARANTOR FURTHER EXPRESSLY AGREE THAT THE FOREGOING
RELEASE AND WAIVER AGREEMENT IS INTENDED TO BE AS BROAD AND INCLUSIVE AS
PERMITTED BY THE LAWS OF THE STATE OF FLORIDA OR ANY APPLICABLE JURISDICTION.
IN
ADDITION TO, AND WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, AND IN
CONSIDERATION OF SIBL'S EXECUTION OF THIS AGREEMENT, BORROWERS AND GUARANTOR
COVENANT WITH AND WARRANT UNTO SIBL, AND ITS AFFILIATES AND ASSIGNS, THAT
BORROWERS AND GUARANTOR HEREBY WAIVE AND RELEASE SIBL FROM ANY CLAIMS,
COUNTERCLAIMS, DEFENSES, OBJECTIONS, OFFSETS OR CLAIMS OF OFFSETS AGAINST SIBL
OR THE OBLIGATION OF BORROWER AND GUARANTOR TO PAY THE LOAN EVIDENCED BY THIS
AGREEMENT AND THE NOTES TO SIBL WHEN AND AS THE SAME BECOMES DUE AND PAYABLE.
9. Except
as
specifically modified herein, all terms of the Notes relating thereto shall
remain in full force and effect.
WAIVER
OF
TRIAL BY JURY: BORROWERS, GUARANTOR AND, BY ITS ACCEPTANCE HEREOF, SIBL, EACH
HEREBY WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW, THE RIGHT TO TRIAL BY
JURY
IN ANY ACTION, PROCEEDING OR COUNTERCLAIM, WHETHER IN CONTRACT, TORT OR
OTHERWISE, RELATING DIRECTLY OR INDIRECTLY TO THE LOAN EVIDENCED BY THIS
AGREEMENT AND THE NOTES, THE APPLICATION FOR THE LOAN EVIDENCED BY THE NOTES,
THIS AGREEMENT, OR THE OTHER LOAN DOCUMENTS OR ANY ACTS OR OMISSIONS OF
GUARANTOR AND BORROWERS, ITS OFFICERS, EMPLOYEES, DIRECTORS OR AGENTS IN
CONNECTION THEREWITH.
[Continues
on following page]
IN
WITNESS WHEREOF, the parties hereto have executed this Note on the day and
year
first above written.
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STANFORD
INTERNATIONAL BANK LIMITED,
an Antiguan banking corporation
By:
/s/ Xxxxx X. Xxxxx
Xxxxx
X. Xxxxx
Chief
Financial Officer
|
|
|
AMERICAN
LEISURE HOLDINGS, INC., a
Nevada corporation
By:
/s/ Xxxxxxx X. Xxxxxx
Xxxxxxx
X. Xxxxxx,
its
Chief Executive Officer
|
|
|
XXXXX
CREEK ACQUISITION COMPANY, LLC, a
Florida limited liability company
By:
/s/ Xxxxxxx X. Xxxxxx
Xxxxxxx
X. Xxxxxx, its Manager
|
|
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AMERICAN
LEISURE MARKETING & TECHNOLOGY, INC., a
Florida corporation
By:
/s/ Xxxxxxx X. Xxxxxx
Xxxxxxx
X. Xxxxxx, its President
|
|
|
ORLANDO
HOLIDAYS, INC., a
Florida corporation
By:
/s/ Xxxxxxx X. Xxxxxx
Xxxxxxx
X. Xxxxxx, its President
|
|
AMERICAN
LEISURE, INC., a
Florida corporation
By:
/s/ Xxxxxxx X. Xxxxxx
Xxxxxxx
X. Xxxxxx, its President
|
|
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WELCOME
TO ORLANDO, INC., a
Florida corporation
By:
/s/ Xxxxxxx X. Xxxxxx
Xxxxxxx
X. Xxxxxx, its President
|
|
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AMERICAN
TRAVEL & MARKETING GROUP, INC., a
Florida corporation
By:
/s/ Xxxxxxx X. Xxxxxx
Xxxxxxx
X. Xxxxxx, its President
|
|
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HICKORY
TRAVEL SYSTEMS, INC., a
Delaware corporation
By:
/s/ Xxxxxxx Xxxxxxx
Name:
Xxxxxxx Xxxxxxx
Title:
Authorized Agent
|
|
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CASTLECHART
LIMITED, a
United Kingdom private limited company
By:
/s/ Xxxxxxx X. Xxxxxx
Name:
Xxxxxx X. Xxxxxx
Title: Chief
Financial Officer
|
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/s/
Xxxxxxx X. Xxxxxx
XXXXXXX
X.
XXXXXX
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