EX-10.13






Exhibit 10.13



ALL STATE OF FLORIDA DOCUMENTARY STAMP TAXES WITH RESPECT TO THE INDEBTEDNESS EVIDENCED HEREBY HAVE
BEEN PAID IN CONNECTION WITH THE FUTURE ADVANCE NOTE (AS DEFINED HEREIN) AND THAT CERTAIN NOTICE OF
FUTURE ADVANCE AND FIFTH AMENDED AND RESTATED MORTGAGE AND SECURITY AGREEMENT OF EVEN DATE HEREWITH
FROM BORROWER IN FAVOR OF BANK. NO ADDITIONAL DOCUMENTARY STAMP TAXES ARE DUE IN CONNECTION WITH
THIS NOTE.




CONSOLIDATED, AMENDED AND RESTATED PROMISSORY NOTE




			
	U.S. $10,600,000.00
	 	Tampa, Florida

March 12, 2009







     WHEREAS, the undersigned Borrower currently has two (2) existing term notes with SUNTRUST
BANK, a Georgia banking corporation (hereinafter called “Bank”, which term shall include all
subsequent holders of this Note by assignment or otherwise), as evidenced by (i) that certain
Promissory Note (the “Original Note”) dated November 1, 2004, payable to the order of Bank, in the
original principal amount of $12,000,000.00; and (ii) that certain Future Advance Promissory Note
of even date herewith, in the original amount of $2,500,000.00 (the “Future Advance Note”). The
Original Note and the Future Advance Note shall be collectively referred to herein as the
“Consolidated Notes”;



     AND WHEREAS, the current outstanding principal balance under the Original Note is
$8,100,000.00;



     AND WHEREAS, Borrower and Bank wish to consolidate the Consolidated Notes to form one
consolidated loan facility in the amount of $10,600,000.00 (the “Consolidated Loan”) to be repaid
pursuant to the terms of this Consolidated, Amended, and Restated Promissory Note (this “Note”);



     NOW, THEREFORE, the Consolidated Notes are hereby amended and replaced in their entireties by
the this terms of this Note. Effective as of the date hereof (the “Effective Date”), the
Consolidated Notes are hereby consolidated to form the Consolidated Loan in the principal amount of
Ten Million Six Hundred Thousand and No/100ths Dollars ($10,600,000.00) to be repaid pursuant to
the terms of this Note.



     Borrower promises to pay to Bank, or order, the sum of TEN MILLION SIX HUNDRED THOUSAND AND
100/100 DOLLARS ($10,600,000.00), together with interest from the date hereof at the respective
rates of interest hereinafter provided, all in the manner further provided for herein.



     The principal outstanding under this Note shall bear interest at the Interest Rate (as
hereinafter defined), which Interest Rate shall be adjusted on each Interest Rate Determination
Date (as hereinafter defined). The term “Advances” shall mean any portion of the outstanding
principal balance of this Note. The term “Interest Rate” means two and one-half percent (2.50%)
per annum above One Month Match-Funded LIBOR (as hereinafter defined). The term “One Month













 







Match-Funded LIBOR Rate” means that rate per annum which is the quotient of:




(i) the rate per annum equal to the offered rate for deposits in U.S. dollars of amounts
comparable to the principal amount of the applicable Advance offered for a term comparable
to the applicable Interest Period, which rate appears on that page of Bloomberg reporting
service, or such similar service as determined by Bank, that displays British Bankers’
Association interest settlement rates for deposits in U.S. Dollars, as of 11:00 A.M.
(London, England time) two (2) Business Days prior to the first day of such Interest Period;
provided, that if no such offered rate appears on such page, the rate used for such
Interest Period will be the per annum rate of interest determined by Bank to be the rate at
which U.S. dollar deposits for the relevant Interest Period in an amount comparable to the
amount of the applicable Advance, are offered to Bank in the London Inter-Bank Market as of
11:00 A.M. (London, England time), on the day which is two (2) Business Days prior to the
first day of such Interest Period, divided by




(ii) a percentage equal to 1.00 minus the maximum rate of all reserve requirements
(expressed as a decimal) as specified in Regulation D of the Board of Governors of the
Federal Reserve System (including, without limitation, any marginal, emergency,
supplemental, special or other reserves) that would be applicable on the day which is two
(2) Business Days prior to the first day of the Interest Period during which the One Month
Match-Funded LIBOR Rate is to be applicable to Eurocurrency liabilities in an amount
substantially equal to the principal amount of the applicable Advance and with a maturity
date as of the last day of the applicable Interest Period, all as reasonably determined by
Bank, such sum to be rounded up to the nearest whole multiple of 1/100 of 1%.



     If Bank determines in its sole discretion at any time (the “Determination Date”) that it can
no longer make, fund or maintain LIBOR based loans for any reason, including without limitation
illegality, or the LIBOR Rate cannot be ascertained or does not accurately reflect Bank’s cost of
funds, or Bank would be subject to Additional Costs (as hereinafter defined) that cannot be
recovered from Borrower, then Bank will notify Borrower and thereafter will have no obligation to
make, fund or maintain LIBOR based loans. Upon such Determination Date, the Interest Rate will be
converted to a variable rate based upon the Prime Rate (as hereinafter defined). Thereafter, the
Interest Rate shall adjust simultaneously with any fluctuation in the Prime Rate. “Prime Rate”
shall mean the publicly announced prime lending rate of the Bank from time to time in effect, which
rate may not be the lowest or best lending rate made available by the Bank.



     Anything to the contrary contained herein notwithstanding, Borrower may elect to enter into an
interest swap contract with SunTrust Robinson Humphrey Capital Markets to convert the above
variable rate to a fixed rate. The fixed rate available through the swap is a market-derived rate
and changes with market conditions until it is locked-in. Any such rate swap contract shall be
cross-collateralized and cross-defaulted with the loan documents evidencing this Consolidated Loan.
Hedging options may be chosen with various tenors not to exceed the 5-year maturity and 10 year
amortization of the Consolidation Loan.



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     The term “Business Day” as hereinabove used shall mean a day on which the foreign exchange
markets in London, England are open for business. The term “Interest Rate Determination Date” as
hereinabove shall mean and refer to the date of this Note and the twelfth day of each calendar
month thereafter, provided, however, that if the twelfth day of each calendar month occurs on a day
which is not a Business Day, then the Interest Rate Determination Date shall be the first Business
Day thereafter. The term “Interest Period” as hereinabove used means the period commencing on each
Interest Rate Determination Date and ending the day before the next Interest Rate Determination
Date.



     Interest hereunder shall be computed on the basis of a three hundred sixty (360) day year,
calculated for the actual number of days elapsed, provided, however, that the Interest Rate charged
hereunder shall never exceed the maximum rate allowed, from time to time, by applicable law.



     Monthly payments of principal in the amount of Eighty-Eight Thousand Three Hundred
Thirty-Three and 33/100 Dollars ($88,333.33), plus accrued interest at the applicable Interest Rate
pursuant to the foregoing provisions of this Note shall be due and payable beginning on April 12,
2009, and continuing on the twelfth (12th) day of each month thereafter until the Maturity Date (as
defined below).



     The “Maturity Date” of this Note shall be March 12, 2014. Notwithstanding any contrary
provision of this Note, all amounts then outstanding under this Note, if not sooner paid, shall be
due and payable in full on the Maturity Date.



     In the event that any applicable law or regulation or the interpretation or administration
thereof by any governmental authority charged with the interpretation or administration thereof
(whether or not having the force of law) (i) shall change the basis of taxation of payments to the
Bank or any amounts payable by Borrower hereunder (other than taxes imposed on the overall net
income of the Bank) or (ii) shall impose, modify or deem applicable any reserve, special deposit or
similar requirement against assets of, deposits with or for the account of, or credit extended by
the Bank, or (iii) shall impose any other condition with respect to this Note, and the result of
the foregoing is to increase the cost to the Bank of making or maintaining this Note or to reduce
any amount receivable by Bank hereunder, and the Bank determines that such increased costs or
reduction in amount receivable was attributable to the One Month Match-Funded LIBOR Rate used to
establish the One Month Match-Funded LIBOR Rate hereunder, then Borrower shall from time to time,
upon demand by the Bank, pay to the Bank additional amounts sufficient to compensate the Bank for
such increased costs (the “Additional Costs”). A detailed statement as to the amount of the
Additional Costs, prepared in good faith and submitted to Borrower by the Bank, shall be conclusive
and binding in the absence of manifest error.



     A payment due hereunder shall be deemed late if it is not received by the Bank on or before
ten (10) days after the due date of such payment, and each late payment shall automatically incur a
late charge, payable immediately, equal to five percent (5%) of such payment. This late charge
provision shall not limit the operation of any other provision of this Note regarding payments that
are not made when due hereunder. Further, notwithstanding any other rate of interest provided for
herein, the Interest Rate applicable to any payment or payments of principal or interest, or any
part thereof, not received by the Bank within ten (10)



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days after the due date thereof shall thereafter be the maximum rate allowed, from time to
time, by applicable law (the “Default Rate”).



     Further still, Borrower shall be in default of this Note in the event that any payment of
principal or interest, or any part thereof, is not received by the Bank within ten (10) days after
the due date of such payment, or upon the occurrence of any other default hereunder or under the
terms of any mortgage or other loan document securing or made at any time in connection with this
Note or with any loan cross-defaulted with this Note. In the event of any such default that remains
uncured upon the expiration of any applicable grace or cure period, the principal sum remaining
unpaid hereunder, together with all accrued and unpaid interest thereon, and all other liabilities
of the Borrower under this Note, shall become due and payable at any time thereafter at the option
of the Bank, immediately upon the Bank’s written notice or demand. Also in that event, the Bank
shall have the remedies of a secured party under the Uniform Commercial Code and, without limiting
the generality of the foregoing, the immediate and unconditional right to set off against this Note
all money owed by Bank in any capacity to each “Obligor” (which term includes Borrower and any
guarantor or other person or entity now or hereafter obligated for all or part of the indebtedness
of Borrower under this Note, or under any mortgage or other loan document securing or made at any
time in connection with this Note, whether or not then otherwise due, and also to set off against
all other liabilities of each Obligor to Bank all money owed by Bank in any capacity to each
Obligor; and, Bank shall be deemed to have exercised such right of set-off and to have made a
charge against any such money immediately upon the occurrence of such default that remains uncured
upon the expiration of any applicable grace or cure period, even though such a charge is made or
entered on the books of Bank at a later time.



     In enforcing its remedies for default, unless any collateral security for this Note
(“Collateral”) is perishable or threatens to decline speedily in value, or is of a type customarily
sold on a recognized market, the Bank will give Borrower reasonable notice of the time and place of
any public sale thereof or of the time after which any private sale or any other intended
disposition thereof is to be made. The requirement of reasonable notice shall be met if such notice
is mailed, postage prepaid, to Borrower at the address given below or at any other address shown on
the records of the Bank, at least five (5) days before the time of the sale or disposition. In
connection with the disposition of any Collateral at the instance of the Bank, Borrower shall be
and remain liable for any deficiency, and Bank shall account to Borrower for any surplus, provided,
however, that the Bank shall have the right to apply all or any part of such surplus (or to hold
the same as a reserve against) any and all other liabilities of Borrower to Bank, and further
provided that no provision of this Note or of any mortgage or other loan document securing or made
at any time in connection with this Note shall be construed to require that the Bank seek recourse
against any Collateral before or to the exclusion of any other default rights and remedies that the
Bank may have under applicable law. Borrower promises and agrees to pay all costs and expenses of
collection and reasonable attorneys’ fee, including costs, expenses and reasonable attorneys’ fees
on appeal, if sought or collected by the Bank through legal proceedings or through an attorney at
law.



     Bank shall have the right, which may be exercised at any time whether or not this Note is then
due, to notify any one or more of the Obligors to make payment to Bank on any amounts due or to
become due on any Collateral. In the event of any default hereunder (subject to any applicable
cure period), Bank shall thereafter have, but shall not be limited to, the following rights; (i) to



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transfer this Note and the Collateral, whereupon Bank shall be relieved from all further
liabilities, duties and responsibilities hereunder and with respect to any Collateral so pledged or
transferred, and any transferee shall for all purposes stand in the place of Bank hereunder and
have all the rights of Bank hereunder; (ii) to transfer the whole or any part of the Collateral
into the name of itself or its nominee; (iii) to vote the Collateral; (iv) to demand, sue for,
collect, or make any compromise or settlement it deems desirable with reference to the Collateral;
and, (v) to take control of any proceeds of Collateral.



     No delay or omission on the part of Bank in exercising any right hereunder shall operate as a
waiver of such right or of any other right under this Note. Presentment, demand, protest, notice
of dishonor, and extension of time without notice are hereby waived by Borrower and each and every
other Obligor. Except as otherwise expressly provided in this Note or by applicable law, any
notice to Borrower regarding this Note shall be sufficiently served for all purposes if placed in
the mail, postage prepaid, addressed to or left upon the premises at the address shown below or any
other address shown on the Bank’s records. Time is of the essence in all matters relating to this
Note.



     This Note is a consolidation, amendment and restatement of the Notes which are owned and held
by Bank. This Note shall not operate to discharge, satisfy, cancel, release or repay, or be deemed
a substitution or novation of, the indebtedness heretofore evidenced by the Consolidated Notes,
which indebtedness is hereby expressly preserved and confirmed in all respects.



     Bank may, at any time, sell, transfer or assign this Note, the related security instrument and
any related loan documents, and any or all servicing rights with respect thereto, or grant
participations therein or issue mortgage pass-through certificates or other securities evidencing a
beneficial interest in a rated or unrated public offering or private placement (the “Securities”).
Bank may forward to each purchaser, transferee, assignee, servicer, participant, or investor in
such Securities or any Rating Agency (as hereinafter defined) rating such Securities (collectively,
the “Investor”) and each prospective Investor, all documents and information which Bank now has or
may hereafter acquire relating to the Borrower, any loan to Borrower, any guarantor, any Obligor,
the Collateral or the property, whether furnished by Borrower, any guarantor or otherwise, as Bank
determines necessary or desirable. The term “Rating Agency” shall mean each statistical rating
agency that has assigned a rating to the Securities.



     JURY TRIAL WAIVER. BORROWER AND BANK HEREBY KNOWINGLY, VOLUNTARILY, INTENTIONALLY, AND
IRREVOCABLY WAIVE THE RIGHT EITHER OF THEM MAY HAVE TO A TRIAL BY JURY IN RESPECT TO ANY
LITIGATION, WHETHER IN CONTRACT OR TORT, AT LAW OR IN EQUITY, BASED HEREON, OR ARISING OUT OF,
UNDER OR IN CONNECTION WITH THIS AGREEMENT AND ANY OTHER DOCUMENT OR INSTRUMENT CONTEMPLATED TO BE
EXECUTED IN CONJUNCTION HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER
VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY HERETO. THIS PROVISION IS A MATERIAL INDUCEMENT FOR
BANK ENTERING INTO THIS AGREEMENT. FURTHER, BORROWER HEREBY CERTIFIES THAT NO REPRESENTATIVE OR
AGENT OF BANK, NOR BANK’S COUNSEL HAS THE AUTHORITY TO WAIVE, CONDITION, OR MODIFY THIS PROVISION.



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     IN WITNESS WHEREOF, Borrower has executed and delivered this Note on the date first above
written.



	 	 	 	 	 
	 	Borrower:

SADDLEBROOK RESORTS, INC.,

a Florida corporation

 	 
	 	By:  	/s/ Thomas L. Dempey
 	 
	 	 	Thomas L. Dempsey 	 
	 	 	Its Chief Executive Officer 	 
	 



Borrower’s Address:

5700 Saddlebrook Way

Wesley Chapel, Florida 33543





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