Exhibit 10.2
AMENDMENT TO
LOAN DOCUMENTS
(XXXX'X RANCH)
This Amendment to Loan Documents ("Amendment") is made and entered into as
of October 31, 2001 by and between ILX Resorts Incorporated, an Arizona
corporation ("ILX"); Los Abrigados Partners Limited Partnership, an Arizona
limited partnership ("Abrigados"), Premiere Development Incorporated, an Arizona
corporation ("Premiere"), ILE Sedona Incorporated, an Arizona corporation
("ILE"), VCA Tucson Incorporated, an Arizona corporation ("VCA Tucson"), VCA
South Bend Incorporated, an Arizona corporation ("VCA South Bend") and VCA
Nevada Incorporated, an Arizona Corporation ("VCA Nevada") (collectively, the
"ILX Entities") whose address is 0000 Xxxx Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxx,
XX 00000; and Litchfield Financial Corporation, a Massachusetts corporation
("Lender"), whose address is 00000 Xxxx Xxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxx, XX
00000.
RECITALS:
A. Under date of March 19, 1999 ILX and Lender entered into a certain
Secured Construction Loan Agreement pertaining to, INTER ALIA, Lender's loan to
ILX in the amount of $2,830,000.00 for the purpose of financing the construction
of improvements at the Xxxx'x Ranch project located in or near Payson, Arizona.
This Secured Construction Loan Agreement was subsequently modified by a certain
May 7, 1999 letter agreement by and between Borrower and Lender, and a June 11,
1999 letter from Lender to Borrower (collectively, the "Letter Agreements"),
which pertain, INTER ALIA, to the amount and application of certain release
prices to be paid by Borrower to Lender. The loan contemplated by the foregoing
documents is hereinafter referred to as the "Xxxx'x Ranch Loan" and the
documents executed in connection therewith are hereinafter referred to as the
"Xxxx'x Ranch Documents".
B. Under date of November 24, 1998 certain of the ILX Entities as Borrower
and Lender entered into a certain Secured Loan Agreement (ILX Resorts
Incorporated: San Xxxxxx Inventory Development, Los Abrigados Sales Center
Construction, Term Loan Restatement Project). This Secured Loan Agreement
pertained, INTER ALIA, to a loan from Lender to the ILX Entities in the amount
of $2,300,000.00 for the purpose of acquiring and developing timesharing
inventory located at the San Xxxxxx Resort, Guaymas, Senora, Mexico (the "San
Xxxxxx Inventory Development Loan") and $800,000.00 for the purpose of
constructing a new sales center to be located at Los Abrigados Resort, Sedona,
Arizona (the "Sales Center Loan"). The San Xxxxxx Inventory Development Loan and
Sales Center Loan were evidenced by a $3,100,000.00 Secured Construction and
Inventory Development Promissory Note dated November 24, 1998. Pursuant to this
Secured Loan Agreement, a certain July 29, 1998 Secured Term Promissory Note
from the ILX Entities to Lender in original principal amount of $2,485,000.00
was amended and restated and, in connection therewith, the ILX Entities executed
and delivered to Lender a certain Amended and Restated Secured Promissory Note
in original principal amount of $2,485,000.00, pertaining to the Los Abrigados
Resort (the "Restated Loan". Hereinafter, the loans described in the
aforementioned November 24, 1998 Secured Loan Agreement are referred to,
collectively, as the "Combination Loan," and the loan documents executed in
connection therewith are referred to as the "Combination Loan Documents."
C. Under date of June 12, 1998 certain of the ILX Entities as Borrower and
Lender entered into a certain Secured Line of Credit Lending Agreement (ILX
Resorts - Global Facility) pertaining, INTER ALIA, to a $40,000,000.00 loan from
Lender to Borrower secured, INTER ALIA, by Pledged Accounts. Hereinafter, the
loan contemplated by the aforesaid Secured Line of Credit Lending Agreement and
the loan described therein is referred to as the "Global Loan," and the
documents executed in connection therewith are referred to as the "Global Loan
Documents".
D. Under date of September 17, 1998 certain of the ILX Entities as Borrower
and Lender entered into a certain Amended and Restated Secured Line of Credit
Lending Agreement (ILX Incorporated) pertaining, INTER ALIA, to a $3,500,000.00
loan from Lender to Borrower secured, INTER ALIA, by Pledged Accounts.
Hereinafter, the loan contemplated by the aforesaid Amended and Restated Secured
Line of Credit Lending Agreement is referred to as the "Non Conforming Loan" and
the documents executed in connection therewith are referred to as the "Non
Conforming Loan Documents."
E. ILX has requested that Lender increase the maximum principal amount of
the Xxxx'x Ranch Loan from $2,830,000.00 to$8,030,000 for the purpose, INTER
ALIA, of the providing of funding for the improvements of certain real property
owned or leased by the ILX Entities including the projects located in Las Vegas,
Nevada known as The Greens of Las Vegas Golf Center, the Xxxx Rock Inn located
in Oak Creek, Arizona and The Carriage House, and the Los Abrigados Resort
located in Sedona, Arizona, as more fully set forth below.
F. As a condition to granting ILX's request to increase the amount of the
Xxxx'x Ranch Loan, Lender requires certain modifications to the various Loan
Documents referenced above, as hereinafter set forth.
The parties desire to enter into this Amendment in order to memorialize
their agreements with respect to the foregoing as hereinafter set forth.
AGREEMENTS:
In consideration of the foregoing Recitals, which are incorporated herein
by reference, the covenants and agreements hereinafter set forth, the legal
adequacy and sufficiency of which are hereby acknowledged, the parties hereby
agree:
1. AMENDMENT CONTROLS. In the case of any conflict between the terms of
this Amendment and the provisions of the above described Xxxx'x Ranch Loan
Documents, the Combination Loan Documents, the Non Conforming Loan Documents
and/or the Global Loan Documents (collectively, the "Loan Documents"), the
provisions of this Amendment shall control. Except as specifically modified
hereby, the parties hereby ratify, reaffirm, and restate the terms of each of
said Loan Documents.
2. DEFINED TERMS. Any capitalized term not defined herein shall have the
meaning set forth in the applicable Loan Documents referenced above.
3. STATUS OF LOANS. As of September 30, 2001 the outstanding balance on the
above-described Loans are as follows:
LOAN PRINCIPAL BALANCE AS OF 9/30/01
---- -------------------------------
Xxxx'x Ranch Loan $ 1,638,432.15
San Xxxxxx Inventory Development Loan $ 0.00
The Sales Center Loan $ 0.00
The Restated Loan $ 931,375.55
The Global Loan $16,774,927.96
Non Conforming Loan $ 390,207.59
The ILX Entities, and each of them, hereby acknowledge that Lender is current in
the performance of all obligations under the above-referenced Loans and Loan
Documents, and as of the date set forth in the introduction to this Amendment,
the ILX Entities, collectively, and each of them individually, warrant and
represent that they have no defenses, set-offs, or counterclaims to their
liability to Lender under the subject Loans or the Loan Documents pertaining to
same. Without waiving the generality of the foregoing and in consideration of
Lender's execution of this Amendment, and in further consideration of Lender's
agreement to increase the maximum principal amount of the Xxxx'x Ranch Loan to
$8,030,000.00 as hereinafter provided, the ILX Entities individually and
collectively hereby waive and release any and all counterclaims, set-offs, or
defenses against liability under the subject Loans or Loan Documents arising on
or before the date of this Amendment.
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4. AMENDMENTS XXXX'X RANCH LOAN AND XXXX'X RANCH LOAN DOCUMENTS. The Xxxx'x
Ranch Loan and Xxxx'x Ranch Loan Documents are hereby amended in the following
respects:
a. INCREASE IN MAXIMUM OF XXXX'X RANCH LOAN. The maximum principal
amount of the Xxxx'x Ranch Loan is hereby increased from $2,830,000.00 to
$8,030,000.00
b. EXTENSION OF XXXX'X RANCH LOAN BORROWING PERIOD. The period during
which Lender will make non-revolving Advances to Borrower pursuant to the Xxxx'x
Ranch Loan Documents as modified hereby, is hereby extended to March 31, 2003
(the "Extended Borrowing Period"). During the Extended Borrowing Period Borrower
shall continue to make regular minimum quarterly principal reduction payments in
the amount of $176,813.00 per quarter.
c. EXTENSION OF LOAN TERM AND INCREASE IN MINIMUM QUARTERLY PRINCIPAL
REDUCTION Payments. The Maturity Date of the Xxxx'x Ranch Loan is hereby
extended from April 15, 2003 to April 1, 2006, at which time all unpaid
principal and interest shall be fully due and payable. The maturity date of the
Xxxx'x Ranch Loan is subject to acceleration if an Event of Default shall occur.
From and after the end of the Extended Borrowing Period referenced above in
paragraph 4.b., the minimum quarterly principal reduction payment shall be
increased from $176,813.00 (which shall be paid during the Extended Borrowing
Period) to an amount equal to one twelfth of the principal balance outstanding
on the Xxxx'x Ranch Loan on the last day of the Extended Borrowing Period. By
way of example, in the event the principal balance is $6,000,000.00 on the last
day of the Extended Borrowing Period, the minimum quarterly principal reduction
payment would be $500,000.00 ($6,000,000.00 divided by 12) per quarter until the
Xxxx'x Ranch Loan is paid in full.
d. AMOUNT AND APPLICATION OF RELEASE FEES. The amount of the release
fee payable to Lender pursuant to the Xxxx'x Ranch Loan Documents and/or the
Combination Loan Documents on or after the effective date of this Amendment is
hereby amended as follows:
NEW RELEASE FEE PURSUANT
PRIOR RELEASE FEE TO AMENDMENT
--------------------- ------------------------
RESORT ANNUAL BIANNUAL ANNUAL BIANNUAL
------ --------- --------- --------- ---------
Stand-alone (non-club) Xxxx'x Ranch $1,500.00 $ 900.00 $1,500.00 $ 900.00
Stand-alone(non-club)Los Abrigados $1,200.00 $ 720.00 $1,200.00 $ 720.00
Premiere Vacation Club $1,000.00 $ 580.00 $1,920.00 $1,152.00
*
e. APPLICATION OF RELEASE FEES. The revised release fees as set forth
above shall be applied to the Xxxx'x Ranch Loan until the Xxxx'x Ranch Loan is
paid in full. The foregoing application of release fees shall apply unless and
until an Event of Default occurs. If an Event of Default occurs, Lender may
apply the release fees to obligations owed Lender by the ILX Entities, or any of
them, as Lender determines, in Lender's sole discretion. Lender may adjust the
above-described release fees if and as necessary in order to assure that the
Xxxx'x Ranch Loan as modified hereby is repaid in full on or before 80% sell-out
of existing Vacation Ownership Interests owned by the ILX Entities and pledged
to Lender, in which Lender has a first priority duly perfected security
interest. Subject to Lender's consent (not to be unreasonably withheld) upon
payment of the foregoing release fee, the applicable borrower shall have the
right to designate which intervals are released.
f. USE OF INCREASED XXXX'X RANCH LOAN PROCEEDS. From and after the
date hereof, Advances of the Xxxx'x Ranch Loan may be used for the following
purposes only:
----------
* Not applicable - All San Xxxxxx inventory has been annexed to Premiere
Vacation Club ("PVC")
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(i) PROJECT IMPROVEMENTS. Advances may be used for effecting
improvements (the "Improvement Advances") as follows to the following projects.
A. THE GREENS OF LAS VEGAS and Joey's Restaurant. Up to a
maximum of $1,500,000.00 of the Xxxx'x Ranch Loan proceeds shall be used to fund
improvements (furniture, fixtures, equipment and minor remodeling, but no
material new construction) to The Greens of Las Vegas Golf Center leasehold
estate including renovation and equipping the ILX Sales Center, office space
therein and Joeyss.s Restaurant to be located in the Carriage House, located in
Las Vegas, Nevada.
B. LOS ABRIGADOS RESORT. Up to a maximum of $1,000,000.00 of
the Xxxx'x Ranch Loan proceeds shall be used to fund improvements (furniture,
fixtures, equipment and more extensive remodeling, to include new construction)
to the old sales center of the Los Abrigados Resort, in order to convert same
into eight additional residential units. These additional residential units
shall be subject to the lien of the deed of trust encumbering the Los Abrigados
Resort for the benefit of Lender.
X. XXXX'X RANCH. Up to a maximum of $500,000.00 of the of
the Xxxx'x Ranch Loan proceeds shall be used to fund improvements (furniture,
fixtures, and equipment and more extensive remodeling to include new
construction) to the certain residential units within the Xxxx'x Ranch project,
including the Platinum Unit.
X. XXXX ROCK INN. Up to a maximum of $1,200,000.00 of the
Xxxx'x Ranch Loan proceeds shall be used to fund improvements (furniture,
fixtures, equipment and minor remodeling, but no material new construction) to
the Xxxx Rock Inn.
(ii) SEDONA WORLDWIDE INC. STOCK PURCHASE. Up to a maximum of
$1,000,000.00 of the Xxxx'x Ranch Loan proceeds shall be Advanced to fund ILX's
purchase of 8,000,000 shares of Sedona Worldwide Inc. (the "Sedona Worldwide
Advance").
(iii) SUMS DUE LENDER. The balance of the increased Xxxx'x Ranch
Loan funding may be used for the purpose, and solely for the purpose, of ILX's
payment of sums due Lender including, without limitation, the Modification Fee
described below in the amount of $10,000.00, the 1% Advance Fee due Lender with
respect to any Advance under the Xxxx'x Ranch Loan, and the payment of Lender's
Expenses incurred in connection with this Amendment.
g. NOTICE PROVISIONS. Any notices to Lender pursuant to the Xxxx'x
Ranch Loan Documents, shall be made as follows:
If to Lender: Litchfield Financial Corporation
00000 Xxxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Attention: Xxxxxx-Xxx X. Xxxxxxxxx, Loan Manager
Facsimile: (000) 000-0000
with copy to: Textron Financial Corporation
000 Xxxx Xxxxx Xxxxx
Xxxx Xxxxxxxx, XX 00000
Attention: Xxxxxxxx Xxxxx, Division President
Facsimile:(000) 000-0000
and: Textron Financial Corporation
00 Xxxxxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Legal Department
Facsimile: (000) 000-0000
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with copy to: Xxxxx X. Xxxxx, Esq.
Xxxxx X. Xxxxx & Associates, P.C.
0000 00xx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Facsimile: (000) 000-0000
h. CROSS-COLLATERALIZATION AND CROSS DEFAULT. The collateral pledged
for the Xxxx'x Ranch Loan also collateralizes the Combination Loan, the Global
Loan, the Non Conforming Loan and any other loan or obligation, now or in the
future, from the ILX Entities, their affiliates, or any of them, to Lender.
Likewise, the collateral pledged to secure the Combination Loan, the Global
Loan, the Non Conforming Loan or any other obligation now or in the future owed
by the ILX Entities, or any of them, or any of their affiliates to Lender also
collateralizes the Xxxx'x Ranch Loan. Subject to the provisions set forth above
in paragraph 4.e. concerning the application of release fees, Lender may apply
the collateral or proceeds thereof it receives to any of the obligations
collateralized thereby, in Lender's sole discretion. Likewise, the occurrence of
an Event of Default under the Xxxx'x Ranch Loan shall constitute an Event of
Default under the Combination Loan, the Global Loan, the Non Conforming Loan and
any other loan or obligation now or in the future, from the ILX Entities, their
affiliates, or any of them to Lender, and an Event of Default under the
Combination Loan, the Global Loan, the Non Conforming Loan, or any other loan or
obligation now or in the future from the ILX Entities, their affiliates, or any
other of them, to Lender, shall be an Event of Default under the Xxxx'x Ranch
Loan.
5. CONDITIONS TO FUNDING. Anything to the contrary herein notwithstanding,
Lender shall have no obligation to make any subsequent Advance under the Xxxx'x
Ranch Loan unless and until each of the following requirements are satisfied or
waived by Lender, in writing, in Lender's sole discretion:
a. EXECUTION OF DOCUMENTS. The ILX Entities shall have executed and
delivered to Lender (or cause to be recorded or filed for record with the
appropriate governmental office) the following documents in connection herewith:
(i) this Amendment, (ii) the Allonge to Secured Construction Promissory Note in
the form appended hereto as EXHIBIT A, (iii) a Supplemental Security Agreement
in the form appended hereto as EXHIBIT B, (iv) UCC-1 Financing Statements
evidencing and perfecting Lender's first priority security interest in the
additional collateral described in the Supplemental Security Agreement; (v) an
Amended and Restated Deed of Trust encumbering all now and hereafter acquired
timeshare intervals and units owned by and/or conveyed to PVC (other than
intervals located in the Carriage House, in Las Vegas Nevada, which shall be
excluded from said Amended and Restated Deed of Trust) in the form appended
hereto as EXHIBIT C, (vi) a Collateral Assignment of Lease with respect to the
Master Lease between the County of Xxxxx, Nevada and ILX Resorts Incorporated
pertaining to the Greens of Las Vegas in the form appended hereto as EXHIBIT D
(which Collateral Assignment of Lease will be released by Lender after the ILX
Entities have repaid $2,000,000.00 of the additional $5,200,000.0 to be loaned
by Lender pursuant to this Amendment), and (vii) such other documents or
agreements as may be reasonably required by Lender, including, without
limitation, an opinion of counsel in form and substance satisfactory to Lender.
b. NO EVENT OF DEFAULT. No Event of Default shall have occurred, nor
shall any condition exist which, with the passage of time or the giving of
notice, shall constitute an Event of Default.
c. PAYMENT OF MODIFICATION FEE. ILX shall have paid Lender a loan
modification fee in the amount of $10,000.00 in consideration of Lender's
execution of this Amendment.
d. LENDER'S EXPENSES. ILX shall have paid Lender's Expenses incurred
in the investigation, negotiation, preparation and administration of this
Amendment and related Loan Documents, including, without limitation, Lender's
reasonable attorneysss. fees and costs, and any fees and expenses of Lender
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incurred in the administration of the subject Loans, including, without
limitation, any expenses incurred by Lender or any construction inspector
retained on behalf of Lender (including, without limitation, travel costs) in
inspecting the subject projects or the improvements thereto.
e. ILX's REPRESENTATIONS AND WARRANTIES. Each representation and
warranty of any of the ILX Entities in any Loan Document shall be true and
correct. The ILX Entities hereby each ratify, restate, reaffirm, republish and
confirm the representations, warranties and covenants set forth in the Xxxx'x
Ranch Loan Documents, the Combination Loan Documents, and the Global Loan
Documents. In addition, the ILX Entities hereby warrant and represent to Lender
that Lender's mortgage and security interest in all now owned and hereafter
acquired timeshare intervals and units owned by and/or conveyed to Premiere
Vacation Club (other than Carriage House intervals, in which Lender shall have
no security interest) is and will at all times be a properly perfected first and
prior security interest therein, and that no other creditor holds any security
interest in said inventory save and except as follows: Bank of Enid, Oklahoma
holds a first priority deed of trust with respect to 1,827 Timesharing Intervals
located at VCA Tucson.
f. CONDITIONS TO SPECIFIC ADVANCES.
(i) IMPROVEMENT ADVANCES.
(A) DISBURSEMENTS. So long as no Event of Default shall have
occurred, funds shall be disbursed by Lender for the purposes of effecting the
improvements to the projects set forth above in paragraph 4.f.(i) not to exceed
the amounts set forth therein on the following terms and conditions. All
requests for funding shall be in writing and shall be made through ILX's
completion and submission of a construction loan request in the form appended
hereto as EXHIBIT E, or such other form as Lender may require. ILX shall have
provided Lender a written budget satisfactory to Lender in its discretion for
the improvements to be effected at the subject project, supported by bids, cost
estimates, contracts or other documentation reasonably satisfactory to Lender,
which budget shall be updated in writing as necessary by ILX. Each such
disbursement shall be made on written request of ILX only for the purpose of
funding the cost of improvements in place or materials delivered to the job site
and properly installed or securely stored therein as evidenced by invoices or
other documentation reasonably satisfactory to Lender, in accordance with the
plans and specifications therefore supplied to and approved by Lender in its
reasonable discretion. Lender shall have the right to make inspections of the
subject projects and improvements and all the improvements for which
disbursement of Loan proceeds shall be satisfactory to Lender and its
construction inspector, if any. All improvements to the subject project to the
date of disbursement shall have been paid for in full (or subject only to
applicable retainage) as evidenced by lien waivers or other documentation
reasonably satisfactory to Lender. With respect to furniture, fixtures,
equipment and personalty paid for in whole or in part by Advances, Lender shall
have, and the ILX Entities hereby grant to Lender, a duly perfected first
priority security interest in same. The cost of completing the subject
improvements at no time shall exceed the undisbursed balance of the Loan
proceeds pertaining to the subject project (and if the cost of completing the
subject improvements at any time exceeds the undisbursed balance of the Loan
proceeds pertaining to the subject project, ILX shall immediately pay to Lender
for deposit into a non-interest bearing Loan account an amount equal to any such
excess, which amounts shall be disbursed by Lender pursuant to the provisions of
this paragraph). No funds shall be advance by Lender for the purposes of
effecting the improvements to the Xxxx Rock Inn until the ILX Entities have
executed and delivered to Lender an additional security agreement and UCC-1
financing statements perfecting Lender's security interests in the furniture,
fixtures, and equipment acquired with Lender's funding.
(B) REPRESENTATIONS AND WARRANTIES. Each request for a
disbursement for improvement purposes constitutes the representation and
warranty of the ILX Entities that each of the foregoing conditions have been
satisfied and that: the subject disbursement will be used only for the purposes
set forth in the request for disbursement; that all improvements to the subject
project have been paid in full; that no Event of Default or any condition which,
with the giving of notice or the passage of time, would constitute an Event of
Default, exists; that the balance of the Loan proceeds pertaining to the subject
project are sufficient to complete the improvements to the subject project; and
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that all other representations, warranties, covenants and agreements of the ILX
Entities in this Amendment and the other Loan Documents are true and correct
and .
(ii) SEDONA WORLDWIDE ADVANCE. Lender shall fund the Sedona
Worldwide Advance only through an escrow pursuant to which the stock certificate
evidencing ILX's ownership of the 8,000,000 shares of Sedona Worldwide Inc.
purchased therewith is delivered to Lender in order to perfect Lender's first
priority security interest in such shares and their proceeds, which ILX hereby
grants to Lender. On or before the Sedona Worldwide Advance, ILX shall execute
and deliver to Lender a Stock Pledge And Security Agreement in the form appended
hereto as EXHIBIT F.
6. AMENDMENTS TO GLOBAL LOAN AND GLOBAL LOAN DOCUMENTS. The Global Loan and
Global Loan Documents are hereby amended in the following respects:
a. DECREASE IN MAXIMUM LINE AMOUNT. The Maximum Line Amount of the
Global Loan as set forth in the Global Loan Documents is hereby decreased from
$40,000,000.00 to $30,000,000.00.
b. NOTICE PROVISIONS. Any notices to Lender pursuant to the Global
Loan Documents shall be made as follows:
If to Lender: Litchfield Financial Corporation
00000 Xxxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Attention: Xxxxxx-Xxx X. Xxxxxxxxx, Loan Manager
Facsimile: (000) 000-0000
with copy to: Textron Financial Corporation
000 Xxxx Xxxxx Xxxxx
Xxxx Xxxxxxxx, XX 00000
Attention: Xxxxxxxx Xxxxx, Division President
Facsimile: (000) 000-0000
and: Textron Financial Corporation
00 Xxxxxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Legal Department
Facsimile: (000) 000-0000
with copy to: Xxxxx X. Xxxxx, Esq.
Xxxxx X. Xxxxx & Associates, P.C.
0000 00xx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Facsimile: (000) 000-0000
c. CROSS-COLLATERALIZATION AND CROSS DEFAULT. The collateral pledged
for the Global Loan also collateralizes the Combination Loan, the Xxxx'x Ranch
Loan, the Non Conforming Loan and any other loan or obligation now or in the
future from the ILX Entities, their affiliates, or any of them, to Lender.
Likewise, the collateral pledged to secure the Combination Loan, the Xxxx'x
Ranch Loan, the Non Conforming Loan or any other obligation now or in the future
owed by the ILX Entities, or any of them, or any of their affiliates to Lender
also collateralizes the Global Loan. Subject to the provisions set forth above
in paragraph 4.e. concerning the application of release fees, Lender may apply
the collateral or proceeds thereof it receives to any of the obligations
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collateralized thereby, in Lender's sole discretion. Likewise, the occurrence of
an Event of Default under the Global Loan shall constitute an Event of Default
under the Combination Loan, the Xxxx'x Ranch Loan, the Non Conforming Loan and
any other loan or obligation now or in the future, from the ILX Entities, their
affiliates, or any of them to Lender, and an Event of Default under the
Combination Loan, the Xxxx'x Ranch Loan, the Non Conforming Loan, or any other
loan or obligation now or in the future from the ILX Entities, their affiliates,
or any other of them, to Lender, shall be an Event of Default under the Global
Loan.
7. AMENDMENT TO COMBINATION LOAN. The Combination Loan and the Combination
Loan Documents are hereby amended as follows:
a. MODIFICATION AND APPLICATION OF RELEASE FEES. The release fees
payable to Lender with respect to the Los Abrigados (Stand Alone) and San Xxxxxx
project (Premiere Vacation Club), and the Premiere Vacation Club, shall be
amended and applied as set forth above in paragraphs 4.d. and 4.e.
b. NOTICE PROVISIONS. Any notices to Lender pursuant to the
Combination Loan Documents shall be made as follows:
If to Lender: Litchfield Financial Corporation
00000 Xxxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Attention: Xxxxxx-Xxx X. Xxxxxxxxx, Loan Manager
Facsimile: (000) 000-0000
with copy to: Textron Financial Corporation
000 Xxxx Xxxxx Xxxxx
Xxxx Xxxxxxxx, XX 00000
Attention: Xxxxxxxx Xxxxx, Division President
Facsimile: (000) 000-0000
and: Textron Financial Corporation
00 Xxxxxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Legal Department
Facsimile: (000) 000-0000
with copy to: Xxxxx X. Xxxxx, Esq.
Xxxxx X. Xxxxx & Associates, P.C.
0000 00xx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Facsimile: (000) 000-0000
c. CROSS-COLLATERALIZATION AND CROSS DEFAULT. The collateral pledged
for the Combination Loan, or any of them, also collateralizes the Global Loan,
the Xxxx'x Ranch Loan, the Non Conforming Loan, as modified now or in the
future, and any other loan or obligation now or in the future from the ILX
Entities, their affiliates, or any of them, to Lender. Likewise, the collateral
pledged to secure the Global Loan, the Xxxx'x Ranch Loan, the Non Conforming
Loan or any other obligation now or in the future owed by the ILX Entities, or
any of them, or any of their affiliates to Lender also collateralizes the
Combination Loan. Subject to the provisions set forth above in paragraph 4.e.
concerning the application of release fees, Lender may apply the collateral or
proceeds thereof it receives to any of the obligations collateralized thereby,
in Lender's sole discretion. Likewise, the occurrence of an Event of Default
under the Combination Loan shall constitute an Event of Default under the Global
Loans, the Xxxx'x Ranch Loan, the Non Conforming Loan and any other loan or
obligation now or in the future, from the ILX Entities, their affiliates, or any
of them to Lender, and an Event of Default under the Global Loan, the Kohl's
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Ranch Loan, the Non Conforming Loan, or any other loan or obligation now or in
the future from the ILX Entities, their affiliates, or any other of them, to
Lender, shall be an Event of Default under the Combination Loan.
8. AMENDMENTS TO NON CONFORMING LOAN AND NON CONFORMING LOAN DOCUMENTS. The
Non Conforming Loan and Non Conforming Loan Documents are hereby amended in the
following respects:
a. NOTICE PROVISIONS. Any notices to Lender pursuant to the Non
Conforming Loan Documents shall be made as follows:
If to Lender: Litchfield Financial Corporation
00000 Xxxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Attention: Xxxxxx-Xxx X. Xxxxxxxxx, Loan Manager
Facsimile: (000) 000-0000
with copy to: Textron Financial Corporation
000 Xxxx Xxxxx Xxxxx
Xxxx Xxxxxxxx, XX 00000
Attention: Xxxxxxxx Xxxxx, Division President
Facsimile: (000) 000-0000
and: Textron Financial Corporation
00 Xxxxxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Legal Department
Facsimile: (000) 000-0000
with copy to: Xxxxx X. Xxxxx, Esq.
Xxxxx X. Xxxxx & Associates, P.C.
0000 00xx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Facsimile: (000) 000-0000
b. CROSS-COLLATERALIZATION AND CROSS DEFAULT. The collateral pledged
for the Non Conforming Loan also collateralizes the Global Loan, the Xxxx'x
Ranch Loan, the Combination Loan and any other loan or obligation now or in the
future from the ILX Entities, their affiliates, or any of them, to Lender.
Likewise, the collateral pledged to secure the Global Loan, the Xxxx'x Ranch
Loan, the Combination Loan, or any other obligation now or in the future owed by
the ILX Entities, or any of them, or any of their affiliates to Lender also
collateralizes the Non Conforming Loan. Subject to the provisions set forth
above in paragraph 4.e. concerning the application of release fees, Lender may
apply the collateral or proceeds thereof it receives to any of the obligations
collateralized thereby, in Lender's sole discretion. Likewise, the occurrence of
an Event of Default under the Non Conforming Loan shall constitute an Event of
Default under the Global Loans, the Xxxx'x Ranch Loan, the Combination Loan and
any other loan or obligation now or in the future, from the ILX Entities, their
affiliates, or any of them to Lender, and an Event of Default under the Global
Loan, the Xxxx'x Ranch Loan, the Combination Loan, or any other loan or
obligation now or in the future from the ILX Entities, their affiliates, or any
other of them, to Lender, shall be an Event of Default under the Non Conforming
Loan.
9
9. GOVERNING LAW AND VENUE. This Amendment shall be construed and enforced
according to the laws of the State of Colorado. The parties stipulate and agree
that the exclusive jurisdiction and venue for any dispute arising under this
Amendment, the Xxxx'x Ranch Loan Documents, the Combination Loan Documents, the
Global Loan Documents, or any other Loan Document shall be in Jefferson County,
Colorado. Provided, however, that nothing herein shall preclude Lender's
institution of proceedings in the State of Arizona or any other state in which
any ILX Entity or affiliate maintains offices, facilities or assets.
10. EXCLUSIVE RIGHT TO FINANCE. ILX hereby grants Lender and its successors
and assigns the following exclusive rights to provide financing to The Greens of
Las Vegas Golf Center as follows:
a. RECEIVABLES FINANCING. The exclusive right to purchase, hypothecate
or otherwise finance all timeshare sales, club membership sales, receivables
generated, originated or otherwise owned by the ILX Entities, or any of them, or
their successors, assigns, or any of their affiliated entities and originated at
The Greens of Las Vegas Golf Center.
Provided, however, that the foregoing provisions shall not require Lender
to provide any such financing, and any such financing shall be evidenced only by
subsequent written agreement between the parties, and shall be subject to the
approval of Lender and its Credit Committee, in their sole discretion. And,
provided further, that if Lender acknowledges in writing that Lender is unable
or unwilling to provide the above-described financing, ILX may obtain said
financing from other sources.
11. MISCELLANEOUS.
a. WAIVER. No waiver by Lender of any default or breach by the ILX
Entities or any of them hereunder or under the other Loan Documents referenced
herein shall be implied from any omission by Lender to take, or any delay in
taking, action on account of such default other than the default expressly made
the subject of the waiver and any such express waiver shall be operative only
for the time and to the extent therein stated. Any waiver of any covenant, term
or condition contained herein shall not be construed as a waiver of any
subsequent breach of the same covenant, term or condition. The consent or
approval by Lender to or of any act by the ILX Entities or any of them requiring
further consent or approval shall not be deemed to waive or render unnecessary
the consent or approval to or of any subsequent similar act. Notwithstanding
anything set forth herein to the contrary, if no notice of a default or waiver
is required hereunder and none has been given, Lender shall not be deemed to
have waived any rights which it may have hereunder until seven (7) days
following receipt by it of written notice from the ILX Entities or any of them
alerting Lender to the fact that the time for exercising any right or remedy
hereunder has elapsed without exercise thereof and such time for exercise shall
automatically be extended to seven (7) days following notice, said right shall
conclusively be deemed to have been waived by Lender. The intent of this
paragraph is to avoid unintentional waivers by Lender of any of its rights
hereunder.
b. NO DUTY OF LENDER. Nothing in this Amendment shall impose or imply
any duty or obligation whatsoever upon Lender, and Lender shall be under no duty
to take any action to preserve rights of the ILX Entities or any of them with
respect to any of the security held by Lender for the Obligations. The ILX
Entities or any of them waive any and all impairment of recourse and/or
impairment of collateral defenses which it may possess against the Lender.
c. SURVIVAL. The warranties, representations and agreements set forth
herein survive the closing hereof.
d. MERGER. This Amendment represents the culmination of all prior
negotiations, representations, and agreements between the parties with respect
to the purchase and sale contemplated hereby. All such prior negotiations,
representations, and agreements are merged herein.
10
e. PREPARATION OF AMENDMENT. The parties hereto acknowledge that this
Amendment has been negotiated and prepared in an arms-length transaction and
that both Lender and the ILX Entities and each of them have negotiated all the
terms contained herein. Accordingly, the parties agree that neither party shall
be deemed to have drafted the Amendment and the Amendment shall not be
interpreted against any party as the draftsman.
f. OTHER ACTS AND DOCUMENTS. The parties agree to undertake such other
acts and execute such other documents as may be reasonably necessary to effect
the purpose and intent of this Amendment.
g. ADVICE OF COUNSEL. Each party acknowledges to the other that such
party has been advised by legal counsel in connection with the negotiation and
execution of this Amendment and that each party understands the terms and
conditions contained herein and that each has entered into this Amendment
voluntarily.
h. JURY WAIVER. THE ILX ENTITIES AND EACH OF THEM HEREBY KNOWINGLY AND
VOLUNTARILY WAIVE THEIR RIGHT TO A JURY TRIAL IN THE EVENT OF ANY DISPUTE OR
LITIGATION ARISING HEREUNDER OR UNDER ANY LOAN DOCUMENT OR ANY DOCUMENT EXECUTED
IN CONNECTION THEREWITH.
i. COUNTERPARTS. This Amendment may be executed in counterparts, each
of which shall constitute an original, but all of which taken together shall
constitute one and the same instrument.
j. FACSIMILE DELIVERY. Counterparts of this Amendment may be executed
by facsimile signature, which shall be effective upon delivery of a copy of this
Amendment bearing said facsimile signature.
IN WITNESS WHEREOF the parties hereto have set their hands and seals on the
day and date appearing above intending to be legally bound.
ILX ENTITIES:
ILX RESORTS INCORPORATED
By: ____________________________________
Xxxxxx X. Xxxxxxx, Chairman
LOS ABRIGADOS PARTNERS LIMITED
PARTNERSHIP
By: ____________________________________
Its: ___________________________________
PREMIERE DEVELOPMENT INCORPORATED
By: ____________________________________
Its: ___________________________________
11
ILE SEDONA INCORPORATED
By: ____________________________________
Its: ___________________________________
VCA TUCSON INCORPORATED
By: ____________________________________
Its: ___________________________________
VCA SOUTH BEND INCORPORATED
By: ____________________________________
Its: ___________________________________
VCA NEVADA INCORPORATED
By: ____________________________________
Its: ___________________________________
LENDER:
LITCHFIELD FINANCIAL CORPORATION
By: ____________________________________
Its: ___________________________________
12
SCHEDULE OF EXHIBITS
EXHIBIT A Allonge to Secured Construction Promissory Note
EXHIBIT B Supplemental Security Agreement
EXHIBIT C Amended and Restated Deed of Trust
EXHIBIT D Collateral Assignment of Lease
EXHIBIT E Construction Loan Disbursement Request Form
EXHIBIT F Stock Pledge and Security Agreement
13
EXHIBIT A
ALLONGE TO MARCH 19, 1999 SECURED CONSTRUCTION
PROMISSORY NOTE IN PRINCIPAL AMOUNT OF $2,830,000.00
BY ILX RESORTS INCORPORATED AS BORROWER
The above-referenced and attached Promissory Note is hereby modified in the
following respects:
1. INCREASE IN MAXIMUM OF XXXX'X RANCH LOAN. The maximum principal amount
of the attached March 19, 1999 Secured Construction Promissory Note is hereby
increased from $2,830,000.00 to $8,030,000.00.
2. EXTENSION OF XXXX'X RANCH LOAN BORROWING PERIOD. The period during which
Lender will make non-revolving Advances to Borrower hereunder is hereby extended
to March 31, 2003 (the "Extended Borrowing Period").
3. EXTENSION OF MATURITY DATE. The Maturity Date of the Xxxx'x Ranch Loan
is hereby extended from April 15, 2003 to April 1, 2006, at which time all
unpaid principal and interest shall be fully due and payable. The minimum
quarterly principal reduction payment required under the March 19, 1999 Secured
Construction Promissory Note after the end of the Extended Borrowing Period is
hereby increased from $176,813.00 (which shall be paid during the Extended
Borrowing Period) to an amount equal to one twelfth the outstanding principal
balance due on the last day of the Extended Borrowing Period. By way of example,
in the event the principal balance is $6,000,000.00 on the last day of the
Extended Borrowing Period, the minimum quarterly principal reduction payment
would be $500,000.00 ($6,000,000.00 divided by 12) per quarter until this
Secured Construction Promissory Note is paid in full.
4. AMOUNT AND APPLICATION OF TIMESHARING INTERVALS FROM XXXX'X RANCH WHICH
ARE SOLD BY PREMIERE VACATION CLUB. With regard to the sale of Timesharing
Intervals from Xxxx'x Ranch, which are sold by Premiere Vacation Club, Borrower
shall pay release fees to Lender in the amount of $1,615.00 per sale of annually
occurring Timesharing Interval and $970.0000 per sale of biannually occurring
Timesharing Interval , which amounts shall be applied by Lender to sums due
pursuant to the attached Secured Construction Promissory Note. Provided,
however, that after the occurrence of any Event of Default, Lender may apply
such release fees to any obligations due to Lender by Borrower or its
affiliates, in Lender's sole discretion.
EFFECTIVE as of October 31, 2001.
BORROWER:
ILX RESORTS INCORPORATED
By: ____________________________________
Xxxxxx X. Xxxxxxx, Chairman
14
EXHIBIT B
SUPPLEMENTAL SECURITY AGREEMENT
15
EXHIBIT C
AMENDED AND RESTATED PREMIERE VACATION CLUB DEED OF TRUST
16
EXHIBIT D
COLLATERAL ASSIGNMENT OF THE GREENS OF LAS VEGAS LEASE
17
EXHIBIT E
CONSTRUCTION LOAN REQUEST
_______, 200_
Litchfield Financial Corporation
00000 Xxxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Re: Amendment to Loan Documents ("AMENDMENT") between Litchfield Financial
Corporation ("LENDER") and ILX Resorts Incorporated, an Arizona
corporation ("ILX"); Los Abrigados Partners Limited Partnership, an
Arizona limited partnership ("Abrigados"), Premiere Development
Incorporated, an Arizona corporation ("Premiere"), ILE Sedona
Incorporated, an Arizona corporation ("ILE"), VCA Tucson Incorporated,
an Arizona corporation ("VCA Tucson"), VCA South Bend Incorporated, an
Arizona corporation ("VCA South Bend") (collectively, "Borrower"),
dated as of October 31, 2001 concerning, INTER ALIA, $3,700,000.00
project improvement component of $8,030,000.00 loan facility (the
"LOAN")
Ladies and Gentlemen:
In accordance with the terms of that certain Amendment dated October 31,
2001, Borrower desires to obtain an Advance in the amount of $__________ on
_______________, 200__. Unless otherwise defined herein, terms used herein with
initial capital letters shall have the same meaning assigned to such terms in
the Amendment.
In order to induce LENDER to make such Advance, Borrower hereby represents
and warrants the following to LENDER:
1. No Default or Event of Default has occurred under the Amendment or
any of the Loan Documents referenced therein and no Event of Default will
occur under the Amendment or any of the Loan Documents referenced therein
as a result of the Advance requested herein.
2. All of Borrower's representations and warranties under the
Amendment and the Loan Documents referenced therein and the other Security
Documents are true and correct as of the date hereof, and after giving
effect to the making of such requested Advance, will be true and correct as
of the date on which such Advance is made.
3. The applicable conditions to the making of an Advance as set forth
in the Amendment have been satisfied as of the date hereof, including,
without limitation, the conditions set forth in paragraph 9 of the
Amendment.
4. The following information is true and correct as of the date hereof
and will be true and correct as of the date on which the aforesaid
requested Advance is to be made:
18
A. Aggregate original principal amounts of all
Advances made in prior months: $_________
B. Additional original principal amounts of all
Advances made during the current month: $_________
C. All Construction Costs ($______________) and FF&E
Costs ($______________) incurred to date of the
requested Advance $_________
Total Amount Available for Borrowing: $_________
5. As more fully set forth in the Attachments hereto, the Advance
requested hereby is to be applied as follows:
Construction Costs _______________
FF&E Costs _______________
Attached hereto is a calculation of all retainages with respect to the
portion of the requested Advance to be used to pay for Construction
Costs.
6.The chief executive office of the Borrower, and all its books and
records, are located at
___________________________________________.
7. The Collateral is free and clear of all Liens and other
encumbrances, except for the Lien of LENDER granted pursuant to the
Security Documents and the other encumbrances specifically permitted by the
terms of the Amendment.
8. Attached to this request is a [CONSTRUCTION COST CERTIFICATE\ FINAL
CONSTRUCTION COST CERTIFICATE] together with all required exhibits thereto,
including, without limitation, a copy of the draft endorsement to the
applicable Title Insurance Policy , if any, in connection with the
requested Advance. All payments of premiums in respect thereof have been
made.
9. The requested Advance should be disbursed as provided in the
Amendment. Any funds to be disbursed directly to the Borrower shall be
delivered as follows:________________________________________.
10. The information set forth herein is true, correct and complete,
and Borrower acknowledges that, in connection with making an Advance under
the Loan, LENDER is relying on the information contained herein (including
the attachments hereto) and certified, both on behalf of the Borrower and
the undersigned, individually, as being true, correct and complete.
11. All of the representations and warranties made in connection with
any prior Subsequent Advance are true and correct as of the date hereof,
and after giving effect to the making of the requested Advance will be true
and correct as of the date on which such Subsequent Advance is made.
19
_______________________________
By: ___________________________
By: ___________________________
Name: _________________________
Title:_________________________
ATTACHMENT A
[Construction Cost Certificate\Non-construction Cost Certificate\
Final Construction Cost Certificate]
To be accompanied by AIA Documents G 702, G703 and G 704 as applicable
CONSTRUCTION COST CERTIFICATE
DATE: ______________, 200__
TO: LITCHFIELD FINANCIAL CORPORATION (THE "LENDER")
FROM: ILX RESORTS INCORPORATED, AN ARIZONA CORPORATION ("ILX"); LOS
ABRIGADOS PARTNERS LIMITED PARTNERSHIP, AN ARIZONA LIMITED PARTNERSHIP
("ABRIGADOS"), PREMIERE DEVELOPMENT INCORPORATED, AN ARIZONA
CORPORATION ("PREMIERE"), ILE SEDONA INCORPORATED, AN ARIZONA
CORPORATION ("ILE"), VCA TUCSON INCORPORATED, AN ARIZONA CORPORATION
("VCA TUCSON"), VCA SOUTH BEND INCORPORATED, AN ARIZONA CORPORATION
("VCA SOUTH BEND") (COLLECTIVELY, THE "BORROWER")
RE: CERTIFICATION FOR ADVANCES WITH RESPECT TO THE __________________ PROJECT
UNDER THAT CERTAIN AMENDMENT BETWEEN THE BORROWER AND THE LENDER DATED AS OF
OCTOBER 31, 2001 (THE "AMENDMENT")
This Construction Cost Certificate is being delivered to the LENDER by the
Borrower pursuant to the Amendment. All capitalized terms used herein shall have
the meanings assigned thereto by the Amendment. The Borrower hereby makes the
following statements to the LENDER and acknowledges that the LENDER is relying
on this Construction Cost Certificate and the attachments hereto in making
Advances to the Borrower under the Amendment:
1. Attached hereto as Attachment #1 is:
(a) an Application and Certificate for Payment (AIA Document G702)
dated __________, addressed to the Borrower, executed by the General
Contractor (whose signature is duly notarized) and certified and executed
by the Architect (or if there is no General Contractor or Architect,
executed by ILX Resorts Incorporated on behalf of Borrower), and
(b) a fully completed Continuation Sheet (AIA Document G703) that
shows, under the "Description of Work" column set forth therein, each
construction line item classification of the project budget and the
scheduled value thereof as provided in the project budget. The foregoing
Attachment #1 and the statements and calculations set forth therein are
true and correct.
2. Attached hereto as Attachment #2 is the Architect's Construction Cost
Certificate dated ___________, addressed to the LENDER and executed by the
Architect (or if there is no General contractor or Architect, executed by ILX
Resorts Incorporated on behalf of Borrower), and, at Lender's option, Lender's
inspector. The foregoing Attachment #2 and the statements and calculations set
forth therein are true and correct.
20
3. Attached hereto as Attachment #3, if applicable, is a certificate from
the General Contractor, if any, to the Borrower and the LENDER dated
____________________. The foregoing Attachment #3 and the statements and
calculations set forth therein are true and correct.
The Borrower confirms that:
(a) The aggregate costs incurred by the Borrower in respect of
construction costs and FF&E costs pertaining to the subject project up to
and including the date of this certificate is $_________________,
(b) The unutilized principal amount under the Amendment with respect
to the subject project is $_________________ and said sum is sufficient to
satisfy the remaining construction costs and FF&E costs
4. The Borrower certifies that on Attachment #4 hereto is an accurate
calculation of the total amount of the scheduled value of each construction line
item in the applicable project budget completed as of the date of this
certificate and the portion of such completed scheduled value (a) paid for by
prior Advances, (b) deferred as retainage, and (c) to be paid for by the
currently requested Advance.
5. The Borrower certifies that attached to this certificate as Attachment
#5 is the evidence (copies of canceled checks, paid-in-full invoices and other
evidence of payment) of the application of the proceeds of any prior Advances
not previously accounted for in a prior Construction Cost Certificate or under
paragraph 3 above (including, without limitation, proceeds used to pay for
furniture, fixture, equipment, marketing costs and sales commissions).
6. The Borrower certifies that the comparisons on Attachment #6 attached
hereto of the actual costs incurred in respect of each line item in the Budget
to the projected amounts thereof are true and correct and that the explanations
of the material variances in respect thereof on said Attachment #6 are true and
correct
7. The Borrower certifies that the title report issued by the applicable
title insurance company, if any, and attached as Attachment #7 hereto is true
and correct, that no lien or exception to title and no mechanic's,
materialmen's, labor's or other similar Lien is of record with respect to the
subject project.
ILX RESORTS INCORPORATED
By: _________________________
Name: _______________________
Title: ______________________
21
ATTACHMENT #1
APPLICATION AND CERTIFICATE FOR PAYMENT AND CONTINUATION STATEMENT
22
ATTACHMENT #2
ARCHITECT'S CONSTRUCTION COST CERTIFICATE
DATE: _________________, 200__
TO: LITCHFIELD FINANCIAL CORPORATION (THE "LENDER")
FROM: ___________________ ("ARCHITECT") AND _____________ ("LENDER'S INSPECTOR")
RE: CERTIFICATION FOR ADVANCES UNDER THAT CERTAIN AMENDMENT DATED OCTOBER 31,
2001 BY AND BETWEEN ILX RESORTS INCORPORATED, AN ARIZONA CORPORATION
("ILX"); LOS ABRIGADOS PARTNERS LIMITED PARTNERSHIP, AN ARIZONA LIMITED
PARTNERSHIP ("ABRIGADOS"), PREMIERE DEVELOPMENT INCORPORATED, AN ARIZONA
CORPORATION ("PREMIERE"), ILE SEDONA INCORPORATED, AN ARIZONA CORPORATION
("ILE"), VCA TUCSON INCORPORATED, AN ARIZONA CORPORATION ("VCA TUCSON"),
VCA SOUTH BEND INCORPORATED, AN ARIZONA CORPORATION ("VCA SOUTH BEND")
(COLLECTIVELY, THE "BORROWER") AND THE LENDER (THE "AMENDMENT")
I. The undersigned architect, as the Architect, certifies to the LENDER
that (a) this certificate is being issued in connection with the Construction
Cost Certificate to which this certificate is attached and (b) each of the
following statements is true and correct:
(i) the Architect has inspected Property (as defined in the Amendment)
and reviewed the aforesaid Construction Cost Certificate and the
attachments thereto,
(ii) the aforesaid Construction Cost Certificate and the attachments
thereto are satisfactory to the Architect,
(iii) the construction at Property has been in accordance with the
Plans (as defined in the Amendment) and has been in compliance with all
applicable laws,
(iv) the unexpended construction portion of the Budget (as defined in
the Amendment) is adequate to complete the construction of Resort,
(v) $____________, which the Architect understands is the aggregate
principal amount of the Advances (as defined in the Amendment) currently
outstanding and used to finance construction costs, is less than the
aggregate cost of the construction work currently in place,
(vi) the completion of the construction at Resort can reasonably be
expected to occur on or before _______________________, and
(vii) the only modifications or changes to Budget or Plans not
previously disclosed in a prior Architect's Construction Cost Certificate
are set forth below:
[Disclosures]
II. The undersigned architect, as the Lender's Inspector, certifies to the
LENDER that (a) this certificate is being issued in connection with the
Construction Cost Certificate to which this certificate is attached and (b) each
of the following statements is true and correct:
(i) the Lender's Inspector has inspected Resort and reviewed the
aforesaid Construction Cost Certificate and the attachments thereto,
23
(ii) the aforesaid Construction Cost Certificate and the attachments
thereto are satisfactory to the Lender's Inspector,
(iii) the construction at Resort has been in accordance with the Plans
and has been in compliance with all applicable laws,
(iv) the unexpended construction portion of the Budget is adequate to
complete the construction of Resort,
(v) $____________, which the Lender's Inspector understands is the
aggregate principal amount of the Advances currently outstanding and used
to finance construction costs, is less than the aggregate cost of the
construction work currently in place,
(vi) the completion of the construction at Resort can reasonably be
expected to occur on or before _________________________, and
(vii) the only modifications or changes to the Budget or the Plans not
previously disclosed in a prior Architect's Construction Cost Certificate
are set forth below:
[Disclosures]
By: _______________________________
Name: _____________________________
Title: ____________________________
By: _______________________________
Name: _____________________________
Title: ____________________________
24
ATTACHMENT #3
SPECIAL CERTIFICATE OF THE GENERAL CONTRACTOR
DATE: ________________, 200__
TO: LITCHFIELD FINANCIAL CORPORATION (THE "LENDER") AND ILX RESORTS
INCORPORATED, AN ARIZONA CORPORATION ("ILX"); LOS ABRIGADOS PARTNERS
LIMITED PARTNERSHIP, AN ARIZONA LIMITED PARTNERSHIP ("ABRIGADOS"),
PREMIERE DEVELOPMENT INCORPORATED, AN ARIZONA CORPORATION
("PREMIERE"), ILE SEDONA INCORPORATED, AN ARIZONA CORPORATION ("ILE"),
VCA TUCSON INCORPORATED, AN ARIZONA CORPORATION ("VCA TUCSON"), VCA
SOUTH BEND INCORPORATED, AN ARIZONA CORPORATION ("VCA SOUTH BEND")
(COLLECTIVELY, THE "BORROWER")
FROM: ____________________________________ (THE "GENERAL CONTRACTOR")
RE: CERTIFICATION FOR ADVANCES UNDER THAT CERTAIN AMENDMENT BETWEEN THE BORROWER
AND THE LENDER DATED AS OF OCTOBER 31, 2001 (THE "AMENDMENT")
The undersigned contractor, as the General Contractor, certifies to
each of the Borrower and the LENDER that each of the following is true and
correct:
(a) the construction at the Property has been in accordance with the
Construction Documents (as such term is defined in the Construction
Contract),
(b) the undersigned contractor has fully paid for (except in respect
of contractually permitted retainages) all of the work, labor, fuel,
materials and/or equipment furnished by it or by its subcontractors,
materialmen and/or suppliers in respect of the construction of the Resort,
or the progress payments in respect thereof, as the case may be, through
each of the dates for each prior application and certificate for which the
undersigned contractor has been paid prior to the date of this certificate,
(c) the copies of canceled checks, paid-in-full invoices and other
evidence of payment (as shall have been previously declared to be
acceptable to the Borrower and LENDER) attached hereto are bona fide
evidence of the payment in full of the subcontractors, materialmen and/or
suppliers referred to in clause (b) above in respect of the work of such
persons described in clause (b) above,
(d) the copies of invoices and other documentation (as shall have been
previously declared to be acceptable to the Borrower and LENDER) attached
hereto are bona fide evidence of the amount of work, labor, fuel, materials
and/or equipment actually done, supplied or completed in respect of the
payments referred to in clause (C) above and valid mechanic's,
materialman's and laborer's unconditional lien waivers or releases attached
hereto or previously delivered cover all of the aforesaid work, labor,
fuel, materials and/or equipment,
(e) the copies of the invoices and bills of the costs of the
undersigned contractor and the costs of its subcontractors, materialmen
and/or suppliers and/or applications for payment submitted by it and by its
subcontractors for progress payments which, in each case, are to be
satisfied (less any retained amount thereof), in whole or part, with the
Advance (as defined in the Amendment) contemplated to be made in connection
with this certificate and which are attached hereto are bona fide evidence
of the amount or amounts owed to the undersigned contractor and to such
subcontractors, materialmen and suppliers for work completed [since the
last certificate submitted by the undersigned contractor][since the
commencement of construction], and
(f) the mechanic's, materialmen's and laborer's progress lien waivers
or releases attached hereto cover all of the costs of such mechanics,
materialmen and laborers to be paid from the Advance contemplated to be
made in connection with this certificate (and such condition of payment
shall be the only condition to which such waivers or releases shall be
subject).
25
References above to subcontractors, materialmen and suppliers shall mean and
include any subcontractor, materialman or supplier having a contract to supply
in the aggregate, or actually supplying in the aggregate, $_____________ or more
of labor, materials and/or supplies.
__________________________________
By: ______________________________
Name: ____________________________
Title: ___________________________
COPIES OF CANCELED CHECKS, PAID-IN-FULL INVOICES AND OTHER EVIDENCE OF PAYMENT
26
COPIES OF THE INVOICES AND BILLS OF THE COSTS OF THE COSTS OF SUBCONTRACTORS,
MATERIALMEN AND/OR SUPPLIERS IN RESPECT OF PRIOR PAYMENTS
27
MECHANIC'S, MATERIALMAN'S AND LABORER'S UNCONDITIONAL LIEN WAIVERS OR
RELEASE IN RESPECT OF PRIOR PAYMENTS
28
COPIES OF THE INVOICES AND BILLS OF THE COSTS OF THE UNDERSIGNED CONTRACTOR
AND THE COSTS OF ANY SUBMITTING SUBCONTRACTORS, MATERIALMEN AND/OR SUPPLIERS
29
MECHANIC'S, MATERIALMAN'S AND LABORER'S PROGRESS PAYMENT
LIEN WAIVERS OR RELEASE
30
ATTACHMENT #4
===================================================================================================================
FF&E and Sales, Total Actual Costs Incurred
Marketing & Other Costs to the Date of this Projected Total Costs to Explanation of Material
Line Item in the Budget Certificate Have Been Incurred Variance
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31
ATTACHMENT #5
COPIES OF CANCELED CHECKS, PAID-IN-FULL INVOICES
AND OTHER EVIDENCE OF PAYMENT
32
ATTACHMENT #6
VARIANCE CONSTRUCTION BUDGET
===================================================================================================================
FF&E and Sales, Total Actual Costs Incurred
Marketing & Other Costs to the Date of this Projected Total Costs to Explanation of Material
Line Item in the Budget Certificate Have Been Incurred Variance
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37
ATTACHMENT # 7
TITLE REPORT
38
EXHIBIT F
STOCK PLEDGE AND SECURITY AGREEMENT
39
