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EXHIBIT 10.dd
SECOND AMENDMENT TO AMENDED AND RESTATED
PARTNERSHIP AGREEMENT OF
TIDE POINTE PARTNERS
THIS SECOND AMENDMENT to Amended and Restated Partnership Agreement of
Tide Pointe Partners (the "Amendment") is entered into this 24th day of May,
1995, by and between PROVIDERS ENTERPRISES, INC., an Ohio corporation ("PE") and
SEA PINES/TIDE POINTE, INC., a South Carolina corporation ("Sea Pines").
RECITALS:
A. PE and Sea Pines are parties to an Amended and Restated
Partnership Agreement of Tide Pointe Partners (the "Partnership Agreement").
Unless otherwise stated, all terms defined in the Partnership Agreement are
used in this Second Amendment with the same meaning.
B. PE and Sea Pines desire to amend the Partnership Agreement in
accordance with the terms and conditions of this Second Amendment.
NOW, THEREFORE, intending to be legally bound hereby, the parties
hereby agree to continue the Partnership under the Act, upon the following
terms and conditions:
Section I. Amendments to Partnership Agreement. The Partnership
Agreement is hereby amended as follows:
1. On or after the effective date of this Amendment, each
reference in the Partnership Agreement and this Amendment to "this Agreement,"
"hereunder" and "hereof" or words of like import referring to the Partnership
Agreement shall mean and refer to the Partnership Agreement, as amended by the
First Amendment dated August 1, 1994, and by this Second Amendment. The
Partnership Agreement, as amended by the Amendment, is, and shall continue to
be, in full force and effect and hereby is ratified and confirmed in all
respects.
2. Article 5 of the Partnership Agreement is amended by
deleting Section 5.3 in its entirety and substituting a restated Section 5.3 as
follows:
ARTICLE 5
...
Section 5.3 Guaranty of PE Debt
(a) On January 18, 1994, the Partnership executed and
delivered a Guaranty (the "Original Guaranty") of PE's Demand
Promissory Note in the
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principal amount of $5,000,000.00 dated January 18, 1994 (the "Original
Note") payable to P-I-E Financial Corp., an Ohio corporation, the sole
shareholder of PE ("P-I-E Financial"). The Original Guaranty was
secured by a Mortgage on the project (the "$5,000,000.00 Mortgage")
which Mortgage was junior and subordinate to the mortgage securing the
then existing senior bank financing for the project in favor of
NationsBank of South Carolina (the "NationsBank Mortgage").
Concurrently herewith, the Partnership has executed and delivered an
Amendment to Promissory Note amending the Original Note (the Original
Note, as so amended, being hereinafter referred to as the
"$5,000,000.00 Note") and a Revised and Restated Guaranty Agreement
(the "$5,000,000.00 Guaranty") revising and restating the Original
Guaranty. If, pursuant to the $5,000,000.00 Guaranty, the Partnership
pays all or any portion of the principal amount of the $5,000,000.00
Note, the Unpaid Capital Contributions of PE shall be reduced by the
amount of such payment.
(b) On August 4, 1994, to evidence the Partner Loan by PE
referred to in Section 6.1 of this Agreement, the Partnership executed
and delivered a Promissory Note payable to PE in the principal amount
of $7,095,000.00. Such Note was secured by a Mortgage on the project
(the "$7,095,000.00 Mortgage"), which Mortgage was junior and
subordinate to the NationsBank Mortgage and the $5,000,000.00 Mortgage.
Concurrently herewith, the Partnership has executed and delivered a
Guaranty (the "$7,095,000.00 Guaranty") of PE's Promissory Note in the
principal amount of $7,095,000.00 dated August 4, 1994 payable to P-I-E
Financial as amended by an Amendment to Promissory Note of even date
herewith.
(c) As part of the development and construction loan of the
Partnership with First Union National Bank ("FUNB") in the amount of
$27,500,000.00 (the Tide Pointe Development Loan) and $5,500,000.00
(the Cottage Construction Line of Credit) FUNB is requiring certain
additional collateral over and above the real estate collateral
required for a development/construction loan, said additional
collateral consisting of either cash or securities to be placed in the
custody of FUNB through its South Carolina Capital Management Group.
Pursuant to a Loan Agreement of even date herewith, (the "P-I-E Loan
Agreement"), P-I-E Financial will loan to PE the securities required as
"Additional Collateral" under the FUNB loan, and PE hereby agrees to
pledge such required collateral for the benefit of the Partnership
pursuant to the terms of this Section 5.3. Said Additional Collateral
is in the amount of $6,875,000.00 if cash, and $7,218,750.00 if
securities and the Pre-Sales Shortfall Funds is limited in the P-I-E
Loan Agreement to the amount of $5,000,000.00 if cash and $5,250,000.00
if securities. For purposes of this Partnership Agreement, the
"Additional Collateral" and "Pre-Sales Shortfall Funds" shall be
collectively
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referred to as "FUNB Collateral", recognizing, however, that the funds
and/or securities will be pledged to FUNB at different times. In
summary, the total FUNB Collateral provided as a loan by P-I-E
Financial to PE for purposes of the FUNB loan is $11,875,000.00 if
cash and $12,468,750.00 if securities.
Simultaneously with the closing date for the FUNB loan, the
Partnership will execute and deliver a Guaranty in favor of P-I-E
Financial (the "$12,468,750.00 Guaranty") of PE's obligation under the
P-I-E Loan Agreement in the total amount of up to $12,468,750.00. The
$12,468,750.00 Guaranty will be secured by a Mortgage and other
corollary loan documents on the project (the "Consolidated Mortgage"),
which Consolidated Mortgage shall be junior and subordinate to the FUNB
loan for the project. Said Consolidated Mortgage shall supersede and
replace the $5,000,000.00 Mortgage and the $7,095,000.00 Mortgage so
that the total potential indebtedness secured by said Consolidated
Mortgage shall be the $5,000,000.00 represented by the $5,000,000.00
Guaranty, the $7,095,000.00 represented by the $7,095,000.000 Guaranty
and the $12,468,750.00 for the FUNB Collateral, or a total of
$24,563,750.00. The $7,095,000 Guaranty, the $12,468,750.00 Guaranty,
the Consolidated Mortgage and all corollary loan documents shall be in
a form and substance reasonably satisfactory to PE and its counsel.
(d) Upon the closing and the funding of the FUNB loan as
referenced above, the priorities of the real estate mortgages against
the project will be as follows:
(i) FUNB Mortgage;
(ii) Consolidated Mortgage securing the $5,000,000
Guaranty, the $7,095,000 Guaranty, and the $12,468,750
Guaranty;
(iii) The $1,505,000 Mortgage in favor of Sea Pines
dated August 4, 1994 which Mortgage shall be considered on a
par with the $7,095,000 portion of the Consolidated Mortgage.
(e) The Consolidated Mortgage and related loan documentation
will provide for the following priorities:
(i) The $12,468,750 Guaranty;
(ii) The $5,000,000 Guaranty;
(iii) The $7,095,000 Guaranty.
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(f) The Partners recognize and acknowledge that upon and
after the occurrence and continuance of an Event of Default (as defined
in the P-I-E Loan Agreement), then among other things, in the event
that PE is unable to return and/or repay any FUNB Collateral because
FUNB fails or refuses to release such FUNB Collateral or for any other
reason whatsoever, then the Partnership will be obligated pursuant to
the $12,468,750.00 Guaranty to immediately pay to P-I-E Financial, in
immediately available funds, an amount in cash equal to the sum of (i)
the aggregate principal amount of such FUNB collateral, (ii) the total
of all Interest Remittances (as defined in the P-I-E Loan Agreement)
which shall not have been made to P-I-E Financial, and all other
payments required to be made to P-I-E Financial under the P-I-E Loan
Agreement, together with interest on all of the foregoing at the
Default Rate (as defined in the P-I-E Loan Agreement) from the time of
such Event of Default.
Section II. Counterparts. This Amendment may be executed in multiple
counterparts, all of which when taken together shall constitute one document.
IN WITNESS WHEREOF, the parties have executed this Amendment, in
multiple counterparts, as of the day and year first above written.
WITNESSES: TIDE POINTE PARTNERS,
an Ohio Partnership
By: PROVIDERS ENTERPRISES, INC., an
Ohio Corporation, its General Partner
By: /s/ Xxxxxxx X. XxXxx
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Xxxxxxx X. XxXxx
Its Vice-President
Attest: /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
Its Secretary
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WITNESSES: By: SEA PINES/TIDE POINTE, INC., a
South Carolina Corporation,
its General Partner
By: /s/ Xxxxxxx X. Xxxxxxxx
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Xxxxxxx X. Xxxxxxxx
Its President
Attest: /s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx
Its Secretary
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