FIRST AMENDMENT TO CONSTRUCTION LOAN AGREEMENT
THIS FIRST AMENDMENT TO CONSTRUCTION LOAN AGREEMENT (this "First
Amendment") is made as of the 16th day of October, 1997, by and between OCEAN
RANCH VACATION GROUP, a Florida general partnership ("Borrower") and
BANKATLANTIC, a Federal Savings Bank ("Lender").
W I T N E S S E T H :
WHEREAS, Borrower and Lender have entered into that certain
Construction Loan Agreement dated June 13, 1996 (the "Loan Agreement") in
connection with a loan from Lender to Borrower in the aggregate sum of up to
$12,700,000.00 (the "Existing Loan"), the proceeds of which are to be used by
Borrower to finance, among other matters, the construction of certain
renovations to an existing hotel in connection with the development of time
share units (the "Improvements") upon certain lands situate and lying in Broward
County, Florida, as more particularly described in the Loan Agreement (the
"Property"); and
WHEREAS, Borrower has requested that Lender lend to Borrower a future
advance loan in the amount of $1,000,000.00 (the "Future Advance Loan") to
finance additional construction costs in connection with the Improvements.
NOW THEREFORE, in consideration of the premises and the mutual
covenants and agreements contained herein, the parties hereto agree as follows:
1. The above and foregoing preamble is acknowledged to be true and is
hereby incorporated by reference herein.
2. All capitalized terms utilized herein and not otherwise defined
shall have the same meanings assigned to them in the Loan Agreement.
3. Certain subparagraphs of paragraph 1.2 ("Definitions") of the Loan
Agreement are restated to read, in full, as follows:
"AGREEMENT" or "LOAN AGREEMENT": Collectively, that certain
Construction Loan Agreement dated June 13, 1996, as amended by a First
Amendment to Construction Loan Agreement dated of even date herewith.
"ASSIGNMENT OF RENTS, LEASES AND DEPOSITS": That certain Assignment of
Rents, Leases and Deposits dated June 13, 1996 and recorded on June 25,
1996 in O.R. Book 25052, Page 0248 of the Public Records of Broward
County, Florida, which assigns to Lender, among other items, all of
Borrower's right, title and interest in and to all agreements for the
lease of the Property, or any part thereof, if any, and any rent,
issues and profits derived or to be derived from the Property. Such
Assignment of Rents, Leases and Deposits has been reaffirmed pursuant
to that Certain Reaffirmation Agreement dated of even date herewith.
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"ASSIGNMENTS": Collectively, (i) the Assignment of Rents, Leases and
Deposits, (ii) the Collateral Assignment of Rights and Agreements
Affecting Real Estate, and (iii) the Collateral Assignment of Sales
Contracts, each of which is dated June 13, 1996 and has been reaffirmed
pursuant to that certain Reaffirmation Agreement dated of even date
herewith.
"COLLATERAL ASSIGNMENT OF RIGHTS AND AGREEMENTS AFFECTING REAL ESTATE":
A Collateral Assignment of Rights and Agreements Affecting Real Estate
executed on June 13, 1996 by Borrower, assigning to Lender, among other
items, all of its right, title and interest in and to certain
agreements entered into by Borrower with respect to the Property and
certain licenses, permits and agreements affecting the Property. Such
Collateral Assignment of Rights and Agreements Affecting Real Estate
has been reaffirmed pursuant to that certain Reaffirmation Agreement
dated of even date herewith.
"COLLATERAL ASSIGNMENT OF SALES CONTRACTS": A Collateral Assignment of
Sales Contracts dated June 13, 1996, assigning to Lender, among other
items, all of Borrower's right, title and interest in and to any Sales
Contracts entered into by Borrower with respect to the Property. Such
Collateral Assignment of Sales Contracts has been reaffirmed pursuant
to that certain Reaffirmation Agreement dated of even date herewith.
"CREDIT FACILITY LETTER": That certain letter executed by and between
Lender and Borrower dated April 11, 1996, and that certain letter
executed between Borrower and Lender dated August 29, 1997 as to the
Future Advance Loan and all amendments to the foregoing, the terms and
conditions of which are hereby incorporated by reference herein, but in
the event of any conflict or discrepancy between the terms of this
Agreement and the Credit Facility Letter, the terms of this Agreement
shall control.
"GUARANTY": Collectively, those certain Absolute Unconditional and
Continuing Guaranties executed by each Guarantor of even date herewith
guaranteeing (a) repayment of the Notes and all other indebtedness of
Borrower to Lender and (b) performance by Borrower of all of Borrower's
obligations under the Notes, this Agreement and the other Loan
Documents.
"LOAN DOCUMENTS": Those documents executed or submitted in connection
with the Loan, including without limitation, (i) the Modification
Promissory Note, (ii) the Future Advance Note, (iii) the Consolidated
Note, (iv) the Mortgage, as modified by that certain Receipt for Future
Advance and Mortgage Modification Agreement dated of even date
herewith, (v) the Loan Agreement as amended by this Amendment, (vi) the
Guaranty, (vii) the Financing Statements, (viii) the Borrower's
Affidavit, (ix) the Assignments, (x) the Hazardous Substance
Certificate and Indemnification Agreement, (xi) the Americans With
Disabilities Certificate and Indemnification Agreement, (xii) the
Reaffirmation Agreement of even date herewith, and (xiii) all other
documents and instruments executed by Borrower in connection with the
Loan.
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"MORTGAGE": Collectively, that certain Mortgage Deed and Security
Agreement dated June 13, 1996 and recorded on June 25, 1996 in O.R.
Book 25052, Page 0214 of the Public Records of Broward County, Florida,
as modified pursuant to that certain Receipt for Future Advance and
Mortgage Modification Agreement dated of even date herewith to be
recorded in the Public Records of Broward County, Florida. The Mortgage
is a valid first mortgage lien on Borrower's fee simple interest in the
Property, and all fixtures and personal property owned by Borrower to
be located on or used in connection with the Property.
"NOTES": Collectively, the following Promissory Notes executed by
Borrower in favor of Lender: (i) a Modification Promissory Note in the
principal amount of $12,700,000.00, modifying the original Promissory
Note dated June 13, 1996 in the amount of $12,700,000.00 (the
"Modification Note"); (ii) a $1,000,000.00 Promissory Note evidencing
the Future Advance Loan (the "Future Advance Note"); (iii) a
$13,700,000.00 Consolidated Promissory Note, consolidating the
foregoing Modification Note and the Future Advance Note (the
"Consolidated Note").
"TITLE INSURANCE POLICY": Collectively, Title Insurance Policy No.
10-2007-107-00000084 issued by Chicago Title Insurance Company to
Lender and all endorsements issued with respect to the same including,
without limitation, the endorsement to be issued as of even date
herewith relating to the Future Advance Loan.
4. Article 2 of the Loan Agreement is hereby deleted and replaced with
the following:
2.1 PROCEEDS OF THE LOAN. A portion of the Loan in the maximum
amount of $1,500,000.00 is available to reimburse Borrower for costs
incurred in connection with the acquisition of the Property. The
balance of the Loan, after deduction for (i) the amount of the
"Interest Reserve" (as described below) and (ii) the allocation for the
land cost, in the amount of $11,900,000.00, shall be available to
finance construction of the Improvements in accordance with the revised
budget attached as Exhibit "A" hereto; provided, however, that no
Advances shall be disbursed for Construction Costs unless and until
Borrower has first expended, from its own funds, an amount of not less
than $1,000,000.00 against Construction Costs for the Improvements
("Borrower's Additional Equity"). Borrower will be renovating the
Property in connection with the development of 99 or 100 time share
units (the "Units") on the Property. Provided there does not exist an
Event of Default and no event which with notice or lapse of time or
both would become an Event of Default and subject to the terms of this
Agreement, Lender will lend and advance for the account of Borrower
from time to time under the Loan such sums as may be required to
finance construction of the Improvements in accordance with the
construction budget approved by Lender (after Borrower has funded, and
Lender has approved, Borrower's Additional Equity). The Loan shall
mature on a "Maturity Date" as set forth in the note evidencing the
Loan and no advances shall be available thereunder after the Maturity
Date.
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2.2 INTEREST RESERVE. A sum equal to $300,000.00 as and for an
interest reserve (the "Interest Reserve") shall be established out of
the Loan proceeds to be used for the sole purpose of paying the
interest due and owing under the Note until such time as the Interest
Reserve is fully expended; provided, however, that no such funding of
interest owing under the Note will occur under the Interest Reserve
unless and until Borrower has first expended from Borrower's own funds
the total amount of $500,000.00 in payment of interest accruing under
the Note. Borrower hereby authorizes Lender to draw upon the Interest
Reserve for interest payments due under the Note on a monthly basis.
Notwithstanding the establishment of the Interest Reserve, Borrower
shall be responsible for all interest payments due under the Note, and,
upon the Interest Reserve being fully expended, or, upon the occurrence
of any default under the Note, this Agreement or in any of the Loan
Documents, Borrower shall make all interest payments using Borrower's
own funds.
2.3 SECURITY FOR THE LOAN. Borrower's obligation to repay the
Loan is evidenced by the Note executed simultaneously herewith, which
sets forth the method for payment, rate of interest, and such further
terms as are therein set forth. The repayment of the Note is to be
secured by the Loan Documents, which documents Borrower shall deliver,
or cause to be delivered, to Lender simultaneously with the execution
of the Note.
5. Section 12.24 ("Partial Releases") is hereby deleted and replaced
with the following:
12.24 PARTIAL RELEASES. Provided there is no event of default
by Borrower under the Loan, Borrower shall be entitled to the partial
release of a Unit Week from the lien and encumbrance of the Mortgage
upon the payment of the "Partial Release Price" calculated as provided
hereinbelow. Partial releases will be available for Unit Weeks provided
that at least 50% of the Unit Weeks available in the applicable Unit
have been sold, as evidenced by fully executed and binding Sales
Contracts for those Unit Weeks. Partial releases will be available for
Biennial Weeks provided that an aggregate of at least twenty-six (26)
Unit Weeks in the applicable Unit (consisting of sales of Unit Weeks
and Biennial Weeks) have been sold, as evidenced by fully executed and
binding Sales Contracts. For purposes of calculating the number of
"sold" Unit Weeks under this paragraph, each Biennial Week shall count
as one-half (1/2) of a Unit Week, such that the sale of 2 Biennial
Weeks shall equal the sale of 1 Unit Week. The partial release of any
Unit Week or any Biennial Week from the lien of the Mortgage shall
include a partial release as to all security interests with regard to
that Unit including Lender's security interest in Sales Contracts and
personal property as reflected in the UCC-1 Financing Statements and
other Loan Documents.
The "Partial Release Price" for a Unit Week shall be an amount
equal to the greater of: (1) 28% of the gross sales price of the Unit
Week or (ii) $3,300.00. The "Partial Release Price" for a Biennial Week
shall be an amount equal to the greater of: (i)
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28% of the gross sales price of the Biennial Week or (ii) $1,650.00. To
the extent that Borrower requests that an entire Time Share Unit be
released prior to the sale of at least 50% of the Unit Weeks contained
in such Unit, the "Partial Release Price" for such Unit shall be equal
to the greater of: (i) $173,000.00 or (ii) 28% of the average gross
sales price of Unit Weeks (as set forth in existing Sales Contracts)
with respect to the subject Unit.
6. Borrower hereby warrants and represents that all warranties and
representations contained in the Loan Agreement are true and correct as of the
date hereof, and Borrower is not in default under the Loan Agreement as of the
date hereof. Borrower further warrants and represents that there are no
defenses, setoffs, claims or counterclaims which could be asserted against
Lender. Borrower does also hereby reaffirm any and all pledges of collateral and
all security interests pledged in favor of Lender.
7. In the event of any conflict between the terms and provisions of the
Loan Agreement (prior to this Amendment) and the terms and provisions of this
Amendment, the terms and provisions of this Amendment shall control and prevail,
and otherwise, except as modified herein, the Loan Agreement shall continue
binding and in full force and effect.
8. That all, each and every of the terms, covenants and conditions in
the Loan Agreement which are not inconsistent herewith are hereby expressly
confirmed, ratified and declared to be in full force and effect.
9. This Amendment may be modified only by written modification hereto,
signed by each of the parties hereto.
10. This Amendment constitutes the entire agreement between the parties
with respect to the subject matter hereof and shall be interpreted in accordance
with the laws of the State of Florida.
11. WAIVER AND RELEASE. AS A MATERIAL INDUCEMENT FOR LENDER TO MAKE THE
FUTURE ADVANCE AND TO ACCEPT THIS AGREEMENT, BORROWER DOES HEREBY RELEASE,
WAIVE, DISCHARGE, COVENANT NOT TO XXX, ACQUIT, SATISFY AND FOREVER DISCHARGE
LENDER, 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 BORROWER EVER HAD, NOW HAS, OR WHICH ANY
PERSONAL REPRESENTATIVE, SUCCESSOR, HEIR OR ASSIGN OF BORROWER HEREAFTER CAN,
SHALL OR MAY HAVE AGAINST LENDER, 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. BORROWER FURTHER EXPRESSLY
AGREES THAT THE FOREGOING RELEASE AND WAIVER AGREEMENT IS INTENDED TO BE AS
BROAD AND INCLUSIVE AS IS PERMITTED BY THE LAWS
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OF THE STATE OF FLORIDA. IN ADDITION TO, AND WITHOUT LIMITING THE GENERALITY OF
THE FOREGOING, AND IN CONSIDERATION OF LENDER'S MAKING THE FUTURE ADVANCE AND
ACCEPTING THIS AGREEMENT, BORROWER COVENANTS WITH AND WARRANTS UNTO LENDER, AND
ITS AFFILIATES AND ASSIGNS, THAT THERE PRESENTLY EXIST NO CLAIMS, COUNTERCLAIMS,
DEFENSES, OBJECTIONS, OFFSETS OR CLAIMS OF OFFSETS AGAINST LENDER OR THE
OBLIGATION OF BORROWER TO PAY ALL INDEBTEDNESS AND OBLIGATIONS DUE AND OWING
FROM BORROWER TO LENDER WHEN AND AS THE SAME BECOME DUE AND PAYABLE.
WAIVER OF TRIAL BY JURY. BORROWER AND LENDER HEREBY MUTUALLY KNOWINGLY,
WILLINGLY AND VOLUNTARILY WAIVE THEIR RIGHT TO TRIAL BY JURY, AND, NO PARTY, NOR
ANY ASSIGNEE, SUCCESSOR, HEIR, OR LEGAL REPRESENTATIVE OF THE PARTIES (ALL OF
WHOM ARE HEREINAFTER REFERRED TO AS THE "PARTIES") SHALL SEEK A JURY TRIAL IN
ANY LAWSUIT, PROCEEDING, COUNTERCLAIM, OR ANY OTHER LITIGATION PROCEEDING BASED
UPON OR ARISING OUT OF THIS AGREEMENT OR THE LOAN DOCUMENTS, OR ANY INSTRUMENT
EVIDENCING, SECURING, OR RELATING TO THE LOAN, ANY RELATED AGREEMENT OR
INSTRUMENT, ANY OTHER COLLATERAL FOR THE LOAN OR ANY COURSE OF ACTION, COURSE OF
DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS RELATING TO THE LOAN
OR TO THIS AGREEMENT. THE PARTIES ALSO WAIVE ANY RIGHT TO CONSOLIDATE ANY ACTION
IN WHICH A JURY TRIAL HAS BEEN WAIVED, WITH ANY OTHER ACTION IN WHICH A JURY
TRIAL HAS NOT BEEN WAIVED. THE PROVISIONS OF THIS PARAGRAPH HAVE BEEN FULLY
NEGOTIATED BY THE PARTIES. THE WAIVER CONTAINED HEREIN IS IRREVOCABLE,
CONSTITUTES A KNOWING AND VOLUNTARY WAIVER, AND SHALL BE SUBJECT TO NO
EXCEPTIONS. LENDER HAS IN NO WAY AGREED WITH OR REPRESENTED TO BORROWER OR TO
ANY OTHER PARTY THAT THE PROVISIONS OF THIS PARAGRAPH WILL NOT BE FULLY ENFORCED
IN ALL INSTANCES.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the date first above written.
Signed, sealed and delivered BORROWER:
in the presence of:
OCEAN RANCH VACATION GROUP,
a Florida General Partnership
By: Ocean Ranch Development, Inc., a
Florida corporation, General Partner
By:/s/ XXXXXX XXXXXXX
------------------------------ ---------------------------------
Print Name:___________________ Its: PRESIDENT
(Corporate Seal)
------------------------------
Print Name:___________________
By: Vacation Break at Ocean Ranch, Inc.,
a Florida General Partner
By: /s/ XXXXX X. CAIRO
------------------------------ ---------------------------------
Print Name:___________________ Xxxxx X. Cairo, COO/CFO
(Corporate Seal)
------------------------------
Print Name:___________________
LENDER:
BANKATLANTIC, a Federal Savings Bank
By:/s/ XXXXXX X. XXXXXX
------------------------------ --------------------------------------
Print Name: Xxxxxx X. Xxxxxx
Executive Vice President
------------------------------
Print Name:___________________
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