THIRD AMENDMENT (PLANTATION VIEW) TO
,KMENDED AND RESIAT-EL), LO,
ENT
THIS THIRD AMENDMENT (PLANTATION VIEW) TO AMENDED AND
RESTATED
LOA- I AGREEMENT (this "Third Amendment"), dated as of the
@C)day of March, 1998, mod'fies
-
I
and an -,nds that certain AMENDED AND RESTATED LOAN AGREEMENT
dated as of SeptemLer 26, 1996, as amended by First Amendment
(Seaside) to Amended and Restated Loan Agreemei,t dated as of
May 30, 1997 (the "First Amendment"), and Second Amendment
(Capital Improvem,Tit) to Amended and Restated Loan Agreement
dated as of February 27, 1998 (as so amended al I as same may
be amended from time to time, the "Loan Agreement") 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"), Bamett Bank, N.A., a national
batiking association, formerly known as Bamett Bank of Xxx
County, N.A. ("Xxxxxxx") and FINOVA Capital Corporation, a
Delaware corporation fon-nerly known as Greyhound Financial
Corporation ("FINOVA") (each of CLNY, Bamett 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 terrn 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 Collat--ral Agent or Administrative Agent, CLNY or such
successor or assip shall be hereinafter referred to as "Agent")
and
South Seas Resort Limited Partnership, an Ohio limited
partnership ("SSRLP"), South Seas Properties Company Limited
Partnership, an Ohio limited partnership ("SSPC") (formerly
known as Captiva Resort Company Limited Partnership), Marco SSP
Ltd., a Flon'da limited partnership ("MSSP"), South Seas
Resorts Company Limited Partnership, a Flon'da 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
ten-n 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).
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Capitalized ten-ns used in this Third 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. SSPC desires to acquire a shopping center known as
Plantation View Shopping Center, located in Xxx County,
Florida, consisting of approximately 9,233 square feet of gross
leasable building area (hereinafter defined as "Plantation
View"). The legal description of Plantation View is more
particularly set forth on "A" attached hereto and made a part
hereof
C. Borrower has requested that Lender make a term loan
to Borrower in the original principal amount of Two Million One
Hundred Eighty Thousand and No/100 Dollars ($2,180,000.00) (the
"Plantation View Loan") as part of SSPC's acquisition of
Plantation View. The Plantation View Loan will be evidenced by
a terrr. note, a first mortgage and security agreement and
related security documents (collectively, the "Plantation View
Loan Documents"). In connection with the Plantation View Loan,
all representations, warranties and covenants of Borrower in
the Loan Documents shall hereafter apply to Plantation View.
All entities constituting Borrower shall continue to be jointly
and severally obligated for all sums evidenced by the Loans and
shall become jointlyand severally obligated for all sums
evidenced by the Plantation View Loan.
D. Lender has agreed to make the Plantation View Loan on
the terms and subject to the
conditions set fo,-th below.
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 . Incorporation of Recitals: The Recitals set forth above
are true and correct and are
incorporated herein by reference.
2. Princil2al Balance of the Loans and the Seaside
Loan: Borrower confinns and acknowledges that, as of March 3,
1998, the outstanding principal balance of the Loans is
$63,600,000.00, and the outstanding principal balance of the
Seaside Loan (as defined in the First Amendme,.it (Seaside) to
Amended and Restated Loan Agreement) is $3,500,000.00, and that
all such amounts are due Lender free and clear of all claims,
demands, setoffs, defenses or counterclaims.
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2
3. No Default under the Loans or the Seaside Loan:
Borrower represents and warrants that there is no Default or
Event of Default under the Loan Documents or the documents
evidencing the Seaside Loan, nor any event which, with notice
or the passage of time, or both, would become an Event of
Default.
4. Amendments to Loan Aueement Rei4ardini4 Plantation
View: The Loan Ageement is hereby amended as follows to
effectuate the addition of Plantation View to various concepts
relevant to the Loan:
(a) Recital D is hereby amended to read as follows:
D. On September 23, 1994, Greyhound Financial
Corporation entered into a transaction (the "FINOVA
Transaction") in which it extended credit to MSSP in the
original principal amount of $19,500,000.00 (the "FINOVA Loan",
as further defined hereinafter) secured by a mortgage (the
"FINOVA Mortgage", as further defined hereinafter) on the
"Radisson" (as hereinafter defined). As of January 1, 1997,
Bamett entered into a transaction (the "Seaside Transaction")
described in the Assumption and Modification Agreement
("Assumption and Modification Agreement") with respect to the
Seaside Loan, secured by a mortgage on "Seaside Inn" (as
hereinafter defined). SSPC has acquired the Plantation View
Shopping Center (the "Plantation View Transaction") (the
Initial Transaction, the Modified Transaction, the FINOVA
Transaction, and the Seaside Transaction, together, the
"Previous Transactions," and the documents evidencing the
Previous Transactions, together, the "Previous Documents").
(b) Recital F is hereby amended to read in
pertinent part as follows:
F. SSRLP is the owner in fee simple of the real
property situated in Xxx County, Florida
("South Seas Plantation"), more particularly described in
Exhibit "A- I " attached hereto. MS SP is
the owner in fee simple of the real property situated in
Xxxxxxx County, Florida ("Radisson"), more
particularly described in Exhibit "A-2" attached hereto.
SSPC is the owner in fee simple of the real
property situated in Xxx County, Florida, more particularly
described in Exhibits "A-3" ("Sundial"), "X-0" ("Xxxxx"), "X-0"
("Xxxxxxx Inn"), "A-6" ("Best Western-Sanibel"), "A-7" ("Song
of the Sea"), "A-8" ("Seaside Inn") and "A-9" ("Plantation
View") attached hereto (South Seas Plantation, Sundial, and
Dunes are, hereafter, collectively referred to as the "Modified
Land"; Sanibel Inn, Best Westem-Sanibel, Song of the Sea and
the Radisson are, hereafter, collectively referred to as the
"New Land"; the Modified Land, the New Land, Seaside Inn and
Plantation View are hereinafter referred to collectively as the
"Land").
(c) The definition of "Assets" in Section 1.8 is
hereby amended to include all property now or hereafter owned
by Bor-rower, including, without limitation, those items
described therein consisting of, or related to, Plantation
View.
(d) Section 1.53 is hereby amended to add those items
described therein
consisting of, or relating to, Plantation View, to the list of
Improvements included in such definition.
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3
The Plantation View Improvements are generally described on
Exhibit "B" attached hereto and made
a part hereof
(e) Section 1.88 (definition of "Outstanding Loan
Amount") is hereby amended to add the phrase "and the Term Note
(Plantation View) dated as of March .30, 1998" before the
phrase "at such time."
(f) Section 1.100 is hereby amended to add
Plantation View, as well as any developments and properties
acquired by Borrower after the date hereof with proceeds of the
Revolving Credit Loan or through application of Section 1 1. 8
of the Loan Agreement, to the list of developments included in
the definition of Project. The change in the definition of
Project shall be deemed incorporated in all Loan Documents in
which the term "Project" is used.
(g) Paragraph 1. 125 is hereby arnended to add the
following survey to the list of
surveys:
(i) Boundary Survey for Plantation View Shopping Center
Commercial Condominium located on lots 4, 5 and 6
unrecorded Xxxxxxxx'x addition to Gulfview in Section 00,
Xxxxxxxx 00 Xxxxx, Xxxxx 21 East, Captiva Island, Xxx
County, Florida, dated February 26, 1998, prepared by
Xxxxxxx Engineering Inc. and identified as Project No.
21893, as revised.
(h) The following new definitions are added in
Article 1:
" Plantation View Closiny- Date" shall mean the date of
this Third Amendment.
"Plantation View" shall have the meaning given in the
Recitals.
"Plantation View Loan" shall have the meaning given in
the Recitals.
(i) Section 3.23 is hereby amended to add the
following:
As of the Plantation View Closing Date, Borrower has not
received any other
financing for the Project or any portion thereof that has not
been satisfied.
0) Section 3.25 is hereby amended to add the following to
the list of
environmental site assessments listed in that Section:
... (i) The Phase I Environmental site assessment of
Plantation View dated
February 2, 1998, prepared by Xxxxxxxx Intemational, Inc.
ti-@ Section 3.41 is hereby arnended to add
Plantation View to the list of properties
k-i
owned by SSPC.
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4
(1) The following is hereby added as Section 3.57:
... 3.57 Plantation View Loan as Pennitted Real Prol2erty
Indebtedness. The
Plantation View Loan, and the value and financial condition of
Plantation View, meet, in all
respects, the requirements of the definition of "Permitted Real
Property Indebtedness" described in the Indenture, such that:
(i) the Plantation View Loan constitutes "Permitted Real
Property Indebtedness" under the Indenture and; (ii) the
Plantation View Loan is a part of the "Senior Indebtedness" and
the "Designated Senior Indebtedness" described therein. The
obligations of Borrower under the Plantation View Loan are
being incurred to acquire the real property and related
tangible and intangible personal property, fixtures and
improvements constituting Plantation View. Borrower is in full
compliance with the requirements of the Indenture as to the
incurring of such Permitted Real Property Indebtedness in such
a manner as does not violate the terins of the Indenture.
Borrower and Lender acknowledge that, in order to qualify as
"Permitted Real Property Indebtedness" under the Indenture, the
Plantation View Loan is to be secured exclusively by a
mortgage, deed of trust, security agreement or assignment, or
other lien or charge against the Plantation View real property
and/or improvements thereon (and/or any personal property
(tangible or intangible) and fixtures relating thereto
(collectively, the "Plantation View Assets"). Borrower and
Lender agree that, notwithstanding anything to the contrary
contained in the Plantation View Loan Documents, the Plantation
View Loan shall be secured only by the Plantation View Assets.
(m) A new section 6.37 is hereby added, to read as
follows:
6.37 Satisfaction of Oblii4ations/Sale of
Assets/Termination of Security Interests. Borrower agrees that
it shall not be permitted to satisfy and pay in full any of the
Obligations relating to South Seas Plantation, or sell, assign
or convey South Seas Plantation (or any interest therein), or
request that Lender terminate (in full or in part) the secuiity
interests or liens otanted by Borrower to Lender relating to
South Seas Plantation pursuant to the Loan Agreement, the
Mortgage, the Security Agreement or the other Security
Documents if, after such satisfaction and payment, any amounts
or Obligations would remain unpaid, outstarding, or unfulfilled
under either the Plantation View Loan or the Seaside Loan, or
both.
(n) Section 8.3 is hereby amended to add a
representation by Borrower that, based upon payment of
documentary starnp taxes and intangible taxes concurrently
herewith, no additional documentary stamp or intangible taxes
are due and payable on the amount of the Plantation View Loan,
and an agreement by Borrower that if any taxes should become
payable in connection with the Plantation View Loan, the
provisions of Section 8.3 containing Borrower's agreement to
pay such taxes shall apply to any such taxes.
(o) The following is hereby added to Section 7.l:
... (v) Default under Plantation View Loan. SSPC shall
be in default of any covenant, agreement or obligation under
the Plantation View Loan or any of the Plantation View Loan
Documents.
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4a. Satisfaction of Requirement to Amend Indenture.
Pursuant to the First Amendment, Borrower undertook to amend
certain definitions set forth in the Indenture, as provided
therein, and has amended the Indenture in the manner set forth
in the First Supplemental Indenture dated as of February 27,
1998 (the "First Supplemental Indenture"); however, and
notwithstanding the First Supplemental Indenture: (i) Borrower
and Lender agree that the provisions of the First Amendment and
the Seaside Consolidated, Amended and Restated Revolving Credit
Note which provide for the commencement of principal
amortization in the event the amendment of the Indenture has
not been effected within a certain period of time shall remain
in force and effect and such pn'ncipal amortization shall
commence, and principal paymen' s shall be made, on the dates
provided therein; and (ii) because the amendments effected by
the First Supplemental Indenture do not pennit the Seaside Loan
to be consolidated with the Revolving Credit Loans, such
consolidation shall not take place.
5. Modification of Seaside Loan Documents. Borrower
agrees that, within a reasonable time period, not to exceed
sixty (60) calendar days after the effective date of this Third
Amendment, it will execute such documents as Lender shall deem
necessary or desirable to modify the documents evidencing the
Seaside Loan to add, as collateral security for the Seaside
Loan, all such tangible and intangible personal property and
fixtures as contemplated by and permitted under the Indenture
as amended by First Supplemental Indenture.
6. Exhibits. The exhibits and schedules to the Loan
Agreement are hereby amended as
follows:
(a) A new Exhibit A-9 to the Loan Agreement ("Plantation View
Legal Description") is added in the fon-n of Exhibit A
hereto.
(b) Exhibit B to the Loan Agreement ("Improvements") is
hereby amended as set forth in Exhibit B hereto to add
Plantation View.
(c) Exhibit C ("Litigation Proceedings"), setting forth a
schedule of litigation proceedings, is hereby amended and
restated as the schedule set forth as Exhibit C hereto.
(d) Exhibit G to the Loan Agre(@ment ("Budget") is hereby
amended to add Plantation View.
7. Particil2ation Interests. The Participants'
interests in the Plantation View Loan, expressed either as a
sum in Dollars or as a percentage of the sum of the Plantation
View Loan commitment, shall be as set forth on Exhibit D
attached hereto, as same may be amended by the Participants
from time to time. The Participants shall be bound, for
purposes of the Plantation View Loan, by all provisions bf the
Loan Agreement with regard to the relationship among them and
with the Collateral Agent and the Administrative Agent.
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8. Conditions to Effectiveness: The parties' obligations
hereunder shall be contingent
on the satisfaction of the following conditions on or prior to
the Plantation View Closing Date:
(a) execution by Borrower and delivery to Lender of an
officer's certificate in the forrn attached hereto as
Exhibit E certifying that the Plantation View Loan meet,
in all respects, the requirements of the definition of
Perrnitted Real Property Indebtedness described in the
Indenture as amended by First Supplemental Indenture
dated as of Febr-uary 27, 1998, and certifying complianc-
- with the requirements of the Indenture as to the
incurring of such Permitted Real Property Indebtedness in
-.uch a manner as does not violate the tenns of the
Indenture.
(b) execution of the documents specified in the Plantation
View Loan closing checklist provided to the parties; and
(c) receipt and approval by Lender of the legal opinions
specified in the Plantation View Loan closing checklist.
9. Fees and Exl2enses: Borrower shall pay all of
Lender's counsels' fees and costs incurred in connection with
the preparation of this Third Amendment and Lender's counsel's
review of any documentation relating to the Plantation View
Loan.
10. No Other Amendment: Lender's consent and amendment
herein shall be applicable only to the matters set forth in
this Third Amendment and Lender shall not be obligated to
consent to any other request or transaction or waive any other
provisions of the Loan Documents.
Affin-nation of Loan Documents, Release of Lender:
Except as otherwise expressly modified herein, all terms and
provisions of the Loan Documents as originally executed are and
remain unchanged and in full force and effect. Borrower and
Xxxxxx and Ten Broek (by execution of a Joinder to this Third
Amendment) agree that execution of this Third Amendment shall
be deemed a reaffirmation of the representations, warranties
and covenants contained in the Loan Documents and that same are
true and correct as of the Plantation View Closing Date.
Borrower, Xxxxxx and Ten Broek hereby, jointly and severally,:
(i) 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, Xxxxxx and Ten Broek acknowledge and xxxx
that the affirmations, acknowledgments, waivers and discharges
contained in this Section are a material inducement for Lender
to enter into this Third Amendment.
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12. Florida Law, Invalidity, Entire A2reement,
Interpretation: This Third Amendment shall be govemed by
Florida law. This Third Amendment represents the entire
Agreement between the parties with respect to the subject
matter and supersedes all prior or contemporaneous agreements.
Should any part or provision hereof be deemed by a court of
competent jurisdiction to 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 Third 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 Third Amendment. This Third
Amendment may be executed in one or more counterparts, each of
which shall be deemed an original and all of which, together,
shall constitute a single instrument.
13. WAIVER OF JURY TRIAL. BORROWER, ITS PARTNERS AND
LENDER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE
ANY RIGHT ANY MAY HAVE TO A TRIAL BY @Y IN RESPECT TO ANY
LITIGATION BASED ON OR ARISING OUT OF, UNDER OR IN CONNECTION
WITH, THIS THIRD AMENDMENT OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENTS (VERBAL OR WRITTEN), OR ACTIONS OF ANY
PARTY HERETO. THIS WAIVER OF TRIAL BY JURY PROVISION IS A
MATERIAL INDUCEMENT FOR LENDER TO ENTER INTO THIS THIRD
AMENDMENT.
IN WITNESS WHEREOF, the parties hereto have executed this Third
Amendment as of the
date written abgve.
BORROWER:
SOUTH SEAS RESORT LIMITED PARTNERSHIP,
an Ohio limited partnership
By: SAN-CAP
liability co
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By:
Resort, L.C., a Florida limited
. its General Partner
Xxxxxx X. T xxx, Manager
SOUTH SEAS PROPERTEES CONEPANY LMTED
PARTNTERSHIP, an Ohio limited partnership
By: T&T Reso!ls, L.C., a Florida limited liability
company
By:
1 General Partner
Xxxxxx X. Xxxxxx, Manager
MARCO SSP, LTD., a Florida limited partnership
By: Marco SS
By:
c., its General Partner
Xxxxxx X. Xx
xxx, Chairman
SOUTH SEAS RESORTS COMPANY LIMITED
PARTNERSHIP, a Florida limited partnership
By: S.S. Resort gement, L.C., a Flon'da limited li
mpany, its General Partner
By:
Xxxxxx X. T
xxx, Manager
SAFETY HARBOR MANAGEMENT COMPANY,
LTD., a Florida limited partnership
By: S.S. Resort limited li
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9
By:
Xxxxxx
anagement, L.C., a Florida
ompany, its General Partner
. Xxxxxx, 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:
OTHER PARTICIPANTS:
XXXXXXX XXXX,, N.A. a national banking
association
By:
Name:
Title:
FINOVA CAPITAL CORPORATION, a Delaware
corporation
By:
Name:
Title:
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an
I 0
SOUTH SEAS RESORTS COMPANY LIMITED
PARTNERSHIP, a Florida limited partnership
By: S.S. Resort Management, L.C., a Florida limited liability
company, its General Partner
By:
Xxxxxx X. Xxxxxx, Manager
SAFETY HARBOR MANAGEMENT COMPANY,
LTD., a Flon'da limited partnership
By: S.S. Resort Management, L.C., a Flon'da I'm'xxx I'ab'lity
company, its General Partner
1 1 1 1
By:
Xxxxxx X. Xxxxxx, 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
Na
Title:
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I 0
OTHER PARTICIPANTS:
XXXXXXX BANK, N.A. a national banking
association
nt-
Title: Sr. Vice President
FINOVA CAPITAL CORPORATION, a Delaware
corporation
By:
Name:
Title:
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X X
OTHER PARTICIPANTS:
XXXXXXX BANK, N.A. a national banking
association
By:
Name:
Title:
FINOVA CAPITAL CORPOPATION, a Delaware
corporation
z @A
By:
Nar
Title: N.11CF: PRF-SIDENT
Title: N.11CF: PRF-SIDENT
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I 1
JOINDER TO THIRD AMENDMENT
The undersigned hereby join in the Third Amendment to which
this Joinder is attached for
the purpose of affirming the provisions thereof
XXXXX X. TEN BROEK
ERT XXXXXX
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EXHIBIT A
TO THIRD AMENDMENT
EXHIBIT "A-9"
PLANTATION VIEW LEGAL DESCRIPTION
ATTACHED
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v\documts\amendiag.cn6:3.20.98:j,,,,
12
Commonwealth
FXHTRTT A
Commitment No.: 864-458553
F,i, 1. (- No - : M7 6.3 8 8 R
PAP,('F.T) 1 ,
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T,YTNC, TN
SF,CTTON 00, X-00-X, X-00-X
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DFGRFFQ 551201, W AT,ON(-, THF FA,3TFRT.,Y BOTINT).ARY OP IATn
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TNTFRQFCTTON WT'.i"H THF. NORTHFA'.qTFRT.Y T.TNF, OF VACATFJ)
StTtq';FT NRTVF Al,; SHOWN ON THF liNRFCORDFD P.T.,AT OF
C14ADWTCK'S AT)DTTTON TO C,,13T.,FVTFW; 'PHFj\:CF Rr.)N @ 18
T)FC7RFF,@9 4,1.'40" W PFRPFNDTCliLAR TO SATD NORTHEASTFRT,Y
T,TNF FOR 5.00 FFET TO A CONCRFTF MONT
.;MF.NT AT T14F, T.NTF-R,9FCTTON WTTH THF NORTHF.ASTFPT,V
T.TNF, OF VACATFD S N T DRTVF AS SHOWN ON THF PT.,AT OF CAPTTVA
BEACH RFCORDFD TN PT,AT BOOK 7 AT PAGF, 73 OF S.ATD PTIET,TC
RFrORr).9; TfiFN(F (-ONTTNIJF q 1,9 IDPCR.F.FS 41.140" W FOR
10.00 FFET TO TiiF CFNTFRT,TNE OF VACATFT) ',913NqFT DR.TVF. AS
RFCORT.)FD TN OFFTCTAL, RFCOROQ 'ROOK I..'iOl AT PA.(',F 725 OF
T14F PT.JSI.,TC RF.C(.)Rr),S OF T.,FF, rO@.J.NTY,, T.HF@IV('F.
S 71. DFC,,RFFS 18120" P AT,ON('. qATn (,P.NTFRT.,TNF, FOR 86-
12 FFFT; THENCF N i 8 XXX.XX.XX 41 '40" F FOR 19 - 58 FFFT;
THFNCF N 71 T.)FrRFF.S 1 8'7,0" W FOR 74.00 FEET; THENCF N 02
DFGRFFS 5@)'20" F FOR I-'3.00 PPFT; THENCF@ .9 86 nF,r@P,F.Fq
.92"17" F FOR 42,,56 FPFT; T14F.N(F S 03 'DFC,RFFS 07,23" W FOR
6.57 FEFT; THENCF S 86 DF(7RFF@.9 52'37" F FOR 88.92 FFFT TO
TfiF WFST T,TNF OF S.ATD DFF,T) PARCFT., RECORT)FD TN
OFFTC'X.XX., RFCOR09 ROOI< 1555 AT PAGF. 1586; THFIV'('.F N 02
DERTRFFS 55'20 F AT,ONR, THR WFQT T@TNF OP ';ATI) PAR(FT, FOR
1.1-5.44 FF-FT To THF POTNT OF BFCTNNTNC,.
N
g
RPARTNGS MFNTTONFD A.RF PT.,ANF, (-OORDTNATF.S FOR THF
FT.,XXXX)X X ' F,,9 T 7, 0. F, A,
RFFFRRNCFD TN PRFVTOTJS CONVEYANCFS WTTH TTIF SOt;Tl4FRLY
I.,TNE OF CAPTTVA
ORTVF S.W. AS BEARTNG N 71 DFGRFFS 18'2011 W.
COXTTNTJFD ON NFXT PA(7F
Commonwealth
PAR('FT, 2:
A PARCIFT, OF T.@AND T,,YTNG TN XXXXXXX 00, XXXXXXXX 4)
SOI]Tli, RAINGF 23 FA@';T,
.T,,FF ROT;NTY, FT.@ORTDA, WHTCH PARCFT, T-, DF-,CRTBFr) AS
FOT.,T,,OWq:
FROM XXX XXXXXXXXX XXXXXX XX X,,XX 70 TN F.A. I-,ANF,'S
'3FCONr) ',qt,)BT)TVIS,ION OF .RAYVTFW, ACCOROTNC, TO Ti4F MAP
OR PT,.AT TfiFRFOF RF('ORDFr) -TN PLAT BOOK 3 AT PAGF 75 OP
T14F PTIRT,T(' RFC'ORT)c: OF T,FF CO[INTY, RTIN WEST FOR 00
X,XXX XX X.XXX XX.'0X X.,XXX OF CAPTTVA DRTVF, SOIJTHWFST,
FORMFRT.,Y MIJN.@ON c;TRFF.'T; THENCE RI)N NORTH 02 DEGRFFS 55'
20" FAST AT,ONC, THF WEST T,TNF OF SATO STRFFT FOR 283 FEFT TO
AN INTERSECTTON WTTH THF SOI;THWF',3TF.RT,Y T.,TNF OF SATD
C.A,PTTVA. DRTVF, 90@ITHWF,ST, FORMFRLY BTNDER AVFNTJF; THFNCF
RIJN NORTH 71 T)FC.,PFFS 18' 00" X.X,XX XX.,XXX-; SATD
$Ot@THWFSTFRI.-Y T.,TMF, FOR 760.25 FFET TO A CONC.RFTE
MONlljME.NT AT THP NORTHWFSTFRT.,Y CORtqF.R OF T,ANDQ CONVFYFN
BY DFFD RFCORDFD TN OFF.TC-YAT., RF.CoRnS BOOK 1555 AT PANP
0000 XX XXXX X00XX,XX XXXXXXX; THFNCF, CO;'4TT,Nl.)F NORTS 71
DEGRFFS IS' 00" XXXX XX,XXX SATD S017TIiWESTFRT,,Y T.,TNF FOR
1.50.00 FFF,T TO THF, NORTHF.ASTFRLY ('XXXXX OF T-ANT)S
CONVF@YFD BY DFFI) RFCORT)FT) TN OFFTOTAT, RECOROS ROOK 917 AT
PAGR 609 OF RATD PTYST,TC RFCOROS; THENCF RUN @qOtITT4 02
DEGREES 55' 20" WFc3T A@,ON(7 THF, FASTFRTY 13OIJNDARY OF qATT)
T,ANDS FOR 183.30 FFFT TO A CONCRFTF MONTIMFNT AT THE
TNTERSECT.I'Ojlq WTTH TfiE NORT.HEASTFRI@Y T,TNF OF VA(ATPN
13IJNqF.T T)RTVF, AS SfiOWN ON THF TINRP O
(I
R.DFT
)
P.T.I
AT
OF CHA.DWTCK'S ANDTTTON TO (,TIT,FVTFW, TfiFNCF, SOIJTH .1.8
T)FGREFS 41.' '40" WEST PFRPFNnTCtJT,AR TO SATD NORTHFASTFRT.,Y
T,TNF FOR 5.00 PFFT TO A CONCRETE MONIJMFNT AT THE TNTERSECTTON
WTTH THF NORTHEASTERT,Y 1,TNF. OF VACATFD q[JNSFT DRTVF Aq
SHOWN ON THF. PT,AT OF CAPTTVA RFACH RFCORI)FR) TN PI)AT B.OOK
7 AT , PAGF 73 OF SATD PT]BT,TC RFCORT)S; 'PHF@'qCF CONTTNUF,
SOI]TH IS DFCRFFI@3 41.' 40" WEST FOR 10.00 FFET TO T14F
CFNTERT.TNF OF VACATED '.;TJNSFT R)RTVP Aq RF,(-,ORT)Fj) TN
OFFTCTAT, RECORDS BOOK 1301 @T PAC, 7 000 XX XxxX X0000X.,XX
XXXXX.XX XX X,XX COIJNTY; THFNCP SC)TJTH 71 I)FCTRFFQ 1.8' 20"
F.AQT AT,ONC, SATD CF.NTFRT,TNF FnR 86.12 FFFT TO THF POTNT OF
BEGTNNTNC,; THENCF NORTH 18 ORCRF-PS 41' 40" FA,QT FOR 1.9.58
FFFT; TfiFNCF. NORTfi 71 nFCRPF-1,; 18' 20" WFI;T FOR 74-00
FFF@T,THFNCE NORTH 02 nFr@RPPq 55' 20" FA1,3T FOR ]-'I,00 PFFT;
THFNCF SOTJTH 86 DEGRFFS 52' 37" EAST FOR 42.56 FEFT; THENCE
SOIJTH O.-i T)F(,TZF.FS 07' 23" WEST FOR 6.57 PEPT; THENCF
SOIJTH 86 DPGRFFS 521 .3711 PA'.QT :FOR 88.92 PFFT TO THF@ WFST
T,TNF OF SATD NFFD PARCET@ RFCORDF.T) TN OFFTCTAT., RECORDS
BOOK 1.555 AT PAGF 1586; THFNCE SOIJTli 02 DFARFFS 55' 00" XXXX
XX,XXX XXXX. XXXX 0,XXX, OF SATD PARCET, FOR 47.86 FEET TO A
CONCRFTE MONIJMF.NT AT T14P, T?qTF.R.0,F,(',TTOiN WTTli THP
NORTHF.ASTFRT.,,Y T,TNF OF VA(ATPN qt]NqFT T)RTVF. Aq 0,14OWN
ON TNF, TJNRF(-,ORT)FD PT,AT OF CFADWTCK'S ADD.TTTON TO
CIJ.T.FVTFW; TtiF.NCE ,;OtITH 18 T)F(.'YRFFS '41.' 00" XXXX
XX,XXX SATD PARC,'FT., ANT) PFRPFiVnTCliT,AR TO SATT)
NORTHFASTFRI,Y 1,TN.Fl FOR
5.00 FRET TO A CONCRETE MONTJMFNT AT THR TNTERSECTTON WTTE
THF
NORTHEASTERT.,Y T.,TlqF. Or VA(-ATFI) SL@NSFT NRTVE AS gHOWN ON
TFF 'Pt.,.AT OF CAPTIVA BEACH RFCORDRD ' TN PI,AT BOOK 7 AT
PAGF. 7-3, Pl.jBf,,T.(- RFCORnq; THENCF CONTTNTJE SOIJTH 18
T)FrlpP.Fq 4.1.' 40" WFQT FOR 10-00 PF,FT TO TH.F, CFNTFRT,TNF,
OF @-,ATD VACATED SIINSET DRTVF; TTIFNCE NORTH 71 NFGREFS 18'
20" WF,,;T Al.,ON(3, SATD CENTER T,TNF FOR 63.88 FF.FT Tn TFF
POTNT OF BFGTNNTWA.
REARTNOS MFNTTONFN A@F PT,AN@ COOIROTNATFS FOR TTTF FT,XXXX)X.
XXXX ZONF, Aq REFFRFNCFD TN XXXX.XX(JS CONVEYANCFS WTTR THE
SOIJTHF.RT@Y T.,TNF@ OF CAPTTVA DRTVF 80t)THWFST AS BFARTNG
NORTH 71 nF(7RFF.,3 18' 20" WR,9T. .
EXHIBIT B
TO THIRD AMENDMENT
PLANTATION VIEW IMPROVEMENTS
ATTACHED
H:\users\WP\credit\ssr\plan-v\documts\amendlag.cn6:3.20.98.jan
13
Platitation View Sizoppitig Center
B.1 DESCRIPTION AND ANALYSIS OF TI-IE PITOPERTY
LOCAUON
'14820 Xxxxxxx Xxxxx Xxxxxxxxx
Xxxxxxx Xxxxxx, Xxxxxxx 00000
LAND
Size and Configuration: The subject property is approximately
28,170 square feet, and is
shaped irregularly.
Froiitage and Accessibility: The subject property has road
frontage and access from
Captiva Drive, a two lane, asphalt-paved, publicly maintained
roadway.
Topograpliy: Like aU properties located in Captiva Island, the
subject property is only
slightly above mean sea level. It is generally level and is at
street grade.
Flood Zone: The subject property is located in Flood Zones A-11
(Elevation 12 feet) and V-14 (Elevation 13 feet) as per Panel
No. 125124 0264 B, effective September 19, 1984. According to
tl-ie Federal En-iergency Managenient Agency (FEMA), Zone A is
designated an area of a 100-year flood zone base flood
elevations and flood hazard factors not determined. Zone V is
an area of a 100-year coastal with velocity (wave action), base
flood elevations and flood hazard factors have been determined.
Utilities and Public Services: Public water, sewer,
electricity, telephone, police and fire protection are aU
available to the subject site. The South Seas Resorts provides
water and sewer services. The Xxx County Electric Power Co-op
provides electrical service.
Easenients and Encroachments: Typical utility and access
easements are assumed to exist throughout subject site. We are
not aware of any easements which negatively in,ipact the
utility of the property for continuation of its current use.
Development on Neighboring Sites: The subject property is
bounded by a U.S. Post Office to the west, Xxxxxxxx'x Square
shopping center on the east, vacant land to the south and
Captiva Drive Southwest to the north. Most development within
the immediate area consists of low-rise resorts, condominium
buildings and commercial buildings.
Artliur Xxxxxxxx LLP - Hospitality Consulting Services Group
Plantation View Shopping Cetiter
PROPERTY IMPROVEMEN-FS
General
The Plantation View Shopping Center, built iii 1984, is a 9,233
square-foot retail shopping center. The two-story center was
constructed on pilings to protect against flooding. The center
is in average to good condition. The L-shaped center is
currently configured with three retail bays; however, it was
originally designed so that seven individual units could be
sold (commercial xxxxxx@ium).
CONSTRUCNON @RMA'NON
The following section outlines various building
components.
Floors:
Foundation:
Building Frame:
Date of Construction:
Roofing Systeni:
Exterior Walls.
Mechanical Systems:
HVAC Systeiii:
Second story floors are of plywood on floor
joists.
The foundation system consists of 8" X 8", 20' C.C.A. treated
driven to refusal or 2 blow/ inch. Each piling is a 20-ton
capacity wood piling. There appears to be no indication of
foundation problems such as settlement or major cracking of
exterior walls or floors.
Wooden frame construction with cedar siding.
The property was constructed in 1984.
All roof structures consist of wood frame
structure. Sloped roof areas utilized typical
three tab fiberglass shingles. Mildew stains
vvere noted on some portions of the shingles.
Exterior walls consist of wood siding. The exterior walls are
in good condition. The front of each bay consists of glass
storefronts.
Each bay has a separate central heating and cooling system.
The air conditioning units appear to be ii-i average condition.
Xxxxxx Xxxxxxxx LLP - Hospitality Consulting Services Group
Plantation View Shopping Ceiiter
Plutyibitig:
Water is provided from the public utility by a two inch water
service fed from the main along Captiva Road Southwest. Water
distribution piping within the site appears to be PVC. Waste
and vent piping appears to consist of PVC pipe materials.
Electrical Systeni: Each bay has separate electrical
meters. The electrical system
appears to be adequate for the
subject property.
Interior Fiiiislies:
Dooi-s:
Walls:
Ceilings:
Site Iniprovenients:
Parkiiig:
Liglititig:
Interior doors consist of flush hollow and solid
core.
In general, the walls consist of painted wood
paneling or painted gypsum wallboard.
Ceilings are of 2X4 acoustical panels. There appears to be no
evidence of roof leaks manifesting themselves as stains on
ceiling surfaces.
Parking is provided for a total of 42 vehicles. There are 11
uncovered spaces, 7 semi-covered and 24 covered spaces.
Parking facilities appear to be adequate for the size of the
center.
The site is illuiiiiiiated by decorative lighting
located on the building and in the parking area.
LaiLdscapinglWatering: The site is tastefully and extensively
landscaped with native vegetation,
flowering shrubs, and pali-ii trees.
All landscape materials appear to be
thriving in good condition and
wellmaintained. An irrigation system
is provided for all landscaped areas
around the buildings.
Signage:
Overall, signage appears to be adequate.
Artliur Xxxxxxxx LLP - Hospitality Consulting Services Group
EXHIBIT C
TO THIRD AMENDMENT
LITIGATION PROCEEDINGS
(1) Geor2e Xxxxxx x. South Seas Resort Limited Partnership,
Case No. 00-0000-00 CA
(ii) Creative Deco, Inc. (bankruptcy claim)
(iii) 012tics Intemational, Inc. (bankruptcy claim)
(iv) South Seas Resort Limited Partnership v. Xxxxxx
Xxxxxxxxxxxx
(v) South Seas Resort Limited Partnership v. Cal2tiva
Clothing & Co.. Inc., Case No. 98-0000000-CA (accounts
receivable damages)
(vi) Embassy Kosher Tours, Inc. v. Roizer Kumar d/b/a Safety
Harbor Resort and S@a; Case No. 97-6780-Cl- 1 3 (Pinellas
County Circuit Court)
(vii) Audit of Best Westem-Sanibel by State of Florida,
Division of Florida Land Sales, Condominiums and Mobile
Homes
(viii) Xxxxxxx Xxxxxx, Complaint filed with National Labor
Relations Board (all compliance requirements completed)
(ix) LaPenn v. Mariner Groul2 dba South Seas Plantation
(x) South Seas Resort Limited Partnershil2 v. Philil2 Medico,
Case No. 97-002861 CC (accounts receivable damages)
(xi) South Seas Resort Limited Partnership (SSRLP) (defendant)
and SCG Mortizai4e Corporation v. Xxxxxxx Xxx Xxxxx, Case
No. 96-008236 CA (Mortgage Foreclosure Action in which
SSRLP is a defendant)
(xii) Xxxxx Xxxxxxxxx v. South Seas Resort Limited
Partnershil2, LCDHR Charge No. 97080E, EEOC Charge No.
15L-97-0079
(xiii) Xxxxxx Xxxxxxx v. South Seas Resort Limited
Partnershil2, LCDHR Charge No. 98009E, EEOC Charge No.
15L-98-0008
(xiv) Xxxxxx X. Xxxxx v. Sundial Beach Resort, LCDHR Charge
No. 97086E, EEOC Charge No. 15L-97-0085
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14
(xv) Xxx Xxxxxx Attomey Demand Letter v. South Seas
Plantation, Attomey Demand Letter
(xvi) Xxxxxxx Xxxxxxx Attomey Demand Letter v. Sanibel
Inn, Attomey Demand Letter
Personal injury cases.
All cases involving personal injury are covered by
insurance and insurance carriers have undertaken representation
without reservation of n'ghts. Bankruptcy Court cases involve
claims by Borrower for unpaid sums against entities which are
now in bankruptcy.
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15
NAMEOFBANK
EXHIBIT D
TO THIRD AMENDMENT
PARTICIPATION INTERESTS
Credit Lyonnais New York Branch
FINOVA Capital Corporation
Bamett Bank, N.A.
TOTALS
PLANTATION VIEW
LOAN
COMMITMENT
940,125.00 43.125
817,500.00 37.500
422,375.00 19.37
2,180,000.00 100.00
H:\users\WP\credit\ssr\plan-v\documts\aniendlag.cn6:3.20.98.-
jan
16
19.375
EXHIBIT E
TO THIRD AMENDMENT
OFFICER'S CERTIFICATE
(ATTACHED)
H:\users\WP\credit\ssr\plan-v\documts\amendiag.cn6:3.20.98:jan
17
\1 1.@ i -
;, 1-1
@-1- -
'I@
South Seas Properties Company
February 19, 1998
Xxxx Georce
Sun Trust Bank
000 Xxx Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, XX 00000
Re@ South Seas Properties Company Limited Partnership 10@'o
Subordinated Notes Due April 15, 200')
Dear Xxxx@
In accordance with Section 1.2 Compliance Certificates
and Ot)iniona, the enclosed executed Officer's Cer-tificate has
been prepared statinsz compliance of Section 10.9 Funded
Indebtedness Limitation as it relates to the acquisition of
Plantation View Shoppinc, Center.
Please feel free to contact me. if you need anv additional
information reL'ard]nQ this
transaction. The current scheduled date of closin- in Ntarch
2- 1998.
Sincerel@-.
Xxxxx
r of Project Finance
cc: Xxxx Xxxxxxxxx
Xxxxx Xxxxxx
Xxx Xxxxxxxxxx - Xxxxx & Xxxxxxxxx
Ntarshall Emas - En-lish, N/[cCaughan & O'B@,-an Xxxxxx Xxxxxxx
- Coll, Davidson, Xxxxxx
Xxxxx Xxxxx - XxXxxxxxx, N,[cDonaid, Xxxxxxx Xxxxx Xxxxxx -
Xxxxxx, Xxxxxx
LISAt;i-'! JP.El@,
12,?OOL71iii,er.,@DI-ii,e - Si@350-F,71-t.,-Jfyel-,,, Fh)l-
idz33907- Telephotie (9-8) 481-5600-Fdz.-v (000) 000-0000
OFFICER'S CERT]IFICATE
10% Subordinated Notes Due April 15, 2003
(Non-Recourse to the General Partner)
The undersigned, being an authorized officer of T & T
Resorts, L.C., a Florida limited liability company (the
"General Partner"), the General Partner of South Seas
Properties Company Limited Partnership, an Ohio limited
partnership (the "Partnership"), hereby certifies pursuant to
Section 1.2 of the Indenture, dated as of March 28, 1996, from
the Partnership to SunTrust Bank, Central Florida, National
Association (the "Indenture"), as follows:
I
I . The undersigned has read Sect'on 10.9 of the Indenture
and the definitions contained
in the Indenture relating to Section 10.9.
2. In order to form the basis of his belief set forth
in item 4 below, the undersigned sought and obtained an
independent appraisal from Xxxxxx Xxxxxxxx, LLP for the
Plantation View Shopping Center. Based solely on such
independent appraisal, the fair market value of the Plantation
View Shoppiniz Center exceeds 133% of the accregate principal
amount of Funded Indebtedness which will be incurred for the
acquisition. The undersigned has also calculated the Funded
Indebtedness at the time of the incurrence of Funded
Indebtedness and after giving pro forma effect thereto as if
such Funded Indebtedness had been incurred at the beginning of
the four full quarterly periods immediately preceding the date
of the acquisition and the Property Debt Service Coveraize
Ratio is greater than the required 1.25 to 1.
3 . The undersi I
_@ed believes that he has made such
examination as is necessary to enable him to express an
informed opinion as to whether the condition contained in
Section 10.9 has been complied with by the Partnership.
4. Based on the foregoing, the undersigned believes
that the acquisition of Plantation View Shopping Center falls
within the definition of Permitted Real Property Indebtedness
and, therefore, the conditions contained in Section 10.9 of the
Indenture have been complied with by the Partnership.
T & T RESORTS, L.C., General Partner of South Seas Properties
Company Limited Partnership
By- -
Xxxxxxx X. Xxxxxxxxx, Vice President
XXXXXXXXXX.XX
Indenture Agreement
Section 10.9 Funded lndebtness Limitation
Compliance Test Relating To Purchase of Plantation View
ShoppingCenter
For purposes of documentation of Compliance with the terms
and conditions as set forth in the Indenture dated March 28,
1996 between South Seas Properties Company Limited Partnership
(Partnership) and Sun Trust Bank, Central Florida (Trustee).
(See Indenture Agreement for page and paragraph references)
Page 7 - Permitted Real Property lndebtness, (ii) (a) and (b)
noted below.
(a) Fair Market Value (Appraised Value) equal to or exceeding
133% of the aggregate principal amount
Appraised Value @ 2/13/98 $2,900,000
Credit Lyonnais Loan at Closing $2,180,000
Ratio: 1.33
Required Minimum Ratio- 1.33
(b) Property Debt Service Coverage Ratio of at least 1.25
after proforma effect of such Funded Indebtedness.
Est. Consolidated Net Operating Profit
of the Property 255,235
Less- Capital Expenditure at 2.5%
of Gross Revenue of $255,235 (6,381)
Est. Consolidated Cash Flow of the Property $248,854
Proforma Consolidated Interest Expense
of the Property ($2,180,000 X 8.65%) $188,570
Ratio: 1.32
Required Minimum Ratio: 1.25
Note- These tests have been performed on an estimated
12/31/97 basis due to closing date being scheduled
for early March, 1998.
Conclusion: Based on the above test, the purchase of Plantation
View Shopping Center is in compliance with Section
10.9 Funded Indebtedness Limitation of the
Indenture Agreement dated March 28, 1996.
INDR=NTUR PVS/lo
